' KHALID ALI Z. QAZI, J.--- As common/identical questions of fact and law arise out of the above three petitions, they are being disposed of through this consolidated judgment. The brief facts giving rise to the present petitions are that the petitioners were appointed as First Officer in the PIAC vide three Agreements (separate for the three petitioners) all dated 30-10-2003 (hereafter referred to as "the Agreements"). Article 1 of the Agreements clearly specify that the said contracts shall be for a period of 5 years and shall be extendable "upon the sole requirement of the corporation". The said Article 1 further stipulates that the status of the petitioners shall be that of contractual employees and they shall not have any right to seek absorption on permanent basis in the PIAC. The Agreement also provide for a termination clause i.e, Article 4, which inter alia, provides for termination on one month's notice in writing or on payment of one month's salary in lieu of notice by the Corporation. Upon the execution of the Agreements the petitioners undertook training.
2. The petitioners have contended that vide letter dated 13-3-2006 they were placed at a particular number in the seniority list, whereas on 30-19-2006 the petitioners claimed to have addressed a protest to the effect that they had been superseded as some junior officers were sent on aircraft B- 737 as P2. It is contended by the petitioners that B-737 is an aircraft superior to ATR in which the petitioners have been performing duties. It is further contended by the petitioners that being senior it was their right to have been promoted so as to perform in the B-737 aircraft.
3. In Circular No,65 of 2007 dated 6-7-2007 issued by the PIAC, B-737 aircrafts are equated with ATR aircrafts. The case of the respondent is that since ATR and B-737 aircrafts are equal, if any officer is sent out to the B-737 aircraft the same would not amount to superseding an officer like the petitioners who have remained in the AIR aircraft. In response, the petitioners have challenged Circular 65/2007 dated, 6-7-2007. Therefore, in a nutshell the petitioners have not only assailed their supersession but have also called into question Circular 65/2007 dated 6-7-2007, while further seeking a declaration the Administrative Order No,1 of 2005 dated 4-1-2005 (which was prevalent before Circular No,65/2007 dated 6-7-2007) holds the field.
4. On the other hand, the respondent has contended that the PIAC Employees (Service and Discipline) Regulations, 1985 are not statutory rules. According to the respondent, although the said Regulations were framed pursuant to the powers under section 30 of the PIAC Act. 1956, the same have not been framed with the previous sanction of the Federal Government nor the said regulations have been gazetted or laid before the National Assembly in terms of section 31 of the said Act. In view of this it is contended that the matter is governed by the principle of "master and servant" and a petition under Article 199 of the Constitution is not maintainable. On merits it is contended by the respondent that contractual employees have no right to seek seniority.
5. In rebuttal the petitioners have reiterated the arguments, while emphasizing that under section 2(b)(2) of the Civil Servants Act, 1973 contractual employees are excluded from the definition of "civil servants", hence the bar under Article 212 of the Constitution is not applicable. It is further contended that since the remedy under section 4 of the Service Tribunals Act, 1973 is no longer available, this Court alone has the jurisdiction under Article 199 to entertain the petitions.
6. We have heard the rival arguments, perused the record and the law on the subject.
7. Before we dilate upon the merits of the petitions it shall be worthwhile to first explore the preliminary objection raised by respondent on the touchstone of maintainability of these petitions under Article 199 of the Constitution.
8. Admittedly, the PIAC till date lacks the statutory service rules. In Raziuddin v. Chairman, PIAC PLD 1992 SC 531 it was held that since the PIAC did not have statutory rules of service the relationship between the employees of the PIAC and the employer i.e, PIAC was governed by the principle of master and servant. Again in PIAC v. Shahabuddin 1993 PLC (C. S.) 1=1993 SCMR 299 a Full Bench of the Honourable Supreme Court clearly held that the PIAC Employees (Service and Discipline)
Regulations 1985, though having been framed under section 31 of the PIAC Act, 1956, did not enjoy the status of statutory regulations as they were neither published in the official Gazette nor laid before the National Assembly as required under section 31 of the said PIAC Act, 1956. The Courts had been non-suiting the employees of statutory corporations on the basis of the principle of master and servant, where there were no statutory service rules. It may be clarified that where statutory corporations possessed statutory rules of service the Courts had entertained writ petitions against the employers see Principal, Cadet College Kohat v. Mohammad Shoab Qureshi PLD 1984 SC 194 and Anwar Hussain v. ADP PLD 1984 SC 170. While this trend was pretty set, the Supreme Court of Pakistan in the case of Anisa Rehman v. PIAC 1994 SCMR 2232 made a path- breaking departure. In this case Ajmal Mian J., as he then was, while writing for a Full Bench of the Supreme Court held that despite the relationship being governed by the principle of master and servant the Courts under Article 199 of the Constitution or under section 9 of the C.P.C. In a civil suit could accord relief to employees of a statutory corporation where the impugned action constituted a violation of law, notwithstanding the absence of statutory rules of service. In turn, the Honourable Supreme Court held that breach of natural justice, whereby the petitioners in the case had been demoted without an opportunity of hearing, was to be equated with violation of law.
Hence despite the relationship of master and servant the petition was found to be maintainable and the writ was issued. After the judgment in the Anisa Rehman case the superior Courts under Article 199 of the Constitution took cognizance where the employees of statutory corporations impugned the actions of employers on the touchstone of breach of natural justice. Reference in this regard is invited to a judgment of the Division Bench of this Court in Nadeem Ahmed v. PIAC 1998 PLC 19 where following Anisa Rehman the Court under Article 199 of the Constitution struck down the termination letters on the ground that the same had been issued without complying with the requirements of natural justice. To similar effect is Shahid v. PIAC 1998 PLC (C.S.), 773 as authored by a Division Bench of the Peshawar High Court. Subsequently, in H.B.L. v. S. Ziaul Hassan Kazmi 1998 SCMR 60 and U.B.L v. Ahsan Akhter 1998 SCMR 68 two separate Division Benches of the Honourable Supreme Court suspended the ad interim interlocutory orders passed by the Lahore High Court whereby the orders of termination of employees of statutory corporations had been suspended. In both these cases leave to appeal was granted.
9. In our humble opinion the orders of the Honourable Supreme Court in H.B.L. v. S. Ziaul Hasan Kazmi and U.B.L v. Ahsan Akhter (cited supra) require to be understood in their proper context. To start with these are only leave granting orders and cannot be treated as binding precedents. It is now well-established that leave granting orders A of the Supreme Court are not binding in nature [see Shipyard K. Demanl International Karachi v. Karachi Shipyard Engineering Works Ltd. PLD 2003 SC 191 and Major (R.) Shehzad H. Khan v. Government of Punjab 2001 PLC (C.S.) 249]. Even otherwise the judgment of the Honourable Supreme Court in the Anisa Rehman case is authored by a Full Bench of the Supreme Court comprising three Judges, whereas the orders in the H.B.L. v. S. Ziaul Hasan Kazmi and U.B.L v. Ahsan Akhter cases have been authored by Division Benches of the Supreme Court. It is again a well established principle of law that in case of any conflict the judgment B of a larger bench of the Supreme Court would prevail see Javed Iqbal v. Province of Sindh 2003 MLD 22. It also makes no difference that the learned author Judge in Anisa Rehman v.
PIAC, H.B.L. v. Ziaul Hasan Kazmi and U.B.L. v. Ahsan Akhter was common. It may also be clarified that the Court/authority which has the power to pass, the final order also has the power to pass an interlocutory order. Sindh Employees' Social Security Institution v. Adamjee Cotton Mills. PLD 1975 SC 32; also the Court has every power to grant interlocutory relief where there is violation of law Al- Jamiaul Arabia v. Syed Sibt Hasan 1999 YLR 1634 and a service case is no exception to this principle as held in Shahid Mehmood v. K.E.S.C. 1997 CLC 1936. In the letter case it was clearly held that where a right in a service case is based upon breach of contract the Court would only award damages, whereas where the right is based upon violation of law, the Court is empowered to grant injunction.In this judgment it was held that term "law" would not only include statute law but also the principles laid down by the superior Courts and the standards found in administrative/public law. Therefore, where an action of a statutory corporation is based upon mala fides, arbitrariness, unfairness and unreasonableness the Court is empowered to grant injunctive relief, which could even be in the nature of directions including and not limited to suspension of particular orders/letters. In our humble opinion the decision in Anisa Rehman v. PIAC is thus not eclipsed by the orders in H.B.L. v. Syed Ziaul Hasan Kazmi and 1J.B.L v. Ahsan Aldner. Another way to reconcile the latter two cases is that the orders of the Lahore High Court which were suspended by the Supreme Court in the said two cases were rendered at a time when section 2-A of the Service Tribunals Act, 1973 had held the field and in view of Article 212 of the Constitution no relief could have been granted by the High Court.
10. Be that as it may, after the induction of section 2-A in the Service Tribunals Act, the remedy of employees of statutory corporations fell within the jurisdiction of the Federal Service Tribunal. Again an attempt was made to invoke the principle of master and servant which was rejected by the Courts and Tribunals. In Muhammad Ashraf v. DG, MDA 2000 PLC (C.S.) 796 a learned single Judge of the Lahore High Court took the view that after the induction of Article 2-A in the Constitution the principle of master and servant, founded in English common law, could no longer be invoked in Pakistan. A Full Bench of the Supreme Court in Abdul Hafeez Abbasi v. MD, PIAC 2002 SCMR 1034 repelled the contention that on the basis of the principle of master and servant the Service Tribunal had no jurisdiction to reinstate an employee who was illegally terminated. The earlier judgment of the Supreme Court in the case of Anisa Rehman was reiterated and applied. We are further impressed by a judgment of a Division Bench of the Federal Service Tribunal reported as Ghulam Mustafa Khairati v. FOP and others 2005 PLC (C.S.) 417 wherein it was held that the principle of master and servant was below the human dignity as the same insulted human decency.
11. It was at this juncture and while the Service Tribunals and the Supreme Court in the aftermath of induction of section 2-A in the Service Tribunals Act, 1973 had rejected the principle of master and servant in matters where the employer was an entity the majority of which was owned or controlled by the Government that the Honourable Supreme Court decided Muhammad Mubeen- us-Salam and others v. FOP PLD 2006 SC 602. In the latter judgment the Honourable Supreme Court was pleased to partially strike down section 2-A of the Service Tribunals Act, 1973 with the result that the proceedings instituted under section 2-A before the Tribunal or pending appeals before the Supreme Court abated within the parameters and limits expressed in the Muhammad Mubeen-us-Salam case. After the Muhammad Mubeen-usSalam case the litigants approached the High Courts under Article 199 of the Constitution, when a preliminary objection was raised that in the view of the principle .Of master and servant the Court had no power and authority to grant relief under Article 199. A common objection raised by the employers was that the relief of injunction/reinstatement/ directions was granted by the Service Tribunal and upheld by Supreme Court due to availability of section 2-A of the Service Tribunals Act and after declaration of the latter to be ultra vires by the Supreme Court in the Mubeen-us-Salam case (cited supra) no relief under Article 199 of the Constitution could be granted in respect of employers/statutory corporations which do not possess statutory rules of service. A single Judge of the Lahore High Court in Muhammad Asghar v. State Life Insurance 2007 PLC (C.S.) 138 sustained the objection, leaving the employee to seek recourse to an action for damages; however, the contention was rejected by a Full Bench of this Court in Muhammad Dawood v. FOP 2007 PLC (C.S.) 1046. Para.29 of this judgment lays down the categories in which the Court under Article 199 of the Constitution would be able to grant relief. The said para. 29 in the Muhammad Dawood case is reproduced for convenience hereunder:-- "(29) From the above somewhat detailed discussion, we have arrived at the following conclusions:- -
(i) Irrespective of an employee of a State controlled corporation not being a civil servant the corporation themselves continue to remain amenable to the jurisdiction of this Court under Article 199 of the Constitution.
(ii) The rule of master and servant is inapplicable to cases where there is violation of statutory provisions or of any other law.
(iii) The expression 'violation of law' would not be confined merely to violation of any specific provision of a statute but the expression 'law', as observed by Hamoodur Rehman, J., (as his , lordship then was) in Government of West Pakistan v. Begum Agha Abdul Karim Sorish PLD 1969 SC 14 @ 31 and ought to be considered in its generic sense as connoting all that is treated as law in this country including even the judicial principles laid down from time to time by the superior Courts. 'It means according to the accepted norms of legal process and postulates a strict performance of all the functions and duties laid down by law. It may, instance, includes the principles of natural justice, the public duty to act fairly and honestly and absence of mala fides in fact and law. In all such cases the Court would be competent to grant relief of reinstatement".
12. The judgment of the Full Bench of this Court in the Muhammad Dawood case is binding on us.
Even otherwise we are unable to agree with the Lahore High Court's judgment in the Muhammad Asghar case, as in our opinion the judgment in the Muhammad Dawood case reflects a correct statement of law.
13. In para.10 above, we have already underscored the manner in which the Tribunal and the Supreme Court refused to press into service the principle of master and servant upon the advent of section 2-A of the Service Tribunals Act, 1973. After the exodus of the said section 2-A of the Service Tribunals Act, 1973 from scene the situation is hardly different. In Pakistan v. Public-at-Large PLD 1987 SC 304 the Shariat Appellate Bench of the Honourable Supreme Court has suggested that the employees of statutory corporations should be offered the same protection which is being accorded to civil servants. The relevant portion in this regard from the opinion of Pir Muhammad Karam Shah J. Is reproduced as follows:- {{URDU TEXT}} (see PLD 1987 SC 304 at page 380 PP).
' In Muhammad Akram v. Mst. Farman Bi PLD 1990 SC 28 the Honourable Supreme Court has already deprecated the resort to the common law of England in preference to the Pakistan law, Islamic law/jurisprudence and Islamic common law. The concept of dispensation of Islamic social justice in labour laws has been accepted by the Supreme Court in Macdonal Layton v. Punjab Employees Social Security Institutions PLD 1991 SC 1055. We do not see why the same concept should not be made applicable in service laws. In Chairman, Pakistan Broadcasting Corporation v.
Nasir Ahmed 1995 SCMR 1593 the Honourable Supreme Court was pleased to strike down a regulation of the Pakistan Broadcasting Corporation mandating compulsory retirement without any show-cause. It was observed that the colonial heritage casted a dark shadow on our jurisprudence. In Government of N.-W.F.P. v. I.A. Sherwani PLD 1994 SC 72 the Shariat Appellate Bench of the Supreme Court was pleased to hold that any contract allowing unilateral and arbitrary reduction of salary without any fault having been proved against the employees is itself repugnant to the injunctions of Islam. It was further observed that unbridled powers in the hands of the employer to convert salary into a "subsistence grant" amounts to exploitation which is termed as "Gharar". These classical pronouncements from the Honourable Supreme Court were tendered at the time when there was no section 2-A in the Service Tribunals Act, 1973. Thus in light of such egalitarians principles we cannot see how the principle of "master and servant" could be resurrected. It may also be noted that the concept of `master and servant' cannot be stretched to confer unbridled powers so as to act whimsically, capriciously or in violation of the principles of natural justice and the well settled norms of law and justice see Farasat Hussain v. PNSC 2004 SCMR 1874.
14. While the respondent and other employers may be mooting to press into service the principle of master and servant here, the latter concept has suffered inroads in the country of its origin i.e, the United Kingdom. In R v. Criminal Injuries Compensation Board, Ex parte Lain (1967) 2 QB 864 judicial review was permitted so as to vindicate the breach of non-statutory rules. In R v. Home Secretary, Ex parte Benwell (1985) QB 554 prison officer's conditions of service were found to exist in "public law", because he was held to be "appointed" and not "employed". Judicial review was maintained to check the action of the Home Secretary when it was found in breach of a "code of discipline", which was non-statutory in nature. Even in Council of Civil Service Union v. Minister for Civil Service (1985) AC 374, although on facts the judgment is on breach of natural justice, the language and tenor thereof confirm that the breach of non-statutory rules were found to be susceptible to judicial review. Interestingly, in Malloch v. Aberdeen Corporation (1971) 1 WLR 1578 at pages 1595 and 1596 Lord Wilberforce drew a distinction between two types of employees. For the first category the principles of natural justice were not applicable and hence the relationship was that of master and servant. For the second category the requirements of natural justice being mandatory, the principle of master and servant could not be pressed into service and the failure to meet the essential procedural requirements would avoid the impugned action of the employer. This distinction is to be understood in the context of our jurisprudence. The judgments of our Supreme Court in the cases of Pakistan v. Public at Large, Anisa Rehman v. PIAC and Chairman Pakistan Broadcasting Corporation v. Nasir Ahmed (all cited supra) sufficiently show that the employees of statutory corporations cannot be adversely treated without complying with the requirements of natural justice. If this is so, then following the distinction in the Malloch's case enunciated by Lord Wilberforce, the employees of statutory corporations fall into the second category for which the principle of master and servant could not be pressed into service.
15, The development in India is hardly different. Reference is invited to Delhi Transport Corporation v. DTC Mazdoor Congress AIR 1991 SC 101. In this case Regulation 9(b) of the Delhi Road Transport Authority (Conditions of Employment and Service) Regulations, 1952 ,was struck down on grounds that it accorded unbridled power to the employer to dispense service without assigning any reason. The Regulation was found to be arbitrary, unfair, unjust, unreasonable and opposed to public policy. In Bombay Telephone Canteen Employees Association v. Union of India AIR 1997 SC 2817 an arbitrary action of the employer was found to be justiciable.
16. In light of the above, the preliminary objection raised by the respondent is hereby rejected and the petition is found to be maintainable. In order to clarify the legal position it may be stated that a petition under Article 199 of the Constitution or a civil suit under section 9 of the C.P.C. Would lie for declaration, injunction or directions even if service rules are not statutory provided that:-
(a) the employer is an entity which is controlled or the majority of which is owned by the Government;
(b) the action complained of is in violation of law or other standards found in public/administrative law which have been dilated in Shahid Mahmood v. KESC 1997 CLC 1936 and Muhammad Dawood v. FOP 2007 PLC (C.S.) 1046. It may also be stated that the categories found in public/administrative law cannot be treated as static since "as an ideation judicial review has always been a dynamic concept and, to quote F.W. Maitland, 'each generation has enormous power to shape its own laws', its progressive growth with passage of time would bring into its fold newer subjects and enrich its armoury with bolder concepts."
' See Messrs Presson Manufacturing Ltd. v. Secretary Ministry of Petroleum 1995 MLD 15 and Qalandro v. The State 1997 MLD 1632;
(c) where an employee only complains of breach of contract and cannot establish violation of law or the standards found in public or administrative law, the remedy available for the employee is an action for damages;
(d) apart from maintaining an action for declaration/ injunction/ directions in the category mentioned in the sub-para.(b) above, the employer in addition or in the alternative will also have the right to persue the claim for damages, in the context of the particular case.
17. This brings us to the merits of the case. The petitioners have alleged that they have been superseded in the context succinctly dilated in paras.2 and 3 above. Admittedly, the petitioners are contract employees. In terms of clause 4.1.4 of the Cockpit Crew Service Rules found in Administrative Order 17 of 2001 dated 17-1-2001 no seniority rights shall accrue to a crew who is employed on contract. The precise rule 4.1.4 is reproduced as follows:-- "4.1.4 No seniority rights shall accrue to a Crew who is employed under special contract with the Corporation. In the event of his rejoining the Corporation as a regular Crew, his seniority will accrue from the date on which, he is discharged from his contractual obligations or the date on which he is absorbed in the regular employment of the Corporation as a Crew member, whichever may be the later."
' The employment Agreements dated 30-10-2003 whereby the petitioners have been employed confirm that they shall abide by the prevalent service rules/regulations of the PIAC (see Article 2 of the Agreements). Also in such Agreements there is no clause or provision which may give the right to claim seniority. We have been able to place our hands on a judgment of the full bench of the Supreme Court reported as Jamal-ur-Rehman v. Secretary to Government PLD 1990 SC 719 wherein it has been held that a contract employee cannot claim right of pension for the period he had remained a contract employee unless the same was specifically provided in the contract itself. The logical deduction from the judgment is that contractual employees cannot claim benefits which are available to permanent employees unless such benefits or rights are specifically provided in the contract. In Maj. (Retd) Muhammad Matlub Khan v. GOP 1993 SCMR 798 the Supreme Court was pleased to hold that an officer on contract will have no seniority and cannot be placed on the regular gradation list. The argument on behalf of the petitioners that they are not claiming seniority vis-a-vis regular employees but with other contractual employees is also devoid of any force. The reason for this is simple. The right to claim inter se seniority vis-a-vis contractual employees has to flow from the contract itself. And the contracts/Agreements of the petitioners do not confer any such right upon them. If no seniority can be claimed by the contractual employee it is meaningless whether such claim is pitched against regular employees or contractual employees. Therefore on merits no case is made out by the petitioners.
18. Apart from the above we are constrained to observe that the petitions are materially deficient in many aspects. It is rather surprising that although the petitioners' main grievance is against supersession by their juniors, the identity of those juniors have not been revealed, nor have they been made parties to the petitions. The petitioners have also failed to specify the date and time when the particular junior (s) may have superseded the petitioners. In light of such fundamental defects no relief can be accorded to the petitioners. It was in this circumstance that the Supreme Court in Fida Muhammad Sanai v. Chairman FST Islamabad 1997 PLC (C.S.) 430 was pleased to hold that a petitioner's appeal in which exception is taken to the promotion of juniors, cannot be treated as properly constituted unless the junior person who has seemingly been promoted has been impleaded.
19. The upshot of the above discussion is that the petitions being meritless are dismissed with costs.