1. ' SYED PIR ALI SHAH, J.--- Through this petition filed under Article 199 of the Constitution of Pakistan above named petitioner has resorted to the following prayers:--- ' A. Declare that the petitioner having been employed for over ten years by respondent was entitled to be regularized/absorbed in service as per recommendations . Of the concerned Department of the respondent and cases of other similarly placed cabin crew.
2. ' Set aside letter dated 29-12-2006 (Annexure "0") issued by respondent and restore the petitioner into service with direction to the respondent to issue letter of regularization/absorption in service to the petitioner as per the recommendations of its concerned Department and cases of other similarly placed cabin crew. C. Award salary and other benefits for the period during which the petitioner remained out of service. D. --Grant any other relief which this Honourable Court deems just and proper in the circumstances of the case.
3. ' Briefly stated, the relevant facts forming background of this petition are that the petitioner had initially joined service as Airhostess on 14-5-1992 with the respondent and was a permanent employee. Due to personal reasons, the petitioner had resigned from service and repaid the training costs to the respondent. Relieving lettef dated 28-2-1993 and note-sheet dated 18-6-1995 have been annexed by her along with this petition. Thereafter, the petitioner applied to the respondent for fresh appointment in the year 1994 and she was accordingly considered in the light of her past good service record. She was appointed as Airhostess vide appointment letter, dated 2- 7-1995 for her contract of one year convertible into regular employment subject to satisfactory performance. The case of the petitioner is that instead of regularizing her after completion of one year of service, the respondent continued to extend the contract of service of the petitioner and others from time to time. It is stated that the petitioner served With the respondent with utmost commitment and dedication and her services were appreciated by the concerned officers of the respondent. She was rewarded with cash incentive and was also issued appreciation letters. It is mentioned that the respondent acted arbitrarily and capriciously and did not regularize her service. According to her respondent regularized the service of some of the employees, even officers junior to the petitioner in a diriminatory manner. She made correspondence with the respondent but no such reason was conveyed to her. It is stated that the various airhostesses were not permanently absorbed as they were on maternity leave or leave without pay.
4. ' Further, grievance of the petitioner is that the respondent again regularized services of some of the crew members while extending the contractual period of others including the petitioner, she submitted numerous applications to the respondent for regularizing her service but without any result. It is also stated that the respondent vide Minutes 4 dated 15-8-2003 gave brief history of the contract employees of the respondent wherein it was pointed out that the services of a number of airhostesses whose permanent absorption was withheld due to different reasons have been re- evaluated and have been recommended for permanent absorption in the service of the corporation on the basis of their satisfactory performance. It has further been stated that the Board of Directors of the respondent at its 265th meeting held on 6-9-2002 decided that the employment in PIA against permanent positions should be on the basis of contract, initially for a period up to five years renewable to maximum period of ten years and permanent absorption should be contingent upon satisfactory performance of ten years contractual employment. It is further stated that while decision had been taken by the respondent's Board to absorb the employees such as the petitioner, the respondent vide Minutes 1, dated 25-11-2005 yet again sought extension of the contract period of cabin crew. The respondent also placed suitability report of the contractual cabin crew which showed the petitioner's performance as suitable. It is stated that non-absorption and extension of contract was solicited by the concerned department of the respondent for its own convenience and despite the fact that the employees such as the petitioner with satisfactory service of over ten years were fit to be absorbed long ago. It is mentioned that finally the respondent vide letter, dated 14-9-2006 informed the petitioner and ten other airhostesses that as per management's decision all cabin crew who were inducted on contract convertible into regular service and have completed ten years of service and more will be required to appear before Suitability Board on 15-9-2006 for regularization. It is stated that in the letter dated 14-9-2006, it was also stated that in case of nonappearance, the case will not be referred to management for approval. It is further stated that as the petitioner was on maternity leave at the relevant time, she was informed that her case for absorption was deferred by the respondent and would be considered by the Board later. On resumption of duty. Special Board held on 14-11-2006 cleared the petitioner as fit to join her duties on 20-11-2006 as evident from letter, dated 22-12-2006 issued by Personnel Officer, Flight Services of the respondent. It is mentioned that although the petitioner was informed that her case would be taken up soon for absorption by Suitability Board but nothing was done. Thus, the petitioner vide letter, dated 27-11-2006 once again requested the respondent to order her absorption as she had been serving for over ten years and her performance was absolutely satisfactory. It is .Contended, that the petitioner was shocked and surprised to receive letter dated 29-12-2006 whereby she was informed that her contract was expiring on 31-12-2006 and it was decided by the management of the respondent not to extend this contract beyond 31- 12-2006 and she stood relieved from -her present assignment w.e.f, 1-1-2007.
5. ' On notice of this petition, the respondent has filed preliminary legal objections and reply statement. The preliminary legal objections reads as under:---
(I) That employment with the respondent-Corporation is governed by the law of master and servant as there are no statutory rules of service and no declaration or injunction including reinstatement can be granted where the governing law is law of master and servant.
(II) That petitioner is an employee on contract. She cannot claim any right as a regular employee.
(III) That Pakistan International Airlines is not performing- any function in connection with affairs of the Federation at I as such is not amenable to writ jurisdiction of this Honourable Court.
(IV) That further legal objections shall be submitted at the time of arguments.
6. ' The respondent has contended that vide letter, dated 29-12-2006 (Annexure "0" to the petition) the petitioner was informed that the contract shall not be renewed. It is urged that the petitioner was not a regular employee but was hired on contract and her contract was extended from time to time which she accepted the extension of contract without any protest or demur. It is further stated that the petitioner had a miserable attendance record. Most of the documents filed along with the petition are internal company document and the petitioner has failed to state as to how she got hold of these documents.
7. ' We have heard learned counsel for the parties at great length and have considered the legal aspect of the matter.
8. ' Learned counsel for the petitioner has argued that the petitioner was initially appointed on contract for one year convertible into regular employment subject to satisfactory performance during the contract period. It is urged that the petitioner has been satisfactorily performing her duties and her services have been appreciated by the respondent on various occasions, yet the respondent failed to absorb her into regular service promptly but continued to extend her service contract. It is stated that although the concerned department of the respondent has repeatedly recommended the case of the petitioner for absorption in service, the respondent has failed to absorb her into service and delayed the matter without any justification for which the petitioner cannot be penalized. It is further stated that while there was no complaint about the petitioner's performance, the petitioner has been unlawfully discriminated against as junior airhostesses have been absorbed into service while the petitioner was not only not absorbed but terminated from service without any lawful reason. It is also urged that vide letter, dated 14-9-2006 the respondent was to consider the petitioner for regularization but she was not considered as she was on maternity leave granted by the respondent itself. This was no lawful ground for refusing to consider her case for regularization. Regularization was to be effected on the basis of record and recommendations and not mere personal appearance before the Committee. It is contended that in any event the respondent should have placed the matter before Suitability Board. It is also stated that the respondent through the impugned letter treated the petitioner as mere contract employee whose contract was not extended. The record and terms of service and repeated recommendations of the concerned department for regularizing her service belies this false and misconceived assumption of the respondent. It is further stated that from the record it appears that the petitioner has been penalized on account of her maternity leave. This is impressible consideration and is indeed specifically prohibited by Article 25 of the Constitution of Pakistan. It is contended that the respondent being a statutory corporation cannot act arbitrarily and for impermissible considerations and reasons. Under the law it is required to act fairly and give reason for its actions particularly those affecting the rights of citizens which respondent has failed on all counts. It is argued that while the petitioner's performance remained undisputed, she has unlawfully been discriminated against as other employees in exactly the same position and indeed junior to her have been permanently absorbed while the petitioner has been terminated from service for no reason. It is further contended that respondent has terminated her service in violation of the settled principles of natural justice and due process of law. Neither any show-cause notice before terminating her service was given nor any opportunity to rebut the grounds on the basis of which she has been subjected to adverse action was provided to her. It is stated that the petitioner had a right to be treated in accordance with law in a fair, transparent and nondiscriminatory manner. She had legitimate expectation to be regularized in service. After devoting prime years of her career spanning over a period of ten years, the respondent cannot lawfully terminate her service through the stratagem of non-renewal of contract. It is also stated that the arbitrariness of the action of the respondent is evident from the fact that such drastic action has been taken without disclosing any reasons or ground. This is in complete negation of requirements of law enshrined in the principle of natural justice and section 24-A of the General Clauses Act, 1897. It is urged that the fundamental rights of the petitioner as enshrined in Articles 14, 18 and 27 read with Articles 2A and 4 of the Constitution are being violated by the respondent. It is further stated that the petitioner cannot be penalized for omission/failure of respondent to regularize her service for over ten years despite her repeated requests. The petitioner has also claimed all back-benefits as she is not employed anywhere after termination of her service by respondent.
9. ' In support of his contention the learned counsel for the petitioner has placed reliance upon the cases of (1) Muhammad Asim and others v.
10. Telecommunication and others 1997 PLC (C.S.) 1131, (2) Water and Power Development Authority through Chairman WAPDA House, Lahore v. Abbas Ali Malano and another 2004 SCMR 630, (3)
11. Muhammad Zahid Iqbal and others v. D.E.O. Mardan and others 2006 SCMR 285, (4) Muhammad Dawood and others v. Federation of Pakistan and others 2007 PLC (C.S.) 1046, (5) Abid Hassan and others v. PIAC and others 2005 SCMR 25, (6) Government of N.-W.F.P. Through Secretary Education and others v. Rukhsar Ali and others 2005 SCMR 22 and (7) Pakistan International Airlines Corporation through Chairman and others v. Samina Masood and others PLD 2005 SC 831.
12. ' In support of his contention, the learned counsel for the respondent has relied upon the cases of
(1) Agha Salim Khurshid and another v. Federation of Pakistan and others 1998 SCMR 1930, (2)
13. Municipal Committee, Sirsa v. Munshi Ram AIR 2005 SC 792 and (3) Dr. Anwar Ali Sahto and others v. Federation of Pakistan and others PLD 2002 SC 101.
14. As regards, preliminary legal objections raised by the respondent side under Article 199 of the Constitution a constitutional petition can be filed when there is no other adequate remedy provided by law while Article 260 relates to the various definitions and Article 240 is with regard to the appointments to service of Pakistan and conditions of service. It has been observed by the apex Court while deciding Human Right Case No,7145 of 2006 that case of Cabin Crew and Ground Staff across the board shall be sent to Suitability Board to avoid discrimination pointed out in the matter besides, services of the employees shall not be terminated on the basis of such notices sent to them. Honourable Supreme Court while deciding Civil Petitions Nos.405-407 of 2007 made such observations regarding maintainability of writ petitions at the behest of various employees of statutory corporation and autonomous bodies. The case of Pakistan International Airlines Corporation through Chairman and others v. Samina Masood and others PLD 2005 SC 831 is exactly identical to the case of petitioner wherein Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations 1985 have been highlighted. In the cited case Honourable apex Court discussed the age group of the airhostesses service in PIA.
15. It is a recorded fact that there was nothing advised against the petitioner so far her working and performance is concerned. On the contrary her performance was being appreciated by her superiors, which reflects that she was devotedly working with the respondent's institution. At no time she was charge-sheeted or disciplinary and administrative action was initiated against her for any lapses, acts or omissions on her part. The deficiency, if any, on the part of the petitioner seems to be that at the time of consideration of her regularization along with others she was on maternity leave and on account of which her case was deferred for regularization. After she had availed maternity leave, she applied for her regularization in service with the respondent, but she was neither heard nor she was regularized.
16. ' In the instant case it could justifiably be assumed that employment of the petitioner was terminated for extraneous reasons. Initial appointment of petitioner although was on contract but no ''opportunity of hearing was afforded to the petitioner before termination of her service. It was held in 1998 PLC 19 that termination of employment of petitioner was declared to, be without lawful authority and of no legal effect. It has also been held that in absence of any statutory service rules, relationship between statutory corporation and its employees was that of master and servant. On this point citation i.e, 1994 SCMR 2232 is identical 2008 CLC 697 (D.B.) is to the effect that when there are no service rules the relationship between corporation and its employees would be that of master and servant.
17. Based on above noted facts, the grievance of the petitioner seems to be that she was not regularized discrimiantorily for no valid reason, as the process of regularization has taken place in, accordance with the directions - of the Government, therefore, vested rights have been created in her favour. Accordingly, this petition under Article 199 of the Constitution of Islamic Republic of Pakistan is maintainable.
18. ' Obviously, the petitioner was not afforded proper hearing rather condemned unheard and, as such, she was not assigned any reasons as to why she was not being regularized since long. It has come on record that initially her contract period was being extended for one year and so on.
19. Ultimately, she was informed that w.e.f, 1-1-2007 her contract will not be extended which gives cause to her for filing of this constitutional petition. There is no denial that the juniors of the petitioner were regularized. No valid, legal and cogent reason has been assigned for such discrimination action. It will be, therefore, in the fitness of the things that the petitioner will appear before the Suitability/Regularization Board of respondent within one month from the date of this order, who will examine the case of the petitioner for regularization on merits and in accordance with law and will decide the same accordingly. For the foregoing reasons, this petition was allowed and these are the reasons for the short order dated 14-10-2008.