WIQAR AHMAD, J. Through this singe judgment, we intend to dispose of W.P. No. 1110-M12018 as well as W.P. No. 1172-M/2018 filed by respective petitioners under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as "the Constitution").
2. Petitioners in both these connected writ petitions are aggrieved of refusal of respondents i.e. concerned officers of Health Department of the provincial government, to regularize them in the service of health department of the province. Petitioners have contended in their writ petitions that they had been appointed on the posts of Lady Health Visitor (hereinafter referred to as "LHVs") in the year 2013 and 2015 respectively , on contract basis for a period of one year with fixed pay, however the contracts of their services have been extended from time to time. They have also added that in other Districts, the appointments had been made in the health department under District Health Officer (hereinafter referred to as "DHO") directly but only in 13 Districts which also included District of petitioners such appointments have been made through the instrumentality of People's Primary Healthcare Initiative (hereinafter referred to as "PPHI"). They have also contended that in other Districts of the province the persons appointed have already been regularized and given all the benefits of provincial civil service while the petitioners had been treated discriminately and that they had also been entitled to be appointed in the civil service of the province.
3. Respondents have stated in their comments that the petitioners have never been appointed by the respective competent authorities provided in the laws of civil service of the province, they had rather been appointed in the project of PPHI being run by an NGO registered as a private limited, company in the name of Sarhad Rural Support Program (hereinafter referred to as "SRSP"). They have also contended that such employees could never be regularized under the law .
4. We have heard arguments of learned counsel for petitioners, learned Astt: A.G appearing on behalf of official respondents and perused the record.
5. Perusal of appointment orders of the respective petitioners reveal that they had been appointed by District Support Manager of PPHI Swat for a period of one year which contract had then been extended from time to time but it have not been claimed by the petitioners that their orders of appointment or extension of contract has ever been passed by DHO concerned or any other officer of the provincial government as a competent authority. Article 240 of the Constitution provided for appointments to service of Pakistan and conditions of the service. Same article being relevant is reproduced hereunder for ready reference;
240. Appointment to service of Pakistan and conditions of service.
Subject to the Constitution, the appoin tments to and the conditions of service of persons in the service of Pakistan shall be determined-
(a) in the case of the services of the Federation, posts in connection with the affairs of the Federation and All- Pakistan Services, by or under Act of Majlis-e- Shoora (Parliament); and
(b) in the case of the services of a Province and posts in connection with the affairs of a Province, by or under Act of the Provincial Assembly. Explanation.-In this Article, "All- Pakistan Service" means a service common to the Federation and the Provinces, which was in existence immediately before the commencing day or which may be created by Act of Majlis-e- Shoora (Parliament).
Clause (b) of Article 240 inter alia provided that appointments to and the conditions of service of persons in the service of a province and posts in connection with the affairs of a province would be determined by or under Act of the provincial assembly . The provincial assembly has been regulating such appointments and conditions of service, in service of the province and posts in connection with the affairs of the province by and under the Khyber Pakhtunkhwa Civil Servants Act, 1973. Section 26 of said Act provided for provision of the powers and under said powers the authority provided therein has framed the Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989 (hereinafter referred to as "the APT Rules"). The APT Rules had provided for all the authorities of appointment for various grades in Rule 4. Rule 5 of the APT Rules provided for constitution of Departmental Promotion and Selection Committee. Rule 10 has prescribed the method of appointment by initial recruitment in detailed thereunder . The Civil Servants Act as well as the APT Rules has nowhere provided that appointment to a civil service of the provin ce, may be made by or through some agency or private limited company or any other entity . So much so that powers of the government to devolve this authority to any other private entity has never been provided or reserved under the Civil Servants Act or the APT Rules. The appointments made in the case in hand by District Support Manager of PPHI Program under the umbrella of SRSP , cannot therefore be held to be an appointment made in service of the province. In the case in hand the government had not provided any such authorization, as a matter of fact, under the contract entered with SRSP for implementation of the PPHI Program. Similarly , Hon'ble Supreme Court of Pakistan while giving its judgment in the case of "Govt: of KPK through Secretary Health, Peshawar & others v/s Jawad Ali & others" reported as 2021 SCMR 185, on the face of similar facts, had also analyzed the concept of employment in a government organization through a private agency and had held; "As regards to the argument that there was an Agency relationship between the Appellants and SRSP and the employees of SRSP are actually employees of the Appellants, we find the same to be farfetched and misconceived. For an agency relationship to exist, it is settled law that there must be a Principal who circumscribes the powers of the Agent to act within either express authority or implied authority for the said. Principal. Such a relationship does not exist in the present case. It is evident from the record that there were two separate contracts. One contract was between SRSP and the appellants i.e. the management contract, while the second was between the SRSP and the respondents which was an employment contract. Nowhere is there a linkage between the two and nowhere is it mentioned that SRSP is acting on behalf of the Appellants in hiring the Respondents. Contrarily, SRSP has been given sole discretion in matters related to human resource and the appellants are to act within their own settled confines which are separate from those of SRSP."
6. When an employee seeks regularization of service of the province or Federation, he in-fact seeks his appointment thereto. Article 240 of the Constitution requires a law which should provide for such appointment to civil service of the Federation or civil service of the province. The general law providing for such appointment has been the Civil Servants Act, 1973 in case of service of Federal Government and Civil Servants Act, 1974 in case of service of the province and the rules framed under the two respective laws.
When a person is not appointed under said laws or rules framed thereunder then another special law in the form of regularization of services Act would be required to provide for induction of the employees in the service of the province. Both the legislatures i.e. the Federal as well as the provincial have been retaining such powers to provide for appointment and regulating the terms and conditions of .new entrants in the service of Federation or province, according to Article 240 of the Constitution. This is the reason that whenever the provincial government has intended to regularize employees not appointed under the respective Civil Servants Acts and rules framed thereunder , then special acts of regulariza tion have been promulgated for the purpose. It was for this purpose that the provincial government of Khyber Pakhtunkhwa has promulgated, Khyber Pakhtunkhwa Adhoc Civil Servants (Regularization of Services) Act, 1987, Khyber Pakhtunkhwa Civil Servants (Regularization of Services) Act, 1988, Khyber Pakhtunkhwa Employees on Contract Basis (Regularization of Services) Act, 1989, Employees on contract Basis (Regularization of Services) (Amendment) Act, 1990, Khyber . Pakhtunkhwa Civil Servants (Amendment) Act, 2005, Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009, Khyber Pakhtunkhwa Extra- Assistant Commissioners cum-Illaqa Qazi (regularization of services) Act, 2012 and Khyber Pakhtunkhwa Regulation of Lady Health W orkers Program & Employees (Regularization and Standardization) Act, 2014.
7. Learned counsel for petitioners has relied upon the provisions of Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2018 (hereinafter referred to as "the Regularization Act"). He had particularly referred the schedule of employees given under clause (k) of section 2 of the Act and has stated that in item No. 14 of the Schedule mother , neonatal and Child Health (MNCH) Program in Khyber Pakhtunkhwa had been provided and such employees being serving in the project had been provided to be regularized under the Act.
8. Section 3 of the Regularization Act provided for regularization of services of adhoc employees in the following words;
3. Regularization of services of adhoc employees.-- Notwithstanding anything contained in any law or rules, the employees at sub-clause (i) of clause (e) of subsection (1) of section 2 of this Act, appointed on adhoc basis against civil posts and holding such civil posts till the commencement of this Act, shall be deemed to have been validly appointed on regular basis, from the date of commencement of this Act, subject to verification of their qualifications and other credentials by the concerned Government Department.
Section 4 of the Regularization Act has provided for regularization of services of project employees as follows;
4. Regularization of services of project employees.-- Notwithstanding anything contained in any law or rules, the employees at sub-clause (ii) of clause (e) of sub-section (1) of section 2 of this Act, appointed on contract basis against project posts and holding such project posts till the commencement of this Act, shall be deemed to have been validly appointed on regular basis from the date of commencement of this Act, subject to verification of their qualifications and other credentials by the concerned Government Department: Provided that the terms and conditions of services of employees reflected at S.No.5 of the Schedule shall further be governed under the National Disaster Management Authority Act, 2010 (Act No. XXIV of 2010) and Regulations made thereunder; and the terms and conditions of services of employees reflected at S.No.6 & 7 of the Schedule shall be governed under the Khyber Pakhtunkhwa Emergency Rescue Services Act, 2012 (Khyber Pakhtunkhwa Act No. XV of 2012).
Section 4 had provided for regularization of employees of specific project mentioned in sub-clause (ii) of clause (e) of sub section (1) of section 2. Said specifications of the project employees in the mentioned clause also merits reproduction;
(e) "employees" mean duly qualified,-
(i) one hundred and fifty-eight (158) District Specialists of Health Department, who are appointed on adhoc basis against civil posts w.e.f. 4th July, 2017 and holding such civil posts till the commencement of this Act; and
(ii) persons, who are appointed in the projects on contract basis in accordance with the project policy; Project posts mentioned in above reprod uced section 4 has also been defined in clause (j) of section 2 of the Regularization Act as a post in the projec t which has separately been defined as a project of perpetual nature, the continuation of which and conversion to regular budget was essential for service delivery duly identified by the departments as reflected in the Schedule. The department means government department which has been defined in clause (f) of Section 2 as the government department defined in the Khyber Pakhtunkhwa Government Rules of Business, 1985. Contract appointment has also been defined in clause (b) of Section 2 of the Regularization Act as appointment of a duly qualified person for a specific period made against project posts, in a prescribed manner .
9. Petitioners in the case in hand cannot claim benefit of the Regularization Act for the reason that they have never been appointed against any posts in any project being run by any government department under the Khyber Pakhtunkhwa Project Policy 2008. Appointment to projects run by provincial government departments had also been provided through a well-documented policy mentioned above, but neither the project in which petitioners had been appointed was being run by any government department nor have the employees been appointed under the project policy. It was a special dispensation wherein the government of Khyber Pakhtunkhwa had entered into a memorandum of understanding with a private limited company known as Sarhad Rural Support Program for provision of health facilities in various health units of the provincial government but regarding the employees appointed by the company it had been provided that the company would retain sole discretion over the employment, posting, removing, remuneration and customary managerial prerogatives over the staff, it recruited for its project.
Appointments of the petitioners cannot be called to have been made by any of the provincial government department or under the project being run by the provincial government departments, in the given situation. We therefore find that reliance of learned counsel for petitioners on provisions of the Regularization Act had totally been misplaced.
10. Learned counsel for petitioners had also relied upon Clause 22 (b) of the contract earlier entered between the provincial government and SRSP while contending that government had promised that the employees appointed therein would be accommodated by the government after expiry of period of the contract. We are afraid, we would not be able to agree with learned counse l for petitioners on interpretation of Clause 22 (b) of the contract. Effect of existence of such clause, on the fate of those employees who had been recruited by SRSP under PPHI program, had earlier been analyzed by this Court while giving its judgment on 13.11.2014 in W.P. No. 3359-P of 2014, in the following words; "5. Record is suggestive that the government of KPK, Health Departmen t Peshawar , entered into an agreement as First Party with Sarhad Rural Support Program, a company incorporated under Companies Ordinance 1984 (respondents No. 4 and 5), the Second Party for engagement of different staff including Medical Officer, in order to strengthen the Primary Health Care Services, in the District so as to ensure the delivery of minimum health services delivery package for Primary Health Care and to improve the coverage and utilization of services, quality of care, by implementing the Primary Care quality standards for Health Department KPK. Clause 22 (b) is relevant for the purpose of employment etc of the petitioners, which reads as under; "The Second Party shall ensure to appoint duly qualified doctors paramedics meeting and standard/criteria set by the First Party as for as qualification, training and skills are concerned. Second Party will have solo discretion over the employing, posting, removing, remuneration and customary managerial prerogatives over staff that is recruited by it. Staff recruited by the Second Party shall have no claim against the First Party upon conclusion of his Agreement."
6. The perusal of entire agreement annexed as "A" reveals that there is no connection of the petitioners with the government of KPK or for that matter Health Department rather they are employed by the: respondents No. 4 and 5 on contract basis. The referred notification and judgment in WP are entirely on different proposition and not applicable to the case of petitioners."
Petitions for leave to appeal had also been filed there-against before the Hon'ble Supreme Court of Pakistan. Hon'ble Apex Court while deciding Civil Petition No. 105-P of 2015, vide its order dated 23.05.2019 had also observed; "It seems that these two petitioners were employed as Medical Officers on 10.12.2013 and 30.10.2012 and such appointment was made by Sarhad Rural Support Program, which by agreement (available at page No. 48), appears to be company incorporated under the Companies Ordinance, 1984. The term of contract employment of these two petitioners stood completed on 31.12.2014 and thus they ceased to be the employees. However, these petitioners with others have filed writ petition in the Peshawar High Court, Peshawar on 01.11.2014, wherein they have sought declaration to the effect that they have been validly appointed as Medical Officers in the project of KPH and are entitled to be regularized. In the very memo of petition the petitioners had conceded as a fact that they were appointed by Sarhad Rural Support Program and not by the Government of KP. They have also admitted that Respondent No. 4 was a company incorporated under the Ordinance, 1984. The Government of KP has entered into an agreement with Respondent No. 4 for providing Primary Healthcare Services to the people of KP. Respondent No. 4 in this regard was to appoint its own staff, employees and Medical Officers and to pay their salaries and emoluments with which Government of KP had no concern. The High Court in the impugned judgment has also reached the same conclusion and the learned ASC appearing for both the petitioners was unable to demonstrate before us that the petitioners were employees of Government of KP and whether the agreement made between the Government of KP and Respondent No. 4 itself was a sham agreement.
Neither such has been pleaded by the petitioners in their, writ petition nor argued before the High Court.
We, therefore, are not in a position to decide the question as to whether the agreement between the Government of KP and Respondent No. 4 was a sham agreement."
The plea against the doctrine of discrimination in a similar situation had also been raised and dealt with by Hon'ble Apex Court in its judgment in the case of Govt: of KPK v/s Jawad Ali Supra in the following words; "Lastly, with regards to the argument of the learned counsel of the respondents that they have been discriminated against as some employees in other projects who were regularized, we are not impressed by the same. The instances cited by the learned counsel for the Respondents relate to employees hired by the Government on contractual basis against permanent posts. Such employees squarely fell within the ambit of the Regularization Policy. The case of the Respondents is clearly distinguishable insofar as they were never hired by the Government, they were hired by a private entity against project posts and they were informed at the time they were hired that their employment would come to an end on expiry of the period of the Project. That being so the argument that they have been unjustly discriminated does not hold much water."
11. Petitioners have not been able to make out a case for their regularization on any of the grounds raised in their writ petitions or those raised by their learned counsel during course of his arguments. Services of the petitioners could not therefore be ordered to be regularized in service of health department of the government of Khyber Pakhtunkhwa. Both the writ petitions were found divested of any force and same are accordingly dismissed.