ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

Constitutional Petition NO. D-2621 of 2009

Date Order with signature of Judge

Before: Mr. Justice Gulzar Ahmed

Mr. Justice Shahid Anwar Bajwa

Date of hearing 30.4.2010

M/s. A.T Khan and Muhammad Aslam Khan Advocates

for the Petitioner

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GULZAR AHMED, J: By this petition the petitioner has prayed for granting him move-over from PG-10 to PG-11 w.e.f. 01.12.1990 and to pay all arrears of move over and pension etc.

Learned Counsel for the petitioner has contended that the petitioner was employed with the Civil Aviation Department, Government of Pakistan. By section 14 of the Pakistan Civil Aviation Authority Ordinance, 1982 the service of the petitioner was transferred from the Department to the Authority. He contended that though the petitioner became employee of the Authority but was discriminated in giving of move-over as one Adam Khan Ex-General Manager of the Authority was granted move-over but the petitioner was refused. He has further contended that the service regulations of the Civil Aviation Authority are statutory.

We have considered the submissions made by the learned Counsel. It appears that the petitioner was an employee of Civil Aviation Department. Through Pakistan Civil Aviation Authority Ordinance, 1982 all assets and liabilities of the Civil Aviation Department were vested in the Authority and in terms of section 14 of the Ordinance, every civil servant employed in the Department, immediately before establishment of the Authority, was transferred to Authority and became the employee of the Authority on terms and conditions as may be prescribed by the regulations. The petitioner seems to have accepted his transfer with the Authority and was granted promotions and ultimately reached the post of General Manager-Air Traffic Services in PG-10. Petitioner appears to have retired on attaining superannuation on 02.7.1997. It appears that one Adam Khan Ex- General Manager of the Authority has requested for grant of move-over and his matter went up to the Hon'ble Supreme Court in CPLA No. 32/1998 in which an order dated 25.6.1998 was passed whereby on statement made by the D.A.G. that the Authority has moved the Board of Civil Aviation Authority in connection to the grant of move over to the employees of Civil Aviation Authority and in case the proposal is accepted, benefit of such decision regarding move-over will be extended to Adam Khan. It appears that the petitioner requested for grant of move-over to him also but his request was declined by the Civil Aviation Authority by its letter dated 10.9.2003 stating that move-over policy applies to employees who were in service on or after 15.1.2000. The petitioner appears to have filed an appeal before the Federal Service Tribunal which through order dated 28.8.2009 was abated on account of the judgment of Hon'ble Supreme Court in Mobinus Salam case (PLD 2006 SC 602).

Although it is contended by the learned Counsel for the petitioner that Civil Aviation Authority Regulations are statutory but in Civil Appeal No. 2240/2008 (MUHAMMAD NAWAZ V/S CIVIL AVIATION AUTHORITY & OTHERS) the Hon'ble Supreme Court of Pakistan has held that the Civil Aviation Authority Regulations are not statutory. In this view of the matter, the rule laid down by the Hon'ble Supreme Court of Pakistan in its judgment dated 12.3.2010 in Civil Appeal No. 172-K of 2009 (PAKISTAN INTERNATIONAL AIRLINE CORPORATION V/S TANVEER-UR-RAHMAN) will become applicable which lays down that where the terms and conditions of service are not regulated by statutory rules, the principle of master and servant will apply and constitutional petition will not be maintainable. Learned Counsel was unable to distinguish the case of the petitioner from the two referred cases noted above.

For the forgoing reasons through a short order dated 30.4.2010, we have dismissed this petition. The petitioner may however, avail remedy in accordance with law.

J U D G E