Lieutentant Colonel Saeed Ahmad Awan (R), the petitioner, filed a civil suit for a declaration/permanent injunction in the Court of Senior Civil Judge Mansehra. Inter-alia, it is averred in the plaint that the petitioner was appointed as principal of the Fauji Foundation Model School Mansehra on a contract dated 2.3.2011. The said contract stipulates that the tenure of the petitioner's appointment is three years or till he attains the age of superannuation i,e, 60 years, whichever is earlier. This contract further provides for the termination of the contract of employment on the petitioner's retirement or on his dismissal and that the petitioner shall be governed by the Fauji Foundation Service Rules Enforced (Extension Policy of July, 2009 Enforced).
Through letter dated 17th December 2013, the petitioner was informed that he would stand retired from the Fauji Foundations Service on 20th March 2014. In the plaint, the petitioner sought a declaration to the effect that he is entitled to hold the office of the prindipal of the school for a further two years by way of extension of his contract as envisaged by policy Letter No, 200/HR dated 31st July 2009. The suit was contested by the respondent, who filed an application under Order-WI Rule-11 of the Civil Procedure Code for rejection of plaint. The learned trial Court vide order dated 29.11.2014 allowed the said application and rejected the plaint. An appeal filed against the said order also met the same treatment.
2. The learned counsel appearing on behalf of the petitioner has argued that the plaint was illegally rejected by the Courts below. He has further argued that while hearing an application for rejection of plaint the Court has to only consider the contents of the plaint and cannot look into the plea raised by the defence and that hence, the learned Courts below have erred by taking into consideration the plea of the defence while rejecting the plaint. In this regard, learned counsel for the petitioner has placed reliance on PLD 2002 Peshawar page 45, PLD 2008 Peshawar 135, 1988 CLC 1724, 1991 CLC 149, 2015 CLC 1423, 2007 SCM R 945, PLD 2009 Peshawar 48, 2014 YLR 149, 2008 SCM R 1037, PLD 2009 Karachi page 38, 2014 SCMR page 114.
3. On the other hand, learned counsel on behalf of the respondent has supported and argued in favour of the impugned judgment/order/decree.
4. Arguments heard and record perused.
5. There is no cavil with the legal proposition that while deciding an application under Order-WI Rule 11 C.P.C only the contents of the plaint would be looked into and nothing else. Where the contents of the plaint do disclose a cause of action and the relief sought is not barred by law, then the suit can only be decided by recording evidence of the parties, keeping in view the golden principles that the law would favor adjudication on merits and that the right of fair trial should be provided to the parties. However, if upon perusal of the plaint it is obvious that the suit cannot proceed neither on legal or factual grounds, then the Court should not feel hesitant in resorting to the provision of Order-VII Rule-11, C.P.0 by rejecting the plaint, even in cases where there is no law barring the suit. That is to say that if after going through the plaint the Court comes to the conclusion that the claim of the plaintiff has no prospects of success under the law, then the said Court is competent to reject the plaint being not maintainable under the law even if it is not barred by the law. The perusal of the contents of the plaint and the documents annexed/relied upon by the petitioner show that he was appointed as principal of the school for a period of three years commencing from 2-03-2011 till 20.3.2014. Hence the letter dated 17-12-2013 whereby it was intimated that the petitioner will stand retired from service on 20-03-2014 is in-line with the contract of appointment dated 02-03-2011.
6. Indeed the petitioner seeks a declaration from the Court on the basis of the policy of the respondent institution dated 31-07-2009 which envisages for the extension in the appointment contract for a further two years. The said policy is reproduced as under:-- "(a) Gen Officers 03 years.
(b)Brigs and Cols 03 years extendable by one year with the approval of MD.
(c)Lt.Col and below 03 years extendable by two years with the approval of MD. At one time extension for one year will be given.
(d)Extension would strictly intensive driven and performance based. "
7. Admittedly Fauji Foundation is a trust, created under the Charitable Endowments Act, 1890 for the benefit of Ex-Servicemen of the armed forces and their families. It is not a statutory authority and nor have the rules/internal policy of the respondent Fauji Foundation been framed under any statute or statutory rules. Indeed there are not statutory fetters upon the freedom of the parties relating to the enforcement of the terms of the contract and the contents of the policy dated 31- 07-2009. In such circumstances the rights and obligations between the parties are contractual in nature. Since, the employment contract of the petitioner is a specie of a contract which is not enforceable under Section 21(b) of the Specific Relief Act, hence, any suit for specific performance of the service agreement is barred under action 21 of the Specific Relief Act.
8. The next question would be that whether the commitments made in the impugned internal policy dated 31.07.2009 confers any legal character upon the plaintiff/petitioner as envisaged by Section 42 of the Specific Relief Act enabling the plaintiff to bring a suit for enforcement/declaration of the legal character and if the suit is not provered within the mischief of Section 42 of the Specific Relief Act, would the plaint be rejected under Order-VII Rule-11 of C.P.C.
9. Even if a suit is not specifically barred under the law, the court is not precluded to examine the maintainability of the suit at its initial stage. The Court trying a suit for declaration can examine the contents of the plaint to see whether the plaintiff is entitled to any legal character or to any right to any property in terms section 42 of the Specific Relief Act, which reads as under: Sec 42. Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or in interested to deny, his title to such character or right, and the Court may in its discretion maize therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief.
"Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
Explanation---A trustee of property is a person interested to deny' a title adverse to the title of some one who is not in existence and, for whom if in existence, he would be a trustee."
The legal character as envisaged by Section 42 of the Specific Relied is a status of person arising from some law, customs having the be of law or his status recognized by society. It cannot ensue are be contractual obligations. In "Burma Eastern Limited vs. Burma Eastern Employees Union PLD 1967 Dhaka 190" the term. legal character has been somewhat explained as under:-- "The expression "legal character" has been understood as synonymous with the expression "status". Section 42 of the Specific Relief Act, as quoted above, does not permit an unrestricted right of instituting all kinds of declaratory suits at the will and pleasure of parties. The right is strictly limited. This is patent. Plaintiff does not allege any infringement of a right to property. Is the plaintiff then seeking to establish a "legal character" within the meaning of section 42? Clearly not.
The term "legal character" is familiar to lawyers. It is, however, difficult to define precisely its connotation within a short compass. Attempts have, nonetheless, been made in this behalf, and I would suggest a workable definition in the following terms. The expression "legal character" or "status" denotes a character or status conferred by law on an individual or a number,of individuals, viewed as a unit of society and not shared by the generality of the community but only by individuals, placed in the same category of character. The character itself must be conferred by law on persons viewed from the standpoint of membership of the community: It is "status" or "character" conferred by law. It is not a creature of contract but of law. Indeed, in most cases one cannot contract out of the "status" with which the law clothes one. For example, minor cannot contract into majority nor can one, who has attained majority; under law, contract himself into minority."
10. Admittedly the relations between the petitioner and his employer are governed through a contract and the impugned policy, having no statutory force, cannot be given any status more than a contractual obligation. Hence if the relation between the petitioner and the employer is not governed through any law or instrument having the force of law, then the Courts term that relation as that of a Master with his Servant and even in cases of breach of the terms of employment, the Courts in Pakistan, as well as in India following the common law rules, have refused to impose a servant on an unwilling master.
In "Anwar Hussain vs Agricultural Development Bank of Pakistan" PLD 1984 Supreme Court page 194 the august Supreme Court, while dealing with a similar proposition, has held, "According to Halsbury's Laws of England, Vol. XXV, p. 446, para. 872: "The relationship of master and servant is expressed by a contract of service, express or implied, between the master and servant. A contract of service is one in which a person undertakes to serve another and to 'obey his reasonable orders within the scope of the duty undertaken. Whether or not a particular contract is a contract of service, is a question of fact depending upon the terms of the engagement the method of remuneration, and the power of controlling and dismissing the worker although none of these factors is by itself conclusive." On the same question it has been commented in American Jurisprudence (Vol. 35 at pages 445 and 446) as follows: "In law, the term "master and servant" indicates the relationship which exists when one person who employs another to do certain work exercises the right of control over the performance of the work to the extent of prescribing the manner in which it is to be executed" . . . "While it is said that at common law there are four elements which are considered upon the question whether the relationship of master and servant exists, namely, the selection and engagement of the servant, the payment of wages, the power of dismissal, and the power of the control of the servant's conduct, the really essential element of the relationship in the right of control the right of one person, the master to order and control another, the servant, in the performance of work by the latter, and the right to direct the manner in which the work shall be done. It is, moreover, essential that the master shall have control and direction not only of the employment to which the contract relates, but also of all of its details, and if these elements of control and direction are lacking, no relationship of master and servant exists. The test of the employer/employee relation in 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.
Against the aforesaid judgment, a review petition was filed before the august Supreme Court of Pakistan. The said review petition was dismissed by the august Supreme Court of Pakistan in "Anwar Hussain vs. Agricultural Development Bank of Pakistan (1992 SCM R 1112)" further elaborating the matter as: "Apparently, subject to what has been already discussed above with regard to the discretionary powers of the Bank to refuse withdrawal of resignation,' even if the resignation had been accepted against the provisions of the Instructions, the denial of the Bank to take the appellant in its service amounts to the termination of his service, which power is clearly vested in the Bank (see Agricultural Development Bank of Pakistan and 2 others v. Muhammad Sharif 1988 SCMR 597), Therefore, unless something by way of a guarantee of tenure of service is provided by the statute or i.e Regulations framed there under or mala fides is alleged, no employee can maintain a suit for reinstatement in service without showing the violation of such statute or Regulations."
Similarly, in "Muhammad Asim vs. Allah Dad 1987 SCM R 1778", the august Supreme Court has held: "Learned Judge also referred to Section 21(b) of the Specific Relief Act and held that a contract' for service is incapable of being specifically enforced and consequently a servant cannot force himself upon his master by institution a suit for specific performance of contract of service but his remedy is to bring an action for damages for breach of contract or for wrongful dismissal.
The petitioner now seeks leave to appeal from the aforesaid judgment of the High Court in revision dated 8th September, 1985, and it is mainly contended by the learned counsel for the petitioner that the Code of Education was rightly made applicable to the petitioner's case which has the effect of statutory rules and, therefore suit challenging, wrongful dismissal was competent before the Civil Court. Learned counsel referred to this Code as the Baluchistan Code which according to him has statutory force. However, upon our inquiry to refer to the provisions of law under which the Baluchistan Code containing certain rules was framed, learned counsel was unable to cite any law or statute in this behalf He submitted that this Code has been followed under a very long time and has, therefore, effect of law. We are unable to subscribe to the view canvassed by the learned counsel as no authority of law has been pointed out under which the said Baluchistan Code has been formulated to have statutory effect to govern the service of employees of private schools.
The mere fact that the Educational Institution was receiving grant in aid from the Government cannot convert such an institution into a public or statutory rules applicable to civil servants. The learned Judge in the course of his judgment has referred to the concession made by the learned counsel for the petitioner before him that even if the Baluchistan Education Code was attracted in the case of the petitioner, according to Rule 5 Appendix XXIV under Article 51(iv) the service of an employee in recognized schools under private management may be terminated by either party on giving three months notice in writing or paying three months salary in lieu thereof This concession itself was sufficient to hold that the suit for declaration and consequential relief was not maintainable.
The ratio of the aforesaid judgment has been re-affirmed in "Aurangzeb vs. Messrs Gool Bano Dr. Burjor Ankalseria and others (2001. SCMR 909)" and "Shakeel Ahmed Shaikh vs. Agha Khan University through board of governors and another [2017 (C.S) 1080]": 11.The outcome of the above discussion is that a suit for declaration or injunction seeking re- instatement to his service by an employee of any organization against an employer organization, where the relations of employer and employees are not governed through any statute or statutory rules, will not be competent. However, the employee can claim damages in case of termination of his contract in disregard of the said contract of employment.
12. In such a situation when the law is very clear that the terms of the policy can neither be enforced under section 42 or Section 21 of the Specific Relief Act, the suit of the plaintiff cannot further proceed on legal as well as factual grounds, hence the plaint has rightly been rejected by the learned lower Courts as it is an established principle of law that a stillborn suit must be buried at its inception without a formal funeral ceremony. In case "S.M. Shafi Ahmed Zaidi v. Malik Hassan Ali Khan" 2002 SCM R 338, the august Supreme Court of Pakistan observed that: "It is the requirement of law that incompetent suit shall be buried at its inception. It is in the interest of the litigating parties and the judicial institution itself. The parties are saved with their time and unnecessary expenses and the Courts get more time to devote it for the genuine causes."
Similarly, in "Muhammad Anwar vs. Muhammad Hanif' 2015 CLC 530, it was held: "It is not only the requirement of law, but it is in the interest of the litigants that the incompetent suit should not be allowed to further encumber legal proceedings. Stillborn suit must be buried at its inception, without formal funeral ceremony."
13. In view of the above, no useful purpose would be served if the suit is allowed to proceed, hence, the plaint has rightly been rejected by the learned trial Court. Resultantly, this petition has no merits, hence it is dismissed.