MUHAMMAD IJAZ KHAN, J. Petitioners have filed the instant constitutional petition, under Article 199 of The Constitution of Islamic Republic of Pakistan 1973, with the following prayer; "It is, therefore, very humbly prayed that the petition in hand may kindly be accepted with the following declarations in favour of petitioners, may please be pressed;-
(i) The impugned termination order dated 08.07.2020 issued by responden t No. 5/District Police Officer Swat, being illegal, void-ab-initio, against the very rights of the petitioner , fanciful, based on mala fide, hence be set aside and the respondent be directed to reinstate the petitioners on their posts with all back benefits.
(ii) The respondents may also be directed to consider the services of petitioners in light of the Khyber Pakhtunkhwa Special Police Force Regularization Act, 2019, from the date of initial appointments with all back benefits.
(iii) Any other remedy which is not specifically prayed and the petitioner may otherwise entitled may also be granted in favour of petitioners.
2. Precisely the facts of the case of the petitioners are that they were appointed/enlisted as Special Police Force ("SPF") by the District Police Officer Swat/respondent No. 5 vide order dated 04.09.2019 and they were duly allotted their constabulary numbers 2809/SPF and 49 respectively . It is pleaded in their petition that during their service the Provincial Assembly enacted an Act which is called The Khyber Pakhtunkhwa Special Police Officers (Rezularization of Services) Act, 2019 (hereinafter referred to as "The Regularization Act of 2019" ) which was passed by the Provincial Assembly on 30.09.2019 and assented by the Governor of Khyber Pakhtunkhwa on 04.10.2019. It is the case of the petitioners that in view of section 3 of The Regularization Act of 2019 they are entitled for the regularization of their services. It is further pleaded that as many as 450 Special Police Officials including 60 such officials from District Swat have already been regularized throughout the province, whereas the present petitioners have been left out which action of the respondents is a blatant violation of their fundamental rights and over and above now the petitioners have been asked by the respondents that their services have been terminated, which action of the respondents too is highly unjust and unfair . It is stated that they have submitted various applications to the respondent No. 5/D.P .O and D.I.G for the regularization of their services and withdrawal of the impugned termination order dated 08.07.2020, however , of no fruitful result, therefore, they have approached to this Court for the aforesaid two reliefs through the instant writ petition.
3. When this case was taken up for hearing on 29.10.2020, respondents were put to notice and they were directed to file their para-wise comments which they have accordingly submitted where their stance is that the petitioners could not be given benefit of section 3 of The Regularization Act of 2019 as on the cut-of f date i.e. 1st August 2019 they were not holding the post of SPO and secondly since they were contract employees, therefore, their services have rightly been relieved on expiry of their contract period with ef fect from 30.06.2020.
4. Arguments of learned counsel for the petitioners as well as learned Astt: A.G. for the official respondents were heard in detail and the record perused with their able assistance.
5. As far as the pray of the petitioners for regularization of their services is conc erned, in order to address this grievance of the petitioners it would be relevant to reproduce sub-clauses (a), (e) and (f) of section 2 of The Regularization Act of 2019;
2. Definitions.-- In this Act unless the context otherwis e provides, the following expressions shall have the same meanings as are assigned to them, that is to say-
(a) "contract appointment" means appointment of Special Police Officers, made otherwise than in accordance with the prescribed method of recruitment;
(b) .........
(c) .........
(d) .........
(e) "post" means a post under Government or in connection with the affairs of Government to be filled in through prescribed method; and
(f) "Special Police Officer" means an employee, appointed in Police Department, from time to time, on contract basis or fixed pay basis, under the nomenclature of Special Police Officers or Special Police Force, performing Police or security duties.
Similarly , it would also be relevant to reproduce section 3 of The Regularization Act of 2019 which is as under;
3. Regularization of services of Special Police Officers.-- All the Special Police Officers, appointed on contract basis or fixed pay basis who are holding the post on 1st August 2019 , shall be regularized with immediate ef fect, subject to the condition of section 5 of this Act.
Section 5 of The Regularization Act of 2019 speaks of a "Scrutiny Committee" which will scrutinize the cases of all Special Police Of ficers, the same is also reproduced as under;-
5. Scrutiny Committee.--(1) A Scrutiny Committee, headed by the District Police Officer and having one member each from the District Administration and District Account Officer of the District concerned, shall prepare lists of all members of the Special Police Officers, after personal appearance and verification of CNIC's and scrutiny of record of the Special Police Officers for the submission to Provincial Police Officer."
The aforesaid provisions are clear in its language which lays down that a special police officer(S.P .0) who has been appointed on contract basis or on fixed pay basis and who is holding the post on 1st August 2019 shall be regularized with immediate effect and as such if the aforesaid criteria is applied to the case of petitioners then it is apparent on the face of record that both the petitioners were not holding their respective posts of SPO on 1st August 2019 , as their appointment order shows that they were appointed on 04.09.2019 which is much later of the aforesaid cut-of f date, therefore, they were rightly not given the benefit of The Regularization Act of 2019 like other SPOs who were appointed much before the cut-of f date and were holding their respective posts on 1st August 2019.
6. The learned counsel for the petitioners vehemently argued that since the bill was passed by the Provincial Assembly on 30.09.2019 and the same was assented by the Governor of Khyber Pakhtunkhwa on 04.10.2019, therefore, the same should have been applied from the date of passing the bill or from the date of giving the assent by the Governor or from the date of publication in the official gazette, however , such stance of the petitioners could not be appreciated as it is squarely and entirely the domain of the legislature to either apply the law prospectively or retrospectively and they could not be dictated upon to make a law operative from such and such a date as the same would be against the very concept of trichotomy of powers which mandates that the legislature has to legislate, the judiciary has to interpret and the executive has to execute the law. When the language of the Statute is clear in terms of its applicability qua a class of employees, then the Court can neither "Read in" something in it nor it can "Read down" something from it. In the present case, the statute has itself provided a specific date of 1st August 2019 and since the petitioners were not holding the posts of Special Police Official on that cut-of f date, therefore, they are not entitled to claim any benefit of The Regularization Act of 2019. In the case of "Haroon-ur- Rashid v/s Lahore Development Authority & others" reported as 2016 SCMR 931 the Hon'ble Apex Court has held that Courts have a duty to constru e and apply laws to specific fact situa tions. Sometimes they have to construe a particular law as meaning nothing and sometimes they have to construe the law as meaning something different from the letter of the law passed by the Parliament. The offending provision or part of it is read down to the extent it is necessary to give it legal effect, or will be severed if it cannot be read down, and the remaining part and provisions of the statute will remain intact. Similar observations were also recorded by the Hon'ble Apex Court in the case of "Province of Sindh through Chief Secretary & others v/s M.Q.M through h Deputy Convener & others " reported as PLD 2014 Supreme Court 531 where it has been declared that the Cour t should make every effort to save the statute and this can be done by invoking the principle of 'reading in' or 'reading down'. However in this context two principles have to be kept in view. First, that the object of 'reading down' is primarily to save the statute and in doing so the paramount question would be whether in the event of reading down, can the statute remain functional? Second, would the legislature have enacted the law, if that issue had been brought to its notice which is being agitated before the Court? In the case of "Mumtaz Hussain v/s Dr. Nisar Khan reported as 2010 SCMR 1254 it was held by the Hon'ble Apex Court that statute is not open to construct as a matter of course, it is open only where language used in statute requires interpretation i.e. where the statute is ambiguous or bears two or more constructions or is of such doubtf ul obscure meaning that reasonable minds might be uncertain or disagree as to its meaning, however , in the present case the legislature in a very clear and unambiguous words have set a date i.e. 1st August 2019 for regularization of services of those employees who held the post of SPO on the said date and as such this Court cannot vary or extend or fix the date of its applicability .
7. Even otherwise, a contract/ ad-hoc /fixed pay employees could not claim regularization of their services unless and until the same is back by any law/statute. In the present case though there is a law in the shape of The Regularization Act 2019 for the regularization of services of Special Police Officer ("SPO") but that law has been applied by the legislature to a particular class of SPO i.e. those who have alrea dy been appointed and holding theirs posts on 01.08.2019 and as such this specific condition takes out the case of present petitioners from the palms and applicability of The Regularization Act 2019 and as such being a contract employee petitioners' services could not be regularized in absence of any law providing for the same. In the case of "Khushal Khan Khattak University through Vice-Chancellor & others v/s Jabran Ali Khan & others" reported 2021 SCMR 977 the Hon'ble Apex Court has held 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. Similarly , in the case of "Government of Khyber Pakhtunkhwa Workers Welfare Board v/s Raheel Ali Gohar" reported as 2020 SCMR 2068 the Hon'ble Apex Court has held that in any case, this Court in recent judgments has unequivocally held that contractual employees have no automatic right to be regularized unless the same has specifically been provided for in a law. Most recently , in a judgment in Civil Petitions Nos. 4504 to 4576, 4588 and 4589 of 2017 dated 08.01.2013 this court has held that having heard the learned counsel for the parties, we find that contractual employees have no right to be regularized until there is a law provided to that effect. They are the contractual employees and they have to serve till the pleasure of their master and in case of any wrongful termination, which according to them has taken place, they cannot seek the reinstatement, at the best, they can only have the compensation for the wrongful termination by applying to the competent court of law. Similar observations were also recorded by the Hon'ble Apex Court in the case of "Pakistan Telecommunication Company Ltd. v/s Muhammad Sami Ullah" reported as 2021 SCMR 998 that an adhoc, temporary or contractual appointment does not create any vested right of regularization in favour of the appointee. In the case of "Vice Chancellor Bacha Khan University Charsada, Khyber Pakhtunkhwa & others v/s Tanveer Ahmed & others" reported as 2021 SCMR 1995 , the Hon'ble Apex Court has observed that the learned High Court in the impugned 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 knock on the door of the High Court for the same. Likewise, in the case of "Govt: of Khyber Pakhtunkhwa through Secretary Agriculture, Livestock & others v/s Saeed-ul-Hassan & others" reported as 2021 SCMR 1376 , the Hon'ble Apex Court has observed that the learned High Court in the impugned judgments has held that the Respondents had a vested right to be regularized, on the basis of satisfactory service, because of the conversion of different projects to the regular side. We are unable to agree with the view taken by the High Court for the reason that it is by now a settled principle of law that, long or satisfactory contractual service does not confer a vested right for regularization as conversion from contractual to regular appointment requires statutory support.
So in view of the above settled law the plea of the petitioners for regularization of their contract services could not be entertained.
8. As far as the grievance of the petitioners qua their termination from service is concerned, suffice it to state that admittedly the petitioners were contract employees and they were appointed for a specific period and as such on the expiry of their contract period they were relieved from their duties with effect from 30.06.2020. By now it is settled law that services of a contract employee are governed by the terms and conditions of his contract. A contract employee cannot claims extension or renewal of his contract through his own whims and wishes, rather it is the prerogative of the employer to either extend or renew or terminate the service of his employee. It is also settled since long that an employee could not be forced upon the employer as against the terms and conditions of his appointment order . It is also settled since long that the terms and conditions of a contract employee could neither be enforced nor the same could be renewed nor the same could be extended through filing of a constitutional petition under Article 199 of The Constitution of Pakistan. In the case of Khushal Khan Khattak University through Vice Chancellor and others vs. Jabran Ali Khan and others reported as 2021 SCMR 977, the Hon'ble Apex Court has also held that the Appellants were at liberty to dispense with the services of the respondents in accordance with the terms and conditions of the contract which were accepted by the respondents when they accepted their contractual employment. The High Court could not have amended or altered the terms and conditions of the contract of the Respondents in exercise of its constitutional jurisdiction under Article 199 of the Constitution.
9. The respondents being employers and the petitioners being their contractual employees, their relationship is governed by the doctrine of master and servant and as such if the employees have any grievance against the employer , then he/they can approach to the competent Court of law for enforcement of their any of terms and conditions of contract of employment or to claim damages of the un-expired period, but in no circumstances, they can approach to this Court to enforce the contractual obligations against their employer . In the case of "Government of Khyber Pakhtunkhwa, Workers Welfare Board through Chairman vs. Raheel Ali Gohar & others" reported as 2020 SCMR 2068 , the Hon'ble Apex Court has held 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 respondents did not have the right to approach the High Court to seek redressal of their grievances. 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 .
10. It is also settled by now that the High Court cannot assume the role of an appointing authority nor the High Court through issuance of a writ can force upon the employer to retain any employee on its/their strength. A contractual employment which is the absolute prerogative of the employer to either retain him or to dispense with the services of an employee. In the case of Khushal Khan Khattak University Supra, the Hon'ble Apex Court has also held that the learned High Court arrogated to itself the executive function of being the appointing authority which function is beyond the pale of jurisdiction of the High Court and militates against the fundamental concept of trichotomy of powers which is a foundational block of our Constitutional scheme.
11. During the course of arguments, the learned counsel for the petitioners was confronted that as to which of his vested rights qua the regularization of their services or termination from their services have been violated, his reply and emphasis was that since petitioners are duly qualified and have been inducted in service after fulfillment of all the prescribed formalities and that the colleagues of the petitioners were given the benefit of The Regularization Act of 2019, but they have been deprived of the same by subjecting them to discrimina tion, therefore, this Court being the ultimate custodian of the rights of the citizen is require to intervene, however , we believe that within the class of the petitioners the services of a single SPO has not been regularized, therefore, this plea of the petitioners too, could not be appreciated in their favour .
12. It is relevant to mention here that in a broader sense rights could be categorized in three kinds i.e. Fundamental rights are those rights which are conferred upon a citizen by The Constitution of Pakistan, Legal rights are those rights which are conferred upon a person by any law or statute other than The Constitution of Pakistan and Vested rights are those rights which are accrued to a person due to an act or omission, action or inaction of another person. In a writ jurisdiction what the writ petitioners are required is to first establish that they have suffered a "legal grievance" or they have wrongly been deprived or they have wrongly been refused something which they were otherwise legally entitled to, and it is only after the establishment of such a right, followed by its violation or refusal by a public functionaries, and it would be thereafter that he/they may be held as entitled for the issuance of the desired writ. In the case of "Fazl-e-Haq, Accountant-General, West Pakistan vs. The State " reported as PLD 1960 Supreme Court (Pak.) 295, the Hon'ble Apex Court has held that extraordinary jurisdiction of High Court could only be invoked by a person whose legal right has been denied. This view was also followed in the case of "Mian Fazal Din vs. Lahore Improveme nt Trust, Lahore and another" reported as PLD 1969 Supreme Court 223, in which it was held that petitioner has to show that he had a personal interest in performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage.
13. In view of the above we hold and declare as under;
(1) For maintaining a petition under Article 199 of the Constitution of Pakistan, a writ petitioners has/have to establish that any of his fundamental right (conferred upon them by the Constitution) or legal right (conferred upon them by any other law/statute) or vested right (accrued to them by an act or omission of another person) has been violated.
(ii) A Court of law could neither add nor omit something in a Statute, where the language of the Statute is clear , express, specific and unambiguous in its language.
(iii) The services of an ad-hoc/contract/f ix pay employee(s) could only be regularized if the same is back by a law/Statute/Rules /Regularization.
(iv) A contract employee could neither maintain a writ petition for the enforcement of the terms and conditions of his service nor for the renewal of the contract nor for the extension of contract period of an employment.
14. With the above observations the instant writ petition being bereft of any merits is hereby dismissed.