MUHAMMAD AFZAL Versus CHAIRMAN, LAHORE DEVELOPMENT AUTHORITY,LAHORE

This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, seeks to challenge the order dated 2‑12‑1978 passed by the Director (Administration and Finance), Lahore Development Authority, Lahore whereby the services of Mr. Muhammad Afzal, Assistant Director, Road‑IV, petitioner herein, were terminated on the ground that at the time of joining, he was overage by four years. arid five months and ten days than the upper age limit.

2. Briefly, the facts arc that the petitioner obtained a Diploma in Engineering from the Government School of Engineering and Technology, Rasool. It is stated that in the year 1969, he joined as Sub‑Engineer in the Military Engineering Service, Government of Pakistan. He served the said department for nearly eight years. In 1976, he obtained. the qualification of A.M.I.E., which is equivalent to B.Sc. (Engineering). On 8‑4‑1977, the Lahore Development Authority (hereinafter referred to as the Authority) advertised the posts of Assistant Directors (NPS‑17) in the daily `Pakistan Times', Lahore, dated 8‑4‑1977. The prescribed qualification for the post was B.Sc. (Engineering) in Civil Technology from any University in Pakistan or abroad. It was further notified that the candidates having two years' practical experience would be given preference. However, no age limit was prescribed in the notification. Pursuant to the said notification, the petitioner applied for the said post. The Selection Board of the Authority interviewed the candidates including the petitioner, who was selected for the post in Grade‑17 (900‑‑50‑?1,150‑‑60‑‑1,750). Consequently, the Director (Finance and Administration) of the Authority vide appointment letter No. 2080/DDA/LDA/10113, dated 11‑6‑1977 offered the post to the petitioner. He was also asked to indicate his acceptance to the terms and conditions of the appointment offer and report for duty to the Chief Engineer for the posting within two weeks, failing which the offer of appointment was to be withdrawn. This appointment letter was issued under the orders of the Director‑General dated 9‑4‑1977. This was followed by another office order of the Authority bearing No. Endst: CE/LDA/4512, dated 16‑6‑1977, whereby the Chief Engineer of the Authority passed the order, for the posting of seven Assistant Directors including the petitioner. The petitioner was posted in the Road Division No. V. After a lapse of over one and a half years, the Director (Admn. & Finance) of the Authority, vide order dated 17‑12‑1978, terminated the petitioner's services under the orders of the Director‑General dated 2‑12‑1978 on the ground that at the time of joining the Authority, he was overage by 4 years, 5 months and 10 days. The petitioner being aggrieved with the order of termination, filed a departmental appeal, which was rejected vide order dated 13‑3‑1979. This led to filing of a declaratory suit on 20‑3‑1979, whereby a challenge was made to the petitioner's removal from service by order dated 17‑12‑1978 and the order dated 13‑3‑1979, whereby his departmental appeal was rejected.

3. The Authority did not join the proceedings in the civil suit despite service. The trial Court decreed the suit ex parte. The operative part of the order reads thus:‑

"??the defendant should call upon the plaintiff to explain his position and hear personally as this has not been done in this case. The order of termination be considered in the light of the authorities referred in this judgment. Till the re‑consideration in accordance with rules, terms and. conditions settled intense the parties, the impugned order is set aside. The plaintiff, however, shall be entitled to the back benefits only in the light of the order after re‑consideration of the case as directed above, however, the plaintiff be entitled to service and seniority benefits as the services of the plaintiff were dispensed with without due course of law and without notice."

Aggrieved with the ex parte decree, the Authority filed a review petition, which was also dismissed vide judgment dated 8‑5‑1980. Thereafter, the petitioner approached the Authority for his reinstatement. He also submitted joining report on 21‑10‑1979, which was duly diarised vide No. DA 2367, dated 2‑10‑1970. This was followed by numerous applications for redress of the petitioner's grievance, but no action was taken by the Authority. Meanwhile, the Ministry of Finance, Government of Pakistan advertised the post of Assistant Executive Engineer The petitioner also applied for the post through the Federal Public Service Commission. He was duly selected. Appointment letter was also issued in his favour on 7‑12‑1977 by the M.E.S., but since he has been selected as Assistant Director of the Authority, he decided to forego his appointment with the M.E.S.

4. Mr. Dost Mohammad Awan, learned counsel for‑ the petitioner argued that decree of the Civil Court ought to have been honoured by the Authority. He further submitted that the objection regarding age limit was not relevant, in that, the minimum and maximum age limit for the various posts in the Authority was laid down in the Lahore Development Authority (Appointment and Conditions of Service) Regulations, 1978, which came into force on 26‑4‑1978.. These regulations were applicable prospectively and not from retrospective effect and, therefore, the petitioner's services were not liable to be terminated on the ground that he was overage.

5. Mr. A.R. Arshad Malik, learned Counsel for the Authority argued that relationship between the petitioner and the Authority was purely that of `master and servant'; there was no violation of any statutory rule, regulation or instructions having the force of statute relating to terms and conditions of his service and therefore, even if the impugned order suffers from any defect, the petitioner cannot invoke the Constitutional jurisdiction to, redress his grievance. He further argued that as per appointment letter dated 11‑6‑1977, the petitioner was a temporary employee on probation for a period of two years and his services were liable to be terminated at any time without assigning any reason in, case of default, negligence of duties and misconduct etc. The precise submission was that the contractual obligations cannot be enforced through a constitutional petition.

6. The basic question, which requires consideration is whether a declaratory decree can be enforced or executed by resort to Constitutional jurisdiction. The earlier view of the Supreme Court was that this cannot be done. Refer Muhammad Yoqsaf Khan and others v. Pakistan Western Railway through Vice‑Chairman, P.W.R. and others. 1972 SCMR 1; Pakistan and (2) Administrator of Karachi v. Naseem Ahmad PLD 1961 SC 445; and The State of Pakistan and another v. Mehrajuddin (PLD 1959 SC (Pak.) 147). However, in the case of Pakistan v. Mrs. A.V. Isaacs (PLD 1970 SC 415), the right of remuneration was recognised. It will be advantageous to reproduce the following passage from the case of Mrs. Isaacs (supra):‑

"The position, therefore, that emerges from the examination of the decisions above‑referred to is that a civil servant has and always had the right to recover from the Crown salary already accrued due to him, in spite of the fact that he held service during the pleasure of the Crown. The theory of the bounty of the State never applied either in England or in pre‑Independence India as regards arrears of pay. I am, therefore, with great respect unable to agree with the views of the Judicial Committee of the Privy Council in I.M. Lall's case that a civil servant had no right to arrears of pay nor could he recover the same. It will follow from this that I am also unable to agree with the law propounded by this Court in the case of Mehrajuddin, which appears to be based solely upon the decision of the Privy Council in I.M. Lall's case."

The question whether the execution of declaratory decree of Civil Court is permissible by resort to Constitutional jurisdiction, was also examined in the case of The Administrator, Thal Development/Chief Secretary and another v. Mahboob Ali Khan (1986 SCMR 1927). The Supreme Court relying upon its earlier decision in the case of Mrs. A.V. Isaacs (supra), observed:‑

"After the decree of the Civil Court, the competent departmental authority had to exercise its statutory powers in the light of this rule and the law laid down by this Court in Mrs. Isaac's case of which the appellant was duly aware and had been giving effect to it in various orders of reinstatement referred to. The contumacious refusal of the appellant to discharge its statutory duties provided the justification to the respondent to invoke the Constitutional jurisdiction of the High Court. It was not a case of enforcing declaratory decree by means of a Constitutional petition. It was more a case of seeking redress against the failure of the statutory to exercise in a lawful manner the powers conferred on it by statutory rules.?

Here the impugned order was passed on the ground that the petitioner was over age. This question is to be examined under the Lahore Development Authority (Appointment and Conditions of Service) Regulations, 1978. These were framed under section 45 of the Lahore Development Act, 4975. It came into force on 16‑4‑1978. Clearly, it was not applicable with retrospective effect. The petitioner was removed from service prior to enforcement of these Regulations and, therefore, his termination on that count is not sustainable in law. Refer Muhammad Yousaf Kurd‑ etc. v. Secretary, Board of Revenue and others 1982 SCMR 644 and khan Faizufah Khan v. Government of Pakistan through the Establishment Secretary, Cabinet Secretariat and another PLD 1974 SC 291, wherein it was held that rules/regulations are not retrospectively applicable.

7. It is true that contractual obligations cannot be enforced through writ jurisdiction. Refer Principal, Cadet College, Kohat v. Muhammad Shoab Qureshi PLD 1984 SC 170: Here it is not a case of enforcement of contractual rights. It is more a case against the refusal of the Authority, which is a statutory functionary for giving effect to the orders of reinstatement of the petitioner in the light of the directions embodied in the declaratory judgment of the trial Court. Clearly, once a declaration had been granted by the trial Court, it was incumbent upon the authority to take consequential steps by implementing it in letter and spirit.

8. ? In Muhammad Ibrahim v. Government of Pakistan PLD 1972 SC 332, it was held:‑

" .... Government has the legal authority to terminate the officiating appointment at any time and it may do so for any reason relatable to exigencies of service. No show‑cause notice is necessary in such a case. But if it is intended to revert an officer to an inferior post by way of penalty, a show‑cause notice is necessary notwithstanding that the appointment to the superior post was in an officiating capacity. Reversion in that case amounts to reduction in rank within Art. 177(1)(b). Equally if an order of reversion is made mala ride, Courts will strike it down not because no show‑cause notice was given, but on the ground that the authority concerned has abused the power vested in the Government to terminate an officiating appointment without giving a show‑cause notice."

9. As to plea raised by learned counsel for the Authority that the period of probation of two years having elapsed by efflux of time, there is no live issue to be adjudicated upon, suffice it to say that services of the petitioner were terminated before the expiry of two years probation period on the erroneous assumption that he was over‑age on the basis of the aforesaid Regulations, which were not applicable to his case, therefore, he is entitled to complete his remaining period of probation subject to the terms and conditions of his service as contained in the appointment letter. In other words, the petitioner will be entitled to serve the Authority for a period of five months and twenty? four days from the date of his. rejoining subject to the terms and conditions of his service so as to enable the competent authority to decide whether his performance is satisfactory or otherwise and then pass such order as it may deem fit on merits and in accordance with law.

10. Be that as it may, the directions contained in the decree of the Civil Court are just and fair and the same should be implemented by the Authority forthwith. The order terminating the petitioner's services suffers from malice in law and is hereby quashed.

In view of the above, the writ petition is accepted subject to the observations contained in paragraph 9 (supra). The parties shall bear their own costs.

A.A./M‑P82/L ???????????????????????????????????????????????????????????????????????? ??????????? Petition accepted.