2018 P L C (C.S.) 367
[Balochistan High Court]
Before Abdullah Baloch and Muhammad Ejaz Swati, JJ
Syed NASRULLAH
Versus
The DIRECTOR GENERAL PAKISTAN SPORTS BOARD, ISLAMABAD and 2
others
C.P. No.553 of 2016, decided on 27th November, 2017.
Civil service---
----Employee of Pakistan Sports Board---Termination from service ---Department having no
statutory rules ---Effect ---Department had no statutory rules with regard to appointments,
transfer, posting, promotion and disciplinary action--- Constitutio nal petition was not
maintainable in the cases of non -statutory bodies -- Employer organization was non- statutory
body having no rules and regulation even directions and policy with regard to its employees --
-Constitutional petition was not maintainable against the organization---Prima facie petitioner
had a case on merit ---Services of petitioner were terminated in the garb of order passed in
another constitutional petition which was misconceived--- High Court observed that employer
organization might consider the case of petitioner on sympathetic and humanitarian grounds --
-Constitutional petition was dismissed accordingly.
2002 SCMR 549; 2013 SCMR 1383; 2013 SCMR 1707; PLD 2010 SC 676; PLD
1992 (sic) 531; 2014 CLC 503; 2008 SCMR 314; 2011 SCMR 1813; PLD 2010 SC 969 and
2014 SCMR 122 ref.
Abdul Wahab and others v. Habib Bank Ltd. and others 2014 PLC (C.S.) 393; PTCL
v. Masood Ahmed Butti, 2016 SCMR 1362; Syed Tahir Abbas Shah v. OGDCL through MD
Head Office Islamabad and others PLD 2007 SC 681 and 2017 SCMR 353 rel.
Mazhar Ilyas Nagi for Petitioner.
Syed Shabbir Shah, Assistant Attorney General for Respondents.
Date of hearing: 7th November, 2017.
JUDGMENT
ABDULLAH BALOCH, J. -- This Constitutional Petition was filed by the petitioner,
with the following pr ayer:
"It is, therefore, prayed that in consideration of above stated facts and circumstances
of the case, this Hon'ble Court may be pleased to allow/accept the instant petition and to set - aside the impugned order dated 22.1.2016 through which the service s of the
petitioner have been terminated and in consequences thereof, the petitioner may
please be reinstated in service with all back benefits.
With any other relief which this Hon'ble Court may found deemed fit and appropriate in the circumstances of the case may also be awarded with cost of the proceedings, in
the interest of justice and equity."
2. Facts of the case as contained in the petition are that the petitioner is a diploma holder
of Civil Engineering from Government Polytechnic College Quetta an d in the year 2009 he
was appointed as Sub- Engineer BPS -11 in Irrigation Department; that the respondent No.1
i.e. Pakistan Sports Board Headquarter Islamabad ("PB") through publication advertised two posts of Sub- Engineer (Civil) B -16, hence the petitione r being qualified and interested
candidate applied for the said post and besides the petitioner certain other interested candidates have also submitted their credentials through applications; that the department constituted a Selection Committee comprising of D.G. PSB and other high- ups, hence after
qualifying the written test the petitioner made his appearance in interview and being eligible
candidate the petitioner along with one Irshad Ahmed were recommended for appointment
for the post in question and a ccordingly the petitioner was appointed and was posted in
Coaching Center Quetta; that the petitioner joined the department and was performing his
duties with honesty and hardworking, whereafter he was regularized in his services; that
subsequently one of the candidate namely Asad Ullah challenged the appointment of petitioner before this Court in C.P. No.126/2011, but during pendency of said petition said Asadullah was appointed in another department, thus he withdrew the said petition having borne fruit, therefore, the matter has come to its end being past and closed transaction, but what happened in the case was that after disposal of C.P. No.126/2011, the Assistant Director Pakistan Sports Board Islamabad had issued a show -cause notice dated 22nd Decembe r, 2015
to the petitioner on the strength that his appointment was illegal and in violation of rules. Accordingly, the said notice was replied by the petitioner, but astonishingly without appointing any Inquiry Officer or conducting proper inquiry in the m atter, the services of the
petitioner were terminated vide order dated 22nd January, 2016 ("the impugned order") whereafter the petitioner within the stipulated period filed departmental appeal/representation, but was not responded, hence again he filed se cond departmental
appeal/representation, but again the same was not replied, hence the petitioner has filed the
instant petition.
3. The respondents contested the petition by means of filing parawise comments,
whereby they raised certain legal objections w ith regard to maintainability of the petition and
mainly raised objection in respect of jurisdiction of this Court.
4. The learned counsel for the petitioner contended that the petitioner was legally
appointed as sub- engineer Civil BPS -16 with due process of law on the basis of
recommendation of Selection Committee; that the petitioner was remained in service for
certain period, but however, during course of pendency, a Constitutional Petition No.126 of 2011 filed by someone against the petitioner assailed his appointment while the respondents filing their Para wise comments have supported the appointment of the petitioner purely on the legal basis, however, during the course of pendency of the aforesaid petition, the said petition was withdrawn by the then petitioner being infructuous; that the petitioner was remained in his service while surprisingly a show cause notice dated 22nd December, 2015 was issued by the respondent to the petitioner, wherein at Para No.3 it was mentioned that as per direction of the this High Court, after scrutiny of the record, relating to appointment of
Sub- Engineer PBS -16 in BPC Quetta coaching Quetta was carried out, which reveals that
Syed Asadullah has showed higher merit then you in the selection process, but you were
appoint ed on political grounds/ pressure and he was ignored; that a satisfactory reply was
given by the petitioner that the respondents misconceived and mislead the order passed in C.P No. 126/2011 and no adverse order or observations as alleged by the respondent was made by
the this Hon'ble Court; that being dissatisfied from the reply of petitioner, the respondent terminated the services of the petitioner vide impugned order dated 22nd January, 2016. Being aggrieved, the petitioner filed a departmental appeal be fore President of Pakistan
Sports Board Islamabad to the Director PSB Quetta, however, after lapse of four months no action has been taken by the respondents; that the action so taken by the responded is illegal, unlawful and without lawful authority and l iable to be set aside.
5. Conversely, the learned counsel for the respondents submitted its written arguments,
wherein mainly relied on their parawise comments as well as raised objection on
maintainability of the petition on the sole ground of non- statuar y body, writ cannot be issued,
as such, no writ petition can be filed against a non- statutory body and the services of the
employees of Pakistan Board governed under the rules of "Master and Servant"; that the
Head quarter of Pakistan Sports Board is locat ed at Islamabad and the appointment orders as
well as impugned termination orders were issued from the Islamabad, as such, the territorial jurisdiction of this Court is ousted and the territorial jurisdiction is also falls within the jurisdiction of Islama bad High Court, in this regard, the learned counsel for the respondents
mainly placed reliance on the cases reported as 2002 SCMR 549, 2013 SCMR 1383, 2013 SCMR 1707, PLD 2010 SC 676, PLD 1992 (sic) 531, 2014 CLC 503, 2008 SCMR 314; 2011 SCMR 1813, PLD 2010 SC 969 and 2014 SCMR 122.
6. On the other hand, the learned Assistant Attorney General also appearing on behalf of
the respondent No.1 has also relied upon the arguments of the learned counsel for the respondents Nos.1 and 3.
7. We have heard the learned counsel for the parties and perused the record minutely
with their valuable assistance, which reveals that the respondents invited application through publication/advertisement for the post of Civil Engineer BPS -16. The petitioner and Syed
Asadullah son o f Syed Abdul Aziz Shah, Arshad son of Abdul Haq had applied for the said
post of Sub- Engineer (Civil) including one Gul Zaman, who had subsequently died on
account of road accident, as such, four candidates have filed their respective applications for the said two posts. The respondents constituted a Selection Committee after conduct of
written test on 29th June, 2010, the petitioner and above named candidates have appeared in the said test and thereafter interviews were held on 20th July, 2010. After compl etion of test
and interview process, the Selection Committee had recommended the petitioner and one Irshad Ahmed to be selected against the vacant post of Civil Engineer and on the basis of recommendation of committee the petitioner was appointed as sub- Engineer Civil BPS -16
Pakistan Sports Board Coaching Quetta vide order dated 15th November 2011. The initial appointment of petitioner was made on probation for a period of one year and then after successful completion of probation period the petitioner's se rvices were regularized vide
order dated 6th September 2012 and the name of petitioner appeared at S.No.19 as per order dated 6.9.012. The record further reveals that one of the candidate namely Syed Asadullah, who had also applied for the said post has challenged the appointment of the petitioner and another Irshad Ahmed before this Court by means of filing C.P. No.126 of 2011 with the prayer to cancel the said appointments of the petitioner in C.P. No.126 of 2011 has been sought to be made.
8. The aforesaid petition was contested by the officials respondents by filing parawise
comments and the petitioner was also contested the above petition by filing counter affidavit,
however, thereafter Syed Asadullah has withdrawn his petition on account of his appointment and ultimately stated that the petition has borne fruit, as such, the petition is stand disposed of vide order dated 29th June, 2015 of this Court, it was held as under:
"Petitioner is in attendance and states that he has been appointed. The le arned DAG
and the representative of respondent No.1 confirm the fact. Since the petition has borne fruit, as such, stands disposed of.
SD/-MUHAMMAD NOOR MESKANZAI
CHIEF JUSTICE
SD/MUHAMMAD HASHIM KHAN KAKAR
JUDGE"
9. The record further reflects that in the garb of aforesaid order of this Court, the
respondents issued a show -cause notice dated 22nd December, 2015 to the petitioner,
wherein submitted at Para No.3 of the show -cause notice for convenience the Para No.3 of
the show -cause notice dated 22nd De cember 2015 is reproduced as under:
"And whereas, Syed Asadullah filed a Civil Petition No.126/2011 in the High Court of Balochistan, Quetta challenging your appointment as having been made in
violation of rules. As per direction of the Honourable Court, s crutiny of the record
relating to the appointment of Sub- Engineers (BPS -16) in the PSB Coaching Centre,
Quetta was carried out which revealed that Syed Asadullah had secured higher merit then you in the selection process but you were appointed on political grounds/
pressure, and he was ignored."
10. Though the petitioner timely submitted reply of the above show -cause notice, but
being dissatisfied the services of the petitioner have been terminated vide order dated 22nd January, 2016, wherein once again the ground of his termination was based and cloths and
misconceived the facts submitted that "in pursuance of directions of Hon'ble High Court in C.P No.126 of 2011 his appointment was illegal and in violation of rules. The record further reveals that the pet itioner being aggrieved filed departmental appeal with the President of
Pakistan Sports Board, but despite lapse of four months no action was taken on his appeal.
11. Thus the admitted feature of the instant petition are that the body/department of
respondents having no statutory rules with regard to the appointments, transfer and posting, promotions and disciplinary actions, appeal etc.
12. Be that as it may, prior to the touching of merits of the case we are confined us to the
extent of maintainability of the constitutional petition filed under Article 199 of Islamic
Republic of Pakistan, 1973, whether writ can be issued against a non -statutory body, as per
settled principle of law and dictum laid down by the Hon'ble Supreme Court of Pakistan in various la ndmark judgments passed by the larger benches comprising of five to six Hon'ble
Judges of Supreme Court of Pakistan. Accordingly reliance is placed in the case of Abdul Wahab and others v. Habib Bank Ltd. and others reported in 2014 PLC (C.S.) 393 passed b y
Six Hon'ble Judges, wherein it was held that:
"Where a service grievance was agitated by a personal/employee who was not
governed by statutory rules of service, before the High Court, in interest of Art.199 of the Constitution, such petition shall not be maintainable."
13. The similar view was taken by the five Judges of Hon'ble Apex Court in the cases of
PTCL v. Masood Ahmed Butti, 2016 SCMR 1362, wherein it was held that:
"24. However, this Court, in the case of Principal Cadet Collage Kohat v. Muhammad Shoaib Qureshi (PLD 1984 SC 170), while dealing with the question, as to whether in absence of any breach of statutory provision the employees of a corporation can maintain an action for reinstatement, held that where the conditions of service of an emplo yee of a statutory body were governed by statutory rules, any action prejudicial
taken against him in derogation or in violation of the said rules could be set aside by a writ petition; however, where his terms and conditions were not governed by statutory
rules but only by regulations, instructions or directions, which the institution or body,
in which he was employed, had issued for its internal use, any violation thereof would
not, normally, be enforced through a writ petition. Recently, this Court in Ta nweer -ur-
Rehman's case (supra), while dealing with the issue of invoking of jurisdiction of the
High Court under Article 199 of the Constitution by the employees of the PIAC, held
that although the appellant -Corporation was performing functions in connecti on with
the affairs of the Federation, but since the service of the respondent -employees were
governed by the contracts executed by them with the employer, and not by the statutory rules framed under section 30 of the Pakistan International Airlines
Corpor ation Act, 1956 with the prior approval of the Federal Government, therefore,
they would be governed by the principle of 'Master and Servant'. On the question whether in absence of any breach of statutory provision, the employees of appellant -
Corporation c ould maintain an action for reinstatement etc., it was observed that the
said question needed no further discussion in view of the fact that this Court was not of the opinion that if a Corporation was performing its functions in connection with the affairs of the Federation, the aggrieved persons could approach the High Court by
invoking its constitutional jurisdiction. But as far as the cases of the employees regarding their individual grievances were concerned, it was held that they were to be decided on their own merits, namely, if any adverse action was taken by the employer in violation of the statutory rules, only then such action would be amenable to the writ jurisdiction. Therefore, in absence of statutory rules, the principle of 'Master and Servant' would be applicable and such employees would be entitled to seek remedy
permissible before the Court of competent jurisdiction. Similarly, in M Tufail Hashmi (supra), after discussing the aforesaid two judgments in detail, it was held that the employees o f those organizations, which were performing functions in connection
with the affairs of Federation, were eligible to approach the High Court under Article 199 of the Constitution if their services were governed by statutory rules. It was further held that since the employees of AIOU, SME Bank and Pakistan Steel Mills,
who approached the Service Tribunal for redressal of their grievances, were not enjoying the protection of statutory rules, therefore, the Service Tribunal had no jurisdiction to adjudicate upon such matters and they would be governed by the principle of 'Master and Servant'."
14. Despite of the above judgments passed by the larger benches of the Hon'ble Apex
Court, we are further fortified by certain another judgments passed by the Hon'ble Supreme
Court of Pakistan. Reliance is placed on the judgment of Syed Tahir Abbas Shah v. OGDCL through MD Head Office Islamabad and others PLD 2007 SC 681, 2017 SCMR 353.
15. In view of the above judgments of Hon'ble Supreme Court of Pakistan, wherein
dictu m laid down that a Constitutional petition under Article 199 Islamic Republic of
Pakistan are not maintainable in the cases of non -statutory bodies. Consequently, the
employer organization of the petitioner is non- statutory body having no rules and regulat ion
even directions and policy with regard to its employees, a writ petition is not maintainable
against the respondent's organization.
16. Though the learned counsel for the petitioner placed on record copy of two pages of
an ordinance in the name and ent itle;
"GOVERNMENT OF PAKISTAN MINISTRY OF EDUCATION
AND SCIENTIFIC RESEARCH ORDINANCE NO.XVI of 1962.
AN
ORDINANCE
To regulate development and control of sports. Bare perusal of Part II S.No.5
containing that,
1.
2.
3.
4.
5. "Exclusive right to make rules for the development, control and uniformity of
sports throughout Pakistan.- A Board may make rules and regulations for carrying its
objects into effect."
16. But the learned counsel for the petitioner has failed to produce any rules and
regulations subsequently issued by the respondents in pursuance of referred Para No.5 of the
ibid Ordinance, as such, in absence of statutory rules the matter could not be decided in vacuum.
17. For the reasons discussed herein above, we are of the considered view that the petition
is incompetent and non- maintainable, which is hereby dismissed, however, we have observed
that prima facie the petitioner have a case of merit, h is services were terminated in the garb of
order dated 29th June, 2015 in C.P No.126 of 2011 of this Court, which at all misconceived the facts, as such, the respondents may consider the case of the petitioner on sympathetic and humanitarian grounds. Keepi ng in view the post is still lying vacant as well as prevailing
unemployment situation in Balochistan particularly and also keeping in view his age factor.
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