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“Nothing but Statutory”: IHC holds in CAA Employees’ Case

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In a landmark judgment, Justice Sardar Ijaz Ishaq of the Islamabad High Court has ruled that all service rules which have been made in pursuance of statutory powers are “statutory” in nature; and thus amenable to writ jurisdiction. The notion that only those service rules which have been made “with approval of the government”ย are “statutory”is a misconception.

The petition had been filed by employees of Civil Aviation Authority seeking enforcement of their rights under Service Regulations of Civil Aviation Authority. These rules had been made expressly in pursuance of Section 27 of the Civil Aviation Authority Ordinance, 1982. The Authority’ counsel had challenged the maintainability of the petition on the grounds that the Authority’s Service Regulations have been held to be “non-statutory” by a number of courts.

Appraising the entire jurisprudence developed on the subject of statutory/non-statutory rules, the Court held that the requirement of “prior government approval” arise only in those case where the parent statute specifies the need for such approval. But if the parent statute empowers an authority to make rules without government approval, the such rules are also standing on statutory footing and can be enforced by the High Courts through issuance of writs.

The Court has clarified that this common misconception amongst service law practioners seems to have arisen because of an out-of-context reading of the Supreme Court’s judgment in Principal Cadet College Kohat and another v. Muhammad Shoaib Qureshi (PLD 1984 SC 170). In that case, the regulations made by the Board of Governors of Cadet College were held to be non-statutory because they had been “neither made nor approved by” the Government. In subject years, this judgment has been relied upon by lawyers to argue that prior governmantal approval of service rules is a sine qua non for making them enforceable under writ jurisdiction. However, what the proponents of this theory do not seem to realize is that “prior governamal approval” was a condition expressly laid down for promulgation of rules and regulations under West Pakistan Government Educational and Training Institution Ordinance, 1960. Therefore, in that case, the Cadet College’s “regulations” were defective to begin with. In any case, the ruling the Cadet College case cannot be applied on those cases where the parent statute does not stipulate any requirement of prior governmantal approval of service rules.

While different views on this issue can be found in numerous judgments of the superior courts, the High Court’s present view is fortified by a five member-bench Supreme Court judgment reported as Pakistan Defence Officers Housing Authority v. Lt. Col. Syed Jawaid Ahmed (2013 SCMR 1707). The crux of the issue is that if the fountainhead of the rules is a statutory power, then the rules are “nothing but statutory”.

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