MAMOON KAZI, J.--The petitioners are aggrieved by the decision of the Federal Government to disband Nai Roshni Schools Programme with effect from 30th June, 1989.
2. The petitioners were appointed to various posts held by them by the Literacy and Mass Education Commission (the respondent No, 1). The Commission was constituted under a Notification, dated 17th February, 1981, in pursuance of a resolution, passed by the Federal Government (the respondent No, 2), a copy of which has been annexed to the petition as Annexure 'B'. It may be pointed out that a decision was taken by the Federal Government to disband Nai Roshni Schools Programme, which was communicated to different officers of the respondent No, 1.
A copy of such decision, dated 4th May, 1989, has been filed with the petition as Annexure 'E'.
According to this decision, the services of the petitioners Nos, 1 to 17 were ordered to be terminated; whereas it was decided in respect of the petitioners Nos, 18 to 25, who were working as Supervisors in BS-11, that they should be given an option to accept the posts of teachers in BS-7 and get themselves absorbed in the Provincial Education Department.
3. The case of the respondents, according to the counter-affidavit filed by Mr. Muhammad Yousuf, Secretary to the first respondent, is that the petitioners were employed only in connection with the Nai Roshni Schools Programme, which subsequently has been found to be not feasible by the second respondent and hence the decision.
4. At the very outset, it may be pointed out, that Mr. SA. Wadood, learned Deputy Attorney-General, who has appeared on behalf of both the respondents, has raised a preliminary objection that the petitions are not maintainable before this Court, firstly, for the reason that the petitioners are civil servants holding a post in connection with the affairs of the Federation, and consequently the matter falls within the exclusive jurisdiction of the Federal Services Tribunal by virtue of Article 212 of the Constitution and section 4 of the Service Tribunals Act, and his second argument, which is in the alternative, is that the relationship between the respondent No, 1 and the petitioners is purely governed by the law of master and servant as the respondent No, 1 was constituted only in pursuance of a resolution of the Federal Government, Ministry of Education and the service rules, which have been made applicable to the petitioners, were also framed by the respondent No, 1 under para. 12 of the resolution. Since the petitioners are not governed by any statutory rules, the petitioners have no locus standi to file the present petition. Reliance has been placed on two Supreme Court judgments in R.T.H. Janjua v. National Shipping Corporation PLD 1974 SC 146 and Anwar Hussain v. Agriculture Development Bank of Pakistan PLD 1984 SC 194, which support the legal proposition.
5. Both the contentions have been resisted by Mr. Makhdoom Ali Khan, learned counsel for the petitioners. As to the first contention, his argument is that, neither the petitioners were appointed in accordance with section 5 of the Civil Servants Act, nor, according to the Service Rules applicable to them, they are holding their respective posts during the pleasure of the President as envisaged by section 4 of the said Act. Consequently, the petitioners are not civil servants. It may be pointed out here that the petitioners were appointed by the Selection Committee constituted by the Chairman of the respondent No, 1 under Rule 4(3) of the Literacy and Mass Education Commission Service Rules, 1984 gazetted in the Notification, dated 19th April, 1984. Referring to the second argument put forth by the learned Deputy Attorney-General, the learned counsel has argued that since the petitioners are governed by rules, framed by the respondent No, 1 and duly notified in the Gazette, their terms and conditions of service cannot be governed by the law of master and servant. Reliance has been placed by the learned counsel on Muhammad Salimullah v. Trustees of the Port of Karachi and 2 others PLD 1975 Kar. 758 and Syed Akbar Ali Bokhari v. State Bank of Pakistan and 7 others PLD 1977 Lah. 234.
6. In the first case, the petitioner was an employee of Karachi Port Trust, whose terms and conditions were governed by the K.P.T. Act and Rules framed thereunder. The petitioner was compulsorily retired from service by the Chairman, K.P.T. On a petition being filed by the petitioner before this Court it was observed: "11. It has been repeatedly held that a writ cannot lie for a breach of a contract of employment, because an employee cannot be foisted on an unwilling employer. This rule was not applicable to Government servants because of the Constitutional remedies enjoyed by them in the past, but the petitioner is not and does not claim to be a Government servant. He, however, claims that his compulsory retirement is in breach of the rules of employment framed by K.P.T. under section 22 of the K.P.T. Act, and what is much more important, that is also in breach of the mandatory provisions of law, namely, section 24 of the K.P.T. Act. Is the position therefore not somewhat analogous to service matters in the days when Government servants had the benefit of Constitutional guarantees? Thirdly, the law of master and servant is based on the principle of freedom of contract, but is that freedom of contract available in the instant case? It is not disputed that the petitioner was employed by the K.P.T. but the K.P.T. was not competent to retire him without the Central Government's approval, because of section 24 of the K.P.T. Act, and because of this provision, the K.P.T. would not have been able even to accept the petitioner's resignation, if he had wished to resign, without the Central Government's approval. Can it be said, in these circumstances, that the rights of the parties are governed exclusively by the law of master and servant? This is the precise point for determination before us and when I repeatedly drew Mr. Fazeel's attention to it, his only reply was to refer us to authorities which I will presently examine."
It was ultimately held that the petition before the High Court was maintainable.
7. In the second case, decided by a learned Single Judge of the Lahore High Court, the petitioner was an employee of the State Bank of Pakistan, which was governed by the provisions of the Pakistan Essential Services (Maintenance) Act, 1952. The petitioner, who was aggrieved by the termination of his services filed a petition under Article 199 of the Constitution. An objection was taken to the jurisdiction of the Court, which was overruled and it was held that the relationship between the petitioner and the State Bank was not purely that of master and servant, in view of the provisions of the Essential Services Act, which curtailed the master's pleasure to terminate the services of his employees.
8. The counsel, respectively appearing for the parties, were also heard on the merits of the case. In this respect, the contention of Mr. Makhdoom Ali Khan, learned counsel for the petitioners was that the action taken by the respondent was mala fide and violative of rule 17(2) of the aforesaid service rules which are applicable to the petitioners, which enjoined upon the respondents to terminate the services of the junior most employees first. The action, according to the learned counsel, was also violative of Article 25 of the Constitution, according to which, all citizens are equal before law and are entitled to equal protection of law. In this respect, the learned counsel for the petitioners has referred to a directive of the Director Establishment, Government of Pakistan, dated 14th May, 1989, whereby it was directed that the services of certain personnel, appointed on the nomination of Placement Bureau, Government of Pakistan should not be terminated on the disbandment of Nai Roshni Schools Project. Although the sending of the aforesaid directive is not denied by the learned Deputy Attorney-General, but he has made a statement at the Bar that except the nucleus staff, the services of the entire personnel connected with the Nai Roshni Schools Programme are going to be terminated by the Government. He has also placed on record a copy of a letter, addressed to the Chief of Placement Bureau, Prime Minister's Secretariat Rawalpindi by the Secretary, Ministry of Education, Government of Pakistan, whereby the former was requested to stop further recruitment in connection with Nai Roshni Schools Programme.
9. Turning to the first legal objection, raised by the learned Deputy Attorney-General, reliance has been placed by him on a decision, recently given by the learned Acting Wafaqi Mohtasib in the case of Muhammad Iqbal Gondal v. Literacy & Mass Education Commission, Islamabad, Reg- II/9591/87. The learned Acting Wafaqi Mohtasib, while referring to a decision of the Federal Services Tribunal reported in 1987 PLC (C.S.) 838, Raja Muhammad Aslam v. Government of Pakistan and others has held that the employees of the said Commission should be considered as civil servants.
In the case before the learned Tribunal, a question had arisen, whether the employees of Islamabad Hospital Complex were civil servants. It was observed by the Tribunal: "Resolution is a form of communication that is used for making public the Government decision on important matters of policy, appointments of Committees or Commissions of inquiry and of the results of the review of important reports of such bodies. Thus, the Resolution relied upon by the respondent may be good in so far as it announced the Government decision to establish the Institute as an autonomous body. Quite obviously, however, by a Resolution the Government can constitute a committee/body to supervise and overseas the functioning of the Institute and in the discharge of its such functions it may be authorised to exercise some administrative and financial powers but that will not make it a body corporate/juristic person distinct from or independent of the Government control and cannot deprive its employees of their status as Civil Servants, simply because, it can be so done only by or under law. The position being so clear, it is not possible to accept the institute as a juristic person or an autonomous body."
It was finally concluded by the Tribunal as follows:- "It is an undisputed fact that the Islamabad Hospital Complex, or the Pakistan Institute of Medical Sciences as it is now known, has been established by the Government of Pakistan. It is an institution under the Health Division like so many other institutions. Its employees are, therefore, holding civil posts in connection with the affairs of the Federation and are thus civil servants within the meaning of the Civil Servants Act, 1973 notwithstanding anything to the contrary in the aforesaid Resolution."
Reliance has also been placed by the learned Deputy Attorney-General on the case of Miss Sajida Parveen Choudhry v. Secretary, Ministry of Education and others (Appeal No, 318(R) of 1988, decided by the Federal Service Tribunal, Islamabad). In this case Miss Sajida Parveen Choudhry had been aggrieved by the termination of her services by the respondent. It was held that she was a temporary employee, who had no claim or title to any permanent appointment and her services were liable to be terminated at any time by the respondent.
10. It may be pointed out that it is not even the case of the petitioners that the respondent No, 1 enjoys an autonomous status, and rightly so, since, as already pointed out, the Commission was established by a resolution passed in pursuance of the decision of the Federal Cabinet and not by any statute and has not been assigned any status of a corporation, an autonomous body or a juristic person. No doubt, the respondent No, 1 has framed service rules, reference to which has already been made in the foregoing paragraphs, but since the rules had not been framed under any statute but under paragraph 12 of the said resolution, they cannot enjoy the same status as statutory rules. Although the framing of separate service rules for the petitioners is itself indicative of the fact that they are to be governed by a different set of rules, not applicable to civil servants in the regular cadre, but the same by itself is not sufficient to lead to a conclusion that the petitioners are not civil servants. Since the Commission does not enjoy an autonomous status, it clearly is a department of the Federal Government and all its employees clearly fall within the definition of "service of Pakistan" given in Article 260 of the Constitution. They also fall within the definition of "civil servant" given in the Civil Servants Act, 1973. As regards the separate service rules framed by the respondent No, 1, we are of the opinion that they, at the most, can be treated as departmental instructions to provide guidelines for efficient functioning of the respondent No,
1. In all other respects, the petitioners should be governed by the provisions of the Civil Servants Act, 1973, which deals with the terms and conditions of all persons in service of Pakistan, and which is automatically attracted to all civil servants. Although, the learned Deputy Attorney-General has argued, in the alternative, that the petitioners in absence of any statutory rules applicable to them in relation to their conditions of service also do not have locus standi to file the present petition but entering into this controversy, in our opinion, is not necessary in view of the conclusion reached by us, that the said Commission being established by the Federal Government, is a department of the Federal Government like many other departments thereof. We are, therefore, unable to agree with the contention of Mr. Makhdoom Ali Khan that the petitioners by virtue of their governance by separate service rules fall outside the pale of civil servants.
11. Since in that case, there is no controversy on the point that the provisions of Article 212 of the Constitution and section 4 of the Service Tribunal Act, 1973 are applicable to the petitioners, we hold that the petitioners have no locus standi to file the present petition before this Court, the jurisdiction of which stands clearly ousted by the said provisions of law.
12. In view of our findings, we would refrain from expressing ourselves on the merits of the case as the same is not necessary now.
13. In the result, this petition is dismissed. The parties are left to bear their own costs, revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.