2025 PLP 155 (PLC)

SHAUKAT ALI RAKHSHANI, J.

The instant constitutional petition filed by the petitioners under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution"), carries the following relief; "a) the impugned order dated 14th December 2020 of learned NIRC Quetta bench to the extent of not awarding the back benefits to the petitioners by regularizing their services with immediate effect and impugned order dated 26th January 2022 passed by learned full bench of National Industrial Relations Commission Islamabad at Karachi as a whole, are patently illegal, void, in excess of authority, discriminatory, unconstitutional and of no legal effect: b) any other order/relief, as may be deemed fit and appropriate in the circumstances of the case, may also be passed/awarded along with cost of the petition."

2. Facts germane for disposal of the instant petition are that according to the petitioners, they were appointed as General Service Attendants and Sanitary Attendants (PG-1 and PG-2) in the Civil Aviation Authority ("CAA") in pursuance of "Aghaz-e-Haqooq Balochistan Package" vide orders dated 03.05.2012 and that despite permanent nature of their job, they were not confirmed as regular employees by the CAA. It is further case of the petitioners that services of the other employees so appointed under the "Aghaz-e-Haqooq Balochistan" in various departments have been confirmed, but they have been deprived, thus feeling aggrieved, they filed a grievance petition under section 33 of the Industrial Relations Act, 2012 ("Act of 2012") before learned National Industrial Relations Commission, Quetta Bench ("NIRC, Quetta"), which was contested by the respondents. The NIRC, Quetta after hearing the parties, vide impugned order dated 14th December 2020 allowed the petition and directed the respondents to regularize the services of the petitioners without back benefits.

3. However, the petitioners being aggrieved from order dated 14th December 2020 to the extent of not awarding the back benefits filed an appeal under section 58 of the Act of 2012 before the NIRC Islamabad full bench at Karachi, whereas the respondents also challenged the impugned order of NIRC, Quetta by filing a separate appeal. The learned full bench of NIRC, Karachi vide impugned order dated 26th January 2022 dismissed the appeal of the petitioners and also set-aside the order of learned single bench of NIRC, Quetta dated 14th December 2020 by allowing the appeal filed by the respondents, hence this petition.

4. In response to the petition, parawise comments were filed by respondents, repudiating the claim of the petitioners on factual and legal premises.

5. Heard. Record gone through with the able assistance of learned counsel for the adversarial parties. Record reflects that the petitioners filed a grievance petition under section 33 of the Act of 2012 before the learned single bench of NIRC, Quetta, which was allowed vide order dated 14th December 2020 and directed the respondents to regularize the services of petitioners, however, in appeal filed by the respondents, the order impugned was set-aside and the grievance petition was dismissed vide impugned order dated 26th January 2022, the operative para whereof reads as under; "

7. We have heard the counsel for both the parties and perused the record including the evidences of the parties, which transpires that the IRA, 2012 is not applicable to the CAA, therefore, Appeal No.12(01)/2021-Q Zahir Shah and 40 others v. Director General Civil Aviation Authority is dismissed being not maintainable under the IRA, 2012 as the same is barred by law whereas, Appeal No.12(04)/2021-Q Director General Civil Aviation Authority v. Zahir Shah and 40 others is allowed and the impugned order dated 14.12.2020 passed by learned Single Member NIRC bench Quetta, is set-aside and grievance Petition No.4B(24)/2019-Q is also dismissed. There is no order as to cost."

6. Be that as it may, while exercising constitutional jurisdiction as contemplated under Article 199 of the Constitution, the question remains that as to whether the petitioners have any vested right for regularization of their services or otherwise.

7. The apex court in the case of "Ejaz Akbar Kasi v. Ministry of Information and Broadcasting" (2011 PLC (C.S) 367), while dealing with the case of regularization of Pakistan Television ("PTV") employees bifurcated the services of contractual employees into two categories; first of those who had served the department for more than ten years; the second, who had appeared before the Examination Board and after qualifying the examination were inducted into service and had discharged their duties without any interference or break. It was held in the judgment ibid that a policy for regularization of services of the employees is to be framed by the PTV, considering their services for the period of more than ten years, who had spent the major chunk of their life in the organization and had been working against their existing sanctioned vacancies for which budgetary allocation was also made annually, out of which they were being paid regularly, thus their cases were directed to be sent to the Board of Directors for consideration for the said reasons as well as to adhere to the provisions of Article 25 of the Constitution. However, cases of the employees, who were inducted in the service after Examination of Board and had completed their probation period, the PTV administration was directed to issue their letters as permanent employees.

8. In the case of "Chief Secretary Government of Balochistan v. Adeel-ur-Rehman" (2024 PLC (C.S.) 242), the Supreme Court of Pakistan, while dealing with the question of regularization of contract employees appointed against project posts held that mere creation of post on regular side does not confer, in the absence of any statutory support, an automatic right of regularization in favor of the contract employees working against project posts and that Article 25 of the Constitution does not envisage negative equality as wrong concession in favour of one person does not entitle any other person to claim benefit thereof as such right can only be claimed when the decision is taken in accordance with law. Similarly, the apex court in the case of "Vice Chancellor Agriculture University v. Muhammad Shafiq" (2024 SCMR 527) held that regularization in service of contractual employees must demonstrate statutory basis for such a claim and in absence, no relief can be granted solely on the principle of 'similarly placed persons' and that the regularization in service is a policy matter, which must not ordinarily be interfered with by the courts as it is the prerogative of the executive to make policies and adhere thereto. It has further been expounded that it does not befit the courts to design or formulate a policy, however, the courts can judicially review a policy, if it is in volition of the fundamental rights guaranteed under the Constitution.

9. Epitome of the above discussion is that while exercising constitutional jurisdiction, the court cannot direct the executive or any other institution working thereunder to make a specific policy relating to regularization of service of the employees of the concerned departments or to direct them to regularize the services of any kind of employee without any backing of law and policy, however, this court may intervene and strike down any policy, which is found to be contrary to the fundamental rights guaranteed under the Constitution.

10. In the instant case, neither the petitioners nor the respondents have brought before us any enactment or policy for regularization of services of the petitioners, thus in absence of any statutory backing, this Court is unable to direct the respondents to regularize service of the petitioners. However, we do expect that while keeping in view the services of the petitioners spreading over a long span of 12 years and that too without any complaint, they cannot go elsewhere for job, thus they deserve a sympathetic consideration by the department concerned either by enactment or by framing a policy for regularization or at least place their cases before the Ministry of Aviation, Government of Pakistan or apex forum of the department to examine their cases for regularization at the earliest.

11. The petition stands disposed of in the above terms. SA/169/Bal. Order accordingly.