Atta-e-Rabbi Vs The Government of KP through the Secretary Higher Department, Civil Secretariat, Peshawar and others

J JUDGMENT SHEET

PE WAR GH COURT. PESHA WAR

JUDICIAL DEPARTMENT

W.P No.4740- Pt20t8 Atta-e-Rabbi Vs.

The Government of Khyber Pakhtunkhwa through the Secretary Higher Education Department, Civil Secretariat, Peshawar and others

Date of hearing 03.10.2023 Petitioner(s) by: M/s Mr. Muzamil Khan and Mr. Rehmanullah, Advocates, for the petitioners.

Respondent(s) by: Mr. Nasir Mehmood, Advocate for the respondent along with Mr. Asfandiyar Khan Khalil, Registrar, University of Swabi.

(In all writ petitions)

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JUDGMENT

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IJAZ ANWAR. J. Through this single judgment, we intend to decide the instant writ petition, as well as the connected writ petitions listed below, as in all these petitions, similar questions and facts are involved. The connected cases are as under:

i. W.P No.2209-P/2018 titled, Inam Khan and others Vs The University of Swabi through its Vice Chancellor and others.

ii. W.P No.2210-P/2022 tilled, Yasir Khan and others Vs The University of Swabithrough its Vice Chancellor and others.

iii. lY.P No.22ll-P/2022 titled, Kashif Khan and others Vs The University of Swabi through its Vice Chancellor and others.

iv. llt.P No.2993-P/2022 titled, Muhammad Asim and others Vs The University of Swabithrough its Vice Chancellor and others.

v. lIt.P No.2994-P/2022 titled, Murad and others Vs The UniversiE of Swabi through its Vice Chancellor and others.

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vi. W.P No.4237-p/2022 titled, Saif Ullah and others Vs The University of Swabi through its Vice Chancellor and others.

vii. lV.P No.46l7-P/2022 titled, Shams-ul-Hadi and another Vs The University of Swabi through its Vice Chancellor and others.

2.In the instant writ petition, petitioner has prayed for the following relief: -

ult is, therefore, humbly prayed that on acceptance of this constitutional petition, refusal by respondents to regularize service of the petitioner or consider himfor the said purpose be declared as void ab-initio,without jurisdiction and without any lawful authority and they be directed to regularize services of the petitioner, keeping in view judgment delivered by this Hon'ble Court in the case of similarly placed employees in the interest of justice.

Any other order deemed appropriate in the circumstances of the case may also be passed".

3.In essence, petitioners were initially appointed on contractual basis in the respondent university and they were allowed extensions from time to time. Petitioners are now claiming regularization on their respective posts from the date of their initial appointments and in this respect all the petitioners submitted their departmental representations to the Vice Chancellor of the respondent university, but to no avail, hence, the instant and the connected writ petitions

4.Comments were called from the respondents, who furnished the same wherein they opposed the issuance of the desired writ asked for by the petitioners

5.Arguments heard and record perused.

6.Perusal of the record reveals that petitioner was initially appointed on contract basis in the respondent University. His contract was extended from time to time, similarly, on 16.05.2014 his contract was extended up to 31.08.2014 or till the arrival of regular selectee, whichever is earlier. Again, the said contract was extended, however, during the pendency of the instant writ petition, he was relieved from his service being contract employee, and now he claimed regularization in service, similarly, in the connected cases, the petitioners were appointed on contract basis for specific period of one year, however, thereafter, were allowed extension and then terminated from services.

It is the case of petitioners that they have gained sufflrcient experience and have served the respondent University for a considerable long time, and as such, they have got every right to be rcgtilarized in services. In this regard, the learned counsel for the petitioners placed reliance on judgments of the Hon'ble Supreme Court of Pakistan passed in the cases titled "tu[/s State Oil Comoanv Limited Vs Bakht Siddique and others"(2018 SCMR 11811 and "Board of Intermediate and Secondarv Education, DG Khan and another Vs Muhammad Altaf and others" (2018 SCMR 325t.

7.As against this learned counsel for the respondent argued that the matter of regularization has been set at rest by the Hon'ble Supreme Court of Pakistan in a oounless recent judgment, wherein, it was held that and until

there is any statutory instrument, contract employees have got no vested right of regularization", while in the connected cases, petitioners claimed benefits of the provisions of Section 1l(5)(c) and Section 11(5Xe) of the Khyber Pakhtunkhwa Universities Act, 2012. Learned counsel for the respondent has also placed reliance on different judgments of the Hon'ble Supreme Court of Pakistan wherein such provisions have been discussed and it was held that "the benefits of such provisions can only be granted on properly created budgeted post for a period not exceeding three years on the recommendations of a Selection Committee constituted by the Syndicate and that no further extension is permissible beyond the three year period".

8.In view of the above, we find that presently there is no rules, policy or regulations under which the petitioners can claim regularization in services. The respondent University has decided to terminate their services, in view of their contracts, therefore, this Court cannot force the University to take the petitioners into employment, when at the time of their appointments, they were made known the terms and conditions of their services. Similarly, the relevant provisions i.e. Section l1(5)(c) and Section 1l(5)(e) were also discussed by the Hon'ble Supreme Court of Pakistan in the case of "Vice Chqncellor Bacha Khan Universitv.

Charsadda and other Vs Tanvir Ahmad and other" (2022 PLCTS\ 851, wherein, it was held that "contractual

employees have no vested right to regularization, by mere ffiux of time, an employee cannot claim regularization and knock on the door of the High Court for the same.

Similarly, in the case of "Khushal Khan Khattok Universitv throueh its Vice Chancellor and others Vs Jabron Ali Khan and others (2021 SCMR 9971, the apex Court held as under:- uArt. 199--- Civil service--- Contractual employees seeking regularization in service---Contract of employment expiring during pendency of Constitutional petitions b efo r e t h e H i g h C o u r t - - Effe c t- --C o n s t it u ti o n a I petitions Jiled by contractual employees before the High Court would become infructuous--- High Court lacked jurisdiction to revive or renew expired contracts--Confeting a retrospective right upon the contractual employees when their contracts had already expired was ex facie erroneous, illegal and without jurisdiction---Department was at liberty to dispense with the services of the contractual employees in accordance with the terms and conditions of the contract which were accepted by the employees when they accepted contractual employment---High Court could not have amended or altered the terms and conditions of the contract of the employees in exercise of ils constitutional jurisdiction under Art. 199 of the Constitution---Appeals were allowed".

9.In view of the above, in this and connected cases, when the petitioners have approached this Court, their contracts have already expired, either before or after filing the

writ petitions, and as such, as stated by the Hon,ble Supreme court of Pakistan that the High court has got no jurisdiction to alter or amend the terms and conditions of the contract employees or to allow them extension of its own. Reference can be also made to the case of "DeDutv Director Finanrc and Administration FATA through Additional Chief Secretsrv FATA and other Vs Dr. Lal Marian and others Q022 PLC CS 7011 "wherein it was held that contractual employees---regularization in service--long service is no ground for regularization. Regularization has to be supported by the legislation and is not an automatically accruing right".

10.Thus, for the reasons stated above, we are of the view that this Court, in the absence of any statutory instrument, cannot allow regularization of its own to the petitioners nor the provisions relied upon by the petitioners have any relevance for the purpose of regularization.In view thereof this and connected writ petitions, having no merit, are accordingly dismissed.

11.Apart from the above, in the instant case, the learned counsel for the petitioner has requested that t/ respondents be directed to allow the petitioner namely Atta-e-Rabi his dues, if any, and to provide the experience certificate for the services he rendered in the respondent University, to which the Registrar of the respondent University readily agreed, and stated that, he will consult the

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v record, and in case there are any outstanding dues, he will be accordingly paid, and that the experience certificate shall surely be granted to him

Announced Dt:03.10.2023

JUDGE

JUDGE

(DB)Hon'ble Mr. Justice Iiaz Anwar and Hon'ble Mr. Justice S.M Attioue Shrh.

*Amir Shehzad*