Regularization

Both the parties preferred their respective appeals, however, the appeal of the petitioners was dismissed being not maintainable owing to inapplicability of Industrial Relations Act, 2012 (IRA, 2012) to the Civil Aviation Authority and the appeal of the respondent-Department was allowed

Validity

While exercising constitutional jurisdiction, the High 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, High Court may intervene and strike down any policy, which is found to be contrary to the fundamental rights guaranteed under the Constitution

Neither the petitioners nor the respondents had brought before High Court any enactment or policy for regularization of services of the petitioners, thus, in absence of any statutory backing, High Court was unable to direct the respondents to regularize service of the petitioners

Constitutional petition was disposed of in circumstances, with the expectation that while keeping in view long service and that too without any complaint, the petitioners could not go elsewhere for job, thus, they deserved a sympathetic consideration by the department concerned either by enactment or by framing a policy for regularization or at least place their cases for regularization.

Khyber Pakhtunkhwa Culture and Tourism Authority Employees (Appointment and Conditions of Service) Regulations, 2020, Regln. 9(a)

Contract appointment

Regularization

Extension in contract from time to time for 03 years

Petitioners were appointed on contract basis against different posts

Petitioners after completing contract period of 03 years sought regularization in service from the date of their appointment on the ground of discrimination

Validity

Under S.32 of the Khyber Pakhtunkhwa Tourism Act, 2019 (Act), after completion of 03 years, in case of fresh hiring, preference was to be given to the candidates, who had served the authorities with good performance reports

Contract employment terminates on the expiry of the contract period and it is the choice of the employer either to extend it or to discontinue it, and prima facie it does not create any vested right

In petitioner's case, there was no option for the competent authority to allow extension beyond three years in view of provisions contained in the Act and Regulation

Constitutional petition was dismissed, in circumstances.

Order of termination in post remand proceedings during the operation/subsistence of injunctive order of Labour Court and High Court

Legality

Regularizations of other daily wage employees

Discrimination

Mala fide

Alteration in record

Scope

Respondents daily wage employees claimed their regularization against permanent posts

Plea of the petitioners was that since the services of the respondents had been terminated, therefore, they could not be regularized

Validity

Termination of service of daily wage employees, who had attained the status of permanent workmen after the expiry of the requisite period, without adhering to the procedure laid down under S.O. 12 of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, was illegal and could not impede their claim for regularization

Evidence of mala fide on the part of the employer, such as alteration of attendance records to show unauthorized absence or discriminatory treatment in regularizing similarly situated employees, could be taken into consideration by the courts while deciding the grievance petition of the affected employees

Termination letter of respondents showed that the same related to promotion of another employee, however, on the margin of the said document a note as to termination of respondent had been given

Petitioners were not able to produce termination order of one of the respondents, which cast serious doubts about the conduct of the petitioners

Any action taken by an employer against an employee during the subsistence of an interim injunction or a status quo order issued by a court of competent jurisdiction is subject to scrutiny by the said court and cannot be used to prejudice the employee's rights in the ongoing proceedings

Concurrent findings of facts recorded by the courts below cannot be upset in Constitutional petition

Constitutional petition was dismissed, in circumstances.

Contention of the petitioners was that respondents did not fall within the definition of workmen, therefore, being civil servants they should have approached the Service Tribunal

Validity

Daily wage employees of Pakistan Railways, not employed in a managerial or administrative capacity, fall within the definition of "workman" under S. 2(xxx) of the Industrial Relations Ordinance, 2002 (IRO, 2002), and were, thus, entitled to approach the Labour Court for redressal of their grievances, including regularization of service

Pakistan Railways, being defined as a "railway" under S.3(f) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, constitutes an "industrial establishment," further subjecting its daily wage/work charge employees to the jurisdiction of the Labour Court

Petitioners filed application under O.VII, R. 11, C.P.C., seeking rejection of grievance petition filed by the respondents on the point of jurisdiction, which was dismissed and the said order attained finality having not been challenged by the petitioners

Objection to the jurisdiction of the Labour Court, if not challenged at an earlier stage and allowed to attain finality, cannot be raised subsequently in a writ petition

Daily wage employees of a statutory corporation like Pakistan Railways do not automatically attain the status of "civil servants" within the meaning of the Civil Servants Act, 1973, in the absence of a corresponding amendment, thus, the exclusive jurisdiction of the Federal Service Tribunal under S. 3(2) of the Federal Service Tribunals Act, 1973, pertaining to the terms and conditions of civil servants, did not extend to daily wage employees

Objection raised by the petitioner as to jurisdiction of the Labour Court was spurned.

Petitioners rendered contingent / contractual services to respondent / Sui Southern Gas Company Limited, through third party companies or otherwise and had claimed for regularization in respondent / company

Validity

For issuing a writ under Art. 199(1)(a) of the Constitution, a petitioner has to establish that he is guaranteed a fundamental or legal right

Object of Art. 199 of the Constitution is enforcement of a legal right and not establishment of a legal right

In absence of a specific provision in contract or law providing for regularization, contract employees do not have vested right for regular appointment solely due to long and satisfactory contractual service

While exercising jurisdiction under Art. 199 of the Constitution, High Court cannot extend scope of a contract or alter terms and conditions of employment in favour of an employee

There was no statute or Government policy applicable to respondent / company requiring or enabling it to regularize contract employees and no writ could be issued to respondent / company to do so under Art. 199(1)(a) of the Constitution

Refusal of respondent / company to regularize petitioners did not infringe their fundamental rights in Art. 9 or 25 of the Constitution and did not entitle them to invoke Constitutional jurisdiction of High Court

Constitutional petition was dismissed in circumstances.

Petitioners rendered contingent / contractual services to respondent / Sui Southern Gas Company Limited, through third party companies or otherwise and had claimed regularization in respondent / company

Validity

Subject of regularization was not a part of terms and conditions of service

Question of maintainability of such claim did not turn on whether service rules of respondent / company were statutory or non-statutory so much as whether any statute or other instrument having force of law conferred such right so as to admit to its enforcement through a petition under Art. 199 of the Constitution

From the stand point of Art. 199 of the Constitution, subject of entitlement to regularization and question of maintainability of a petition brought on such subject were intertwined

In absence of any statute or other instrument having force of law requiring respondent / company to regularize service of petitioners, no entitlement had arisen so as to enable them to bring and maintain petitions under Art. 199 of the Constitution

Constitutional petition was dismissed accordingly.

Contention of the regular employees was that the contract employees could not be regularized as they had been appointed in breach of requirement of the NHA Act and Rules made thereunder

Validity

Absence of a written test in the initial appointment of some contractual employees of the (NHA) was not a fatal flaw precluding their regularization after serving for over a decade, especially when their educational qualifications and experience were not in question

Executive Board of NHA, guided by the National Highway Council, was the competent authority to formulate policies regarding the regularization of its contractual employees, as per the NHA Act

Decisions of the Cabinet Sub-Committee directing the regularization of employees in statutory bodies like NHA were without legal authority

It was for the Executive Board guided by the National Highway Council to make policy decision with regard to the regularization of contract employees and in doing so NHA could seek guidance from policies of the Federal Government in view of Ss.13 & 14 of the NHA Act, whereby the legislature had vested the authority to make appointments and prescribe the terms and conditions of service in the Executive Board subject to approval of the National Highway Council

It was for NHA to make such policy decision with regard to its human resource and not the Federal Government

Rule 3 of the NHA (Service) Rules, 1995, to the extent it granted the Federal Government the power to issue instruction to NHA with regard to creation of permanent or temporary posts or abolish the same, such rule was inconsistent with Ss. 13 & 14 of the NHA Act and must be read down and interpreted accordingly

Employees did not have a vested right in a particular organizational structure or human resource policy, provided their legitimate rights and terms and conditions of service were not detrimentally affected by policy changes

State cannot distribute jobs as largesse without a transparent and competitive recruitment process, as this violates the principles of public trust and equal opportunity

Long service of the contractual employees constituted an equitable consideration in favor of their regularization, rendering a requirement for a current written test as placing form over substance

Creation of a new cadre (NSSC) by NHA to accommodate regularized contractual employees without disturbing the seniority of regularly appointed employees was a valid policy decision

High Court found that the order of the Supreme Court had been duly executed by NHA qua regularization of contract employees and the decision of Cabinet Sub-Committee was held to be illegal

Executive Board and the National Highway Council had committed themselves not to induct any contractual employees without complying with all steps of the process prescribed by the NHA Act and Rules framed thereunder as such appointments could only be made against already sanctioned posts, thus, the manner in which contractual employees had been regularized could not be treated as a precedent to be emulated in future

Constitutional petitions were disposed of accordingly.

Services of an ad hoc / contract / fix pay employee could only be regularized if the same was backed by law / statute / rules / regulations

Contract employee could neither maintain Constitutional petition for enforcement of terms and conditions of his service, nor for renewal of contract or for the extension of contract period of his employment

High Court declined to interfere in the matter

Constitutional petition was dismissed in circumstances.

Regularization cannot take place without there being any statutory backing.

Appellants sought continuation of their service with respondent company but Single Judge of High Court declined to interfere in the matter as the rules were non-statutory

Validity

Ownership and control of respondent company by Federal Government did not ipso facto entail conclusion that the Service Manual was approved or was required to be approved by Federal Government

Approval of Service Manual would not bring it as a sub-delegated legislation under a statute

Division Bench of High Court declined to interfere in the order passed by Single Judge of High Court

Intra Court Appeal was dismissed in circumstances.

Petitioner sought regularization of her services under the provisions of Punjab Regularization of Service Act, 2018 (the Act)

Validity

Combined reading and analysis of the definition clauses of "contract employee" and "regularization" clearly spelt that a contract employee meant an eligible person appointed on contract in a department before the commencement of the Act

If an employee passed the test of definitions' sub-clauses, the Act envisaged satisfaction of another condition, which was contained in S.3 of the Act

If an employee qualified the condition of S.3 as well, then the competent authority was bound to submit his case for regularization in the mode, manner and mechanism contained in S.4 of the Act

Case of petitioner fell under S.4(3) of the Act, therefore, her case was required to be considered by the Scrutiny Committee constituted under S.5 of the Act, which direction was issued accordingly

Writ petition was allowed, in circumstances.

Regularization of employee was not a part of the terms and conditions of service of the employee and for the same there needed to be some statutory rules, but the same also depended upon the length of service

In terms of equity it had to be seen whether a person who had given his prime life to a department was kept in dark and his services were taken in a very exploitive manner

Contract employee could invoke constitutional jurisdiction of the High Court in respect of any grievance qua terms and conditions of his service.

If all ad hoc employees were to be considered for regularization it would be done in accordance with rules and for the purposes of appointments in BS-17 as per process set out by relevant department and Punjab Public Service Commission

Appellants had to go through Public Service Commission because although they participated in recruitment process in year 2017 yet they did not come on merit

Appellants were not selected or appointed against sanctioned seats

Appearance of appellants before Public Service Commission did not absolve them from requirement of undergoing process for selection by the Commission

Even if the authorities were to consider appellants for regularization, they had to be selected by Public Service Commission for appointment on merit

Division Bench of High Court declined to interfere in judgment passed by Single Judge of High Court in exercise of Constitutional jurisdiction

Intra Court Appeal was dismissed in circumstances.

Petitioner was working as Company Secretary with Trading Corporation of Pakistan who sought regularization of his service

Validity

Petitioner was a contractual employee having no vested right for regular appointment or to seek regularization of his service

Petitioner was debarred from invoking Constitutional jurisdiction of High Court

Writ of mandamus could not be claimed as a matter of right

For issuance of direction in the nature of mandamus, there must be a legal right existing in favour of the person seeking writ of mandamus and a corresponding legal duty imposed upon public officer or authority against whom the writ was sought

Company Secretary of a public sector company under R.13 of Public Sector Companies (Corporate Governance) Rules, 2013 was to be appointed by Board of that company

Petitioner did not have any vested right to seek regularization of his contractual service and he also did not acquire any legal right from appointment made by respondent company who accepted his employment on contract

No corresponding duty was cast on Trading Corporation of Pakistan to appoint petitioner on regular basis

High Court declined to grant writ of mandamus in favour of petitioner

Constitutional petition was dismissed, in circumstances.

As proviso was inserted in S.15 of National Command Authority Act, 2010, competently and validly therefore, High Court could not refuse to enforce it even if result of it was to nullify a judgment

Petitioners after availing all remedies available under S.11 of National Command Authority Act, 2010 or Rules made thereunder had a grievance of exceptional or extraordinary nature based on the ground of mala fide or coram non judice then the latter could submit a representation before the Authority and the Authority was to constitute a Committee pursuant to powers conferred under S.3(6) of National Command Authority Act, 2010, for consideration of grievances

Petitioners were regulated and governed under non-statutory rules and were not amenable to jurisdiction of High Court under Art.199 of the Constitution

Constitutional petition was dismissed accordingly.

Appointment of a person on contract basis in any Federal or Provincial Government department or an attached department or autonomous bodies/corporations without any competitive process is a violation of Art. 18 of the Constitution read with Art. 2A of the Constitution and is without any lawful consequence

Such a fundamental flaw in appointment cannot be 'regularized' by decision makers at the helm of affairs in the body in which the appointment has to be made

Only exception to the same is if the person who is appointed on contract basis without any competitive process is subjected to such a process and he is able to prove that his credentials are better than those of his competitors

Such contract/temporary employees cannot claim legitimate expectation of absorption / regularization as they know when they were appointed that they were temporary inasmuch as government does not give and assurance of regularization without following regular recruitment process.

All projects, jobs, vacancies and posts have no legal right to be claimed as permanent posts unless Federal Government declares same with approval

Only in such eventuality when post declared by the President of Pakistan and project has been converted into non-development budget, all those persons who have been recruited earlier if working on post of BPS-16 and above have to be processed through Federal Public Service Commission as required under S. 11-B Civil Servants Act, 1973.

Contract employee cannot claim regularization as a matter of course.

Department regularized all its employees but petitioner was ignored on the ground that he was not appointed on 1st July, 2012 nor he was holding the post on the said date

Validity

Employee was appointed on contract basis after qualifying test and interview against substantive vacancy of Steno-typist and was serving the department when Khyber Pakhtunkhwa Regulation of Lady Health Workers Program and Employees (Regularization and Standardization) Act, 2014 was promulgated

Employee was in active service of the department when process of regularization was afoot

Supreme Court had directed the government to consider such cases of regularization with effect from 01-07-2012

Department instead of extending benefit of the beneficial enactment to its employees was creating hurdle and hampering its accomplishment

Employee, in the present case, had been denied the similar treatment as being given to other employees by the department which was discriminatory

No person or class of persons should be denied the same protection of law which was enjoyed by other person or other class of persons in like circumstances

Department was directed to regularize the petitioner employee with effect from the date of his contract employment with all the service benefits

Constitutional petition was allowed in circumstances.

Contention of employer was that employees were appointed on work-charge basis therefore, they could not attain the status of a permanent employees

Validity

If a worker was appointed against a project which was likely to continue more than nine months and the worker remained in service for nine months, he would attain the status of a regular employee

Employees, in the present case, were working against the same post and project for the last many years

Post and project against which the employees were working was of permanent nature

Denial of employer to regularize the services of employees as permanent workmen was not permissible in law

Employees had attained the status of permanent workmen/workers by afflux of time

Services of employees should have been regularized in accordance with law

Any action, if required in case of any misconduct, could be initiated under S.O.12 of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and not otherwise

Employees had become over-aged during the period of their service and could not go anywhere nor could apply to earn their livelihood in any organization

Employer should have regularized the services of the employees

No jurisdictional defect, legal infirmity or irregularity was pointed out in the findings recorded by the forums below

Labour Appellate Tribunal had properly appreciated the evidence on record and concluded that employees were "permanent workmen"

Constitutional petition was dismissed in circumstances.

Contention of the petitioners was that inspite of working for a period of more than 05 years their services had not been regularized, whereas the services of other employees, who had been employed subsequent to the petitioners, had been regularized thus treating the petitioners discriminately

Authorities had not denied the appointment of the petitioners and stated that the process had been initiated for the regularization of petitioners and petitioners would be regularized as per policy of the Government

High Court allowed the constitutional petition and directed that the petitioners should be regularized/confirmed in their services as per law and should be permanently absorbed on a priority basis

Constitutional petition was allowed in circumstances.

Grievance of the petitioners was that a number of persons working on contract basis in the respondent/company were regularized, but the petitioners were not being regularized against their respective posts by treating them discriminately

Plea of the respondent/company was that the constitutional petition was liable to be dismissed, since the petitioners had no lien or right over the respondent company being not employees of the said organization

Validity

Salary sheets produced by the respondent company showed that the petitioners were the employees of the ZIM security company and were not on the pay roll of the respondent company

Petitioners were not in possession of any appointment letter issued to them by the respondent company and if the petitioners claimed that they were the employees of the company they should have at least produced the appointment letters issued to them

Assigning a job by the respondent company for deploying them at a certain place would not imply that they had become the employees of the said company when it was evident that the petitioners were the security guards, provided by Security Company as per the agreement executed between the respondent company and the said Security Company

Simply outsourcing certain specific job by the company would not mean that the petitioners had become employees of the company

Petitioners had failed to adduce any evidence to show that they were at any given point of time the employees of respondent Company, therefore, they were not entitled for regularization

Regularization of other persons were approved by the HR department of respondent company, who were working on casual work basis, therefore, they had no nexus with the case of the petitioners, and argument raised by the petitioners was not tenable

Constitutional petition was dismissed in circumstances.

Contention of the petitioners was that government had already regularized several other employees appointed on contract/ad hoc basis but they were discriminated

Validity

Provincial government had regularized the services of contract employees throughout the province, but said benefit was not extended to some of the employees, on the pretext that they had not been appointed in prescribed manner

Petitioners/employees who had been appointed on the recommendation of Departmental Selection Committee after test and interview were entitled for regularization being appointed in prescribed manner

Constitutional petition was allowed.

Change in nomenclature should not be used an excuse to deprive the employees from the benefit of regularization of their services

Petitioners/employees were not considered for regularization on the basis of change in nomenclature when most of the petitioners would not be eligible to be re-employed

Right to be regularized had accrued to the petitioners/employees at such a belated stage

High Court directed the authorities to consider the cases of petitioners of regularization.

Subsequent change in policy requiring different qualifications could not affect the right of the petitioners/employees from being extended the benefit of regularization as at the time of appointment they possessed relevant qualifications

Extraordinary constitutional jurisdiction of High Court was always exercised with compassion and could not disregard the fact that non-regularization of service of the petitioners/employees was an act which was violation of right of livelihood.

Contention of petitioners/contract employees that they should not be discriminated against, and their services should also be regularized without recourse to Public Service Commission

Validity

Policy of Government was that contract appointees on project/programme posts would be regularized on the recommendations of the Commission

Contract employees from other departments who had been regularized without recourse to Commission were holding posts different from the ones held by petitioners

When considering discrimination in regularization, each post had to be seen, and not the regularization of every post in the department

Petitioners did not have a vested right for regular appointment

Besides petitioners never moved the competent authority for regularization

Constitutional petition was dismissed accordingly.

Contract appointees did not have a vested right of regularization.

Regularization of one post would not entitle persons on another post to demand regularization and on the same terms.

Non-consideration of petitioner, who was figured at Serial No.17 for promotion by the Departmental Promotion Committee owing to pendency of inquiry in respect of Advance Audit Para No.2 regarding irregular appointment against the post of EST, whereas, juniors, who were figured at Serial Nos.18 to 65 were promoted

Contention was that pendency of inquiry and even minor penalty could not come in the way of promotion

Legality

Pendency of inquiry and one minor penalty could not come in the way of promotion of a civil servant

Civil servant could not claim promotion as a matter of right but it was an inalienable right of every civil servant that he be considered for promotion along with his batch-mates

Constitutional petition was allowed.