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Writ Petition No. 726-S of 1973, decided on 23rd July, 1983.

-- Art. 201-Writ jurisdiction-Cannot be invoked against termina tion of contractual employment-Appointment of Junior Counsel in pursuance of resolution of Lahore Improvement Trust for appearing on behalf of Trust before Courts of original as well as appellate jurisdiction-Such appointment subsequently approved by Government as Legal Advisor under West Pakistan Autonomous Bodies (Appointment and Removal of Legal Advisors) Ordinance, 1965-Rules framed by Government for terms and conditions of service of regular employees of Trust not providing for appointment of such post and appointment made on specified salary and terms and conditions-Such appointment, held, a contractual employment -Termination of employment in pursuance of resolution of Trust abolishing such post and re-organising its department, held, not open to challenge before High Court in writ jurisdiction-Punjab Town Improvement Act (IV of 1922), Ss. 17 & 96 and Punjab Town Improvement Trust Service Rules, 1945.

Fayyaz Husain Qadri v. Administrator, Lahore Municipal Corporation P L D 1972 Lah. 316 rel.

-- Dispensing with employment-Not always amounts to removal for misconduct - Lahore Improvement Trust in its resolution deciding to re-organise and abolish certain posts on account of unsatisfactory working-No specific allegation made against particular person Policy decision containing assessment with regard to working of existing arrangement, held, does not involve any penalty- Contention that dispensing with employment pursuant to such resolution without show-cause notice and opportunity of explanation was contrary to principles of natural justice rejected.

-- Art. 201-Writ petition-Service matter- Laches-Principle of laches applicable strictly in service matters-Employee of Lahore Improvement Trust challenging vires of order dispensing with his employment-Delay of about four years-Explanation for delay that representation to Government remained pending-No right of appeal provided under law against impugned order-General provisions of supervisory powers of Government provided in law, held, could not be used to negative right of Improvement Trust to remove its employee-Inordinate delay in approaching High Court, held, could not be condoned on basis of such representation- Punjab Town Improvement Act (IV of 1922), Ss. 17 & 21-A.

Fayyaz Husain Qadri v. Administrator, Lahore Municipal Corporation P L D 1972 Lah. 316 rel.

A. W. Butt for Petitioner.

M. M. Saeed Beg and Saeed Akhtar for Respondents.

Dates of hearing - 8th May, 27th June, 6th and 9th July, 1983.

-Syed Sajjad Ali, Advocate, -in this constitution petition seeks a declaration to the effect that Memo dated 25th June, 1969 (Annex. O') of the Chairman, Lahore Improvement Trust intimating the petitioner that his services have been dispensed with immediate effect, and the order dated 23rd June, 1969 (Annex. P') of the Secretary to the Government of West Pakistan Law Department according approval to the dispensing with of the services of the petitioner in the Lahore Improvement Trust are illegal having been passed without lawful authority and hence are of no legal effect and that the petitioner continues to be in service of the Improvement Trust.

2. The facts necessary for appreciating the controversy raised may briefly be stated. The Lahore Improvement Trust in January, 1964, invited applications for the posts of one senior counsel and two junior counsel to conduct cases on behalf of the Lahore Improvement Trust in various lower and appellate Courts including the High Court and Supreme Court, through advertisement in the Press. The petitioner submitted an application for appointment to the post of junior counsel and was also selected by the Selection Committee constituted to interview the candidates for the said posts. The Trust vide its Memo dated 29th June, 1964 offered the post of junior part-time counsel to, the petitioner at a consolidated pay of Rs. 600 per month purely on temporary basis lasting for a month or so. It was further mentioned in this Memo that the services will be liable to be terminated without any notice in case of default or neglect of duty, and that the terms of service and the amount of work involved had been explained to the petitioner by the Chairman of the Trust and that the petitioner will have to work accordingly. It may be noted here that nothing has been stated in the petition as to the terms of service explained to the petitioner by -the Chairman. According to the petitioner, the matter of filling up the post on regular basis was again taken up by the Trust and as the post was re-advertised the petitioner submitted the application again. The Selection Committee interviewed the candidates on 10th October, 1964 and placed the petitioner's name on the top of the selected candidates. It is asserted that the Committee further recommended that instead of having one whole-time counsel at a monthly salary of Rs. 1,000, two part-time counsel be engaged at a monthly salary of Rs. 500 each. The Improvement Trust, however, vide its resolution dated 30th October, 1964 decided that instead of part-time junior counsel, two whole-time junior counsel with emoluments of Rs. 600 each, in all, be appointed. The appointment made was subject to the final approval of the Government and the appointee was to remain on one year's probation. It was further resolved that Mr. Sajjad Ali petitioner and Mr. Ikhlaq Hussain be issued appointment letters on the above-said terms and conditions, and that they will not also be entitled to conduct private practice. Accordingly, the Chairman, Lahore Improvement Trust issued appointment letters dated 3rd.November, 1964 to the petitioner, offering him the post of whole-time junior counsel in the Lahore Improvement Trust on a consolidated pay of Rs. 600 p.m. on one year's probation subject to the Government's sanction. The offer of appointment also included the condition that services will be liable to be terminated without any notice in case of default or neglect of duty. The petitioner could, however, give up service by serving one month's notice or by forfeiting one month's pay in lieu thereof. The petitioner was then confirmed w. e. f. 2nd July, 1965 vide resolution dated 25th July, 1967.

3. In the year 1965, the Government of West Pakistan promulgated an Ordinance known as the West Pakistan Autonomous Bodies (Appoint ment and Removal of Legal Advisors) Ordinance, XXXII of 1965. The Trust moved the Government for obtaining formal sanction to the petitioner's employment as Junior Trust Counsel and the approval of the Government in the Law Department was conveyed through Memo dated 10th January, 1965. The remuneration of the petitioner was enhanced from Rs. 600 to Rs. 800 p. m. vide resolution dated 3rd June, 1967. It is further asserted that on the termination of the services of Mr. Walayat Hussain, the then Senior Trust Counsel, Mr. Mahmood Zaman, Advocate, was appointed as part-time Senior Trust Counsel and at his instance a resolution was moved in the meeting held in March, 1969. In this resolution, inter alia, it was proposed, (i) that the existing two posts of Junior Trust Counsel be abolished; (ii) two or three Advocates from the panel approved by the Government in the Law Department be engaged on a monthly remuneration of Rs. 400 to Rs. 600 p. m., and (iii) appointment of an Assistant Secretary in the Law Department to co-ordinate with other Departments of the Lahore Improvement Trust. The monthly pay of this post was to be fixed by the Chairman considering the capabilities of the selectee: The aforesaid resolution was placed in the meeting of the Trust on 25th March, 1969 and the matter was referred to the Sub-Committee for further consideration. The matter with the report of the Sub-Committee came up for consideration in the meeting of the Trust dated 28th May, 1969 and it was resolved that the aforesaid three proposals be approved so as to achieve better working of the Law Department. As a result thereof, the existing posts of the two Junior Counsel were abolished. This necessitated the dispensing with of the services of the petitioner. The matter was reported to the Law Department, which vide its order date 23rd June. 1969 accorded the necessary approval. The petitioner was: therefore, vide Memo. No. 10906, dated 25th June, 1969 of the Chairman, Lahore Improvement Trust, intimated that his services have been dispensed with. On this, the petitioner submitted a petition under section 21-A of the Town Improvement Act, 1922 for quashing resolution No. 17, dated 28th May, 1969 passed by the Lahore Improvement Trust whereby the posts of Junior Trust Counsel were abolished, to the Secretary Government of West Pakistan Basic Democracies, Social Welfare and Local Government Department. It appears that this representation was ultimately placed before the Law Department and its rejection was conveyed by the Local Government and Social Welfare Department vide its Memo dated 3rd February, 1973 to the petitioner. Thereafter, the petitioner moved the present constitution petition seeking the declarations detailed in para. I above.

4. Mr. A. W. Butt, learned counsel for the petitioner argued that the Memo dated 25th June, 1969 of the Chairman, Lahore Improvement Trust conveying the order of the Government in the Law Department according approval to the decision of dispensing with the services of the petitioner as a Junior Trust Counsel, is invalid and ineffective in law as neither the Chairman, Lahore Improvement Trust nor the Government had passed order of removal. It was argued that there has to be an order of removal and as there is none, the petitioner continues to hold the office of the Junior Trust Counsel. In the alternative, it was argued that the removal could not take place or ordered without providing an opportunity of hearing in view of the provisions contained in rule 19 of the Punjab Town Improvement Trust Service Rules, 1945, as well as in view of the principle of natural justice. Moreover, the plea of re-organization of the Law Department necessitating the abolition of posts was a mere pretext or contrivance to remove the petitioner from service and, as such, the termination of services of the petitioner on the ground of abolition was illegal and unauthorized in law.

5. In reply, Mr. M. M. Saeed Baig appearing for the Government and Mr. Saeed Akhtar appearing for the Trust argued that the decision to dispense with the services of the petitioner was taken by the Trust in its resolution approved in the meeting held on 28th May, 1969 as' a necessary consequence of the decision to abolish the post and, as such, with the passing of that resolution, the employment of the petitioner came to an end. It was further argued that sanction or approval of the Government was not required for dispensing with the employment of the petitioner as the post itself was abolished but the approval was, however, obtained and accorded in view of the fact that the appointment of the petitioner was got approved by the Trust after enforcement of the West Pakistan Autonomous Bodies (Appointment and Removal of Legal Advisors) Ordinance, 1965. On the above premises, it was argued that it was not correct -to say that no order exists terminating or dispensing with the services or employment of the petitioner. It was submitted that the Trust acts through resolutions and the resolution dated 28th May, 1969 was sufficient in law to terminate the employment of the petitioner and, in any case, the letter dated 25th June, 1969 issued by the Chairman, Lahore Improvement Trust intimating the petitioner that his services have been dispensed with, was effective in la*. It was further argued that the employment of the petitioner with the Trust was of purely contractual nature and assuming there was any violation of any contractual terms, the remedy lies in filing a suit for damages and that constitutional jurisdiction cannot be invoked. Learned counsel for the respondent further argued that the service rules 1945 do not apply and the principle of natural justice of providing an opportunity of hearing was also not applicable.

6. The plea taken by the learned counsel for the petitioner that there exists no order terminating the services of the petitioner is without merit. The resolution dated 28th May, 1969 is by itself sufficient to terminate the employment of the petitioner as it was resolved therein to abolish the post of Junior Counsel held by the petitioner. It cannot be denied that the Trust acts and speaks through resolutions and that the said resolution was passed in accordance with law. The Trust under section 17 of the Punjab Town Improvement Act, 1922, has the power to employ such servants as it may deem necessary and proper to assist in carrying out the purposes of the Act. This power is subject to such rules as the Provincial Government may make under clause (iii) of section 73. The Punjab Town Improvement Trust Service Rules framed under section 73, however, do not provide for the appointment of Legal Advisors. Part II of these Rules deals with suspension and removal of officers and servants. Rule 13 of the Rules provides that no order of dismissal or removal for misconduct shall be passed against an officer or servant of a Trust unless he- has been given a reasonable opportunity of showing cause against the action proposed to be taken against him. Rule 19 deals with removal other than dismissal and provides that in case of removal of any officer or servant, it shall not be necessary to hold any detailed enquiry but the explanation of the person con cerned shall be taken before final orders are passed and that in the absence of a written contract to the contrary, every officer or servant removed under this rule shall be entitled to one month's notice before removal or one month's wages in lieu thereof. Learned counsel for the petitioner relied on this rule for contending that the petitioner being an officer/servant of the Trust, could not be removed from service without affording an opportunity to explain. The reply made was that the petitioner was not an officer or servant of the Trust and that his employment was purely of contractual nature and, as such, rule 19 did not apply. In view of the above controversy, it is necessary to determine the nature of the employment of the petitioner. In this respect, the averments made in the petition being relevant may be noted. In para. 5 it was stated that the petitioner was given the whole-time job as a Legal Advisor. In para. 11 (a) it was asserted that the petitioner being a permanent employee was governed by the Punjab Town improvement Trust Service Rules, 1945 and then in para. 11 (c) it was stated that the Trust had been maintaining the Service Book of the petitioner. Beyond this, there is nothing on record to establish the nature of employment of the petitioner. The power to employ servants vests in the Trust under section 17 of the Punjab Town Improvement Act, 1922. The Rules of 1945, as noted above, do not provide for the appointment of Legal Advisors for the Trust. Section 96 confers power on the Chairman of the Trust, subject to the control of the Trust, to obtain such legal advice and assistance as be may from time to time deem necessary or expedient to obtain. As regards the petitioner, his appointment was approved firstly by the Trust vide resolution dated 30th October, 1964 on payment of Rs. 600. The appointment as a Junior Counsel was confirmed vide resolution- dated 25th July, 1967. Remuneration was then increased to Rs. 800 vide resolution dated 30th June, 1967. The arrangement so approved in the absence of any other relevant material is to-be, by its very nature, treated a: contractual. It will be noted that Municipal Committees, where there are Statutory Rules i.e. West Pakistan Municipal Committee Legal Advisors Rules, 1964, rules, statutory or non-statutory, regarding the posts of legal advisors of the Trust, do not exist. Reference may also be made at this stage to the case of Fayyaz Hussain Qadri v. Administrator, Lahore Municipal Corporation (P L 0 1972 Lain. 310,) whereby producing evidence it was established that the petitioner, the Legal Advisor in that case, was also entitled to free medical aid like all other municipal servants; he could not leave station unless he had obtained leave and was governed by the same terms as to casual or sick leave as other municipal servants; the legal advisor had also the power to sanction expen diture upto Rs. 20 at a time; to grant casual leave to subordinate staff of the Law Branch; to write confidential reports of the members of the said Branch; and was responsible for the efficient working of the Law Branch. He was also entitled to TA/DA allowances as admissible to other municipal servants in the event he was to go out of station on official duty; he was paid the salary in accordance with the procedure which was adopted for payment to other municipal servants and that he had also to submit monthly pay bills on the prescribed forms duly signed by him which were checked by the Accounts Branch and audited by the Auditor, and income-tax was also being deducted from his salary. The posts of Legal Advisor and of Additional Legal Advisors were also borne on the Schedule of establishment drawn up by the Municipal Committee in compliance with rule 2 of the Establishment Rules, 1964. It was on the basis of above factors that the learned fudges held that the incumbents of these posts i.e. Legal Advisors were as much municipal servants ' as other member of the establishment of the Municipal Corporation. In the instant case, however, no such material was placed on record and in the absence of the said material it cannot be held that the petitioner was a regular employee of the Trust. The employment of the petitioner as such was of contractual nature. This view gets support from the fact that the employment of the petitioner was termed as that of Junior Trust Counsel and in that capacity he continued to appear as a counsel for the Trust before the Courts. In the representation (Annexure O) he himself submitted that some 250 cases were pending with him in various Courts of original and appellate jurisdiction. Had he been employed as a regular B servant or employee of the Trust, he could not have continued to appear as a counsel before the Courts both original as well as appellate in view of the provisions of the Bar Councils' Act and the Rules made thereunder. The nature of employment thus being contractual, the petitioner is not entitled to invoke constitutional jurisdiction of this Court. . I am fortified in this view by the judgment delivered in Fayyaz Hussain Qadri's case wherein it was observed that "there is distinction in cases of the employees of a statutory body acting in connection with the affairs of the Central or of a Provincial Government (like Universities, Board of Educa tion, Water did Power Development Authority etc.), whose terms and con ditions are regulated by a statute or the statutory rules, and those employees who work under contracts, and have thus the contractual terms and con ditions to govern them. An employee of the latter category cannot enforce his rights arising from the contract through a writ petition. His remedy is by way of a suit under the ordinary law of master and servant." With, this finding, the other argument that the petitioner was entitled to a show cause notice as his services were terminated on account of misconduct as the allegation of inefficiency was noted in the resolution, need not be answered. However, in view of the fact that detailed arguments were addressed on this question, I have considered this' submission also. I am off the view that dispensation of the employment cannot be termed as removal, for misconduct or on the ground of inefficiency as in the resolution it was stated that on account of unsatisfactory work of these Junior Counsel, it was, felt that these posts be abolish. It will be noted that no specific allegation was made against the petitioner or the other Junior Counsel. The remarks made appear to be the assessment of the employer of the working and of the standard of performance of the whole-time Junior Counsel. Such an assessment made while formulating and taking policy decision cannot be said to involve any penalty or prejudicial action as against any employee. To my mind, assessment in respect of the overall performance of a branch, wing, agency, arrangement, department or number of employees can legitimately be made by any employer in exercise of inherent right of management. It was on account of this assessment that re-organization of the arrangements made for looking after the legal work and litigation of the Trust was considered necessary. Such a policy decision containing assessment with regard to the working of the existing arrangement does not involve any element of penalty and, as such, neither the principle of natural justice of affording opportunity of hearing nor the provisions of rule 19 of the Trust Service Rules were applicable.

7. This petition is also bound to fail on account of laches and inordinate delay. The order dispensing with the services was conveyed vide letter dated 25th June, 1969 but the writ petition was filed on 2^nd April, 1973. This inordinate delay in filing the petition has been explained by stating that the appeal filed by the petitioner was rejected vide appellate order dated 3rd February, 1973. The petitioner had in fact submitted a representation under section 21-A of the Town Improvement Act, 1922, against the resolution dated 28th May, 1969. It was conceded during arguments that no appeal is provided against the resolution dated 28th May, 1965 passed by the Trust. Moreover, the petition under section 21-A of the Town Improvement Act filed with the Secretary, Local Government was incompetent in law. It was held in Fayyaz Husain Qadri's case with reference Articles 73 and 76 of the Basic Democracies Order read with sections 110 and 111 of the Municipal Administration Ordinance that the general power contained in the aforesaid provisions with regard to supervision cannot M invoked to negative the right of the Municipal Corporation to remove person under Article 45 (4) of the Basic Democracies Order. The provision of section 21-A invoked by the petitioner by submitting the representation also contains such like powers of supervision as were under discussion is Fayyaz Husain Qadri's case. The provisions of section 21-A as such were not available to negative the right of the Trust to remove a person employee under section 17 of the Act.

8. Bet hat as it may, the approval to the termination of the service was accorded by the Law Department but the petitioner submitted a representation to the Secretary, Local Government Department and then bi kept on waiting for the result thereof for almost four years. So, the period taken in filing the so-called appeal and in waiting for its result cannot excluded. The principle of laches is to be applied strictly in service matter and, as such, in these circumstances, the time taken in approaching this Court cannot be condoned.

9. For all these reasons, this constitution petition fails and i dismissed. The parties are, however, left to bear their own costs.

A. B. Petition dismissed

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