Raja Fayya z Ahmed, J.--By this Civil Petition leave to appeal has been sought for from the judgment dated 27.6.2005 of the learned Division Bench of the High Court of Balochistan dismissing Constitutional Petition. No, 523/2000 filed by the petitioner.
2. The facts of the case in brief are that the petitioner filed Constitutional Petition No, 523/2000 in the High Court of Balochistan, Quetta in the nature of mandamus wherein the following reliefs were.
"(i) to declare that in view of direction for second inquiry vide letter dated 5.4.2000, petitioner stood reinstated in service.
(ii) to direct Principal Balochistan Residential College, Loralai to comply with direction of Secretary Education to either hold inquiry or to reinstate petitioner in service.
(iii) to direct Secretary education to implement his own orders.
(iv) to declare that action of respondents are not according to law; further declaring that order of second inquiry dated 5.4.2000 could not be withdrawn or altered to petitioner's disadvantage".
With the averments that petitioner was initially appointed as Plumber in the year 1991 and subsequently, he was appointed by the competent authority as Electrician by altering the nature of his appointment in BPS-6 however; in the attendance register he was still shown as Plumber although; he has been through out performing his duties both of Plumber Electrician in the pay scale equivalent to national pay Scale No,
6. However, it was alleged in the writ petition that the previous Principal had personal grudge against the petitioner evident from so many instances of harassm ent so much so; that petitioner was involved in a criminal case under Section 9/14 of the Hudood Ordinance, 1979 but eventually, the learned Federal Shariat Court acquitted the petitioner by means of judgment dated 29.10.1995. Following his acquittal from criminal charges, petitioner was stated to have been allowed to join his duty; but soon thereafter was served with a Show Cause Notice that he had admitted to have removed goods from the College. The allegations were denied but inquiry was entrusted to the police and report dated 25.10.1998 was submitted, exonerating the petitioner, yet petitioner's salary was withheld with effect from 25.8.1998 and therefore, the petitioner stated to have submitted a number of applications but with no response although; he also approached to the higher authorities in such behalf. Further, the case of the petitioner was that with effect from the date of withholding of his salary until 14.9.1999 he was kept in dark about the service and on 14.10.1999 he was informed by the office clerk that his services were terminated and therefore, salary could not be given to him thereafter, he again approached to the Principal of the College personally and through notables requesting that either his pay be released to him or the termination order be provided to him and such request was also stated to have also been made to the Commissioner, Zhob Division, at Loralai but with no result. The petitioner eventually, on 4.11.1999 filed Writ Petition No, 1036/99 against the Principal of the College and the Commissioner, Zhob Division at Loralai in which the following reliefs were claimed:-- "(i) To declare that petitioner is entitled for salary from month of August, 1998 till today (4.11.1999).
(ii) To declare that withholding of salary of petitioner is illegal and unconstitutional.
(iii) To declare that act of Respondent No, 1 for not supplying copy of any order passed against petitioner is against law, (and) petitioner is entitled to have copy of any order passed against him.
(iv)Any other relief which this Honourable Court may deem fit and proper in the circumstances of the case may also be awarded with cost of petition."
3. The Principal, Balochistan Residcaitial College, filed his comments placing on record, among others copy of the office order dated 7.11.1998 which reads as under:-- 'No, 14-BRC (PF)-96/490.--Consequent upon recommendation of the Inquiry Officer and approval of the Competent Authority, the services of Mr. Wala Khan electrician are hereby terminated with immediate effect. He will be paid dues up to 7.11.1998"
4. The petition came up for hearing before the High Court of Balochistan, Quetta on 8.12.1999 and the learned High Court after recording contention of the parties' learned counsel dismissed the petition by order of even date with the following observations: "Be that as it may, fact remains that on 7.11.1999, service of petitioner was terminated therefore, in the instant petition no further relief can be granted. However, petitioner may seek proper remedy save in accordance with law."
5. Further, the case of the petitioner is that in pursuance of the above noted observation of learned High Court, he submitted Review Petition to the Secretary Education (Respondent No, 2) on 30.12.1999 praying: "Record of the case may please be called for an after perusal of the same, impugned order of termination dated 7.11.1998 passed by Principal Balochistan Residential College, Loralai may please be set aside and petitioner be reinstated with all back benefits, in the interest of justice and equity."
6. After that, the Secretary Education vide letter dated 5.4.2000 issued direction to the Principal of the College for conducting another inquiry through an impartial person and findings of the Inquiry Officer be furnished to the department but no Inquiry Officer in compliance with the direction of the Secretary Education was appointed nor any other proceedings were taken, so much so; that even the petitioner was not summoned despite his repeated visits to the College and was stated to have been verbally informed that regarding the second inquiry a letter was being addressed to the Secretary Education. The petitioner stated to have applied for the copy of the letter on 24.4.2000 proposed to be addressed to the Secretary Education but was refused and instead following endorsement was made of his application by the Administrative Officer, Balochistan Residential College, Loralai:-- "In compliance with Letter No, 7-5/2000. E.Dn/1105 dated 5.4.2000 received from Secretary Education, Quetta, a Letter No, 4-BRC (BF)-2000 dated 20.4.2000 alongwith copy of decision of the Honourable High Court of Balochistan has been sent to the worthy Secretary for further guidance and necessary action." Sd/- Administrative Officer Balochistan Residential College Loralai."
7. Thereafter, the petitioner stated to have submitted application 30.5.2000 to the Secretary Education requesting for issuance of direction to the Principal, Balochistan Residential College, Laralai for compliance of letter dated 20.4.2000 and pending decision of inquiry, he may be reinstated in service but this application stated to have been presented in person was not entertained, therefore, the same was sent by Registered Post and Courier Service but with no response, therefore, on these other averments, the petitioner filed Constitutional Petition No, 523/2000 in the nature of mandamus in which he claimed the reliefs reproduced in Para No, 2 supra.
8. It is, inter alia, contended by Mr. Muhammad Aslam Chisti, learned Sr. ASC for the petitioner that the direction issued by the Secretary Education, Government of Balochistan to the Principal, Balochistan Residential College/Respondent No, 3 as contained in its letter dated 5.4.2000 by implication amounts to the reinstatement of the petitioner in service and, therefore, he is entitled to the benefit of salary etc. as claimed in the writ petition dismissed by the learned High Court. The learned counsel for the petitioner strenuously contended in the light of the documents filed with the memo petition that as the direction to conduct another inquiry against the petitioner by appointing an impartial person as an Inquiry Officer and the findings of the Inquiry Officer be furnished to the department was made by the Competent. Authority, therefore, the petitioner was entitled for the reliefs claimed in the writ petition or in the alternative the order passed by the Secretary Education being the Competent Authority be directed to be implemented in its. letter and spirit. He next argued that termination of the petitioner from service vide letter dated 7.11.1998 was made with the approval of the Competent Authority i,e, Secretary Education and the petitioner as per his appointment letter was also shown to be governed in disciplinary matters under E & D, Rules, and the statute i,e, Balochistan Model Residential Secondary School Ordinance 1983 (Balochistan Ordinance No, XVII of 1983) and therefore, the 'Principle of master and servant' does not apply to the case of petitioner in respect of termination of his service. Mr. Muhammad Aslam Chisti, Sr. ASC further argued that consequent upon the dismissal of the earlier W.P. No, 1036/99 on 8.12.1999 the petitioner approached to the Competent Authority by filing review petition on 30.12.1999 and the Secretary Education after having taken into account all the facts and circumstances of the case, scrutinizing the documents and proceedings taken by the Principal and College authorities culminating into the termination of the petitioner from service passed, the order for holding a fresh inquiry into the allegations as levelled in the Show Cause Notice dated 2.9.1998 by an impartial. Inquiry Officer as contained in the letter dated 5.4.2000 addressed to the Principal of the College but such directions despite repeated applications moved by the petitioner were not complied with, neither in the earlier inquiry proceedings if any; conducted by the Committee, the petitioner was informed nor was afforded any opportunity to defend himself, consequently; the Secretary Education/Respondent No, 2 being the Competent Authority in exercise of powers vesting in him under the law issued the direction of conduct fresh inquiry hence, the petitioner claimed appropriate reliefs in writ petition. Mr. Muhammad Aslam Chisti, Sr. ASC also submitted that after conclusion of arguments in writ petition counter affidavit was filed by the Respondent No, 2, therefore, CMA was filed by the petitioner praying therein that the matter may be reheard in the light of the counter affidavit filed subsequently and such fact was also noted in the impugned judgment of the learned High Court with the observation that the Court will take into account the request made in the CMA but the judgment of the learned High Court is silent on the point which consequently; renders the same as not sustainable as the petitioner was not heard in view of the counter affidavit.
9. The contentions put forth noted on above have been considered in the light of the documents filed with the memo petition. The petitioner was initially appointed vide office dated 15.3.1991 for a period of six months extendable for another period of six months and on efficient performance of duties can be considered for appointment on permanent basis. Also, as per Condition No, 5 of the appointment order, he can be terminated from service without notice in case the employee has been found to be inefficient, indisciplined and does not enjoy a good moral character whereas; as per Condition No, 4 of the appointment order, the law, regulations/by laws and E & D Rules relating to the Institution to be applicable to the appointee. The petitioner was terminated from service with immediate effect vide order dated 7.11.1998 on the recommendations of the Inquiry Officer and approval of the Competent Authority which was assailed in Constitutional Petition No, 1036/99 before the High Court Balochistan and the learned High Court after recording the respective contentions of the parties learned counsel, in view of the petitioner having been terminated from service held that no further relief can be granted however; observed that the petitioner may seek appropriate remedy in accordance with law, thus, the petition was dismissed with the above noted observation. Consequent upon dismissal of the above mentioned writ petition, the petitioner filed review petition before Secretary Education, Government of Balochistan on 30.12.1999 against the order of termination of his service. Later on; applications were also filed for an urgent action into the matter. It appears that as a result of the review petition and the subsequent applications submitted to the Secretary Education seeking for his reinstatement in service, a letter dated 5.4.2000 was addressed to the Principal, Balochistan Residential College, Loralai on behalf of the Secretary Education which reads as under:-- "The undersigned is directed to refer to the subject noted above and to say that Mr. Wala Khan, a terminated employee of our Institute. Requesting for reinstatement in service (copy enclosed).
The undersigned is further directed to request you to conduct another enquiry against Mr. Wala Khan appointing an impartial person as enquiry officer and the findings thereof may be furnished to this department for submission to the competent authority.
10. But as no action in the matter in the light of the above directions was taken, the petitioner submitted an application to the Principal of the College on 24.4.2000 on which the Administrative Officer of the College with reference to the above quoted direction of the Secretary Education as contained in its letter dated 5.4.2000 made endorsement to the effect that Letter No, 14-BRF(PE)
2000 dated 20.4.2000 alongwith copy of the decision of the learned High Court of Balochistan has been sent to the worthy Secretary Education for further guidance and necessary action. On scrutiny of documents available on record it is clear that a final Show Cause Notice dated 2.9.1998 in express terms on various allegations and charges was served on the petitioner to which no response was shown by the petitioner who claims to have been kept in dark as only on 14.10.1999 he was informed by the office clerk that he was terminated from service, therefore, he is not entitled to receive the salary.
The main contention of the learned counsel for the petitioner as to the effect of the direction of the Secretary Education being a Competent Authority and the nominee of the Governor, as contained in the letter dated 15.4.2000 sent to the Principal of the College sought to be enforced through writ filed in the High Court; it would be appropriate to note that initially, for the Establishment of Model Residential Secondary School Balochistan, Ordinance was promulgated by the Governor (Ordinance No, XVII of 1983) i,e, Balochistan Model Residential Secondary School Ordinance, 1983 which after its establishment subsequently was elevated to the status of Balochistan Residential College, Loralai. The Controlling Authority of the Board by virtue of the provisions of Section 9 of the Ordinance has been specified to be the Governor or his nominee, whereas; as soon as may be the Governor after the commencement of the Ordinance, to establish a Board for each of the institution to be called the Board of Governors of the Balochistan Residential College, as envisaged by sub-section (1) of Section 4 of the Ordinance and the composition of the Board has been provided in Section 5 to be consisting of not more than 11 members to be appointed by the Governor who shall appoint a Chairman and a Vice-Chairmen of the Board from amongst the members appointed under sub-section (1) of the above said Section and the Principal of the College shall be ex-officio member of the Board as provided by sub-section (5) of Section 5 of the Ordinance, whereas; the members of the board shall comprise of non-official members and the official members to be appointed by designation while the former to hold office for a period of three years who shall be eligible for further appointment by virtue of Sections 3 and 4 of the said Ordinance. The powers of the Controlling Authority have been specified in Section 10 of the Ordinance and; the Government by virtue of sub-section (1) of Section 19 has been invested with the powers to make rules for carrying out the purposes of the Ordinance whereas; in particular and without prejudice to the generality of the foregoing power, such rules may provide for other matters specified in sub-section (2) of the said section. Section 20(1) of, the Ordinance contemplates that the Board subject to the approval of the Government may frame regulations not inconsistent with the provisions of the Ordinance and the rules made thereunder to carry out the purposes of the Ordinance which may relate to other matters as specified in sub-section (2) of Section 20 of the Ordinance. The powers and the functions of the Board have been given in the Section 8 of the Ordinance.
The provisions of the Ordinance, the notification issued by the Government of Balochistan constituting Board of Governors under Section 4(1), Executive Committee constituted vide notification dated 31.3.1989 and the regulations framed under Section-20 of the Ordinance have been carefully and minutely gone through in order to appreciate the contentions of the learned counsel for the petitioner regarding enforcement of the direction of the Secretary Education through the writ of mandamus filed before the learned High Court for having been allegedly made by the Competent Authority i,e, Secretary Education who in his capacity as such; does not figure anywhere in the scheme of Ordinance No, XVII of 2003 nor has been conferred with any such authority or power under the Ordinance and the regulations framed thereunder by the Board to issue direction of any nature to the Principal, Board of Governors or the Executive Committee. The Secretary Education, Government of Balochistan has however, been notified as an ex-officio member of the Board of Governors by the Government of Balochistan vide notification 5.1.1988. No member, Chairman or Vice-Chairman of the Board of Governors individually in such "capacity can exercise powers and functions invested in the Board by Section 8 of the Ordinance whereas; the Governor or his nominee shall be the Controlling Authority of the Board and in absence of his nominee the Governor to act as Controlling Authority of the Board. In the instant case, it has not been shown to us that Secretary Education, Government of Balochistan has been nominated/notified by the Governor as the Controlling Authority of the Board hence, it cannot be said that the Secretary Education in his capacity as the Controlling Authority of the Board issued the direction sought to be enforced though writ of mandamus nor within the scope of powers conferred upon the Controlling Authority under Section 10 of the Ordinance is competent to issue any direction in respect of a disciplinary matter pending or decided against an individual employee of the College to the Board for implementation. The petitioner has since through writ of mandamus sought for the implementation of the direction of the Secretary Education as contained in the letter dated 5.4.2000 addressed to the Principal of the College, therefore, it was incumbent on his part to show that the Secretary Education had the authority and the powers vested in him under the law to pass the direction sought to be implemented through the writ and the Principal of the College was bound and obliged to implement the same as a legal duty for having created a right in favour of the petitioner to seek its implementation. Undisputedly, the Secretary Education, Government of Balochistan has not been described an original, appellate or revisional authority or an authority competent and empowered to hear, decide and to issue direction to the Principal of the College on any representation, appeal or review petition nor has been independently under the scheme of the Ordinance, regulations framed by the Board he can issue such a direction hence, the direction so made by the Secretary Education does not result into creating of any legal right in favour of the petitioner enforceable through writ. The Secretary Education, Government of Balochistan as contended before us by the learned counsel being the Competent Authority issued the direction sought for to be implemented would mean that the authority was competent under the law, rules or the regulations framed under the Ordinance, so to have been designated as such; and invested with the powers to issue direction to conduct a fresh inquiry into the allegations in disciplinary matter hence, it must have nexus or relevancy to any provision of the law or the regulations and the rules if any; framed under the Ordinance which in the instant case is completely wanting on the subject, therefore, using the phraseology or terming the Secretary Education, Government of Balochistan as the Competent Authority would not mean or amount, the secretary Education to be Competent Authority to issue direction for holding a fresh inquiry and its non-implementation would result into the creating of a legal right in favour of the petitioner enforceable by law through writ on failure or refusal of the Principal to implement such direction.
11. The writ of mandamus is a high prerogative writ of a most extensive remedial nature and is, in form a command issuing from the High Court directing any person, corporation or subordinate Court requiring to do some particular thing therein; specified which appertains to him or their, office and is in the nature of public duty. Its purpose is to do justice, in all cases where there is a specified legal right and no specific legal remedy for enforcing such right.
It commands the person to whom it is addressed to perform some public or quasi public legal duty which he has refused to perform and which cannot be enforced by any other adequate legal remedy (Basu's Commentary on the Constitution of India, 6th Edition, Volume-1 referred). The essentials for issuing the writ in the nature of mandamus discussed herein above are lacking completely in the instant case, duly considered and dealt with appropriately by the learned High Court to which no exception can be taken, consequently, this petition being without any substance is dismissed. Leave is accordingly refused.