IN THE HIGH COURT OF SINDH
BENCH AT SUKKUR
Constt: Petition No.D–1236 of 2019
DATE OF HEARING |
ORDER WITH SIGNATURE OF JUDGE |
Present:-
Mr. Justice Salahuddin
Panhwar, J.
Mr. Justice
Abdul Mobeen Lakho,
J
1. For hearing of CMA No.6742/19.
2. For hearing of main case
Date of hearing: 31.01.2023
Mr. Suhail Ahmed Khoso, Advocate for petitioner
Mr. Shabir Ali Bozdar, Advocate for respondent No.5
Mr. Ali Raza Balouch, Assistant Attorney General.
********
ABDUL MOBEEN LAKHO,J.- Through this constitutional petition under
Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the
petitioner has prayed for the following relief(s);
(a) “To declare the act of respondents for not
issuing the posting order to the petitioner is illegal, improper and violation
of constitution of law.
(b) To
direct the respondents to issuing posting order to the petitioner against
respective vacancies.”
2. The
essential facts
mentioned in the memo of the petition are that respondent No.4 invited
applications for the post of Chowkidar for BHU Pir Hayat Ali Shah Taluka
Sobhodero District, Khairpur, the petitioner
applied for said post; however, respondent No.4 issued offer order dated
05.09.2018 but did not issue posting order. The endeavore was to succeed in getting
a posting order. Hence, he has invoked the constitutional jurisdiction of this
Court.
3. Notices were issued to the respondents. The
respondent No.4 filed his comments, wherein he has stated that PPHI Sindh is NGO and is
Non-Profitable Organization registered as Company under Section 42 of Companies
Ordinance, 1984 and is controlled by Board of Directors. Besides, petitioner depicting
to be local habitant in fetching the position on contract basis in terms of advertisement; however, after
issuance of offer order an application has been filed against him that
petitioner is not a local person of BHU Pir Hayat Ali shah and he is originally
resident of village Meenhal Kalhoro which is 08 kilometers away from Pir Hayat
Shah, therefore, he does not fulfill the requirement advertised and after due
inquiry his appointment order was canceled vide order dated 29.11.2018.
4. We have heard learned Counsel for
parties and scanned the material available on record.
5. The main argument advanced by the
learned Assistant Advocate General is that petitioner was appointed by
respondents PPHI which is a Company registered under the Companies Ordinance,
1984. He was never employed by the Government as is evident from his appointment
letter dated 05.09.2018 (annexure-A) which was issued by District Manager PPHI
Khairpur-B@ Gambat, therefore, the regularization Act, 2009, did not and could
have apply to him. The PPHI is a public limited Company having memorandum of
undertaking with the Government Health Department and cannot be regarded as a
person performing functions in connection to aid with the affairs of the
Federation or a Province, simply for the reason that their activities are
regulated by law made by the State. PPHI in collaboration is running Basic
Health Units therefore, hiring and firing purely is a discretion of the said
company. Primary test must always be;
(i) Whether
the functions entrusted to the organization or person concerned are indeed
functions of the State involving some exercise of sovereign or public power;
(ii). Whether
the control of the organization vests in a substantial manner in the hands of
Government; and
(iii). Whether
the bulk of funds is provided by the State.
If these conditions are fulfilled,
then the person, including a body politic or body corporate, may indeed be
regarded as a person performing functions in connection with the affairs of the
Federation or a Province, otherwise not. [see Salahuddin v. Frontier Sugar
Mills & Distillery Ltd. (PLD 1975 SC244)].
6. In
similar circumstances in case of Government of Khyber Pakhtunkhwa through Secretary
Health, Peshawar and others v. Jawad Ali
and others (2021 SCMR 185), it was held by the Apex Court that: “A
bare perusal of the MoU reveals that the SRSP retained sole discretion over the
employment, posting, removal, remuneration and customary managerial prerogative
over the staff it recruited for the PPHI project. It was clear all along to all
concerned parties including the respondent that employees of SRSP shall have no
claim against the Health Department upon conclusion of the agreement. Moreover,
the Company Policy made it clear from the outset that the respondents were
hired against project posts for a definite period of time and that upon the
termination of the project they were to be relieved from their services. It is
noteworthy that the respondents were never appointed on contract basis by the
provincial department Khyber Pakhtunkhwa. The agreement also envisaged that the
Government of Khyber Pakhtunkhwa did not have any concern with the terms and
conditions of the services of the respondents as they are employed by a private
company i.e. SRSP who paid and supervised them and was responsible for all
matters relating their contractual employment.”
7. Indeed, in case in hand the offer order
was issued in favour of petitioner on 05.09.2018, thereafter, an
application was filed against the petitioner whereby it has come on record that
petitioner was not habitant of villages nearby Health Facilities, such inquiry headed by District Manager PPHI Sindh
District Officer, Khairpur Mirs against appointment of petitioner was conducted
and the committee vide order dated 08.10.2018 unanimously recommended as under;
“As per policy of PPHI, auxiliary
staff would be selected from the inhabitants of Villages nearby Health
Facility. It is proved that Mr. Muhammad Nawaz Kalhoro is resident of village
about 08 K.Ms away from Health Facility. Therefore, it is recommended that
offer of appointment issued to Mr. Muhammad Nawaz Kalhoro for the post of
Chowkidar may be withdrawn and appointment of Ist waiting candidate namely Syed
Paras Shah S/o Rajan Shah may be allowed in the best interest of PPHI work.”
8. The
Honourable Supreme Court has been pleased to hold in its numerous pronouncement
that a contract employee, whose terms and conditions of service are
governed by the principle of ‘master and
servant’ do not have any vested right
for regular employment, or to claim regularization, or to approach this Court
in its constitutional jurisdiction to seek redressal of his grievance relating
to regularization; in fact he is barred from approaching this Court in its
constitutional jurisdiction and the only remedy available to him is to file a
suit for damages alleging breach of contract or failure on the part of the
employer to extend the contract. Even, if contentions of the learned counsel
are taken to be true even then the remedy lies before the Civil Court for
claiming damages. Even otherwise he has no locus standi to file Constitutional
petition seeking writs of prohibition or mandamus against the authorities from
terminating his service and or to retain him on his existing post on regular
basis; a contract employee, whose period of contract expires by efflux 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. Thus,
the petitioner does not have any vested right to seek posting order or
regularization of his contractual service and he has not acquired any legal
right from the appointment made by PPHI. Accordingly, instant petition being
misconceived is dismissed alongwith listed application. Above are the reasons of the
short order dated 31.01.2023, whereby this petition was dismissed.
J U D G E
J U D G E
Ihsan/*
With
regard to the contention of the learned counsel that the writ against
termination is maintainable, we do not agree with the above contention in view
of pronouncement in case of Government of Khyber Pakhtunkhwa through Secretary
industries, Commerce and Technical Education, Manpower Training Department,
Peshawar and others v. Shahzad Iqbal and
others (2021 PLC (C.S) 747; wherein it has been held that “ It is well settled law that where a project employee is recruited by
a Company for definite period of time, such an employee does not under any
circumstances either directly or by implication become an employee of the
provincial government. Therefore, it is apparent that the cases of the
respondents clearly fall outside the ambit of the Khyber Pakhtunkhwa Employees
(Regularization of Services) Act, 2009 as they were all hired against project
posts by TUSDEC and the project itself was to be executed by the Company under
the control of the Federal Government for a requisite period of time before it
was handed over to the Provincial Government. For the said Act to apply, it is
the Provincial Government that must employ the individual. We are therefore, in
no manner of doubt that there is qualitative and conceptual difference between
contract employee covered by the provisions of the 2009 Act and the temporary
employees hired by TUSDEC during the time they operated the project before
handing it over to the provincial government. Such employees cannot be any
stretch of the language be termed or treated as employees hired by the K.P
Government. In case circumstances, the benefit of the Regularization Act, 2009
was not available to them