2016 PLP 1756 (SCMR)

MAQBOOL BAQAR, J.

In response to an advertisement placed by the appellant-bank in the daily "Dawn", for the post of "Management Trainee Officer". The respondents applied, passed the written test and were selected after their interviews, however, instead of issuing appointment letters, the appellant-bank offered them a contract for on the job training as "Management Trainee", for a period of two years, and payment of Rs.16,000/- per month, however, instead of the word 'salary' word 'stipend' was used for such payment. Clause vii of the contract provided that the said contract will not constitute employee/employer relationship between the trainee and the appellant-bank, and clause ix provided for extension of the training beyond the original period of two years. Whereas clause xi, stated that the training does not offer any guarantee of regular employment in the appellant-bank. The contract, however, through clause iv provided 30 working days annual leave.

2. The respondents, in pursuance of the above, were inducted in the appellant-bank. They were posted in different branches of the bank as Grade-II Officers, and as Managers also. They were assigned the functions such as of sanctioning of loan, negotiating financial facility with the customers, evaluating securities, and recovery of the finance granted to the customers, and thus were functioning and discharging their duties with powers and authority as could have been done by any other officer/employee of the said grade in the bank.

3. Upon expiry of the above contract after the prescribed period of two years, the contract, on 26.5.2010, was extended for a period of about seven months up to 31.12.2010. However, neither was the employment of the respondents regularized nor were their contracts extended thereafter, and the bank instead advertised vacancies for appointment in place of the respondents.

4. We have noted that not only the applications that were invited by the appellant-bank and made by the respondents were, "to fill the positions of MTOs for operations of the Bank in Finance and Accounts" and to catch the attention of the prospective candidates the phrase "Career for Management Trainee Officers" was printed on the top of the advertisement in bold letters, and further that the offer/advertisement also promised "payment of competitive remuneration" but the relevant official summaries/notes, placed before us by the appellant-bank through C.M.A. No.989 of 2015, also, clearly show that the applications were in fact invited for the "posts of Management Trainee" and that in response to the advertisement, the appellant-bank received 8392 applications which were short listed to 1942. The candidates were further short listed for written test and thus 231 candidates were put to such test. Though the candidate securing 45% and above marks in the test were to be considered eligible for interview, however, keeping in view the vacancy position, only 30 candidates were called for interview conducted by the Designated Committee, and on the recommendations of the Committee, the competent authority decided that the respondents may be considered for selection in the Head Office and the fields, and after that they may be preferred for posting in concerned zone with high merit. The summary/office notes further reveal that the above trainees were to be accepted for on job training, initially for a period of two years and were to be considered for regular appointment on expiry of the contract period upon satisfactory performance and availability of vacancies and further that in case any management trainee fails to join, the next candidate with high merit may be offered the position for posting. The respondents were also required to furnish medical fitness certificate issued by the authorized medical practitioners.

5. It can therefore be safely said that the entire process commencing with the above advertisement in the Daily Dawn and ending with the final selection and posting of the respondents, was a process of appointment to the post of officer and out of a large number of successful candidates, only 30 were inducted, as there were only such number of vacancies, however, the respondents instead of issuing appointment letters to the respondents made them sign the afore-noted contracts, which were/are clearly in conflict with the respondents promise of job to the eligible and selected candidates.

6. However, still the respondents were posted at various places in the Bank and were, as discussed above, entrusted duties and functions as are discharged and performed by the officers of the Bank. The respondents have not even claimed that there has been any complaint or dissatisfaction regarding the performance of the respondents. On the contrary, their performance has admittedly been satisfactory, and they have admittedly worked sincerely, good performance of the respondent and their utility is also evident from the fact that upon expiry of the initial period their contracts were extended for a further term of about seven months. It is also important to note that the appellant has not even claimed that such extension was for the reason that the respondents have missed anything during their training or they required any further training.

7. It appears that it was in view of a ban imposed by the Federal Government on recruitments/appointments in the Federal Government and autonomous/semi-autonomous bodies, that instead of issuing appointment letters the respondents were merely inducted on contract as above, although the Board of Governor upon examining the implications of such ban, had decided to refer back the letter containing the purported ban, with the reply that since the appellant-bank is empowered to frame its various policies including appointment and removal of its officers and employees, and is not required to seek approval of the Federal Government in such matters, the instructions contained in the letter are not applicable to the appellant-bank.

8. Indeed service matters in the appellant-bank are not governed by any statutory rules, however in the facts and circumstances of the case the issue before us is, as to whether this Court can allow the appellant-bank to conduct itself in the manner it has and now proposes to. In fact the Bank has had no mandate to conduct training for any individual other than its employees. The Bank has been established for providing credit and credit facilities to the agriculturist for the purpose of agriculture and to persons engaged in cottage industries in rural areas for the purpose of such industries. Neither the Agricultural Development Bank of Pakistan (Re organization and Conversion) Ordinance 2002 whereunder the Bank has been re-organized into a public limited company nor did the previous law i.e. Agricultural Development Ordinance 1961 provided for any such venture by the Bank. Although under the Agricultural Development Ordinance 1961 the Bank, in terms of section 20 thereof, could have undertaken training for the benefit of its personnel and that of co-operative societies and other body corporate having financial relations with the Bank, but not for individuals from outside the above, and in fact, as discussed earlier, the provision for the subject training was made for preparing the inductees, the trainees for the post of officers in the Bank. However, contrary to the offer/promise made and the predetermined purpose, the respondents were inducted in the manner as noted above. The Bank's claim that the respondents were selected merely for training and not for employment is in conflict with, rather beyond its mandate. It may be noted that admittedly the Bank has spent a heavy amount of 60 million merely on the so-called training. The Bank is owned by the Federal Government to the extent of 50% shares and the remaining 50% share are owned by various Federal and Provincial institutions, and thus being custodian of public money it cannot be allowed to squander such money by conducting itself in a whimsical manner and against the law.

9. In the facts and circumstances of the case, it will not be unfair only to the respondents not to confirm their services, but shall also be against the interest of the appellant-bank to do so, and to indulge in a fresh exercise of recruitment in place of the respondents which by itself shall be an expensive exercise both in terms of time, money and effort and so would be the ensuing training, which by no means is in the interest of the bank, more so when the respondents have, since their induction been performing their job satisfactorily, they have been trained by and for the appellant-Bank and have become familiar and acclimatized with the working and atmosphere of the bank.

10. As regards the signing of the contract by the respondents, we may observe that in a situation where the respondents after having been selected for a promised post, were offered the contract instead, and there being in equilibrium between the bargaining position of the respondents and the appellant-Bank, and keeping in view the rate of unemployment in our country, the respondents had no option but to sign the contract in order to avoid further disappointments and frustration by exposing themselves to unemployment and therefore the same should not be allowed to be used as an obstructive instrument in their way of confirmation/regularization.

11. In the circumstances, we do not find any justification for interfering with the judgments of the two Court below. The appeals are therefore dismissed. MWA/Z-7/SC Appeals dismissed.