IJAZ UL AHSAN, J.---Through this single judgment, we intend to decide Civil Appeals Nos. 670 and 671 of 2020, Civil Petitions Nos. 131 to 133 of 2021 and Appeal No. 45 of 2021 as they involve a common question of law .
2. The Appellants/Petitioners through their Appeals/Petitions have challenged the consolidated judgment of the Peshawar High Court, Peshawar dated 12.03.2020 passed in Writ Petitions Nos. 2123-P etc. of 2019. Through their respective petitions, the Respondents had approached the Peshawar High Court for regularization of their services. The Peshawar High Court was pleased to direct the Appellants/ Petitioners to regularize the Respondents against their respective posts.
3. The necessary facts giving rise to this /is are that the Respondents were employed against their respective posts on contract basis in 2012. In view of section 11(3) of the Amended Universities Act, 2013, a Selection Committee was purportedly constituted to fill up vacant posts of the Appellant/Petitioners. The said Selection Committee allegedly recommended the appointment of, the Respondents on purely contract basis for one year. The services of the Respondents were supposedly extended from time to time for 3 years commencing different dates e.g. 20.07.16. The Appellant/Petitioners did not regularize the Respondents; hence, they filed their respective Writ Petitions for a direction to be regularized from the date of their initial appointment( s). The learned High Court was pleased to regularize the Respondents. Aggrieved, the Appellants/Petitioners have approached this Court for redressal.
4. Leave to appeal was granted by this Court in the Civil Appeals vide order dated 21.07.2020 in the following terms:- "The learned counsel for the Petitioners contends that the Private Respondents (the Respondents) were appointed on contract basis and at no point of time their contract employment was made regular .
Further contends that the writ petitions filed by the respondents were allowed vide judgment dated 16.05.2019 which was itself contrary to the judgment of this Court cited in the case of Workers Welfare Board, KPK v. Nemat Ullah and others (Civil Petitions Nos. 4504 of 2017 etc.) cited in the very judgment but has distinguished on the grounds which were not available to the Respondents.
Further , relies upon an order of this Court dated 24.01.2019, passed in the case of Vice Chancellor , Hazara University Diwdal, Mansehra and others v. Sheikh Rashid and others (Civil Petitions No. 4356 of 2018, etc.) which also dealt with the case of contract emplo yees but on the tangent of section 23(3) (n) of the Khyber Pakhtunkhwa University Act, 2012.
The Learned Counsel further relies upon two unreported judgments of the Peshawar High Court, one dated 09.05.2019 in the case of Sadiq Amin and 3 others v. Bacha Khan University , Charsadda through its Vice Chancellor at Palosa Charsadda and others (Writ Petition No. 418-P of 2018) and other dated 21.04.2018 in the case of Owais Shams Durrani and Others v. Vice Chancellor , Bacha Khan University , Charsadda and another (Writ Petition No. 5210 of 2017) where the writ petitions filed by the contract employees were dismissed.
2. The learned Counsel contends that the question of jurisdiction has been wrongly considered by the High Court in its judgments, the same could have been reviewed and the review petition was maintainable."
5. Learned counsel for the Appellants/Petitioners has argued that the impugned judgment of the High Court is unsustainable for various reasons including the fact that the Respondents were employed on contract and had no right to be regularized. Further , that the Respondents were appointed against their respective posts pursuant to section 11(5)(e) of the KPK University Act, 2016 where no further extension was allowed. Further , approval was not sought from the competent authority , hence, the appointment of the Respondents was illegal and therefore, they had no right to be regularized. In addition, as per section 5 of the Bacha Khan University Statutes, the Respondents had no locus standi to invoke the jurisdiction of the learned High Court as the rules of the Petitioner- University are non-statutory in nature. Lastly , it was submitted by the learned ASC that under section 11(5)(e) of the KP University Act, 2012 amended in 2016, appointments were required to be made by the selection and promotion committee constituted by the Syndicate, Whereas no such committee was constituted.
6. The learned counsel for the Respondents on the other hand has defended the impugned judgment.
7. We have heard the learned counsel for the parties and gone through the record. The main question that needs to be answered by this Court is whether the Respondents, who were admittedly employed on contract basis can lawfully be regularized against their respective posts.
8. The learned High Court in the impugn ed judgment has held that the Respondents were appointed through the prescribed manner , albeit, on contract under the KP University Act, 2016. It is settled law that a person employed on contract basis has no vested right to regularization. By mere efflux of time, an employee cannot claim regularization and A knock on the door of the High Court for the same. A similar matter was decided by this Court in the case reported as Khushal Khan Khattak University through Vice-Chancellor and others v. Jabran Ali Khan and others (2021 SCMR 977 ) wherein it was held as follows:- "It is settled law that there is no vested right to seek regularization for employees hired on contractual basis unless there was legal and statutory basis for the same."
9. We have repeatedly asked the learned counsel for the Respondents to show us any law or policy of the Appellants/Petitioners in the basis of which they claim regularization. The learned Counsel has been unable to point out any such policy , rule or regulatio ns. The learned High Court has held that extending the contractual term of the Respondents from time to time is against the norms of good governanc e. We are therefore unable to understand, or agree with the conclusions and findings recorded by the High Court implying that instead of repeated extensions of contracts, such employees should be employed on permanent basis. Unfortunately , such observation takes an overly simplistic view of the employment requirements, budg etary constraints, organizational structures. employment policies and a number of other factors involved in the matter of employment of persons on contractual basis which is a lawful and legally acceptable method of having services of an employee. Further , it is not for the courts to decide for employers how and when and on what terms and conditions an employee is to be hired. It is the prerogative of the employer to decide such matters and the terms and conditions of such employment are such as are incorporated in the employment contract. The relationship is governed by the principle of master and servant and except in exceptional B circumstances; disputes arising there from are beyond the jurisdiction and parameters of the courts under Article 199 of the Constitution of the Islamic Republic of Pakistan.
We have examined the minutes of the meeting dated 28.06.2019 of the Syndicate of the Bacha Khan University Charsadda in which, the following has been decided by the Syndicate: "Presently , the Govt. of Khyber Pakhtunkhwa/Bacha Khan University , Charsadda has no law/rules/policy for regularization of contractual employees of the Universities. The Bacha Khan University , Charsadda will adopt the same after the approval from the body as and when introduced by the Government." (Underlining provided)
It is clear from the aforenoted excerpt from the minutes of the meeting of the Syndicate of the Appellant/Petitioner- University dated 28.06.2019 that it does not at present have any rules/law/policy regarding regularization of contractual employees. In absence of the same, the Respondents could not have approached the High Court and more so, the High Court could not have stepped into the shoes of the Syndic ate as the same amounts to a transgression of the powers given to the High Court under Article 199 of the Const itution of the Islamic Republic of Pakistan.
10. Forcing an institution to act as per the whims and wishes of certain employee s is not only burdensome, but is also a transgression of the powers vested with the High Court under Article 199 of the Constitution of the Islamic Republic of Pakistan. Even otherwise, it is settled law that contractual terms and conditions can neither be enforced, nor a contract be extended or renewed under Article 199 of the Constitution. As such, the conclusion reached by the learned High Court in this respect is unsustainable in law. Reliance in this regard is placed on the case of Khushal Khan Khattak University (Supra) in which the following was held: "In addition to these issues, we also find ourselves at odds with the fact that the present Respondents approached the High Court in its writ jurisdiction to seek regularization without there being any law conferring a right that may have been denied and was sought to be enforced by way of a petition under Article 199 of the Constitution. It is settled law that as contractual employees, the relationship between the Respondents and the Appellant is governed by the principle of master and servant. In these circumstances, the Respondent did not have the right to approach the High Court to seek redressal of their grievances relating to regularization. As noted above, in case of a contractual dispute the Respondents could- have sought appropriate redressal of their grievances before a competent court of law. However , only by virtue of being contract employees, no automatic right of regularization has accrued in their favour ."
11. The learned counsel for the Appellants/Petitioners has argued that under section 11(5)(e) of the Bacha Khan University Charsadda Statutes 2016, appointments were to be made by the Selection and Promotion committee constituted by the Syndicate and no such committee was constituted. Further , since the Respondents were employed against posts under section 11(5)(e) of the ibid Statutes of 2016, they could not have been granted extensions. For ease of convenience, section 1 1(5)(e) is reproduced below:- "11(5) The Vice Chancellor shall also have powers to (e) appoint employees on contract basis against the properly created budgetary posts for a period not exceeding three years on the recommendations of the Selection Committee constituted by the Syndicate; Provided that no extension shall be admissible beyond the period of three years: Provided further that the Vice Chancel lor may renew the contract of those employees whose contract was terminated before the promulgation of the Khyber Pakhtunkhwa Universities (Amendment) Ordinance, 2016 for a period not exceeding three years, subject to thorough scrutiny of all academic documents and eligibility of these employees and availability of property created budgetary posts, in the best interest of the University;" (Underlining is ours)
A bare perusal 11(5)(c) provides that extensions could only be granted on properly budgeted posts for a- term not exceeding three years on the recommendations of the Selection Committee constituted by the Syndicate. Further no extension is permissible beyond the three-year period stipulated in section 11(5)(e) as provided in the second proviso.
12. The learned counsel for the Appellants/Petitioners has taken us to the minutes of the 12th meeting of the Syndicate of the Bacha Khan University Charsadda dated 28.06.2019. A caref ul perusal of the said minutes establishes that the University was given directions to initiate the process of appointments through proper advertisement for sanctioned budgetary posts. It was further directed that appointments shall be made through proper process. We have repeatedly asked the learned Counsel for the Responde nts to show us anything on the record that establishes that the Selection Committee which was to further extend the contracts of the Respondents was constituted. The learned counsel has been unable to do so. The learned High Court too, for reasons best known to it, has held that the Selection Committee had been created, without referring to a single document on the record to this effect. We are therefore of the opinion that the High Court has erred in law and fact and misread the record and its findings are ex facie erroneous and not based on the record.
13. The learned counsel for the Appellants/Petitioners has drawn our attentio n to various decisions of the Peshawar High Court, which have been relied upon by the learned High Court in the impugned judgment and submitted that the learned High Court passed the impugned order while ignoring the judgments of this Court. It would not be out of place to mention that under Article 189 of the Constitution of the Islamic Republic of Pakistan, any decision of the Supreme Court, to the extent that it decides or enunciates a principle of law, is binding on all lower fora. It is beyond our understanding how the learned High Court chose to ignore various pronouncements of this Court and proceeded to rely upon its own judgments in presence of judgments of the Supreme Court which have a binding ef fect.
14. The impugned judgment of the learned High Court proceeds on erroneous grounds has jurisdictional errors and is suffering from various legal defects which warrant interference of this Court. The learned Counsel for the Respondents has been unable to persuade us to endorse the view taken by the learned High Court.
15. For reasons recorded above, these appeals are allowed. Resultantly , the impugned judgment of the Peshawar High Court dated 12.03.2020 is set aside. All listed CMAs stand disposed of accordingly .
16. Civil Petitions Nos.131 to 133 of 2021. For reasons recorded above, these petitions are converted into appeals.
Resultantly , the same are allowed and the impugned judgment of the Peshawar High Court dated 12.03.2020 is set-aside.
17. Criminal Appeal No. 45 of 2021. For reasons recorded above, this appeal is allowed. Resultantly , the impugned judgment of the Peshawar High Court dated 12.03.2020 is set aside.