2022 PLP (C (PLC(CS))

AHMAD NADEEM ARSHAD, J.

Through this single judgment, I intend to dispose of the above captioned Writ Petition and Writ Petitions Nos.16393 of 2019 to 16399 of 2019 and Writ Petition No.7499 of 2020 as in all writ petitions common question of law and facts are involved. The petitioners have called in question the validity of orders dated 02.08.2019, 26.08.2019, and 07.10.2019, whereby, respondent No. 3, while deciding their representations, declared that the cases of the petitioners for regularization of their services would be considered as and when vacancies are created in future. In addition thereto, they have also challenged orders dated 19.06.2019 and 08.07.2019 whereby the service of some persons have been regularized. Besides, they have also assailed validity of the advertisement whereby applications were invited for the vacant posts.

2. Tersely, the facts, as divulged in these petitions, are that the petitioners, who were daily wagers/work charge employees in Pakistan Agricultural Storage and Services Corporation (hereinafter to be referred as PASSCO) as Chowkidars had earlier filed writ petitions whereby they prayed for regularization of their services instead of filling up the posts of Chowkidar through fresh appointments, which were disposed of on their statements that they would be satisfied, if a direction be issued to Managing Director, PASSCO, Lahore to redress their grievances strictly in accordance with law. A Committee was constituted for the scrutiny of record/data of work-charge employees to assess their suitability for consideration regarding regularization of their services vide Office Order No. 2335 dated 29.07.2019. Respondent No.1 decided all the applications vide orders dated 02.08.2019, 26.08.2019 and 07.10.2019, respectively in the following manners: - "The case of the petitioners will be considered as and when vacancies are created in future." The petitioners feeling aggrieved challenged those orders through their independent writ petitions and also challenged the regularization of the services of some daily wages Chowkidars who were regularized vide order dated 08.07.2018 and also challenged the order dated 19.06.2019 regarding regularization of some other officials, by alleging that impugned orders were passed discriminately. The petitioners also challenged the issuance of an advertisement and process of new appointments whereby applications were invited from suitable candidates for the vacant posts, on the ground that it was against their past commitment as it was decided that the cases of the petitioners would be considered as and when vacancies are created in future. Their stance is that without considering them for regularization, the respondents are not justified to invite fresh applications.

3. Learned counsel appearing on behalf of the petitioners states that impugned orders are against law and facts and runs counter to well-established principles of justice, equity and good conscience; that availability of vacant posts is no excuse to deprive the petitioners from their vested right; that the respondents committed discrimination while regularizing the services of other persons; that the services of private respondents had been regularized without constitution of any scrutiny committee; that fundamental rights of the petitioners have been violated and lastly prayed for acceptance of the writ petitions.

4. Conversely, learned counsel appearing on behalf of respondents Nos.2 to 4 states that the employees of PASSCO are not governed by any statutory rules, therefore, the writ petitions are not maintainable; that principle of master and servant is applicable to the petitioners, hence no interference is warranted in these petitions; that the writ petitions are not competent due to non-joining of necessary party; that the petitioners have already demanded the same relief through their earlier writ petitions and those writ petitions were disposed of by this Court with a direction to decide the same by treating it as application strictly in accordance with law, hence, writ petitions in second round are not sustainable and barred in view of the principle of res-judicata, law of estoppel and under Order II, Rule 2, C.P.C.; that services of the petitioners have been hired by PASSCO on daily wages basis as per their own requirement within their zone and their wages have been paid from incidental fund and not from the budget of the PASSCO, therefore, the petitioners being not the employees of PASSCO cannot be regularized

5. I have heard the arguments from both sides and perused the record. 6. "PASSCO" (Pakistan Agricultural Storage and Services Corporation) is a public limited company registered under the Company Act and was established in 1973 and commenced its operation in May, 1974. The PASSCO is being controlled through the Board of Directors who have been appointed by the shareholders. The purpose and mission of PASSCO was to- Facilitate the Federal Government in its quest to ensure national food security by maintaining strategic reserves of different food grain commodities providing the same to deficit provinces including armed forces and maintain international food bank on behalf of Federal Government, Ensuring implementation of support price to stabilize the prices and extend state welfare to farmer's community, also to carry out agro business activities at own/in collaboration with national and international organizations aiming at farmer's community interest, achieving self-sustainability, lessening burden on national exchequer while endeavoring to achieve farmer's prosperity and self-sufficiency in food grain commodities in Pakistan. And to achieve that purpose and mission following functions were assigned to PASSCO: - a. Provision of food security at national level, by maintaining reserves of wheat and other specified commodities. b. Extending state welfare to farmer's by providing support to farmer's, stabilize prices by intervening in domestic market. c. Release Wheat to deficit provinces as well as Armed Forces. d. Undertake import/export when called upon. e. Construction of modern storage facilities. f. Assisting the farmer's in their cultivation by supplying seeds, fertilizers and other related supplements. g. Carrying out agro business/trade activities to achieve sustainability.

7. For smooth and efficient functioning of Corporation, a policy was formulated by the Board of Directors, which is called as "The Pakistan Storage and Services Corporation. Human Resource Policy, 2011. (Hereinafter called Human Resource Policy/H.R Policy). The Board of Directors in its 103rd meeting discussed and analyzed the policy and upon recommendations from the sub-committee, approved it in its 104th meeting held on 07.05.2011. The policy bifurcated the employees of the PASSCO into two parts. First category called "Officers" and second category called "Officials". The Board of Directors, while approving H.R Policy, also approved organizational structure/strength of the employees of PASSCO that comes to 1250 consisting of 309 officers and 941 officials. In addition to above strength, PASSCO management approved to engage 68 employees on daily wages/work charge basis for its effective functioning at Head Office. To look after the field assignment, 1000 daily wages/work charge employees for watch and ward duties were also approved. The Board of Directors has the exclusively authority to make changes in the policy or number of employees, as and when required in the light of the decision made in its meeting. The policy has also formulated pay, scales and grades of their employees and provided the procedure of their appointments/recruitments. The Human Resource Policy deals with all the affairs of the employees of the corporation and also provides their service rules. The Human Resource Policy, which is the code of Service Regulation, has neither been framed by the Government, nor it has the approval of Government, hence are non-statutory nature rather it is meant for internal working. In this background, the inter se relationship between the employer and the employees is that of master and servant.

8. There are two categories of posts in the PASSCO viz. one, consisting of permanent employees and second relates to employees on temporary basis whose services have been hired according to the needs of Corporation. The method of recruitment for their employment is altogether different. The permanent employees are recruited in the light of method as provided in the Human Resource Policy, 2011, while the procedure for engagement the services of the temporary employees such like daily wages employees has been provided in letter dated 28.11.2014 whereby the Standing Operating Procedure (SOP) was formulated.

9. In the Human Resource Policy, 2011 the permanent post of Chowkidar has been mentioned at serial number 25 in the category of the official and their number of strength is also settled. The qualification for the post of Chowkidar is given in para 66 of the H.R Policy at serial number 63 which is reproduced herein below:- "Middle preferably ex-Army/police/CAF Officials. For civilian Middle" The method of recruitment of such type of Chowkidar is the same as provided for selection of permanent employee in para 18 of H.R policy, which is as under: -

18. Method of Recruitment a. Recruitments shall be made both by promotions from lower posts and by direct hiring respectively as per ratio given below:- i. GMs and DGMs 50:50 ii. All other officers and Officials 60:40 b. However, if no employee is available/fit for promotion as per policy, recruitment shall be made by direct hiring against quota fixed for promotion. c. All recruitments shall be made by respective Competent Authorities by following the process given hereunder:- (i) Grade 20 Executive Committee of BODs (ii) Grade 16 to 19 Managing Director (iii) Grade 01 to 07 GM (Human Resource) d. All vacancies shall be advertised in at least two leading newspapers having wide circulation. e. Selection should be made through Selection Committee constituted by the Competent Authority. f. In case of re-employment of retired Arms Forces Officers, the condition of open advertisement shall not be applied. However, the panel of officers will be requested from GHQ. g. The recruitment shall be made against available regular vacant vacancy on standard terms and conditions with a probation period of one year; or extendable to one more year including termination clause of one month's notice or one month's pay in lieu thereof. h. Recruitments shall be made on the basis of quota fixed by the Federal Government/Board of Directors. j. Recruitments shall be made at the minimum pay of the grade but in exceptional cases, where persons to be recruited possess experience or special qualifications or both, the Competent Authority may all, for reasons to be recorded in writing, a higher salary in the time scale of the grade. Note: The provisions of this policy shall not apply to persons who may be recruited on deputation from a Government Department or any other semi-government institution as they will be governed by their own terms and conditions of deputation. Para 19 of the H.R Policy describes the conditions which are required for recruitment which is reproduced herein below:-

19. Conditions of Recruitment. a. Candidate must be a citizen of Pakistan. b. The minimum academic/professional qualifications/ experience for direct recruitment (not for promotion) to the posts shall be as shown against each in para 66 (Job Qualification). c. In addition to the educational qualifications the candidates for these posts may be required to possess such other technical qualifications as the Competent Authority may, lay down from time to time. d. A candidate shall not be less than 18 years or more than 30 years of age at the time of recruitment but upper limits may in suitable cases be relaxed by the appointing authority. These age limits, however, do not apply to senior recruitments, where experience is prescribed as laid down in para 66. e. Every candidate must go through a complete medical test (including Hepatitis) from nominated PASSCO Authorized Medical Attendant or Medical Superintendent of Government Hospital at his/her own expense before entering the service of the Corporation. f. Candidate if selected shall be liable to transfer anywhere in Pakistan. g. The provisions of Federal Government Rules and Regulations regarding Educational Qualification shall be applied to persons taken on deputation or retired Government servants who are re-employed."

10. One of the functions of PASSCO is to ensure national food security by maintaining reserves of Wheat and other specified commodities. For procurement of Wheat, its protection and safe custody a huge number of seasonal work charge employees are required which are being engaged in the procurement areas on daily wages on temporary basis. Those employees are called chowkidars and are appointed seasonally on contract basis as and when required according to wheat stock and for its security and safety for a specific period. Their services are discontinued when the stock is lifted/dispatched or on completion of the task because there is no need for the security of empty Godowns/Centers. The PASSCO, through letter No. PASSCO/GMF / Coord/2014/CR.1737 dated 28.11.2014 settled the Standing Operating Procedure (S.O.P) for the engagement of chowkidars as daily wagers in the Field Zones. In para 3 of the letter, procedure for engagement of chowkidars is described, which for convenience of reference is reproduced herein below: - a. The godowns/centre incharge will select suitable candidates as per authorization approved by competent authority vide letter No. PASSCO/GMF/602-FW/95/Cr-432 dated: 12th Feb. 1995 preferably from the vicinity of storage point against their written request in shape of application. b. The selected individuals should be agile, physically fit and must not have any involvement in criminal activities. c. The incharge will then forward the Application duly recommended along with copy of CNIC and two passport size photographs to respective zonal head through project incharge. d. The zonal head will scrutinize the record/particulars of candidate according to documentary proof and then approve the engagement. However, Zonal Head will ensure concurrent verification of antecedents of the daily wagers through police. e. Engagement of chowkidars will be notified through an order by Zonal head for 85 days and forward copies to all concerned with copy of GM (Field) and GM (F&A). (Emphasized supplied) In para 5 of the said letter, tenure of engagement and termination has been provided in the following manner:- Tenure of Engagement and Termination: All engagements on daily wagers will be made for specific task/stock and on completion of task/disposal of stock, their employment will be terminated without any prior notice. Person found absent from duty, without intimation, will also be terminated immediately." Para 7 provides procedure of payment. "Zonal office will submit monthly demand of contingent staff as proforma attached as Annexure-A by 10th of each month to Field Wing for further processing to F&A Wing". Para 8 of the letter ibid provides as under: "After detailed scrutiny of demand of each zone by Field Wing, case file will be forwarded to F&A Wing with recommendations up to 18th of the month. F&A wing will put up summary regarding wages of daily wages of all zones to worthy MD for approval. After approval, funds will be provided to zones upto 28th of each month through online bank. Zonal offices will submit detail of accounts/salaries paid to the daily wagers for the preceding month to F&A Wing by 7th of each month along with attendance record to account for the wages/expenses in book of accounts". Para No. 9 related to the wages of chowkidars which is as under: - "Wages will be paid from incidental fund and will be disbursed by the account officer of the zone through concerned PM or incharge centre. In case of wrong excessive payment, the centre Incharge, Project Incharge, accounts officer and Zonal Head shall be responsible @ the ratio of 30%, 30%, 20% respectively."

11. Undeniably, the services of the petitioners were hired in the light of letter ibid, therefore, they are bound by the terms and conditions as settled in the letter ibid. It is also mentioned in their appointment orders that they have been engaged only for 85 days and will be considered terminated from service after that period or earlier completion of job/task. It is also clarified in their recruitment order that their job is purely on temporarily basis and they will not claim themselves as regular employees of the corporation at any stage. The petitioners' services, which were hired for a specific post of Chowkidar on daily wages for a specific task only for 85 days, stood terminated automatically without any prior notice on completion of task/disposal of stock and could not claim regularization of their services.

12. To look after the field assignment, 1000 daily wages/work charge employees (Chowkidars) were required for watch and ward duty and for the security and protection of wheat stocks stored in godowns. For this purpose, staff was engaged on temporarily basis according to accumulation of wheat stocks procured/stored at purchase centers/reservoirs. After clearance/release of the wheat stocks, the services of the chowkidar/daily wagers were not further required. Therefore, it is not feasible to appoint chowkidar on permanent regular basis, similarly regularization of all the chowkidars are not suitable for the corporation as it is not in the interest of the corporation to pay for nothing. The break up in the services of petitioners/daily wagers was not artificial rather genuine as after completion of task, their services were not further required. The petitioners cannot claim as a right for regularization of their services.

13. To enhance wheat storage capacity, PASSCO management decided to construct Godowns at different locations/zones in Pakistan. To look after the construction work, four supervisors and some number of chowkidars were required. It was decided, due to non-operational activity of minor crop; the staff of minor crop was re-designated and utilized to look after PASSCO Godowns. On the recommendation of H.R. Committee, the Board of Directors of PASSCO in its 136th meeting held on 01 July, 2019 approved to change the nomenclature of 04 minor crops posts as supervisors and also approved to change the nomenclature of 35 vacant posts of minor crop as Chowkidars. In this background 04 persons as supervisor and 35 persons out of almost 700/800 daily wages employees were regularized. The Board of Director has only changed the nomenclature of existing vacant posts of Minor Crop to meet with the requirements. Neither any posts of Chowkidar were created for recruitment nor were filled in by the PASSCO management in accordance with recruitment policy for permanent employees. Those posts were filled whose nomenclature was changed. The services of only such work charge Chowkidars were regularized who were suitable and fulfilling the induction criteria. The daily wages chowkidar were regularized through order dated 08.07.2018 and some other officials were also regularized vide separate orders dated 19.06.2019. The petitioners, who were daily wages Chowkidars, have challenged both the orders of regularization. They at the most could challenge the validity of regularization of the Chowkidars as they have no concern with the regularization of other officials. Only 35 persons were required for the post Chowkidar throughout Pakistan and services of 17 daily wages Chowkidars were regularized in the concerned zone vide order dated 08.07.2018 after due process of law. The petitioners failed to make all of them as a party in their petitions who were regularized, therefore, no effective order can be passed against them in their absence. The petitioners also failed to establish on record that any discrimination was committed by the authority while regularizing the services of daily wage Chowkidars. The petitioners failed to point out any illegality or irregularity and violation of the policy for regularization of those persons. Learned counsel appearing on behalf of the petitioners also failed to satisfy the Court as to how their fundamental rights were infringed by that regularization. There is no material on record which suggest that the act of the authority is violative of the service regulations. The petitioners could invoke the constitutional jurisdiction, if they prove any violation of the service regulations. The August Supreme Court of Pakistan in "Muhammad Rafi and another v. Federation of Pakistan" (2016 SCMR 2146) held as under:- " an aggrieved person can invoke the constitutional jurisdiction of the High Court against a public authority if he satisfies that the act of the authority is violative of the service Regulations even if they are non-statutory."

14. The petitioners, through the Writ Petition No.7499 of 2020, have challenged the issuance of an advertisement dated 17.06.2020 whereby applications were invited for vacant post. The grievance of the petitioners is that without considering the case of the petitioners for regularization, the respondents were not justified to invite fresh applications. In answer to that objection, the respondents contended that the applications were invited only for vacant posts from suitable candidates and there was neither any vacancy of Chowkidar which was vacant and available for recruitment nor it was advertised in the newspaper. The copy of advertisement available on the file fortifies their contentions as no post of Chowkidar was advertised. The Board of Directors approved the strength of PASSCO employees which is consisting of 1250 permanent employees and 1068 temporary employees on daily wages/work charge basis and only the Board has authority to change the strength of the employees and the Board of Director had not made any change in the strength, therefore, neither any vacancy for induction of Chowkidar was available nor advertised. Therefore, the grievance of the petitioners was not genuine rather misconceived.

15. Admittedly, PASSCO is a public limited company and the policy and service rules were made by the Board of Directors which are non-statutory and the employees of PASSCO are governed by the non-statutory rules and they would be governed by the principle of "Master and Servant". The petitioners, who were contract employees of PASSCO having entered into contracts of service against the terms and conditions settled between them, have no vested right to seek regularization of their employment, which is discretionary with the Master. In the letter dated ibid and their appointment orders/contracts, neither any provisions for regularization nor extension of their contract was existed, therefore, the contractual employees have no automatic right to be regularized. Reliance is placed upon the judgment of august Supreme Court of Pakistan in ""Government of Khyber Pakhtunkhwa, Workers Welfare Board through Chairman v. Raheel Ali Gohar and others" (2020 SCMR 2068) held as under: - "Contractual employees have no automatic right to be regularized unless the same has specifically been provided for in law." In a recent judgment of august Supreme Court of Pakistan titled as "Messrs Sui Southern Gas Company Ltd. v. Zeeshan Usman and others" (2021 SCMR 609) it was held as under: - "This Court in number of cases has held that contract employees have no vested right to claim regularization." The petitioners have no right to approach the High Court by invoking constitutional jurisdiction for regularization of their services as the relationship between the petitioners and respondents is governed by the principle of master and servant. The August Supreme Court of Pakistan in "Pakistan Telecommunication Co. Ltd. through Chairmen v. Iqbal Nasir and others" (PLD 2011 SC 132) held as under:- "The master is well within his rights to retain or dispense with the services of an employee on the basis of satisfactory or otherwise performance. The contract employees have no right to invoke writ jurisdiction, particularly in the instant case where their services have been terminated on completion of period of contract." The Hon'ble Supreme Court of Pakistan in Government of Khyber Pakhtunkhwa, supra, also held as under:- "It is settled law that as contractual employees, the relationship between the respondent and the appellant is governed by the principle of master and servant. In these circumstances, the respondent did not have the right to approach the High Court to seek redressal of their grievance relating to regularization."

16. In these circumstances, all the writ petitions are not maintainable and the same are dismissed accordingly. ZH/M-173/L Petition dismissed.