The petitioner was a contractual employee employed by the Punjab Information Technology Board vide contract order dated 05.09.201 1 (A copy of his contract has been provided to this Court by the Assistant Advocate General).
He was dismissed from service on 26.2.2018 along with three other regular civil servant employees of the same department. He approached the competent authority with a representation even though the facility of representation was not available to the petitioner because his relationship with his employer was governed by the terms of the contract and which contract did not provide any right of representation. The contract of appointment of the petitioner is being reproduced herein below:- "2. Your employment is purely on contract basis on the subject project only and you are not entitled to regular appointment in the Punjab Information T echnology Board.
3. An employee shall be entitled to salary , on pro-rata basis, only for such working days on which his presence in the office is recorded in the computerized attendance system or his absence from office is duly authorized as leave by the competent authority .
4. An employee shall automatically cease to be an employee on the expiry date of the Contract or completion of the project whichever is earlier .
5. The competent authority may terminate the contract of an employee, without assigning any reason or cause for the termination, either on 30 days written notice or with immediate effect by paying 30 days salary .
6. The employee may also resign on 30 days' notice by serving a written notice or with immediate effect by depositing 30 days salary .
7. The competent authority may terminate the Contract of an employee, without assigning any reason or cause for the termination, with immediate effect, without serving a written notice of termination of Contract, and also without paying 30 days salary , if the employee: 7.2 commits a criminal offence; 7.3 is found to be inefficient, corrupt, or guilty of misconduct."
2. While the civil servant employees who were dismissed from service went to the Service Tribunal and vide order dated 02.2.2021, the Service Tribunal reinstated them in service and remanded the matter for a denovo inquiry .
These employees were taken back and a fresh denovo inquiry commenced. However , the petitioner chose to file a writ petition (this petition was eminently not maintainable in view of, inter alia, "Federation of Pakistan through Secretary Law, Justice and Parliamentary Affairs v. Muhammad Azam Chattha" (2013 SCMR 120), "Federation of Pakistan, Chamber of Commerce and Industry , Karachi v. Ali Ahmed Qureshi" (2001 SCMR 1733 ) and "Pakistan Telecommunication Co. Ltd. through Chairman v. Iqbal Nasir and others" (PLD 2011 SC 132) since a contractual employee cannot invoke Constitutional jurisdiction for seeking reinstatement).
According to the petitioner , this writ petition was not fixed since many objections were raised thereon by the office.
This petition bearing No.2942/2021 was dismissed in limine vide order dated 07.04.2021. An ICA No.53/2021 was filed against the same order but was withdrawn on 22.4.2021 to approach the competent forum, if any (This is where the problem arose). A problem that lies at the heart of this judgment and a problem, that gives rise to the term 'litigious employment' .
3. A person who has been a contractual employee but whose period of contractual service has come to an end has no right whatsoever to invoke Constitutional jurisdiction of a High Court. Reliance with advantage is placed on "Pakistan T elecommunication Co. Ltd. through Chairman v . Iqbal Nasir and others" ( PLD 201 1 SC 132 ), "Nadeem Shahid and another v. Chairman, State Life Insurance Corporation of Pakistan and 3 others"
(2003 PLC (C.S.) 719), and "Aurangzeb v. Messrs Gool Bano Dr. Burjor Ankalseria and others" (2001 SCMR 909).
4. In "Federation of Pakistan, Chamber of Commerce and Industry , Karachi v. Ali Ahmed Qureshi" (2001 SCMR 1733 ), the Hon'ble Supreme Court of Pakistan has held that "a contractual employee is governed by the principle of master and servant and, therefore, has no right for seeking reinstatement and even in the event of arbitrary dismissal or unwarranted termination such employee can only sue for damages."
5. The petitioner on the misconceived and misplaced belief, that a representation on the executive side was par for the course, submitted another representation after withdrawing his ICA, which was not entertained. Rightly so, since there is no provision for any such representation either in the terms of his contract or in any law. His earlier writ petition having been declined, there was no place in propriety either for another representation. He claimed in his representation that since civil servant regular employees sacked along with him were facing a denovo inquiry after being taken back in service, he ough t to be treated at par with them. This representation remained unattended and the petitioner has again approached this Court through the present Constitutional petition which is eminently not maintainable. He seeks a Mandamus to be issued so as for the Director General, Excise to decide his representation.
6. Hon'ble Supreme Court of Pakistan in "Owais Shams Durrani and others v. Vice-Chancellor , Bacha Khan University , Charsadda and another" ( 2020 SCMR 1041 ) has held at paragraph No.10 as follows:- "It is trite that where a citizen seeks relief in constitutional jurisdiction he must point to a right statutory or constitutional which vest in him and has been denied in violation of the law. The petitioners have failed to point out any right to seek regularization on the basis of any constitutional guarantee or statutory law or instrument which may have been denied to them. Their terms and conditions of service were governed by their appointment notifications."
7. Here, a quote from a judgment of the Indian Supreme Court reported as "Secretary , State of Karnataka and... v. Umadevi and others" (2006(4) SCC 1) may be in order and is as follows:- "Normally , what is sought for by such temporary employees when they approach the court, is the issue of a writ of mandamus directing the employer , the State or its instrumentalities, to absorb them in permanent service or to allow them to continue. In this context, the question arises whether a mandamus could be issued in favour of such persons. At this juncture, it will be proper to refer to the decision of the Constitution Bench of this Court in Dr. Rai Shivendra Bahadur Vs. The Governing Body of the Nalanda College [(1962) Supp. 2 SCR 144]. That case arose out of a refusal to promote the writ petitioner therein as the Principal of a college. This Court held that in order that a mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. This classical position continues and a mandamus could not be issued in favou r of the employees directing the government to make them permanent since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent."
"31. There have been decisions which have taken the cue from the Dharwad (supra) case and given directions for regularization, absorption or making permanent, employees engaged or appointed without following the due process or the rules for appointment. The philosophy behind this approach is seen set out in the recent decision in The Workmen of Bhurkunda Colliery of M/s Central Coalfields Ltd. Vs. The Management of Bhurkunda Colliery of M/s Central Coalfields Ltd. (JT 2006 (2) SC 1), though the legality or validity of such an approach has not been independently examined. But on a survey of authorities, the predominant view is seen to be that such appointments did not confer any right on the appointees and that the Court cannot direct their absorption or regularization or re-engagement or making them permanent."
8. The prayer for a Mandamus to decide a misconceived representation which is eminently and conspicuously not maintainable is what has set this Court wondering about the new found tendency and rampant trend on the part of habitually litigious contractual, contingen t and adhoc employees of government departments and agencies who seek the blessings of a Constitutional Court for the purpose of filing and perpetuating representations, applications nay any supplication in the form of an appeal to executive or quasi-judicial functionaries of the state working on the Executive side. A question that warrants attention is whether an executive functionary or an executive quasi-judicial organ be judicially cornered and coerced into entertaining, adverting to, and deciding a representation which is legally not maintainable?
9. At the same time, it must be pointed out that it is indeed permissible for Constitutional Courts to convert and treat one type of proceedings into another and to remit a lis to a forum or authority of competent jurisdiction for decision on merits. For example in "Province of Sindh v. Muhammad Ilyas" (2016 SCMR 189) in which a C.P. filed before the Sindh High Court challenging dismissal from service was treated by the Sindh High Court as a service appeal and sent to the Service Tribunal. Likewise, in "Engineer Musharraf Shah v. Government of Khyber Pakhtunkhwa through Chief Secretary and 2 others" (2015 PLC (C.S.) 215) and "The Thal Engineering Industries Ltd. v. The Bank of Bahawalpur Ltd. and another" (1979 SCMR 32) a similar course was adopted.
But this was done only because an appeal was legally in order and Service Tribunal was constitutionally and legally bound to entertain and adjudicate the appeal .
10. There is no gainsaying that provisions of Article 175 of the Constitution of Islam ic Republic of Pakistan, 1973 as expounded by this Court in the case of "S.M. Waseem Ashraf v. Federation of Pakistan through Secretary M/o Housing and Works, Islamabad and others" (2013 SCMR 338 @ 345), resonate the principle that no Court should exercise any jurisdiction in any matter brought before it until and unless, such jurisdiction had been conferred upon it by the Constitution itself or under any law. Courts only exercise original, appellate, revisional, review or constitutional jurisdiction as mandated under the Constitution and the law .
11. The petitioner states that he should also be treated at par with the civil servant/regular employees. This, of course, cannot be done. Contractual service, it is a universal term of all contracts, at least for government employment contracts, comes to an abrupt end upon the employee being held guilty of a misdemeanor let alone a felony (which is the case here). The petitioner , according to information provided by the administrative department still has to make good the monetary loss he has been held guilty of embezzling. There is no coming back for him.
His relations with his master stand severed by the self-executory contract. In case of the petitioner , Clause-7 of his contract reflects what has been stated above.
12. The petitioner cannot, under any circumstances be treated at par with his colleagues who are regular employees. A contractual employee serves at the absolute and unfettered pleasure of his master . A contractual employee has the sword of Damocles constantly hanging over his head. Furthermore, good conduct is a conspicuous condition of government contractual service. Also, there are no post-re tirement benefits for contractual employees. Contractual employment is not pensionable service either . On the other hand, a regular employee is entitled to statutory procedural protection in the event of facing a charge of misconduct. A regular employee can avail remedy before a quasi-judicial forum, a regular employee can be brought back and reinstated in service, and regular employee can then face a denovo inquiry . Regular employment is attractive also because it entails a whole lot of pensionary benefits. These distinguishing features in addition to a very recent and lucid judgment of the Hon'ble Supreme Court of Pakistan reported as "Province of Punjab through Secretary Livestock and Dairy Development Department, Government of the Punjab, Lahore and others v. Dr. Javed Iqbal and others"
(2021 SCMR 767) provide a near-catalogue of distinguishing features between a government contractual employee on the one hand and a regular employee nee civil servant on the other . The Apex Court in 2021 SCMR 767 has held as follows:- "The Contract Appointment Policy was conceived after the Government realized that regular mode of appointment is not suitable for most of the Government sector assignments due to administrative and financial factors. The rationale behind the contractual mode of appointment is based on financial and economic reasons, as well as, administrative reasons. According to the Policy , the financial constraints of salary and pension under regular appointment had become unsustainable. Besides several administrative reaso ns associated with the regular employees also tilted the scales in favour of the contractual mode of appointment: large scale absenteeism of regular employees; poor performance leading to poor service delivery; cumbersome accountability mechanism systems; huge administrative costs of transfer and promotions, etc; no concept of performance based indicators; contract mode being more flexible to tap in the best human resource available in the market; latest management practices in the developed world also recommended contract mode of appoi ntment. These reasons led to development of two separate schemes of appointment. Persons appointed on contract basis are not civil servants, therefore, their service matters are not governed by the rules framed under Civil Servants Act, 1974. Their appointment is strictly regulated by the terms and conditions of the contract. Their period of contract is between 3 to 5 years and extension is generally granted for a period of 3 to 5 years and not for an indefinite period. On expiry of contract appointment, if no extension is granted, it is ensured that the contract employee is not allowed to continue in service. Contract appointment is liable to be terminated on one month' s notice or on one month' s pay, in lieu thereof, on either side without assigning any reason. The contract provides that the contract appointment shall not confer any right of regular appointment nor shall such appointment be regularized under any circumstances. A contract employee shall, under no circumstances, claim conversion of his contract appointment into regular appointment.
6. On the other hand, employees appointed on regular basis are governed by the rules framed under the Punjab Civil Servants Act, 1974 such as the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, Service Rules of the post, Leave Rules, Pension Rules, etc. The above shows that a contractual employee is appointed under a scheme which is totally different from that of regular appointment and a contractual appointee does not enjoy the right to be appointed on regular basis or to be readily shifted into the regime of regular appointment."
13. In "Dr. Lakhte Mustaf fa Kazmi v. State of U.P. and Anr." (2003) 2 UPLBEC 1351 , the Allahabad High Court has held as follows:- "In Life Insurance Corporation of India v. Raguvendra Sheshgiri Rao Kulkarni, (1977) 8 SCC 460, the Apex Court explained the difference of a permanent employee and an employee holding the post on probation and held that the services of a probationer cannot be equated with that of a permanent employee who on account of his status, is entitled to be retained in service and his services cannot be terminated abruptly without any notice or plausible cause. "This is based on the principle that a substantive appointment to a permanent post in a public service confers substantive right to the post and the person appointed on that post becomes entitled to hold a lien on that post. However , interpreting/enforcing the terms of appointment, which provided for discharge of the said probationer from service at any time during the period of probation or extended period of probation, without any notice or without assigning any cause, the Court held - that as his termination was in consonance with the terms and conditions of his appointment letter , he cannot be heard raising grievance."
14. The above cited judgments clinch the issue confronting this Court. It is clear that daylight exists between the two categories of employees and hence both cannot be treated in the same manner .
15. Having validly addressed the issue of lack of any similarity between a contract ual employee and a regular civil servant, this Court must turn its attention to the ancillary yet thought provoking and rather relevant and topical issue of litigious employment in government sector obtained on the basis of legally unwarranted yet repeated representations. The petitioners' counsel insisted that all that he was praying for was for a 'harmless' representation to be decided! The question is whether a representation such as the one in issue is harmless ? Certainly not.
16. Let us begin by placing the matter in its proper context and contours. And for that this Court relies on (2006 (4)
SCC 1) in which it has been held, "At times the government, its departments, and instrumentalities resort to irregular appointments especially in the lower rungs of government service withou t reference to the Public Service Commission or otherwise as per rules and permit these irregular appointees or those appointed on contract or on daily wages to continue year after year. Thus keeping out those who are qualified to apply for the post concerned and depriving them of an opportunity competing for the post. This has, at times, led to such persons approaching the courts, seeking directions to make them permanent in their posts and to prevent regular recruitments. The courts have not always kept the legal aspects in mind and have at times even stayed the regular process of employment from being set in motion and even directed that such illegal entrants be absorbed into service. A class of employment which can only be called 'litigious employment' has risen like a phoenix seriously impairing the constitutional scheme."
17. This activity , arguably speaking, upsets and defeats the constitutional and statutory schemes of public employment. Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 under which wide powers are exercised by the High Court is not meant to be used for the purpose of perpetuating illegalities, irregularities or for scuttling the entire scheme of public employment. The Indian Supreme Court in 2006 (4) SCC 1, has held that, "such directions under Article 226 (read 199) are issued presumably on the basis of equitable considerations. A question arises, equity to whom? Equity for the handful of people who have approached the Court with a claim or equity for the millions of unemployed youth of the country who are seeking a fair opportunity for employment. When one side of the coin is considered the other side of the coin has to be considered as well and the way open to any court of law is to adhere to the law and not to issue directions which certainly tend to water down the constitutional and legal requirements."
18. The English Court of Appeal has thrown caution to the winds by ruling, "judicial review should not be made available to a litigant on the basis of misplaced sympathy ." In "Latham v. R. Johnson & Nephew , Limited" (1913
(1) KB 398) it has been held, "We must be very careful not to allow our sympathy with the infant plaintif f to affect our judgment." It goes on the state that sentiment is a dangerous will of the wisp to take as a guide in the search for legal principle. Even the Indian Supreme Court in the case of "Teri Oat Estates (P) Ltd. v. U.T., Chand igarh and others" (2004 (2) SCC 130) has held, "sympathy or sentiment by itself cannot be a ground for passing an order in a case where there is no special legal right involved." Likewise the Indian Supreme Court in "Secretary , State of Karnataka and... v . Umadevi and others" (2006(4) SCC 1) has held at paragraph No.36 as follows:-
36. While directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the concerned person has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with eyes open. It may be true that he is not in a position to bargain -- not at arm's length -- since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently . By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power , that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily , contractually or casually , would not be getting even that employment when securing of such employment brings at least some succor to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is tempo rarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution of India."
19. It is evident from the precedent cases cited above that while issuing directions for deciding representations, this Court must have due regard to the rights of such other persons in particular who may be the direct affectees of such directions. The Court must also give requisite consideration to the interest of the public and the Court must always guard itself from aiding a contractual employee in blowing hot and cold and disallowing such a person from indulging in approbate and reprobate. A contractual employee knowingly gains contractual employment, fully familiar with the terms of his contract of service, completely acquainted with the delicate balance between the master and the servant and cognizant of the absolutely temporary and transient nature of the job. He also has ample knowledge about the lack of security of tenure. And, therefore, he should not be encouraged by repeatedly sending him back to his public Law Employer in the garb of directions to decide representations.
20. In the light of what has been discussed above, this Court is of the clear and firm view that both prayers of the petitioner come across as non-starters since neither can his representation be countenanced since it falls foul of his contractual terms and since the facility is not available to him under any law and his prayer to be treated at par with regular civil servant is, likewise, naive and misplaced since, both, contr actual employees and regular employees are species apart.
21. For what has been discussed above, this writ petition being not maintainable is dismissed in limine.