' SHAHID ANWAR BAJWA, J.--- Petitioners in these petitions were all employed as adhoc/temporary employees in 2007 by the Sindh Employees Social Security Institution (hereinafter referred to as the SESSI). In 129th, meeting of the Governing Body held on January 28, 2008 in respect of subject matter it was decided as under:- "(7) While considering progress/status of the implementation of the decision taken in the 128th meeting of the Governing Body, SESSI, Commissioner requested the Governing Body to take a decision as a general policy of the Institution for regularization of the employees appointed on adhoc basis on contract and engaged on daily wages on completion of 3 months satisfactory service. However, the employees so regularized shall remain on probation as per SESSI (Revised)
Service Regulations, 2006.
(8)(ii) The Governing Body also decided as a general policy of the Institution that the employees who have beentare appointed on adhoc basis or engaged on daily wages be regularized subject to completion of 3 months satisfactory service if they fulfill the conditions as required under SESSI (Revised) Service Regulations 2006. However, the employees so regularized shall remain on probation as per SESSI (Revised) Service Regulations 2006."
2. Consequent upon this on March 26, 2008 Director Administration wrote to various hospitals and circles calling upon them to provide details of employees working with them since 11-7-2007.
However, instead of taking them in regular employment, on 23-5-2008/ 22-5-2008 or there about appointment of the petitioners was cancelled. In this situation the Commissioner SESSI wrote a note for reconsideration of action against such adhoc employees. The material part of a note is in the following words:- "(3) It is further stated that the Governing Body SESSI in its 129th meeting held on 28-1-2008 decided that all employees who have completed 3 months service in SESSI may be regularized (Annexure "B"). As is evident from the list provided at Annexure "C", all of these affectees have completed 03 months of service and were not employed in the interim government tenure. However, these could not be regularized because of missing satisfactory performance reports which is no fault on their part.
(4) It is also worth mentioning that these are officials of low grade and the termination of their services has caused them great hardship.
(5) Representatives of the C.B.A. Have met the undersigned and have shown resentment on this arbitrarily and unilaterally decision of termination of their service.
(6) It is, therefore, proposed that in the light of above, all such officials who have completed their mandatory 3 months of service as prescribed by G.B. Decision and were not appointed in the interim government tenure may immediately be reinstated."
3. Learned counsel for the petitioner referred to an advertisement placed in newspaper on July 13, 2008 for the same position and submitted that the petitioners have been removed from service without any show-cause or inquiry. Learned counsel relied upon Zulfiqar Ali and others v. Director Housing and others 1994 PLC (C.S.) 1442 and Pakistan State Oil Company Ltd. v. M. Akram Khan and others 2004 PLC (C.S.) 992. Learned counsel further submitted that the petitioners had worked for almost more than a year and therefore the petitioners had legitimate expectancy. Learned counsel relied upon Khan M. Mutiur Rahman and others v. Government of Pakistan through Secretary, Ministry of Finance (Revenue Division), Government of Pakistan, Islamabad and others 2006 PLC (C.S.) 564. Learned counsel submitted that the acts of the respondents are discriminatory. In this regard he relied upon Muhammad Ashraf and others v. Federation of Pakistan, through Secretary, Ministry of Railways, Islamabad and 3 others, 1999 SCMR 336. Learned counsel submitted that no speaking order has been passed and therefore Section 24-A of the General Clauses Act, has been violated. He relied upon Dr. Zafar Ahmed v. Mst. Shamsa and others PLD 2002 Kar.
524. Learned counsel further submitted that others have been allowed to continue and this constitutes discrimination. He relied upon Pakistan International Airlines Corporatin through Chairman and others v. Shahzad Farooq Malik and another, 2004 SCMR 158, Hameed Akhtar Niazi v.
The Secretary Establishment Division, Government of Pakistan and others 1996 SCMR 1185, Tara Chand and others v. Karachi Water and Sewerage Board, Karachi and others 2005 PLC (C.S.) 368 and Tariq Latif Ansari and others v. Federation of Pakistan and others 2010 PLC (C.S.)569.
4. Mr. M. M. Aqil Awan, learned counsel for the respondents institution referred to sections 79 and 80 of the Ordinance and submitted that no power was available with the Governing Body to regularize the ad hoc employees. Learned counsel further submitted that an ad hoc employee cannot claim vested right for becoming permanent employee. In this regard he relied upon Muhammad Hadi v.
Secretary, Government of Balochistan, Agricultural and Cooperative Department, Quetta and 2 others 1987 CLC 74, Muhammad Shahbaz Cheema v. Province of Punjab, PLJ 1984 SC 505(sic), Chief Secretary Government of Punjab v. A. Majeed, 2001 SCMR 1971 and Amjad Ali v. Board of Intermediate and Secondary Education and others 2001 SCMR 125.
5. Since the reason stated in the termination order is no longer required learned counsel submitted that it may not be good ground for terminating a permanent employee but it is the good ground for terminating 'employment of an adhoc employee. Learned counsel submitted that adhoc employment is no employment in the eyes of law. In this regard he relied upon NLR 1999 Labour 56 and Ghulam Sarwar v. Province of Punjab 1982 SCMR 46. Regarding rules and regulations framed in pursuance of section 80, learned counsel submitted that the regulations are not statutory regulations. Regarding advertisement placed in the newspaper, learned counsel submitted that it gives an opportunity to the petitioners to compete on merits. Learned counsel referred to Para-19 of the comments to contend that the decision by the competent authority did not have support of law. Learned counsel further submitted that many of the petitioners are workmen and they have remedy of approaching the Labour Court. While concluding learned counsel submitted that if resolution of Governing Body is in accordance with the powers available under the law he has no objection if the petition is allowed.
6. We have considered the submissions made by the learned counsel and have also gone through the record as well as case-law cited at the bar.
7. The Provincial Employees Social Security Ordinance was promulgated by the Governor of West Pakistan on May 14th 1965. Section 2(14) defined the "Government" to mean the Federal or a Provincial Government. Section 3 of the Ordinance provided for establishment by notification of an institution to be called Employees Social Security Institution. In the Province of Sindh SESSI was consequently established. Subsection (2) of section 3 provides as under:--- "(2) The Institution shall be body corporate having perpetual succession and common seal, with power, subject to the provisions of this Ordinance, to acquire, hold and dispose of property, both movable and immovable, and shall by the aforesaid name sue and be sued."
8. Thus, the Institution is a body corporate and is therefore separate and distinct from the government which created it. Section 79 provided for the power to make rules and section 80 provided for the power to make regulations by the Governing Body of the Institution subject to the condition of previous publication, provided the regulations and not inconsistent with the provisions of this Ordinance or the rules. Clause (viii) of subsection (2) of section 80 states that such power would include "powers of the Governing Body to employ officers and staff for administration of the affairs of the institution". It is no one's case that any statutory regulations have been framed so far.
It has been held in Ghulam Hafeez v. Government of Sindh through Secretary, Labour Sindh and another, 1991 PLC (C.S.) 530, by the Division Bench of this Court as under:--- "At the very outset we would like to point out that this petition is not maintainable. Admittedly, the petitioner is not a civil servant nor he is governed by any statutory rules of service. The rules by which the petitioner is governed have been made by the Governing Body of the Sindh Employees'
Social Security Institution by virtue of powers vesting in it under section 80 of the Provincial Employees' Social Security Ordinance, 1965 (Ordinance X of 1965). Section 80 empowers the Governing Body, subject to the condition of previous publication by notification, to make regulations not inconsistent with the provisions of the said Ordinance or the Rules thereunder and clause (x) of subjection (2) thereof refers to the powers of the commissioner with regard to appointment, transfer, promotion, dismissal and other matters affecting the staff of the Institution.
Mr. Muhammad Aslam Butt has invited our attention to the regulations framed by the said Institution in 1976 and Regulation No, XI refers to the matters of termination of service after confirmation. Learned counsel has invited our attention to an office order dated 14-4-1975 whereby the Governing Body of the said Institution in its meeting held on 29-3-1975 approved the application of Sindh Civil Servants (Efficiency and Discipline) Rues, 1973 to the employees of the said Institution.
' It would thus be seen that the employees of the Institution, although they are governed by the Civil Servants (Efficiency & Discipline) Rules which have been adopted by its Governing Body, but notwithstanding the same, the rules under which the petitioner is governed in the matters of service and discipline cannot be equated with statutory rules. The rules have been framed/adopted by the Governing Body of the Institution under the powers vesting in it under section 80 of Ordinance X of 1965. Under such circumstances when there are no statutory rules governing the petitioner the present petition filed by the petitioner would not be maintainable."
Underlining added).
9. Though the situation might have been murky for a long time however, the Supreme Court of Pakistan in Pakistan International Airlines Corporation v. Tanweer-ur-Rehman and others PLD 2010 SC 676, has now finally and conclusively laid down that if there are no statutory rules, notwithstanding the fact that an organization is owned and controlled by the Government, and is therefore a person within contemplation of Article 199(5) of the Constitution of the Islamic Republic of Pakistan employee of such an organization would not, be able to maintain a Constitution petition, in respect of any matter arising out of terms and conditions of their respective employment. A Division Bench of this Court has held in the case of Nasiruddin Ghori v. Federation of Pakistan, 2010 PLC 323 that writ petition where there are no statutory rules would not be maintainable.
10. However, we may note that Mr. M.M. Aqil Awan, contended that many of the petitioners are workmen as defined in the Labour Laws and therefore they are entitled to approach the Labour Court in view of pronouncement by the Supreme Court in the case of Employees Old Age Benefits Institution v. N.I.R.C. And others 1988 SCMR 765 and in view of the pronouncement by a Single Judge of Lahore High Court in the case of Director Punjab Employees Social Security Institution v. Union of Social Security Employees 2002 PLC 705. Mr. Aqil Awan appears to be correct in arguing that as far as those petitioners who are workmen are concerned they have a remedy before the concerned Labour Court. Other can avail remedy of damages in accordance with the law.
11. In view of the above conclusion, we do not think it would not be necessary to refer to other submissions made by the learned counsel.
12. Result of the above discussion is that these Constitution Petitions are dismissed in limine. Listed applications are disposed of.