' CH. MUHAMMAD IBRAHIM ZIA, J.--- Through this appeal with leave of the Court a judgment passed by the High Court on 23-12-2009 is challenged whereby writ petition filed by the appellant was dismissed.
2. Brief summary of the case is that an umbrella PC-I costing Rs,21,356.50 million was prepared and approved by the Earthquake Reconstruction and Rehabilitation Authority (to be referred as ERRA hereinafter). A post of Deputy Director (Legal) with monthly salary package of Rs,1,20,000 was created in the Project Management. Later on in February, 2008 in continuation of this umbrella PC-I, a regular PC-I (Annexure "PD") costing Rs,182.314 million was drawn and approved wherein the salary of Deputy Director (Legal) was fixed as Rs,80,000 per month. The post of Deputy Director (Legal) along with other posts was advertised on 7-8-2007 and after conducting interview appellant was recommended for appointment on 13-11-2007. However, for one reason or the other, appointment order of appellant was not issued. The appellant filed a writ petition on 6-5-2008, during pendency of which, on 23-6-2008, appointment order was issued and writ petition was disposed of vide order dated 3-9-2009. This appointment order consists of following conditions:---
(1) The Salary Package will be as per approved PC-I for IA PMU-MCDP.
(2) The appointee will be on probation for a period of six months from the date of joining.
(3) The appointment will be on contract basis for project duration.
(4) The services of the contract employee are liable to termination on one month's notice from either side or one month's pay in lieu thereof."
3. The appellant by accepting the above-referred conditions submitted joining report. Later on regular PC-I costing Rs,182.314 million was revised and the cost was cut down to Rs,92.22 million.
This revised PC-I is also prepared and approved by the same authorities, who prepared and approved the previous two PC-I. In furtherance of revised PC-I a memorandum of understanding was approved. It appears that due to downsizing of financial volume of PC-I and other administrative decisions the post of Deputy Director (Legal) was abolished, which constrained the appellant to file writ petition on 23-4-2009 in the High Court. This writ petition was later on amended. The prayer clause of the amended writ petition is as follows:--- "Prayer: ' In view of the above, it is most humbly prayed on behalf of the petitioner that following writs may very kindly be issued;
(i) Non-petitioners jointly and severally be directed not to abolish the post of Deputy Director (Legal) and not to terminate service of petitioner till completion of Muzaffarabad City Development project,
(ii) Non-petitioners be directed to let the petitioner perform his duties as Deputy Director (Legal) and be restrained to appoint Director/Deputy Director Admin in place of the petitioner,
(iii) Non-petitioner jointly and severally be directed to pay salary @ Rs,1,20,000 per month to the petitioner from his date of joining i.e, 24-6-2008,
(iv) That the respondent No,6 may kindly be restrained from acting in ultra vires of the Rules namely "The Rules for Planning and Implementation of Reconstruction and Rehabilitation Projects in the Earthquake Affected Areas" and the respondents 1 to 5 may kindly be directed to perform functions in accordance with the aforementioned Rules so as to smoothly implement the Muzaffarabad City Development Project in accordance with the policies of the competent authority and it may kindly be directed that the "Project funds" shall not be allowed to be disbursed by respondent No,6,
(v) Any other or alternate relief to which the petitioner is found entitled is also prayed for including cost."
' The respondents submitted amended written statement on 28-7-2009 and the appellant filed replication on 16-9-2009. The controversial points emerged from the pleadings of the parties before the learned High Court were that;
(i) Whether the respondents jointly and severally cannot abolish the post of Deputy Director (Legal) and consequently services of the appellant cannot be terminated,
(ii) Whether respondents cannot appoint Deputy Director (Admin.) in place of the appellant by abolishing the post of Deputy Director (Legal).
(iii) Whether the appellant-petitioner is entitled to get Rs, 1,20,000 per month salary package, and;
(iv) Whether writ of prohibition can be issued against respondent No,6.
The learned High Court after hearing the parties, finding no force dismissed the writ petition through the impugned order.
4. The learned Judge (Mr. Justice Kh. Shahad Ahmed) in leave granting order dated 18-3-2010 directed the office to complete the file within shortest period of time and also gave seven days' time to the parties for filing concise statements, hence this case has quickly ripened for arguments.
5. Raja Muhammad Hanif Khan, the learned Advocate for the appellant, during the course of arguments narrated detailed facts of the case as incorporated in the memorandum of appeal and forcefully argued that the post of Deputy Director (Legal) was created in regular PC-I. According to it lump sum salary package of Rs,1,20.000 was given and the respondents cannot change or cut down the amount of salary arbitrarily. He further argued that the process of abolition of post of Deputy Director (Legal) is without lawful authority because revised PC-I in which the post of Deputy Director (Legal) is abolished, is not prepared and approved by the competent authority. Therefore, whole process of abolition of post is illegal and of no legal effect. The acts of abolition of the post of Deputy Director (Legal) and termination of the appellant's services are invalid. He argued that the whole action is an outcome of personal malice of respondent No,6 His version is that the High Court has fell in error of law as well as facts and wrongly dismissed the writ petition, therefore, this appeal merits acceptance.
6. Syed Nazir Hussain Shah Kazmi, the learned advocate for respondent No,6, while controverting the arguments of the appellant forcefully defended the impugned judgment on the ground that according to the appellant's own contention his appointment was on contract basis and no writ lies for enforcement of contractual obligations. The appellant has prayed for enforcement of contractual obligations including salary, which cannot be entertained in writ jurisdiction. He further argued that the appellant is estopped by his conduct because he has accepted the terms and conditions of contract including salary of Rs,80,000 per month and this fact has also been admitted by him in his replication. He further submitted that according to the changed scenario and financial crunches, which arc beyond the control of ERRA and even the Government of Pakistan, because the projects are internationally funded and funds are not available, the respondents were constrained to revise PC-I. He also contended that in the memorandum of understanding and working-plan of ERRA with other agencies in Azad Jammu and Kashmir, it is decided that the matters of land acquisition, which were earlier in the domain of ERRA, and for the purpose the post of Deputy Director (Legal) was created, now under the changed circumstances, all these matters have been delegated to the Azad Jammu and Kashmir Government, therefore, for ERRA establishment there remains no necessity of Deputy Director (Legal). This policy is not only for MCDP rather it is equally applied for Bagh and Rawalakot Development Projects. Therefore, neither any violation of law is committed nor the appellant has been metted out any discriminatory treatment, hence writ is dismissed rightly and this appeal is also not maintainable.
7. Raja Muhammad Hanif Khan, the learned advocate for the appellant, in rebuttal has objected the appearance of the learned advocate for respondent No,6 on the ground that without proper sanction under the Law Department Manual, he cannot plead the case.
8. After hearing the learned advocates for the parties and going through the record of the case, it transpires that the post of Deputy Director (Legal) was initially established in PC-I, prepared in furtherance of umbrella PC-I and under changed scenario in revised Pa-I this post has been abolished.
9. It is pleaded that initially the salary of the post of Deputy Director (Legal) was fixed as Rs,1,20,000 per month. The appellant was appointed after interview, who joined the service without any reservation or objection, which proves that he had accepted terms and conditions of appointment order, reproduced hereinabove, ' The conditions of the appointment order do not mention any amount of monthly salary but refers that the salary package will be as per approved PC-I for PMU-MCDP. The appellant has brought on record the regular PC-1 costing Rs,182.314 million, (Annexure "PD"), which was prepared in. February 2008 in which salary package for the post of Deputy Director (Legal) is Rs,80,000 per month. This document is relied and brought on the record by the appellant himself, which proves that at the time of his appointment dated 23.6.2008 salary package in PC-I was Rs,80,000 per month. The conduct of the appellant is self-speaking proof of this fact that he has accepted the conditions by placing on record of this Court Annexures "PN/1" to "PN/3", his salary bills @ Rs,80,000 per month. He has also stated in his replication that he has been paid monthly salary as per agreed contract. The relevant part of the replication is as under:--- "Furthermore, the petitioner was paid the monthly salary as per agreed contract, copies of which is Annexures "PN/1" to "PN/3" are also appended herewith for kind perusal of the honourable Court."
' In presence of this admission of the appellant and his conduct, there remains no legal dispute regarding amount of salary.
10. The other important point raised is in relation to the abolition of post. The appellant's grievance is that revised PC-I, through which post of Deputy Director (Legal) is abolished, is not prepared and approved by the competent authority, therefore, whole process of revised PC-I is illegal and of no legal effect. In this perspective when we perused the documents brought on record by the appellant, the umbrella PC-I (Annexure "PC") and regular PC-I prepared in furtherance of umbrella PC I (Annexure "PD"), revised PC-I (Annexure "PK/7") and approval of the revised PC-I (Annexure PK/6"), these documents depict that all of them are prepared, checked and approved by the same authorities working under the same law. We are, therefore, unable to agree with the argument of the appellant that PC-I, which creates post is valid and at the same time revised PC-I, prepared, checked and revised by the same authorities, is invalid. Law doesn't allow any person to blow hot and cold in one breath. PC-I which favours the appellant is valid and revised PC-I is invalid because it is not beneficial for him. Such stance has no legal substance or value. It is also useful to reproduce the findings of the learned High Court on this point, which are as under:--- "...In the present case, in view of the stand of the respondents, the post of the petitioner has to be abolished in view of the revised scheme. No doubt that creation and abolition of the post is an administrative business and is in the sole discretion of the Government or semi autonomous bodies as has been held in Muhammad Sabir's case 2007 SCR 243. Their lordships in the apex Court of Azad Jammu and Kashmir at page 246 of the report held that "creation or abolition of a post is a sole prerogative of the Government as creation or abolition of the post under the Government is an essential ingredient of the State powers also known as the executive authority of the State which is exercised to run the affairs of the State. This power is neither controlled nor abridged by any legal or constitutional provision. We also own the finding of the Supreme Court and hold that it is only the Government and nobody else who has the power to transfer, create or abolish a post which stems from the executive authority of the State."
11. The appellant has also failed to point out any violation of law. The assertion of the appellant that he has been appointed under the Government notification, therefore, his services cannot be terminated, is also devoid of any force, as it has already been recorded that his appointment was on contract and his services are liable to be terminated on one month's notice or one month's pay in lieu thereof. It means that the appellant was not holding a post on permanent basis or appointed on regular basis; therefore, he cannot claim retention in office.
12. The argument that law doesn't provide for termination of his services, is also not supported by law. The Regulations 10 to 12 of "The ERRA Employees' Service Regulations, 2007", which deal with appointment on contract basis, are: "Appointment on contract
10. The Departmental Selection Committee constituted by the Deputy Chairman, will consider the cases of appointments on contract basis to various posts and make recommendations for approval of the competent appointing authority.
11. Appointment on contract may be made on specific terms and conditions clearly laid down in the offer letter duly accepted by the person so appointed. Such employees shall not be entitled to any benefit specified under these Regulations, unless mentioned in their contract for appointment.
12. The service of the contract employees shall be liable to termination on one month prior written notice by either side. However it can be terminated without prior notice in case of the abolition of the post." (Underlining is ours)
' Rule 12 clearly empowers the authority to terminate service of contract employee on one month's notice or in case of abolition of post without prior notice. The rules on the subject lucidly speak that retention of contract employees is subject to availability of post and necessity of the employer. If employer no more requires services of contract employee, he can terminate services on one month's notice. This condition is specifically mentioned in the appointment order of the appellant.
The appellant has not objected the imposition of this condition, rather he has accepted it, therefore, it is abundantly clear that after acceptance of terms of contract one is not allowed to deny the same. The appellant has, therefore, failed to make out any case to bring his grievance within the scope of extraordinary writ jurisdiction. The learned High Court has rightly observed that contractual obligations cannot be enforced in exercise of writ jurisdiction.
13. The main argument of the appellant is that abolition of the post is an outcome of malice, therefore, all subsequent acts are unwarranted. We are afraid to agree with the argument of the appellant because mala fide or malice is intention behind individual acts but mere mala fide in isolation is no ground for issuance of writ petition unless a case of violation of law is made out.
Moreover in this case argument of the appellant is also not considerable because he blames respondent No,6 for mala fide acts, whereas the post is abolished in the revise PC-I, which is approved by the Deputy Chairman ERRA, who has approved earlier one. The Deputy Chairman ERRA is neither party in the proceedings nor any mala fide is attributed to him, therefore, mere allegation of malice against respondent has no substance.
14. The appellant's contention that he should be retained in service till completion of Project is also devoid of force because the contract of appointment is to be interpreted as a whole, not on the basis of a condition in isolation. It has been discussed hereinabove that perusal of appointment order and rules makes it clear that employer is vested with powers of abolition of posts and termination of services of contract employee. The law, therefore, doesn't favour issuance of prayed writ in peculiar circumstances of this case.
15. Another prayer is made that a writ of prohibition may also be issued to restrain respondent No,6 from acting in ultra vires of rules for planning and implementation of reconstruction and rehabilitation in the earthquake affected areas. Such directions without having any legal cause of action, a locus standi cannot be issued in vacuum. The appellant has not brought on record any specific violation of rules. Moreover in light of peculiar facts of this case such remedy is not available to the appellant. It has been observed by the learned single Judge of the High Court as under:--- ..The implementation of the master plan is a sad tale of a city and reconstruction of Muzaffarabad, Rawalakot and Bagh has been delayed for one reason or the other. Be that as it may this Court cannot embark upon the administrative decisions. It is for the political dignities to supervise and manage the approved schemes. The public representatives are supposed to watch the public interest. The question of revising PC-I has been challenged on the jurisdictional competence, also relates to the policy matter of ERRA/Government of Azad Jammu and Kashmir. The petitioner, in my estimation, is not aggrieved to this extent...."
' These observations of the learned Judge of the High Court are well-reasoned. We are in full agreement.
16. The principles of law laid down in the cases reported as 1992 SCR 381, PLD 2004 SC (AJ&K) 30, 2007 SCR 243 and PLD 1998 SC (AJ&K) 7 are rightly applied by the learned High Court. We do not find any legal infirmity in the impugned judgment.
17. The objection of the learned advocate for the appellant that the counsel for the respondents is not legally authorised to plead the case without sanction under the provisions of Azad Jammu and Kashmir Law Department Manual, is not acceptable because respondents have filed written statement before the High Court with proper sanction of the Law Department. Moreover respondent No,6 being Project Director, MCDP, is not bound for any sanction under Law Department Manual. He is holding an assignment of Project Director in MCDP, controlled by the ERRPA, which is a legal entity and under section 3 of the ERRA Ordinance the Authority in its name can sue and be sued, therefore, objection is devoid of any force, which is hereby repelled.
The upshot of the above discussion is that, finding no infirmity in the impugned judgment of the High Court, this appeal fails, which is dismissed without any order of costs.