OBAIDULLAH and anothers vs HABIBULLAH and others

ORDER

' AJMAL MIAN, J.--This is a petition for leave to appeal against the judgment dated 10-9-19% passed by a learned Single Judge of the High Court of Balochistan in Civil Revision No,23 of 1995, filed by respondents Nos.1 and 2 against the concurrent judgments/decrees dated 28-2-1994 and 26-10- 1994 of Qazi Dhadar and of Majlis-e-Shoora, Sibi Division, Sibi, respectively, decreeing the petitions' suit for declaration and injunction, allowing the same by setting aside the above concurrent judgments/decrees.

2. The brief facts are that respondent No,1 was appointed as a Pump Driver on the well, whereas respondent No,2 was appointed as Volveman by the Public Health Engineering Department through its Chief Engineer, North Zone, Quetta, in lieu of land allegedly provided by the father of respondent No,1, namely, Ghulam Qadir, to the Public Health Engineering Department. The present petitioners, being aggrieved, on 17-3-1993 filed a suit against the Public Health Engineering Department in the Court of Qazi Dhadar, seeking declaration and permanent injunction along with an application for stay. In the suit it was averred that their father, Haji Karim Bakhsh, had transferred land situated in Khasra No,74 to the Public Health Engineering Department for the water scheme on the condition that they would employ the petitioners as Pump Driver and Volveman.

The suit was resisted inter alia by the respondents who claimed to have been appointed to the above posts in lieu of the land transferred by their father Abdul Qadir. However, the suit was dismissed by the learned, Qazi Dhadar on 10-5-1993. Upon appeal, the learned Majlis-e-Shoora through its judgment/decree dated 23-11-1993 remanded the case to Qazi Dhadar, who decreed the same on the above date. The appeal filed by the respondents was dismissed by the Majlis-e- Shoora on 26-10-1994. After that respondents Nos.1 and 2 preferred aforesaid civil revision, which was allowed by holding that the above suit was not maintainable in view of the judgment of this Court in the case of In re: Abdul Jabbar Memon and others (1996 SCM R 1349). The present petitioners have, therefore, filed the present petition for leave to appeal.

3. In support of the above petition Mr.Basharatullah, learned Senior Advocate Supreme Court appearing for the petitioners has vehemently contended that the agreement entered into between the petitioners' father and the Public Health Engineering Department was not illegal and that the ratio of the judgment in the case of In re: Abdul Jabbar memon and others (supra) was not applicable to the present case as it relates to civil servants. His further submission is that the above agreement between the petitioners' father and the Department was for consideration in the form of transfer of a piece of land and, therefore, it was enforceable.

' On the other hand Mr.S.A.M. QUadri, learned A.O.R. Appearing for respondents Nos.1 and 2, has urged that the aforementioned agreement could not have been specifically enforced and no decree could have been passed.

4. Adverting to the above first contention of Mr.Basharatullah, learned counsel for the petitioners, it may be observed that even if we were to overlook the fact that the alleged agreement related to the employment in a Government Department, therefore, the petitioners were in the service of Province of Balochistan (even if they were not covered by the definition of "civil servant" as given in section 2(b) of the Balochistan Civil Servants Act, 1974), the fact remains that a contract of personal service cannot be specifically enforced. It is hit by section 21 and clauses (d) and (f) of section 56 of the Specific Relief Act, 1877, hereinafter referred to as the Act, which read as under:-- ' Section 21 of Act: "21. Contracts not specifically enforceable.-The following contracts cannot be specifically enforced--

(a) a contract for the non-performance of which compensation in money is an adequate relief;

(b) a contract which runs into such minute or numerous details. Or which is so dependent on the personal qualifications of volition of the parties, or otherwise from its nature is such, that the Court cannot enforce specific performance of its material terms;

(c) a contract the terms of which the Court cannot find with reasonable certainty;

(d) a contract which is in its nature revocable;

(e) a contract made by trustees either in excess of their powers, or in breach of their trust;

(f) a contract made by or on behalf of a corporation or public company created for special purposes, or by the promoters of such company, which is in excess of its powers;

(g) a contract the performance of which involves the performance of a continuous duty extending over a longer period than three years from its date;

(h) a contract of which a material part of the subject-matter, supposed by both parties to exist, has, before it has been made, ceased to exist. And, save as provided by the Arbitration Act, 1940, no contract to refer present or future differences to arbitration shall be specifically enforced, but if any person who has made such a contract other than an arbitration agreement to which the provisions of the said Act apply and has refused to perform it sues in respect of any subject which he has contracted to refer, the existence of such contract shall bar the suit.

Clauses (d) and (f) of section 56 of the Act: "56. Injunction when refused.-An injunction cannot be granted-- (a)

(b)

(c)

(d) to interfere with the public duties of any department of the Central Government or any Provincial Government or with the sovereign acts of a Foreign Government; (e)

(f) to prevent the breach of a contract, the performance of which would not be specifically enforced; A perusal of the above quoted section 21 of the Act indicates that the contracts specified in clauses

(a) to (h) cannot be specifically enforced. The case in hand is hit by clauses (a), (b), (c), (d), (e) and (g). It cannot be denied that for a breach of a contract of employment in the absence of any constitutional guarantee or other statutory guarantee of continuity, compensation in money is an adequate relief in case of non-performance of a contract. Similarly the contract of employment involves numerous details which are dependent on personal qualifications or volition of the parties and, therefore, the instant case is also hit by clause (b) of section 21 of the Act. There is nothing on record to indicate what were the terms of the employment agreed to between the petitioners' father and the Public Health Engineering Department and thus the present case is hit by clause (c) of above section. It may further be observed that a contract of employment as observed hereinabove, in the absence of any constitutional guarantee or any other statutory guarantee, is revocable and thus the petitioners' case was hit by clause (d) of section 21 of the Act as well. It may also be observed that the alleged contract was entered into between the petitioners' father and the S.D.O. Of the Public Health Engineering Department. Prima facie S.D.O. Has no authority to employ any person on behalf of the Department through an agreement of the nature in issue as he holds the above office in rust. The case in hand is also hit by above-quoted clause (e) of the aforesaid section. Lastly, the proposed contract of employment was for an indefinite period longer than three years and thus it is hit by clause (d) of section 21 of the Act.

5. As regard the relief of permanent injunction, it may be stated that above-quoted clause (d) of section 56 of the Act prohibits grant of permanent injunction which may interfere with the public duties of any department of the Central Government or any Provincial Government or with the sovereign acts of a Foreign Government. Whereas clauses (f) of section 56 imposes an embargo on the grant of permanent injunction to prevent the breach of a contract, the performance of which would not be specifically enforced. Both the above clauses are attracted to the case in hand, as to impose on the Department two persons as the employees on the basis of above agreement, would constitute interference with the working of the Department. Furthermore, as pointed out hereinabove, by virtue of above clauses of section 21 of the Act, the agreement in question cannot be specifically enforced and thus no permanent injunction can be granted in respect thereof under clause (f) of section 56 of the Act.

6. Adverting to the question, as to whether the ratio of the order of this Court in the case of In re: Abdul Jabbar Memon and others (supra) is applicable to the case in hand, it may be pertinent to reproduce the following portion of the order:-- "The matter has come up for consideration in the presence of the Deputy Attorneys-General.

Provincial Law Officers and Mr. Anwar Kamal, Advocate/counsel for P.I.A. The interim order proposed to be made is hereby confirmed and the case adjourned to enable the-Provincial Governments, the Federal Government and the counsel for P.I.A. To seek appropriate instructions from their respective Governments/Departments and to ensure compliance with the order. The interim order is reproduced hereunder in extenso:-- 'While inquiring into various complaints of violation of Fundamental/Human Rights, it has been found that the Federal Government, Provincial Governments, Statutory Bodies and the Public Authorities have been making initial recruitments, both ad hoc and regular, to posts and offices without publicly and properly advertising the vacancies and at times by converting ad hoc appointments into regular appointments. This practice is prima facie violative of Fundamental Right (Article 18 of the Constitution) guaranteeing to every citizen freedom of profession. Subject to notice to all concerned and subject to final orders after full hearing in the matter, it is ordered as an interim measure that the violation of this Fundamental/Human Right shall be discontinued forthwith'."

' From the above quoted extract from the aforementioned order, it is evident that this Court had directed the Federal Government to discontinue the practice then obtaining in the Federal Government, Provincial Governments, Statutory Bodies and the Public Authorities to make appointments, both ad hoc and regular, to posts and offices without publicly and properly advertising the vacancies and at times by converting ad hoc appointments into regular appointments.

7. The above view was reiterated and reinforced in a recent judgment in the case of Mushtaq Ahmad Mohal and others v. The Honourable Lahore High Court. Lahore and others (1997 SCM R 1043) by a Full Bench of this Court :comprising five learned Judges in the following terms:-- "17. We reiterate that the appointments to various posts by the Federal Government, Provincial Governments, Statutory Bodies and other Public Authorities, either initial or ad hoc or regular, without inviting applications from the public through the press, is violative of Article 18 read with Article 2A of the Constitution, which has incorporated the Preamble to the Constitution as part of the same and which inter alia enjoins equality of opportunity and guarantees for creation of an egalitarian society through a new order, which Objective cannot be achieved unless every citizen equally placed or situated is treated alike and is provided equal opportunity to compete inter alia for the posts in aforesaid Government set-ups/institutions."

' As regards the importance of inviting applications for the posts through Press, the following observations were made:- "16. The above contention does not stand to logic or reason. If the requirement to issue a fresh advertisement for additional vacancies in case in which date of test/examination or interview has not been fixed is mandatory in view of the above regulation, the same is attracted with more vehemence in a case in which the test/examination and interviews have already taken place.

If may be observed that even otherwise, the Constitutional requirement, inter alia, enshrined in Article 18 of the Constitution which enjoins that 'Subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession for occupation, and to conduct any lawful trade or business' includes the right of a citizen to compete and participate for appointment to a post in any Federal or a Provincial Government Department or an attached department or autonomous bodies/corporations etc. On the basis of open competition, which right he cannot exercise unless the process of appointment is transparent, fair, just and free from any complaint as to its transparency and fairness. The above objective enshrined in the Constitution cannot be achieved unless due publicity is made through public notice for inviting applications with the aid of the leading newspapers having wide circulation."

8. The upshot of the above discussion is that the present petition has no merits. Leave is refused.