MIANGUL HASSAN AURANGZEB, J:- Through this judgment, I propose to decide writ petitions No.541/2020, No.558/2020 and No.634/2020 as the petitioners in the said petitions are predominantly seeking the same relief.
2. Through writ petition No.541/2020 filed on 18.02.2020 the petitioner, Dr. Abdur Rashid, who is serving as Deputy Director in the Drug Regulatory Authority of Pakistan ("DRAP") impugns the office order dated 11.02.2020 issued by DRAP whereby a Departmental Promotion Board was constituted to consider Additional Directors serving in DRAP for promotion to the posts of Director. The Board's meeting was scheduled to be held on 20.02.2020. The petitioner has also prayed for a direction to the Federal Government to frame rules pursuant to Section 7(m) of the Drug Regulatory Authority of Pakistan Act, 2012 ("the DRAP Act") besides assailing the vires of the Drug Regulatory Authority of Pakistan Employees Service Regulations, 2015 ("the 2015 Regulations").
3. Through writ petition No.558/2020 filed on 18.02.2020, eight petitioners serving as Deputy Directors and Federal Inspectors of Drugs in DRAP have sought numerous reliefs including a declaration to the effect that the composition of DRAP under Section 4(1) of the DRAP Act is illegal; and that the 2015 Regulations are ultra vires the provisions of the DRAP Act. These petitioners have also sought a direction to DRAP that they be considered for promotion on the basis of the original seniority existing prior to the establishment of DRAP.
4. Through writ petition No.634/2020 filed on 25.02.2020, three petitioners serving as Assistant Directors in DRAP have sought more or less the same reliefs as the ones sought by the petitioners in writ petition No.558/2020. Additionally, these petitioners also seek a declaration to the effect that the absorptions of civil servants in DRAP, in the absence of service rules, are illegal.
5. "Authority" is defined in Section 2(iv) of the DRAP Act to mean DRAP established under Section 3 of the said Act. Section 3(1) provides that the Federal Government shall, by notification in the official Gazette, establish an Authority to be known as the Drug Regulatory Authority of Pakistan, to carry out the purposes of this Act, whereas Section 4(1) provides that the Authority shall consist of a full time Chief Executive Officer ("CEO") and thirteen Directors who shall be appointed by the Federal Government on the recommendation of the Policy Board. In exercise of the powers conferred by Section 3, the Federal Government vide notification dated 28.11.2012 established DRAP to carry out the purposes of the DRAP Act. As per Section 9(1) of the said Act, the general direction, administration and monitoring of the Authority shall vest in the Policy Board which shall consist of fifteen members. In the judgment, the word "Authority" shall be referred to as "DRAP."
6. Messrs G.M. Chaudhary and Ali Nawaz Kharal, Advocates, learned counsel for the petitioners, drew the attention of the Court to Section 4 of the DRAP Act, which provides inter alia that DRAP shall consist of a full time Chief Executive Officer and thirteen Directors who shall be appointed by the Federal Government on the recommendations of the Policy Board; that Section 9(1) of the said Act provides that the general direction, administration and monitoring of DRAP/Authority shall vest in the Policy Board; that the composition of the Policy Board is also provided in Section 9(1) ibid; that Section 14 provides inter alia that the criteria for the recruitment and selection of the employees and officers in DRAP will be determined by the Policy Board according to the prescribed rules; that since Section 14 of the DRAP Act requires the criteria for the recruitment and selection of employees and officers to be determined by the Policy Board according to the rules, and since till date, the rules have not been framed for the said purpose, the criteria, if any, made by the Policy Board, cannot be termed as "according to the rules;" that under Section 7(m), one of the functions of the DRAP is to prescribe rules for seniority, promotion, code of conduct, and terms and conditions of service of its employees; that Section 23 provides that DRAP may, with the approval of the Federal Government, by notification in the official Gazette, make rules for carrying out the purposes of the DRAP Act; and that Section 24 provides that DRAP may, by notification in the official Gazette, and with the approval of the Policy Board, make regulations, for its internal working and terms and conditions of service of the employees not inconsistent with the provisions of the DRAP Act or the rules, for the carrying out of its functions under the DRAP Act.
7. Furthermore, it was submitted that till date, rules governing DRAP's employees' terms and conditions of service have not been made by DRAP with the approval of the Federal Government as required by Section 7(m) read with Section 23 of the DRAP Act; that in terms of Section 15(5)(a) of the DRAP Act, every employee of the Drugs Control Administration ("DCA"), its sub-offices and laboratories was to be given an option by the Federal Government either to continue in their existing pay and service structure as civil servants or to opt for absorption in DRAP within a period of 30 days of the enactment of the DRAP Act; that Section 15(5)(b) provided that all employees who opt to be included in DRAP "under its rules" shall be governed by the DRAP Act and the terms and conditions so prescribed; that the petitioners were not called upon within 30 days of the commencement of the DRAP Act to exercise the option under Section 15(5)(b); that since rules had not been made in accordance with Section 23 of the DRAP Act when the petitioners had been called upon vide office order dated 19.05.2015 to exercise an option, the option exercised by the petitioners to continue to remain as civil servants could not have been treated as a meaningful option; that the petitioners cannot be held to be bound by their option since the same was exercised when no rules in terms of Section 23 of the DRAP Act had been framed; that the terms and conditions for the employees of DRAP, including Directors, could not have been made through regulations as Section 4(2) of the DRAP Act provides for the functions, relevant experience, qualifications, terms, and mode and manner of appointment of Directors and related staff in each Division of DRAP to be made by the Federal Government on the recommendations of the Policy Board; and that since Section 24 of the DRAP Act does not require the approval of the Federal Government for the making of regulations, the mode and manner of appointment etc. of Directors could only have been prescribed in rules made with the approval of the Federal Government but not regulations which do not require such approval.
8. Learned counsel for the petitioners further submitted that vide the impugned office order dated 11.02.2020, a Departmental Selection / Promotion Board had been constituted to consider the promotion cases for the post of Director, whereas under Section 4(1) of the DRAP Act, the Directors are to be appointed by the Federal Government on the recommendations of the Policy Board; that the appointment of the Directors without the recommendations of the Policy Board would be without lawful authority; that till date, the Policy Board has not been constituted; and that since the Directors can be appointed only on the recommendations of the Policy Board, which has not been constituted as yet, the appointment process of the Directors sans the Policy Board would be of no legal consequence.
9. On the other hand, Mr. Adnan Saboor Rohaila, learned counsel for DRAP, submitted that prior to the enactment of the DRAP Act, the DCA, its field offices and its laboratories were functioning under the administrative control of the erstwhile Ministry of Health; that after the devolution of the said Ministry, the DCA, its field offices and laboratories along with its officers and officials were placed on the strength of the Cabinet Division for further placement in the Drug Regulatory Agency ("DRA") which was yet to be constituted; that on 16.02.2012, the DRA was established through an Ordinance and pursuant to Section 3(5) thereof, the DCA, its field offices and laboratories were to be part of the DRA; that after the promulgation of the Drug Regulatory Agency Ordinance, 2012, the administrative control over the DRA was transferred from the Cabinet Division to the National Regulations Services Division through memorandum dated 03.04.2012; that after DRAP was established on 28.11.2012 pursuant to the provisions of the DRAP Act, the DCA, its field offices and laboratories became part of DRAP; that under Section 15(5)(a) of the DRAP Act, every employee of the DCA, its field offices and laboratories was required to exercise an irrevocable option either to continue in his existing pay and service structure as a civil servant or to opt for absorption in DRAP within a period of thirty days of the commencement of the said Act; that such option was not given to the petitioners within a period of thirty days of the commencement of the said Act; that in order to address this difficulty, notification dated 11.12.2012 was issued by the Ministry of National Regulations and Services, whereby the thirty days levied for exercising the said option was to be counted from the date of the notification of the Rules pertaining to pay, perks, and service structure of DRAP; that the 2015 Regulations made under Section 24 of the DRAP Act were approved by the Policy Board and duly vetted by the Establishment Division, Finance Division and the Law & Justice Division; that the said Regulations were published in the official Gazette on 21.04.2015; that vide letter dated 19.05.2015, the Ministry of National Health Services, Regulations and Coordination ("Ministry of NHSR&C") called upon the officers of the DCA, its field offices and laboratories to exercise an irrevocable option by 18.06.2015 either to continue in their present pay and service structure as civil servants or to be absorbed in DRAP; and that after such employees exercised their options, two separate cadres were created for the employees of DRAP and the employees who opted to remain civil servants through notifications dated 19.04.2016.
10. Learned counsel for DRAP further submitted that at the time when the DCA was operational under the administrative control of the erstwhile Ministry of Health, there were four posts in BS-20 (three posts of Drug Controllers and one post of Costs Accountant); that DRAP has been trying to fill the thirteen vacant posts of Directors and in this regard, the Hon'ble Supreme Court has also issued orders; that in January, 2022, the case of the petitioners/Dr. Abdur Rashid for promotion to the post of Director (BS-20) was forwarded by the Ministry of NHSR&C to the CSB; that the petitioners have no valid ground to challenge DRAP's decision to constitute a Departmental Promotion Board to fill the posts of Director (BS-20) through promotion; that the 2015 Regulations have no application regarding the promotion of civil servants in DRAP to the post of Director (BS-20); that the two separate cadres of civil servants and DRAP employees are governed by different terms and conditions and have no relation in terms of seniority and promotion; that there are three posts of Directors (BS-20) reserved for civil servants; that the promotion of DRAP employees and civil servants to the post of Director (BS-20) is to be made at the ratio of 80:20; and that the promotion of DRAP's employees to the post of Director did not prejudice the petitioners in any manner.
Learned counsel for DRAP prayed for the writ petitions to be dismissed.
11. Learned counsel for the employees of DRAP who had not remained civil servants at any stage or had so remained but had opted for absorption in DRAP adopted the arguments of the learned counsel for DRAP.
12. 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 instant writ petitions have been discussed in sufficient detail in paragraphs 2 to 5 above and need not be recapitulated.
13. Prior to the enactment of the Constitution (Eighteenth Amendment) Act, 2010, the DCA, its field offices and laboratories were under the administrative control of the erstwhile Ministry of Health.
After the devolution of the said Ministry to the Provinces as a consequence of the Constitution (Eighteenth Amendment) Act, 2010, the Cabinet Division issued notification dated 29.07.2011 by virtue whereof Ministries including the Ministry of Health ceased to exist with effect from 01.07.2011 and their functions stood devolved to the Provinces. Furthermore, the officers employed in the DCA, its field offices and laboratories were placed on the strength of the Cabinet Division "for further placement in the proposed Drug Regulatory Agency on its establishment." The list of officers to be placed on the strength of the Cabinet Division was annexed with the said notification.
14. The DRA was established under the provisions of Drug Regulatory Agency Ordinance, 2012, which was promulgated on 16.02.2012. Section 3(5) of the said Ordinance provided that the DCA, its field offices and laboratories shall become part of the DRA. By virtue of notification dated 12.03.2012 issued by the Cabinet Division, the DRA was established to carry out the purposes of the said Ordinance. Furthermore, the said notification provided that all the existing officers and staff of the DCA, its sub-offices and laboratories temporarily stand transferred to the DRA. According to the memorandum dated 03.04.2012 issued by the Cabinet Division, the Prime Minister had transferred the administrative control over DRA from the Cabinet Division to the National Regulations and Services Division.
15. DRAP was established under the provisions of the DRAP Act which was enacted on 13.11.2012. By virtue of Sections 3(4) and 15(1) of the said Act, the DCA, its sub-offices and laboratories became part of DRAP. Furthermore, by virtue of Section 15(5)(a) of the said Act, all employees of the DCA, its sub-offices and laboratories under the Federal Government, who were in employment on the date of the said enactment, were required to exercise an irrevocable option either to continue in their existing pay and service structure as civil servants or to opt for absorption in DRAP within a period of 30 days from the date of commencement of the said Act, i.e. 13.11.2012. Section 15(5)(b) provided that all employees who opt to be included in DRAP "under its rules" shall be governed by the DRAP Act and the terms and conditions so prescribed. Vide letters dated 28.11.2012 and 03.12.2012, the Ministry of National Regulations and Services called upon all the employees of the DCA, its sub- offices and laboratories to exercise their option either to remain civil servants or to be absorbed in DRAP. The option was required to be exercised by 07.12.2012 on a prescribed format. There is nothing on the record to show that options were exercised in terms of Section 15(5)(a) within the said deadline.
16. Section 36 of the DRAP Act provided inter alia that if any difficulty arises in giving effect to any of the provisions of the said Act, the Federal Government may make such order by notification in the official Gazette, not inconsistent with the provisions of the said Act for the purposes of removing the difficulty. In exercise of the powers conferred by Section 36 of the DRAP Act, the Federal Government, through notification dated 11.12.2012, extended the date for every employee of the DRA who was required under Section 15(5)(a) and (b) to exercise an irrevocable option either to continue in their existing pay and service structure as civil servants or to opt for absorption in DRAP.
Furthermore, it was provided that the said period of 30 days shall be counted from the date of the notification of "all rules" pertaining to pay, perks and service structure of DRAP. The said notification was issued for the removal of difficulties arising out of the application of Section 15(5)(a) and (b) of the DRAP Act.
17. Section 23 of the DRAP Act provides that DRAP may, with the approval of the Federal Government, by notification in the official Gazette, make "rules" for carrying out the purposes of the DRAP Act, whereas Section 24 provides that DRAP may, by notification in the official Gazette, with the approval of the Policy Board, make "regulations" for its internal working and terms and conditions of employees not inconsistent with the provisions of the DRAP Act, or the Rules, for the carrying out of its functions under the said Act. It may also be mentioned that Section 7(m) of the DRAP Act makes it one of the functions of DRAP to prescribe "rules" for seniority, promotion, code of conduct, and terms and conditions of service of its employees.
18. It is an admitted position that at no material stage has DRAP made rules in exercise of the powers conferred by Section 23 or Section 7(m) of the DRAP Act to provide for seniority, promotion, code of conduct, and terms and conditions of service of its employees. However, in exercise of the powers conferred by Section 24 of the DRAP Act, DRAP, with the previous approval of the Policy Board, has made the 2015 Regulations. These regulations were issued on 21.04.2015 through notification (SRO 49(KE)/2015).
19. The preamble to the 2015 Regulations notified on 21.04.2015 mentions the approval of the Federal Government instead of the Policy Board. To cure this anomaly, the 2015 Regulations were amended through notification (SRO 97(KE)/2015), dated 10.09.2015 issued by DRAP. Through the said notification, the preamble of the 2015 Regulations was amended to substitute the words "Federal Government" with the words "Policy Board." The effect of this amendment would be that the 2015 Regulations were made with the previous approval of the Policy Board and not the Federal Government. This is because paragraph 1 of the notification dated 10.09.2015 makes it clear that the substitution of the words "Federal Government" with the words "Policy Board" in the preamble of the 2015 Regulations "shall be deemed always to have been so substituted."
20. Vide office order dated 19.05.2015 (which is within a period of 30 days of the date when the 2015 Regulations were notified), DRAP directed all officers of the DCA, its sub-offices and laboratories to exercise an irrevocable option in terms of Section 15(5)(a) of the DRAP Act either to continue in the existing pay and service structure as civil servants or to be absorbed in DRAP. The option was required to be exercised by 18.06.2015.
21. After options were exercised by such employees including the petitioners, DRAP, on 19.04.2016, issued two notifications bearing No.F.2- 26/2014-Admin-I(1) and No.F.2-26/2014-Admin-I(2) - the former bearing the list of the employees who had opted to become the employees of DRAP and the latter bearing the list of the employees who had opted to continue in their existing pay and service structure as civil servants. These notifications were published in the official Gazette on 19.07.2016. As many as 265 employees in scales ranging from BS-02 to BS-20 opted to continue serving as civil servants. DRAP created two separate cadres - one for its employees who had opted to remain civil servants to be governed by the provisions of the Civil Servants Act, 1973 and the rules made thereunder, and the other for its employees who had opted to be absorbed in DRAP.
22. The expression "for carrying out the purposes of [the DRAP] Act" in Section 23 are not without significance and implies that where the provisions of the DRAP Act require for a certain matter to be prescribed by rules made by DRAP and approved by the Federal Government, it must be a fortiori be so prescribed through rules and not regulations or any other form of subordinate legislation which are not required by the provisions of the DRAP Act to be approved by the Federal Government. Where, however, the provisions of the DRAP Act require something to be done or prescribed by the Federal Government, it is the Federal Government that is to do such a thing or make such prescription regardless of the fact that Section 23 only empowers the Federal Government just to "approve" the rules made by DRAP. For instance, Section 4(1) of the DRAP Act provides that DRAP shall consist of a full CEO and thirteen Directors who shall be appointed by the Federal Government on the recommendations of the Policy Board and "whose qualifications, terms and conditions shall be such as may be prescribed." The word "prescribed" has been defined in Section 2(xxix) of the said Act to mean prescribed by rules or regulations under the DRAP Act. Now, it could be argued that the qualifications and terms and conditions of the Directors could be prescribed through regulations, but this argument would not be in consonance with Section 4(2) of the DRAP Act which provides inter alia that the Federal Government, on the recommendations of the Policy Board, is to "prescribe [the] functions, the relevant experience, qualification, terms, mode and manner of appointment of Directors." Therefore, it is the Federal Government and none other that is to prescribe, on the recommendations of the Policy Board, the Directors' functions, relevant experience, qualifications, terms, and mode and manner of appointment. Although Section 24 does not require the approval of the Federal Government for the regulations made by DRAP, the Federal Government can, in exercise of the powers conferred by Section 4(2) read with Section 23, prescribe rules to provide for the Directors' functions and the relevant experience, qualifications, terms, and mode and manner of appointment, and in doing so, it would be making rules for carrying out the purposes of Section 4(2). Such rules have till date not been made.
23. As per Section 7(l) of the DRAP Act, one of the functions of DRAP is to appoint such employees, consultants, and experts as deemed necessary on "prescribed" terms and conditions including their salaries and remunerations with consultation and approval of the Policy Board. As Section 7(l) does not specifically require such terms and conditions to be prescribed by rules, it could be argued that they could be prescribed by rules made under Section 23 or regulations made under Section 24. The prescription of the terms and conditions etc. of the employees, consultants and experts appointed in DRAP is also one of the functions of DRAP in terms of Section 7(m). This provision specifically empowers DRAP to "prescribe rules for seniority, promotion, code of conduct and terms and conditions of service of its employees." Regulations made by DRAP with the approval of the Policy Board cannot be a valid discharge of DRAP's function under Section 7(m).
The prescription required by Section 7(m) is through rules and not regulations. The word "rules" has been defined in Section 2(xxxiii) of the DRAP Act to mean rules made under the said Act, i.e. Section 23 which requires rules to be made by DRAP with the approval of the Federal Government. Without the approval of the Federal Government, the rules made by DRAP even if they have the approval of the Policy Board cannot be held to be rules made under Section 23. Hence, in terms of Section 7(m) rules for the seniority, promotion, code of conduct, and terms and conditions of service of DRAP's employees, can be said to have been prescribed by DRAP only after they have been approved by the Federal Government.
24. Section 14(1) of the DRAP Act provides that DRAP, with approval of the Policy Board, may create posts and appoint such officers, employees, experts, and consultants as it may consider necessary, for the performance of its functions in the prescribed manner. Furthermore, the said Section provides that "the criteria for recruitment and selection of employees and officers will be determined by the Board according to the rules as prescribed." Had the word "regulations" been there in Section 14(1) instead of "rules," the Policy Board would have been well within its rights to have provided for the criteria for recruitment and selection of employees and officers in DRAP according to regulations as it has done through the 2015 Regulations. Since the said Section requires the criteria for recruitment and selection of employees and officers in DRAP to be made by the Policy Board in accordance with "rules," it is imperative that rules under Section 23 be made by DRAP with the approval of the Federal Government so as to enable the Policy Board to provide for the criteria for recruitment and selection of employees and officers in DRAP in accordance with such rules.
25. Section 15(5)(a) gives every employee of the DCA, its sub-offices and its laboratories the right to exercise an irrevocable option either to continue serving as civil servants or to opt for absorption in DRAP within a period of thirty days from the date of commencement of the DRAP Act. Section 15(5)(b) provides that "all employees who opt to be included in [DRAP] under its rules shall be governed by [the DRAP Act] and the terms and conditions so prescribed." The said provisions contemplate the exercise of option to be made in the presence of the "rules." The expression "terms and conditions so prescribed" in Section 15(5)(b) implies that the terms and conditions of DRAP's employees were required to be prescribed by rules so as to enable the civil servants to make an informed and purposeful decision whether or not to be governed by such rules. Had the word "so" not preceded the word "prescribed" in the said provision, it could have been argued that the terms and conditions set out in regulations are sufficient for the civil servants to exercise the option envisaged by the said provisions. I say this because the word "prescribed" is defined by Section 2(xxix) to mean prescribed by rules or regulations under the DRAP Act.
26. Rules made by DRAP under Section 23 require approval of the Federal Government whereas regulations made by DRAP under Section 24 do not. The 2015 Regulations made by DRAP have admittedly not been approved by the Federal Government. As per the ratio in the case of Mustafa Impex Vs. Government of Pakistan (PLD 2016 SC 808), where a power is conferred by statute on the Federal Government, then such power can only be exercised by the Federal Cabinet. The approval of the rules by the Federal Government would elevate them to statutory status and make them enforceable in the Constitutional jurisdiction of the Court but the same cannot be said about regulations made under Section 24. In the case of Zia Ghafoor Piracha Vs. Chairman, Board of Intermediate and Secondary Education, Rawalpindi (2004 SCMR 35), the Hon'ble Supreme Court held as follows:- "7. The Service Regulations of the Employees of the Board were framed by the Board. However, as has been determined by the learned Single Judge of the Lahore High Court, the Government, as required by the Act, has not given its formal approval to these Regulations. In these circumstances these Regulations may be termed as internal instructions or domestic rules having no status of statutory rules. Reference in this regard is made to the case of "The Principal Cadet College, Kohat and another v. Muhammad Shoab Qureshi (PLD 1984 SC 170). In that case, the Government under the West Pakistan Government Educational and Training Institution Ordinance, 1960 was empowered to make Rules for carrying out the purposes of the Ordinance under section 17 thereof.
Similarly, under section 18, the Board was also empowered to make Regulations subject to approval of the Government. There was identical situation in the aforesaid case as is now prevailing in the present case because the Regulations though made by the Board but the approval of the Government had not been secured. Similarly, the Government too had not made any Rules as mandated by section 17 ibid. This Court in such a situation in the aforementioned case held as under:-- "It is common ground that neither any rules, as contemplated by section 17 of the Ordinance nor any Regulations under section 18 thereof were framed. The Board of Governors did not frame some "rules" for governing the appointment, promotion, retirement, termination of service, and dismissal of staff employed by the Board of Governors of the College in its meeting held on 29th September, 1964, but these not having been made by the Government could not be regarded as "rules" under section 17, nor having been approved by the Government, be treated as Regulations under section 18 thereof. These "rules" therefore could only be regarded to be in the nature of mere instructions issued for the guidance of the Board of Governors and the Principal of the Cadet College, Kohat." "
27. By providing that regulations can be made by DRAP with the approval of the Policy Board for its internal working and for the terms and conditions of DRAP's employees "not inconsistent with the provisions of the [DRAP] Act or the rules," Section 24 envisages the existence of rules providing for the terms and conditions of DRAP's employees, and mandates that regulations cannot be inconsistent with the rules. DRAP put the cart before the horse by making regulations without having made any rules providing for terms and conditions of DRAP's employees as envisaged by Sections 7(m), 15(5)(b) read with Section 23 of the DRAP Act.
28. It appears that DRAP did have the intention of making rules to provide for seniority, promotion, code of conduct, and terms and conditions of service of its employees. This is because several documents on the record, including Establishment Division's OM dated 04.03.2013, Finance Division's OM dated 29.07.2013 etc., show that DRAP had sent draft rules to the Establishment, Finance, and Law and Justice Divisions for vetting. Office memorandum dated 12.08.2014 addressed by the Ministry of NHSR&C to the Establishment Division shows that "DRAP Employees Service Rules- 2014" had been drafted under Section 23 of the DRAP Act and a request was made to the Establishment Division to vet the same. Additionally, through notification dated 11.12.2012 issued under Section 36 of the DRAP Act, the Federal Government had extended the deadline for the exercise of options under Section 15(5)(a) and (b) to 30 days from the date of the notification of "rules" pertaining to pay, perks, and service structure of DRAP.
29. Although DRAP's stance is that the 2015 Regulations had been approved by the Policy Board and had also been vetted by the (i) Establishment Division, (ii) Regulations Wing of the Finance Division, and (iii) the Law and Justice Division, this, in my view, would not elevate them to the status of rules, which in terms of Section 23 have to be made by DRAP with the approval of the Federal Government. Mere vetting of the regulations by the aforenamed Divisions cannot be equated with a decision taken by the Federal Government, i.e. the Federal Cabinet. Since the 2015 Regulations were made in exercise of statutory power (i.e. Section 24 of the DRAP Act), consultation with the Law and Justice Division was mandatory in terms of Rule 14(1)(c) of the Rules of Business, 1973. The amendments in the 2015 Regulations made vide notifications dated 10.09.2015 and 23.06.2017 were with the approval of the Policy Board and not the Federal Government.
30. All the writ petitioners were employees of the DCA, its sub-offices and its laboratories and by virtue of Section 15 they stood transferred as employees of DRAP and thereafter opted for the terms and conditions of their service to be governed by the provisions of the Civil Servants Act, 1973. When they exercised their option to continue serving as civil servants, "rules" governing the terms and conditions of DRAP's employees had not been made under Section 23 read with Section 7(m) of the DRAP Act. The Federal Government had not, in exercise of its power under Section 4(2) of the DRAP Act prescribed the Directors' functions and the relevant experience, qualifications, terms, and mode and manner of appointment. Furthermore, no "rules" had been made in accordance with which the criteria for recruitment and selection of employees and officers in DRAP had to be made by the Policy Board in terms of Section 14(1) of the DRAP Act. DRAP could not have called upon such employees to exercise the option under Section 15(5)(a) without rules having been made prescribing the terms and conditions of DRAP's employees. In this scenario, DRAP treated the petitioners unfairly by requiring them to exercise an option under Section 15(5)(b) simply in the presence of the 2015 Regulations. It is not within the domain of the Court to depart from the plain meaning of the expressions used in the statute. In the case at hand, this Court cannot read with word "rules" employed by the legislature in Sections 7(m), 14(1), and 15(5)(b) as "regulations." Clear intention of the legislature cannot be defeated by the application of any rule of construction. The best rule of interpretation is plain reading of the provision in the statute.
31. In these circumstances, the vital question that needs to be answered is whether this Court, in exercise of its Constitutional jurisdiction, can turn the clock back and undo the option exercised by the petitioners more than four and a half years before filing the writ petitions so as to enable them to do well what they had done ill by opting to continue serving as civil servants?
32. Now, the process which has been challenged by the petitioners is for the promotion of Additional Directors serving in DRAP to the posts of Directors. Vide order dated 09.04.2015 passed by the Hon'ble Supreme Court in Human Right Case No.752/2009 and connected matters, the Federal Government was directed to appoint thirteen Directors in DRAP on permanent basis in accordance with Section 4 of the DRAP Act. Vide notification dated 17.05.2017, three Deputy Directors who had opted to become employees of DRAP were promoted as Directors on the recommendations of the Departmental Promotion Board. In the beginning of the year 2020, DRAP initiated the process for the promotion of Additional Directors to the post of Director in DRAP. Letter dated 11.02.2020 from DRAP shows that a meeting of the Departmental Selection / Promotion Board was scheduled to be held on 20.02.2020 under the Chairmanship of Secretary, Ministry of NHSR&C, who is also the Chairman of the Policy Board of DRAP, to consider the promotion cases of Additional Directors to the post of Director in DRAP. This process was assailed by the petitioners by filing writ petitions which are proposed to be decided through this judgment. Vide ad-interim order dated 19.02.2020, this Court suspended the operation of the said letter dated 11.02.2020.
33. As mentioned above, Section 4(1) of the DRAP Act prescribes the manner in which the thirteen Directors are to be appointed. It provides in clear terms that the CEO and the thirteen Directors are to be appointed by the Federal Government on the recommendations of the Policy Board.
Therefore, the appointment of the CEO and the Directors can only be made by the Federal Government and none other. The appointment of a Director, even if made by the Federal Government but without any recommendation of the Policy Board, cannot be held to be in accordance with Section 4(1) of the DRAP Act. The Policy Board, in making recommendations to the Federal Government, is to be guided by the views of the Departmental Selection/Promotion Board, which is to scrutinize the credentials and assess the ability of every qualified candidate.
34. DRAP, with the approval of the Policy Board, did prescribe the terms and conditions of service of its employees through the 2015 Regulations made in exercise of the powers conferred by Section 24 of the DRAP Act. These Regulations were made prior to the date by which the employees of the DCA, its field offices and laboratories were required to exercise their options in terms of Section 15(5)(a) of the DRAP Act. Therefore, the petitioners were well aware of the terms and conditions of service of the employees of DRAP as prescribed in the Regulations when they exercised their options to continue serving as civil servants.
35. The 2015 Regulations are exhaustive in nature and contain eight chapters on seniority, promotion and terms and conditions of service of DRAP's employees. Since the petitioners exercised the options under Section 15(5)(a) without any demur, protest or reservation, it would be deemed that they considered the said regulations as containing all the information necessary for them to have made a meaningful and informed decision to opt to continue serving as civil servants. They are now estopped from going back on their footsteps to challenge the option that they voluntarily exercised four and a half years before the filing of the writ petitions.
36. There is nothing on the record to show that when the petitioners were called upon to exercise the option in terms of Section 15(5)(a) of the DRAP Act, they had taken the position that such option could not be exercised in the absence of rules. They not just voluntarily exercised the irrevocable option to continue in their existing pay and service structure as civil servants but also remained silent for a period of more than four and a half years and thereafter filed writ petitions aimed at undoing the option exercised by them. In these circumstances, I am of the view that the petitioners acquiesced in the matter and thus were precluded and estopped from questioning either the irrevocable option voluntarily exercised by them or the non-making of the rules prior to the framing of the 2015 Regulations.
37. As mentioned above, 265 employees had opted to continue serving as civil servants. The option exercised by such employees cannot be set at naught at the instance of 12 petitioners, who appear to have regretted exercising the option. In the period of four and a half years after the exercise of such option, DRAP issued notifications dated 19.04.2016 setting out the list of employees who had opted to be absorbed in DRAP and those who had opted to continue serving as civil servants.
During this period, the cases of employees who had opted to remain civil servants have also been sent to the Central Selection Board ("CSB") for consideration for promotion.
38. The assurance given in Section 15(5)(d) to the employees who had opted to continue serving as civil servants was that the terms and conditions of their service prior to the enactment of the DRAP Act shall not be varied to their disadvantage. Regulation 20(1) of the 2015 Regulations provided that the employees of DCA, its sub offices and laboratories who opt to remain civil servants under Section 15(5)(a) of the DRAP Act shall continue to be governed by the Civil Servants Act, 1973 and the Rules framed thereunder.
Regulation 20(3) provides that to ensure that no disadvantageous situation is created for those who opt to continue as civil servants, the number of posts as per the formula provided in the said Regulation shall be reserved for their promotion. This formula is as follows:- "Number of posts reserved for promotion for those who opt to remain as Civil ServantsNumber of posts available to them in the defunct Ministry of Health, prior to its devolution and commencement of Act, x 80%"
39. DRAP asserts that in the DCA, its field offices and laboratories under the administrative control of the erstwhile Ministry of Health, there were four posts of BS-20, out of which three posts were of Drug Controller and one post was of Cost Accountant. The method of appointment for the post of Drug Controller (BS-20) prescribed in the notification (SRO 903(i)/96) dated 19.09.1996 issued by the Ministry of Health under Rule 3(2) of the Civil Servants (Appointment, Promotion and Transfer)
Rules, 1973, was 80% by promotion and 20% by initial appointment. As per Schedule VI to the 2015 Regulations, the post of Drug Controller (BS-20) in the erstwhile Ministry of Health is equivalent to the post of Director (RO-15) in DRAP, and that the post of Cost Accountant (BS-20) is also equivalent to the post of Director (RO-15) in DRAP. When the petitioners were serving as civil servants prior to their transfer to DRAP by dint of Section 15, there were four sanctioned posts in BS- 20 (03 posts of Drugs Controller and 01 post of Cost Accountant). These assertions have not been contradicted by the petitioners. Learned counsel for DRAP has assured that four posts of Directors shall be reserved for appointment by promotion of employees who opted to remain civil servants. It goes without saying that if such employees are considered for promotion by the CSB but are either superseded or deferred the post cannot be left vacant but filled through the promotion of employees of DRAP or direct recruitment.
40. Regulation 4(1) of the 2015 Regulations provides that promotion to various posts shall be on the recommendations of the concerned Selection Board. The 2015 Regulations do not preclude DRAP's employees who have opted to continue serving as civil servants from being considered for promotion to the post of Director. However, the consideration for their promotion is to be made in accordance with the Civil Servants (BPS-18 to BPS-21) Rules, 2019 and not by the Selection Board constituted under the provisions of the 2015 Regulations, which are applicable to former civil servants who opted to be absorbed in DRAP or who were employed in DRAP after the enactment of the DRAP Act.
41. The documents brought on record by DRAP show that the CSB, in its meetings held on 04.01.2021 to 07.01.2021, considered three Additional Directors for promotion to the post of Director but they were unable to obtain the requisite passing threshold of 70 marks. The petitioner in writ petition No.541/2021 was one of the candidates who was so considered for promotion. The mere fact that the said officers were considered for promotion by the CSB shows that there is an avenue for career progression for those employees of DRAP who opted to continue serving as civil servants.
Furthermore, the fact that the process for promotion through the CSB is more cumbersome and competitive than the process through the Selection Board constituted under the 2015 Regulations is not a valid ground for this Court to show indulgence to the petitioners.
42. Although the petitioners have challenged the vires of the 2015 Regulations, no submission was made by the learned counsel for the petitioners as to how the said Regulations were violative of any provision of the DRAP Act or the Constitution. The Hon'ble Supreme Court, in Suo Moto Case No.13/2009 (PLD 2011 SC 619), has held inter alia that "no regulation can be made inconsistent with the parent statute or rules made thereunder and the provisions of the rules or regulations, as the case may be, to the extent of their inconsistency with the parent statute or the rules shall be inoperative." In the case of Multiline Associates Vs. Ardeshir Cowasjee (PLD 1995 SC 423), it has been held that rules and regulations are subordinate and delegated legislation deriving authority and legal cover from the provisions of the statute and in case of inconsistency they will lead to the provisions of the statute. Section 24 empowers DRAP to make regulations with the approval of the Policy Board for the internal working and terms and conditions of DRAP's employees. The petitioners made no submission as to how the regulations had ventured into a field beyond what was circumscribed by Section 24 ibid. I am of the view that the challenge to the 2015 Regulations was made only so as to prevent the employees of DRAP to take benefit thereunder. It is indeed under such regulations that DRAP's employees were to be considered for promotion to different posts including the post of Director. When the vires of any statute or rule or regulation is challenged, strong presumption as to legislative competence and validity is always to be attached thereto. The Court is to explore every avenue for upholding the validity of the statute or delegated legislation before striking them down as ultra vires the parent statute or the Constitution. In the cases at hand, the petitioners have given no plausible reason to this Court to declare the 2015 Regulations ultra vires the DRAP Act or the Constitution.
43. In view of the above, the writ petitions are disposed of in the following terms:-
(a) The options exercised by the petitioners under Section 15(5)(a) of the DRAP Act in response to DRAP's office orders dated 19.05.2015 are irrevocable and the petitioners are estopped from seeking the reversal of such option.
(b) The impugned office order dated 11.02.2020 issued by DRAP whereby a Departmental Promotion Board was constituted to consider Additional Directors serving in DRAP for promotion to the posts of Director does not suffer from any legal infirmity.
(c) The Federal Government shall, on the recommendations of the Policy Board, prescribe the functions, the relevant experience, qualifications, terms, and mode and manner of appointment of Directors in terms of Section 4(2) of the DRAP Act within a period of two months.
(d) DRAP shall, with the approval of the Federal Government, prescribe rules for seniority, promotion, code of conduct, and terms and conditions of service of its employees in terms of Section 7(m) read with Section 23 of the DRAP Act.
(e) DRAP shall, with the approval of the Federal Government, make rules under Section 14(1) read with Section 23 of the DRAP Act in accordance with which the criteria for recruitment and selection of employees and officers will be determined by the Policy Board.
(f) The directions given in paragraphs (c), (d) and (e) hereinabove, shall be complied with within two months from the date of the announcement of this judgment.
There shall be no order as to costs.