' SHAHID ANWAR BAJWA, J.--- With the consent of the learned counsel this Constitution Petition was finally heard at Katcha Peshi stage and is being decided accordingly.
2. Facts leading to this petition, are that the petitioners were appointed by the Defence Housing Authority for working in various mosques of DHA on various positions. On 6-2-2009 an Option Form was circulated. In the form it was stated that DHA is a development institution and it has been, for quite some time under the department of Religious Affairs, managing various mosques situated in DHA and has been bearing expenditure in this regard. It was further stated that higher authorities had decided that the management of the mosques be handed over to local mosque committees.
As a consequence of this decision the department of Religious Affairs and all its posts have been abolished, employees were given two options and it was left to them to choose one of them: Option No,1
(1) Employees may go to relevant Mosque Committee and the Mosque Committee shall be responsible for payment of salaries to the employees.
(2) However, if an employee completes necessary service for allotment of DHA plot in accordance with the plot policy, he shall be entitled to allotment of plot on his turn.
(3) Till retirement residential accommodation shall be allowed to be retained by such an employee.
' Employees resigned from DHA because the department and all the related posts were abolished.
In this regard following procedure would be adopted:---
(a) Final settlement of accounts should take place in accordance with the DHA rules.
(b) If the employee has completed all conditions for allotment of DHA plot, he shall be allotted a plot in accordance with the procedure on his turn.
(c) He would be allowed to keep residential accommodation for one month.
(d) One month's salary in lieu of period of notice would be paid.
3. It is stated that all the petitioners exercised their option in favour of option No,1 and it is claimed in the petition that this was done on account of coercion etc. On part of the departmental authorities. Consequently they filed this Constitution Petition with the following prayers:--- "(i) Declare that the impugned Order dated 6-2-2009 passed by the respondent is illegal, improper, violative of principles of natural justice, without jurisdiction, therefore, not sustainable at law;
(ii) To cancel/call back the Order dated 6-2-2009 and allow the petitioners to perform their jobs/duties on permanent basis.
(iii) Issue direction to withdraw the letter dated 6-2-2009 which was forcibly signed by the petitioners.
(iv) To issue directions not to change the status of services of the petitioners as per rules and regulations of DHA appointments terms and conditions.
(v) Reinstate in service the petitioners as a regular/permanent employee of DHA, with all consequential back benefits since after the date of Letter/Order i.e, 6-2-2009 including the payment of bonus and other benefits for which they are entitled.
(vi) Restrain the respondents, from taking any retaliatory and vindictive action against the petitioners, after their reinstatement, except in accordance with law."
4. Learned counsel for the petitioners filed a statement on behalf of the petitioners and he referred to a letter dated September 8, 2009 written by Additional Director (Estate and Coordination). In this letter after referring to Para No,16 and 17 of the agreement between DHA and Masjid Committees, it was stated as under:--- "(1) It has been observed by the competent authority that Masjid Committees are not following the terms and conditions of contract signed between DHA and Masjid Committees. According to Rules 16 & 17 of the said agreement no DHA employee will be terminated from service without obtaining the written consent of DHA. Masjid Committees will follow the procedure of giving warnings and show cause notices before processing the case to DHA. All disciplinary cases will be referred to DHA with recommendations of Committees for final decision. Please ensure that terms of agreement be followed in true letter and spirit in future to avoid any inconvenience at later stage."
' The said Paras 16 and 17 read as under:--- "(16) If it is intended to change a member of staff, all the members of the Mosque Committee after consultation shall obtain a written consent from DHA.
(17) Imam Masjid and Khadim shall be returned in accordance with the DHA Rules. Personal staff shall not be transferred/changed for one year. "
5. Contention of the learned counsel was that under letter dated September 8, 2009 since the consent for termination has been retained by DHA the persons are still employees of DHA. Learned counsel referred to a judgment of the Supreme Court in Abdul Hameed Anjum and others v.
Federation of Pakistan and others PLD 2010 SC 857 and specifically to the following observations:-- - "(39) The relationship of the State and its government with its employees is distinct from the relationship of an ordinary commercial employer and employee. State and the Government, in all their powers, functions, operations and obligations, act through their employees who thus partake the functional and performance characteristics and idiosyncrasies of the State and the Government. The Government and its employees in all their acts, performances and conduct have to be serious, committed and responsible and also in the acts that regulate their inter-se relationship. State and the Government has to be forthright, meaningful, protective and loyal to its employees who in return are obligated to be absolutely committed, faithful, sincere, loyal, honest, diligent and dutiful to their employer. Absence of these elements will erode the foundational qualities of the employer and employee relationship. The promises, representations and commitments made by the State and its Government are always meaningful, serious, credible, responsible, solemn and somber which correspondingly are so received by its employees in particular and the citizens in general. Such representations, promise, commitments and assurances cannot be pretextual, meaningless, non-serious, non-committal, fraudulent or purposeless. Otherwise to say the least it may shake the credence and confidence in the State structure, functioning of the Government, its institutions and its manpower. In the same stride, it will be beneficial to quote three lines from observations of this Court made in the case of Dr. Naveeda Tufail and 72 others v. Government of Punjab and others 2003 SCM R 291:--- "The appointments in the public sector is trust in the hands of public authorities and it is their legal and moral duty to discharge their function as trustee with complete transparency as per requirement of law".
(46) Ordinarily transfer and deputation to another department are normal exigencies of the service and thus may relate to the area of terms and conditions of civil servant. The case in hand was not a case of routine transfer or ordinary deputation of a civil servant from his parent department to another department. If was also not a case of induction or absorption simpliciter.
This was a case of structural expansion of CBR's Income Tax Group. It was in the nature of reorganization for which services of these officers were solicited for the efficient administration of Income Tax Administration and to meet the deficiency of professional man power in CBR. As above recorded CBR and Establishment Division brought these qualified officers enblock from other Occupational Groups initially on deputation without a time line and with a clear and unequivocal promise of the likely-hood of their consideration for induction in the Income Tax Group. This representation was time and again endorsed by CBR as well as the Establishment Division who never acted against the same till the decision of their induction was made by the CBR. Till such induction in the Income Tax Group they remained in a fluid, uncertain and ambiguous position.
They legitimately sought their service identity, status, character and position. CBR finally owned them through decision dated 21-7-2000 but failed to enforce the decision by issuing the requisite notifications."
6. While concluding the learned counsel submitted that in the petition he has not challenged any terms and conditions of employment. He in fact is seeking his identity, clarification of his status and establishment of his character.
7. Mr. Khalid Jawaid, learned counsel for DHA firstly submitted that DHA does not have any statutory rules of service and therefore this Constitution Petition is not maintainable. In this regard learned counsel relied upon Pakistan International Airlines Corporation v. Tanweer-ur-Rehman PLD 2010 SC
676. Learned counsel also submitted that there are a number mosques in DHA and now control of the mosques which was constructed/managed by DHA is gradually given to the Local Masjid Committees. Learned counsel further submitted that the employees had exercised their option willingly and voluntarily and now it is not available to them to contend that there are employees of DHA. Regarding Paras 16 and 17 learned counsel submitted that though the petitioner have ceased to be employees of DHA, for two purposes specified in the Option Form they are entitled to benefits allowed to DHA employees and it is for these purposes that provision has been made in the contract between the relevant Mosque Committee and DHA. Mr. Ashiq Raza, D.A.-G. Supported the contentions of Mr. Khalid Jaw aid.
9.(sic) We have considered the submissions made by the learned counsel and have also gone through the record. The prayers made in this petition have been reproduced above. The first three prayers are regarding declaration, cancellation and withdrawal of letter dated 6-2-2009. It may be pointed out that under this letter petitioners exercised their option. Once having exercised their option under letter dated 6-2-2009, and no material has been placed before us that any coercion was resorted to. (The record indicates that the consent was given by the petitioners between 13-2- 2009 to 19-2-2009. None of them approached this Court before exercising his option claiming that he is being forced to coerce to exercise his option. Once they have exercised their option it is not available to them to resile away from their options which options has been acted upon. Since there are no statutory rules in DHA no such direction, declaration, cancellation or withdrawal can be ordered in exercise of Constitutional jurisdiction.
10. The moot question is whether after exercise of such option petitioners are still employees of DHA or not. The Option Form must be read as whole. It is clearly stated in opening part that all the posts are being abolished. Therefore, posts do not exist anymore. It is in the light of this statement that whole document is to be read. Once the posts have been abolished absolutely, employees employment came to an end. I" However, only for two purposes (allotment of plot and continuing in residential accommodation a sort of link is still being maintained but since administrative and remunerative control is with the Masjid Committees, it does not amount to relationship of employer and employee between DHA and the petitioners). Since the petitioners were informed that they shall get the two benefits like other employees of DHA, DHA has taken steps to ensure that employment of the petitioners is not terminated by the relevant Mosque Committee without following due process and without valid reasons. Reliance on Abdul Hameed Anjum's case (supra) is of no help to the case of the petitioners. Appellants in the reported case were sent on deputation by transfer to Income Tax Department under a policy decision and they continued in the Income Tax Department for 16 years. In 2000, CBR decided to induct them in the Income Tax Department and therefore each of them was made a written offer which was accepted by them and thus, they became a part of Income Tax Department and stood absorbed therein. However notification was not issued by the Establishment Division. High Court observed that matter related to terms and conditions of employment. It was in this context that the matter went to the Supreme Court and the observation quoted above were made. The facts are really quite distinguishable.
11. The stand taken by the learned counsel for the petitioners is quite contradictory. On the other hand he claims that petitioners are still employees of DHA and on the other hand it is prayed in the petition that they be re-instated in the. Service of DHA as regular/permanent employees with back benefits. It indicates that the posts were abolished and it is very clear in their minds that by exercising their options their employment with DHA has come to an end and they have lost all links and connections with DHA except for the benefits specifically stated in the Option Form.
12. Result of the above discussion is that this Constitution Petition is devoid of any merits and is consequently dismissed in limine. Listed applications are also disposed of.