' The petitioners have filed this petition and have inter alia stated that they were appointed on contract basis. The petitioner No, 1 was appointed on one year's contract while the other petitioners were appointed for two years contract. Their case in nutshell is that they are being relieved of their duties on political considerations as the Caretaker Government on 7-11-1996 took the decision that the services of all the civilians who were the appointees on contract, may be terminated with immediate effect. They further stated that they are being relieved in violation of law as the orders have been issued under command performance for termination of their contract and they have impugned office order dated 27-11-1996. The learned counsel for the petitioners, Mr. Ahmed Ali Sheikh while assailing the impugned order has stated as follows:
(a) Although the petitioners were employed on contract basis since there is no provisions for appointment on contract basis, therefore, it shall be deemed that they were appointed on permanent basis. According to him the statutory provisions will prevail and not the contract agreement he has relied upon a case reported as Khwaja Ghulam Sarwar v. Pakistan through the General Manager, P.W.R., Lahore (PLD 1962 SC 142).
(b) His next contention was that before the petitioners were relieved no hearing was given to them, in another words before terminating their contract the principle of natural justice were not followed and in this connection reliance has been placed upon a case reported as Riaz Ali Khan v. Pakistan (PLD 1967 Lahore 491) and Mrs. Anisa Rehman v. P.I.A.C. And another (1994 SCMR 2232).
(c) He further contended that the order is being passed by an incompetent person or under command performance such exercise according to him is not genuine and has relied upon. The Regional Commissioner of Income-Tax Central Region, Lahore and others v. Zaffar Hussain and others (PLD 1992 SC 869 at page 874), Pir Shabbir Shah v. Federation of Pakistan and others (PLD 1994 SC 738) and Mrs. Shahida Zahir Abbasi and 4 others v. Federation of Pakistan and others (PLD 1996 SC 632). According to him the order passed is beyond the competence of the Caretaker Government patently illegal and in violation of law.
' Mr. Illahi Bux M. Kehar, learned counsel for the respondents Nos.3 and 4 stated that the petitioners were employed on contract basis. In case if the contract of service is violated the only remedy available to the petitioners is to file the suit for damages. According to the learned counsel since the statutory rules are not available and such rules are not extended to the case of petitioners, therefore, the principle of master and servant will apply and according to the judgment of the Hon'ble Supreme Court reported as Messrs Malik and Haq and another v. Muhammad Shamsul Islam Chowdhury and 2 others (PLD 1961 SC 531). No specific performance of such contract could be ordered.
' He further contended that in such eventuality since the contract of employment is not statutory the only remedy to which the petitioners are entitled would not be the restoration of service and has placed reliance upon Muhammad Umer Malik v. The Muslim Commercial Bank Ltd. Through its President, Karachi and 2 others (1995 SCMR 453), Mrs. Anisa Rehman v. P.I.A.C. And another (1994 SCMR 2232) and Messrs Malik and Haq and another v. Muhammad Shamsul Islam Chowdhury and 2 others (PLD 1961 SC 531). His further contention was that the petitioners have no legal right, therefore, the writ petition is not maintainable and has relied on University of the Punjab, Lahore and 2 others v. Ch. Sardar Ali (1992 SCMR 1093) and Mrs. Shahida Zahir Abbasi and 4 others v.
President of Pakistan and others (PLD 1996 SC 632). After hearing the parties in the open Court I passed the following orders:-- "For the reasons to be recorded separately. I am not satisfied that the present petition needs to be admitted.
' Since I am sitting at Single Bench at Circuit Larkana, therefore, I cannot pass order for dismissing this petition. The matter is, therefore, referred to the Division Bench at Sukkur in view of the orders passed by my Lord the Chief Justice on 20-3-1997 for disposal according to law."
' Following are the reasons for passing such order: ' National Highway Authority came into existence through an Act of Parliament. By virtue of powers conferred vide sections 14 and 31 of the said Act of 1991, the Federal Government published the statutory rules of service vide Notification, dated 9th March, 1995. In the said rules it is specifically provided as follows: "CHAPTER I SHORT TITLE EXTENT AND APPLICATION
(1) These rules shall be called as the 'National Highway Authority Employees Services Rules, 1995' and shall come into force with immediate effect.
(2) These rules shall apply to all employees of the National Highway Authority, hereinafter referred to as the Authority other than those:
(a) appointed on contract basis;
(b) on deputation to the authority;
(c) paid from contingency."
' The specimen of the contract governing the petitioners and the respondent No, 3 is reproduced as follows: "Subject: EMPLOYMENT ON CONTRACT.
' I am directed to say that the competent Authority has been pleased to appoint you on contract as Sub-Engineer (BS-11) at the disposal of G.M. (Sindh), Karachi of the National Highway Authority on the following terms and conditions:-- ' Post: Sub-Engineer (BS-11) Rs, 1,725--116--3,465.
(2) Pay:- Minimum of BS-11.---Increments will be admissible under the normal rules.
(3) Period of Contract.---One (1) year from the date of assumption of charge.
(4) Conduct.---Your conduct and discipline while employed on contract shall be regulated under the orders of the Chairman, N.H.A.
(5) Whole-Time employment and Posting/Transfer.---Your whole-time would be at the disposal of the N.H.A. Unless it is distinctly provided by the appropriate authority without claim for additional remuneration. You shall devote your whole-time to your duties and at all times obey the order/instructions of your seniors. You shall be liable to serve anywhere within or outside Pakistan, in any post under the National Highway Authority.
(6) Termination of Contract.---The appointment on contract shall be liable to termination on 14 days notice or payment of 14 days in lieu thereof on either side without assigning any reason.
(7) Medical Facilities.---You and your dependent family members will be entitled for outdoor/indoor medical treatment as per N.H.A. Medical Rules.
(8) Travelling Allowance.---Travelling allowance on journeys in connection with official business, will be admissible corresponding to N.H.A., T.A. Rules.
(9) Leave.---You will earn 48 days leave @ 4 days per month subject to attendance more than 15 days in that month. The leave thus earned will not be carried forward and will lapse at the end of the year.
(10). House Ceiling/Hiring.---You will be entitled for ceiling of house hiring as per N.H.A. Rules.
(11) Conveyance/Telephone Entitlement.---As admissible to N.H.A. Employees.
(12) Pension.---The services rendered under the present contract shall not qualify for a pension or gratuity. Pension in respect of previous service, if being drawn, shall continue to be drawn in addition to this pay.
(2) If you accept the above terms and conditions of appointment, please convey your acceptance by Registered Post to the undersigned within 15 days of the date of this letter and report for duty to the office of G.M. (Sindh) N.H.A., Karachi, latest by 27-9-1996, for further posting.
(3) This offer of appointment will be treated as cancelled jf you do not convey acceptance thereof or do not report for duty within the time specified in para. 2 above."
2. Specifically the mode of termination is provided in the contract of service. The statutory rules of service are not applicable. Since the statutory rules of service do not govern the appointment of the petitioners which has been expressly excluded in the rules so framed and quoted (supra) the terms and conditions of the employment are not enforceable. Once the terms and conditions are declared not being enforceable as the case of the petitioner is not governed under the statutory rules of service, no writ would lie for enforcement of such terms and conditions as they are not statutory terms of service. Specifically, the learned counsel for the petitioners was asked whether National Highway Authority Act, 1991 provides for appointment and dispensation of service on contract basis, the learned counsel for the petitioners replied in the negative.
3. For grant of relief under writ jurisdiction it is not only necessary that the rights of the parties should be embedded in law but they should be governed by statutory rules of service such in the dictum of Humble Supreme Court of Pakistan in the case of Principal Cadet College, Kohat and another v. Muhammad Shoaib Qureshi (PLD 1984 SC 170). Since the statutory rules of service do not govern the case of the petitioners nor their rights are embedded in law, I am afraid the writ may not issue.
4. This brings me to the case-law relied upon by the parties. I will discuss the case of Mrs. Anisa Rehman v. P.I.A.C. And another (1994 SCMR 2232). Both the parties in this case have relied heavily on this case. I had the privilege and honor to assist their Lordships in this case at the Bar. In this case salient features were that the petitioner was reverted to a post on which she was not employed and that too without show-cause notice. The plea urged in this case was that if P.I.A. Act does not authorize the management to pass such order and in violation of the principle of natural justice and, therefore, even if the statutory rules may not be applicable yet the writ would issue as the petitioner was reverted to a post on which she was never employed as it was not provided in the law through which P.I.A. Was established to violate the principles of natural justice. In this background the law was laid by their Lordships of the Humble Supreme Court that the principle of natural justice are to be read as part and parcel of every statute unless expressly taken away.
However, in the said case their Lordships rules as follows: The effect of the application of the master and servant rule is that an employee of a Corporation in the absence of violation of law or any statutory rule cannot press into service Constitutional jurisdiction or civil jurisdiction for seeking relief of reinstatement in service, his remedy for wrongful dismissal is to claim damages."
5. The above dictum of their Lordships of the Hon'ble Supreme Court is an exception of the general rule laid in that case and Mr. Illahi Bux M. Kehar, Advocate, for the respondents Nos. 3 and 4 heavily relied upon it. It is well-settled that where the terms and conditions of service are regulated under the concept of master and servant the only remedy available to the servant for wrongful termination, is to claim damages. Such principle is firmly embedded in our system of administration of justice and emanates from the judgments of the Humble Supreme Court in the case of Messrs Malik & Haq and another v. Muhammad Shamsul Islam Chowdhury and 2 others (PLD 1961 SC 531). Since the terms and conditions of service in the instant case are governed by the principle and master and servant, therefore, the ratio of this case is fully applicable. In my humble view the only remedy available to the petitioners is claim for the damages in case if they feel that B their contract of service is being illegal terminated.
6. The learned counsel for the petitioners relied on the case of Khwaja Ghulam Sarwar v. Pakistan through the General Manager, P.W.R., Lahore (PLD 1962 SC 142). In that case the Constitutional guarantees under the Government of India Act, 1935 it was ruled the Act would hold field and not the terms and conditions embodied in the contract of service as such the appropriate writ was issued and such case is not available after the enactment of 1973 Constitution which has taken away Constitutional guarantees to the civil servants.
7. Reliance was placed by the learned counsel for the petitioners on the case of Riaz Ali Khan v.
Pakistan (PLD 1967 Lahore 491) is again in apt as the position in this case was same and reliance was placed upon the Government of India Act, 1935 which was holding the field.
8. Indeed, the principle of natural justice are to be read as part and parcel of every statute unless expressly taken away. Since the services of the petitioners are not governed under the law, therefore, the principles of natural justice which are the part of the law are not available to the petitioners. For these reasons the situations relied upon by the learned counsel for the petitioner in PLD 1992 SC 869, PLD 1994 SC 738 and PLD 1996 SC 632 are in apt.
9. For the above quoted reasons I have referred this matter to the Humble Division Bench functioning at Sukkur as mentioned in my short order quoted (supra).