2018 PLP (C (PLC(CS)N)

AYESHA A. MALIK, J.

This judgment decides upon the issues raised in I.C.As. Nos.72076/2017, 72070/2017 and 72080/2017 as all the appeals arise out of the same order dated 30.8.2017 passed by the learned Single Judge in W.Ps. Nos.12840/2017, 10883/2017 and 5885/2017. The Appellant before the Court is Senior Member Board of Revenue through Director General, Punjab Land Record Authority, Lahore who is aggrieved by the order of the learned Single Judge dated 30.8.2017 passed in W.Ps. Nos.12840/2017, 10883/2017 and 5885/2017 whereby the termination of the Respondents' contracts was declared illegal.

2. The relevant facts are that the Government of Punjab through the Project Management Unit of the Board of Revenue launched the Land Record Management and Information System Project to digitalize the land records of the Province. For this purpose, the recruitment process for Service Centre Officials ("SCO") against 477 vacant posts was initiated and posts were advertised on 6th and 7th October 2015. The Respondents and others applied for the posts. All candidates were called for computer based typing test and interview wherein as per the policy, one of the qualifying requirement was a typing speed of 40 words per minute. 452 SCOs were selected and assigned to different Arazi Record Centres in the Tehsils of the Province. All SCOs were employed on contract for a period of one year and the contract was to expire on 30.6.2017. Subsequently several complaints were lodged against the working of the SCOs, hence the department probed into the matter and decided to re-take the typing test to evaluate the performance of the SCOs. The re-take results showed that only 9% of the SCOs were able to type at 40 words per minute. The majority were unable to type at 40 words per minute with more than 51% having a speed of below 20 words per minute. The matter was entrusted to the Anti-Corruption Establishment ("ACE") for proper investigation. After a preliminary investigation, the ACE registered FIR No.11/2016 against the accused officials who had compromised on the merit in the recruitment process. The ACE recommended judicial action against the delinquent officials in terms of its report dated 9.6.2017. Apprehending their possible removal 44 of the SCOs filed W.P. No.4050/2017 wherein the Court vide its order dated 10.2.2017 transmitted the petition to the Director General, Punjab Land Record Authority to treat it as a representation and decide it after providing a hearing to all through a speaking order within a period of four weeks. As a result of this direction, 452 SCOs were issued notice for personal appearance for 16.3.2017. 438 SCOs appeared before the competent authority. They were given a hearing and were confronted with their typing test from the re take examination. They were unable to explain their poor performance, hence the competent authority terminated their contracts in terms of clause 17 of the contract with payment of one month's salary in lieu of notice.

3. Mr. Muhammad Shan Gul, Addl. AG on behalf of the Appellant argued that the Respondent SCOs were all contract employees whose contracts were terminated simplicitor without any stigma in terms of clause 17 of the contract which clearly provides that your contract shall be liable to termination on one month's notice or on payment of one month's pay in lieu thereof on either side, without assigning any reason. He further argued that the impugned judgment has ignored the settled principle laid down by the august Supreme Court of Pakistan that contract employees cannot enforce their contract through a writ petition, that the terms and conditions of service of the SCOs are not governed by any statutory rules and further that the contract itself contemplates that it can be terminated with or without notice and one month's salary in lieu of notice. In this regard, he has placed reliance on the cases titled Abdul Wahab and others v. HBL and others (2013 SCMR 1383), Pakistan Defence Officers' Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed (2013 SCMR 1707), Syed Nazir Gillani v. Pakistan Red Crescent Society and another (2014 SCMR 982), Muhammad Yusuf Shah v. Pakistan International Airlines Corporation (PLD 1981 SC 224), Anwar Hussain v. Agricultural Development Bank of Pakistan and others (PLD 1984 SC 194) and Raziuddin v. Chairman, Pakistan International Airlines Corporation and 2 others (PLD 1992 SC 531). He further argued that even otherwise the contract period ended on 30.6.2017 after which the Respondents have no right to continue in service nor do they have any right to regular appointment in terms of clause 11 of the contract. Reliance was placed on the cases titled Pakistan Telecommunication Co. Ltd. through Chairman v. Iqbal Nasir and others (PLD 2011 SC 132), Nadeem Shahid and another v. Chairman, State Life Insurance Corporation of Pakistan and 3 others (2003 PLC (C.S.) 719), Agha Salim Khurshid and another v. Federation of Pakistan and others (1998 SCMR 1930), The Secretary, Government of the Punjab, through Secretary Health Department, Lahore and others v. Riaz ul Haq (1997 SCMR 1552) and Aurangzeb v. Messrs Gool Bano Dr. Burjor Ankalseria and others (2001 SCMR 909). Finally the learned Law Officer argued that the impugned order is even incorrect on the facts as the learned Single Judge held that no personal hearing was given and that no complaint was given from the public or from any official and further that the petitioners had passed their typing test yet their services were dispensed with. Learned Law Officer argued that all three findings of the learned Single Judge are contrary to the record and the facts. He has relied upon order dated 28.3.2017 issued by the Director General, Punjab Land Records Authority to urge the point that the Respondents were given a personal hearing, that they were confronted with their typing test result and that Annexure-C of the appeal shows the nature of some of the complaints that were filed against the SCOs.

4. Mr. Muhammad Ahsan Bhoon, Mr. Talaat Farooq Sheikh, Malik Muhammad Awais Khalid and Mr. M. Mansoor Humayun, Advocates for the Respondents argued that the Respondents were treated in an arbitrary manner with mala fide intent. All candidates qualified the recruitment process and were appointed after following of codal formalities. The Appellant has not been able to show any illegality in the recruitment process. Learned counsel further argued that there is no provision for re-take of typing test nor was there any justification for terminating the contract through an omnibus order without considering the case of each and every SCO on his individual merit. It is their case that all Respondents were qualified and even project employees can be regularized in terms of the dicta laid down by the august Supreme Court of Pakistan in the case titled Rizwan Javed and others v. Secretary Agriculture Livestock and others (2017 PLC (C.S.) 712). It is also their case that they were never heard and that they were never given a fair chance to defend themselves and that the Appellants have misconducted themselves and abused their authority. Reliance has been placed on the cases titled Collector of Customs and Central Excise, Peshawar and 2 others (2004 SCMR 303), District Coordination Officer, District Dir Lower and others v. Rozi Khan and others (2009 SCMR 663) and Jawad Ali and others v. Superintendent Jail and others (2017 PLC (C.S.) 587).

5. We have heard the learned counsel for the parties and perused the record.

6. The Respondents do not dispute that they are contract employees nor do they dispute that the contract was for one year which expired on 30.6.2017. It is their case that the contract was terminated arbitrarily without due process and it is also their case that not only should they be reinstated in service but they should be treated as regular employees. The contract period ended 30.6.2017 and at this point there is no contract between the parties and furthermore in terms of what has been argued before us there is no will of the employer that is the Appellant, to extend the contract of the Respondents. In terms of the impugned order dated 30.8.2017 passed by the learned Single Judge, the order dated 28.3.2017 issued by the Director General, Punjab Land Records Authority being the order of termination of contract was set aside and all consequent acts were declared to be illegal as they were without affording the Respondents a fair trial as required under Articles 4 and 10-A of the Constitution of Islamic Republic of Pakistan, 1973. We are of the opinion that the impugned order has failed to take into consideration the settled principle of law on the subject by the august Supreme Court of Pakistan. In the case titled 'Federation of Pakistan, Chamber of Commerce and Industry, Karachi v. Ali Ahmed Qureshi' (2001 SCMR 1733), the august Supreme Court of Pakistan held that a contract employee is governed by the principle of master and servant and there is no right for seeking reinstatement under the contract and in the event of arbitrary dismissal or unwarranted termination of employment, an employee is entitled to sue for damages. In the case titled 'Federation of Pakistan through Secretary Law, Justice and Parliamentary Affairs v. Muhammad Azam Chattha' (2013 SCMR 120) the august Supreme Court of Pakistan held that there is no vested right on the basis of which the respondents employed on contract can seek reinstatement through a constitutional petition. The august Supreme Court of Pakistan has held that a contract employee instead of pressing for his reinstatement of service for the left over period can at best claim damages to the extent of the un-expired period of service. It has also been held that contract of service cannot be specifically enforced. A contract employee is governed by the doctrine of master and servant and in the event of arbitrary dismissal or unwarranted termination of employment, the employee can sue for damages equal to wages, allowances and other benefits which would have been otherwise been payable under the contract of employment. It has also been held by the august Supreme Court of Pakistan in the case titled 'Abdul Wahab and others v. HBL and others' (2013 SCMR 1383) that where service grievance is agitated by a person who is not governed by statutory rules of service, before the High Court, in terms of Article 199 of the Constitution, such petition shall not be maintainable. Furthermore in terms of the dicta laid down by the august Supreme Court of Pakistan, a contract employee has no right to be in service beyond the contract period. Reliance is placed on the cases titled 2001 SCMR 909 (supra) and PLD 2011 SC 132 (supra).

7. Therefore for what has been argued before us, the Respondents do not have any right to continue under the contract as the contract expired on 30.6.2017. With respect to the termination, the contracts were terminated in terms of clause 17 which reads as under:- You shall be on probation for three months. During probation your contract shall be liable to termination without notice. After expiry of the probation period your contract shall be liable to termination on one month' notice or on payment of one month's pay in lieu thereof on either side, without assigning any reason. The Respondents were paid one month's salary in lieu of notice. Some of the Respondents filed W.P. No.12840/2017 wherein an interim order was issued on 3.5.2017 with a direction that until the next date of hearing operation of impugned order shall remain suspended. Consequent to the said order, the Respondents were paid their salaries for the months of May and June, 2017 hence have been paid their salaries under the contract and were also given a hearing pursuant to an order of the Court. The Respondents have no vested right after the expiry of the contract to seek renewal or regularization. Furthermore even with reference to the challenge to the termination of the contract the Respondents could not have been reinstated as per the law laid down by the august Supreme Court of Pakistan.

8. Under the circumstances, all the appeals are allowed and the impugned order dated 30.8.2017 passed by the learned Single Judge in W.Ps. Nos.12840/2017, 10883/2017 and 5885/2017 is set aside. KMZ/S-72/L Order accordingly.