' MUHAMMAD AZAM KHAN, J.---By this common judgment we intend to dispose of the following Constitutional petitions filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter to be referred as the Constitution), as the question in all the petitions is similar and the relief claimed by the aggrieved persons of all the petitions (hereinafter to be referred as the petitioners), against the contesting respondents is the same:--
(i) W.P. No,868 of 1995, Bukhtiar and 10 others v. N.-W.F.P. P.U.D.B. Peshawar and others.
(ii) W.P. No,869 of 1995, Sanaullah and 4 others v. N.-W.F.P. P.U.D.B. Peshawar and others.
(iii) W.P. No, 880 of 1995, Mian Shaukat Shafi and 25 others v. N.-W.F.P., P.U.D.B. Peshawar and others.
(iv) W.P. No,973 of 1998, Muhammad Tariq Khan v. N.-W.F.P. P.U.D.B., Peshawar and others.
(v) W.P. No,978 of 1998, Syed Tahir Abbas v. N.-W.F.P. P.U.D.B., Peshawar and others.
(vi) W.P. No,1067 of 1998, Abdul Ghafoor v. N.-W.F.P. P.U.D.B. Peshawar and others.
(vii) W.P. No,1327 of 1998, Shafqat Munir Gandapur v. N.-W.F.P. P.U.D.B., Peshawar and others.
(viii)W.P. No,1416 of 1998, Muhammad Akhtar Khan V. N.-W.F.P. P.U.D.B., Peshawar and others.
' Out of the aforesaid petitions W.P. No,1067 of 1998, W.P. No,1327 of 1998 and W.P. No,1416 of 1998, are dismissed as infructuous on account of their being filed in duplication, these are not pressed by the petitioners. During the course of proceedings the respondents have furnished fresh statements in respect of the existing position of the petitioners in service in all petitions which are Exhs.C.1 and C.2 respectively.
2. Out of the contesting petitioners, Arif Rauf, Aamir Khan, Kiramatullah,Maqbool Ahmad, Mohsin Gul, Zafar Rehmat, Tariq Mahmud, Muhammad Imran and Inamullah were absorbed in the Community Infrustructure Project with effect from 1-6-1998 forenoon vide Exh.C.2. Petitioner Adnan Pervez proceeded abroad, Muhammad Sajjad resigned from service, therefore, their petitions also are infructuous and are dismissed as such. Muhammad Tariq has joined C and W Department, therefore, his petition has become infructuous. Muhammad Nadeem Durrani is reported dead, therefore, proceedings against him have abated.
3. We take up W.P. No,868 of 1995 (Bakhtiar Ali and 10 others against the Government of N.-W.F.P., Provincial Urban Development Board, Peshawar and others). The petitioners have averred that the Provincial Urban Development Board of N.-W.F.P. Was constituted by Ordinance IV of 1978 namely, "N.-W.F.P. Urban Planning Ordinance, 1978" whereafter Service Rules under the aforesaid Ordinance were also promulgated vide. Notification, dated 29-3-1979 copy of which is Annexure 'A'. According to the petition Rules 14, 15, 16 and 18 were violated by the respondents.
4. The facts of the case are that respondent No,1 had advertised vacancies of Assistant Directors in the discipline of Civil, Mechanical, Technical, Planning and Architect and invited applications on or before 5-2-1990, the advertisement cutting Annexure 'B' was published in English and Urdu Newspapers. That in response to the aforesaid offer the petitioners applied for employment. They were interviewed by the Selection Committee and were selected for appointment as Assistant Directors on 9-7-1990 and 10-7-1990 respectively and that in accordance with the Service Rules the petitioners were required to complete probation period for two years. The appointment letter of petitioner No,1 is Annexure 'D' while that of the remaining petitioners is not available on the file.
According to this offer a temporary post of Assistant Director (Architect) in the Provincial Urban Development Board was offered to him on purely temporary basis and "chargeable to the project" likely to continue for 5 years. This appointment could be terminated at one month's notice or on payment of one month's salary in lieu of notice. It was further mentioned in the offer that the petitioner shall remain on probation for two years during which his services were required to be terminated without any notice, and that his services shall be governed by P.U.D.B. Rules in respect of service matters, T.A./D.A. And medical expenses. This offer was valid up to 31-7-1990 in accordance with the terms and conditions of the offer of appointment, dated 10-7-1990 and upon the acceptance of the terms mentioned therein the petitioner was appointed as Assistant Director Architect (Project Management Unit Second Urban Development Project) vide letter, dated 26-7- 1990. But on 31-1-1991 vide office order, dated 3-1-1991 of Managing Director, P.U.D.B. The services of 20 Assistant Directors in different discipline of the Board were terminated by a single order including the petitioner. The termination order is Annexure 'E'.
5. From amongst the affectees of the aforesaid order M/s. Ashraf Qadir Khattak at Serial No,17 and Himayatullah at Serial No,7 invoked writ jurisdiction of this Court in W.P. No,1236 of 1991 and W.P.
No,1726 of 1991 wherein it was held by this Court decided on 30-9-1991 copy Annexure 'H' that in view of the assurance of the Chairman of the P.U.D.B and the unanimous resolution of the Provincial Assembly, a writ of certiorari, was issued with a direction to the respondents to refrain from recruitment of new Assistant Directors unless the petitioner was absorbed against one of the vacancies falling in the discipline of mechanical engineering. On the same analogy this Court in W.P. No,1726 of 1991, decided on 26-5-1992 passed a similar order in favour of the petitioner namely, Himayatullah Jan. Copy of the petition is Annexure 'F'. Thereafter, one Muhammad Arhsad an apprentice engineer appointed in P.U.D.B on 23-7-1990 whose services were terminated alongwith the petitioner brought W.P. No,1186 of 1991, his petition was dismissed by this Court on the ground that he was a temporary employee and that his services could be terminated on giving him one month's notice. Being aggrieved of the orders of this Court he went in C.P. 148-P to the Supreme Court of Pakistan copy of which is Annexure F.2. The Honourable Supreme Court vide order, dated 31-5-1992 made observations: "that the petitioner shall be treated at par with Ashraf Qadir Khattak as his case was identical with that of Ashraf Qadir Khatack".
6. On the basis of the verdict of the Courts Ashraf Qadir Khattak and Muhammad Arshad were re- appointed by the respondents on the availability of the posts under the respondents and were regularised. The services of the present petitioners and others whose writ petitions are under discussion in this judgment were terminated vide Annexure 'E' and their cases were discussed in the Provincial Assembly of N.-W.F.P. Whereafter Resolutions 226, 227 and 228 of 1991 were passed by majority, with one vote against by the Assembly. This Resolution is Annexure 'F' in lieu whereof the affectees of Annexure 'E' including the petitioners were offered fresh appointment on different dates in the years 1991-92 respectively on temporary basis. It is worth mentioning that it was after the recommendations of the Resolution of the Provincial Assembly that the petitioner and others were given new offers of appointment vide letter, dated 2-11-1992 in the P.M.U., SUDP Provincial Urban Development Board. This officer was also in connection with purely temporary employment on the project posts with a direction that if the offer was accepted by the petitioner he will have to give "undertaking in writing" to the effect that he has accepted the terms and conditions of the said service. Copy of this offer is Annexure 'J'., on the file. The petitioner, however, finally accepted the offer on 3-9-1992. The acceptance of offers of the remaining contesting petitioners and their re- appointments are not available on the file. This petition is, therefore, not properly documented by the remaining 10 petitioners and it appears that the petition is challenged only by Bakhtiar petitioner alone.
7. The record suggests that upon the expiry of the posts in the P.M.U. (SUDP) the competent Authority ordered the termination of service of about 30 employees vide order, dated 30-5-1998 which has been impugned in this petition. The names of the petitioners figure in this termination order. The grounds alleged by the petitioners in the present petition are as follows:-- "That the petitioner and others had applied for the posts of Assistant Director when the said posts were advertised by the PUDB. They were interviewed and selected accordingly in accordance with the prescribed manner and were the employees of P.U.D.B. And were posted only to P.M.U.
Temporarily. It was further averred that they have successfully completed two years' probation period under the P.U.D.B. They had attained the status of confirmed employees of respondent No, 1."
' The petitioners have also claimed discrimination as according to them 7 persons contractual employees were regularised in the P.U.D.B. To their disadvantage. They also sought that their case is identical and similar to the case of Ashraf Qadir Khattak, Himayatullah and Muhammad Arshad.
In the present petition the petitioners have claimed several reliefs despite their termination of service. Firstly, they were regular employees of P.U.D.B. As they have completed more than 7 years' continuous service and that their names appear in the joint seniority list of P.U.D.B. And P.M.U. And that on 17-12-1994 upon the objection of one Sahibzada Tariq, the Additional Secretary, P.U.D.B. Who was not competent under the law bifurcated the seniority list of the employees of P.U.D.B. And that of the employees of P.M.U. The petitioners further claimed that their names were omitted from the seniority list Annexure 'L' o1 P.U.D.B. And they were treated as P.M.U. Employees. The petitioners had agitated against the aforesaid illegal order but no positive reply has been received by them. They further filed an appeal on 30-1-1995 before respondent No,1 copy of which is Annexure '0' and a reminder thereof Annexure '0-1', dated 3-8-1995, but no decision was made. It was further pressed by the petitioners that during the pendency of this writ petition an interim order was passed by this Court on 27-5-1997 in which the Court passed the order in C.M. No,1265 of 1995 to the effect that no order detrimental to the interest of the petitioners shall be passed pending the decision of this writ petition and it shall hold the field till the disposal of the writ petition. Despite this order in field the respondents terminated the services of the petitioners on 30-5-1998 in violation of the High Court order which was illegal, improper and violative of law. The petitioners, therefore, prayed that they may be declared as confirmed employees of the P.U.D.B. And they may also be declared as regular employees by putting them on general seniority list of Assistant Directors of P.U.D.B. Confronted with this situation the petitioners were allowed to amend their writ petition which they did.
8. We have heard Qazi Muhammad Anwar, learned counsel for the petitioners, Mr. Syed Rehman, learned counsel for the respondents assisted by Malik Manzoor Hussain, A.A.-G. Who adopted his arguments, and have gone through the record of the case.
9. Learned counsel for the respondents vehemently contested the writ petition and inter alia submitted that the petitioners were offered employment clarifying terms and conditions of service in their appointment letters that they were required to serve in the Provincial Urban Development Board specifically for the Project Management Unit on purely temporary basis. It was further argued that the advertisement for the posts in the newspaper was also for the project only for a limited period. According to the respondents the P.U.D.B. And the P.M.U. Are two separate entities.
The P.U.D.B: is an organization run by self-finance basis, whereas the P.M.U. Is purely temporary in nature and is financed by the Asian Development Bank on the basis of loan. As far as the case of Ashraf Qadir Khattak and -Himayatullah is concerned, their services were terminated on account of the paucity of funds, and upon the order of the Supreme Court, they were reappointed afresh upon the availability of the vacant seats. As far as the applicability of Service Rules is concerned, it was contended by the learned counsel for the respondents that in the absence of the Project Service Rules the department had to adopt the P.U.D.B. Rules temporarily only for the purposes of TA/DA, therefore, the petitioners cannot claim to be a regular employee of P.U.D.B, as their services were mainly acquired for Project Management Unit, and their services were terminated with effect from 31-5-1998 as the life of the Project had .Expired. It was also contended that since most of the projects of P.M.U. Funded by the foreign donors have seized to function due to expiry of their life, therefore, the respondents were forced to reduce the strength of the employees who were appointed on purely temporary basis for those projects and the case of the petitioners being similar would, therefore, not entitle them. To claim their services on permanent basis under the P.U.D.B.
10. We have examined the record thoroughly specially the order of appointment of the petitioners and the terms and conditions laid down therein alongwith the letter of termination of service which has been impugned in the present petition. The comparative study of both the aforesaid documents would suggest that the petitioners were no doubt inducted into service by the P.U.D.B.
But they were specifically recruited to serve for P.M.U. As we have already observed earlier in this judgment that P.U.D.B. Is the parent department which is permanent and regular in nature, while P.M.U. Is a subservient organization has separate entity only for a specified period. The case of the present petitioners is distinguishable from that of Ashraf Qadir Khattak, Himaytullah and Muhammad Arshad as the aforesaid persons had to face the consequences of the termination of their services alongwith the present petitioners on 3-1-1991 but the present petitioners opted to accept the new terms and conditions of services offered to them by the respondents. Such- was not the case of Ashraf Qadir Khattak, Himayatullah and Muhammad Arshad. The normal norms of law in respect of the change of terms and conditions of service is that an employer cannot unilaterally change the terms and conditions of service of its employees.
11. In the instant case the petitioners were employed for the project post which was for. a specified period and that they had voluntarily accepted the terms and conditions as envisaged in their appointment letter. Specific time was given to them to give an undertaking in writing to the effect that the terms and conditions of appointment if approved shall be conveyed to respondent No,1 before a specified date, and according to the record they accordingly accepted the same. In W.P.
No,868 of 1995 the petitions of some of the petitioners have been dismissed as having become infructuous, therefore, here remains in field the case of the petitioners namely, Bakhtiar Ali and Arif Shamim which we shall discuss later on alongwith W.P. No,880 of 1995
12. We now revert to W.P. No,869 of 1995 Sanaullah v. Provincial Urban Development Board. In this petition four petitioners namely, Sanaullah, Kiramatullah, Muhammad Haseeb, Altaf Hussain and Muhammad Khalid are aggrieved of the same impugned order, dated 30-5-1998. Out of these petitioners Kiramatullah's name appears in Exh.C.1 as having been absorbed in C.I.P. Under the administrative control of Local Government. A perusal of the appointment order of the remaining 4 petitioners would show that they were appointed by the respondents in the Second Urban Development Project, P.M.U. On purely temporary basis and for a period so on as the project continued. These appointments were made in the month of February, 1993 and there was a condition in their appointment -letter that their services shall automatically terminate if the project was not extended and was reduced in size, and that they shall have no right to be absorbed in the Provincial Urban Development Board. These petitioners have accepted the conditions by giving an undertaking separately to the respondents, therefore, no relief can be granted to them and their writ petition is accordingly disposed of: ' Reverting back to WP. No,978 of 1998, the petitioner namely, Syed Tahir Abbas was employed purely on contract basis till the life of the project. The learned counsel for the petitioner (Mr. Jelianzaib Rahim, Bar-atLaw) did not press his petition provided the petitioner was given pay and other allowances up to 31-5-1998 i,e, the expiry/downsizing of the project. We are, therefore, obliged to give him relief only to the extent prayed for by him and the respondents shall pay his outstanding dues up to 31-5-1998. With these observations this writ petition is disposed of.
' W.P. No,973 of 1998, Muhammad Tariq was appointed by P.M.U. (SUDP) specifically for project on temporary basis vide order, dated 16-2-1995. He has also accepted the terms and conditions of his appointment and due to this arrangement he cannot be termed as a regular employee of the P.U.D.B. This writ petition is also disposed of accordingly.
13. Reverting to W.P. No,880 of 1995 preferred by Mian Shaukat Shafi and 24 others. This petition has its own peculiar facts. Out of these petitioners the services of Muhammad Shoaib Afridi No,4, Zafar Rehmat No,14, Muhammad Tariq No,15 and Muhammad Akhtar Khan No,18, have been terminated vide the impugned order, dated 30-5-1998. In the present Writ Petition No,880 of 1995, Mian Shaukat Shafi and 24 others as amended would show that out of the petitioners mentioned therein some have been absorbed while we are left to decide the fate of petitioners, named below:-Mian Shaukat Shafi, Qasiar Hayat, Shakeel Abbas, Rehmatullah Aamir Muhammad, Fida Muhammad, Fazal Azim, Shujaat Ali, Muhammad Imran, Khan Gul, Muhammad Fayyaz, Jawaid Khan, Muhammad Riyaz, Ihsanullah, Lal Badshah, Jan Alam and Muhammad Khalid find no mention in the impugned order, dated 30-5-1998, therefore, the relief claimed by them in this writ petition is only to the extent that the aforesaid order shall be declared illegal, improper, unjust having been issued in violation of orders of the High Court and the same, be set aside and the petitioners be treated as regular confirmed employees of the P.U.D.B. And they be allowed seniority as regular employees of the aforesaid Board and their names be put on the joint seniority list of the Assistant Director of the P.U.D.B. With such other relief deemed proper. Alongwith these petitioners the case of Bakhtiar Ali and Arif Shamim is also at par.
14. All the aggrieved petitioners in all the aforesaid petitions have challenged their initial appointment made by the respondents against rules, 14, 15, 16 and 18 of the P.U.D.B. Service Rules alleging that they were employed by the P.U.D.B. In regular service and were posted to the P.M.U.
And that after putting two years service they had become regular employees of the P.U.D.B., secondly, that respondents after successful completion of probation period of the petitioners had circulated a tentative list of the Assistant Directors BPS.17 wherein names of the petitioners were included and they were assigned their correct seniority in Annexure 'J'. Upon an application of one Sahibzada Muhammad Tariq, dated 5-1-1994 addressed to the Additional Secretary, Physical Planning and Housing disturbed the interest of the petitioners whereafter two separate lists of seniority were notified by the respondents one in respect of the Assistant Director of P.U.D.B. In which the names of the petitioners were omitted and the second list consisting of the number and seniority of the employees of the P.M.U. In which the names of the petitioners were included. This list is Annexure 1'. A representation against the aforesaid action was made by the petitioners to the Managing Director of the P.U.D.B. Who marked the same to the Director Finance who supported the claim of the petitioners. According to the contentions of the petitioners an appeal was also preferred against their aggrievement Anneuxre '0' followed by a reminder, dated 3-8-1995 but no remedy was made available to them hence the present petition. We were informed at the bar during the course of arguments that this seniority list was duly recommended by a Committee constituted for the purpose and was duly approved by the Managing Director of the P.U.D.B. Who was the competent Authority. This objection is, therefore, overruled.
15. After giving a careful thought to the averments of petition of the aforesaid petitioners we have come to a conclusion that in the instant petition numerous reliefs claimed by the petitioners are of factual aspect which cannot be decided in this Constitutional petition. In W.P. No,868 of 1995 and C.M. No,1834 of 1996 we have yet to dilate upon the defiance of the order, dated 27-5-1997 of this Court by the respondents. During the pendency of this petition the aforesaid order was passed despite clear direction that no order detrimental to the interest of the petitioners "shall be passed pending the decision of the writ petition, shall hold the field till the disposal of the writ petition".
Despite this bar the respondents passed the impugned order, dated 30-5-1998, whereby the services of the petitioners were terminated. This action of the respondents by itself is without lawful authority, without jurisdiction and illegal, therefore, the impugned order is set aside and the petition of the petitioners is partially accepted till date alongwith their salaries and other fringe benefits, thereafter the respondents shall be at liberty to deal with the matter in accordance with the terms and conditions of the service of petitioners and the observations of this Court in the concluding part of the judgment. This is not the end of the case and it is yet to be adjudicated upon in the subsequent portion of this judgment.
On an examination of the record and history of the case of the petitioners discussed above in details the temporary appointment of the petitioners had no effect to convert the nature of such appointment into a regular appointment. The petitioners, therefore, were not entitled to any such protection against termination of their services as they were claiming. We find that the express words of the order making their appointments show that these were only for a fixed period. With the expiry of the period, their right to continue in service came to an end, as these appointments were not for indefinite duration or conditional by the regular appointment of some other incumbent. In the circumstances, the protection sought for by the petitioners would not be available to them and the efflux of time fixed in the appointment letters itself would bring an end to such appointments. In view of the express words of the appointment orders the relief claimed by the petitioners of long term uninterrupted service in P.M.U. (SUDP) would be of no avail to them. However, while adopting the ratio decidendi of decided cases namely W.P. No,1236 of 1991, decided on 17-9-1991 Annexure 'F', W.P. No,1726 of 1991, decided on 26-5-1992 Annexure 'F-1' and the decision made by the Honourable Supreme Court in C.P. No,148-P of 1991 Annexure 'F-2' on the file, on 31-5-1992 we are inclined to issue a writ of certiorari, directing the respondents to refrain from fresh recruitment without considering the petitioners for appointmeneon available vacancies on merits and in P.M.U. To deal their case on the basis of last come first go.
' All the writ petitions are disposed of in the above terms with no order as to costs alongwith Civil Miscellaneous Applications.