2010 PLP 427 (PLC)

SHAHID ANWAR BAJWA, J.

Vide short order dated 5-4-2010 this constitution petition was dismissed for reasons to be recorded later on. Following are the reasons for the short order.

2. Facts giving rise to this petition, as pleaded in the petition, are that the petitioners were taken in employment of Pakistan Steel on retainer basis with effect from 1-7-1992 for a period of one year. Such relationship was continued from year to year till 31st January, 2000, whereafter it was not extended. Petitioners made various representations and ultimately approached this Court in its Constitutional jurisdiction by filing Writ Petition No.1057 of 2001. This writ petition was, in view of provisions of section 2A of the Service Tribunals Act, 1973, held to be not maintainable, operative part of the order passed by this court in the above numbered constitution petition on 1-6-2001 is in the following words:- "The aforesaid Constitution Petition is absolutely misconceived and not maintainable. The petitioners should invoke the jurisdiction of the Federal Service Tribunal after decision is taken on their departmental appeals by respondent No.1 which may be done within a short period with these observation this Constitution Petition stands disposed."

3. After the order was passed by this Court, appeal was filed before the Federal Services Tribunal under section 4 of the Service Tribunals Act. That appeal abated in terms of judgment of the honourable Supreme Court, announced in Muhammad Mubinussalam's case (PLD 2006 SC 602). Thereafter this constitution petition was filed in this Court.

4. Mr. Mansoorul Haq Solangi learned counsel for the petitioners submitted that petitioners had right to be taken in employment of Pakistan Steel and this right was available to petitioners under Articles 4,9, 14, 18 and 25 of the Constitution of the Islamic Republic of Pakistan and same could not have been taken away from the petitioners. He submitted that other persons had been taken in the employment and petitioners had been unfairly and illegally discriminated against and for mala fide reasons have been ignored.

5. Contention of learned counsel was in face of judgment of honourable Supreme Court in Pakistan International Airline v. Tanveer ur-Rehman (CPLA No.172-K of 2009), which judgment was announced on 12-3-2010 that honourable Supreme Court has not considered many aspects. Learned counsel, however, conceded that Pakistan Steel does not have statutory rules. He relied upon S.H.M. Rizvi and 5 others v. Maqsood Ahmed and 6 others (PLD 1981 SC 612).

6. We have considered these submissions made by learned counsel and have gone through the case law cited by the learned counsel for petitioners.

7. In the case cited by the learned counsel, (S.H.M. Rizvi's case) factual context was that appellant was originally appointed to what was then known as Principal Appraisers and Superintendents. Thereafter they were promoted on various dates to the posts of Assistant Collectors. Finally, in. 1972 they were promoted to the positions in Grade

18. Contesting respondents joined as direct recruits in 1969 on the basis of results of Central Superior Services Examination held in 1968 as Assistant Collectors and were promoted to grade 18 in 1974. A tentative seniority list was published and contesting respondents was placed senior to the' appellants. This led to the litigation. In a very elaborate judgment authored by Mr. Justice Shafi-ur-Rehman implication of word "final" used in section 4 of the Service Tribunals Act was dilated upon. (It may be pointed out that word "final" has been deleted from the said section 4 by the amending Act of 1997). It was held by the honourable Supreme Court that if there is delay in disposal of revision and departmental authorities are procrastinating or are contumaciously refusing to pass final order, remedy for aggrieved civil servant is to represent to next higher authority and after waiting for a reasonable time to seek constitutional remedy for direction to department to perform duty enjoined upon it by law. Facts of the case as well as ratio decidendi does not appear to have any relevance to the facts of the case in present matter or the moot point involved in it.

8. It has been held by the honourable Supreme Court in Tanveer -ur-Rehman's case that where there are no statutory rules governing terms and condition of persons in employment of the corporation constitution petition would not be maintainable. It may be pointed out that one of the matters in Tanveer-ur-Rehman's case (supra) was PIAC v. Roopa Syed the judgment of the High Court in Roopa Syed is reported as Roopa Syed v. Pakistan International Airlines Corporation (2009 PLC (C.S) 928). She was an Airhostess, who was hired on contract extending from year to year (staring from 2-7-1995 and ending on 31-12-2006 when the Corporation refused to review the contract) and she was not regularized while during period of her contract many other similarly placed airhostess had been regularized although she had been recommended by the lower echeleons for regularization. High Court had allowed constitution petition and directed departmental authorities to consider her for regularization. Pakistan International Airline Corporation filed CPLA in the honourable Supreme Court which CPLA after leave to appeal was granted was allowed and it has been held that since PIAC does not have statutory rules writ petition would not be maintainable.

9. Facts of Roopa Syed's case are fully applicable to the case of petitioners and, therefore, respectfully following the judgment of the honourable Supreme Court in Tanveer-ur-Rehman case (supra), this constitutional petition is held not maintainable.

10. Although, learned counsel for petitioner has repeatedly stated that many aspects have not been considered by the honourable Supreme Court in its judgment, in fact learned counsel went to the extent of saying judgment by honourable Supreme Court in Tanveer-ur-Rehman (supra), is that judgment per incurriam, learned counsel was unable to point out as to which aspects had not been considered by the honourable Supreme Court in Tanveer-ur-Rehman's case (supra).

11. These are the reasons for the short order passed on 5-4-2010 by which this constitutional petition was dismissed. However, petitioners would be at liberty to avail such remedy as may be available to them in accordance the law. S.A.K./M-62/K Order accordingly.