SHUJAA T ALI KHAN, J.---- Briefly put, the facts, as gleaned out from the instant petition, are that pursuant to an advertisement got published by the Pakistan Institute of Fashion and Design (hereinafter to be referred as "the Institute") the petitioner applied against the post of Assistant Registrar . Upon compl etion of the recruitment process, he was offered appointment against the said post vide order , dated 11.12.2015 and after relieving from his previous department viz. Punjab Emergency Service (Rescue 1122) the petitioner joined the Institute on 17.12.2015. Initially , the petitioner was appointed for three years including one year on probation which was further extended for one year vide order , dated 25.09.2017. Being aggrieved of extension in his probation period the petitioner approached the competent authority whereupon he was apprised that his period of probation was extended under section 10(1) of the Pakistan Institute of Fashion and Design Service Statutes, 2012 (hereinafter to be referred as the Service Statutes, 2012). On completion of his probationary period, the petitioner approached the Registrar of the Institute for issuance of formal Notification regar ding his confirmation whereupon he was apprised that his request for confirmation could only be considered upon completion of three years. Being aggri eved of letter , dated 23.10.2018, issued by the Registrar of the Institute, the petitioner filed representation/application before the Senate of the Institute. Since no action was taken on the application/representation of the petitioner , he filed this petition.
2. Learned counsel for the petitioner submits that since the petitioner successfully completed his probationary period he was entitled to the status of a regular employee but instead of performing their statutory obligation, the respondents avoided issuance of formal Notification qua confirmation of the petitioner; that according to own showing of the respondents the petitioner was entitled for confirmation in terms of section 10 of the Service Statutes, 2012 but they acted otherwise; that if the initial period of probation of one year was to be extended the competent authority could extend the same at the time of expiry of initial period of one year but extension of probation period after considerable time from expiry of initial one year speaks volumes about mala fide conduct of the respondents; that discriminatory attitude on the part of the respondents is evident from the fact that though some of the employees, inducted on the basis of terms and conditions identical to the petitioner , were confirmed even prior to confirmation of their probationary period but the petitioner has been discriminated; that mala fide on the part of the respondents is evident from the fact that though this Court restrained them to take any punitive action against the petitioner but in 8th meeting of the Senate it was decided to dispense with services of the petitioner; that acts of the respondents amount to defraud the Senate as his case was not covered under Rule 11 of the Rules of Business to conduct meeting of the Senate.
3. Conversely , learned counsel representing respondents Nos.1 to 4 states that since the terms and conditions of service of the petitioner were governed under non-statutory service rules, instant petition is not maintainable; that when in the appointment letter of the petitioner it was clarified that he would be on probation for three years he could not claim anything relating to his confirmation prior to completion of said period; that since the petitioner has filed instant petition even prior to completion of three years' probation period, no order can be passed therein; that when the competent authority has already declared the petitioner misfit for retention in service, he cannot claim confirmation as a matter of right; that since the Service Statutes, 2012 are meant for internal working of the Institute the same are in the nature of non-statutory rules and that this Court through order , dated 08.05.2019, passed in W.P. No. 210272/2018 has declared the Service Statutes, 2012 as non-statutory which order has been upheld by a learned Division Bench of this Court through order , dated 26.06.2019, passed in I.C.A. No.36636/2019. To fortify his contentions, learned counsel has relied upon the cases reported as Pakistan Olympic Association through President and others v. Nadeem Aftab Sindhu and others (2019 SCMR 221), Raja Iviz Mehmood and another v. Federation of Pakistan through Secretary Ministry of Information Technology and Telecommunication and others (2018 SCMR 162), Muhammad Zaman and others v. Government of Pakistan through Secretary , Finance Division (Regulation Wing), Islamabad and others (2017 SCMR 571), Abdul Wahab and others v. HBL and others (2013 SCMR 1383 ), Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others (PLD 2010 SC 676), Pakistan Red Crescent Society and another v. Syed Nazir Gillani (PLD 2005 SC 806), Qamar-ul-Islam v. The Institute of Chartered Accountants of Pakistan (1993 MLD 1362 ) and Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd. Tokht Bhai and 10 others (PLD 1975 SC 244), Order , dated 28.01.2020, passed by the Apex Court of the country in 2020 SCMR 631, titled Mirza Muhammad Nazkat Baig v. Federation of Pakistan through Secretary . Ministry of Law and Justice, Islamabad and another , Syed Muhammad Ismail Shah and anoth er v. Pakistan through Secretary Communication and Works, Islamabad and 6 others (2017 YLR Note 214), Muhammad Younis v.
The Superintending Engineer and others (2017 PLC (C.S.) 630), Lt. Col (Retd.) Aamir Rauf v. Federation of Pakistan through Secretary Ministry of Defence and 3 others (2011 PLC (C.S.) 654), Ghulam Rabbani v. Governor State Bank of Pakistan and others (2010 PLC (C.S.) 525), Noor Badshah through L.Rs. v. United Bank Limited through its President and others (2019 PLC (C.S.) 1433 ),Hassan Jawed and another v. Punjab Education Foundation and 4 others (2018 PLC (C.S.) 580) and Abdul Ghani v. Baha-ud-Din Zakariya University and others (2018 CLC 965 ).
4. Mr. Ishtiaq A. Khan, Additional Attorney General, assisted by Ms. Sadia Malik, Assistant Attorney General, while supporting the viewpoint of learned counsel for respondents Nos.1 to 4 states that since the questions agitated by the petitioner in this petition are factual in nature, the same cannot be decided in Constitutional jurisdiction; that since the terms and conditions of service of the petitioner are governed under non-statutory service rules, instant petition is not maintainable in view of the law laid down in the cases reported as Qazi Munir Ahmed v. Rawalpindi Medical College and Allied Hospital through Principal and others (2019 SCMR 648) and Pakistan Airline Pilots Association and others v. Pakistan International Airline and another (2019 SCMR 278); that when the petitioner is equipped with alternate reme dy under section 31 of the Service Statutes, 2012 instant petition is not maintainable and that no contract employee can claim retention in service till expiry of period of contract rather he can claim damages against the unexpired period.
5. While exercising his right of rebuttal, learned counsel for the petitioner submits that appointment of the petitioner cannot be considered as contractual as no probation is fixed in such appointment rather a contract employee can be terminated on one month's notice; that since the appointing authority of the petitioner is the Senate, instant petition is maintainable. In support of his contentions, learned counsel has relied upon the cases reported as Hassan Jatoi and others v. Faqir Muhammad Jatoi and others (2016 SCMR 1254 ), Waseem Ullah v. The State (2016 SCMR 1282 ), Shafique Ahmed Khan and others v. NESCOM through Chairman, Islamabad and others (PLD 16 SC 377), Muhammad Rafi and another v. Federation of Pakistan and others (2016 SCMR 2146 ), Pakistan Defence Officers Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed (2013 SCMR 1707 ), Secretary , Ministry of Education, Government of Pakistan, Islamabad and another v. Muhammad Azam Ch. and another (2009 SCMR 194), Muhammad Rafique v. Director General, Pakistan Rangers, Sindh (2004 SCMR 23), and Muhammad Amjad v. The Chief Engineer , WAPDA and another (1998 PSC 337) order , dated 10.06.2019, passed by the Hon'ble. Supreme Court of Pakistan in Civil Petition No.201 1-L of 2016, titled The Bank of Punjab through its President v. Muhammad Aslam, Ex-V ice President-I and judgment, dated 28.04.2016, passed by a learned Division Bench of this Court in I.C.A. No. 263/2014, titled Muhammad Aslam v . The Bank of Punjab.
6. I have heard learned counsel for the parties at considerable length and have also gone through the documents, annexed with this petition, as well as the case-law cited at the bar .
7. Firstly taking up the objection raised by the learned Law Officer as well as learned counsel representing respondents Nos.1 to 4 qua maintainabi lity of this petition, I am of the view that in routine a writ petition is not maintainable on behalf of the employees whose terms and conditions are govern ed under non-statutory service rules/ regulations, however , when the order/action impugned is patently illegal, perverse or arbitrary the jurisdiction of this Court to take care of such fact cann ot be abridged. Reliance in this regard is placed on judgment in the case of Pakistan Defence Officers' Housing Authority and others (Supra) rendered by five Hon'ble members Bench of the Supreme Court of Pakistan according to which in exceptional circumstances this court can interfere even in matters where terms and conditions of the employee are non-statutory .
8. Though the learned counsel representing respondents Nos.1 to 4 as well as the learned Law Officer have tendered various judgments to show that the terms and conditions of service of the petitioner being non-statutory instant petition is not maintainable but in one of the referred cases, the view of the Apex Court of the country in the case of Pakistan Defence Officers' Housing Authority and others (Supra) that where mala fide on the part of the competent authority is floating on the surface Writ Petition is maintainable even filed by the employees who terms and conditions are governed by non-statutory service rules, has been revisited. Moreover , the judgment in the said case having been passed by a five member Bench of the Hon'ble Supreme Court of Pakistan carries precedence over the judgment passed by less number of members.
9. Learned Law Officer as well as the learned counsel representing respondents Nos.1 to 4 has argued that since the Service Statutes, 2012 are non-statutory , instant petition is not maintainable. To appreciate the said contention, I have gone through the Service Statutes, 2012 which start with the following words: - "PRELIMINAR Y In pursuance of provisions of section 17(2) (e) read with section 4(iv) and section 25(d) of the Pakistan Institute of Fashion and Design Act, 2011, 'Pakistan Institute of Fashion and Design Service Statutes ' are made as under......"
From the above, it is crystal clear that the Service Statutes, 2012 were formulate d under the powers provided by the Statute, therefore, their status was analogous to those of statutory rules. Reliance in this regard is placed on the cases reported as Muhammad Rafi and another v. Federation of Pakistan and others (2016 SCMR 2146 ), Shafique Ahmed Khan and others v. NESCOM through Chairman, Islamabad and others (PLD 2016 SC 377) and Pakistan Defence Of ficers' Housing Authority and others (Supra).
10. Now, reverting to the merits of the case, I have observed that the documents appended with this petition as well as those produced by the respondents along with their report and parawise comments brings it to light that the petitioner was served with Warning/Letter(s) of Explanation on 21.02.2018, 09.02.2018, 22.02.2018, 16.04.2018, 21.04.2018 and 07.05.2018 when this petition was pending adjudication which shows that with a view to tarnish the service record of the petitioner , the respondents left no stone untunied to portray him as irresponsible Officer. This Court has no sympathy with the petitioner and if he is found involved in any activity disturbing the atmosphere of the Institute this Court would be the least entity to defend him but the acts of the respondents smack mala fide against the petitioner , thus, the jurisdiction of this Court cannot be abridged on the basis of non-statutory status of the Service Statutes, 2012.
8.(sic) Learned Law Officer as well as the learned counsel representing respondents Nos.1 to 4 has also questioned maintainability of this petition on the ground that the petitioner being contract employee, instant petition is not maintainable. A bare perusal of the Offer of Appointment letter , dated 11.12.2 015, available as Annexure-B of this petition shows that nowhere in the said letter it has been mentioned that the petitioner was appointed on contract basis, thus, the case-law referred by the learned Additional Attorney General is not applicable to the facts and circumstances of the present case.
9. (sic) Now taking up the question relating to declaration of the Service Statutes, 2012 as non-statutory by a learned Single Bench of this Court, I am of the view that firstly the said order has no binding force upon this Court and secondly the facts and circumstance s of the said petition were entirely different inasmuch as in the said case the contract employees moved this Court for regularization of their services whereas in the instant case the petitioner has agitated mala fide on the part of the competent authority . Moreover , through order , dated 26.06.2019, learned Division Bench of this Court while deciding I.C.A. No.36636/2019 has not dilated upon the merits of the case, especially the question regarding the status of the Service Statutes, 2012, rather issued direction to the departmental authorities to decide the fate of the appellants in the said case. At the cost of reiteration, it is observed that as per the law laid down in Pakistan Defence Officers' Housing Authority and others (Supra) when an order passed by a departmental authority is found to be perverse, arbitrary or tainted with mala fide, same can be taken care of by this Court in exercise of its Constitutional jurisdiction.
10 (sic) It is imperative to note that as per section 10(3) of the Service Statutes, 2012 on completion of probation period a probationer is deemed to be confirmed in his appointment from the date on which the probation period was last extended or deemed to have been so extended. The petitioner after havin g been inducted in service in the year 2015 has already completed the probation period.
11. During arguments, learned counsel representing respondents Nos.1 to 4 has mainly focused on section 5(5) of the Service Statutes, 2012 to argue that on completion of initial three years every employee hired on temporary basis is to be considered for appointment on regular basis. There is no cavil with the proposition that the competent authority , while considering question relating to confirmation of an employee hired on temporary basis, can gauge his output in the initial three years but the said authority cannot be given unbridled powers to adopt a cherry picking process to confirm some of the employees by terminating their probationary period and depriving the others from confirmation despite expiry of three years. Insofar as the case in hand is conc erned, a perusal of the written arguments submitted by the learned counsel for the petitioner and allied documents shows that Messrs Uzair Farooq Khan, Assistant Professor , Zohaib Azhar , Assistant Professor and Abid Pervaiz, Technician (Electrical) were confirmed by terminating their probationary period even prior to completion of three years.
12. During arguments, learned counsel representing respondents Nos.1 to 4 clarified that case of the petitioner was considered for confirmation, however , he was found unfit on the basis of adverse remarks in his ACRs for the period 01.01.2016 to 31.12.2016 and 01.12.2017 to 30.11.2018. A cursory glance over the ACRs of the petitioner for the said period shows that date of initialization of said ACRs are missing which lends support to the fact that the same were managed subsequently . Further , the said ACRs either having not been countersigned or communicated to the petitioner could not be used against the petitioner . Moreover , learned counsel representing respondents Nos.1 to 4, during arguments admitted that Mr. Fahim-ur-Rehman who completed the ACR of the petitioner for the period from January 2017 to November 2018, was posted as Registrar on Acting Charge basis for two months only.
It is very astonishing to note that a person who remained posted as, Registrar on acting charge basis for two months, how could he gauge performan ce of the petitioner for a whole year. Moreover , the remarks of such a Reporting Officer cannot be allowed to be used to the disinterest of the petitioner who has been agitating mala fide and discrimination on the part of the respondents.
Considering from another angle, the main focus of the respondents is on Section 5 of the Service Statutes, 2012 but they are oblivious of the Fact that section 10 of the Service Statutes, 2012 being latter in place carries over- riding effect inasmuch as the subsequent provision/rule/regulation can supplement/rescind/mend the earlier provision/ rule/regulation but the former provision cannot be used to render the subsequent provision as ineffective as being done by the respondents in the case of the petitioner .
13. During the course of arguments, learned counsel representing respondents Nos.1 to 4 stated that since the Senate has already decided to dispense with services of the petitioner , no order can be passed by this Court in this petition. In this regard, I am of the view that this Court vide order , dated 17.12.2018, restrained the respondents from taking any adverse action against the petitioner . Admittedly , the Senate in its 8111 meeting, held on 30.01.2019, decided to dispense with services of the petitioner . This fact also lends credence to the plea of the petitioner that the respondents are all out to lynch- him at all costs. Further , since the Senate decided to dispense with services of the petitioner , during pendency of the Writ Petition, this. Court can take care of said fact in view of the law laid down in the case reported as Muhammad Shehzad Malik v. Muhammad Suhail and another (2010 SCMR 1825 ).
14. The respondents through Miscellaneous Application (C.M. No.1 of 2019) have placed, on record certain documents to show that case of the petiti oner was considered by the competent authority and he was found unfit.
The decision of the Senate of the Institute against Agenda Item No.3 is imaged below: - Agenda Item No.3 I. Unrest on the campus and Malicious Compaign against PIFD The matter regarding Unrest in the campus and misconduct by the employees was discussed in detail during the meeting.
Decision Following was decided by the Senate. i. To dispense with the services of Mr. Tanveer Asim, Assistant Registrar , working as temporary likely to be regular employee in BPS-17, on the basis of his three years unsatisfactory performance. On this, the Senate of PIFD was apprised of the order dated 17-12-2018 passed by the Hon'ble Court, whereby the Hon'ble Court directed that no adverse action be taken against the petitioner . In compliance of the order dated 17-12-2018, it has been decided that the decision of the Senate of PIFD should not be given effect without the permission of the Hon'ble Court in this respect and all necessary information and record be placed before the Hon'ble Court to demonstrate the conduct and misrepresentations being made by the Petitioner for procuring the order dated 17-12-2018 and a prayer be made before the Hon'ble Court to recall the order dated 17-12-2018. ii. Suspension of Mr. Talha Ahmed, Assistant Professor , Department of Furniture Design and Manufacture with immediate effect. Issuance of show-cause notice and to proceed inquiry against him.
The Senate also directed PIFD Management that strict and immediate action be taken against all the employees including BPS-17 and Above, under PIFD Efficiency and Discipline Statutes, if any situation of misconduct and unrest in the campus arises in future.
It was also directed that Approval (through circulation) of the Senate may be solicited in any matter of immediate attention coming in the purview of the Senate being the Competent Authority , to smoothly run the affairs of the Institute.
According to the afore-imaged decision of the Senate, report relating to implementation of the decisions taken by the Senate in its 7th Meeting was prese nted to the members of the Senate. It is admitted position that in 7th Meeting of the Board the petitioner had neither specifically been discussed nor any decision was taken- by the Senate. Moreover , 8th Meeting of the Senate having been conducted on 30.01.2019 could not be used to deprive the petitioner from confirmation on completion of three years.
15. During the course of arguments, with a view to portray the petitioner as professional litigant, learned Additional Attorney General has placed before the Court list containing the number of Writ Petitions, already filed by the petitioner , to show that he is professional litigant. In my humble opinion, the said fact cannot be used against the petitioner for the reason that it is not easy to approach this Court as on the one hand the petitioner bears brunt of annoyance of the competent authority and on the other exposes himself to exorbitant expenses.
16. For what has been discussed above, I have no hesitation to hold that mala fide on the part of the respondents while dealing with matter of the petitioner regarding confirmation is floating on the surface. Consequently , this petition is allowed and the order passed by the Senate in its 8th Meeting qua dispensing with services of the petitioner is set-aside. Resultantly , respondent No.1 is directed to put up the matter of the petitioner for confirmation before the Senate afresh which shall decide the same with specific reference to the fact that the ACRs being referred before this Court either do not contain respective dates of their completion or they were completed by the person who was not the Supervisory Of ficer of the petitioner , at the relevant time. No order as to costs.