IJAZ-UL-AHSAN, J. By way of the instant Appeal, the Appellant has challenged the judgment dated 04.04.2018 passed in Constitutional Petition No. 120-M of 2015 by the Peshawar High Court, Mingora Bench (Dar-ul-Qaza). The Respondent had, through the Constitutional Petition, sought regularization of her services, which was allowed.
2. The brief facts giving rise to this lis are that the Respondent was employed vide office order dated 16.05.2003 on contract basis for a period of three years against the post of Charge Nurse.
The Respondent's contract of employment was extended vide office orders dated 20.09.2006 and 02.01.2008. The Respondent was then repatriated from R.H.C. Wari to DHQ Hospital Upper Dir vide order 28.02.2008. The Respondent's contract was terminated vide order dated 28.02.2008. She filed a Constitutional Petition as a result of which, she was reinstated into service and regularized by the learned High Court vide the impugned judgment. Aggrieved thereof, the Appellants have approached this Court.
3. Leave to appeal by this Court was granted vide order dated 09.03.2020 in the following terms:-- "The learned Advocate-General, Khyber Pakhtunkhwa contends that all the Respondents in these Petitions were employed either on Project posts or on contract basis or were employees under Section 42 of the Companies Act, 2017 and in no circumstances their services were to be regularized. He contends that this very aspect of the matter has time and again come before the Court where it has been held that such employees could not be regularized. He further contends that in all the impugned judgments, the learned High Court has merely allowed writ petitions on the basis of similarly placed persons without applying its mind to the same: He adds that even the laws under which their appointments were made were not adverted to. He submits that Respondents who are employees on project of contract employees or Section 42 employees were not liable to be regularized and thus their regularization by the learned High Court through the impugned judgment in these petitions was altogether illegal. In support of his contentions, the learned Law Officer has referred to a three Member judgment of this Court dated 24.06.2014 passed in Civil Appeal No. 687 of 2014 (Government of Khyber Pakhtunkhwa, Livestock and Co- operative Department through its Secretary and others v. Ahmad Din and another).
2. We not that some of the petitions are time-barred and in, one of the petitions even no application for condonation of delay has been filed. The learned Law Officer states that such will be done by the petitioners.
3. The contentions raised by die learned Additional Advocate-General Khyber Pakhtunkhwa need consideration. Therefore, subject to limitation, leave to appeal is granted in these petitions to consider inter alia the same. The appeal stage paper books shall be filed within a period of one Month with permission to the parties to file additional documents if any. As the matter relates to service, the office is directed to fix the same expeditiously preferably after three months.
4. In the meantime, the operation of the impugned judgment(s) shall remain suspended."
4. Learned Additional Advocate-General, K.P. submits that the language of the KP Regularization Act, 2009 specifically excludes project employees from its definition. He adds that the Respondent as such cannot take benefit of its provisions. He further submits that the services of the Respondent were contingent upon the life of the project and thereafter, there vested no right to regularization. It has further been argued that the Respondent was employed in the Project namely ADP Scheme in 2003. As such, her employment was dependent upon the life of the project in-question. Hence, the Respondent could not have claimed regularization as of right since her employment was purely temporary and her regularization by the learned High Court is against the Project Policy of K.P.
5. The main argument of the learned counsel for the Respondents is that other similarly placed employees were regularized by the Appellants. As such, the Respondent cannot be discriminated against and, the learned High Court was right to regularize her. It has further been argued that the Respondent was employed after scrutiny of her credentials, with the approval of the Departmental Selection Committee. The learned counsel has further argued that the contract appointment of the Respondent was extended from time to time, however, instead of regularizing her services, the Appellants terminated them which was illegal.
6. We have heard the learned A.A.G and the ASC for the Respondent. The issue which require determination by this Court are as follows:--
(i) Whether the Respondent is covered by the provisions of the 2009 Act and the Civil Servants (Amendment) Act, 2005,
(ii) The effect of the ending of the project in question on the appointment of the Respondent.
WHETHER THE RESPONDENTS ARE COVERED BY THE PROVISIONS OF THE 2009 ACT AND THE CIVIL SERVANTS (AMENDMENT) ACT, 2005?
7. Section 2(b) of the 2009 Act defines the word "employee" as followg:-- "employee means an adhoc or a contract employee appointed by Government on adhoc or contract basis or second shift/night shift but does not include the employees for project post or appointed on work charge basis or who are paid out of contingencies". (underlining is ours)
The aforenoted provision of the 2009 Act makes it abundantly clear that employees who were employed in projects were specifically excused from the purview of the 2009 Act. It has been argued that the Respondent was employed against a project post and her contract could be terminated simpliciter upon the completion of the project. Nothing has been brought on the record by the learned counsel for the Respondent to show that she was not employed against the said project post on a contract basis. Contrarily, it is an admitted fact that the Respondent was a contract employee and, was to be governed by the Contract Policy, 2002 of KP which specifically provides that contract employees shall have no right of automatic regularization.
8. It has been held by the learned High Court that the Respondent fell within the purview of the Civil Servants (Amendment) Act, 2005. In this respect, the learned High Court has held that since the Respondent kept working against her post till 2008, she was treated as a regular employee in light of the 2005 Act. We are unable to agree with this conclusion of the learned High Court. Firstly, it is settled law that long service is no ground for regularization. Reliance in this regard is placed on Government of K.P. v. Saeed-ul-Hassan (2021 SCMR 1376). Further, Section 19(2) of the 2005 Act deems only these employees as civil servants who were appointed in the "prescribed manner".
Section 19(2) of the ibid Act reads as under:-- "(2) A person though selected for appointment in the prescribed manner to service or post on or after the 1st day of July, 2001, till the commencement of the said Act, but appointed on contract basis, shall, with effect from the commencement of the said Act, be deemed to have been appointed on regular basis. All such persons and the persons appointed on regular basis to a service or post in the prescribed manner after the commencement of the said Act shall, for all intents and purposes be civil servant, except for the purpose of pension or gratuity. Such a civil servant shall, in lieu of pension and gratuity- be entitled to receive such amount contributed by her towards the Contributory Provident Fund, alongwith the contributions made by Government to his account in the said Fund, in the prescribed manner."
It is provided in the appointment order dated 16.05.2001 that the post Against which the Respondent was working comes within the purview of the K.P. Public Service Commission. It is further mentioned therein that requisition for the said post is to be placed before die K.P. Public Service Commission through the Department after which, the. Respondent was required to appear before the Commission. It is evident from the record at the appointment of the Respondent was made by the Executive District Officer. There is nothing on the record to suggest that the post was requisitioned by the K.P. Public Service Commission or that the Respondent was appointed by the K.P. Public Service Commission.
Contrarily, it is admitted fact that the Respondent was recommended for appointment by the Departmental Selection Committee. Nothing is available on the record to establish that the condition of being appointed in the "prescribed manner" was met by the Respondent. As such, the interpretation of Section 19(2) of the Act of 405 by the learned High Court is held to be unsustainable.
9. The fact that the words "though selected for appointment in the prescribed manner" are mentioned in Section 19(2) establish that all those contract employees claiming benefit of the said provision must have been appointed in the prescribed manner of appointment for their respective post. Since the Respondent's post fell within the purview the Public Service Commission, she cannot claim benefit of the said provision. The learned High Court erred in law and misread the facts in coming to the conclusion that the Respondent was covered under the 2005 Act.
THE EFFECT OF THE ENDING OF THE PROJECT IN QUESTION ON THE APPOINTMENT OF THE RESPONDENT.
10.. The learned A.A.G. has argued that the employment of the Respondent was governed by her appointment order and the N.W.F.P. Contract Policy, 2002 so also, the policy governing the ADP Project, 2003. It has been repeatedly held by this Court that employees on time bound projects have no automatic right of regularization. Reliance in this regard is pined on Province of Punjab through Secretary Agriculture Department, Lahore v. Muhammad Aril (2020 SCMR 507) wherein it was held that:-- "We do not find any force in the argument of learned counsel for the respondents that they were discriminated against insofar as contracts of some of the contract employees were extended while those of others were not. In our opinion, insofar as it relates to contract employees of the project, it is the prerogative of the project management to determine which employees are required for the extended period and stage of the project for effective' implementation of the same.
11. The letters dated 20.09.2006 and 02.01.2008 on the basis of which the contract employment of the Respondent was extended have been examined by us. In the first letter, it has been categorically mentioned in Clause No. 02 that on completion of the project, the services of the Respondent will be terminated. Clause NO. 03 further states that the services of the Respondent shall be purely temporary and Clause No. 04 provides that the candidates will sign an agreement with the Government Department. A bare reading of the letter dated 20.09.2006 clearly establishes that, the Respondent voluntarily signed an agreement with the Appellants for the provision of her services. Further, the Respondent was the employee of a time bound project, and, had no vested right to regularization.
12. The letter dated 02.01.2008 extended contract of the Respondent for six months w.e.f. 01.07.2007 till the availability of the selectees of NWFP Public Service Commission. The said letter also mentions that the Respondent was a Charge Nurse working for the Scheme. As such, the learned High Court erred in law as well as in fact to arrive at the conclusion that the Respondent was a regular employee. Even otherwise, the letter dated 28.02.2008 mentioned by the learned High Court as a letter extending the services of the Respondent is in fact a letter whereby the Respondent was repatriated to DHQ Hospital Upper Dir. In the said letter, it has been clearly mentioned that the said repatriation was subject to the condition that the Respondent's contract was existing/renewed. It was after this, that the letter of termination dated 28.02.2008 was issued whereby it was stated that the Respondent's contract had expired. As such, the letter dated 28.02.2008 repatriating the, Respondent automatically becomes inconsequential because of the expiry of the Respondent's contract.
13. The judgment passed in C.P. No. 3609/2010, relied upon by the Counsel for the Respondent is distinguishable in law and on facts. Even otherwise, each case has to be decided on the basis of its own facts and circumstances. Relief granted to one party cannot automatically be granted to another party without properly scrutinizing the record. It is worth mentioning that the contract of the Respondent was terminated vide letter dated 28.02.2008 whereas, the Constitutional Petition was filed in 2015 which was clearly hit by the principle of /aches.
13. The learned High Court has proceeded on an erroneous interpretation of the law on the subject and have incorrectly been applied to the facts and circumstances of the case in a legally unsustainable manner. The conclusions drawn by the High Court are patently unwarranted. The impugned judgment of the High Court is held to be unsustainable and is liable to be set-aside.
14. For reasons recorded above, we find merit in the present Appeal. The same is accordingly allowed. The impugned judgment dated 04.04.2018 passed in Constitutional Petition No: 120-M of 2015 by the Peshawar High Court, Mingora Bench (Dar-ul-Qaza) is accordingly set-aside.
15. For reasons recorded above, C.M.A. No. 2017 (sic) 2017 is also dismissed.