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Petitioner: ASDULLAH MANGI VS Respondent: PAKISTAN INTERNATIONAL AIRLINES CORPORATIONHonorable Justice JAVED IQBALAbdul Mujeeb Pirzada,Muhammad Yawar Ali
2005 P L C (C
2005 P L C (C.S.) 771
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ
ASDULLAH MANGI and others
Versus
PAKISTAN INTERNATIONAL AIRLINES CORPORATION and others
Civil Appeals Nos. 1959 to 1962 of 2001, heard on 1st June, 2004.
(On appeal from the judgment of the High Court of Sindh, at Karachi, dated 19‑7‑2001 passed in C.P. Nos.D‑1587, 1588/97, 801, 1420 and 1534 of 1999).
(a) Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations, 1985‑‑‑
--‑Constitution of Pakistan (1973), Arts. 185(3) & 25‑‑‑‑Non‑induction in service of Flight Stewards on completion of training and getting crew uniform‑‑‑Allegation was that petitioners were fully trained Flight Stewards and they received training at the PIA Training Centre, and that, on completion of the training they got PIA crew uniform but were not appointed as Flight Stewards while others who had also got training with them were inducted in service‑‑‑Leave to appeal was granted by the Supreme Court to consider the questions as to whether the petitioners were discriminated by way of violation of Art.25 of the Constitution; whether the impugned letters/orders of not inducting the petitioners in service of Corporation were mala fide, illegal and without lawful authority and whether the Corporation violated the order of Supreme Court passed in various petitions by not appointing the petitioners in service.
(b) Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations, 1985‑‑‑
‑‑‑‑Constitution of Pakistan (1973), Art. 25‑‑‑Contention of the appellants was that they were fully trained Flight Stewards as they had completed the training at the PIA Centre for Flight Stewards and were given crew uniform but had not been inducted in service though others who took training with them had been inducted and thus the appellants had been discriminated against by infringing their Fundamental Right under Art. 25 of the Constitution‑‑‑Validity‑‑-Perusal of "letter of offer for employment" indicated that it was an "offer" simplicitor which could not be equated to that of "appointment"‑‑‑Letter of offer reflected that the appellants were advised to report to the Manager Employment of the Corporation for further action‑‑‑Procedural formalities were completed by the said letter and the same had got no concern with actual appointment‑‑‑"Offer for employment" in the Corporation as Trainee Flight Steward was subject to completion of training and Letter of offer by no stretch of imagination could be considered as an appointment letter‑‑‑Appellants were never appointed as Flight Steward but admittedly they were selected as a Trainee Flight Steward on the basis whereof it could not be inferred that they were in fact appointed as Flight Steward; there was a difference between a "Trainee Flight Steward" and a "Regular Appointee as Flight Steward" and a line of distinction was to be brought between the two‑‑‑Appellants had been informed by means of letter that as a result of review of the relevant record, they could not be inducted as Flight Stewards because their selection was made due to Political pressure at the relevant time which was irregular‑‑‑No vested of legal right whatsoever, in circumstances, had accrued in favour of the appellants, hence the question of its infringement did not arise‑‑‑Supreme Court observed that it was an admitted feature of the case that the appellants had undergone selection procedure and also sent for professional training of Flight Steward and were also paid stipend by the Corporation it would be in the interest of justice, fairplay and equity, if the cases of the appellants were considered on humanitarian grounds as fresh candidates subject to completion of all legal formalities‑‑‑Supreme Court, however, pointed out that no action whatsoever was taken against the functionaries of the Corporation by whom selection of the appellants was made, and huge amount was spent on their training and for making such an irregular and unlawful exercise, merely on the directions of Prime Minister Secretariat, having no legal sanctity behind it‑‑ Principles.
Abdul Jabbar Memon In re: 1996 SCMR 1349 fol.
Asad Ali v. Federation of Pakistan PLD 1998 SC 161 and Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504 ref.
(c) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art.199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑ Foundation of an application under Art. 199 of the Constitution is a personal and individual right‑‑‑Principles.
The right which is the foundation of an application under Article 199 of the Constitution is a personal and individual right. The legal right may be a statutory right or a right recognized by the law. A person can be said to be aggrieved only when a person is denied a legal right by someone who has a legal duty to perform relating to the right. There must not only be a right but a justiciable right in existence, to give jurisdiction to the High Court in the matter. Unless whatever right, personal or otherwise, on which the application is based is established, no order can be issued under Art. 199.
Muntizma Committee v. Director K.A. PLD 1992 Kar. 54; Mahmoona v. Ilam Din PLD 1984 Lah. 228; Assam Fisheries Farms and Industries Ltd. v. The Development Commissioner Assam and others AIR 1953 Assam 155 and Mehboob Khan v. Deputy Commissioner Lakhimpur and others AIR 1953 Assam 145 ref.
(d) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art.199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Civil service‑‑‑Suitability for appointment‑‑‑Assessment‑‑‑Jurisdictional domain of appointing authority‑‑‑Scope‑‑‑Exercise of discretion, whether fair and transparent ‑‑‑Justiciability‑‑‑ Principles‑‑‑Mala fide or colourable action or action taken upon extraneous or irrelevant considerations or upon no ground at all or without proper application of mind of an authority‑‑‑Effect.
Assessment of suitability for appointment being subjective assessment exclusively falls within the jurisdictional domain of appointing authority which cannot be compelled to make any appointment. The exercise of discretion, if it is fair and transparent cannot be justiciable in the absence of any mala fide which though was alleged but could not be substantiated by producing any cogent and concrete evidence.
An action which is mala fide or colourable is not regarded as action in accordance with law. Similarly, action taken upon extraneous or irrelevant considerations is also not action in accordance with law. Therefore, action taken upon no ground at all or without proper application of the mind of an authority would also not qualify as an action in accordance with law and would, therefore, have to be struck down as being taken in an unlawful manner.
The State v. Zia‑ur‑Rehman PLD 1973 SC 49 and Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14 ref.
(e) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art.25‑‑‑Equality of citizens‑‑‑Concept.
"Equality of citizens" does not mean that all laws must apply to all the subjects or that all subjects must have the same rights and liabilities. The conception of equality before the law does not involve the idea of absolute equality among human beings which is a physical impossibility. The Article guarantees a similarity of treatment and not identical treatment. The protection of equal laws does not mean that all laws must be uniform. It means that among equals the law should be equal and should be equally administered and that the like should be treated alike, and that there should be no denial of any special privilege by reason of birth, creed or the like and also equal subjection of all individuals and classes to the ordinary law of the land.
Gul Khan v. Government of Balochistan PLD 1989 Quetta 8 ref.
(f) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art. 25‑‑‑Applicability of Art.25 of the Constitution‑‑‑Scope‑‑‑Article 25 of the Constitution would not be applicable to Pakistan International Airlines Corporation since a Corporation being an autonomous corporation cannot be forced to make employment which otherwise is not in the interest of Corporation or has adverse effects on its commercial position.
(g) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art.25‑‑‑Equality of citizens‑‑‑Discrimination‑‑‑Bias‑‑‑Powers of Court to administer supposed equity‑‑‑Scope‑‑‑Principles.
Discrimination always involves an element of unfairness and bias and it is in that sense that the expression has to be understood. The factum of bias could not be substantiated by any convincing evidence. A Court of Law cannot exercise unfettered or unrestricted powers to administer supposed equity not based on justiciable foundation and it must be satisfied before exercising its power that some illegal wrong has been inflicted or is about to be inflicted on the appellants.
Manjula v. D. P.I. AIR 1952 Orissa 344; Siddiq Ahmad v. Estate Officer, Government of Pakistan PLD 1957 (W.P.) Kar. 887; Jeshingbhai Ishwarlal v. Emperor AIR 37 1950 Bom. 363; Bagaram Tuloule v. The State of Bihar AIR 1950 Patna 387; Harnam Singh v. The State of Punjab AIR 1952 Punj. 76 and Badri Prasad v. President, District Board, Mirzapur AIR 1952 All. 681 ref.
(h) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art.199‑‑‑Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations, 1985‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑ Petitioner before invocation of Constitutional jurisdiction must show that he had a clear legal right not susceptible to any reasonable doubt or controversy‑‑‑Letter of offer for employment as "Flight Stewards" in the Corporation‑‑‑Question as to whether the training was completed or not, uniforms were provided or not, passing out parade was held or not, applications were moved through back door or not were the questions of fact which could not be determined in Constitutional jurisdiction.
Khairuddin v. Settlement Commissioner 1988 SCMR 988 ref.
(i) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art.199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Object of proceedings initiated under Art. 199 of the Constitution is the enforcement of a right and not the establishment of legal right and therefore, the right of the incumbent concerned which he seeks to enforce, must not only be clear and complete but simplicitor and there must be an actual infringement of the right.
Kandaswamy and others v. The Deputy Registrar of Cooperative Societies, Coimbatore and another AIR 1954 Mad. 348 ref.
(j) Vested right‑‑‑
‑‑‑‑Exercise of‑‑‑Scope‑‑‑Vested right is free from contingencies, but not in the sense that it is exercisable anywhere and at any moment‑‑‑There is hardly any right which can be so exercised and there must always be occasions at which and circumstances under which they may be exercised‑‑‑Such rights have peculiar characteristics of their own.
Zaman Cement Company (Pvt.) Ltd. v. Central Board of Revenue 2002 SCMR 312 ref.
Abdul Mujeeb Pirzada, Senior Advocate Supreme Court with M.S. Khattak, Advocate‑on‑Record for Appellants (in all cases).
Muhammad Yawar Ali, Advocate Supreme Court for Respondents (in all cases).
Date of hearing: 1st June, 2004.
JUDGMENT
JAVED IQBAL, J.‑‑‑The above captioned appeals with leave of the Court are directed against the judgment, dated 19‑7‑2001 passed by a learned Division Bench of the High Court of Sindh, Karachi, whereby the Constitutional petitions preferred on behalf of appellants have been dismissed.
2. Leave to appeal was granted by this Court vide order, dated 3‑10‑2001 which is reproduced hereinbelow to appreciate the legal and tactual aspects of the controversy:‑‑‑
"Common questions are involved in Civil Petitions Nos.767‑K to 770‑K of 2001. The relevant facts are as follows.
(2) It is alleged that the petitioners are fully trained Flight Stewards and they received training at the PIA Training Centre, Karachi Airport in the year 1996 and that on completion of the training they got P.I.A.C. crew uniforms. According to the petitioners the Flight Stewards, who had completed training along with the petitioners, were inducted in service of P.I.A.C. and are performing duties assigned to them. The petitioners, however, were not appointed as Flight Steward by the respondent on the ground mentioned in the letter, dated 28‑3‑1997.
(3) These petitions are time‑barred by one day. Under the circumstances, the delay is condoned.
(4) Inter alia, leave to appeal is granted to consider the following:‑‑‑
(a) Whether the petitioners were discriminated by way of violation of Article 25 of the Constitution?
(b) Whether the impugned letters/orders of not inducting the petitioners in service of P.I.A.C. are mala fide, illegal and without lawful authority?
(c) Whether the respondents violated the order of this Court dated 16‑3‑1998 passed in various petitions including Civil Appeal No.1422 of 1997 by not appointing the petitioners in service?
(5) These appeals be fixed for final hearing at an early date. "
3. We have heard Mr. Abdul Mujeeb Pirzada, learned Advocate Supreme Court on behalf of appellants and Mr. Muhammad Yawar Ali, learned Advocate Supreme Court who entered appearance on behalf of P.I.A.C: (respondent) at length. They have also submitted their written arguments. Mr. Abdul Mujeeb Pirzada, learned Advocate Supreme Court on behalf of appellants has urged emphatically that the legal and factual aspects of the controversy have not been appreciated in its true perspective by the learned High Court, which resulted in serious miscarriage of justice. It is contended that the learned High Court has erred while holding that selection of the appellants was irregular based on political and extraneous consideration and they were not eligible and qualified for such posts for the reasons that the appellants were eligible and after having completion of all necessary formalities, they were appointed as Flight Stewards pursuant to advertisements appeared in various leading newspapers of the country and moreso they had qualified not only written tests but also cleared by the Selection Board after interview and thereafter, they were to be appointed as Flight Stewards. It is also pointed out that on successful completion of training, they were not posted against vacant vacancies of the flight Stewards. Mr. Abdul Mujeeb Pirzada, learned Advocate Supreme Court on behalf of appellants urged with vehemence that there was no departure or deviation from any rule, bylaws or instruction prevalent on the relevant time for such appointments, hence by no stretch of imagination the appointments can be declared as irregular. It is also argued that no evidence worth the name has come on record showing that any political pressure was exerted by the appellants. It is next argued that in view of clause 'c' of the letter whereby the posts of Flight Stewards were offered to the appellants could not have been cancelled or withdrawn by the P.I.A.C. because for all practical purposes the appellants were appointed as Flight Stewards in Pay Group IV after having gone through the requisite training and valuable vested rights accrued in favour of the appellants to be appointed in Pay Group IV. In order to substantiate the said arguments, the principle of Promissory Estoppel has been pressed into service. It is also contended that no opportunity of hearing whatsoever was afforded to the appellants against the action impugned in violation of the principle of natural justice, equity and fairplay and on this score alone the judgment impugned is liable to be set aside. It is argued that the impugned order has been passed in violation of provisions as contained in Article 4 of the Constitution of the Islamic Republic of Pakistan which guarantees the right to every individual to be dealt with in accordance with law. It is mentioned that the impugned action is also not in consonance with the provisions as contained in Article 25 of the Constitution. Mr. Abdul Mujeeb Pirzada, learned Advocate. Supreme Court on behalf of appellants, argued that it is a case of sheer discrimination as the trainees of earlier Batches Nos.267 to 273, who were selected along with the appellants, were appointed and the appellants have been discriminated without any lawful justification and therefore, the impugned orders have no legal value whatsoever in the eye of law and thus is liable to be struck down. In this particular regard, reference has been made to the appointment letters issued in favour of Mrs. Samina Jaffar and five other girls who were appointed after having received training in Batch No.278, Mr. Abdul Mujeeb Pirzada, Advocate Supreme Court, pointed out that more than 200 posts are presently lying vacant and 40 crew members have been appointed on contract basis due to acute shortage of staff by ignoring the appellants who had completed their training and deserve preference over the new appointees. It is urged that once the appellants were selected and sent for training, their services could have only been terminated by invoking relevant provisions of P.I.A.C. Admn. Manual/P.I.A.C. Employees (Service and Discipline) Regulations, 1985 and they could not have been refused posting on flimsy grounds having no sanctity of law. It is argued that the P.I.A.C. being autonomous corporation must act fairly, justly, reasonably and in a transparent manner but on the contrary, P.I.A.C. has taken the action impugned in an arbitrary, capricious and whimsical way without application of independent mind but in a haphazard manner.
4. Mr. Muhammad Yawar Ali, learned Advocate Supreme Court appeared on behalf of P.I.A.C. (respondent) and strenuously controverted the view point of Mr. Abdul Mujeeb Pirzada, learned Advocate Supreme Court on behalf of appellants with the submission that impugned order being well based does not warrant interference. It is submitted that the writ petitions preferred on behalf of appellants were not maintainable and they should have approached the learned Service Tribunal for the redressal of their grievances in view of the provisions as contained in section 2‑A of the Service Tribunals Act. It is also contended that the appellants were not aggrieved parties as contemplated in Article 199 of the Constitution because no vested legal right whatsoever was accrued in their favour and hence the question of its implementation or infringement does not arise. It is contended that pursuant to advertisement made for the posts of Flight Stewards, the appellants were called upon to report for completion of certain necessary formalities but such invitation does not amount to confer any legal right upon the appellants. It is urged with firmness that no appointment letter whatsoever was issued in favour of the appellants and they were never posted against the vacancies of Flight Steward. The learned Advocate Supreme Court has mentioned the letter, dated 14‑3‑1996, which according to him could not be equated with that of "appointment or posting" but on the contrary it dealt with certain procedural requirements and process of consideration for appointment of Flight Stewards. It is argued that on thorough scrutiny of applications submitted by the appellants, they were not found eligible for such appointments and they were informed accordingly by means of letter, dated 28‑3‑1997 which was subsequently withdrawn on the direction of the Honourable Supreme Court and after completion of mandatory formalities the action impugned was taken. It is stressed time and again by the learned Advocate Supreme Court on behalf of P.I.A.C. that the appellants had no guaranteed fundamental or legal right, hence, the question of violation of provisions as contained in Article 4 or 25 of the Constitution of Islamic Republic of Pakistan, does not arise. It is also contended that merely on the basis of conjectural presumptions and wishful thinking, it cannot be inferred that the appellants were appointed as Flight Stewards. It is also mentioned that since the appellants were never appointed as Flight Steward, therefore, the question of compliance of relevant provisions of P.I.A. Admn. Manual/P. I.A.C. Employees (Service and Discipline) Regulations, 1985 does not arise. It is also mentioned that only the deserving and eligible candidates were appointed as Flight Stewards and moreso, the question of assessment of suitability falls within the exclusive domain of P.I.A.C. It is argued that it was not for the appellants to assess their suitability but it was for the P. I. A. C. to determine as to whether they were suitable for the job or otherwise and P.I.A.C. being autonomous corporation cannot be compelled to make such appointments. It is also pointed out that no evidence could be produced showing that the action impugned was discriminatory.
5. We have carefully examined the respective contentions of the parties in the light of relevant provisions of law and record of the case. We have also minutely perused the judgment impugned. After having gone through the entire record of the case, we feel that the pivotal question which needs determination would be as to whether the appellants have ever been appointed as Flight Steward or otherwise? Before this aspect of the, matter could be adverted to, it seems appropriate to examine the documents relied upon by the appellants in support of their claim that they were appointed as Flight Steward by the P.I.A.C. It must be kept in view that consideration for appointment and factual appointment is not synonymous or interchangeable terms. The first letter relied upon by the appellants is reproduced herein-below for ready reference:‑‑‑
"Pakistan International Airlines Corporation Employment Section 65‑1/B, Muhammad Ali Housing Society, Karachi.
EMP: REC: J.O.3078/95 14 March, 1996.
Subject: Offer for Employment, in P. I. A. C.
Dear Sir/Madam,
(1) Reference your application requesting for employment in P.I.A.C. as Flight Steward, 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 as laid down in the P. I. A. C. Admin Manual/P. I. A. C. Employees (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 behavior from your former employer, police department. Or any other agency/authority.
(2) You are advised to report to Manager Employment P.I.A.C. on the above address on 19th March, 1996 at 1000 Hours.
(3) Please bring along original testimonials, NIC Card, Domicile Certificate, TA/DA not admissible.
Yours faithfully, Pakistan International Airlines Corporation"
A bare perusal of the above mentioned letter would indicate that it is an offer simplicitor as is indicative from the subject of the letter i.e. Offer For Employment of P.I.A.C. The above mentioned "Offer" cannot be equated to that of "appointment". The letter reflects that the appellants were advised to report the Manager Employment P.I.A.C. for further action. In our view, the procedural formalities were completed by the above mentioned letter and it has got no concern with actual appointment.
6. The second letter which has been relied upon by the learned Advocate Supreme Court heavily on behalf of appellants, was addressed to them on 19‑8‑1996 which is reproduced herein below for ready reference:
"Pakistan International Airlines Corporation Manpower Planning Division Employment Section.
65‑1/B, Muhammad Ali Housing Society, Karachi
No. EMP: PLC: 05:30:96 Dated 19th August, 1996
Subject: Offer for Employment in P.I.A. as Trainee Flight Steward.
Dear Sir,
1. We are pleased to inform you that you have been selected as Trainee Flight Steward. Your selection will be subject to the following terms and conditions:‑‑‑
(a) During training as Trainee Flight Steward you will be paid stipend of Rs.1575 p.m.
(b) You will be required to execute a bond to serve P.I.A. for a period of 5 years commencing after successful completion of training.
(c) On completion of training you will be appointed in Pay Group IV in the Scale of Rs.2575‑170‑3425 along with other allowances and benefits as per rules of the Corporation. (Emphasis provided).
Other terms and conditions
(i) Your employment in the Corporation…
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