Through this Judgment, this Court intends to decide the following writ petitions, in which common questions of laws and facts are raised and wires of same laws have been challenged:--
1. Tanveer Ahmed Zaffar vs. Punjab Education Foundation and others, W.P. No, 13664/2014 (the "First Petition");
2. Hassan Javed and Mohsin Rasheed Gillani vs. Punjab Education Foundation and others, W.P. No, 16223/2014 (the "Second Petition"); and
3. Usman Ali Jarral us. Punjab Education Foundation and others, W.P. No, 13669/2014 (the "Third Petition").
2. By virtue of these Petitions, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution"), the Petitioners have assailed and challenged the letters dated 5 May 2014 (the "Impugned Letter(s)") whereby the service contracts of all the Petitioners were terminated by. the Respondents/Punjab Education Foundation (the "Foundation"). The Petitioners have also challenged the decision of the Board of Directors of the Foundation (the "Board") dated 9 December 2013 (the "Impugned Decision").
A. Essential Facts of the First Petition:
3. For the sake of clarity, the facts leading to institution of the First Petition are that the Managing Director of the Foundation (the "MD") issued a notification on the 7 September 2009, whereby the Petitioner was appointed as the Deputy Managing Director (Operations) on contract basis for a period of three (3) years with a condition to remain on probation for a period of three (3) months.
This decision was made after selection by the Recruitment Committee for Senior Professionals headed by the Chairman of Board of Directors on 5 September 2009. It was specifically provided that his services will be governed under the Punjab Education Foundation (Contract Appointment)
Rules, 2005 (the "Contract Appointment Rules") and Punjab Education Foundation Regulations, 2006 (the "2006 Regulations"). On the 12 September 2009, consequent upon selection and appointment of the Petitioner by above Notification, MD intimated the terms and conditions of employment, approved by the Board, to the Petitioner. Clause 7 specifically provided that the "appointment will be on contract basis for a period of 3 years subject to satisfactory performance".
The Petitioner continued to work in the Foundation and on 30 March 2013, the Director Human Resource Management ("HRM"), with approval of the Competent Authority, extended the contract of the Petitioner from the 7 September 2012 till 6 September 2013. Similarly, on the 22 October 2013, the Deputy Director, HRM, with approval of the Competent Authority, informed the Petitioner for extension in contract for further period of six (6) months with effect from the 7 September 2013 to the 6 March 2014. It was specifically mentioned that the services of the Petitioner shall be governed under the Contract Appointment Rules and the Punjab Education Foundation Regulations, 2010 (the "2010 Regulations"). However, on 30 October 2013, the letter dated 22 October 2013 was withdrawn by the Deputy Director, HRM, with approval of the Competent Authority, without providing any justification or reason. Even after expiry of the service period of the Petitioner on the 6 September 2013, the Petitioner prolonged to work in the Foundation with salary and other benefits under the terms and conditions of the employment contract. On the 5 May 2014, the Impugned Letter was issued for and on behalf of the Competent Authority for termination of the service contract of the Petitioner as the Deputy Managing Director (Operations), and to relieve the Petitioner from services of the Foundation with immediate effect with one (1) month salary in lieu of notice period. It was informed in the letter that the contract of the Petitioner was expired on the 6 September 2013, and keeping in view the office exigencies, he was allowed to continue his job. Therefore, the Petitioner has mainly prayed to declare the Impugned Letter dated 5 May 2014 pertaining to his termination as illegal; to regularize employment of the Petitioner, or alternatively refer the matter of regularization to the Scrutiny Committee; and to declare the decision of the Board .of Directors of the Foundation dated 9 December 2013 as illegal. The prayers made in the First Petition are reproduced verbatim:
(i) Declare Impugned Letter dated 05.05.2014 and Petitioner's termination as illegal, void and without legal effect and reinstate the Petitioner to his office; till final decision of this petition, the Impugned Order's effect and operation may also kindly be suspended:
(ii) Declare Petitioner as regularized employees of PEF keeping in view the facts and circumstances of the case. In the alternative this Honourable Court may kindly be pleased to reinstate the Petitioner and direct PEF to refer the matter of regularization to the Scrutiny Committee as per the government of Punjab's Notification.
(iii) Declare PEF's Board decision dated 09.12.2013 as illegal, without jurisdiction and without lawful authority.
(iv) Restrain Respondents No, 1 to 3 from harassing the Petitioner and his family and to allow access to his personal belongings.
4. It is pertinent to mention here that on the 23 January 2014, the MD issued a warning letter to the Petitioner, with reference to earlier directions dated 22 January 2014 and 23 January 2014, to improve his efficiency and not to engage in habitual delaying tactics, having negative impact on the Foundation's performance in Chief Minister's Education Roadmap and to comply with directions of seniors in letter and spirit. On the 23 January 2014, MD also wrote for displeasure on inappropriate behavior of the Petitioner in office of MD on the 23 January 2014. It was written that the Petitioner was given clear instructions to submit urgent information in a high priority matter but he left the meeting on a defiant and arrogant manner. He was warned to improve professional behavior, observe office decorum, failing which. he would entail strict disciplinary action. On the 27 January 2014, the MD called for explanation from the Petitioner, within two (2) working days, in reference to directions of the MD on the 24 January 2014 to attend the Working Group Meeting of the District Education Authorities on 25 January 2014. It was alleged that the Petitioner was deputed to represent MD in meeting but despite clear instructions, failed to attend the meeting and deputed a junior officer for same. On the 31 January 2014, the MD called for explanation from the.
Petitioner for not submitting the "Job Descriptions of NSP and the IT department" for over a year, despite clear direction to complete pending Job Descriptions by 16 January 2014 for audit meeting on 10 January 2014. The Petitioner was directed to ensure compliance and send the Job Descriptions to the Deputy Managing Director, HRM, immediately. On the 3 February 2014, the MD again called for explanation from the Petitioner for noncompliance to MD's instructions as conveyed through the minutes of the Coordination Meeting held on 18 November 2013. The Petitioner was not present in the meeting and was required to submit reply justifying his absence from the same. On the 6 February 2014, the MD again asked for explanation from the Petitioner in reference to direction given by the MD during Steering Committee Meeting on the 29 January 2014 to share tentative list of all shortlisted/selected NSP schools. The MD informed that not observing deadlines and reluctance to share NSP information is adversely affecting work and performance in the CM's meetings, and such habitual delays reflect poor management and inefficiency on his part, in violation of decorum and discipline. On the 7 February 2014, the Petitioner was again called for explanation by the Deputy MD (HRM) to explain unprofessional behavior and non-compliance of orders, within two (2) days, for his failure to attend the Pre Stock Take meeting on 5 February 2014.
On the 6 March 2014, the Petitioner was issued a warning letter by the MD, for his reluctance to share information about NSP, position of the Petitioner for past three (3) months and unprofessional behavior on his part, which placed senior management in an awkward position in high level meetings. He was advised to comply with orders and instructions as and when given, and to improve professional behavior and maintain office discipline in future. He was also warned to be careful in his correspondence with senior management, failing which disciplinary action would be initiated against such irresponsible behavior. On the 11 March 2014, the Petitioner sent a reply in reference to letter of the MD dated 6 March 2014, explaining change of . reporting line of FAS and EVS Department, information about NSP Program, latest progress of NSP Department, comments on hiring process, synopsis of his performance since 2009, and process of victimization.
The Petitioner requested for withdrawal of the above letter of the MD.
B. Essential Facts of the Second Petition:
5. The facts succinctly revealed from the Second Petitioner that the Petitioner No, 1, Mr. Hassan Javed, was employed in the August 2007 by the Respondent No, 1 as a Project Officer on contract basis, which was subsequently extended till the 9 August 2013. The Petitioner No, 1 in the Second Petition was being governed under the Contract Appointment Rules. Even after expiration of his contract, he continued his service for a long period without any express/written extension in contract by the Foundation. However, the services of the Petitioner No, 1 were terminated on the 5 May 2014 through the Impugned Letter when he was working as the Deputy Director/Program Incharge (New Schools Program) at the Foundation. Similarly, the Petitioner No, 2, Mr. Mohsin Rashid, was employed in December.2009 as a Project Officer (Education Voucher Schemes) for a period of one (1) year, which was subsequently extended on the 30 November 2010 and 8 May 2013.
The Petitioner No, 2 in the Second Petition was being governed under the Contract Appointment Rules. Ultimately, after the expiry of the purported contract, the Petitioner No, 2 was retained as an employee till his termination on 5 May 2014 through the Impugned Letter. Earlier, the Petitioners in the Second Petition filed a petition titled Mohsin Rasheed Gillani etc vs. GoP and others, W.P. No, 19154 of 2013, seeking their regularization in which a direction was issued to the Foundation on the 31 July 2013 by the Lahore High Court to decide the representation of the petitioners, if pending, strictly in accordance with law after affording opportunity of hearing to all concerned and through well- reasoned speaking order as expeditiously as possible. On the 9 December 2013, the Chairman of Board of Directors unanimously decided, in compliance of the order of this Court dated 31 July 2013 in Mohsin Rasheed Gillani etc vs. GoP and others, W.P. No, 19154 of 2013, that the request of regularization of contract employees of the Foundation could not be acceded to. For the sake of clarity, the Petitioners in the Second Petition have mainly prayed to declare the Impugned Letters dated 5 May 2014 pertaining to termination of the Petitioners as illegal; to regularize employment of the Petitioner, or alternatively refer the matter of regularization to the Scrutiny Committee; to declare the decision of the Board of Directors of the Foundation dated 9 December 2013 as illegal; to declare the Rule 6(2)(b) of the Contract Appointment Rules and Regulation 7 of the Punjab Education Foundation Employees Service Amended Regulations, 2010 void; and to declare the actions of the Foundation as ultra vires. The prayers made in the Second Petition are reproduced verbatim:--
(i) Declare Impugned Letter dated 05.05.2014 and Petitioner's termination as illegal, void and without legal effect and reinstate the Petitioners to their offices; till final decision of this petition, the Impugned Order's effect and operation may also kindly be suspended:
(ii) Declare Petitioners as regularized employees of PEF keeping in view the facts and circumstances of the case. In the alternative this Honourable Court may kindly be pleased to reinstate the Petitioners and direct PEF to refer the matter of regularization to the Scrutiny Committee as per the government of Punjab's Notification.
(iii) Declare PEF's Board decision dated 09.12.2013 as illegal, without jurisdiction and without lawful authority.
(iv) Declare Rule 6(2)(b) of PEF Contract Appointment Rules to be violative of Articles 4, 9, 14, 18 & 25 of the Constitution as well as violative of PEF Act, 2004 and therefore void and without legal effect;
(v) Restrain Respondents No, 1 to 3 from harassing the Petitioner and his family and to allow access to his personal belongings.
(vi) Declare Regulation 7 of the Punjab Education Foundation Employees Service Amended Regulations, 2010 to be ultra vires the PEF Act, 2004 and Contract Rules, 2005.
(vii) Declare the Actions of the Respondents as ultra vires the Recruitment Policy, 2004.
C. Essential Facts of the Third Petition:
6. The facts giving rise to the Third Petition are that the Petitioner, Mr. Usman Ali Jarral, was employed by the Foundation in November 2009 on contract basis vide letter dated 29 September 2009 for a period of one (1) year, which was extended vide letter dated 19 January 2012 till 11 December 2012. Despite of the written extension in the service contract, the Petitioner continued to work in the Foundation with salary and other benefits under the terms and conditions of the service contract, and kept performing his aunties. The Petitioner in the Third Petition was being governed under the Contract Appointment Rules. However, the services of the Petitioner ' were terminated on the 5 May 2014 through Impugned Letter when he was serving as Director (Information Technology). For the sake of clarity, the Petitioner in the Third Petition has mainly prayed to declare the Impugned Letter dated 5 May 2014 pertaining to his termination as illegal; to reinstate the Petitioner to his office; and to declare the decision of the Board of Directors of the Foundation dated 9 December 2013 as illegal. The prayers made in the Third Petition are reproduced verbatim:
(i) Declare Impugned Letter dated 05.05.2014 and Petitioner's termination as illegal, void and without legal effect and reinstate the Petitioner to his office; till final decision of this petition, the.
Impugned Order's effect and operation may also kindly be suspended:
(ii) Declare order dated 09.12.2013 to be illegal.
D. Relevant Facts for all the Petitions:
7. The Foundation issued a newspaper clipping inviting persons for several posts listed in the newspaper, specifically highlighting that "the appointments will be on contract basis, extendable on the basis of performance. The post carries competitive market based remuneration packages..." It is pertinent to note that all the appointments of the Petitioners were made pursuant to this newspaper clipping. On the 28 February 2012, the Secretary (Regulations), Services & General Administration Department ("S&GAD") issued a Notification, informing that the Chief Minister has constituted a Committee to determine the eligibility and suitability of contract employees in BS-16 and above working in the Autonomous Bodies in Punjab for their appointment on regular basis. It was informed that the contract employee appointed prior to 10 November 2010 may be considered by the Committee keeping in view conditions mentioned herein. After scrutiny of the cases, the recommendations of the Committee were to be sent to respective Appointing Authority in the concerned Autonomous Body for appointment on regular basis. On the 2 March 2013, Secretary (Regulations), S&GAD issued another notification, informing that the CM has, on the 28 February 2012, constituted a Committee to determine the eligibility and suitability of contract employees in BS-16 and above working in the Autonomous Bodies in Punjab for their appointment on regular basis. The contract employee appointed prior to the 1 March 2013 were to be considered by the Committee keeping in view conditions mentioned therein. On the 9 December 2013, the Chairman of Board of Directors unanimously decided, in compliance of the order of the Lahore High Court dated 13 July 2013, that the request of regularization of the contract employees of the Foundation could not be acceded to [the "Impugned Decision"]. On the 2 January 2014, the MD issued a Notification in respect of Extension in Contract Employment, which was substituted by a Notification issued on 3 January 2014. MD directed the HRM Department in Notification dated 3 January 2014 to finalize the matter of contract renewal of all such employees who are not involved in any case of corruption, departmental inquiry, audit paras, irregular, recruitment, judicial proceedings etc. within and outside the Foundation without any further delay for the period as per past practice, excluding the pending duration, if any, till the 31 December 2013. On the 19 June 2014, the Member, the Chief Minister Inquiry Team ("CMIT"), moved a summary to the CM regarding termination of service contracts and the CM, vide Order dated 21 May 2014, desired to enquire into complaint made by Mr. Mohsin Rashid Gillani, that the Petitioners in all these Petitions were terminated because allegedly, they had pointed out some wrong doings in the administration of the Foundation. It was recommended in the summary after analyzing all the issues in detail, among others, that the Foundation may be directed to adopt zero percent (0%) tolerance across the board against wrong doings of all and the termination of four (4) officers is in accordance with the Contract Employment Rules. On the 20 June 2014, the Chairman CMIT informed the Chief Minister, the crux of the enquiry conducted by Member CMIT and fully supported the recommendations of Member CMIT in Summary dated 19 June 2014, and also suggested a special audit of the Foundation. On the 28 August 2014, the Secretary to the CM, Punjab informed that recommendations contained in Summary dated 19 June 2014 are approved, and the CM is desirous that an enquiry may be initiated against the delinquent officers involved in irregularity and may be proceeded under relevant rules of Anti- Corruption and the PEEDA Act, 2006. Therefore, the termination of all four (4)
Petitioners in all the Petitions was approved by the CM. On the 4 September 2014, Section Officer of the Schools Education Department directed the MD to take necessary action for implementation of recommendations mentioned in the Summary to the CM, as approved by the CM.
E. Submissions of the Petitioners:
8. To plead the Petitions, it has been inter alia submitted by the learned counsel for the Petitioners that the Impugned Letters are against law and facts as no inquiry prior to termination of the Petitioners has been conducted by the Respondents; that the Petitioners have not been afforded any opportunity of personal hearing which is clear-cut violation of principle of audi alteram partum; that the Impugned Letters have been issued without any lawful authority because the Board has not signed the Impugned Letters and the MD has never been given any such power; that the vires of Rule 6(2)(b) of the Contract Appointment Rules through which the MD has allegedly been bestowed powers, has been challenged to be ultra wires the Act; that since the term of the Directors of the Board as well as Chairman of the Board has expired on the 18 March 2014, as such the current Board and the Chairman cannot make any decision or validate any decision of the MD, therefore, the actions against the Petitioners are clearly void, without jurisdiction and without lawful authority; that Rules 6(2)(b) of the Contract Appointment Rules is unconstitutional and violative of the Petitioners' rights under Articles 3, 4, 9, 10- A, 14, 18 and 25 of the Constitution; that allowing the Petitioners to continue their work by the Foundation without any extension after the expiry of their contract period tantamounts to regularization of petitioners' services; that the decision dated 9 December 2013 made by the Board of the Foundation is also illegal as the Board was not mandated to decide the case of regularization of the Petitioners rather it was the Scrutiny Committee which has to look into the matter; that the Respondents have never referred the case of the Petitioners for regularization to the Scrutiny Committee as per the Government Regularization Policy; that as per the Punjab Education Foundation Service Rules, 2006 all the employees who were recruited in the Foundation after 2006 including the Petitioners were to be .considered as regular employees; that similarly placed persons have been regularized but the Petitioners have been deprived of the same, hence a discriminatory attitude has been adopted towards the Petitioners which is also a violation of the Article 25 of the Constitution; and that the act of termination of petitioners' services is based on mala fide as such liable to be set aside.
9. The learned counsel for the Petitioners has placed reliance on the case titled Samina Kanwal u.
Director Punjab Forestry Research Institute Faisalabad (PLD 2011 Lahore 563 (D.B), Marathwada University v. Seshrao Balwant Rao Chavan (AIR 1989 S.C. 1582 (1989) 3 SCC 132), National Bank of Pakistan v. Iftikhar Rasool Anjum and others (2017 PLC C.S. 453= PLJ 2017 Lahore 313), Dewan Salman Fiber Pvt. Ltd. v. Federation of Pakistan and others (2015 PTD 2304), Shafique Ahmad Khan and others v. NESCOM and others (PLD 2016 S.C. 377), Muhammad Zaman u. Government of Pakistan etc. (2017 SCMR 571), Muhammad Tariq Badar and another v. National Bank of Pakistan and others (2013 SCMR 314), State Bank of Pakistan v.
Muhammad Shafi (2010 SCMR 1994), Pakistan Red Crescent Society v. Syed Nazir Gillani (PLD 2010 S.C. 806), Walayat Ali Mir v. Pakistan International Airlines Corporation through its Chairman (1995 SCMR 650), Burhannudin Sheikh v. Natioal Bank of Pakistan (1985 CLC 2003 Karachi), Halsbury Laws of India (2015); Delegated Legislation 1005.009]0G.32, Sukhdev Singh & others v. Bagatram Sardar Singh (AIR 1975 S.C. 1331, 1975 SCR (3)619) and Maharashtra State Board v. Paritosh Bhupesh Kumar Seth etc. (AIR 1984 S.C. 1543 SCR (1) 29).
F. Submissions of the Respondents:
10. On the contrary, in reply to these petitions, the Respondents filed report and parawise comments raising certain preliminary objections regarding the maintainability of the Petitions as well as on merits. The learned counsels for the Respondents vehemently controverted the arguments advanced by the learned counsel for the Petitioners and prayed for dismissal of these Petitions on the grounds that the Foundation, being an autonomous body, recruits its employees under the Contract Appointment Rules on purely contract basis from the market and pays them market based salaries as approved by the Board of Directors; that the Petitioners have no vested right to be regularized as Rule 6(2)(a) of the Rules clearly mentioned that "such appointment shall not confer any right for regular appointment"; that the Petitioners have never been, given gesture that their services would be regularized; that the order dated 9 December 2013 was passed by the Board of the Foundation in pursuance of the Order of the Lahore High Court dated 31 July 2013 in W.P. No, 19154 of 2013 and the contempt petition filed subsequently was dismissed by the Lahore High Court vide order dated 21 January 2014, that the services of the Petitioners have been terminated in accordance with relevant laws and terms of the employment contract; that no irregularity has been committed while issuing the Impugned Letters as all the procedure and laws have been observed; that the Petitioners were enjoying extension in their contract period by the letters not issued under the signatures of the MD rather some of them under the signature of the HR Department as such at this stage they cannot assert that the Impugned Letters have been issued by the incompetent authority; that the Board of Directors of the Foundation was reconstituted vide notification dated 22 December 2014 and hence, was functioning at the time of passing the Impugned Letters; that the Foundation is an autonomous body having its own Act and the directions of the CM cannot have precedence over the Rules made under the Act; that all the positions in the Foundation are purely on contract basis and for the last 26 years no permanent position in the Foundation was ever created; that it is settled law that in contract employments an unwilling employee cannot be imposed upon an employer; that the MD has never sub-delegated any powers to the Deputy Managing Director; and that the contract employees have no vested rights to be reinstatement in service or to be regularized through constitutional petition.
11. The learned counsels for the Respondents have placed reliance on the case titled Mukhtar Ahmad and 37 others v. Government of West Pakistan through the Secretary Food and Agriculture, Civil Secretariat Lahore and another (PLD 1971 Supreme Court 846), Jahangir Mirza, Senior Superintendent of Police, Lahore and another v. Government of Pakistan through Secretary, Establishment Division and others (PLD 1990 Supreme Court 1013), Federation of Pakistan vs. Muhammad Azam Chattha (2013 SCMR 120), Waseem Ali vs. Chief Administrator Auqaf, Punjab and 2 others (2011 PLC (CS) 1630), Lt. Commander (R) Naeem Javed vs. University of Punjab, (2014 PLC (C.S) 29 Lahore), Attaullah Khan vs. Samiullah, (2007 SCMR 298) & Government of Pakistan through DG, Ministry of Interior, Islamabad vs. Farheen Rashid, (2011 SCMR 1).
G. Nub of the Matter/Moot Points:
12. In order to render/pass judgment upon the above mentioned facts, circumstances and arguments urged by the counsels for the parties at length, following moot points were framed and considered for determination of this Court, arising out of these Petitions:-- a. Whether the Impugned Letters dated 5 May 2014 were issued by the competent authority functioning under the Act? b. Whether the Board of the Foundation was duly constituted at the time of passing the Impugned Letters? c. Whether the Foundation which is the attached Department of the School Education Department, was bound under the Rules of Business to following the instructions of the Chief Minister? d. Whether all the positions of the Foundation are purely on contract basis, if not can Petitioners' case be sent to the Scrutiny Committee for regularization? e Whether the Rule 6(2)(b) of the Contract Appointment Rules is volatile of the Constitution and the Act? f. Whether Regulation 7 of the 2010 Regulations is ultra wires to the Act and Contract Appointment Rules?
13. However, having considered the submissions made by learned counsels for the Parties to the present Petitions; the precedents/case-law cited at the bar; and the conflict of opinion recited by the Petitioners and the Respondents, the questions which crop up for consideration broadly have been reconstructed and summarized for rendering decision in these Petitions, as follows:
(i) Whether the instant Writ Petitions are maintainable against the Foundation?
(ii) Whether the Impugned Letters are issued contrary to the Act and the Contract Appointment Rules?
(iii) Whether contractual employees of the Foundation are entitled to regularization/extension of their contract under the facts and circumstances of the case?
(iv) Whether the Petitioners were entitled to a right of hearing before their dismissal?
14. This Court has given anxious considerations to the contentions of the learned counsels for the Parties and has gone through the record annexed therewith.
H. The Punjab Education Foundation:
15. Before addressing the questions of termination and regularization of the Petitioners in order to resolve the controversy, to deal with the issues raised, and to better appreciate the question mooted above for dilating any determination, it would be of relevance to give a brief overview of the law, structure and functions of the Foundation.
16. Importantly, the Foundation was established under the Punjab Education Foundation Act, 1991 as an autonomous statutory body to encourage and promote education on non- commercial/non- profit basis. The Foundation was restructured under the Punjab Education Foundation Act, 2004 [the "Act"] for the promotion of education, especially encouraging and supporting the efforts of the private sector in providing education to the poor, through public private partnership, and matters ancillary thereto.
17. The Foundation, therefore, is a statutory body created under the Act, and is listed at Entry 35 of the First Schedule of the Punjab Government Rules of Business, 2011, as an autonomous body working/attached with the School Education Department. The Second Schedule of the Punjab Government Rules of Business, 2011 provides distribution of business among departments of the Government and entrusts the School Education Department with responsibility to promote quality education through public--private partnership through the Foundation, and to administer the Act of the Foundation.
18. Section 3 of the Act establishes the Foundation, a body corporate having perpetual succession and a common seal. Section 4 of the Act carries functions of the Foundation, which include:-- "(i) provide financial assistance for the establishment, expansion, improvement, and management of educational institutions and allied projects;
(ii) provide incentives to students, teachers, Educational Institutions;
(iii) promote public-private partnerships relating to education;
(iv) provide technical assistance to Educational Institutions for testing policy interventions and innovative programmes for replication;
(v) rank private educational institutions based on educational standards;
(vi) raise funds through donations, grants, contributions, subscriptions etc.;
(vii) assist Educational Institutions in capacity building, including training of teachers; and (viii)undertake any other function as may be assigned to it by , the Board with the approval of the. Government."
19. Under Section 5 of the Act, the executive and managing authority of the Foundation lies with its Board of Directors, who also has powers to appoint the employees and other' functionaries of the Foundation and determine the terms and conditions of their employment. Section 5 specifically provides: "5. Board of Directors:
(8) The Board shall appoint the employees and other functionaries of the Foundation and determine the terms and conditions of their employment.
(9) No act or proceedings of the Board shall be invalid merely on the ground of the existence of any vacancy or any defect in the constitution of the Board.
(10) The Board may delegate any of its powers to the Managing Director to enable him to carry out its functions.
(11) The Board shall establish an effective system for monitoring, supervision and control of the discharge of functions under the Act."
20. The Managing Director/Chief Executive Officer [the "MD"] of the Foundation is appointed under Section 6 of the Act, and has all such powers and can do all such acts and things as are authorized by the Board. Section 11 empowers the Board to constitute financial, technical, advisory and other committees for carrying out the purposes of the Act. Under Section 13 of the Act, the Government is authorized to make rules for carrying out the purposes of the Act. Under Section 14 of the Act, the Board may, with the previous approval of the Government, make regulations as may be necessary to carry out the purposes of the Act. Under Section 13A of the Act, the Foundation is required to be bound by and shall give effect to the directions of the Government in the performance of its functions.
21. It follows from the abovementioned Sections of the Act that the executive and managing authority of the Foundation lies with its Board of Directors, who also has powers to appoint the employees and other functionaries of the Foundation and determine the terms and conditions of their employment. Further, MD can exercise all such powers and can do all such acts and things as are authorized by the Board. Therefore, all functions and powers of the Board and MD have elements of public authority.
I. The Punjab Education Foundation (Contract Appointment) Rules, 2005:
22. Under Section 13 of the Act, the Punjab Government has made the Punjab Education Foundation (Contract Appointment) Rules, 2005 [the "Contract Appointment Rules"]. Rule 2(b), (d) and (h) respectively defines Appointing Authority, Contract Appointment and Selection Committee, as follows: "(b) "Appointing Authority" means Managing Director of the Foundation; ...
(d) "Contract Appointment" means appointment made under specific agreement for a fixed period;
(h) "Selection Committee" means a committee to be constituted by the Board for recruitment under these rules;"
23. Rule 3 of the Contract Appointment Rules authorizes the Foundation to employ persons on contract basis: "3. Employm ent on Contract Basis:--
(a) The Foundation may employ on contract such persons who are otherwise eligible for the post through an open and transparent selection process.
(b) Such employment will be made through the Selection Committee."
24. Rule 5 of the Contract Appointment Rules provides method of appointment in accordance with the Rules, on merit based, and by Selection Committee on invitation through newspapers: "5. Method of Recruitment:--
(1) All contract appointments will be made:
(a) In accordance with the provisions of these rules; and
(b) On the basis of merit. For this purpose, Selection Committee will invite applications through newspaper for appointment under these rules.
(2) When a post is created by the Board or the Managing Director, the Appointing Authority will forward a requisition to the Selection Committee.
(3) Subject to the approval of the Board, the Appointing Authority may extend the contract and re- negotiate new terms and conditions of the contractual appointment.
(4) In case a government servant applies for any such appointment and is selected, the Foundation may request the Government for borrowing the services of such servant. The terms and conditions of such contract employees will be settled by the Board." (emphasis added)
25. Rule 6 of the Contract Appointment Rules provides terms and conditions of contract appointment: "6. Terms and Conditions of Contract Appointment:-
(1) The terms and conditions of contract appointment will be settled by the Appointing Authority.
(2) Without prejudice to the generality of above said:--
(a) Such appointment will not confer any right for regular appointment.,
(b) The Appointing Authority may, without assigning any reason, terminate services of the contract employee on one month's notice or one month's pay in lieu thereof;
(c) The contract employee may resign from the service by giving one month's notice or one month's salary in lieu thereof;
(d) The appointment will be non- pensionable; and
(e) All contract employees will be governed by the rules and regulations of the Foundation.
(3) The contract appointment will be post specific. The appointee may not claim any right for transfer from one post to another. He may, however, be transferred anywhere in the province of Punjab.
(4) Contract employees shall have to undergo essential training programs, if deemed necessary.
(5) In case a loss is caused to the Foundation by any act of the contract employee, the contract may be liable to be terminated by the Foundation and the loss so caused may be recovered from such employee as arrears of land revenue."
26. Rule 9 of the Contract Appointment Rules provides performance evaluation of the contract employees: "9. Performance Evaluation:-- The performance and evaluation of the contract employee will be assessed on the basis of attitudes, work output, efficiency, conduct, dedication, and service delivery and the performance by the management."
27. The abovementioned Contract Appointment Rules empowers the Foundation to employ any person on contract basis in accordance with the Rules through the Selection Committee constituted by the Board for recruitment under the Contract Appointment Rules. The contractual appointments are made on the basis of merit after inviting applications through newspaper. The MD is also authorized to settle terms and conditions of the contract, which does not confer any right for regular appointment to the contractual employees. The MD has also been authorized to terminate the services of the contract employees without assigning any reason or without the approval of the Board or the Provincial Government. However, the MD can only extend the contract and re-negotiate new terms and conditions of the contractual appointment with the approval of the Board.
J. The Punjab Education Foundation (Conduct of Business) Rules, 2005:
28. Under Section 13 of the Act, the Government has also made the Punjab Education Foundation (Conduct of Business) Rules, 2005 (the "Conduct of Business Rules"). Rule 3 of the Conduct of Business Rules provides powers and duties of the Board of Directors of the Foundation: "3. Powers and Duties of the Board of Directors.--(1) The Board may:--
(a) Determine the direction and scope of the activities of the Foundation;
(e) Delegate any of its powers to the Managing Director;
(f) Determine human resource requirements, salary structure and incentives for the employees of the Foundation;
(g) Recruit, dismiss, appoint, transfer and promote employee of the Foundation;.
(3) In case the Board becomes non-existent or non-functional for any reason, the Managing Director may, with the approval of the Government, perform functions of the Board."
29. Rule 5 of the Conduct of Business Rules provides responsibilities of MD: "5. Responsibilities of the Managing Director.--The Managing Director shall:-
(a) be the Chief Executive of the Foundation and shall cause the orders and decisions of the Board to be carried out;
(e) act as Secretary and record the minutes of the meeting of the Board, maintain the records of the proceedings of the Board and keep the minutes open for inspection by any member during office hours;
(f) exercise all the executives, financial and administrative powers delegated by the Board; ...
(h) carry out all duties as assigned to him from time to time by the Board;"
30. It generally follows from the above mentioned Rules that the Conduct of Business Rules empowers the Board to recruit, dismiss, appoint, transfer and promote employee of the Foundation. However, the MD is empowered to exercise all such functions and powers delegated by the Board and has powers to perform the functions of the Board, with the approval of the Government, in case the Board becomes non-existent or non-functional for any reason.
K. The Punjab Education Foundation Service Rules, 2006:
31. The Governor of the Punjab has also made the Punjab Education Foundation Service Rules, 2006 (the "Service Rules") which provides provisions pertaining to Seniority (Rule 3), Termination of Services (Rule 4), Retirement (Rule 5), Transfer (Rule 6), Leave (Rule 7), Medical Facilities (Rule 8), General Provident Fund (Rule 9), Pension Fund (Rule 10), Salary (Rule 11), Benevolent Fund (Rule 12), and Welfare Fund (Rule 13).
32. The Service Rules recognize the "Contract Appointment", i,e, "appointment made under a specific agreement fora fixed period". However, it does not contain any specific provision for the contractual appointments. The Service Rules contains a "Saving" clause which states that: "The existing employees of the Foundation, who are otherwise eligible, shall be deemed to have been regularized from the date of their appointment/absorption in the Foundation."
L. The Punjab Education Foundation Employees Service Regulations (Amended), 2010
33. Under Section 14 of the Act, in consonance with the permission granted by the Education Department, Government of the Punjab dated 14 April 2010, the Competent Authority has made the Punjab Education Foundation Employees Service Regulations (Amended), 2010 [the "2010 Regulations"]. These 2010 Regulations has repealed the Punjab Education Foundation Regulations 2006. Under Regulation 1(2)(b) of the 20 10 Regulations, the Regulations apply to "a person who is employed against a sanctioned post or on temporary basis as and when required for a specific period on specific terms and conditions".
34. Regulation 3 of the 2010 Regulations provides Recruitment Procedure: "3. Recruitment Procedure.--The appointments shall be made' through Board or Selection Committee(s) notified by the Board on its behalf All appointments shall be made as per the Human Resource Policies of the Foundation."
35. Regulation 4 of the 2010 Regulations provides Terms and Conditions of Employment: "4. Terms and Conditions of Employment.--The terms and conditions of an employee shall be the same as per the Human Resource Policies of the Foundation."
36. Regulation 5 of the 2010 Regulations provides ending of employment: "5. Ending of Employment.--Notwithstanding what is stated here in above, Foundation reserves the absolute right to terminate the employment of any member of staff at any time in accordance with the terms and conditions of employment. At the ending of employment an employee shall be governed as per Human Resource Policies of the Foundation whereas in case employees recruited before the restructuring of the Foundation in 2004, shall be governed as per applicable rules notified by the Government time to time."
37. Regulation 16 of the 2010 Regulations provides Conduct and Procedure for Disciplinary Action: "16. Conduct & Procedure for Disciplinary.--Every employee shall confirm to and abide by the Foundation's Regulations, and shall observe, comply with and abide by all orders, which may from time to time be given by any person under whose control he/she may for the time being be placed. Whereas an employee recruited before the restructuring of Foundation in 2004, shall be governed as per applicable rules notified by the Government from time to time. The procedure for disciplinary action is as per Human Resource Policies of the Foundation."
38. The above-mentioned 2010 Regulations apply to a person who is employed against a sanctioned post or on temporary basis for a specific period on specific terms and conditions.
These Regulations empowers the Board or the Selection Committee of the Board to appoint employees on terms and conditions mentioned in the Human Resource Policies. Under the 2010 Regulations, the Foundation has further absolute right to terminate the contract in accordance with the terms and conditions of the contract.
M. Determination:
39. Having mentioned all the relevant provisions of the Act, the Contract Appointment Rules, the Conduct of Business Rules, the Service Rules and the 2010 Regulations, now I would like to thrash out the moot points culled out of the Petitions, mentioned above as under:
(i) Whether the instant Writ Petitions are maintainable against the Foundation?
40. The legal question which eminently calls for the resolution of the above-mentioned moot point, is that whether the employment of the Petitioners was governed under the statutory rules or not.
(a) What constitutes rules to be statutory:
41. To determine this question, I intend first to see the test and criteria laid down by the Honourable Supreme Court and the High Court(s) in various judgments in this regard and then find out whether the said test and criteria is applicable to the case of the Petitioners.
42. It was held in the case titled Masood Ahmed Bhatti vs. Federation of Pakistan and others (2012 SCMR 152) in para 9 by the Honourable Supreme Court that the rules adopted by reference in the statute itself applicable to and binding on a statutory body are statutory rules: "whatever rules were in place governing the employment of the appellants in the T&T Department, were adopted by reference in the statute itself and were made applicable to and binding on the Corporation. There can be little doubt that by virtue of Section 9, ibid such rules acquired statutory status having been sanctified by the PTC Act itself We can, therefore, conclude without difficulty that the rules of employment which were applicable to the appellants during their service with the Corporation were statutory rules."
43. However, in a recent judgment, Muhammad Zaman v. Government of Pakistan etc. (2017 SCMR 571), the Honourable Supreme Court has elaborated the criteria for the rules to be statutory, and has laid down that "the test of whether rules/regulations are statutory or otherwise is not solely whether their framing requires the approval of the Federal Government or not, rather it is the nature and efficacy of such rules/regulations. It has to be seen whether the rules/regulations in question deal with instructions for irternal control or management, or they are broader than and are complementary to the parent statute in matters of crucial importance. The former are non- statutory whereas the latter are statutory. ... A perusal of the Regulations suggests that they relate to pension and gratuity matters of the employees of SBP and therefore it can be said that the ambit of such Regulations is not broader but narrower than the parent statute, i,e, the Act. Thus the conclusion of the above discussion is that the Regulations are basically instructions for the internal control or management of SBP and are therefore non-statutory. Hence the appellants could not invoke the constitutional jurisdiction of the learned High Court which was correct in dismissing their writ petition." (emphasis added).
44. Similarly, in another case titled Shafique Ai mad Khan and others v. NESCOM and others (PLD 2016 S.C. 377), the Honourable Supreme Court has held that: "12. ... Under Section 26 of the Ordinance, the Federal Government was empowered to make Rules for carrying out the purposes of the Ordinance, while under Section 27 of the Ordinance, the Authority was empowered to make Regulations to provide for the matters for which provision is necessary or expedient for carrying out the purposes of the Ordinance. ... The Rules made under Section 26, in view of their nature, were given statutory status while the Regulations made under Section 27 of the Act, in view of their nature, were treated as non-statutory. ... ....But a survey of all these judgments would reveal that it is not the sole criterion which makes them statutory or otherwise. It is indeed their nature and area of efficacy which are determinative of their status. Rules dealing with instructions for internal control or management are treated as non-statutory while those whose area of efficacy is broader and are complementary to the parent statute in the matters of crucial importance are statutory.
13. An Authority which has been established for higher objectives as is provided in the preamble and other provisions of the Act, cannot thrive and flourish, if its rules are not abided by or enforced on being violated. What good would they bring to the Authority when they are ornamental rather than statutory? What purpose would they serve when whim of anybody at the higher pedestal could replace them with impunity? Unaccounted exercise of unfettered powers is dangerous and even devastating for an institution of this type. Whether it is exercise of powers or exercise of discretion, better and more uniform results in long term could only be achieved when it is structured and streamlined. Autonomy, independence and efficacy of the Authority are better attained with statutory rather non-statutory Rules. ... Employees whose terms and conditions of service are regulated by non-statutory rules are more exposed to mischief than those whose terms and conditions of service are regulated by statutory rules. It would rather be naive and even myopic to equate the rules dealing with the matters of crucial importance having so wide a scope and area of efficacy with the instructions meant for internal management and thereby deprive them of their statutory status. We, thus, hold that the Rules made by the Authority under Sections 7, 9 and 15 of the Act cannot be confused or even compared with the Rules and Regulations framed under other enactments without the approval of the Federal Government. ... It thus follows that the rules framed under Sections 7, 9 and 15 of the Act are statutory on all accounts and by every attribute. They are thus declared as such..." (emphasis added)
(b) Writ Petition not maintainable against non-statutory rules:
45. It has been held in numerous judgments that if the employment of employees is contractual in nature governed under non-statutory rules and their services were terminated as per their contractual terms and conditions of service, then on such account the constitutional petitions before the High Court are incompetent and had to fail. (see generally, Muhammad Zaman v.
Government of Pakistan etc. (2017 SCMR 571), IPC vs. Arbab Altaf Hussain, (2014 SCMR 1573), Muhammad Qamar vs. Oil and Gas Regulatory Authority, (2016 PLC (CS) 1066 [Lahore]), Qazi Tehmid Ahmed vs. Secretary Ministry of Petroleum, (2015 PLC(CS) 449 [Lahore]), Rehan Ali vs. Ministry of Technical Professional, (2014 CLC 503 [Islamabad]), Hyderabad Electric Supply Company vs. Mushtaq Ali Brohi (2010 PSC 1392), Muhammad Naseer Khan vs. General Manager, Sui Northen Gas Pipe Lines Ltd, 2013 PLC(CS) 698 [Peshawar], Usman Ghani vs. Islmia University, (2012 PLC(CS) 830 [Lahore]), Chairman PIA vs. Tayyab Husnain, (2012 PLC(CS) 696 [Islamabad]), Rizwan Ahmad Bhatti vs. Federation of Pakistan, (2012 PLC(CS) 681 [Islamabad]), Abdur Razaq vs. District Council, Peshawar and another, (1994 CLC 1733 [Peshawar]) and Munir Hussain vs. PIA, (2007 PLC(CS) 405 [Lahore]).
46. The Honourable Supreme Court, in the case of Abdul Wahab vs. Habib Bank Ltd., (2014 PLC(CS)
SC 393), has elaborated the principle that the cases where the employment/service(s) were not regulated by any law, but by non-statutory rules or contractual stipulations, and no specific forum was designated for the resolution of such service issues, an infringement of any condition of such a contract shall at the most entitle and clothe the employees to avail his ordinary remedy for the breach of contract and wrongful action against him, before the Court of plenary jurisdiction. In such a situation, it could not be urged that the fundamental right(s) of the employee had been violated conferring upon him a right to enforce the same in terms of Article 199 of the Constitution.
47. In some other cases, the law has been settled that the relationship between any corporation having no statutory rules and contractual employee governed under non-statutory rules is of "master and servant", and the constitutional petition in such cases is not maintainable. His remedy against wrong dismissal or termination is only to claim damages (see generally, Executive Council, Allama Iqbal Open University vs. M. Tufail Hashmi, (2010 SCMR 1484) Pakistan International Airline vs. Tanweer-ur-Rehman, (PLD 2010 SC 676), Guiasuddin Sheikh vs. Federation of Pakistan, (2007 PLC(CS) SC 140), Pakistan International Airline vs. Noreen Naz Butt (2017 PLC (CS) 923 [Lahore]), Lt. Col. Rtd. Sultan Zeb Khan vs. Board of Governors, Fazle Haq College, (2015 PLC(CS) 1385 [Peshawar]), Shaukar Ali vs. Managing Director KTWMA, (2015 PLC(CS) 782 [Lahore]), Noor Badshah vs. United Bank Limited, (2015 PLC(CS) 468 [Lahore]), Amir Shahzad Chaudhry vs. Chairman, Bank of Punjab, (2015 PLC(CS) 423 [Lahore]), Kamran Ahmad vs. WAPDA, 2014 PLC(CS) 332 [Lahore]), Zulfiqar Cheema vs. Technical Education and Vocational Training Authority, (2011 PLC(CS) 914 [Lahore]), Naweed Akhtar Cheema vs. Chairperson, TEVTA, (2011 PLC(CS) 803 [Lahore]), Bashir Ahmad Sheikh vs. SME Bank Ltd, (2008 PLC(CS) 1179 [Islamabad]), and Ali Gohar vs. Managing Director Sui Northern Gas Pipe Lines Ltd., (1998 PLC(CS) 828 [Peshawar]).
48.Similarly, the Lahore High Court, in the case of Kamran Ahmad vs. WAPDA, (2014 PLC (CS) 332 [Lahore]), relying on the case of the Honourable Supreme Court titled Anwar Hussain vs. Agricultural Development' Bank of Pakistan (PLD 1984 SC 194), has reproduced the relevant extract and principle established by the august Supreme Court: "The test of the employer/employee relation is the right of the employer to exercise control of the details and method of performing the work. It follows that if the relationship is the result of a contract freely entered into by the contracting parties, then the principle of Master and Servant will apply. The Principle, however, will not apply if some law or statutory rule intervenes and places fetters upon the freedom of the parties in the matter of the terms of the contract. It is on this principle that a civil servant for whom there are constitutional safeguards, is not governed by the principle of Master and Servant; for he is possessed of a legal character for the enforcement of which he can bring an action. Even where the employee is not a civil servant but there are statutory safeguards governing his relationship with the employer and placing restrictions on the freedom of the parties to act, the general law of Master and Servant will not apply. In such cases the employer would be bound to follow the procedure provided for in the statute or the statutory rules before terminating the service of the employee and in the absence of conformity to such procedure, the termination of service would not be clothed with validity and the employee will be entitled to an action for his reinstatement."
(c) Writ Petition maintainable against statutory rules:
49. The Honourable Sindh High Court in the case of Burhannudin Sheikh vs. National Bank of Pakistan (1985 CLC 2003 Karachi), has held that: "There is no substantial difference between rule, regulation and bye-law inasmuch as these are subordinate by delegation under powers conferred by the statute. A rule framed under a statute applies uniform treatment to everyone or to all members of some group or class. The Respondent No, 1 is required by the statute to frame bye-laws and rules inter alia for the purpose of the duties and conduct and conditions of service of officers and other employees. These rules and bye-laws impose obligation on the statutory authority. The statutory authority cannot deviate from the conditions of service. Any deviation will be enforced by legal sanction of declaration by Courts to invalidate action in violation of rules, regulations and bye-laws. The existence of rules, regulations and bye-laws under the statute is to ensure regular conduct with a distinctive attitude to that conduct of a standard. The statutory rules and bye-laws in this case under consideration give the employees a statutory status and impose restriction on the employer and the employee with no option to vary the conditions. An ordinary individual in a case of master and servant contractual relationship enforces breach of contractual terms. The remedy in such contractual relationship of master and servant is damages because personal service is not capable of enforcement. In cases of statutory bodies there is no personal element whatsoever because of the impersonal character of statutory bodies. In the case of statutory bodies it has been said that the element of public employment of service and the support of statute requires observance of rules, regulations and bye-laws. Failure to observe requirements by statutory bodies is enforced by Courts by declaring action in violation of rules and regulations to be without lawful authority and would be subject to the supervisory jurisdiction of this Court.
For the foregoing reasons, we hold that rules framed by the Respondent No, 1 have the force of law.
The employees of the Bank have a statutory status and they are entitled to declaration of being in employment when their dismissal or removal or action is taken in contravention of statutory provision and would be subject to the supervisory jurisdiction of this Court." (emphasis added)
50. The Lahore High Court in the Kamran Ahmad case supra, in para 23, has established that: "23. the larger Bench of august Supreme Court deduced and summarized the following principles of law:---
(i) Violation of Service Rules or Regulations framed by the Statutory bodies under the powers derived from Statutes in absence of any adequate or efficacious remedy can be enforced through writ jurisdiction.
(ii) Where conditions of service of employees of a statutory body are not regulated by Rules/Regulations framed under the Statute but only Rules or Instructions issued for its internal use, any violation thereof, cannot normally be enforced through writ jurisdiction and they would be governed by the principle of 'Master and Servant'.
(iii) In all the public employments created by the. Statutory bodies and governed by the Statutory Rules/Regulations and unless those appointments are purely contractual the principles of natural justice cannot be dispensed with in disciplinary proceedings.
(iv) Where the action of a statutory authority in a service matter is in disregard of the procedural requirements and is violative of the principles of natural justice, it can be interfered with in writ jurisdiction..."
51. In the case of Nem.at Ullah vs. Chairman Governing Body, Worker Welfare Board, (2017 PLC SC 1), it has been held in para 19 that: "19. For what has been discussed above, from constitutional, and all legal angles we are of the considered view that the services of the appellants are fully protected by the statutory rules, referred to above in the earlier para of the judgment and any invasion on their service benefits and rights by the authorities entitle them to approach the High Court through Constitution Petition ..."
52. In another case, Dr. Ishaque Muhammad Shah vs. President, National Bank of Pakistan, (2010 PLC(CS) 748 [Karachil), the Honourable Sindh High Court has held that in order to maintain a petition, petitioner has to demonstrate that he was governed by statutory rules of service and that while terminating or separating him from the service, the employer has violated such rules and if such fact of violation is established, the Court will exercise its constitutional jurisdiction and come to rescue the employee who has been wronged.
53. Same principle was enunciated by the Honourable Supreme Court in the case titled PTCL vs. lqbal Nasir, (2011 PLC(CS) SC 623) which is as under: "24. However, this Court, in the case of Principal Cadet Collage Kohat v. Mohammad Shoaib Qureshi (PLD 1984 SC 170), while dealing with the question, as to whether in absence of any breach of statutory -provision the employees of a corporation can maintain an action for reinstatement, held that where the conditions of service of an employee of a statutory body were governed by statutory rules, any action prejudicial taken against him in derogation or in violation of the said rules could be set aside by a writ petition; however, where his terms and conditions were not governed by statutory rules but only by regulations, instructions or directions, which the institution or body, in which, he was employed, had issued for its internal use, any violation thereof would not, normally, be enforced through a writ petition." (emphasis added)
54. It is an established principle that constitutional petition is maintainable against a statutory body, having statutory rules governing the terms and conditions of employment of its employees.
(Masood Ahmed Bhatti vs. Federation of Pakistan, (2012 SCMR 152); and Syed Azam Raza vs. Sindh Agriculture University, 2014 PLC(CS) 1177 [Sindh]).
55. Now coming to the facts of the present Petitions, it stands established that under Section 13 of the Act, the Government has been given absolute power to make rules for carrying out the purposes of the Act through a notification. The Act does not specifically allow the Board, the Foundation or the Federal Government to appoint any employee on contractual basis. It is evident, however, that the Provincial Government made the Rules through Notification No, S.O. (S-VII)1- 33/2004 dated 26 October 2005 to allow the Foundation to engage personnel on contractual basis and to govern the terms and conditions of their service contracts. While doing so, the Provincial Government has exercised its statutory powers under Section 13 of the Act, which generally allows the Provincial Government to make rules through notification. The Rules, therefore, are exclusively within the domain of the Provincial Government for the employment in the Foundation and unless the Rules are amended, repealed, modified or re-enacted under the Act, the same have a binding statutory force. Section 13 of the Act does not provide that the recruitment rules are to be made in any particular manner, nor does it prescribe the special method for app ointment of candidates to the posts. Therefore, the Contract Appointment Rules fulfills the only criteria mentioned in the Act, and it is an admitted position that the Contract Appointment Rules have been framed as per the mandate of law ibid.
56. Further, the Contract Appointment Rules, having been sanctified by the Government, were applicable to the Petitioners during their service with the Foundation, and were adopted by reference in the statute itself and were made applicable to and binding on the Foundation.
Although the power of contractual appointment has not been specifically given in the Act itself, but the Government has notified in a legal manner the Contract Appointment Rules in matters of crucial importance. They are not instructions for internal control or management, and area of efficacy of the Contract Appointment Rules is broader. These Contract Appointment Rules framed under a statute, applies uniform treatment to everyone contractually employed in the Foundation, and impose obligation and restrictions on the statutory authority, which cannot deviate from the Contract Appointment Rules.
57. Therefore, the Contract Appointment Rules made under Section 13 of the Act, in view of their nature discussed above, have statutory status, and any deviation from the same can be enforced by legal sanction of declaration by a competent Courts of jurisdiction to invalidate action in violation of the Contract Appointment Rules. The existence of the Contract Appointment Rules under the statute is to ensure regular conduct of the Foundation and its contractual employees with a distinctive attitude to that conduct of a standard. An Authority which has been established for higher objectives as is provided in the preamble and other provisions of the Act, cannot thrive and flourish, if its rules are not abided by or enforced on being violated.
58. The Petitioners were, admittedly, employees of the Foundation who accepted employment on the basis of their service contracts and had agreed to be governed by the Contract Appointment Rules and the 2006 Regulations, repealed by the 2010 Regulations. The Petitioners were employed by the Foundation as a result of a statutory process of the Foundation and they were taken into employment on their unequivocal acceptance of the terms and conditions of employment.
Therefore, the services of the employees of the Foundation, including services of the Petitioners under their respective terms and conditions of the service contracts, are squarely and undoubtedly regulated by the binding Contract Appointment Rules, which do not lack statutory protection.
59. In view of the above principles laid down by the Honourable Courts in Pakistan, the Petitioners have established that they were governed by statutory rules of service. Being amenable to the constitution jurisdiction of a person/statutory body is one thing and to enforce the terms and conditions of service through constitutional jurisdiction is altogether a different thing. However, it is yet to be seen by this Court that the Foundation has violated such statutory rules and if such fact of violation is established, the Court will exercise its constitutional jurisdiction and come to rescue the Petitioners because when services are protected by statutory rules, any invasion on their service benefits and rights by the authorities entitle them to approach the High Court through Constitution Petition.
60. Now since it has been established that the Rules are statutory in nature and writ petition can be filed for any violation of the statutory rules, it remains to be seen that the whether any rule has been violated or any invasion on their service benefits and rights by the authorities have been done?
(ii) Whether the Impugned Letters are issued contrary to the Act and the Contract Appointment Rules?
61. I now turn to the issue that whether any violation of the statutory Contract Appointment Rules or the Act has been committed by the Foundation or not. For dilating decision on this question, reference to the documents produced by the parties in the present Petitions is necessary.
62. In compliance of Rule 5(1)(b) of the Contract Appointment Rules, the Foundation issued a news clipping specifically highlighting that "the appointments will be on contract basis, extendable on the basis of performance. The post carries competitive market based remuneration packages."
Therefore, the Petitioners were aware at the very beginning that their appointments are being made on contractual basis and on market-based salary, which was different from the other regular employees, if any. The Petitioners applied for their respective posts and were awarded their respective positions on contractual basis. It is of paramount importance to note here that it was specifically mentioned in the terms and conditions of the appointments of the Petitioners that they were governed by the Contract Appointment Rules, which have statutory backing.
63. Although Section 5(8) of the Act empowers the Board to appoint the employees and other functionaries of the Foundation and determine the terms and conditions of their employment.
However, such powers have been delegated through a statutory instrument, the Contract Appointment Rules, to the MD. Rules 6 of the Contract Appointment Rules empowers the Appointing Authority, the MD, to settle terms and conditions of the contract appointment, who could also terminate the services of the contract employees on one month's salary in lieu thereof without assigning any reason or without approval of the Board or the Government. However, the Appointing Authority, the MD, can only extend the contract re-negotiate new terms and conditions of the contractual appointment of the Petitioners with approval of the Board under Rule 5(3) of the Contract Appointment Rules.
64. The Petitioners were intimated for non-renewal of their contract or termination on the 5 May 2014 through Impugned Letters issued for and on behalf of the Competent Authority, which is not defined in the Contract Appointment Rules or the Act. Therefore, it is to be seen that whether the MD, the Appointing Authority, under the Contract Appointment Rules have made such orders or not.
65. Admittedly, the order of MD dated 5 May 2014 has been annexed (Annexure G) in the CMA No, 7/2017, whereby the MD has noted that the contracts of the Petitioners have been expired and the MD has ordered the termination of the services of the Petitioners. Therefore, it prima facie is clear that the order was passed by the MD for termination of the contracts of the Petitioners and therefore, the Petitioners were intimated of the same vide the Impugned Letters. There does not seem any ambiguity that the order was passed by the competent authority having powers under the applicable law, as discussed above. As detailed above, the Impugned Letter were issued in compliance with the directions of the MD. Apparently, no violation of contract of employment or the statutory Contract Appointment Rules was made by the Foundation.
66. Even otherwise, the Petitioners were enjoying extensions in their respective contracts through letters none of which were signed by MD, but the HR Department which was not Appointing Authority. They had not raised any objection for such matters, and only raised such objection in case of their termination.
67. Further, it is to be noted that on the 19 June 2014, Member, CMIT, had moved a summary to CM regarding termination bf service contracts, in which it was recommended after analyzing all the issues in detail, among others, that the termination of four (4) officers, being the Petitioners, is in accordance with the Contract Employment Rules. The recommendations in this summary were supported by the Chairman CMIT on the 20 June 2014, and on the 28 August 2014, Secretary to CM, Punjab informed that recommendations contained in Summary dated 19 June 2014 were approved.
Therefore, the termination of all four (4) Petitioners in all the Petitions was also approved by the CM.
68. It is clear that the decision and action of the Foundation to employ the Petitioners, as well as other contractual employees under the Contract Appointment Rules, was primarily on market based salaries, founded upon commercial, business, administrative wisdom, and for the better interest of the Foundation, which might involve and be based upon the ability, efficiency and skills of the employees required for specific period. Therefore, it is for the Foundation to decide about the usefulness of the employees or otherwise. Obviously, it had to be the evaluation of the Foundation as to who was the employee(s) worthy of serving the best interest of the Foundation, and as to who was more suitable, so as to be retained and those who should retire after their expiration of contract.
69. Impugned decisions for not extending the contracts by the Foundation had been made seemingly pursuant to deliberations and approval of the MD and the CM, therefore, the question of arbitrariness or illegality had no relevance to the matter.
70. The counsel for the Petitioners has not cited any statutory rule or provision of the Act which may have been violated by the Foundation for terminating the employment of the Petitioners. Therefore, the Petitioners' appointment being purely temporary on contract basis, their services in terms of his employment contract could be terminated in the absence of any alleged violation of provision of law/statutory rules. They would be entitled to one month's notice or salary in lieu thereof, as permissible to them under the terms and conditions of the contract.
71. Such decisions cannot justifiably be interfered by this Court under its constitutional jurisdiction.
The Petitioners have failed to point out any contravention of their fundamental rights by the Foundation to satisfy the conditions warranting interference by this Court in its constitutional jurisdiction. Consequently, the present Constitutional Petitions are held to be not maintainable in such circumstances and are accordingly dismissed.
(iii) Whether contractual employees of the Foundation are entitled to regularization/ extension of their contract under the facts and circumstances of the case?
72. In the case of Federation of Pakistan vs. Muhammad Azam Chattha (2013 SCMR 120), the contract employee was appointed as Presiding Officer of Banking Tribunal for a period of three (3) years but his contractual appointment was terminated by the competent authority after about two years. It was held that the 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. It was held in the case of Waseem Ali vs. Chief Administrator Auqaf, Punjab and 2 others (2011 PLC
(CS) 1630 [Lahore 1) that on the basis of contractual employment, the competent authority was neither required nor bound to extend the contract period of the petitioner or to regularize his services. Similarly, in the case of Sajid Ali Shah vs. WAPDA, (2013 PLC (C.S.) 715 [Peshawar)), it was held that the employer was always to be held so arbiter to deal with the employee in accordance with the terms of his contract. If the service of a temporary employee was terminated in conformity with the terms and conditions of his agreement, he would have no cause of action. Moreover, in the case of Malik Mazharul Haq vs. Chairman PIA, (2010 PLC(CS) 1472 [Lahore]), it was held at para 10 that the Honourable Supreme Court of Pakistan in Habib Bank Ltd. v. Syed Zia-ul-Hasan Kazmi 1998 SCMR 60 and Pakistan Red Crescent Society v. Nazir Gillani PLD 2005 SC 806 has also held that an employee of a Corporation in the absence of violation of law or any statutory rule could not press into service the Constitutional jurisdiction or civil jurisdiction for seeking relief of reinstatement in service, his remedy against wrongful dismissal or termination is to claim damages.
73. It was further held in the case of PTCL vs. Iqbal Nasir, (2011 PLC(CS) SC 623), that 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 employer. The employer is well within his rights to retain or dispense with the services of an employee on the basis of satisfactory or otherwise performance. Further, in the case of Muhammad Azam Khan vs. Government of NWFP, (1998 PLC (C.S.) 29 [Peshawar]), it was held at paras 8 and 9 that in the circumstances we are of the view that the petitioners are not legally i iuthed with a right to enforce a right not vested in them nor can they compel the performance of a right not yet born on the premises which do not exist either in point of fact or law. The petitioners stand bereft of such a right from its inception. Be that as it may, not statutory duty is involved nor any legal right is being enforced nor indeed performance of a public duty is being claimed, therefore, in our opinion, a writ of Mandamus cannot he issued. This writ petition being devoid of merit/substance is, therefore, dismissed in limine along-with the Civil Miscellaneous.
74. It was held in the case of Chairman, WAPDA vs. Syed Jamil Ahmed, 1993 SCMR 346, in para 9 that: "9. The legal position obtaining in respect of employees of the statutory corporations seems to be that where the. Government while setting up a corporation does not reserve to itself the power to regulate the terms of service of the corporation's employees under the relevant statute and does not prescribe any condition, but leaves it to the discretion of the corporation by empowering it to frame rules or regulations in respect thereof without the Governments intervention, then the corporation will be the sole arbiter in the matter of prescribing the terms and conditions of its employees and will be competent to deal with them in accordance with the terms and conditions prescribed by it. In such a case neither a suit nor a writ petition for the relief of re-instatement will be competent and the remedy of an employee, for wrongful dismissal from or of termination of service will be a suit for damages as the principle of master and servant will be applicable.
However, where the terms and conditions of service of an employee of a statutory corporation is regulated by a statute or statutory rules, any action prejudicial taken against him in derogation or in violation of the statute and/or the statutory rules will give him a cause of action to file a suit or a writ petition for the relief of re- instatement, as the power of the corporation will be fettered with the statutory provisions and the principle of master and servant will not be applicable. For the purpose of deciding the factum, whether the rules or the regulations of a corporation have the statutory force, the determining factor will not be their form or name, but the source under which they have been framed."
75. In the cases where rules applicable are not statutory, which is not subject matter of the present Petitions, the established principle is that services governed by a contract would not confer a guaranteed right on the employee to continue in the employment and to seek reinstatement on being illegally dismissed or terminated. The affected persons could not approach Court of law for seeking appointment even if they were refused employment illegally or in contravention of the service contract or non-statutory rules/regulations. Servant, against termination of service by master, could claim damages for illegal or wrongful decision refusing the employment (See, Asadullah Mangi vs. Pakistan International Airlines, (2002 PLC (C.S.) 592 [Karachi]); Tilat Hussain vs. Chairman, PIA and others, (2002 PLC (C.S.) 1 [Karachi]); Mushtaq Ahmad vs. Pakistan Cricket Board and 2 others, (1997 PLC (C.S.) 921 [Lahore]); Chairman, WAPDA vs. Syed Jamil Ahmed, (1993 SCMR 346); and Behan Ali vs. Ministry of Technical Professional, (2014 CLC 503 [Islamabad]).
76. It remains established that the contracts of the Petitioners were expired before the Impugned Letters and they are seeking their re-instatement and/or extension through these Petitions, which cannot be allowed in constitutional jurisdiction of this Court in absence of any statutory provision conferring such right to the Petitioners. The Petitioners have failed to point out any statutory provision conferring right for regular appointment on the Petitioners in the Foundation. Further, there is no case law which allows such extension or regularization of a contract without any vested right in statutory provisions, under the constitutional jurisdiction of this Court.
77. On the 9 December 2013, the Chairman of Board of Directors unanimously decided, in compliance of the order of this Court dated 13 July 2013, that the request of regularization of the contract employees of the Foundation could not be acceded to [the "Impugned Decision"i.
Therefore, the termination of the Petitioners was also approved by the Board in a detailed order mentioning the grounds for such decision pursuant to the order of this Court. In absence of any violation of the statutory provision, such order can also not be set aside in constitutional jurisdiction of this Court.
78. The Foundation is an autonomous body constituted under the Act which defines as per Section 5(1) that the Executive Authority and managing of the foundation shall vest in the Board. The directions of the CM cannot have precedence over the Contract Appointment Rules of the Foundation under the Act.
(iv) Whether the Petitioners were entitled to a right of hearing before their dismissal?
79. It was held in the case of Lt. Col. Retd. Sultan Zeb Khan vs. Board of Governors, Fazle Haq College, (2015 P`' (CS) 1385 [Peshawar"] at para 8 that 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 levelling 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."
80. In another case titled Mst. Shazia Sarwar vs. Chancellor, University of The Punjab, Lahore, (2013 PLC (C.S.) 234 [Lahore]), it was held at para 19 that the contract employees are entitled for hearing if termination of their contract of service is on the basis of any allegation.
81. Therefore, since the Foundation has not raised any allegation on the Petitioners, the right of hearing was not mandatory to be provided to the Petitioners.
N. Other Arguments:
82. The case cited by the counsel of the Petitioner, titled State Bank of Pakistan v. Muhammad Shafi (2010 SCMR 1994) is distinguished from the present circumstances of the Petitions because it was held that the rules framed by Central Board of Directors did not require approval of Government, therefore, State Bank of Pakistan Regulations, 1999 could be termed as internal instructions or domestic rule /regulations having no status of statutory rules/regulations.
83. As far as the dictum of the Honourable Supreme Court in Muhammad Tariq Badar and another v. National Bank of Pakistan and others (2013 SCMR 314) is concerned, the august Supreme Court of Pakistan in fact was not dealing with the specific question involved in these Petitions, rather the Court on peculiar facts of the case was considering the issue that whether non-statutory rules have, and/or can repeal, rescind or displace the statutory rules. It may also be noted that it was held in the Tariq Badar case Supra that National Bank of Pakistan (Staff Services) Rules, 1980, at best could be termed as guidelines or domestic instructions of the bank and do not enjoy the status of a statutory instrument because the said Rules were neither made by the Federal Government nor published in the official gazette, and said rules were-formulated by the Board of the Bank pursuant to its authority in the nature of management/superintendence of the affairs of the Bank and/or policy making power. However, these Petitions do not have such legal question as existed in the aforesaid judgment. The Honourable Supreme Court has further observed that: "8. it is not only the legal position, but has also been conceded by the counsel for both the sides that, if the rules of a statutory establishment/body are statutory in nature, the employees (who are covered by the rules) of such organization may invoke the constitutional jurisdiction of the High Court for the redressal of their service grievance..."
84. The Petitioners have also not provided for comparison, any dates or material or the particulars of other persons, who were equally placed as them and have been retained. Provisions of Article 25 of the Constitution did not help the cause of the Petitioner and no case of discrimination in terms of said Article had been made out.
85. Up on the above discussion, I am satisfied beyond any doubt that the Petitioners have failed to satisfy with regard to the maintainability of these Constitutional petitions and have also failed to establish that they are entitled to the reliefs sought for by them in the aforesaid Constitutional petitions. Accordingly, these Constitutional Petitions stand dismissed alongwith all the miscellaneous applications pending therein.