1. ' The respondent Mohammad Shakir Shaikh filed Suit No,371 of 1989 in the Court of IlIrd Senior Civil Judge West Karachi against Karachi Shipyard and Engineering Works Limited appellant No,1 herein and 5 others for declaration and permanent injunction praying as follows:
(i) to declare the procedure adopted for promotion of defendants/appellants as illegal and in violation of principle of seniority-cum-fitness;
(ii) to declare the proposed promotion of defendants/appellants in general as illegal w,e,f, 1-7- 1989;
(iii) to declare the meeting of G.Ms. Which decided for proposed promotions of defendants/appellants as illegal as it was influenced by Mr. Hadi Khan G.M. Real maternal uncle of one of the proposed promotee Mr. Bazlur Rehman;
(iv) to declare the promotions as illegal as the criteria for selection was votes of G.Ms. Who were canvassed in favour of office-bearers of Officers Association in contravention of established principles of promotion on the basis of seniority-cum-fitness.
(v) to declare that plaintiff/respondent is entitled for promotion to Selection Grade IV as he was discriminated in violation of his fundamental right guaranteed by Article 4 of the Constitution of Islamic Republic of Pakistan;
(VI) to prohibit and restrain defendant No,1 /appellant No,1 from giving effect to the proposed promotion and demote those defendants/appellants who have been promoted to Selection Grade IV;
(vii) to prohibit and restrain defendant No,1/appellant No,1 to adopt promotion by voting of G.Ms. In future also.
2. ' The respondent is an Engineering Graduate and has vast experience in the field of Hyderaulic from Federal Republic of Germany. He was appointed by appellant No,1 and subsequently promoted as ASP (Welding) on 6-9-1977 whereafter he officiated as Ag.DSP and was confirmed as such on 25-9- 1983. Subsequently posts of selection grade had fallen vacant with appellant No,1 Company but despite the respondent's hard work and seniority he was being ignored without assigning any reason and the appellant No,1 failed to consider him to the selection post in Grade IV. The names of respondents Nos,2 to 6 were however proposed for promotion for the said posts.
3. ' In the said suit, appellants Nos,1 to 6 filed an application under Order 7, Rule 11, C.P.C. Praying for rejection of the plaint among others on the following grounds:
(1) That there is complete absence of cause of action for the plaintiff (respondent) to institute the present suit.
(2) That the relations between defendant No,1/appellant Not and the respondents are that of master and servant and as such the suit for declaration is not maintainable within the meaning of sections 21 and 42 of the Specific Relief Act.
(3) That promotion is not a vested right and as such cannot be claimed as of right.
(4) That the injury to the plaintiff/respondent, if any, can always be compensated in terms of money and as such the suit is barred under sections 54 and 56 of the Specific Relief Act.
(5) That even otherwise, the impugned order of promotion of the defendants Nos,2 to 6/appellants has already been acted upon and as such the suit is infructuous."
4. ' The learned Senior Civil Judge by his order dated 26-7-1989 allowed the application and accordingly rejected the plaint. Aggrieved by the said order, the plaintiff/respondent herein preferred a Civil Appeal No,29/89 before learned District and Sessions Judge West Karachi who by his order dated 31-5-1990 set aside the order of the learned Civil Judge as follows:- "The prayer for declaring the appellant entitled for promotion may not be considered by the lower Court but so far the other prayer made in the plaint can be considered by Civil Court. I do not agree with the findings of the lower Court that the jurisdiction of the Civil Court in the given circumstances of the case and the allegations made in the plaint is barred. Accordingly, I set aside the order of the lower Court and remand the case back to the Senior Civil Judge having jurisdiction to proceed with the suit on merit."
5. ' On 26-1-1992, this matter was fixed for regular hearing on which date the learned counsel for respondent contended that the appellant No,1, namely Karachi Shipyard and Engineering Works Limited is a statutory body/Corporation, and therefore, terms of service of its employees are regulated by Ordinance 13 of 1978 i,e, Corporation Employees (Special Powers) Ordinance, 1979. This position was questioned by Mr. Hamid Hussain, learned counsel for the appellant Who pointed out that as per the plaint filed by the respondent the appellant No,1 is shown as a Company Limited by shares which is also the correct position. However this matter was adjourned today to particularly examine this aspect of the case. Today the matter was called twice and was finally taken up at 11- 15 a.m. Throughout the respondent and his counsel remained absent and the matter therefore proceeded in the absence of the respondent and his counsel.
6. ' At the outset, learned counsel for the applicant Mr. Syed Hamid Hussain pointed out that from the title of in the plaint itself in the said Suit No,371 of 1989, the appellant No,1 is shown as a limited company and the impugned order on the face of it is bad in law. A bare reading of the plaint will also disclose that the respondent was an employee of appellant No,1 on the basis of contract of personal service in respect of which no specific performance of contract can be granted by a Court. In support of his contention learned counsel placed reliance on PLD 1961 SC 531 in which it was held as under: "In a case where there is a contract between a master and a servant, the master agreeing to pay the salary and the servant agreeing to render personal service it is obvious that money compensation is full relief for all that the servant was entitled to under the contract was his salary.
7. A breach of contract can give rise to only two reliefs, damages or specific performance. If specific performance be barred the only relief available is damages. When a master, in breach of his contract, refused to employ the servant the only right that survives to the servant is the right to damages and a decree for damages is the only decree that can be granted to him."
8. ' The next case cited by the learned counsel is 1986 SCM R 64 wherein it was held that even a civil servant has no vested right to promotion and an appeal before. Service Tribunal was not competent. The next case referred to is 1987 SCM R 1776 in which it was held by the Supreme Court of Pakistan that a mere fact that the Educational Institution was receiving grant in aid from Government could not convert such institution into a public institution or attract statutory rules applicable to civil servants and therefore the suit for declaration and consequential relief filed by the plaintiff was not maintainable.
9. ' Learned counsel for the applicant brought to my notice the operative part of the impugned judgment dated 31-5-1990 passed by the learned District and Sessions Judge West Karachi which according to him patently suffers from material irregularity. Whereas on one hand learned Judge had rightly held that the prayer for declaring the appellant entitled for promotion may not be considered by the lower Court, but on the other hand, erroneously held that the other prayer made in the plaint can be considered by a Civil Court. It was contended that no reason whatsoever was given by the learned Judge as to why such prayer may be considered by a Civil Court when prayer for promotion of the appellant was held to be barred.
10. ' I have gone through the record before me and heard Mr. Hamid Hussain, learned counsel for the appellant. The view of the Supreme Court of Pakistan is that a breach of contract would give rise only to two reliefs for damages or specific performance as was held in PLD 1961 SC 531. However, where relief for specific performance is barred the only relief available for plaintiff is to file a suit for damages. Thus, the finding of the learned District Judge to the effect that the learned Civil Judge may consider other prayer i,e, relating to injunction which is consequential to the relief for specific performance is not tenable in law. The suit filed by the respondent is clearly hit by sections 21 and 42 of the Specific Relief Act and the question of grant of injunction independently does not arise on the facts and circumstances of the case.
11. ' As a result I allow this Revision and set aside the impugned order dated 31st May, 1990 passed by the learned District and Sessions Judge West Karachi.