Instant constitutional petition as well as constitutional petition bearing W.P. No.27839 of 2020 titled as "Uzma Rehman, etc. v. Government of Punjab through Mines Labour Welfare Commissioner , Punjab, Lahore, etc." , are decided together , both of which raise common issues and substantially seek reliefs in identical terms. Before dilating upon the merits of the petitions, it is expedient to reproduce the relief claimed in instant petition, which reads as; "this Writ Petition may kindly be accepted and direction may kindly be issued to the respondents to regularize the services of the petitioners without any further loss of time, in the supreme interest of justice.
It is also prayed that pending the decision of the Writ Petition respondents may kindly be directed not to discontinue the services of the petitioners and no action prejudicial to the contractual services of the petitioners may be taken, in the supreme interest of justice".
2. During the course of hearing of the matter , learned law officer has placed copies of two separate orders, both dated 25.06.2020, indicating extension allowed to the petitioners for three months upto 30.09.2020 or till the arrival of regular incumbent, whichever is earlier . It is apparent that the period of service is extended, which, by and large, is one of the reliefs sought.
3. The grant of extension is evidently a stop gap arrangement, petitioners, however , claimed right to be regularized.
A brief reference to the facts may facilitat e quick comprehension of the issue at hand. It is a common ground, and not disputed, that petitioners were appointed as project employees, in or about the middle of the year 2015, on contractual basis against various posts in the project under ADP Scheme No.2391 (2014-15), identified as "Establishment of Mines Labour Welfare Girls Higher Secondary School, Chak No.119/SB, Tehsil Sillanwali, District Sargodha" . There is no controversy that period of contract of the petitioners was extended from time to time, last of which was extended, till 30.09.2020, through orders dated 25.06.2020, discussed earlier . Before determining the substance and extent of the rights claimed herein, it is expedient to make reference to one of the core conditions of letter of appointment, duly acknowledged and acquiesced by the petitioners, wherein it was categorically stated that 'contract appointment shall confer no right of regular appointment' . Notwithstanding this embargo / condition, and as the luck would have it, in the year 2016, sanction was accorded to the transfer / creation of thirty (32) posts through transfer of completed scheme titled "Establishment of Mines Labour Welfare Girls Higher Secondary School, Chak No.119/SB, Tehsil Sillanwali, District Sargodha" ("Project") from development to non-development budget - Reference is made to letter No.SO(B)6-60/2009 dated 13.06.2016. There is no dispute qua conversion of the project from development to non-development category .
4. The fundamental issue, which calls for determination, is the scope and extent of alleged rights, claimed through this petition, i.e. right to be regularized. There is no cavil to the fact that the embargo placed on a prospective right, to claim appointment on regular basis - condition in the letter of appointment - stood dissipated / compromised upon conversion of the project from development to non-development category . The petitioners, pursuant to said conversion, agitated the right to be regularized. Whether such a right, as claimed, is an absolute right - per-se enforceable - or same is constrained with conditionalities / contingencies. There is no doubt that right claimed is neither an absolute nor a vested right, which at best, in the facts and circumstances privy to this case, extends a right to claim appointment on regular basis, in lieu of services rendered as project employees. This appears to be the intent of policy decision contained in the Notification issued, bearing No.SO (ERB)5-3/2014/Contract (Project) dated 23.07.2014 (referred as the Policy). The salient of the policy needs no reiteration, as the legality and constitutionality thereof is not under challenge.
5. It is clearly decipherable from the contents of the policy that, "right to be considered for appointment on regular basis" upon conversion of a project from development to non-development side, is acknowledged, implementation whereof is subject to the terms and condit ions prescribed. In is evident that alleged rights claimed by the petitioners - to be regularized - are not absolute but conditioned with certain conditions, which at the same time attracts certain concessions. It is, therefore, a misconception to brand right to be regularized as a vested right, ipso-facto - by itself - enforceable without fulfillment of corresponding conditions. To comprehend the scope and extent of a 'vested right' reference is made to the case of NABI AHMED and another v. HOM E SECRET ARY, GOVERNMENT OF WEST PAKIST AN, LAHORE and 4 others (PLD 1969 Supreme Court 599). Reference is also made to the decision in the case of "Mian RAFI-UD-DIN AND 6 OTHERS v. THE CHIEF SETTLEMENT AND REHABILIT ATION COMMISSIONER AND 2 OTHERS" (PLD 1971 Supreme Court 252), relevant portion at page- 298 is reproduced hereunder as; "A 'vested right', an 'accrued right' or a 'substantive right' does not mean only title to property or office; a right, benefit or an advantage conferred by a statute, if availed of by doing a thing as required by the statute, is also a right of this kind. Again, if right, benefit or advantage conferred by a statute is dependent on the happening of a contingency , then, the same becomes a 'vested or accrued right' after the contingency has happened".
[Emphasis supplied]
6. It is not the mandate or intent of the Policy that upon ipso-facto conversion of project to non-development side, petitioners would be regularized forthwith. A guideline was provided for appointment on regular basis. Learned law officer, assisted by the representative of the department, stated that the appointment of the petitioners on regular basis, in lieu of conversion from development to non-development category , shall be in accordance with the terms of the policy and prospective service rules. He, however , conceded that thirty-two (32) posts were sanctioned accordingly , in the wake of conversion of project. I have examined the report submitted on behalf of the department.
7. Learned counsel for the petitioners, principally , expressed no reservations qua applicability and implementation of policy , however , apprehended that instead of exclusively offering sanctioned posts to the petitioners - for the purposes of appointment of regular basis - a composite recruitment process would be adopted by the department, wherein the present petitioners have to compete along fresh candidates. Petitioners, in essence, seek declaration, claiming exclusivity qua appointment on regular basis against the sanctioned posts, independent of any fresh / prospective candidate, vying for the sanctioned posts on merits. The declaration of this sort, in the facts of this case, implies an overt amendment / change in the terms of the policy , creating exclusivity for the petitioners qua sanctioned posts. Petitioner 's counsel referred to following judgments to support submissions, details whereof are provided herein-below;
1. W.P. No.9770/2019 Muhammad Aslam V . Chairman, Planning and development Board, Government of Punjab, etc.
2. ICA No.58652/2019.
Province of Punjab & others V . Muhammad Aslam & others
3. C.P . No.2792/2018.
Muhammad Imran Khan V. Federation of Pakistan thr. Secretary to the Government of Pakistan M/O Information T echnology and T elecom Division, Islamabad & others.
4. Intra Court Appeal No.340/2017.
Imran Ahmad and others V . Federation of Pakistan and others.
5. ICA No.577/2012.
Hamid Mehmood, etc. V . Government of Punjab, etc.
6. Rizwan Javed and others V . Secretary Agriculture Livestock and others [ 2017 PLC (C.S.) 712 ].
7. Qayyum Khan V . Divisional Forest Of ficer, Mardar and others ( 2016 SCMR 1602 )
8. Qayyum Khan V . Divisional Forest Of ficer, Mardar and others [ 2017 PLC (C.S) 428 ).
9. W.P. No.33755/2013.
Miss Shazia Pervaiz, etc. V . Government of the Punjab, etc.
10. WAPDA through Chairman and others V . Abdul Ghaf far and others ( 2018 SCMR 380 )
11. Government of Punjab, through Secretary Education, Civil Secretariat, Lahore and others V. Sameena Parveen and others ( 2009 SCMR 1 )
12. Masoom Jan V. Federation of Pakistan through Secretary Ministry of Interio r, Islamabad and 4 others (PLD 2020 Peshawar 1).
8. Learned counsel repeatedly referred to the observations recorded in ICA No.58652-2019 vide order dated 13.11.2019. It is expedient to reproduce relevant paragraphs No.4, 5 and 6, thereof, which read as; "4. Except Muhammad Sadiq Munawar , Simab Ashraf, Aroos Munir , Muhammad Usman, Wajeeha Javaeed, Salman Khalid & Muhammad Azeem, other respondents are in Grade 1 respondents (Grade-1 to 15) shall be placed before petitioner No.3 for regulariz ation of their services following the policy of the government and the law laid down by the Honourable Supreme Court of Pakistan in C.P . No.2792-2018.
5. The cases of the aforementioned seven respondents, working in Grade-17, shall be placed before the Public Service Commission in the same terms as settled by the High Court and approved by Honourable Supreme Court of Pakistan in C.P . No.2792-2018.
6. The cases of the respondents shall be sent and considered separately from the direct recruitment process by all the authorities following the policy of the government".
[Emphasis supplied]
9. Conversely , learned law officer referred to the case of PROVINCE OF PUNJAB through Secretary Agricultural Department, Lahore and others v. MUHAMMAD ARIF and others (2020 SCMR 507), wherein claim of regularization by project employees was adjudicated upon in the context of the provisions of Punjab Regularization of Service Act 2018 (Act, 2018). Though the facts of the case of PROVINCE OF PUNJAB through Secretary Agricultural Department, Lahore and others v. MUHAMMAD ARIF and others are distinguishable - wherein the project in question was not taken over by the Government - but since learned counsel for the petitioner has conceded that provisions of Act, 2018 are not attracted, this court is not inclined to dwell into an academic debate regarding applicability of provisions of Act, 2018 in this case, which question may be adjudged in some other case.
10. In view of the absence of any vested right, this court is not inclined to issue any direction to the department to regularize the petitioner , per-se in the wake of conversion of project to non-development side. Needless to mention that the policy , by itself, acknowledges right of the petitioners to be considered for appointment on regular basis, subject to the conditions prescribed. The Policy prescribes certain concessions to be extended to the petitioners, while considering them for appointment on regular basis, pursuant to the framing of Service Rules and launch of recruitment process. When confronted, learned law officer submits that no adverti sement has been issued yet for recruitment. A right, claiming regularization per-se and a claim to be considered for appointment on regular basis, subject to the conditions prescribed, are not, by any stretch of imagination, indistinguishable, which distinction is a peculiarity of this case. Even the Act, 2018 has prescribed certain conditions before effecting regularization of contract employees - as defined in section 2 (c) thereof. I have examined the judgments referred by learned counsel for the petitioners, none of which declare or hold that right to be regularized is an absolute right, enforceable by itself without observance and fulfillment of conditions attached. Some of the judgments referred by learned counsel highlighted arbitrary decisions demonstrating cherry-picking / discriminatory exercise, which judgments are not applicable to this case. There is no instance of any discriminatory treatment, until now. The Apex Court, while adjudicating upon various petitions, in C.P. No.2792, titled as "Muhammad Imran Khan V.
Federation of Pakistan thr. Secretary to the Government of Pakistan M/O Information Technology and Telecom Division, Islamabad & others ", discussed and affirmed paragraph 123 (iv) of the judgment in ICA No. 340 of 2017 of learned Islamabad High Court, Islamabad. It is expedient to reproduce relevant paragraph No.123
(iv) - apposite for the purpose - which reads as; "123 (iv). All project employees of BPS-1 to BPS-15 working in projects, which have been converted from development to non-development, shall be considered for the purpose of their regularization of services by their competent authorities while considering their qualification, eligibility , and fitness on case to case basis within the period of six (06) months (as one time exercise), subject to the condition that their initial selection was made through transparent manner i.e. advertisement, test and interview".
11. The cases of regularization of employees, whose contracts of appointments are recurrently extended, and are rendering services or performing works of permanent nature, are of different species and judicial pronouncements by the superior courts of Pakistan in respect thereof are not applicable to the cause of the petitioners. In view of the discussion so far, it is clear that petitions are devoid of any plausible cause of action and no vested right is available to the petitioners, enforcement whereof can be ordered by exercising Constitutional jurisdiction. The claim of the petitioners to be considered for regular appointment is very much available and embedded in the policy , subject to the conditions prescribed. The petitions, otherwise, can conveniently be dismissed at this point alone.
12. Learned counsel for the petitioner insisted for issuance of direction in the nature of observations in ICA No.28652 of 2019, titled as "Province of Punjab & others V. Muhammad Aslam & others" . It is claimed that requisite directions be issued to departm ent to consider the case of the petitioners separately for the purposes of appointment on regular basis. In essence change / amendment in the policy is sought in disguised, covert and indirect manner . Whether this court can change the terms of policy , by directing incorporation of condition of considering the case of the petitioners exclusively / independent of fresh / prospective candidates? I am afraid that this court can entertain such request and proceed to amend the terms of policy , when its vires or constitutionality is not questioned. An encroachment in legislative and executive domain is unwarranted, in the facts and circumstances of this case. The controversy , effecting change in a policy , qua terms of regularization, came up for consideration before the Hon'ble Supreme Court of Pakistan - in the context of jurisdiction of the High Courts - in the case of "CHAIRMAN NADRA, ISLAMABAD, through Chairman, Islamabad and another v. MUHAMMAD ALI SHAH and others" (2017 SCMR 1979 ), relevant portion whereof is reproduced hereunder , for ease of reference,; "The High Court could not renegotiate, alter and/or amend the terms of regularization that were offered by NADRA for the simple reason that the High Court did not have jurisdiction to do so. Therefore, till such time that the employees were regularized they would continue to be governed by the terms and conditions of the contract which they had with NADRA . The writ or constitutional jurisdiction of the High Court under Article 199 of the Constitution could not be invoked by a contractual employee of a statutory organization, such as NADRA (see Pakistan Defence Officers' Housing Authority v. Jawaid Ahmed reported as 2013 SCMR 1707 , Pakistan Telecommunication Co. Ltd. v. Iqbal Nasir reported as PLD 2011 Supreme Court 132 and P.T.C.L. v. Masood Ahmed Bhatti reported as 2016 SCMR 1362 ). It was only after the terms and conditions offered by NADRA had been accepted and the Option Form had been submitted that the status of a contra ctual employee would convert to that of a regular employee of NADRA. Before accepting the terms offered by NADRA and submitting the Option Form the status of a contractual employee would remain as such and he/she would not be able to seek recourse to the constitutional jurisdiction of the High Court".
[Emphasis supplied]
13. This court is not inclined to entertain petitioner 's request to extend exclusivity qua the purposes of considering them for appointment on regular basis. Now coming to the observations - paragraph No.6 and reproduced earlier - in ICA No.58652-2019, it is respectfully observed that said observations are in the nature of an obiter / observations simplicitor , which cannot be treated as decision of the case / enunciation of law, but mere 'statements by the way' , as far as instant case is concerned. Such observations do not qualify as ratio decidendi - reasoning and decision of the case. The construction attributed by petitioner 's counsel to the observa tions in ICA No.58652-2019 is misconceived and contrary to the decision in the case of CHAIRMAN NADRA, ISLAMABAD, through Chairman, Islamabad (supra). If the submissions of learned counsel for the petitioners are adverted to, it implies that observations in paragraph 6 of ICA No.58652-2019, suggests material change in the terms of policy . No change in the tenor of the policy or terms thereof can be affected in view of the law enunciated in the case of CHAIRMAN NADRA, ISLAMABAD, through Chairman, Islamabad (supra). To comprehend the scope, extent and effect of observations - an obiter dicta / observations simplicitor , for all intent and purpose - in paragraph No.6 of order dated 13.11.2019 in ICA No.58652-2019, guidance is solicited from the dictum in the case of "IRSHAD AHMAD SHAIKH v . THE ST ATE" ( 2000 SCMR 814 ), relevant portion whereof is reproduced hereunder: "Now , every case is an authority , to the extent the same decides the legal controv ersy encompassed in it. In other words, the declaration of law has to be confined to the four corners of the dispute agitated before the Court. The rest, if any , is obiter and obiter , except of this Court or , before it, of the Privy Council is not/has not been binding".
Reference is also made to a decision in the case of "S. MUHAMMAD DIN & SONS LTD. v. ASSIST ANT DIRECT OR LABOUR WELF ARE (CONCILIA TION) LAHORE REGION, LAHORE AND OTHERS" (PLD 1968 Lahore 1012 ), relevant portion whereof is reproduced as; " ............In Flowor v. Ebbs Vale Steel, Iron & Coal Co. ((1934) 2 K B 132), Mr. Justice Talbot says: " .... It is of course perfectly familiar doctrine that obiter dicta, though they may have great weight as such, are not conclusive authority . Obiter dicta in this context means what the words literally signify-name ly, statements by the way. If a Judge thinks it desirable to give his opinio n on some point which is not necessary for the decision of the case, that of course, has not the binding weight of the decision of the case and the reason for the decision." To the same effect is the statement of the law in Halsbury , Volume XIX, pave 251: "It may be laid down as a general rule that that part alone of a decision of a Court of law is binding upon Courts of co-ordinate jurisdiction and inferior Courts which consists of the enunciation of the reason or principle upon which the question before the Court has really been determined. This underlying principle which forms the only authoritative element of a precedent is often termed the ratio decidendi'. Statements which are not necessary to the decision, which go beyond the occasion and lay down a rule that is unnecessary for the purpose in hand (usually termed dicta) have no binding authority on another Court, though they may have some merely persuasive efficacy ." If, therefore, an opinion is given on some point which was not necessary for the decision of the case, it did not lay down a law to be followed ............."
[Emphasis supplied]
14. There is another aspect of the case. Even if the petitioners are considered for appointment on regular basis - who are likely to claim concessions in-built in the policy - along with fresh candid ates, no prejudice is caused to them as the fresh candidates would start with a disadvantage, in wake of the concessions extended to the petitioners. Learned law officer has appris ed this court that Service Rules are yet to be framed, certainly whereafter process of advertisement would commence. It goes without saying that in case of cherry-picking exercise or discriminatory treatment, petitioners are at liberty to invoke remedies available in law .
15. In view of the above, the petitions are incompetent and same are, therefore, dismissed. No order as to the costs. The petitioners may claim rights accrued in terms of Policy dated 23.07.2014.