2016 PLP 95 (MLD)

WAQAR AHMAD SETH, J.

The petitioner Miss Mehwish Asif through the instant constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 has approached this Court for the following relief:-- "It is, therefore, most humbly prayed on acceptance of this writ petition the impugned order dated 22/07/2014 may kindly be declared null and void, ineffective upon the rights of petitioner in the best interest of justice, principle of natural justice and injunctions of Islam".

2. According to the averments made in the writ petition the petitioner was appointed as\ Liaison Officer in BPS-17 vide office order dated 21/03/2012 in Shaheed Benazir Bhutto Women University, Peshawar on contract basis for a period of six months effect from 20/03/2012; that keeping in view very good administration efficient performance of the petitioner on the said post, her period of contract was extended from 25/03/2014 to 31/12/2014 vide office order dated 04/03/2014 and to this effect an agreement of contract was signed by both the parties. In the meanwhile respondents advertised the said post in the "Daily AAJ" and the petitioner being fit and eligible, an experience Liaison Officer also applied and appeared before the Selection Committee in January, 2014 but despite the interview no further step has been taken to appoint the petitioner as permanent Liaison Officer being toper in the interview and only experienced candidate for the said post. That respondent No.2 issued office order dated 22/07/2014 that services of the petitioner will be no more required after 15/08/2014, by giving her one month notice with effect from 16/07/2014 as per the Contract Agreement executed by her. Hence the petitioner having no other remedy for redressal of her grievance has knocked the door of this Court through the instant constitutional petition.

3. Comments were called from respondent No.1 which were furnished wherein it was stated that the petitioner being contract employee has no locus standi to invoke the constitutional jurisdiction of this Court and further that her services were rightly terminated under sub-clause (i) of Clause 5 of the Contract Agreement wherein it was mentioned that her services shall be terminated "At one month's notice or payment of one month salary in lieu thereof from either side without assigning any reason".

4. We have heard the learned counsel for the parties and have also gone through the material placed on file.

5. As per appointment order dated 21.03.2012 petitioner was appointed against a newly created post of Liaison Officer in BPS-17 with effect from 20.03.2012 on contract basis for a period of six months at a rate of Rs. 22000/- per month meaning thereby that she was on contract basis for a fixed period on fixed pay. Admittedly the period of contract was extended time to time but subsequently the post of Liaison Officer was advertised in the month of October 2013, with last date of filing/ submitting applications as 07.11.2013. It appears that petitioner also participated in the said selection process. However, vide office order dated 22.07.2014 the contract of the petitioner was terminated as no more required.

6. There is nothing on record to show that at the time of appointment of the petitioner any proper procedure was adopted including the advertisement, therefore, in no way the appointment of the petitioner could be declared as legal and justified. Respondent University is a chartered University having its own Syndicate and Senate, in addition to the Chancellor and instead of approaching the appellate authority under the University Statute petitioner has directly approached this forum in constitutional jurisdiction without availing the alternate remedy available to her in the shape of Departmental Appeal, hence, the writ petition is not maintainable.

7. Learned counsel for the petitioner referred to reported judgment of this court in 2011 PLC (CS) 1651. The said judgment reveals that the appointment order of the petitioner in that case was withdrawn thus on the principle of powers available under section 21 of General Clauses Act, 1897, the withdrawal order was held as illegal, whereas in the instant case the contract was executed and after its extension from time to time the same was terminated as no more required and the post has been advertised for regular appointment, therefore, the cited judgment is not applicable to the present case.

8. Even other wise contractual employment, fixed pay and fixed salary employees have no right, whatsoever to claim regularization or continuation in service by filing writ petition. In this respect reliance is placed on 2013 SCMR 13 which reads as under:-- "

Art. 185(3)

Work charge (contractual) employment

Employees working on work charge basis claiming to be a regular employee

Employment on work charge (contractual) basis, irrespective of the period of length, not to accord employee status of regular employee

Respondent was initially employed by Health Department on Chowkidar (watchman) on a work charge basis but after devolution of said Department all its assets, liabilities and offices were succeeded to the Municipal Administration (petitioner)

Services of respondent were transferred to the Municipal Administration, which paid him regular salary

High Court declared respondent to be a regular employee of the Municipal Administration (petitioner) on grounds of his continuous service for 13 years, since the Municipal Administration failed to show that his employment was contractual

Validity

Record showed that respondent was employed by the Health Department on a work charge basis initially for three months and his employment was extended at regular intervals for three months at a time

Documents placed on record by respondent clearly indicated that his employment with Municipal Administration was also on work charge basis and he was paid for the work he performed

Respondent's employment whether with the Health Department or with the Municipal Administration remained on work charge basis and he was never appointed as a regular employee and his employment on work charge basis, whatever its period of length, would not accord him status of regular employee

High Court had erred in holding the respondent a regular employee simply on account of failure of Municipal Administration to show that his appointment was on a work charge or contractual basis

Respondent had to substantiate his claim for regular appointment and same could not be deemed to have been established on failure of the Municipal Administration to prove the contrary-Petition for leave to appeal was converted into appeal and allowed, impugned judgments were set aside and respondent was held not to be a regular employee of the Municipal Administration". Again in the case of Federation of Pakistan through Secretary Law, v. Muhammad Azam Chattha, reported in 2013 SCMR 120 (b), it has been held that:-- (b) Civil Service "

Contract employee

Dismissal from employment before expiry of period of service

Remedy

Scope

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". Likewise, in the Suo Motu reported in 2013 SCMR 304, it has been held that:-- (b) Civil Service

"Contract Employee

Regular appointment, right of

Scope

Contract Employees did not have a vested right for regular appointment".

9. Viewing the overall facts of the case, all the three negatives i.e. contract, specific time and fixed pay, for claiming regularization are there, therefore, while relying on the above cited judgment the claim of the petitioner is neither legal nor justified.

10. In view of the above, this writ petition is dismissed in limine along with interim relief. ZC/9/P Petition dismissed.