1980 PLP 229 (CLC)

Irshad Mahmood for Respondent No.

1. Rana Muhammad Sarwar for Respondent No. 2. , Dates of hearing : 22nd April and 17th June, 1979. SHAFI UR-REHMAN, J.-This is an appeal under section 3 of the .Law Reforms Ordinance. 1972.

2. The appellant was employed as Sales and Purchase Manager in the Ismail Cement Industries Ltd., Lahore on a salary of Rs. 2,200 p. m. By the Economic Reforms Order, 1972 (President's Order No. 1 of 1972) this establishment was taken over by the Government ride section 4 read with item No. 9 of the Schedule. The Managing Director was appointed under section

4. On 18tb March, 1975 he passed an order and com municated it to the appellant informing him that his services were no longer required by the company and he was to be paid one month's salary in lieu of notice period in addition to all other dues. The appellant first moved the Minister for Production and Industries (Annex. B) praying that. "the post of Sales and Purchase Manager may be revived and I be allowed to continue against that post". Failing to get a favourable response he challenged the order of termination of his service by recourse to the Constitutional jurisdiction of this Court.

3. The appellant claimed to be the employee of a statutory body after the enforcement of the Economic Reforms Order. He challenged the justification of abolition of the post of Sales and Purchase Officer. It was also stated that the Managing Director being not the appointing authority of persons in receipt of a pay of more than Rs. 2,000 p. m. could not terminate the appointment.

4. The learned Judge in Chambers following the decision in Peco Ltd. v. Muhammad Nazir Khan (P L D 1975 Lah. 289) and R. T. H. Janjua v. National Shipp ing Corporation (P L D 1974 S C 176) held that the appellant had no locus standi to challenge the termination of service and dismissed the petition in limine. Hence this appeal.

5. The learned counsel for the appellant does not claim that as Sales and Purchase Officer the appellant held a public office. It is not the case of the appellant either that he enjoyed any Constitutional protections as such as regards the terms and conditions of his service. What is contended is that there was a directive of the Government of Pakistan (Annex. E) wherein procedure for appointment was laid down and it was stated that "appointments to the post carrying a Salary of Rs. 2,400 and above will be made by the Chairman of the B

1. M. on the recommenda tion of the Selection Committee" and appointments to the post carrying a salary of Rs. 1500 and above but below Rs. 2,400- was to be made by the Chairman of the concerned Corporation subject to the approval of Chairman B.

1. M. and on the recommendation of the Selection Commit tee. It is stated that this procedure is in fact a direction to the Managing Director under sub-para, (3). of para. 4 of the Presidential Order No. 1 of 1972. The only authority which could terminate the appointment of the appellant was the one specified in this directive and in no other.

6. The argument now advanced by the learned counsel finds express mention in grounds (d) and (e) of para. 7. of the Constitutional petition but it appears that it was not urged before the learned Judge in Chambers at the time of the arguments at least not in the manner in which it has been presented to us.

7. The appellant fell in the category specifically dealt with by the Presidential Order by its para 6 which reads as follows :,-- "

6. Employees to continue in service.-Unless in any particular case the Managing Director otherwise directs, all persons employed in, by or for the purpose of the business of the g establishment by whomsoever appointed or engaged, shall continue in then respective employments on the same remuneration and other conditions of service as were applicable to them immediately before the appointment of the Managing) Director of the establishment . The directive of the Government, which is relied upon has a specific purpose and limited scope. It is apparent from the very opening words of the circular which states that "I am directed to say that the following procedure for appointment both fresh and by promotion to the executive cadres in the B.

1. M. Corporation and the operating units under them had been approved by the Minister for Production shall from henceforth be followed". It was a prospective dispensation. It was limited to the cases of appointments both fresh and by promotion. It was to extend to the executive cadre in the B.

1. M. Corporation and the operating units. The case of the appellant was neither of appointment! nor -of promotion. Reading this circular in conjunction with para 6l reproduced above and making both of them co-exist, it necessarily follows that the appellant continued to be governed by para. 6 and for future course of action in the matter of appointment and promotion the circular, (Annex. E) was to take over.

8. Another way of looking at the same problem is that para. 6 of the Presidential Order having statutory force could not be diluted or whittled down by a circular which had- a subordinate character. That question, however, would arise only if there is such inconsistency as cannot be reconciled and one provision has to make way for the other by yielding itself. That situation, however, does not arise in the present case, because both the provisions can co-exist, para. 6 taking care of those employees who continued in service after its take over and the circular taking care of those who were to be appointed after such take over.

9. It has never been the case of the appellant that he was not dealt with in accordance with the terms and conditions of his service as contained in his contract of employment with erstwhile employer which had in his case acquired fix subject to conditions and limitations given in para. 6 of the Presidential Order. If he continued to serve on the same terms and conditions and if the same has been observed meticulously in protecting his service rights, he cannot make a grievance of the fact on the strength of some other provision not applicable to his case.

10. We find no merit in this appeal which is dismissed with costs. K. M. A. Appeal dismissed,