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Petitioner: NADEEM ARIF VS Respondent: FEDERATION OF PAKISTAN
1998 P L C (C
1998 P L C (C.S.) 597
[Karachi High Court]
Before Wajihuddin Ahmed and Saiyed Sayeed Ashhad, JJ
Syed NADEEM ARIF and 7 others
Versus
FEDERATION OF PAKISTAN through the Secretary, Ministry of Communications, Islamabad and 2 others
Constitutional Petitions Nos. D-2203, D-2270, D-2408, D-2413 of 1996, D-71, D-118 and D-381 of 1997, decided on 11th July, 1997.
National Highway Authority Employees' Service Rules, 1995---
----R. 1(2)---Constitution of Pakistan (1973), Arts. 212 & 199---Statutory corporation---Master and servant---Contractual employee of National Highway Authority---Contract employees of National Highway Authority were not governed by National Highway Authority Employees' Service Rules, 1995---Termination of service of such employees involving factual inquiries could not routinely be dealt with in exercise of Constitutional jurisdiction of High Court under Art. 199 of the Constitution-: -Every person holding post under the National Highway Authority having been deemed to be civil servant, grievance, if any, against final order could be agitated before Service Tribunal---Purported termination, however, could not be deemed to be without any rationale---Plea of financial constraints could not be summarily dismissed---Budgetary constraints were manifest reality which would appear to have been applied to respondent/Authority like other Government-run Corporations---National Highway Authority, thus, had viable case on such point---Termination of appointment, however, must be transparent and towards advancement of public policy---Some employees could not be deprived to benefit others except in due course of law and in public interest---Protection to employees of State-run Corporations might be invocable in cases of grievance but such principle was not extendable to contractual employees who were governed by rule of master and servant; cardinal principle whereof being that no such servant could be forced upon unwilling master---In cases of termination of such services, where necessary prerequisites were shown to exist, conventional remedy for aggrieved employee would lie in suit for damages or other permissible action in Court of competent civil jurisdiction e.g. Service Tribunal for all employees of National Highway Authority who, per statute, have been deemed to be civil servants for purpose of Service Tribunals Act, 1973---Constitutional petition under Art. 199 of the Constitution of Pakistan, 1973 was not maintainable in circumstances.
S.R. Tewari v. District Board, Agra AIR 1964 SC 1680; U.P. Warehousing Corporation v. Vijay Narayan AIR 1980 SC 840; Shrilekha Vidyarthi v. State of U.P. AIR 1991 SC 537; Mudassar Ahmad .v. Government of Pakistan 1991 PLC (C.S.) 1047; Regional Commissioner of Income-tax v. Zaffar Hussain PLD 1992 SC 869; Ramana v. I.A. Authority of India AIR 1979 SC 1628; Pacific Multinational (Pvt.) Ltd. v. I.-G. of Police PLD 1992 Kar. 283; Presson Manufacturing Limited v. Secretary, Ministry of Patroleum and Natural Resources 1995 MLD 15; M.A. Rasheed v. Province of Punjab 1987 MLD 153; Qurban Hussain v. Secretary, Services Department 1992 PLC (C.S.) 76; University of the Punjab v. Sardar Ali 1992 SCMR 1093; Anisa Rehman v. P.I.A.C. 1994 SCMR 2232; Muhammad Umar Malik v. The Muslim Commercial Bank 1995 SCMR 453; Oil, Gas Development Corporation v. Shujauddin Ahmad PLD 197;0 Kar. 332; Shujauddin Ahmad v. Oil and Gas Development Corporation 1971 SCMR 566 and Masood-ul-Hasan v. Azad Government of the State of Jammu and Kashmir 1997 PLC (C.S.) 327 ref.
Khalid Javed Khan for Petitioners.
M. Sarwar Khan, Addl. A.-G. for Respondents Nos. 1 and 2.
Abdul Qadir Siddiqui for Respondent No. 3.
Date of hearing: 27th June, 1997.
JUDGMENT
WAJIHUDDIN AHMED, J.---The petitioners in the listed Constitutional petitions are contract employees, in various categories of the National Highway Authority (N.H.A.) a statutory body constituted under the National Highway Authority Act, 1991. The contracts involved were for specified durations. The employees, as per the stipulated contractual terms, did not qualify for pension or gratuity and pensions in respect of previous services, if being drawn, could continue to be so drawn, in addition to the agreed remuneration. Likewise, no contributions to the General Provident Fund were required to be made. These employees were not to have any seniority. They were, however, to be governed by the Leave Rules of the Authority, were entitled to all medical facilities, as applicable to N.H.A. employees and travelling allowances were also admissible to them, as to other employees of the N.H.A. in the corresponding pay scales under the Rules. Besides, while employed on contract, their conduct was to be regulated by Rules made or deemed to be Rules made and instructions issued by the Government or the prescribed authority, as for N.H.A. employees. The contracts were liable to termination upon service, from either side of notices of specified durations or pay in lieu thereof. The periods of the contracts could be extended with the approval of the competent Authority. All the foregoing find express mention in the relevant contracts.
The grievance of the petitioners is that, per Office Memo dated 7-11-1996 issued' by the Cabinet Secretariat, Government of Pakistan, under the title, "Termination of Contract Appointments", it was unceremoniously directed that "the services of all the civilian contract employees may be terminated with immediate effect". All Ministries/Divisions to which the memo was endorsed were requested to implement such orders in respect of civilian contract appointees in the Ministries/Divisions/Attached Departments and Autonomous Bodies/Corporations under their administrative control. Requisite orders were to be issued on 7-11-1996 itself and compliance report was to be forwarded to the Establishment Division immediately. The Ministries/Divisions were also advised to furnish lists of contract employees/appointees, both civilians and Ex-Armed Forces personnel, to the Establishment Division positively within one week. It is the further case of the petitioners that respondent National Highway Authority, vide an office order dated 27-11-1996 under the head, "Termination of Contract Appointments", in pursuance of the referred decision of the competent Authority, dated 7-11-1996, with immediate effect, terminated the contract appointments of 54 such appointees while allowing them to draw pay in lieu of advance notices, as per the terms and conditions of. their contracts. The petitioners maintain that before actual notices could be issued, the petitioners approached this Court, on various dates commencing 1-12-1996, where status quo orders were granted, the first being, on 4-12-1996, by a Bench presided over by one of us. In such petitions declarations have been sought that the office memo. Dated 7-12-1996 and the office order dated 27-11-1996 are unlawful, void and of no legal effect. A further declaration claimed is that the petitioners could not be terminated without good cause and except in accordance with the principles of Natural Justice. Directions have been sought against the N.H.A. to process the cases of the petitioners for regularisation in accordance with the Rules and established practice. Prohibitions have been solicited against the N.H.A. from issuing of letters of termination and from taking any adverse actions against the petitioners, inclusive of seeking relinquishment of charges of their respective offices.
The N.H.A., as a respondent, has submitted its comments and like comments have also been filed by the Federal Government of Pakistan in Constitutional Petition No. D-2408 of 1996. The burden of the comments, brought on record by the N.H.A., is that the National Highway Authority Employees' Service Rules, 1995, do not apply to employees appointed on contract basis or those on deputation or to employees being paid from contingency. Our attention is invited to Rule 1(2) of such rules, which runs thus:
(1) ..
(2) These Rules shall apply to all employees of the National Highway Authority, hereinafter referred to as the Authority other than those:
(a) Appointed on contract basis;
(b) On deputation to the Authority;
(c) Paid from contingency."
On the factual plane, it is maintained that the N.H.A. had undertaken a number of projects and the appointments in question were made against temporary posts, sanctioned for the duration of the respective projects. The appointments are claimed to be governed by contracts and no particular criteria for merit is said to have been followed relating to the same. It is urged that, as per the applicable allocation for 1996-97, the N.H.A. was originally accorded a sanction of Rs.9,503.024 million in the A.D.B. As per the revised allocation, however, such amount was reduced to Rs.6, 503.024 million, thus, accounting for a short-fall of Rs.3,000 million. Further, as against Rs.36.847 million, demanded for the establishment budget, only an amount of Rs.19.426 million was allocated. Because of the resulting financial constraints, the N.H.A., it is said, had to abandon several projects and to stop work on ongoing ones. The terminations in question, allegedly, were brought about in accordance with the terms and conditions, of employments, as reflected in the relevant contracts. Regarding the enforced cut of Rs.3,000 million from the allocation in respect of the projects of the N.H.A., reliance has been placed and brought on record is a memo. of the Finance Division, endorsed to the N.H.A. dated 23-10-1996. Some other material has also been produced, which need not specifically be dealt with.
On its part and in its comments, the Federal Government of Pakistan has maintained that the previous Government had appointed a large number of persons on contract basis in various Departments/Corporations. In such view most of these appointments had been made on grounds extraneous to job requirements and otherwise than in accordance with the system/procedure, against specific created posts. Resort, therefore, was had to terminations under the applicable clauses of the contracts themselves. It is however, added that wherever any exemption be considered unavoidable and in public interest, the case was referable to the Establishment Division with necessary justification. Besides, the contract employees against posts in foreign aided projects or where international commitments were involved were not to be affected by the policy decision to terminate such appointments nor would there be any ban to fill such vacancies though, at the same time, efforts were required to be made to give priority to absorb personnel from within the surplus pool of officers/staff with the Establishment Division.
The thrust of the petitioners' case, however, remains that the purported terminations, which according to them have not yet taken effect, are mala fide and discriminatory. Mala fides are involved because appointees only of the previous (PPP) Government have been targeted and discrimination comes into play because there has been pick and choose of employees, who are proposed to be terminated, as against some who are projected to be retained. These allegations are denied.
From the documents, which have been brought on record, we are unable to discern that any palpable distinction has been made in the termination of the contract employees. Besides, if that be the case, the matter should, require factual inquiries of an intricate nature, not routinely permissible in the exercise of the Constitutional jurisdiction of the Court. Even so, while the orders of the competent Authority appear to involve an across the board exercise, some mention is still made to the alleged irregularity of appointments brought about by the previous (PPP) Government. This was the precise plea upon which the present petitions were entertained and status quo orders were issued. The mere fact that certain appointments were made by a particular Government cannot ipso facto be made the basis of retributive action. That would be discriminatory and possibly, even mala fide. At the same time, if an illegal or irregular action is taken or appointment made, such remains unlawful or irregular, as the case may be, unless duly legalised or regularised. Correspondingly, if any illegalities or irregularities have been committed it is immaterial as to who committed the same. Wilful irregularities in public appointments and more so where mass appointments are involved, should legitimately call for appropriate review at the relevant levels. It is unfortunate but inescapable in the peculiar circumstance of the administrative inaptness of governance of public affairs in this country that such identification can only be made by a successor Government because no Government in office appears to -be motivated or inclined to be inward looking for taking stock of its own shortcomings. This will continue so long as transparency in public affairs and self-accountability takes root in the system itself. Each successor Government, may it even be a care-taker Government, which is expected to be more neutral, would, therefore, continue to find fault with the one that preceded it. But that is no ground for attributing mala fides to an exercise, if otherwise found to be unexceptionable. Indeed; if this is not permitted, albeit within reasonable limits and within the frame-work of law, the only avenue, presently, open for corrective measures would itself stand blocked. That can hardly commend itself. Even so, wherever exceptions are made, other than for justifiable reasons and wherever pick and choose takes place for extraneous considerations, such would always remain facts to be pleaded and proved at an appropriate level and if an adverse finding is recorded, necessary measures of redress can be set afoot. These matters, however, involving as they do, factual inquiries cannot routinely be dealt with in the exercise of Constitutional jurisdiction of this Court and the remedy, if one commends itself, lies elsewhere, as will be reflected below. Here mention may be made to some case-law cited in the context. In S.R. Tewari v. Duistrict Board, Agra AIR 1964 SC 1680, which was a case of termination of employment, upon payment of three months salary in lieu of notice, while the Indian Supreme Court declined relief, it did observe that in the exercise of Constitutional jurisdiction the High Court had the power to declare the decision of the Board ultra vires though such jurisdiction could be exercised only if the Court was satisfied that departure was called for from the rule that a contract of service would not, ordinarily, be specifically enforced. U.P. Warehousing Corporation v. Vijay Narayan AIR 1980 SC 840, is a case, where it was observed that even in the absence of statutory rules, the Court could presume the existence of a duty, attaching to a state-run corporation; to abide by the rules of natural justice, if and when taking recourse to dismissals of its employees for misconduct. Allegations there, inter alia, were of theft and reasonable opportunity to deny the guilt was not accorded. Re-instatement was upheld but back benefits, in the absence of requisite proof of loss, were denied. In Shrilekha Vidyarthi v. State of U.P. AIR 1991 SC 537, the Indian Supreme Court quashed the impugned circular of the State Law Ministry on the ground that en block removal of District Government Counsel, in an arbitrary manner, on a plea of stream lining the conduct of Government cases was impermissible, amongst other things, because the Legal Remembrancers' Manual, ordinarily, provided for removal of tenures and it was too much to assume that every Government Counsel for the purpose of such streamlining was required to be replaced. Such case, however, is dissimilar to that in hand inasmuch as no improprieties in the initial opportunities were pleaded there and the appointments, presumably, were regular. Besides, in the instant cases, financial constraints, as well, have been invoked. Reliance has next been placed on a Single Bench Judgment of the Lahore High Court viz. Mudassar Ahmad v. Government of Pakistan 1991 PLC (C.S.) 1047. There the petitioners, ad hoc appointees against substantive vacancies, having been appointed on recommendations of Prime Ministers Secretariat/Placement Bureau, under-went intensive training were asked to and applied afresh and even cleared the relevant examinations. Under the- circumstances instructions of the Care-taker successor Government were that terminations of their services were to be avoided as far as possible. They were yet terminated. Discrimination was also allegedly involved. In the circumstances relief was granted in the exercise of Constitutional jurisdiction. The matter went in appeal and the leave granting order is reported as Regional Commissioner of Income-Tax v. Zaffar Hussain PLD 1992 SC 869. We have not been able to verify whether the appeal has or has not yet been heard.
All the foregoing are distinguishable precedents. 'The National Highway Authority Act, 1991, per section 13(2) thereof expressly postulates that notwithstanding anything in section 13(1), any rules made, or orders issued, by the Authority or in any terms and conditions of service of any person employed by or serving under the Authority, the Authority may at any time terminate the services of any such person by giving a notice of a stipulated duration or pay for the period by which the notice falls short. Section 13(3) deems every person holding a post under the Authority to be a civil servant for the purposes of the Service Tribunals Act, 1973. In the first place, thus, the termination of services through notice(s) may not be alien to section 13(2) (ibid), and, in the second, every person holding a post under the Authority having been deemed to be a civil servant, the grievance, if any, against a final order can be agitated before the Service Tribunal alone, as mandated by Article 212 of the Constitution. Besides, against an intervening dissatisfaction also the employee should wait for a final order to emerge. Even so, we would dispose of the contentions of the parties, as far as feasible at this level.
We are also not satisfied that the purported terminations are without any rationable. The plea of financial constraints cannot be summarily dismissed. Budgetary constraints area manifest reality and such appear to have been applied to the N.H.A. much as to other Government departments/Government run corporations. The respondents, therefore, have a viable case on the point.
This brings us to the question whether any rules have been violated or the petitioners were due for absorption and instead of being absorbed have unceremoneously been terminated. Mr. Abdul Qadir Siddiqui, learned counsel representing the N.H.A., has pointed out that the services of 60 employees were terminated by the N.H.A. in the first phase whereas 167 such employees were shown the way out in the second phase. He has urged that all this has occurred in the national interest and in the interest of the Authority. The learned counsel has pointed out that under the National Highway Authority Act, there is no scope for appointment of contractual employees. We find that under section 31 of the Act the Federal Government has been empowered to frame the rules for carrying out the purposes of such Act. The National Highway Authority Employees' Service Rules, 1995, are one set of such rules and it has already been noted that the same do not, inter alia, apply to employees appointed on contract basis. Then there are the National Highway Authority (Appointment and Promotions) Rules, 1995. As to these, Mr. Abdul Qadir Siddiqui has urged that Rule 3(1)(b) of the National Highway Authority (Appointment and Promotions) Rules, 1995, which envisages initial appointments to the Authority is itself governed by Chapter III of such Rules and there various conditions for appointments have been laid down, including availability of clear vacancies, necessary competition between the candidates, due processing, etc. Such requirements, in his submission, remained unsatisfied in cases of the petitioners. He has also contended, and apparently correctly, that there is nothing either in the Act or in the Rules to regularise a contractual appointee except, perhaps, on going through the ordinary procedure applicable to initial 'appointments. Indeed, adherence to procedure is a guarantee against any likes or dislikes favours or disfavours. We would be failing in our duty if we do not pause to point out here that in all public appointments the public at large has a stake. The Government of the day cannot deviate to benefit a few to the detriment or at the expense of the populace in general. The matter of placement Bureau, as adverted to above, may still be before the Supreme Court. Then this Court had to, deal with appointments in the Pakistan International Airlines Corporation (P.I.A.C.), in Ehtesab Reference No. 28 of 1997 (State v. Ahmad Sadiq and others). In the order of the Court, dated 18-6-1997, albeit tentatively, it was recorded that for 1280 advertised P.I.A.C. posts 19,000 applications were received. While members of the public were. to apply on ordinary pieces of paper due forms were made available to the applicants coming through the Prime Minister's Secretariat. Tests for a generalised recruitment were held but all stem to have come to naught when over 800 persons were appointed on the recommendation of the Prime Minister's Secretariat alone. We are in no position to under-take an enquiry as to facts in this jurisdiction but as and when that transpires in an appropriate forum, we hope that a similar out-come, as above does not present itself. In this view of the matter, it does not seem plausible to hold that the resort to terminations through the contractual clauses was patently ill-founded. Still to take away jobs from people secure in their employments remains a painful exercise. It must be transparent and towards advancement of public policy. Some cannot be deprived of benefit others except in duel course of law and in public interest. The moment these principles are eschewed, the exercise becomes suspect and opens up for judicial scrutiny though only at the competent level(s).
Here may be taken up an argument of Mr. Khalid Javed
Khan, for the petitioners, that where an appointment, may that even be of a contractual employee, is terminated other wise than in due course of law, such would be actionable in the Constitutional jurisdiction of the Superior Courts. This is too sweeping an argument to be accepted without reservations. Supplemental to what has already been said, we may add that contractual disputes, routinely, do not qualify for redress in a Constitutional dispensation. Some well-documented exceptions are, however, enshrined in the case-law evolved on the subject. Thus, in Ramana v. I.A. Authority of India AIR 1979 SC 1628, while the writ petition on facts was dismissed, it was observed that the International Airport Authority could not disregard the objective tests as to eligibility in a tender notice and could not accept the tender of a person, who did not fulfil the requisite qualifications. Like result namely, dismissal of the Constitutional petition is reflected upon the facts in Pacific Multinational (Pvt.) Ltd. v. I.-G. of Police PLD 1992 Kar. 283 but this Court found the Constitutional petition maintainable to assess whether the Government acted lawfully in accepting higher of the two bids for purchase of helicopters, albeit the Court coming to the conclusion that the higher bid involved better potential to meet the public requirement. In Presson Manufacturing Limited v. Secretary, Ministry of Petroleum and Natural Resources 1995 MLD 15, a learned Single Judge of the Lahore High Court elaborately. examined the concept of judicial review in the context of administrative action. While dismissing the petition, it, nonetheless, was held that even though Constitutional jurisdiction was not the arena for thrashing out private disputes regarding contracts yet transparency in the process of decision making by public functionaries could come up for examination and if a case of discrimination was made out for applying different standards qua equally placed persons or parties, appropriate redress could be administered. Relevant to contractual disputes in service matters, it was found in N.A. Rasheed v. Province of Punjab 1987 MLD 153, that where a retired civil servant was employed on contractual basis and his services were terminated on one month's notice in accordance with the terms of the contract, Constitutional jurisdiction could not be invoked for relief. A learned Single Judge of the Lahore High Court in Qurban Hussain v. Secretary, Services Department 1992 PLC (C.S.) 76, declined relief in the Constitutional…
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