Rooh-ul-Amin Khan, J.--The petitioner namely, Sultan Zeb Khan, a retired Lieutenant Col. From Pakistan Arm, has called in question the Notification No. S.O (AB) E&SED/18-5/2013/FHC & Notification No. S.O (AB) E&SED/18-5/2013/FHC/Principal dated 1.11.2013 whereby his contractual services as Principal Fazal-e-Haq College, Mardan were terminated, in pursuance of decision taken by the Board of Governors, in its meeting held on 23.10.2013 and consequent upon, the Chairman Board of Intermediate and Secondary Education, Mardan was allowed to look after the post of Principal Fazal-e-Haq College, Mardan till, further orders.
2. The precise facts averred in the petition are that; the petitioner having academic qualification and experience was appointed as Principal Fazal-e-Haq College, Mardan, by the controlling authority viz Chief Minister Khyber Pakhtunkhwa, upon recommendations of selection committee in BPS-20 through notification dated 6.7.2007 issued by the Secretary to Government of Khyber Pakhtunkhwa. The induction of the petitioner in service as principal as on contract basis for specific limited period of three (03) years in BPS-20 with fringe benefits, on the terms and conditions settled by the Board of Governors of the College. On coming to end of contract period it was further extended for further three years w,e,f, 11.7.2012 to 10.7.2012 on the existing terms and conditions, vide notification dated 26.7.201 but misfortune be fell upon him when the Respondent No. 2, consequence of letter dated 8.4.2013, written by Deputy Commission Mardan constituted a fact finding inquiry committee and t petitioner was ordered to be remained on forced leave till finalization of the report of the above-said committee. Ultimately the remaining contract services of the petitioner were terminated vide the above mentioned notification dated 1.11.2013 and the Chairman Board Intermediate and Secondary Education, Mardan was handed over t charge to look after the affairs of Fazal-e-Haq College, Mardan, to further orders. Hence this petition.
3. Learned counsel for the petitioner vehemently argued that the petitioner has served the college as Principal with zeal and zip and has made several achievements but the respondents unilaterally terminated the remaining period of contract of petitioner without assigning any reason. The impugned order is based on malafide as the first instance, so called inquiry was conducted without association the petitioner and later on the impugned notification was issue without assigning any reason. He emphasized that by conducting t so called fact finding inquiry, numerous allegations were level against the petitioner and he was condemned for misconduct. In such situation the respondents were under legal obligation to provide a f. Opportunity to the petitioner to clear his position. The impugned orders were avowed as illegal, void without lawful authority an prayed for its setting aside.
4. The learned counsel for respondents strenuously controverted the view point as canvassed at the bar on behalf of the petitioner and contended that Fazal-e-Haq College, Mardan is the creation of Khyber Pakhtunkliwa Education and Training Ordinance 1971. Section 19 of the Ordinance ibid empowered the Province Government to make rules for the purpose of the ordinance. Likewise Section 20 invested the power in the Board of Governors to framed regulation, subject to approval of the Provincial Government to carry out the purpose of the Ordinance. He vehemently argued that the Fazal-e-Haq College, Mardan (Terms and Conditions of Service) Regulation, 2011 has .Been formulated by the Board of Governors of the college, but has not been published in the official Gazette, thus, has not attained the status of statutory rules. As per various pronouncements of the apex Court constitutional petition against the non statutory body, is not maintainable. He further contended that the services of the petitioner has been terminated strictly in accordance with terms and conditions of appointment which has duly been accepted by the petitioner at the time of his appointment, therefore, on this score too the writ petition filed by the petitioner is not maintainable as relation of master and servant exists between the parties.
5. Having heard the learned counsel for the parties relevant record was perused with their valuable assistance which reveals that the petitioner was appointed as Principal Fazal-e-Haq College, Mardan vide order dated 6.7.2006. At the time of appointment the following terms and conditions were settled between the parties:-
1. He has been appointed as Principal, the Fazlehaq College Mardan in BPS-20 with effect from 10th July, 2006.
2. He shall devote the whole time of his duties as Principal and carry out such administrative functions, related to his job, as assigned by the Board of Governors from time to time.
3. He shall not, unless permitted by the Board of Governors, indulge in private tuition, nor shall be indulge directly or indirectly in any trade, business or occupation on his own account.
4. He shall be bound in all respect to the Government Service conduct Rules as may be prescribed in the College Service Rules or such rules as may be prescribed by the Government for member of service to which he belongs.
5. He shall be entitled to:--
(a) --
(b) -- (c)-- (d)--
(e) --
(f) --
6. He shall be entailed to such leave as is admissible to other officers of his rank under the Government Rules and the accumulated annual leave, if any shall either be granted for pay or encashed towards the end of his service.
7. The services of the Principal may be terminated, if so desired by him or the Board of Governors, by giving, one month's notice to either side or pay amount equal to his one month's salary in lieu of notice period.
8. (Enumerates pay and allowances of the petitioner)." (Emphasis supplied).
6. On expiry of stipulated period of the contract, the Board of Governors of Fazal-e-Haq College, Mardan in its meeting held on 30.7.2012 approved the extension in contract services of the petitioner for further period of three years w,e,f,11.7.2012 to 10.7.2015 on the existing terms and conditions. To this effect a proper notification dated 26.7.2012 was issued by the Respondent No.
2. During second tenure the faculty members and class-IV employees started a protest and demonstration against the petitioner which culminated into serious law and order situation in the District, therefore, the Deputy Commissioner Mardan, apprised the Commissioner Mardan Division about the situation vide letter dated 8.4.2013 and recommended that the provincial Government may be approached with a request to probe into the matter and to get wind the reasons behind en masse churn up and revolt of all staff members against petitioner. Resultantly a two members inquiry committee comprising, Mr. Fazal Marian, Director PITE and Shams Khan, Additional Director (P&D), Directorate E & SE Peshawar, was constituted to conduct an inquiry, fix responsibility and submit report alongwith recommendations within 07 days to the Respondent No.
2. The inquiry was conducted and detailed report was submitted before the competent authority which was put before the meeting of Board of Governors of Fazle-e-Haq College, Mardan for consideration wherein the following decision was made: "It is also proposed that the Principal may be honourably relieved, not on the basis of allegations but in the light of Judgment of the August Supreme Court of Pakistan that he had reached the age of superannuation.
Decision. After threadbare discussion, the Board agreed to the removal of the present Principal immediately in light of the Provincial Inspection Team recommendations/ suggestions and also agreed that a new Principal of the said Institution will be appointed within 50 days subject to the observance of all codal formalities. The Chairman BISE Mardan will look-after the work of Principal FHC Mardan till the arrival of the new Principal."
7. In pursuance of the above referred decision of Board of Governors the impugned order dated 1.11.2013 was issued, whereby the remaining period of contract of the petitioner was terminated and he was held entitle to draw one month pay in lieu of giving one month notice strictly in accordance with condition No. 7 of the terms and condition of appointment orders.
8. In the instant case, first point for determination pertains to the nature of service of the petitioner.
Undisputedly the petitioner has been appointed on contract basis, initially for three years which was subsequently extended on the terms and conditions quoted in the preceding paras. Condition No. 7 clearly indicates that the services of the petitioner may be terminated by the Board unilaterally by giving one month notice to the petitioner or payment of an amount equal to his one month salary, in lieu of notice period. No doubt the respondents while terminating the services of the petitioner has assigned no reason however, he has been held entitled to draw one month pay in lieu of termination notice. The contention of the petitioner that before termination of the remaining period of contract, the respondents were under legal obligations to provide an opportunity, of hearing to the petitioner, is un persuasive and not convincing for the reason that the contract of service, under which the petitioner was appointed, specifically provides that his service shall be liable to termination on one month notice or one month salary in lieu thereof, without assigning any reason. Such a contract, in our view does not create any vested right in the appointee so as to make him entitled to be served with notice before termination of contract of his service. The learned counsel for petitioner has relied on some case law of the apex Court, in support of his contention, careful reading of which reveals that in the referred cases the services of the petitioners therein were terminated on the basis of certain allegations but in the instant case the contract of the petitioner was terminated without stigmatizing him. He was given a very safe and honourable exit from service, without leveling any allegation against him. We may observe that there is a marked distinction between the simpliciter termination of service in accordance with terms and conditions of appointment and the termination of service on the ground of misconduct.
No doubt if a person is employee on contract basis and the terms of employment provides the manner of termination of his service, the same can be terminated in terms thereof. However, if a person is to be condemned for misconduct, in that event, even if he is a contract employee, would be entitled to a fair opportunity to clear his position. It means that in case of stigmatize termination there must be a regular inquiry in terms of Efficiency and Disciplinary Rules. In the instant case as discussed above the contract appointment of the petitioner has been simply terminated without any allegation of misconduct. The cited judgments of the apex Court having no relevance with case of petitioner, thus of no consequence for him.
9. By now it is settled law that in contractual obligation no writ can be issued by the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1971 unless the contract employment of a person is terminated with any stigma. The petitioner, in contractual appointment, is not vested with a right to press for his-reinstatement in to service for the left over period.
10. Coming to the other controversy regarding the maintainability of the writ petition against a non statutory body, it can be stated that no doubt the Fazal-e-Haq College, Mardan is a statutory institution but its employees neither holder of statutory post nor were governed by any statutory rules. The Board of Governors of the College has formulated the regulation in terms of Section 20 of the Ordinance, 1971 but the same has not been published in the official Gazette, thus, does not possess the status of statutory rules. Under ' Section 2 (41) General Clauses Act a notification shall mean a notification published under proper authority in the official Gazette. Before publication in the official gazette a drafted notification is of no significance and legal importance and legally it cannot be termed as "Notification." Reliance may be placed on case titled Government of Sindh through Secretary Agriculture and Livestock Department and others vs. Messrs Khan Ginners (Private) Limited and 57 others (PLD 2011 Supreme Court 347). In the eventualities, where services of an , employee are not governed by any statutory rules, the principle of master and servant would be applicable and therefore, the jurisdiction of this Court could not be exercised. In case of Abdur Rashid Khan vs. Registrar Bahauddin Zakaria University Multan and others (2011 SCMR 944) it was held that in a case where any University/educational institute has no statutory rules, it will bar the remedy for it employees to invoke the jurisdiction of High Court under article 199 the Constitution of Pakistan, 1973. In another case titled University Punjab vs. Sardar Ali (1992 SCMR 1093) and Ijaz Ul Hussain Suler.' The Registrar and another (1999 SCMR 2381) the apex Court ruled at employee of the university were neither holders of statutory post or their terms and conditions were governed by statutory rules, therefore, the High Court had rightly held that the constitutional tuition was not maintainable.
11. In case of Pakistan Telecommunication Co. Ltd. Through Cairman vs. Iqbal Nasir and others (PLD 2011 Supreme Court 132) the honourable Supreme Court of Pakistan has comprehensively dealt with the proposition by holding that the employee of Pakistan telecommunication Corporation were governed by principle of master and servant and in absence of statutory rules, constitutional petition filed by the petitioners were not maintainable. It was further ruled that in such like situation master was within his due right to retain or dispensed with services of any employee on the basis of satisfactory or otherwise performance. It was also emphasized that contract employees had no right to invoke the constitution jurisdiction of High Court.
12. In case of Pakistan International Airline Corporation and hers vs. Tanweer-ur-Rehman and other (PLD 2010 Supreme Court 76) it was held that if any adverse action taken by the employer in violation of the statutory rules, only then such action shall be enable to the constitutional jurisdiction but if such action had no asking of statutory rules then principle of 'Master and Servant' would e applicable and such employees had to seek remedy permissible before the Court of competent jurisdiction.
13. On careful reading of the above quoted case laws one can drive at irresistible conclusion that the status of the employees, whose services are not governed by statutory rules, principle of "master and servant" would be applicable and writ petition may not be competent. Moreover, in the reported judgment i,e. Federation of Pakistan vs. Muhammad Azam Chatta (2013 SCMR 120) the apex Court has categorically ruled that where the services of contract employee are terminated before time, he can, at best claim damages to the extent of unexpired period of his service but cannot press his reinstatement in service through constitutional petition.
14. The honourable Apex Court, in case titled Abdul Wahab and other vs. Habib Bank Ltd. And others (2014 PLC (C.S) 393) held that:-- "in those cases where the employment/ service (s) is not regulated by any law, as in the present case it is admitted position that Rules, 1981 are non-statutory and thus not a law, rather contractual stipulations, and no specific forum is designated for the resolution of such service issues, therefore an infringement of any condition of such a contract shall at the most entitle and clothe the employee to avail his ordinary remedy for the breach of the contract and on account of wrongful action against him, before the Court of plenary jurisdiction. In such a situation, it cannot be urged that the fundamental right of the employee had been violated conferring upon him a right to enforce the same (in terms of Article 199 and / or) under Article 184(8) (supra)."
15. We have examined regulation in the light of the Ordinance, 1971 and were of the firm opinion that the regulation having been framed under Ordinance, being not published in the official gazette, did not have the statutory force and therefore, the petitioner would not be legally entitled for the invoking the constitutional jurisdiction for seeking his reinstatement. In this regard we are fortified by numerous judgments of the Apex Court wherein the law has been settled that an employee of corporation/institution in the absence of violation of law or any statutory rules could not press into service the constitutional jurisdiction or civil jurisdiction for seeking relief for reinstatement in service. His remedy against wrong dismissal or termination is only to claim damages. Some of which are as below:- "Pakistan Red Crescent Society and another vs. Syed Nazir Gilani (PLD 2005 SC 806), Mrs. M. N Arshad vs. Mrs. Naeema Khan (PLD 1990 SC 612), Zainul Abidin vs. Multan Central Cooperative Bank Limited Multan (PLD 1966 SC 445), Lt. Col. Shujauddin Ahmad vs. Oil and Gas Development Corporation (1971 SCMR 566), The Principal Cadet College, Kohat and another vs. Muhammad Shoaib Qureshi, (PLD 1984 SC 170), RTA Janjua vs. National Shipping Corporation (PLD 1974 SC 146), Anwar Hussain us. Agriculture Development Bank of Pakistan and others (PLD 1984 SC 194), Evacuee Trust Property Board and another vs. Muhammad Nawaz (1983 SCMR 1257) and Muhammad Yousuf Shah vs. Pakistan International Airline Corporation (PLD 1981 SC 224)".
17. Admittedly the position in the present case is that the petitioner is contract employee of Fazal- e-Haq College Mardan and his service is not governed by any statutory rules, thus, the order of his termination, without any stigma cannot be challenged before this Court under extraordinary jurisdiction. Instant writ petition being no maintainable is dismissed.