' SHAHID ANWAR BAJWA, J:--- Petitioner No,1 is an association of officers of respondent No,1 and petitioners Nos.2 and 3 are employees of respondent No,l. Petitioner No,2 was transferred from Karachi to Peshawar and petitioner No,3 was transferred from Islamabad to Karachi. Petitioner No,2 claims to be Secretary General of petitioner No,1 and petitioner No,3 claims to be an active member of petitioner No,l. When flood relief fund was established a letter was issued by the Ministry of Labour and Manpower, Government of Pakistan on August 12, 2010. It was stated in that letter as under:- "2. It has been desired by the Secretary, Labour and Manpower that all officials in BS-1 to 16 working in the Ministry and the Departments/Organizations under its administrative control may also like to contribute their one day salary voluntarily towards the 'Prime Minister's Flood Relief Fund 2010'. Furthermore, any additional contribution by the officers/ officials in the Fund would also be appreciated."
2. Pursuant to this letter Office Order No,162/2010 was issued by the respondent No,1 on August 17, 2010 which prescribed that employees will contribute at the rate stated in the letter to the Flood Relief Fund of the establishment. Number of employees submitted in writing that though they were prepared to contribute to the Prime Minister's Flood Relief Fund but they will not contribute to Flood Relief Fund established by the respondent Institution. More than 150 such requests by the employees have been enclosed with petition. It is contended by the petitioners in the petition that such coordinated action by the petitioners under the aegis of petitioner No,1 was not to the liking of the management. Moreover, petitioner No,1 had taken up questions of management relating to the illegal appointments, investment of pension fund in non-permissible avenues and punitive transfers of active member of the Institution. As some of the employees approached Peshawar High Court in respect of illegal appointments, and those who approached Peshawar High Court were immediately transferred. This Constitutional Petition has been filed and the following reliefs have been claimed:--- A prohibiting injunction restraining respondents and/or servants, employees, officers, successors, representatives or any other persona(s) acting under their control or under their behalf to implement the Office Order No,283 dated 26-11-2010 in any manner.
' Declare that Punitive Transfers vide Office Order No,283/2010 dated 26th November, 2010 and Office Order No,200/2010 dated 27th September, 2010 are illegal, arbitrary, mala fide, violative of undamental rights and of no legal effect.
(ii) Mandatory injunction against the respondents above-named especially respondents Nos.2 and 3 and other High-ups of the respondents No,1 directing them to stop forcing the officials/members of the petitioner to take part in any unlawful and unauthorized activities and any unlawful action against the above- named petitioner's officials and members.
(iii) Mandatory Compensation for violation of the fundamental rights of the petitioner.
3. Learned counsel for petitioners was asked to explain as to whether respondent .No,1 Institution has statutory rules of service or not. Learned counsel frankly conceded that the service rules of the respondent Institution are not statutory. This was also contention of Mr. Imtiaz Ali Shah learned counsel for respondents, who in this regard relied upon Raja Faizul Hassan Faiz and 6 others v.
Federation of Pakistan through Secretary to the Government, Finance Division, Islamabad and another (1999 PLC 11). However, learned counsel for petitioners submitted that the actions of transfer are mala fide and, therefore, constitutional petition would be maintainable. He submitted that though petitioners can be transferred anywhere but if action is mala fide this Court in exercise of constitutional jurisdiction can undo such acts of transfer. Learned counsel relied upon The State v. Zia-ur-Rehman and others (PLD 1973 SC 49), The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmed Khan and others (PLD 1974 SC 151), Khawaja Ahmed Hassaan v. Government of Punjab and others (2005 SCMR 186), Pakistan International Airlines Corporation through Chairman and others v. Samina Masood and others (PLD 2005 SC 831) and Civil Aviation Authority, Islamabad and others v. Union of Civil Aviation Employees and another (PLD 1997 SC 781). Learned counsel further submitted that judgment of the Supreme Court in Pakistan International Airlines Corporation v. Tanweer-ur- Rehman (PLD 2010 SC 676) has not undone judgment of this Court in the case of Muhammad Dawood and others v. Federation of Pakistan and others 2007 PLC (C.S.) 1046.
4. Mr. Imtiaz Ali Shah learned counsel for respondents Institution argued that rules of the Institution are not Statutory Rules and, therefore, writ petition is not maintainable and he relief(?) upon Tanweer-urRehman's case (supra) as well as Nasiruddin Ghori v. Federation of Pakistan through Secretary and 4 others (2010 PLC 323).
5. We have considered submissions made by the learned counsel for the parties and have also gone through the record as well as case-law cited at the bar.
6. Petitioner No,1 is an association of officers of respondent No, 1 and the reliefs prayed for are not in respect of any of the rights of the association but rights of individual employees. Whether an association can maintain petition in respect of rights of its individual members is a question which was extensively considered by another Division Bench of this Court of which one of us (Shahid.
Anwar Bajwa J) was a member in Messrs Mutual Funds Association of Pakistan (MUFAP) v.
Federation of Pakistan through Secretary, Ministry of Finance, Government of Pakistan and another (2010 PLC 306) and it was held as under:--- "10. In Pakistan Steel Re-rolling Mills Association v. Province of West Pakistan, 1964 PLC 121, it was argued by the respondent that petitioner being an association of Re-rolling Industry is not an aggrieved person for the purpose of Articles 98 of the Constitution of 1962 (corresponding to Article 199 of the Constitution of 1973). The subject-matter was that certain notification for declaration of minimum wages was made and the association challenged this notification.
Division Bench of the West Pakistan High Court which was seized of the matter held as under:-- "It was said that the association is an "aggrieved party" because it enjoys a consultative status for operating the Ordinance, and that the grievance made in the petition is that in the process of setting up , of the minimum Wages Board and the recommendations made by the Board, there has been a departure from the provisions of the Ordinance. An added strength was given to this contention by the fact that there was no other association representing the Steel Mills Owners and that the petitioner-Association was a registered body under the Trade Organization Ordinance of 1961. We consider that none of these considerations confers on the association the character of an aggrieved party within the meaning of Article 98 of the Constitution, as the grievance complained of must in its effect entail a direct injury to the petitioner to make it an aggrieved party, and the injury has to be co-related to the relief sought in the petition to avoid that injury."
11. In Democratic Workers' Union C.B.A. v. State Bank of Pakistan, 2002 PLC (C. S.) 614, the petitioner was a Collective Bargaining Agent and it filed petition seeking prayer for formulation of recruitment policy and also against appointment of certain persons. Division Bench held that the petitioner being a Collective Bargaining Agent could not claim locus standi to invoke jurisdiction of this Court under Article 199 of the Constitution, for the alleged violation of statutory or fundamental rights of its members. It may be pointed out that this was rendered in the presence of prOvisions contained in section 22(12)(b) of the I.R.O. 1969 which entitled a CBA Union to represent workman in any proceedings. The Bench was fully conscious and noted Sindh Alcali's case 1992 SCMR 32 wherein it was held that such proceedings must be at the instance of the individual workman concerned.
12. In Province of Balochistan through Secretary Excise and Taxation Department, Civil Secretariat, Quetta and 2 others v. Murree Brewery Company Ltd. Through Secretary PLD 2007 SC 386, a notification issued by the Provincial Excise Department imposing new duties/fees on distributors of alcoholic beverages was challenged. The petitioner was manufacturer of such alcoholic beverages. It was contended that the permit fee was imposed not on the manufacturer but on its distributors and therefore it is not the manufacturer who can be considered to be an aggrieved person for the purpose of maintaining Constitutional Petition. The Supreme Court after referring to a number of cases from Pakistan as well as from Indian jurisdiction held that even if imposition of the fee made products of the petitioner more expensive, the petitioner was not an aggrieved person within contemplation of Article 199 of the Constitution of Islamic Republic of Pakistan.
13. In Muntizma Committee, Al-Mustfa Colony (Regd.) Karachi and 3 others v. Director Katchi Abadies Sindh and 5 others PLD 1992 Kar.
54. It was held as under:- `In the instant case, the persons who will be affected by the allotment of the land comprised in 3- 1/2 acres are the residents occupying the same or inhabitants of Abbas Town, secondly 3-1/2 acres land was not reserved for playground, Eidgah, hospital, maternity home and school for the residents of the Town but surely not the petitioner No,
1. The petitioner No,1 has no legal right and therefore is no question of the infringement of a legal right. The petitioner No,1 has no interest in 3- 1/2 acres land and is not, therefore, an aggrieved person."
14. Apart from the above, there is another reason that the petitioner cannot be held to be entitled to maintain a petition in respect of its members. Whatever is the decision passed in this petition, how can it be held, and binding upon, against persons who are not party to this petition. Suppose tomorrow a member of this association comes with a similar petition and when he is shown decision of this petition what is there to stop him from saying that he was not a parry in this petition and therefore how could order made in this petition be valid against such a member. In order to constitute res judicata it is essential that order be made between the same parties. Mere fact that one of the objects as contained in the Memorandum of Association of the petitioner is promoting etc., interest of its members is not sufficient to put the petitioner in the shoes of its members and hold him entitled to maintain petition in respect of a cause which could conceivably cause grievance to its members. Therefore, we hold that petitioner is not an aggrieved person in respect of applicability of the amendment introduced in the Workers' Welfare Fund Ordinance, 1971 by Finance Act, 2008 to its members and therefore, is not entitled to maintain this petition in respect of grievance, if any and whatsoever they. May be, of any of its members."
7. Therefore, as far as petitioner No,1 is concerned, it is not entitled to maintain this petition, in any case.
8. It has been frankly conceded by the learned counsel for the petitioners that respondent Institution does not have Statutory Rules of Service. However, his contention was that even if there are no statutory rules of service writ petition would be maintainable if action taken by the departmental authority is a mala fide one. Learned counsel in this regard relied upon Zia-ur- Rehman's case (supra). In this case an elected member of National Assembly was being tried by Military Court. He applied for bail and Single Judge of High Court granted him interim bail and referred matter to, the Chief Justice for constituting a Larger Bench. A Full Bench of the High Court stayed proceedings before the Military Court as interim relief. The honourable Supreme Court suspended the order of High Court on an undertaking given by the Advocate-General that no final order would be passed by the Military Court. Said sitting MNA was thereafter arrested for making an objectionable speech and tried before Military Court which convicted and sentenced him. Validity of this conviction was challenged by him in the High Court. High Court in a miscellaneous application suspended sentence passed by the Military Court. This order was challenged before the Supreme Court and the Supreme Court suspended operation of the interim order of the High Court. Subsequently, the writ petition was allowed by the High Court. Matter was taken to the Supreme Court. It was in this context of facts that an elaborate judgment was delivered by the Supreme Court and the Supreme Court observed that act done mala fide is an act without jurisdiction. Question of employer and employees interface, question of non-existence of statutory rules and rights to maintain or not maintain constitutional petition in such matters as are in the present lis were not all in issue before the Supreme Court. In Saeed Ahmed Khan's case (supra) certain actions under the Martial Law Regulations Nos.58 of 1969 and 114 of 1972 was challenged and it was contention of the Government that High Court did not have jurisdiction to entertain petitions challenging an order passed under Martial Law Regulation and it was held that orders which are corum non judice and mala fide can be scrutinized notwithstanding a provision ousting jurisdiction. In Khawaja Ahmed Hassaan's case (supra) the matter related to certain Nazims against whom no confidence motion had been passed. In Samina Masood's case (supra) What was under challenge was not an order passed by a departmental authority but provision of a non- statutory rule which was held to be violative of Article 25 of the Constitution of the Islamic Republic of Pakistan. In Civil Aviation Authority's case (supra) the question was right to form Trade Union under Article 17 of the Constitution in an organization to which the Industrial Relations Ordinance, 1969 is not applicable. In all these cases the question before the Court did not relate to terms and conditions of employment and grievance of employees arising there out of. In Tanweer-ur- Rehman's case (supra) which was the case where a number of employees had been removed, from employments, a much more severe action than action of transfer, and it was alleged that they were removed from the employments in violation of principles of natural justice and for mala fide reason, the Supreme Court observed as under:--- "19. However, this question needs no further discussion in view of the fact that we are not of the opinion that "if a corporation is discharging its functions in connection with the affairs of the Federation, the aggrieved persons can approach the High Court by invoking its constitutional jurisdiction, as observed hereinabove. But as far as the cases of the employees, regarding their individual grievances, are concerned, they are to be decided on their own merits namely that if any adverse action has been taken by the employer in violation of the statutory rules, only then such action should be amenable to the writ jurisdiction. However, if such action has no backing of the statutory rules, they the principle of Master and Servant would be applicable, and such employees have to seek remedy permissible before the Court of competent jurisdiction.
25. Thus, in view of discussion made hereinabove, we are persuaded to hold that although the appellant-Corporation is performing functions in connection with the affairs of the Federation but since the services of the respondent-employees are governed by the contract executed between both the parties, as is evident from the facts narrated hereinabove, and not by the statutory rules framed under section 30 of the Act, 1956 with the prior approval of the Federal Government, therefore, they will be governed by the principle of Master and Servant."
9. This judgment of the Supreme Court was followed in the judgment by a Division Bench of this Court Nasiruddin Ghori's case (supra) which judgment has now been upheld by the Supreme Court in Pakistan Telecommunication Co. Ltd. v. Iqbal Nasir and others (PLD 2011 SC 132). Therefore, since respondent Institution does not have Statutory Rules writ petition is not maintainable before this Court D and it is only appropriate forum which can scrutinize whether action taken by the departmental authority is in accordance with law or not.
10. Before concluding his argument learned counsel referred to Muhammad Dawood's case (supra) and submitted that judgment in Muhammad Dawood's case has not been undone by the judgment in Tanweer-ur-Rehman's case. It may be pointed out that all the petitions in Tanweer-ur- Rehman's case were held maintainable by this Court in view of dicta of Muhammad Dawood's case and, therefore, in our opinion, to the extent that it was held in Muhammad Dawood's case that writ petition would be maintainable even in absence of statutory rules, the matters are now regulated by subsequent judgment of the Supreme Court in Tanweer-ur-Rehman's case (supra).
Consequently, this petition is dismissed in limine as not maintainable. However, petitioners shall be at liberty to invoke such remedy as may be available to them in accordance with the law. in limine.