Qari YAR MUHAMMAD vs ANJUMAN E ISLAMIA

ORDER

ZAFFAR HUSSAIN MIRZA, J.--The petitioner was admittedly serving as an employee of the Islamia High School, Quetta, which is being run by a private Institution known as Anjuman-e-Islamia registered under the Societies Act. The petitioner was dismissed from service on 12th November, 1979. He challenged the order of his dismissal from service by filing a suit for declaration to the effect that the order of dismissal was unlawful and prayed for reinstatement in service. The respondent, Anjuman-e-Islamia, resisted the suit and inter alia, contended that the suit was not maintainable. The learned Civil Judge held that the service of the petitioner was governed by the respondent's constitution. However, as regards the legal question of the maintainability of the suit, the Court came to the conclusion that as the petitioner had rendered a long service from 1955 to 1979, he had acquired a vested right. Accordingly the trial Court decreed the suit of the petitioner.

The respondent being aggrieved, challenged the decree in an appeal which was dismissed by the Additional District Judge who upheld the decree of the trial Court. The appellate Court rejected the objection as to maintainability of the suit on the ground that as the school was receiving aid from the Government, the Code of Education was applicable to the respondent Institution. Referring to section 89 of the said Code, the learned appellate Court held that the petitioner could not be removed from service except on the advice of the Superintendent and also after a show-cause notice and an inquiry was held against him according to the Code, which was not done in this case.

2. Ultimately the respondent called in question the aforesaid decree and the judgment of the appellate Court in a revision before the High Court of Baluchistan, Quetta, which was accepted, the decrees passed by the trial Court and the appellate Court were set aside and suit filed by the petitioner was dismissed. The learned Single Judge formed the opinion that the suit filed by the petitioner for declaration that the order of his dismissal was illegal and for consequential order relief for reinstatement in service, was not maintainable on the reasoning which would appear from the following extract from the judgment:- "The Supreme Court of Pakistan in R.T.H. Janj-us's case PLD 1974 SC 146 has in unequivocal terms observed that the safeguards available to the generality of civil servants against dismissal or removal from service are not available to the servants of a registered company or a statutory corporation and to them the general law of Master and Servant is applicable and the only remedy available to the aggrieved servant in such cases is to sue for damages for wrongful dismissal. It is unnecessary to pad up this judgment with the authorities of the superior Courts any further on this aspect of the law."

Learned Judge also referred to section 21(b) of the Specific Relief Act and held that a contract for service is incapable of being specifically enforced and consequently a servant cannot force himself upon his master by institution a suit for specific performance of contract of service but his remedy is to bring an action for damages for breach of contract or for wrongful dismissal.

3. The petitioner now seeks leave to appeal from the aforesaid judgment of the High Court in revision dated 8th September, 1985, and it is mainly contended by the learned counsel for the petitioner that the Code of Education was rightly made applicable to the petitioner's case which has the effect of statutory rules and, therefore, the suit challenging, wrongful dismissal was competent before the civil Court. Learned counsel referred to this Code as the Baluchistan Code which according to him has statutory force. However, upon our inquiry to refer to the provisions of law under which the Baluchistan Code containing certain rules was framed, learned counsel was unable to cite any law or statute in this behalf. He submitted that this Code has been followed under a very long time and has, therefore, effect of law. We are unable to subscribe to the view canvassed by the learned counsel as no authority of law has been pointed out under which the said Baluchistan Code has been formulated to have statutory effect to govern the service of employees of private schools. The mere fact that the Educational Institution was receiving grant in aid from the Government cannot convert such an institution into a public or statutory rules applicable to civil servants. The learned Judge in the course of his judgment has referred to the concession made by the learned counsel for the petitioner before him that even if the Baluchistan Education Code was attracted in the case of the petitioner, according to rule 5 Appendix XXIV under Article 51(iv) the service of an employee in recognized schools under private management may be terminated by either party on giving three months notice in writing or paying three months salary in lieu thereof. This concession itself was sufficient to hold that the suit for declaration and consequential relief was not maintainable.

4. After hearing the learned counsel, we find no force in this petition which is accordingly dismissed.