' SHAHID ANWAR BAJWA, J--- For reasons to be recorded later, this Constitution Petition was dismissed. Following are our reasons for the short order announced in open Court:--
2. The petitioners were appointed on various posts on contract basis in Sindh On-Farm Water Management Project (SOFWMP) in 2005. In the appointment letters it was specifically stated that the employment shall be liable to termination before expiry of project on giving one month's notice by either side or making payment in lieu thereof. It was further stated in Para-3 of the letter as under:-- "(3) He will be governed by the Sindh Civil Servants Rules as amended from time to time and instructions in force relating to the services and the Sindh Civil Servants Act 1973 and the rules there under."
3. By letter 1st June, 2009 petitioners were informed that the project was going to be closed on 30- 6-2009 find that the World Bank Mission had informed Government of Sindh that the salaries of contract staff of SOFWMP would not be released after June, 2009. Consequently they were informed that in terms of para.4 of contract of their employment, their employment shall terminate with effect from 30-6-2009. This Constitution Petition has been filed to challenge the termination of employment.
4. Mr. Abdul Mujeeb Pirzada learned counsel for some of the petitioners made the following submissions:--
(1) There were two projects one called Sindh On-Farm Water Management Project (SOFWMP) which was managed by the Provincial Government and one National Programme for Improvement of Watercourses (NPIW) which was managed by the Federal Government. In a meeting held on 25-11- 2005 it was decided to merge two projects for the purpose of strengthening field teams. Learned counsel submitted that while the persons appointed for SOFWMP have been removed from employment. The persons employed on (NPIW) have not been so removed.
(2) Learned counsel referred to newspaper clipping (Dawn of June 7, 2009) to contend that the Chief Minister had announced that (NPIW) has been extended for three more years. He also referred to an interview by the Provincial Law Minister wherein it was stated that Provincial Government intended to present a bill in the Provincial Assembly for making contract employees as permanent employees. In this regard learned counsel referred to a summary submitted before the Chief Minister to state that the employees employed in (NPIW) and (SOFWM) in Punjab and Sindh have been regularized and if Chief Minister so decide a bill can be moved in the Provincial Assembly for regularization of employees of (SOFWM).
(3) Learned counsel referred letter dated December 1st 2005 to say that some of the employees were transferred (SOFWM) to (NPIW). Learned counsel also referred to certain advertisement where the Agricultural Department has invited applications for appointment.
(4) Learned counsel referred to an Aide Memoire dated April 30, 2009 wherein it is stated that further improvement in the watercourses is required.
5. Mr. Shabbir Ahmed Awan learned counsel for some of the petitioners while adopting arguments of Mr. Abdul Mujeeb Pirzada referred to the above quoted para of the letter of appointment and contended that the petitioners are civil servants and are therefore not contract employees.
Learned counsel also submitted that since regularization has taken place in Punjab and Balochistan the petitioners are also entitled to regularization. Learned counsel referred to Sarfraz Ahmed v. Government of Sindh, 2006 PLC (C.S.) 1304.
6. Mr. Nariandas C. Motiani, learned counsel for respondent No,2 referred to the comments submitted by respondent No,2 and contended that the petitioners were employed on project internationally funded and which was for a period of 4 years and was for completion of 4000 Watercourses in Sindh and was due to be closed in 2008 but was extended till 30-6-2009 and after closure of the project employment of the petitioners has been terminated. Regarding the Aide Memoire learned counsel submitted that it is merely a wish of Provincial Government but no resources have been approved by any international donors agency. Regarding merger of (NPIW) learned counsel submitted that it was only for working purposes but the two projects remained distinct and separate all along. Regarding contentions of the petitioners in terms of Para-3 of the notification of appointment that they are civil servants, learned counsel submitted that if their contention is accepted then the jurisdiction of this Court is barred under Article 212 of the Constitution. Learned counsel submitted that petitioners were contract employees and as such they had no right to continue after completion of the project. Learned counsel relied upon Agha Salim Khurshid and another v. Federation of Pakistan and others 1998 SCMR 1930, Naila Khalid v.
Pakistan, through Secretary Defence and others PLD 2003 SC 420 and unreported judgment of the Supreme Court in the case of Ateequr Rehman and others v. Federation of Pakistan and others Civil Petition No,246-K of 2010 decided on 20-9-2010. Learned counsel submitted that no new recruitment in the category in which the petitioners were employed has been effected on the projects after removal of the petitioners.
7. Mr. Adnan Karim, learned A.A.-G. Relied upon Government of Balochistan, Department of Health, through Secretary, Civil Secretariat, Quetta v. Dr. Zahida Kakar and 43 others 2009 PLC (C.S.) 206.
He further submitted that petitioners are not civil servants.
8. While exercising their right of reply Mr. Shabbir Awan submitted that either the petitioners are civil servants or they are not. It is not available to the government authorities to claim that petitioners are liable for the purpose of disciplinary action and conduct just like civil servants as contended by A.A.-G. And not otherwise. Mr. Pirzada submitted that same exercise has been carried on in the other Provinces.
9. We have considered the submissions made by the learned counsel and have also gone through the record. Both Mr. Shabbir Awan and Mr. Pirzada have laid a lot of emphasis on statement made in para.3 of the notification (para has been quoted above) which states that the petitioners shall be governed by the Civil Servants Rules and Civil Servants Act. Their contention was that by this statement the petitioners are entitled to all the protection in this regard. The contention is obviously misconceived. Firstly because in the Sindh Civil Servants Act a civil servant is defined in Section 2(b) and under clause (ii) thereof a person who is employed on contract is ipso facto excluded from the definition of civil servant. There is. No provision in the Sindh Civil Servants Act conferring a power on the Provincial Government to make or declare a person as civil servant who does not fall within the definition of the civil servant as given in Section 2(b) of the Civil Servants Act. Therefore, since the petitioners were hired on contract and it is so obviously stated in the notification itself the Provincial Government did not have power to make or declare them a civil servant. It is in the light of this principle that Para-3 of the notification has to be read.
10. Intent of the para, it has been argued by Mr. Adnan Karim, is only in respect of requiring the petitioners to follow the principle relating to conduct and discipline and for no other purpose. Mr. Shabbir Ahmed Awan vehemently contended that so could not have been done. We are unable to agree if the Federal Government had hired a person on contract that person is not a civil servant. Is not it available to every employer to lay down the standard of conduct and discipline for his employees and unless such laid down standard of conduct and discipline is found to be repugnant to any provision of law or any principle having force of law the employer has right to enforce and this is, it is correctly argued by Mr. Adnan Karim, exactly what was intended by para.3 of the notification.
11. Both the learned counsel for the petitioners emphasized that in the Punjab and Balochistan contract employees have been regularized and therefore, the same practice should be followed in the province of Sindh. Mr. Pirzada referred to the summary submitted by the Law Minister to the Chief Minister that a bill be introduced in the Provincial Assembly for such regularization. As far as submission of a bill in a Provincial Assembly is concerned, it is as old a judicial principle as extra- ordinary writ jurisdiction that no writ can be issued to the Legislature requiring it to legislate. It may be instructive to note in this regard that under Article 189 of the Constitution decision of the Supreme Court have been held to be binding on all Courts and under Article 190 of the Constitution all executive and judicial authorities have been mandated to act in the aid of Supreme Court. It is significant that word 'legislative authority' has not been included in Article 190.
12. Pakistan is Federation having four provinces and legislative domains of the Federation and the Provinces are clearly specified in the Constitution and there is no provision in the Constitution obligating a province to make a particular provision merely on the ground that another province or provinces have enacted a provision. If uniformity in the provinces in legislative domain would have been intended of the Legislature there was no need to provide for provincial autonomy and need for separate Legislatures. Therefore, mere fact that two Provinces have made similar provision is not sufficient, though it may be a food for thought or reason for consideration for the provincial executive, for issuance of a mandatory order to the Provincial Government of Sindh to do the same.
13. Mr. Shabbir Awan relied upon Sarfraz Ahmed's case (supra). Facts of this case were that the appellant was appointed as Assistant Director Labour initially for a period of six months. Before expiry of that period his employment was terminated without assigning any reason. The Supreme Court noticed that though petitioner was appointed for a period of six months and though his employment was terminated within the period of six months but in view of order by the Supreme Court order of termination was suspended and notification in this regard was issued on 16-7-1997 and his services were continued from 1997 to 10th April, 2006 when the petition was heard by the Supreme Court. The appellant all along remained in continuous employment. A notification dated 22-9-1998 was also placed before the Supreme Court evidencing that incumbent of the leave vacancy on which the appellant was employed had been removed from employment and therefore there was a clear vacancy and therefore, position of availability of vacancy as specified in the order of the termination was no long available and, the Supreme Court held that the appellant had a vested right to be appointed against the said vacancy. This case is clearly distinguishable. It was not of contract employment but of appointment on a leave vacancy.
14. On the other hand, Mr. Motiani relied upon Agha Salim Khurshid's case (supra). The facts of that case were that appellant who was a practicing lawyer, was appointed as Member, National Industrial Relations Commission (NIRC) for a period of three years. Four months later the appointment of the petitioner was terminated. He challenged termination in the High Court and then the matter went to the Supreme Court and the Supreme Court held as under:-- "(5) The learned counsel for the appellants has further contended that before terminating their services, the appellants were entitled to notice and that the appointment being statutory in nature, the Federal Government had no power to terminate their service contract. We are unable' to subscribe to the above contention of the learned counsel for the appellants. The contract of service, under which the two appellants were appointed, specifically provided that their appointments shall be liable to termination on 3 months' notice or 3 months' salary in lieu thereof on either side without assigning, any reason. Such a contract, in our view, does not create any vested right in the appointee so as to make him entitled to notice before termination of the contract of service."
15. Mr. Motiani also relied upon Naila Khalid's case (supra). She was appointed as a Lecturer in a college on adhoc basis for six months or till availability of Federal Public Service Commission nominee. She was relieved after four years when the F.P.S.C. Nominee was selected. The Supreme Court observed as under: "He is right in stating that, in law, there is no concept of reinstatement of an ad hoc employee whose services were dispensed with in accordance with the terms and conditions of offer of appointment. Undoubtedly, the petitioner was appointed as lecturer on adhoc basis as a stopgap arrangement for tenure of six months or till the availability of a nominee by F.P.S.C. Ad hoc appointment of a person does not confer any right or interest to continuous appointment, seniority, or promotion. It is held by an incumbent till a person is regularly selected by the Public Service Commission for the post held by an adhoc appointee. It is well settled that the services of such employee can be dispensed with at any moment without assigning any reason."
16. Mr. Adnan Karim referred to Dr. Zahida Kakar's case (supra). She was appointed as Medical Officer on contract purely on temporary basis for a period of six months extendable for a period of 2 years. Last extension expired on 31-3-2000 and upon such expiry her employment was terminated. It was however, notified that she may apply for selection to Public Service Commission which had already advertised the posts. She approached High Court and through an interim order she was allowed to continue. The interim order was confirmed which confirmation was challenged in the Supreme Court. The Supreme Court vacated the interim order observing that the respondents before it were employed purely temporary basis and specifically on contract and such contract stood terminated on the expiry of contract period or any extended period on choice of the employer or appointment authority. It was held that Prima facie, it did not create any vested right. In WAPDA and others v. Khanimullah and others, 2000 SCMR 879, respondents were employed on a project in 1986 and on completion of the project they were declared surplus and were accordingly discharged from service in 1992. The matter meandered through the Courts in judicial hierarchy and eventually reached the Supreme Court. The Supreme Court held that since they were employed on a project and were released on completion of the project there was nothing wrong in such a release. Lastly reference may be made to the unreported judgment of the Supreme Court in Ateequr Rehman's case (supra). Petitioners were appointed on adhoc basis and condition was specified in the letter that the appointment on the regular basis shall be made after they have completed 5 months of training at the Audit and Accounts Training Institute and passed requisite examinations. Before the Supreme Court it was argued that employment was governed by Rule 6(3) of the Civil Servants Act read with Rule 21 of the Appointment, Promotion and Transfer Rules and therefore the test was not a prescribed requirement. This contention was rejected by the Supreme Court and it was observed that since the petitioners failed to pass the test they were not entitled to become regular employees.
17. In the present case, the petitioners were hired on contract for a project and were released upon completion of the project (whether the project completed or not to that we shall return later), therefore, their release upon completion of the project cannot be said to be without lawful authority and of no legal effect.
18. Mr. Abdul Mujeeb Pirzada referred to Aide Memoire dated April 30, 2009. In the last para of the Aide Memoire itself the following is written:--- "The proposed Additional Financing is expected to go to Board for consideration around 25 June 2009. To meet this target, that the Negotiation should take place between 15-20 May. The Bank will send out the invitation to negotiate in due course."
' This clearly indicates that the Aide Memoire is merely a wish of the Provincial Government and it desired to approach international lending institutions. No material has been placed on record that any loan was taken or has been granted for continuation of the project. Mr. Pirzada relied upon advertisement published in "Daily Kawish' on June 6, 2009. That advertisement stated that the Federal Government has given an application for additional loan for Sindh On-Farm Water Management Project. Such application has been submitted to International Development Association (I.D.A). Through advertisement the Provincial Government expressed its intent to initiate process of Supervisory and Monitoring. Consultancy Services and for that it invited applications from Consultancy Firms/Consortium. The fact that the applications have been invited from consultancy firms etc. Cannot be taken to mean that project has commenced and loans have been granted by any international lending agency. It is clearly stated by respondent No,2 that project has come to an end no material has been produced that further loan has been received an end no material has been produced that further loan has been received and the project is otherwise continuing. Therefore, the available record indicates that the project Sindh On-Farm Water Management Project has concluded.
19. Mr. Pirzada also referred to letter dated 1st December, 2005 which indicates that some of the officers from (SOFWM) project were transferred to (NPIW) in 2005. If they were transferred in 2005 it cannot be said to be a malafide transfer because the present petitioners' contract was terminated in June, 2009. A decision taken four years earlier cannot be said to be mala fide by merely alleging that the authorities were intending to remove others in 2009. If any authority in this regard is needed, one may refer to President United Bank Ltd. v. Abdul Shamim Khan, PLD 1999 SC 990.
20. Result of the above discussion is that this Constitution Petition is dismissed in limine. Listed application is also disposed of. The above are our reasons for the short order announced in open Court on 5-10-2010. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.