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Writ Petition No. 497 of 1966, decided on 2nd February 1968.

Arts. 98 (3) (b), 177 & 179 (2)‑Expression "except a term or condition of service specified in this Constitution" in Art. 98 (3) (b)‑"Temporary employees", dismissal of‑Condition of issuing show‑cause notice (in terms of Art. 177) to such employees not specified in Constitution itself ‑ Such employees (rave no locus standi to file petition under Art. 98 (3) (b) despite fact that relevant service rules may provide for issue of show‑cause notice‑"Temporary employ ment", what is‑Test.

Under Article 98 (3) (b) of the Constitution, it is laid down that persons other than those employed in Defence Services can file writ petitions only with regard to their such terms and condi tions of service which are specified in the Constitution itself.

Chapter I of Part VIII of the Constitution deals with the terms and conditions of services etc., of the Civil Servants. This Chapter consists of six Articles rapping from Article 174 to Article 179. In Article 177, it is laid down that a person who is a member of an All‑Pakistan Service or or a civil service of the Centre or of a Province, or who holds a civil post in connection with the affairs of the Centre or of a Province, shall not be dis missed or removed from service, unless he has been given a reasonable opportunity of showing cause against the action pro posed to be taken with respect to him. In Article 179 (2), it is however, mentioned that "the preceding Articles of this Chapter . . do not apply to or in relation to the temporary employment of persons in the service of Pakistan". The result is that so far as the Constitution is concerned, it does not require that a show‑cause notice should be given to temporary employees at the tune of their dismissal from service. The condition of issuing a show‑cause notice, with regard to the dismissal of temporary employees riot having been specified in the Constitution itself, such employees are debarred from filing a writ petition under Article 98 (3) (b) of the Constitution on this count. the fact that a provision might be existing in the relevant rule; for issuing show‑cause notices to temporary employees is altogether immaterial so far as the locus standi to file a writ petition under Article 98 (3) (b) on that point is concerned. If the relevant rules provide for issuing a show‑cause notice to temporary employees then the remedy for its enforcement may exist in the form of a suit but not a writ petition.

It is the term, period or duration ref the employment which is to be the test for determining as to whether the appointment was temporary or not. The question, as regards the nature of the employment, might need investigation is cases where: there is no indication to this effect in the appointment letter. But in cases where the appointment letter itself specifically recites that the: service shall be purely of temporary nature, that recital is enough by itself on the subject. An employment may be temporary if it is proved that it is for a limited duration or if it is so recite in the appointment order itself.

Ghulam Sarwar v. Pakistan P L D 1962 S C 142 ref.

Arts. 185 (2) (c) r. 225 arid West Pakistan Public Service Commission (Limitation of Functions) Regulations, 1957, Reg. 5(1)‑Regulations of 1957, an "existing law" within meaning of Art. 225‑Regulation continues to be in operation on subject mentioned in Art. 186 (2)‑Consultation with Public Service Commission in respect of' dismissal of temporary employees‑Not necessary.

Yusuf Ali Khan v. The Province of the Punjab P L D 1949 Lah. 219 and Capt. Muhammad Azhar v. Commissioner of Karachi and another P L D 1966 S C 253 W.

Abid Hassan Minto for Petitioner.

Nemo for Respondents.

Raja Said Akbar, Advocate‑General for the State.

Dates of hearing : 25th and 26th January 1968.

The petitioner was appointed as an overseer, under the Rural Works Programmed of P. L. 480, against do existing vacancy with effect from the 1st of May 1964 by the Project Director, Rural Works Programme, Dera 5hazi Khan. A copy of tae appointment letter of the petitioner has been fled in the form of Annexure "A" and reads as follows :‑

"Mr. Muhammad Umar of Jampur, District Dera Ghazi Khan is hereby appointed as an Overseer, under the Rural Works Programme of P. L. 480, against an existing vacancy with effect froze 1st May 1954. His services shall be terminable with effect from Is, July 1964. He shall, however, be allowed to continue if funds under P. L. 480 for the financial year 1964‑65 are made available. His services are purely of temporary nature and, for the 1st sip. months he shall be on trial and is allowed to draw his lay and allowance is (sic.) the scale of Rs. 175‑15‑325/E.B‑400‑1+Rs. 45.00 as fixed T. A. per month."

2. The case of the petitioner is that Mr. Muhammad Abbas Anwar Gardezi, Assistant Director, Basic Democracies (res pondent No. 2) and his wife Mst. Nasreen Begum got a loan of about Rs. 3,000 (Rupees three thousand only) at different intervals and promised to pay the loan as soon as possible. This loan was, however, not paid due to which, it is alleged, the relations of the petitioner with respondent No. 2 got strained It is further averred in the petition that respondent No. 2 vindictively got a case registered against the petitioner under section 452/380, P. P. C., for the theft of khandani photos in connexion with which the petitioner was arrested on the 24th of November 1965, but ultimately was bailed out by the Additional District Magistrate, Dera Ghazi Khan on the 9th of December 1965. During the pendency of the bail matter, on the 4th of December 1965, respondent No. 1 passed an order dismissing the petitioner from service with effect from the 24th of November 1965, which was the date when the petitioner was arrested by the police. The said order reads as follows :‑‑

"Mr. Muhammad Umar, Overseer, Rural Works Programme Dera Ghazi Khan, has been reported to be an intriguer, quarrelsome, a habitual trouble creator and an unqualified hand. He has been arrested by the Police since 24th of November 1965, in case F. I. R. No. 119 under section 452/380, 'P. P. C. and still in Police custody. Another case under section 409, P. P. C. has been ordered to be registered against him on an application submitted by Mr. Said Khan, Chairman, Union Council, Leghari Tuman, Tehsil D. G. Khan." "As his appointment is of a temporary nature, therefore, sunder the above circumstances he is not considered fit to be retained in service. He is, therefore, dismissed from service .w. e. f. 24^th November 1965, the date of his arrest by the Police."

It is further alleged ill the petition that respondent No. 2. vindictively got another case registered against the petitioner under section 406, P. P. C. at the instance of one Mr. Said Khan, Chairman of Union Council Leghari Tuman, Tehsil and District Dera Ghazi Khan. Copies of both these first information reports have been filed along with the writ petition. The petitioner has filed this petition under Article 98 of the Constitution wherein he has prayed that it may be declared that the order, dated the 4th of December 1965, passed by respondent No. 1, where by the petitioner was dismissed from service, was without lawful authority and of no legal consequence. It is further prayed that "it may be directed that the petitioner be considered to be in service". Learned counsel for the petitioner has raised a number of contentions to which we will presently revert.

3. The first point argued by the learned counsel for the petitioner was that notwithstanding the fact that in the appoint ment order, reproduced above, the services of the petitioner have been described as purely of temporary nature, the petitioner was, in fact, a permanent employee. The necessity for raising this' contention has arisen because under Article 98 (3) (b) of the Constitution, it is laid down that persons other than those employed in Defence Services can file writ petitions only with regard to their such terms and conditions of service which are specified in the Constitution itself. Chapter I of Part VIII of the Constitution deals with the terms and conditions of services, etc., of the Civil Servants. This Chapter consists of six Articles ranging from Article 174 to Article 179. In Article 177, it is laid down that a person who is a member of an All‑Pakistan Service or of a civil service of the Centre or of a Province, or who holds a civil post in connection with the affairs of the Centre or of a Province, shall not be dismissed or removed from service, unless he has been given a reasonable opportunity of showing cause against the action proposed to be taken with respect to him. In Article 179 (2), it is, however, mentioned that "the preceding Articles of this Chapter . . . . . do not apply to or in relation to the temporary employment of persons in the service of Pakistan". The result is that so far as the Constitution is concerned, it does not require that a show‑cause notice should be given to temporary employees at the time of their dismissal from service. The condition of issuing a show‑cause notice, with regard to the dismissal of temporary employees not having been specified in the Constitution itself, such employees are debarred from filing a writ petition under Article 98 (3)(6) of the Constitution on this count. The fact that a provision might be existing in the relevant rules for issuing show‑cause notices to temporary employees is altogether immaterial so far as the locus standi to file a writ petition under Article 98 (3) (b) on that point is concerned. If the relevant rules provide for issuing a show‑cause notice to temporary employees then the remedy for its enforcement may exist in the form of a suit but not a writ petition. It was in order to overcome this difficulty that it was argued by the learned counsel for the petitioner that his client was not a temporary employee. On the subject as to what a temporary employee is, the learned counsel referred to the observations of Hamoodur Rahman, J, in Ghulam Sarwar v. Pakistan (P L D 1962 S C 142 at pp. 196‑197) and submitted that the fact that the services of an employee can be terminated at a certain periodic notice is no test for holding that he is a temporary employee. There is no quarrel with this proposition. The real test for determining whether the employment was temporary or not, is to see the duration, term or period for which the employment has been made and not the manner of its termination. Looked at from that point of view, Annexure A' reproduced above, will show that:‑‑

(a) The initial appointment made on the 7th of May 1964, was for a limited period till the 1st of July 1964 ;

(b) the appointment was under the Rural Works Programme of P. L. 480‑which was a programme being finalised by the American Aid and in its nature depended on that Aid;

(c) the concession to be allowed to continue in service was only for the financial year 1964‑65, depending upon the availability of the Aid again;

(d) there is no indication that beyond year 1964‑65, he was also to be retained in service; and

(e) in the appointment letter, it was expressly mentioned that the services are purely of temporary nature.

The accumulative effect of the various terms mentioned above is that the employment of the petitioner was for a limited duration and was, therefore, temporary in nature. Apart from the various aspects pointed out above, there is a clear mention in the appointment letter that the services of the petitioner were purely of temporary nature. Having accepted the employment on this condition, it does not lie in the mouth of the petitioner to turn round and say that the nature of service was different from the one under which his employer allowed him to join. The actual passage in the judgment of Hamoodur Rahman, J., in the authority quoted by the learned counsel for the petitioner reads as follows:‑

"My reason for saying that the conditions of service of persons employed temporarily may also be regulated by contract is that the proviso to subsection (2) of section 241 has not only indicated that rules need not be framed for regulating their conditions of service but has also said the term of their employment may provide for the termination of their service on one month's notice or less'. The terms there referred to must, in my view, necessarily mean terms of an agreement or contract."

"It is necessary at this stage to clarify as to what, accord ing to me, the words employed temporarily' mean, because the learned Attorney‑General has advanced the argument that an employment which is for an indefinite period but terminable at the will of either the employer or the employee by serving a notice, must necessarily be temporary employment. No employment under the Government is permanent in the sense that it enures till the death of the employee, for, the usual term of a non‑temporary employment is up to the age of superannuation prescribed under the rules. I would, therefore, say that if no definite shorter period of employment is specified, then employment is non‑temporary employment as distinct from a temporary employment which, in my view, must be for a definite shorter period. Thus the words "employed temporarily' occurring in the proviso to sub section (2) of section 241 have, in my view, been used merely in contradistinction to the usual non‑temporary employment up to the age of superannuation. I am, therefore, unable to agree with the learned Attorney‑General that wherever there is a contract of employment providing for the termination of service on one month's notice or less the employment is by its nature temporary. To accept this contention would amount to rendering nugatory the protection given by sub section (3) of section 240, for then it would be open, notwith standing those provisions for the appointing authority to obtain from every person recruited to the civil service or appointed to a civil post under the Government his signature to a contract providing for the termination of his service on one month's notice, and thus defeat the object of subsection (3) of section 240. To that extent, therefore, I also agree with the decision in Mrs. A. V. Issac's case."

The substance of the above passage also points out that it is the term, period or duration of the employment which is to b the test for determining as to whether the appointment was temporary or not. Respectfully following the law laid down by Hamoodur Rabman, J., in the authority mentioned above we are of the view that since the duration of the employment of the petitioner was limited in character, it was through and through a temporary employment. It may further be pointed out that the question, as regards to the nature of the employ ment, might need investigation in cases where there is no indication to this effect in the appointment letter. But in cases of the present kind, where the appointment letter itself specifically g recites that the service shall be purely of temporary nature, that recital is enough by itself on the subject. An employment may be temporary if it is proved that it is for a limited duration or if it is so recited in the appointment order itself. The present case, however, fulfils both the tests and looked at from whatever point of view the only answer that can be recorded in this context is that the employment of the petitioner was pure of a temporary character and the provisions of Article 174 with regard to issuing a show‑cause notice, not being applicable in his case, he has no locus standi to file this petition on that count.

4. The second point argued by the learned counsel for the petitioner was that in Article 186 (2) (e) of the Constitution, it was laid down that except to the extent that the Governor of a Province after consulting the Public Service Commission of the Province, may provide otherwise by Order, the Governor shall, in relation to the civil services of the Province and civil posts connected with the affairs of the Province, consult the Commission with respect to disciplinary matters. It was submitted that even though the petitioner may be a temporary employee he was still holding a civil post connected with the affairs of the Province as was laid down in Yusuf Ali Khan v. The Province of the Punjab (P L D 1949 Lah. 219). Taking the argument further, it was submitted that unless the Governor had by means of Regulations or Orders provided otherwise, the case of the petitioner should have been referred to the West Pakistan Public Service Com mission and, as the dismissal order was passed without making such a reference, the same was without lawful authority. Attention of the learned counsel for the petitioner was drawn to the West Pakistan Public Service Commission (Limitation of Functions) Regulations, 1957, framed by the Governor of West Pakistan, where in Regulation 5 (1) it was laid down that it was not necessary to consult the Commission on an original or appellate disciplinary order passed in respect of the non‑gazetted Government servants. When faced with this situation, the learned counsel for the petitioner argued that the said Regula tions which were promulgated in year 195A or as a matter of fact before the promulgation of the present Constitution, were of no legal effect; because in Article 186 (2) of the present Constitu tion, it was laid down that such Regulations or Orders should be issued after consulting the Public Service Commission of the Province. Carrying the argument further, it was submitted C that there was no such requirement of consulting the Public Service Commission before issuing such Regulations in the Constitution of 1956, and the old Regulations, therefore, could not be considered to be the Regulations contemplated in Article 186 (2) of the Present Constitution. This objection has two answers. Firstly, the old‑Regulations being existing law are to continue under Article 225 (1) of the Constitution. Needless to say that under sub‑Article (7) of Article 225, "existing laws means all laws‑including Regulations‑and other legal instruments having the force of law in Pakistan or any part of Pakistan immediately before the commencing clay. The old Regulations, therefore, continued to be the Regulations on the subject and their operation could not be stopped on the argument on which the learned counsel wanted to assail them. Secondly, the learned Advocate‑General has produced a true copy of letter No. S.O.VII -10‑65/57‑11, dated the 28th of December 1963, from S. Ghias‑ud-Din Ahmad, Additional Chief Secretary to the Government of West Pakistan to the Secretary, West Pakistan Public Service Commission, Lahore. The said letter is reproduced below in extenso

"In continuation of this Department communication No. S. O. VII‑10‑65/57, dated the 15th October 1962, addressed to the Chairman, West Pakistan Public Service Commission, I am directed to say that a meeting was held in connection with the Revision of the West Pakistan Public Service Commission (Limitation of Functions) Regulations in the Room of the Additional Chief Secretary on 22nd October 1962, which was attended by the following besides the Additional Chief Secretary, Government of West Pakistan.

(1) Chairman, West Pakistan Public Service Commission.

(2) Secretary to the Government of West Pakistan, Law Department.

(3) Deputy Secretary to the Government of West Pakistan, Law Department.

(4) Deputy Secretary (General) to faze Government of West Pakistan, Services and Genl. Admn. Department.

"The Finance Secretary could not attend the meeting due to his pre‑occupation but expressed his agreement on telephone with the views expressed in the working paper (a copy of which was applied to the Chairman of West Pakistan Public Service Commission vide this Department Communication referred to above).

(2) The question of empowering the Public Service Commission to advise on the suitability of the candidates for promotions and transfers from one service to another was discussed. The consensus of opinion was that this power should be vested in the Public Service Commission although in the New Constitution the role of the Commission had been confined to mere consolation at the time of formulation of principles regarding promotion and transfer. It was felt that the Provincial Government should follow in the foot‑steps of the Central Government in the matter. With regard to the other proposals contained in the working paper no objection was raised by ark: of the officers who attended the meeting.

(3) In the meantime the President decided that references should continue to be made by the various Ministries, Divisions to the Central Public Service Commission on the suitability of candidates for appointments, promotions, etc., to various Central Services Posts. He further directed that the provisions of such references to the Central Public Service Commission should be incorporated is the Recruitment Rules. On receipt of a copy of this directive from the President's Secretariat and in view of the decision taken by the meeting held on 22nd October 1962, in the room of the Additional Chief Secretary, the Drafting Sub‑Committee in their meeting held on the 5^th February 1963, decided that the West Pakistan Public Service Commission (Limitation of Functions) Regulations, 1957, as amended from time to time should be allowed to remain as they are under Article 225 (1) and (7) of the Constitution of 1962 because they are quite comprehensive and no major change is required.

(4) It was observed that in accordance with the provisions, of Article 186 (2) (d) of the Constitution, the mandatory of the. Commission have been enlarged to include tendering of advice with respect to matters affecting the terms and conditions of service of the persons employed in connection with the affairs of the Province. On the other hand, the follow ing matters in respect of which it was necessary to consult the Commission under the provisions of the Constitution of 1956, have been excluded from the mandatory functions of the Commission:‑

(1) to advise on the re‑imbursement of legal expenses incurred by persons employed in the service of the Province and

(2) to advise in respect of claims for the award of injury pensions.

(5) The whole matter was placed before the Governor who was pleased to approve the suggestions of the Drafting Su b‑Committee Committee contained in Para, 2‑4 above. As a result thereof it was decided that the West Pakistan Public Service Commission (Limitation of Functions) Regulations, 1957, as amended from time to time shall remain in force under Article 225 (1) and (7) of the present Constitution. The Governor, however, in pursuance of the provisions contained in Sub‑clause (b) of clause (I) of Article 186 of the Constitution of the Republic of Pakistan vide S & GAD. Notification No. S. O. VII‑10‑65‑57 dated the 12th August 1963, directed that the West Pakistan Public Service Commission shall be consulted in matters relating to the suitability of candidates for appointment promotion and transfer to Civil Services and posts gander tire Provincial Government except as is otherwise provided in the West Pakistan Public Service Commission (Limitation of Functions) Regulations, 1957 (copy enclosed for ready reference).

(6) You were separately requested to bring to the notice of the Chairman and Members of the West Pakistan Public Service Commission for their guidance the provisions of sub clause (d) of clause (2) of Article 186 of the Constitution of the Republic of Pakistan whereby the mandatory function of the Public Service Commission have teen enlarged to include the tendering of advice with respect to matters affecting the terms and conditions of service of persons employed in con nection with the affairs of the Province. In this connection your attention is invited to S & GAD's letter of even number dated the 12th August 1963.

(7) I am to add that all Administrative Secretaries and Heads of Attached Departments, etc., have been apprise) of the Constitutional position that with the promulgation of the Constitution of the Republic of Pakistan, 1962, the requirement of obtaining the advice of the West Pakistan Public Service Commission has been excluded in respect of the following matters:‑

(i) On any claim by or in respect of a person who is serving or has served under the Federal or a Provincial Government, in a civil capacity that any costs incurred by him in defending any legal proceedings instituted against him in respect of acts done or purported to be done in the execution of his duty should be paid out of the Federal Consolidated Fund or the Provincial Consolidated Fund, as the case may be;

(ii) On any claim for the award of a pension or allowance in respect of injuries sustained while serving under the Federal or a Provincial Government in Civil Capacity, and any question as to the amount of any such award.

Under clause (2) of Article 186 of the Constitution it is now no longer necessary to consult the commission in the aforesaid matters. In this connection your attention is invited to S. & G. A. Department's endorsement of even. number dated the 4th September 1963.

(8) I am to request you to bring the above facts to the notice of the Chairman and the Members of the Commission for their information and guidance,"

A perusal of this letter shows that in cases of the present kind the old Rule and Regulation were allowed to stand and that while making this Order, the Governor bad consulted the West Pakistan Public Service Commission, whose Chairman actually participated in the deliberations. The point raised by the learned counsel thus loses all force.

5. Learned counsel for the petitioner relied upon Captain Muhammad Azhar v. Commissioner of Karachi and another (P L D 1966 S C 253) which was a case of a Development Officer of Basic Democracies and the order of his removal from service was declared illegal inter alia on the ground that the Public Service Commission was not consulted in that respect. The learned counsel referred to that authority for the purpose of urging that since in the instant case as well the Public Service Commission was not consulted, the order of dismissal should be declared illegal. No doubt in the said authority it was laid down that Article 186 applied to all members of civil services and holders of civil posts and surely even a temporary employee either belonged to a service or was the holder of a civil post which would mean that the provisions of Article 186 of the Constitution would apply to him as well. The actual passage in the judgment of the Supreme Court, which is relevant for the purposes of our case, however, is as follows :‑--

"It is not contended on behalf of the respondents that the Governor has promulgated any order dispensing with consulta tion of the Public Service Commission in cases like the one with which we are concerned."

The above passage shows that no Regulation was relied upon before the Supreme Court and, as a matter of fact, the contention that there was any Regulation on the subject was not even raised. In the instant case, however, the contention is very much being raised and a specific regulation on the subject is also being pressed into service. The present case, therefore, is distinguishable from the case of Captain Muhammad Azhar.

6. No other point was urged before us.

7. The upshot of the above discussion is that this writ petition is not maintainable under Article 98 (3) (b) of the Con stitution on the subject of show‑cause notice and has no merits, as regards the point of consultation with the Public Service Commission. The petition is dismissed with costs.

K.B.A. Petition dismissed.

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