PLJ 2023 Lahore 114
Constitution of Pakistan, 1973--
----Art. 199--Contractual appointment--Extension for one
year--Criteria for regularization--Applicability of principle of
laches--Inordinate delay--Recruitment policy--Petitioners have not brought on record any document to show that they are still in service or further extension has been granted to them--Petitioners, at time of joining, have accepted all terms and conditions of their contract employment, cannot resile from same at a belated stage--It was for Department to decide how and in what manner reservations should be made and such a policy decision normally would not be open to challenge subject to its passing test of reasonableness--Petitioners have challenged Impugned order after lapse of one year two months and twelve days without explaining any convincing reasonable cause of inordinate delay, as such principle of laches is also applicable upon this case as three months’ time is considered reasonable for a party to assail an adverse order in writ jurisdiction of High Court--Petitioners, in spite of having 3rd Division in academic qualification, were duly appointed for a period of five years who performed their duties and tenure of further extension of one year was also expired--Petitions dismissed.
[Pp. 117, 120 & 121] A, B, D, E & F
2020 SCMR 1625, 2019 SCMR 124 & 2016 SCMR 183 ref.
Domain of Court--
----It is not in the domain of the Courts to embark upon an inquiry as to whether a particular policy is wise and acceptable or whether better policy could be drafted. [P. 120] C
Mr. Muhammad Ahmad Fiaz, Advocate for Petitioner.
Mr. Mujeeb-ur-Rehman Kiyani, Additional Advocate General for Respondents.
Malik Malik Ihtisham Saleem, Assistant Attorney General for Pakistan.
Date of hearing: 19.1.2022.
PLJ 2023 Lahore 114
[Rawalpindi Bench, Rawalpindi]
Present: Jawad Hassan, J.
UME JAMEELA--Petitioner
versus
PROVINCE OF PUNJAB and others--Respondents
W.P. No. 2538 of 2021, heard on 19.1.2022.
Judgment
Through this single judgment, I intend to decide this petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the “Constitution”) as well as connected Writ Petition No. 3085 of 2021 involving same question of law and facts.
A. BRIEF FACTS
2. Transitory facts as per petition are that Petitioner of this petition and of connected petition (the “Petitioners”) applied for the post of ESE (Sci-Math) in response to advertisement dated 17.11.2014 flashed by the Respondents under the Recruitment Policy, 2014 (the “Policy”). They were appointed as ESE (Science-Math) vide letter of agreements dated 08.05.2015 on contract basis for a period of five years. The said period of contract was further extended for one year in terms of order dated 01.04.2020. The Respondents in terms of order dated 05.06.2020 (the “impugned order”) regularized the services of persons appointed along with the Petitioners in year 2015 but the Petitioners were denied regularization and were only granted one-year extension. Hence this petition.
B. PETITIONERS’ SUBMISSIONS
3. Learned counsel for the Petitioners inter alia contended that the impugned order has been passed without taking into consideration true facts of the case; that the Respondents have granted benefit of regularization to certain persons appointed along with the Petitioners but discriminatory treatment has meted out with them; that the Petitioners had acquired vested right for appointment on regular basis for the post of ESE (Sci-Math) but their names have been removed merely on the ground of having 3rd Division in B.Sc.; that the Petitioners possess professional qualification having 2nd Division in Master Degree which has not been considered for the purposes of educational requirements. The counsel for the Petitioners has relied on order dated 01.03.2018 passed in W.P.No. 2170 of 2017 whereby similar petition was allowed. He has also relied on judgment dated 04.03.2019 passed in ICA No. 83 of 2018 whereby appeal of the Respondents was dismissed and CPLA No. 1858 of 2019 filed thereagainst before the Supreme Court of Pakistan met with the same fate vide order dated 01.06.2020.
C. RESPONDENTS SUBMISSIONS
4. Learned Law Officer, on the other hand, filed report and parawise comments, vehemently opposed the arguments advanced by the learned counsel for the Petitioners and prayed for dismissal of the petition on the ground that the Petitioners were appointed purely on contract basis and after expiry of contracts they were no more the employee of the Respondents and their salaries for the work done have also been paid to them. He further stated that the Respondents have regularized the services of such persons who fulfilled the requisite requirement of advertainment and the Policy where 2nd Division in academic qualification was prescribed but the Petitioners do not possess 2nd Division in academic qualification therefore, they were rightly refused for regularization. He argued that the issue involved in this case relates to policy decision of the Government in public interest which is the sole domain of the Government and the Courts usually refrain from interfering into such matters.
5. I have heard the arguments of counsel for the parties and perused the record.
D. DETERMINATION BY THE COURT
6. Admittedly, the services of the Petitioners were engaged by the Respondents purely on contract basis in terms of Clause-4 of Letters of Agreements dated 08.05.2015 and initial tenure of contracts was only for five years. The said period of contracts was extended for further one year in terms of order dated 01.04.2020 which has also expired and the Petitioners have not brought on record any document to show that they are still in service or further extension has been granted to them. The Petitioners after accepting the terms and conditions of their contract employment submitted their joining reports. The specific terms in the employment offer, containing certain terms and conditions, are inserted which explicitly reveal that initially this offer of appointment was only for a period of five years. I am of the considered view that the Petitioners, at the time of joining, have accepted all the terms and conditions of their contract employment, cannot resile from the same at a belated stage. I fortified my view seeking guidance from the judgment passed by Hon’ble Supreme Court of Pakistan in “Miss Naureen Naz Butt versus Pakistan International Airlines through Chairman, PIA and others” (2020 SCMR 1625) by upholding the judgment of Division Bench of this Court “Pakistan International Airlines versus Naureen Butt” (2017 PLC (C.S.) 923) holding that “the established law is that a contract employee, whose period of contract employment expires by afflux of time, carry no
vested right to remain in employment of the employer and the Courts cannot force the employer to reinstate or extend the contract of the employee”.
7. Now the heart of controversy involved in this petition is the grant of benefit of regularization to certain persons appointed with the Petitioners. The counsel for the Petitioners has persistently put much emphasis that the Petitioners are entitled to regularization of their services as the Respondents have regularized similarly placed person who were appointed with them on contract basis. The fact of appointment of the Petitioners as ESE (Sci-Math) for a period of five years and one-time extension is not disputed by all hands. The only grievance agitated by the Petitioners is that the Respondents have regularized the services of similarly placed persons while they have been refused merely on the ground of having 3rd Division in B.Sc. While on the other hand, the stance of the Respondents is that the Petitioners are not entitled to regularization as this benefit was extended only to those who fulfilled the requisite requirement stipulated in the advertisement and the Policy after scrutinizing each and every case while the Petitioners do not fulfil the aforesaid requirement. It would be advantageous to reproduce the criteria referred to in the advertisement as well as in the Policy
ACADEMIC & PROFESSIONAL QUALIFICATION
Nomenclature of Post | Academic Qualification (at least 2nd Division) | Professional Qualification (at least 2nd Division) |
ESE (Sci-Math) | B.Sc with at least two subjects out of Chemistry, Zoology, Botany, Physics, Math-A Course, Math-B Course and Math OR DVM, Animal Husbandry, D-Pharmacy, MCS & BCS OR MSc/BS (Hons-4 years) in Physics /Chemistry/Botany/ Zoology/Math/Biochemistry / Biotechnology/ Environmental Sciences/all branches of Chemistry, Biology, IT/Computer Science OR BSc (4-years) in Agriculture/ all branches of Engineering OR BSc/BA with FSc OR MSEd/BSEd with at least two subjects out of Chemistry, Zoology, Botany, Physics, Math-A Course, Math-B Course & Math | B.Ed/MSEd/ M.Ed/MA (Edu) |
8. From the above it is quite clear that 2nd Division in academic qualification for the aforesaid post has been set up by the Respondents and services of those were regularized under the Punjab Regularization of Services Act, 2018 who fulfilled the above said criteria of having 2nd Division in B.Sc but unfortunately the Petitioners do not met with criterion for the regularization of their service having 3rd Division in B.Sc hence it cannot be said that the Respondents have treated them indifferently or given discriminatory treatment to them. The Hon’ble Supreme Court of Pakistan in “Government of Khyber Pakhtunkhwa through Chief Secretary and others versus Syed Sadiq Shah and others” (2021 SCMR 747) has dilated upon the issue of discrimination by holding that:
“Article 25 of the Constitution, guarantees to every person the right to equality before the law and the equal protection of the laws. The expression "equal before law" is a declaration of equality of all persons irrespective of gender, race, religion, colour, caste, creed, status and language etc, implying thereby the absence of any privilege in favour of any individual. The guiding principle of Article 25 is that all persons and things similarly circumstanced shall be treated alike both in respect of privileges conferred and liabilities imposed. Equality before law means that amongst equals should be equal and equally administered and that like should be treated alike. Hence what it forbids is discrimination between persons who are substantially in similar circumstances or conditions. However, Article 25 does not forbid different treatment of un-equals. The rule is rather that alike should be treated equally and that unlike should be treated differently. As a matter of fact all persons are not alike or equal in all respects. Application of the same laws or yardstick uniformly to all of them will, therefore, be inconsistent with the principal of equality. To avoid that situation laws must distinguish between those who are equals and to whom they must apply and those who are different and to whom they should not apply. In fact identical treatment in unequal circumstances would amount to inequality. So a reasonable classification or sub-classification is only not permitted but is necessary if society is to progress. It must always rest upon some real and substantial distinction bearing a just and reasonable relation to the object sought to be achieved by the authority.
Persons may be classified or further sub-classified into entities and such entities may be treated differently if there is a reasonable basis for such difference. Article 25 forbids class legislation but it does not forbid classification or differentiation which rests upon reasonable grounds of distinction. The classification however must not be arbitrary, artificial or evasive but must be based on some real and substantial bearing, a just ad reasonable relation to the object sought to be achieved by the legislation.
Principle of equality does not mean that every law, policy matter, notification, administrative or executive order etc must have universal application to all the persons who by nature, attainment or circumstances are not in the same position”.
9. In assessment of suitability of a particular nature of job and its scope in the context of particular employer the Courts cannot prescribe the eligibility or experience qualifications and work experience as these are matters of policy and best be left to the department. As setting the criteria of 2nd Division of academic qualification in the Policy as well as advertisement relates to the policy matter of the government/department, therefore, Court cannot interfere into it. It is not in the domain of the Courts to embark upon an inquiry as to whether a particular policy is wise and acceptable or whether better policy could be drafted. The Court can only interfere if the policy framed is absolutely capricious and non-informed by reasons, or totally arbitrary, offending the basic requirement of the Constitution. It was for the Department to decide how and in what manner the reservations should be made and such a policy decision normally would not be open to challenge subject to its passing the test of reasonableness. The Hon’ble Supreme Court of Pakistan in “The Secretary Punjab Public Service Commission, Lahore and others versus Aamir Hayat and others” (2019 SCMR 124) has held that “Courts could not interfere in lawful exercise of discretion by the concerned departments and substitute lawful decisions of the departments, by their own”. In the case in hand, the Respondents formulated the Policy by setting up criteria of 2nd Division of academic qualification for the purpose of finding the suitable persons to perform their jobs pursuant to which an advertisement was made in year 2014 and ultimately, the Respondents regularized the persons who met with aforesaid criteria. In case of “M. Nazir Ahmad versus Muhammad Aslam and others” (2013 SCMR 363) it was held that “An employer has the discretion to formulate appropriate policy viz.a.viz job qualification and criteria for various positions in line with its peculiar requirements and organizational structure hence no person had a vested right to be appointed on a post rather the authorities made a selection for the post as per criteria set out in Rules/policy and had to find the most suitable candidate for the job who could capably discharge the duties”.
10. Pertinently, the Petitioners have called in question the impugned order which was passed on 05.06.2020 but interestingly they have challenged the same on 17.08.2021 after lapse of one year two months and twelve days without explaining any convincing reasonable cause of the inordinate delay, as such principle of laches is also applicable upon this case as three months’ time is considered
reasonable for a party to assail an adverse order in writ jurisdiction of this Court. Reliance is placed on “Civil Aviation Authority through Director General and 3 others versus Mir Zulfiqar Ali and another” (2016 SCMR 183), “State Bank of Pakistan through Governor and another versus Imtiaz Ali Khan and others” (2012 SCMR 280) and “Member (S&R)/Chief Settlement Commissioner, Board of Revenue, Punjab, Lahore and another versus Syed Ashfaque Ali and others” (PLD 2003 Supreme Court 132). More importantly, when initial period of Petitioners’ contracts was expired, they were given one-year extension on 01.04.2020 and that extension also came to an end. The Petitioners, instead of challenging the impugned order at the relevant time, themselves opted to continue with newly extended contract by accepting terms and conditions which even otherwise has already expired.
11. Moreover, the order and judgment referred to by learned counsel for the Petitioners cannot be relied upon being distinguishable from the facts and circumstances of the case as each and every case has its own merits. It is quite evident that order dated 03.04.2018 relates to the process of recruitment where certain persons were initially allowed to participate in recruitment process but thereafter at the time of scrutiny, their candidature was cancelled due to having 3rd Division in academic qualification. While in the case in hand, the Petitioners, in spite of having 3rd Division in academic qualification, were duly appointed for a period of five years who performed their duties and tenure of further extension of one year was also expired so it cannot be said that the order and judgment referred to by learned counsel for the Petitioners is applicable to the case in hand.
12. In view of above discussion, I am not inclined to interfere with the impugned order which otherwise has been passed aptly. Resultantly, the instant petition stands dismissed.
(Y.A.) Petition dismissed
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