2009 PLP (C (PLC(CS))

SYED QALB-I-HASSAN, J.

This order will dispose of Writ Petition No.626 of 2005 (Khalid Mehmood and others v. PAEC), Writ Petition No.1004 of 2005 (Hafizullah and others v. PAEC), Writ Petition No.1015 of 2005 (Khaliq-uz-Zaman and others v. PAEC), Writ Petition No.2383 of 1005 (Muhammad Razzaq Satti and others v. PAEC), Writ Petition No.2378 of 2005 (Muhammad Sagheer Khan and others v. PAEC), Writ Petition No.1866 of 2006 (Muhammad Zulfiqar Ahmad and others v. PAEC and others), Writ Petition No.2089 of 2006 (Muhammad Iqbal v. PAEC and others), Writ Petition No.2237 of 2006 (Muhammad Safdar v. PAEC and others), Writ Petition No.2736 of 2006 (Zahoor-ud-Din Sheikh v. PAEC and others), Writ Petition No.3113 of 2006 (Muhammad Iqbal v. PAEC and others), Writ Petition No.1089 of 2007 (Muhammad Iqbal v. PAEC), Writ Petition No.1112 of 2007 (Zaheer Ahmad v. Federation of Pakistan and others), Writ Petition No.1201 of 2007 (Tahir Ali v. PAEC) and Writ Petition No.2449 of 2007 (Muhammad Zubair Butt v. PAEC and others). In all these writ petitions relief is sought against Pakistan Atomic Energy Commission.

2. Learned counsel for the petitioners have argued that although Pakistan Atomic Energy Commission has been absorbed in strategic organization and its employees are deemed to be employees of National Command Authority, but the Ordinance by virtue of which the services of the petitioners are absorbed in the National Command Authority was promulgated by the President of Pakistan being Chairman of National Command Authority, therefore, services of the petitioners are governed by statutory regulations under Employees Service Regulations, 2007 and the writ petitions are maintainable under Article 199 of the Constitution of Pakistan in the first instance, however, assuming without conceding, the rules are not statutory in nature even then the writ petitions are maintainable in view of the jurisdictional bar provided in section 22 of Ordinance No.LXX of 2007 dated 13-12-2007. The learned counsel further contended that in view of the bar contained in section 22 of the above said Ordinance, the petitioners have left with no other remedy except to invoke the constitutional jurisdiction of this Court under Article 199 of the Constitution of Pakistan.

3. Learned counsel appearing on behalf of the respondent vehemently opposed the contentions raised by the learned counsel for the petitioners. However, they stated that the Employees Service Regulations, 2007 are statutory in regulations, therefore, the petitioners have alternate remedy to file their appeals before the Service Tribunal and the writ petitions are not maintainable.

4. All the writ petitions were fixed on 26-6-2008 and the learned counsel for the petitioners were heard at length. After hearing arguments of the learned counsel for the parties, I am of the view that before going to merits of each case, the point of maintainability is to be decided first.

5. Arguments heard and record perused.

6. Now Pakistan Atomic Energy Commission has been created under Pakistan Atomic Energy Ordinance, 1965. Section 3 of the Ordinance provides that as soon as may be possible after commencement of this Ordinance the Federal Government shall establish in accordance with the provisions of this Ordinance, a Commission to be called Pakistan Atomic Energy Commission having perpetual succession and a common seal with power subject to provisions of Ordinance to acquire and hold property and shall by the said name sue and be sued and section 3-A of the Ordinance provides that every employment of the Commission shall be deemed to be employment under the Federal Government and section 13 provides that the Commission may subject to the provisions of subsection (2) and such general or special order as the Federal Government may give it from time to time appoint such officers, advisors and employees which it considers necessary for the efficient performance of its function on such terms and conditions as it may deem fit and Federal Government is also empowers to dispense with the services of any officer, advisor or employee and when so directed the Commission shall dispense with his services.

7. From the plaint perusal of sections 3-A and 13 it is established that Federal Government has been fully empowered to control the power of commission in respect of appointment of its officers and employees including their terms and conditions and the Commission is bound to carry out such general or special orders which may be issued by the Federal Government in this respect.

8. Now section 20 of PAEC Ordinance, 1965 says that the Commission may with the previous sanction of Federal Government make such regulations not inconsistent with this Ordinance or the rules made thereunder as may in its aims and objects and for the purpose of its functions whereas subsection (2) of section 23 provides that the Federal Government may for the purposes of removing any difficulty in relation to matters specified in subsection (1) makes such orders as it considers expedient and any such order shall be deemed to be a given effect as part of the provisions of this Ordinance. From the perusal of regulations making powers under section 20 of the Ordinance, it is abundantly clear that the same is controlled by the Federal Government as it requires prior approval of the Federal Government.

9. That the Commission under sections 19 and 20 framed Regulations with the previous approval of the Federal Government i.e. PAEC Employees (Service) Regulations, 1974 and relationship of the employees of PAEC was governed under the abovesaid Regulations till the establishment of National Command Authority in the year 2000 when a formation of standard terms and conditions of service of the employees of the strategic organization was felt and in the first instance some pay package for employees of all strategic was promulgated and subsequently National Command Authority Employees Regulation (ESR-2004) was formulated and thereafter NCA (ESR), 2007 was promulgated in suppression of all the existing regulations for regulating the terms and conditions of the employees of strategic organizations and approved by the Prime Minister (as Vice-Chairman, National Commission Authority) and the President (as Chairman National Command Authority).

10. On 13-12-2007 National Command Authority Ordinance, 2007 was promulgated. The relevant provisions of the Ordinance are reproduced as under:

2. Definitions. In this Ordinance, unless there is any repugnant in the subject or context, (c) "Employee" means any official employee etc., whether in the service of the Authority or the Strategic Organizations, serving or retired and includes those on deputation or secondment within Pakistan or abroad and those studying abroad. (d) "Strategic Organization" means such body notified by the Authority to be a Strategic Organization and includes Pakistan Atomic Energy Commission, Dr. A.Q. Khan, Research Laboratories (KRL) and Space and Upper Atmosphere Research Commission. Section 3 Establishment of the Authority.

(1) The National Command Authority already established by the competent authority shall deemed to be the Authority established under this Ordinance. (2) The authority shall be having perpetual succession and a common seal with powers, subject to the provisions of this Ordinance, to hold and dispose of the property both movable or immovable and shall by the said name sue and be sued. Section 7 Powers and Functions of the Authority.

The Authority shall have the powers to perform all such functions that are necessary to implement the objects and purposes of this Ordinance which include, without being limited, to the following, namely

(d) to prescribed specific terms and conditions of the employees including but not limited to, appoints, removals, promotions, transfers, integrity and reliability assessment and other related matters. Section 9 Employees of Authority.

(1) Notwithstanding anything contained in any other law, judgment of any Court or Tribunal for the time being it force or any procedure etc., hitherto followed by the Authority all employees and officials working in the Strategic Organizations, upon notification of the said organizations under section 7, shall with immediate effect be deemed to be the employees in the service of the Authority: Provided that no employee shall be treated on terms and conditions less favourable to the ones which he was availing as per his terms and conditions of employment. (2) The Authority shall regulate all the matters relating to terms and conditions of the service of the employees in the service of the Authority, including their appointment and removal, promotion, transfer, integrity assessment, reliability, security clearance, and other related matters.

11. From the plain perusal of different provisions of National Command Authority Ordinance, it is established that the authority has been fully empowered in respect of appointments of its officers, employees, including their terms and conditions and make rules and regulations for carrying out the objectives of this Ordinance. The National Command Authority Employees Service Regulations, 2007 were promulgated in supersession of all existing regulations which were framed earlier for regulating the terms and conditions of strategic organizations. The concensus of judicial authority expressed in civil judgments of the Honourable Supreme Court is that where power to frame regulations is given to the corporation or authority, then such regulations are not to be treated as statutory rules/regulations, the breach whereof can be enforced by filing a suit and not by constitutional petition. Reference in this regard is made to the case of Asad Bashir v. Chairman, Board of Intermediate and Secondary Education, Lahore and 2 others 2006 PLC (C.S.) 110 and M.H. Mirza v. Federation of Pakistan through Secretary, Cabinet Division, Islamabad and 2 others 1994 SCMR 1024. The Honourable Supreme Court recently in Muhammad Idrees v. Z.T.B.L. (Civil Appeal No.1394 of 1999) has also declared that services of the employees of the Pakistan Atomic Energy Commission are not governed by statutory rules, therefore, the petitioners in all writ petitions are being governed by non-statutory rules/regulations and the provisions thereof cannot be enforced through constitutional jurisdiction of the High Court under Article 199 of the Constitution. As regards the arguments raised by the learned counsel for the petitioners that due to jurisdictional bar provided in section 22 of the Ordinance LXX of 2007 dated 13-12-2007, the petitioners were left with no alternate remedy except to invoke the constitutional jurisdiction of this Court, are also without force. The Civil Courts are Courts of ultimate jurisdiction and could examine, exercise of powers by any special authority beyond its jurisdiction stated in law regulating special authority. Moreover, the jurisdiction cannot be taken away by the rules of non-statutory bodies, therefore, the petitioners can enforce their rights at appropriate forums. In view of above discussion, the writ petitions are not maintainable and therefore, dismissed with no order as to costs. H.B.T./M-42/Isl. Petition dismissed.