2011 PLP (C (PLC(CS))
ZAFAR IQBAL Versus PAKISTAN CIVIL AVIATION AUTHORITY through Director Administration and another
| Citation | 2011 PLP (C (PLC(CS)) |
| Forum / Court | Sindh High Court |
| Bench Members | Shahid Anwar Bajwa and Tufail H. Ebrahim, JJ |
| Parties | ZAFAR IQBAL Versus PAKISTAN CIVIL AVIATION AUTHORITY through Director Administration and another |
| Primary Law | (b) Constitution of Pakistan, (a) Pakistan Civil Aviation Authority Ordinance (XXX of 1982) |
Q1: What are the key laws and sections cited in 2011 PLP (C (PLC(CS))?
This judgment primarily cites: (b) Constitution of Pakistan, (a) Pakistan Civil Aviation Authority Ordinance (XXX of 1982) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2011 PLP (C (PLC(CS))?
The case was heard and decided by the Sindh High Court bench comprising: Shahid Anwar Bajwa and Tufail H. Ebrahim, JJ.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2011 PLP (C (PLC(CS)) (ZAFAR IQBAL Versus PAKISTAN CIVIL AVIATION AUTHORITY through Director Administration and another). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- M. Aslam Khan for Petitioner.
- Ainuddin Khan for Respondent.
- Learned counsel for petitioner was asked to satisfy the court regarding maintainability of this petition in view of the judgment of Supreme Court in the case of PIAC v. Tanveer-ur-Rehman PLD 2010 SC 676. Learned counsel for petitioner's submission was two fold. First submission was that rules framed by the Board of Pakistan Civil Aviation Authority are Statutory Rules. In this regard learned counsel referred to ,s sections 12(2), 14 and 25 of the Civil Aviation Authority Ordinance, 1982 and contended that regulation framed by the Board are, statutory regulation. Secondly learned counsel referred to section 19 of the Civil Aviation Authority Ordinance, 1982 and contended that Pakistan Civil Aviation Authority is a local authority and therefore in any case it falls within the compass of a person as contemplated under Article 199 of the Constitution of Islamic Republic of Pakistan and even if there are no statutory rules writ petition would be maintainable.
- In our opinion on both counts contentions of learned counsel for petitioner are misconceived.
- In our opinion all these provisions cannot be read to grant status of statutory rules to the regulation framed by the Board. Precisely, this question came up before the honourable Supreme Court in the case of Muhammad Nawaz v. Civil Aviation Authority (Civil Appeal No.2240 of 2008) and the Supreme Court held that regulations framed by Board of the Civil Aviation Authority are not Statutory Rules. Learned counsel for petitioner placed on record a leave granting order granted in .Civil Petition No.569 of 2010 passed on 12-4-2010 whereby Supreme Court has granted leave in the case of Pakistan Civil Aviation Authority and others v. Jawaid Ghafoor (Civil Petition No.569 of 2010) to consider "whether regulations framed by the Authority are statutory or not." It appears that judgment of the Supreme Court in Muhammad Nawaz's case (supra) was not pointed out before the Bench which took up case of Jawaid Ghafoor. In presence of a judgment of Supreme Court which has finally decided the matter, an order in which leave has been granted without noticing earlier judgment which had decided the matter, in our opinion, this Court is duty bound to follow the judgment of the Supreme Court which has finally disposed of the matter. Even otherwise, it is settled law that a leave granting order does not lay down the law. If any authority is need in this regard one may refer i.e. Rustam Ali and others v. Hyder Bux and others 1998 CLC 779 and Major (Retd.) Mian Ghulam Jilani v. Federal Government through Secretary Government of Pakistan, Interior Division, Islamabad PLD 1975 Lah. 65. Therefore, regulations framed by Board of Authority are not statutory rules.
- Second limb of arguments of learned counsel for petitioner was that Civil Aviation Authority is a Local Authority. In this regard learned counsel relied upon section 19 of the Civil Aviation Authority Ordinance. Said section is in the following words:-
Headnotes / Summary
Ss. 12(2), 14, 19 & 25
Constitution of Pakistan, Art.199
Constitutional petition
Maintainability of constitutional petition filed by the petitioner claiming his reinstatement in service, was objected to by the authorities
Contentions of petitioner were that rules framed by the Board of Pakistan Civil Aviation Authority were Statutory Rules and referred to Ss.12(2), 14 & 25 of Pakistan Civil Aviation Authority Ordinance, 1982; that under S.19 of Pakistan Civil Aviation Authority Ordinance, 1982, Pakistan Civil Aviation Authority was a local authority and it would fall within the compass of a person as contemplated under Art.199 of the Constitution; and that even if there were no statutory rules, constitutional petition would be maintainable
Contentions of counsel for the petitioner were misconceived, as S.12(2) of Pakistan Civil Aviation Authority Ordinance, 1982 dealt with appointment of officers, servants and consultants and their terms and conditions; and S.14 dealt with transfer of employees; and S.25 of Ordinance provided that existing arrangement would continue
All said provisions could not be read to grant status of statutory rules to the regulations framed by the Board
Regulations framed by the Board of Authority were not statutory Rules, in circumstances
Section 19 of Pakistan Civil Aviation Authority Ordinance, 1982 indicated that Civil Aviation Authority was a local authority only for the purpose of borrowing of money and not for any other purpose; it was, in circumstances not a local authority with the contemplation of Art.199 of the Constitution
Constitutional petition being not maintainable, was dismissed, in circumstances. PIAC v. Tanveer-ur-Rehman PLD 2010 SC 676; Rustam Ali and others v. Ryder Bux and others 1998 CLC 779; Major (Retd.) Mian Ghulam Jilani v. Federal Government through Secretary Government of Pakistan, Interior Division, Islamabad PLC 1975 Lah. 65 and Deputy Managing Director, National Bank of Pakistan v. Attaul Haq PLD 1965 SC 201 ref.
Art. 185(3)
Leave granting order by Supreme Court would not lay down the law. Rustam Ali and others v. Hyder Bux and others 1998 CLC 779 and Major (Retd.) Mian Ghulam Jilani v. Federal Government through Secretary Government of Pakistan, Interior Division, Islamabad PLC 1975 Lah. 65 ref.
Judgment & Decree
This constitutional petition has been filed by the petitioner against respondents Pakistan Civil Aviation Authority claiming reinstatement in service with effect from 12-9-2000. Learned counsel for petitioner was asked to satisfy the court regarding maintainability of this petition in view of the judgment of Supreme Court in the case of PIAC v. Tanveer-ur-Rehman PLD 2010 SC
676. Learned counsel for petitioner's submission was two fold. First submission was that rules framed by the Board of Pakistan Civil Aviation Authority are Statutory Rules. In this regard learned counsel referred to ,s sections 12(2), 14 and 25 of the Civil Aviation Authority Ordinance, 1982 and contended that regulation framed by the Board are, statutory regulation. Secondly learned counsel referred to section 19 of the Civil Aviation Authority Ordinance, 1982 and contended that Pakistan Civil Aviation Authority is a local authority and therefore in any case it falls within the compass of a person as contemplated under Article 199 of the Constitution of Islamic Republic of Pakistan and even if there are no statutory rules writ petition would be maintainable. In our opinion on both counts contentions of learned counsel for petitioner are misconceived. Section 12(2) of the Pakistan Civil Aviation Authority Ordinance, 1982 lays down that the authority shall be prescribed by regulation, the procedure for appointment of its officers, servants, experts and consultants and their terms and conditions. Section 14 provides that every civil, servant employed in the, Department of Civil Aviation shall upon establishment of the Authority (in 1982) stand transferred to and become an employee of the Authority on such terms and conditions as may be prescribed by the regulations. It further provides that any allowance etc. payable to him shall not be less favourable under section 25, it is provided that existing arrangement shall continue. In our opinion all these provisions cannot be read to grant status of statutory rules to the regulation framed by the Board. Precisely, this question came up before the honourable Supreme Court in the case of Muhammad Nawaz v. Civil Aviation Authority (Civil Appeal No.2240 of 2008) and the Supreme Court held that regulations framed by Board of the Civil Aviation Authority are not Statutory Rules. Learned counsel for petitioner placed on record a leave granting order granted in .Civil Petition No.569 of 2010 passed on 12-4-2010 whereby Supreme Court has granted leave in the case of Pakistan Civil Aviation Authority and others v. Jawaid Ghafoor (Civil Petition No.569 of 2010) to consider "whether regulations framed by the Authority are statutory or not." It appears that judgment of the Supreme Court in Muhammad Nawaz's case (supra) was not pointed out before the Bench which took up case of Jawaid Ghafoor. In presence of a judgment of Supreme Court which has finally decided the matter, an order in which leave has been granted without noticing earlier judgment which had decided the matter, in our opinion, this Court is duty bound to follow the judgment of the Supreme Court which has finally disposed of the matter. Even otherwise, it is settled law that a leave granting order does not lay down the law. If any authority is need in this regard one may refer i.e. Rustam Ali and others v. Hyder Bux and others 1998 CLC 779 and Major (Retd.) Mian Ghulam Jilani v. Federal Government through Secretary Government of Pakistan, Interior Division, Islamabad PLD 1975 Lah.
65. Therefore, regulations framed by Board of Authority are not statutory rules. Second limb of arguments of learned counsel for petitioner was that Civil Aviation Authority is a Local Authority. In this regard learned counsel relied upon section 19 of the Civil Aviation Authority Ordinance. Said section is in the following words:- "
19. Authority to be deemed to be a local authority.
The Authority shall be deemed to be a local authority for the purpose of borrowing money under the Local Authorities Loans Act, 1914 (IX of 1914), and the making and execution of any scheme under this Ordinance shall be deemed to be a work which such authority is legally authorized to carry out." Since reference is made in this section to the Local Authorities Loans Act, 1914, one may refer to definition of Local Authority given in the Act of 1914 and it is in the following terms:
"In this Act "Local authority" means any person legally entitled to the control or management of any local or municipal fund or legally entitled to impose any cases, rate, duty or tax within any local area." It appears that Local Authority is to be one which; (i) is entitled to the control or management of; (a) any local funds; (b) any municipal funds (ii) is legally entitled to impose any cess, rate, duty or tax within any local area. In Deputy Managing Director, National Bank of Pakistan v. Attaul Haq PLD 1965 SC 201 these aspects relating to local authorities were noted and it was held that National Bank of Pakistan is not a local authority. Section 19 indicates that Civil Aviation Authority is a local authority only for the purpose of borrowing of money and not for any other purpose. Therefore, it is not a local authority within the contemplation of Article 199 of the Constitution of the Islamic Republic of Pakistan. Result of the above discussion is that this petition is dismissed in limine. Listed application is also disposed of. H.B.T./Z-23/K Petition dismissed.