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Petitioner: Anjum Badar VS Respondent: Province Of Sindh through Chief Secretary and 2 others
Court Name: Sindh High Court Judge(s): Nadeem Akhtar, Adnan-ul-Karim Memon Title: Anjum Badar vs Province Of Sindh through Chief Secretary and 2 others Case No.:Constitutional Petitions Nos. D-6241, D-828, D-5115 of 2016, D-2683, D-4516,
JUDGMENT
Reported As: 2021 PLC (C.S.) 1040, PLD 2021 Sindh 328 Result: Petitions dismissed Judgment JUDGMENT NADEEM AKHT AR, J.---Through these Constitutional Petitions filed by the petitioners under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, they have prayed that their temporary contractual appointments/services be regularized in BPS-17 under section 3 of The Sindh (Regularization of Ad hoc and Contract Employees) Act, 2013 (' the Act of 2013' ). All these petitions were heard together and are being disposed of by this common judgment as common questions of law and facts are involved therein. Before unpacking the questions raised on behalf of the petitioners, it may be observed that all the said questions have already been set at naught by the Hon'ble Supreme Court through various authoritative pronouncements. However , learned counsel for the petitioners insisted that the said authorities were inapplicable to their cases as the facts and circumstances therein were distinguishable from those in their cases, or some of the authorities are in their favour . Accordingly , full opportunity was afforded to them on several dates of hearing to make their respe ctive submissions. In the above circumstances, we deem it appropriate to record their submissions in this judgment which has made it a bit lengthier than expected. 2. The Act of 2013 came into force on 25.3.2013. It is the case of the petitioners, who were admittedly appointed on contract as temporary employees, that by virtue of Section 3 of this Act, they have acquired vested right for being regularized as a regular/permanent employee and they should be deemed to have been validly appointed on regular basis. The said Section 3 of the Act of 2013 reads as under : "3. Regularization of Services of employees--- Notwithstanding anything contained in the Act or rules made thereunder or any decree, order or judgment of a court, but subject to other provisions of this Act, an employee appointed on ad-hoc and contract basis or otherwise (excluding the employee appointed on daily wages and work-
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charged basis), against the post in BS-1 to BS-18 or equivalent basic scales, who is otherwise eligible for appointment on such post and is in servi ce in the Government department and it's project in connection with the affairs of the Province, immediately befor e the commencement of this Act, shall be deemed to have been validly appointed on regular basis." 3. In order to keep our focus on the main questions involved in these petitions, we have formulated them as under: A. Whether temporary employees appointed on contract in BS 16 and above can be deemed to have been validly appointed on regular basis, without going through the competitive process of selection through the Sindh Public Service Commission, merely in view of Section 3 of the Act of 2013? B. Whether the mandatory requirement of competitive process of selection only through the Sindh Public Service Commission for appointments in BS 16 and above, which is the command of the Constitution and specific direction to the Government of Sindh by the Hon'ble Supreme Court, can be waived, relax ed, done away with, exempted and or bypassed in view of Section 3 of the Act of 2013? C. Whether the petitioners have any vested right for regular appointment, or to claim regularization, or to approach this Court in its constitutional jurisdiction to seek redressal of their grievance relating to regularization; and, is there any corresponding legal duty cast on the Government of Sindh to appoint them on regular basis? If no, then can a writ of mandamus to this ef fect be issued against the Government of Sindh? D. Whether Section 3 of the Act of 2013, to the extent of regulariza-tion/appointment in BS 16, 17 and 18 without the mandatory competitive process of selection through the Sindh Public Service Commission, is ultra vires the Constitution and against the law laid down and the direction given by the Hon'ble Supreme Court to the Government of Sindh in Ali Azhar Khan Baloch and others v . Province of Sindh and others 2015 SCMR 456 . 4. On 02.03.2020, the following order was passed in these petitions: "Learned counsel for the petitioners, who are seeking regularization of their services in BS-17 under section 3 of the Act of 2013, is put on notice to satisfy the Court on the next date regarding maintainability of these petitions in view of Ali Azhar Khan Baloch and others v. Province of Sindh and others 2015 SCMR 456, wherein Hon'ble Supreme Court was pleased to hold, inter alia, that the Rules of 1974 require that a post of BS-17 can only be filled through Public Service Commission (PSC) after advertisement; the Sindh Government and or the competent authority cannot bypass this mandatory requirement and substitute a parallel mechanism to appoint a person in BS-16 to BS-22 against the said Rules; Article 242 of the Constitution provides the mechanism for appointment of a civil servant through PSC; the Sindh Government through executive or legislative instruments cannot withdraw any post from the purview of the PSC; and, the Sindh Government shall make all the appointments in BS-16 to BS-22 through PSC. Learned Advocate General Sindh is also put on notice to satisfy the Court on the next date regarding vires of Section 3 of the Act of 2013, which, prima facie, appears to be in clear conflict with the above mentioned authority of the Hon'ble Supreme Court to the extent of regularization of service in BS-16 and above. Let notice under Rule 1 of Order XXVII-A, C.P .C. be issued to learned Advocate General Sindh." 5. Mr. M. M. Aqil Awan, learned counsel for the petitioners in C.Ps. Nos. D-6241/2016, D-2732/2017, D-7376/2019, and D-4292/2020, contended that there is no cavil to the legal position that recruitment to the posts of BS-16 and above are to be made through the Sindh Public Service Commission ('the Commission '); to regulate the terms and conditions of service of a civil servant, special service laws and rules framed thereunder are in the field; under section 2(1)(b)(ii) of The Sindh Civil Servants Act, 1973 ('the. Act of 1973' ), a contract employee is not a civil servant;, it was held in Administrator Lucky Marwat v. Izzat Khan 2000 SCMR 777, that a contract employee, not being a civil servant, was not amenable to the jurisdiction of Service Tribunal and the same view was taken in Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary , Ministry of Defence and others PLD 2006 SC 602; therefore, to hold that a contract employ ee can be regularized through the Commission would only be possible if it is first held that a contract employee is a civil servant, and if that is not possible in law, then such proposition cannot be put forward; in the last 73 years of judicial history of the country , there is no rule, law or precedent whereby contract employees of Grade 16 and above can be regularized only through the Commission; under dispensation of the service laws enacted under the command of Article 240 of the Constitution,
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a contract employee, not being a civil servant, is not to be governed by the service laws; selection of contract employees in BS-16 to BS-18 through the Commission is barred under Rule 4 of the Sindh Public Service Commission (Function) Rules, 1990; as there is no concept of a Scrutiny Committee in the Act of 2013, constitution/composition of such committe e and the findings/decision thereof would be ultra vires the Act of 2013; even otherwise reliance of the respondent-Government on the objections/findings of the Scrutiny Committee does not fall within the ambit of 'eligibility and fitness'; and, as vires of Section 3 of the Act of 2013 are not under challenge before this Court, this Court cannot look into the vires of the said Section suo motu . 6. It was further submitted by Mr. Awan that as the cases of the petitioners square ly fall within the ambit of the Act of 2013, their services are to be regularized under Section 3 thereof which specifically provides for regularization of employees who were appointed either on contract or ad-hoc basis and were holding such posts before the commencement of the Act of 2013; it would be a clear case of discrimination if the law passed by the Provincial Assembly is not applied equally to similarly placed persons as numerous employees have already been regularized, but their regularization was not opposed or challenged by the Provinci al Government; the respondents cannot approbate and reprobate in the same breath as they have already regularized the services of numerous employees falling under Section 3 of the Act of 2013; the respondent-Government is precluded at this belated stage from raising any objection with regard to the regularization of the petitioners; the petitioners did not lack the requisite qualification, therefore, the respondents cannot be allowed to take benefit of the irregularity , if any, committed by them at the time of their appointments; the petitioners cannot be blamed or penalized because primarily the authority who had exceeded or misused its powers, for reasons known to it, is bound to be held responsible for the same instead of penalizing the petitioners who accepted the employment in good faith to earn a livelihood to support their families; it has been held by the Hon'ble Supreme Court that instead of removing the employees from service, action should be taken against the authority who had committed irregularity in their appointment; abuse of discretion by a public functionary violates Article 4 of the Constitution as it impairs due process and the right of a person to be treated in accordance with law; the present situation created by the respondents. is a glaring example of lack of application of mind resulting in abuse of discretion by the appointing authority; a vested right has accrued in favour of the petitioners and subsequent requisitions in the ordinary course to re-advertise the vacancies would, on the one hand, frustrate the basic object of the Act of 2013, and on the other hand, would deprive the petitioners of their jobs; after having successfully served for a considerable period, if the petitioners are removed from service, they shall be seriously prejudiced; it is well-settled that major penalty of dismissal from service cannot be awarded without a full-fledged inquiry in accordance with law; and, there was/is no inherent disqualification in the candidature or appointment of any of the petitioners and they have undergone the process of training and have acquired the requisite expertise in their field, therefore, they are required to be regularized as provided in Section 3 of the Act of 2013. 7. In support of his above submissions, Mr. M. M. Aqil Awan placed reliance on (1) Government of KPK v. Adnanullah 2016 SCMR 1375 , (2) Government of N. W.F.P. (Now KPK) through its Chief Secretary v. Kaleem Shah 2011 SCMR 1004 , (3) Ghulam Mustafa v. Omaid Ali 1984 SCMR 1126, (4) Miss Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416, (5) Director , Social Welfare, N. W.F. P., Peshawar v. Sadullah Khan 1996 SCMR 1350 , (6) Chairman, Minimum Wage Board, Peshawar v. Fayyaz Khan Khattak 1999 SCMR 1004 , (7) Muhammad Akhtar Shirani v. Punjab Textbook Board 2004 SCMR 1077 , (8) Federation of Pakistan v. Gohar Riaz 2004 SCMR 1662, (9) Muhammad Ashraf Tiwana v. Pakistan and others 2013 SCMR 1159, (10) Government of N.W.F.P. through Secretary , Education Department, Peshawar v. Qasim Shah 2009 SCMR 382, (11) Sumara Umar Awan v. Chancellor Gomal University , D.I. Khan 2014 PLC (CS) 526, (12) Rafaqat Ali v. Executive District Officer (Health) 2011 PLC (C.S.) 1615 , (13) Shabana Akhtar v. District Coordination Officer , Bhakkar 2012 PLC (C.S.) 366, (14) Shahid Habib v. Government of Khyber Pakhtunkhwa 2019 PLC (C.S.) 1426 and Suo Motu Action Regarding Eligibility of Chairman and Members of Sindh Public Service Commission etc . 2017 SCMR 637 . 8. Messrs Abdul Salam Memon, Malik Naeem Iqbal, Ali Asadullah Bullo, Faizan Hussain Memon, and Altaf Ahmed Sahar , learned counsel for the petitioner s in other petitions, adopted the arguments advanced by Mr. M. M. Aqil Awan by contending that the learned senior counsel has extensively argued the matter by covering every aspect of
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the case. It was, however , added by them that the main question of regularization involved in these cases has already been decided by a learned Division Bench of this Court in the case of Dr. lqbal Jan and others v. Province of Sindh and others 2014 PLC (C.S.) 1153, by holding, inter alia, that the petitioner s therein shall be deemed to have been validly appointed on regular basis under Section 3 of the Act of 2013. It was also contended by them that it would be prejudicial to the petitione rs if they are not regularized at this stage after serving for a considerable period and after spending the prime period of their professional life with the respondents. According to them, if the petitioners are not regularized and their services are eventually dispensed with, they will not be able to seek fresh employment at any other place, and in such an eventuality their professional career will come to an end much prior to their expected age of superannuation. 9. Mr. Salman Talibuddin, learned Advoca te General Sindh, submitted that since he is on notice under Order XXVII- A, C.P.C., he was bound to assist the Court on the above point irrespective of the fact that he was representing the Government of Sindh. He candidly conceded that under section 2(1)(b)(ii) of the Act of 1973, employees appointed on contract are not civil servants, and they cannot be regularized in BS-16, 17 and 18 under Section 3 of the Act of 2013. He submitted that contractual appo intments violate the rule of seniority , which has been strongly deprecated by the Hon'ble Supreme Court in various pronouncements. He further submitted that the word 'employee used in section 3 of the Act of 2013 refers only to such person who is otherwise eligible for appointment in BS 16, 17 and 18; and, in Ali Azhar Khan Baloch supra the Hon'ble Supreme Court has directed the Government of Sindh to make all appointments in BS 16 to 22 through the Commission and not otherwise. He also submitted that in view of the settled position as stated above, every post in BS 16 and above is required to be filled only through the prescribed competitive process. Mr. Talibuddin also submitted that appointments against permanent posts ought not to have been made on contract basis, and if such appointments were made for any reason, they cannot be regularized with retrospective effect. It was pointed out by him that ad-hoc appointment can still be made in BPS-17, however , with certain conditions as provided under Rules 18 to 20 of the Rules of 1974. He lastly submitted that regularization of the petitioners in BS 17 through the Act of 2013 would be in direct conflict with the law laid down by the Hon'ble Supreme Court. He prayed for the dismissal of all these petitions. 10. We have heard learned counsel for the petitioners and the learned Advocate General Sindh at great length and with their able assistance have minutely examined the material available on record and have also carefully gone through the case-law cited at the bar. Since only the questions of law are involve d in these petitions and all the petitioners are admittedly contractual employees, we need not discuss the facts of each case. 11. It is an admitted position that the petitioners are contractual employees and thus their status and relationship are regulated and governed by the principle of 'master and servant'. The Hon'ble Supreme Court has been pleased to hold in its numerous pronouncements that a contract employee, whose terms and conditions of service are governed by the principle of 'master and servant', does not acquire any vested right for regular appointment, or to claim regularization, or to approach this Court in its constitutional jurisdiction to seek redressal of his grievance relating to regularization; in fact he is debarred from approaching this Court in its constitutional jurisdiction and the only remedy available to him is to file a Suit for damages alleging breach of contract or failure on the part of the employer to extend the contract; after accepting the terms and conditions for contractual appointment, the contract employee has no locus standi to file a Constitutional Petition seeking writs of prohibition and or mandamus against the authorities from terminating his service and or to retain him on his existing post on regular basis; a contract employee, whose period of contract expires by efflux of time, carry no vested right to remain in employment of the employer and the courts cannot compel the employer to reinstate him or to extend his contract; and, no rights would accrue to a de facto holder of a post whose right to hold the said post was not established subsequently . In view of the above well-settled law consistently laid down by the Hon'ble Supreme Court, the petitioners, being contractual employees having no vested right for regular appointment or to seek regularization of their services, are debarred from invoking the constitutional jurisdiction of this Court. Thus, these petitions filed by them are not maintainable on this ground alone. 12. Our above view is fortified, inter alia, by Farzand Ali v. Province of West Pakistan PLD 1970 SC 98 Government of Balochistan, Department of Health, through Secretary Civil Secretariat, Quetta v. Dr. Zahida Kakar
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and 43 others 2005 SCMR 642, Dr. Mubashar Ahmed v. PTCL, through Chairman, Islamabad, and another 2007 PLC (C.S.) 737, Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879, Abid Iqbal Hafiz v. Secretary , Public Prosecution Departmen t, Government of Punjab, Lahore, and others PLD 2010 SC 841, Suo Motu Case No.15 of 2010 (In re; Sou Motu action regarding regularization of contract employees of Zakat Department and appointment of Chairman of Central Zakat Council ) 2013 SCMR 304, Qazi Munir Ahmed v. Rawalpindi Medical College and Allied Hospital through Principal and others 2019 SCMR 648, Province of Punjab through Secretary Agriculture Departmen t Lahore and others v. Muhammad Arif and others 2020 SCMR 507, Naureen Naz Butt v. Pakistan International Airlines 2020 SCMR 1625 , Government of Khyber Pakhtunkhwa, Workers Welfare Board, through Chairman v. Raheel Ali Gohar and others 2020 SCMR 2068 , and judgment dated 18.02.2021 pronounced in Civil Appeals Nos. 936 and 937 of 2020. 13. After holding as above, we need not dilate upon the other questions raised on behalf of the petitioners. However , as they were put on notice vide order dated 02.03.2020 to satisfy the Court as to how they could be regularized in the absence of the prescribed selection process through the Commission especially when the Government of Sindh was specifically directed by the Hon'ble Supreme Court to make all appointments in BS-16 to 22 only through the Commission, and notice under Rule 1 of Order XXVII-A, C.P.C. was also issued to learned Advocate General Sindh to satisfy the Court regarding vires of section 3 of the Act of 2013, being prima facie in conflict with the direction of the Hon'ble Supreme Court in Ali Azhar Khan Baloch supra to the extent of regularization of service in BS 16 and above, and both the sides have made their respective submissions in this regard at length, we deem it appropriate to discuss this issue as well. 14. In order to understand and appreciate the background in which the Commission was established, the reason of its establishment and its role and importance in the appointments in the civil service, it would be expedient to discuss the relevant provisions of law. Under Article 240 of the Constitution, the appointments of persons in the service of Pakistan and the conditions of their service shall be determined (a) by or under Act of Parliament in the case of the services of the Federation, posts in connection with the affairs of the Federation and all Pakistan Services; and, (b) by or under Act of the Provincial Assembly in the case of the services of a Province and posts in connection with the affairs of a Province. Article 242(1) of the Constitution provides that the Parliament in relation to the affairs of the Federation and the Provincial Assembly of a Province in relation to the affairs of the Province may, by law, provide for the establishment and constitution of a Public Service Commission. Sub-Article (2) of Article 242 provides that the Commission shall perform such functions as may be prescribed by law. Under Clause (b) of Article 240, The Sindh Civil Servants Act, 1973 (the Act of 1973) was enacted by the Provincial Assembly of Sindh for the appointments of persons in the service of the Province of Sindh and to regulate the terms and conditions of their service; and, in exercise of the powers conferred by section 26 of the Act of 1973, the Government of Sindh framed The Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 (the Rules of 1974). Rule 10 of the Rules of 1974, which deals with the initial appointment to the posts in BS 16 to 22, specifically provides that initial appointment to the posts in BS 16 to 22 "shall " be made (a) by the Commission on the basis of examination or test to be conducted by the Commission if the posts fall within the purview of the Commission; or in the manner as may be determined by the Government if the posts do not fall within the purvie w of the Commission. Likewise, The Sindh Public Service Commission Act, 1989, ('the Commission Act of 1989 ') was enacted by the Provincial Assembly of Sindh under Article 240(b) and in exercise of the powers conferred by Section 10 of this Act, the Government of Sindh made The Sindh Public Service Commission (Function) Rules, 1990 ('the Commission Rules of 1990' ). Rule 3(1)(i) of the Commission Rules 1990 provides that the Commission "shall", subject to other provisions of the Commission Rules 1990, conduct tests for initial recruitment to civil posts connected with the affairs of the Province in BS 16 to 22 except those specified in the Schedule. 15. Perusal of the above mentioned Rule 10 of the Rules of 1974 and Rule 3(1)(i) of the Commission Rules 1990 clearly shows that initial appointments to the posts in BS 16 to 22 are to be made only by the Commission on the basis of examination or test to be condu cted by it if the posts fall within its purview; and, because of the word "shall" used therein the intention of the legislature was to make this condition mandato ry. As the Act of 1973 and the Commission Act of 1989 were enacted by the Provincial Assembly of Sindh under the powers conferred upon it
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by Article 240(b) of the Constitution, and the Rules of 1974 and the Commission Rules' of 1990 were framed by the Government of Sindh under the Act of 1973 and the Commission Act of 1989, respectively , the Rules of 1974 and the Commission Rules of 1990 are to be deemed to have been made under the powers conferred by Article 240(b); and, due to this reason, the mandatory requirement of initial appointments to the posts in BS 16 to 22 only through the competitive process of selection by the Commission must be respected and treated as the command of the Constitution. Our above view is supported by Ali Azhar Khan Baloch supra wherein the Hon'ble Supreme Court was pleased to hold, inter alia, that the Rules of 1974 require that a post of BS-17 can only be filled through the Commission after advertisement; and, the Sindh Government and or the Competent Authority cannot bypass this mandatory requirement and substitute a parallel mechanism to appoint a perso n in BS 16 to 22 against the language of the Rules of 1974, which are framed under the dictates of the Act of 1973 as mandated under Article 240 of the Constitution. For the ease of convenience, paragraph 198 of the judgment pronounced in Ali Azhar Khan Baloch supra is reproduced here: "198. We may observe that on 6-5-2013, two C.M.As. numbered as 245/2013 and 247/2013, containing list of other nine persons who were also appointed as D.S.P . without recourse to the provisions contained in the Rules, 1974, along with the petitioner , were filed. The said Rules require that a post of BS-17 can only be filled through Public Service Commission after advertisement. The Sindh Government and or the Competent Authority cannot bypass this mandatory require ment and substitute a parallel mechan ism to appoint a person in BS 16 to 22 against the language of these Rules,…
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