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Petitioner: DEMOCRACTIC WORKERS' UNION C.B.A. VS Respondent: STATE BANK OF PAKISTAN
2002 P L C (C
2002 P L C (C. S.) 614
[Karachi High Court]
Before Saiyed Saeed Ashhad, C. J. and Wahid Bux Brohi, J
DEMOCRACTIC WORKERS' UNION C.B.A.
versus
STATE BANK OF PAKISTAN and others
Constitutional Petition No. D‑1892 of 2000, decided on 7th February, 2001
(a) State Bank of Pakistan Staff Regulations, 1999‑‑‑
‑‑‑‑Regln. 6‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Invoking of Constitutional jurisdiction of High Court in a representative capacity‑‑ Petitioner, a Collective Bargaining Agent of the employees could not claim locus standi to invoke the Constitutional jurisdiction of High Court for the alleged violation of legal or Fundamental Rights of its members as provisions of Art. 199 of Constitution, could not be invoked by a person in a representative capacity for redressal of a grievance of a third person.
Haji Mojakar Ali v. Regional Transport Authority, Sylhet and others PLD 1967 Dacca 6; The Punjab Miners Labour Union v. The West Pakistan Industrial Development Corporation, Jhelum PLD 1972 Lah. 489; Ch. Jalal‑ud‑Din and another v. Settlement Commissioner, Lahore and others 1968 SCMR 995: Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416; Ardeshir Cowasj'ee and 20 others v. Karachi Building Control Authority, Karachi Metropolitan Corporation and 4 others 1999 SCMR 2883; Mohtarma Benazir Bhutto and another v. President of Pakistan and others PLD 1998 SC 388; Al‑Jehad Trust and others v. Federation of Pakistan and others PLD 1996 SC 324; Mian Muhammad Nawaz Sharif v. Federation of Pakistan and others PLD 1993 SC 374; Government of Balochistan through Chief Secretary v. Azizulah Memon and 16 others PLD 1993 SC 341; Abdul Jabbar Memon and others 1996 SCMR 1349; Pakistan Tabacco Company Ltd. and another v. Federation of Pakistan through Secretary, Ministry of Commerce, Islamabad and 3 others 1999 SCMR 382;. Dr. Muhammad Tahir Achakzai and others v. Government of Balochistan and others 1999 SCMR 1689; Nizamuddin and another v. Civil Aviation Authority and 2 others 1999 SCMR 467; Sardar Farooq Ahmad Khan Leghari and others v. Federation of Pakistan and others PLD 1999 SC 57 and Multiline Associates v. Ardeshir Cowasjee and others 1995 SCMR 362 ref.
(b) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art. 184(3)‑‑‑Public interest litigation‑‑‑Jurisdiction of the Supreme Court under Art. 184(3) of Constitution, was much more wider‑‑‑If it could be shown that the question raised was r‑,f a public importance and related to violation of Fundamental Rights guaranteed under the Constitution of a reasonable large section of people, public interest proceedings could be initiated by any person who had some interest in such proceedings without having any personal grievance.
Malik Asad Ali and others v. Federation of Pakistan through Secretary, Law, Justice and Parliamentary Affairs, Islamabad and others PLD 1998 SC 161 and Sh. Liaquat Hussain and others v. Federation of Pakistan through Ministry of Law. Justice and Parliamentary Affairs, Islamabad and others PLD 1999 SC 504 ref.
(c) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art. 199‑‑‑Public interest litigation‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑High Court in exercise of its Constitutional jurisdiction could not entertain a petition relating to public interest litigation unless and until the person invoking the said jurisdiction succeeded in establishing a violation of any of his legal or Fundamental Rights‑‑‑High Court would not exercise its jurisdiction in respect of a petition wherein the petitioner sought violation of Fundamental Rights of a large section or a large number of people without specifying the personal grievance or injury suffered by him.
(d) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art. 199‑‑‑Civil service‑‑‑Promotion‑‑‑Constitutional petition‑‑ Maintainability‑‑‑Promotion of civil servant was not a right and 'no Constitutional petition by a civil servant would be maintainable for obtaining a direction or order for his promotion.
M.A. Rafique v. Managing Director (Power), WAPDA and 7 others 1990 SCMR 927 and Province of West Pakistan v. Muhammad Akhtar Qureshi and others PLD 1962 SC 428 ref.
(e) Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑S. 2‑A‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Civil service‑‑ Constitutional jurisdiction, exercise of‑‑‑Status of the employees of petitioner trade union being that of a civil servant in view of S.2‑A of Service Tribunals, Act, 1973, the petitioner was precluded from invoking the Constitutional jurisdiction of High Court in relation to any matter relating to the terms and conditions of service of its members.
(f) State Bank of Pakistan Staff Regulations, 1999‑‑
‑‑‑‑Reglns. 6(ii)(iii) & .10‑‑‑Constitution of Pakistan (1973), Arts.4, 9, 18, 25 & 199‑‑‑Constitutional petition‑‑‑Appointment of Officers‑‑‑Validity‑‑ Appointments of officers made by the Governor of the Bank in pursuance of policy decision in consultation with the members of the Board of Directors/Central Board, had been challenged in Constitutional petition alleging that said appointments were mala fide, prejudicial to the interest of aggrieved persons, contrary to the provisions of law and in violation of vested, legal and Fundamental Rights of the petitioners ‑‑‑ Appointments were made in pursuance of a policy decision with a view to harmonize, improve and streamline the working of the Bank and to provide training and knowledge to the Officers of the Bank‑‑‑In absence of any mala fide, ill‑will element of favourtism, illegality, any, violation of any Fundamental Rights and any contravention of any provisions of the law or the Constitution, said appointments could not be challenged in Constitutional petition before High Court.
Mian Muhammad Nurullah and 2 others v. District Magistrate, Lahore and 3 others 1970 SCMR 214; Zohra and 5 others v. The Government of Sindh, Health Department through its Secretary, Sindh Secretarial, Karachi and another PLD 1996 Kar. 1; 1995 PLC (C.S.).251; 1990 PCr.LJ 121; PLD 1978 Lah. 273; PLD 1999 Kar. 472; 1991 SCMR 483; 1998 PLC (C.S.) 1175; 2000 YLR 4; PLD 1990 SC 295; 1992 SCMR 563; PLD 1992 SC 723 and 2000 CLC 148 ref.
Abdul Mujeeb Pirzada for Petitioner. K.M.A. Samdani for the State Bank of Pakistan. Syed Zaki Muhammad, Dy. A.‑G. for the Government of Pakistan.
Date of hearing: 7th February, 2001.
JUDGMENT
SAIYED SAEED ASHHAD, CJ.‑‑‑In this Constitutional petition the petitioner has sought the following reliefs:‑‑
(a) That the appointment of respondents 3 to 30 be declared as without lawful authority, mala fide, without jurisdiction, arbitrary and nullify in the eye of law and, therefore, void and of no legal effect.
(b) That the respondent S.B.P. may be directed to frame recruitment policy prior to making any fresh appointments in the Bank.
(c) That the respondent S.B.P. may be directed not to make any further appointments through direct recruitment or otherwise, during the pendency of this petition.
(d) That the respondent No‑A be directed to make appointments on the basis of Regional and Provisional quota fixed by the Federal Government.
(e) That any other relief(s) deemed fit and necessary in the circumstances of the case may also be granted.
The brief facts as stated by the petitioner, who is the Trade Union and the C.B.A. in the establishment of respondent No.1, are that respondent No. l inducted respondents Nos. 3 to 30 as officers in the respondent‑bank in violation of the Staff Regulations as well as judgment of the Supreme Court in Abdul Jabar Memon's case. It has further been stated that the petitioner is aggrieved by the appointments of these 28 officers on salaries ranging from 18,000 to Rs.4,47,656 per month. The petitioner asserted that. Such appointments were without lawful authority, and were based on favourtism in violation of the fundamental rights as well as of Regulation 6(ii)(iii) of the State Bank of Pakistan Staff Regulations, 1999. The appointments were also challenged on the ground that they were in violation of the agreements dated 14‑7‑1994 and 29‑10‑1997 arrived at between the petitioner and respondent No.1.
Comments were filed on behalf of the official respondents, wherein they raised preliminary objections with regard to the maintainability of the Constitutional petition to the following effect:‑‑
(1) The petitioner, Collective Bargaining Agent (CBA), is not competent to file this petition inasmuch as Constitutional petition can be filed only by the aggrieved person or persons and not by their representatives.
The General Secretary of the C.B.A., Mr. Sahi, was not authorised by the General Body as asserted in the writ petition. The authorization was made only by the Central Body of the C.B.A. Even if it be assumed that the Constitutional Petition has been competently filed by the employees of the State Bank represented by the petitioner C.B.A., no vested right of the said employees has been violated. Therefore, neither the said employees nor their C.B.A. has the locus standi to file this writ petition.
(3) There is no violation of any law or any statutory rule or regulation in .the appointment of the respondents Nos.3 to 30 and, therefore, the jurisdiction of this Hon'ble Court under Article 199 of the Constitution is not attracted.
The matter agitated in the Constitutional Petition is a service matter and the employees of the State Bank are civil servants in view of section 2‑A of the Service Tribunals Act, 1973. Therefore, Article 212 of the Constitution is a bar against the jurisdiction of this Hon'bIe Court.
At any rate, the impugned appointments have been made on contract exactly in 4ccordance with Regulation 10 of the State Bank of Pakistan Staff ‑Regulations, 1999. Thus, the petitioner has no case.
It was submitted on behalf of the respondent that the appointments were made under Regulation 10 of the Staff Regulations, 1999, which was in supersession of all the provisions of the Staff Regulations and further that no vested right of the petitioner or the employees represented by it was affected by such appointments, it was denied that the aforesaid appointment in any manner violated the provisions of Articles 9 and 18 of the Constitution of Pakistan. It was further submitted that the employment of the officers in questions on contract basis were made in accordance with relevant law, rules and regulations and approved policy of the Central Board of the respondent Bank.
Affidavit‑in‑rejoinder was filed by the General Secretary of the petitioner in reply to the; comments filed on behalf of respondent‑Bank, wherein the preliminary objections raised on behalf of the respondent‑Bank were vehemently controverted and denied and it was submitted that the petition was maintainable as there was violation of fundamental rights of the petitioner in particular and people of Pakistan in general and fell within the definition of public interest litigation. It was further submitted that the State Bank of Pakistan had retrenched thousands of employees on the ground that is was financially under pressure and not in good economic shape but on the other hand it appointed officers on salaries ranging from Rs.15,000 to Rs.6,000 per month.
In view of the preliminary objections raised by Mr. K,.M.A. Samdani with regard to the maintainability of the petition, the learned counsel for the parties were directed to advance arguments with regard to the maintainability of the petition and merits would be considered only if it was held that the petition was maintainable.
We have heard the arguments of M/s. Abdul Mujeeb Pirzada, K.M.A. Samdani, and Syed Zaki Muhammad, the learned counsel for the parties, have also perused the material on record, the relevant provisions of law and the case‑law relied upon by the learned counsel in support of their respective arguments. Mr. Syed Zaki Muhammad, the learned D.A.‑G., adopted the arguments of Mr. K.M.A. Samdani.
Mr. K.M.A. Samdani in support of the preliminary, objections submitted that in order to invoke the Constitutional jurisdiction of this Court under Article 199 of the Constitution of Pakistan, it was, necessary that the person should be an aggrieved person and, that aggrieved person has been defined as a person who had a legal or fundamental right, which was violated by any act of commission or omission of a public functionary resulting in legal injury and loss to the person.
Mr. K.M.A. Samdani in support of his preliminary objections placed reliance on the cases of (i) Haji Mojakar Ali v. Regional Transport Authority, Sylhet and others (PLD 1967 Dacca 6); (ii) the Punjab Mines Labour Union v. The West Pakistan Industrial Development Corporation, Jhelum (PLD 1972 Lahore 489); and (iii) Ch. Jalal‑ud‑Din and another v. Settlement Commissioner, Lahore and others (1968 SCMR 995).
Mr. Abdul Mujeeb Pirzada, on the other hand, vehemently refuted the objection with regard to the locus standi of the petitioner to file the above petition and submitted that there was violation of the fundamental rights of the petitioner as well as fundamental right's of the people of Pakistan contained in Articles 4, 9, 18 and 25 of the Constitution of Pakistan, as a result of which this petition amounted to a public interest litigation for which Article 199 of the Constitution could be pressed into action as for maintainability of a Constitutional petition under Article 199 of the Constitution which involved violation of fundamental rights of a large section of people or of a large number of the citizens, it was not necessary for the petitioner to be an aggrieved person within‑ the meaning of Article 199 of the Constitution and it was sufficient for him to show some interest in the issue involved concerning violation of fundamental rights of a large number of citizens. In support of his above contention, he placed reliance on the cases of (i) Miss Benazir Bhutto v. Federation of Pakistan and another (PLD 1988 SC 416); (ii) Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (Karachi Metropolitan Corporation and 4 others) (1999 SCMR 2883); (iii) Mohtarma Benazir Bhutto and another v. President of Pakistan and others (PLD 1998 SC 388); (iv) Al‑Jehad Trust and others v. Federation of Pakistan and others (PLD 1996 SC 324); (v) Mian Muhammad Nawaz Sharif v. Federation of Pakistan and others,(PLD 1993 SC 374); (vi) Government of Balochistan through Chief Secretary v. Azizullah Memon and 16 others (PLD 1993 SC 341); (vii) In re: Abdul Jabbar Memon and others (1996 SCMR 1349); (viii) Pakistan Tabacco Company Ltd. and another v. Federation of Pakistan through Secretary, Ministry of Commerce, Islamabad and 3 others (1999 SCMR 382); (ix) Dr. Muhammad Tahir Achakzai and others v. Government of Balochistan and others (1999 SCMR 1689); (x) Nizamuddin and another v. Civil Aviation Authority and 2 others (1999 SCMR 467); (xi) Sardar Farooq Ahmad Khan Leghari and others v. Federation of Pakistan and others (PLD 1999 SC 57) and (xii) Multiline Associates. v. Ardeshir Cowasjee and others (1995
We now peruse the cases relied upon by the learned counsel for the parties in support. of their respective arguments, Mr. K.M.A. Samdani laid great emphasis on the case of, Ch. Jalal‑ud‑Din and another v. Settlement Commissioner, Lahore and others (1968 SCMR 995). In this case, the appellant was a claimant for transfer ‑‑under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, of a portion of Property No.36, Lawrence Road, Lahore and N.C.H. Form filed on his behalf by his wife was finally rejected by the Settlement Commissioner on the ground that he did not himself apply on the prescribed form for the transfer of the property in dispute, which was done by his wife but she was not his duly authorised agent to do so. By the same order, portion in possession of one Khawaja Abdul Qayyum was transferred to the respondents Nos.4 to 7. Khawaja Abdul Qayyum feeling dissatisfied filed a writ petition in the High Court, wherein the appellant was made a party but he himself did not move against the rejection of his claim until after two years for quashment of the order of the Settlement Commissioner and the same was dismissed on the ground of laches. It was contended that as reliefs sought by the appellant could be granted to him in writ petition filed by Khawaja Abdul Qayyum, the delay in filing the writ petition was immaterial. This contention was repelled on the ground that a writ petition could be filed by a person aggrieved as such reliefs granted must be in relation to his grievance and not in favour of a third person. In the case of Haji Mojakkar Ali v. Regional Transport Authority, Sylhet and others (PLD 1967 Dacca 6), the Court while deciding the question of locus standi of a party to invoke the Constitutional jurisdiction of High Court of Dacca under Article 98 of the Constitution of the Islamic Republic of Pakistan, 1962, the provisions of which were similar and analogous to the provisions of Article 199` of the Constitution of 1973, held that person who intended, to invoke writ jurisdiction was required to show that he had direct interest in matter and petition in representative capacity was not maintainable. In the case of The Punjab Mines Labour Union v. The West Pakistan Industrial Development Corporation. Jhelum (PLD 1972 Lahore 489) while discussing the question of locus standi under Article 98 of the Constitution of Pakistan, 1962,‑ .it was held that the same could be invoked only by a person aggrieved and that too against a specific definable act of commission or omission on the part of tlae relevant authority and further that a Trade Union agitating individual case of a workman could not claim locus standi to invoke the jurisdiction under Article 98.
Mr: Abdul Mujeeb Pirzada on the other hand in support of his contention that the petitioner was an aggrieved person within the meaning of Article 199 of the Constitution 'as it was espousing the cause of its members/workers whose fundamental rights were being violated by the acts of commission by respondent No. l placed reliance on the case of Miss Benazir Bhutto v. Federation of Pakistan and another (PLD 1988 SC 416). The pronouncements made by the Supreme Court in the cited case on this issue go against what had been argued by Mr. Abdul Mujeeb Pirzada and we reproduce the relevant portion from the judgment as under:‑‑
It is obvious from the language of Article 18^(3) that it provides a direct access to the highest judicial forum in the country for the enforcement of Fundamental Rights. It caters for an expeditious and inexpensive remedy for the protection of the Fundamental Rights from legislative and executive interference. It gives the Court very wide discretion in the matter of providing an appropriate order or direction including declaratory order to suit the exigencies of particular situations .‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑
Unlike in Article 199, the Framers of the Constitution placed no limitation nor prescribed any condition or stipulation for obtaining relief and redress under Article 184(3). No strait‑jacket formula was prescribed for the enforcement of the Rights, the obvious reasons that can be spelled out is that in case the Supreme Court was itself of the view in a given case that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II is involved, it should directly interfere, and any rigid formula or strait‑jacket formula or strait jacket formula prescribed for enforcement of the Rights would be self‑defeating.
The cases referred to us at Serial Nos. (ii) to (xii) deal with the petition wherein the issues were relating to public interest litigation. In none of the aforecited oases, the question of maintainability of a Constitutional petition under Article 199 of the Constitution, wherein the petitioner was agitating the cause of third party relating to the alleged violation of the legal rights of the third party without there being any violation of the petitioner's legal right.
From perusal of the aforecited cases, we find that the same do not substantiate the arguments advanced by Mr. Abdul Mujeeb Pirzada as we have not been able to find any observation that Article 199 of the Constitution could‑be invoked by a person in a representative capacity for redress of a grievance of a third person. The petitioner being the Collective Bargaining Agent could not claim locus standi to invoke the jurisdiction of this Court under Article 199 of the constitution for the alleged violation of the legal or fundamental rights of its members.
Mr. K.M.A. Samdani with regard to the contention of the petitioner that it was a public interest litigation as fundamental rights of the citizens of Pakistan were violated by appointments of the aforesaid officers submitted that a bare perusal of the memo. of petition would be sufficient to establish that not a single word was stated by the petitioner in the memo. of petition relative to the public interest litigation on the ground of violation of the fundamental rights of the citizens of Pakistan or that the issue involved in the petition was of public importance and affected a large section of people or majority of citizens of Pakistan which, according to him was a condition precedent for public interest litigation. He further submitted that even if it be admitted that the petition was in the nature of a public interest litigation, then the petitioner ought to have approached the Supreme Court under Article 184(3) of the Constitution of Pakistan and could not invoke the jurisdiction of this Court under Article 199 on account of the constraints and limitations contained in Article 199 as a result of which public interest litigation could not be initiated in this Court in exercise of its jurisdiction under Article 199 of the Constitution., In support of his contention that public interest litigation could only be initiated in the Supreme Court, Mr. Sarmlani referred us to the case of (i) Malik Asad Ali and others v. FederatiOn of Pakistan through Secretary, Law, Justice and Parliamentary affairs, Islamabad and others (PLD 1998 SC 161); and (ii) Sh. Liaquat Hussain and others v. Federation of Pakistan through Ministry of Law. Justice and Parliamentary Affairs, Islamabad. and others (PLD 1999 SC 504). In both the forecited cases, the Supreme Court has discussed in detail the nature of the Constitutional jurisdiction of this Court under Article 199 and that of the Supreme Court under Article 184(3) of the Constitution of Pakistan and in both the cases, the Supreme Court pronounced that the jurisdiction of the Supreme Court under Article 184(3) of the Constitution was much more wider and public interest proceedings, if it could be shown that the question raised was of a public importance and. related to violation of fundamental rights) guaranteed under the Constitution of 4 reasonably large section of people could be initiated by any person who had some interest in such proceedings without having any personal grievance. It will be useful to reproduce the relevant portion from the judgment of the Supreme Court in the case of Malik Asad Ali 'and others v. Federation of Pakistan through Secretary, Law, Justice and Parliamentary Affairs, Islamabad and others (PLD 1998 SC 161) as under:‑‑
The proceedings under Article 199 of the Constitution before the High Court are subject to various consrtraints mentioned in the said Article. However, the proceedings before the Supreme Court under Article 184(3) of the Constitution differ in various ways from the proceedings before the High Court under Article 199 of the Constitution. For instance, a person may be non‑suited by the High Court in proceedings under Article 199 of the constitution on the ground that he has no personal grievance, and therefore, he is not an aggrieved person. A petitioner before the Supreme Court under Article 184(3) of the Constitution, may not have a. personal grievance in the case, but if he satisfies the Court that question raised by him is of public importance and it relates to enforcement of fundamental rights guaranteed under the Constitution of a reasonably large section of people, he can successfully maintain the petition. The proceedings before the Supreme Court under Article 184(3) of the Constitution are in the nature of a public, interest litigation in contradistinction to the proceedings before the High Court where the litigant seeks redress of his personal grievance and injury. Therefore the scope and nature of proceedings, before the Supreme Court under Article 184(3) of the Constitution differ in many ways from the proceedings, before the High Court under Article 199 of the Constitution. The trappings and constrains provided, in Article 199 of the Constitution on the exercise of power by the High Court, are therefore, not applicable to Supreme Court under Article…
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