The Petitioners have invoked the Constitutional jurisdiction of. this Court by filing the instant Writ Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 to challenge the Advertisement dated 26.12.2021 ("Impugned Advertisement") published by the Respondent (Capital Development Authority) for fresh appointment of Head Nurse (BPS-17) as illegal, unlawful, discriminatory and in violation of CD A Service Regulations, 1992 and also for direction to the Respondent to promote the Petitioners/Staff Nurses of BPS-16 to the next post of Head Nurse BPS-17 while restraining them from filing the post pursuant to the Impugned Advertisement.
2. Brief facts, as per the Memo of Petition, are that the Petitioners are government servants and serving as Charge Nurses (BPS-16) in Capital Hospital Islamabad G-6/2 Islamabad. According to the final seniority list of Staff Nurses (BPS-16) issued on 10.01.2020, the Petitioners were, placed at serial numbers 47, 54, 53, and 57. The Petitioners claim that subject to the availability of a vacant post, they are eligible for promotion to Head Nurse (BPS-17) as per the existing criteria laid clown for promotion of Staff Nurse (BPS-16) in CDA Service Regulations, 1992 ("Regulations") including academic qualification as per Notification dated 22.01.2019 and requisite number of years in service. The Petitioners claim to have been performing their duties with due-diligence, honesty and up to the entire satisfaction of their superiors without complaint from any quarter, whatsoever. As per the applicable Regulations, the post of Head Nurse is to be filled 100% by way of promotion from the incumbents of Staff Nurse (BPS-16) instead of fresh appointment in the said pay scale.
Notwithstanding the above, instead of promoting the Petitioners to BPS-17, the Respondent advertised 9 posts of Head Nurses (BPS-17) under the garb of a project. The Petitioners allege that such advertisement is illegal and prejudicial to the rights of the Petitioners and that the Respondent has discriminated against the Petitioners and an attempt has been made to deprive them of their right of promotion to the next higher scale.
3. The learned counsel for the Petitioners, inter alia, contended that the discriminatory treatment against the Petitioners is a clear violation of Article 25 read with Article 4 of the Constitution of Pakistan; that the advertisement issued by Respondent is based on malafide, discrimination and for sinister motives; that the advertisement and recruitment is against the ratio of the judgment of this Honourable Court reported as Imran Ahmed vs. Federation of Pakistan, 2019 PLC CCS) Note 19 and Ms. Shagufta Hashmat vs. Federation of Pakistan, 2018 PLC (CS) 619. It was, submitted that the Petitioners have every apprehension that the Respondent will fill the post of Head Nurse in BPS- 17 through advertisement and they will be deprived of their due promotion and if the Respondent is not restrained from this act, Petitioners shall suffer irreparable loss; and that they have no other efficacious or appropriate remedy, therefore, they invoke the Constitutional jurisdiction of this Court for issuance of a direction to the Respondents to treat the Petitioners in the same manner as provide in the rules on the subject. Learned counsel for the Petitioner relied upon Muhammad Rafi vs. Federation of Pakistan, 2016 SCMR 2146 and prayed for the acceptance of instant petition.
4. Learned counsel for the Respondents, on the other hand, contended that on 26.12.2021 the Capital Development Authority ("CDA") advertised certain vacancies for a Project namely "Establishment of Medical and Cardiac Care Unit in additional block of Capital Hospital" purely on contract basis for a period of one year having no vested right for regular appointment. He explained that since the project is oh the development side, its appointments have nothing to do with the regular posts of Head Nurse (BPS-17) already existing in CDA Hospital. No recruitment is being carried out against regular position of Head Nurse. According to him the regular employees including the Petitioners have their own channel of promotion and, as such the Petitioners have no cause of action. Learned counsel for the Respondent submitted that currently the Petitioners are serving as qualified Staff Nurses (BPS-16) in CDA Hospital as regular employees and after fulfilling the requisite requirements laid down in the Regulations they will be promoted to Head Nurse (BPS-17) subject to availability of vacancy however, at present, the sanctioned strength of the Head Nurse posts is 20 out of which 19 are already occupied.
5. It was further submitted that the project is under a specific budget whereas the salaries of the regular employees at a higher pay scale are beyond budgetary limits. He also submitted that if and when the project is converted from development to non-development side, the Petitioner shall be considered for promotion according to relevant rules and regulations. He also apprised the Court that in fact the Petitioners have also applied for the project posts in response to the Impugned Advertisement and interview letters have been issued to them and as such they are estopped from challenging the Impugned Advertisement and that their conduct disentitles them of the relief prayed for. Even otherwise, he said that the advertisement dated 26.12.2021 was superseded by another advertisement dated 27.01.2022, hence the instant petition has become infructuous. Learned counsel also contended that the Regulations are non-statutory in nature, therefore, instant writ petition is not maintainable, hence liable to be dismissed. He relied Government of Khyber Pakhtunkhwa vs. Sher Aman, 2022 SCMR 406, Government of Khyber Pakhtunkhwa vs. Saeed-ul-Hassan, 2022 PLC (C.S.) 164, National Highway Authority vs. Saqlain Mehdi, 2022 PLC (C.S.) 175, Government of Khyber Pakhtunkhwa vs. Muhammad Younas, 2021 PLC (C.S.) 1194, Habib Bank Limited vs. Saqib Mahmood, 2021 PLC (C.S.) 1495, Asif Nawaz vs. Chairman, Punjab Vocational Training Council, 2020 PLC (C.S.) 1140, Zafar Javaid vs. Executive District Officer (Revenue), 2015 PLC (C.S.) 442, Dr. Khalil Rehman vs. Government of Punjab, 2015 PLC (C.S.) 793, Dr. Mir Alam Jan vs. Dr. Muhammad Shahzad, 2008 SCMR 960 and M.H. Mirza vs. Federation of Pakistan, 1994 SCMR 1024. He also relied on two unreported judgment of this Court titled as Rao Muhammad Adil Khan vs. Capital Development Authority, W.P. No. 3377/2021 and Ms. Javeria Maqbool vs. ' Capital Development Authority, W.P. No. 2722/2020. Learned counsel, therefore, prayed for dismissal of the titled petition.
6. Arguments advanced by learned counsel for the parties have been heard and documents placed on record examined with their able assistance.
7. It is clarified first and foremost that promotion is not a vested right. Therefore to the extent that the Petitioners claim promotion as matter of right, their prayer is against long standing principles of law. However, the question that requires consideration is whether or not the Impugned Advertisement violates rules and regulations regarding promotion.
8. Before going into such question though, it is necessary to consider the objection with regard to the maintainability of this petition. The learned counsel for the Respondent argued that the instant petition is not maintainable as the Respondent does not have statutory rules. He relied upon the case of M.H. Mirza vs. Federation of Pakistan, 1994 SCMR 1024, wherein the Honourable Supreme Court observed that examination of the provisions of CDA Ordinance, 1960 has shown that the CDA itself is to determine the terms and conditions of its employees and that the government has no say in the matter and further that none of its regulations whether framed by itself or adopted by reference has any statutory basis in law. It was held that there being no statutory rules in the field, the constitutional petition was not at all competent on the subject.
9. On the contrary, the learned counsel for the Petitioner submitted that the said view has changed in recent years. In support of this contention, he cited Muhammad Rafi vs. Federation of Pakistan, 2016 SCMR 2146 wherein the Honourable Supreme Court held that in view of paragraph 50 of Pakistan Defence Officers' Housing Authority vs. Lt. Col. Syed Jawad Ahmed, 2013 SCMR 1707, an aggrieved person can invoke the Constitutional jurisdiction of the High Court against a public authority if he can satisfy that the act of the authority is in violation of the service regulations even if they are non-statutory.
10. The above submission of the Petitioner's legal counsel is correct to the extent that the distinction between the statutory and non-statutory has indeed undergone changes in recent years. However, it would certainly not be correct to suggest that a writ petition would be maintainable against a public authority by its employee regardless of whether its rules are statutory or non-statutory in any and all circumstances. In subsequent cases i.e. Shafique Ahmed Khan vs. NESCOM, PLD 2016 SC 377; Muhammad Zaman vs. Government of Pakistan, 2017 SCMR 571; and Pakistan Defence Officers Housing Authority vs. Mrs. Itrat Squad Khan, 2017 SCMR 2010 the test to determine the nature of the rules and regulations i.e., whether they arc statutory or otherwise has been held to be that the rules dealing with instructions for internal control or management are treated as non- statutory while those whose area of efficacy is broader and/or complementary to the parent statute in matters of crucial importance are statutory.
11. I will defer the determination as to whether the' CDA service rules are statutory or not according to the aforementioned test for another case justifying such analysis given that in the instant case by the Petitioners' own submission a writ would be maintainable despite non-statutory rules only where the allegedly aggrieved person can satisfy that there has been a violation of such rules by the public authority. In the instant case, there appears to be no violation of rules nor has any cause for grievance accrued to the Petitioners in view of the fact that the Petitioners are regular employees whereas the Impugned Advertisement is only for employment in a project on a one year contract.
12. The Petitioners' counsel argued that the term "project" has a specific meaning attached to it and that simply using the term "project" with reference to any developmental plan will not automatically make it such. In this regard, he relied upon the definition provided in Government of Khyber Pakhtunkhwa vs. Jawad Ali, 2021 PLC (C.S.) 341 as follows: "9. ...In regular terms the word 'project' indicates any endeavor which is for a definite period of time and upon the completion of the said project employees who were hired for that definite period have to be relieved from their duties.
In this regard, reliance is placed on Pakistan Railways through Chairman, Islamabad and another v. Sajid Hussain and others (2020 SCMR 1664) which discusses the word "project". The relevant portion of the said judgment is reproduced below: ordinary terms, the word 'project' is used to denote any undertaking which is for a limited time period and after the objective for which the said project has been set up is achieved, funding for the same dries up and employees who are hired for a limited time period for duration of the project have to be relieved from their duties owing to the fact that the project has concluded, the funding has ceased and the very basis on which such employees were hired has come to an end."
[emphasis added].
13. I have examined the Impugned Advertisement. In light of such definition and find that it contains certain Instructions, one of which provides that "all project posts shall be purely on contract basis for a period of one year having no vested-right for regular employment". I have also seen the project's PC-1 (discussed below), copy of which was provided by the Respondent's legal counsel to the Court during the course of arguments according to which project shall be completed within 12 months' time. Given that the project is for a definite period of time, it fulfills the definition of project provided in the case of Government of Khyber Pakhtunkhwa. (Supra) and therefore the Petitioners' objection in this regard stands fully refuted.
14. Now that it has been established that the Impugned Advertisement is indeed for a project, I rely upon the following passage in the judgment of Imran Ahmed vs. Federation of Pakistan. 2019 PLC (C.S.) Note 19 to understand the nature of project posts: "110. In recent past, we have also come across with other new phenomena called the "project posts" as the political governments have started different projects in different times on the recommendations of Planning Commission upon the requirement and while considering the national goals fixed for the development of Pakistan. The Planning Commission has proposed different programs while considering the needs in the deficient areas including engineering, medicine/surgery, physical sciences, energy, agriculture, economics, management, IT, education and in other social sectors and created different projects, after the approval of the said projects, PC-I has been prepared in this regard and the same would be Placed before the CDWP for final approval before its authorization. Every such project has to be given administrative approval by the Federal Government subject to concurrence of the Ministry of Finance and others related ministries, divisions as it is necessary to take the consent from the Ministry of Finance who shall calculate the expenditure and subject to allocation of funds in the fiscal year the project is approved, whereafter the same is implemented. All such projects are on development budget at the initial stage which depends upon the nature of project as to whether the same will be completed in a fix time referred in the PC-I and the required result have been achieved or otherwise. The main component of the said development projects is the manpower required to run the project. The basic objective of the project is to provide and enhance the development of Pakistan and all these projects have been conceived while considering one goal i.e. "'Development of Pakistan", however, it is the Planning Division and the will of the political government which is reflected from the goals and objectives of the projects."##TE## [Emphasis added].
15. Further insight was gained from the Guidelines for Project Management issued by the Projects Wing, Planning Commission submitted by the learned counsel for the Respondent. According to the said Guidelines, development projects are prepared on the approved format i.e., PC-1-Proforma. It also provides that the appointment of project staff should be made through open competition and in a transparent manner. In this connection, a recruitment committee for the selection of Project Director chaired by the Principal Accounting Officer along with members from the Planning Division, Finance Division and Establishment Division already notified by the Planning Commission should be considered. Approval for the recruitment of project staff is the responsibility of the Project Director.
No approval is required from any forum if the TORs are provided in the approved PC-1. The Respondent's legal counsel submitted that the Respondent cannot violate the project PC-1 including any recruitment policy therein.
16. My understanding from the aforementioned paragraph of the case of Imran Ahmed (Supra) and the aforementioned Guidelines is that the Planning Commission of Pakistan may propose various developmental projects in different sectors. The project including recruitment for its purposes is carried out in accordance with the project PC-1, which is a complete and comprehensive code or roadmap for the project and as such serves as the primary constitutive document that has to be complied with during the project life cycle. In the instant case, it is noted that the contents of the Impugned Advertisement are as per what has been provided in the project PC-1. Once the project has been completed, it may be converted or transferred from developmental to the non-developmental side, thereby becoming permanent. Till then the project is manned by contractual Islamabad employees for a fixed term.
17. As far as the apprehension expressed on behalf of the Petitioners is concerned regarding regularization of the project employees recruited on contract pursuant to the Impugned Advertisement, it is by now settled law that contract employees cannot seek regularization without the backing of law. In this regard recent pronouncements include Government of Khyber Pakhtunkhwa (Supra), 2021 PLC (C.S.) 1194; 2022 SCMR 406; and 2022 PLC (C.S.)
164. Therefore, the question of regularization of those who may be employed pursuant to the Impugned Advertisement on contract basis does not arise in the absence of any regularization law.
18. On the other hand, as far as regular employees such as the Petitioners are concerned, in the case of Government of Punjab vs. Ali Amir Raza Bukhari, 2019 PLC (C.S.) 220, a learned Division Bench of the Honorable Lahore High Court referred to an unreported judgment of the Honorable, Supreme Court in C.As 275 and 276 of 2014 wherein it was held that where a development project is transferred to the non-development side and becomes a permanent department of the Government, the employees having been appointed through a regular process are entitled to be considered for permanent employment against their seats.
19. The Impugned Advertisement is for recruitment in a project recommended by the Planning Commission pursuant to the project's PC-1. In light of the aforementioned judgments, it becomes clear that at this point in time when the project is still on the developmental side, no cause of action has accrued to the Petitioners, being regular employees whereas the Impugned Advertisement is for, inter alia, Head Nurses (BP-17) on contract basis for one year for a project on the developmental side.
20. Furthermore on the direction of this Court, the Director Project Capital Hospital, CDA has submitted in Court a statement in writing that current recruitment has been made for the project period only for 12 months whereafter regular staff recruitment/appointment shall be carried out as per prevailing CDA Rules. In view of such statement the grievance of the Petitioner, if any, stands redressed. In the event that the project is transferred to the non-development side and becomes permanent after 12 months, recruitment/promotion shall be carried out as per the Rules in existence at such time. If such rules provide for promotion, the Petitioners shall be considered for the same.
21. In view of the above, the titled petition being devoid of merit, is dismissed.