RANA BHAGWANDAS, J. -- In the above two petitions leave to appeal is sought against the judgment dated 24.5.1999 rendered by the learned Judge in Chambers of the Lahore High Court, Rawalpindi Bench, dismissing two identical writ petitions tiled by the petitioners.
2. Petitioners were employed in the Pakistan Post Office Department of the Government of Pakistan.
By virtue of Pakistan Postal Services Corporation Ordinance, 1*992 (Ordinance XIII of 1992), hereinafter referred as Ordinance XIII of 1992, above-said department was converted into a Corporation and all employees except officers of the Postal Group were transferred to and became employees of the Pakistan Postal Services Corporation. Officers of Pakistan Postal Group who were also transferred to the Corporation were to retain their links with such Group as stipulated in Section -34 of Ordinance XIII of 1992. Sections 5 and 34 of Ordinancfe XIII of 1992 being relevant and of some importance for comprehencing the grievance of the petitioners may be reproduced which read as under:- "5. Transfer of departmental employees.- (1) Notwithstanding anything contained in any law, contract or agreement, or in the conditions of service, on the establishment of the Corporation, all employees of Pakistan Post Office Department shall, subject to sub-section (1) of Section 34, stand transferred to, and become employees of, the Corporation on the same Ternate and conditions to which they were entitled immediately before such transfer, provided that the Corporation shall be competent to lake disciplinary action against any such employee.
(2) The terms and conditions of service of any such person as is referred to in sub-section (1) shall not be varied by the Corporation to his disadvantage.
(3) Notwithstanding anything contained in any law for the the being in force, no person who stands transferred to the Corporation under sub-section (1) shall be entitled to any compensation because of such transfer."
"34 .Appointment of officers, advisors and servants.- (1) The Corporation may, from the to the, appoint in accordance with rules, such officers and servants as it may consider necessary for the performance of its functions: Provided that the Corporation may appoint advisors, consultants and experts on such terms and conditions as it may deem fit: Provided further that all officers of the Postal Group serving in the Pakistan Post Office Department or in any other organisation on the commencement of this Ordinance and all officers of the Postal Group recruited after such commencement shall stand transferred on permanent basis to, and serve in, the Corporation on such terms and conditions as the Federal Government may, in consultation with the Corporation, determine but shall not be entitled to any deputation allowance: Provided further that where the Federal Government so desires any officer of the Postal Group may be withdrawn from the service of the Corporation and posted elsewhere in accordance with the provisions of Civil Servants Act, 1973 (LXX1 of 1973): Provided also that the Federal Government may, in relation to any such officer, delegate such administrative, disciplinary and financial powers to the Corporation as the Federal Government may deem tit.
(2) Subject to the rules, the Corporation shall be competent to take disciplinary action against its officers and other employees.
(3) Service under the Corporation is declared to be service of Pakistan and every person holding a post under the Corporation, not being a person who is on deputation to the Corporation, shall be deemed to be a civil servant for the purposes of the Service Tribunals Act,, 1973 (LXX of 1973)."
3. Ordinance XIII of f992 remained on statute book through successive Ordinances while the last Ordinance (Ordinance XXVII of 1996) issued on 7.3.1996 stood repealed on 6th July, 1996 as it was not laid before the Parliament in terms of Article 89 (2) of the Constitution. By notification dated 4th July, 1996 Presidente of Pakistan ordered reversion of the aforesaid Corporation as it existed on 31st July, 1992 i.e. As an attached department of the Communication Division w.e.f. 5t July, 1996. Through another notification dated 26th August, 1996, the President of Pakistan ordered that Pakistan Postal Services Corporation shall stand dissolved w.e.f. 6th July, 1996 which, inter alia, stipulated that all employees of the Corporation other than those appointed on contract or daily wages, whether transferred to the Corporation from the Pakistan Post Office Department or recruited by the Corporation after its establishment shall stand reverted to the Pakistan Post Office Department in their original or equivalent posts as the Federal Government may be notification appoint. Another essential feature of this notification appeared to be that the employees transferred to the Pakistar Post Office Department shall be civil servants and be governed under the Civil Servants Act, 1973 and their service under the Corporation shall be deemed to be civil servants.
4. In the meanwhile, Federal Government Employees Housing . Foundation (hereinafter referred to as the Foundation) announced a scheme for allotment of residential plots&mongst various categories of persons who fulfilled the requisite eligibility criteria. It may be noticed that this Foundation was registered with the Registrar of Companies, Islamabad, under Section 32 of the Companies Ordinance, 1984 as a Company limited by guarantee on 26th March, 1990.
5. Eligibility criteria and quota of allotment prescribed by the Foundation in the Brochure issued by them for various categories of Government employees, Judges of superior Courts and the employees of autonomous/semi-autonomous bodies and public sector organisations under the administrative control of the Federal Government reads as under:- "(a) Judges of the Supreme Court, High Courts and Federal Shariat Court and Federal Government employees who have been declared as civil servants as defined under Civil Servants Act, 1973, (including civilian employees paid from defence estimates) and were in service on 1.4.1996. 77%
(b) Employees of autonomous/semi-autonomous organisations and public sector Corporations under the administrative control of the Federal Government (including employees serving in the Federal Government Employees Housing Foundation), who were in service on 1.4.1996. 10%"
6. Petitioners applied for allotment of plots under the scheme floated by the Foundation for phase- III but the Executive Committee of the Foundation in its meeting held on 11.6.1997 decided that since the petitioners were not civil servants on the cut of eligibility date i.e. 1.4.1996, they were not entitled to allotment out of the 77% quota fixed for civil servants but they would be considered for allotment of plots out of 10% quota reserved for employees of autonomous bodies.
7. Aggrieved by this decision, petitioners brought two identical petitions before the Lahore High Court on the averments that they continue to be civil servants for the purposes of Civil Servants Act, 1973; and notwithstanding dissolution of the Corporation w.e.f. 4.7.1996 they enjoyed the status of civil servants for all intents and purposes, therefore, the decision of the Foundation may be declared without lawful authority with a fur her declaration that they being civil servants are entitled to allotment of plots in the Housing Scheme and that the respondents are under a legal duty to consider their applications.
8. Both the petitions were seriously resisted by the respondents on the grounds that respondent No. 2 is a limited company by guarantee and not conducting any affairs of the Federal Government; that respondent No. 1 is the Chairman of the Executive Committee in his ex-officio capacity; that respondent No. 2 is not a person performing any function in connection with the affairs of the Federation or Province or a local authority and by virtue of executing a social welfare scheme on "no profit no loss basis" would not fall within the purview of a "person" amenable to writ jurisdiction of the High Court. Status of the petitioners as civil servants within the meaning of Civil Servants Act, 1973 on the cut of date was disputed and the impugned decision taken by the Executive Committee strongly defended. As observed, High Court dismissed the writ-petitions by single judgment. Question relating to status of the Foundation as a person in terms of Article 199 (l)(a) of the Constitution was not adverted to though such objection was noted in details in paragraph 9 of the impugned judgment.
9. At the hearing question as to the maintainability of the writ petition being of crucial importance and touching the root of the case was posed to the learned counsel for the petitioners and for this purpose short adjournment allowed but he was unable to convince us as to how a Constitution Petition can be maintained against the respondent Foundation who is a company limited by guarantee, not performing sovereign functions in connection with the affairs of the Federation, Province or a local authority. Learned counsel only submitted that since this argument was not pressed into service before the High Court it could not be raised before this Court.
10. We are least impressed by the submission of the counsel as the question of jurisdiction of the Court and maintainability of the petition being of essential importance involving a pure question of law in view of the admitted facts can be lawfully allowed to he raised before this Court, it is not disputed that the petitioners are essentially seeking the enforcement of their right as civil servants against the Foundation and not against the Federation of Pakistan which has been impleaded as respondent No. 1 only to confer jurisdiction on the High Court. Undoubtedly, respondent No. 2 by virtue of its registration under the Companies Ordinance, 1984 does not enjoy the status of a statutory corporation established and controlled by the Federation, nor is it performing any of sovereign functions of the State so as to be declared as a body corporate performing functions in connection with the affairs of the Federation. We are fortified in this view by the case reported as Salahuddin Vs. Frontier Sugar Mills & Distillery Ltd. (PLD 1975 SC 24) wherein it was held that private organizations, or persons as distinguished from Government or Semi-Government agencies and functionaries cannot be regarded as persons performing functions in connection with affairs of Federation or Province simply because their activities happen to be regulated by laws made by State. It was observed that persons, including body corporate, can be regarded as person performing functions in connection with affairs of Federation etc. If functions entrusted to them are indeed functions of State or if control of organization vests substantially in hands of Government.
Evidently respondent No. 2 has not been entrusted with performance of State functions.
11. Identical view was expressed by a Division Bench of the High Court of Sind, of which one of us (Rana Bhagwandas. J.) was a member. in Noor Jehan Shah Vs. Pakistan Defence Officers Housing Authority (19 MLD 2261), wherein following principle laid down in Salahuddin's case (supra) was reiterated "The primary test must always be whether the functions entrusted to the organization or person concerned are indeed functions of the State involving some exercise of sovereign or public powers; whether the control of the organization in a substantial manner is in the hands of Government, and whether the bulk of the funds is provided by the State."
12. Alternatively, it may be observed that assuming for the sake of argument that the petitioners be treated as civil servants as defined under the Civil Servants Act, on the crucial date, obviously they do not have a right guaranteed under the law or the Constitution in relation to their terms and conditions of service which may be enforced in the Constitutional jurisdiction of the High Court.
Surely, there is no right to allotment of a plot or Government accommodation in a scheme floated under any policy decision of the Government or a statutory corporation. Reference in this behalf may be made to the view expressed in Amin-ur-Rahman Khan Vs. Pakistan through Secretary, Ministry of Works (1989 SCM R 1948).
13. For the aforesaid facts and reasons, both the petitions are without any merit and are hereby dismissed. Leave to appeal is accordingly declined.