2024 PLP (C (PLC(CS))

MIANGUL HASSAN AURANGZEB, J.

Through the instant writ petition the petitioner, Raja Sohail Arshad, has assailed the process initiated by the National Counter Terrorism Authority ("NACTA") for recruitment to posts in BPS-17 and above. The primary ground on which the said recruitment process has been assailed is that the same is in violation of the Office Memorandum ("O.M.") dated 22.10.2014 issued by the Establishment Division.

2. Learned counsel for the petitioner submitted that in April 2023, NACTA published an advertisement inviting applications for appointment to different posts including, posts in BPS-17 and above; that in response to the said advertisement, the petitioner applied for appointment to the post of Analyst (BPS-18); that he appeared in the written examination on 04.05.2023; that NACTA has made appointments by disregarding merit and the applicable rules and regulations; that the recruitment process was is in violation of the recruitment policy set out in the Establishment Division's O.M. dated 22.10.2014 which requires recruitment to posts in BPS-16 and above to be made through the Federal Public Service Commission ("FPSC"); and that as the recruitments made by NACTA in BPS-17 and above have not been routed through the FPSC, the same are liable to be set-aside. Learned counsel for the petitioner prayed for the writ petition to be allowed in terms of the relief sought therein.

3. On the other hand, learned Deputy Attorney-General submitted that a careful read of the said recruitment policy shows that autonomous bodies like NACTA have not been required to make recruitments in BPS-16 and above through the FPSC; that paragraph (i) of the said policy is applicable to civil servants; and that the Establishment Division, in paragraph (iv) of its written comments, has clarified that the recruitments / appointments in companies, autonomous bodies, semi-autonomous bodies etc. are not in the purview of the FPSC.

4. Learned Deputy Attorney-General further submitted that NACTA is an autonomous statutory body governed by the provisions of the National Counter Terrorism Authority Act, 2013 ("NACTA Act"); and that the provisions of the said Act do not require appointments in NACTA to posts in BPS-17 and above to be made through the FPSC. Learned Deputy Attorney-General prayed for the writ petition to be dismissed.

5. I have heard the contentions of the learned counsel for the petitioner and the learned Deputy Attorney-General and have perused the record with their able assistance.

6. NACTA was established as an autonomous body pursuant to the provisions of the NACTA Act. Section 11(1) of the said Act provides that NACTA may, from time to time appoint, either through direct recruitment or through deputation, such officials, experts or consultants as it may consider necessary for the performance of functions in the prescribed manner. Section 11(2) of the NACTA Act provides that NACTA shall prescribe service regulations, with the approval of the Board, for the appointment, promotion and transfer of officers, staff, experts and consultants, their terms and conditions of service, including, additional financial incentives such as special salaries, allowances, pension or gratuity etc., constitution and management of pension and gratuity and shall be competent to take disciplinary action against them.

7. Apparently, NACTA had drafted the service regulations and sent them for vetting to the Establishment Division vide letter dated 25.11.2015. Vide O.M. dated 05.01.2016, the Establishment Division's views / comments regarding the said draft regulations were sent to NACTA. The respondents have brought nothing on the record to show that service regulations have been made in accordance with Section 11(2) ibid. The communication of the Establishment Division's views / comments to the draft service regulations sent by NACTA to the said Division for vetting does not mean that the said regulations have been made in accordance with Section 11(2) ibid. The respondents have also not brought on record the Board's approval to the service regulations.

8. Be that as it may, in response to an advertisement published by NACTA in April 2023, the petitioner participated in the competitive process for appointment to the post of Analyst (BPS-18) but was not successful. This has caused him to throw a challenge to the entire recruitment process on the ground that the same was in violation of the requirement in paragraph (i) of the "Recruitment Policy for the Federal Services / Autonomous Bodies / Corporations" set out in the Establishment Division's O.M. dated 22.10.2014. The said paragraph reads thus:- "Recruitment to posts in BPS-16 and above shall continue to be made through the Federal Public Service Commission as hitherto fore."

9. Today, Mr. Zahir Shah, Director General, Management Services Wing, Establishment Division tendered appearance and explained that the said requirement is applicable to civil servants as well as those autonomous bodies whose service rules require recruitment to posts in BPS-16 and above to be made through the FPSC. He also explained that the term "hitherto fore" in the said paragraph means that autonomous bodies that had earlier been making appointments in BPS-16 and above in accordance with their respective service rules through the FPSC, would continue to do so. He was of the view that since the statute governing NACTA did not provide for appointments in BPS-16 and above to be made through the FPSC, there was no need to refer to the FPSC the matter regarding the appointment process initiated through the advertisement published in April 2023.

10. It appears that an effort was made for appointments in BPS-17 and above in NACTA to be made through the FPSC. In this regard summary dated 01.11.2016 was submitted to the Prime Minister by NACTA requesting for an advice from the President of Pakistan to direct the FPSC in terms of Section 7(1)(b)(iii) of the Federal Public Service Commission Ordinance, 1977 ("FPSC Ordinance") to undertake recruitment process for different positions in NACTA.

11. The Establishment Division's view on the said summary was that "recruitment in NACTA is not within the jurisdiction of FPSC in terms of Section 7(1)(a) of the FPSC Ordinance, 1977 read with Rule 3 of FPSC Function Rules, 1978." This view was expressed by the Establishment Division through letter dated 09.11.2016. The Prime Minister, on 21.11.2016, agreed with the said view of the Establishment Division. It is in this scenario that the recruitment process was undertaken by NACTA in accordance with Section 11 of the NACTA Act. The learned Deputy Attorney-General has submitted list of officers who have been selected for appointment to different posts on regular basis in NACTA after they were recommended for appointment by the Departmental Selection Committee and approved by the competent authority in NACTA.

12. The provisions of the NACTA Act do not require appointments to posts in BPS-16 and above in NACTA to be made through the FPSC. Paragraph (i) of the Establishment Division's O.M. dated 22.10.2014 cannot be interpreted such as to require autonomous bodies having their own mechanism for making appointments, which does not give any role to the FPSC in the appointment process, for appointments to be made through the FPSC. This has been duly acknowledged by the Establishment Division in the written comments as well as its letter dated 09.11.2016.

13. The FPSC, through letter dated 19.12.2019 to the Ministry of Human Rights, had taken the position that recruitments made by the former are processed in the light of Section 7(1)(a) of the FPSC Ordinance and therefore appointments in autonomous bodies etc. are not within the purview of the FPSC. This opinion would also hold good for appointments in BPS-16 and above in NACTA.

14. In view of the above, there is no merit in the instant petition which is dismissed with no order as to costs.

15. Before parting with this judgment, I deem it appropriate to direct NACTA to make service regulations strictly in accordance with the requirements of Section 11(2) of the NACTA Act and submit a report in this regard to the Registrar of this Court within two months. MQ/118/Isl. Petition dismissed.