MIANGUL HASSAN AURANGZEB, J, Through this order I propose to decide Writ Petitions Nos.2483/2020, 3554/2020, 1203/2021 and 1577/2021 since they entail certain common features.
Writ Petition No.2483/2020 titled. "Fateh Muhammad v. Federation of Pakistan and others".
2. In the year 2005, the petitioner was appointed as a Data Entry Operator in the National Database and Registration Authority ("NADRA"). Subsequently, he was promoted as Deputy Superintendent (BPS-12). On 07.01.2020 he was served with a. charge sheet and statement of allegations alleging therein that while he was working as Incharge NRC Rakhni, he had violated the standard operating procedures. He was alleged to have committed corruption and misconduct. He was proceeded against under the Government Servants (Efficiency and Discipline) Rules, 1973, which have been adopted by NADRA. An inquiry committee has also been constituted. On 29.01.2020, the petitioner submitted a reply to the charge sheet denying the allegations levelled against him. On 10.02.2020, a supplementary charge sheet was issued to the petitioner. On 20.07.2020, a show cause notice was issued to the petitioner to which the latter submitted a reply on 07.08.2020. Vide order dated 19.08.2020, major penalty of dismissal from service was imposed on the petitioner. Even though the petitioner filed a departmental appeal on 01.09.2020 against the imposition of the major penalty, he also filed the instant writ petition on 10.09.2020 (i.e., nine days after filing the departmental appeal) and obtained a status quo order on 11.09.2020 from this Court. On 22.09.2020, operation of the impugned order dated 19.08.2020 was suspended.
3. The petitioner's departmental appeal has till date not been decided. By virtue of the said suspension order, the petitioner is still performing his duties.
Writ Petition No.3554/2020 titled "Abdul Karim v. Federation of Pakistan and others."
4. In the year 2005, the petitioner was appointed as a Data Entry Operator in NADRA. Subsequently, he was promoted as Deputy Superintendent (BPS-12). [On 07.01.2020, he was served with a charge sheet and statement of allegations alleging that while he was working as Incharge NRC Rakhni, he had violated the standard operating procedures. He was alleged to have committed corruption and misconduct. He was proceeded against under the Government Servants (Efficiency and Discipline) Rules, 1973, which have been adopted by NADRA. An inquiry committee has also been constituted. On 29.01.2020, the petitioner submitted a reply to the charge sheet denying the allegations levelled against him. On 10.02.2020, a supplementary charge sheet was issued to the petitioner. On 20.07.2020, a show-cause notice was issued to the petitioner to which the latter submitted a reply on 10.08.2020. Vide order dated 19.08.2020, major penalty of dismissal from service was imposed on the petitioner. Even though the petitioner filed a departmental appeal on 01.09.2020 against the imposition of the major penalty, he also filed the instant writ petition on 25.11.2020. On 27.11.2020, operation of the impugned order dated 19.08.2020 was suspended.
5. The petitioner's departmental appeal has till date not been decided. By virtue of the said suspension order, the petitioner is still performing his duties.
Writ Petition No.1203/2021 titled "Sultan Khan Suhrivani v. Federation of Pakistan and others."
6. The petitioner was initially appointed as a Supervisor in NADRA and was subsequently promoted as Senior Executive. On 15.01.2020, he was served with a charge sheet and statement of allegations alleging therein that the petitioner was involved in violation of NADRA Registration SOPs. He was proceeded against under the Government Servants (Efficiency and Discipline) Rules, 1973, which have been adopted by NADRA. An inquiry committee has also been constituted. The petitioner submitted a reply to the statement of allegations. On 12.08.2020, a show-cause notice was issued to the petitioner to which the latter submitted a reply. Vide order dated 04.02.2021, major penalty of dismissal from service was imposed on the petitioner. Even though the petitioner filed a departmental appeal on 03.03.2021 against the imposition of the major penalty, he also filed the instant writ petition on 27.03.2021. No injunctive relief was given by this Court to the petitioner. The petitioner's departmental appeal has till date not been decided.
Writ Petition No.1577/2021 titled "Ghulam Rasool v. Federation of Pakistan and others."
7. The petitioner was appointed as Incharge NRC Kohlu RHO, NADRA, Quetta. Subsequently, he was promoted as Senior Executive. On 07.01.2020 he was served with a charge sheet and statement of allegations alleging therein that he had violated the standard operating procedures of NADRA. He was alleged to have committed corruption and misconduct. He was proceeded against under the Government Servants (Efficiency and Discipline) Rules, 1973, which have been adopted by NADRA.
An inquiry committee has also been constituted. The petitioner submitted a reply to the charge sheet denying the allegations levelled against him. On 10.02.2020, a supplementary charge sheet was issued to the petitioner. On 20.07.2020, a show-cause notice was issued to the petitioner to which the latter submitted a reply. Vide order dated 19.08.2020, major penalty of dismissal from service was imposed on the petitioner. On 01.09.2020, the petitioner filed a departmental appeal before the Chairman, NADRA against the imposition of the major penalty on him. On 03.03.2021, the petitioner's departmental appeal was dismissed.
8. On 27.04.2021, the petitioner filed Writ Petition No.1577/2021 before this Court. Vide order dated 29.04.2021, this Court suspended the operation of NADRA's appellate order dated 03.03.2021.
9. Learned counsel for the petitioners, after narrating the facts leading to the filing of the said petitions, submitted that the petitioners had not committed any act which amounted to inefficiency or misconduct; that the inquiry committee did not take into account the replies to the statements of allegations submitted by the petitioners; and that the imposition of major penalty on the petitioners was arbitrary and contrary to the concept of good governance. Learned counsel for the petitioners prayed for the writ petitions to be allowed, and for the orders imposing major penalty on them to be set-aside. In the alternative, it was prayed that the Chairman NADRA be directed to decide the pending appeals of the petitioners in the Writ Petitions save Writ Petition No.1577/2021.
10. On the other hand, learned counsel for NADRA raised an objection to the maintainability of the petitions by contending that since the Government Servants (Efficiency and Discipline) Rules, 1973 had been adopted by NADRA, they do not have the status of statutory rules. Learned counsel for NADRA prayed for the petitions to be dismissed as not maintainable.
11. I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance. The facts leading to the filing of the writ petitions have been set out in sufficient detail in paragraphs 2 to 9 above, and need not be recapitulated.
12. I deem it appropriate in the first instance to decide the objection taken by the learned counsel for NADRA to the maintainability of the writ petitions.
13. The question whether NADRA Employees (Service) Regulations, 2002 ("the 2002 Regulations") are statutory and whether a petition under Article 199 of the Constitution can be filed by an employee on whom a penalty has been imposed under the Government Servants (Efficiency and Discipline) Rules, 1973 which were adopted through Regulation 23 of the 2002 Regulations is not res integra and has been eloquently and authoritatively answered by the Division Bench of the Hon'ble High Court of Sindh in the case of Muhammad Mateen Khan v. Federation of Pakistan (2020 PLC (C.S.) 1) in the following terms:- "12. To proceed with the question of maintainability of the Petition, we have noticed that the National Database and Registration Authority is the creation of a Statute established under Section 3 of the NADRA Ordinance, 2000, Section 35 of the Ordinance empowers the Authority and its officers and employees on such terms and conditions as it may deem fit in order to carry out the purpose of this Ordinance, While Section 44 empowers the Federal Government to make Rules for carrying out the purpose of Ordinance and Section 45 empowers Authority to make Regulations by Notification for carrying out its functions under the Ordinance and any other matter. Sub-Clause (2) of sections 37 and 45 clarifies that such regulations may provide for appointment of the officers mentioned in Section 35. The Authority pursuant to sections 35, 37 and 45 notified its Regulations on 1.11.2002 vide S.R.O. 118 (KE)/2002. According to Regulation No.3 of the Regulations, employees of the Authority are to be governed by these regulations with regard to their terms and conditions of service. Regulation No.4 of the Regulations empowers the Authority to sanction, create, re-designate or abolish any post, discipline or cadre with the Authority as it may deem fit. Regulation 23 of the NADRA Employees (Service) Regulation, 2002 stipulates that the Government Servants (Efficiency and Discipline) Rules, 1973 are made applicable to NADRA employees. The service rules of the Respondent-Authority lay down the terms and conditions of service of their employees. We may observe here that mere adoption of statutory rules of the Government or their application by reference will not automatically lend a statutory cover or content to those rules. In this context, the Honorable Supreme Court of Pakistan has already settled this principle in M.H Mirza v. Federation of Pakistan through Secretary, Cabinet Division, Government of Pakistan, Islamabad and 2 others (1994 SCMR 1024). The aforesaid service rules are basically instructions for the internal control or Management of Respondent-Authority and are therefore non-statutory."
14. In paragraph 10 of the judgment reported as Major (Retd.) Syed Muhammad Tanveer Abbas v.
Federation of Pakistan (2019 SCMR 984), the Hon'ble Supreme Court held inter alia that the 2002 Regulations were non-statutory in nature.
15. Since in the cases at hand, the petitioners were proceeded against under the Government Servants (Efficiency and Discipline) Rules, 1973 which were adopted by NADRA by virtue of Regulation 23 of the 2002 Regulations, which in turn have been held to be non-statutory, therefore, the objection raised by the learned counsel for NADRA to the maintainability of the writ petitions succeeds.
16. In view of the above, the writ petitions are dismissed as not maintainable.
17. Before parting with this judgment, I feel duty bound to observe that the writ petitions which were clearly not maintainable on account of the 2002 Regulations having been declared as non- statutory by the Hon'ble Supreme Court of Pakistan and the High Court of Sindh in the afore- referred judgments were not just entertained but interim orders were issued which had the effect of the three petitioners continuing to serve in NADRA even though major penalty of dismissal from service had been imposed on them. A writ petition which is not maintainable ought to be dismissed at the earliest. It is well settled that an employee cannot enforce through a writ petition a service rule/regulation which is not statutory in nature nor can he agitate a grievance against the enforcement or application of a non-statutory service rule/regulation in writ jurisdiction. In order to avert the possibility of writ petitions being entertained in matters where the Superior Courts have declared the service rules/regulations of several statutory bodies to be non-statutory, office shall on the basis of list maintained by IT Department put up a note as to whether the service rules applicable to a writ petitioner had been declared as statutory or non-statutory when the case is first fixed for hearing.