 
 
IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION) 
 
 
 
PRESENT: 
MR. JUSTICE ANWAR ZAHEER JAMALI, HCJ 
MR. JUSTICE EJAZ AFZAL KHAN 
MR. JUSTICE MUSHIR ALAM 
 
CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010  
AND 
CIVIL PETITION NO.305 OF 2010 
AND 
CIVIL APPEALS NO. 962, 1073, 1074, 1085 TO 1087,  
1135, 1139 OF 2011 & 799 OF 2012,  
AND 
CIVIL PETITIONS NO.615, 819, 971, 1361, 1708,  
1762, 2229 OF 2010 & 887 OF 2011 & 44, 710,  
1128, 1129, 1146 & 1147 OF 2012 & 
CIVIL PETITION NO.965/2014 
AND 
CIVIL APPEAL NO.23/2014. 
 
Shafique Ahmed Khan, etc. 
 
 
…Appellants/Petitioners 
 
VERSUS 
 
NESCOM through its Chairman, Islamabad, etc. …Respondents 
 
For the appellants/ 
Petitioners: 
Raja Muhammad Asghar, ASC.  
(CAs-654 to 656 of 2010) 
 
 
Nemo. 
(in CA-657/10, CPs-819 & 2229 /10, CPs. 971/10, 887/11, 
1128,1129,1146, 1147/12)  
 
Mr. Ahmer Bilal Soofi, ASC,  
(in CAs-658-659/11,  330/10,  44/12, 23/14 & CP-965/14) 
 
Hafiz S.A Rehman, Sr. ASC (CA-735/10) 
 
Mr. Zaheer Bashir Ansari, ASC. 
(in CA-1243-1259/10) 
 
Mr. Abdul Rahim Bhatti, ASC  
(in CAs-962, 1073, 1139/11 & 799/12) 
CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 
 
2
 
Mr. M. Shoaib Shaheen, ASC.  
(in CA-1074/11 & CP-1361/10) 
 
Kh. Azhar Rasheed, ASC.(in CAs-1085-1087/11) 
 
Mr. Muhammad Ilyas Mian, ASC(in CA-
1135/2011) 
 
Nemo. (in CP-615/10) 
Mr. Abdur Rehman Siddiqui, ASC (in CP 
1708/10) 
 
In person.  
(CPs-305 /10) 
For the 
respondents:  
Mr. Ahmer Bilal Soofi, ASC. (CAs-654-657/10, 962, 
1073, 1074, 1085-1087, 1135 &1139/11, 799/12  
and CPs-971/10, 887/11, 710, 1128-1129, 1146-1147/12, 
1708/10, CA 735/10 and CA 1243-1259/10) 
 
Muhammad Ilyas Mian, ASC. (in CA-658-
660/10) 
 
Mr. Shoaib Shaheen, ASC.  
(CP-615 & 819/10) 
 
Nemo. 
(in CPs-1361 & 1708/10) 
 
Hafiz S.A Rehman, Sr. ASC (in CP-965/14) 
 
Nemo. (in CP-887/11 & 44/12)  
 
Nemo. (in CP-2229/10 & CA-23/14) 
Mr. Abdul Raheem Bhatti, ASC (in CA 330/10) 
For PAEC: 
Mr. Zubair Abbas, Sr. Law Officer. 
Mr. Ather Abbas JE. 
Mr. Suhail Akram Malik, Sr. Law Officer. 
Commander Retd. Muhammad Hussain 
Shahbaz, Legal Directorate SPD. 
Ms. Alvina Alvi, NCA 
Mian Sami ud Din, NCA 
For the Federation: 
Mr. Sohail Mehmood, DAG. 
Date of hearing: 
02.11.2015 (Reserved Judgment) 
 
J U D G M E N T  
 
 
EJAZ AFZAL KHAN, J.- The only controversy articulated at the 
bar by the learned ASCs for the parties is whether the Rules framed 
under Section 15 of the National Command Authority Act, 2010 
(hereinafter referred to as the Act) are statutory or otherwise. Mr. 
Ahmer Bilal Soofi, learned ASC appearing on behalf of the National 
CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 
 
3
Command Authority contended that the Rules framed under Section 
15 of the Act cannot be treated as statutory as they have not been 
approved by the Federal Government. There are as many as two 
judgments of this Court rendered in the cases Rector National 
University of Science and Technology (NUST) Islamabad and others. 
Vs. Driver Muhammad Akhtar (Civil Appeal No.495 of 2010 decided 
on 28th April, 2011) and Muhammad Zubair and others Vs. Federation 
of Pakistan thr. Secretary M/o Defence and others (Civil Petition 
No.1563/2013 decided on 26.2.2013) holding them statutory but they 
are essentially per incuriam inasmuch as the judgments interpreting 
the provisions of other enactments which are in pari materia with 
Section 15 of the Act have not been considered. Such precedents, 
the learned ASC contended, are also sub silentio inasmuch as they 
have not been fully argued and the judgments interpreting the 
provisions of the other enactments which are in pari materia with 
Section 15 of the Act have not been cited.  
2. 
 
The learned ASC by referring to the cases of Muhammad 
Tariq Badr and another. Vs. National Bank of Pakistan and another 
(2013 SCMR 314), Zarai Taraqiati Bank Limited. Vs. Said Rehman (2013 
SCMR 642), Pakistan Defence Officers Housing Authority and others. 
Versus. Lt. Col. Syed Jawaid Ahmed (2013 SCMR 1707), Shoua Junejo. 
Versus. PIA (2012 SCMR 1681), Muhammad Nawaz. Versus. Civil 
Aviation 
Authority 
and 
others 
(2011 
SCMR 
523), 
Pakistan 
Telecommunication Co. Ltd. through Chairman. Versus. Iqbal Nasir 
(PLD 2011 SC 132), Abdul Rashid Khan. Versus. Registrar, Bahauddin 
Zakaria University, Multan (2011 SCMR 944), Pakistan International 
Airline Corporation. Versus. Tanweer-ur-Rehman, (PLD 2010 SC 676), 
State Bank of Pakistan. Versus. Muhammad Shafi (2010 SCMR 1994), 
CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 
 
4
Asad Bashir. Versus. Chairman Board of Intermediate and Secondary 
Education, Lahore and 2 others (2006 PLC (CS) 110), Pakistan Red 
Crescent Society. Versus. Syed Nazir Gillani (PLD 2005 SC 806), Zia 
Ghafoor Pirach. Versus. Chairman, Board of Intermediate and 
Secondary Education, Rawalpindi (2004 SCMR 35), Muhammad Ishaq 
Waheed Butt. Versus. Chairman, Bank of Punjab (2003 PLC (C.S.) 963), 
Pakistan International Airlines Corporation (PIAC). Versus. Nasir Jamal 
Malik (2001 SCMR 934), Ijaz Hussain Suleri. Versus. The Registrar and 
another, (1999 SCMR 2381), Chairman, Pakistan Council of Scientific 
and Industrial Research, Islamabad. Versus. Khalida Razi (1995 SCMR 
698), Chairman WAPDA. Vs. Jameel Ahmed (1993 SCMR 346), 
Raziuddin. Versus. Chairman, PIA CORPN. (PLD 1992 SC 531), Karachi 
Development Authority. Versus. Wali Ahmed Khan (1991 SCMR 2434), 
Abdul Ghaffar. Versus. WAPDA (1990 SCMR 1462), Sindh Road 
Transport Corporation Chairman. Versus. Muhammad Ali G. Khohar 
(1990 SCMR 1404), Principal Cadet College. Versus. Muhammad 
Shoaib Qureshi (PLD 1984 SC 170), Anwar Hussain. Versus. ADBP (PLD 
1984 SC 194), Muhammad Yusuf Shah. Versus. Pakistan International 
Airlines Corporation (PLD 1981 SC 224) and R.T.H. Janjua. Versus. 
National Shipping Corporation (PLD 1974 SC 146); contended that 
jurisdiction of the High Court cannot be invoked under Article 199 of 
the Constitution of Islamic Republic of Pakistan where the Rules are 
non-statutory. Learned ASC by referring to a two-member bench 
judgment rendered in the case of Muhammad Nawaz. Vs. Civil 
Aviation Authority and others (2011 SCMR 523) contended that Rules 
made without the intervention and approval of the Federal 
Government cannot be termed as statutory, therefore, their violation 
is not amenable to the constitutional jurisdiction of the High Court. 
CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 
 
5
The learned ASC by referring to another two-member Bench 
judgment rendered in the case of State Bank of Pakistan. Vs. 
Muhammad Shafi (2010 SCMR 1994) contended that where by virtue 
of an amendment in Section 54 of the State Bank of Pakistan Act, 
1956, the words “subject to the approval of the Federal Government 
were omitted” the Rules framed after the said amendment in the 
Section were not treated as statutory. The learned ASC by referring to 
a three-member Bench judgment rendered in the case of Pakistan 
Red Crescent Society. Vs. Syed Nazir Gillani (PLD 2005 SC 806) 
contended that the Rules framed by the Red Crescent Society under 
the rulemaking  powers without the intervention of the Federal 
Government were held to be non-statutory, therefore, their violation 
was not amenable to the writ jurisdiction of the High Court. The 
learned ASC by referring to a three-member Bench judgment 
rendered in the case of Sindh Road Transport Corporation Chairman 
versus Muhammad Ali G. Khokhar (1990 SCMR 1404) contended that 
Sindh Road Transport Corporation Service Rules 1971 were treated as 
non-statutory as they were not approved by the Authority delegating 
such power notwithstanding language used in the rulemaking  
provision of the Ordinance was almost similar to the language used 
in Section 15 of the Act, therefore, the judgments rendered in the 
cases of Rector National University of Science and Technology (NUST) 
Islamabad 
and 
others. 
Vs. 
Driver 
Muhammad 
Akhtar 
and 
Muhammad Zubair and others Vs. Federation of Pakistan thr. 
Secretary M/o Defence and others (Supra) have no binding or even 
persuasive force. The judgments rendered earlier on similar 
proposition, the learned ASC maintained, could not be ignored by 
subsequent benches with the same number of Judges. The learned 
CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 
 
6
ASC to support his contention placed reliance on the cases of Pir 
Bakhsh represented by his legal heirs and others Vs. The Chairman, 
Allotment Committee and others (PLD 1987 SC. 145),   Multiline 
Associates Vs. Ardeshir Cowasjee and two others (PLD 1995 SC 423) 
and Chaudhry Muhammad Saleem Vs. Fazal Ahmad and two others  
(1997 SCMR 315). The learned ASC next contended that while 
enacting Section 15 of the Act, the legislature was aware of the 
dicta and trend of the Supreme Court interpreting the provision of 
different enactments which are in pari materia with Section 15 of the 
Act, otherwise it would have phrased the section differently. Restraint 
on the part of the Government, the learned ASC argued, to gazette 
the Rules in terms of Section 20A of the General Clauses Act would 
also show as to what status the legislature intended to assign to the 
Rules. Approval of such Rules, the learned ASC contended, by the 
Federal Government to give them statutory attire in view of Rule 14 
of the Rules of Business is also a must, therefore, in the absence of 
such approval they cannot be treated as statutory. The scheme of 
the Act, the learned ASC maintained, also shows that the legislature 
intended to make it autonomous on all accounts. Sections 9 and 21 
of the Act, the learned ASC maintained, further show that the 
legislature wanted to make the orders of the Authority immune from 
justiciability. The learned ASC while giving finishing touch to his 
submissions contended that the purpose behind conferring full 
autonomy on NCA was to enable it to have effective control over its 
activities and maintain secrecy of its sensitive programmes in line with 
Pakistan’s 
International 
Legal 
Obligation, 
in 
particular 
UNSC 
Resolution 1540, which could not have been achieved otherwise.    
CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 
 
7
3. 
 
As against that learned ASCs appearing from the other 
side contended that when it has been held in the cases of Rector 
National University of Science and Technology (NUST) Islamabad and 
others. Vs. Driver Muhammad Akhtar  and Muhammad Zubair and 
others Vs. Federation of Pakistan thr. Secretary M/o Defence and 
others (supra) that Rules framed under Section 15 of the National 
Command Authority Act, 2010 are statutory, the controversy has 
been set at rest, therefore, another exercise to determine their status 
is not called for. The learned ASC by referring to Section 3 of the Act 
contended that where the Chairman of the Authority is the Prime 
Minister and its other Members include, besides Minister for Foreign 
Affairs, Minister for Defence, Minister for Finance, Minister for Interior, 
Chairman Joint Chiefs of Staff Committee, Chief of Army Staff, Chief 
of Naval Staff and Chief of Air Staff, approval of the Rules by any 
other Ministry is hardly called for. The learned ASC next contended 
that when the provision of this Act by virtue of its provision contained 
in Section 21 has been given overriding effect over any other law for 
the time being in force in general and the Civil Servants Act, 1973, 
Pakistan Atomic Energy Commission Ordinance, 1965, Pakistan 
Space and Upper Administration Commission Ordinance, 1981, or 
any other law or Rules made thereunder in particular, it has to reign 
supreme. He then contended that when the very purpose of making 
Rules is to carry out the purposes of the Act it would be a 
contradiction in terms to shear them of statutory status. The learned 
ASC next contended that publication of a statutory instrument or a 
notification in the official gazette is not mandatory in every case, 
therefore, its non-compliance cannot rob the instrument or the 
notification of its statutory force. Reliance was placed on the cases 
CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 
 
8
of Saghir Ahmed through legal heirs Vs. Province of Punjab through 
Secretary, Housing and Physical Planning Lahore and others (PLD 
2004 SC 261). The learned ASCs lastly contended that where the 
Rules prescribe the terms and conditions of service and provide 
safeguards against their violation, they are statutory by all means 
and have to be treated as such.  
4. 
 
We have anxiously considered the submissions of the 
learned ASCs for the parties, their possible import, implication and 
amplitude and have also gone through the statutes and the case 
law cited at the bar.  
5. 
 
Before we appreciate the arguments of the learned 
ASCs for the parties and answer the questions so raised, it is 
worthwhile to see the object of the National Command Authority 
Act, 2010 which is fully enunciated in its preamble and thus reads as 
under :-  
 
“THE NATIONAL COMMAND AUTHORITY ACT, 2010 
 ACT NO.V OF 2010 
An Act to provide for the constitution and 
establishment of National Command Authority 
WHEREAS, it is necessary and expedient to 
establish an Authority for complete command 
and 
control 
over 
research, 
development, 
production and use of nuclear and space tec 
hnologies and other related applications in 
various fields and to provide for the safety and 
security of all personnel, facilities, information, 
installations or organizations and other activities 
or matters connected therewith or ancillary 
thereto.  
It is hereby enacted as follows:- 
 
1.     Short title, commencement, application and 
extent.-  
(1) This Act may be called the National 
Command Authority Act, 2010. 
CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 
 
9
(2) 
This Act shall come into force at once and 
shall be deemed to have taken effect on the 13th 
December, 2007.  
(3) 
It extends to the whole of Pakistan and 
shall apply to any person who commits any 
offence under this Act, wherever, he may be. 
 
 
Section 2 of the Act defines the key expressions of the Act 
which reads as below :-  
2. 
Definitions.- In this Act, unless there is 
anything repugnant in the subject or context,- 
(a) 
“Authority” 
means 
the 
National 
Command 
Authority 
established 
under Section 3 of this Act; 
(b) 
“Chairman” 
means 
the 
Prime 
Minister of the Islamic Republic of 
Pakistan; 
(c) 
“employee” 
means 
any 
official, 
employee 
etc. 
whether 
in 
the 
service of the Authority or the 
Strategic Organizations, serving or 
retired 
and 
includes 
those 
on 
deputation or secondment within 
Pakistan 
or 
abroad, 
and 
those 
studying abroad; 
(d) 
“Strategic Organization” means such 
body notified by the Authority to be 
a 
Strategic 
Organization 
and 
includes Pakistan Atomic Energy 
Commission Dr. A.Q. Khan Research 
Laboratories (KRL) and Space and 
Upper 
Atmosphere 
Research 
Commission; and  
(e) 
“prescribed” means prescribed by 
Rules under the Act. 
  
6. 
 
Section 3 of the Act deals with constitution and 
establishment of the Authority which reads as under :-  
“The Chairman of the Authority shall be the Prime 
Minister of Pakistan. 
 
(4) 
The other members of the Authority shall 
be the,- 
 
CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 
 
10
 
(a) 
Minister for Foreign Affairs 
 
(b) 
Minister for Defence 
 
(c) 
Minister for Finance 
 
(d) 
Minister for Interior 
(e) 
Chairman 
Joint 
Chiefs 
of 
Staff 
Committee; 
 
(f) 
Chief of Army Staff; 
 
(g) 
Chief of Naval Staff; and 
 
(h) 
Chief of Air Staff.” 
 
 
7. 
 
Section 7 deals with the powers and functions of the 
Authority which reads as under :-  
“Powers and functions of the Authority.- The Authority 
shall have the powers to perform all such functions that 
are necessary to implement the objects and purposes 
of this Act which include, without being limited, to the 
following, namely:- 
 
(a) 
to exercise complete command and control 
over all nuclear and space related technologies, 
systems and matters; 
(b) 
to supervise, manage and co-ordinate the 
administration, management, control and audit 
of budget, programmes and projects etc., of the 
Strategic Organizations; 
(c) 
to authorize undertaking of specialized scientific 
and technological work; 
(d) 
to prescribe specific terms and conditions of the 
employees 
including 
but 
not 
limited 
to, 
appointments, removals, promotions, transfers, 
integrity and reliability assessment and other 
related matters; 
(e) 
to create classification amongst employees 
based on the sensitivity of the functions, nature of 
assignment, security considerations and in the 
interest of security of Pakistan; 
(f) 
to take measures regarding employees in 
respect of their movement, communication, 
privacy, assembly or association, in the public 
interest or in the interest of integrity, security or 
defence of Pakistan or friendly relations with 
foreign states and public order; 
(g) 
to place such restrictions and limitation on the 
employees that are necessary in the interest of 
the confidentiality of the functions, assignments, 
CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 
 
11
jobs 
etc., 
being 
performed 
by 
the 
said 
employees or the class of employees; 
(h) 
to 
ensure 
security 
and 
safety 
of 
nuclear 
establishments, 
nuclear 
materials 
and 
to 
safeguard 
all 
information 
and 
technology 
relating to said matters; 
(i) 
to ensure security and safety of establishments 
and facilities etc. of the Strategic Organizations; 
(j) 
to render security and ensure safety of serving or 
retired employees or any other person; 
(k) 
authorize possession and use of firearms to 
security force personnel who are in the service of 
the Authority; 
(l) 
to take actions, issue appropriate orders and 
instructions as it may deem fit or in order to 
advance 
or 
achieve 
the 
purposes 
of 
its 
establishment and in order to facilitate the 
performance of actions or functions that are 
incidental and ancillary thereto; 
(m) 
take implementing measures and assist the 
Federal Government pursuant to any obligation 
on Pakistan relating to non-proliferation, safety, 
security, accidents, terrorism and any other 
related matters;  
(n) 
to take measures in respect of the movement, 
communication and interaction etc., of any 
employee or person who is suspected of an 
attempt to commit an offence under this Act; 
(o) 
to carry out the functions of fact finding, inquiry, 
investigation prosecution etc., of offences under 
the Act and to that end authorize any official of 
the Authority or entrust any or all of the said 
functions to any official outside the Authority 
partly or fully, as the case may be;  
(p) 
to declare application of any other existing law, 
provisions of law, Rules, Regulations etc., to its 
employees, 
procedures, 
establishment, 
sites, 
building, lands, assets, equipments, partly or fully, 
as the case may be;  
(q) 
to acquire property movable or immovable in its 
own name or in the name of a designated 
official or a Strategic Organization; and  
(r) 
to enter into agreements, contracts and other 
like transactions;  
 
 
CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 
 
12
8. 
 
Section 9 of the Act, deals with the employees of the 
Authority and those who shall be deemed to be its employees, their 
terms and conditions of services and how shall they be categorized. 
It thus reads as under:-  
 
“9. 
Employees of Authority.- (1) Notwithstanding 
anything contained in any other law, judgment of 
any court or tribunal for the time being in force or 
any procedure etc., hitherto followed by the 
Authority, all employees and officials working in the 
Strategic Organizations, upon notification of the 
said Organizations under Section 8, shall with 
immediate 
effect 
be 
deemed 
to 
be 
the 
employees in the service of the Authority:   
 
 
Provided that no employee shall be treated on 
terms and conditions less favorable to the ones which 
he was availing as per his terms and conditions of 
employment.  
 
(2) 
The Authority shall regulate all the matters 
relating to terms and conditions of the service of the 
employees in the service of the Authority, including 
their appointment and removal, promotion, transfer, 
integrity assessment, reliability, security clearance, and 
other related matters: 
 
 
Provided that the employees working in the 
service of the Authority who are subject to the Pakistan 
Army Act, 1952 (XXXIX of 1952), Pakistan Air Force Act, 
1953 (VI of 1953) and Pakistan Navy Ordinance 1963 
(XXXV of 1963), shall also be governed by this Act and 
Rules made thereunder: 
 
 
Provided further that the Pakistan Army Act, 1952 
(XXXIX of 1952) shall be made applicable in respect of 
employees in the service of the Authority to whom 
Section 2 of the said Act applies or employees in the 
service of the Authority for whom a notification under 
Section 8 of the aforesaid Act is issued.  
(3) 
The Authority shall categorize the nature of 
service of the employees the basis of the sensitivity of 
the functions and then shall frame Rules, criterion, 
assessment basis for each set of employees and no 
employee shall have a vested right for any post, 
assignment, 
emoluments, 
promotion, 
privileges, 
transfer, deputation etc.”  
 
 
 
CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 
 
13
 
Section 15 of the Act deals with making Rules for carrying out 
the purposes of the Act which reads as under :-      
 
“15. Power to make Rules.- The Authority may 
make Rules for carrying out the objectives of this 
Act.” 
 
9. 
 
A glance at the preamble shows that the Act has been 
passed to provide for the constitution and establishment of the 
National Command Authority for complete command and control 
over research, development, production and use of nuclear and 
space technologies and other related obligations in various fields 
and to provide for the safety and security of all personnel, facilities, 
information, installations or Organizations and other activities or 
matters connected therewith or ancillary thereto. Section 2 of the 
Act besides defining Authority etc., also defines the expression 
‘prescribed’ which means prescribed by Rules under the Act. Section 
3 deals with the Constitution and establishment of the Authority. 
Section 7 deals with the powers and functions of the Authority, 
Section 9 deals with the terms and conditions of the employees of 
the Authority and those who shall be deemed to be its employees, 
while Section 15 of the Act deals with the power to make Rules. The 
Rules are made for carrying out the objectives of the Act. The 
legislature in its wisdom conferred rule making power on the 
Authority. There is not even a single syllable in the Section alluding to 
the intervention or the approval of the Federal Government and 
rightly so because here in this case the legislature did not provide for 
two sets of Rules; one for external and the other for internal 
management. The legislature in its wisdom provided for one set of 
Rules encompassing all the ins and outs of the Authority as are 
outlined by Sections 7, 8, 9 and 15 of the Act. Since all the matters 
CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 
 
14
they deal with are of crucial importance, no division or distinction of 
external or internal management has been made. The rule making 
power in this case is exercised by the Authority consisting of 
Chairman and 8 other Members enumerated in Section 3 of the Act. 
It is the Authority which prescribes specific terms and conditions of 
the employees including but not limited to, appointments, removal, 
promotions, transfers, integrity and reliability and other related 
matters under Section 8 of the Act. It is also the Authority that creates 
classification among the employees based on the sensitivity of the 
functions, nature of assignments, security consideration and in the 
interest of security of Pakistan and takes measures regarding 
employees in respect of their movement, communication, privacy, 
assembly or association in the public interest or in the interest of 
integrity, security or defence of Pakistan or friendly relations with 
foreign States and public order. All these functions being envisioned 
by Sections 7 and 9 are essentially statutory. The Rules prescribing 
these functions cannot be short of statutory. They thus do not need 
intervention or approval of the Federal Government as the Authority 
itself is the Federal Government incarnate if we see it in the context 
of the personages adorning it. Not only that the Authority also 
regulates the matters relating to the terms and conditions of service 
of the employees in the service of the Authority including their 
appointment and removal, promotion, transfer, integrity assessment, 
reliability, security clearance and other related matters under sub-
Section 1 and 2 of Section 9 of the Act. The framework for doing all 
this is provided by the Rules. The Rules partaking so much of the 
statute cannot be non-statutory by any interpretation of the word. It 
 
CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 
 
15
was against this background that this Court in the case of 
Muhammad Zubair and others Vs. Federation of Pakistan thr. 
Secretary M/o Defence and others (supra) while dealing with the 
Rules framed under Sections 7, 9 and 15 of the Act held as under :-  
“5.  We do not find ourselves in agreement with the 
ground on which the petitioners were non-suited 
namely, that their constitution petition was not 
maintainable as the Authority did not have statutory 
Rules. The petitioners were not seeking violation of 
their terms and conditions of service. Their petition 
was in the nature of quo warranto questioning 
reemployment of the respondents. Be that as it may, 
we have noted that the National Command Authority 
Employees Service Rules 2011 are statutory in nature 
as they have been framed by the Authority in 
exercise of its powers conferred upon it under Section 
7 read with Section 9 (2) and further read with Section 
15 of the National Command Authority Act, 2010. 
Such Rules making powers have been exclusively 
conferred upon the Authority and are not subject to 
approval of the Federal Government or any other 
authority. The Rules expressly make provision for 
reemployment of its retired officers in exceptional 
circumstances. Such power was conferred on the 
Authority in view of the nature of the work that is 
carried out by the different Organizations under the 
Authority, 
involving 
research 
by 
scientists, 
the 
utilization of whose expertise or experience may be 
useful or vital for any project or task on which they 
were working prior to retirement. Neither we are 
called upon nor shall we endeavor to examine the 
work 
that 
the 
respondents 
are 
engaged 
in 
Additionally the direction given by this Court in Suo 
Motu No. 24 of 2010 essentially related to civil servants 
and the same also did not completely prohibit 
reemployment.”  
CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 
 
16
 
In the case of Rector National University of Science and 
Technology (NUST) Islamabad and others Vs. Driver Muhammad 
Akhtar rendered in Civil Appeal No.495 of 2010 decided on 
28.04.2011, this Court held as under:- 
“4. 
The learned counsel produced a copy of 
the statutes called the National University of 
Sciences 
and 
Technology 
(Enforcement 
of 
Academic, 
Service, 
and 
Financial 
Matters) 
Statutes, 2005, made by the board of Governors 
in exercise of the powers conferred upon it by 
sub-section 2 of section 21 of the University of 
Sciences and Technology Act, 1997, in order to 
“regulate the creations of institutes and faculties 
etc and for enforcement of academic, service, 
appointment, discipline and financial matters”. 
Section 21 of the Act provides for making of 
statutes to regulate, inter alia, service, pension 
and fringe benefits and other terms and 
conditions of services of the employees of the 
University. Sub-section 2 provides the procedure 
that “Draft of the statutes shall be proposed by 
the Executive Committee for approval by the 
Board which may approve them or refer them 
back for reconsideration”. Sub-section 3 further 
mandates that “no statute shall be valid until it 
has been approved by the Board/Chancellor.” 
Section 21 neither requires approval of the 
Government of the proposed statues or its 
notification. It prescribes its own procedure. The 
draft statutes become enforceable upon its 
approval by the Board of Governors. The case of 
Chairman, State Life Insurance Corporation v 
Hamayun Irfan (ibid) is clearly distinguishable as 
there the Regulation making power conferred by 
the statute on the Corporation required the 
CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 
 
17
previous approval of the Central Government, 
followed by notification of the Regulation in the 
official 
gazette. 
The 
Court 
was, 
therefore, 
interpreting the particular rule making power, 
while holding and as a matter of fact such 
requirements 
were 
fulfilled 
and 
that 
the 
Regulations were statutory. We have no doubt in 
our minds that the National University of Sciences 
and Technology (Enforcement of Academic, 
Service, and Financial Matters) Statutes, 2005, are 
statutory in nature as they were framed in 
accordance with the procedure prescribed in 
the statute. Since this was the only ground on 
which 
leave 
was 
granted, the 
appeal 
is 
dismissed”.    
 
10. 
 
A parallel was drawn between the Rules framed under 
Section 5 of the Pakistan Red Crescent Society Act, 1920 and the 
Rules framed under Section 15 of the Act on the strength of the 
judgment rendered in the case of Pakistan Red Crescent Society 
(supra) but this parallel, to say the least, is misconceived on the face 
of it. The reason is that Pakistan Red Crescent Society has its genesis 
in Geneva Convention which was initially held on October 26th 1863 
followed by the Hague Convention. The Society was universally 
recognized for taking care of the sick and wounded without any 
hindrance. Power was given to the managing body under Section 5 
of the Red Crescent Society Act to make Rules for the management, 
control and procedure of the society but what was the status of the 
society and how far could it be treated as a person performing 
functions, in connection with the affairs of the Federation was 
elaborately dealt with in the case of Ziaullah Khan Niazi. Vs. 
CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 
 
18
Chairman Pakistan Red Crescent Society (2004 SCMR 189) in the 
words reading as follows :-  
 
“6(5).   We have heard the learned counsel for 
the 
parties 
at 
length. 
We 
find 
that 
the 
respondent-Society 
was 
constituted 
by 
the 
provisions of Section 2 of the Pakistan Red 
Crescent Society Act (XV of 1920) (hereinafter 
referred to as the Act). Its operational area 
covers the whole of Pakistan. The President of 
Islamic Republic of Pakistan is the President of the 
Society as provided by Section 3 of the Act. By 
Section 4 of the Act it is a body  corporate 
having perpetual succession and a common seal 
with power to hold and acquire property, 
movable and immovable and may sue or be 
sued by the name of the Society. As enumerated 
in the General Principles of Society. Its object and 
principal aims include the prevention and 
alleviation 
of 
the 
suffering 
with 
complete 
impartiality both at national and international 
level and to render voluntary aid to the sick and 
wounded of the armed forces in times of war in 
accordance with spirit and conditions of the 
Geneva Conference and the Treaties and Red 
Cross to which Pakistan has given its adhesion. 
The Act, being an existing law was amended by 
the Central Legislature/Parliament from time to 
time. The Society cannot be treated as person 
performing functions in connection with the 
affairs of the Province. Therefore, the employees 
of the Society cannot be treated as civil servants 
of the Province of Punjab, by any stretch of 
imagination. They cannot invoke the jurisdiction 
of the Punjab Service Tribunal merely on the 
ground that they are employed in the provincial 
CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 
 
19
branch of the society. The impugned judgment 
of the Tribunal suffers from defect of jurisdiction. “ 
 
11. 
 
In the case of Pakistan Red Crescent Society. Vs. Nazir 
Gillani (supra), this Court after examining the status of the society 
and the managing body constituted thereunder, held as under :-  
“9. 
A careful perusal of the said Rule would 
indicate that the “Managing Body” is competent 
to frame Rules for the management, control and 
procedure of the Society. The rulemaking  power 
has been conferred upon the Managing Body in 
an unambiguous manner and from whatever 
angle it is interpreted no role for framing of Rules 
has been assigned to the Government and 
moreso no such role has been reserved by the 
Government for itself. It is worth mentioning that no 
sanction or approval from any quarter including 
the government is required for framing of such 
Rules, which shall be framed by the Managing 
Body alone. It can thus safely be inferred that the 
powers qua rulemaking exclusively fall within the 
jurisdictional domain of Managing Body and the 
ultimate conclusion would be that the Rules or 
Regulations framed by the Managing Body are 
non-statutory. It is well settled by now that “ where 
the Government while setting up a corporation 
does not reserve to itself the power to regulate the 
terms of service of the Corporation’s employees 
under the relevant statute and does not prescribe 
any condition, but leaves it to the discretion of the 
corporation by empowering it to frame Rules or 
Regulations 
in 
respect 
thereof 
without 
the 
Government’s intervention, then the Corporation 
will be the sole arbiter in the matter of prescribing 
the terms and conditions of its employees and will 
be competent to deal with them in accordance 
CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 
 
20
with the terms and conditions prescribed by it. In 
such case neither a suit nor a writ petition for the 
relief of reinstatement will be competent and the 
remedy of an employee, for wrongful dismissal 
from or of termination of service will be a suit for 
damages as the principle of master and servant 
will be applicable. However, where the terms and 
conditions of service of an employee of a statutory 
Corporation is regulated by a statute or statutory 
Rules, any action prejudicial taken against him in 
derogation or in violation of the statute and/or the 
statutory Rules will give him a cause of action to 
file a suit or a writ petition for the relief of 
reinstatement, as the power of the Corporation will 
be fettered with the statutory provisions and the 
principle of master and servant will not be 
applicable. For the purpose of deciding the 
factum, whether the Rules or the Regulations of a 
Corporation 
have 
the 
statutory 
force, 
the 
determining factor will not be their form or name, 
but the source under which they have been 
framed.” (Emphasis provided) Chairman WAPDA v. 
Jamil Ahmed (1993 SCMR 346), Muhammad Yousuf 
Shah v. Pakistan International Airlines Corporation 
(PLD 1981 SC 224)” 
 
The above quoted paragraph draws a line of distinction between 
the rules which are statutory and those which are otherwise. In the 
former case, the legislature while empowering the rule making body 
to make rules, prescribed the terms and conditions in the parent 
statute. In the latter case, the Government while setting up the 
corporation does not reserve for itself the power to regulate the 
terms of service of the Corporation’s employees under the relevant 
statute nor does it prescribe any condition but leaves it to the 
discretion of the corporation by empowering it to frame rules and 
CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 
 
21
regulations in respect thereof without the Government’s intervention. 
In that case the Corporation is the sole arbiter in the matter of 
prescribing the terms and conditions of its employees and is 
competent to deal with them in accordance with the terms and 
conditions prescribed by it. It is in this state of things that neither a suit 
nor writ petition for the relief of reinstatement will be competent and 
the remedy of an employee for wrongful dismissal or termination of 
service will be a suit for damages. The case of the Authority falls in 
the first category as the legislature while empowering the Authority to 
prescribe terms and conditions, laid down certain parameters 
regulating and even restricting the power of the Authority as can be 
gathered from the provisions contained in Sections 7 and 9 of the 
Act. We, thus, don’t see any similarity between the rules made under 
the provisions of the Pakistan Red Crescent Society Act and those of 
the National Command Authority nor do we find any relevance of 
the judgment cited above to the case in hand.   
12. 
 
An equation was also sought to be established between 
the Rules framed under Section 27 of the Civil Aviation Authority 
Ordinance, 1982 and the Rules framed under Section 15 of the Act 
on the strength of the judgment rendered in the case of Muhammad 
Nawaz. Vs. Civil Aviation Authority and others (supra) without 
appreciating the import of the language used in Sections 26 and 27 
of the Ordinance and Sections 9 and 15 of the Act. Under Section 26 
of the Ordinance, the Federal Government was empowered to 
make Rules for carrying out the purposes of the Ordinance, while 
under Section 27 of the Ordinance, the Authority was empowered to 
make Regulations to provide for the matters for which provision is 
necessary or expedient for carrying out the purposes of the 
CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 
 
22
Ordinance. The scope of the Rules and the Regulations was distinctly 
defined and delineated in the relevant provision of the Act. The Rules 
made under Section 26, in view of their nature, were given statutory 
status while the Regulations made under Section 27 of the Act, in 
view of their nature, were treated as non-statutory. The question 
requiring determination in that case was whether service Regulations 
framed by the Authority in excess of powers conferred by the 
Authority under Section 27 of the Ordinance are statutory in nature or 
otherwise, but the Bench answered the questions by referring to the 
ratio of the dicta rendered in the cases of National Bank of Pakistan 
Vs.  Manzoorul Hassan (1989 SCMR 832), Principal Cadet College, 
Kohat Vs. Muhammad Shoab Qureshi, Chairman WAPDA. Vs. Jameel 
Ahmed (1993 SCMR 346) and Pakistan Red Crescent Society Vs. Nazir 
Gillani, (supra) and dismissed the appeal. In the case of National 
Bank of Pakistan Vs.  Manzoorul Hassan (supra) this Court having 
examined the nature of the Rules made under Section 32 of the 
National Bank of Pakistan Ordinance XIX held as under :-  
“4. 
It has been contended on behalf of the 
appellant that the Staff Service Rules not having 
been framed by virtue of the delegated 
rulemaking  power vesting in the Central Board 
under Section 32 of the Ordinance, these Rules 
do not have effect as statutory Rules but are only 
instructions for the guidance of the Officers of the 
Bank in regard to the internal management of 
the Bank administration. There is no doubt that as 
previously observed, the National Bank of 
Pakistan (Staff) Service Rules purport to be Rules 
made by the Central Board under Bye-law 18 of 
the National Bank of Pakistan Bye-laws. However, 
in our view this fact makes no material difference 
CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 
 
23
as to the effect of these Rules. The vires of the 
legal effect of the Rules cannot be judged by 
the mere form in which the Rules are framed or 
the title by which they are called. In substance 
and in legal effect the said service Rules for all 
intents and purposes are Bye-laws framed under 
Section 
32 
of 
the 
Ordinance. 
The 
legal 
requirements for giving effect to the subordinate 
legislation contemplated under Section 32 have 
been complied with in framing the Service Rules, 
inasmuch as, the Rules have been framed by the 
Central Board and it is not denied that the prior 
approval of the Central Government was 
accorded.” 
 
In the case of Principal Cadet College, Kohat Vs. Muhammad Shoab 
Qureshi (supra) this Court after drawing a comparison between Rules 
made under Section 17 and Regulations made under Section 18 of 
the West Pakistan Government Educational and Training Institutions 
Ordinance, 1960 held that Rules made under Section 17, in view of 
their nature, and area of efficacy are statutory while Regulations 
made under Section 18 of the Ordinance being in the nature of 
instructions for internal management are non-statutory. The same 
exercise was undertaken by this Court in the case of Chairman 
WAPDA. Vs. Jameel Ahmed (supra) by drawing a comparison 
between the Rules framed under Section 18 and the Regulations 
framed under Section 29 of the West Pakistan Water and Power 
Development Authority Act, 1958. What their comparison leads to is 
that Rules framed under Section 18 being in the nature of instructions 
for internal management are held to be non-statutory while the 
Regulations made under Section 29 of the Act with the approval of 
the Federal Government are held to be statutory. Reference was 
CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 
 
24
also made by the learned ASC for the Authority to the case of Chief 
Manager State Bank of Pakistan Vs. Muhammad Shafi (2010 SCMR 
1994) to project the proposition that any Rules or Regulations framed 
without the approval of the Federal Government could not have 
statutory status, notwithstanding the language used in Section 54 of 
the State Bank of Pakistan Act or any other Act or Ordinance is 
different from that of Sections 7, 9 and 15 of the National Command 
Authority Act which is sought to be termed as being in pari materia 
with the latter. But a survey of all these judgments would reveal that it 
is not the sole criterion which makes them statutory or otherwise. It is 
indeed their nature and area of efficacy which are determinative of 
their status. Rules dealing with instructions for internal control or 
management are treated as non-statutory while those whose area of 
efficacy is broader and are complementary to the parent statute in 
the matters of crucial importance are statutory. The Rules framed 
under Sections 7, 9 and 15 of the Act are of that genus or genera  
as they are not only broader in their area of efficacy but are also 
complementary to the parent statute in the matters of crucial 
importance. Yes, these Rules have not been framed with the 
intervention and approval of the Federal Government, but that 
would not prevent them from being statutory. Firstly because, 
approval of the Federal Government was not required either under 
Section 9 or Section 15 of the Act; secondly because, all those who 
call the shots were already on the board while framing the Rules and 
thirdly because, the scope and area of their efficacy not only stretch 
beyond the employees of the Authority but overarch many other 
strategic Organizations including nuclear and space related 
technologies systems and matters, as are mentioned in Section 8 and 
CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 
 
25
9 of the Act. Had the Rules been framed for internal management 
and guidance of the officers of the Authority, the argument of the 
learned ASC for the Authority would have been tenable and the 
judgments cited at the bar would have been relevant. But when it is 
otherwise, as is illustrated above, we don’t think any of the 
arguments addressed and any of the judgments cited at the bar 
would support the proposition canvassed at the bar. The Rules so 
enacted and approved by the Authority with such personages on 
the board do not require another approval of yet another 
personage.  
13. 
 
Granted that the legislature in its wisdom wanted to 
make the Authority autonomous on all accounts, but we don’t 
understand how does the statutory status of the Rules affect and 
undermine its autonomy. The argument that the scheme of Sections 
9 and 21 of the Act shows that the legislature wanted to make the 
orders of the Authority immune from justiciability is vacuous both 
legally and logically as immunity of the orders of the Authority from 
justiciability would not only erode its autonomy, but tend to establish 
a reign of arbitrariness, which is a recipe for chaos and confusion. An 
Authority which has been established for higher objectives as is 
provided in the preamble and other provisions of the Act, cannot 
thrive and flourish, if its rules are not abided by or enforced on being 
violated. What good would they bring to the Authority when they are 
ornamental rather than statutory? What purpose would they serve 
when whim of anybody at the higher pedestal could replace them 
with impunity? Unaccounted exercise of unfettered powers is 
dangerous and even devastating for an institution of this type. 
Whether it is exercise of powers or exercise of discretion, better and 
CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 
 
26
more uniform results in long term could only be achieved when it is 
structured and streamlined. Autonomy, independence and efficacy 
of the Authority are better attained with statutory rather non-
statutory Rules. Effective control of Authority over its activities for 
maintaining secrecy of its sensitive programmes in line with Pakistan 
International Legal Obligation in particular UNSC Resolution cannot 
be affected by the statutory status of its rules. Employees whose 
terms and conditions of service are regulated by non-statutory rules 
are more exposed to mischief than those whose terms and 
conditions of service are regulated by statutory rules. It would rather 
be naïve and even myopic to equate the rules dealing with the 
matters of crucial importance having so wide a scope and area of 
efficacy with the instructions meant for internal management and 
thereby deprive them of their statutory status. We, thus, hold that the 
Rules made by the Authority under Sections 7, 9 and 15 of the Act 
cannot be confused or even compared with the Rules and 
Regulations framed under other enactments without the approval of 
the Federal Government. The argument that the judgments 
rendered earlier on the similar proposition could not be ignored by 
subsequent benches with the same number of Judges is no doubt 
correct but we don’t think any of the judgments cited at the bar 
decided similar questions. The argument that approval of such rules 
by the Federal Government to give them statutory attire in view of 
Rule 14 of the Rules of Business is also a must, is misconceived 
because when the statute itself did not provide for the approval of 
the rules by the Federal Government, we cannot supply omission in 
the Act on the basis of Rule 14 of the Rules of Business. The argument 
that the judgments rendered in the cases of Rector National 
CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 
 
27
University of Science and Technology (NUST) Islamabad and others. 
Vs. Driver Muhammad Akhtar  and Muhammad Zubair and others Vs. 
Federation of Pakistan thr. Secretary M/o Defence and others (supra) 
holding the rules statutory are per incuriam or sub silentio is not 
correct as they have been rendered after due consideration of the 
statute and the case law.  The judgments rendered in the cases of 
Muhammad Tariq Badr and another. Vs. National Bank of Pakistan 
and another (2013 SCMR 314), Zarai Taraqiati Bank Limited. Vs. Said 
Rehman (2013 SCMR 642), Pakistan Defence Officers Housing 
Authority and others. Versus. Lt. Col. Syed Jawaid Ahmed (2013 SCMR 
1707), Shoua Junejo. Versus. PIA (2012 SCMR 1681), Muhammad 
Nawaz. Versus. Civil Aviation Authority and others (2011 SCMR 523), 
Pakistan Telecommunication Co. Ltd. through Chairman. Versus. 
Iqbal Nasir (PLD 2011 SC 132), Abdul Rashid Khan. Versus. Registrar, 
Bahauddin Zakaria University, Multan (2011 SCMR 944), Pakistan 
International Airline Corporation. Versus. Tanweer-ur-Rehman, (PLD 
2010 SC 676), State Bank of Pakistan. Versus. Muhammad Shafi (2010 
SCMR 1994), Asad Bashir. Versus. Chairman Board of Intermediate 
and Secondary Education, Lahore and 2 others (2006 PLC (CS) 110), 
Pakistan Red Crescent Society. Versus. Syed Nazir Gillani (PLD 2005 
SC 806), Zia Ghafoor Pirach. Versus. Chairman, Board of Intermediate 
and Secondary Education, Rawalpindi (2004 SCMR 35), Muhammad 
Ishaq Waheed Butt. Versus. Chairman, Bank of Punjab (2003 PLC 
(C.S.) 963), Pakistan International Airlines Corporation (PIAC). Versus. 
Nasir Jamal Malik (2001 SCMR 934), Ijaz Hussain Suleri. Versus. The 
Registrar and another, (1999 SCMR 2381), Chairman, Pakistan Council 
of Scientific and Industrial Research, Islamabad. Versus. Khalida Razi 
(1995 SCMR 698), Chairman WAPDA. Vs. Jameel Ahmed (1993 SCMR 
CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 
 
28
346), Raziuddin. Versus. Chairman, PIA CORPN. (PLD 1992 SC 531), 
Karachi Development Authority. Versus. Wali Ahmed Khan (1991 
SCMR 2434), Abdul Ghaffar. Versus. WAPDA (1990 SCMR 1462), Sindh 
Road Transport Corporation Chairman. Versus. Muhammad Ali G. 
Khohar (1990 SCMR 1404), Principal Cadet College. Versus. 
Muhammad Shoaib Qureshi (PLD 1984 SC 170), Anwar Hussain. 
Versus. ADBP (PLD 1984 SC 194), Muhammad Yusuf Shah. Versus. 
Pakistan International Airlines Corporation (PLD 1981 SC 224) and 
R.T.H. Janjua. Versus. National Shipping Corporation (PLD 1974 SC 
146) being distinguishable are not germane to the case in hand. It 
thus follows that the rules framed under Sections 7, 9 and 15 of the 
Act are statutory on all accounts and by every attribute. They are 
thus declared as such. Let the appeals and petitions filed in the 
Court be listed before the Benches for decision in the light of this 
judgment.  
  Chief Justice 
 
Judge 
 
 
 
Judge 
 
Announced in open Court at Islamabad on  21.01.2016. 
 
 
Judge 
‘Not Approved For Reporting’ 
  M. Azhar Malik 
 
 
 
 
