2011 PLC (C (PLP)

SHAHID ANWAR BAJWA, J.

By consent of the learned counsel for the parties this constitution petition was finally heard at Katcha Peshi stage and is being decided accordingly.

2. Petitioner joined department of Civil Aviation in 1969. The Pakistan Civil Aviation Authority Ordinance, 1982 was promulgated on December 4 of 1982 and consequently petitioner became employee of the Civil Aviation Authority.

3. Grievance of petitioner is that his claim grant of combined pension for 26 years was not accepted. Learned counsel for petitioner was confronted with judgment of the apex Court in Pakistan International Airline Corporation v. Tanveer-ur-Rehman (PLO 2010 SC 676) that since Civil Aviation Authority does not have statutory rules, therefore, petition would not be maintainable. Learned counsel referred to Article 7of the Constitution and submitted that Civil Aviation Authority is the State. Learned counsel also referred to section 16(3) of the Civil Aviation Authority Ordinance, 1982 and submitted that in view of these provisions Civil Aviation Authority comes within the definition of the State. Learned counsel also referred to section 7(2) of the Civil Aviation Authority Ordinance, 1982 and contended that since Board of Authority consists of members exclusively nominated by the Government and primarily they are servants of the State, therefore, this writ petition is maintainable.

4. Mr. Ashiq Raza learned Deputy Attorney-General relied upon Tanveer-ur-Rehman's case (supra) and submitted that this writ petition is not maintainable.

5. Article 7 of Constitution of the Islamic Republic of Pakistan is in the following words:

"

7. Definition of the State.

In this Part, unless the context otherwise requires, the State means the Federal Government [Majlis-e-Shoora (Parliament)), a Provincial Government, a Provincial Assembly, and such local or other authorities in Pakistan as are by law empowered to impose any tax or cess."

6. Section 16(3) of the Pakistan Civil Aviation Authority Ordinance, 1982 is in the following words:-- "(3) The Authority shall be competent to levy and collect, at such rates as may be prescribed by the Authority by regulations from time. to time.-- (i) air route navigation charges. (ii) embarkation charges to be paid by the passengers travelling by air; (iii) fees paid by individuals in respect of issue and renewal of licences and any examination prescribed by the Authority; (iv) fees and charges in respect of commercial exploitation of the Authority's properties, including land and aircraft; and (v) landing and housing charges.

7. A perusal of Article 7 of the Constitution indicates that in the definition, of State beside Federal Government, {Majlis-e-Shoora (Parliament)}, a Provincial Government and a Provincial Assembly, such local or other authorities in Pakistan as are by law empowered to impose any tax or cess are included. Contention of learned counsel by referring section 16(3) of the Ordinance, 1982 was that what is levied under section 16(3) is a tax or cess and, therefore, Civil Aviation Authority comes within the definition of the State as contained in Article 7 of the Constitution.

8. Without going into the question whether definition contained in Article 7 is only limited to what is contained in Part II of the Constitution a perusal of subsection (3) of section 16 indicates that these are the charges for various services performed by the Civil Aviation Authority and are therefore not tax or cess. Distinction between charges on the one hand or tax and cess on the other is that while charge is levied for services rendered, whether it is levied compulsorily or with consent is immaterial in this regard. On the other hand tax is a sovereign exaction under the authority of Parliament and has no link whatsoever with performance of any service. Therefore; what is levied under section 16(3) are charges and cess or tax, therefore, Civil Aviation Authority does not come within the definition of State as contained in Article 7 of the Constitution.

9. Under section 3(2) of the Ordinance of 1982 the Civil Aviation' Authority is a body corporate. Therefore, in accordance with dicta of honourable Supreme Court in Mrs. M.N. Arshad and others v. Miss Naeema Khan and others (PLD 1990 SC 612) employees of Civil Aviation Authority are not civil servants but are employees of the Authority and the,-efore since there are no statutory rules writ petition by such employees would not be maintainable, in respect of grievances.

10. Consequently, this petition being not maintainable is dismissed in limini. Listed application is disposed of.

11. However, petitioner shall be at liberty to seek his remedy in such forum as may be available to him in accordance with the law. A.R.K./I-5/K Petition dismissed.