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Petitioner: ABDUL SHAKOOR SHEIKH VS Respondent: FEDERATION OF PAKISTAN through Secretary, JUDGMENT
Court Name: Lahore High Court Judge(s): Muzamil Akhtar Shabir Title:ABDUL SHAKOOR SHEIKH vs FEDERATION OF PAKISTAN through Secretary,
JUDGMENT
Reported As: 2019 PLC (C.S.) 25, PLJ 2019 Lahore 99, PLJ 2018 Lahore 948 Result: Petitions dismissed Judgment JUDGMENT Through this single judgment, I intend to decide titled constitutional petition along with the connected petitions i,e," W.P. No, 7691/2015, W.P.No, 6129/2016, W.P. No, 7207/2016, W.P. No, 11758/2016, W.P.No, 18101/2016, Crl.Org.No, 1038-W/2015, Crl.Org. No, 143-W/2017 and Crl. Org. No, 144-W/2017 as common question of law and fact is involved in the same. 2. Brief facts of the case are that the Respondent/Civil Aviation Authority "CAA" advertised some posts for appointment of employees in different categories on contract basis. These included the posts of: (i) General Manager Civil in pay Group 10(PG10), (ii) Corporate Manager Civil, Corporate Manager QC, Corporate Manager electrical, Corporate Manager HVAC in pay group 9(PG9), (iii) Deputy Manager Civil, Deputy Manager Admin in pay group 8(PG8), (iv) Asst. Manger Civil, Asst. Manager Electrical, Asst. Manager Mechanical, Asst. HVAC in pay group 7(PG7), (v) Civil Supervisor, HVAC Supervisor, Civil Supervisor(CAD), Civil Supervisor/Draftsman in pay group 5(PG5) and (vi) QC Lab Assistant in pay group 4(PG4). Besides independent of these posts some labourers were also appointed on work charge basis from time to time. The petitioners in these petitions applied for the said posts. The present petitioner was appointed as Assistant Manager Civil Pay Group 7 (hereinafter also referred as PG- 07 for a period of one year (extendable) from time to time vide letter/Ref No,
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HQCAA/2251/318/HRRS/1326 dated 13.08.2012 issued by Pakistan Civil Aviation Authority and he joined the duty. Similarly, the Petitioners in connected petitions were appointed on different posts, 'that have been discussed in the later part of this judgment. As facts in all these cases are similar, the facts in this constitutional petition only are provided briefly. The petitioner's contract was lastly extended up to 30.06.2017 but the respondents-department again revised the contract till 31.12.2016. It is maintained that the authority did not process the case of the petitioner for regularization despite the fact that the Respondent No, 5-Project Manager recommended the petitioner for regularization in CAA on the basis of performance appraisal report dated 23.08.2015. It is claimed that the contentions of the petitioner are fortified by the act of the authorities when the respondent-department transferred the services of the petitioner against post of a permanent nature from Multan International Airport Project to Jinnah International Airport as Assistant Director (Civil) in Civil Division-I. It is maintained that according to the Civil Aviation Authority Service Regulations No, 3.101 every transfer and posting against a permanent post would amount to regularization of the appointment as has been done in the case of petitioner and as such the petitioner is entitled to become a regular employee of the respondent-authority. It is contended that in view of the orders dated 08.10.2009 passed by the Hon'ble Supreme Court of Pakistan in Human Rights cases No, 3423-K of 2007 and No, 7444 of 2009 and also in pursuance of the regularization policy issued by the Chief, Human Resource, HQ CAA Karachi on 09.05.2012, the petitioner's service is liable to be regularized. The petitioners have addressed arguments in line with the afore-said submissions, It has been claimed that the petitioner be treated as a permanent employee and regularized in service. Similar relief has been claimed by the petitioners in the other constitutional petitions. 3. Notices were issued to the respondents. They have filed report and parawise comments in which they have contended that the petitioner was appointed on contract basis against temporary post, he accepted the offer and had also given the undertaking to this effect, therefore, now he cannot challenge the same on the basis of principle of estopple. Further asserted that the petitioner's sole purpose is that he should be adjusted on permanent basis without fulfilling the codal formalities which could not be done as the petitioner was appointed against a project i,e, Up-gradation of Multan International Airport and his services were hired only for this project, therefore, after the completion of afore-referred project, the employee/petitioner is not entitled for claiming regularization or extension. It has also been claimed that the appointment was specific to the project under PC-1 and had no connection with the regular appointment in CAA nor could be considered for regularization being not covered under the CAA Service Regulations. The extension of period of service of contract employees till the completion of the project did not give them any right to claim regularization. Furthermore, the petitioner was employed for Multan Airport Project and keeping in view the completion of project activities and finalization of scope of work relating to job assignment of the petitioner, the competent authority decided to post the petitioner outside Multan as per clause II of the appointment offer and he was allowed to complete his remaining contract period in order to ensure his availability in CAA to resolve the issue pertaining to Multan Project closure. The CAA Service Regulation Nos, 3.67 and 3.101 as invoked by the petitioner pertain to CAA Service Regulations, 2000 which were superseded upon promulgation of CAA Service Regulations 2014, therefore, the above provisions are not applicable in the present case. Further stated that neither the regularization of service in CAA can take place automatically by the flux of time nor such regularization is covered in CSR-2014. The contract appointment of the petitioner was extended from time to time as per requirement of CAA till the completion of project. After the completion of project, the services are not required to the respondent-authority, therefore, the petitioner is not entitled to the claim sought by him and as such the titled constitutional petition is liable to be dismissed. The respondents have addressed arguments in the afore-said line and have
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sought dismissal of the constitutional petitions. 4. Heard, record perused. 5. The Civil Aviation Authority (CAA) has been established by the afore-referred name under Section 3 of the Civil Aviation Authority Ordinance, 1982, (hereinafter referred as Ordinance). The CAA is a body corporate, having perpetual succession and common seal with power, subject to the provision of the Ordinance to acquire and hold property, both movable and immovable, and may sue and be sued by the afore-referred name. By virtue of Section 4 of the Ordinance the. Federal Government is authorized to issue directives to the Authority on matters of policy which are binding on the Authority. Section 5 declares that CAA is responsible for regulation and control of civil aviation activities in Pakistan. Section 7 provides that the general direction and administration of the Authority and its affairs shall vest in a Board, constituting of a Chairman and Members, which may exercise all powers, functions, acts and things that may be exercised, performed and done by the Authority. Through Section 8, an Executive Committee of the Authority has been constituted (consisting of the Director General as its head and four members), with administrative, executive, financial and technical powers as may be delegated by the Authority. Section 12 Authorizes the Authority to appoint officers, servants, experts and consultants as it may consider necessary for performance of its functions and the authority may prescribe by regulations the procedure for the said appointments and terms and conditions thereof. Section 13 provides that the Director-General, members, officers, servants, experts and consultants of the Authority shall, when acting or purporting to act in pursuance of any of the provisions of the Ordinance or the rules or regulations made thereunder, be deemed to be public servants within the meaning of Section 21 of the Pakistan Penal Code, 1860. Section 23 provides that the Industrial Relations Ordinance, 1969, shall not apply to or in relation to the Authority or any person in service of the Authority. Section 26 empowers the Federal government to make rules for carrying out the purpose of the Ordinance by notification in the Official Gazette. Section 27 empowers the Authority to make regulations, not inconsistent with the Ordinance and the rules made thereunder, to provide for all matters for which provision is necessary or expedient for carrying out the purposes of the Ordinance. 6. The CAA advertised posts for appointment of: (i) General Manager Civil in pay Group 10(PG10), (ii) Corporate Manager Civil, Corporate Manager QC, Corporate Manager electrical, Corporate Manager HVAC in pay group 9(PG9), (iii) Deputy Manager Civil, Deputy Manager Admin in pay group 8(PG8), (iv) Asst. Manger Civil, Asst. Manager Electrical, Asst. Manager Mechanical, Asst. HVAC in pay group 7(PG7), (v) Civil Supervisor, HVAC Supervisor, Civil Supervisor (CAD), Civil Supervisor/Draftsman in pay group 5(PG5) and (vi) QC Lab Assistant in pay group 4(PG4). Besides these vacancies, some other persons were also required to be appointed from time to time on 'work charge basis' as Labour, etc. All the afore-said appointments were required to be made for the purpose of upgradation of Multan Airport and construction of new Airports for Gawadar and Thar. In the said advertisement it was provided that the CAA requires services of well qualified and experienced persons to fill vacant contract posts at Multan Airport project, New Gawadar International Airport project and New Thar Airport Projects. Jobs would be offered strictly on contract extendable on yearly basis depending on performance and project duration. The selected candidates may be required to serve at respective project site. 7. The petitioners in these petitions applied for jobs in response to the afore-referred advertisement for the project of upgradation of the Multan International Airport (MIAP) and were appointed. 8. The petitioner in W.P. No, 18101 of 2016 was appointed as Deputy Manager (Civil) (PG-08). The
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present petitioner was appointed as Assistant Manager Civil (PG-07). The petitioners in W.P. No, 7207 of 2016 and 6129 of 2016 were appointed as Assistant (HR) Officer (PG-07). The petitioner in WP No, 11758 of 2016 was appointed on Work Charge Basis as Labourer for the project. The petitioners in W.P. No, 7691 of 2015 were appointed to various posts on work charge basis. All the afore-referred persons seek regularization of their services. 9. The petitioners claim for regularization of their services on the basis of Ordinance and service regulations of CAA. The question of status of employees of the Civil Aviation Authority and whether the service regulations of the Civil Aviation Authority (CAA) were statutory or not came up for hearing before the Honourable Supreme Court of Pakistan in the case of Muhammad Aslam Khan versus Federation of Pakistan and others (2013 SCM R 747), wherein the Supreme Court of Pakistan observed as under: "The petitioner who has appeared in person has made reference of Article 7 of the Constitution read with Section 16(3) of Civil Aviation Authority, Ordinance, 1982 and argued that definition of State in terms of Article 7 (ibid) when examined in the context of Section 16(3) of the Ordinance, 1982 makes it abundantly clear that despite non-availability of statutory rules of the Civil Aviation Authority, its shall be deemed as a Government Department, and thus its employees shall have remedy before Federal Service Tribunal, regarding all grievances relating to terms and conditions of service. 2. After careful examination of all the documents placed on record qua ,language of Article 7 of the Constitution and Section 16(3) ibid, we are not impressed by these arguments of the petitioner. Admittedly Civil Aviation Authority has no statutory rules and the only legal aspect of the case, whether in such circumstances jurisdiction of Federal Service Tribunal could be invoked by the employees of Civil Aviation Authority has been elaborated discussed and decided in the case of Muhammad Nawaz v. Civil Aviation Authority and others (2011 SCM R 523). The dicta laid down by the Court is this case is clearly applicable to the facts and circumstances of the present petition and we have no reason to depart with this view." (emphasis supplied) 10. In the Case of Muhammad Nawaz versus Civil Aviation Authority and others (2011 SCMR 528), the Supreme Court while , making reference to Sections 26 and 27 of the Ordinance dismissed the appeal of the employees against the order of the Services Tribunal whereby the appeal of the employees of the Civil Aviation Authority had been dismissed on the ground that the regulations framed by the respondents have no statutory backing and Service Tribunal had thus no jurisdiction to entertain the appeal. By placing reliance on the afore referred judgments, conclusion is drawn that the service regulations of CAA are non-statutory. 11. There is another aspect of the matter that where the service rules and regulations are non- statutory then the Constitutional petition for the enforcement of the same would also not be maintainable. Reliance in this behalf may be placed on Pakistan Defence Officers Housing Authority versus Mrs. Itrat Squad Khan (2017 SCM R 2010) wherein it has been laid down as under: "10. The next question for our consideration would be maintainability of a writ filed by employee of Authority a statutory corporation having non-statutory rules of service seeking enforcement of the terms and conditions of his service rules. Again this question was taken up and decided by a six member Bench of this Court in the case of Abdul Wahab and others v. IIBL and others (2013 SCMR 1383) by holding that where a service grievance is agitated by a person I employee who is not governed by the statutory rules of service, before the High Court(s), in terms of Article 199 of the Constitution such petition shall not be maintainable. Relevant portion of para 7 of the cited judgment is reproduced as follows:-- "....It is settled law that, where a service grievance is agitated by a person/ employee who is not
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governed by statutory rules of service, before the High Court(s), in terms of Article 199 of the Constitution such petition shall not be maintainable; reference in this behalf can be made to PLD 2010 SC 676 (Pakistan International. Airline Corporation v. Tanweer-ur-Rehrnan) and PLD 2011 SC 332 (Pakistan Telecommunication Co. Limited v. Iqbal Nasir) (note: the question however if that is possible in terms of Article 199(1)(c), we have deferred). But the plea that such law shall not prevent the Court while exercising its jurisdiction under Article 184(3); suffice it to say that while exercising the jurisdiction this Court is bound by the conditions of Article 184(3); and moreover by such rules which are laid down by this Court for regulating its jurisdiction, keeping in view the principles of restraint. We find that in the cases of contractual service, where the grievance agitated is against a private person, there is no reason that such restraint should not be resorted to by this Court and any exception should be taken to the law laid down in Tanweer ur Rehman case supra (note: even if it pertains to the writ jurisdiction of High Courts)." In Paragraphs No, 14 and 15 of the afore referred judgment it was observed as under: "14. Likewise in the case of Muhammad Zaman and others v. Government of Pakistan (2017 SCMR 57), this Court has reiterated principle regarding in-competency of a writ petition by an employee of a body having non-statutory rule as non-statutory rules could not be enforced through a writ. The relevant portion of the cited judgment reads as under:-- "Thus the conclusion of the above discussion is that Regulation are basically instructions for the internal control, or management of SBP and are therefore non statutory. Hence the appellants could not invoke the constitutional jurisdiction of the learned High Court ' which was correct in dismissing the writ petition". 15. No doubt the employees of statutory corporation in absence of violation of law or any statutory rules of service cannot press into service constitutional jurisdiction of the High Court and after we have come to the conclusion that the service rules framed by the appellant were not statutory but for their internal guidance and, therefore, enforcement through writ jurisdiction does not appear to be in consonance with the law settled by this Court." 12. Another aspect of the matter is that the petitioners were contract employees and had been appointed for the purpose of upgradation of Multan International Airport Project as evident from the advertisement for appointment mentioned above. Even in the appointment letter it is clearly mentioned that the employee is a contract employee for the project. For the purpose of brevity some extracts of the contract of Abdul Shakoor petitioner in Writ petition 18389 of 2016 are being referred to below: "LETTER OF APPOINTMENT ON CONTRACT IN CAA MR. ABDUL SHAKOOR S/0 ABDUL MAJEED FOR AIRPORT PROJECTS. The Competent Authority is pleased to appoint you on contract as Assistant Manager Civil (Multan Project) (PG-07) in Civil Aviation Authority on the following terms and conditions: I. Post: Assistant Manager Civil (PG-07). II.Place of Posting: Multan Airport or anywhere as the Competent Authority may decide. III.Period of Contract: 01 Year (Extendable) from the date of assumption of charge. IV.Seniority: This contract appointment does not confer any right for being placed in the gradation/seniority list of the cadre/group to which the subject post belongs. V.Pension: Service rendered under this contract shall not qualify for a pension or gratuity.
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VII.Termination of contract:The appointment during the period of contract shall be liable to termination on thirty days notice on either side or payment of basic pay in lieu thereof, without assigning any reason. 13. The petitioners were appointed on contract basis for the Multan Project and had accepted the terms and conditions of appointment before joining the service. A project employee cannot claim employment beyond the period of the completion of the project. Reliance may be placed on Government of Khyber Pakhtunkhwa through Secretary Energy and Power Department Peshawar and others versus Ihsan Ullah and others (2017 SCM R 1201) wherein it has been held as under: "7. Secondly, it is an undisputed fact that the Respondents were' project employees. Their letters of appointment clearly state that their posts were 'temporary project posts' which would be 'likely to continue till the completion of project. The rationale for the 2005 amendment incorporating Section 19(2) in the Act, 1973 refutes the view that the new subsection applies to project employees..... 8. The respondents are admittedly project employees in a semi-autonomous statutory body of the provincial government and the only question is whether such employment qualifies for regularization under Section 19(2) of the Act, 1973. We have already observed that the eligibility criterion for relief under Section 19(2) of the Act, 1973, namely, being member of a provincial service or holder of a civil post in the Provincial Government, is not met by the Respondents. The 1(13K (Regularization of Services) Act, 2009 also excludes project employees from its ambit, therefore, the Respondents are ineligible even on that scope." 14. Another aspect that may be taken into consideration is that a contract employee even if dismissed from service, instead of pressing for his reinstatement to serve for the leftover period can at best claim damages to the extent of unexpired period of his service. Reliance in this behalf is placed on Federation of Pakistan through Secretary Law, Justice and Parliamentary Affairs versus Muhammad Ashraf Chattha (2013 SCM R 120). The relevant portion is reproduced below: "The question is that a person whose fate has been so determined, though 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 reinstatement to serve for the leftover period can at best claim damages to the extent of unexpired period of his service." If the contract employee cannot claim relief of allowing him for the performance of the remaining period of contract by reinstatement, then on the same analogy a contract employee, who was appointed for a particular project, could not claim regularization or extension of service beyond the period of completion of the project. 15. It has also been argued on behalf of the petitioners that the claim for regularization of service of the petitioners is fortified by the act of the authorities when the respondent department transferred the services of the petitioner against a post of permanent nature from Multan International Airport Project to Jinnah International Airport as Assistant Director (Civil) in Civil Division-I and according to Civil Aviation Authority Service Regulations 3.67 and 3.101 every transfer, and posting against a permanent post would amount to regularization of appointment. 16. I am not inclined to agree with the afore-said arguments of the petitioner for the reasons that firstly, as already discussed above the afore-referred regulations are not statutory in nature and cannot he enforced by filing a constitutional petition, secondly, the letter of appointment of the petitioner as referred to above provided for a clause that the place of posting would be `Multan Airport or anywhere as the Competent Authority may decide', thirdly, the appointment of the petitioner at' Jinnah International Airport as Assistant Director (Civil) in Civil Division-I, has not been
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made on regular basis or by changing the previous terms and conditions of service of the petitioner, and finally, it is provided in reply filed by respondents that after the completion of project the petitioner was posted as per Clause II of the Appointment Offer to complete his remaining contract period in order to ensure his availability in CAA to resolve the issue pertaining to Multan Project closure, therefore, the afore-referred ground raised by the petitioners is of no help to them as the afore-referred posting is strictly in accordance with the terms and conditions of the contract under which the petitioner had been initially appointed and the same had been extended from time to time. 17. It has been argued that the Honourable Supreme Court of Pakistan in Human Right's cases No, 3423-K of 2007 and 7444 of 2009 vide order dated 8.10.2009 has approved the regularization of services of 3763 employees of Civil Aviation Authority and the same relief may be allowed to the petitioners. The relevant portion of the afore-referred order is reproduced below: "Learned counsel stated that the Civil Aviation Authority on its part has already regularized 3763 employees, leaving 467 who are not regularized. He further informed the Court that out leftover employees those who have completed 9 months service, their cases can separately be taken up for regularization by the Authority and after that there will be only 216 employees whose service is less than 9 months. 2. In order to ensure transparency and open merit in recruitment, in future no recruitment/appointment may be made without adhering to the policies and the judgment of this Court in the case of Abdul Jabbar Memon (1996 SCMR 1349). However, those who now have been recruited, be allowed to work till completion of 9 months of enabling service and thereafter their cases shall be taken up by the Civil Aviation Authority for the purpose of Regularizing them or otherwise." From the perusal of the afore-referred order it is apparent that the said order is not applicable to the ease of the petitioners for their regularization as firstly the petitioners had been appointed subsequent to passing of the said order, secondly, the said order did not mentioned that the same would also be applicable to project employees and finally the said order makes it clear that the respondents shall ensure transparency and open merit in future recruitments while adhering to the principles laid down in judgment reported as Abdul Jabbar Memon (1996 SCM R 1349) which provides for transparency in the matter…
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