2012 PLP (C (PLC(CS))

Petitioner applied in response to advertisement placed by the respondent No.2, Pakistan International Airline Corporation for the job of Cadet Pilot. He underwent written test and was duly interviewed and thereafter on May 7, 2009 offer for appointment as Cadet Pilot was given to the petitioner. Medical examination took place and there appeared to be some medical issues. A doctor certified that though petitioner would require regular follow-up he was a fit person to fly. However, letter of offer of employment was not acted upon. This constitutional petition was filed with following prayers:

(a) To declare that petitioner is eligible, fit and suitable to be appointed to the post of Cadet Pilot by the respondents in pursuance of their advertisement dated 7-7-2008. (b) To direct the respondents to pay to the petitioner the cost of this petition. (c) To grant any other relief or reliefs which might be found appropriate in the circumstances of the case by this Hon'ble Court. Learned counsel for petitioner in respect of maintainability of petition sought to distinguish the case of Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others (PLD 2010 SC 676) by contending that employees in that matter were already employees of the Corporation whereas the petitioner is yet to be taken in employment. Learned counsel relied upon Wilayat Ali Mir v. Pakistan International Airlines Corporation (1995 SCMR 650) for his contention that if an authority's wrong act is arbitrary, unreasonable and in complete disregard of the rules and regulations, it has to be set aside. Learned counsel further submitted that the petitioner has no efficacious remedy provided to him by law because a civil Court in its plenary jurisdiction cannot order reinstatement. Learned counsel relied upon Mrs. Anisa Rehman v. P.I.A.C. and another (1994 SCMR 2232) for his contention that principles of natural justice to be read in every law. Learned counsel relied upon Nouman Bashir Khan v. Federation of Pakistan and another (SBLR 2011 Sindh 218) for his contention that writ petition is maintainable. We have considered submissions made by the learned and have also gone through the record. It is admitted position that Pakistan International Airline Corporation does not have statutory rules. The question involved has been finally settled by the Honourable Supreme Court in Tanweer-ur-Rehman's case (supra). In para 19 of the Judgment it was held by the Supreme Court in the following words:

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19. However, this question needs no further discussion in view of the fact that we are not of the opinion that if a corporation is discharging its functions in connection with the affairs of the Federation, the aggrieved persons can approach the High Court by invoking its constitutional jurisdiction, as observed hereinabove. But as far as the cases of the employees, regarding their individual grievances, are concerned, they are to be decided on their own merits namely that if any adverse rules, only then such action should be amenable to the writ jurisdiction. However, if such action has no backing of the statutory rules, then the principle of Master and Servant would be applicable and such employees have to seek remedy permissible before the Court of competent jurisdiction." Reading of above Para indicates that Supreme Court has held that if there are no statutory rules then relationship is (and, if created, would be) that of Master and Servant. One of the essential and fundamental precepts of relationship of Master and Servant is that servant cannot be thrust upon an unwilling master. Therefore, whether such thrusting is sought by setting aside of termination or by ordering initial appointment would be immaterial in this regard. Reliance by the learned counsel in Wilayat Ali Mir's case (supra), though principle stated there cannot be taken exceptions to, does not help the case of petitioner because that case arose out of a decision by the Federal Services Tribunal and admittedly jurisdiction of the Federal Services Tribunal is different from jurisdiction of this Court under Article 199 of the Constitution. Similarly reliance placed by the learned counsel on Nouman Bashir Khan's case (supra) is also of no help to him because in that case question of maintainability was not raised and was neither considered nor decided. Similarly reliance placed by the learned counsel on Mrs. Anisa Rehman's (supra) does not help the case of petitioner because. Anisa Rehman's case while employer was willing to maintain and continue with relationship of employer and employee, punishment of demotion was imposed without the following the principle of natural justice. The learned counsel also submitted that remedy before civil Court is not efficacious remedy. Factum that the aggrieved party may have no other legal remedy simplicitor cannot bring his case under Article 199 of the Constitution if it does not fall otherwise within the compass of the Article. Reference in this regard may be made to Muhammad Ikram Chaudhary and others v. Federation of Pakistan and others (PLD 1998 SC 103) and Muhammad Iqbal and others v. Lahore High Court through Registrar and others (2010 SCMR 632). Result of the above discussion is that this constitutional petition is held to be not maintainable and same is consequently dismissed in limine along with listed application. M.H./S-43/K Petition dismissed.