TUFAIL ALI A. REHMAN, C. J. The petitioner in this case was appoint--ed as an investigator in the Agricultural Development Bank of Pakistan, which was set up by Ordinance IV of 1961, and which is the first respondent in this petition, on the 18th of October, 1961. In March 1963, he was arrested by the police on a charge of corruption and was suspended by the bank, but for some reason which' is not quite clear but which according to the petitioner was that no case of corruption was made out against him, he was put for trial not before a special Judge appointed under the Anti-Corruption, Laws but before a First Class Magistrate, Tando Allah Yar for an offence under section 420 Pakistan Penal Code. While this case was still pending the peti--tioner was re-instated by the Bank on the 15th of April 1966, and posted at the Hala Branch of the Bank. The case against him resulted in his discharge and nothing further seems to have happened until the 23rd August 1967, when the services of the petitioner were terminated by the 'bank by means of an order passed by the Chairman of the bank and upon a report of the Administrative Officer. Admittedly no enquiry was held and the charge-sheet was given nor any show-cause notice given to the petitioner. Before 'the order could be implemented the petitioner filed a Civil Suit bearing No. 1625 of 1967, in the Court of the 1st Civil Judge, Karachi, praying for a.' declaration that the order of termination of his services was illegal and asking also for a permanent injunction, restraining the bank from implementing the order. Some interim orders in favour of the petitioner were passed in. The suit but these were eventually vacated and upon their vacation, the bank passed the same order again purporting to be under rule 13(1) of the Agricultural Development Bank (Staff) Service Regulations, 1961 terminating the services of the petitioner with immediate effect on payment of one month's pay in lieu of notice. This order is dated the 9th of January 1968. This suit was eventually dismissed' on the 15th of May 1969, and it is an admitted position that the petitioner did not appeal against the decision of the Civil Judge which became final. Some representations were then made-by the petitioner to the respondent No. 1, the details of which I shall state presently, but these were either unsuccessful or met With no response and eventually on the 15th of March 1973, the present petition was instituted is which the petitioner prays that it be declared that the orders dated 23-8- 1967, and 9-1-1968, passed by the Respondent No. 1 and the order dated 15-6-1969, passed by respondent No. 2, he declared to be of no legal effect. Respondent No. 2, it might be lidded is the 1st Civil Judge who dismissed the suit.
2. Before I deal with the merits of this petition it is necessary to decide upon two questions which obviously and immediately arise, namely whether respondent No, 1 is such a person or local 'authority as can be proceeded against under Article 199 of the Constitution or its predecessor article namely Article 201 of the Interim Constitution of 1972, and secondly, whether there have been tot such laches on the part of the petitioner as to disentitle him to relief in any event. Indeed if either of these two questions is to be decided against the petitioner it would be unnecessary to examine any other point in' this case at all.
3. A fact, which would be material in consideration of both these questions, might here be questioned. By the judgment reported as Muhammad Ashraf Parvez v. The Agriculture Development Bank of Pakistan (PLD 1973 Lah. 425) a learned single Judge of that Court held that the, Bank is a public statutory corporation engaged in the performance of functions in connection with the affairs of the. Province and Centre and therefore amenable to the jurisdiction of the High Court under Article 98 of the Constitution of Pakistan, 1962. The present petition of course was filed under Article 201 of the Interim Constitution of Pakistan (1972) and whether we ought now to deal with it as a petition under Article 199 of the Constitution of 1973, or under the Interim Constitution makes no real difference inasmuch as the material language in both these instruments is the same as also was the language- under Article 98 of the, Constitution of Pakistan; 1962. The judgment of this case was not reported until the May issue of P L. D 1973, but the decision' itself was rendered in May 1972, and since it not only decided this question in a sense favourable to the petitioner but also some of the questions involved in this case do merits in the manner in which he now asks us to decide, the reason for filing this petition in 1973, after what is obviously a long lapse of time add since' the cause of grievance arose, is understandable. Indeed learned counsel for the petitioner not merely admitted this but relied upon it for the purpose of explaining the laches in the case. I shall in any case have to deal with this judgment both upon the question of the maintainability of the-petition against respondent No. 1 and also for the purpose of considering laches.
4. A large number of cases were cited to us upon the question namely whether respondent, No. I is such a person or authority as is amenable to the jurisdiction of this Court under Article 199 and I myself also have read all the relevant cases on the subject that I could discover but I do not think it is really necessary to refer to all of them. . I shall therefore refer to such of these as think decide the matter before us and in these cases. I think it would, be advisable to keep in mind .The difference between the question whether the respondent in each particular case was amenable to the jurisdiction of the Court and the question whether a petition by way of writ or under the various constitutional provisions which has been enforced from 1962 onwards was really the proper' remedy for a case of this kind where an employee of such a respond-at claimed that he had been wrongfully dismissed or that his services bad been wrongfully terminated. The two questions are no doubt distinct and have in fact been dealt with dis--tinctly in these cases but; of necessity, they arose in many of them at the same time and were considered together or at least in 'some relation to each other.
5.. The first of these is the' University of Dacca v. Zakir Ahmad (RLD 1265 SC90) in this case the question involved on merits was the legality or the otherwise of the expulsion of a student by. The University Authorities and the question therefore whether a writ was a proper remedy, in case of removal from service did not arise and the only question dealt with which is material from my present point of view is the question whether the University of Dacca. Is such an authority or person as could be made a respondent in proceedings under Article 98 of the 1962 Constitution. Dealing with the -first contention raised on behalf of the appellant which their Lordships themselves worded thus:"
"That the University is neither a person nor a local authority within the meaning of Article 98 of Constitution."
The judgment went on to reject the argument by a statement of reasons, which very clearly lay down the test by which the question is to be judged.
"The first point, though raised, had-not been seriously pressed for, the learned counsel has himself felt that it would be difficult to argue that the University was not a person performing in the Province of. East Pakistan functions in connection with the affairs of that Province A person has been defined in the General-Clauses Act as including any company or association or body-of individuals whether incorporated or pot", and the University of Dacca has been defined in subsection (1) of section 3 of the Dacca University Ordinance (No. XXIII of 1961) as follow: "3(1) The first Chancellor and Vice-Chancellor of the University and the first members of the Syndicate and the Academic council and a persons who may hereafter become such officers or members, so long as they continue to hold such office or membership, are hereby constituted a body corporate by the name of the University of Dacca."
It is clear from this definition that the University is an association of persons who have been constituted by the statute into a body corporate and therefore, the University comes well within the definition of a "person" given in the General Clauses Act. Again under Article 242 of the Constitution of "person" is defined as including any "body politic or corporate". As such even under this definition the University comes within the category of a "person" under the Constitution.
The next question that arises is whether it is performing any function in connection with the affairs of a province. The University has been set up, as stated in section 4 of the Dacca University Ordinance, to provide, inter alia, for instruction in various branches of learning and to make provision for research and for the advancement and dissemina--tion of knowledge, to affiliate and disaffiliate colleges, to prescribe courses of studies, to hold examinations and to grant and confer diplomas, degrees and other Academic distinctions. Its purpose, therefore, is to impart education at higher levels in the Divisions of Dacca and Chittagong and in the district of Bakerganj in the Khulna Division. It is clear, therefore, that it is performing functions within the province of East Pakistan, which are connected with one of the affairs of that province, namely, education.
It is also patent from a perusal of the provisions of the Dacca University Ordinance that the Provincial Government has considerable power to control and regulate the activities of the University both directly through the Chancellor who is also the Governor of the Province. Thus under section 8 the Provincial Government has the right to cause an inspection to be made of the University, its buildings, laboratories and equipment and of any institution associated with the University as also the examination, teaching and other work conducted or done by the University and to issue through the Governor such directions to the University as it may think fit. Again, under section 11 the Governor as the ex officio Chancellor of the University may pass such orders as he considers necessary if he is satisfied that exceptional circumstances seriously interfering with the normal activities of the University exist. Such orders are binding on the University. In almost all matters an appeal lies from the decision of the University and the authorities of the University to the Governor as Chancellor of the University. Again, whenever a question arises as to whether any person is entitled to be a member of any authority or other body of the University, the matter has, under section 44 of the Ordinance, referred to the Chancellor whose decision is final. It is difficult, therefore, to resist the conclusion that the University is a person performing functions in connection with the affairs of the province, namely, education.
Under section 42, furthermore, the annual accounts and balance-sheets of the university have to be submitted to the Provincial Government for the purposes of audit and the Government scrutinises the audit report, which must also be submitted to Government. The bulk of the Univer-- sity's revenue comes from Government grants and the Governor appoints its Vice-Chancellor. The control of the Government over the affairs of University is as complete as it can be. Thus the University is not only a "person" within the meaning of that term in the General Clauses Act and the constitution but it is also a "person" of the category referred to in Article 98 of the Constitution and, therefore, it is without any doubt amenable to the jurisdiction of the High Court under that Article."
6. It will be noticed that in coming to the conclusion that the University of Dacca was so amenable no regard was shown to the use of word "local authority ' occurring in the relevant Article of the Constitution and the whole stress was upon the meaning of the word "person", of course with the quali--fication "performing in connection with the affairs of the Province or the Federation." As I have understood the judgment of their Lordships they came to the conclusion that it was such a person because it had been set up for providing instructions in various branches of learning and similar matters which are functions within the Province and are connected with one of the affairs of the Province namely education. The question, therefore, whether Respondent No. 1 in the present case is an ordinary company under the Companies Act or a statutory corporation has seemed to me entirely beside the point for the mere fact that it is a statutory corporation will not make it amenable to the jurisdiction just as, if it was not such a body, it would not on that account be exempt from jurisdiction so long as it performed functions of the kind described. I therefore propose to take no further notice of the argument based upon the distinction between statutory corporations and other companies.
7. The next case that is of importance also came from the High- Court of East Pakistan and is, in another way, more nearly akin to the one at present before us: Deputy Managing Director, National Bank of Pakistan v. Attaul Haq (PLD 1965 S C201). The case involved the legality of an order of fresh election for filling a vacant seat on the Central Board of the Bank. In so far as the Constitution of the National Bank of Pakistan was concerned it was in many ways similar to the Constitution of the Respondent No. 1 in this case. Both were banks and each was set up under a special law as the body corporate and the consideration therefore, advanced by learned counsel for respondent No. 1, that a body the main purpose of which was commercial in character, ought never to be proceeded against under the writ jurisdiction of the High Court was clearly therefore excluded by the fact that their Lordships of the Supreme Court did not think that, upon that ground, the National Bank was immune from such jurisdiction. The main reasoning upon which the judgment is based can be gathered from toe following quotations: 'The conclusion that the National Bank of Pakistan is a "local authority" in East Pakistan is one with which speaking with respect we find it entirely impossible to agree. The expression "local authority" has been used in statutory phraseology in the Indian sub-continent for a great many years, and is always understood to mean an authority, which is entrusted with the administration of a local fund.
Local authorities are bodies exercising within limited territories included in a province, powers which belong to the province, but which by statute are delegated to the local authority. A local authority is ordinarily charged with functions of self-Government, and has power of making bye- laws, of imposing taxation, and of maintaining and administering a local fund. In fact, it is evident from the order in which Article 98 mentions the three tiers of authorities that these are in a descending order of importance, first Le. The centre, being the most important authority being the last in that order. It is clearly impossible, in view of this clear distinc--tion to treat the centre as being a "local authority" at, which ever place in Pakistan, it conducts its affairs. The National Bank of Pakistan was set up by a central Ordinance in order to extend banking facilities generally and also to provide credit for agricultures and agricultural produce. It bears no resemblance to the recognised conception of a "local authority". The further facts that the Ordinance gives power to the Central Government to appoint the Managing Director and a number of Directors, to appoint the Auditors, as well as the President of the Central Board, are simply sufficient to show that the National Bank of Pakistan is a body entrusted with the conduct of certain affairs appertaining to the centre. It is a body, which is constituted by section 3 of the Ordinance to be a "body corporate having perpetual succession" which may sue and shall be sued in the name of the National Bank of Pakistan. There seems no doubt whatsoever that after the Election Appeal Committee became functus officio through pronouncing its decisions in the two appeals, which had been referred to it, the record of its proceedings became records of the Bank and it is clear also that what was sought in substance in the present case was a writ of certiorari for the certification of the said record to that Court so that investigation might be made as to the propriety and regularity of the proceedings of the Committee with a view to determine whether the final decision being in the nature of a quasi judicial decision should be maintained. Such a writ could only issue to the National Bank of Pakistan at its head office in Karachi where also the records in question were held, and it seems clear from the wording of the relevant provision in Article 98 that as Karachi is outside the territorial jurisdiction of the High Court at Dacca, the writ sought could not have issued from that High Court. As has been observed already, it appears that the respondents to the petition for a writ were carefully selected and named in such a way as prima facie, to bring the action within the territorial jurisdiction of the High Court. As to the further reasons given by the High Court, the point that the election in question was for electing two Directors from among the Dacca registered share-- holders is not relevant, since relief was sought in respect of the record kept at Karachi, in the custody of the National Bank and what was at stake was a seat on the Central Board of that Bank, which sits at Karachi. The argument that a part of the enquiry was held at Dacca is equally insubstantial, for the Committee was an agency of the Central Organisation of the Bank and it seems quite clear that the discovery made by the Election Appeal Committee (we -do not express any opinion as to whether their conclusion was correct or not) regarding- the action of the representative of the East Pakistan Branch of the Pakistan Red Cross Society in casting the votes of the society for a person who had not been nominated for the purpose by the society itself was made at one or other of the later meeting held in Karachi, where the recount was taken.
On these considerations, we are satisfied that the claim of jurisdiction in the High Court of East Pakistan to issue a writ to quash the order of the Election Appeal Committee is not soundly based and we accord--ingly allow this appeal and direct that the writ be recalled, but in the circumstances of the case, we leave the parties to bear their own costs."
Although the judgment is instructive, and of course binding, it is not I think of conclusive help in the present matter inasmuch as it does seem that the main question that was being agitated was whether, territorially the High Court of Dacca could have issued the writ which it did and which the Supreme Court recalled. It might be noticed also that, although the argument that the bank was a local authority was repelled in no uncertain terms a part of passage which I have quoted at least lends support to the view that it was such a person, just as the University of Dacca was held to be such a person, as came within the constitutional jurisdiction; this passage I have underlined. 1n the last sentence of this underlined passage it seems to me that by a printing mistake word "not" has been omitted between the word "simply" and "sufficient". To put the matter at its minimum the judgment would seem to support the contention of the petitioner that the present respondent' No. 1 is a body to which an order under Article 199 of the Constitution can issue; whether it ought to issue in the matter of dismissal or termination of services of one of its employees is of course a different matter.
8. Before going on to discuss the other cases of the Supreme Court which are important it might be as well to mention two cases decided by the High Court at Lahore and Karachi respectively which were cited before us. The first of these is a case concerning the Pakistan International Airlines Corporation reported in PLD 1971 Lah. 748. Now this was not a case under the constitutional jurisdiction but arose by way of a revision under the Civil Procedure Code from the decision in an appeal against the dismissal of the suit. The question therefore of amenability to constitutional jurisdiction did not really arise but the question whether the employees of the corporation were entitled to the guarantees and safeguards provided to state servants under the Constitution of 1962 on the ground that the Pakistan International Airlines Corporation was a statutory body and amenable to various kinds of control by the Central Government, did and it was held that they were not so entitled. There were however in that case, as in the present case certain rules of service framed by the corporation and reliance was therefore placed before us on behalf of respondent No. 1 upon the observation at page 755: "They are not entitled to any guarantees and safeguards under the Constitution or any statute or the rules having the force of law. The relationship between the corporation and its employee is purely that of a master and servant under the general law."
9.---To much the same effect was another case also involving the Pakistan International Airlines Corporation reported as Shahid Khalil v. The P.
1. A. Corporation Writ Petition No. 403 of 1963 and to this case the Lahore judgment refers as it refers also to the fact that a petition for special leave to the Supreme Court failed, that Court observing: "The Corporation is a statutory body created by an Act, and although it is rendered amenable to the exercise of various controls by the Central Government nevertheless it is not a branch of that Government, and as an employer, it is quite distinct from Central Government."
(Incidentally the judgment of the Supreme Court is now reported in 1971 C M R 568).
10. The next case of importance I think is that of the Lahore Central Cooperative Bank Limited v.
Sarfullah Shah (PLD 1959 SC (Pak.) 210) which was a case of the termination of services of an employee of the Lahore Central Co-operative Bank Limited J. The High Court had held in favour of the dismissed employee and in the words of the Supreme Court itself. "The catalogue of reasons why no writ of any kind could have issued in this case is a formidable one" and to one of these reasons I shall presently return. But the one, which suffices for my present purpose can be gathered from the following quotation: "Regarded as an employee in the relevant respect, the respondent would seem to fall under Bye- law 23(18), which gives the committee power "to appoint, dismiss, suspend or otherwise punish salaried or unsalaried employees of the bank and to frame rules on matters concerning the establishment". The resolution of the 3rd February 1945 to which reference has been made earlier was not passed in the form of the rule, and it is therefore very doubtful whether it can be thought that thereby compliance was made with Bye-law No. 23(18). Consequently, we consider that it is a point of considerable doubt whether the respondent could claim the application to himself of the Civil Service Rules. In any case, these Rules were not applicable to him of their own force, but merely by reference, where these Rules embody safeguards provided for public servants under the then Constitution I.e. The Government of India Act, 1935, as then in force, they cannot be availed of by such a person as Pir Saif Ullah Shah, as a matter of legal right."
Now it is true that the applicability of the rules themselves was being doubted by their Lordships but it seems clear that, even upon the assumption that they were applicable, it was held that a writ could not issue.
11. In the case again of the Chairman, East Pakistan Development Corporation v. Rustam Ali (PLD 1966 SC 848) a case, which has considerable resemblance to the present, it was held that a writ ought not to issue. There as here the respondent was a bank set up under a statute and therefore a statutory corporation. Agreeing with the judgment of the Dacca High Court the Supreme Court said that it was nevertheless "a person" within the meaning of the University of Dacca case but went on to hold, referring to the case of Pir Saifullah Shah to which I have just referred, that a remedy by way of writ was, even so, inappropriate. Their Lordships observed: "Now the question is: Whether in the facts and circumstances of the case the High Court rightly acted in exercising its direction in favour of the respondent Rustam Ali.
Mr. Asrarul Hassan, the learned counsel for the appellants has contended that the service of the respondent was of a contractual nature and hence the Corporation was entitled to dismiss him for misconduct without giving any notice. It has not been and could not be contended that the safe- guards provided for public servants under the Constitution could not be availed of as of legal right by the respondent Rustom Ali. He was an employee of a statutory Corporation. The true character of an officer and employee of such a statutory Corporation has been pointed out by this Court in the case of the Lahore Central Co-operative Bank Limited v. Pir Salfullah Shah, one of the question in the above case was whether the concerned Manager of the Bank was entitled to a writ for alleged wrongful dismissal from service. The learned Chief Justice after quoting a passage from Halsbury Paragraph 162 in the Monograph on "Crown Proceedings' observed: "The Superior Courts in England have not found it possible to extend the scope of mandamus to restoration to office in private corporations. All the offices mentioned in the list contained in the quotation above appear to be of a public nature and to have a quality, which is entirely foreign to that belonging to the post of Commercial Manager in a Co-operative Bank. That post was clearly of a contractual nature falling within the category of employment and having nothing of the true character of a statutory or corporate office.
It is therefore clear that a writ in not a proper remedy in a case of this type in our jurisdiction."
12. The last case to which reference was made on this point was the case of Asghar Hussain v. The Election Commission Pakistan (PLD 1968 SC 387) No doubt in this case the Election Commission constituted under Article 153 of the 1962 Constitution was held to be "a person performing in the Province functions in connection with the affairs of the Centre" and to that extent it of course supports the petitioner inasmuch as it held the Commission to be subject to the writ jurisdiction of the High Court. As to the amenability of respondent No. 1 to that jurisdiction I myself entertain no doubt and the cases that I have quoted are I think clear and binding authorities to that extent. The question involved in the case was wholly different, however, namely the question whether the finding of the High Court that the appellant was not entitled to approach the High Court for issuance of a writ to the Election Commission for the quashment of the order of an Election Tribunal. Such matters as the suitability of the remedy for the purpose of re-instating a person dismissed or whose services had been terminated were not involved at all.
13. 1 have therefore come to the clear conclusion that upon this ground alone, namely that a writ is not the appropriate remedy against an order of dismissal or termination of services, except in the case of persons whose terms and conditions of service are guaranteed by the Constitution, this petition must be dismissed. I think it necessary however to refer to the Lahore' judgment since it takes the opposite view and since it is mainly because of the view taken in that case that, admittedly this petition was brought at all. Now that case is reported as Muhammad Ashraf Pervez v. The Agricultural Development Bank of Pakistan and is, in itself, largely based upon a decision by the same learned Judge which is reported as Abdul Razzak Malik v. The Water and Power Development Authority (PLD 1973 Lab. 188). In the earlier case the learned Judge held that the Efficiency and Discipline Rules of 1966 (Rules made by the Government for the discipline of its own servants) were applicable and holding, therefore, that there was a breach of a statutory duty the Petition was allowed. The learned Judge referred to a number of cases including some which I have mentioned and I think it would be a fair summary of his reasoning to quote the following passage appearing at page 196: "I may also refer to rule 4 (2) of the Efficiency and Discipline Rules of 1966 which are applicable to WAPDA employees which lays down that no Authority subordinate to that by which an employee was appointed shall be competent to impose a penalty on him. We have already seen that the petitioner was promoted as Accountant on 9-9-64 by order of the Authority itself. His Appointing Authority was, therefore, WAPDA and that was the only body competent to take disciplinary action against him.
21. A Private Corporation, so I am told, cannot be directed to continue the engagement of an employee it dislikes. The judgment of the Supreme Court in Rustam Ali v. E. P. F. D. C. Has been cited, as usual. There is an observation at page 803 of the report that "He was an employee of statutory corporation. The true character of an officer and employee of such a statutory Corporation has been pointed out by this Court in the case of The Labour Central Co--operative Bank Limited v. Pir Saifiullah Shah. One the questions in the above case, was whether the concerned Manager of the Bank was entitled to a writ for alleged wrongful dismissal from service. The learned Chief Justice after quoting a passage from Halsbury, Para--graph 162 in the monograph on `Crown Proceedings' observed: The Superior Courts in England have not found it possible to extend the scope of mandamus to restoration to the office in private cor--poration. All the offices mentioned in the list contained in quotation above appear to be of a public nature and to have a quality, which is entirely foreign to that belonging to the post of Commercial Manager in a Co-operative Bank. That post was clearly of a contractual nature falling within the category of employment and having nothing of true character of a statutory or corporate office.
It is therefore, clear that a writ is not a proper remedy in a case of this type in our jurisdiction."
The quotation from Pir Saifullah Shah's case leaves no manner of doubt that their Lordships concerned themselves with the scope of mandamus. What I am required to do in the present case is to just grant a declaration that the impugned order is without lawful authority and of no legal effect, and not issue a mandamus. I am therefore not to be guided by the considerations applicable to the latter. It will, however, be interesting to note the trend of thinking in the Supreme Court even on the question of mandamus. The following is a sampling from a number of cases disposed of by the superior Courts in this country on this point.
"In the absence of proof that any statutory duty was involved or that any legal right was being enforced, or that the performance of a public duty was being claimed, it is clear that a mandamus or an order of mandamus could not have issued, consistently with the relevant practice and precedent."
It follows, therefore, that if it can be shown that a statutory duty is involved or that any legal right is being enforced or that the performance of a public duty-is claimed mandamus can issue."
22. In the subsequent case the learned Judge did not, quite understand--ably if I may say so with respect, repeat the reasoning in any detail and referred to his own earlier decision in the WAPDA case. The rest of the judgment is taken up with the merits of the case and I think it should be stated, in fairness to the petitioner, that the respondent was not only the same statutory, corporation as is the respondent No. 1 in the case before us but also that in all material features the case of the petitioner in that case and in the case before us was very similar. I regret to have to differ from the- -- learned Judge for whose erudition I have the greatest respect but for reasons which I have already stated in my view the conclusion that is to be drawn from the pronouncements of the Supreme Court leads to a different conclusion.
23. This finding should by itself suffice to dispose of the case but I think the petition deserves to be dismissed upon another ground also, namely that of laches. Admittedly the orders of respondent No. 1, which are sought to be declared invalid are dated as early as 1967 and 1968 and the petition was not filed until the 15th March 1973. Clearly therefore it was for the petitioner to explain these laches and his own explanation is contained in paragraphs 14 and 15 of the petition which read thus: "14. That the petitioner did not file an appeal or Revision against the said judgment and decree of the learned Civil Judge because, the Bank itself started re-instating the employees whose services had been terminated by it under Rule 13(1) like those of the petitioner, and petitioner in good faith believed that he will also be re-instated like others. The petitioner made repeated representations to the Bank for his re-instatement like others whose services had been similarly terminated. Copy of the first representation dated 14-11-1969 is Annexure 'E' and copies of reminders dated 3-4-1970 and 16-7-1971 and Annexures 'I' and J'. The petitioner made another similar repre--sentation to the Bank on 11-10-1972 copy of which is Annexure 'K'. On 29-12-71 the petitioner-made a representation for his re-instatement to His Excellency the Governor and Martial Law Administrator Sind which was forwarded by His Excellency to the Chairman of the Bank with a favourable endorsement. Photostat copy of which is Annexure 'L'. , The petitioner submitted a reminder to the Bank on 10-2-1972 (Copy of which is Annexure 'M'). The Bank did not give any reply in writing to the petitioner although verbal promises were held out to hereby its various officers that he will soon be re--instated like others.
15. After the pronouncement of the judgment by His Lordship Mr. Justice Mushtaq Hussain of the Lahore High Court the Bank re--instated some more employees whose services had been terminated like those of the petitioner under Rule 13(1). But it did not re--instate the petitioner in spite of further representations made on 17-2-1973 and a reminder dated 26-2-1973. Copy of which are Annexure 'H' and 'O'. The Bank has not till this day given any reply to the various representations made by the petitioner for his --instatement".
Now in the first place reliance seems to be placed upon a number of repre--sentations made the latest of which is dated the 11th of October 1972. I am tenable however to agree that the mere fact that the petitioner goes on making representations, as distinct from appeals, revisions or applications for review provided for by statute or statutory rules, can serve to keep alive, as it were, an issue that is dead, In the case of Pir Saifullah Shah to which I have already made reference one of the reasons which induced the Supreme Court to deliver the judgment that it did is stated by their Lordships thus: "There is firstly the question of the delay in bringing the petition before the Court. It was filed some 22 months after the order of dismissal had been passed, which itself was made more than seven months after the suspension of Pir Saifullah Shah. It is well recognised that mandamus will not be granted unless it is applied for within a reason--able time after the right of prayer has accrued. In this case, the delay is not accounted for on any reasonable basis. The writ jurisdiction of the High Court was restored in October 1955, and there is no explana--tion for the last twelve months of the delay."
It will be noticed that in this case the un-explained delay was one of twelve months and, while of course no specific period can be laid down as one within which a petition would be regarded as being within time and beyond which it would be too long delayed, the matter not being governed by any article of the Limitation Act, I do feel that the delay of over five years is entirely unjustifiable.
24. Again in the case of New Kissan Transport Company v. Member of Board of Revenue (PLD 1968 Lah. 748) it was observed at page 756: "It would be seen that delay or laches on the part of a petitioner haves always been regarded as disentitling him to relief in the exercise of the; extraordinary constitutional jurisdiction of the High Court unless, of course, the delay can be reasonably explained. No hard and fast rule can be, laid down, as the statute does not prescribe any period o limitation within which constitutional petitions have to be presented The length of the delay that has occurred the circumstances responsi--ble for it, the nature of the injury suffered by the petitioner, the altered position of the opposite-party and the requirements of equity have all to be taken into account before deciding whether relief would be refused on the ground of laches or delay. Now, in the cases before us it is clear that after the appellate orders of the Member, Board of Revenue, were pronounced, the petitioners did not take any steps to challenge those orders for periods ranging between three to four years, during which further proceedings were taken by the Regional Transport Authority in accordance with directions given by the Member Board of Revenue. The mere fact that some other parties had challenged these orders before the High Court did not, to our mind, constitute sufficient justification for the petitioners to stand aside and wait for the result of those proceedings. As a result, we must hold that the petitioners are guilty of serious laches in invoking the jurisdiction of this Court and accordingly the petitions are liable to be dismissed on this ground alone."
I am in entire and respectful agreement with this observation. Indeed the judgment was upheld upon that very ground in 1968 SCMR 1307.
25. Intermingled with the question of laches, however, is another matter and that is that admittedly the petitioner in this case filed a civil suit, which was decided against him. He took no steps whatever to file an appeal or any other proceeding whereby the decision could be upset by a Superior Court. It seems extra-ordinary now that, after a lapse of five years, we should be asked in the exercise of a jurisdiction, which is, after all, a dis--cretionary one, virtually to upset that judgment. In fact the prayer is not only that the orders of respondent No. 1 be declared invalid but even the judgment passed by respondent No. 2 held to be of no legal effect. The whole purpose of the constitutional jurisdiction conferred in the Constitutions of 1962, 1972 and 1973 is to make available a remedy in the case of injustice where the law does not give a specific remedy. Indeed the presence of such a remedy is an actual bar to the exercise of our -jurisdiction. In these circumstances to ignore the conduct of a party who has not availed himself of statutory remedies given by the ordinary law of the land is to place a premium upon the carelessness and lack of vigilance of the petitioner rather than to refuse a discretion in his favour. Even if the petition had been brought much earlier than it was I should have been inclined to reject it upon this ground alone.
26. Learned counsel for respondent No. 1 invited us nevertheless to go into the merits of the question for, as he said, his client would very much like the law to be settled upon this question namely whether the respondent No. 1 was bound by the regulations which it itself has made or is the relation--ship between itself and its employees governed by the ordinary law of master and servant. I have given my most anxious consideration to this request but have come to the conclusion that in view of the ordinary practice of the Courts not to debate questions of purely academic importance, however substantially important they might be to the parties, I must refuse to do so as seeing no special reason for departing from the ordinary rule. Indeed there is some reason for saying that there is a special reason in this case for con--forming to that view.
Admittedly the decision given by the Lahore High Court which I have quoted was one in which respondent No. 1 was a party and admittedly, it took no steps whatever to obtain the leave of the Supreme Court of Pakistan to appeal against that decision.
27. 1 have therefore come to the conclusion that this petition should be dismissed but in view of the fact that the petitioner, by reason of the Lahore judgment, had some reason t4 hope that his petition could succeed despite the delay inasmuch as, admittedly in consequence of that judgment some persons were re-instated by Respondent No. 1, I do not think it would be right to grant costs in this matter against the petitioner and in favour of respondent No. 1. I should certainly have been willing to grant costs in favour of respondent No. 2 who is the 1st Civil Judge First Class, Karachi but since he has not defended the matter such an order is unnecessary. 1 would therefore dismiss this petition but make no order as to costs.
ABDUL HAFIZ MEMONJ. I agree.