P L D 2004 Supreme Court (AJ&K) 30 (PLP)

CHAUDHAR MUHAMMAD TAJ, J,

This appeal, by leave, is directed against the judgment and order passed by the High Court on 13-6-2003 whereby the writ petition filed on behalf of the respondent was accepted.

2. The facts are that the respondent filed a writ petition in the High Court claiming therein that his services were hired on part-time basis by the appellants at the monthly salary of Rs.4,

000. He rendered the services but no payment was made to him and the order was cancelled on 19-2-2000. The writ petition after its conclusion was accepted. This appeal challenges the aforesaid order.

3. Ch. Muhammad Azam Khan, the learned counsel for the appellants, raised following points in support of the appeal:-- (i) That a contract in the shape of an agreement though was agreed upon between the appellants and the respondent but due to the fact that permission was not granted from the University of Engineering and Technology, where, he was a permanent employee; therefore, the order for his appointment was not issued as such he rendered no service for the appellants. Therefore, the question of his salary does not arise; and (ii) that the respondent was not entitled to enforce the aforesaid contract through writ petition as such the order passed by the High Court was illegal and not maintainable.

4. Mr. Sultan Mahmood, the learned counsel appearing for the respondent, while controverting the arguments addressed on behalf of the appellants, argued that through an order passed on 24-6-1998 the appointment of the respondent' was made through item No.5, Annexure `P/2' which clearly indicates that the respondent was appointed against the aforesaid post as part-time employee against salary of Rs.4,

000. The aforesaid order was subsequently cancelled on 19-2-2000 which supports the contention of the respondent. The learned counsel also argued that the order issued in respect of the respondent cannot be termed as a contract or agreement and therefore the writ petition was competent.

5. We have heard the learned counsel for the parties and also gone through the record carefully. The respondent filed a writ petition in the High Court seeking direction against the appellants to make payment of his salary for a period commencing from March, 1998 to February, 2002. The writ petition after its conclusion was accepted and the appellants were directed to make payment of the salary to the respondent. Before adverting to the other merits, it would be necessary to see as to what order was passed by the appellants for the respondents. The relevant document was placed on the High Court record as Annexure `P/2' which are the minutes of the meeting held on 29-5-1998. The relevant item is No.5 which is usefully reproduced:-

6. A perusal of the aforesaid item reveals that it was decided that a post of B-18 for the purpose shall be created and-meanwhile part-time services of Engineer Muhammad Khalid, University College of Engineering and Technology Mirpur, against a consideration of Rs.4,000 shall be hired. No order in consequence of the aforesaid decision seems to have been issued administratively for the purpose. The case of the respondent is that aforesaid decision by the Board constitutes the order while the contention of the learned counsel for the appellants is that in view of the difficulty that the Engineering University, where the respondent is permanently employed, did not agree as such the order for his appointment as part-time employee was not issued. It was also asserted by him that since no order was issued therefore he did not render any service.

7. The analysis of the aforesaid minutes shows that it was agreed upon by the appellants that the respondent's services shall be hired against Rs.4,000 per month as part-time employee. It is evident that no order in consequence of the minutes appears to have been issued and nothing else has been brought on record that he has rendered any service. This certainly shows that the writ petition practically was filed to enforce the aforesaid contract.

8. By now, the law is settled that the writ petition cannot be filed to enforce the contractual obligation. Reliance in this regard can be A placed on a case reported as Azad Government and others v. Neelum Flour Mills Muzaffarabad (1992 SCMR 431) where the following observations were made:-- "

5. We have consequently heard detailed arguments on this aspect of the case. We have also heard the learned counsel at some length in so far as merits of the case are concerned. This Court has already laid down the law that contractual liability cannot be enforced through a writ petition in an un-reported judgment Mufti Nazir Hussain v. Azad Government (Civil Appeal No.49 of 1979 decided on 2-1-1980); Mufti Nazir Hussain a retired District Qazi was re-employed as District Qazi as a stop-gap arrangement necessitated because of the absence of permanent District Qazi who had proceeded to Saudi Arabia for higher studies. His services were terminated after some time, whereupon Mufti Nazar Hussain filed a writ petition in the High Court challenging the termination order. The main ground taken in the petition was that he had been re-employed on contractual basis that his services would continue till the return of the permanent incumbent from Saudi Arabia and his services therefore could not be terminated earlier. Violation of the principle of audi alteram partem was also made a ground of attack in the impugned order. The writ petition was accepted and the termination order was quashed. The Azad Government challenged the order of the High Court before this Court. The learned Advocate-General contended before this Court that no writ petition could lie to enforce a contractual obligation. This Court came to the conclusion that by getting the impugned order vacated all that Mufti Nazir Hussain wanted was the enforcement of contractual liability through a writ petition. Muhammad Aslam, J. speaking for the Court observed as follows:-- `We find this objection quite forceful as there is no escape from the fact that such a writ petition for enforcement of service contract does not lie. It is well settled that for the enforcement of a contract or an agreement, relief cannot be allowed through a writ of mandamus and the superior Courts have refused to issue directions, as sought by the respondent herein, on the ground that proper remedy is available through a suit in the civil Courts. To cite a few authorities, we may refer to The Chandpur Mills Ltd. v. The District Magistrate, Tippera and another (PLD 1958 SC 267), Pakistan v. Naseem Ahmad (PLD 1961 SC 445), Messrs Momin Motor Company v. The Regional Transport Authority, Dacca (PLD 1962 SC 108), M.Muzaffar-ud-Din Industries Ltd. v. The Chief Settlement and Rehabilitation Commissioner, Lahore (1969 SCMR 122) and Mir Rasool Bux Khan Sundrani & Co., v. People's Municipality, Sukkur and others (PLD 1975 Kar.878). No doubt some of these authorities, as pointed out by the learned counsel for the respondent, pertain to agreements about property, but the principle enunciated in them is the same; namely that the Courts, while exercising extra-ordinary writ jurisdiction, do not issue orders or directions for the enforcement of contractual obligations. (1) Pakistan, and (2) Administrator of Karachi v. Naseem Ahmad (PLD 1961 SC 445) contain almost an identical case where the police employees sought through writ of mandamus a direction from the High Court for their re-instatement on the basis of service contract. The High Court issued the writ for restoring the Government servants to their offices. Against this decision, the Government went in appeal before the Supreme Court where over-ruling the High Court's view, it was held `a writ of mandamus does not lie to restore a Government servant to office'. In view of this state of law, and agreeing with the contention of the learned Advocate-General, we hold that the respondent herein could not seek his remedy as stated in the writ petition, through the extra-ordinary writ jurisdiction of the High Court and if so advised, he could seek his relief through a suit before a civil Court'."

9. It would also be important to mention that the aforesaid objection was not taken in the High Court. However, we find that the aforesaid point goes to the root of the case and relates to the jurisdiction of the High Court therefore we allowed. Ch. Muhammad Azam Khan, the learned counsel for the appellants, to argue. From the admitted facts it is clear that it was the contractual obligation which was sought to be enforced through writ petition. Therefore, we have heard and decided this point. Reliance in this regard is again placed on the above referred judgment where it was held in para. 4 as follows:-- "

4. When petition for leave to appeal in this Court came for hearing it was argued, inter alia, by the learned counsel for the appellants that the order of the High Court was un-sustainable in view of the legal position, as claimed, that writ jurisdiction could not be exercised for enforcement of contractual liabilities. This point had not been raised before the High Court but since it was a point which went to the root of the case and related to the jurisdiction of the High Court leave was granted on this point in accordance with the consistent practice of this Court."

10. We have avoided to make comments on other merits of the case lest it may prejudice the case of either party before any forum if they so feel advised to choose.

11. In view of the above, we are of the view that the order passed by the High Court is not maintainable which is set aside by accepting the appeal with no order as to costs. H.B.T./17/SC(AJ&K) Appeal accepted.