' DOST MUHAMMAD KHAN, J---This single judgment shall also decide W.P. No,362 of 2000 titled Syed Muzaffar Shah v. Government of N.-W.F.P. And others'.W.P. No, 12 of 2001 titled Zulfar Shah v. Chief Secretary Government of N.-W.F.P. Peshawar and W.P. No, ,487 of 2001 titled Muhammad Ayaz v.
Government of N.W.F.P. Through Chief Secretary because common questions of law and facts are involved in all these petitions.
2. Briefly stated facts of the present controversy are that while exercising the powers under section 3 of the Medical Degrees Act, 1916 (Act No,VII of 1916) the Government of N.-W.F.P. (Health Department) issued Notification No,S.O.III(T) 4-16/77. Dated September, 1977 thereby constituted a Medical Faculty known as "N.W.F.P. Medical Faculty" and authorized it to exercise powers and perform functions including powers/authority of issuing Licences and Certificates to Medical Technicians, Health Assistants. Sanitary Inspectors, Medical and Health Auxiliaries, Dispensers, Dressers, Para, Medical Workers in Leprosy. Rediographers or Laboratory Assistants or any category that may be approved by the Government and to perform all or any of those finctions mentioned in sub-Para 11 of Para 11 of the ibid Notification which includes:--
(i) to prescribe courses of study and curriculum;
(ii) to recognize medical institutions for imparting instruction and providing training;
(iii) to prescribe standards, qualifications, eligibility and procedure for admission of persons in such institutions;
(iv) to prescribe standard, eligibility and procedure for holding examinations;
(v) to provide for conducting and making arrangements of examinations and for preparation, approval, announcement and publication of results of some examinations;
(vi) to receive grants, gifts and donation and other contributions whether generally or for specific purpose;
(vii) to fix, demand and receive fee and other charges from the students and candidates; (viii)to institute awards, scholarships and prizes;
(ix) to hold control and administer the property and funds of the Faculty;
(x) to prepare, process and pass the annual budget;
(xi) to make provision for buildings, premises, furniture, apparatus, books and other means required to carry out the purposes of the Faculty;
(xii) to sanction such expenditure as may be necessary to carry out the purposes of the Faculty; (xiii)to confer, grant or issue, Licences, Diplomas and Certificates on or to the persons who have qualified in the prescribed courses and examinations as to enable them to perform duties and functions as Medical Technicians, Health Assistants, Sanitary Inspectors, Dispensers, Medical and Health Authorites, Para-Medical Workers in Leprosy, Radiographers, Laboratory Assistants, or any other category and to prescribe forms of other category of persons who may be approved by Government and to prescribe forms of Licences and Certificates to be issued or granted to such persons; (xiv)to appoint sub-committee from amongst its members for any specific purposes ; and
(xv) to do all other points necessary for carrying out the purposes of the Faculty. The exercising of these powers by the Faculty has been subjected to the general control of the Court.
3. The petitioners in all these petitions were appointed as Junior Clerks and Senior Clerks respectively on their initial entry into service in October, 1980, on 18-3-1986, 22-12-1982 and 8-2- 1992. After serving the Faculty for different lengths of period of service. Some of them were given promotion or were transferred and posted in one or the other branch of the Faculty.
4. When the Provincial Government received information and complaints about large scale glaring irregularities because of issuance of bogus Certificates and Licences to those who never attended the Faculty nor appeared in the examination, preliminary inquiry was conducted into the affairs of the entire Faculty and the charges/allegations were found true, therefore, all the petitioners were charge-sheeted one after another and regular inquiry was held at more than one occasion by different authorities authorized officers of the Government of N.-W.F.P. And all the allegations were found correct. The inquiry reports submitted to the Government were based almost on documentary besides other evidence. Therefore. Show-Cause Notices were issued to them in the prescribed manner and after providing proper opportunity of personal hearing petitioner Imtiaz Ahmed in this petition and Syed Muzaffar Shah, petitioner in W.P. No,362 of 2000 were removed from service vide impugned order dated 9-7-1999 with immediate effect. Zulfar Shah petitioner in W.P. No,12 of 2001 and Muhammad Ayaz petitioner in W.P. No,487 of 2001 were removed from service vide impugned order dated 9-9-2000 by Secretary Health, N.-W.F.P. Peshawar, the competent authority, who is respondent No,2 in all these petitions.
5. Feeling aggrieved all the petitioners have impugned the said orders of their removal from service in these petitions. Comments from respondents were called for which were submitted. All the petitions were admitted to regular hearing on the plea of the petitioners that in all the three inquiries conducted, they were never associated with nor were given fair opportunity of hearing during the same.
6. When these petitions came up for hearing on 1-4-2003, the learned Additional Advocate-General raised preliminary objection to the effect that the employer of the petitioners was not a Statutory body and that neither Provincial Government has extended nor applied the Government Servant Service Rules, 1973 to the employees of the Faculty through any proper order or any Notification thus, relation between the petitioners and department was that of master and servant, therefore, in such circumstances they cannot maintain writ petitions for reinstatement into service and Constitutional jurisdiction of this Court could not be invoked.
7. Learned counsel for the petitioners in all these petitions accepted notice but the cases were got adjourned for one reason or the other at many occasions.
8. While elaborating his point of view on the preliminary objection, the learned Additional Advocate-General referred to section 3 of the ibid Act. To understand it clearly, the same is reproduced below:-- S.3. The Right of conferring granting or issuing in Pakistan degrees, diplomas, licences, certificates or other documents stating or implying that the holder, grantee or recipient thereof is qualified to practise Western medical ,science, shall be exercisable only by the authorities specified in the Schedule, and by such other authority as the Provincial Government may, by notification in the Official Gazette and subject to conditions and restrictions as it thinks fit to impose, authorize in this behalf.
' Only two authorities are specifically mentioned in the schedule annexed to the Act which are as follows:--
(1) Every University established by an Act of Central Legislature.
(2) The State Medical Faculty in East Pakistan.
' Previously two other authorities were also mentioned at S.Nos.3 and 4 but were omitted from the schedule through amendment Ordinance, 1949.
9. The Government of N.-W.F.P. While exercising the powers purportedly under section 3 of the ibid Act through the Notification mentioned above established Medical Faculty N.-W.F.P. Peshawar and authorized it to carry out the purposes of the provision of law contained in section 3 of the Act. We have some reservations in this regard because the plain language of the said provision suggest that Provincial Government may delegate its powers and authorize any authority already in existence and the same does not speak about the establishment of altogether new institution/Faculty, however, we would not prefer to adopt such interpretation for avoiding grave mischief which is likely to be created in this regard.
' The preliminary objection to the effect that relationship of the petitioners with the Medical Faculty is that of servant and master and their services were not regulated/governed by statutory rules, having a decisive and incisive role in deciding these petitions thus learned counsel for the parties were asked to address arguments on this vital point.
10. Mr. Imtiaz Ali, the learned Additional Advocate-General in support of the preliminary objection placed reliance on the principle of law enunciated by the apex Court in the case of Miss Zeba Mumtaz v. First Women Bank Ltd. And others (PLD 1999 SC 1106) and while elaborating his point of view argued that neither any proper service statute/rules were framed by a competent authority or with its sanction, regulating and governing the service of the petitioners nor at any occasion the Provincial Government has extended or approved to be extended the Civil Servant Service Rules, 1973 to goven their services and if these have been misapplied by any authority at any occasion to the cases of the petitioners, the same would not confer any right on the petitioners to seek protection under the same.
' In the case of Miss Zeba Mumtaz supra her appeal was dismissed by the Service Tribunal because she was having no protection. Of service under any statutory law/rules whereagainst she filed appeal before the apex Court.
' In Para 3 of the judgment the Hon'ble Supreme Court held the following view:-- "The Staff Service Rules of the respondent-Bank not being statutory rules and there being no other statutory instrument shown to us according to which respondent-Bank could not terminate the services in accordance with its own staff service rules and order of termination having been passed in accordance with the applicable rules of the Staff Service Rules of the respondent-Bank the Federal Service Tribunal came to the right conclusion in dismissing the appeal of the petitioner.
It may be observed here- that this Court has consistently held that in the absence of any statutory rules, relationship between the employer and an employee of a Corporation, where protection cannot be sought under the Labour Laws or any statutory instrument, is that of master and servant."
' In this regard the Hon'ble Supreme Court placed reliance on the principle of law enunciated in the case of Anisa Rehman v. P.I.A.C. (1994 SCM R 2232) wherein complete survey of the case-law on the subject enunciated by the Hon'ble Supreme Court from time to time was made and extensively referred to.
' In the conclusion the apex Court held in the referred case that respondent-Bank may have had certain grievances against the petitioner but then a decision was taken to terminate the services of the petitioner under the said rule 11 of the staff service rules of the bank and three months pay was also received by the petitioner from the respondent-Bank in lieu of three months notice under the said- rules. The findings of the Tribunal that in the circumstances, the order terminating the services of the petitioner was a termination simplicitor does not call for interference and finding no merits in the petition, the same was dismissed and leave was refused.
11. To the contrary, Mr. Khushdid Khan Mohmand learned counsel for the petitioner in this petition who was assisted by the learned counsel for the petitioners in the connected petitions vehemently argued that the Medical Faculty was established under section 3 of the ibid Act and being an autonomous body, therefore, can well be treated as a Corporation and the petitioners as its employees. He next argued that under Para 16(1)(2) of the Notification ibid the Faculty was given powers to appoint officers/servants as it consider necessary for efficient performance of its functions and on such terms and conditions as may be prescribed through by laws. He then referred to the minutes of the meeting dated 18-9-1980 wherein the governing body of Faculty has adopted the Provincial Civil Servant Service Rules under Item No,17 of the agenda of the said date and made it applicable to its officers/servants as a stop gap arrangement till the time the Executive Committee of it frame and decide the Faculty's own rules and thus contended that services of the petitioners were governed regulated by such rules till the date of termination of their services through the impugned orders of respondent No,2. His further contention was that in case for any reason it is held that the said rules were not adopted validly and competently then in the absence of any specific bar in law the application of such rules to the services of the petitioners cannot be altogether excluded. He also placed reliance on the view taken by the apex Court in the case of Mrs. M.N. Arshad and others v. Miss Naeema Khan and others (PLD 1990 SC 612) and also on the principle laid down by the apex Court in the case of Aitchison College Lahore v. Muhammad Zubar and another (PLD 2002 SC 326).
12. The point of fundamental importance herein is as to whether the governing body was competent to approve, adopt and apply the Provincial Civil Servant Service Rules for governing the services of employees of the Faculty. In this regard Para 18 of the Notification through which the Medical Faculty was established has a super-imposing and overriding effects. The same is reproduced below:- ' Para 18. The governing body may with the previous approval of Government, make by laws not inconsistent with this Notification to provide for all matters for which provision is necessary for the purposes of giving effect to the provisions of this Notification.
' The plea of the respondents-Government both in the comments filed by it to all these petitions and during the course of arguments was that neither any prior nor subsequently approval of the Provincial Government was solicted or obtained in respect of the decision taken on Item No,17 of the agenda by the governing body of the Medical Faculty in its meeting held on 18-9-1980, therefore, the exercise thus carried out was without lawful authority and without jurisdiction.
13. This plea taken in unequivocal terms by the Government has a considerable force. The Notification mentioned above is the only and sole source of authority conferring specified powers on the Medical Faculty and its governing body but for adopting by laws for service structure of its officers and employees a clear condition/rider was imposed placed on its powers to the effect that while framing and adopting such by laws prior approval of the Provincial Government was mandatory. As no approval given by the Government to this effect has been brought on record nor referred to, therefore, we hold that the governing body was not at all competent and was having no authority to adopt and make applicable the Provincial Civil Servant Service Rules to the services of the officers and employees of the Medical Faculty thus it I B has no legal effects or any binding force in law.
' The plea that the petitioners may well be regarded and treated as employees of a Corporation is also not tenable because that principle would apply in case a Corporation is established/created through a statute law or through an Executive Order of the Government wherein the Government is clearly empowered and authorized by the statute law itself to establish and create a Corporation and taking upon itself the liability of providing funds and shall have an active control in the management of its affairs which is not the case in hand as we have discussed above in the earlier part of this judgment.
14. The view taken by the apex Court in the case of Mrs. M.N. Arshad supra is of not much help to the case of the petitioners because the same operates on different facts and on different premises of law. In the concluding part of Para 9 of its judgment, the apex Court has held the following view:-- ' Para 9 "We may state that a violation of a non-statutory rules cannot be assailed through a Constitutional writ petition, but the Tribunal while exercising special jurisdiction in service matters may take cognizance of a breach of a non-statutory rule/instruction if the same has been continuously and consistently acted upon by the department concerned. In any case the Tribunal has not prohibited the Federation to apply, the Civil Servants (Appointment, Promotion and Transfer) Rules. 1973; while re-considering the case of promotion in case the aforementioned rules framed by the Board are to be ignored on the ground of not being statutory."
' Similarly, the view taken by the apex Court in Aitchison College Lahore case was based on altogether different facts and circumstances wherein the Board of Governors of the College was headed by Governor of the Province as its Chairman. In that case the very composition of the Board and status of its Chairman was altogether different from the present case. Similarly the rules approved and adopted for running the affairs of the institution were having on its back the sanction of M.L.O. No,86 (M.L.A. Zone B) dated 2-5-1961 which had received the protection of Article 250 of the then Constitution of Pakistan of 1962.
15. After attending to all the facts and circumstances aforementioned and the principle of law enunciated by the Hon'ble Supreme Court in the case of Miss Zeba Mumtaz supra, we are of the firm view that the services of the petitioners were neither regulated and protected by any statutory rules framed for this purpose by any competent authority not the Civil Servant Service Rules. 1973 (N.-W.F.P.) were made applicable in the prescribed manner to their services, therefore, we entertain no amount of doubt that the relationship of the petitioners with the Medical Faculty was that of servants and master and because on the basis of well-entrenched principle of law the petitioners are not entitled to maintain Constitutional petition by invoking Constitutional jurisdiction of this Court for their reinstatement into service because in any case if it is established that their services were terminated illegally and without any just cause, the petitioners may bring suit for damages against their master.
' For the foregoing reasons and discussion, all these petitions fail and the same are therefore, dismissed with no orders as to costs.