Sabir Ali Vs Government of Khyber Pakhtunkhwa through Chief Secretary etc.

A Judgment Sheet

(Judicial Department)

WP No.263-812025

Sabir AIi Vs Government of Khyber Pakhtunkhwa through Chief Secretary, etc.

JUDGMENT

For petitioner:

Date of hearing: 29.04.2025

MUHAMMAD TARIO AFRIDI. J.- Through this single judgment, we propose to decide the instant writ petition as well 4 as connected Writ Petition No.264-812025, as both involve identical questions of law and facts.

2.The brief, but relevant facts, as pleaded in both writ petitions, are that the Government of Khyber Pakhtunkhwa in the year 2OOT launched a comprehensive medical programme at the primary level in the name of People's Primary Healthcare Initiative (PPHI), at different Basic Health Units (BHUs), for which regular posts were created. Subsequently, advertisements were published by the respondent-department, inviting applications from eligible candidates. The petitioners applied for the posts and, pursuant to the recommendations of the Selection Committee, were appointed as Ward Orderly and Chowkidar vide their appointment orders dated 25.09.2013 and

2^ 22.09.2013, respeclively. It is averred that notwithstanding the fact that the services of similarly placed employees were regularized in compliance with the judgments rendered by this court in wP No.2084-P12016, decided on 16.03.2017, and wP No.742-B 12023, decided on 18.04.2024, the respondent- department has shown reluctance to treat the petitioners at pat by regularizing their services. The petitioners have, therefore, petitioned this Court under Article 199 of the Constitution, unanimously praying for the following relief:

Hence, it is very humbly prayed that by acceptance of the 4 instant writ petition, an appropriate directions may please be issued to the respondents for declaring the petitioner being fit and eligible candidate and that the petitioner be equally treated and the respondents are bound to allow regularization from the date when his colleagues / juniors were tegularized I allowed regular appointment.

Any other remedy / relief which this Hon'ble Court may deems appropriate in the circumstances of the case, be also granted.

3.Arguments heard. Record perused.

4.Counsel for the petitioners mainly argued that the posts, against which the petitioners were appointed, have been converted into permanent in the Revenue Budget. Similarly placed employees were regularized by the respondent- department in compliance with the judgments rendered by this Court in WP No.2084-Pl20l6 and WP No.742-B 120D3, the learned counsel added, arguing that the denial on the part of the

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4 respondent-department to regularize the services of the present petitioners amounts to discriminatory treatment and failure to treat the petitioners in accordance with law, offending their fundamental rights as enshrined under Articles 4,25A, and 27 of the Constitution. The arguments put forward by counsel for the petitioners are found to be devoid of any force for two reasons.

5.Firstly, the petitions filed by the petitioners suffer from laches. This is because the first writ petition, as has been referred, was filed in the year 2016. If at all the petitioners had a grievance that they were victims of discrimination and were 4 denied treatment in accordance with law, then they should have voiced their grievance at the appropriate time. However, they did not raise concerns about the alleged discrimination and remained silent for over nine long years. The petitioners have also failed to fumish any reason, let alone a plausible one.

6.The principle of laches is founded on the maxim that equity aids the vigilant and not those who slumber on their rights. Where a party fails to assert its claim within a reasonable time, the Court may decline to exercise its discretionary jurisdiction under Article 199 of the Constitution, especially when the delay is unexplained. Delay in asserting legal rights not only weakens the merits of the case, but may also indicate acquiescence. Reliance is placed on Ex. Cql. Muhammad

throush Secretarv Ministrv of Defence and others (PLD 2024 Supreme Court 235), wherein it was ruled:

Law of laches takes away right of the party to have the right enforced, which otherwise, is enforceable under the law because law requires that one having an enforceable right should seek enforcement whereof within time specified by taw. Although as a general principle bar of limitation is not applicable to the proceedings under Articles 199 and 184 0f the constitution but insistence is placed on initiating proceedings promptly and within a reasonable time to avoid the question of laches. Reliance is placed on Dr. Muhammad Tahir-ul-Qadri v' Federation of Pakistan (PLD 2013 sc 413). In the said case, this court while placing reliance on an earlier judgment of this Court reported as Jawad Mir Muhammadi v. Haroon Mirza (PLD 2007 sc 472) held 4 that laches per se is not bar to the constitutional jurisdiction and question of delay in filing would have to be examined with reference to the facts of each case; question of delay/laches in filing constitutional petition has to be given serious consideration and unless a satisfactory and plausible explanation is forthcoming for delay in liling constitutional petition, the same cannot be overlooked or ignored subject to facts and circumstances of each case. In S.A. Jameel v. secretary to the Govt. of the Punjab (2005 SCMR |26), this Court held that question of laches has to be examined on equitable principles, for the reason that the exercise of constitutional jurisdiction is always discretionary with the Court and the relief so granted is always in the nature of equitable relief. In case the court finds that the party invoking constitutional jurisdiction is guilty of contumacious lethargy, inaction, Iaxity or gross negliggnc.e in the prosecution or a cause for enforcement of a right, the Court would be justified in non- suiting such per$on on the premise of laches. Both the appellant/petitioner could not give sufficient reason as to why they remained silent for years and did not invoke the Constitutional jurisdiction well in time, therefore, on this score alone, their Constitutional petitions are liable to be dismissed.

i 7. Secondly, although WP No.2084-P/2016, in which prayer for regularization was made, was allowed by this Court vide judgment dated 16'h March,2Ol7, and in WP No.7 42-812023, a direction was issued to the respondent-department to the effect that in case the petitioner in that writ petition falls within the category of similarly placed persons, then he be treated equally.

Nevertheless, recently, the question ofjurisdiction of this Court under Anicle 199 of the Constitution vis-ir-vis prayer for regularization of services of employees appointed on contractual basis was addressed once for all by the Supreme 4 Court, authoritatively declaring that employees appointed on contractual basis have no vested right to seek regularization unless there is any legal or statutory basis for the same.

Notably, in the instant case, there is no law providing for the regularization of services of the petitioners. Reliance is placed on

others v. Muhammad Shafiq and others (2024 SCMR 527), wherein the Supreme Court ruled:

It is well settled that there is no vested right to seek regularization for employees hired on contractual basis unless there is any legal or statutory basis for the same. The process of regularization requires backing of any law, rules or policy. It should adhere to the relevant statutory provisions and government policies. In the absence of any of the same, a contractual employee cannot claim regularization. Applying the principles settled by this Court to the proposition at hand, it becomes clear that the Respondents have no automatic right to be regularized unless the same has specifically

A been provided for in law or policy which in the present case is not available. Any regularization without the backing of law pffends the principles of fairness' transparency and meritocracy and that too at the expense of public exchequer. The Impugned Judgment has also erred in law by failing to take into account that where a contractual employee wishes to be regularized, he must demonstrate statutory basis for such a claim, in the absence of which, relief cannot be granted solely on the principle of similarly placed persons. Article 25 of the constitution has no application to a claim based upon other unlawful acts and illegalities. It comes into operation when some persons are granted a benefit in accordance with law but others, similarly placed and in similar circumstances, are denied that benefit. But where a person gains, or is granted, a benefit illegally, other persons cannot plead, nor can the court accept such a plea, that the same benefit must be allowed to them also in violation of law. Thus, the ground of discrimination also does not stand, because in order to establish discrimination it is important to show that the 4 earlier act was based on law and policy, which has not been the case here. Thus, with respect to the first question raised, we are of the view that the regularization of the Respondents cannot take place without the backing of any law, rule or policy and without an open and transparent process based on an objective criteria, as discussed above.

8.Here, we are conscious of the fact that the above referred writ petitions were allowed by a Bench of equal numeric strength, and in such eventuality, propriety would demand to follow the view taken in the said cases. However, we are of the view that where the Supreme Court deliberately and with the intention of settling the law pronounces upon a question, such pronouncement is the law declared by the Supreme Court within the meaning of Article 189 of the Constitution and is binding on all Coufts in Pakistan. Reliance is placed on Allied

a Bank Limited v. Habib-uf-Rehman and others Q023 SCMR 1232), wherein the Supreme Court ruled:

Moreover, where this Court deliberately and with the intention of settling the law, pronounces upon a question, such pronouncement is the law declared by the Supreme Court within the meaning of Art. 189 of the Constitution and is binding on all Courts in Pakistan. Reference here may be made to the judgments in the cases of Justice Khurshid Anwar Bhinder v. Federation of Pakistan (PLD 2010 Supreme Court 483) and Muhammad Shifa v. Meherban AIi (2022 SCMR 647).

9.Thus, while following the law laid down by the Supreme Court in the judgments (supra), we are of the considered view that the petitioners, having failed to demonstrate any statutory or legal basis for regularization, are not entitled to the relief prayed for.

10.For the foregoing reasons, we find no merit in these writ petitions, which are accordingly dismissed in limine.

Announced lll-,

(Ghafoor Zaman) w

JUDGE

JUDGE

(c$DWo

(D.B.)

l, Hon'ble Mr. Justice Muhammad Tariq Afridi Hon'ble Mr. Justicc Abdul Fayaz