Judgment Sheet

IN THE PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT
Writ Petition No.3070-P/2013.
Col. (R) SultanzebVSFazal-e-Haq College Mardan.
JUDGMENT
Date of hearing6.11.2014..
Petitioner (s) by.
Respondent(s) by
*****
ROOH-UL-AMIN KHAN, J:-

The petitioner namely,

Sultan Zeb Khan, a retired Lieutenant Col. from Pakistan Arm,

has called in question the notification No. S.O (AB)
E&SED/18-5/2013/FHC

&

notification

No.

S.O

(AB)

E&SED/18-5/2013/FHC/Principal dated 1.11.2013 whereby his

contractual services as Principal Fazal-e-Haq College, Mardan
were terminated, in pursuance of decision taken by the Board of
Governors, in its meeting held on 23.10.2013 and consequent
upon, the Chairman Board of Intermediate and Secondary

Education, Mardan was allowed to look after the post of

Principal Fazal-e-Haq College, Mardan till further orders.
2.

The precise facts averred in the petition are that;

the petitioner having academic qualification and experience was

appointed as Principal Fazal-e-Haq College, Mardan, by the
controlling authority viz Chief Minister Khyber Pakhtunkhwa,
upon recommendations of selection committee in BPS-20
through notification dated 6.7.2006 issued by the Secretary to
Government of Khyber Pakhtunkhwa. The induction of the
petitioner in service as principal as on contract basis for specific
limited period of three (03) years in BPS-20 with fringe
benefits, on the terms and conditions settled by the Board of
Governors of the College. On coming to end of contract period
it was further extended for further three yeard w.e.f. 11.7.2012
to 10.7.2015, on the existing terms and conditions, vide
notification dated 26.7.2012, but misfortune be fell upon him
when the respondent No.2, in consequence of letter dated
8.4.2013, written by Deputy Commissioner Mardan constituted

a fact finding inquiry committee and the petitioner was ordered

to be remained on forced leave till finalization of the report of
the above-said committee. Ultimately the remaining contract
services of the petitioner were terminated vide the above
mentioned notification dated 1.11.2013 and the Chairman
Board of Intermediate and Secondary Education, Mardan was
handed over the charge to look after the affairs of Fazal-e-Haq
College, Mardan, till further orders. Hence this petition.
3.

Learned counsel for the petitioner vehemently

argued that the petitioner has served the college as Principal

with zeal and zest and has made several achievements but the
respondents unilaterally terminated the remaining period of
contract of petitioner without assigning any reason. The
impugned order is based on malafide as at the first instance, so
called inquiry was conducted without associating the petitioner
and lateron the impugned notification was issued without
assigning any reason. He emphasized that by conducting the so
called fact finding inquiry, numerous allegations were leveled

against the petitioner and he was condemned for misconduct. In

such a situation the respondents were under legal obligation to
provide a fair opportunity to the petitioner to clear his position.
The impugned orders were avowed as illegal, void without
lawful authority and prayed for its setting aside.
4.

The learned counsel for respondents strenuously

controverted the view point as canvassed at the bar on behalf

of the petitioner and contended that Fazal-e-Haq College,
Mardan is the creation of Khyber Pakhtunkhwa Education and
Training Ordinance, 1971. Section 19 of the Ordinance ibid
empowered the Provincial Government to make rules for the
purpose of the ordinance. Likewise section 20 invested the
power in the Board of Governors to frame regulation, subject to
approval of the Provincial Government to carry out the purpose
of the ordinance. He vehemently argued that the Fazal-e-Haq
College, Mardan (terms and conditions of service) regulation
2011 has been formulated by the Board of Governors of the
college, but has not been published in the official Gazette, thus,

has not attained the status of statutory rules. As per various

pronouncements of the apex Court constitutional petition
against the non statutory body, is not maintainable. He further
contended that the services of the petitioner has been terminated
strictly in accordance with terms and conditions of appointment
which has duly been accepted by the petitioner at the time of his
appointment, therefore, on this score too the writ petition filed
by the petitioner is not maintainable as relation of master and
servant exists between the parties.
5.

Having heard the learned counsel for the parties

relevant record was perused with their valuable assistance

which reveals that the petitioner was appointed as Principal
Fazal-e-Haq College, Mardan vide order dated 6.7.2006. At the
time of appointment the following terms and conditions were
settled between the parties.
1.
He has been appointed as Principal,
the Fazlehaq College Mardan in BPS-20 with
effect from 10th July, 2006.
2.
He shall devote the whole time of his
duties as Principal and carry out such
administrative functions, related to his job, as

assigned by the Board of Governors from time to

time.
3.
He shall not, unless permitted by the
Board of Governors, indulge in private tuition, nor
shall be indulge directly or indirectly in any trade,
business or occupation on his own account.
4.
He shall be bound in all respect to the
Government Service conduct Rules as may be
prescribe din the College Service Rules or such
rules as may be prescribed by the Government for
member of service to which he belongs.
5.
He shall be entitled to:(a)-(b)-(c)-(d)-(e)-(f)-6.
He shall be entailed to such leave as is
admissible to other officers of his rank under the
Government Rules and the accumulated annual
leave, if any shall either be granted for pay or
encashed towards the end of his service.
7.
The services of the Principal may be
terminated, if so desired by him or the Board of
Governors, by giving one months notice to either
side or pay amount equal to his one months salary
in lieu of notice period.
8.
(Enumerates pay and allowances of
the petitioner). ( Emphasis supplied).
6.

On expiry of stipulated period of the contract, the

Board of Governors of Fazal-e-Haq College, Mardan in its

meeting held on 30.7.2012 approved the extension in contract
services of the petitioner for further period of three years w.e.f.
11.7.2012 to 10.7.2015 on the existing terms and conditions. To
this effect a proper notification dated 26.7.2012 was issued by

the respondent No.2. During second tenure the faculty members

and class-IV employees started a protest and demonstration
against the petitioner which culminated into serious law and
order situation in the District, therefore, the Deputy
Commissioner Mardan, apprised the Commissioner Mardan
Division about the situation vide letter dated 8.4.2013 and
recommended that the provincial Government may be
approached with a request to probe into the matter and to get
wind the reasons behind en masse churn up and revolt of all
staff members against petitioner. Resultantly a two members
inquiry committee comprising, Mr. Fazal Manan, Director PITE
and Shams Khan, Additional Director( P&D), Directorate E &
SE Peshawar, was constituted to conduct an inquiry, fix
responsibility and submit report alongwith recommendations
within 07 days to the respondent No.2. The inquiry was
conducted and detailed report was submitted before the
competent authority which was put before the meeting of Board

of Governors of Fazle-e-Haq College, Mardan for consideration

wherein the following decision was made.
It is also proposed
that the Principal may be
honourably relieved, not on the
basis of allegations but in the light
of Judgment of the
August
Supreme Court of Pakistan that he
had
reached
the
age
of
superannuation.
Decision. After
threadbare
discussion, the Board agreed to the
removal of the present Principal
immediately in light of the
Provincial
Inspection
Team
recommendations/ suggestions and
also agreed that a new Principal of
the said Institution will be
appointed within 50 days subject to
the observance of all codal
formalities. The Chairman BISE
Mardan will look-after the work of
Principal FHC Mardan till the
arrival of the new Principal.
7.

In pursuance of the above referred decision of

Board of Governors the impugned order dated 1.11.2013 was

issued, whereby the remaining period of contract of the
petitioner was terminated and he was held entitle to draw one
month pay in lieu of giving one month notice strictly in
accordance with condition No. 7 of the terms and condition of
appointment orders.

8.

In the instant case, first point for determination

pertains to the nature of service of the petitioner. Undisputedly

the petitioner has been appointed on contract basis, initially for
three years which was subsequently extended on the terms and
conditions quoted in the preceding paras. Condition No. 7
clearly indicates that the services of the petitioner may be
terminated by the Board unilaterally by giving one month notice
to the petitioner or payment of an amount equal to his one
month salary, in lieu of notice period. No doubt the respondents
while terminating the services of the petitioner has assigned no
reason however, he has been held entitled to draw one month
pay in lieu of termination notice. The contention of the
petitioner that before termination of the remaining period of
contract, the respondents were under legal obligations to
provide an opportunity of hearing to the petitioner, is un
persuasive and not convincing for the reason that the contract of
service, under which the petitioner was appointed, specifically
provides that his service shall be liable to termination on one

10

month notice or one month salary in lieu thereof, without

assigning any reason. Such a contract, in our view does not
create any vested right in the appointee so as to make him
entitled to be served with notice before termination of contract
of his service. The learned counsel for petitioner has relied on
some case law of the apex Court, in support of his contention,
careful reading of which reveals that in the referred cases the
services of the petitioners therein were terminated on the basis
of certain allegations but in the instant case the contract of the
petitioner was terminated without stigmatizing him. He was
given a very safe and honourable exit from service, without
leveling any allegation against him. We may observe that there
is a marked distinction between the simpliciter termination of
service in accordance with terms and conditions of appointment
and the termination of service on the ground of misconduct. No
doubt if a person is employee on contract basis and the terms of
employment provides the manner of termination of his service,
the same can be terminated in terms thereof. However, if a

11

person is to be condemned for misconduct, in that event, even if

he is a contract employee, would be entitled to a fair
opportunity to clear his position. It means that in case of
stigmatize termination there must be a regular inquiry in terms
of Efficiency and Disciplinary Rules. In the instant case as
discussed above the contract appointment of the petitioner has
been simply terminated without any allegation of misconduct.
The cited judgments of the apex Court having no relevance with
case of petitioner, thus of no consequence for him.
9.

By now it is settled law that in contractual

obligation no writ can be issued by the High Court under

Article 199 of the Constitution of Islamic Republic of Pakistan,
1971 unless the contract employment of a person is terminated
with any stigma. The petitioner, in contractual appointment, is
not vested with a right to press for his reinstatement in to
service for the left over period.
10.

Coming to the other controversy regarding the

maintainability of the writ petition against a non statutory body,

12

it can be stated that no doubt the Fazal-e- Haq College, Mardan

is a statutory institution but its employees neither holder of
statutory post nor were governed by any statutory rules. The
Board of Governors of the College has formulated the
regulation in terms of section 20 of the Ordinance, 1971 but the
same has not been published in the official Gazette, thus, does
not possess the status of statutory rules. Under section 2 (41)
General Clauses Act a notification shall mean a notification
published under proper authority in the official Gazette. Before
publication in the official gazette a drafted notification is of no
significance and legal importance and legally it cannot be
termed as Notification. Reliance may be placed on case titled
Government of Sindh through Secretary Agriculture and
Livestock Department and others vs. Messrs Khan Ginners
(Private) Limited and 57 others (PLD 2011 Supreme Court
347). In the eventualities, where services of an employee are
not governed by any statutory rules, the principle of master and
servant would be applicable and therefore, the jurisdiction of

13

this Court could not be exercised. In case of Abdur Rashed

Khan vs. Registrar Bahaudddin Zakaria University Multan and
others ( 2011 SCMR 944) it was held that in a case where any
University/educational institute has no statutory rules, it will bar
the remedy for its employees to invoke the jurisdiction of High
Court under article 199 of the Constitution of Pakistan, 1973.
In another case titled University of Punjab vs. Sardar Ali (1992
SCMR 1093) and Ijaz Ul Hussain Suleri vs. The Registrar and
another ( 1999 SCMR 2381) the apex Court ruled that employee
of the university were neither holders of statutory post nor their
terms and conditions were governed by statutory rules,
therefore, the High Court had rightly held that the constitution
petition was not maintainable.
11.

In case of Pakistan Telecommunication Co. Ltd.

Through Chairman vs. Iqbal Nasir and others ( PLD 2011

Supreme Court 132) the honourable Supreme Court of Pakistan
has comprehensively dealt with the proposition by holding that
the employee of Pakistan Telecommunication corporation were

14

governed by principle of master and servant and in absence of

statutory rules, constitution petition filed by the petitioners were
not maintainable. It was further ruled that in such like situation
master was within his due right to retain or dispensed with
services of any employee on the basis of satisfactory or
otherwise performance. It was also emphasized that contract
employees had no right to invoke the constitution jurisdiction of
High Court.
12.

In

case

of

Pakistan

International

Corporation and others vs. Tanweer Ur

Airline

Rehman and other

( PLD 2010 Supreme Court 676) it was held that if any adverse
action taken by the employer in violation of the statutory rules,
only then such action shall be amenable to the constitutional
jurisdiction but if such action had no backing of statutory rules
then principle of Master and Servant would be applicable and
such employees had to seek remedy permissible before the
Court of competent jurisdiction.

15

13.

On careful reading of the above quoted case laws

one can arrive at irresistible conclusion that the status of the

employees, whose services are not governed by statutory rules,
principle of master and servant would be applicable and writ
petition may not be competent. Moreover, in the reported
judgment i.e. Federation of Pakistan vs. Muhammad Azam
Chatta ( 2013 SCMR 120) the apex Court has categorically
ruled that where the services of contract employee are
terminated before time, he can, at best claim damages to the
extent of unexpired period of his service but cannot press his
reinstatement in service through constitutional petition.
14.

The honourable Apex Court, in case titled Abdul

Wahab and other..vs.. Habib Bank Ltd and others ( 2014 PLC
(C.S) 393 held that:in those cases where the employment/
service (s) is not regulated by any law, as in
the present case it is admitted position that
Rules 1981 are non-statutory and thus not a
law, rather contractual stipulations, and no
specific forum is designated for the resolution

16

of

such

service

issues,

therefore

an

infringement of any condition of such a

contract shall at the most entitle and clothe
the employee to avail his ordinary remedy for
the breach of the contract and on account of
wrongful action against him, before the Court
of plenary jurisdiction. In such a situation, it
cannot be urged that the fundamental right of
the employee had been violated conferring
upon him a right to enforce the same (in terms
of Article 199 and / or) under Article 184(8)
(supra).

15.

We have examined regulation in the light of the

Ordinance, 1971 and were of the firm opinion that the

regulation having been framed under Ordinance, being not
published in the official gazette, did not have the statutory force
and therefore, the petitioner would not be legally entitled for
the invoking the constitutional jurisdiction for seeking his
reinstatement. In this regard we are fortified by numerous
judgments of the Apex Court wherein the law has been settled
that an employee of corporation / institution in the absence of
violation of law or any statutory rules could not press into

17

service the constitutional jurisdiction or civil jurisdiction for

seeking relief for reinstatement in service. His remedy against
wrong dismissal or termination is only to claim damages. Some
of which are as below:Pakistan Red Crescent Society and another vs.
Syed Nazir Gillani ( PLD 2005 SC 806), Mrs.
M. N Arshad vs. Mrs. Naeema Khan ( PLD
1990 SC 612), Zainul Abidin vs. Multan Central
Cooperative Bank Limited Multan ( PLD 1966
SC 445), Lt. Col. Shujauddin Ahmad vs. Oil and
Gas Development Corporation ( 1971 SCMR
566), The Principal Cadet College, Kohat and
another vs. Muhammad Shoib Qureshi, (PLD
1984 SC 170), RTA Janjua vs. National
Shipping Corporation (PLD 1974 SC 146),
Anwar Hussain vs. Agriculture Development
Bank of Pakistan and others ( PLD 1984 SC
194), Evacuee Trust Property Board and another
vs. Muhammad Nawaz ( 1983 SCMR 1257) and
Muhammad

Yousuf

Shah

International Airline Corporation

vs.

Pakistan
( PLD

1981 SC 224).

17.

Admittedly the position in the present case is that

the petitioner is contract employee of Fazal-e-Haq College

Mardan and his service is not governed by any statutory rules,

18

thus, the order of his termination, without any stigma cannot be

challenged before this Court under extraordinary jurisdiction.
Instant writ petition being not maintainable is dismissed.

CHIEF JUSTICE

JUDGE

Announced on;
6th of November, 2014.
*Zarshad*