IN THE HIGH COURT OF SINDH AT  KARACHI

Constitution Petition No.D- 607 of 2011

                               

                                  Present:       Shahid Anwar Bajwa

                                                  Aftab Ahmed Gorar, JJ .

 

Dates of hearing:     23.8.2012

Date of Judgment:   05.9.2012

 

Petitioners.            Syed Muhammad Omar and others

                                through Mr. Ansar Hussain Zaidi advocate

 

 

Respondents              Federal Ministry of Defence through its Director General, Headquarters, Civil Aviation Authority, Terminal No.1, Jinnah International Airport, Karachi and others through Mr. Farooq Rashid advocate and Mr. Dilawar Hussain Standing Counsel       _

 

JUDGMENT

 

          Shahid Anwar Bajwa, J:  With consent of the learned counsel for parties this constitution petition was finally heard at Katcha Peshi stage and is being decided accordingly.

 

2.      Petitioners are Diploma Holders from various technical institutions and are employed in Civil Aviation Authority. On 16.11.1974 a directive was issued by the Deputy Secretary to Government of Pakistan. In that Memorandum it was stated as under_

“OFFICE MEMORANDUM

Subject:- DEMANDS OF THE PAKISTAN DIPLOMA ENGINEERS FEDERATION.

The undersigned is directed to say that the Pakistan Diploma Engineers Federation had placed certain demands before the Government. A Committee consisting of Federal and Provincial Government representatives was constituted to consider these demands and to make recommendations. The report of the Committee was placed before the Prime Minister and with his approval the following decision have been taken:-

(i)           The Diploma Engineers should be given Grade 11 to start with (This decision has already been given effect to vide Finance Division O.M. zNo.F.1 (24)-NG-Imp. II/73-384/74, dated the 8th May, 1974).

 

(ii)          Certain posts in Grades above 11 carrying greater responsibilities should be earmarked or created for Diploma Engineers and these should be filled on the basis of seniority-cum-fitness.

 

(iii)        25% of the total posts of Diploma Engineers should be placed in Grade 16. These posts should be filled on the basis of seniority-cum-fitness and subject to 10 years service and passing of the prescribed departmental examinations.

 

(iv)        20% of the posts in Grade 17 should be reserved for promotion of Diploma Engineers in Grade 16 on the basis of selection for which standards and criteria should be laid down by the Departments concerned.”

3.      An advertisement was placed in newspaper on 23.1.2011 inviting applications from B.E (Electrical) Degree Holders for post of Electrical Engineer in the Civil Aviation Authority.

4.      Learned counsel for petitioners submitted that PG-5 is equivalent to BS-11 and PG-6 is equivalent to BS-14/15. Learned counsel submitted that Directive No.(iii) and Directive No.(iv) have not yet been implemented. He referred to Section 4 of the Civil Aviation Authority Ordinance and submitted that the Memorandum dated 16.11.1964 was a Policy Directive which was binding on Civil Aviation Authority under Section 4 of the Civil Aviation Authority Ordinance 1982. Learned counsel submitted that said directive has been accepted and partly implemented by the Civil Aviation Authority. It has been stated so by the Civil Aviation Authority in its comments before the Federal Services Tribunal, the same are available at Page 83 of the petition. Learned counsel next submitted that such directive has not been implemented as far as Directive Nos.(iii) and (iv) are concerned. Learned counsel submitted that no separate seniority lists have been issued and if fresh recruitment is made it will effect their entire seniority.

5.      Mr. Farooq Rashid learned counsel for Civil Aviation Authority referred to Minutes of 104th (Extra Ordinary) Meeting of Executive Committee of Civil Aviation Authority held on 19.2.1994. In the minutes the following was submitted:-

“2.     She informed the Executive Committee that Diploma holders were inducted and deployed according to the requirement received by Works and Technical Divisions. Presently 320 number of Diploma Engineers are on the strength of CAA, out of which 173 are in PG-3 & 4, 92 in PG-5 & 6 and 55 in PG-7, 8 & 9. She informed that the concerned directorates particularly Director Works & Chief Engineer had recommended 173 Diploma holders working in PG-3 & 4 to be given PG-5 and they would continue discharging their existing duties even after up-gradation in PG-5.”

6.      Thereafter the following was approved:-

“3.     For implementation of Government decision to meet the demands of Diploma Engineers, she submitted the following proposal for the approval of the Executive Committee.

(a)      The initial induction of Diploma Engineers in CAA may be made in PG-5 (equivalent to BPS-11).

 

(b)      173 number of Diploma Engineers working in PG-3 & 4 may be up-graded and given PG-5 from the date of approval without previous financial benefit.

 

(c)      Seniority of already working Diploma Engineers may be from their initial date of joining according to CAA Service Regulations.

 

(d)     Diploma Engineers may be called Sub-Engineer.

Decision:

4.      The Executive Committee, after detailed deliberation, gave its approval for the proposal at para-3 subject to the condition that for re-designation and up-gradation to PG-5, the Diploma Engineers should have a Certificate of Diploma from the Government recognized Technical Institution in the related field.”

7.      Learned counsel referred to letter dated 6.6.1994 and in respect of his contention he submitted that directive has been implemented. Regarding equivalence with pay scale learned counsel referred to letter addressed to one of the petitioners wherein it is stated as under:    

“CAA has not adopted Basic pay scales scheme. We gave our own pay Group-01 to 11 and pay scales. The policy of allowing Diploma Engineers of B-11 to Selection grade B-16 at the rate of 33% therefore, is not applicable to CAA employees.”

          Learned counsel’s submission was that there is no equivalent policy.

8.      Learned counsel next submitted that petition is barred by laches because petitioners have come today for implementation of circular issued in 1974. In this regard learned counsel relied upon Abdul Wahid v. Chairman, Central Board of Revenue, Islamabad (1998 SCMR 882). Learned counsel next submitted that there are no statutory rules in the Civil Aviation Authority and petition is, therefore, not maintainable. He relied upon Muhammad Nawaz v. Civil Aviation Authority and others (2011 SCMR 523), Dr. Abdul Karim Channa & others v. Civil Aviation Authority & another (SBLR 2011 Sindh 1299), Muhammad Idrees v. Agricultural Development Bank of Pakistan and others (PLD 2007 SC 681) and decision of this Court in C.P. No. 1533/2009 passed on 29.3.2012 and in W.P.No. 9346/2011 passed by a Single Bench of Lahore High Court on 29.9.2011. Mr. Dilawar Hussain learned Standing Counsel adopted arguments of Mr. Farooq Rashid.

9.      While exercising his right to reply learned counsel for petitioners referred to Appendix “B” of Civil Aviation Authority Service Regulations in support of his contention that there is equivalence policy qua Basic Pay Scales of the Federal Government.

10.    We have considered submissions made by the learned counsel for the parties and have also gone through the record.

11.    It was contended by learned counsel for respondent authority that office memorandum was issued in 1974 and petitioners have come to this Court in 2011 and, therefore, petition is barred by laches and in support of his contention he relied upon Abdul Wahab’s case (supra). The reported case arose out of judgment of Federal Services Tribunal where question of limitation was considered. Said judgment is, therefore, distinguishable. Moreover, what petitioners have come to this Court for is that since new recruitment is proposed without considering petitioners case, therefore, new recruitment, according to petitioners, has given them fresh cause of action and, therefore, they have come for implementation of Directive Nos.(iii) and (iv) because new recruitment will effect them. Therefore, objection of learned counsel is overruled.

12.    Next contention of learned counsel was that there are no statutory rules in Civil Aviation Authority and, therefore, this constitution petition is not maintainable. Learned counsel relied upon case law referred to above. We need not refer to the case law because it is well settled and without any doubt that if there are no statutory rules or a provision in a statute in respect of any aspect of employment, writ petition would not be maintainable. However, present case is on somewhat different footings. Learned counsel referred to Section 4 of the Civil Aviation Authority Ordinance, 1982 which states as under:-

“4.     Power of the Federal Government to issue directives.- The Federal Government may, as and when it considers necessary, issue directives to the Authority on matters of policy, and such directives shall be binding on the Authority, and if a question arises whether any matter is a matter of policy or not, the decision of the Federal Government shall be final.”

13.    A perusal of the above Section indicates that power has been given to the Federal Government to give directives to the Authority on matters of policy and such directives are binding on the Authority. It has also been provided that if question arises as to whether any matter is a matter of policy or not, decision of Federal Government shall be final. Now  binding effect of directives is in view of provision contained in Section 4. Therefore, if a directive is given by the Federal Government implementation of that directive will be in pursuance of provision contained in Section 4 of the Act and, therefore, writ petition for such implementation of directive shall be maintainable.

14.    No doubt it is provided in Section 4 of the Act that if a question arises as to whether any particular directive is a matter of policy or not, decision of Federal Government shall be final but it may be noted that Civil Aviation Authority neither in its comments nor during oral arguments has contended that Memorandum dated February 16, 1974 is not a question of policy. Therefore contention of learned counsel regarding maintainability of this constitution petition is overruled.

15.    Next contention of learned counsel was that since office memorandum dated February 16, 1974 talks of certain grades and since there is no equivalence policy in the Civil Aviation Authority, therefore, Item Nos.(iii) and (iv) of Office Memorandum dated February 16, 2994 have no applicability. Contention of leaned counsel holds no water for two reasons. Firstly, if there is no equivalent policy then how Directive No.(i) was implemented and given effect by Civil Aviation Authority. Secondly, in Civil Aviation Authority Equivalence Formula is mentioned in Appendix “B” of the Civil Aviation Authority Service Regulations in the following words:-

CIVIL AVIATION AUTHORITY EQUIVALENCE FORMULA

CAA PAY GROUPS

EQUIVALENT BASIC PAY SCALE

1

1 & 2

2

3 & 4

3

5 & 6

4

7, 8 & 9

5

10, 11, 12 & 13

6

14 & 15

7

16

8

17

9 OR Ex-Cadre ‘C’

18

10 or Ex-Cadre ‘B’

19

11 or Ex-Cadre ‘A’

20

    

16.    Therefore, it is clear that there is equivalence policy. Item No.(iii) of the Office Memorandum requires that 25% posts of Diploma holders should be placed in (BS-16 and equivalent). Policy indicates that pay group 7 is considered as equivalent to BS-16. Item No.(v) states that 20% posts of BS-17 should be reserved for promotion of Diploma holders and equivalent policy indicates that pay group “8” is equivalent to BS-17. It is, therefore incumbent upon departmental authority to place 25% posts of Diploma holders in BS-16 (Pay Group 7) and 20% posts in BS-17 (Pay Group 8). And in order to achieve it is essential that separate seniority lists be maintained both for pay group 5 where diploma holders are initially placed and pay group 6 so that quota decided by the Prime Minister and as communicated by the Office Memorandum is observed.

17.    It may also be noted that office memorandum was issued in 1974 when Civil Aviation Department was within Ministry of Defence. Therefore, this directive is binding on it. Thereafter in 1982 Civil Aviation Authority Ordinance was promulgated and an Authority was created. Therefore, even from that angle office memorandum is binding on Civil Aviation Authority.

18.    Result of the above discussion is that this constitution petition is disposed of in the following terms:-

(i)        A separate seniority lists shall be maintained by Civil Aviation Authority of Diploma Holders for group 5 (equivalent BS-11) and Pay Group 7 (equivalent BS-16).

(ii)       Reservation laid down in Office Memorandum dated February 16, 1974 shall be strictly observed.

(iii)      Till such time entire requirement of Memorandum of February 16, 1974 is complied with no further recruitment in these cadres shall take place.

JUDGE

                               

                                JUDGE   

MUSHARRAF ALI