2004 PLP (C (PLC(CS))

Asif Shah for Respondent No.6. Date of hearing: 15th January, 2004. MALIK HAMID SAEED, J.‑‑‑To briefly narrate the facts of the case and to avoid creating legal complication for the petitioner due to the conclusion we would make in this writ petition, suffice it to sum up the case of Major (R.) Abdul Salam; petitioner, in the following words:‑ In the year 1990, petitioner was appointed on contract basis for 3 years as District Manager, G.T.S., Abbottabad. On expiry of contract, his services were regularized, but unfortunately in the year 1995 the Provincial Government closed the activities of the G.T.S. and all the employees were terminated with effect from 31‑10‑1995 on the terms and conditions of Golden Hand Shake. The petitioner alongwith two other Officers questioned the authority of the Labour Union (CBA) to negotiate with the Government about the service career of G.T.S. Officers by filing' a writ petition before the Circuit Bench of this Court at Abbottabad. On 30‑10-1995, the operation of the impugned termination order qua the petitioners was stayed under C.M. No. 137 of 1995, but on the following day the petitioners moved an. application for the withdrawal of their writ petition and the writ petition was permitted to be withdrawn. The stay order also stood vacated. Under an agreement executed between the petitioner and the Government of N.‑W.F.P acting through the General Manager of the defunct G.T.S. on 1‑11‑1995, the petitioner was retained in R.T.B. Service for a period of three months. The petitioner remained as such till 6‑8‑1996, when his services were placed at the disposal of Sarhad Development Authority, where he assumed the charge of General Manager (Administration), but was again transferred and posted as Administrator‑cum‑Coordinator Hazara University of Management and Engineering Sciences, Abbottabad, The project was however closed down on 30‑6‑2001 and the petitioner's services were then placed at, the disposal of Afghan Commissionerate. The petitioner served as Agency Administrator, Afghan Refugees, North Waziristan Agency, Miran Shah, as well as District Administrator Haripur/Mansehra at Abbottabad. The petitioner in the meantime filed another writ petition before the Circuit Bench of this Court at Abbottabad, which was later on transferred to the Principal seat at Peshawar for hearing. In the writ petition, the petitioner asked for his absorption in the relevant pay scale of BPS‑19 against any Government scheduled post in the Afghan Commissionerate, or as Director Administration of Hazara University, Dhodial, Mansehra. During this period, the Provincial Government issued a Notification dated 12‑3‑2003 further substituted vide letter dated 26‑4‑2003 whereby the petitioner was repatriated to Hazara University with immediate effect to consider his retention in service or otherwise. When the writ petition of the petitioner came up for hearing, the learned Advocate‑General pointed out that the petitioner has, not challenged the aforesaid notifications, hence the same cannot be set aside. The petitioner withdrew his writ petition and now has filed the instant one for declaring Notification dated 12‑3‑2003 and its substituted Notification of even number and date issued on 26‑4‑2003. and actions taken with reference thereof by the respondents Nos.5 and 6 .as illegal, improper, unjust and directing respondent No.4 to adjust the petitioner in BPS 19 against any Government scheduled/regular post in the Afghan Commissionerate with all back benefits. It is also prayed that respondent No.1 be directed to regularize the services of the petitioner in Afghan Commissionerate or any Government Department/Semi autonomous bodies, keeping in view his 12 and half years regular/continuous service. We have heard the learned counsel for the parties and also gone through the material placed on file. It may be mentioned here that the repatriation of the petitioner to Hazara University has already been questioned by the Vice Chancellor as against the University Act and not within the competence of the Provincial Government. Another, objection of the University is that the petitioner was offered post of Assistant Pro3ect Director on contract basis on 15‑9‑2001, in Hazara University, keeping in view his previous service in Hazara University of Management and Engineering Sciences, but the petitioner did not want to join the said University and as he was posted in Afghan Refugees Commissionerate, therefore, lie has no locus stand to be posted on the required post in Hazara University. On the other hand, the stand of the Provincial Government, is that the petitioner was relieved from Afghan Commissionerate on 19‑3‑2003 as there was no such post or vacancy to adjust the petitioner in Afghan Commissionerate. The aforesaid situation clearly discloses that neither Hazara University nor the Provincial Government is ready to accept the petitioner, who hay rendered about 12/13 years continuous service without any break under the orders of the Provincial Government in various department, institutions etc. The difficulty before us is however that we cannot dilate upon such aspects of the matter due to the agreement dated 1‑11‑1995, under which the services of the petitioner were retained in the defunct GTS. The agreement is in the form of a contract between the petitioner and the Provincial Government, providing contractual appointment of the petitioner; therefore, such a contract cannot be enforced through Constitutional petition. Also, resolving of the controversy, whether the status of the petitioner is contractual, temporary or regular (according to petitioner after the agreement he has not been treated as contractual but a regular employee, however the Government says that he is a contract employee) involves determination of factual facts particularly with reference to various orders/notifications of the Government and the agreement in this regard, which too restrain us from giving an answer to the same without holding a proper inquiry in this regard. For the aforesaid reasons, we find that the writ petition in hand is not maintainable for the reasons stated above and the same is hereby dismissed, but with no orders as to costs. The petitioner can approach the competent forums for the redress of his grievances, if the law permits so. H.B.T./77/P Petition dismissed.