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.

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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