The detailed reasons for the short order whereby the writ petition has been accepted are as follows.
2. The relevanf facts are that the instructional staff of the Directorate of Manpower and Training, Punjab formed an association known as "Punjab Association of Instructors" on 4-1-1991. Petitioners Nos. 1 and 2 were respectively elected as President and General Secretary of the Association. Inter alia, the objectives of forming the Association are to create understanding and cooperation among the Instructional Staff employed by the Department, to improve the efficiency of team work of the members, to propagate use of technology, to improve moral and spiritual characters of the students, to improve the calibre of technical education, to protect the rights of the members and to seek solution of their problems through lawful means and to work for the welfare of the members of the Association. The application moved for recognition of the Association by the Department was not given any response, in consequence whereof the Association filed an appeal to the Secretary, Labour and Manpower on 16-2-1992. In July, 1992 the President of the Association received a communication through the Principal, Technical Training Centre, Sahiwal that the request for recognition of the Association had been turned down. The President was also informed that formation of any association was inconsistent with the instructions laid down in the Punjab Government Circular No. SOR/S&GAD/II-1/74, dated 24-10-1974.
3. The Principal of Technical Training Centre, Sahiwal sent Circular No. SWL/PTC/E-11/1700, dated 28- 8-1992 to the members of the Instructional Staff prohibiting them from joining the Association with the warning -that .To observe these instructions would entail action by the Directorate. Various office-bearers of the Association were charge-sheeted and suspended for unlawfully forming the Association. This Constitutional petition has been filed for the following relief:- "In view of the above submissions it is most respectfully prayed that this petition may kindly be accepted with costs and impugned Order DMT/TA/TTC-70/91/14585, dated 17-3-1992 of Director, Manpower and Training Punjab, Lahore, be declared void and without lawful authority and be set aside and a direction and order be issued to respondent No. 2 to grant recognition to Punjab Association of Instructors, Lahore without further loss of the and he be further directed to stop victimising its office-bearers and members by issuing show-cause notice under Punjab Civil Servants (E & D) Rules, 1975 on the pretext of their taking part in association activities."
The writ petition was admitted to regular hearing on 11-10-1992 but no written statement during the last more that four years has been filed. However, the learned Additional Advocate-General has been appearing on behalf of the Punjab Government to contest the petition. Ms. Asma Jahangir, learned counsel for the petitioners has made the following contentions: -
(i) The Departmental instructions contained in Government Circular dated 24-10-1974, forbidding the formation of association of employees of more than one functional unit is violative of the Fundamental Right of forming associations under Article 17 of the Constitution.
(ii) There does not exist any law which prohibits the formation of association by the Instructional Staff in various training institutions of the Directorate of the Manpower and hence the members of the Instructional Staff cannot be prevented from forming the Association by virtue of the dictates of Article 4 of the Constitution.
(i.e)The refusal of the respondents to recognise the Association of the Instructional Staff is not based on reasonable classification and is patently discriminatory. Learned counsel has explained that a number of Associations have been formed by the Government servants belonging to different cadres and different functional units and those have been allowed to operate. It is added that respondents have allowed formation of similar Association by the name and style of "Staff Association of Directorate of Manpower and Training Punjab" but the Association of the petitioners has been disallowed and members thereof have been proceeded against in disciplinary action for formation of the Association.
(iv) Learned counsel has further argued that the purpose and object of forming the Association is to promote objectives laid down in the Principles of Policy of the Constitution and for promoting better working conditions of the teaching staff. According to the learned counsel, formation of Association with such objectives cannot be restrained under the law.
5. Learned Additional Advocate-General has submitted that Government of the Punjab in the Services and General Administration Department issued a Circular dated 24-10-1974 whereby civil servants were allowed to form association provided the members of the association belong to only one functional unit and the association would not engage in any political activity. He has argued that the members of the teaching staff i.e, instructors in various institutes under the Directorate have formed one association against the spirit of the Circular referred to above and, therefore, it has been refused to be recognised. Learned Law Officer has submitted that no discrimination has been made nor the provisions of the Articles 4, 17 and 25 have been contravened by not recognising the Association because teaching staff of different units cannot be permitted to form single Association, though its object may be purely related to the welfare of its members.
6. The impugned letter dated 13-7-1992, the circular letter dated 24-10-1992 and letter dated 20-7- 1992 are reproduced below: -- "The Principal, Technical Training Centre, Sahiwal.
No. DMT/TA/TTC-70/91, dated Lahore the ---July, 1992.
Subject: PROPOSAL FOR FORMATION OF ASSOCIATION OF THE INSTRUCTIONAL STAFF (MANPOWER AND TRAINING PUNJAB. LAHORE)
Please refer to applications submitted by Mr. Intisar Shamim Ahmad, Senior Instructor of Technical Training Centre, Sahiwal on the subject noted above.
Government of the Punjab in Labour and Manpower Department after careful consideration has observed that request of the above officer for formation of Association of all the Instructional Staff of Manpower and Training is inconsistent with the instructions laid down in circular letter No. SOR/S&GAD/II-1/74, dated 24-10-1974. The Government has therefore expressed its inability to grant recognition to the Association of all instructional Staff of Manpower and Training, Punjab, Lahore.
Please inform. Mr. Intisar Shamim Ahmad, Senior Instructor, accordingly.
(Muhammad Hussain Sheikh)
Officer on Special Duty for Director, Manpower and Training Punjab, Lahore".
"GOVERNMENT OF THE PUNJAB SERVICES AND GENERAL ADMINISTRATION DEPARTMENT Mr. F.K. Bandial, Chief Secretary to the Government of the Punjab, Memorandum No.SORI (S&GAD I1-I/74), dated Lahore the 24th October, 1974.
Subject: RECOGNITION OF THE NEW EMPLOYEES ASSOCIATIONS---INSTRUCTIONS REGARDING THE: In supersession of all previous instructions on the subject, the Government of the Punjab has been pleased to order that an association formed in the context of Administrative Reforms, an Association may be formed by persons borne on a specific single cadre in order under a Department
(ii) Office-bearers shall be elected from amongst members of the Association actually serving.
Persons who retire or are dismissed or removed from service shall cease to be members.
(i.e) The Association shall neither affiliate to any other body or Association nor affiliate any other body or Association to it.
(iv) The Association shall contrive its representations to matters of general interest to it only and shall not involve itself in individual cases of its members. Also, the office-bearers and members of the Association shall not participate in the activities of the Association at the costs of their official duties.
(v) The Association shall not engage in any activity or pursue a course of action, which the members are individually prohibited to engage in or pursue under any instructions of the Government or any law or rules concerning conduct of civil servants and service discipline.
(vi) The Association shall not engage in any political activity or contrive to, or, seek the support of any political party.
(vii) The Association shall get its laws or bye-laws or rules approved form the appointing authority who may at any the require any modification thereto or to a proposed rule or bye-laws in a particular manner. The office-bearers and annual statement of accounts to the appointing authority.
Government in the Administrative Department concerned shall be competent to order withdrawal of recognition, if, in its opinion an Association has violated any of the conditions of recognition noted above. Orders passed by the Government regarding withdrawal of recognition shall be final
(3) In case of a cadre, which consists of higher and lower grades, the appointing authority for purposes of these instructions shall be the appointing authority of the highest grade and shall exercise powers under these instructions.
(4) Each Association shall submit its representations to the concerned appointing authority and decisions or such representations shall also be communicated by the appointing authority which may, if it cannot decide the matter itself, obtain orders of the next higher authority or through it refer the matter to Government for decision.
(5) A civil servant who deals with establishment matters pertaining to the functional unit or cadre in which he holds a post shall not become office-bearer of the Association representing that functional unit nor shall he take part in any activities of such an Association.
(6) Nothing in these instructions shall be construed to fetter the discretion of the Government or an appointing authority to refuse to receive a deputation of any Association.
M.A.K. Chaudhry, Additional Chief Secretary to Government of the Punjab."
"GOVERNMENT OF THE PUNJAB DIRECTORATE OF MANPOWER AND TRAINING PUNJAB, LAHORE, To All the Principals, Technical Training Centres/, Government Vocational Institutes, (for boys) in the Punjab.
No. DMT/TA/TTC.70/15611-36, Dated Lahore, the 20th July; 1992.
SUBJECT:PROPOSAL FOR FORMATION OF ASSOCIATION OF THE INSTRUCTIONAL STAFF (MANPOWER AND TRAINING PUNJAB. LAHORE)
Attention is invited to this Director Circular letter No. DMT/TA/TTC.70/91/14585, dated 13-7-1992 on the subject cited above.
You are, therefore, requested to bring it to notice of all the Instructional Staff working under you, with clear instructions that henceforth with none should take part in the activities of the so-called Punjab Association of Instructors otherwise such person(s) will be liable to be proceeded against under the Punjab Civil Servants (E&D) Rules, 1975.
Instances of violation of these instructions, if any, must be dealt with and reported to this directorate for further necessary action, please.
MUMTAZ HUSSAIN SHEIKH, Officer on Special Duty for Director, Manpower and Training, Punjab, Lahore.
7. Articles 4 and 17 of the Constitution and Rule 28 of Government Servant's (Conduct) Rules, 1964 are also reproduced below for ready reference: -- "Article 4. ---(1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the the being within Pakistan.
(2) In particular---
(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with, law;
(b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and
(c) no person shall be compelled to do that which the law does not require him to do.
Article 17.---(1) Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of (sovereignty or integrity of Pakistan public order or morality).
(2) Every citizen not being in the service of Pakistan shall have the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan and such law, shall provide, that where theFederal Government declares that any political party has been, ns formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan, the Federal Government shall, within fifteen days of such declaration, refer the matter to the Supreme Court whose decision on such reference shall be final.
(3) Every political party shall account for the source of its funds in accordance with law.
Rule 28. Membershjp of service associations. ---No Government servant shall be a member, representative or officer of any association representing or purporting to represent, Government servants or any class of Government servants, unless such association satisfied the following conditions, namely:
(a) The membership of the Association and its office-bearers shall be confined to a distinct class of Government servants and shall be open to all Government servants of that class.
(b) The association shall not be in any way connected with, or affiliated to any association, which does not, or any federation of associations, which do not, satisfy condition (a).
(c) The association shall not be in any way connected with any political party or organisation, or engage in any political activity.
(d) The association shall not--
(i) issue or maintain any periodical publication except in accordance with any general or special order of the Government;
(ii) except with the previous sanction of the Government, publish any representation on behalf of its members, whether in the press or otherwise.
(e) The association shall not, in respect of any election to a legislative body, or to a local authority or body, whether in Pakistan or elsewhere---
(i) pay, or contribute towards, any expenses incurred in connection with his candidature by a candidate for such election;
(ii) by any means support the candidature of any person for such election; or (i.e) undertake or assist in the registration of electors, or the selection of a candidate for such election.
(f) The association shall not---
(i) maintain, or contribute towards the maintenance or any member of a legislative body, or of any member of a local authority or body, whether in Pakistan or elsewhere:
(ii) pay, or contribute towards, the expenses of any trade union which has constituted a fund under section 16 of the Trade Unions Act, 1926 (XVI of 1926)."
8. Article 17 of the Constitution reproduced above gives right to form association or unions in unequivocal terms to the citizens of Pakistan. This is a fundamental right which is equally available to the civil servants who like private individuals are also the citizens of Pakistan. The scope of Article 17 ibid with reference to formation of associations/union was examined in the case of Union of Civil Aviation Employees, Lahore and another v. Civil Aviation Authority, Islamabad (PLD 1993 Lahore 306). Section 23 of the Pakistan Civil Aviation Authority Ordinance, 1982 provided that the provisions of I.R.O. Are not applicable to the employees of the Civil Aviation Authority and on this basis formation of union was not allowed to the employees of the Authority to form Union. With reference to the provisions of Article 17 of the Constitution it was held as under in the precedent case: -- "Article 17 of the Constitution enshrines in itself one of the most important fundamental rights guaranteed by the Constitution. Although freedom of association has always been given due weight and importance but it has assumed greater significance and proportion in modern times of political awareness and industrialization. The impact of this right on society can well be assessed by taking into account the role which voluntary associations are playing today.
The importance of this right can also be visualised from the fact that it has been given due purposes, or aggregation or purposes by a course of cooperative action, extending beyond a single at and for this purpose agreeing together upon certain methods of procedure and laying down in however rudimentary form, rules of common action.
Association is a collection of person, who have joined together for a certain object which may be for the benefit of the members or the improvement, welfare or advantage of public or some scientific, charitable or similar purposes.
In the Objectives Resolution, which is now a part of the Constitution, the right of association and of obtaining social and economic justice is guaranteed. Reference may also be made to principles of policy as contained in Chapter II of the Constitution, Article 38 of which makes it the responsibility of the State to ensure equitable adjustment of right between the employer and employees These principles must be kept in view while interpreting or enforcing the law.
The right under Article 17 of the Constitution is not confined only to the formation of an association but also extends to and guarantees the continuance and functioning of an association. It necessarily follows, therefore, that if the authorities refuse to allow the union formed by the workers to function as such, their action would be illegal as otherwise the right guaranteed by the Constitution shall be rendered futile and nugatory. After all this right was not meant to be an empty vessel or merely a legal jargoh. Its importance lies in allowed members of the union to meet and effectively seek the objectives for which they have formed the union.
In view of Article 17 of the Constitution of the Islamic Republic of Pakistan, 1973, there cannot be any doubt that the employees of the Civil Aviation Authority have as much as right to form a union a any other citizen.
Notwithstanding the exclusion of the Industrial. Relations Ordinance, 1969, to the employees of the Civil Aviation Authority, they have right to form a union, which is entitled to work and function as such. Its rights can only be restricted on the grounds mentioned in Article 17 of the Constitution of Islamic Republic of Pakistan.
Although it is open to the Civil Aviation Authority to regulate and restrict the right of association but it is clearly not permissible to lay down a condition that no association can function except with the permission of or recognition by the employer or without fulfilling specific conditions laid down by it, which may have no nexus with the grounds enumerated in Article 17 of the Constitution. If the effect of such a restriction is that it would render the exercise of the right to be illusory or nugatory such a provision would be violative of Article 17 of the Constitution."
9. The right to form associations given by the Constitution is supreme and any inconsistency existing in any subordinate legislation including any Act/Rules/Government Circulars will be void.
Provisions of such an inconsistent law will have to yield to the freedom of Association guaranteed under the Constitution. The freedom of association under Article 17 is absolute, subject to the condition that restrictions can be imposed by law only in the interest of sovereignty or integrity of Pakistan Public order or morality. These are the only four considerations on which right of citizens to forma associations can be abridged but where formation of an association has no nexus with any of these grounds, then right to form an association has to be recognised.
10. The question whether persons in the service of Pakistan, like the petitioners in the present case, have the right to form an association can be resolved by having guidance from the language of clause (2) of Article 17. It says that "every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party subject to any reasonable restriction imposed by the law." It may be seen that the right to form or be a member of a political party has been granted to every citizen except those who are in the service of Pakistan. But clause (1) dealing with the right to form associations or unions has been allowed to every citizen irrespective of the fact whether he is in the service of Pakistan or not. If the right to form associations was intended to be denied to the persons in the Service of Pakistan, then exception could be provided in clause (1) of Article 17 as well. The very fact that exception such as for persons in the service of Pakistan has not been provided in clause (1) of Article 17 goes to show that every citizen including civil servants have the right to form associations or unions. The right of forming an association or union as guaranteed by clause (1) ibid can be restricted only on four grounds, namely, that its formation will not be in the interest of sovereignty or integrity of Pakistan, Public order or morality. Except for these specified considerations, right to form associations by persons in the Service of Pakistan cannot be restricted in any way whatsoever.
11. Rule 28 of the Government Servants (Conduct) Rules, 1964 reproduced above shall have to be read subject to the provisions of Article 17 of the Constitution. The provisions of this rule cannot be invoked to restrain civil servants from forming associations for more than one functional unit.
12. Now coming to the facts of the present case, it has to be examined whether the objects for which the Association has been formed can be said to include the purpose on the basis of which formation of associations has not been allowed by Article 17. In other words, whether any of the objects and purposes of the Association can be said to be prejudicial to the interest of sovereignty or integrity of Pakistan or public order or morality. The objects and purposes of the associations are as follows: - "(i) To foster brotherhood and affinity among the instructional staff and to create atmosphere free from sectarianism.
(ii) To make suggestions for improvement of professional output of the instructional staff.
(i.e) To create pleasant atmosphere in the technical institutions so that the members may perform their duties in a better way. The Association will work for advancement of technical education and to hold seminars etc.
(iv) To suggest improvement in the sellibi to bring them close to the modern needs.
(v) To look after the interest of the members within the four corners of law and to solve the problems of the members. The Association will work for the collective good of the members and to give them financial aid.
(vi) The Association will be purely non-political and would not indulge in any political activity of any party."
Copy of the objects and aims of the Association has been placed on record as Annexure ' A' .
Perusal of the above-quoted objects shows that they are not in any way connected with any of the restricted areas prescribed in Article 17 of the Constitution. In this view of the matter, the members of the Teaching/Instructional Staff of the Directorate of the Manpower and Training of the Punjab Government cannot be restrained from forming their Association. Nor indeed any action can be taken against any member of the Association' merely for the reason that they have formed the Association against the wishes of the officers of the Department or the Government.
13. Now coming to the circular letter dated 24-10-1974 this circular letter allows the formation of Association but with the following restriction: -- "(i) Each such Association shall consist of persons in one and the same functional unit. Till now functional units are formed in the context of administrative reforms, an Association may be formed by persons borne on a specific single cadre in or under a department)."
The restriction aforesaid has been interpreted by the departmental functionaries to mean that there can be one association for one functional unit only. It is on this basis that the Department in the present case has taken up the stand that instructional /educational staff of various technical training centres under the Directorate cannot form single association, on all Punjab basis. This construction/ interpretation of the circular letter aforesaid is violative of Article 17 of the Constitution. The instructional staff of all technical training centres and the vocational institutes can form their association on all Punjab basis. The members of the association cannot be restrained from forming one association nor they can be proceeded against for the reason that they have formed such an association. In letter dated 19-7-1992 the Principal of the Government Technical Training Centre, Sahiwal was informed as follows: -- "It is to inform you that Government of the Punjab, Labour and Manpower Department after careful consideration has observed that the interest of formation of association of all the instructional staff of Manpower and Training is inconsistent with the instructions laid down in Circular No. SOR/S&GAD/II-1/74, dated 24-10-1974. The Government has, therefore, expressed his inability to grant recognition to the Association of all the instructional staff of Manpower and Training Staff of Punjab, Lahore."
Subsequent letter issued by the Director, Manpower and Training Punjab specifically restrained the instructional staff from taking part in the activities of the Association and threatened them with action under the Efficiency and Disciplinary Rules. The relevant part of letter dated 20-7-1992 is reproduced below: -- "You are, therefore, requested to bring it to the notice of all the instructional staff working under you with clear direction not to take part in the activity of the so-called Punjab Association of Instructors, otherwise such persons will be liable to be proceeded against under the Punjab Civil Servants (F&D), Rules, 1975."
The threat contained in the last mentioned letter is totally unjustified and shows nothing but the ignorance of its author with respect to the dictates of the Constitution as contained in Article 17 ibid.
14. For what has been discussed above, it is declared that the impugned circular letter dated 24- 10-1994 in so far as it restricts the formation of associations on functional unit basis alone, is without lawful authority and of no legal effect. Similarly, letter dated 20-7-1992 addressed to all the Principals of '"'C/Government Vocational Institutes in Punjab on behalf of the Director of Manpower and Training Punjab, Lahore is without lawful authority and of no legal effect. It is further directed that no disciplinary or adverse action shall be taken against the instructional/teaching staff of the training centres/vocational institutes under the Director of Manpower and Training Punjab for forming the association and any action which may have been taken on that ground against the members of the association is declared to be without lawful authority and of no legal effect. It is further directed that the association shall not be refused to be recognised by the Department/Government.