1. ' This revision application has been filed against the judgment of the 4th Additional District Judge, Karachi South, dated 16-5-1995, in Civil Appeal No,126 of 1994 whereby the judgment and decree in Suit No,1501 of 1986 passed by the IInd Senior Civil Judge, dismissing the suit was upheld and the appeal was dismissed as having no merit.
2. ' The brief facts of the case are that the respondent/plaintiff filed a suit wherein he prayed for the following relief: "It is, therefore, prayed that suit of the plaintiff be decreed against the defendants and declare that not allowing for duty w,e,f, 15-11-1985, is mala fide, without jurisdiction and illegal order of reversion, dated 14-9-1986 null and void and further, the defendants be restrained not to take any drastic action such as termination of the service etc., to grant injunction and to pay damages equal to salary for 9 months from 15-11-1985.
(ii) And allowances, other allowances, over time, leave encashment, shift allowance, all increments from 1984 to 1985 duty attendance allowance etc. Etc. Etc.
(iii) Any other relief, which the Court may deem fit and proper under the circumstances of the case.
(iv) Costs of the suit.
3. ' The brief facts which require to be considered for disposal of this revision application are that the respondent was appointed as Ward Boy by the applicant in 1976 in Anklesaria Nursing Home and in 1976 he was promoted as Male Nurse Aid, which duty he continued to perform to the entire satisfaction of the superiors. That on 14-9-1995 he was reverted as Ward Boy without mentioning any reason and he applied for 60 days leaves which was granted. After expiry of the leave he applied for resumption of his duties but was not allowed to resume the duty. In spite of this he used to attend the hospital daily but was kept on false promises. That on 7-8-1986 plaintiff served a legal notice which was received by the respondent on 10-81986 but they did not reply to the same. He submitted that he had no alternative but to file a suit in the Court of III Civil Judge, Karachi South, which was withdrawn with permission to file a fresh suit and the fresh suit was filed wherein the aforesaid reliefs were prayed for.
4. ' The defendants in their written statement submitted that the respondent was not a qualified Male Nurse and after taking over of the charge by the applicant No,2 as Chief Administrator and Medical Superintendent of Anklesaria Nursing Home, it was decided that all persons who did not qualify to hold post on which they were promoted without obtaining the requisite qualification would be reverted. It was further submitted that respondent was granted earned leave from 14-9-1985 to 15- 11-1985 and after expiry of the period of leave he never applied for resuming his duty as he did not want to work as a Ward Boy which was evident from the fact that immediately on reversion as Ward Boy he had applied for earned leave for two months. The applicant denied that any cause of action had occurred in favour of the Respondent/Plaintiff for filing the suit and further submitted that the suit was also not maintainable.
5. ' On the pleading of the parties the trial Court framed the following issues:-- "(1) Whether plaintiff was qualified Male Nurse?
(2) Whether plaintiff was initially appointed as a Ward Boy or a Male Nurse?
(3) Whether order of defendant No,2 reverting as Ward Boy is illegal?
(4) Whether plaintiff applied for resumption of duty on 15-11-1985 to defendant No,2?
(5) Whether the plaintiff has rightly been removed from service?
(6) Whether the suit is maintainable?
(7) What should the decree be?"
6. ' Respondent examined himself in respect of his pleading and produced several documents in evidence as Exhs.Nos.2 to 7/E on his behalf. None on behalf of the Applicants/defendant either appeared in the witness box to testify in respect of their case or produced any document and their side was closed on 16-10-1993.
7. ' On the basis of the evidence available on record the Civil Judge decided issues No,1 and 5 in the negative, while issues Nos.2, 3 4 and 6 were decided in the affirmative and the suit was decreed as prayed. Feeling aggrieved and dissatisfied with the judgment and decree of the trial Court the Applicants filed an appeal in the District Court Karachi South, from where the appeal was transferred to the IVth Additional District Judge, Karachi South, who vide his judgment and decree, dated 16-5-1995 dismissed the appeal and upheld the judgement and decree of the trial Court.
8. The applicant again feeling aggrieved and dissatisfied with the order of the 1st Appellate Court has challenged the same by way of this revision application.
9. ' I have heard the arguments of Messrs M.G. Dastagir and Raja M. Talib Ashraf Janjua, the learned counsel for the applicant and the respondent, and have also perused the material on record and the relevant provision of law.
10. ' The respondent/plaintiff had filed a suit for declaration to the effect that he be declared to be in service of the applicant who were not allowing him to resume his duty w,e,f, 15-11-1985 in pursuance of their mala fide intention, illegally and without lawful authority on the basis of a void reversion order, dated 14-9-1985 and also praying for restraining them not to take drastic action such as termination of the service.
11. ' A suit for declaration is governed by section 42 of the Specific Relief Act and it will be appropriate to reproduce section 42 as under:- "42. Discretion of Court as to declaration of status or right.--- Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief.
12. Bar to such declaration.--- A trustee of property is a person interested to deny a title adverse to the title of someone who is not in existence, and for whom, if in existence, he would be a trustee."
13. Under section 42 it is not every form of declaration which could" be sought by a person but only such declaration which relates to the entitlement of the plaintiff to any legal character or to any right as to property can be sought and given. From perusal of the plaint it appears that the (sic) to property and a declaration which was not within the scope of section 42 of the Specific Relief Act would not be provided by way of relief to the aggrieved party. It is also an admitted principle that there should be violation or threatened violation of the plaintiff's legal character/status or any right as to the property which should be specifically and categorically averred in the plaint. Another requirement for the maintainability of a suit under section 42 of the Specific Relief Act is that the loss or the damages caused or likely to be caused on account of the violation or the threatened violation of the legal character/status or right as to the property could not be measured in terms of money and damages would be appropriate remedy of the said violation. It was, thus, incumbent for respondent No,1/plaintiff to show the existence of his legal character/status or to any right as to the property which has either been violated or was threatened to be violated by the applicant and in respect whereof it could seek the declaration from the competent Court restraining the applicants/defendants from terminating his service or reverting him to a lower post. It is an established principle of law that a declaration under section 42 of the Specific Relief Act is not available to contractual employments inasmuch as damages would be an adequate remedy for illegal or unlawful termination of service by the employer. This is so because an employee of a private organization or a contract employee does not possess a legal character/status as envisaged by section 42 of the Specific Relief Act for enforcement of which the employee could invoke the jurisdiction of a competent Court under section 42 of the Specific Relief Act. It is an also established principle that the illegality or the flaw in dismissing/terminating the service of a private employee is of no consequence and would not provide a dismissed employee the right to seek reinstatement in service. If any authority is required for the above proposition the same are available in the cases of (i) R.T.H. Janjua v. National Shipping Corporation, reported in PLD 1974 SC 146; and (ii) Anwar Hussain v. Agricultural Development Bank of Pakistan and others, reported in PLD 1984 SC 194. In view of the above the respondent has failed to establish a legal character/status and to establish his entitlement to seek a prayer of declaration under section 42 of the Specific Relief Act.
14. Upon the above discussion I am satisfied beyond the slightest doubt that both the Courts below did not apply their minds properly and did not take into consideration the provision of section 42 of the Specific Relief Act, which clearly barred the suit of the plaintiff and disentitled him from seeking the relief of declaration in respect of alleged illegal and unlawful termination/reversion. Both the Courts below erred in coming to their respective conclusions and their judgments cannot be sustained. Accordingly, this revision is allowed and the judgments of the lower Courts are set aside.
15. The suit filed by the respondent stands dismissed with cost to the Applicants.