Muhammad Anib Ahmad Vs Chiarman Zarai Taraqiati Bank Limited etc

PLJ 2022 Lahore (Note) 97

Present: JAWAD HASSAN, J.

MUHAMMAD ANIB AHMED--Petitioner

versus

CHAIRMAN ZARAI TARAQIATI BANK and others--Respondents

W.P. No. 45135 of 2019, decided on 5.4.2022.

Constitution of Pakistan,1 973--

----Art. 199--Stipend based employment--Time to time extension--Relieving from service on completion of contract period--Permanent nature of job was not mentioned in appointment letter- -Maintainability--It cannot be said that Petitioner has continuance length of service without any break at his credit--It was nowhere mentioned in all appointment letters that it was a job of permanent nature or same was likely to be permanent in future--Petitioner, at time of joining, has accepted all terms and conditions of his stipend and contract employment, cannot resile from same at a belated stage--Petition dismissed. [Para 8 & 9] A & B

2022 SCMR 566, 2022 SCMR 406, 2018 PLC (CS) Note 1;

2020 SCMR 1625 ref.

Mehar Ghulam Abbas Sargana, Advocate for Petitioner.

Khawaja Muhammad Ajmal, Advocate for Respondents.

Date of hearing: 5.4.2022.

JUDGMENT

By invoking the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the “Constitution”), the Petitioner has impugned order dated 13.12.2018 passed by the Respondent No. 2 whereby he has been relieved from the service of KSSL with immediate effect. He has also sought direction to the Respondents to regularize his service by declaring the post ‘cricket player’ as of permanent nature.

2.The facts as per petition are that the Petitioner was offered an appointment as Cricket Player on stipend basis in Kissan Support Services (Pvt.) Limited (KSSL) a subsidiary of Zarai Taraqiati Bank Limited (ZTBL) for a period of one year. On expiry of said-period, aforesaid offer was again made to the Petitioner for a period of one year which was extended from time to time and lastly it was extended on 08.11.2017 which was “expired on 21.11.2018 and through the impugned order dated 13.12.2018, the Petitioner was relleved from service. Hence this petition.

3.Report and parawise comments have been filed on behalf of the Respondents vehemently denying the allegations levelled in the petition and praying for dismissal of the same.

4.Learned counsel for the Petitioner inter-alia contended that the Petitioner had served the Respondents for more than seven years and gained experience in the job by obtaining different training camps but even then the Respondents are adamant to regularize his service; that the Respondents have regularized the services of different colleagues but discriminatory treatment has been meted out with-him; that the Petitioner’s performance remained satisfactory during’ his period of continuance service as such he is entitled to be regularized in the terms settled by the Hon’ble Supreme Court of Pakistan in “Messrs State Oil Company Limited versus Bakht Siddique and others” (2018 SCMR 1181).

5.On the other hand, learned counsel for the Respondents has submitted report and parawise comments and vehemently controverted the arguments advanced by the learned counsel for the Petitioner and prayed for dismissal of the petition on the grounds that it is not maintainable against KSSL as the Petitioner is not aggrieved person. He has further submitted that the Petitioner was firstly employed as cricket player for a period of one year vide order dated 15.07.2011 and after expiry of said period, he was rehired by KSSL for a period of one-year w.e.f. 19.07.2012 and period of said contract was extended from time to time which remained valid upto 13.12.2018, the date of expiry as his services were no more required by the Respondents.

6.I have heard learned counsel for the parties and gone through the available record.

7.Admittedly, the Petitioner was firstly appointed by the Respondents on stipend based as Cricket Player for a period of one year vide appointment letter dated 25.07.2011. After expiry of said period, Petitioner was reappointed as such for a period of one year vide appointment letter dated 19.07.2012. The period of said stipend based employment was extended from time to time vide different offer letters dated 28.05.2013, 11.07.2014 and 04.12.2015 and it extended upto 20.07.2016. Record reveals that the Petitioner, at his own accord and without any information, left the services of KSSL and ultimately the Respondents in terms of order dated 16.12.2016, relieved him from service w.e.f. 30.06.2016. Thereafter, the Petitioner was appointed as Cricket Player by the Respondents on contract basis vide appointment letter dated 12.01.2017 and eventually, the Respondents relieved him from service of KSSL being no more required due to expiry of contract.

8.The counsel for the Petitioner has put much emphases that the Petitioner is entitled for regularization on the basis of length of service in the light of judgment of Hon’ble Supreme Court of Pakistan “Messrs State Oil Company Limited versus Bakht Siddique and others” (2018 SCMR 1181) as he has been performing his duties since 25.07.2011. It is observed that the above case law referred to by learned counsel is not applicable in this case because in the aforesaid judgment, the Hon’ble Supreme Court directed the department to regularize the services of those employees who had been performing the duties against the post of permanent nature. While in the case in hand, the Petitioner was firstly appointed on 25.07.2011 as Cricket Player on stipend basis and his whole service rendered with the Respondent-KSSL is not of permanent nature rather it was on stipend based from 25.07.2011 till 30.06.2016 and from 12.01.2017 to onward,

he was appointed on contract basis. Therefore, it cannot be said that the Petitioner has continuance length of service without any break at his credit. Moreover, it was nowhere mentioned in all the appointment letters that it was a job of permanent nature or the same was likely to be permanent in future. Recently, the Hon’ble Supreme Court of Pakistan in “Deputy Director Finance and Administration FATA through Additional Chief Secretary FATA, Peshawar and others versus Dr. Lal Marjan and others” (2022 SCMR 566) has held that “long service is not ground for regularization and it has to be supported by legislation and is not an automatically accruing right”. In another pronouncement cited in “Government of Khyber Pakhtunkhwa through Secretary Forest, Peshawar and others versus Sher Aman and others” (2022 SCMR 406) the Hon’ble Supreme Court has held as under:

“When an employee accepted a post in a project, he was aware of the fact that the project would come to an end on its completion or cessation of its funding (as the case may be) and with that, his employment would also come to an end. Forcing the Government to “accommodate/adjust” such employees was not only a transgression of the powers vested with the High Court under Art. 199 of the Constitution, but was also a burden on the Government Exchequer which the Court was not at liberty to place. Employer had the prerogative to decide the terms and conditions of an employee’s contract, and it was not for the Court to step into the shoes of the employer and force him to employ someone for whom there was no available post and even if there, was one, without following due process, \ procedure and criteria.”

9.In view of the above observation, I am of the considered view that the petitioner, at the time of joining, has accepted all the terms and conditions of his stipend and contract employment, cannot resile from the same at a belated stage. I fortified my view seeking guidance from the judgment passed by the Hon’ble Division Bench of this Court in case titled “Shahzad Ghohar versus Government of Punjab and Aitchison College through its Board of Governor” (2018 PLC (C.S.) Note-1) in which it has been held as under:

“It was also made specifically clear that the Employment Contract does not confer on the Appellant any claim/right to permanent employment in the College. In the above situation, the Appellant has himself admitted all the terms and conditions of his Employment Contract, he cannot claim his regularization from this Court rather has rightly been considered to be out of service on the expiry of his contract employment as settled by the parties under the terms of the Employment Contract”

10.This Court in case titled “Muhammad Mohsin Ismail versus Managing Director Punjab Daanish Schools and 2 others” (2018 PLC (C.S.) 722) has also held as under:

“The Respondents have invoked clause-4(b), terminated the services of the Petitioner with immediate effect entitling the Petitioner to receive one month ‘s pay in lieu of the quit service as per terms and conditions, therefore, assertions of the learned counsel for the Petitioner that no notice has been served upon the Petitioner, cannot sustain. The law on this point has been settled by the apex Court of the country in the cases of “Government of Balochistan, Department of Health through Secretary, Civil Secretariat,

Quetta versus Dr. Zahida Kakar and 43 others” (2005 SCMR 642) and “Major (R) Nisar Ali versus Pakistan Atomic Energy Commission and another” (2004 PLC (C.S.) 758).

11.The Hon’ble Division Bench of this Court in case titled “Dr. Abid Ali versus Chief Secretary, Government of Punjab and 3 others” (2017 PLC (C.S.) 488) has held as under:

“the employee, after accepting terms and conditions of his contract employment had submitted his joining report. Service of such employee could be terminated without assigning any reason. Employee had no right to claim extension in his contract period as a vested right. Behaviour of employee remained unsatisfactory towards his superior which resulted into his termination.

12.In Case titled “Mubashar Majeed versus Province of Punjab and 3 others” (2017 PLC (C.S.)

940)the Hon’ble Division Bench of this Court has also held that “employee could not claim extension of the contract as a matter of right rather it was the prerogative of the competent authority either to dispense with services of such employee or continue with the same by tending the contract.”

13.It is an established principle that where employment is on contract, there is a relationship of master and servant and in such like cases the constitutional petition under Article 199 of the Constitution is not maintainable. Reliance is placed on “Pakistan Telecommunication Co. Ltd. through Chairman versus Iqbal Nasir and others” (PLD 2011 SC 132), wherein it was held that “Employees of Pakistan Telecommunication Corporation Limited were governed by principle of ‘Master and servant” and in absence of statutory rules, constitutional petitions filed by employees were not maintainable”. In Pakistan Defence Officer’s case (2013 SCMR 1707) the Hon’ble Supreme Court of Pakistan has held that “Where conditions of service of employees of a statutory body are not regulated by Rules/Regulations framed under the Statute but only Rules or Instructions issued for its internal use, any violation thereof cannot normally be enforced through writ jurisdiction and they would be governed by the principle of ‘Master and Servant’.” Similarly, the issue of maintainability of writ under Article 199 of the Constitution has been discussed in detail by the Hon’ble Supreme Court in “Pakistan International Airline Corporation and others versus Tanweer-ur-Rehman and others” (PLD 2010 Supreme Court 676) and has held as follows:

“25. Thus, in view of discussion made hereinabove, we are persuaded to hold that although the appellant-Corporation is performing functions in connection with the affairs of the Federation but since the services of the respondent-employees are governed by the contract executed between both the parties, as is evident from the facts narrated hereinabove, and not by the statutory rules framed under Section 30 of the Act, 1956 with the prior approval of the Federal Government, therefore, they will be governed by the principle of Master and Servant.”

14.In “Abdul Wahab and others versus HBL and others” (2013 SCMR 1383), the Hon’ble Supreme Court has laid down that where a service grievance was agitated by a person/employee who was not governed by statutory rules of service, constitutional petition is not maintainable. The Division Bench of this Court in “Pakistan International Airline and others versus Noreen

Naz Butt” (2017 PLC (C.S.) 923) has held that “the Appellant Pakistan International Airline has no statutory rules and the relationship between the Respondent and the Appellants is that of master and servant. It is. an established principle that in such like cases the Constitutional petition is not maintainable”.

15.Similar view was upheld by Hon’ble Supreme Court in its judgment reported as “Pakistan Airline Pilots Association and others versus Pakistan International Airline and another” (2019 SCMR 278) with the following observation:

“As the terms and conditions of employment in PIAC are admittedly not governed by any statutory provision and the employees are amenable to the Rule of “Master and Servant”, Article 199 of the Constitution of Pakistan 1973 cannot be invoked. Reliance is placed on PIA Corporation v. Syed Suleman Alam Rizvi (1996 SCMR 1185), Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others (PLD 2010 SC 676) and Abdul Wahab and others v. HBL and others (2013 SCMR 1383).”

16.Reliance in also placed on “Lt. Col. Rtd. Aamir Rauf versus Federation of Pakistan through Secretary M/o Defence and 3 others (2011 PLC (CS) 654) and “Nadeem Ahmed versus Pakistan State Oil Company Limited and another” (2005 PLC (C.S.) 1447). Recently, the Hon’ble Supreme Court of Pakistan in “Miss Naureen Naz Butt versus Pakistan International Airlines Through Chairman, PIA and Others” (2020 SCMR 1625) by upholding the judgment of Division Bench of this Court “Pakistan International Airlines versus Naureen Butt” (2017 PLC (C.S.) 923) has held that “the established law is that a contract employee, whose period of contract employment expires by afflux of time, carry no vested right to remain in employment of the employer and the Courts cannot force the employer to reinstate or extend the contract of the employee”.

17.Needless to add that judgment referred by the learned counsel for the Petitioner cannot be relied upon being distinguishable from the facts and circumstances of the case as each and every case has its own merits.

18.In view of above discussion and the law laid down in aforesaid judgments, I am not inclined to interfere with the impugned order which otherwise has been passed aptly. Resultantly, the instant petition stands dismissed.

(Y.A.)