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JUDGMENT SHEET
IN THE PESHAWAR HIGH COURT, PESHAWAR
JUDICIAL DEPARTMENT

W.P No. 3210-P of 2012

JUDGMENT

Date of hearing_____06.03.2014_______

Petitioner______Muhammad Ali Shah etc

Respondent _____NADRA ______

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NISAR HUSSAIN KHAN, J.- Through this

common judgment, we propose to decide two writ

petitions, bearing Nos. 3210/2012 and 3437/2012 as

common question of law and facts is involved in

both these petitions.

2. In W.P.No.3210/2012, the petitioners

have asked for the following prayer:-

Ishaq Shah,PS WP#3210/2012 (Justices Nisar Hussain Khan & Syed Afsar Shah )
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“It is therefore most humbly prayed that on

acceptance of this writ petition, the august

Court is requested to declare that :-

(i) The new service structure dated

6.3.2012 as without lawful authority,

unconstitutional, violation of Article

4, 25 and 27 of the Constitution,

violation of decision made in meeting

dated 22.2.2012 discriminatory and

disadvantageous to the service

career of the petitioner, therefore, the

same may be set aside.

(ii). The respondents may be directed to

restore the name, designation as

Deputy Director with pay scale BPS-

18 with all consequential benefits.

(iii). Any other remedy which is not

specifically prayed for that may also

be awarded in favour of petitioners.”

Almost same prayer has been made in

W.P.No.3437/2012, thus, need no reiteration.

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3. Precisely stated facts as averred in

the petitions are that petitioners joined National

Database Registration Authority (hereinafter would

be called as “NADRA”) as Assistant

Manager/System Engineer in SPS-0-6 which is

equivalent to BPS-17; that petitioners were later on

promoted on different dates to the posts of Deputy

Manager in SPS-O-7 which is equivalent to BPS-18;

that all the employees of NADRA were regularized, vide

Notification dated 17.10.2011 with immediate effect;

that recently, the post of Deputy Manager was re-

designated as Deputy Director and was placed in BPS-

18 which was followed by Notification issued by

NADRA on 23.2.2012. Likewise, the Provincial

Headquarter also issued the same re-

designations on 28.2.2012. However, on 6.3.2012 a new

service structure and BPS was issued which was totally

in violation of decision taken in meeting dated

22.3.2012 which resulted into demotion of the

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petitioners to BPS-17 while they were already working

in BPS-18(SPS-O-7) and their previous service was

taken as service in BPS-16 while they were inducted

into service in BPS-17. Consequently, their salaries

adjustment was also not done according to BPS-18 but

it was according to BPS-16 & BPS-17 which adversely

affected the petitioners’ service career, compelling them

to knock the doors of this court by filing instant

petitions for the redressal of their grievance.

4. Learned counsel for petitioners in

W.P.No.3210/2012 argued that posts of SPS-0-6 are

equivalent to BPS-17 and that of SPS-0-7 are

equivalent to BPS-18 and petitioners were appointed in

BPS-17 as Assistant Manager and later on promoted to

BPS-18 as Deputy Manager; that all the petitioners

were offered either to opt for new BPS or remain on

permanent contract basis; that petitioners opted for

BPS equivalent perks, privileges and powers under the

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existing Government BPS rules and regulations but

later on new Service Structure was introduced vide

impugned Notification dated 6.3.2012 which resulted

into their demotion to the lower scale. Learned counsel

for petitioners in W.P.No. 3437/2012 argued that there

is no post of Deputy Assistant Director in the original

formula which has wrongly been introduced later on, as

such the respondents have deceived the petitioners after

acceptance of their offer of regular service.

5. Learned counsel for the respondents

while responding to the respective arguments of learned

counsel for petitioners in both the petitions, contended

that no employee has been degraded or demoted. He

maintained that equivalency and Regularization

Notification has not been issued by the competent

authority; that the petitioners have themselves opted for

regular service, so they cannot turn around at this stage

and ask for higher scales. He maintained that in

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NADRA hierarchy, the highest post is of BPS-20 and in

case the petitioners are allowed the pay scale, they

asked for, the whole structure would be disturbed and

the General Manager will have to be given BPS-21

which is not available in the authority. He maintained

that offer form was accompanied by the equivalency

schedule which they have consciously accepted, as such

they are not entitled to question the same. However, he

conceded that the equivalency chart/schedule of the

service scales as alleged by the petitioners is not

disputed.

6. We have given our anxious

considerations to the arguments of the learned counsel

for the parties and have gone through the record with

their value assistance.

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7. The contention of the petitioners with

regard to their appointment as Assistant Manager in

SPS-0-6 equivalent to BPS-17 as well as their

promotion to the post of Deputy Manager (SPS-0-7) is

not disputed by the respondents in their comments. The

only controversy is with regard to re-designation of the

post in new service structure which according to the

petitioners has culminated into their

degradation/demotion to the lower pay scale.

8. For regularization of the employees

of NADRA, Regularization of NADRA Employees

Scheme 2012, was floated on 23rd February,

2012, vide Case No. NADRA/ HR /

Misc/25/Regularization. It was decided in

light of meeting held on 22.2.2012 the

Chairmanship of Minister for Interior, to re-designate

the services of the NADRA employees to bring them in

line with designations of other Government

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Departments. In view of new service structure, it was

suggested that the post of Manager shall be re-

designated as Additional Director(BPS-18), Deputy

Manager to be re-designated as Deputy Director also

BPS-18 while Assistant Manager to be called as

Assistant Director in BPS-17. In Regulation 4(b)(1) &

(2) the employees of NADRA were offered, either to opt

for BPS equivalent perks, privileges and powers under

the existing Government BPS rules and regulations or

to avail special NADRA package scales (SNPS), in

which contract employees serving in NADRA at the

time of regularization scheme were offered open

ended (Permanent Regularized Contract) under SNPS

scheme on the same terms and conditions of their

existing contract. It was followed by Notification No.

NADRA/HR/OR/49/Re-designation dated 23.2.2012, in

which the current and new designations were provided.

According to this notification too, the post of Manager

was re-designated as Additional Director, Deputy

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Manager as Deputy Director and Assistant Manager as

Assistant Director. To supplement the same, another

Notification of re-designation, vide No. PHQ/

NADRA/Policy/14/HR, dated 28.2.2012 was issued

from the Provincial Headquarter which also contained

the same structure, whereby all the concerned

authorities were intimated to mention the new

designations for all purposes in future correspondence.

It is pertinent to mention at this juncture that according

to Annexure-B, all NADRA employees i.e. category 0-1

to 0-10 and T-1 to T-10 were regularized pursuant to

the order of Minister of Interior, vide Notification No.

NADRA //HR/OR/49/ Regularization, dated 17th

October, 2011. According to petitioners they had

opted for Government Pay Scales, Rules and

Regularization.

9. It is strange that when earlier

regularization order was passed on 17.10.2011 then

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what necessitated to issue another Notification No.

NADRA /HR/Regularization /27, dated 6th March, 2012

qua equivalency of designations/pay scales. It is this

notification and particularly the equivalency table

which according to the petitioners have offended their

service career. As per this schedule of clarification of

designation/pay scales, earlier post of Assistant

Manager has been equated with Deputy Assistant

Director and has been placed in BPS-16. As discussed

earlier, none of the proposals contained such posts of

Deputy Assistant Director nor it has been placed in

BPS-16. According to regularization of NADRA

Employees Scheme 2012, formulated on 23.2.2012 and

issued by the Chairman NADRA, post of Assistant

Manager was re-designated as Assistant Director and

was placed in BPS-17 while the post of Senior

Supervisor was re-designated as Superintendent in

BPS-16. The respondents have failed to justify their

deviation from earlier scheme particularly when they

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have not disputed the equivalency formula of SPS-0-6

to be equivalent to BPS-17. For further clarification,

we have noted that the petitioners alleged their original

appointment as Assistant Manager in SPS-0-6 which

was equivalent to BPS-17. This factum has been

conceded by the respondents in their comments as well

as learned counsel for the respondents at the bar. In

case the new formula is validated it would certainly

adversely affect the petitioners’ service career as their

original appointment shall be treated in BPS-16.

10. It is settled law that a right accrued to a

person or for that matter to an employee, cannot be

taken away by a notification giving it a retrospective

effect. The respondents have also not assigned any

reason for deviation from the original scheme nor have

justified the same for creation of a new post of Deputy

Assistant Director of BPS-16.

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11. The National Database & Registration

Authority is the creation of a statute established under

Section 3 of the NADRA Ordinance, 2000. Section 35

of the Ordinance empowers the authority to appoint

Registration Officers, members of its staff, experts,

consultants, advisers and other officers and

employees on such terms and conditions as it may deem

fit in order to carry out the purposes of this Ordinance .

While Section 44 empowers the Federal Government to

make Rules for carrying out the purpose of Ordinance

and Section 45 empowers the Authority to make

regulations by Notification for carrying out its

functions under the Ordinance and any other matter.

Sub-Clause (2) of Section 45 clarifies that such

regulations may provide for appointment of officers

motioned in Section 35. The authority, pursuant to

Section 35, 37 and 45 notified its Regulations on

1.11.2002 vide SRO 118(KE)/2002. According to

Regulation No.3 of the Regulations, employees of the

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authority are to be governed by these regulations with

regard to their terms and conditions of service.

Regulation No.4 of the Regulations empowers the

authority to sanction, create, re-designate or abolish

any post, discipline or cadre with the authority as it may

deem fit. Thus Authority being a statutory body,

regulated by its own Rules is amenable to writ

jurisdiction of the High Court.

12. The authority on 21.6.2003 issued a

Notification No. F&A/ NADRA/HQ/2002/2002

providing equivalency table of the pay scales of NADRA

employees and that of the Government Pay Scales. The

said Notification is reproduced in extenso as below:-

“No.F&A/ NADRA/HQ/2002-2003. In

pursuance of the decision of the Authority,

following further amendment in the

Appendix-4 to Regulation 49(2) & (3) to

NADRA Employees (Service) Regulations,

2002, notified vide S.R.O. 118(KE)/2002,

dated 1st November, 2002 has been approved

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with immediate effect and until further

orders:-

Management Technical Equivalent Basic

Scale pay scale
Scale

0-10 T-10 B-20

0-9 T-9 B-19
0-8 T-8 B-18
0-6 & 0-7 T-4 to T-7 B-17
0-5 T-3 B-11
0-4 T-2 B-11
0-2 & 0-3 T-1 B-7
0-1 - B-1

13. According to this table, 0-6 and 0-7

alongwith T-4 to T-7 have been shown equivalent to

BPS-17 and 0-8 and T-8 have been made equivalent to

BPS-18. The authority can issue Notification for the

benefit of subjects but in no way can take away the right

already accrued in their favour on the principle of locus

penetentiae merely by issuing a notification. The

authority could not have gone beyond the table of

equivalency provided in the Notification dated

21.6.2003 referred herein above and could not have

placed the employees of SPS-0-6 in BPS-16 instead of

BPS-17.

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13. In view of the above discussion, we by

allowing both the petitions, set aside the impugned

Notification No.NADRA/HR/Regulations/27, dated 6th

March, 2012 to the extent of equivalency table and

direct the respondents to re-designate their pay scales as

mentioned in the Notification No. F&A/NADRA/HQ/

2002-2003, dated 21.6.2003 with all consequential

benefits by treating their original appointments of 0-6

in BPS-17, as discussed earlier.

JUDGE

Announced on
6th March,2014 JUDGE

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