1998 PLP (C (PLC(CS))

JAWAID NAWAZ KHAN GANDAPUR, J.

The petitioners, all Civil Judges/Judicial Magistrates, appointed on contractual basis, have 'by this writ petition invoked the Constitutional jurisdiction of this Court and have prayed for the issuance of writ of Mandamus to the respondents/Provincial Government to honour the recommendations of His Lordship, the Chief Justice, Peshawar High Court, Peshawar and to regularise their services, including the services of the other contractual selectees.

2. Mr. Mir Adam Khan, Advocate assisted by Mr. Abdul Hamid Khan, Advocate learned counsel for the petitioners present and heard. Record of the case perused carefully.

3. At the very out-set it may be stated that a person claiming entitlement for the issuance of writ of mandamus, must, at least, have a clear legal right to the performance by the respondents of a particular duty sought to be enforced. The duty must be one which is manifestly defined, imposed or en joined by law. In other words and to put it differently the applicant for Mandamus must ex facie show that he has a legal right to the performance of a legal duty by the other party against whom the relief is sought. In the case in hand, the petitioners seek to enforce contractual right and liability on terms devised by them and say that although they were appointed on contract basis yet when their case was recommended by His Lordship, the Chief Justice, for regularisation of their services the same should have been honoured by the respondents/Government (Chief Minister) and their services should have been regularised. In other words, they are casting a duty on the respondents/Provincial Government to make alterations in the service rules as devised by them. The petitioners want that the executive machinery should act in accordance with their wishes. Thus, specific performance of a contract is sought in terms dictated by them. Obviously, a writ of Mandamus cannot be issued to enforce contractual obligations which have been legally settled between the parties with their mutual consent. The petitioners, to our mind, have no legal/vested right to impose condition of their own choice on the respondents/Provincial Government nor are they possessed of a legal right to devise a new mode of performance of functions by the Provincial Government respondents.

4. Again, we cannot ignore a Fundamental Rule that before a writ of Mandamus could be issued to compel the party to do something, it must be prior shown that the statute had imposed a duty in that respect. This factual/legal position is wanting altogether in the instant case. It is only in respect of legal right that a writ of Mandamus can be issued. What legal right the petitioners, who were appointed on contract basis, have to enforce on the respondents/Government to appoint them on regular basis, we have not been able to understand.

5. Not only that contractual obligations cannot be enforced through Constitutional petition but the petitioners have not challenged the filling up of the post presently held by them through the Public Service Commission in violation of the terms and conditions of their appointment, and quite rightly so, because paragraph 2 (i) of the terms of their appointment reads:-- "The period of contract appointment shall be one year with effect from the date of taking over charge or till the availability of selectees of the Public Service Commission whichever is earlier."

6. Sub-paragraph (iv) further requires the appointees to execute an agreement bond with the Government on the prescribed form for contract appointment. It is not denied that such a bond was executed by the petitioners. It would, thus, be seen that the decision of the respondents/Government to fill up the posts in question by regular appointees to be selected by the Public Service Commission is squarely in accord with and not in violation of, the petitioners' terms of appointment

7. Furthermore, issuance of a writ of Mandamus as prayed for by the petitioner to direct regularisation of the petitioners service would be violative of statutory law, namely, section 7 of the N.-W.F.P. Public Service Commission Ordinance, 1978 read with Rule 3 and Schedule ' A' of the N.-W.F.P. Public Service Commission (Functions) Rules, 1983, which prescribes that appointments to the post in the Province in BPS-16 to 20 are to be made on the advice of the Public Service Commission, based on the test and examination conducted by the Commission for the purpose. The post held by the petitioners are in BPS-17 and, therefore, can only be filled up in the manner prescribed by law. The argument by the learned counsel that since the petitioners were appointed after: a competitive examination conducted by a Committee of Judges of this Court (through a transparent process) their non-regularisation by the Provincial Government erodes upon the independence of the judiciary and is violative of the concept of the separation of judiciary-from the executive is not only baseless but is also untenable for many reasons. Firstly, it is true that the examination was conducted, as claimed by the petitioners, but the same was conducted only for appointments on contract basis. This is clear not only from the petitioners' terms of appointment but also from the advertisement of the said posts. Secondly, the argument is not available to the petitioners whose appointment had already been made on specific terms and conditions. And thirdly, without explicit prayer for declaration to strike down the statutory provisions relating to the regular appointment in BPS-17 qua Civil Judges/ Magistrates, as ultra vires the Constitution, it is legally not possible to grant relief on the basis of this contention.

8. In the circumstances we are of the view that the petitioners are not legally clothed with a right to enforce a right not vested in them nor can they compel the performance of a right not yet born on the premises which do not exist either in point of fact or law. The petitioners stand bereft of such a right from its inception.

9. Be that as it may, not statutory duty is involved nor any legal right is being enforced nor indeed performance of a public duty is being claimed, therefore, in our opinion, a writ of Mandamus cannot be issued. This writ petition being devoid of merit/substance is, therefore, dismissed in limine along-with the Civil Miscellaneous. A.A./2223/P Petition dismissed.