1993 PLP (C (PLC(CS))

MUKHTAR AHMED JUNEJO, J:

‑Petitioner Saghir Ahmed Rajput, who is Sanitary Inspector in Hyderabad Municipal Corporation (respondent No. 2) bas grievance about re‑employment of respondent No.4 Shaukat Ali in service of the respondent No. 2 as Chief Sanitary Inspector for two years, ordered by the Government of Sindh (respondent No. 1) under the impugned order bearing Office No. SOIV/MC‑1/1(6)/91‑HMC, dated 1‑6‑1992. He has sought declaration that the said order is illegal, without jurisdiction, and is of no legal effect. Both the petitioner as well as the respondent No. 4 are old employees of Hyderabad Municipal Corporation. Under an order dated 7‑7‑1981 passed by the Municipal Commissioner (respondent No. 3) of Municipal Corporation, the respondent No. 4 was retired on completion of 25 years' service. Under a subsequent order dated 18‑7‑1981 passed by the Health Officer of respondent No. 2, the respondent No. 4 was relieved from duty on 18‑7‑1981 in pursuance of his retirement. However, under an order dated 2‑1‑1984 passed by the respondent No. 3, the respondent No. 4 was reinstated in service of the respondent No.

2. Respondent No. 4 was to retire on 14‑6‑1991 on completion of 60 years' age. Under an order dated 26‑5‑1991 the Government of Sindh accorded extension to respondent No. 4 in service of the respondent No. 2 for 3 years. Said order dated 26‑5‑1991 was challenged in Constitution Petition No. D‑60 of 1991, but it was withdrawn by the Government of Sindh under a letter dated 7‑5‑1992. Consequently, the petitioner withdrew C.P. No. D‑60 of 1991 on 27‑4‑1992. Then came Government of Sindh order dated 1‑6‑1992 approving re‑employment of the respondent No. 4 as Chief Sanitary Inspector on contract basis for two years. Said order is challenged in this Constitution Petition. The petitioner challenged the order of re‑employment dated 1‑6‑1992 on the following grounds: (a) That the services of the respondent No. 4 were not indispensable. (b) That the impugned order is' in violation of the administrative instructions of the Government of Sindh. (e) That the re‑employment of the respondent No. 4 was ordered without considering Government of Sindh Circular No. SO‑IX‑REG(S&GAD) 2/C/12‑74, dated 11‑3‑1976. (d) That the petitioner could be promoted to the post of Chief Sanitary Inspector, had the impugned order re‑employing the respondent No. 4 not been issued. (c) That the impugned order was issued without consideration of legal rights of the petitioner and without lawful approval of the authority. (f) That the respondent No. 4 was mala fide retained in service and his retirement was on paper only. When this petition was placed in Court on 9‑7‑1992 pre‑admission notices were issued to the respondents and comments were called from the respondent No.

1. In spite of various dates of hearing having been given in this case, the comments were not supplied as such it was decided to hear the parties at Katcha Peshi stage, without having the benefit of comments. We have heard Mr. S. Jahangir Hassan Shah, Advocate for the petitioner; Mr. Abdul Latif Memon, A.A.‑G. on Court notice. Mr. Nooruddin Shaikh, Advocate for respondent No. 4 and Mr. Abdul Hayee Pathan, Advocate for respondents 2 and

3. Mr, Jahangir Hussain Shah, learned counsel for the petitioner argued that the petitioner as well as the respondent No. 4 were not `civil servants', as they were employees of the Municipal Corporation and as such this Court's jurisdiction under Article 199 of the Constitution of Pakistan was not affected try Article 212(2) of the Constitution of Pakistan. It was next argued that the petitioner was an `aggrieved party' for purposes of Article 199 of the Constitution, because had respondent No. 4 not been re‑employed the petitioner would have been promoted as Chief Sanitary Inspector. The impugned order dated 1‑6‑1992 was challenged on the ground that it was against the settled policy of the Government of Pakistan to discourage the employment of employees who can easily be substituted and replaced and that impugned order was in violation of instructions of the Government. It was also argued that while ordering re‑employment of the petitioner, the respondents Nos. 2 and 3 had overlooked the fact that the petitioner was due for promotion to the post of Chief Sanitary Inspector and that the petitioner had right to be promoted and such right had been infringed by re‑employment of the respondent No.

4. Mr. Abdul Latif Mamon, A.A.-G. argued that the petitioner had no vested right to be promoted to the next higher post and as such his petition was not maintainable. The petition was also opposed by learned counsel for the respondent No. 1 and by learned counsel for the respondents 2 and

3. Mr. Nooruddin Shaikh, learned counsel for the respondent No. 4 vehemently opposed the Constitution petition and challenged its maintainability on the ground that the petitioner had no vested right for being promoted as Chief Sanitary Inspector and that none of his statutory or Constitutional rights was violated by re‑employment of the respondent No. 4 as Chief Sanitary Inspector. Mr. Abdul Hayee Pathan learned counsel for the respondents 2 and 3 supported the stand taken by learned counsel for the respondent No.

4. He was of the view that the respondent No. 2 was competent to re‑employ any of its retired employees and such right cannot be challenged by any other employee of the respondent No.

2. There is no gainsaying the fact that a party invoking Constitutional jurisdiction of this Court has to make out that he has a fundamental right or a legal right and that the same was infringed. The petitioner has invoked Constitutional jurisdiction of this Court and as such he has to establish that any of his fundamental or legal rights has been infringed. In the case of Muntimza Committee, Al‑Mustafa Colony (Regd:) and others (PLD 1992 Kar. 54) the view taken was that the condition precedent to the granting of any relief under Article 199 of the Constitution of Pakistan, depends on existence of a fundamental or legal right of a person and the infringement of such a right. The only grievance of the petition is about his prospect of promotion if respondent No. 4 ceases to be Chief Sanitary Inspector. However, as held in the case of Abdul Bari v. Government of Pakistan (PLD 1981 Kar. 290) no person has a vested right to an initial appointment to a particular post or to be promoted to a higher post. In the circumstances, the petitioner has no right which can be granted to him under Article 199 of the Constitution of Pakistan and consequently this petition stands dismissed in limine. A.A./S‑982/K Petition dismissed.