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Civil Revision No. 393‑D of 1981, decided on 20th June, 1981.

S. 42‑Declaratory suit ‑. Termination of service ‑‑ Respondent appointed on ad hoc basis for a period of six months‑Suit against termination of service filed about 1 J years after termination of service ‑Courts below, held, possessed no authority to confer any right an respondent which did not flow out of his terms and conditions in '" absence of any other law to support same.‑‑[Civil service].

S. 42 read with Punjab Development of Cities Act (XIX of 1976), S. 9, West Pakistan General Clauses Act (VI of 1956), S. 23 and Punjab Town Improvement Act (IV of 1922), S. 73‑Terms and conditions of service ‑ Fall within discretion of Authority‑Rules framed under previous law‑Of no avail‑Nor can assistance be sought from S. 23 of West Pakistan General Clauses Act, S. 9 of Punjab Development of Cities Act being not consistent with S. 73 of Town Improvement Act‑Confirmation of an employee takes effect either in accordance with terms and conditions or provision of law subject to order of competent authority‑Respondent appointed on ad hoc basis for six months filing suit after two years of termination of his service Courts below, held, possessed no authority in law to declare him as a regular employee or to direct petitioner to hand over charge. [Civil service].

----S. 42‑Declaratory suit ‑ Terms and conditions of service‑In absence of statutory rules terms and conditions of service agreed upon by parties, held, hold good.‑[Civil service].

Muhammad Hafeez Khan v. Secretary to Government of Punjab 1981 SCMR660ref.

‑‑ S. 9‑Terms and conditions of service‑One of conditions of appointment being that appointee's service would be controlled under Rules applicable to other servants of Development Authority‑No such Rules placed on record‑Contention that Rules framed under Town Improvement Act would apply to situation ‑ Held, not acceptable‑Act XIX of 1976, confers entire discretion with regard to terms and conditions of service of its employees on petitioner Authority whereas Town Improvement Act confer rule‑making power on Governor‑Section 9, further held, does not lay down terms and conditions to be as prescribed or rules to be made about same. [Civil service].

S. 9‑Respondent temporary employee appointed on ad hoc basis for a period of six months‑Relationship of master and servant created in circumstances‑Order of termination of service not casting any stigma or slur on career of respondent and no hearing or opportunity having been given as in case of civil servants having constitutional guarantee, declaratory suit, held, not maintainable.‑[Civil service].

Muhammad Saddiq v. Government West Pakistan P L D 1974 S C 39 ref.

Sh. Qadeer Ahmad Siddiqi for Petitioner.

Ch. Khurshid Ahmad for Respondent.

Date of hearing: 20th June, 1981.

The petitioner challenges the judgments and decrees passed by the two Courts below decreeing a suit for declaration filed by respondent to the effect that the order dated 31st August, 1977 terminating his service as Assistant Director by the petitioner is illegal and void. The Courts below also granted a mandatory injunction directing the petitioner to hand over the charge to the petitioner as Assistant Director.

2. The facts leading to the present petition are that the petitioner was appointed as Assistant Director under the orders of the Minister of Housing vide order dated 19th March, 1977. He joined service on 1st April, 1977, and was conferred the necessary powers of his office on 21st of May, 1977. His services were terminated on 31st of August, 1977.

3. In his plaint, the respondent narrated the above facts and took exception to the order terminating his services on the ground that it was in fact an order of dismissal passed without stating any cogent reason and without affording him with an opportunity of being heard. The petitioner in his written statement challenged the locus standi of the respondent and denied the jurisdiction of the Court. He further stated that the respondent was appointed under the order of the Minister of Housing without any vacancy or provision in the budget. Later, the Director‑General reviewed the position within the period of temporary appointment under the Martial Law Instructions.

4. The trial Court framed the following four Issues:

(1) Whether the civil Court has no jurisdiction to try this suit O. P. D.

(2) Whether the plaintiff has no locus stand to institute this suit O. P. D.

(3) Whether the order dated 31‑8‑77 was illegal, male fide and against the principles of natural justice, if so its effect O. P. P.

(4) Relief.

It found all the four Issues in favour of the respondent holding that the plaintiff had the locus stand to file the suit and the civil Court has the necessary jurisdiction, to try the same.

5. It is contended by the learned counsel for the petitioner that as the respondent had been appointed only for a period of six months on ad hoc basis, the two Courts below had no authority in law to grant any injunction or to declare that the respondent was a regular employee. It is to be noted that though the order of termination was passed on 31st August, 1977, the suit was filed about two years thereafter on 10th of September, 1979.

6. The learned counsel for the respondent submitted that the appointment of the respondent was under rules framed under the Punjab Town Improvement Act, and, therefore, the petitioner had a right not only to file a suit but to demand that his rights thereunder should be protected. He further stated that as the order had been passed under Martial Law Instruc tion 23, the pre‑requisites therein ought to have been complied with. The learned counsel also referred to a few judgments in support of his plea.

7. The terms and conditions of appointment of the respondent as given in Exh. P. 1, are as follows:‑

"(1) Your appointment is on ad hoc basis for a period of six months terminable from either side on a week's notice.

(2) You shall have to appear for interview as and when the posts are regularly filled after inviting applications.

(3) Your service would be controlled through the Rules applicable to other servants of the F. D. A.

If the above terms and conditions are acceptable to you then you may report for duty in the office of the Director General, Lyallpur Development Authority, Lyallpur not later than 7‑4‑1977. "

8. The order of termination (Exh. P. 3) is as follow,:‑

"On scrutiny of record regarding appointment of Mr. Shahid Pervaiz Shaheen as Assistant Director, Lyallpur Development Authority, it has revealed that appointment of the Officer was made on the orders of the Minister, Housing & Physical Planning at the time when there existed no vacancy. On thorough examination of the case it has been noticed that the appointment was not regular and payment of salary etc. to the Officer was also not admissible.

Mr. Shahid Pervaiz Shaheen is, therefore, relieved of his duties im mediately and he may compete with others when regular appointments are made for recruitment of staff in Lyallpur Development Authority when proper sanction of the staff is received."

9. 1t will be seen from the above that the main Issue to be decided between the parties was Issue No. 3, after it was considered, for the sake of argument, that the respondent had the locus stand to file a suit and the trial Court, had the jurisdiction to decide it. The terms and conditions as reproduced from Exh. P. 1. above go to show that the appointment of the respondent was for a period of six months and it would expire on 31st of October, 1977. The suit in question was, filed about 1 years thereafter. The two Courts below thus had no authority to confer any right on the respondent which did not flow out of his terms and conditions if there was no other law to support the same.

10. Section 9 of the Punjab Development of Cities Act, 1976 (Act XIX of 1976) which authorises petitioner to employ Officers and servants reads as under:‑

"Appointment of Officers and employees.‑‑The Authority may appoint such Officers, advisors, experts, consultants and employees as it considers necessary for the efficient performance of its functions on such terms and conditions as it may deem fit."

11. The above provision unequivocally shows that the terms and conditions of its employees were within the discretion of the petitioner itself. Consequently, the rules framed under the previous law would not cover the situation. No assistance can be sought from section 23 of the West Pakistan General Clauses Act either, as section 9 is not consistent with section 73 of the Punjab Town Improvement Act, 1922. The confirmation of an employee has to take place either in accordance with the terms and conditions or provisions of law subject to the order of competent authority. The two Courts below, therefore, had no authority in law to declare the respondent as a regular employee or to direct the petitioner to hand over the charge to let him continue as Assistant Director, as he filed the suit about 2 years of the termination of his service.

12. Further, the 1st condition of appointment shows that either party could give one week's notice to terminate the employment even within the original period of six months. In case the service was terminated without notice, the respondent could have been entitled only to one week's pay an nothing more. Consequently, only a suit for recovery could only for on week's pay would lie and not a suit as framed. This will particularly hold good as the respondent had accepted the terms and conditions and in the absence of statutory rules, the agreement would hold good. Reference be also made to the case of Muhammad Hafeez Khan v. Secretary to Government of Punjab (1981 S C M R 660).

13. The learned counsel for the respondent had mainly relied on condition No. 3, which said that his service would be controlled under the rules applicable to the other servants of the L. D. A. No such rules have been placed on the record and no provision thereof has been utilized in support by the two Courts below. The contention by the learned counsel that the rules framed under the Town Improvement Act would apply cannot be accepted a violates section 9 of the Act XIX of 1967. As noted above, the above Act confers the entire discretion, with regard to the terms an conditions of its employees, on the petitioner, whereas the Town Improve ment Act conferred rule‑making power on the Governor. Further section 9 does not lay down that the terms and conditions. will be as prescribed or rules shall be made about it.

14. The respondent was a temporary employee appointed on ad hoc basis. There was thus a relationship of master and servant. Further, the termination order did not cast any stigma or slur on the career of the respondent. No hearing or an opportunity to do so was necessary. The finding that a temporary servant appointed on ad hoc basis has a right to show‑cause notice has not been supported by law. The cases referred to con cerned civil servants who had either the constitutional guarantees or statute protection available to them. Even there the temporary employees were not entitled to a show‑cause notice unless they were to be thrown out on account of misconduct. That is not the case here. Reference be made to Muhammad Saddiq v. Government of West Pakistan (P L D 1974 S C 393 ).

15. For the reasons given above, neither the suit was maintainable in the form in which it was filed nor had the two Courts below any authority in law to declare as they did or to issue a mandatory injunction in the form prayed.

In view of the above, this revision petition is allowed, the judgments and decrees passed by the two Courts below are set aside and the suit of the respondent dismissed. The respondent shall also pay costs of the petitioner throughout.

M, Y, H. Petition accepted.