Shakeel Ahmed VS FOP etc

ORDER SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

I.C.A.No.26 of 2022 Shakeel Ahmed and others Versus Federation of Pakistan and others S. No. of order Date of order/ Order with signature of Judge and that of parties or counsel / proceedings Proceedings where necessary. 26.01.2022 Mr. Sher Afzal Khan Marwat and Ch.Osama Tariq, Advocates for the appellants.

Through the instant intra court appeal, the appellants impugn the order dated 20.01.2022 passed by the learned Judge-in-Chambers, whereby writ petition No.208/2022 filed by the appellants, was dismissed in limine. Through the said writ petition, the appellants / petitioners had impugned letters dated 11.01.2022 issued by the National Engineering Services Pakistan (Pvt.) Limited (respondent No.3) whereby their services were dispensed with in terms of the clauses in their letters of appointment.

2.Learned counsel for the appellants submitted that although the appellants were initially appointed on contract basis after participating in a competitive process but subsequently their services were regularized; that the appellants” status is that of permanent employees of respondent No.3; that the appellants have served in respondent No.3 / company in different positions for several years; that vide letters dated 11.01.2022, their services were unceremoniously brought to an end; that respondent No.3 has 2,194 regular employees and 1,953 contractual employees; that it does not appeal to reason why the services of the appellants, being regular employees of respondent No.3, have been dispensed with whereas the services of contractual employees

have been retained; that after dispensing with the appellants” services, respondent No.3 has issued advertisements inviting applications for appointment against 838 posts including the posts that were held by the appellants; that at no material stage, had the appellants been informed as to any deficiency in their performance; and that there is no provision in the service rules of respondent No.3 providing for termination of services in the manner in which the appellants” services were terminated.

3.Furthermore, it was submitted that respondent No.3 is an attached department of the Ministry of Energy; that the Chairman of respondent No.3 is the Chairman of WAPDA; and that the functions which respondent No.3 performs are such as would bring it within the meaning of a “person” to whom a writ can be issued. Learned counsel for the appellants prayed for the appeal to be allowed and the impugned order dated 20.01.2022 to be set-aside.

4.We have heard the contentions of the learned counsel for the appellants and have perused the record with his able assistance.

5.Assuming that the appellants were regular employees of respondent No.3, the fact remains that respondent No.3 is a company incorporated under the provisions of the erstwhile Companies Act, 1913 and its service rules called “National Engineering Services Pakistan (Pvt.) Limited Employees Service Rules” were made by the Board of Directors of respondent No.3 in their meeting held on 02.08.1974. These service rules have neither been made in exercise of any statutory power nor have they been approved by the Federal Government. These rules cannot be given the status of “law” which could be enforced

through a writ of mandamus. These rules are non- statutory in nature. Since the appellants are not seeking to enforce any statutory rule, we are of the view that the learned Judge-in-Chambers did not commit any illegality by holding that the writ petition filed by the appellants was not maintainable. In holding so, reliance is placed on the law laid down by the Hon'ble Supreme Court in the judgment in the case of Zia Ghafoor Piracha Vs. Chairman, Board of Intermediate and Secondary Education (2004 SCMR 35), wherein it was held as follows:- “7. The Service Regulations of the Employees of the Board were framed by the Board. However, as has been determined by the learned Single Judge of the Lahore High Court, the Government, as required by the Act, has not given its formal approval to these Regulations. In these circumstances these Regulations may be termed as internal instructions or domestic rules having no status of statutory rules. Reference in this regard is made to the case of "The Principal Cadet College, Kohat and another v. Muhammad Shoaib Qureshi (PLD 1984 SC 170). In that case, the Government under the West Pakistan Government Educational and Training Institution Ordinance, 1960 was empowered to make Rules for carrying out the purposes of the Ordinance under section 17 thereof. Similarly, under section 18, the Board was also empowered to make Regulations subject to approval of the Government. There was identical situation in the aforesaid case as is now prevailing in the present case because the Regulations though made by the Board but the approval of the Government had not been secured. Similarly, the Government too had not made any Rules as mandated by section 17 ibid. This Court in such a situation in the aforementioned case held as under:- “It is common ground that neither any rules, as contemplated by section 17 of the Ordinance nor any Regulations under section 18 thereof were framed. The Board of Governors did not frame some "rules" for governing the appointment, promotion, retirement, termination of service, and dismissal of staff employed by the Board of Governors of the College in its meeting held on 29th September, 1964, but these

not having been made by the Government could not be regarded as "rules" under section 17, nor having been approved by the Government, be treated as Regulations under section 18 thereof. These "rules" therefore could only be regarded to be in the nature of mere instructions issued for the guidance of the Board of Governors and the Principal of the Cadet College, Kohat.””

6.It is well settled that the principle of “master and servant” was applicable to the employees whose services were not governed by any statutory rules. Employees of a company, owned and controlled by the government, in the absence of violation of law or any statutory rule, could not press into service the Constitutional jurisdiction of the High Court in order to seek relief with respect to their employment. Law to the said effect has been laid down by the Hon'ble Supreme Court in several judgments including the judgments in the cases of Samiullah Narago Vs. Federation of Pakistan (2012 PLC (C.S.) 1205), Pakistan Telecommunication Company Limited Vs. Iqbal Nasir (PLD 2013 SC 132) and Pakistan International Airline Corporation Vs. Tanveer-ur- Rehman and others, (PLD 2010 SC 676). In the latter case, it has been held as follows:- “19. However, this question needs no further discussion in view of the fact that we are not of the opinion that if a corporation is discharging its functions in connection with the affairs of the Federation, the aggrieved persons can approach the High Court by invoking its constitutional jurisdiction, as observed hereinabove. But as far as the cases of the employees, regarding their individual grievances, are concerned, they are to be decided on their own merits namely that if any adverse action has been taken by the employer in violation of the statutory rules, only then such action should be amenable to the writ jurisdiction. However, if such action has no backing of the statutory rules, then the principle of Master and Servant would be applicable and such employees have to seek

remedy permissible before the Court of competent jurisdiction.”

7.In view of the above, the instant appeal is dismissed in limine. We refrain from touching the merits of the case, lest it may cause prejudice to the either party”s case before the competent forum.

(ARBAB MUHAMMAD TAHIR) (MIANGUL HASSAN AURANGZEB)

JUDGE JUDGE

Sultan*