1981 PLP (C (PLC(CS))

"Article 222.‑(1) Subject to this Constitution and law, the President in relation to the affairs of the Federation, and the Governor of a province in relation to the affairs of a province, may authorize the temporary employment of persons in the service of Pakistan and may make rules for regulating such temporary employment. (2) The preceding Articles of this Chapter (other than Article 217) do not apply to or in relation to the temporary employment of persons in the service of Pakistan." It was also held by the Lahore High Court that the bar contained in clause (b) of Sub‑Article (3) of Article 201 of the Interim Constitution would hold good against the appellants. The aforesaid Article

201. Sub‑Article (3) was as below: ‑ "(3) An order shall not be made under clause (2)‑ (a) (b) on application made by or in relation to any person in the service of Pakistan in respect of his terms and conditions of service, except a term or condition of service specified in this Constitution." The High Court was of the view that since the terms and conditions of the appellants, unlike other Government servants, were not specified in the Cons titution, therefore they were not entitled to maintain the Writ Petition to enforce their terms and conditions of service. Since the termination of the services of the appellants was held to be in accordance with their terms and conditions of appointment it was, therefore, observed that it was not open to any challenge on the grounds of mala fide and the present appellants could not make any grievance on that score. However it was also observed that the appellants were civil servants. Consequently the writ petition was dismissed. The aforesaid appellants filed Letters Patent Appeals before the same High Court. During the pendency of Letters Patent Appeals, the present Tribunal was established and Kh. Muhammad Aslam's appeal was declared to have abated on 20‑9‑1974. So far as the other two appellants viz. Prof. Hamidullah Siddiqui and Ch. Ali Ahmad were concerned, no abatement order was produced before us. Ch. Ali Ahmad later stated that the L. P. A. was still pending. Finally the present appeals were filed before this Tribunal. Mr. Khalil‑ur‑Rehman Khan, the learned counsel for appellant Kh. Muhammad Aslam in Appeal No. 178/171 of 1974 traced the history of the legislation on the subject. To start with he stated that M. L. R. No. 118 was promulgated on 1‑4‑1972. He referred to paras. 9 and 10 of the same, which read as under: "M. 4 R.

118. Paragraph 9: Any contract made by the owner or manager of any privately managed college or privately‑managed school which is vested in the Central Government or a Provincial Government, under or by virtue of this Regulation shall, in so far such contract relates to the Management of such college or school be deemed to have been made by the Central Government or, as the case may be, the Provincial Government. M. L. R. 118, Paragraph 10.‑All rights, properties, assets, liabilities, debts and obligations of the owners or manager of privately managed college or privately managed school which is vested in the Central Govern ment or a Provincial Government under or by virtue of this Regulation shall, in so far as they relate to the Management of such college or school be the rights, properties, assets, liabilities, debts and obligations of the Central Government, or, as the case may be the Provincial Government." Next came the Interim Constitution of Pakistan as enforced on 21‑4‑1972. Vide Article 280 of the same, the M. L. R. 118 became the Act of the appropriate Legislature but no amendment could be effected in the same except by a bill introduced with the prior approval of the President of Pakistan. Paras. 9 and 10 of the M. L. R. were amended retrospectively vide Punjab Ordinance No. XVI with the approval of the President. Para. 9 was altogether deleted and in para. 10 the words `liabilities' were omitted from the date the M. L. R. 118 was enforced. He also pointed out that the Ordinance No. XVI lapsed without becoming an Act of the appropriate Legislature as the same never came up for approval before the Provincial Legislature. It further appeared that the effect of the Ordinance was con tinued by promulgating the Punjab Ordinance (Temporary Enactments) of 1973 which after having been passed by the Provincial Legislature was published on 28‑2‑1973 as Punjab Act No. VI of 1973 However this Act lacked the prior approval of the President as contemplated under proviso to Article 280(3). This being a temporary measure, ultimately Act No. X of 1973 viz. M L R 118 Punjab (Amendment) Act of 1973 was enforced on 21‑5‑1973 which had the prior approval of the President of Pakistan. In this state of law he argued that the employment of the appellant, though it was initially sanctioned for 10 years vide resolution dated 10‑11‑1969 of Anjuman e‑Hamayat‑e‑Islam, Lahore, yet after the nationalization of the Islamia College, Lahore under M. L. R. 118 it became statutory and was not con tractual. It was argued that under M. L. R. 118 as it originally stood, the appellant acquired a vested right to continue in service for the full term as allowed by Anjuman‑e‑Hamayat Islam which would expire in 1980. Reliance was placed on paragraph 10 of M. L. R. 118 ibid. which created a correspond ing liability against the Government to retain him in service. According to the learned counsel, after the enforcement of M. L. R. 118 Kh. Muhammad Aslam, appellant, became a statutory employee as the contract of employment between the appellant and the Anjuman Himayat‑e‑Islam, by operation of paragraph 9 of the aforesaid M. L. R., was deemed to have been made by the Government concerned, and was merged into the Statute viz. M. L. R.

118. He carried the argument further by contending that the subsequent amendment in paragraphs 9 and 10 of the M. L R. 118 vide Ordinance XVI of 1972 viz. M. L. R. 118 (Punjab Amendment) Ordinance as promulgated on 31‑8‑1972 by the Governor of Punjab deleting the word `liabilities' from paragraph 10 and deleting paragraph 9 in entirety from M. L. R. 118, was operative for a limited period only as the same was not placed before the Legislature and it expired before becoming an Act. He also assailed the efforts of the Provincial Legislature to continue the effect of the same vide Act VI of 1972. It was contended that Act VI of 1973 was invalid for want of the prior approval of the President as envisaged under proviso to Article 280 (3) of the Interim Constitution of 1972 which continued the laws in force including Martial Law Regulation No.

118. The proviso and Article 280(3) aforesaid, read as follows: ‑ Article 280 (3): "Provided that no bill to amend or to repeal any of the Martial Law Regulations or the Martial Law Orders specified as aforesaid shall be introduced or moved without the previous sanction of the President." Relying upon the above he argued that since the amending Act VI of 1973 was void due to incompetence of the Provincial Legislature to pass such law in violation of proviso to Article 280(3) of Interim Constitution, 1972, therefore the same continued to be void unless re‑enacted. In re: The Province of East Pakistan viz. v. Muhammad Mehdi Ali Khan (P L D 1959 S C (Pak.) 387) the following observations from page 413 were relied upon: "There is thus a fundamental difference between a Law that is made by an incompetent Legislature and a law made by a competent Legislature and a law made by a competent fundamental right, the former being void on general principles the latter being void only to the extent of the repugnancy, in the sense that it cannot be applied to a particular case. The former remains void unless re‑enacted by a competent Legislature, the latter requires no re‑enactment . . . ." The observations below from page 380 of P L D 1971 Lab. 371 were also relied upon: "Such a view would be in accordance with the principle laid down by their Lordships of the Supreme Court in Province of East Pakistan v. Muhammad Mehdi Ali Khan to the effect that a Legislation which is void ab initio owing to want of competence in the Legislature at the relevant time cannot be validated by a subsequent conferment of the necessary jurisdiction." Thus according to the appellant no legal sanction was available for the amendment in the Martial Law Regulation No. 118, after the expiry of the Punjab Ordinance No. XVI of 1978. Consequently the contention of the appellant was that it was ineffective and that it failed to affect the vested rights acquired by the appellant thereunder. The following observations from the Supreme Court authority reported in P L D 1971 S C 252 as appearing at page 303 was relied upon: ‑ "Like the existing substantive rights including benefits of advantages that have accrued under Statutes and title to property of office, the right of the action or the cause of action which has already accrued cannot be destroyed or impaired by a new law unless that law, by its express provision or by necessary intendment, is retrospective in operation." With regard to Punjab Act No. X of 1973 as promulgated on 21‑5‑1973 which purported to validate the deletion of para. 9 and the amendment of para. 10 of the M. L. R. 118, he contended that it was only on 21‑5‑1973 that an amendment was validly made in the provisions of M. L. R. 118 and since the orders of termination had been passed much before 21‑5‑1973 therefore the same were contrary to the provisions of M. L. R. aforesaid. The learned counsel summed up his contention and argued that the contracts of service were sanctified by law and were governed by the statute such as M. L. R. 118 and the Courts were bound to enforce the same. P L D 1958 Lab. 169 and P L D 1962 S C 142 were pressed into service to support the plea. The following observations of Lahore High Court which pertained to the employees of Thai Development Authority as appearing at page 180 of the above judgment, were relied upon: ‑ "Ordinarily the relationship between an employer and an employee is governed by the law relating to master and servant; but where the relationship has been regulated by a statute or statutory rule the latter must govern it, and the law Courts are bound to grant redress where the rights of either party have been adversely affected in contravention of their provisions." He also raised an alternative argument based upon Article 222(2) of the Interim Constitution of Pakistan of 1972. According to the learned counsel the appellant in any case could be treated as temporary employee within the meaning of Article 222(2) of the Interim Constitution and to his case the age limit of 58 years as prescribed under Article 221(4) (b) or section 12 of the Punjab Civil Servants Act, 1974 was not applicable. The learned counsel appearing for the other appellants adapted the arguments advanced by the counsel for Kh. Muhammad Aslam and also argued that the construction extending the jurisdiction be favoured. In reply, Mr. A. G. Hamayun, the learned counsel for the respondent argued that under M. L. R. 118 only property and assets of the Provincial Educational Institutions had been taken over and the services of the appellants had not been taken over under this Regulation. According to the Govern ment Pleader the appointment had to be made in the case of such incumbents by separate orders. As such their terms and conditions of appointment were specified in the said orders or their contract of service with their private employers. Thus the contention of the Government Pleader was that the appellants never became the liability of the Government under any of the provisions of M. L. R.

118. He further argued that, except two, the appel lants had already crossed the age of superannuation fixed for the Government servants i.e. 58 years and they were not eligible to be appointed in any civil service nor did they become civil servants at any stage. He further contended that the Government did not consider them fit for appointment on the basis of age and that this determination was not amenable to the jurisdiction of this Tribunal by virtue of proviso (b) to section 4 of Punjab Service Tribunals Act, 1974 which debarred an appeal to this Tribunal against the determination made by the Department as to the fitness of a person to hold any post. He also argued that Act X of 1973 was retrospective in its application and it vali dated all the actions taken by the Government and thus the arguments advanced in this respect by the appellants were not of any material consequence. With these submissions he urged that the appeals be dismissed with costs; After hearing both the parties we are of the view that the contentions of the appellants must fail. In the first instance it is difficult to hold that the appellants became civil servants at any stage. Their employment with they private employer was admittedly of a contractual nature and their claim to avail the tenure sanctioned by the Private Managements of the Colleges and Schools nationalized under M. L. R. 118, was evidently based upon such contracts. The provisions of law in M. L. R. 118 sanctifying the contracts were deleted with retrospective effect. The Punjab Act X of 1973 the validity of which was conceded before us, contained categorical provision to make it retrospective from the time the Ordinance No. XVI of 1972 expired. In this behalf the provision as contained in section 1(3) is a complete answer to this objection of the appellants, and it runs as under: ‑ "It shall come into force at once and shall be deemed to have taken effect on and from the date the M. L. R. 118 (Punjab Amendment) Ordinance of 1.972 (Punjab Ordinance XVI of 1972) ceased to operate in accordance with the provisions of sub‑clause (ii) (a) of Article 135 of the Islamic Republic of Pakistan. Even if the Punjab Act VI of 1972 were to be omitted altogether, the Punjab Act X of 1,973 read with Punjab Ordinance XVI of 1972 completely covered the entire space. No authority has been produced to show that the Legislature could not enact Punjab Act No. X of 1973 with retrospective effect. Thus Para. 9 of M. L. R. 118 had been validly deleted vide Punjab Ordinance No. XVI of 1972 read with Act No. X of 1973. Even otherwise it is highly doubtful that paragraph 9 of M. L. R. 118 as it stood at all referred to contracts of the kind in dispute. The expression `liability' as occurring in paragraph 10 of M. L. R. 118 which could possible cover the case of the appellants was also omitted with retrospective effect. So far the argument of the appellants based on Article 222(2) was concerned, it was also of little avail to them as the same simply laid down that the President/Governor could authorise the temporary employment of persons in the service of Pakistan/ Province, and make rules regulating such temporary employment. These provisions are pari materia with the provisions of Articles 179 and 174 of the 1962 Constitution of Pakistan, which correspond to Article 217 of the Interim Constitution under which the Governor framed the temporary employment rule viz. the West Pakistan Government Temporary Employment Rules, 1968. In the said rules "temporary employee" vide rule 2(4) was defined to mean a person who is in temporary employment. Rule 2(3) further defined temporary employment as "employment by Government of a person in civil capacity otherwise than: ‑ (a) .. (b) .. (c) .. (d) .. (e) On contract. (f) As a workman as defined in the Industrial Disputes Ordinance, 1959. (g) On deputation from the 'Central Government. These rules were continued in force as existing law by virtue of provision contained in Art. 290(1) read with Article 280(8) of the Interim Constitution of 1972 and Article 260(1) read with Article 260(7) of the permanent Consti tution of Pakistan of 1973. Thus the Contractual employees were no covered by the rules framed by the Government of West Pakistan to regulate temporary employment. Incidentally section 2(b) of the Punjab Administrative Service Tribunals Act, 1974 which defined Civil Servant also excluded precisely the same class of the employees as prescribed under sub‑rules 2(3) (e), (f ) any (g) aforesaid from the scope of the definition of Civil Servants. As such, the persons who are contract employees are neither temporary employees under 1968 Rules above nor are civil servants under the Punjab Service Tribunals Act. Thus the argument based upon the provision of Article 222(2) of Interim Constitution was not available to contest the Contractual character of the employment of the appellants. The contention that the appellants be deemed to be temporary employees in terms of Article 222(2) is obviously untenable and as such the provisions of Sub‑Article (2) of the said Article did not improve the appellants. Consequently there is no statutory provision available to convert the employment of the appellant from contractual to statutory. Even these appellants who were below 58 years on 1‑9‑1972 were equally contractual employees. We are therefore not inclined to accept the plea of the appellants that they became statutory employees after the nation alization. The definition of civil servant as contained in section 2 (b) proviso (ii) of the Punjab Services/Administrative Tribunal Act, 1974 explicitly excluded the contractual employees from the pale of the definition of Civil Servants. As regards the finding of the High Court as to the status of the appellants as civil servants we find that the same is merely based upon the contention of the appellants otherwise the relevant clauses, in the definition of 'civil servant' does not appear to have been taken into consideration. We feel certain that if the same had been brought to the notice of their Lordships the finding would have been different. We may also observe that the case of Ch. Ali Ahmad is still sub judice. Similarly Prof. Hamidullah Siddiqui's L. P. A. is also stated to be pending before the High Court. We accordingly held that the appellants being contractual employees never became civil servants as defined by the Punjab Civil Servants Act, 1974. As such the arguments that appellants acquired vested rights under the contract call for no adjudication from us as we have no jurisdiction in the matter. In the circumstance the reliance placed upon P L D 1971 S C 252 by the appel lants was of no help to the facts of this case. In any case the aforesaid authority itself recognized the power of Legislature to abolish vested rights and the Punjab Ordinance No. XVI of 1972 and Punjab Act No. X of 1973 and the requisite effect. We also find that the High Court had not accepted their contention that the termination of their services was not in accordance with the terms of their appointment. Their appointment was on purely temporary basis and further subject to approval by the Public Service Com mission and the provisions regarding age, superannuation etc. and such rules as might be framed in regard to their service condition by the Government. Nothing was produced before us to dislodge the above finding of the High Court. As such the termination of their services was in accordance with the terms of their employment. 1n case of Prof. A. D. Arshad no order of extension beyond 30‑8‑1972 was available. As such we hardly find any ground for his continuation in service. His case that since others were granted extension by Private employers, he might as well have been similarly accommodated, is too scant a justification to uphold his plea. As such there is nothing to show any infraction of law by the departmental authority while terminating the services of the appellants. In the circumstances the rule laid down in P L D 1962 S C 142 and P L D 1958 Lah. 118 had nowhere been infringed. The appellants could have little grievance about the order of termination on this score. We also notice that the appeal filed by Ch. Ali Ahmad was just a pre cautionary measure and Prof. Hamidullah Siddiqui's appeal appeared to be still sub judice as no abatement order had been produced despite repeated demands by us. In case of Prof. A. D. Arshad the appeal under section 8 of the Punjab Service Tribunals Act, 1974 is also barred by time. Messrs Habib Rahim Bakhsh and Mussarat Beg have impugned by these appeals the orders yet to be passed. Thus there is no final order and the appeals are not tenable under section 4 of the Act. In our view the Act did not contemplate any pre‑emptive appeals. The appeals are also barred under proviso (a) to section 4 which insists upon a departmental representation or review as a condition precedent to maintain an appeal under section

4. The appeal preferred by Syed Yaqoob Ali Shah was also open to identical objections. This appeal also appeared to be barred by time. We accordingly conclude that the appellants were employees on contract basis and that they did not acquire the status of civil servants at any stage and were thus not entitled to maintain these appeals before us and inter alia for reasons the same are dismissed with no orders as to costs, Before parting with this judgment we may observe that in view of our conclusion ‑above we do not feel called upon to express any opinion upon the other pleas urged by the learned Government Pleader. Appeals dismissed.