' ABID AZIZ SHEIKH, J. --- C.M. No, 4199 of 2012. The learned counsel for the applicant does not press this C.M. And wants to withdraw the same. Accordingly, the application is dismissed as withdrawn.
' Main Case.
2. This single judgment will dispose of Writ Petition No, 13279 of 2011 as well as Writ Petition No, 13280 of 2011, as common questions of law and facts are involved in both these petitions.
3. In both these writ petitions the petitioners have challenging the letters of even date i,e, 25.05.2011, whereby the contract service of the petitioners were terminated and their appointment letters were cancelled.
4. The brief facts, which are common in both the writ petitions are that the respondents through publication in Daily Newspaper on 01.01.2009 invited applications for appointments on contract basis for initial period of one year against various posts located at Thermal Power Station Guddu.
District Kashmore (Sindh) including the post of Assistant Manager (Accounts) B&AO. The minimum qualification for the post of Assistant Manager was M.Com./MBA (Major in Finance) with two years' experience. The last date for submitting of applications was 15.01.2009. The said date was further extended to 15.03.2009. The competent authority vide Circular dated 26.03.2011 allowed the children of employees of GENC0-11, who could not apply earlier for the aforesaid posts advertised on 01.01.2009, to submit their applications against the said advertisement. The petitioners in both the writ petitions being children of employees of GENCO applied for the said posts and were appointed as Assistant Manager Accounts on contract basis for a period of one year, vide contract letter dated 30.04.2011. However, on 25.05.2011 the services of the petitioners in both the petitions were terminated and their appointment letters were cancelled on the ground that the petitioners do .Not fulfill the eligibility criteria given in the advertisement. The petitioners have assailed their termination letters dated 25.05.2011 (herein after referred to impugned order) in both these petitions.
5. The learned counsel for the petitioners in both these petitions argued that the impugned order was passed without giving any hearing and notice to the petitioners. Further submits that on 26.03.2011 when Circular allowing the petitioners to file their applications against the advertisement dated 01.01.2009, was issued, the petitioners fulfilled the required eligibility criteria of MBA and 2 years of experience, therefore, the termination was not valid and legal. On the question of maintainability of these petitions the learned counsel placed reliance on the case reported as Pakistan Defence Officers Housing Authority and others v. Lt. Col. Syed Jawaid Ahmad (2013 SCM R 1707) to argue that where termination is without notice, the Constitutional petition is maintainable.
6. Conversely, the learned counsel for respondents argued that the posts of Assistant Manager (Accounts) B&AO, was advertised on 01.01.2009 where the last date for filing of applications was 15.01.2009, which was extended upto 15.03.2009. However, for the children of employees of GENCO who for any reason could not apply earlier, were allowed to apply as per advertisement dated 01.01.2009, vide Circular dated 26.03.2011. The petitioners applied for the posts by giving particulars in their CVs that they were MBA with two years' experience, whereas the factual position was that the petitioners were neither MBA nor they had two years' experience on 01.01.2009, when the posts were advertised. Submits that as per petitioners' documents annexed with Writ Petition No, 13280 of 2011, it is evident that the said petitioner completed his MBA on 05.08.2010, and result card issued on 11.11.2010. Whereas in Writ Petition No, 13280 of 2011, the MBA result card annexed does not belong to the petitioner (Muhammad Asif) rather it belongs to (Muhammad Waqas Gull). Even this card shows that Sessions of MBA was completed on 05.08.2010 and it was issued on 11.11.2010. Contends that it was for this reason that contractual services of the petitioners were terminated. Further argued that as per terms and conditions of petitioners' contract, their services were probationary for three months and could have been terminated without assigning any reason, hence no notice was required. Adds that in any case, the premature termination of a contract employee does not entitle him for reinstatement. Reliance is placed on the cases reported as Federation of Pakistan through Secretary Law, Justice and Parliamentary Affairs v. Muhammad Azam Chatha (2013 SCM R 120), The Chairman WAPDA, etc. v. Maj. (Rtd.) Nisar Ahmad (NLR 1996 Service 144),
7. I have given my anxious consideration to the arguments of the learned counsel for the parties and have gone through the record, appended herewith.
8. It is an admitted position that the post of Assistant Manager Accounts (B&AO) was advertised on 01.01.2009. The minimum qualification for the said post was MBA (Major in Finance) with two years' experience. The last date for submission of applications was 15.01.2009, which was extended to 15.03.2009. Subsequently vide Circular dated 26.03.2011 considering the request of Secretary P.W.H.E.C.L.U, TPS Guddu, the children of employees of GENC0-11, who could not apply earlier for any reason against the posts advertised on 01.01.2009, were allowed to submit their respective applications pursuant to the said advertisement. This fact is not denied by the learned counsel for the petitioners that on 01.01.2009 the petitioners were neither MBA nor they had acquired two years' experience for the post of Assistant Manager (Accounts) B&AO. The perusal of the MBA result card of Muhammad Waqas Gull petitioner in Writ Petition No, 13279 of 2011 shows that the date of declaration was 05.08.2010 and the result card was issued on 11.11.2010. Similarly, the petitioner (Muhammad Asif) in Writ Petition No, 13280 of 2011 has annexed a result card of MBA, which is not in his own name, however, even the perusal of said result card shows that declaration was 05.08.2010 and it was issued on 11.11.2010. These documents make it evident that the petitioners were neither MBA nor they had two years' requisite experience on 01.01.2009 when the posts were advertised. The learned counsel attempted to argue that though the petitioners were not qualified on 01.01.2009, however, the petitioners were qualified when Circular dated 26.03.2011 was issued. To judge the strength of this argument, it is expedient to reproduce the Circular dated 26.03.2011 which is as under:-- "CIRCULAR.
' Considering the request of Secretary PWHECLU TPS Guddu vide letter dated 03.03.2011, the children of employees of GENC0-11 who could not apply earlier for the posts advertised in various newspapers of 01.01.2009 (with last date 15.03.2009) due to any reason are allowed to submit their applications against the said advertisement.
' This facility is for the children of regular employees of GENC0-11 and is a onetime measure only.
' This is issued with the approval of Chief Executive Officer."
' The perusal of Circular dated 26.03.2011 shows that concession was given to children of employees; who were qualified on 01.01.2009 but for any reason could not apply earlier, to submit their applications as per advertisement dated 01.01.2009. Any other interpretation of this Circular will give undue and discriminative benefit to the children of employees comparing to other candidates, which could not be the intention of the Competent Authorities. Accordingly, the posts were to be filled-in as per the criteria given in the advertisement dated 01.01.2009. Even for the sake of arguments if petitioner's contention is accepted that relevant date of qualification was 26.03.2011, even then the petitioners, who obtained result card of MBA on 11.11.2010 could not have experience of two years till 26.03.2011, which is also the eligibility criteria for the post of Assistant Manager, in advertisement. Therefore, the reasoning given in the impugned order that the petitioners being not MBA and not having required qualification experience did not fulfill the eligibility criteria is not arbitrary and perverse.
10. To meet the next argument of the learned counsel for the petitioners that, as no prior notice of hearing was given to the petitioners, therefore, they are entitled for re-instatement on their contractual services, it is convenient to peruse the terms and condition of petitioner's service contract. Admittedly the petitioners were appointed on contract basis for a period of one year. As per clause 1-(iii) of their Contract, the appointments were on probation for three months, which could be terminable without assigning any reason and further under clause XXI of the Contract, the appointments being purely contractual could be terminable at any time. Without going into the question whether the aforesaid clauses will automatically dispense with requirement 'of rule of natural justice, suffice it to say that non-issuance of notice of hearing to the petitioners, will not entitle the petitioners, for revival of their contract of service, rather the remedy of the petitioners, if any, for wrongful termination would be for damages to the extent of unexpired period of their services, before the competent Court of law. In this regard reliance is placed on the law laid down by the august Supreme Court of Pakistan in the case reported as Federation of Pakistan through Secretary Law, Justice and Parliamentary Affairs v. Muhammad Azam Chatha (2013 SCM R 120), where it is held as under:- "In addition. To it, it is a cardinal principle of law that a contract employee instead of pressing for his reinstatement to serve for the leftover period can at best claim damages to the extent of unexpired period of his service.
In Halsbury's Laws of England (3rd Ed.) Vol. II, p.244 Para 414, it is stated that the measure of damages for wrongful dismissal, is the loss thereby incurred, and that would, subject to the duty of the plaintiff to mitigate, normally be the wages due and payable for the agreed period of service.
In the case of Federation of Pakistan v. Alik Ahmad Qureshi (2001 SCMR 1733) it has been held that in view of the doctrine of master and servant, the contract of service cannot be, specifically enforced, however, in the event of arbitrary dismissal or unwarranted termination of employment, an employee is entitled to sue for damages equal to wages, allowances and other benefits, which would have been otherwise due and payable under the contract of employment. In the case of Pakistan Red Crescent Society and another v. Syed Nazir Gillani (PLD 2005 SC 806) it has been held that an employee of a corporation, in the absence of violation of law or any statutory rule, cannot press into service the Constitutional or civil jurisdiction for seeking relief of reinstatement in service and can only claim damages against his wrongful dismissal or termination. While holding so, reference has been made to the cases of Mrs. M.N. Arshad v. Mrs. Naeema Khan (PLD 1990 SC 612), Messrs Malik and Haq v Muhammad Shamsul Islam Chowdhury' (PLO 1961 SC 531) Zainul Abidin v.Multan Central Cooperative Bank Limited (PLD 1966 SC 445), Chairman East Pakistan Industrial Development Corporation v. Rustom Malik (PLD 1966 SC 848), Abdul Salam Mehta v.
Chairman, WAPDA (1970 SCMR 40), Lt. Col. Shujauddin Ahmad v. Oil and Gas Development Corporation (1971 SCMR 566), R. T.A. Janjua v. National Shipping Corporation (PLD 1974 SC 146), Principal, Cadet College, Kohat v. Muhammad Shoab Qureshi (PLD 1984 SC 1791), Anwar Hussain v.
Agricultural Development Bank of Pakistan (PLD 1984 SC 194), Syed Akbar Ali Bokhari v. State Bank of Pakistan (PLD 1977 Lah. 234), Muhammad Yusuf Shah v. Pakistan International Airlines Corporation (PLD 1981 SC 224), and Evacuee Trust Property Board v. Muhammad Nawaz (1983 SCMR 1275). The same principle has been reiterated in the case of Brig. (R.) Sakhi Marjan v.
Managing Director PEPCO (2009 SCMR 708). Reference may also be made to the case of S.S. Shetty v. Bharat Nidhi Ltd. (As interim relief is already granted in the connected matter, therefore, following the rule of consistency 1958 SC 12), wherein the Indian Supreme Court on the same issue has held as under:- "The position as it obtains in the ordinary law of master and servant is quite clear. The master who wrongfully dismisses his servant is bound to pay him such damages as will compensate him for the wrong that he has sustained. "They are to be assessed by reference to the amount earned in the service wrongfully terminated and the time likely to elapse before the servant obtains another post for which he is fitted. If the contract expressly provides that it is terminable upon, e.g. a month's notice, the damages will ordinarily be a month's wages. No compensation can be claimed in respect of the injury done to the servant's feeling by the circumstances of his dismissal, nor in respect of extra difficulty of finding work resulting from those circumstances."
11. In the case of Trustees of the Port of Karachi v. Saqib Samdani (2012 SCMR 64), the august Supreme Court of Pakistan held that:- "Evidently the above letter reflects that the respondent was in employment on contract basis, hence no vested right was created in his favour for reinstatement in service. It was not the case where the respondent was appointed as a regular employee against any particular quota to give him a valid cause of action. Equally, the impugned judgment is also silent that termination of service of the respondent violated any of his rights, therefore, in our view his reinstatement under the impugned judgment does not appear to have been validly ordered."
12. In the case of Pakistan Telecommunications Co. Ltd. Through Chairman v. Lqbal Nasir and others (PLD 2011 Supreme Court 132), the august Supreme Court held that the contract employees have no vested right and the employer. Is well within his right to retain or dispense with the services of an employee on the basis of satisfactory or otherwise performance. The relevant extract is reproduced hereunder.- "All the employees having entered into contracts of service on the same or similar terms and conditions have no vested right to seek regularization of their employment, which is discretionary with the master. The master is well within his rights to retain or dispense with the services of an employee on the basis of satisfactory or otherwise performance."
In this context, reliance is also placed on the cases reported as Mrs. Zeb Mazhar All Bhatti v. Govt.
Of Punjab, etc. (NLR 1995 Service 132), The Chairman WAPDA, etc. Maj. (Retd.) Nisar Ahmad (NLR 1996 Service 144).
11. The judgment relied upon by the petitioner i,e, Pakistan Defence Officers' Housing Authority and others v. Lt. Col. Syed Jawaid Ahmad (2013 SCMR 1707) relates to the maintainability of the.
Constitutional petition in respect of the employees who were terminated under the Removal from Service (Special Powers) Ordinance, 2000, and therefore, it does not apply to the case of the petitioners.
14. For the reasons discussed above, I find no merits in these petitions, the same are dismissed, with no order ass to costs.