MUHAMMAD IQBAL CHAUDHRY and others vs CIVIL AVIATION AUTHORITY and others

' MAMOON KAZI, J.---The petitioners in this case were selected for appointment by the respondent No, 1 as Air Traffic Control Officers in Group 8 in the month of April/May, 1983. The petitioners are now aggrieved because respondents Nos. 5 to 8 have been appointed by respondent No, 1 vide order dated 6-10-1990 in Pay Group 9 in Air Traffic Control Branch of the respondent No,

1. The case of the petitioners is that in view of their seniority, clean service record, present experience and qualifications, they are eligible for promotion to the said Group. The contention of the petitioners inter alia is that the selection of respondents Nos. 5 to 8 is derogatory to the rules and instructions contained in Establishment Division's Office Memorandum No, 14/5/78.D.III, dated 10-2-1980, Memorandum No, 14/5/78-D.III, dated 11-2-1980 and Memorandum No, 1(3)/86-C.P.6, dated 14-3- 1988 whereby annual vacancies up to 10 per cent of the annual vacancies in civil service are to be filled by induction/re-employment of officers of Armed Forces. Furthermore their induction can only be made through a high powered Selection Board constituted by the President of Pakistan for the purpose in the prescribed manner.

2. The first question that requires determination is whether the present petition is maintainable under Article 199 of the Constitution because although Federation of Pakistan has been impleaded as respondent No, 3 in the case, but the grievance of the petitioners is mainly directed against the respondent No, 1, which is a corporate body. Admittedly, the petitioners are governed by regulations framed by respondent No, 1 under sections 12 and 27 respectively of the Pakistan Civil Aviation Authority Ordinance (Ordinance XXX of 1982). The said regulations also cannot be equated with statutory rules according to the test laid down by the Supreme Court in The Principal, Cadet College, Kohat v. Muhammad Shoaib Qureshi (PLD 1984 SC 170) and Anwar Hussain v. Agricultural Development Bank of Pakistan (PLD 1984 SC 194). Although A power vests in the Civil Aviation Authority established under the said Ordinance to frame regulations prescribing the procedure for appointment of its officers, servants etc. And also to prescribe their terms and conditions of service but the Government admittedly has not reserved to itself the power to supervise or approve such regulations leaving the matter entirely to the discretion of the said Authority. Consequently, it was rightly not urged by Mr. Manzoor Ali Khan, learned counsel for the petitioners that the said regulations carry a statutory force. As was held by the Supreme Court in the aforesaid cases, if terms and conditions of service of employees who are not governed by statutory rules, but only by regulations, instructions or directions which institution or body which has employed them has issued for its internal use, they cannot be enforced in case of violation thereof, through a writ petition. Although Mr. Manzoor Ali Khan has strongly urged that the instructions issued by the Establishment Division, reference to which has already been made in this judgment, have also been violated but without going into the merits of the said contention, it may be pointed out that nothing has been alleged from which any omission on the part of the Federal Government can be spelt out. Consequently, in our opinion, the present petition is not maintainable in view of the circumstances enumerated above.

3. Mr. Umar Qureshi, learned counsel for the respondent No, 1 has, however,. Referred to Regulation No, 4.18 framed by the respondent No, 1 under its rule-making power which indicates that promotion up to Group 8 is to be made by the said respondent on the basis of fitness-cum- seniority. The said regulation further indicates that no employee can have any claim to any particular post by virtue of his seniority alone and promotions to Groups 9, 10 and 11 are to be further made by selection. The relevant instructions issued by the Establishment Division, no doubt, indicate that vacancies only up to 10 per cent of the annual vacancies in various groups and cadres of civil service may be filled by the Army Personnel but again even assuming that the said instructions were to be followed by the respondent No, 1 at the time of appointment of respondents Nos. 5 to 8 all of whom appear to be retired officers who were serving in the Pakistan Air Force, nothing has been placed before us to indicate that induction of respondents Nos. 5 to 8 was in excess of the said quota which was meant for various groups and cadres of civil service throughout Pakistan. Mr. Manzoor Ali Khan has referred to the break up given by the petitioners in the memorandum of petition but the said break up only relates to appointments made by respondent No, 1 whereas the said quota refers to all groups and cadres in civil posts in Pakistan.

The contention, therefore; has no force.

4. In the result, we find no force in this petition, which is dismissed together with C.M.A. No, 6628/93 which has, also been fixed for hearing alongwith the main petition. The parties are, however, left to bear their own costs.