IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA

Constitutional Petition No. D- 2789 of 2011

Petitioner                 : Mst. Hina Tunio & others       

through Mr. Sajid Hussain Mahessar and Faiz

Mohammad Larik Advocates.

Respondents           : District Education Officer, Kamber & others,

through Mr. Abdul Hamid Bhurgri, Additional 

Advocate General. 

Date of Hearing     :  01.03.2023.

Date of Judgment  :  01.03.2023.

J U D G M E N T

Adnan Iqbal Chaudhry, J.-  This petition has been brought to seek regularization of service and release of salaries for the months of June to October, 2011.

2.         The Petitioners were appointed respectively as Primary School Teachers, Chowkidar and Junior Clerks in Government Schools by the erstwhile Executive District Officer, Education [EDO] of the District Government, Kamber-Shahdadkot @ Kamber vide office orders in the year 2009-2010. Their appointments were made on daily-wage basis/contingent paid staff ‘till further orders’. As per the comments filed by the Respondent No.1, service of the Petitioners was discontinued as they were daily wagers, apparently at the time the office of the EDO became defunct in 2011 and that is when this petition was filed.

3.         Heard the learned counsel and perused the record.

4.         Since the Petitioners were employed by the Local Government and as daily-wagers, and their service had been discontinued in the year 2011, it is not their case that they are entitled to regularization under the provisions of the Sindh (Regularization of Adhoc and Contract Employees), Act, 2013. It is also not disputed by them that as daily-wagers and contingent staff, their appointment could have been discontinued at any time. The sole ground taken by them for regularization is that other daily wagers had been regularized in the year 2010 pursuant to judgments passed by this Court.

5.         It has since come to be settled law that even long and satisfactory service is no ground for regularization, and that an employee engaged adhoc or under a time-bound contract has no vested right to regularization. That is reiterated in Deputy Commissioner Upper Dir v. Nusrat Begum (2022 SCMR 964) and Government of Khyber Pakhtunkhwa v. Saeed ul Hasan (2021 SCMR 1376). It is also settled, as held in Province of Punjab v. Prof.Dr.Javed Iqbal (2022 SCMR 897) and Khushal Khan Khattak University v. Jabran Ali Khan (2021 SCMR 977), that continuity in service is a pre-condition to seeking regularization, and that while exercising constitutional jurisdiction the High Court cannot revive or renew expired contracts or alter the terms and conditions of an employee’s contract. More fundamentally, regularization of service cannot follow unless there is an executive policy or a statute that permits the same, so held in Government of Khyber Pakhtunkhwa v. Saeed ul Hassan (2021 SCMR 1376), Deputy Director Finance & Administration, FATA v. Dr. Lal Marjan (2022 SCMR 566) and Government of Khyber Pakhtunkhwa v. Sher Aman (2022 SCMR 406). Therefore, when there is no executive policy or statute under which the Petitioners’ service can be regularized, this Court has no jurisdiction to issue a writ for regularization.

6.         As regards the argument that the Petitioners are nonetheless entitled to the same treatment as earlier petitioners, a similar argument was rejected by the Supreme Court as follows in Government of Khyber Pakhtunkhwa v. Sher Aman (2022 SCMR 406):

“14.     Regularization is a policy matter which necessarily requires backing of the law. In the absence of any law, policy or rules, an employee cannot knock on the door of the High Court for regularization of his/her services. ……..

………….

16.       It is not denied by either side that all of the Respondents were appointed on temporary posts as stipulated in their employment contracts. We note that the learned High Court has not adverted to this aspect of the case and has simply applied the principle of "similarly placed employees" to grant relief to the Respondents. It has specifically been mentioned in the appointment orders of the Respondents that they cannot claim regularization and further, that they are employed on contract for a specific period of time. In this view of the matter, the learned High Court has incorrectly applied the law to the cases of the Respondents. We find the view of the learned High Court is neither supported by the law nor the policy of regularization and is patently erroneous. Further, it is not in consonance with the settled principles of law on the subject and is therefore unsustainable.”

7.         Therefore, reliance placed by the Petitioners on a judgment of this Court delivered in 2010 prior to the clear pronouncements of the Supreme Court discussed above is of no help to them, as in terms of Article 189 of the Constitution of Pakistan those judgments are no longer binding precedent.  Regards the claim for salaries unpaid for June to October 2011, there is nothing on the record to show that the Petitioners were in service at that time.

8.         For the foregoing reasons, the petition is dismissed as not maintainable.

                                                                                                                        JUDGE

                                                                                        JUDGE

Qazi Tahir PA/*