1. SYED HAIDER ALI PIRZADA, J.---This is a Constitution petition under Article 199 of the Constitution of Pakistan, 1973 seeking for declaration that the restoration of the seniority list of Cockpit Crew of respondents Nos.3 and 4 by respondent No.2 is invalid, without lawful authority and of no legal effect and their original seniority on account of their taking long leave abroad is their proper seniority and that the petitioners' seniority in law is incapable of being disturbed to their detriment in any manner whatever. The petitioners have also sought prohibitory injunction restraining respondents 1 and 2 from giving effect to the respondents 3 and 4 impugned seniority vis-a-vis the petitioners and to restrain to extend any training facilities to the said respondents at the cost of the petitioners.
2. The facts leading to the riling of the above petition are that respondent No.2 Pakistan International Airlines was formed in the year 1956 under the Pakistan International Airlines Corporation Act, 1956 (hereinafter referred to as the Act'). The preamble of the Act provides to facilitate acquisition of the air--transport undertaking of the Orient Airways Limited and to make further and better provision for the operation and development of air-transport services and purposes connected therewith.
3. Section 4 of the Act provides to take over the undertaking of the Orient Airways Limited and all such undertakings of the Federal Government as were undertaken for the purposes of the Corporation and subject to the provisions of the Aircraft Act, 1934. It provides further to develop safe, efficient, adequate, economical and properly coordinated air-transport services, internal as well as international, and the. Corporation shall so exercise its powers as to serve that air-transport services are developed to the greatest possible advantage in the interest of the country.
4. The case of the petitioners, as set out in the petition, is that the petitioners and the respondents Nos.3 and 4 rank 747 copilots with respondent No.2 and collectively amongst themselves and others constitute complement of the cockpit crew appertaining. To respondent No.2. They are covered by the rules and regulations framed by respondent No.2.
5. A circular dated 11-9-1081 was circulated as administrative order No.38/81. This inter alia provided for the respondents' Cockpit Crew Service Rules, 1981. It is the case of petitioners that the Rules also contemplate Exation of the pilots' seniority which was conclusive and final as published by the Corporation on 9-2-1974. Prior to the promulgation of 1981 Rules, the conditions of services were regulated in accordance with the agreement concluded between the respondent No.2 and the Pakistan Airlines Pilots Association and separately by the Flight Engineers and Navigators Association. The referred agreement stood terminated and was replaced by the referred Rules of 1981. It is further case of the petitioners that the commencement point of pilots' career in the respondent Corporation was in accordance with Rule 9 entitled career plan of pilots. Additionally respondent Corporation has also framed PIAC Employees (Service & Discipline) Regulations, 1985.
6. The petitioners rank senior to respondents Nos.3 and 4 in the referred seniority list. However, the said respondents applied and obtained long leave without pay in order to avail of service offer of other foreign airlines. In terms of the Service Rules, the respondents 3 and 4 like other PIA personnel servicing abroad lost their seniority vis--a-vis continuously PIA serving personnel like the petitioners herein.
7. It is the further case of the petitioners that the respondents Nos.3 and 4 after availing of their relative leave concessions returned to Pakistan and acceptd seniority of the petitioners, amongst others, to them in view of the operating Service Regulations. The said respondents Nos.3 and 4 made representation for seeking restoration of their lost seniority which until recently to the knowledge of the petitioners stood declined. However, to the petitioners surprise and amazement without any reference to or knowledge of I the, petitioners. The petitioners by separate representation, dated 2/4 November, 1990 protested to the respondent No.2 Managing Director in regard to their grievances. No response to the said representation was received. The petitioners, on the contrary, have learnt that the said respondents have already been detailed commensurate with their alleged seniority for training on 737 Aircraft captains with training establishment at Karachi and in London. Hence the present petition.
8. The respondents contested the petition. It is the case of respondent No.2 that the seniority of respondents Nos.3 and 4 has been restored strictly in accordance with the Administration Order No.69 of 1987 which spells out that the management of respondent No.2 has decided that the employees of the respondent-Corporation who were allowed to proceed abroad on self-arranged secondment to other airlines/organizations prior to 31-3-1984 shall not lose seniority and their seniority position shall remain the same which they enjoyed prior to proceeding as such secondment. Respondent No.2 has strictly acted upon the aforesaid Administrative Order and the seniority of respondents Nos.3 and 4 has been restored to their original position and in this respect personal order, dated 25-10-1990 addressed to Captain Lodhi Abdul Rauf respondent No.4 and personal order, dated 26-10-1990 issued to Captain Akhtar Rao with the approval of the competent authority of respondent No.2.. Respondent No.4 also filed counter-affidavit on similar lines.
9. Mr. Ikram Ahmed Ansari, learned Standing Counsel appearing for respondent No.1 has raised preliminary ground as to the maintainability of the petition.
10. Mr. Mehmood Alam, learned counsel for respondent No.2 has raised a preliminary ground as to the maintainability of the petition. According to him, the Pakistan International Airlines Corporation is not an authority as contemplated by the Constitution and, therefore, it is not amenable to the jurisdiction of this Court. This Court cannot interfere with the impugned order as it is purely a dispute between master and servant.
11. On the other hand Mr. Nasim A. Faruqui, learned I counsel appearing for the petitioners has submitted that the respondent No.2 is a branch/department of Government and the employees of the Corporation are servants of the State and are entitled to guarantees.
12. In order to appreciate the respective contentions of the learned counsel, it is necessary to refer to the relevant sections of the Act. Section 3(2) of the Act provides that Pakistan International Airlines Corporation is a body corporate having perpetual succession and a common seal with power, subject to the provisions of the Act, to acquire and hold property both movable and immovable and to carry out the functions and duties of the Corporation under this Act and shall by the said name sue and be sued. The functions of the Corporation are defined in section 4 of the Act. Under section,5 of the Act, the general direction and administration of the Corporation wid ii. Affairs shall vest in the Board of Directors which may exercise all powers and do all acts which may be exercised or done by the Corporation. Subsection (2) of section 5 provides that the Federal Government may, as and when it considers necessary, issue directions to the Corporation on matters of policy and such directions shall be binding on the Corporation. Section 10 of the Act provides. That the Corporation may appoint such officers, advisors and employees as it considers necessary for the efficient performance of its functions on such terms and conditions as it may see it. Section 29 gives power to the Federal Government to make rules and it may make rules not inconsistent with the Act for the purpose of giving effect to the provisions of this Act and where the rules made under this section are inconsistent with the regulations made under the next succeeding section, the rtiles shall prevail. Section 30 lays down that the Board may with the previous sanction of Federal Government make regulations not inconsistent with the Act to provide for all matters for which provision is necessary or expedient for the purpose of giving effect to the provisions of this Act. Section 31 lays down that all rules and regulations made under this Act shall be published in the Official Gazette and shall come into force upon such publication and shall be laid thereafter as soon as may be before the National Assembly.
13. By virtue of the power conferred on it, the respondent No.2 Corporation framed the service regulations namely, the Pakistan international Airlines Corporation Employees (Service & Discipline)
14. Regulations, 1985.
15. The question is whether before the publication of the Regulations, they had come into force on March 31, 1985. Section 30 authorises the Board to make regulations with the approval of the Federal Government. Section 31. Provides that A rules and regulations made under this Act shall be published in the Official Gazette and shall come into force upon such publication and shall be laid thereafter as soon as may be before the National Assembly. It is apparent that before making regulations two conditions are to be fulfilled, namely (1) publication in the Official Gazette and (2) shall be laid thereafter as soon as may be before the National Assembly. Fulfilment of these conditions will not, in our view, give any validity to any rule or regulation that may be made by respondent No.2 Corporation under sections 29 and 30 of the Act. So long as the Regulations were not published in the Gazette and not laid before the National Assembly, these regulations did not come into existence, even though the approval of the Federal Government was obtained. In these circumstances, we hold that these regulations did not come into force. in a case reported in PLD 1971 Lah. At p. 748 a Division Bench of Lahore High Court held that the provisions of Service Code do not have the force of statutory rules made by the Government under section 39 or of regulations made by the Board under section 30. This decision was approved in a case reported in PLD 1981 SC 224. In this case, their lordships held that in the absence of any statutory rules, the Courts below were justified in holding that this was h case which was governed by the simple theory of master and servant. in Shahid Khalid v. Pakistan International Airlines Corporation, Karachi (1971 SCMR 568), it was held that "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 the Government, and as an employer, it is quite distinct from the Central Government".
16. In R.T.H.'Janjua v. National Shipping Corporation (PLD 1974 SC 146) it was held that "the broad proposition laid down in all these safeguards available to the generality dismissal or removal from service are not available to the servants of a registered company, or a statutoty Corporation". cases was, that the Constitutional of Civil Servants against arbitrary In Muhammad Yusuf Shah v.
17. Pakistan International Airlines Corporation, through D.S.M. (PLD 1981 SC 224), their Lordships of the Hon'ble Supreme, Court held as under:- "4. Learned counsel for the appellant referred to Mst. Manni v. Karachi Cantonment Board (PLD 1969 Kar. 304), for the proposition that an employee of a corporate body can always file a civil suit for a --declaration that his services were wrongly terminated. The aforesaid precedent has no relevancy, inasmuch as, the services of the employees therein were governed by formal statutory Rules and Regulations whereas here the learned counsel has no been able to show us any such statutory Rules and Regulations which may be applicable to his case. ' At this juncture, the learned counsel wanted to refer to a publication know as the 'Service Code' published by the P.I.A. But the status and position of that Code was analytically gone into in A. George v. Pakistan International Airlines Corporation (PLD 1971 Lah. 748) (D.B.) (Muhammad Akram and Muhammad Afial Cheema, JJ.), and it was concluded that the provisions were not immutable and they were in the nature of mere instructions issued by the P.I.A. For the guidance, of its officers for their internal use and were altogether directory. Learned counsel was unable to point out any fallacy in the aforesaid view and in that state of law, in the absence of any statutory rules, the Courts below were justified in holding that this was a case which was governed by the simple theory of Master and Servant and a suit for the present kind in the aforesaid context was not maintainable."
18. In the Principal, Cadet College, Kohat and another v. Muhammad Shoab Qureshi and others (PLD 1984 SC 170), the Hon'ble Supreme Court at page 176 held as under:- "It is, therefore, evident that where the conditions of service of an employee of a statutory body are governed by statutory rules, any action prejudicial taken against him in derogation or in violation of the said rules can be set aside by a writ petition. However, where his terms and conditions are not governed by statutory rules but only by regulations, instructions or directions, which the institution or body, in, which he is employed, has issued for its internal use, any violation thereof will not, normally, be enforced through a writ petition."
19. On the same page, it was further held as follows:- "in this view of the matter, the holding of a 'public office' by an employee is not all that crucial because, as rightly pointed out by Qazi Muhammad Jamil, learned counsel for the respondent in Civil Appeal No.17 of 1981 this condition is relevant only in cases wherein a writ in the nature of quo warranto is sought whereby a person holding a public office within the territorial jurisdiction of a High Court may be required to show the authority of law under which he claims to hold the said public office. Thus, apart from the question whether the aggrieved employee of a statutory body was a holder of a 'public office', the more important question will be whether the conditions of his service were governed by any statute and/or a statutory rule, if so, whether the statute or statutory rule was disregarded while taking the action which is impugned by him."
20. At page 177 it was further held as under:- "It is common ground that neither any rules, as contemplated by section 17 of the Ordinance nor any Regulations under section 18, thereof were framed. The Board of Governors did frame some 'rules' for governing the appointment, promotion, retirement, termination of service , and dismissal of staff employed by the Board of Governors of the College in its meeting held on 1st September, 1964, but these not having been made by the Government, could not be regarded as ---rules--- under section17, nor having been approved by the Government, be treated as Regulations under section .18 !Hereof. These Rules therefore could only be 'regarded to be in the nature of mere instructions issued for the guidance of the Board of Governors and the Principal of the Cadet College, Kohat."
21. In Anwar Hussain, v. Agricultural Development Bank of Pakistan and others (PLD 1084 SC 194), it was held at page 198 as follows:-- "Were a corporation in set up by a statute but the Government does not reservethe power to regulate the conditions of service of the employees under the corporation and the statute itself also does not prescribe any condition but leaves the matter entirely in the discretion of the corporation who is given the power to frame rules and regulations in that regard so that the employee is left with no protection under the statute itself, then the corporation must be held to be the sole arbiter in the matter of prescribing the terms and conditions of its employees and competent to deal with them accordance with the terms and conditions so prescribed by it. In such a situation the employee cannot claim to be a person possessed of any legal character within the meaning of section 42 of the Specific Relief Act and in case of his wrongful dismissal from or termination of service, the principle af master and servant will fully apply and he can only claim damages but not reinstatement to this post." fs In Mahmood Hussain v. Pakistan International Airlines and others (1989 PLC (C.S.) 549) at page 554 it was held as under:-- 'The Corporation has been conferred uncontrolled and unlimited powers to settle the terms and conditions of employment etc to be appointed by it. In view of these clear provisions and the fact that there arc no rules or regulations framed laying down the terms and condition, of emptoyces of the Corporation it can afely be held that the service of the petitioner was governed by the principle of Mastcr and Servant simpliciter as has been held in Muhammad Yusuf Shah v--Pakistan International Airlines Corporation PLD t981 ~SC 224 which was a case of employee of Pakistan International Airlines that the provisions of the Service Code of the PIA were mercly in the nature of instructions and not statutory rules and were directory in nature and in, the absence of any statutory rules the relationship between Corporation and its employees was governed by simple theory of Master and Servant. This view was affirmed in another judgment reported as Principal, Cadet College v. Muhammad Shoab Qureshi PLD 1984 SC 170. The similar view was taken in a reported judgment Malik and Haque v. Shams-ul-Islam Chaudhry PLD 1901 SC 531. In view of these authoritative pronouncements made by the Supreme Court and the other reported judgments noticed by the learned lower Court it is not possible on any principle of law to hold that the employment of the petitioner with the defendant No.1 was not governed by the principle of Master and Servant. The case:-law relied upon by the learned counsel for the petitioner is not relevant and applicable to the facts and circumstances of this case. In none of those reported cases a contrary view has been expressed which have been decided on their own peculiar circumstances."
22. This question has been recently considered by a Division Bench of this Court in unreported decision dated 29-11-1991, Mst. Anisa Rehman v. PIA and another in which they have come to the conclusion, after giving cogent reasons, which are fully supported by the various authorities discussed by them in the said judgment, that in the absence of any statutory rules the terms and conditions of service of an employee of a corporation are to be governed by the law of Master and Servant and such employee would not be entitled to any constitutional guarantees nor can a writ be issued in such case. We are in respectful agreement with this decision of our learned brothers for the reasons given by them in their unreported judgment, dated 29-11-1991 and as such we are of the opinion that in the absence of any statutory rules, the terms and conditions of the service of an employee of a corporation are to be governed by the law of Master and Servant and such employee would not be entitled to any constitutional guarantees nor can a writ be issued in such case.
23. Mr. Nasim A. Faruqui submitted that administrative order, dated 11-9-19981 is in the nature of rule made under the rule-making power conferred on the Board of respondent No.2. This question was considered by the Hon'ble Supreme Court in cases reported in PLD 1961 SC 105, PLD 1964 SC 21 and PLD 1966 SC 188. In another case reported in PLD 1973 SC 144, it was held that "service rules could be framed by issuing memoranda or letters. These cases lay down the principle that although a rule requires to be' expressed with precision and yet to possess governality so as to be capable of application to a large number of cases and ordinarily it is necessary also that the making and promulgation of a rule should be attended by certain formalities for example publication in a Government Gazette, yet the instructions embodied in departmental memoranda can operate as rules if they possess these characteristics. It. Has further been held that if a rule is capable of amendment, it could be so amended in a circular or memorandum. We have already observed above that the service regulations referred to above by the learned counsel for the petitioner are not statutory rules so also this Administrative Order/Circular No.38 of 1981 is not a statutory rule as the statutory requirements have not been complied with.
24. Mr. Muhammad Alam has invited our attention to Administration Order No.8/82, dated 1-2-1982 pertaining to Leave Rules, Administration Order No.21 of 1984, dated 31-3-1984 and the last Administration. Order No.9/87, dated 25-3-1987. He has submitted that seniority list was fixed in accordance with this administration order.
25. There being no statutory rule in the field, the petitioners could not invoke the Constitutional jurisdiction of this Court.
26. The consistent view of the superior Courts has been that the employees of statutory corporations do not acquire the status of Government employees nor are the guarantees given by the Constitution applicable in their case. Respondent No.2 Corporation is a statutory body, created by the Act, and although it is rendered amenable to the exercise of various controls by the Federal Government, nevertheless it is as an employer, it is quite distinct from the Federal Government. We entertain no I doubt that the posts of pilots are in no way to be regarded as equivalent to .Public office" and that on the law as stands, a Constitutional petition is not available to declare that the restoration of seniority list of Cockpit Crew of respondents Nos.3 and 4 by respondent No.2 is invalid, without lawful authority and of no legal effect.
27. For the foregoing reasons, we dismiss the petition. In the circumstances of the case, the parties are directed to bear their own costs.
28. AA./R-199/K