Stereo.HCJDA 38.

Judgment Sheet
IN THE LAHORE HIGH COURT
BAHAWALPUR BENCH, BAHAWALPUR
JUDICIAL DEPARTMENT
….
ICA No.123 of 2014

Saeed Ahmed Sheerazi …….…………....…Petitioner.

VS
Government of Punjab etc...………..….…Respondents.

JUDGMENT
Date of hearing: 22.12.2014
Petitioner by: Mr. Muhammad Atif Qureshi,
Advocate.
Respondents by: Mr. Tahir Saeed Ramy. Addl.
A.G.

MIRZA VIQAS RAUF, J. The instant intra court appeal

is directed against the judgment dated 9th of December, 2014
passed by the learned Single Judge in Chambers, dismissing the
Writ Petition No.838 of 2013 filed by the appellant.

2. The facts necessary for the adjudication of instant appeal

are that the appellant feeling aggrieved of the order dated 8 th of
January, 2013 passed by the respondent No.1 preferred Writ
Petition No.838 of 2013. It was asserted in the writ petition that
the petitioner was inducted into service as Naib Qasid on
contract basis and from the date of his appointment he worked
Intra Court Appeal No.123 of 2014 -2-

with best of his ability. It was further averred that the Federal
Government had selected him for Khuddam-ul-Hajjaj for Hajj
period 2010-2011 and after fulfillment of all codal formalities,
he performed Hajj after depositing all the expenses. It was
further asserted in the writ petition that due to political pressure,
respondent No.2 issued show cause notice to the petitioner and
without affording him any opportunity of hearing, his services
were terminated vide order dated 14th of May, 2011. The
petitioner asserted that against the order of termination, he filed
an appeal before the respondent No.2 which was kept pending
by the said respondent, however with the intervention of this
Court, respondent No.2 finally decided his appeal by way of
order dated 8th of January, 2013. The learned Judge in
Chambers, after hearing both the sides dismissed the writ
petition by way of order dated 9th of December, 2014 by holding
that since the petitioner was on contract employment which has
been completed, so he has got no vested right to remain in
service. It was further held that no infringement of vested right
of the petitioner has been established.

3. Before us learned counsel for the petitioner contented that

the impugned judgment is contrary to law and is not sustainable.
He further maintained that the appellant was selected after
fulfillment of all the codal formalities and his contract was also
extended for further period. He maintained that due to length of
service, the appellant has a right to be regularized in his service
in terms of government policy. Learned counsel for the
appellant further contended that the learned Single Judge, while
dismissing the writ petition filed by the appellant has completely
misread the material available on the record. He added that the
Intra Court Appeal No.123 of 2014 -3-

judgment impugned is against the settled principles of law and

thus not tenable.

4. Conversely the learned Law Officer appearing on behalf

of the respondents submitted that the appellant was a contract
employee and he was having no vested right to be regularized or
kept in service more than the period for which he was
appointed. He further added that the services of the appellant
were terminated after observing all the codal formalities as the
petitioner remained absent from duty w.e.f. 1st of April, 2011 to
21st of April, 2011.

5. We have heard the learned counsel for the petitioner as

well as the learned Law Officer and perused the record with
their assistance.

6. Record reveals that the petitioner was appointed vide

letter No.2575-98/DO/OFWM/RYK dated 27.06.2005 as Naib
Qasid on contract basis by the District Officer on Farm Water
Management Rahim Yar Khan. The employment period of the
petitioner was extended from time to time, however he absented
himself from the duty w.e.f. 1st of April, 2011 to 21st of April,
2011 without obtaining any formal leave. Show cause notice
was issued to him on 4th of May, 2011 upon which he was also
afforded an opportunity of personal hearing on 12th of May,
2011. The Competent Authority vide its order dated 14th of
May, 2011 proceeded to terminate the contract service of the
appellant, on account of inefficiency, misconduct and absence
from the duty. The appellant filed an appeal before the
respondent No.2 challenging the order of his termination but the
same was dismissed vide order dated 8th of January, 2013.
Intra Court Appeal No.123 of 2014 -4-

Before dilating upon the merits of the case, we would like to

embark upon the question of maintainability of instant appeal in
the light of available record. The instant appeal has been
preferred in terms of Section 3 of the Law Reforms Ordinance,
XII of 1972 which reads as under :

“Appeal to High Courts in certain cases.

(1) An appeal shall lie to a Bench of two or

more Judges of a High Court from a decree passed
or final order made by a single Judge of that
Court in the exercise of its original civil
jurisdiction.
(2) An appeal shall also lie to a Bench of two or
more Judges of a High Court from an order made
by a Single Judge of that Court under [clause (1)
of Article 199 of the Constitution of the Islamic
Republic of Pakistan] not being an Order made
under sub-paragraph (i) of paragraph (b) of that
clause:
Provided that the appeal referred to in this
sub-section shall not be available or competent if
the application brought before the High Court
under Article [199] arises out of any proceedings
in which the law applicable, provided for at least
one appeal [or one revision or one review] to any
Court, Tribunal or authority against the original
order.

(3) ………….

(4) ………….”
Intra Court Appeal No.123 of 2014 -5-

7. Bare reading of the above provision of law, clearly

postulates that the appeal referred to in this Section shall not be
available or competent if the appellant filed the petition before
the High Court under Article 199 against the order which arises
out of any proceedings in which the law applicable provided for
at least one appeal or one revision or one review to any Court,
Tribunal or authority against the original order. The appellant in
the first instance, challenged his termination order through an
appeal before respondent No.2 which was dismissed by way of
order dated 8th of January, 2013 and the petitioner challenged
the said order through writ petition. Thus in presence of remedy
of appeal against the original order of termination dated 14th of
May, 2011, instant intra court appeal is not competent before
this Court. Reliance in this regard can safely be placed on the
case of Mst. Karim Bibi and others Vs. Hussain Bakhsh and
another (PLD 1984 Supreme Court 344). The relevant extract
of the same is reproduced below :

“A plain reading of the proviso to subsection (2) of

section 3 of the Law Reforms Ordinance means
that no appeal will be available or competent
before a Bench of two or more Judges of a High
Court from an order made by a Single Judge of
that Court in a Constitutional Petition, if such
petition arises out of “any proceedings” in which
the law applicable provided for at least one appeal
against the original order. The reference is clearly
to the proceedings taken under any statue which
prescribes a hierarchy of officers or authorities for
the carrying into effect the purposes of such statue
Intra Court Appeal No.123 of 2014 -6-

including the enforcement of rights, if any, created

thereunder. In such a case clearly the law
envisages an original order against which the
remedy of appeal was provided by the relevant
statue. In the facts of the present case the relevant
statue is the Displaced Persons (Compensation
and Rehabilitation) Act, 1958 which had created a
hierarchy of officers to deal with the rights created
thereunder in favour of persons entitled under the
said Act and the Schemes framed thereunder, inter
alia, to the transfer of erstwhile Evacuee
Properties from the compensation pool of such
properties constituted under the provisions of the
Act. By section 19 of the said Act a right of appeal
was provided to the next higher officer in rank
from the original order passed by an officer of the
settlement establishment. Apart from the remedy
of appeal so provided the Act also vested powers of
revision in the higher officers of the settlement
establishment under section 20 as well as the
power of review. However, by the Evacuee
Property and Displaced Persons Laws
(Amendment) Act, 1973 which came into force on
30-7-1973 section 19 of the Displaced Persons
(Compensation and Rehabilitation) Act, 1958 was
omitted with the result that remedy of appeal was
abolished with effect from the said date. The
Constitutional Petition was filed by the first
respondent hereinbefore the High Court much
later on 8-12-1973 which was allowed by the
Intra Court Appeal No.123 of 2014 -7-

learned Single Judge on 8-7-1974. The Letters

Patent Appeal, as already stated, was presented by
the appellants in the High Court on 31-8-1974. It
is urged on behalf of the appellants that the
relevant date for the application of the proviso to
subsection (2) of section 3 of the Law Reforms
Ordinance would be the date on which the
Constitutional Petition was filed in the High Court
and construing the provisions of the proviso
accordingly, the Letters Patent Appeal was
competent in law inasmuch as, on that date no
appeal lay from the original order passed in the
proceedings. It was further argued that the word
“proceedings” occurring in the proviso is used in
the restricted sense and would connote, in the
present case, the proceedings commenced by the
Additional Settlement Commissioner by issuing
notice of the suo motu revision to the parties and
as there was no appeal provided against the order
passed in suo motu revision, in terms of the
proviso the Letters Patent Appeal was competent.
Learned counsel for the appellants also advanced
an alternative argument that the proceedings in
the case had arisen out of the order of the
Additional Settlement Commissioner passed on 24-
11-1973, at which time the Displaced Persons
(Compensation and Rehabilitation) Act, 1958 was
amended taking away the right of appeal.
Intra Court Appeal No.123 of 2014 -8-

After giving our anxious consideration to the

arguments urged in support of this appeal we are,
however, not impressed by any of the contentions
raised. The test laid down by the Legislature in the
proviso is that if the law applicable to the
proceedings from which the Constitutional
Petition arises provides for at least one appeal
against the original order, then no appeal would
be competent from the order of a Single Judge in
the constitutional jurisdiction to a Bench of two or
more Judges of the High Court. The crucial words
are the “original order”. It is clear from the
wording of the proviso that the requirement of the
availability of an appeal in the law applicable is
not in relation to the impugned order in the
Constitutional Petition, which may be the order
passed by the lowest officer or authority in the
hierarchy or an order passed by higher authorities
in appeal, revision or review, if any, provided in
the relevant statue. Therefore, the relevant order
may not necessarily be the one which is under
challenge but the test is whether the original order
passed in the proceedings subject to an appeal
under the relevant law, irrespective of the fact
whether the remedy of appeal so provided was
availed of or not. Apparently the meaning of the
expression “original order” is the order with
which the proceedings under the relevant statue
commenced. The word “proceedings” has been
used in different enactments and has been subject
Intra Court Appeal No.123 of 2014 -9-

to judicial interpretation in a number of cases

wherein it has received either restricted or wide
meaning according to the text and subject-matter
of the particular statue. I do not consider it
necessary to notice the various judgments in which
this word was so construed. Suffice it to refer to
the case of Nawab Din v. Member Board of
Revenue (1) in which this Court had occasion to
examine the scope and meaning of the word as it
occurs in section 2 (2) of the Evacuee Property
and Displaced Persons Laws (Repeal) Act, 1975. A
useful discussion will be found in this case with
reference to precedents as the meaning of the term
“proceedings”. An earlier case of Jan Muhammad
and another v. Home Secretary, West Pakistan
and others (2) was referred to in this connection
and the view taken therein was declared by this
Court as the correct enunciation of the law on the
subject. In the latter case reference was made to
the definition of the term “proceedings” in the
book “Words and phrases” which may usefully be
reproduced as under ;

“The term ‘proceedings’ is a very

comprehensive term, and, generally
speaking, means a prescribed course of
action for enforcing a legal right, and hence
it necessarily embraces the requisite steps by
which judicial action is invoked. A
‘proceedings’ would include every step taken
Intra Court Appeal No.123 of 2014 -10-

towards the further progress of a cause in

Court or before a Tribunal, where it may be
pending. It is the step towards the objective
to be achieved, say for instance the judgment
in a pending suit. The proceeding
commences with the first step by which the
machinery of the law is put into motion in
order to take cognizance of the case. It is
indeed a comprehensive expression and
includes all possible steps in the action
under the law, from its commencement to
the execution of the judgment.”

Thus in the light of above discussion we were of the considered

view that the instant intra court appeal is not competent in terms
of Section 3 of the Law Reforms Ordinance, 1972.

8. Adverting to the merits of the case, it is observed that the

status of the appellant was a contract employee. He was
employed in the year 2005 and later on his employment period
was extended from time to time but his status did not change
with these extensions and he will remain as a contract employee
which is even otherwise admitted position on the record.
Learned Law Officer appearing on behalf of the respondents has
also submitted that the project for which the services of the
petitioner was hired that has ended. The services of the appellant
were terminated on account of his willful absence after issuance
of show cause notice and after affording him opportunity of
personal hearing. Though he has remained in employment for
about six years but his status never changed and he remained
employee of the respondents on contract basis. Dismissal from
Intra Court Appeal No.123 of 2014 -11-

employment before expiry of period of service even did not

equip the petitioner with the right to challenge the same through
constitutional petition. He can at the most, claim damages to the
extent of unexpired period of his service if the concerned court
reaches at the conclusion that his termination was illegal and
unlawful. Reliance in this regard can be placed on the case of
Federation of Pakistan through Secretary Law Vs.
Muhammad Azam Chattha (2013 SCMR 120). The Hon’ble
Supreme Court of Pakistan in the case supra has laid down the
following principles :

“It is not only the respondent whose notification of

the appointment was declared unconstitutional but
there were so many others along with him, as is
evident from the notification dated 10-11-1996,
referred to hereinabove, whose services were
terminated. So it is abundantly clear that
respondent lost his job because of the judgment of
the Lahore High Court and for this reason alone,
perhaps he had not challenged the order of
termination of his contract before any forum for a
considerably long period. The question is that a
person whose fate has been so determined,
although he was a contract employee, had no legal
entitlement to continue in contract employment
because subject to holding him entitled to draw
salary in lieu of the notice period, he could not
have agitated the matter in any manner. In
addition to it, it is a cardinal principle of law that a
contract employee instead of pressing for his
Intra Court Appeal No.123 of 2014 -12-

reinstatement to serve for the leftover period can at

best claim damages to the extent of unexpired
period of his service.”

9. Similarly in the case of Abid Iqbal Hafiz and others Vs.

Secretary, Public Prosecution Department, Government of the
Punjab, Lahore and others (PLD 2010 Supreme Court 841).
The Hon’ble Apex Court held that after having been accepted
the conditions of service, the petitioners had no locus standi to
file the writ petitions seeking writs of prohibition and
mandamus to the respondents to refrain from terminating their
services and to retain them on their present posts on regular
basis. The relevant extract of the said judgment for the case in
hand is reproduced below :

“The action impugned before the High Court was

taken by the Government, not at its own, but in
pursuance of the orders of the High Court. Having
accepted the said conditions of service, the
petitioners had no locus standi to file the writ
petitions seeking writs of prohibition and
mandamus to the respondents to refrain from
terminating their services and to retain them on
their present posts on regular basis, which the
learned Full Bench of the Lahore High Court
rightly declined to issue. Further, it was argued by
some of the counsel before the Full Bench of the
Lahore High Court that since their
clients/petitioners had been cleared/retained by the
Committee, they would continue in service for the
period of the contract appointment, i.e. until the
Intra Court Appeal No.123 of 2014 -13-

arrival of the selectees of the Commission or those

of the Committee. Such an argument was
destructive of the plea of the learned counsel for
the petitioners before us that the Department was
debarred from making temporary/officiating
appointments for a long period with mala fide
intention in the light of the law laid down in Abdul
Majid Sheikh’s case (supra) and Jafar Ali Akhtar
Yousafzai v. Islamic Republic of Pakistan PLD
1970 Quetta 115 and later turning up to terminate
their services on the eventualities, which were
their own creation.”

10. In the light of principles laid down by the Hon’ble

Supreme Court of Pakistan in the matters relating to the
contractual employment and the available record, we are of the
considered view that while dismissing the writ petition filed by
the appellant, the learned Judge in Chambers has acted in
accordance with law and no illegality whatsoever has been
committed while dismissing the writ petition. The appellant,
being the employee on contract basis cannot claim to be retained
in service for a longer period than as prescribed in the contract
of his service. The appellant was even otherwise proceeded due
to his willful absence and the authorities, after due diligence
exercise their powers to terminate his service. When once the
terms of service have been accepted by the appellant, he cannot
wriggle out of the same as he has even otherwise now estopped
by his words and conduct to challenge the said terms and
conditions.
Intra Court Appeal No.123 of 2014 -14-

11. The nutshell of the above discussion is that the appellant

was having no vested right to plead through the writ petition
which was rightly dismissed by the learned Single Judge in
Chambers. The instant appeal is incompetent as well as without
any merit and is, therefore, dismissed in limine without any
order as to costs.

(SHAHID BILAL HASSAN) (MIRZA VIQAS RAUF)

JUDGE JUDGE

Shahbaz Ali*

Approved For Reporting

(MIRZA VIQAS RAUF)

JUDGE