2011 PLP (C (PLC(CS))

MUHAMMAD FARRUKH IRFAN KHAN, J.

Waseem Ali, petitioner through this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 prays as under:

"In view of the above, it is most humbly prayed that this Hon'ble Court may graciously be pleased to accept the instant constitutional petition, in terms that:-- (i) The order dated 7-4-2011 of the respondent No.1 relieving the petitioner of his duties may be declared to be null and void, having being based on no lawful authority and tainted with mala fide and ill will against the petitioner. (ii) Moreover, the respondent No.1 may be directed to reinstate the petitioner to the post of Assistant Director Finance, in the Auqaf Organization, Punjab, and extend the contract of the petitioner in this regard. (iii) Furthermore, the respondent No.1 may be directed to forward the name of the petitioner for regular appointment to the post of Assistant Director Finance, in the Auqaf Organization, Punjab, in line with the Circular letter dated 10-11-2010 of the respondent No.2. (iv) In addition, the respondent No.1 may also be directed to pay all the due salaries and emoluments of the petitioner, from the period falling between 2-10-2010 to 7-4-2011 and thereafter. Any other relief to which the petitioner is found entitled may also be granted."

2. Learned counsel for the petitioner submits that initially the petitioner was appointed as Assistant Director Finance in BPS-17 for a period of two years vide appointment order dated 10-10-2006; that upon satisfactory performance the contract period of the petitioner was extended for further two years till 2-10-2010; that on completion of four years of service Director Finance Auqaf once again recommended the petitioner for extension of contract period for further two years; that during the process of said recommendation the Government of the Punjab issued letter dated 10-11-2010 whereby guidelines were provided to all the departments for regularization of services of contract employees in BPS-16 and above; that on the basis of said letter the petitioner was fully eligible to be appointed on permanent basis; that instead of regularizing the services of the petitioner, respondent with mala fide intention and ulterior motive sought advice from respondent No.2 to the effect as to whether the contract of the petitioner could be extended on the basis of degree obtained during employment period; that in response of this letter respondent No.2 advised that no extension could be allowed in the contract of the petitioner; that on the basis of the said advise the petitioner's contract was terminated through impugned letter dated 7-4-2011 with immediate effect. According to the learned counsel the impugned letter is illegal and without lawful authority; that services of the petitioner were terminated on 7-4-2011 but salary for the intervening period w.e.f. 2-10-2010 to 7-4-2011 was not given to the petitioner despite the fact that during this period petitioner continued to perform his duties; that no notice was issued to the petitioner prior to termination of his contract period; that the respondent No.1 has exceeded its jurisdiction while issuing the impugned letter; that the petitioner was fully eligible to be appointed on permanent basis in the light of letter referred supra.

3. On the other hand, learned counsel for the respondents submits that in fact the petitioner managed to obtain the job on the basis of MBA degree from an institution which is not recognized by HEC; that as it was in the knowledge of the petitioner that his degree was not recognized by the HEC, therefore, he obtained a second degree during his service from an institution recognized by the HEC as such his appointment is void ab initio. Further adds, that admittedly the petitioner is a contractual employee and his services were terminated after expiry of contract period as such the petitioner cannot force the departmental authorities either to extend his contract or regularize his services; that the constitutional petition is not maintainable in view of the dictum laid down by the Hon'ble Supreme Court of Pakistan in case reported as PLD 2010 Supreme Court

841. On Court's query as to whether the petitioner performed his services after expiry of contract period, the learned counsel for the respondents submits that the services of the petitioner were not required but he continued to serve at his own and strongly refuted the claim that the petitioner is entitled to salary and other emoluments for the period served after expiry of contract period uptill the actual date of serving of termination letter.

4. I have heard the arguments advanced by learned counsel for the parties and perused the record.

5. It is an admitted fact that the petitioner is a contractual employee and his contract period has lapsed on 2-10-2010. After that though the Director Auqaf moved for further extension of the contract period of the petitioner yet the competent authority declined to do so. Through this constitutional petition the petitioner inter alia seeks regularization of his services. In the appointment order of the petitioner dated 10-10-2006 it has been specifically mentioned that the contract appointment will neither confer any right of regular appointment to the same post nor the service shall count towards seniority. In case reported as Abid Iqbal Hafiz and others v. Secretary, Public Prosecution Department, Government of the Punjab, Lahore and others (PLD 2010 Supreme Court 841) it has been held as follows:

"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."

6. In the light of above celebrated judgment of the apex Court this Constitutional petition is dismissed to the extent that on the basis of contractual employment the competent authority was neither required nor bound to extend the contract period of the petitioner or to regularize his services. However, the reason made the basis of denying extension or regularization in the service of the petitioner that he obtained the initial appointment on the basis of an MBA degree from an institution which was not recognized by the HEC is incorrect and tantamounts to stigmatizing the petitioner. A perusal of the copy of the advertisement for the said vacancy published in the "Daily Express" dated 8-9-2006 shows that no such requirement has been laid down and this could not have been so keeping in view the admission of the respondent No.2 in its letter dated 28-3-2011, it is quite evident that there was no requirement at the time of appointment that the degree should be recognized by HEC, therefore, it would be entirely misconceived to levy this allegation and the petitioner cannot be stigmatized that he obtained his initial appointment on the basis of a degree which was deficient in the aforesaid manner. From the facts of the case, it appears that the petitioner has not found favour with someone in its employing authority, the respondent No.1, as such the said respondent has gone to all extent to ensure that the contract of the petitioner should not be extended and in the process has stigmatized the petitioner by raising an ill found allegation against the petitioner. If the allegation against the petitioner was true then it shows extreme negligence and lack of proprietary on the part of the respondent/department to have given employment to a person who did not meet the eligibility criteria, in the first instance, and even if it is presumed that a mistake was made in making the initial appointment then the question arises as to why this mistake was not noted during the four years of service that the petitioner put in, out of which last two being on extension of the contract. Unfortunately, respondent No.1 has not acted with proprietary in dealing with the petitioner and the petitioner is at liberty to seek compensation before the appropriate forum if so advised for being stigmatized while severing his contractual employment.

7. It is also borne out from the record that after expiry of the contract period the petitioner continued to serve with the legitimate expectancy that his contract period will be extended and he was also not restrained by the competent authority to perform his services. It was for the first time on 7-4-2011 that the petitioner was intimated that no extension could be allowed in his contract period and that too with immediate effect. From the impugned letter dated 7-4-2011 it is very much evident that the petitioner's services were terminated on that very date as such the petitioner is entitled to receive salary and all other emoluments w.e.f. 2-10-2010 to 7-4-2011. Respondents are directed to pay the salaries of the petitioner for the aforementioned period within four weeks from the date hereof, if not already paid.

8. With these observations this petition is disposed of. M.A.W./W-16/L Order accordingly.