Full Judgment Text & Judicial Ruling

2018 P L C (C.S.) 580 [Lahore High Court] Before Jawad Hassan, J HASSAN JAWED and another Versus PUNJAB EDUCATION FOUNDATION and 4 others Writ Petitions Nos.16223, 13669 and 13664 of 2014, decided on 30th November, 2017. (a) Punjab Education Foundation Act (XII of 2004)--- ----Ss. 5, 8 & 13---Punjab Education Foundation (Contract Appointment) Rules, 2006, Rr.5, 6(2) (a) (b) (d) (h) & 9---Punjab Education Foundation Service Regulations, 2006, Regln. 5---Punjab Education Foundation Employees Service Regulations (Amendment), 2010, Regln.7---Contract employees---Termination from service---Right of hearing---Powers of Managing Director of Education Foundation---Board of Director of Education Foundation---Contention of petitioners-employees was that letters for termination of their services were illegal and their service should be regularized---Validity---Executive and managing authority of the Education Foundation was with its Board of Directors---Board of Directors had powers to appoint employees and other functionaries of the Education Foundation and determine the terms and conditions of their employment---Managing Director of the Education Foundation could exercise all such powers and could do all such acts and things as were authorized by Board of Directors---Contractual appointments were made on the basis of merits which did not confer any right for regular appointment---Managing Director had powers to terminate the services of contract employees without assigning any reason or without approval of Board of Directors or Provincial Government---Managing Director could only extend the contract and re-negotiate new terms and conditions of contractual appointment with the approval of Board of Directors---Provincial Government had powers to make rules for carrying out the purposes of Punjab Education Foundation Act, 2004 through notification---Provincial Government had allowed the Education Foundation to engage personnels on contract basis---Punjab Education Foundation (Contract Appointment) Rules, 2006 having been sanctioned by the Provincial Government were applicable to the employees and Education Foundation---Punjab Education Foundation (Contract Appointment) Rules, 2006 had statutory status and deviation from the same could be enforced by competent Court---Petitioners being employees of Education Foundation had accepted employment on the basis of their service contract and agreed to be governed by Punjab Education Foundation (Contract Appointment) Rules, 2006, thus were governed by Punjab Education Foundation (Contract Appointment) Rules, 2006 having statutory backing---Managing Director of the Foundation could terminate the services of contract employees on one month's salary in lieu of terms and condition of contract appointment----Impugned letters were issued in compliance with the directions of the Managing Director of the Foundation---No violation of contract employment or statutory Rules i.e. Punjab Education Foundation (Contract Appointment) Rules, 2006 had been made by the Education Foundation---Employees enjoyed extension in their contract through letters none of which were signed by Managing Director but Human Resource Department which was not the appointing Authority---Employees did not raise any objection for such matter and only raised the objections in case of their termination---Termination of service had been approved by the Chief Minister---Education Foundation had to evaluate as to who was the employee worthy of serving the best interest of Foundation and as to who was more suitable---Impugned decision for not extending the contracts by the Education Foundation had been made pursuant to deliberations and approval of Managing Director and Chief Minister---Question of arbitrariness or illegality had no relevance to the matter in circumstances---No statutory rules or provision of Act had been violated by the Education Foundation while terminating the employment of petitioners---Appointment of employees was temporary on contract basis which could be terminated in absence of any violation of provision of law/statutory rules---Employees were entitled to one month's notice or salary in lieu of terms and conditions of contract---Petitioners-employees had failed to point out any contravention of their Fundamental Right by the Education Foundation---Such decision could not be interfered by the High Court in its constitutional jurisdiction---Services governed by a contract would not confer a guaranteed right on the employee to continue in employment and to seek reinstatement on being illegally dismissed or terminated---Such employees could not approach Court of law for seeking appointment even if they were refused employment illegally or in contravention of service contract or non-statutory rules/regulations---Damages against such termination under principle of "master and servant" could be claimed---Contract of employees had expired before impugned letters---Constitutional petition could not be allowed conferring such right to the petitioners---No statutory provision existed for regular appointment of petitioners in the Education Foundation---Directions of Chief Minister could not have precedence over the Punjab Education Foundation (Contract Appointment) Rules, 2006---Education Foundation had not raised any allegation on the employees therefore right of hearing was not mandatory to be provided---Constitutional petition was dismissed in circumstances. [case-law referred] (b) Constitution of Pakistan--- ----Art. 199---Constitutional petition---Maintainability---Non-statutory rules---Effect.

Waqqas Ahmad Mir, Mian Wajhat Ali, Hassan Niazi and Miss Noor Bano for Petitioners. Mahmood Ahmad Qazi and Malik Muhammad Usman Awan and Jari Ullah Khan, Shan Gull Additional Advocate-General and Ashfaq Karal, Asst. AG for Respondents. Date of hearing: 9th October, 2017. JUDGMENT JAWAD HASSAN, J:- Through this Judgment, this Court intends to decide the following writ petitions, in which common questions of laws and facts are raised and vires of same laws have been challenged: 1. Tanveer Ahmed Zaffar v. Punjab Education Foundation and others, Writ Petition No.13664/2014 (the "First Petition"); 2. Hassan Javed and Mohsin Rasheed Gillani v. Punjab Education Foundation and others, Writ Petition No. 16223/2014 (the "Second Petition"); and 3. Usman Ali Jarral v. Punjab Education Foundation and others, Writ Petition No.13669/2014 (the "Third Petition"). 2. By virtue of these Petitions, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution"), the Petitioners have assailed and challenged the letters dated 5 May 2014 (the "Impugned Letter(s)") whereby the service contracts of all the Petitioners were terminated by the Respondents/Punjab Education Foundation (the "Foundation"). The Petitioners have also challenged the decision of the Board of Directors of the Foundation (the "Board") dated 9 December 2013 (the "Impugned Decision"). A. Essential Facts of the First Petition: 3. For the sake of clarity, the facts leading to institution of the First Petition are that the Managing Director of the Foundation (the "MD") issued a notification on the 7 September 2009, whereby the Petitioner was appointed as the Deputy Managing Director (Operations) on contract basis for a period of three (3) years with a condition to remain on probation for a period of three (3) months. This decision was made after selection by the Recruitment Committee for Senior Professionals headed by the Chairman of Board of Directors on 5 September 2009. It was specifically provided that his services will be governed under the Punjab Education Foundation (Contract Appointment) Rules, 2005 (the "Contract Appointment Rules") and Punjab Education Foundation Regulations, 2006 (the "2006 Regulations"). On the 12 September 2009, consequent upon selection and appointment of the Petitioner by above Notification, MD intimated the terms and conditions of employment, approved by the Board, to the Petitioner. Clause 7 specifically provided that the "appointment will be on contract basis for a period of 3 years subject to satisfactory performance". The Petitioner continued to work in the Foundation and on 30 March 2013, the Director Human Resource Management ("HRM"), with approval of the Competent Authority, extended the contract of the Petitioner from the 7 September 2012 till 6 September 2013. Similarly, on the 22 October 2013, the Deputy Director, HRM, with approval of the Competent Authority, informed the Petitioner for extension in contract for further period of six (6) months with effect from the 7 September 2013 to the 6 March 2014. It was specifically mentioned that the services of the Petitioner shall be governed under the Contract Appointment Rules and the Punjab Education Foundation Regulations, 2010 (the "2010 Regulations"). However, on 30 October 2013, the letter dated 22 October 2013 was withdrawn by the Deputy Director, HRM, with approval of the Competent Authority, without providing any justification or reason. Even after expiry of the service period of the Petitioner on the 6 September 2013, the Petitioner prolonged to work in the Foundation with salary and other benefits under the terms and conditions of the employment contract. On the 5 May 2014, the Impugned Letter was issued for and on behalf of the Competent Authority for termination of the service contract of the Petitioner as the Deputy Managing Director (Operations), and to relieve the Petitioner from services of the Foundation with immediate effect with one (1) month salary in lieu of notice period. It was informed in the letter that the contract of the Petitioner was expired on the 6 September 2013, and keeping in view the office exigencies, he was allowed to continue his job. Therefore, the Petitioner has mainly prayed to declare the Impugned Letter dated 5 May 2014 pertaining to his termination as illegal; to regularize employment of the Petitioner, or alternatively refer the matter of regularization to the Scrutiny Committee; and to declare the decision of the Board of Directors of the Foundation dated 9 December 2013 as illegal. The prayers made in the First Petition are reproduced verbatim: (i) Declare Impugned Letter dated 05.05.2014 and Petitioner's termination as illegal, void and without legal effect and reinstate the Petitioner to his office; till final decision of this petition, the Impugned Order's effect and operation may also kindly be suspended: (ii) Declare Petitioner as regularized employees of PEF keeping in view the facts and circumstances of the case. In the alternative this Honourable Court may kindly be pleased to reinstate the Petitioner and direct PEF to refer the matter of regularization to the Scrutiny Committee as per the government of Punjab's Notification. (iii) Declare PEF's Board decision dated 09.12.2013 as illegal, without jurisdiction and without lawful authority. (iv) Restrain Respondents Nos.1 to 3 from harassing the Petitioner and his family and to allow access to his personal belongings. 4. It is pertinent to mention here that on the 23 January 2014, the MD issued a warning letter to the Petitioner, with reference to earlier directions dated 22 January 2014 and 23 January 2014, to improve his efficiency and not to engage in habitual delaying tactics, having negative impact on the Foundation's performance in Chief Minister's Education Roadmap and to comply with directions of seniors in letter and spirit. On the 23 January 2014, MD also wrote for displeasure on inappropriate behavior of the Petitioner in office of MD on the 23 January 2014. It was written that the Petitioner was given clear instructions to submit urgent information in a high priority matter but he left the meeting on a defiant and arrogant manner. He was warned to improve professional behavior, observe office decorum, failing which he would entail strict disciplinary action. On the 27 January 2014, the MD called for explanation from the Petitioner, within two (2) working days, in reference to directions of the MD on the 24 January 2014 to attend the Working Group Meeting of the District Education Authorities on 25 January 2014. It was alleged that the Petitioner was deputed to represent MD in meeting but despite clear instructions, failed to attend the meeting and deputed a junior officer for same. On the 31 January 2014, the MD called for explanation from the Petitioner for not submitting the Job Descriptions of NSP and the IT department' for over a year, despite clear direction to complete pending Job Descriptions by 16 January 2014 for audit meeting on 10 January 2014. The Petitioner was directed to ensure compliance and send the Job Descriptions to the Deputy Managing Director, HRM, immediately. On the 3 February 2014, the MD again called for explanation from the Petitioner for non-compliance to MD's instructions as conveyed through the minutes of the Coordination Meeting held on 18 November 2013. The Petitioner was not present in the meeting and was required to submit reply justifying his absence from the same. On the 6 February 2014, the MD again asked for explanation from the Petitioner in reference to direction given by the MD during Steering Committee Meeting on the 29 January 2014 to share tentative list of all shortlisted/selected NSP schools. The MD informed that not observing deadlines and reluctance to share NSP information is adversely affecting work and performance in the CM's meetings, and such habitual delays reflect poor management and inefficiency on his part, in violation of decorum and discipline. On the 7 February 2014, the Petitioner was again called for explanation by the Deputy MD (HRM) to explain unprofessional behavior and non-compliance of orders, within two (2) days, for his failure to attend the Pre Stock Take meeting on 5 February 2014. On the 6 March 2014, the Petitioner was issued a warning letter by the MD, for his reluctance to share information about NSP, position of the Petitioner for past three (3) months and unprofessional behavior on his part, which placed senior management in an awkward position in high level meetings. He was advised to comply with orders and instructions as and when given, and to improve professional behavior and maintain office discipline in future. He was also warned to be careful in his correspondence with senior management, failing which disciplinary action would be initiated against such irresponsible behavior. On the 11 March, 2014 the Petitioner sent a reply in reference to letter of the MD dated 6 March 2014, explaining change of reporting line of FAS and EVS Department, information about NSP Program, latest progress of NSP Department, comments on hiring process, synopsis of his performance since 2009, and process of victimization. The Petitioner requested for withdrawal of the above letter of the MD. B. Essential Facts of the Second Petition: 5. The facts succinctly revealed from the Second Petitioner that the Petitioner No.1, Mr. Hassan Javed, was employed in the August 2007 by the Respondent No. 1 as a Project Officer on contract basis, which was subsequently extended till the 9 August 2013. The Petitioner No. 1 in the Second Petition was being governed under the Contract Appointment Rules. Even after expiration of his contract, he continued his service for a long period without any express/written extension in contract by the Foundation. However, the services of the Petitioner No.1 were terminated on the 5 May 2014 through the Impugned Letter when he was working as the Deputy Director/Program Incharge (New Schools Program) at the Foundation. Similarly, the Petitioner No.2, Mr. Mohsin Rashid, was employed in December 2009 as a Project Officer (Education Voucher Schemes) for a period of one (1) year, which was subsequently extended on the 30 November 2010 and 8 May 2013. The Petitioner No. 2 in the Second Petition was being governed under the Contract Appointment Rules. Ultimately, after the expiry of the purported contract, the Petitioner No.2 was retained as an employee till his termination on 5 May 2014 through the Impugned Letter. Earlier, the Petitioners in the Second Petition filed a petition titled Mohsin Rasheed Gillani and others v. GoP and others, Writ Petition No. 19154 of 2013, seeking their regularization in which a direction was issued to the Foundation on the 31 July 2013 by the Lahore High Court to decide the representation of the petitioners, if pending, strictly in accordance with law after affording opportunity of hearing to all concerned and through well-reasoned speaking order as expeditiously as possible. On the 9 December 2013, the Chairman of Board of Directors unanimously decided, in compliance of the order of this Court dated 31 July 2013 in Mohsin Rasheed Gillani and others v. GoP and others, Writ Petition No. 19154 of 2013, that the request of regularization of contract employees of the Foundation could not be acceded to. For the sake of clarity, the Petitioners in the Second Petition have mainly prayed to declare the Impugned Letters dated 5 May 2014 pertaining to termination of the Petitioners as illegal; to regularize employment of the Petitioner, or alternatively refer the matter of regularization to the Scrutiny Committee; to declare the decision of the Board of Directors of the Foundation dated 9 December 2013 as illegal; to declare the Rule 6(2)(b) of the Contract Appointment Rules and Regulation 7 of the Punjab Education Foundation Employees Service Amended Regulations, 2010 void; and to declare the actions of the Foundation as ultra vires. The prayers made in the Second Petition are reproduced verbatim: (i) Declare Impugned Letter dated 05.05.2014 and Petitioner's termination as illegal, void and without legal effect and reinstate the Petitioners to their offices; till final decision of this petition, the Impugned Order's effect and operation may also kindly be suspended: (ii) Declare Petitioners as regularized employees of PEF keeping in view the facts and circumstances of the case. In the alternative this Honourable Court may kindly be pleased to reinstate the Petitioners and direct PEF to refer the matter of regularization to the Scrutiny Committee as per the government of Punjab's Notification. (iii) Declare PEF's Board decision dated 09.12.2013 as illegal, without jurisdiction and without lawful authority. (iv) Declare Rule 6(2)(b) of PEF Contract Appointment Rules to be violative of Articles 4, 9, 14, 18 and 25 of the Constitution as well as violative of PEF Act, 2004 and therefore void and without legal effect; (v) Restrain Respondents Nos.1 to 3 from harassing the Petitioner and his family and to allow access to his personal belongings. (vi) Declare Regulation 7 of the Punjab Education Foundation Employees Service Amended Regulations, 2010 to be ultra vires the PEF Act, 2004 and Contract Rules, 2005. (vii) Declare the Actions of the Respondents as ultra vires the Recruitment Policy, 2004. C. Essential Facts of the Third Petition: 6. The facts giving rise to the Third Petition are that the Petitioner, Mr. Usman Ali Jarral, was employed by the Foundation in November 2009 on contract basis vide letter dated 29 September 2009 for a period of one (1) year, which was extended vide letter dated 19 January 2012 till 11 December 2012. Despite of the written extension in the service contract, the Petitioner continued to work in the Foundation with salary and other benefits under the terms and conditions of the service contract, and kept performing his duties. The Petitioner in the Third Petition was being governed under the Contract Appointment Rules. However, the services of the Petitioner were terminated on the 5 May 2014 through Impugned Letter when he was serving as Director (Information Technology). For the sake of clarity, the Petitioner in the Third Petition has mainly prayed to declare the Impugned Letter dated 5 May 2014 pertaining to his termination as illegal; to reinstate the Petitioner to his office; and to declare the decision of the Board of Directors of the Foundation dated 9 December, 2013 as illegal. The prayers made in the Third Petition are reproduced verbatim: (i) Declare Impugned Letter dated 05.05.2014 and Petitioner's termination as illegal, void and without legal effect and reinstate the Petitioner to his office; till final decision of this petition, the Impugned Order's effect and operation may also kindly be suspended: (ii) Declare order dated 09.12.2013 to be illegal. D. Relevant Facts for all the Petitions: 7. The Foundation issued a newspaper clipping inviting persons for several posts listed in the newspaper, specifically highlighting that "the appointments will be on contract basis, extendable on the basis of performance. The post carries competitive market based remuneration packages " It is pertinent to note that all the appointments of the Petitioners were made pursuant to this newspaper clipping. On the 28 February 2012, the Secretary (Regulations), Services and General Administration Department ("S&GAD") issued a Notification, informing that the Chief Minister has constituted a Committee to determine the eligibility and suitability of contract employees in BS-16 and above working in the Autonomous Bodies in Punjab for their appointment on regular basis. It was informed that the contract employee appointed prior to 10 November 2010 may be considered by the Committee keeping in view conditions mentioned herein. After scrutiny of the cases, the recommendations of the Committee were to be sent to respective Appointing Authority in the concerned Autonomous Body for appointment on regular basis. On the 2 March 2013, Secretary (Regulations), S&GAD issued another notification, informing that the CM has, on the 28 February 2012, constituted a Committee to determine the eligibility and suitability of contract employees in BS-16 and above working in the Autonomous Bodies in Punjab for their appointment on regular basis. The contract employee appointed prior to the 1 March 2013 were to be considered by the Committee keeping in view conditions mentioned therein. On the 9 December 2013, the Chairman of Board of Directors unanimously decided, in compliance of the order of the Lahore High Court dated 13 July 2013, that the request of regularization of the contract employees of the Foundation could not be acceded to [the "Impugned Decision"]. On the 2 January 2014, the MD issued a Notification in respect of Extension in Contract Employment, which was substituted by a Notification issued on 3 January 2014. MD directed the HRM Department in Notification dated 3 January 2014 to finalize the matter of contract renewal of all such employees who are not involved in any case of corruption, departmental inquiry, audit paras, irregular, recruitment, judicial proceedings etc. within and outside the Foundation without any further delay for the period as per past practice, excluding the pending duration, if any, till the 31 December 2013. On the 19 June 2014, the Member, the Chief Minister Inquiry Team ("CMIT"), moved a summary to the CM regarding termination of service contracts and the CM, vide Order dated 21 May 2014, desired to enquire into complaint made by Mr. Mohsin Rashid Gillani, that the Petitioners in all these Petitions were terminated because allegedly, they had pointed out some wrong doings in the administration of the Foundation. It was recommended in the summary after analyzing all the issues in detail, among others, that the Foundation may be directed to adopt zero percent (0%) tolerance across the board against wrong doings of all and the termination of four (4) officers is in accordance with the Contract Employment Rules. On the 20 June 2014, the Chairman CMIT informed the Chief Minister, the crux of the enquiry conducted by Member CMIT and fully supported the recommendations of Member CMIT in Summary dated 19 June 2014, and also suggested a special audit of the Foundation. On the 28 August 2014, the Secretary to the CM, Punjab informed that recommendations contained in Summary dated 19 June 2014 are approved, and the CM is desirous that an enquiry may be initiated against the delinquent officers involved in irregularity and may be proceeded under relevant rules of Anti-Corruption and the PEEDA Act, 2006. Therefore, the termination of all four (4) Petitioners in all the Petitions was approved by the CM. On the 4 September 2014, Section Officer of the Schools Education Department directed the MD to take necessary action for implementation of recommendations mentioned in the Summary to the CM, as approved by the CM. E. Submissions of the Petitioners: 8. To plead the Petitions, it has been inter alia submitted by the learned counsel for the Petitioners that the Impugned Letters are against law and facts as no inquiry prior to termination of the Petitioners has been conducted by the Respondents; that the Petitioners have not…

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