AURANGZEB Versus GOOL BANO DR. BURJOR ANKALSERIA

ORDER

DEEDAR HUSSAIN SHAH, J. ---This petition for leave to appeal is against the judgment of the Sindh High Court, dated 20-10-1999 allowing C.R.A. No.203 of 1995, whereby concurrent findings of fact recorded by the two Courts below were upset and suit for declaration, permanent injunction and payment of back benefits filed by the petitioner was dismissed.

2. Petitioner was appointed as Ward Boy in Dr. Burjor Ankalseria Nursing Home, a charitable trust in the year 1976. He was promoted asp e Nurse Aid. In the same year, vide respondents' order, dated 14-9-1985 he was reverted to his original office. As this order did not suit, the petitioner proceeded on two months' leave which was granted to him from 14-9-1985 to 15-11-1985, After expiry of leave he reported for resumption of duty but he was not allowed to do so. After service of a legal notice on the respondents and .receiving no response he invoked the jurisdiction of Civil Court with a prayer for declaration of his order of reversion as illegal and a permanent restraint order prohibiting the respondents from terminating his services. He also prayed for payment of his allowances and back benefits with effect from 15-11-1985.

3. Respondents resisted the suit on various legal grounds and explained that as the petitioner was not a qualified Male Nurse, after taking over by respondent No.2 as Chief Administrator and Medical Superintendent, it was decided that all persons who did not qualify to hold a particular post to which they were promoted without obtaining requisite qualification would be reverted.

4. On the pleadings of the parties trial Court struck the following issues:----

(1) Whether plaintiff was qualified Male Nurse?

(2) Whether plaintiff was initially appointed as 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 15-11-1986 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?"

5. At the trial while the petitioner appeared in the dock in support of e his case and exhibited various documents no evidence in rebuttal was adduced by the respondents. Learned Senior Civil Judge while, holding that the petitioner was not a qualified Male Nurse and that he was initially appointed as Ward Boy held that his removal from the office of Male Nurse Aid was not legal and accordingly decreed the suit as prayed. Unfortunately for the respondents Civil Appeals Nos. l to 6 of 1994 before an Additional District Judge, Karachi South failed obliging them to invoke the revisional jurisdiction of the Sindh High Court in terms of section 115, C.P.C. It is the correctness of the conflicting judgment of the High Court which has been impugned through this petition.

6. Mr. Shafaat Hussain, learned Advocate Supreme Court for the petitioner contended that the relief sought by the petitioner was rightly granted by the trial Court as well as the First Appellate Court and that the impugned order of the High Court is against law and facts and liable to be struck down. Conversely, Mr. M.G. Dastgir, learned Advocate Supreme Court for the respondents urged that at the very outset, suit for declaration and permanent injunction brought by the petitioner was not maintainable and liable to dismissal summarily. He has seriously assailed the judgments of both the lower Courts- and supported the view taken by the High Court.

7. At the hearing Mr. Shafaat Hussain, with all fairness candidly admitted that there are no statutory rules of service in the respondents Nursing Home with the necessary result that the relationship between the parties would be that of a master and servant. In case it be so and we find that it was a case of contractual employment between the parties, the petitioner at best could claim damages for wrongful reversion to a lower post if so advised. In terms of section 42 of the Specific Relief Act declaration sought by the petitioner was not available to him in view of the contract of employment which appears to have been purposely withheld by him and not included in the paper book. The law has been set at rest by this Court in Anwar Hussain v. Agricultural Development Bank of Pakistan (PLD 1984 SC 194). It was laid down in the precedent case that if the relationship is a result of a contract freely entered into by the contracting parties then the principles of master and servant will apply. It was made clear by observing that the principles, however, will not apply if some law or statutory rules intervened and places fetters upon freedom of the parties in the matter of the terms of the contract.

8. In view of the aforesaid position in law view expressed by learned Single Judge in the High Court cannot be said to be arbitrary or in violation of the settled principles of law. Impugned judgment therefore, does not call for interference. Resultantly, petition for leave is dismissed and leave refused.

Q.M.H./M.A.K./A-134/S Petition dismissed.