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Petitioner: ASADULLAH MANGI VS Respondent: PAKISTAN INTERNATION AIRLINES
2002 P L C (C
2002 P L C (C.S.) 592
[Karachi High Court]
Before Saiyed Saeed Ashhad, C.J. and Muhammad Afzal Soomro, J
ASADULLAH MANGI and others
versus
PAKISTAN INTERNATION AIRLINES and another
Constitutional Petitions Nos. D‑1587, 1588 of 1997, 801, 1420 and 1534 of 1999, heard on 2nd July, 2001.
(a) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Contractual employment‑‑‑Principle of master and servant‑‑‑Applicability‑‑‑Petitioners were to be appointed/inducted in the service of Pakistan International Airlines Corporation as flight stewards on the basis of agreement or contract of employment in accordance with the rules/regulations of service of the Corporation‑‑‑Corporation did not find the petitioners fit for appointment after completion of their basic training, as a result they were not so appointed‑‑Plea raised by the petitioners was that their fundamental or legal right was violated‑‑‑Validity‑‑‑Rules/regulations of service of the Corporation did not have the status of statutory rules so as to confer a fundamental or legal right on the petitioners to claim employment as Flight Stewards, the violation or non‑observance of which could not give a right to the petitioners to invoke the Constitutional jurisdiction of High Court for enforcement thereof‑‑‑Documents/letters produced before the Court suggested that the employment of the petitioners was to be a contractual employment to be governed by the principle of master and servant and the service rules and regulations‑‑‑Petitioners, in the present case, had never been appointed or inducted in the service of the Corporation and were only being considered for appointment after successfully completing the conditions mentioned in the letter offering employment in the Corporation‑‑ On the basis of agreement/contract of employment arrived at between the parties, Constitutional petition for declaration was not maintainable‑‑ Constitutional petition would not lie for providing relief on account of violation of terms and conditions of a contract‑‑‑High Court declined to interfere with the orders passed by the Corporation‑‑‑Petition was dismissed in limine.
Yousaf Ali v. Sher Malik and 3 others 1998 SCMR 1911; Malik Asad Ali and others v. Federation of Pakistan and others PLD 1998 SC 161; Sh. Liaquat Hussain and others v. Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others PLD 1999 SC 504; Abdul Qayoom and 11 others v. Government of Sindh through Chief Secretary, Sindh, Karachi and 3 others PLD 1998 Kar, 192; Messrs Airport Support Services v. The Airport Manager, Quaid‑e‑Azam International Airport, Karach and others 1998 SCMR 2268; Nizamuddin and another v. Civil Aviation Authority and 2 others 1999 SCMR 467; Habib Bank Limited and others v. Syed Ziaul Hassan Kazmi , 1998 SCMR 60; United Bank Limited and others v. Ahsan Akhtar and others 1998 SCMR 68; Mrs. Anisa Rehman v. PIAC and another 1994 SCMR 2232; Director, Social Welfare, N..‑W.F.P., Peshawar v. Sadullah Khan 1996 SCMR 1350; PIAC v. Aliya Hashmi C.P.L.A. No. 1573 of 2000; Pakistan International Airlines (PIAC) through Chairman and others v. Nazir Jamal Malik and others Civil Appeals Nos.330 to 337 and 436 of 1999; Wali Muhammad and others v. Sakhi Muhammad and others PLD 1974 SC 106 and Abdul Haque Indhar and others v. Province of Sindh through Secretary Forest, Fisheries; Livestock Department Karachi and 3 others 2000 SCMR 907; Khiali Khan v. Haji Nazir and 4 others PLD 1997 SC 304; Syed Ali Shah v. Abdul Saghir Khan Sherwani and others PLD 1990 SC 50,4 and Muhammad Baran and others v. Member (Settlement and Rehabilitation), Board of Revenue, Punjab and others PLD 1990 SC 691 ref.
(b) Constitution of Pakistan (1973)--
‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Master and servant relationship‑‑ Termination of service by master‑‑‑Remedy for servant against such termination‑‑‑Seeking reinstatement in service through Constitutional petition‑‑‑Validity‑‑‑Service governed by the principle of master and servant or by a contract would not confer a guaranteed right on the employee to continue in the employment and to seek reinstatement on being illegally dismissed or terminated‑‑‑Affected persons, on refusal of the employer to provide employment as per terms of a contract of employment or service rules and regulations not having statutory force or sanction, could not approach Court of law for seeking appointment even if he was refused employment illegally or in contravention of the service contract or non statutory rules/regulations‑‑‑Servant, against termination of service by master, could claim damages for illegal or wrongful decision refusing the employment‑‑‑Constitutional petition was not maintainable in circumstances.
Abdul Mujeeb Pirzada for Petitioners.
Amir Malik for Respondents.
Date of hearing: 2nd July, 2001.
JUDGMENT
SAIYED SAEED ASHHAD, C.J.‑‑‑In the aforesaid Constitutional petition, the petitioners have sought the following. reliefs:‑‑
C.Ps. Nos. D‑1587 and 1588 of 1997
It is, therefore, humbly prayed by the petitioners that this Hon'ble Court may be graciously pleased to accept this petition and declare that the impugned decision, contained in letters dated 28‑3‑1997 are mala fide illegal, without lawful authority and consequently of no legal effect, and that the petitioners are entitled to be inducted in service of PIAC as 'Flight Stewards' in the Pay Group‑IV having successfully completed the requisite training and also entitled to be awarded certificate of training at the PIAC Training Centre pursuant to the letters of offer. It is further prayed that this Hon'ble Court may be pleased to issue direction against respondents directing there to induct the petitioners in service as 'Flight Stewads' in the Pay Group‑IV in terms of clause‑C of offer letters and be also pleased to grant such other better/further relief as may be deemed just and appropriate.
C.Ps. Nos.D‑801/99 1420/99 and 1534/99
(i) That the petitioners be inducted in service of PIAC on the basis of merit and as a equal treatment.
(ii) That the impugned order dated 4‑2‑1999 (C.P. No.D‑801 of 1999), 3rd. July, 1998 (C.P. No. 1420 of 1999), 11‑2‑1999 (C.P. No.D‑1534 of 1999) be declared as ultra vires of Constitution and without lawful authority, void and of no legal effect.
(iii) That the appointments through contractors be declared as without lawful authority and violative of the guidelines of Supreme Court in Abdul Jabbar Memon's case.
(iv) That the respondents be directed to make recruitment to 400 new posts on the basis of merit and after proper advertisement in the national newspapers.
(v) That it be declared that the petitioners be given preference because they are fully trained and have been selected on merits on the basis of test, interview and in response to an
(vi) That the cost of the petition be awarded to the petitioners.
(vii) That any other relief deemed fit and necessary in the circumstances of the case may also be granted.
The brief facts as submitted by the petitioners in their aforesaid Constitutional petitions are that in response to the advertisement in the dailies. "JANG' and 'DAWN" dated 25‑7‑1995 for appointments in the establishment of respondent M/s. PIAC to various posts, the petitioners had applied for the posts of 'Flight Stewards'. In pursuance of their applications, they were called for tests and interviews in accordance with the rules and regulations of respondent M/s. PIAC and were finally selected as Flight Stewards alongwith other .130 candidates. The petitioners were declared successful in the tests and interviews held" by the Board/competent authority and were sent for training for Cabin Emergency Duty at the Training Centre at Karachi which they also successfully completed, whereupon uniform of Cabin Crew/Flight Stewards were provided to them and a passing out ceremony was arranged by the training centre. However, instead of being inducted in service, respondent M/s. PIAC by its letters dated 28‑3‑1997 informed the petitioners that it had been decided not to appoint them as Flight Stewards. Upon such intimation, the petitioners filed Constitutional petitions before this Court as well as Lahore High Court and the Supreme Court of Pakistan. Respondent M/s. PIAC made a statement before the Supreme Court of Pakistan, whereby the impugned notices/orders dated 28‑3‑1997 were treated to have been withdrawn and respondent M/s. PIAC was permitted to take fresh action in accordance with the law. In pursuance of such statement, show‑cause notices dated 3‑12‑1998 were issued to the petitioners, whereby they were intimated that the competent authority had decided not to appoint them as Flight Stewards and further that in case they felt aggrieved by the said decision, then they were required to submit explanations for not taking such a decision. They were also required to appear in person, if they so desired. The petitioners submitted their explanations against the decision not to recruit them as 'Flight Stewards', but respondent M/s. PIAC vide its letters/orders dated 4‑2‑1999 informed the petitioners that it was not possible to induct them in service as there were no vacancies of Flight Stewards. Feeling aggrieved and dissatisfied with the above orders/decisions of respondent M/s. PIAC and having no other alternate, adequate and efficacious forum for redress of their grievance, the petitioners approached this Court by way of the aforesaid Constitutional petitions.
We have heard the arguments of M/s. Abdul Mujeeb Pirzada and Amir Malik, the learned counsel for the petitioners and respondent M/s. PIAC respectively, who had agreed that the aforesaid Constitutional petitions may be disposed of finally at the stage of Katcha Peshi.
Mr. Amir Malik vehemently objected to the maintainability of the aforesaid Constitutional petitions on the ground that the petitioner being civil servants were precluded from invoking the Constitutional jurisdiction of this Court in view of section 2‑A of the Service Tribunals Act and the bar contained in Article 212 of the Constitution of the Islamic Republic of Pakistan. In support of his contention, he referred us to several authorities of the Supreme Court as well as of this Court, where it has been categorically pronounced that the employees of Corporations including M/s. PIAC have acquired the status of civil servants by the newly incorporated section 2‑A in the Service Tribunals Act for the purpose of redress of their grievances relating to the terms and conditions of service and could only approach the Service Tribunal for redress of their such grievances.
Mr: Abdul Mujeeb Pirzada controverted the arguments of Mr. Amir Malik and submitted that the learned counsel for respondent M/s. PIAC in raising the aforesaid objection had completely, lost sight of the fact that the petitioners were never provided employment by respondent M/s. PIAC and had never joined M/s. PIAC as its employees in pursuance of their applications, clearance of tests and interviews, completion of training and provisions of uniforms and, therefore, they did not fall within the definition of civil servants as envisaged in section 2‑A of the Service Tribunals Act. In support of his above contention; Mr. Abdul Mujeeb Pirzada placed reliance on the case of Yousaf Ali v. Sher Malik and 3 others (1998 SCMR 1911.). In this case, the Supreme Court pronounced that where a person who applied for a post under the Government and was not recruited, he did not fall within the category of civil servant and as such bar contained in Article 212 of the Constitution did not apply in his case. The Supreme Court further observed that where an aggrieved person had applied for appointment but did not succeed, he could not be said to be a civil servant for the purpose of agitating the matter with regard to illegal appointment of another person and held that the Constitutional petition filed by the aggrieved party against the illegal appointment of another person was maintainable before the High Court. In view of the above categorical pronouncement by the Supreme Curt in the aforesaid case, the objection raised by Mr. Amir Malik is without any substance and is overruled. We hold that these Constitutional petitions are maintainable as the petitioners not having issued appointment letters and not having served respondent M/s. PIAC as its employees would not fall within the category of civil servants as envisaged in section 2‑A of the Service Tribunals Act and they would be competent to invoke the Constitutional jurisdiction of this Court under Article 199 of the Constitution of Pakistan. The question whether they would be entitled to the reliefs sought by them is an absolutely different issue and would be dependent on the merits of these Constitutional petitions.
Mr. Amir Malik then raised a further objection with regard to the maintainability of these Constitutional petitions on the ground that the petitioners were not aggrieved parties as contemplated in Article 199 of the Constitution inasmuch as they had completely failed to establish the existence of any fundamental or legal right in their favour which was violated by any act of commission' or omission of respondent M/s., PIAC and which ultimately resulted in causing legal injury or loss to the petitioners. In this connection, he further submitted that the petitioners in pursuance of advertisements calling for applications for appointments to the‑ posts of Flight Stewards had submitted their applications and they were informed that they had been found suitable for the position of Trainee Flight Stewards in the Flight Service Department of respondent M/s. PIAC and were called upon to report for completion of employment formalities/collection of joining advice for training which did not confer on the petitioners' right to be appointed‑as Flight Stewards and they could not claim the right to be appointed as Flight Stewards. In this regard, he drew our attention to the letters under the subject of Offer for employment in PIAC' dated 14‑3‑1996 and submitted that a bare perusal thereof would be sufficient to support his contention that the case 4f the petitioners was in the process of consideration for appointments, which were to be made subject to the conditions contained in the aforesaid letters. He further submitted that on scrutiny of the applications and other material submitted by the petitioners it was found that they did not qualify for appointments as Flight Stewards as they were not able to fulfil all the conditions enumerated in the aforesaid letters and accordingly, were duly informed of such decision vide letters dated 28‑3‑1997. He further submitted that these letters were ordered to be withdrawn by the Supreme Court of Pakistan in Civil Appeals Nos. 1422 to 1430 of 1997 and the petitioners were served with fresh letters informing them of the decision not to appoint them as Flight Stewards and also giving them the right to show cause as to why the said decision should not be maintained. Mr. Amir Malik further submitted that in view of the above submissions, it was established beyond any doubt that the petitioners had no guaranteed, fundamental or legal right in their favour with the result that the violation thereof by respondent M/s. PIAC and causing of legal injury or loss to the petitioners did not at all arise and it was sufficient to conclude that the aforesaid Constitutional petitions were misconceived and not maintainable. In support of his above contention, Mr. Amir Malik placed reliance on the cases of (i) Malik Asad Ali and others v. Federation of Pakistan and others (PLD 1998' SC 161) and (ii) Sh. Liaquat Hussain and others v. Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affair Islamabad and others (PLD 1999 SC 504).
In both the aforesaid cases, the Supreme Court. had discussed the issue with regard to the invocation of jurisdiction of this Court under Article 199 of the Constitution and had come to the conclusion that it was necessary for a party1 to establish the existence of a right in his favour which had been violated by an act of commission or omission of a public functionary resulting in the legal injury or loss to such person.
Mr. Amir Malik raised another ground with regard to the right of the petitioners to invoke the Constitutional jurisdiction of this Court and submitted that the appointment/induction of the petitioners in the service of respondent M/s. PIAC was to be governed by the service rules/regulations framed by respondent M/s. PIAC, which were not statutory rules and therefore, the employment in the establishment of respondent M/s. PIAC was to be governed by the principle of master and servant. He further submitted that the contents of the letters dated 14‑3‑1996 and 7‑8‑1996 were ample proof in support of the contention that the petitioners were to be appointed in the service of respondent M/s. PIAC in pursuance of a contract and during the course of their service would not have been entitled to any fundamental or legal safeguards except the guarantees or safeguards made available to the petitioners by the service rules and regulations of respondent M/s. PIAC and the principle of master and servant and submitted that it was a well- established principle that for the purpose of enforcement of contractual obligations, rights and duties, and aggrieved person could not invoke the Constitutional jurisdiction of this Court and was required to approach the normal forum provided under the general law. In support of this above contention, he placed reliance on the following cases:‑‑
(1) Abdul Qayoom and 11 others v. Government of Sindh through Chief Secretary, Sindh, Karachi and 3 others (PLD 1998 Karachi 192);
(2) Messrs Airport Support Services v. The Airport Manager, Quaid‑e‑Azam International Airport, Karachi and others (1998 SCMR 2268)
(3) Nizamuddin and another v. Civil Aviation Authority and 2 others (1999 SCMR 467).
In support of his contention that the employment of employees of a statutory corporation including that of respondent M/s. PIAC, which did not have statutory rules of service, was governed by the principle of master and servant, Mr. Amir Malik placed reliance on the following cases:‑‑
(1) Habib Bank Limited and others v. Syed Ziaul Hassan Kazmi (1998 SCMR 60 ); and
(2) United Bank Limited and others v. Ahsan Akhtar and others (1998 SCMR 68).
Mr. Abdul Mujeeb Pirzada on the other hand vehemently refuted the arguments advanced by Mr. Amir Malik and submitted that after having been informed of being considered for appointments vide letters dated 14‑3‑1996, the petitioners had acquired a right of being inducted in the service of respondent M/s. PIAC subject to the condition that they had successfully completed the training to be imparted to them for working as Flight Stewards. He further submitted that the fact that all the petitioners had successfully completed the training of Flight Stewards would be borne out from the act of respondent M/s, PIAC in providing uniform of Flight Stewards to all the petitioners inasmuch as if any of the petitioners had not successfully completed the training programme, then the question of providing uniforms would not have arisen. He further submitted that in such circumstances, the petitioners were justified in presuming that they had acquired a right to be appointed/inducted in the service of respondent M/s. PIAC as Flight Stewards and this was the vested or the legal right which they had acquired and which was violated by respondent M/s. PIAC by their subsequent letters dated 28‑3‑1997 and 4‑2‑1999.
In order to resolve the controversy, it will be appropriate to reproduce the contents of the letters dated 14‑3‑1996 in extenso which are as under:‑‑
PAKISTAN INTERNATIONAL AIRLINES CORPORATION EMPLOYMENT SECTION 65‑1/B, MUHAMMAD ALI HOUSING SOCIETY, KARACHI
EMP: REC: J.O. 3078/95
14th March, 1996
Mr. Talat Hussain.
Subject: OFFER FOR EMPLOYMENT IN PIAC
Dear Sir/Madam
1. Reference your application requesting for employment in PIAC as Flight Stewards, Pay Group IV. We are pleased to inform you that on scrutiny of your application you have been considered for appointment: However, your employment will be subject to the following conditions:‑‑
Assessment by Selection. Board for suitability Medical fitness/Physical specification.
Security clearance / police verification from appropriate authority.
Release certificate from previous employer, if any.
Your service will be governed under the terms and conditions and laid down in the PIAC Admin Manual/PIAC Employee (Service and Discipline) Regulations, 1985 and orders instructions issued by the Management from time to time.
Your appointment is liable to be terminated if any certificate submitted or produced by you is found to be false at any stage.
Your service will be liable to termination, if at any stage any adverse report or information is received about your antecedents, conduct or behaviour from your former employer, police department or any other agency/authority.
2 You are advised to report to Manager Employment PIAC on the above address on 19th March, 1996 at 10‑00 hours.
3. Please bring along original testimonials, NIC Card, Domicile 'Certificate, TA/DA not admissible
Yours faithfully
for PAKISTAN INTERNATIONAL AIRLINES CORPORATION
(Sd.)
BASIT ALI KHAN, MANAGER EMPLOYMENT.
A bare perusal of the contents of the aforesaid letters would reveal that it was not an order of employment of the petitioners but contained an offer to the petitioners for their employment in the establishment of respondent M/s. PIAC subject to the conditions mentioned therein. This is further proved by letters dated 7‑8‑1996 issued to the petitioners advising them to report to the Manager Training, Flight Service, PTA Head Office for making arrangement for their training in PTA Training Centre, Karachi Airport. It will also be appropriate to reproduce the contents of the aforesaid letters in extenso which are as under:‑‑
No. EMP PLC:05:30:96 Dated 7th August, 1996
Mr. Tilat Hussain, S/o Faiz Muhammad Faiz (Late) U.T.No.2781.
SUBJECT: TRAINING ADVICE TRAINEE FLIGHT STEWARD
You are directed to report to Manager Training Flight Service, PTA Head Office, Karachi Airport immediately for making arrangements for your training in PTA Training Centre, Karachi Airport.
(Sd.)
SYED MOZAFFAR HUSSAIN, ASSTT. MANAGER EMPLOYMENT
cc Chief Instructor, Flight Service.,
PIA Training Centre, Karachi Airport.
cc Manager (Training and Development), Flight Service Department, PIA Head Office, Karachi Airport.
The petitioners have not brought on record any material which could establish that all of them had successfully completed their training as Flight Stewards or that all of them were provided with uniforms of Flight Stewards after completion of training which fact, according to Mr. Abdul Mujeeb Pirzada was sufficient to establish the factum of successful completion of training by all the petitioners. It will not be out of place to mention here that Mr. Amir Malik had vehemently controverted the claim that uniforms were provided to all the petitioners. In view of the rebuttal of the claim of the petitioners of successful completion of training by all of them and provision of uniforms to them, the question would require inquiry and investigation which will not be possible merely on the basis of the documents/material on record. Mr. Abdul Mujeeb Pirzada in support of his above contention placed reliance on the cases of:
(1) Mrs. Anisa Rehman v. PIAC and another (1994 SCMR 2232);
(2) Director, Social. Welfare, N.‑W.F.P., ‑Peshawar v. Sadullah Khan (1996 SCMR 1350);
(3) Judgment of the Supreme Court in C.P.L.A. No. 1573 of 2000 (PIAC v. Aliya Hashmi); and ,
(4) Judgment of the Supreme Court in Civil Appeals Nos.330 to 337 and 436 of 1999 (Pakistan International Airlines (PIAC) through its Chairman and others v. Nazir Jarnal Malik and others).
We have considered the respective arguments advanced by the learned counsel for the parties with regard to the existence of a fundamental or legal right in favour of the petitioners, violation thereof by the acts of commission or omission of respondent M/s. PIAC and the resultant legal injury or loss, if any, to the petitioners and we are of the opinion that in view of the facts and circumstances mentioned above, the petitioners have failed to establish the existence of fundamental or legal right to claim appointments/induction as Flight Stewards in the establishment of respondent M/s. PIAC on the basis of the aforesaid letters dated 14‑3‑1996 and 7‑8‑1996 inasmuch as the contents of the aforesaid letters clearly reveal that the petitioners were to be appointed/inducted in the service of respondent M/s. PIAC on the basis of agreement or contract of employment in accordance with…
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