Case Summary & Legal Holding

This judicial decision was delivered by the SUPREME-COURT. The matter involves proceedings between MOHSIN RAZA GONDAL and SARDAR MAHMOODHonorable Justice Syed Hasan Azhar RizviHafiz S.A.Rehman,S.A. Mahmood Khan Sadozai, officially reported as 2025 PLC(CS) 154. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.

Full Judgment Text & Judicial Ruling

2025 P L C (C.S.) 154 [Supreme Court of Pakistan] Present: Yahya Afridi, Syed Hasan Azhar Rizvi and Irfan Saadat Khan, JJ MOHSIN RAZA GONDAL and others---Petitioners Versus SARDAR MAHMOOD and others---Respondents Civil Petitions Nos.949, 1025, 1028, 1132 to 1134 of 2023, decided on 13th September, 2024. (Against the judgment dated 31.01.2023, passed by the Islamabad High Court, Islamabad in I.C.A. No.514 of 2015 and Writ Petition No.2042 of 2020). (a) Civil service--- ----Contract employees---Regularization in service---Scope---Regularization of a contractual employee constitutes a fresh appointment into the stream of regular appointments in civil services. Province of Punjab through Secretary Livestock and Dairy Development Department, Government of the Punjab, Lahore and others v. Dr. Javed Iqbal and others 2021 SCMR 767 ref. (b) Constitution of Pakistan--- ----Arts. 90, 91 & 99---Executive authority of the Federation, exercise of---Scope---Article 90 of the Constitution provides that the executive authority of the Federation shall be exercised in the name of the President by the Federal Government, which includes the Prime Minister and Federal Ministers but the said authority has to be exercised subject to the Constitution---It means that whenever the authority is exercised, it has to be within the limits prescribed by the Constitution---Neither the Prime Minister nor the members of the Federal Cabinet are permitted to perform their functions beyond the legal provisions i.e. the Constitution, statutory law, and the rules. (c) Civil service--- ----Contract employees---Regularization of posts in BS-16 and above---Cabinet Sub-Committee, powers of---Scope---Rules of Business, 1973, were duly framed to conduct the business of the Federal Government---Under these rules, although there is a concept of Cabinet Sub-Committees on different subjects, there is no provision for the intervention of a Cabinet Sub-Committee in governing the terms and conditions of service of employees---However, the Cabinet Sub-Committee can recommend reforms in the service structure, which can be approved by the Cabinet in accordance with the law and the Constitution---As, the Cabinet Sub-Committee lacks the authority to recommend the regularization of posts in BS-16 and above, therefore, any recommendation by the Cabinet Sub-Committee to regularize appointments in BS-16 and above is void ab initio and without any lawful authority. (d) Void order--- ----Any action that is void ab initio and without lawful authority cannot be protected under the doctrine of a 'past and closed transaction'. (e) Civil service--- ----Contract employees---Regularization in service---Factors to be considered by an employer/institution opting for regularization of its contract employees---Any institution opting for regularization of its employees must be either mandated by law or must carry out regularization through a well-thought-out policy of the institution concerned laying down the criteria and the process for regularization; performance evaluation of the contractual employee must be assessed to determine if the employee meets the standards required for a regular position; there must be availability of positions that match the skills and experience of the contractual employee; the budgetary considerations and financial implication of a regular employee must be weighed and considered---There must be a fair assessment of the employee's qualifications, performance and merit, so as to ensure only competent and committed employees are granted permanent employment status. Federation of Pakistan through Secretary, Ministry of Law and Justice Islamabad and another v. Fazal-e-Subhan and others PLD 2024 SC 515; Government of Khyber Pakhtunkhwa through Secretary Forest, Peshawar and others v. Sher Aman and others 2022 SCMR 406 and Messrs State Oil Company Limited v. Bakht Siddique and others 2018 SCMR 1181 ref. (f) Employment--- ----Appointments and promotions in public sector organizations---Transparency, merit and open competition, significance of---Appointments in the public sector based on corruption, nepotism, favoritism, lack of due process, and misuse of authority have long been a significant issue in our society---These practices undermine the principles of fairness and equality, eroding public trust in governmental institutions---When positions are filled not on merit but through personal connections or corrupt practices, it not only deprives deserving candidates of opportunities but also weakens the overall efficiency and integrity of the public sector---Upholding the values of transparency, merit, and open competition in public sector employment is essential for fostering a system where the most qualified individuals serve, ensuring that public resources are utilized effectively and justly for the benefit of all---Without adherence to these principles, the public sector risks becoming a tool for the powerful rather than a service for the people, perpetuating cycles of inequality and inefficiency---Therefore, it is imperative that the recruitment and promotion processes in the public sector be conducted with the highest standards of fairness and accountability, free from any undue influence or bias. Hafiz S.A.Rehman, Senior Advocate Supreme Court assisted by Mrs. Shireen Imran, Advocate Supreme Court for Petitioners (in C.Ps. Nos.949 and 1028 of 2023). Tariq Mahmood, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners (in C.P. No.1025 of 2023). Abdul Rahim Bhatti, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners (in C.P. No.1032 of 2023) Muhammad Ramzan Khan, Advocate Supreme Court for Petitioners (in C.P. No.1033 of 2023). Dr. G. M. Chaudhry, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioners (in C.P. No.1034 of 2023). S.A. Mahmood Khan Sadozai, Advocate Supreme Court for Respondents Nos.2-3 (in C.P. No.949 of 2023). Zubair Hussain Jarral, Advocate Supreme Court for Respondents (in C.Ps. Nos.1025 and 1134 of 2023). Nemo for Respondents (in other cases). Hassan Nawaz Makhdoom, Additional Attorney General, Hammad Nazar, Deputy Secretary, Ministry of Overseas Pakistani and HRD and Muhammad Abdullah, A.D. Legal FPSC for the Federation. Date of hearing: 8th July, 2024. JUDGMENT SYED HASAN AZHAR RIZVI, J.---Through the above petitions, filed under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973 ('the Constitution'), the petitioners have impugned the judgment dated 31.01.2023 ('impugned judgment') of the Islamabad High Court, Islamabad ('High Court'). In this judgment, an Intra-Court Appeal No. 514 of 2015 ('I.C.A.') filed by three respondents (see table annexed as 'A') and a Writ Petition No. 2042 of 2020 filed under Article 199 of the Constitution by the other sixteen respondents (see table annexed as 'B') against the present petitioners were jointly allowed, and the appointments of the petitioners were found to have been made in violation of the law. Consequently, their cases were referred to the Federal Public Service Commission ('FPSC') to determine their fitness and eligibility for the said posts under the relevant law. 2. The background of the present controversy is that the respondents Safdar Mahmood, Gul Akbar and Kamran Munir Bhatti, Deputy Directors, Protectorate of Emigrants, Islamabad filed a Writ Petition No.3132 of 2013 under Article 199 of the Constitution before the High Court to challenge a notification dated 17.10.2012 ('impugned notification') whereby the services of three petitioners namely Mohsin Raza Gondal, Ahmad Faisal Hassan Khan and Omer Saleem Cheema, who were initially appointed on contract basis, were regularized as Deputy Directors (BS-18) in the Bureau of Emigration and Overseas Employment ('BE&OE'); however, the said petition was dismissed vide order dated 10.11.2015. Being dissatisfied, the respondent filed an I.C.A. before the High Court. During the pendency thereof, sixteen other respondents filed a separate Writ Petition No. 2042 of 2020, under Article 199 of the Constitution before the High Court to challenge the regularization of the services of all the petitioners in different basic pay scales (BS-16 to BS-18), including the above-named petitioners, in the BE&OE. Since these matters were identical and involved a common question of law, the High Court took up both the appeal and the petition jointly and, through the impugned judgment, allowed them; however, the same was dismissed as being infructuous to the extent of the respondent Ahmad Hassan Khan as he had been dismissed from service on the ground of absence from duty. The cases of all the petitioners were referred to the FPSC with a direction to determine their fitness and eligibility under the law. The relevant portion of the impugned judgment, essential for the determination of the present controversy, is reproduced below for ease of reference: "17. In the above mentioned position, when initially respondents Nos. 6 to 8 of ICA No. 514/2015 [Mohsin Raza Gondal, Ahmad Faisal Hassan Khan and Omer Saleem Cheema] were not appointed in accordance with the law, especially when their original notification of Cabinet Sub-Committee is not available on record and order has prima-facie been declared as a forged document by the Establishment Division in their comments in which it has been mentioned that Mrs. Nazish Abbasi has issued the said letter at her own. Such aspect creates a difficult situation for all the respondents including the Establishment Division, Government of Pakistan whose working has been exposed in the process of regularization of service, therefore, in such scenario, the judgment rendered by learned Single Judge in Chambers in W.P. No.3132/2013 is considered to be without any legal basis, especially when law discussed above has not been correctly applied, hence, judgment dated 10.11.2015 passed in Writ Petition No.3132 of 2013 is hereby set-aside, resultantly, Intra Court Appeal No.514 of 2015 and Writ Petition No.2042 of 2020 are allowed with the direction to the Ministry of Overseas Pakistan to transmit cases of respondents appointed in BPS-16 & BPS-17 to the FPSC for determination of their eligibility, qualification, age, etc. in accordance with law, subject to test, interview under the rules and after determination of their fitness, if they declared successful, recommendation be given to effect retrospectively in order to save their perks and privileges under the law. Moreover, the officials appointed in BPS-18 i.e. respondents Nos. 6 and 8 in ICA No.514/2015 and respondents Nos.6 and 7 in Writ Petition No.2042 of 2020, have different issue, since their appointments made in violation of recruitment rules when the post of BPS-18 could only be filled by way of promotion, therefore, at this stage, if the FPSC confers their fitness, the relevant Ministry shall create post for these incumbents for the said position as an exception for one-time dispensation..." 3. The present petitioners are not satisfied with the decision by the High Court in the impugned judgment and have, therefore, challenged it by filing the above petitions before this Court. However, the Government of Pakistan, the relevant Ministry, and the private respondents did not further challenge the impugned judgment, indicating their satisfaction with it. 4. The cases of the petitioners are somewhat similar in all the petitions. For clarity, their positions are summarized separately and precisely as follows: Civil Petitions Nos.949 and 1028 of 2023 In these petitions, the petitioners asserted that, upon the creation of eighty-seven (87) temporary posts, including five (5) posts of Deputy Directors, for restructuring the BE&OE by the President of Pakistan, an advertisement was published in the newspaper with the approval of the Secretary, Labour and Manpower, on 09.09.2010, inviting applications for these posts. A Departmental Selection Committee was constituted in accordance with the law, and the recruitment rules were revised after approval from the FPSC. Following interviews and the approval of the recommendations of the Departmental Selection Committee by the Competent Authority, the petitioners were appointed as Deputy Directors (BS-18) on a contract basis for one year, as per the letter dated 09.04.2011. Subsequently, their cases were sent to the Cabinet Sub-Committee for regularization of their services. The process of their regularization was completed by the said Committee, and the Establishment Division conveyed the decision vide Office Memorandum dated 19.03.2012. Thus, the petitioners were regularized in BS-18 against the direct quota for initial recruitment by the Cabinet Sub-Committee, by virtue of the impugned notification issued by the Ministry of Human Resource Development, Government of Pakistan. The appointments of the petitioners were made in accordance with the law, but the High Court overlooked above legal position and wrongly passed the impugned judgment, which is liable to be set aside. Hence, these petitions. Civil Petition No. 1025 of 2023 In this petition, the petitioners asserted that eighty-seven (87) temporary positions, including those of Inspectors (BS-16), were sanctioned for the restructuring of the BE&OE. This was followed by an advertisement dated 01.10.2010 and a corrigendum published on 05.10.2010, inviting applications. As a result of the interview conducted by the Departmental Selection Committee on 03.12.2010, the petitioners were offered appointments as Inspectors on a one-year contract or until selection by the FPSC. Later, their cases were referred to the Cabinet Sub-Committee for regularization. The matter was taken up by the said Committee on 31.05.2012 and approval for regularization was granted and communicated vide letters dated 18.07.2012 and 31.07.2012. Consequently, their services were regularized with immediate effect through a notification dated 05.10.2012 and a corrigendum dated 09.10.2012. Thereafter, a meeting of the Departmental Promotion Committee was held on 21.03.2018 to consider the promotion of Inspector (BS-16) to the post of Assistant Director (BS-17) against the posts reserved for the promotion quota. So, eight (8) individuals, including the petitioners, were found fit for promotion and a corresponding notification was issued on 30.03.2018. Meanwhile, the present respondents were appointed to BS-17 on the recommendation of the FPSC but after the petitioners' promotions, and were shown as junior to the petitioners in the seniority list issued on 05.09.2019. At the time the petitioners' services were regularized, the respondents were not in service; therefore, they could not challenge their regularization on any grounds of irregularity or illegality allegedly committed by the concerned authorities. The matter of regularization of the petitioners in BS-16 was a past and closed transaction and could not be challenged by outsiders who were inducted into service as direct recruits thereafter. The High Court failed to consider this important aspect of the matter and passed the impugned judgment in sheer violation of the law, which is therefore liable to be set aside. Hence, this petition. Civil Petition No.1132 of 2023 In this petition, the petitioners assert that the Government of Pakistan created eighty-seven (87) temporary posts of various cadres, including four (4) posts of the Assistant Directors (BS-17) under the provincial quota, for the restructuring of the BE&OE. These posts were advertised in the Daily Nawai-e-Waqt and other newspapers on 30.09.2010. Following interviews conducted by the Departmental Selection Committee-1, the petitioners were offered appointments as Assistant Directors (BS17) in the BE&OE on a one-year contract, which was subsequently extended from time to time. Later, upon the approval of the Cabinet Sub-Committee on Regularization, the Ministry of Human Resource Development regularized the services of the petitioners as Assistant Directors (BS-17) through a notification dated 17.10.2012, followed by another notification dated 02.11.2012, issued by the BE&OE. The petitioners further assert that the present respondents, who were directly recruited in BS-17 long after their regularization, could not challenge their regularization process. The High Court failed to take judicial notice of the relevant case law and the points raised before it, thereby violating the provisions of a fair trial under Article 10-A, read with Article 4 of the Constitution. Hence, this petition. Civil Petition No.1133 of 2023 In this petition, the petitioners asserted that they both are presently serving as System Analysts (BS-18) and Deputy Director I.T. (BS-18) and both of them were regularized in 2012 after following a proper procedure of law through Khursheed Shah Committee and they are working without any lapse at their part and are performing their technical jobs with due diligence and having an unblemished record of more than eleven years. Both the above posts were published/advertised in the Daily Nawai-e-Waqat and others on 30.09.2010 and they applied for the said post after having fulfilled the requisite eligibility criteria. Following interviews conducted by the Departmental Selection Committee-1, the petitioners were appointed as System Analysts (BS-18) and Deputy Director I.T. (BS-18) in the BE&OE on a one-year contract, which was subsequently extended from time to time. Later, upon the approval of the Cabinet Sub-Committee on Regularization, the Ministry of Human Resource Development regularized their service through a notification dated 17.10.2012, followed by another notification dated 02.11.2012, issued by the BE&OE. The High Court failed to consider the above important aspect of the matter and passed the impugned judgment in sheer violation of the law, which is therefore liable to be set aside. Hence, this petition. Civil Petition No. 1134 of 2023 The version of the petitioners in this petition is that during the restructuring of the BE&OE, and based on the recommendations of the Management Services (MS) Wing of the Establishment Division, several posts in different cadres were created in 2010, as per a sanction letter dated 20.07.2010. These newly created posts were advertised for appointment on a contract basis in various newspapers. The petitioners applied in response to the advertisement and they, after the recruitment and selection process, were appointed on a contract basis. The Cabinet Sub-Committee on Regularization of Contract Employees considered the cases of the petitioners and approved their regularization in its meeting held on 31.05.2012, as reflected in the minutes of the meeting dated 18.07.2012 followed by a notification issued on 05.10.2012. Subsequently, they were promoted to the position of Assistant Director through notifications dated 30.03.2018 and 08.01.2019 and they continue to serve in this capacity. On the other hand, the respondents were appointed on 24.08.2016 and 21.12.2018 by the BE&OE, approximately 5 to 7 years after the petitioners. After their appointment, a dispute regarding inter-se seniority arose, leading the respondents to file a petition against the petitioners. The petitioners further assert that the respondents, who were directly recruited into BS-17 long after their regularization, could not challenge their regularization in BS-17. The High Court failed to take judicial notice of the relevant case law and the points raised before it, thereby violating the provisions of a fair trial under Article 10-A, read with Article 4 of the Constitution. Hence, this petition. 5. The respondent No.6 (Secretary, Ministry of Overseas Pakistanis and Human Resources Development) and the respondent No.8 (The Prime Minister Secretariat, through Principal Secretary, Islamabad) in CPLA 949 of 2023 supported the impugned judgment by filing a concise statement as C.M.A. No. 2492 of 2024 and prayed for the dismissal of the petitions. They further apprised this Court that the concerned Ministry, in compliance of the impugned judgment, has already forwarded the cases of the petitioners to the FPSC vide a letter dated 31.05.2023. At the same time, these respondents also supported the stance of the petitioners that, following the creation of eighty-seven (87) temporary posts by the President of Pakistan for restructuring the BE&OE, an advertisement was published in the Daily Nawai-e-Waqt and other newspapers on 30.09.2010 and 01.10.2010, inviting applications for these positions. A Departmental Selection Committee was constituted in accordance with the law, and the recruitment rules were revised after approval from the FPSC. Following interviews and the approval of the Departmental Selection Committee's recommendations by the Competent Authority, the petitioners were appointed on a contract basis for one year. Further, in order to justify the regularization of the petitioners, they (respondents Nos.6 and 8) avowed that at the time of the petitioners' regularization, the private respondents were not eligible for promotion to BS-18 in terms of length of service. Similarly, the respondent No.7 (Federal Public Service Commission) also supported the impugned judgment by filing a concise statement as C.M.A. No. 7637 of 2023 and prayed for the dismissal of the petitions. 6. Conversely, the private respondents took the version that according to S.R.O. No. 290(I)/88 dated 20.04.1988, issued by the Ministry of Labour, Manpower and Overseas Pakistanis, it is abundantly clear that the posts of higher ranks, i.e. Director General, Director, and Deputy Director, are to be filled through promotion. In contrast, the posts of Assistant Directors and below are to be filled through initial recruitment and promotion. Similarly, under the Federal Service Commission Ordinance, 1977 ('FSCO'), all the Ministries/Divisions and their attached departments are required to submit cases of all contract appointments/re-employments beyond two years against civil posts in BS-16 to BS-20. Moreover, appointments on a contract basis and subsequent regularization are contrary to the Civil Servants (Appointment, Transfer and Promotion) Rules, 1973, under which appointments in BS-16 and above are the sole prerogative of the FPSC. The posts excluded from the purview of the FPSC are listed in the schedule annexed to the Federal Public Service Commission (Functions) Rules, 1978. However, in blatant disregard of the aforementioned laws, the petitioners were regularized in BS-16 to BS-18. The petitioners are the product of the Cabinet Sub-Committee, whose formation is patently illegal. The appointments of the petitioners represent the worst examples of political affiliation, nepotism, favoritism, and undue influence. The actions and orders of the official respondents are illegal and unlawful, lacking any legal sanctity; therefore, the appointments of the petitioners should be set aside accordingly. 7. We have heard the arguments on behalf of the parties and perused the relevant record. It has been found from the record that the petitioners in Civil Petitions Nos. 949 and 1028 of 2023 were initially appointed on a contract basis as Deputy Director (BS-18); however, their services were regularized in view of impugned notification issued by the Ministry of Human Resource Development, Government of Pakistan. The said notification has been issued consequent upon the approval of the Sub-Committee of the Cabinet on Regularization of Contract Employees of the Federal Government Department/ Organizations and the approval of the Cabinet Sub-Committee was conveyed vide Establishment Division's Office Memorandum No.3/5/2011-Admn.I dated 19.03.2012. This office memorandum dated 19.03.2012 circulated the minutes of the meeting of the Cabinet Sub-Committee dated 15.12.2011 regarding the regularization of the contract employees. In that meeting, the Cabinet Sub-Committee discussed and approved the regularization of the twenty-five (25) contract employees of the BE&OE. Later on, the Ministry of Human Resource Development issued Notification No.3-16/2011-Emig-I dated 04.05.2012 regarding the regularization of those twenty-five (25) employees of the BE&OE and the same was circulated by the BE&OE vide Notification No. BE(Admn-Estt)1(49) / 2007 dated 18.05.2012. However, the names of the petitioners (Mohsin Raza Gondal and Omer Saleem Cheema) were not mentioned in the list of those twenty-five (25) employees who were recommended for regularization by the Cabinet Sub-Committee. Later on, the Cabinet Sub-Committee in its meeting held on 31.05.2012 recommended all the petitioners including the petitioners in CPLAs Nos. 949 and 1028 for regularization of their services (pages 92-93 of CPLA 949 of 2023). 8. It is worth mentioning here that the Federal Government, through Office Memorandum No. 10/30/2008-R-II dated 29.08.2008, provided policy…

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