2013 PLP (C (PLC(CS))

SHAH JEHAN KHAN AKHUNDZADA, J.

Petitioner, Sajid Ali Shah, has called in question his termination order dated 4-1-2012 as well as order dated 19-1-2012 whereby his name was excluded from the list regarding regularization of contract / daily wage employees.

2. As per averments made in the petition, the petitioner was appointed in WAPDA as Senior Clerk on daily wage basis with one day break after 89 days. The said order was then extended from time to time but vide order dated 4-1-2012 his services were terminated with effect from 31-12-2011 being no more required. Grievance of petitioner is that vide letter dated 5-1-2012, the service record of contract/daily wage employees for regularization was requisitioned by the Administration Directorate (Water), WAPDA House, Lahore but instead of regularizing his services, he was terminated from service with mala fide intention and his name was also excluded from the list sent for regularization of his services. The petitioner has thus termed the impugned orders being discriminatory and based on mala fide.

3. Respondents in their comments have stated that petitioner was neither qualified nor eligible for the post of Senior Clerk and that no vacant post of Senior Clerk was either available at that time or even at present; that appointment of petitioner was not in accordance with rules and that this Court has got no jurisdiction to entertain the present writ petition.

4. We have heard the learned counsel for the parties and have gone through the available record.

5. Section-2(1)(b)(ii) of the Civil Servants Act, 1973 declares that the meaning and sphere of civil servants does not include the person who is employed on contract or work-charged basis or paid from contingencies. As per settled interpretation of the words `temporary employment' means a post which is not sanctioned without limit of time and is to continue for a short or fixed period only. Such an employee cannot claim to be a person of having any legal character. The employer is always to be held so arbiter to deal with him in accordance with the terms of conditions of his contract. If the Government applies the prescribed rules for terminating the service of a person, the motive behind the action for so terminating does not matter at all and the temporary servant cannot be heard to say that the action was mala fide. In other words if the service of a temporary employee is terminated in conformity with the terms and conditions of his agreement, he has no cause of action. The august Supreme Court of Pakistan in the case of Shamshad Ali Khan v. Commissioner Lahore etc. (1969 SCMR 122) has held that such an employee cannot invoke the remedy of writ jurisdiction of the High Court. In another case reported in 1981 PLC (C.S.) 15), it was observed that an employee could not enforce contractual obligation. Similar view was again expressed by the august Supreme Court of Pakistan in the cases of Nizamuddin v. CAA 1999 SCMR 467 and PSIC v. Ahmad Akhtar Sheema 2002 SCMR 549.

6. Admittedly, the petitioner's appointment was purely temporary on daily wage basis, therefore, his services in terms of his employment contract could be terminated in the absence of any alleged violation of provision of law/statutory rules; Anwar Ali Sahto v. Federation of Pakistan PLD 2002 SC

101. Moreover, section 2-A of the Service Tribunals Act, 1973 is no more on the statute book, hence status of petitioner being a Government Servant is also questionable but we would not go into that aspect of the case, as instant writ petition is not maintainable on the point discussed above. Petitioner, if feels aggrieved that his services were remained in breach of the contract, may seek his other legal remedies if available to him under the law.

7. Consequently, this petition, being not maintainable, is dismissed. HBT/423/P Petition dismissed.