Yahya Afridi, J.--Sardar Aminullah Khan, the petitioner, seeks constitutional jurisdiction of this Court praying that: "For the aforesaid reasons and other to be stated at the time of arguments, it is, therefore, prayed that appropriate writ may be issued declaring Notification dated 22.10.2014 (impugned herein) issued by the Competent Authority through Respondent No. 2 to be illegal, void, without jurisdiction and lawful authority hence of no legal effect, malafide, arbitrary and in colourable exercise and the same be accordingly quashed".
2. In essence, the grievance of the petitioner is that despite his appointment for a fixed period, he has been illegally terminated, hence, the instant Writ Petition.
3. Learned counsel for the petitioner vehemently contended that the appointment, being a tenure post was illegally terminated prior to the completion of the term fixed; that no reason for termination was provided in the termination order; that no show-cause notice was served; that there being no allegation of misconduct or inefficiency the impugned order of termination was liable to be set aside; that even during period of probation, the petitioner could not be terminated without proceeding in accordance with law. In support of his contention learned counsel placed reliance on Aslam WArraich and others vs. Secretary, Planning and Development Division and 2 others (1991 SCMR 2330), Dr. Naveeda Tufail and 72 others vs. Govt. Of Punjab and others (2003 PLC (C.S) 69), Muhammad Aslam us. Vice-Chairman and others (2010 PLC (C.S) 266), High Court Bar Association and others vs Govt. Of Balochistan (PLD 2013 Balochistan 75), PLD 2013 SC 443 and Muhammad Tariq Malik vs. Pakistan through Secretary Establishment Division (PLD 2014 Islamabad 38).
4. Learned counsel for Respondent No. 2 forcibly rebutted the contentions of the learned counsel for the petitioner and contended that the impugned decision made was in accordance with law, as the petitioner was appointed on contract basis and his termination from service was during his probation period, being valid and legal.
5. During the proceedings, it was noted that the appointment of the petitioner was made in pursuance of Khyber Pakhtunkhwa Finance Act, 2013 ("Act"). It irked the Court to note that the appointment of the petitioner was made in pursuance of the Act, which was passed by the Provincial Assembly through 'Money Bill'. To seek assistance, the Court put the worthy Advocate General on notice, who explained that when the petitioner had not challenged the 'vices' of the law, this Court cannot 'Suo Moto' pass any finding on a valid piece of legislation passed by the Provincial Assembly. The worthy Advocate General placed reliance on Dr. Imran Khattak and another vs. Ms. Sofia Waqar Khattak, PSO to Chief Justice and others (2014 SCMR 122). Accordingly, this Court, in view of the submission made by the worthy Advocate General and the "ratio decidendi" of the Apex Court in Dr. Imran Khattak's case (Supra) would not pass any finding on the said issue.
6. Moving on to the merits of the instant petition, it would be appropriate to first consider the appointment order, which would play a pivotal role in determining the stance of the petitioner in the instant petition. The appointment order of the petitioner was made vide order dated 18.3.2014, ("appointment order"), which reads as under: "GOVERNMENT OF KHYBER PAKHTUNKHWA EXCISE & TAXATION DEPARTMENT Dated Peshawar the 18.03.2014 NOTIFICATION No. SO(Admn)KPRA/7-1/2013.--In exercise of powers conferred under Section .3(3) of the Khyber Pakhtunkhwa Finance Act, 2013 (Act-XXI of 2013), the Competent Authority is pleased to appoint Mr. Sardar Aminullah Khan S/o Khushal Khan as Director General, Khyber Pakhtunkhwa Revenue Authority, subject to the terms & conditions mentioned hereunder:
1. The appointment of Mr. Sardar Aminullah Khan will be for a period of three years on purely contact basis with the first year as a period of probation.
2. A monthly salary of Rs, 300,000/- would be paid to him, which is inclusive of all emoluments such as house rent allowance, travel and transportation allowance, utilities allowance, medical allowance, joining allowance etc. However, any transportation related expenses in connection with official business, undertaken with due approval of competent authority, would be reimbursed to him as per the approved Government of Khyber Pakhtunkhwa rates, term and conditions.
3. In terms of non-salary/emoluments related matters and any other financial eventualities the services of Director General would be equivalent to the ride of BS-20.
4. He will be governed by the Khyber Pakhtunkhwa Finance Act, 2013 and any subsequent rules/by laws framed there under. Notwithstanding to the foregoing, all other service related laws/rules for contractual employees would mutatis mutandis apply in the instant appointment also.
5. His services will be liable to termination at any time without assigning reason before the expiry of probation/extended period of probation, if his performance during this period is not found satisfactory. In such an event, he will be given one month prior notice of termination or one month pay in lieu thereof would be paid to him. 'In case he wishes to resign at any time, a one month prior notice shall be necessary on his part, or surrendering of a right to receive one month pay on account thereof.
2. If the above terms and conditions are acceptable to him, he should report for duty to this Department within 14-days of issue of this notification.
CHIEF MINISTER Sd/- SECTION OFFICER (ADMIN)" (Emphasis provided)
The impugned termination was passed vide order dated 22.10.2014, ("termination order"), which reads as under:-- "GOVERNMENT OF KHYBER PAKHTUNKHWA EXCISE AND TAXATION DEPARTMENT Dated Peshawar the 22nd October, 2014.
NOTIFICATION No. SO(Admn)KPRA/7-1/2013.-- In terms of para 5 of the Excise and Taxation Department, Government of Khyber Pakhtunkhwa's Notification of even No. Dated 18th March, 2014, the competent authority is pleased to terminate the contract appointment of Mr. Sardar Aminullah Khan S/o Khushal Khan as Director General, Khyber Pakhtunkhwa Revenue Authority in the best public interest with immediate effect.
2. Consequent upon above, Mr. Sardar Aminullah Khan S/o Khushal Khan will be entitled for one month pay in lieu of period of one month's notice as per the terms and conditions of his contract appointment.
'Secretary to the Government of Khyber Pakhtunkhwa Excise and Taxation Department Sd/- Section Officer (Admn)
Excise and Taxation Department"
7. What we have before us is an appointment on contract for a period of three years with the first year as a period of probation. During the said period, termination can take place without assigning any reason. In such an event, one month prior notice of termination or one month pay in lieu thereof is to be paid.
8. As far as the contention of the learned counsel for the petitioner regarding the illegality of termination prior to the expiry of the term of appointment, that too, without any reason and without proceedings against the petitioner is concerned, this Court has no cavil to the said stance and are in complete consonance with the 'dicta' of the judgments cited by the learned counsel. However, the crucial distinguishable feature of this case is that the petitioner was not a 'regular' employee but on ' contract'. Thus the moot issue which requires deliberation and determination is that: "whether a person employed on contract can be terminated during the period of probation, without assigning any reason for the same".
9. The worthy Apex Court in Agha Salim Khurshid's case (1998 SCMR 1930) had discussed the scope and rights of a 'probationer', such as the present petitioner, in terms that: The learned counsel for the appellants has further contended that before terminating their services, the appellants were entitled to notice and that the appointment being statutory in nature, the Federal Government had no power to terminate their service contract. We are unable to subscribe to the above contention of the learned counsel for the appellants. The contract of service, under which the two appellants were appointed, specifically provided that their appointments shall be liable to termination on 3 months' notice or 3 months' salary in lieu thereof on either side 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 notice before termination of the contract of service."
"Since the services of appellants were governed by the terms of contract which they executed at the time they entered the employment, their services could be terminated in accordance with the terms contained in their service contract which provided 3 months' notice or 3 months' salary in lieu of the notice. Our above conclusions are supported by the following observations in the case of Secretary, Government of Punjab v. Riazul Haq (1997 SCMR 1553):-- There is no doubt that if a person is employed on contract basis and if the terms of employment provide the manner of termination of his services, 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 temporary employee or a person employed on contract basis or a probationer, he is entitled to a fair opportunity to clear his position, which means that there should be a regular enquiry in terms of the Efficiency and Discipline Rules before condemning him for the alleged misconduct. In this regard, reliance has been placed by the learned counsel for the respondent on the case of Muhammad Siddiq Javaid Chaudhry v. The Government of West Pakistan (PLD 1974 SC 393).
(Emphasis provided)
The 'ratio decidendi' of the aforementioned judgment clearly provides that in case, the termination during the period of probation is not for a misconduct, as in the present case, then there is no requirement for providing any reason or proceedings against terminated employees through a regular enquiry. Accordingly, this Court is not in consonance with the stance taken by the learned counsel for the petitioner regarding the illegality of the impugned termination order.
10. As far as the judgments cited by the learned counsel for the petitioner in support of the rights of 'probationer', the same relate to 'regular' employees and not those employed on Contract', as the present petitioner. Hence, the same are clearly distinguishable to the facts of the present, case.
11. It would be pertinent to note that insisting on reinstatement and that too through a constitutional petition, seeking direction upon a. 'unwilling master' to employee a 'servant' would not be legally appropriate, as the principle of "master" and "servant" would become applicable.
12. The Apex Court has described the said principle in terms that: "The effect of the application of the master and servant rule is that an employee of a Corporation in the absence of violation of law or any statutory rule cannot press into service Constitutional jurisdiction or civil jurisdiction for seeking relief of reinstatement in service, his remedy for wrongful dismissal is to claim damages".
The aforementioned principle has been maintained in various judgments rendered by the Apex Court including Syed Zia-ul-Hassan Kazmi's case (1998 SCMR 60), Tanveer-ur-Rehman's case (PLD 2011 S.C. 676), Muhammad Azam Chattha's case (2013 SCMR 120) and Lt. Col Syed Jawaid Ahmed's case. (2013 SCMR 1707).
13. Before parting with this judgment, it would be important to note that if the petitioner is still aggrieved of his termination of his contract of service, he may, if so advised, seek his remedies but before the competent appropriate legal forum.
14. Accordingly, the present petition being devoid of any merit is hereby dismissed.
These are the reasons of our short order announced on 20.11.2014.