' It is a writ petition by Ahmad Faraz, a well-known poet and a literary figure. His services in Grade- 20 as Project Director of the Pakistan Academy of Letters were terminated by Martial Law Authorities in 1977 allegedly for political reasons. His appeal was accepted by the Federal Service Tribunal, while that of the Government before the Supreme Court failed in February, 1988. He was reinstated and posted as Deputy Director-General, Pakistan National Centre in Grade-19. After the elections of November, 1988, the new Government placed him vide their orders dated 4-51989 in Grade-21 under a contract for three years and posted him as Chairman, Academy of Letters. Since his superannuation was to take place in January 1990, his appointment as aforesaid Chairman was to continue even beyond retirement until he could complete the three year-term. However, by an order dated 19-12-1990 the respondent-Government terminated his services statedly again by reason of political victimization. He challenged the same in the present writ petition claiming that respondent No, 3 who was ostensibly shown to have signed those orders, was not competent to dc so; that the Prime Minister who alone was competent authority in his case had not passed it; that he was afforded no opportunity to show cause against the action; that it was taken in violation of clause (10) of the terms and conditions of his appointment inasmuch as he was given neither a three months' notice nor pay in lieu thereof; and lastly that it was tainted with mala fides based upon purely political vendetta.
2. The writ. Petition was opposed by the respondents being not maintainable, without cause of action and suffering from misjoinder of parties. The allegations of mala fides or political victimization etc. Were denied. Instead it was submitted that the petitioner's tenure being contractual for three years was terminated in pursuance of the stipulation contemplating notice or pay in lieu thereof. For this reason, the writ, petition was said to be not maintainable. Further it was asserted that the orders had been passed by the competent Authority and that there was no lacuna in them on that score.
3. The contention that the impugned order was not passed by the competent Authority did not appear to be correct. Such authority in the petitioner's case placed in Grade-21 was the Prime Minister. On his insistence the original file was produced by the learned Deputy Attorney-General and it disclosed that the order was passed by the Prime Minister himself. Probably the petitioner had some misgivings about it, but the same were removed when he was confronted with the original order.
3-A. Mr. Minto, Advocate speaking for the petitioner urged that over the period, an entirety different concept of "public employment" had been developed so that arbitrary termination of service in the exercise of a clause retained in the contract of service was no more valid. He found support for this view from an Indian publication "Contract Act and Law of Tenders, etc." Part II, Synopsis (pages 2640-41) reading as under:-- . .. ... It is not disputed that the petitioner was not heard before the termination order was passed. It is argued by the counsel for the Institute that the petitioner was not entitled to a hearing because under the terms of the contract his services could be terminated by three months' notice or three months' pay in lieu thereof. This raises the .Fundamental question whether the petitioner's appointment was purely contractual or a public employment in which the employer is required to observe the principles of natural justice before terminating the contract of employment. One cannot accede to the submission that the Director's appointment is purely contractual and that the Government had the right to terminate his services in accordance with the terms of the contract. The Director holds a post in public employment. The reason is that the Institute is an "authority" within the meaning of Article 12 of the Constitution. The Rules provide that the Standing Committee will appoint and dismiss the Director with the prior approval of the Government. This is a clear case of public employment. In public employment it is now well-recognised that the principles of the natural justice must be observed. To say that the Court cannot review the State action in the field of contractual appointment is to emasculate the one control mechanism which it possesses. Public employment has become for all purposes a subject of Administrative Law. The public element is so mixed in it that it ceases to be a contractual appointment. The cardinal development in this branch of law is that in public employment the employer is required to observe the principles of natural justice. The State must be fair, just and reasonable because in fact the State is the employer. Fairness demands that the employee must be heard".
4. Secondly he placed reliance upon a recent expression appearing in the Supreme Court judgment reported in Pakistan and others v. Public-at-large and others PLD 1987 SC 304 (at pp. 329, 338 and 361) exhorting that Quranic injunctions as to Adal, Qist and Ehsan be adopted as abiding rules of dispensing justice in all matters including service contracts, so that an employee holding a post even for a specified term, may not be deprived of it in a manner giving an impression that he was being victimised for reasons contrary to those basic. Principles. Thirdly, while conceding that the petitioner was not a "civil servant" as defined in section 2 of the Civil Servants Act, 1973, Mr. Minto, Advocate nonetheless claimed for him status of a person "in the service of Pakistan" as contemplated by Article 240 read with Article 260 of the Constitution, so that his appointment to and, conditions of service had to be determined by or under Act of Parliament, and the Act in this case was the Civil Servants Act, 1973. He invoked two provisions of the said Act namely, section 11(1)(ii) and section 14. The latter envisaged re-employment after retirement in public interest and according to counsel, the petitioner's contractual tenure having been made thereunder, shall be deemed to be cloaked with statutory basis as distinguished from something inter vivos, so that power from the aforesaid statute itself shall have to be found out for its termination rather than to leave it to the arbitrariness of the employer. He canvassed that re- employment allowed "in public interest" could a priori be terminated in a like manner only in public interest and not exercising the option clause. After giving in this manner a statutory colour to the tenure, counsel then invoked section 11 to see how its provisions relating to "termination of service" could apply to put an end to the petitioner's employment. The relevant portion of the section was as follows:- "Section 11. Termination of service.--
(1) The service of a civil servant may be terminated without notice (i)
(ii) on the expiry of the initial or extended period of his employment; or ' Since the re-employment of the petitioner was to continue after his retirement, it was claimed to be tantamount to an "extended period of his employment" which in terms of section 11 ibid could be terminated without notice only on the expiry of the term and in no case earlier. His assertion was that such a view was adopted in the decision dated 20-1-1990 of Writ Petition No, 6305 of 1989 and also Abdul Majid Sheikh v. Mushaffe Ahmed, Section Officer, Government of Pakistan Ministry of Defence, Karachi and another PLD 1965 SC 208 wherein the notice clause was held to be ineffective being violative of section 11 ibid read with Article 240 of the Constitution.
5. Two provisions of the Statute could possibly tilt the scales against the petitioner. These were section 13 authorising retirement on any date, and section 4 holding tenure during pleasure of the President. Section 13 was struck down in the Pakistan's case being opposed to Adal, Qist and Ehsan.
Counsel argued that for an analogical reason even section 4 was void and so shall be any termination clause in any contract inter vivos.
6. The learned Deputy Attorney-General (Ch. Muhammad Farooq) refuted the applicability of the concept of a "public employment" developed in the commentary cited overleaf primarily on the ground that in Pakistan, it was held more than once authoritatively by the Supreme Court that writ would not lie to enforce a contractual employment as the only remedy for its breach was the damages. He relied upon The Federation of Pakistan and others v. Sirajul Islam and another PLD 1957 SC 77; The Chandpur Mills Ltd. v. The District Magistrate, Tippera and another PLD 1958 SC 267; Shamshad Ali Khan v. Commissioner, Lahore etc. 1969 SCM R 122; Muhammad Asadullah Khan Niazi, Sub-Divisional Officer, Bahawalpur v. The Province of Punjab through the Collector, Bahawalpur 1972 SCM R 204; Marghub Siddiqi v. Hamid Ahmad Khan and 2 others 1974 SCM R 519; M.R. Rashid v.
The Province of the Punjab and 2 others 1987 M LD 153 and Mrs. M.N. Arshad and others v. Miss Naeema Khan and others PLD 1990 SC 612 in support of this assertion.
7. He submitted that even though the petitioner's employment fell within the purview of the expression "service of Pakistan" visualised by Articles 240 and 260 of the Constitution, the Act of Parliament namely, the Civil Servants Act, 1973, including its sections 11 and 14 did not extend its operation to reemployment after retirement. Relying upon the typical definition of the term "civil servant" contained in section 2(1)(b) which clearly excluded from its purview a person who is employed on contract, he urged that once it was conceded that the petitioner did not fall within the ambit of the aforesaid definition of a civil servant, it was completely otiose on his part to invoke any of the provisions of the entire Act including section 11 or section 14. While section 11 clearly provided for termination of service of a "civil servant" which the petitioner was not, even section 14 was claimed to be not of any invaluable assistance to him. Counsel argued that though ostensibly it permitted re-employment of a retired civil servant, yet he emphasized that the terms of the petitioner's contract prescribed in Annex: 'A' and 'B' did not envisage if it was allowed "in the public interest" and hence he could not eke out much from the section. According to his interpretation, the entire Act besides being meant for "civil servants" intended to provide for ad hoc, temporary and permanent employments deliberately excluding from its purview the contracts of re-employment after retirement, as those were to be governed by the volition of parties. He tried to distinguish the ratio of the Pakistan's case which according to him, arose from termination of a normal permanent employment rather than contractual re-employment for which, according to him, no law existed.
While he showed no cavil with the proposition that our entire conduct may be ordered by the principles of Adal, Qist and Ehsan, he asserted that when an agreement was reached between two parties each one of them was under not only. a moral but also a religious obligation to abide by it.
He referred to Surah 16, verse 91 of the Holy Quran impinging upon persons to always fulfil their promises made with God Almighty. The transalation of the verse was-- {{URDU TEXT}} It was the counsel's submission that State was representative of God Almighty in the amity of Islam {{URDU TEXT}} and that any promise made with the State would be deemed to be a promise virtually with God Almighty so that it was not only for the State to abide by it but also the opposite party. He objected to the claim that Adal, Qist and Ehsan had to be observed by the State one- sidedly, without the citizens correspondingly adopting the same or similar attitude towards it in the context of their contracts. He drew attention to the terms of re-employment contained in Annex: 'A' and with a view to demonstrate that the petitioner had of his own free will accepted the termination clause and that being under a religious duty to accept its operation against him, he should have no cause for grievance.
8. After considering the pros and cons, I feel that the concept of "public employment" derived from the commentary reproduced above has not been much developed in Pakistan. Not a single instance of its acceptance in this country was cited, nor was it supported by any decided case of the Indian jurisdiction. The commentary appeared to be the thinking of the learned author himself, but has yet to receive judicial recognition in specific instances. Contrarily we have considerable mass of decided cases by the Supreme Court directly on the point of termination of a contractual engagement. The consistent trend of those authorities was to allow either party the right to exercise option by giving in advance either notice or pay in lieu thereof. Secondly, there was no enacted law dealing with re-employment of retired persons. The reason for absence of any such law was suggestive of the fact that it had to be left to the parties themselves while undertaking such engagement. The attempt to bring it within the purview of the expression "service of Pakistan" referred to in Articles 240 and 260 of the Constitution was not much helpful. Article 240 no doubt envisaged regulating appointment and the conditions of service of persons in the "service of Pakistan" by Act of Parliament but the Parliament legislated no statute to regulate reemployment of retired Officers. The Act of Parliament namely, the Civil Servants Act, 1973, threw out persons employed on contract from the ambit of the definition of "civil servant". It has been reproduced in para.7 ante. Exclusion of a contractual employment would a fortiorari make the whole of the Act inapplicable to persons employed on contract. Section 11 was wrongly claimed to be applicable to the petitioner's tenure. It deals with termination of service of "a civil servant" who definition-wise would not allow the petitioner to fall within its mischief. No doubt it provided for termination of service on the expiry of initial or extended period of employment, but the same related to that of "a civil servant". Even if the petitioner's re-employment amounted to "extended period of employment" he could not invoke the section on this pretext as the extended period of employment was meant to be that of a civil servant. Similarly it was inconsequential to seek application of section 14. It related to employment after retirement provided it was necessary in the public interest. Although the contention was that the petitioner's re-employment was in the public interest, yet the terms and conditions contained in Annex.: 'A' and 'B' made no reference to it. There was no provision in the said section that the re-employment after having been made in the public interest, would be governed by other provisions of the whole Act. I could see considerable substance in the contention that the Act primarily dealt with ad hoc, temporary and permanent employments, and not the one obtained on a contract. This is what the various authorities cited earlier laid down quite succinctly. The argument that the re-employment had statutory basis or that it could he terminated only in the public interest, was not persuading because both these aspects were not covered by any construction of the statute.
9. Application of Adal, Qist and Ehsan dilated upon in the Pakistan's case too was not attracted to the present case. The whole authority was dealing with termination of a permanent tenure, without notice, exercising arbitrary powers available with the removing authority. It was struck down on a view that an employee should be allowed a normal permanent tenure of employment and that he may not be deprived of it by being thrown out without affording an opportunity of being heard. As distinguished from that case, the petitioner had entered into a contract for a specified period of three years agreeing to put an end to it by exercising option clause. A contractual assignment is neither ad hoc, nor temporary, nor permanent and hence the provisions intended to safeguard those employments could not apply to a contractual job. Again accepting that State was to abide by Adal, Qist and Ehsan, the individual too was under a similar obligation to keep up his own overtures. This is what was ordained in the verse quoted above. State was really holding Khilafat on behalf of God Almighty and, therefore, the agreement with the State had also to be kept up by the individual. If, as was in this case, the individual agreed to be relieved by the application of the termination clause, he has to accept the action merely because he had signified his willingness to such termination of his employment. Promises bind both the parties. This is not only a mundane interpretation but also stems from the above quoted verse of the Holy Qur'an. The petitioner should not have made any grievance if the State chose to put into operation the clause which has been retained in the contract with the conscious consent of the parties. The petitioner I will have no right to avoid the implications of his own commitment.
10. Argument relating to striking down section 4 of the Civil Servants Act or the termination clause contained in the contract on the analogy of striking down section 13 in the Pakistan's case was not much enduring. Both these sections dealt with civil servants holding ad hoc, temporary or permanent employments. They have certain safeguards in order to avail normal expectancy, but the case of a contractual employment was quite different. Since it was governed by no law, like section 4 or section 13 of the Civil Servants Act, 1973, it was completely inappropriate to introduce in the terms of a contract the third element of denying either of them the right to put an end to it. The rule of sagacity leaves to the parties concerned to do or undo a contract and the only remedy for breach thereof was the damages rather than forcing a servant upon a master or a vice versa.
11. Mr, Minto, Advocate asserted that Article 199 of the Constitution on its peculiar phraseology did not bar a writ petition arising out of contract. I am afraid, the long line of authorities referred to in para. 6 ante consistently held that a writ would not lie to enforce an employment on contract. It is difficult to hold otherwise especially when the Supreme Court has categorically made pronouncement directly on the point. The writ is incompetent.
12. As a result; it is dismissed leaving the parties to bear their own costs.