2011 P L C (C.S.

) 1175

[Islamabad High Court]

Before Iqbal Hameed-ur-Rehman, C.J.

AKBAR SHAH

Versus

SECURITIES AND EXCHANGE COMMISSION OF PAKISTAN through Chairman

Writ Petition No.2803 of 2009, decided on 8th March, 2011.

Securities and Exchange Commission of Pakistan Act (XLII of 1997)---

----S. 43(g)---Civil Service Regulations, Regln.45---Fundamental Rules, F.R. No.105---

Constitution of Pakistan, Art.199---Constitutional petition---Civil service---Petitioner who had
served with Provincial Government as Instructor in BPS-17 on ad hoc basis for about 7 years and
was appointed as Deputy Registrar Joint Stock Companies in BPS-18 in Corporate Law Authority
(an autonomous body of Federal Government) had prayed that his period of ad hoc appointment as
Instructor with Provincial Government be taken into consideration for pay and pensionary
benefits---Validity---Held, since the petitioner was holding post of Instructor on ad hoc 1(basis
under the Provincial Government, he could not be considered to hold a permanent post in a
substantive capacity under F.R. 105 of Fundamental Rules---Only continuous service was counted
towards pension under the said Fundamental Rules---Petitioner having been employed on ad hoc
basis was not required to make any contribution towards pensionary benefits; and he had not
contributed anything towards such benefits---Petitioner was required to produce certificate from
the Audit office of the Provincial Government to the effect that his service was counted towards
pension; and that Government of N.-W.F.P. was prepared to pay proportionate share of pension
under Regln.45 of the Civil Service Regulations; and that there was such agreement between the
Federal and Provincial Government as contained in Selection A of Appendix 3 of Account Code
Vol-1---No such certificate had been produced by the petitioner---Petitioner, in circumstances, did
not qualify for pensionary benefits and commutation for period of his ad hoc service--
Constitutional petition was not maintainable as the Rules cited in impugned order by the
authorities were non-statutory rules; and employees of autonomous bodies or organizations having
non-statutory Rules, could not seek remedy under Art.199 of the Constitution.

Pakistan through the Secretary, Ministry Finance v. Muhammad Himayatullah Farukhi PLD 1969
SC 407; Chief Secretary, Government of Sindh v. Sher Muhammad Makhdoom and 2 others. PLD
1991 SC 973; Messrs United Kashmir Flour Mills (Pvt.) Limited Company' through Chief
Executive v. Government of Azad Jammu and Kashmir through Secretary Ministry of Food and 2
others 2003 YLR 2835; Messrs Gadoon Textile Mills and 814 others v. WAPDA and others 1997
SCMR 641; The Engineer in Chief Branch v. Jalaluddin PLD 1992 SC 207 and Pakistan
Telecommunication Co. Ltd. through Chairman v. Iqbal Nasir and others PLD 2011 SC 132 ref.

Raja Muhammad Khan for Petitioner.

M. Bilal, Senior Advocate Supreme Court of Pakistan along with Babar Bilal for Respondents.

ORDER

IQBAL HAMEED-UR-REHMAN, C.J.---Through the instant Constitutional Petition, under

Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner has made the
following prayer: ---

"It is most respectfully prayed that this honourable Court may be pleased to graciously set aside
the decision in letter No.SECP/HR/ID-29 of 2000, dated 31-8-2009 read with letter No.
SECP/HR/IDH/2000, dated 6-3-2009 and direct the respondent to take into account the joining
time as well as service from 11-4-1978 to 13-3-1985 for the purpose of working out pension and
computation of the petitioner, in the best interest of justice. "

2. The succinct facts required for the determination of this writ petition are that the petitioner
started his career as Instructor in the Directorate of Technical Education on ad hoc basis on 11-4-
1978',and continued the same till 13-3-1985. Thereafter, he applied for the post of Deputy
Registrar Corporate Law Authority and on selection by the Federal Public Service Commission,
the petitioner was appointed and he joined as Deputy Registrar, Joint Stock Commission, (BS-18)
in Corporate Law Authority (Regional Office) Lahore on 19-3-1985 and continued his service till
his promotion as Joint Registrar in the Securities and Exchange Commission of Pakistan w.e.f. 24-
4-1996. Later on the petitioner was offered appointment as an employee against the post of Joint
Registrar vide letter dated 3-5-2000 and the same was accepted by the petitioner. Thereafter, the
petitioner was promoted as Addl. Registrar vide letter dated 20-6-2002. The respondent vide letter
dated 5-8-2008 had given the petitioner revised offer for conversion to the new terms and
conditions of employment in the Securities and Exchange Commission of Pakistan and the same
were accepted by him. Thereafter, the services of the petitioner were converted from the old terms
and conditions of employment (governed under SECP Services Manual 1999) to the new terms
and conditions of employment (governed under H.R. Hand Book, 2007) by the respondents vide
letter dated 7-8-2008 and later on the said letter was cancelled/withdrawn by the respondents vide
letter dated 4-9-2008.The petitioner filed representation on 4-5-2009 before the respondent
wherein it was requested to allow regularization of five days as time availed by him as joining
time of his appointment as Deputy Registrar, Corporate Law Authority and the said representation
was declined by the respondents vide letter dated 6-5-2009. Thereafter he filed a representation
dated 1-6-2009 to the Finance Division (Regulation Wing), Islamabad and the Finance Division
advised the respondent vide letter dated 1-7-2009 to examine and settle the issue at their own end:
The respondents declined the application dated 1-6-2009 vide letter dated 31-8-2009 with the
observations that the earlier decision as already conveyed to the petitioner vide letter dated 6-5-
2009 will hold good. Feeling aggrieved by the said order dated 31-8-2009, the petitioner has filed
this Constitutional petition.

3. It is contended by the learned counsel for the petitioner that the respondents cancelled/withdrew
the new terms and conditions which had already been allowed vide offer letter dated 5-8-2008 and
as such the same cannot be unilaterally withdrawn without any notice to the petitioner and the
same is afterthought and has been made mala fidely. It is further contended that the same had been
allowed in view of section 43 Clause-G of the Act No.XLII of 1997 of Securities and Exchange
Commission of Pakistan wherein it has been held that:--
"The service rendered in the Authority such person shall be entitled to such benefits including the
transfer of benefits to the Commission as may be prescribed by the rules. But in the event of such
a person opting to remain as a civil servant, he shall be entitled to the same remuneration,
allowances and other rights and privileges as are admissible to civil servants but in other respects
such as organizational structure, right to promotion and discipline, he shall be subject to the
regulations made by the Commission, and for the period he served the Commission, the
Commission shall contribute to the pension, gratuity and final payment of provident fund in
accordance with the rules."

4. It is further contended that since the pensionary benefits had already been allowed to the
petitioner which had been calculated on the basis of his service w.e.f. 11-4-1978 as such, the same
cannot be withdrawn on the basis of documents. Reliance in this regard has been placed on the
case of Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi
(PLD 1969 Supreme Court 407) and Chief Secretary, Government of Sindh v. Sher
Muhammad Makhdoom and 2 others (PLD 1991 Supreme Court 973). It is further contended that
his lien in service as Instructor in the Directorate of Technical Education on ad hoc basis has duly
been considered by the respondents and now through their comments they have controverted the
same which cannot he taken into consideration as such the same cannot be raised at this stage
when the respondents have duly considered the same and calculated the pension of the petitioner
on the basis of service of 25 years. At this stage the principle of promissory estoppel will apply on
the respondents and in this regard learned counsel for the petitioner has relied upon the case of
Messrs United Kashmir Flour Mills (Pvt.) Limited Company through Chief Executive v.
Government of Azad Jammu and Kashmir through Secretary Ministry of Food and 2 others (2003
YLR 2835). It is further contended that the respondent while ignoring the observations of the
Finance Division mentioned in the letter dated 1-7-2009 declined the application dated 1-6.2009
of the petitioner vide letter dated 31-8-2009.

5. Further the learned counsel for the petitioner has relied upon office memorandum dated 25-1-
2006 of the Federal Directorate of Education wherein it is stated that on the recommendation of
the Federal Public Service Commission and legal advice of the Law, Justice and Human Rights
Division, the period of ad hoc appointment can be taken into consideration for pay and pensionary
benefits. In view of the same the instant writ petition has been filed by the petitioner seeking the
letter dated 31-8-2009 and 6-3-2009 to be declared as illegal and against the fundamental rights
guaranteed by the Constitution of Pakistan and the respondents be directed to calculate the
pensionary benefits already allowed to the petitioner on the basis of the offer letter dated 5-8-2008
be continued and the impugned letters be set aside.

6. On the other hand learned counsel for the respondents has vehemently controverted the
contentions of learned counsel for the petitioner. At the very outset it is argued that the petitioner
had been appointed on ad hoc basis as instructor in the Directorate of Technical Education, N.-
W.F.P. on 6 monthly basis and during this period the petitioner did not contribute anything towards
the pensionary benefits and the said post does not entail any pensionary benefits, in view of which
the period w.e.f. 11-4-1978 to 13-3-1985 cannot be taken into consideration and cannot be
calculated towards the length of service of' the petitioner as such the petitioner is less that 25 years
of service, in view of the same, the issued revised offer letter dated 4-9-2008 was issued which
option the petitioner did not accept. As such, the offer was cancelled. Thereafter the petitioner
enjoyed the benefits admissible to him under the terms of his service, which he duly availed and
received the commutation as well as pension accordingly thus the petitioner got his pensionary
benefits for the service he rendered except the services on ad .hoc basis in the Directorate of
Technical Education under the Government of N.-W.F.P. as the same were on ad hoc 6 monthly
basis and if the same is to be taken into consideration the petitioner should have first obtained a
certificate from the Audit Office of the Provincial Government to the effect that the service was
counted towards pension and that the Government of N.-W.F.P. was prepared to pay proportionate
share of pension under Article 45 of the Civil Service Regulations and the agreement reached
between the Federal and Provincial Government etc. as contained in Appendix 3 of Account Code
Volume-I in which it is stated that:--

"Pension is said to be chargeable according to the "Rule of Proportions" when the charge is
debitable to several accounts in the proportions in which the aggregate pay drawn by the officer
during the whole of his qualifying service has been paid from them,"

It is contended that taking the same into consideration the respondents were constrained to issue
the impugned,' letter dated 4-9-2008 cancelling/withdrawing the office order dare 7-8-2008
regarding the conversion of the petitioner's service from old terms and conditions of employment
to new terms and conditions of employment. It is further contended that the petitioner did not
agitate the matter immediate. He impliedly accepted the same by accepting the pensionary benefits
calculated thereon by the respondents as well as the commutation made on the basis of the same.
As such, the instant petition cannot be accepted. The principle of estoppel will apply against the
petitioner after having been obtained all the pensionary benefits. He has acquiescence to the same
as such, the estoppel will apply against the petitioner and the principle of promissory estoppel be
invoked, as held by the apex Court in the case of Messrs Gadoon Textile Mills and 814 others v.
WAPDA and others (1997 SCMR 641). The respondents were within their lawful rights to pass the
impugned order dated 4-9-2008 whereby the offer dated 7-8-2008 had been withdrawn as the
same would result in the violation of the settled rules framed in this regard. Moreover, under
General Clauses Act the Authority which can pass an order can also subsequently withdraw the
same.
7. Further learned counsel for the respondents has vehemently argued that as per the terms in the
said offer it has been categorically made, clear' vide clause-C " Pension will be disbursed as per
applicable rules", as such according to the rules the petitioner was not entitled to the pensionary
benefits. As per the rules the services rendered by the petitioner as Instructor in the Directorate of
Technical Education, N.-W.F.P. were not to be taken into consideration and the respondents had
inadvertently taken the same into consideration while initially calculating the date of appointment
of the petitioner as 9-4-1978.

8. Arguments of learned counsel for the petitioner as well as learned counsel for the respondents
taken into consideration and the material made available on the file perused.

9. The prayer of the petitioner is for the grant of joining time for the period from 11-4-1978 to 13-
3-1985. Admittedly, the petitioner had served in the Government of N.-W.F.P. as Instructor in
BPS-17 on ad hoc basis from 11-4-1978 to 13-3-1985. Thereafter, on 31-3-1985 he was appointed
as Deputy Registrar, Joint Stock Companies (BPS-18) in Corporate Law Authority, Lahore and he
joined the said post w.e.f. 19-3-1985. It does not appear from the said order dated 31-3-1985 that
he was given any joining time. The petitioner through his application dated 4-5-2009 had made the
following request:--

"It is therefore, requested to kindly approve allowing regularization of five (5) days availed by me
as joining time on my appointment as Deputy Registrar Corporate Law Authority please."

The said application had been declined by the respondent in view of which a further representation
was made by the petitioner before the Finance Division (Regulation Wing), Islamabad and the
same was not responded to and finally the respondent declined the request of the petitioner for
allowing joining time. The same has been declined by the respondent in view of Fundamental
Rule 105 of FR and SR which is as under: ---

"(4) it has been decided that joining time and joining time pay should be granted as follows to
Government servants appointed to post under the Central Government on the results of a
competitive examination open to both Government servant and others."
(a) "Joining time should ordinary be permitted for all Government servants serving under the
Central Government and for Provincial Government servants who hold permanent posts in a
substantive capacity."

Since the petitioner was holding post of Instructor on ad hoc basis under the Provincial
Government of N.-W.F.P., therefore, he could not be considered to hold a permanent post in a
substantive capacity under the said rule (Rule 105 of FR and SR), he was not entitled to any
joining time. Under the Rules only continuous service is counted towards pension.

10. Further, the petitioner being employed on ad hoc basis was not required to make any
contribution toward pensionary benefits and did not contribute anything towards pensionary
benefits. So far as the contention of the learned counsel for the petitioner that period of ad hoc
appointment, can be taken into consideration for pay and pensionary benefits is concerned, suffice
it to say that the petitioner was required to produce certificate from the Audit Office of the
Provincial Government to the effect that service was counted towards pension and the
Government of N.-W.F.P. was prepared to pay proportionate share of pension under Article 45 of
the Civil Service Regulations and the agreement reached between the Federal and Provincial
Government as contained in Selection A of appendix 3 of Account Code Vol. 1 but no such
certificate had been produced by the petitioner and in view of the same, he did not qualify for
pensionary benefits and commutations for period of his ad hoc service.

11. The contention of the learned counsel for the petitioner that the pensionary benefits already
allowed if the petitioner cannot, be withdrawn has no force because the authority which can pass
an order can vary, amend and rescind, that order as has been held in The Engineer in Chief Branch
v. Jalaluddin (PLD 1992 SC 207). Moreover, the petitioner had impliedly accepted the subsequent
proposal of the respondent towards pensionary benefits and in pursuance of the same, he had
received the same pensionary benefits, as such, the principle of estoppel would rather apply on the
petitioner.

12. Even otherwise this writ petition is not maintainable as the rules cited in the order dated 5-6-
2009 by the respondent are non-statutory rules and it is settled principle of law that autonomous
bodies or organizations having non-statutory rules, the employees could not seek remedy under
Article 199 of the. Constitution of Islamic Republic of Pakistan, 1973 and in this respect reliance
is placed on Pakistan Telecommunication Co. Ltd. through Chairman v. Iqbal Nasir and others
(PLD 2011 SC 132), as such this writ petition merits dismissal also on the question of
maintainability.

13. In view of what has been discussed above, the instant writ petition stands dismissed.