2015 PLP (C (PLC(CS))

SYED SAEEDUDDIN NASIR, J.

This order will disposed off C.M.A. 8396 of 2014, which is an application under Order VII, rule 11, C,P,C, read with section 151, C.P.C., filed by the defendant No.2, Civil Aviation Authority for the rejection of plaint of the present suit. Mr. Khalid Mehmood Siddiqui, Advocate appearing for defendant No.2 has inter alia argued that Civil Aviation Authority is an independent authority having non-statutory rules of service, therefore, in the light of the judgments of the Hon'ble apex Court the relationship between the defendant No.2, Civil Aviation Authority and its employee is governed by the Principle of "Master and Servant" and the only remedy available to the employee against any action taken by the Civil Aviation Authority is in the form of suit for damages. He next contended that where the relationship of employer and employee is governed by the Principle of "Master and Servant" no injunction can be granted by the Court inasmuch as the only remedy available to the employee is to file the suit for damages. Where damages are the adequate remedy injunction cannot be granted. He further contended that the promotions cannot be claimed as of right by any employee of the Civil Aviation Authority inasmuch as the same is governed by the internal management of the Authority which is Departmental Promotion Committee. In support of his contention the learned counsel placed reliance on following case-law:-- (1) 2013 SCMR 1383, (2) 2013 SCMR 747, (3) 2013 SCMR 523, (4) PLD 1960 DACCA 759, (5) PLD 1971 Lahore 598, (6) PLD 1971 Lahore 748, (7) 2001 SCMR 901, (8) 2013 SCMR 1733, (9) 2012 PLC 636 (10) Unreported judgment of this Court in C.P. 1533 of 2009. Turning now to the arguments of the learned counsel for the plaintiff, it is contended that the Principle of Master and Servant is not applicable to the instant case and that the Civil Aviation Authority has its statutory rules of service. Even otherwise the present suit is maintainable inasmuch as the action taken by the defendant No.2 against the plaintiff is tainted with malice. Learned counsel for the plaintiff contended that the suit is maintainable inasmuch as the plaintiff has sought relief against action of the defendant No.2, which is proposed to be taken in violation of law. That conditions of the employment are found to be protected by law or rules having the force of law relevant both under the constitutional jurisdiction and the original jurisdiction. It has been found to be permissible in both. Learned counsel for the plaintiff next contended that despite the fact that the rules government service of the plaintiff are presumed to be non-statutory, even then the protection under Articles 4 and 10-A of the Constitution of Pakistan, 1973 is available to the plaintiff under which the plaintiff has got the right to be dealt with in accordance with law and for the determination of his civil rights and obligations, he is entitled to free trial and due process of law. The discretion vested in the management of the corporation to terminate the service of employee, must be exercised honestly and fairly and for the benefit of the public. That if the employees are informed that they would be treated in a particular manner, they acquired a legitimate expectation to be treated fairly according to the regulations governing their service, and denial of such legitimate expectations would also be subject matter of judicial review. The learned counsel for the plaintiff has argued that failure of defendants to consider the plaintiff fairly, justly and objectively in accordance with Civil Aviation Service Regulations and promoting junior officers, out of turn is illegal, unlawful and unconstitutional. Learned counsel next contended that the suit for permanent injunction is maintainable in the circumstances of the case and the application for rejection of the plaint should be dismissed. Learned counsel for the plaintiff has relied upon the following case-laws:

(1) 2013 SCMR 1707, (2) 1997 CLC 1936, (3) 2013 PLC (C.S.) 1212. In Shahid Mehmood v. Karachi Electric Supply Corporation, 1997 CLC 1936 it has been held that "where the plaintiff had sought relief against action proposed to be taken against him in violation of law, suit would be maintainable." It is further held in the same case-law that if an obligation i.e. a duty enforceable at law is cast on the defendant, plaintiff would be entitled to the relief of permanent injunction. I have heard counsel for the parties perused the material available on record of the case, as well as case-law cited above. The learned counsel for the defendant No.2 has mainly argued on the point that since the rules and regulation of Civil Aviation Authority are non-statutory in nature, therefore, the same do not confer any right on the plaintiff, to maintain the present suit. However, the entire case-law relied upon by the learned counsel for defendant No.2 relates to the maintainability of Constitutional Petition under Article 199 of the Constitution of Pakistan, 1973 the scope of which is totally different from a suit. It is pertinent to mention here that in unreported judgment of the Hon'ble Supreme Court's three member Bench, relied upon by the counsel for plaintiff in Civil Petition No.215 of 2011, it has been held that the service regulations applicable to the employee of Civil Aviation Authority have been made in exercise of powers vested in Civil Aviation Authority by the Civil Aviation Authority Ordinance, 1980, therefore, the same are statutory regulations. The next case-law relied upon by the learned counsel for the plaintiff is reported in Pakistan Defence Officers' Housing Authority v. Jawaid Ahmed, 2013 SCMR P/1707 supra wherein it is held that regardless of whether the rules and regulations are statutory in nature nevertheless, the employee has got protection under Articles 4 and 10-A of the Constitution of the Islamic Republic of Pakistan and cannot be condemned unheard. The aggrieved person can in such a case invoke even writ jurisdiction of this Court to enforce his right conferred upon him by the aforesaid two articles of the constitution. I am, therefore, of the considered view that the instant application is misconceived and is liable to be dismissed. Consequently, I dismiss this application with no order as to costs. AG/A-158/Sindh Application dismissed.