' HAFIZ TARIQ NASIM, J.--- The petitioner is aggrieved of the orders passed by the Board of Intermediate and Secondary Education, Faisalabad for non-counting of petitioner's service rendered with WAPDA for pension purpose.
2. The learned counsel for the petitioner submits that the petitioner joined Board of Intermediate and Secondary Education, Faisalabad through proper channel from WAPDA, but the petitioner was denied the pay protection and the same was challenged in Writ Petition No,7346 of 2000 which was admitted after hearing both the parties and the order refusing the said protection was suspended by this Court, however, the Board realized its fault and allowed pay protection but unfortunately the relief of pensionary benefits in that respect is declined in violation of the instructions of the Government of the Punjab.
3. The petitioner moved before the Board for the redressal of his grievance and accordingly a Committee was constituted who recommended the petitioner's claim on the strength of a Circular of WAPDA dated 30-6-1986 observing that the service in WAPDA was pensionable and there was no break of the petitioner's service of WAPDA and as such that very service rendered by the petitioner in WAPDA is countable towards pensionary benefits provided the petitioner is prepared to deposit his own contribution of Rs,2,09,727.98. -
4. The petitioner was asked to deposit the aforesaid amount on account of said Committee's recommendations; the petitioner complied with the direction and the said amount was deposited but surprisingly keeping in view aside all these developments the petitioner's claim was not actualized, which action of the Board is neither justified nor covered under law rather it is a deviation to well settled law laid down by the Honourable Supreme Court of Pakistan reported as Nafees Ahmad v. Pakistan 2000 PSC 50.
5. On the other hand, the learned counsel for the respondents after consulting the record with the help of Board's representative did not controvert that the petitioner's pay was protected during the pendency of Writ Petition No,7346 of 2000 as well as the availability of recommendations of the duly constituted Committee, by the Board of Intermediate and Secondary Education, Faisalabad in respect of petitioner's claim for counting the period of service rendered with WAPDA for pensionary benefits as well as the deposit of contribution of pension by the petitioner himself but he submits that the refusal by the Board for non-accepting to the petitioner's request in the only domain of the Board Authorities and the present writ is not competent on the sole ground that the rules governing the Board are not statutory and in this respect he relies on a judgment reported as University of the Punjab Lahore v. Ch. Sardar Ali 1992 SCMR 1093. Further submits that the petitioner is regulated by the principle of Master and Servant and as such could not invoke the jurisdiction of High Court.
6. Arguments heard. Record perused.
7. As already noted above that the petitioner's request for the protection of pay was acceded to by the respondents/Board and for the grievance of petitioner's pensionary benefits a duly constituted Committee by the Board recommended with reasons for the redressal of petitioner's grievance in the following words:-- "In view of the above discussion and the references brought by the officer on the file, the instant committee feels inclined on merit to recommend to count his previous service rendered with WAPDA (an autonomous body) towards future pensionary benefits especially under the circumstances when the W.P.No,7346/2000 filed by him in the High Court was finally disposed of while accepting the appeal of the appellant (Mr. Muhammad Ikram, System Analyst) and the Board consequently granted him the right of pay protection.---- ' The appellant deposits pension contribution for the previous service according to prescribed rate/rules from his own resources as the previous employer-WAPDA had shown its inability to this effect in the event of his selection when the N.O.C. Was issued. Making payment from ones own pocket towards pension contribution for the service rendered with previous employer (Government) is prevalent with the State Bank of Pakistan as contained in Circular No,PD.77/Reg.11 (Viii)-96 of 11-8-1996."
8. The moot point for the determination in the present writ is that whether in the presence of judgment of Ch. Sardar Ali (supra) and whether in the light of respondent's objection in respect of applicability of law of Master and Servant, this 'Court can interfere in the impugned matter or not.
9. In case of Ch. Sardar Ali he was appointed as Lecturer on two years probation and his appointment was terminable on one month's notice during the period of probation and three month's notice after confirmation from either side or pay in lieu thereof but Ch. Sardar Ali's appointment was terminated by the Punjab University as terms of his appointment.
10. The termination was challenged by said Ch. Sardar Ali in a writ petition which was dismissed by a learned Single Judge, however, the Intra Court Appeal was accepted which was assailed before the Honourable Supreme Court of Pakistan. The Honourable Supreme Court of Pakistan being a case of termination of a University employee interfered in the matter and upheld the termination order, whereas the present controversy does not involve the termination or reinstatement etc., rather it is a case where the Board is not performing its functions according to the instructions/regulations as well as the law laid down by the Honourable Supreme Court of Pakistan.
11. Even otherwise taking the strength from the law laid down by the Honourable Supreme Court of Pakistan reported as Hitachi Limited and another v. Rupali Polyester and others 1998 SCMR 1618 wherein it is held, "Courts are not slaves of the doctrine of stare decisive---Court may change or modify its views with the passage of time---Development of jurisprudence is an ongoing process."
12. I am inclined to interfere in the matter keeping in view the development of law right from Ch. Sardar Ali's case to date whereby it is repeatedly held that the actions of statutory bodies are amenable to the writ jurisdiction and these very judgments are practically in consonance to the plain reading of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 which are very much clear in terms i,e,; "199 (1) Subject to the Constitution a High Court may if it is satisfied that no other adequate remedy is provided by law,---
(a) on the application of any aggrieved party, make an order---
(i) directing a person performing, within the territorial jurisdiction of Court functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or
(ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect; or
(5) In this Article, unless the context otherwise requires,--- "person" includes any body politic or corporate, any authority of or under the control of the Federal Government or of a Provincial Government, and any Court or Tribunal, other than the Supreme Court, a High Court or a Court or Tribunal established under a law relating to the Armed Forces of Pakistan; and"
13. There is no doubt in my mind that the Constitution of Pakistan is the supreme law and it is also undisputed fact that the provisions of Article 199 can be invoked against a "person" but it is also an admitted fact that in the said Article there is no other clog or bar which may restrain the High Court to exercise its jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
14. With utmost respect to all the previous judgments contrary to my view, I may quote a series of judgments wherein the jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 was invoked, High Courts exercised the jurisdiction in favour of the aggrieved persons against the University/Board of Intermediate and Secondary Education, and other statutory bodies having non-statutory rules/regulations and these very judgments remained uninterrupted by the apex Court.
15. To strengthen my view, the judgments reported like Lal Din v. Vice-Chancellor and others 1994 PLC (C.S.) 880 wherein it was held, "Employee's service being governed by the rules and regulations framed under the statute, relationship of Master and Servant was not applicable---Premature retirement of an employee being not warranted by law, order of this retirement was without lawful authority and of no legal effect and thus quashed."
' In another case titled as Mrs. Anisa Rehman v. P.I.A.0 and another 1994 SCMR 2232, it is held that, "Maxim "audi alteram partem" would be applicable to judicial as well as to non-judicial proceedings and it would be read into every statute as its part if right of hearing has not been expressly provided therein---Violation of the Maxim could be equated with the violation of a provision of law warranting pressing into service Constitutional jurisdiction."
' In another case reported as Karachi Development Authority and another v. Wali Ahmed Khan and others 1991 SCMR 2434, a Division Bench of Karachi High Court held, ' "If the statutory body is amenable to the writ jurisdiction the remedy under Article 199 would be available to challenge the mala fide exercise of statutory authority."
' In another case reported as Arshad Jamal v. N-W.F.P Forest Development Corporation and others 2004 SCMR 468, it is categorically held, "The question arises whether the appellant can maintain Constitutional petition even if no statutory rules had been framed by the Provincial Government if the above said rules are deemed to have not been framed properly as they had not been notified through official Gazette. It has been held in Pakistan International Airlines Corporation v. Nasir Jamal Malik and others 2001 SCMR 934 and Abdul Hafeez Abbasi and others v. Managing Director Pakistan International Airlines Corporation and others 2002 SCMR 1034 that where a removal order of such an employee of corporation even in the absence of statutory rules is made on particular grounds which are in the nature of charges, the employee has a vested right of hearing before any order adverse to his interest was passed by virtue of principle of audi alteram partem which was the least requirement."
' In another case reported as Muhammad Mushtaq v. Chancellor, Government College University, Faisalabad 2005 PLC (C.S.)1300, it is held,"Absolute power and authority cannot be arrogated to or exercised by any State functionary---Concept of Master and Servant relationship has undergone a change and the relationship of Master and Servant does not confer unbridled or unfettered powers to act whimsically or capriciously in violation of the principles of natural. Justice and well-settled norms of Justice."
' In another case reported as Muhammad Ashraf v. Director General, Multan Development Authority, Multan and another 2000 PLC (C.S.) 796 a Division Bench of this Court held, "Law of Master and Servant is a notion of English common law and does not emanate from any Constitutional provision or even a statute or some injunctions of Holy Qur'an or Sunnah of the Holy Prophet (p.b.u.h).---Resort to rule of English Common Law could not be taken in view of Art.2-A of the Constitution of Pakistan.
' Rule of master and servant---Where jurisdictional bars have been enacted, against superior judiciary, in legislative measures, such bars and fetters, if within the legislative and Constitutional bounds, may take effect with exception of an action which was mala fide; an action which was without jurisdiction and an action which was coram non judice---where relationship between the parties was governed, by the rule of master and servant, action adverse to the servant falling within such three exceptions would not be exempted from scrutiny of High Court---Constitutional petition, therefore, was maintainable."
' In a famous case reported as Rizwan Akhtar v. University of the Punjab through Vice-Chancellor.
Quaid-e-Azam Campus, Lahore and 4 others 2003 PLC (C.S.) 1508, it is held, "Authority who had framed regulations, was bound to follow said regulations and a departure therefrom, would amount to exercise of the power in an arbitrary and unregulated manner defeating the very purpose for which regulations were framed-- Even if services of an employee of a statutory corporation were not governed by statutory rules the employer amenable to constitutional jurisdiction was under a duty to act justly and fairly in accordance with mandate of Article 4 of the Constitution."
16. There is another aspect of the matter and that too is in consonance to the law laid down by the Honourable Supreme Court of Pakistan is that while, "deciding the cases the courts should always avoid technicalities as held in Sultan Mir and 18 others v. Umar Khan and 10 others 1992 SCMR 1206, "Anglo Saxon approach on the question of technicalities where litigants were trapped in technicalities rather than permitted to take advantage of procedural laws in order to advance the cause of Justice---Such branch of legal thought, held had to be filled by the rules of Islamic Philosophy and arguments based on said technicalities were to be repelled."
' In other cases reported as PLD 1997 SC 823, PLD 2003 SC 724, wherein it is categorically held that, "decisions of cases on merits always to be encouraged instead of technicalities non-suiting the litigants for technical reasons."
' It is also to be taken into count that the apex Court repeatedly held that,"in a contest between two possible interpretations one favouring rights and interest of the employees and the other favourable to the State, interpretation favourable to and more beneficial to the employee should be adopted."
17. In the present controversy this Court has been called upon to exercise its inherent power to adjudicate and provide Justice in the impugned matter. The basic objection of the respondents before this Court pertains to the availability of a remedy to the Nichi class of people who strive and work for the betterment of education and all its related aspects. The problem facing these people i,e, employees of the Board since a long has been that they have been refused a remedy under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 on the principle that the employees of the Board being regulated by non-statutory rules are excluded from availing a remedy from the High Court under Article 199 of Constitution of Islamic Republic of Pakistan, 1973 and consequently they claim that the High Court has no jurisdiction to entertain complaints made by employees who are working and being regulated under non-statutory rules.
18. To my mind this objection of the respondents is neither here nor there and is repelled that in my understanding the High Court is established to provide Justice to an aggrieved party albeit on merits and on law.
19. Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is the fundamental provision enunciating the jurisdiction of the High Courts and of course it is mandatory upon the High Court to confine itself within its jurisdiction as provided in Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
20. There is no difficulty to arrive on the conclusion that the plain reading of the Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 contemplates that writ by the employees or by any aggrieved party against any statutory body irrespective of their rules of statutory or non- statutory in nature the High Court can assume and exercise its jurisdiction because any lacuna or other technicalities should not come in the way of provision of efficacious and speedy justice because if technicalities of law are allowed to prevail over those who are subject to the law then the ends of justice will become impossible to meet that.
21. Taking this discussion further, I myself have experienced watching people struggling and striving to achieve a conclusion to their work related problems and this struggle is often prolonged by letting technicalities prevail over substantive justice. The effects of such prolonged judicial struggle are consequently felt and borne by not only the employee of such a Board but also the family members of the aggrieved have to suffer dire consequences for very long period of time and this practice of exploiting technicalities has been resultantly lead to the exploiting of the genuine concerns of many.
22. It is astonishing to see that on the one hand any person who is not an employee of the Board but is aggrieved by any action of the Board can invoke the jurisdiction of the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 for example a person can invoke jurisdiction of High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 without any hindrances if he is aggrieved to the extent of checking and marking his exam papers or any other action taken by the Board but on the other hand the employees of the Board are barred from invoking the writ jurisdiction just on the ground that the rules/regulations under which the employees of the Board are governed and regulated are non-statutory in nature, as a surprising situation.
23. In my opinion the High Court is the same Court when adjudicating upon any person who is not an employee of the Board and on the other hand when it is adjudicating upon maintainability of a writ petition of an employee of the Board. The High Court is the sane for both classes of people and both the classes of persons are ensured proper, efficacious and speedy redressal of their grievances under the fundamental rights as guaranteed under the Constitution of Islamic Republic of Pakistan, 1973. Even the law laid down by the Honourable Supreme Court of Pakistan reported as PLD 2001 SC 531 and 2005 SCMR 605 is sufficient to strengthen my views.
24. In view of the prevailing albeit disappointing practice to allowing technicalities to prevail over substantial justice, I think it is my duty to interfere in the matter before this Court and to provide justice which is free from the ailment of technicalities.
25. Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 if read in its plain sense is enough to confer jurisdiction upon the High Court to intervene/direct on the application of "any aggrieved party" as laid down in paragraph (a) of clause (1) and also as provided in paragraph (c) of clause 1.
26. It is a right ensured to every person under the Constitution of Islamic Republic of Pakistan, 1973 to seek justice. These are the reasons for acceptance of writ vide short order, dated 22-2-2008.
' For the foregoing reasons the orders, dated 15-9-2006 and 10-10-2006 are declared illegal and are set aside.
' The respondent No,1 is directed to allow the pensionary benefits as prayed in the writ petition within a period of one month positively. The writ petition is allowed in the above terms.