1993 PLP (C (PLC(CS))

MUHAMMAD ASLAM ARAIN, J.‑‑‑In this Constitution petition, the petitioner Abdul Jabbar Memon has challenged a Notification dated 25th March, 1991 issued by the Government of Pakistan Labour Division, whereby ad hoc appointment of the petitioner, working as Assistant Director (BPS‑17) National Institute of Labour Administration Trading, Karachi was terminated with effect from 7‑4‑1991 on fourteen days' notice. The prayer of the petitioner is:‑‑ (a) The respondents Nos. 1 and 2 may kindly be restrained not to terminate services of the petitioner in violation of the law; (b) To direct respondents Nos. 1 and 2 not to implement his orders till such time the nominee from respondent No. 4 is available in terms of the appointment letter; (c) To direct respondents Nos. 1 and 2 to continue to extend the ad hoc appointment of petitioner from 2nd May, 1991 till the nominee: from respondent No. 4 is available; (d) Quash the termination orders already issued against the petitioner. (e) Grant ad interim relief during pendency of petition. The facts as given by the petitioner are that he holds graduation and post‑graduation degrees from University of Sindh and also Diploma in Public Administration. He also passed Engineering Diploma in Mechanical Technology in the year 1987 and in addition to his such qualification he participated in National Seminar Organisation by Sindh Employees' Social Security Institution in 1990. Further that he appeared in National Training Seminar on the use of economic data in Labour Union Function organised by respondent No.

3. Besides this, he also received other training in professional courses in the field of Mechanical Engineering. Petitioner was employed in Mehran University of Engineering Jamshoro with effect from 20‑10‑1976 to 4‑8‑1986 and served in various positions in the Mechanical Engineering Workshop and was associated with practical training/teaching of Engineering Students. Thereafter he was employed in Government of Sindh Labour and Cooperation Department as instructor wherefrom he resigned on 11‑4‑1989. During his employment with the Government of Sindh he applied for a job in the Federal Government which was channelled through the Prime Minister's Secretariat. His application, as per intimation to him, was forwarded to the Ministry of Labour (respondent No. 2) and vide telegram dated 22‑3‑1989 has was invited by the respondent No. 2 for an interview. There were certain objections in appointing petitioner for the post applied for as he did not fulfil the required conditions of experience as per rules. The then Prime Minister, on consideration of his teaching experience, appointed petitioner vide an order dated 29‑4‑1989 on ad hoc basis on the post of Assistant Director in the National Institute of Labour Administration, Karachi in BPS‑

17. Petitioner resumed the job on 2‑5‑1989 and Notification dated 15‑5‑1989 regarding his appointment was issued. By another Notification dated 7‑2‑1990 and 26‑5‑1990 the appointment of petitioner was further extended. In the meanwhile he was selected for training in U.S.A. and applied for study leave which was recommended by the respondent No. 3 to the Government of Pakistan. Respondent No. 4 thereafter advertised the vacancies and invited applications for the regularisation of the post on which petitioner was appointed on ad hoc basis. He also applied for the post of Assistant Director, Planning and Monitoring Cell in BPS‑17 to the Secretary, Sindh Public Service Commission. After the period in Notification came to an end on 2‑11‑1990 and no further notification being issued by respondent No. 2, the petitioner requested respondent No. 3 for forwarding his case to respondent No. 2 for extension of ad hoc appointment. It was then that the petitioner was informed that order of his termination has been issued. He then filed C.P. before this Court on 14‑4‑1991 and contended that the termination order was not served on him. The respondents filed' comments and annexed copy of Notification regarding termination of services. Various other facts have been stated by the petitioner but we did not feel that the same arc relevant to be reproduced in this judgment. We have perused the counter‑affidavit filed by the respondents who have challenged the very maintainability of the petition. It is stated by the respondents that the matters relating to the terms and conditions of persons in service of Pakistan are within the exclusive jurisdiction of the Services Tribunal and under Article 212 of the Constitution of Islamic Republic of Pakistan the jurisdiction of this Court is barred. It is also stated that the petitioner was appointed on temporary and ad hoc basis and simply because the Prime Minister waived the conditions for holding the post on which the petitioner was appointed, the petitioner could not claim exemption from appearance before Federal Public Service Commission. The services of the petitioner were terminated through Labour Division Notification dated 26th March, 1991 on fourteen days' notice and petitioner was required to hand over the charge but he refused to do so and insisted on being issued a copy of Notification from National Institute of Labour Administration and Training (NILAT). Respondent's case further is that proper procedure was followed in terminating petitioner's service after approval by the competent Authority. No relaxation in age of the petitioner for appointment through F.P.S.C. under the provisions of F.P.S.C. Ordinance could be made. The Cabinet decided on 12th November, 1990 that all appointments made by the previous Government in violation of the prescribed rules and procedure were totally irregular and further to issue termination orders of all such appointees within two weeks. Accordingly services of all those employees who were recruited otherwise than in accordance with prescribed rules and procedure were terminated. The posts of Assistant Directors were advertised by F.P.S.C. through advertisement dated 13‑12‑1990 and the petitioner being overage by 4 years was declared ineligible to appear in interview by F.P.S.C. Respondents have lastly stated that the action taken by the respondents in issuing the impugned Notification and terminating the services of the petitioner is in accordance with law. The contention of the petitioner mainly is that his services could not be terminated on the basis of a decision of the Cabinet but it could be done only by the Prime Minister as his appointment was made by the said Chief Executive. As against such contention, the argument canvassed by the learned counsel for the respondents is that the Notification regarding petitioner's termination was issued in accordance with law as the meeting of the Cabinet Division was presided over by the Prime Minister and the decision would be construed to have been taken under the authority of the Prime Minister and the Chief Executive. It is further contended by the learned counsel for the respondents that the competent authority in the case of the petitioner was the Secretary Establishment Division who is an authorised officer under the Government Servants (Efficiency and Discipline) Rules. The learned counsel have placed before us photostat copy of judgment in C.P. 453/1991 (Pir Mazhar‑ul‑Haque v. Federation of Pakistan and others) where a D.B. of this Court held as under:‑‑ "Even if it be so, the Government when makes appointment to achieve the object contained in the first proviso to Article 27 of the Constitution does not strip itself of the power of termination of services conferred on it under section 11(3) of the Civil Servants Act, 1973. The Government while making fresh appointments against such vacancies can always resort to the method of recruitment which can achieve the object. The arguments on the point are devoid of any force." Another decision of the Honourable Supreme Court of Pakistan in Civil Petitions Nos. 16‑Q and 17; Q of 1991 has also been placed before us where it was observed as under:‑‑ "The main question that needed consideration was not whether the two petitioners were suitable for appointment to the District Management Group but that, after having been appointed to the said Group they could be, consistently with the terms and conditions of their service, reverted to the Accounts Group. It was the Service Tribunal which alone could competently resolve this question after finding out from the relevant record, the circumstances which had led to the twice changing of the occupational groups by the petitioners. The High Court was, therefore, right in holding that it had no jurisdiction to entertain the petitions. Leave is refused." The petitioner has failed to satisfy us that the decision taken by the Cabinet in the matter of termination of his services was illegal or perverse. The petitioner admittedly was an ad hoc appointee and not regularised either by way of selection through Public Service Commission or by the Government itself. In these circumstances no vested right has accrued to the petitioner which may have been violated by the respondents under the impugned Notification or subsequent termination order passed by the competent authority. Moreso, the petitioner being a civil servant, if he has any grievance with regard to violation of any terms and conditions of his service, his remedy lies before the Services Tribunal and the jurisdiction is therefore barred under section 212 of the Constitution of Islamic Republic of Pakistan. In the circumstances, we find no merits in this petition and the same is dismissed leaving the parties to bear their own costs. H.B.T./A‑1363/K Petition dismissed.