MUHAMMAD ASIF, J. Through the instant writ petition, the Petitioner seeks direction to the respondents to consider the Petitioner for proforma promotion to the post of Deputy Director with effect from 31.07.2021 or from his eligibility period.
2. The facts of the case which are relevant for the disposal of the instant Petition will be discussed in the later part of the Judgment.
3. Learned counsel for the Petitioner contended that the denial of proforma promotion to the Petitioner is discriminatory in nature. Despite fulfilling all requisite eligibility criteria, maintaining seniority, and possessing an unblemished service record, the Petitioner was not considered for promotion. In contrast, the cases of the Petitioner's colleagues were duly considered by Respondent No. 1 ("NADRA"), rendering the respondent's conduct discriminatory and in violation of the Petitioner's fundamental rights. It was further argued that the Petitioner was not afforded an opportunity of hearing despite his specific request, which constitutes a breach of his constitutional rights under the Constitution of the Islamic Republic of Pakistan, 1973. The administrative delay in convening the Departmental Promotion Committee (DPC) meeting, coupled with the omission to consider the Petitioner's case, has caused him undue prejudice. The Petitioner's case squarely qualifies him for proforma promotion from Assistant Director to Deputy Director with effect from 30.07.2021. A precedent exists in the form of a similar case involving Mr. Muhammad Ismail, an Assistant Director, who was granted ex-post facto promotion by Respondent No. 1 despite having retired prior to the DPC meeting. This establishes a clear basis for the Petitioner's entitlement to similar relief. While the grant of proforma promotion may have minimal financial implications for NADRA, it holds substantial symbolic and professional significance for the Petitioner, who has rendered long-standing and exemplary service, hence, prayed for the acceptance of the instant Petition.
4. The respondent No. 1/NADRA through its written comments submitted that the instant Petition is not maintainable in its form as in the light of Superior Courts Judgments, NADRA Employees Service Regulations, 2002 has been declared as non-statutory cited as 2019 SCM R 984 holding that "Writ or Constitutional Jurisdiction of the High Court under Article 199 of the Constitution could not be invoked by an employee of NADRA"; that the single bench of this Hon'ble Court in W.P. No. 2460/2019 dismissed the Petition vide Judgment dated 27.02.2020 on the ground that NADRA Employees Services Regulations, 2002 are non -statutory in nature and later on Petitioner filed ICA No. 66/2020 before the Division Bench of this Court and finally the Hon'ble Supreme Court of Pakistan in CP. No. 2923/2020 upheld the Judgment of Islamabad High Court, Islamabad and dismissed the Petition on the ground of maintainability; hence, in light of the above case laws, the instant Petition is not maintainable and liable to be dismissed.
5. I have heard the learned counsel for the parties and gone through the record with their able assistance.
6. Perusal of the record reveals that Petitioner was appointed to the post of Statistical Assistant in the NADRA in December 1983.
The Petitioner served the organisation with full dedication and distinction for his entire career, maintaining an exemplary service record. The Petitioner was promoted to the position of Assistant Director w.e.f. 02.01.2013. In the year 2021, the Petitioner was eligible for the promotion to the post of Deputy Director due to the vacant positions, and in that respect, the respondent No. 2 approved a list for demand of No Disciplinary Actions Certificate ("NDAC") of the listed employees, including the Petitioner. The Petitioner met all the eligibility criteria. Resultantly, the office has issued NDAC to the Petitioner, and the same has been submitted before the concerned authorities for further process.
In January, 2021 and subsequently June, 2021, the Registration Directorate started the promotion process for officials across various cadres, including the Petitioner and duly completed all the codal formalities pertaining to the promotion case, thereafter, the Petitioner awaited the convening of DPC however, the DPC did not convene until the Petitioner retired from service on 31.07.2022. The DPC convened on 14.06.2022 and issued a Notification on 01.07.2022 for the first three senior Assistant Directors, including those who had retired prior to the DPC meeting and considered the promotion of 13 Assistant Directors. However, the Petitioner's name was excluded from the list.
7. It is a well-established principle that before addressing the merits of a case, the Court should first determine whether it has jurisdiction to hear the matter. Only after resolving the issue of jurisdiction should the Court proceed to consider the substantive aspects of the case. This principle was affirmed in the case of Shabbir Jan Sarhandi v. Province of Sindh through Chief Secretary and others (2006 PLC (C.S.) 955), where it was held as follows:- "We have carefully considered the contentions raised by the learned Advocates for the parties. At the very outset we would like to observe that we agree with all the propositions of law canvassed by Mr. Manzoor Ali Khan, that, first, whenever any objection to the jurisdiction of the Court is raised, it is the duty of the Court, first to decide, the question pertaining to its own jurisdiction and thereafter consider the merits of the case..."
8. Likewise, in the case titled Aamir Khurshid Mirza Vs. The State (2006 CLD 568), it was held as follows:- "It is now. a settled proposition that jurisdiction of a Court is always the core question, therefore, this question has got to be dealt with immediately to the exclusion of all other business because this is what decides the competence or otherwise of a Court or Tribunal to proceed further in the matter.
Reference can be made with some advantage to the case, Town Committee, Gakhar Mandi v.
Authority Under the Payment of Wages Act, Gujranwala and 57 others PLD 2002 SC 452, and Muslim Commercial Bank Limited v. Tahir Edible Oil (Pvt.) Ltd. and others 2003 CLC 416."
9. This Court will first consider the objections raised by the learned counsel for NADRA concerning the maintainability of the present writ petition, specifically on the ground that the regulations governing the Petitioner's terms and conditions of service lack statutory backing.
10. The question whether the Regulations of NADRA are statutory arose before the Hon'ble Supreme Court of Pakistan in the case of Maj. (Retd.) Syed Muhammad Tanveer Abbas v. Federation of Pakistan through Secretary Ministry of Interior and another (2019 SCMR 984). In this case, several NADRA employees had filed constitutional petitions before the Sindh High Court challenging their termination orders. The Division Bench of the Sindh High Court dismissed the petitions, holding that the Regulations, being framed under Section 45 of the NADRA Ordinance, are non-statutory in nature. This Judgment was appealed before the Supreme Court of Pakistan, which upheld the High Court's decision and affirmed that NADRA's Regulations are indeed non-statutory. Relevant observations of the Hon'ble Supreme Court of Pakistan is reproduced hereunder:- "When the DHA case is compared with the appellants' case, there are certain obvious similarities, the first and most important being of course that both involved situations of termination from service. Apart from that, in our view, as held by this Court in relation to DHA, there can hardly be any doubt that NADRA is also a "person" within the meaning of Article 199(1)(a)(ii) read with clause (5) thereof. Equally, it is also clear that the 2002 Regulations, like the DHA Service Rules of 2008, were non-statutory in nature. It also cannot be in doubt that the termination clauses involved in the present appeals are in all material respects the same as Rule 8(b)(1) of the DHA service rules. This is apparent on a bare reading of the said provisions. The crucial question therefore is whether the termination clauses involved here can be treated in the same manner as Rule 8(b)(1), and the same or similar relief accorded the present appellants?" (Emphasis supplied)
11. The same view was also expressed by Hon'ble Supreme Court in "Chairman NADRA, Islamabad through Chairman, Islamabad and another v. Muhammad Ali Shah and others" (2017 SCMR 1979), "Muhammad Zaman and 14 others v. Government of Pakistan through Secretary, Finance Division, (Regulation Wing), Islamabad and others" (2017 SCMR 571), "P. T. C.L. and others v.
Masood Ahmad Bhatti and others" (2016 SCMR 1362), Zarai Taraqiati Bank Limited and others v.
Said Rehman and others" (2013 SCMR 642) and "Pakistan Defence Officers' Housing Authority and others v. Lt. Col . Syed Jawaid Ahmad" (2013 SCMR 1707).
12. The terms and conditions of the Petitioner's service with NADRA were governed by the NADRA, Employees (Appointment, Promotion and Transfer) Regulations, 2003. The Regulation 1 (2) of the 2003 Regulations provides that the said Regulations shall apply to all persons appointed on a whole-time basis in NADRA, transferred from the former Registration Department, or National Database Organisation, as the case may be, except contingent-paid staff and contractual employees. The terms and conditions of his service with NADRA were governed by the 2003 Regulations. The said Regulations provide for the method of appointment, qualification, experience, and other conditions for employees of NADRA. The said Regulations have no provision for proforma promotion or promotion after retirement.
13. The 2003 Regulations were not framed by NADRA in exercise of the powers conferred by Section 45 (1) of the 2000 Ordinance, which does not mandate that such Regulations be made or approved by the Federal Government. The Notification dated 22.01.2004, through which the 2003 Regulations were issued, indicates that the said Regulations were made by NADRA/ the Authority in accordance with Section 45 of the Ordinance and not by the Federal Government.
14. It is well settled that a writ petition is maintainable where the respondent authority violated any provisions of law or statutory rules. The employees who are governed by statutory rules /regulations can avail the remedy of filing a writ petition before the High Court. It is also well settled that the principle of "master and servant" was applicable to the employees whose services were not governed by any statutory rules/regulations. Employees of a statutory body, in the absence of a violation of law or any statutory rule/regulations, could not press into service the Constitutional Jurisdiction of the High Court in order to seek relief with respect to their employment.
15. From perusal of Section 44 of the Ordinance, it is manifest that the Federal Government may make Rules for carrying out the purpose of the Ordinance, whereas, the Authority may make Regulations for carrying out the functions of the Ordinance, including appointments and terms and conditions of services of the staff of the NADRA. The Authority is defined under Section 2(b) of the Ordinance means National Database and Registration Authority established under Section 3 of the Ordinance. It is also admitted position that in pursuance to Section 44 of the Ordinance, Federal Government framed Rules termed as " The National Database and Registration Authority (National Identity Card) Rules, 2002" (Rules), whereas in pursuance to section 45 of the Ordinance, the Authority framed regulations termed as " The National Database and Registration Authority (Application for National Identity Card), Regulations, 2002" (Regulations). On the face of it, Rules being framed by the Federal Government under Section 44 of the Ordinance have the statutory force, however, Regulations being framed under Section 45 of the Ordinance by the Authority, without any approval of the Federal Government, do not have any statutory status. The terms and conditions of service of employees of NADRA, including their promotion policy vide Notification dated 22.01.2004, are also framed by the Authority under Section 45 of the Ordinance (and not by the Federal Government under Section 44 of the Ordinance), therefore, the same are also non- statutory.16. The Hon'ble Supreme Court of Pakistan in the case of Pakistan International Airlines Corporation v. Tanveer ur Rehman and others (PLD 2010 SC 676), it has been held that:-
19. However, this question needs no further discussion in view of the fact that we are not of the opinion that if a corporation is discharging its functions in connection with the affairs of the Federation, the aggrieved persons can approach the High Court by invoking its constitutional jurisdiction, as observed hereinabove. But as far as the cases of the employees, regarding their individual grievances, are concerned, they are to be decided on their own merits namely that if any adverse action has been taken by the employer in violation of the statutory rules, only then such action should be amenable to the writ jurisdiction. However, if such action has no backing of the statutory rules, then the principle of Master and Servant would be applicable and such employees have to seek a remedy permissible before the Court of competent jurisdiction.
17. In the present case, the Petitioner has raised a grievance relating to the terms and conditions of his service with NADRA. The Petitioner did not refer to any statutory service rule/regulation applicable to the Petitioner, which had been violated by NADRA by convening DPC after the retirement of the Petitioner.
18. It is admitted fact that the Petitioner after reaching the age of superannuation had retired from service on 31-07-2021 and this Court in the case of Government of Pakistan through Establishment Division Islamabad and 7 others v. Hameed Akhtar Niazi (2003 PLC (C.S.) 212) has held that promotion from back date to a retired civil servant cannot be granted.
19. It is not disputed that there are no statutory rules and/or regulations governing the Petitioner's relationship with NADRA. This fact has made the relationship between the Petitioner and NADRA as that of "master" and "servant", and there is no statutory backing, therefore, the Petitioner could not invoke the Constitutional jurisdiction of this High Court under Article 199 of the Constitution for redressal of his grievance relating to the terms and conditions of his service.
20. In view of above, instant Petition is dismissed being not maintainable.