' MUNIB AKHTAR, J.--- By this common judgment, we intend disposing off the two petitions mentioned above. The contesting respondent is the Pakistan Civil Aviation Authority (CA), which is a statutory corporation established by, and operating under, the Pakistan Civil Aviation Authority Ordinance, 1982 ("1982 Ordinance"). In brief the case of the petitioners is that they applied for the advertised post of Assistant HR Officer, went through the recruitment process, were selected and issued appointment letters. However, after the issuance of the said letters, the CA in a manner that is contended to be unlawful, purported firstly to "suspend" the appointments and then to cancel the entire recruitment exercise. The petitioners seek appropriate declaratory and conjunctive relief, the effect of which would be that the petitioners would be entitled to serve as Assistant HR Officers in CA. Insofar as C.P. D-3458/2013 is concerned, the petitioner was already in AA's service when he applied for the aforesaid post. It appears that this petitioner may have actually served for a few days as an Assistant HR Officer before CA took the impugned action. However, this difference between the petitioners is not material, and the substantive grievance is the same. It will suffice to refer to the circumstances of the petitioner, and the facts, in C.P. D-2807/2012.
2. Learned counsel for the petitioners submitted that the post was advertised in the press on 20.03.2011. The petitioner was working in the HR department of a private company. He applied for the post and after scrutiny of his application, was allowed to appear for the NTS test as required.
Having successfully cleared the test the petitioner was called for an interview on 21.10.2011, when he was interviewed by a four-member committee. Thereafter, on 01.12.2011 he was issued an appointment letter. Having accepted the offer as therein set out the petitioner appeared, as directed, before GM HR (R&S) at the headquarters of CA on 07.12.2011. On the same day, that official issued a letter for the petitioner's medical examination. He was so examined on 08.12.2011 and found fit for service. On the same day however, he received a letter from the Chief HR of CA dated 07.12.2011. This letter referred to the letter of appointment of 01.12.2011 and stated that it was "held in abeyance till further orders". Learned counsel stated that after waiting for a few days, the petitioner wrote to CA on 19.12.2011 and then again on 05.01.2012, but received no reply. Thereafter, he wrote to or approached CA in February, March and April, 2012 but again without result. He finally served a legal notice on CAAon 03.05.2012 and receiving no satisfaction filed his petition in this Court on 01.08.2012.
3. Learned counsel submitted that impugned "suspension" of the petitioner's appointment and the subsequent failure by CAA to withdraw the same and induct the petitioner into service, and the cancellation of the recruitment process, was wholly unjustified and unlawful. The petitioner had successfully cleared all stages of the recruitment process but was being denied the benefit thereof.
No lawful reason or explanation had been given by CA for the "suspension" of the appointment letter or the subsequent cancellation of the entire process. Learned counsel submitted that CAA thereafter reinitiated the recruitment process by another advertisement in the press dated 14.04.2013. In respect of this, on an application made by the petitioner, an interim order was made on 17:04.2013. It was submitted that both petitioners had made out a case for relief and learned counsel prayed accordingly.
4. Learned counsel for CAA opposed the petitions. It was submitted that the petitions were hit by lases. It was also submitted that the petitions were not maintainable as CAA did not have statutory rules of service. Learned counsel further contended, referring to the advertisement under which the petitioners had applied, that CAA had the inherent right to cancel the recruitment process without assigning any reason. On the merits, learned counsel submitted that after the NTS test, a joint complaint was received from certain candidates that the process was flawed and marked by irregularities. The matter was looked into and a number of irregularities were found in the entire process, as referred to in the para-wise comments filed by CAA. Learned counsel submitted that it was on such basis that the letters of appointment were initially suspended and finally the entire recruitment process was cancelled. Learned counsel submitted that CAA had throughout acted in accordance with law. The impugned action/decision was wholly justified and lawful. It was prayed that the petitions be dismissed. At the conclusion of the hearing, we allowed learned counsel to file written synopses along with case-law, and both did so.
5. We have heard learned counsel as above, examined the record and considered the case law.
Insofar as the objection as regards laches is concerned, that is, with respect, without substance. A petition is to be dismissed on such basis if, looking at the totality of the circumstances, the Court is satisfied that the petitioner has abandoned his claim. The rule that an aggrieved person is normally expected to approach the Court within three months is only a rule of convenience, and the 90 days period serves merely as a referential point. It is not to be applied as a mandatory rule such as a period of limitation prescribed under law. As is clear from the narration given above, the petitioner in C.P. D-2807/2012 did not at any stage abandon his claim. Rather, he continued to press it at all times. The position of the petitioner in the other petition is similar. The decisions cited, Pakistan International Airlines Corporation and others v. Tanweer-ur-Rehman PLD 2010 SC 676 ("Tanweer-urRehman") and Masroor Hussain and others v. Chairman, Pakistan International Airlines and others 2010 PLC (CS) 630 (SHC; DB) do not support the respondent's case. In the first mentioned case, the period of 90 days was stipulated in the earlier judgment of the Supreme Court itself. In the second mentioned case, the observations of the learned Division Bench on the principle of lases do not support, but rather go against, the submission made by learned counsel for CA.
There has been no acquiescence of the petitioners in the impugned Action. This objection is therefore rejected. As regards the "inherent" right of CA to cancel the recruitment process at any time without assigning any reason, that also cannot be accepted. There is no such "inherent" right.
Any such "right" can only stem from an express reservation in the advertisement itself. But even then there are limitations. The fact that CA may not have to "assign" any reason to the applicants (itself, in law, a dubious claim) does not mean that it must not have a legally valid reason for cancelling the recruitment process. The submission by learned counsel for CAA elides this crucial distinction. The point must be clearly understood because all too often statutory authorities and persons otherwise coming within the scope of Article 199 seek to take shelter and hide behind such clauses. If a private person, for entirely non-public reasons, advertises certain posts in the press with the express disclaimer that he can cancel the process without assigning any reasons, then in general and in principle, he may do so. He need not assign any reason nor, indeed, have any reason for the cancellation. However, a statutory corporation, being a person carrying on functions in connection with the affairs of the Federation, etc. Has no such "luxury". Here, as just noted, it is crucial to keep in mind the distinction between assigning a reason for the cancellation and having a lawfully valid reason for doing so. Even if the advertisement expressly states that the authority can cancel the recruitment process without assigning any reason, it is an open question whether such a power can be exercised arbitrarily or capriciously. In other words, even if the authority has a lawfully valid reason for cancelling the recruitment process, it may yet be unlawful for it not the assign (i.e., to disclose) the reason to the applicants. Furthermore, if the authority does not have a lawfully valid reason for cancelling the recruitment process, it certainly cannot seek to mask or cover its illegality by claiming that it need not assign any reason for its action. Any such conclusion would make a mockery of the rule of law. In any case even if the authority has a lawfully valid reason for cancelling the recruitment process, and lawfully exercises its right not to assign (i.e., disclose) the same to the applicants, that cannot affect the power of the High Court to look into the matter and satisfy itself that all actions and proceedings have been taken in accordance with law.
When the High Court calls, the reasons must be disclosed in full. The objection under consideration is therefore without merit.
6. We turn to the objection as regards maintainability. Learned counsel submitted that since CAA had non-statutory rules of service, the petitions were not maintainable. In support of this submission learned counsel relied on a number of judgments, each of which must be considered.
The first is Muhammad Aslam Khan v. Federation of Pakistan and others 2013 SCMR 747. That was an appeal to the Supreme Court against a decision of the Federal Service Tribunal, which had held that because CAA had non-statutory rules of service, the appellant was not a civil servant and hence the Tribunal had no jurisdiction. The Supreme Court affirmed the order and relied on its earlier judgment reported as Muhammad Nawaz v. Civil Aviation Authority and others 2011 SCMR
523. This decision was also relied upon before us by learned counsel. Again, this was an appeal to the Supreme Court against a decision of the Federal Service Tribunal. The Tribunal had dismissed the appeal before it for the reason as just stated. With respect, the point in issue in the judgments relied upon was different from the one at hand, where the question is not the jurisdiction of the Tribunal to entertain appeals, but the maintainability of petitions under Article 199. They do not therefore provide any assistance to CAA. Learned counsel also relied on certain Division Bench decisions of this Court. In Zafar Iqbal v. Pakistan Civil Aviation Authority and another 2011 PLC (CS)
348, the petitioner sought reinstatement in service with CAA. Thus, the petitioner there was in the service of CAA and it was contended that he had been unlawfully removed from the same. That is not the issue here. Here, the question is whether CAA can lawfully cancel the recruitment process that precedes the appointment, which cancellation demolishes the basis on which the petitioners' claim for appointment rests. The position of the present petitioners therefore, different from that in the cited decision. The next case is Dr. Abdul Karim Channa and others v. Civil Aviation Authority and another SBLR 2011 Sindh 1299. The petitioners were appointed in CAA on contract basis and sought regularization. Again, the position of the petitioners in the cited decision was materially different from that of the present petitioners. The next case is Muhammad lqbal Chaudhry, etc. v.
Civil Aviation Authority, etc. 1995 PLC (C.S.) 421. The grievance of the petitioners therein, who were admittedly employees of CAA (as air traffic control officers), was in respect of their seniority and promotion vis-a-vis certain respondents, in respect of service in the Air Traffic Control Branch. The facts of the cited decision were clearly materially different. The next case is Syed Mubashar Zawar, etc. v. Civil Aviation Authority, etc. 1996 PLC (C.S) 528. The petitioners were employees of CAA who had been recruited in 1992 and had successfully completed their probationary period and undergone some training. Thereafter, in 1995, the relevant authority within CAA issued an order that 148 candidates who had been recruited in 1992 would be called for tests and interviews. It was submitted on behalf of the petitioners that they had already put in a few years of service, had undergone training and their pay grades had also been upgraded. It was contended that the proposed tests/interviews were a prelude to the termination of their services. The petitioners claimed that there had been a denial of the principles of natural justice and contended that the petitions were maintainable on the principle laid down in Anisa Rehman v. PIAC 1994 SCMR 2232.
The learned Division Bench concluded that the petition was pre-mature as the petitioners only apprehended action being taken against them, there had been no violation of any law or statutory rule and since the matter was governed by the rule of master and servant, the tests/interviews being called for could not be challenged in constitutional jurisdiction. Again, as is obvious, the facts and circumstances of the petitioners in the cited case were quite different from the position of the present petitioners.
7. Having dealt with the other cited cases we turn to consider Saleh Muhammad and others v.
Federation of Pakistan and others 2011 PLC (C.S.) 978 ("Saleh Muhammad"). The facts were that the respondent No.2 (the concerned authority) advertised certain posts, for which the petitioners applied. They passed the written test and interviews, and were declared medically fit. Their grievance was that notwithstanding the foregoing, they were refused appointment, while other persons were appointed. In answer, the authority stated that a Prime Minster's Task Force had been constituted, which had directed the authority not take any persons in employment without its approval (NOC). The petitioners impugned the creation of the Task Force, various orders and directives as issued by it, and prayed that they be inducted into service. The authority did not have statutory rules of service and the question of maintainability arose. On this issue the learned Division Bench observed as follows (emphasis supplied): "Contention of learned counsel [for the petitioners] 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 [C.P.] No. 1113/2010 decided on 17.4.2010 (Imtiaz Ali Bhagat v. Ministry of Overseas Pakistanis and others). After referring to Tanweer-ur-Rehman case the following was laid down:-- ' Reading of above para indicates that the 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 ordering initial appointment would be immaterial in this regard."
' The petition was dismissed as not maintainable. Imtiaz Ali Bhagat v. Ministry of Overseas Pakistanis and others ("Imtiaz All Bhagat") had been decided by the same learned Division Bench as decided Saleh Muhammad. The authority was the Overseas Pakistan Foundation (OPF), which did not have statutory rules of service. The authority advertised a post for which the petitioner applied. He was interviewed and thereafter a list of appointees was published in which the petitioner's name appeared. However, he was not issued any posting order. On such basis, he petitioned this Court in constitutional jurisdiction. The petitioner was asked to explain how the petition was maintainable in view, inter alia, of the Supreme Court decision in Tanweer-ur-Rehman.
Learned counsel sought to distinguish his case from the position in Tanweer-ur-Rehman on the basis that in the cited decision, Tanweer-ur-Rehman had already become an employee and his services were terminated, whereas the petitioner had not yet become an employee of OPF. This submission was not accepted by the learned Division Bench, which observed that the "question involved has been finally settled by the Supreme Court in Tanweer-ur-Rehman". The learned Division Bench relied on para 19 of the judgment, which is as follows (p. 689): "19. However, this question needs no further discussion in view of the fact that we are not of the opinion that if a corporation is discharging its functions in connection with the affairs of the Federation, the aggrieved persons can approach the High Court by invoking its constitutional jurisdiction, as observed herein above. But as far as the cases of the employees, regarding their individual grievances, are concerned, they are to be decided on their own merits namely that if any adverse action has been taken by the employer in violation of the statutory rules, only then such action should be amenable to the writ jurisdiction. However, if such action has no backing of the statutory rules, then the principle of Master and Servant would be applicable and such employees have to seek remedy permissible before the Court of competent jurisdiction."
' The learned Division Bench then concluded in the passage reproduced in Saleh Muhammad, and already cited herein above. The petition was dismissed.
8. Learned counsel for the petitioners opposed the objection as to maintainability. Learned counsel relied on Pakistan Defence Officers' Housing Authority and others v. Lt, col. Syed Jawaid Ahmed 2013 SCMR 1707. With respect, that judgment does not assist the petitioners, as is clear from the summation made by the Supreme Court of the principles deducible from the case law in para 50 (pg. 1742). Reliance was placed on an unreported decision of the Supreme Court dated 09.10.2013, involving CAA, titled Federal Ministry of Defence, etc. v. Syed Muhammad Omar, etc. In that case, the respondents had succeeded in this Court. They were the employees of CAA and their grievance was that they ought to be considered preferentially in respect of certain posts. As is clear, the facts in the cited case were quite different from the position before us. Learned counsel also relied on another unreported leave refusing order of the Supreme Court dated 15.09.2011 titled Secretary Defence/Chairman CAA v. Javed lqbal Bhatti to contend that CAA did have statutory service rules.
However, the details of the service regulations, as placed before the Supreme Court, are not apparent from the leave refusing order and in any case, the respondent was an employee of CAA.
Therefore, with respect, the cited decision does not assist the petitioners' case. Learned counsel relied on a Full Bench judgment of this Court reported as Muhammad Dawood and others v.
Federation of Pakistan and others 2007 PLC (CS) 1046. Again, with respect, that decision does not assist the petitioners, since the issues involved there were different from the one at hand. Reliance was placed on Jawaid Ghafoor v. Pakistan Civil Aviation Authority and another 2010 PLC (CS) 276 (SHC; DB). It suffices to note that the petitioner there was an employee of CAA who was seeking his reinstatement. His position was therefore materially different from that of the petitioners.
9. We have carefully considered the objection as to maintainability raised by learned counsel for CAA and the reply to the same by learned counsel for the petitioners. As is clear from the foregoing, we do not, with respect, find the cases cited by learned counsel for the petitioners to be of direct relevance. Nor, again with respect, do we find the cases cited by learned counsel for CAA to be of direct relevance, other than Saleh Muhammad and Imtiaz Ali Bhagat. Absent those two cases, we would have concluded that the petitions were maintainable. The reason is that the petitioners are not employees of CAA. They seek to be placed in that position. What the impugned action, i.e., the suspension of the letters of appointment and the cancellation of the recruitment process, did was to prevent the petitioners from entering the employment of CAA. That is analogous to the situation of the petitioners in Saleh Muhammad and Inuiaz Ali Bhagat. Those petitioners also contended that they had not yet joined service and were not yet employees of the concerned authority. However, the learned Division Bench did not accept this contention. It developed the rule of non- maintainability and extended It even to situations where the relationship of employment has not yet come about, but would come about if the relief prayed for was granted.
' That of course, is the position here as well. Now, as noted above, the learned Division Bench came to this conclusion on the basis of para 19 of the Supreme Court decision in Tanweer-ur-Rehman.
We have carefully considered this para. With respect, we do not find anything therein that would necessitate the conclusion arrived at by the learned Division Bench in Saleh Muhammad and Imtiaz Ali Bhagat. In our respectful view, the observations of the Supreme Court in the passage are limited to petitioners who are actually employees of the concerned authority at the time the petition is filed. The learned Division Bench, in the passage from Imtiaz Ali Bhagat, which was applied in Saleh Muhammad, and especially in the use of the words emphasized by us, has concluded that the Supreme Court's observations in para 19 of Tanweer-ur-Rehman apply also to a person who would, were he to be granted the relief sought, become an employee of the authority that does not have statutory rules of service. In our respectful view, this is not an application of the rule reaffirmed in Tanweer-ur-Rehman but rather a development and extension of it by the learned Division Bench itself. We would, with respect, express our reservations as to whether the observations of the Supreme Court can, or ought, to be so developed or extended. In our view, the rule laid down and affirmed many times by the Supreme Court is and ought to be kept and remain confined to situations where the petitioner is actually an employee of the authority that does not have statutory rules of service. If at all it is to be extended, whether in the manner as developed by the learned Division Bench or otherwise, is a matter for the Supreme Court itself to decide.
10. Nonetheless those two decisions are judgments of a learned Division Bench of this Court. They are therefore binding upon us. It appears to us that two options are therefore available. The first is to invoke the rule affirmed by the Supreme Court in Multiline Associates v. Archimedes Cowardice and others PLD 1995 SC 423 and request the Chief Justice to constitute a larger Bench to consider the difference that has arisen. The other is of course to follow the two decisions and, applying the extended rule as developed and laid down therein, dismiss the present petitions. We reiterate that on the issue of maintainability the position of , the present petitioners is similar to the petitioners in Imtiaz Ali Bhagat and Saleh Muhammad. The same contention was raised in those petitions in favour of maintainability as we would here have found persuasive, but which of course the learned Division Bench did not accept. We have anxiously considered the two alternatives just noted. In the end, we conclude that it would not be appropriate to refer the matter to the Chief Justice for constitution of a larger Bench. The reason is that these are service matters, in which the petitioners seek employment. Matters referred to a Full Bench can on occasion take some time to resolve, for reasons that cannot be attributed to anyone. The petitioners could therefore remain in suspense for quite some time, not knowing the fate of their petitions. This may also adversely affect their options for seeking alternative employment. If the petitions are dismissed on the basis of what has been held by the learned Division Bench in Imtiaz All Bhagat and Saleh Muhammad then at least the petitioners will have closure. They will know where they stand, even though the dismissal will undoubtedly leave them in a position not to their likin
11. Accordingly, on the basis of the extended rule as developed and applied by a learned Division Bench of thisg. Closure will be comfort of sorts, even though it may be cold comfort. The dismissal may also, should the petitioners so deem appropriate, clear the way for them to approach the Supreme Court, but that of course is something for them to decide. On balance therefore, we are of the view that it would be more appropriate to follow and apply Imtiaz Ali Bhagat and Saleh Muhammad. Court in Imtiaz Ali Bhagat and Saleh Muhammad, but while expressing our own reservations with regard to the said extended rule, these petitions are dismissed as not maintainable.