IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA

Constitutional Petition No. D- 764 of 2015

Constitutional Petition No. D- 816 of 2015

Constitutional Petition No. D- 1202 of 2015

PRESENT:

Mr. Justice Adnan Iqbal Chahdhry,

Mr. Justice Zulfiqar Ali Sangi,

Petitioners : (1) Inayatullah Lashari in C.P. D-764/2015

(2) Imran Ali Kalhoro in C.P. D-816/2015

(3) Hameer Ali Abbasi in C.P. D-1202/2015

All through Mr. Safdar Ali Ghouri Advocate.

Respondents : Commissioner, Larkana & another,

through Mr. Abdul Hamid Bhurgri, Additional

Advocate General Sindh.

Date of Hearing : 31.01.2023.

Date of Decision : 08.02.2023.

J U D G M E N T

Adnan Iqbal Chaudhry, J.- These petitions have been brought to seek regularization of service.

2. The Petitioners were appointed respectively as Junior Clerk and Naib Qasid in the office of the erstwhile District Coordination Officer [DCO], Larkana vide office orders dated 13.01.2011, 11.02.2010 and 27.1.2010. Their appointments were made on daily-wage basis/ contingent paid staff and on express terms that their service could be discontinued at any time, and that such service shall not qualify them for regular appointment.

3. The service of the first Petitioner was discontinued by office order dated 01.7.2011. He was engaged again with same terms and conditions by office order dated 01.10.2011. The service of the second Petitioner was also discontinued. He was appointed again with the same terms and conditions by office order dated 01.09.2010, and then again discontinued. The service of the third Petitioner was discontinued by office order dated 25.02.2010. He was appointed again by office order dated 17.4.2010 with same terms and conditions, discontinued, again engaged by office order dated 21.09.2011 but only for 03 months.

4. The service of all three Petitioners were discontinued after the office of the DCO became defunct. Thereafter, all of them were appointed once again in the office of the Commissioner, Larkana on daily-wage basis/contingent paid-staff and on the same terms and conditions as before. The first Petitioner was appointed so by office order dated 17.3.2012; the second Petitioner by office order dated 09.3.2012; and the third Petitioner by office order dated 17.3.2012. However, it was acknowledged by learned counsel for the Petitioners that their service was subsequently discontinued and that they were not in service at the time they filed these petitions. Nonetheless, the Petitioners rely on judgment dated 08.5.2015 passed by a learned Division Bench of this Court in C. P. No.D-2433/2011 whereby the service of one Shakeel Ahmed Shaikh had been regularized who had been appointed as Naib Qasid in the office of the Commissioner, Larkana on the same terms and conditions as the Petitioners.

5. Heard the learned counsel and perused the record.

6. Since the Petitioners were employed by the Local Government and as daily-wagers, and their service had been discontinued, it is not their case that they were 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 was on the condition that their service could be discontinued at any time and that they would not qualify for regular appointment. The fact that they were re-engaged from time to time also shows that they were never in continuous service. Their sole ground taken by them for regularization is that they are entitled to the same treatment as Shakeel Ahmed Shaikh, who had been regularized pursuant to judgment dated 08.05.2015 passed by this Court in C. P. No.D-2433/2011.

7. 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.

8. As regards the argument that the Petitioners are nonetheless entitled to the same treatment as Shakeel Ahmed Shaikh in C. P. No.D-2433/2011, 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.”

9. Therefore, reliance placed by the Petitioners on judgment dated 08.05.2015 passed by this Court in C. P. No.D-2433/2011 is of no help to them as that judgment was delivered prior to the clear pronouncements of the Supreme Court discussed above, and thus, in terms of Article 189 of the Constitution of Pakistan, it no longer binding precedent. The reference in that judgment to an order of the Supreme Court is also only a leave refusing order.

10. For the foregoing reasons, these petitions are dismissed as not maintainable.

JUDGE

Qazi Tahir PA/*