JUDGMENT SHEET
IN THE HIGH COURT OF SINDH,
CIRCUIT COURT, HYDERABAD.
C.P.No.D- 1153 of 2013
Present:
Mr. Justice Syed Hassan Azhar Rizvi.
Mr. Justice Abdul Maalik Gaddi.
1. For orders on MA 9360/2015.
2. For Katcha Peshi.
3. For hearing of MA 5649/2013.
4. For hearing of MA 4833/2015.
5. For orders as to non-prosecution of M.A. 6860/2015 as notices not issued as cost & copies have not been supplied.
6. For orders on MA 9361/2015.
Date of hearing: 09.09.2015.
Date of judgment: .09.2015.
Petitioner present in person.
Mr. Kamaluddin, Advocate for respondents-University.
Mr. Allah Bachayo Soomro, Additional A.G.
J U D G M E N T
ABDUL MAALIK GADDI, J: Through this Constitutional Petition, the petitioner has prayed for following relief (s):-
“a. Direct to the respondents to confirm and regularized the petitioner in service alongwith his contractual period of service and seniority accordingly.
b. Direct the respondents not to terminate the petitioner on completion of 06.06.2013 as the contractual period will be expired on the said date and to explain the reasons as to why they have not confirmed the petitioner so far.
c. The respondents be restrained from taking any coercive, illegal, unlawful and unwarranted action against the petitioner, as the petitioner has his fundamental rights of being treated as per law.
d. That the respondents be directed to supply complete detail regarding their illegal, perverse, absurd and unwarranted action.
e. Restrain the respondents and all other persons acting for or under them not to take such illegal action against the petitioner till final disposal of the instant petition.”
2. The facts necessary for disposal of instant petition as alleged by the petitioner namely Syed Shahid Ali Jaffri are that the petitioner having Masters in Economics, L.L.B and Diploma in Labour Administration Industrial Welfare was working with the Respondents-University since last about 13 years i.e. from 16.07.2002 as Deputy Inspector of Colleges in BPS-18, LUMHS, Jamshoro on contractual basis; the service of the petitioner after completion of every six months was extended from time to time; as per the petitioner according to service rules of Respondents-University, all the employees of University working against clear vacancies on temporary capacity or holding probationary appointment shall be eligible for confirmation on completion of one year service subject to the condition that they have earned a satisfactory rating in their confidential reports. He has further alleged that in Para-5 of the service rules that 70% of existing vacancies in BPS-17 and 18 will be filled in by promotion on seniority cum merit basis and 30% by direct recruitment; that petitioner moved several representations for his regularization against a permanent vacancy but all in vain, on the contrary the Respondents-University has appointed various other persons (either on contract or direct appointment) without publishing the advertisement in newspaper and following the due criteria; that besides the above referred representations, the petitioner also filed an appeal on 20.05.2013 regarding his regularization of 13 years contractual service before the respondent No.1 and due to filing of many representations and appeal, the respondents restricted the petitioner and directed him to avoid from such practice of correspondence; it is further averred in the petition that contract period of petitioner was to expire on 06.06.2013 and he had apprehension that his contract will not be renewed / extended by the Respondents-University; that the petitioner fulfilled the requirements and sufficient experience therefore, he is entitled for regularization against the post of Inspector of colleges; that during the period of 13 years he has not been provided any opportunity to appear before the department Selection Board / Selection Committee of LUMHS; that during his entire service of contractual period, there is not any sort of complaint against the petitioner and he has performed his satisfactory service, therefore, he is entitled to be regularized by the Respondents-University.
3. On 18.06.2013, the instant petition was taken up and notices were issued to the Respondents-University as well as learned A.A.G. On 31.07.2013, Mr. Kamaluddin, learned counsel for Respondents-University filed comments on behalf of Respondents No.2 and 3, in which they have denied the case and claim of the petitioner by mentioning that during the contractual period of the petitioner he was not carrying good reputation and on every six months his contract was extended which has been expired on 17.12.2013. In the comments it is denied that Respondents-University has committed any illegality or material irregularity while not regularizing the services of the petitioner. It is pertinent to mention here that on 22.10.2013 when the petitioner was also present in person, following order was passed by this Court:-
“Counsel for Respondent states that vide order dated 5.8.2013 passed by Registrar L.U.M.H.S. Jamshoro, the contract of petitioner has been expired and therefore, this petition has become infructuous.
The Petitioner present is satisfied and does not press this petition. The petition consequently is dismissed as not pressed”
Thereafter, again the petitioner filed an application for review of above order and on 6.8.2014 this Court passed the order that since the petitioner has sought review of earlier order dated 22.10.2013, therefore, this petition may be placed before the Honourable Chief Justice for appropriate orders as his lordship deems fit. Thereafter, on 20.04.2015, the order of dismissal of petition dated 22.10.2013 was recalled and this petition was again sent to this Court for deciding the same on merits.
4. Petitioner present in person submits that he was a contract employee with the Respondents-University on various posts for about 13 years and lastly his contract was extended upto 17.12.2013 when he served as Administrative Officer, however, after expiry of such period instead of extending his contract or regularizing his service, the Respondents-University discontinued his services without any plausible cause or explanation and such act of Respondents-University is against the rules and regulations of said University; that during his contractual period, he made various representations to the Respondents-University for regularizing his service but they did not pay any heed to it; that he had served the Respondents-University for last 13 years without any complaint; that as per the case law laid down by the Honourable Superior Courts, any person employed for a sufficient length of time in any organization without any unsatisfactory or adverse report is entitled for confirmation / regularization and in number of cases, it has been held by superior Courts that a person is deemed to be regular / confirmed employee after a lapse of time; that during his contractual period of his employment, he was not provided any opportunity of being heard before the Selection Board / Committee; that he has all the necessary educational qualifications which were requisite for his job and had fully qualified and experienced to carry on their duties which were assigned to him. During the arguments, he has reiterated the same facts and grounds which he has already urged in the instant petition. In support of his contentions, the petitioner has placed reliance on the case of Ejaz Akbar Kasi and others v. Ministry of Information and Boardcasting and others, reported in 2011 PLC (C.S) 367).
5. On the other hand, Mr. Kamaluddin, learned counsel representing the Respondents-University has opposed this petition on the ground that petitioner was appointed as OSD in the Respondents-University on 16.07.2002 for a period of six months purely on contract basis and his contract was extended every time after the expiry of every six months. According to him, he was not permanent employee of the Respondents-University; during contractual period number of complaints were received regarding his misconduct and inappropriate behavior with his superiors and colleagues; that Respondents-University has not committed any illegality or irregularity by not extending the contract of the petitioner and to so to regularize his services; that Respondents-University never restrained the petitioner for submitting any application for his confirmation / regularization of his services; that the contract of the petitioner has already expired on 17.12.2013 and at present the petitioner is no more in service, therefore, no question does arise for regularizing his services; that the petitioner was appointed on contract basis and according to him there is no cavil to the proposition that an employee appointed / engaged on contract basis has got no vested right to claim for being absorbed / appointed on regular / permanent basis. During the course of his arguments learned counsel for Respondents-University has also reiterated the same facts and grounds which are already mentioned in the parawise comments of respondents available on record. However, in support of his contentions, learned counsel has placed reliance on the cases reported as (i) Dr. Mubashir Ahmed v. P.T.C.L. through Chairman, Islamabad and another (2007 PLC (C.S) 737)(ii) Principal, Q.M.C and others v. Asghar Abbas and others (2013 PLC (C.S) 58)(iii) Abdul Wahab and others v. HBL and others (2013 SCMR 1383) (iv) University of the Punjab, Lahore and 2 others v. Ch. Sardar Ali (1992 SCMR 1093) (v) Government of Balochistan, Department of Health through Secretary, Civil Secretariat, Quetta v. Dr. Zahida Kakar and 43 others (2005 SCMR 642) and (vi) Abdul Rashid Khan v. Registrar, Bahauddin Zakaria University, Multan and others (2011 SCMR 944) and has prayed that this petition having no merits for consideration is liable to be dismissed.
6. Mr. Allah Bachayo Soomro, learned A.A.G. adopted the arguments as advanced by learned counsel for Respondents-University.
7. We have heard the petitioner who is present in person, learned counsel for Respondents-University and learned A.A.G. as well and also perused the material available on record with their assistance.
8. From the perusal of record, it appears that the petitioner was appointed as OSD at the office of Registrar on contract basis in the Respondents-University for a period of six months w.e.f. 16.07.2002, subsequently he was appointed on the post of Deputy Inspector of Colleges, LUMHS Jamshoro on contract basis and his contract was extended for a period of six months from time to time. Lastly, his contract period was renewed till 17.12.2013 which has been expired. It is the case of the petitioner that he served in the Respondents-University for 13 years and during this period he performed his duties entirely with the satisfaction of his superiors but his services were not regularized instead of that Respondents-University had appointed so many other persons in the University by neglecting him to give favour to them. Respondents-University in their parawise comments denied the allegation as leveled by the petitioner by mentioning that Respondents-University made appointments in the University after following the prescribed rules and regulations and they have not committed any illegality or irregularity. During the course of arguments, we had asked the petitioner to point out under which provisions of law of University, he is entitled for relief claimed but he did not answer the question properly. We again asked the petitioner to point out the names of those persons who have been appointed illegally by ignoring the prescribed rules and regulations of Respondents-University, though he has given the names of those persons mentioned in the petition but failed to point out that their appointments / promotions were made against the rules and regulations of the University and he was discriminated. It is also the case of the petitioner that he was working in BPS-18 in the University but the Respondents-University ignored him for further promotion or regularize him in the University. In this regard Respondents-University in their comments in detail have specified the criteria for promotion and recruitment, stating therein that all the appointments / promotions in BPS17 to 20 are to be made by the Syndicate on the recommendation of the Selection Board through open advertisement in newspapers and no posts in BPS-17 and above on regular basis shall be filled without observing proper procedure and that the petitioner has misquoted the confirmation rule and as per Clause 5 of Conditions of Service of University Employees of Sindh University Code, 70% of existing vacancies in BPS-17 and 18 will be filed-in by promotion on seniority-cum-merit basis from the incumbents already working in University on regular basis in BPS-16 and 17 respectively and 30% by direct recruitment. According to the comments, though the petitioner applied for the post of Assistant Registrar (BPS-17), Accounts Officer (BPS-17) and Purchase & Store Officer (BPS-17) in response to an advertisement but the Selection Board did not found him suitable for appointment on the above said posts in its meeting held on 29/30 June, 2005, however taking a sympathetic view he was allowed to continue to work on contract basis on humanitarian ground. Admittedly, the petitioner was appointed on contract basis and in our view such employee could neither claim the status of permanent employee nor would have vested right to the appointment on permanent basis merely for having served the department for a long period. The contract of the petitioner has been over, he is no more in service, therefore, under these circumstance, it is settled principle of law that if an employee is dismissed or removed in breach of contractual requirement he might recover damages and cannot claim reinstatement whatever hardship suffered as a result of finishing his contract. In this regard, we are supported with the case of (i) Dr. Mubashir Ahmed v. P.T.C.L. through Chairman, Islamabad and another (2007 PLC (C.S) 737), (ii) Abdul Wahab and others v. HBL and others (2013 SCMR 1383).
We have gone through the case of Government of Balochistan, Department of Health through Secretary, Civil Secretariat, Quetta v. Dr. Zahida Kakar and 43 others (2005 SCMR 642), in which it is held that:-
“Contract appointment. Scope. Such appointment terminates on the expiry of contract period or any extended period on the choice of employer or appointing authority. Prima facie, such appointment does not create any vested right.”
We are also fortified with the case law reported as Principal, Q.M.C and others v. Asghar Abbas and others (2013 PLC (C.S) 58), wherein it has been held as under:-
“Employee appointed on temporary or work charge basis. Such employee claiming appointment on permanent basis on ground of lengthy period of service. Validity. Such employee could neither claim status of a permanent employee nor would have vested right to be appointment on permanent basis merely for having served department for a long period.”
Since the petitioner was employee in the Respondents-University on contract basis and after going through the above cited case law, it appears that the right to employ an employee vests with the employer only and employee cannot claim the vested right to be appointed. Under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, it is necessary for a party to establish the existence of a right in his favour which has been violated by act of commission or omission of an authority, resulting in legal injury or loss to such person. In this petition, the petitioner has failed to establish any right which has been infringed by the Respondents-University.
9. The petitioner has quoted the judgment viz. Ejaz Akbar Kasi and others v. Ministry of Information and Boardcasting and others, reported in 2011 PLC (C.S) 367), the cited case law has no relevancy with this case as the petitioner was engaged as a contractual employee for a period of six months only and his contractual service was being renewed from time to time with a lapse of 01 to 02 days after every six months as such he has not served the Respondents-University continuously for more than six months, therefore, he cannot claim the relief on the basis of aforementioned decision.
10. In view of what has been discussed above, this petition having no merits for consideration is hereby dismissed alongwith all pending applications.
JUDGE
JUDGE
Tufail