Shahid Anwar Bajwa, J.--Petitioners have stated in the petition that in November, ,2008 an advertisement was placed in newspapers by the Respondent No. 2 Authority for various posts in BS-2 to BS-15. The petitioners applied against those posts. It is further stated in the petition that petitioners passed written test and their interviews were conducted and they were issued letters of medical examination on 13.12.2008. It is also stated in the petition that they were medically examined and fitness certificate was issued for them by the doctors deputed for this purpose.
However, while some other persons were taken in employment, the petitioners were not so taken in employment. On 31.12.2008, it was stated that the Prime Minister Task force on employment had directed the respondent Authority not to take any person in employment without obtaining requisite. NOC from the Task Force. This Constitutional petition was filed with the following prayers:- - "1. To declare that the Prime Minister's Task Force on. Employment and Human Resources and/or the Respondent No. 3 have no lawful authority or jurisdiction to require NOC from it before recruitment of it's employees by the Respondent No. 3.
2. To declare that the orders, O.M.S, Circulars, Directives issued by the Prime Minister's Task Force on Employment and Human Resources and /or Respondent No. 3 including letter dated 13.12.2008 whereby the Respondent No. 2 was required to obtain NOC prior to recruitment, appointment of the employed including the petitioners is arbitrary, illegal, malafide, unwarranted and without any lawful authority or jurisdiction and set-aside the same.
3. To set-aside the letters/circulars dated 31.12.2008 and other directives issued by the Respondent No. 2 purporting to cancel/withdraw selection and fitness/appointment of petitioners dated 26.12.2008.
4. To direct the respondents to give effect to the selection and medical fitness/appointment letter issued on the strength of letter issued by the Respondent No. 2 towards the appointment of the petitioners in their respective posts in various basic pay scales (BPS) the petitioners in the service.
5. To prohibit the respondents or any person(s) acting under their authority from appointing any other person(s) in any manner/ mode or giving charge in service of Respondent No. 2 till the decision of the instant petition.
6. To grant any other relief which is deemed just and appropriate by this Honourable Court."
2. Comments were filed by the respondent Authority and it was stated that letters for medical examination were issued by one of the functionaries of the respondent Authority without any record and without any authority. It is further stated that, action was taken against that functionary and he has been, after departmental proceedings, punished with demotion.
3. Learned counsel for the petitioner made the following submissions: Once the petitioners have been issued letters for medical examination vested right was created in favour of the petitioners. Such rights could not have been taken away from them without any fault on their part. Learned counsel relied upon Muhammad Akhtar Shirani and others v. Punjab Text Book Board and others, 2004 SCM R 1077. without authority and the respondent authority has no record of application by most of the petitioners.
5. Syed Ashiq Raza, learned DAG adopted arguments of Mr. Sanaullah Noor Ghori.
6. While exercising his right of rebuttal learned counsel for the petitioners relied upon Muhammad Dawood & others v. Federation of Pakistan & others; SBLR 2007 Sindh 495.
7. We have considered the submissions made by the earned counsel. In Pakistan International Airlines Corporation v. Tanveer-urRehman, PLD 2010 SC 676, paras 19 and 25 thereof the Hon'ble Supreme Court has held that if there are no statutory rules of service, notwithstanding the fact that employer organization is a person within contemplation of Article 199 (5) of the Constitution writ petition by employees of such an organization would not be maintainable. Contention of the learned counsel was that law of master and servant can kick in only once relationship of employer and employee has been created and not before such a relationship is created. Exactly the same contention was made by the learned counsel in Writ Petition No. D-1113/2010 decided on 17.4.2010 (Imtiaz Ali Bhagat v. Ministry of Overseas Pakistanis and other). After referring to Tanveer-ur- Rehman's case the following was laid down:-- "Reading of above para indicates that Supreme Court has held that if there are no statutory rules then relationship is (and, if created, would be) that of Master and Servant. One of the essential and fundamental precepts of relationship of Master and Servant is that servant cannot be thrust upon an unwilling master. Therefore, whether such thrusting is sought by setting aside of termination or by ordering initial appointment would be immaterial in this regard."
Reference may be made in this regard to M/S. Malik and Haq and another u. Muhammad Shamsul Islam Chowdhury and 2 others, 1961 PLC 1381. This Constitutional petition is therefore not maintainable.
8. Besides there are questions of fact. It is contended by the petitioners that they applied for the jobs but they have not enclosed any of the application for the job that they submitted. It is contended by the respondent Authority that no final selection took place. Such contention is denied by the petitioners. It is claimed by the petitioners that letters for medical examination were issued. It is stated by the respondent Authority that person issuing the letters did so without authority. All these questions of fact can be only decided after evidence is recorded and such an exercise cannot be undertaken in Constitutional jurisdiction under Article 199 of the Constitution.
Reliance on Akhtar Shirani and Imdad Magsi cases by the learned counsel for the petitioner as also on Dawood case cannot be of much help in these proceedings. In Akhtar Shirani case it was held that beneficiary of illegal appointment could not be blamed alone. It was further held that such illegally appointed person having served for period if removed from service discriminatory such action would not be justified and the authority should take action against the person who wrongly exercised the power. In the present case the petitioners had not yet entered into employment and it is stated by the Authority that action has been taken against the functionary and he has been after departmental proceedings punished with demotion. Imdad Magsi's case (Supra) is case of retrenchment of employees of KBCA. As far as Dawood's case is concerned, maintainability of writ petition is now regulated by judgment of the apex Court in Tanveer-ur- Rehman's case.
9. Result of the above discussion is that this Constitutional Petition is dismissed in limine as being not maintainable. Listed applications are disposed of. Petitioners shall be, however, at liberty to seek such remedy as may be available to them in accordance with the law.