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Court Petition No. 1155 of 1978, decided on 21st November, 1978.

--- No. 55-Master and servant-Question whether person fit to hold particular post, held, falls within ambit of M. L. O. 55- relations between its employee and Municipal Corporation that of master and servant-Relief claiming re-instatement by employees of such Corporation, not maintainable-Constitution of Pakistan (1973), Art. 199-Pakistan National Shipping Corporation Ordi nance (XX of 1979).

Malik & Haq v. Shamshul Islam P L D 1.961 S C 531; Chairman, East Pakistan Development Corporation. and another v. Rustam All and another P L D 1966 S C 848; Zainul Abidin v. Multan Central Co-operative Bank Ltd., Multan P L D 1966 S C 415 ; Abdus Salam Mehta v. Chairman, Water and Power Development Authority and another 1970 S C M R 40 ; Shahid Khalik v. P I A 1971 S C M R 568 and Lt.-Col. Shujauddin v, oil and Gas Development Corporation 1971 S C M R 566 ref.

Mazharuddin Siddiqui for Petitioners.

Date of hearing : 21st November 1978.

A1MAL MIAN, J.-.This petition has been filed jointly by six petitioners arid is directed against the order dated 7th August 1978 passed by the respondent No. 1, whereby the services of the petitioners were terminated with immediate effect and the petitioners were paid 15 days' salary each fn terms of para. 7 of the M.L.O. 55. The facts giving rise to the above w petitions are that the petitioners were employed by the defunct Landhi, Korangi Municipal Committee (hereinafter referred to as defunct Committee) as work mistrtes' at Rs. 105 per month in the scale of 105-5-150 during the year 1969-70. On or about 13th March, 1976 the posts of the petitioners were upgraded and the petitioners were re-designated as sub-overseers in the pay scale of 165 to 315 with effect from 6th March 1976. The defunct Committee was merged in the Karachi Municipal Corporation with effect from 15th March 1976 (hereinafter referred to as Municipal Corporation). In consequence of the above merger, the Government of Sind transferred non-L. C. S. Staff, who were in service of the defunct Committee to the Municipal Corporation with effect from 15th March 1976, with the clear direction that their terms and conditions of pay shall be protected.

2. After the promulgation of Martial Law Order 55 by the Martial law Administrator, Zone 'C', a select committee was set up, which after perusing the cases of the members of the staff' of the Municipal Corporation formed the opinion that the petitioners were unfit to be retained in service in terms of sub-para. III of para. 6(1) of M. L. O. 55 because they did not possess the prescribed qualification etc. In pursuance of the above recommendation of the select committee the aforesaid impugned order dated 7th August, 1978 was served on the petitioners by the respondent No. 1. The petitioners have challenged the above order in this petition.

3. Mr. Mazharuddin Siddiqui learned counsel for the petitioners has contended that the case of the petitioners did not fall within the ambit of M. L. O. 55 and, therefore the termination orders are without lawful authority. Before dealing with the above contention, it will be appropriate to note the terms and conditions on which the petitioners were appointed. As the appointment letters of petitioners Nos. 2 to 6 were identical, it will be advantageous to reproduce one of the appoint ment letters which reads as follows :-

OFFICE OF THE MUNICIPAL COMMITTEE, LANDHI-KORANGI

No. Estt.-31(22)/2761

Karachi, the 27th May, 1969.

OFFICE ORDER"

Subject: RECRUITMENT TO THE POST OF WORK MISTRY

(applicable to candidates who are appointed against short term vacancy or according to the discretion of the Appointing Authority where public interest warrants immediate appointment.)

Mr. M. A. Wajid Farooqi son of M. A. Wahid is hereby appointed in a purely temporary capacity of Work Mistry on Work-charged basis with effect from the date of Joining at a pay of Rs, 105 p. m. (Fixed),

The appointment is terminable at any time without any notice or rhyme or reason, the appointment being made only for the period the present works-in-hand continue.

His pay is chargeable under the Budget Head---.----------..-_

----------------------

(Sd.) (Syed Fuzail Ahmad) VISS. I,

Chairman,

Municipal Committee, Landhi, Karachi.

Copy to:

1. Mr. M. A. Wajid Farooqi, 30/8 Block 36/B, Landhi.

2. Engineering Deptt., L. K. M. C, for information,

3. Account Section, L. K. M. C,

The petitioner No. 1's appointment letter was also identical on material points, which reads as follows :-

OFFICE OF THE MUNICIPAL COMMITTEE, LANDHI-KORANGI

No. Estt : Estt-31 (32)/4983 Dated : 5-9-1973

OFFICE ORDER

Mr. Itaqad Hussain son of Askari Hussain is hereby appointed on work charge basis in a purely temporary capacity of work mistry at a pay of Rs. 105 per month (fixed) in the scale of Rs. 105-5-150. The appointment is terminable without any notice or rhyme or reason at any time.

(Sd.) (Syed Zahooruddin Ahmad),

LCS-I

Chairman,

Municipal Committee, Landhi-Korangi.

Copy to :

(1) Iteqad Hussain,

(2) Account Section.

(3) R. A. O. for Information AA

(4) Municipal Engg, for Information.

4. From the perusal of the above-quoted appointment letters, it is clear that the petitioners were appointed purely on temporary capacity. The learned counsel for the petitioners were unable to point out any rule of the respondent corporation under which it could be presumed that the petitioners were confirmed either as work mistries or as sub-overseers. It is also an admitted position that the petitioners do not possess any technical qualification. The selection committee had come to the conclusion that the petitioners were not fit to hold the post of sub. overseers. In our view the question whether a person is fit to hold a particular post falls within the ambit of M. L. O. 55 and, therefore, it cannot be urged that the petitioners' cases were not convered by the aforesaid M. L. O. Be that as it may, even if it is to be conceded that the petitioners' cases did not fall within the ambit of the aforesaid , M. L. O. the question which remains to be considered is, as to whether the above petition is competent for the reliefs prayed for. In the above petition the petitioners have claimed the following reliefs :-

It is, therefore, respectfully prayed that this hon'ble Court will be pleased to;

(1) Declare the decisions and recommendations of' the Selection Committee as mentioned in the order of the respondent No. 1 as illegal, partial, mala fide, ultra vires of the provisions bf the Martial Law Order No. 55, against the principle of natural justice and without lawful authority and quash the same so far it relates to the petitioners.

(2) Declare that under the circumstances explained in the petition, the petitioners are not liable to be terminated from service and entitled to be retained on the posts presently held by them.

(3) Grant any other relief or reliefs as may be deemed proper under the circumstances of the case."

5. The petitioners in fact are claiming the relief of re-instatement, which relief cannot be granted to the petitioners as they are employees of a Corporation. Our Supreme Court has consistently held that the relation ship between a Corporation and its employee is that of a master and servant, and the relief of re-instatement cannot be claimed by an employee of the Corporation. However, an employee of a Corporation will be entitled to maintain a suit for damages for the wrongful termination/dismissal from service. In this regard we may refer to the case of Malik & Haq v. Shamshul Islam; (P L D 1961 S C 531), the case of Chairman, East Pakistan Development Corporation and another v. Rustam Ali and another (P L D 1966 S C 848). the case of Zainul Abidin v. Musdtan Central Co-operative Bank Ltd., Multan (PLD1966SC415), the case of Abdus Salam Mehla v. Chairman, Water do Power Development Authority and another (1970SCMR40), the case of Shahid Khalik v. PIA (1971 S C M R 568) and the case of Lt.-Col. Shujauddin v. Oil and Gas Development Corporation (1971 S C M R 566). The same view was taken by a Bench of this Court in Writ Petition No. D. 241/78 decided on 4th October, 1978 to which one of us was a member. In the above case was held that an employee of the National Shipping Corporation was not entitled to maintain the petition for the relief of re-instatement for the aforesaid reason. We, therefore, do not find any merit in the above petition and, therefore, the same is dismissed in limine.

Petition dismissed.

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