' MALIK MUHAMMAD AQIL AWAN, J.--- The petitioner has called in question two letters dated 13-7- 2007 and 14-2-2008 passed by the respondents. Under the letter dated 13-7-2007 petitioner was informed that KIBGE has now become a constituent institution of University of Karachi and according to rules of the University educational qualifications of the petitioner qualify him for the post of UDC in BPS-9. In the second letter it is stated that petitioner's appointment shall be for a period of six months with effect from the date of joining and all other terms and conditions of the service will remain same. It is further stated that petitioner is given two weeks time to communicate the acceptance of such offer otherwise same will be rescinded.
' The letter dated 14-2-2008 reads that competent authority has appointed the petitioner as UDC in BPS-9 on contract basis for the period of three months with effect from 21-1-2008. The further grievance made by the petitioner is that with effect from March 2007 his salary has been stopped.
3. We have perused the file of this case and find that the petitioner has been appointed aftef his selection as an Office Assistant at a consolidated salary of Rs,4000 per month. The order of appointment reads that the post is purely temporary but likely to continue indefinitely although the service can be terminated at 15 days notice from either side at any time. The petitioner was appointed as Office Assistant in the. Institution known as Dr. Abdul Qadeer Khan Institute of Biotechnology and Genetic Engineering (hereinafter called KIBGE), which was created through the statutes. KIBGE was created under the statutes framed by the University of Karachi under section 28(1)(g) of the University of Karachi Act, 1972. The annexure 'R' filed by the Counter-Affidavit shows that KIBGE was created in exercise of the powers conferred by the University of Karachi Act, 1972 in cooperation with Dr. A.Q. Khan Institute of High Technology Trust, shall establish KIBGE at the University of Karachi Campus to function as constituent institution of the university under its academic, administrative and financial disciplines in accordance with the provisions of its statute.
The aforementioned statutes got approval from Governor of Sindh as Chancellor which is communicated to the Vice-Chancellor, Karachi University vide letter dated 18-7-2005 filed as Annexure 'R/1' with the counter-affidavit.
4. That after appointment of the petitioner as Office Assistant on his selection, it appears that under the office order dated 24-1-2005 the petitioner was re-designated as "Superintendent" with immediate effect and until further orders. The petitioner has filed policy letter dated 27-12-2003 signed by Qadeer Muhammad Ali, Coordinator wherein it has been resolved in Para-3, All staff working in KIBGE from BPS-1 to 16 shall be declared as regular and confirmed employees of the institute with effect from 31-12-2004. However, they will not be entitled to get those allowances which are permissible to the university employees until and unless the KIBGE manages its own financial resources. Clauses (9) and (10) of this policy are also relevant for the purpose of this case and same are reproduced as under:-- "(9) All appointments whether contract, ad hoc or regular in BPS-17 and above shall be made by the Chairman Governing Council KIBGE on recommendations of the Selection Board. In case of employees of BPS-1 to 16 appointments shall be made on the recommendations of the Selection Committee on the pattern mentioned in University of Karachi Code 1984. Employees shall not be terminated/dismissed without obtaining the prior approval of the Chairman Governing Council KIBGE with due process of law mentioned in the University of Karachi Code 1984.
(10) All the employees working on contract, ad hoc or regular basis shall be terminated after due opportunity of defence, issuance of show cause and regular inquiry. The University of Karachi Employees (Efficiency and Discipline) Ordinance 1962 shall apply to each and every person in the employment of the KIBGE."
5. In view of the aforementioned facts question before us is whether the appointment of the petitioner under order dated 19-11-2002 is a regular appointment or temporary appointment. The second question which will follow from the first question is that in case we reach to the conclusion that appointment of the petitioner is regular one, whether the respondents are competent to convert it into contract or ad hoc appointment as apparent from the impugned order dated 13-7- 2007 where under firstly the petitioner was demoted as UDC BPS-9 and then his appointment was converted into the contract appointment for a period of six months and under the second impugned letter/order dated 12-2-2008 his contract period was extended for three months with effect from January, 2008.
6. That the reason assigned for the demotion of the petitioner from the re-designated post of Superintendent to UDC (BPS-9) is that KIBGE being constituent institution of Karachi University, the qualification of the petitioner according to rules of University corresponds to the post of UDC. This very instance/ground taken in the order is belied by the respondent's own Counter-Affidavit and the annexures filed in support of the same. Such Counter-Affidavit on behalf of respondents is sworn by one Asif Mukhtar who is Deputy Registrar (Legal) with the respondents No,1, which is University of Karachi. Along with the Counter-Affidavit he has filed the statutes as Annexures 'R' which has been approved by the Government of Sindh as stated above, and it shows that the right from the inception of KIBGE, it was a constituent body of the Karachi University and under the said statutes it was granted status of Semi Autonomous Body. Therefore, to say that KIBGE having become constituent Institution of University of Karachi and according to rules he is not qualified to hold the post of Superintendent is factually incorrect. It is pertinent to note that his appointment as Office Assistant is under the letter dated 19-11-2002 and the re-designation of his post from Office Assistant to Superintendent is under the letter dated 24-1-2003 and in the impugned letter it is nowhere stated as to when KIBGE became constituent institution of University of Karachi and as to from which date such rules became applicable to the employees of KIBGE and what is the name of such rules and what is that Rule under which the post of Superintendent requires the qualification which are not possessed by the petitioner. We have yet to see such a vague jurisdiction for demoting an employee from the post of Superintendent to the UDC. Such demotion even otherwise cannot sustain as it is requirement of law that before demoting a person for any reason, he is entitled to the opportunity of hearing on the basis of principle of natural justice as enshrined in the case of Aneesa Rehman v. PIA, reported in 1994 SCMR 2232 P.2240. In the case of Aneesa Rehman, demotion order was struck down only for the reason that same was passed in violation of the principle of natural justice and as has been held in the case of Muhammad Dawood v. Federal Government, reported in 2007 PLC (C.S.) 1046 that any order in violation of the principle of law (principle of natural justice has been treated as equivalent to the law of land), can be struck down against an organization who has passed such order. The next reason to strike down demotion order is that even if KIBGE has become the constituent body of the University of Karachi, the employees already working in relevant discipline in their grade, would not be effected by the rules of the Karachi University as such rules would apply prospectively and not retrospectively. Such rules if the respondent No,1 wanted to apply on the employees of KIBGE, then it must be applied on the fresh appointment in KIBGE, and not on the old employees. The third reason is that in the Counter-affidavit sworn by Asif Mukhtar on behalf of University of Karachi in Paras 6,7 and 8 which are reproduced herein below have stated in clear terms that University of Karachi has wrongly been joined and it has nothing to do with KIBGE which is autonomous body:-- "(6) I say that KIBGE is an Institute created by Statute and it is itself a constituent institute. It is an autonomous body. It operates and regulated by the Governing Council created under such Statute. The KIBGE has its own academic, administrative and financial control and is run under the provisions of Statute under which it was created. The University of Karachi has no say in the matter except the Vice-Chancellor of University of Karachi has been nominated as Chairman of the Governing Council under the, Statute.
(7) I say that KIBGE is a Federal Government Funded Institute and University of Karachi is being run and controlled by Province of Sindh hence Karachi University has no say in the affairs of the University except that the Vice-Chancellor of the University is member of Governing Council and acts as Chairman of the Governing Council of the KIBGE.
(8) I say that petitioner has wrongly joined Karachi University as party to the proceedings to maintain the petition under Article 199 of the Constitution. If respondent No,1 University is deleted from the respondents then the petition will be against an institute which does not have Statutory Rules of Service even otherwise petition against an institute which is neither under the control of Provincial Government, Federal Government or the Local Authority is not maintainable hence petition in its present form is liable to be rejected."
7. That after striking down the demotion order which is first part of the impugned letter dated 13-7- 2007. We may determine the legality of the second part of the said order whereby the regular appointment of the petitioner has been converted into contract appointment. To appreciate this question we have to refer back the order dated 19-11-2002 wherein it is mentioned, "you have been selected for appointment". Selected means selected by the Selection Committee and an appointment made on the basis of selection by the Selection Committee is treated in law as a regular appointment particularly when it is made against the substantive post. The difference between permanent post and temporary post is that temporary post is time bound post which lives only for the period it is sanctioned and any other post which is created for unlimited period is deemed in law to be permanent post. It is not the case of respondent before us that the post of Office Assistant being the temporary one has been abolished at any point of time therefore, we will treat the same as a permanent one and the appointment of the petitioner as a regular one. The deficiency if any stands covered by the policy letter issued by the respondent No,2 wherein under clause (3) it has been declared that all staff working in KIBGE from BPS-1 to 16 shall be declared regular and confirmed employees of the institution with effect from 31-12-2004.
8. In this view of the matter, their remains no lawful authority with the respondent No,2 to convert a regular appointment into contract appointment and as such the second part of the impugned order/letter dated 13-7-2007 is also struck down being devoid of lawful authority.
For this proposition reliance is placed on NLR 1984 SER 162 (sic) R 163 A; I.-G.P. v. Ali Abbas. In this case Supreme Court held that form of appointment order is immaterial to see the nature of appointment. Appointment against temporary post when permanent post was available on the date of appointment, should be deemed to have been appointed against permanent post from date of appointment. Same judgment is reported in 1985 SCMR 946 R 947. We may also rely upon case of Secretary Ministry of Defence v. Muhammad Miskeen reported in 1999 SCMR 1296 R 1299-A.
In this case respondent was appointed against a permanent vacancy through the mechanism of Selection Committee in accordance with Rules and not on contract basis. Appointment order was ultimately amended so as to convert regular appointment into contract appointment, for which department had no lawful authority.
9. After striking down the order dated 13-7-2007, the legal effect of the same would be that petitioner continued to be in service as regular employee of the respondent No,2 as Superintendent and would be entitled to all the monitory benefits including salary admissible to the post of Superintendent with effect from 24-1-2005 till date. So far, the second impugned letter/order dated 14-2-2008 is concerned, the same being consequential to the second part of letter dated 13-7- 2007 which we have already declared to be illegal, the same is also quashed and set aside for the same reason.
10. This brings us to the second part of prayer clause (a) where petitioner has claimed that his salary is stopped from March 2007. We do not find any denial on the part of respondent No,2 as no one has bothered to file the Counter-Affidavit to controvert assertion made in part two of the prayer clause (a). On the contrary the only Counter-Affidavit filed by Asif Mukhtar Deputy Register (Legal) of respondent No,1, has stated that respondent No,1 has no concern with the respondent No,2, which is an autonomous organization. In this view of the matter, we have no other option but to allow the prayer and we direct the respondent No,2 to pay the salary of the petitioner with effect from March 2007 till date against the post of Superintendent. Petitioner will be entitled to count his seniority in the grade and post of Superintendent with effect from 24-1-2005 and if any junior of him is promoted, the respondent No,2 is directed to consider him for such further promotion being a consequential benefit of his status as regular employer with effect from 19-11-2002.
11. This petition is allowed in the above terms and both the impugned orders dated 13-7-2007 and 14-2-2008 are set aside.