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Petitioner: MUHAMMAD SHAHPAL QADRI VS Respondent: A.K. GOVERNMENT COOPERATIVE BANK LTD., MUZAFFARABAD
1993 P L C (C
1993 P L C (C.S.) 1161
[Supreme Court (AJ&K)]
Present: Sardar Said Muhammad Khan, C.J., Sardar Muhammad Ashraf Khan and Basharat Ahmad Shaikh, JJ
MUHAMMAD SHAHPAL QADRI and another
Versus
A.K. GOVERNMENT COOPERATIVE BANK LTD., MUZAFFARABAD and 3 others
Civil Appeal No. 52 of 1992, decided on 28th April, 1993.
(On appeal from the judgment of the High Court dated 29‑3‑1992 in Writ Petition No. 32 of 1991).
(a) Azad Jammu and Kashmir Cooperative Bank Ltd. (Staff) Service Rules, 1984‑‑‑
‑‑‑‑‑R. 8‑‑‑Cooperative Societies Act (VII of 1925), S. 71 [as applicable to Azad Jammu and Kashmir]‑‑‑Cooperative Societies Rules, 1927, R. 55 [as applicable to Azad Jammu and Kashmir] ‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 44‑‑‑Promotion of respondent in preference to appellants, challenged in Constitutional jurisdiction ‑‑‑Azad Jammu and Kashmir Cooperative Bank Ltd. (Staff) Service Rules, 1984, whether statutory rules creating right in favour of appellants which could be enforced by invoking Constitutional jurisdiction‑‑‑Power of framing rules regarding terms and conditions of service of employees of Cooperative Society or a Bank was delegated to the Committee or the Board by virtue of R.55, Cooperative Societies Rules, 1927‑‑‑Cooperative Societies Rules, 1927 were substituted by the Board as a delegated of powers under R.55, Cooperative Societies Rules, 1927 coupled with S.71, Cooperative Societies Act, 1925‑‑ Azad Jammu and Kashmir Cooperative Bank Ltd. (Staff) Service Rules, 1984 having been framed in pursuance of powers which vested in the Government and were delegated to the Board, would be deemed to be the statutory rules‑‑‑High Court under S. 44, Azad Jammu and Kashmir Interim Constitution Act, 1974, on the application of aggrieved person, could declare any act done by a person acting in connection with the affairs of the State or a Local Authority as without lawful authority and of no legal effect if that act was shown to be in violation of law‑‑‑Promotion of respondent in preference to appellants being in violation of provisions of Azad Jammu and Kashmir Cooperative Bank Ltd. (Staff) Service Rules, 1984 was quashed.
Mrs. M.N. Arshad v. Miss Naeema Khan PLD 1990 SC 612; The State v. Zia‑ur‑Rahman PLD 1973 SC 49; Noori Trading Corporation (Pvt.) Ltd. v. Federation of Pakistan PLD 1.989 Quetta 74; Abdul Kabir Qureshi v. The Accountant‑General, Azad Jammu and Kashmir PLD 1986 Azad J&K 239; Miss Nishat Saeed v. Chairman, Nomination Board, Azad Jammu and Kashmir Government PLD 1980 SC (AJ&K) 1; Messrs Rice Export Corporation of Pakistan Ltd. v. Karachi Metropolitan Corporation PLD 1990 Kar. 186; Mirza Qamar Raza v. Msf. Tahira Begum PLD 1988 Kar. 169: PLD 1989 SC 75; Aitzaz Ahsan v. Chief Election Commissioner PLD 1989 Lah. 1. Ibrahim Textile Mills Ltd. v. Federation of Pakistan PLD 1989 Lah. 47; Messrs Friends Sons and Partnership Concern v. The Deputy Collector, Central Excise and Sales Tax, Lahore PLD 1989 Lah. 337; Qadir Shams v. Winston Bakhsh PLD 1989 Lah. 523; Ch. Muhammad Aslam v. Amanullah PLD 1990 Lah. 330; Faiz Ahmad v. The Registrar, Cooperative Societies, West Pakistan, Lahore PLD 1962 SC 315; Venkata Rao v. The Secretary of State for India‑in‑Council 64 IA 55; The Lahore Central Cooperative Bank Ltd. v. Pir Saif Ullah Shah PLD 1959 SC (Pak.) 210; Muhammad Sharif v. The Secretary to the Government of the Punjab, Basic Democracies, Social Welfare and Local Government Department, Lahore PLD 1973 SC 497; R.T.H. Janjua v. National Shipping Corporation PLD 1974 SC 146; Zainul Abidin v. Multan Central Cooperative Bank Limited, Multan PLD 1966 SC 445; The Chairman, East Pakistan Industrial Development Corporation, Dacca v. Rustom Ali PLD 1966 SC 848; Fawwad & Fareen Enterprises Ltd. v. Director of Industries, Government of Sindh, Karachi PLD 1983 SC 268; Anwar Hussain v. Agricultural Development Bank of Pakistan PLD 1984 SC 194; Ghulam Hafeez v. Government of Sindh 1991 PLC (C.S.) 530; Lt.‑Col. Shujauddin Ahmad v. Oil & Gas Development Corporation 1971 SCMR 566; Raziuddin v. Chairman, Pakistan International Airlines PLD 1992 SC 531; Karachi Development Authority v. Wali Ahmad Khan 1991 SCMR 2434; Sindh Road Transport Corporation v. Muhammad Ali G. Khokhar 1990 SCMR 1404 and The Principal, Cadet College, Kohat v. Muhammad Shoab Qureshi PLD 1984 SC 170 ref.
(b) Azad Jammu and Kashmir Cooperative Bank Ltd. (Staff) Service Rules, 1984‑ ‑
‑‑‑‑R. 22‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44‑‑‑Constitutional jurisdiction ‑‑‑Competency to invoke‑‑‑Remedy provided under R. 22, Azad Jammu and Kashmir Cooperative Bank Ltd. (Staff) Service Rules, 1984 in the way of review does not deal with the question of appointment or promotion‑‑‑Petitioners assailing promotion of respondent thus, had no adequate remedy other than the Constitutional jurisdiction‑‑‑No alternate remedy being available to petitioners, invoking of Constitutional jurisdiction was competent.
(c) Civil service‑‑‑
‑‑‑‑Promotion‑‑‑Promotion of employees was ordinarily to be made on the basis of seniority‑cum‑merits‑‑‑Merits of appellants for promotion were not considered at any stage‑‑‑Appellants being senior to respondent in accordance with seniority list, impugned order promoting respondent in preference to appellants was in violation of rules.
(d) Azad Jammu and Kashmir Cooperative Bank Ltd. (Staff) Service Rules, 1984‑‑‑
‑‑‑‑R.9‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42‑‑‑Promotion of respondent in preference to appellants was declared to be illegal by the High Court in exercise of Constitutional jurisdiction‑‑‑High Court, however, did not provide any remedy to appellants who had to tile appeal before Supreme Court‑‑‑Respondent having filed no appeal against the finding of High Court wherein his promotion was deemed illegal, Supreme Court while setting aside the operative part of judgment of High Court whereby Constitutional petition was dismissed did not examine validity of promotion order of respondent for there was no appeal by respondent against the declared illegality of his promotion.
(e) Azad Jammu and Kashmir Cooperative Bank Ltd. (Staff) Service Rules, 1984‑‑‑
‑‑‑‑R.8‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44‑‑‑Constitutional jurisdiction‑‑‑Competency to invoke‑‑‑Appellants were not serving the Bank on the basis of any agreement but were governed by the statutory rules viz. Azad Jammu and Kashmir Cooperative Bank Ltd. (Staff) Service Rules, 1984‑Appellants were thus, competent to invoke Constitutional jurisdiction of High Court.
Kh. Noor‑ul‑Amin for Appellants. Nemo for Respondents Nos. 1 to 3. Ghulam Mustafa Mughal for Respondent No. 4,
Date of hearing: 2nd February, 1993.‑
JUDGMENT
SARDAR SAID MUHAMMAD KHAN, C.J.‑‑‑This appeal has been directed against the judgment of the High Court dated 29‑3‑1992, whereby the writ petition filed by the appellants, herein, was dismissed.
The brief facts giving rise to the present appeal are that the appellants were appointed through direct recruitment on 18‑7‑1985 as Managers (Officers Grade II) in BPS‑17 while respondent No. 4 joined service as Accountant (Officer Grade III) in BPS‑1G on 18‑7‑1985. On 23‑12‑1990 respondent No. 3, the General Manager, Government Cooperative Bank Ltd., appointed respondent No. 4 as officiating Deputy General Manager.
Subsequently, on 28th February, 1991, Registrar. Cooperative Societies, respondent No. 2, promoted respondent No. 4 to the post of Deputy General Manager in BPS‑18. This order was passed subject to approval of the Board of Directors of the Bank. The appellants filed a writ petition to challenge the aforesaid order passed on 28th of February, 1991 on the grounds, inter alia, that the Registrar had no power to pass the impugned order because it is only the Board of Directors which is competent under the relevant rules to pass such orders of promotion; that respondent No. 4 had only two years of service in BPS‑17 and was not qualified for promotion as Deputy General Manager; and that the said respondent was much junior to the appellants and the order was unjust. The learned Judge in the High Court upheld the contentions of the appellants and held that the promotion of respondent No. 4 was "in derogation of established scheme of law" but all the same dismissed the writ petition on the ground that no relief can be given to the appellants in exercise of writ jurisdiction because the service of the appellants was not governed by law or statutory rules and because the appellants were inducted in service in pursuance of an agreement. Reliance was placed on the judgment of this Court reported as Muhammad Shari v. Chairman, Azad Kashmir Logging and Saw Mill Corporation (PLD 1985 SC (AJ&K) 119).
The learned counsel for the parties have submitted written arguments as was directed by the Court vide its order dated 2‑2‑1993:
We have gone through the written arguments and the authorities relied by the learned counsel for the parties in support of their respective contentions. It has been contended by Kh. Noor‑ul‑Amin, Advocate, the learned counsel for the appellants, that the impugned order of promotion of respondent No. 4 was violative of Rule 8 of the Azad Jammu and Kashmir Cooperative Bank Ltd. (Staff) Service Rules, 1984 (hereinafter shall be referred to as Rules of 1984), which were framed by the Board of Directors of Bank under Bye‑law No. 17. It has been maintained that promotion of respondent No. 4 could not be ordered by Registrar of Cooperative Societies as this power vested in the Board. It has been further contended in the written arguments that the order is also violative of Rule 9(2) of the aforesaid Rules because respondent No. 4 did not satisfy the requisite qualification for the promotion as Deputy General Manager in BPS‑18. The learned counsel has also maintained that the High Court has upheld his contention but despite that refused to give the relief sought on the ground that the aforesaid service rules not being statutory rules did not create any right in favour of the appellants which could be enforced by invoking writ jurisdiction. The learned counsel has submitted the following authorities in support of his contentions:‑‑
In case reported as Mrs. M.N. Arshad v. Miss Naeema Khan (PLD 1990 SC 612), it was maintained that relationship between the corporation and its employees being that of master and servants, no writ petition was competent against the order of dismissal of the appellant; it was observed that the writ can be maintained only if there is violation of any provision of law or of any statutory rule of service.
In The State v. Zia‑ur‑Rahman (PLD 1973 SC 49), the Constitutional jurisdiction of the superior Courts in relation to the executive was subject of dispute. It was opined that judiciary, in exercise of its judicial powers, cannot strike down any provisions of Constitution on the ground that the same were against the Objectives Resolution of 1949 because the said Resolution was not a part of the Constitution. Obviously, this authority has no relevancy to the case in hand.
In Noori Trading Corporation (Pvt.) Ltd. v. Federation of Pakistan (PLD 1989 Quetta 74), the dispute pertained to the Central Excises and Salt Act. It was opined that the writ cannot be thrown out on the ground that alternate remedy was available because on the very face of the relevant statutory provisions the petitioner could not be subjected to any duty.
In Abdul Kabir Qureshi v. The Accountant‑General, Azad Jammu and Kashmir (PLD 1986 Azad J&K 239), the writ pertained to the terms and conditions of a civil servant. It was observed that if the Tribunal had no jurisdiction in respect of a matter in service matters, the same could be agitated by resorting to writ jurisdiction, especially so when the order was mala fide. This authority also has no relevancy to the case in hand because the matter in that case pertained to the civil servants and not to the service of Bank employees or employees of a statutory corporation.
In case reported as Miss Nishat Saeed v. Chairman, Nomination Board, Azad Jammu and Kashmir Government (PLD 1980 SC (AJ&K) 1), it was observed that the circular of the letter of Nomination Board did not derive its power from any enactment, infringement of such instructions cannot be challenged by resorting to writ jurisdiction. This authority has also no relevancy to the case in hand and in any case that goes against the appellants rather in their favour.
In Messrs Rice Export Corporation of Pakistan Ltd. v. Karachi Metropolitan Corporation (PLD 1990 Kar. 186), it was observed that if the order complained is manifestly without jurisdiction, the writ jurisdiction can be invoked without first availing the alternate remedy.
In Mirza Qamar Raza v. Mst. Tahira Begum (PLD 1988 Kar. 169), the interpretation of the provisions of West Pakistan Family Courts Act, 1964 was in dispute. This authority is obviously not relevant and need not be commented upon.
In case reported as Reference No. 1 of 1988, made by the President of Pakistan under Article 186 of the Constitution of the Islamic Republic of Pakistan (PLD 1989 SC 75), the matter was referred to the Supreme Court to answer as to whether the Federal and Provincial Governments could incur expenditure out of the consolidated funds when the Federal and Provincial Assemblies were not in existence and general elections had yet to take place.
Similarly, the authorities reported as Aitzaz Ahsan v. Chief Election Commissioner (PLD 1989 Lah. 1), Ibrahim Textile Mills Ltd. v. Federation of Pakistan PLD 1989 Lah. 47), Messrs Friends, Sons and Partnership Concern v. The Deputy Collector, Central Excise and Sales Tax, Lahore (PLD 1989 Lah. 337) and Qadir Shams v. Winston Bakhsh (PLD 1989 Lah. 523), are not even remotely relevant to the proposition involved in the present case and, thus, need not be commented upon.
In case reported as Ch. Muhammad Aslam v. Amanullah (PLD 1990 Lah. 3:30), it was held that if mala fides is decisive factor in a case decided in favour of a party alleging the same, all other objections raised by the opposite‑party are washed away. It was observed that if an act is found to be mala fide, the same is to be struck down without going into the technicalities.
The learned counsel for the respondent has contended in his written arguments that as the terms and conditions of service of respondent No. 4 are not governed by any law or statutory rules, the writ petition was not competent and the High Court has rightly dismissed the same. It is further maintained that Cooperative Bank is a registered society under the provisions of Societies Registration Act, 1927 and thus, its employees do not enjoy the status of civil servants; rather the relationship with the employer is that of master and servant. Therefore, their terms and conditions cannot be regarded to have been protected under the statute or statutory rules. It has been further contended chat neither By‑laws made under the Cooperative Societies Act, 1925 nor the Rules framed thereunder can be regarded to be statutory rules so far as the terms and conditions of the employees of the Cooperative Bank are concerned because the question of the terms and conditions of service of the employees of the Bank in question have not been dealt with by the Cooperative Societies Act, 1925. It has also been contended that as the appellants had alternative remedy through representations to the competent authority to the matter. the writ petition was even otherwise not competent. The following authorities have been relied upon in support of the contentions on behalf of the respondent:‑‑
In Faiz Ahmad v. The Registrar, Cooperative Societies, West Pakistan, Lahore PLD 1962 SC 315, it has been observed that Cooperative. Bank employees are not entitled to protection of terms and conditions of their service under section 24(1(3) of the Government of India Act, 1935. It was opined that although the rules which govern the terms and conditions of the Government servants have been adopted by the Bank but all the same they have no statutory force behind them. While dealing with the question, it was observed by Mr. Justice Hamoodur Rahman as under at page 319:‑‑
...... This argument in effect, assumes that because the Cooperative Bank concerned in the present case had by its own bye‑laws adopted the procedure of the Government Service Rules for the taking of disciplinary action against its employees, such employees were also entitled to the protection given to Government servants under section 240(3) of the Government of India Act, 1935. This assumption, however, is totally unwarranted, for. the Civil Service Rules were made applicable to the case of the appellant not by virtue of any statutory provision but purely by the adoption thereof under the bye laws of the Cooperative Bank, which were no more than the rules laid down for the guidance of the Bank itself. These' rules, therefore, did not create any right in the appellant to hold his office in accordance with them, nor did the said rules automatically extend the protection given to a Government servant under the Constitutional provisions of the Government of India Act, 19.35, and the late Constitution, to persons employed in non‑Governmental institutions or concerns. Even if the adoption of the Government Service Rules could be interpreted as amounting to the adoption of also the quarantees of the kind given to public servants by the aforesaid Constitutional provisions, they would have no statutory force. behind them and would, therefore, according to the decision of the Judicial Committee in the ease of Venkata Rao v. The Secretary of State for India‑in‑Council (64 IA 55) be no more than mere violations of rules or regulations which would not entitle the appellant to have the performance of the rules enforced by action. The High Court of West Pakistan was, therefore, in our view, right in refusing to interfere in its writ jurisdiction with the decision of the appellate order of the Principal, Cooperative Training Institute, acting as Registrar, Cooperative Societies, West Pakistan, upholding the dismissal of the appellant."
In The Lahore Central Cooperative Bank Ltd. v. Pir Saif Ullah Shah (PLD 1959 SC (Pak.) 210, it was held that the employees of Cooperative Bank cannot claim protection of their service under Civil Services Rules because those are only applicable to the public servants and not the employees of Cooperative Bank. It was further observed that the employees of private corporations or Banks couldn t resort to writ jurisdiction for the redress of their grievance in the matter relating to their service.
In Muhammad Sharif v. The Secretary to the Government of the Punjab, Basic Democracies, Social Welfare and Local Government Department, Lahore PLD 1973 SC 497, it was observed that as regulations of Governing Council of a College do not have the status of statutory rules, the writ jurisdiction could not be invoked for the redress of their grievance in the matter of service under Article 98 of the Constitution of Pakistan, 1962.
In R.T.H. Janjua v. National Shipping Corporation PLD 1974 SC 146, it was observed that Constitutional safeguard available to a civil servant against the order of dismissal or removal from the service is not available to the servants of the company or statutory corporation because such employees are governed by the principle of master and servant. They can seek the redress of their grievance by claiming damages for the wrongful dismissal or any other wrongful act affecting their services.
In Zainul Abidin v. Multan Central Cooperative Bank Limited, Multan PLD 1966 SC 445, it was observed that Constitutional remedy under Articles 98 and 177 of the Constitution of Pakistan, 1962 could only be availed by a person holding public office and wrongful dismissal of an employee of Cooperative Bank could not seek redress of his grievance by invoking the writ jurisdiction. It was further opined that although the Bank has made the Public Service Rules applicable to their employees but as the application of the said Rules is not in pursuance of a statutory provision, their adoption under Bye laws of Cooperative Bank is no more than the rules laid down for the guidance of the Bank. These rules did not create any right in favour of employees of the Bank to seek redress in the matter of their service by resorting to writ jurisdiction.
In the Chairman, East Pakistan Industrial Development Corporation, Dacca v. Rustom Ali PLD 1966 SC 848, it was observed that employees of Cooperative Bank are governed by the rule of Master and Servant and, thus, they were not entitled to seek redress of their grievance by resorting to writ jurisdiction under Article 98 of the Constitution of Pakistan, 1962.
In Fawwad &. Fareen Enterprises Ltd, v. Director of Industries. Government of Sindh, Karachi PLD 1983 SC 268, it was held that as the rules contained in Sindh Purchase Manual, 1977 do not have force of law or statutory rules, violation thereof did not furnish any cause of action to seek redress by resorting to writ jurisdiction.
In Anwar Hussain v. Agricultural Development Bank of Pakistan (PLD 1984 SC 194), it was observed that as the relationship of the employees of the statutory corporation is governed by the contract entered into between the parties, the principle of Master and Servant is applicable and they are not entitled to any relief by resorting to writ jurisdiction. It was further opined that the doctrine is based on the principle that a civil servant for whom there are Constitutional safeguards is not‑governed by the principle of master and servant because he is possessed of a legal character for enforcement of which he can bring an action but it is not in case of employees of the statutory corporation. However, if the employees of a statutory corporation have been provided protection of their service through statutory rules, the general law of master and servant will not apply. In such a case the employer would be bound to follow the procedure provided for in the statute or the statutory rules.
In Ghulam Hafeez v. Government of Sindh (1991 PLC (C.S.) 530), it was held that rules under which the petitioner was governed in the matter of his service cannot be equated with the statutory rules, as the rues were framed/adopted by the Governing Body of the Institution under the powers vested in it under section 80 of the Provincial Employees' Social Security Ordinance, 1965. The writ filed by the petitioner was not maintained.
In Lt.‑Col. Shujauddin Ahmad v. Oil & Gas Development Corporation‑(1971 SCMR 566), it was held that the employees of statutory corporation did not acquire the status of Government servants nor guarantees given by the Constitution were applicable to them. Their case will be governed by the law of master axed servant because a contract of service cannot be specifically enforced. Consequently, the petition for leave to appeal against the judgment of the High Court was refused.
The above survey of the case‑law shows that later view of the Supreme Court of Pakistan is that if terms and conditions of the service of employees of a statutory body are regulated by statutory rules, the doctrine of `master and servant' will have no application and in such a case an aggrieved employee of a statutory body can seek redress of his grievance by invoking writ jurisdiction. The aforesaid view has been affirmed by the Supreme Court of Pakistan in cases relied upon by the learned counsel for the respondents, referred to above and reported as Muhammad Sharif v. The Secretary to the Government bf Punjab, Basic Democracies, Social. Welfare and Local Government Department, Lahore PLD 1973 SC 49 7, Fawwad & Fareen Enterprises Ltd. v, Director of Industries, Government of Sindh, Karachi PLD 1983 SC 268 and Anwar Hussain v. Agricultural Development Bank of Pakistan PLD 1984 SC 194.
The principle has been further approved by the Supreme Court of Pakistan in the following cases:‑‑
In Raziuddin v. Chairman, Pakistan International Airlines PLD 1992 SC 531, it has been observed as under:‑‑
"6. The legal position obtaining in Pakistan as‑to the status of employees of the Corporations seems to be that the relationship between a Corporation and its employees is that of Master and Servant and that in case of wrongful dismissal of an employee of the Corporation, the remedy, is to claim damages and not the remedy of reinstatement. However, this rule is subject to a qualification, namely, .if the relationship between a Corporation and its employees is regulated by statutory provisions and if there is any breach of such provisions, an employee of such a Corporation may maintain an action for reinstatement:'
In Karachi Development Authority v. Wali Ahmad Khan 1991 SCMR…
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