2022 PLP (C (PLC(CS))

MUHAMMAD NAEEM ANWAR, J.

Raza Ali Khattak and three others, the petitioners herein, have filed the instant petition seeking constitutional jurisdiction of this Court to declare the office order dated 09.01.2019 issued by the respondents' University, whereby they have been relieved from their services, to be illegal, unlawful and without jurisdiction with added prayer to direct the respondents-University to implement the judgment dated 10.05.2018 passed by this court in Writ Petition No. 4639/2019 by issuing notification of their regularization.

2. Fact of the case, succinctly, as reflected from the record, is that the petitioners were appointed as Superintendent (BPS-16) in the respondents' university in the year, 2013. Subsequently, the post of Superintendent was upgraded from BPS-16 to BPS-17 in the Syndicate meeting held on 08.08.2014 by adopting the Finance Department notification dated 20.05.2014. The University regularized some of its employees, while the petitioners were not treated alike; therefore, they filed a Writ Petition No.4639-P/2016 before this court on the plea of discrimination, which was disposed of on 10.05.2018. The operative part of the judgment, for convenience, is reproduced herein below: - "

3. The worthy counsel for the respondents-University resisted the contention of the worthy counsel for the petitioners and contended that in fact an enquiry has been initiated against the officers of the respondents-University who had made the illegal appointments and regularization.

4. This court would not enter into such controversy, at least at this stage, as admittedly others similarly placed have been granted the relief, the same relief be extended to the petitioners and they be proceeded in accordance with law. We further urge the respondents-University to proceed with the inquiry proceedings. This writ petition is disposed of accordingly.

3. The Respondents-University filed a Review Petition No.166-P / 2018 against the judgment of this court, which was dismissed, vide order dated 19.06.2018. Consequently, the present petitioners filed a Contempt of Court Petition No. 747-P/2018 against the respondents before this court for willfully disobeying the judgment of this court dated 10.05.2018 passed in Writ Petition No. 4639-P/2016, which was dismissed, vide judgment dated 16.01.2019. The operative part of the judgment is reproduced below:- "

3. In their reply, the respondents raised the plea that there was neither a policy of regularization in the respondent/University nor the petitioners/applicants were appointed through the recruitment process i.e., advertisement, open competition and also adopting the policy of merit. They pointed out that the 652 employees of the University were in BPS 1 to 16 at the time of regularization, unlike the petitioners/applicants in BPS-17 and further that the said employees were regularized under the policy of Provincial Government, notified vide notification dated 10.08.2015, at a time when the respondents/University did not have its own statutes.

4. Apart from the fact that no specific direction was issued to the respondent /University so as to penalize the respondent / University for non-compliance/defiance of such direction, the petitioners can also not be deemed similarly placed, as is clear from the facts explained in the reply of the respondents, so as to qualify for treatment alike in the light of order of this court dated 10.05.2018.

5. The COC petition is, as such, misconceived, hence, dismissed."

4. The order of this court passed in the above referred COC was challenged in Criminal Appeal No. 140/2019 before the apex Court by the petitioners, however, in the meanwhile, because of completion of the petitioners' contract period, they were relieved from their services as under the provisions of section 11(5)(e) of the Khyber Pakhtunkhwa Universities (Amendment Act, 2016), extension was not admissible beyond the period of three years, hence, the petitioners filed the instant petition. In view of the above development, a Criminal Appeal No. 140/2019 pending before the apex court filed against the order of this court dated 16.01.2019 in COC No. 747-P/2018, was dismissed as withdrawn in light of the statement of learned counsel for the petitioners as the instant matter pertaining to restoration of the petitioners in service was pending before this court.

5. We have heard learned counsel for the parties and gone through record of the case.

6. Perusal of the record reveals that the petitioners were appointed in year 2013 as Superintendent (BPS-16) on contract basis for a period of one year or till the arrival of the regular selectees but they were performing their duties without extension of their service contract. Later on, the respondents' University regularized the services of some of its employees, but in year, 2018, during meeting of the Syndicate, it was highlighted that some of the contractual employees of the university, including the petitioners, appointed before year, 2016 against various posts were found that in spite of expiration of life of their contracts they were getting salaries from the University, therefore, in order to probe into the matter, an inquiry committee was constituted, which fact has specifically been mentioned in the judgment of this court dated 10.05.2018 passed in Writ Petition No. 4639/2016 consequently, the petitioners along with others employees were relieved from their services. The aggrieved employees filed numerous writ petitions before this court wherein they challenged their termination notices but all the petitions were dismissed, vide consolidated judgment dated 18.10.2018, in Writ Petition No. 2269-P/2018. The operative part of the judgment, for ready reference, is reproduced below:- "In this view of the matter, we without further dilating upon the illegalities and regularities committed in process of appointments of the petitioners, would straightaway rely on the principles laid down by the Hon'ble apex Court in its judgment dated 04.10.2017, rendered in Civil Petitions Nos. 4504 to 4576, 4588 and 4589 of 2017, operative part of which is reproduced below for the sake of convenience and ready reference: - "Having heard the learned counsel for the parties, we find that contractual employees have no right to be regularized, until there is a law provided to that effect and we are not confronted with any such legal proposition. They are the contractual employees and have to serve till the pleasure of their master and in case of any wrongful termination, which according to them has taken place, they cannot seek the reinstatement. At the best, they can only have the compensation for the wrongful termination by applying to the competent court of law." (Bold and underlines are ours for emphasis)

7. Following the ratio of judgment (supra) of the Hon'able Supreme Court this and the connected writ petitions mentioned above, being bereft of merit are hereby dismissed. Interim order dated 10.05.2018 is hereby withdrawn/recalled. However, the petitioners would be at liberty to seek their other remedy if any, before the proper forum."

7. Admittedly, the petitioners were the contractual employees of the respondents' University for the period of one year or till the arrival of the regular selectees and as per clause (1) of terms and conditions of their appointment orders, their services were to be terminated at any time/stage without serving any prior notice. Yes, the petitioners have served in the respondents-University from years, 2013 to 2019 but there are no provisions in the Khyber Pakhtunkhwa Universities Act, 2012 (as amended by the Act, 2016) under which they could claim their regularization as a right. The petitioners were relieved from services like the other contractual employees of the University, who challenged their orders in various writ petitions, hinted to above, before this court which were dismissed vide judgment dated 18.10.2018.

8. As far as judgment dated 10.05.2018 passed by this court in Writ Petition No. 4639-P/ 2016 is concerned, this court has already been held in the order dated 16.01.2019 in COC No.747-P/2018 that there were neither any policy of regularization in the respondent-University nor the petitioners were appointed through the recruitment process i.e., advertisement, open competition and also adopting the policy of merit rather 652 employees of the University were in BPS 1 to 16 at the time of regularization, unlike the petitioners in BPS-17 and further that the said employees were regularized under the policy of Provincial Government, notified vide notification dated 10.08.2015, at a time when the respondents-University did not have its own statutes. This court has further held in the said order that in the judgment there were no specific direction issued to the respondent-University so as to penalize them for non-compliance/ defiance of such direction.

9. It has now been settled by the apex Court that all the employees having entered into contracts of service on the same or similar terms and conditions have no vested right to seek regularization of their employment, which is discretionary with the master and the master is well within his rights to retain or dispense with the service of employees on the basis of satisfactory or otherwise performance. Rel PLD 2011 SC 132, 2013 SCMR 302, 2005 SCMR 642, 2016 MLD 95, 2013 SCMR 13, 2013 SCMR 304 and 2017 PLC (C.S.) 940). In the matter of appointments of University employees in term of section 11(5) of Khyber Pakhtunkhwa Universities Act, 2012, recently the Hon'ble Supreme Court in case titled (Owais Shams Durani and others v. Vice-Chancellor Bach Khan University, Charsadda and another) (2020 SCMR 1041) has held:- "Admittedly, the petitioners' appointments were made in terms of section 11(5)(d) of the Act, 2012 which limits the power of the Vice-Chancellor to create temporary posts and make appointments to a maximum period of three years. There is no denial of the fact that the petitioners worked for three years and thereafter their contracts expired with afflux of time and even otherwise the power on the basis of which the appointments were made exhausted itself by operation of law".

10. In view of the above, the instant petition being without any merit is hereby dismissed, consequently, the interim order dated 12.09.2019 is hereby withdrawn. However, the petitioners would be at liberty to seek their other remedy if any, before the proper forum. Since the order dated 12.09.2019 has been withdrawn, therefore, in the circumstances, the connected COC No. 808-P/2019, having been infructuous, is also dismissed. SA/108/P Petition dismissed.