ARBAB MUHAMMAD TAHIR, J: Listed Writ Petition (WP No. 901 of 2016, Writ Petition No 3068 of 2015, Writ Petition No. 1225 and Writ Petition No. 1231 of 2022 entail common question of law, facts besides the parties, therefore, being decided through this single judgment.
2. There are two sets of petitioners, Naeem-ul-Haq etc. and Intisar Ali Khan etc. contract employees in two distinct PSDP Projects i.e. National Conversation Strategy Research Centre `NCSRC' and Clean Development Mechanism `CDM' under the defunct Ministry of Environment (Ministry of Climate Change-respondent No.3) (`respondent-department').The Projects have since been closed with effect from 30.04.2013 and 30.06.2015 respectively. Initially, petitioners filed two writ petitions i.e. WP No. 986 of 2013 and WP No. 261 of 2014 seeking their regularization which along with other identical petitions were disposed of by this Court through a consolidated judgment dated 10.09.2014, passed in Writ Petition No. 1703 of 2013 and the matter was referred to the Committee constituted to consider the cases of contract/daily wages employees for regularization under the Chairmanship of Haseeb Athar. Alongside others, the petitioners were also considered by the Committee as reveals through orders of even date i.e. 13.04.2016 and their requests were turned down, inter alia, due to short of requisite criteria laid down in Para-2(b) of Policy issued by the Establishment Division vide OM dated 29.08.2008 while their stance of discrimination was also repelled on the statement of departmental representative as it being result of misrepresentation of facts before this Court by the concerned Law Officer. The Committee, on consideration, directed the department to review the case of the referred employee and take action on its own keeping in view the policy guidelines to rectify any apprehended discrimination.
3. It is significant to note that in the year 2013 one Abdul Hayee Agha, a counterpart of the petitioners having same antecedents, contract employee of one of the above stated projects filed WP No. 93 of 2013 praying for regularization on the basis of favourable recommendations, like that of present petitioners, of the Cabinet Sub-Committee. The said writ petition was disposed of vide order dated 16.04.2013 in following terms:- "16.04.2013 Raja Muhammad Asghar Khan, Advocate for the petitioner, Syed Jalil Hussain, DAG &Rao Abdul Ghaffar, Standing Counsel.
In the present case, Cabinet Sub-Committee has recommended case of the petitioner for regularization. Contention of learned DAG is that the petitioner is contract employee and he is required to be shifted from development to non-development budget and in this respect P.C.IV has already been prepared. Furthermore, the termination date of the petitioner s contract is 31.12.2013 and prior to said date, petitioner would be regularized.
2. In these circumstances, writ petition stands disposed of with all C.Ms."
4. The services of Abdul Hayee Agha were not regularized as per the statement of the Law Officer mentioned in the order ibid which led to filing of Contempt Petition ( Crl. Org. 563-W-2013) which was disposed of vide order dated 21.03.2016 with following observations:- "Today Dr. Tariq Sardar Joint Secretary (Admin). Syed Ali RazaZaidi, Deputy Director (Law), representatives of the respondents appeared in the court and agreed to issue fresh notification regarding regularization of the petitioner w.e.f. 31.12.2013, therefore, I am satisfied with the comments submitted by the respondents. Learned DAG has sought time for issuance of notification within a period of fortnight as Secretary is not available in the Country and proceeded outside Pakistan for some official reasons. The petition is disposed of with the direction that such notification be issued within the period as stipulated above. In case, notification is not issued within the period referred above, the matter will again be taken up on making simple application by the petitioner, otherwise, this petition stands disposed of."
5. Meanwhile, the petitioners filed W.P. No. 3068 of 2015 and W.P. No. 901 of 2016 praying for issuance of direction at par with that of their counterpart Abdul Hayee Agha pursuant to which services of said employee were regularized. The said two petitions were disposed of vide orders i.e. 21.03.2016 in following terms:- "In view of order dated 16.04.2013, passed in writ petition No. 93 of 2013 (Abdul Hayee Agha Vs. Federation of Pakistan and others), this petition is also disposed of on the same terms as mentioned in that writ petition."
6. It is significant to note that the respondent-department had assailed the orders of even date i.e. 21.03.2016 passed in WP No. 3068 of 2015 and WP No. 901 of 2016 and also order dated 16.04.2013 passed in WP No. 93 of 2013 in the case of Abdul Hayee Agha whereby said writ petition was disposed of on the basis of statement of Law Officer, through Civil Petition No. 1703 and 1850 of 2016 before the Supreme Court of Pakistan which was disposed of vide order dated 16.08.2016 in following terms:- " After hearing the matter at some length the learned DAG states that in view of the letter dated 13th April, 2016 of the Committee for Regularization of Services of Contract/Daily Wages Employees, Establishment Division Islamabad which was not brought to the attention of the High Court while passing the impugned order dated 21st March 2016, the petitioner will approach the High Court to avail appropriate remedy to set the matter right.
As both the petitions arise out of one and the similar order passed by the High Court and in order to maintain harmony and to avoid conflicting views, the delay in filing of CP No. 1850 of 2016 is condoned and both the petitions are disposed of in the above terms."
7. The respondent-department then filed two Civil Miscellaneous Applications (CM No. 4683/2016 IN WP No.3068 of 2015 & CM No. 4746/2016 IN WP No. 901 of 2016) under Section 12(2) CPC against the orders dated 21.03.2016. Both the said applications were dismissed vide two separate orders dated 13.02.2017 with direction to the respondent-department to implement the order dated 21.03.2016 within fortnight while contempt petitions, filed by the petitioners seeking implementation of order dated 21.03.2016 were kept pending. However, subsequently, same were disposed of as orders of their regularization were issued subject to decision by the Supreme Court of Pakistan in Civil Petitions filed by the respondent-department.
8. The respondent-department assailed the orders dated 13.02.2017 ibid before the Supreme Court of Pakistan through Civil Petitions No. 1305 and 1306 of 2017 which were allowed vide order dated 16.12.2021 in following terms:- "Having hearing the learned counsel for the parties and with their consent, the impugned judgment of the Islamabad High Court dated 13.02.2017 is set-aside. The matter is remanded to the High Court which shall give an opportunity to the petitioners to file their parawise comments in Writ Petition No. 901 of 2016, hear both the parties and thereafter decide the matter on merit, in accordance with law.
2. These petitions are accordingly converted into appeals and allowed in the afore noted terms."
9.It was at this stage when the respondent-department filed its respective parawise comments while the petitioners again filed WPs No. 1225 and 1231 of 2022 seeking declaration to the effect that order dated 16.12.2021 passed by the Supreme Court of Pakistan has not given any authority to the respondent-department to terminate their services; that the respondent-department was allowed only to submit its parawise comments in WP No. 901 of 2016 and not in WP No. 3068 of 2015 and that posts of petitioners stand converted from development to non-development side after obtaining due approval from the Establishment Division and the Ministry of Finance.
10. Hence, these matters (WP No. 901 of 2016, W.P. No.3068/2015, WP No. 1225 & 1231 of 2022) for adjudication for which due audience has been given to the learned counsel for the petitioners and the learned Assistant Attorney-General assisted by the Law Officers of the respondent-department and the Establishment Division.
11. The substance of submissions advanced by the learned counsel for the petitioners is to the effect that case of the petitioners is at par with their counterpart Abdul Hayee Agha on all counts; proceedings in all the petitions at the relevant time were conducted at one and the same time and that too in presence of representatives of respondent-department and this fact was duly mentioned in orders to which presumption of truth is attached being court proceedings; that stance of respondent-department with regard to having no knowledge is misconceived and contrary to court proceedings depicted in the orders wherein their attendance was duly marked; that the stance taken before the Supreme Court of Pakistan was frivolous as it was not possible to present the order dated 13.04.2016 in the court proceedings held before a month of said order on 21.03.2016; that nothing had been concealed by the petitioners in their subsequent filed writ petitions as they duly mentioned the fact of filing of earlier petitions in their respective certificates; that the request for creation of posts and the assent to this effect by the Establishment Division were unconditional and not subject to outcome by the Supreme Court of Pakistan; that mentioning of said condition in notifications of regularization was arbitrary, whimsical and that treatment afforded to the petitioners is clear an act of discrimination in violation of their fundamental right envisaged in Article 25 of the Constitution. The learned counsel fortified his submissions by placing reliance upon case law reported as 2009 SCMR 1, 2002 SCMR 1336, 2008 SCMR 1611, 1997 SCMR 1086 and PLD 1983 SC 68.
12. On the other hand, the learned Assistant Attorney-General repelled the above submissions by contending that claim of the petitioners, on the face of it, is hit by the principle of res judicata as their earlier petitions on the same cause of action were disposed of through a consolidated judgment dated 10.09.2014; that pursuant to said judgment, their cases for regularization were duly considered by the Committee and were turned down due to non-fulfillment of requisite criteria contained in Policy of 2008; that petitioners never assailed the said orders before any forum; that the projects have since been closed while the projects have also not been converted from development to non-development side and that the ground of discrimination can also not be pressed while placing reliance upon the order passed in the case of Abdul Hayee Agha as it was neither a decision on any point of law rather based on an erroneous statement of the then Law Officer, therefore, petitions are liable to be dismissed. Reliance was placed upon case law reported as 2018 PLC (CS) 619 and 2019 PLC (CS) N 19-Islamabad.
13. Heard, record perused.
14. t the inception, the significance of the order dated 16.04.2013, passed in WP No. 93 of 2013 in the case of Abdul Hayee Agha, being made basis to assert the ground of discrimination, is to be assessed.
15. Perusal of record reveals that earlier pursuant to directions of this Court, the Haseeb Athar Committee considered the cases of the petitioners for regularization and turned down their request due to short of requisite criteria laid down in Para-2(b) of Policy issued by the Establishment Division vide OM dated 29.08.2008 while their stance of discrimination was also repelled by requiring the respondent-department to take action on its own and revisit the case of Abdul Hayee Agha keeping in view the policy guidelines on the subject to rectify any apprehended discrimination. Not only this but the respondent-department assailed the order dated 16.04.2013, passed in WP No. 93 of 2013 in the case of Abdul Hayee Agha before the Supreme Court of Pakistan through CP No. 1850 of 2016 which was decided along with CP No. 1703 of 2016 vide order dated 16.08.2016 in terms that "as both the petitions arise out of one and the similar order passed by the High Court and in order to maintain harmony and to avoid conflicting views, the delay in filing of CP No. 1850 of 2016 is condoned and both the petitions are disposed of." As is evident, the Civil Petition against the order dated 16.04.2013 was disposed of by condoning the delay after hearing the learned DAG who stated in terms that in view of the letter dated 13th April, 2016 of the Committee for Regularization of Services of Contract/Daily Wages Employees, Establishment Division Islamabad which was not brought to the attention of the High Court while passing the impugned order dated 21st March 2016, the petitioner i.e. the respondent-department will approach the High Court to avail appropriate remedy to set the matter right. It is thus clear that the order dated 16.04.2013 has not attained finality and was open for challenge by the respondent- department before this Court by availing appropriate remedy in order to set the matter right, therefore, cannot be made basis to seek equal protection of law in terms of Article 25 of the Constitution which guarantees equal protection of law and not the equal protection of lawlessness.
Reliance is placed upon latest judgment dated 09.01.2023 of the Supreme Court of Pakistan passed in the case of "Muhammad Yasin & Mehboob Khan v. The Director General, Pakistan Post Office, Islamabad and another" CP No. 688 & 689 of 2020 (2023 SCMR 394) wherein it was held that:- "5. Article 25 of the Constitution guarantees the equal protection of law, not the equal protection of lawlessness, by declaring that all citizens are equal before law and are entitled to equal protection of law. An unlawful act, therefore, cannot be made a standard for enforcing the right to equality guaranteed by the Constitution. One illegality cannot be allowed to be compounded by applying the right to equality. The extension of the right to equality to the acts done in violation of law would amount to perpetuating previous unlawful acts and motivating the commission of further illegalities. Article 25 of the Constitution has no application to a claim based upon other unlawful acts and illegalities. It comes into operation when some persons are granted a benefit in accordance with law but others, similarly placed and in similar circumstances, are denied that benefit. Such other persons cannot be discriminated against to deny the same benefit, in view of their right to equality before law and equal protection of law guaranteed by Article 25 of the Constitution. But where a person gains, or is granted, a benefit illegally, other persons cannot plead, nor can the court accept such a plea, that the same benefit must be allowed to them also in violation of law.
16. Looking the order dated 16.04.2013 from another angle it appears that the observations contained therein are in the nature of an obiter observations simplicitor and cannot be treated as decision of the case/enunciation of law but is a simple statement. Such observations do not qualify as ratio decidendi, reasoning and decision of the case. The Supreme Court of Pakistan in the case of "Irshad Ahmad Sheikh v. The State" (2000 SCMR 814) held that:- "Now, every case is an authority, to the extent the same decides the legal controversy encompassed in it. In other words, the declaration of law has to be confined to the four corners of the dispute agitated before the Court. The rest, if any, is obiter and abiter, except of this Court or, before it, of the Privy Council is not/has not been binding."
17. On the status of order obiter dicta, the Lahore High Court in the case of "S. Muhammad Din & Sons Ltd. v. Assistant Director Labour Welfare (Conciliation) Lahore Region Lahore and others (PLD 1968 Lahore 1012) laid down that "as a general rule that that part alone of a decision of a Court of law is binding upon Courts of co-ordinate jurisdiction and inferior Courts which consists of the enunciation of the reason or principle upon which the question before the Court has really been determined. This underlying principle which forms the only authoritative element of a precedent is often termed the ratio decidendi. Statements which are not necessary to the decision, which go beyond the occasion and lay down a rule that is unnecessary for the purpose in hand(usually termed dicta) have not binding authority on another Court, though they may have some merely persuasive efficacy."
18. In view of above and following the cardinal principle that one who wants the court to grant him the relief prayed for must base his claim on his own legal right, not on the wrongful gains of others, it is held that the ground of discrimination is not available to the petitioners.
19. Next, it is the stance of the petitioners that vide order dated 16.12.2021 the Supreme Court of Pakistan has not given any authority to the respondent-department to terminate their services and that the respondent-department was allowed only to submit its parawise comments in WP No. 901 of 2016 and not in WP No. 3068 of 2015.
20. Perusal of order dated 16.12.2021 reveals the two petitions CP No. 1305 and 1306 of 2017 filed by the respondent-department against the orders of even date 13.02.2017 passed in CM No. 4746 of 2016 IN WP No. 901 of 2016 and CM No. 4683 of 2016 passed in WP No. 3068 of 2015 were converted into appeals and were allowed. The petitions were filed against the two orders of even date i.e. 13.02.2017 and there is no significant or even remote distinction between the said two orders, therefore, after setting aside of the order dated 13.02.2017 the matter is to be decided on merits. The aspect of termination or reinstatement of the petitioners, as argued, had never been the subject matter before the Supreme Court of Pakistan. If any action was taken by the respondent- department, as argued by the learned counsel, it has no nexus with the subject matter before the Supreme Court of Pakistan, therefore, there arises no question of issuance of any declaration in this respect as prayed for.
21. So far as prayer for issuance of direction that the posts of the petitioners stand converted from development to non-development side after obtaining due approval from the Establishment Division and the Ministry of Finance is concerned, the respondent-department came up with specific stance as reveals through its written synopsis that the projects NCSRC and CDM were not converted from development to non-development side and in this respect referred order dated 06.03.2018, passed by this Court in WP No. 3612 of 2016 wherein the Assistant Chief of the Ministry of Planning, Development and Reforms confirmed that projects including NSCRC and CMDC have not been converted from development to non-development budget. Therefore, when there is explicit denial of the claim of the respondents and the fact that the petitioners have also not placed on record any document in support of their claim, no relief can be granted as prayed for.
22. The aspect of amplification of the Regularization Policies is required to be seen in view of the law laid down by this Court in the case of "Mst. Shagufta Hashmat & others v. FOP & others"(2018 PLC(CS) 619) wherein the scope of the policies was discussed in detail in paragraph 25-31 in following terms:- The Federal Government had approved a policy regarding regularization and the details thereof were described in the Office Memorandum dated 29-08-2008 (hereinafter referred to as the "First Regularization Policy"). The said policy covered only such contract employees who were appointed up to 03-06-2008. The policy explicitly excluded employees working against tenure posts, project posts, on daily wage basis or who were paid out of a contingent or defence budget.
The contract employees in pay scale 16 and above or equivalent were also excluded. The First Regularization Policy had taken into consideration all the relevant factors in the context of the Act of 1973 and the APT Rules....The learned counsel appearing on behalf of the petitioners have heavily relied on the purported policy which was forwarded by the Cabinet Sub-Committee vide summary, dated 29-06-2011, and approved by the Prime Minister on 30-06-2011 (hereinafter referred to as the "Committees Policy"). It was explicitly mentioned in the summary that the proposals shall be subject to approval by the Federal Cabinet. However, there is nothing on record to show that the Cabinet at a later stage had given its approval.....The Committee s Policy was, therefore, illegal and without legal effect...... During the course of proceedings in the instant petitions, the learned Additional Attorney General had informed the court that the Cabinet had approved a fresh policy regarding regularization of contract employees. In this regard he placed on record a copy of the Office Memorandum dated 11-03-2011 (hereinafter referred to as the "New Policy"). The policy covers all contract, contingent paid, daily wage and project employees who have rendered a minimum of one year service as on 01-01-2017.....The New Policy has extended the benefit of regularization to categories which had been excluded in the First Regularization Policy, such as contingent paid, daily wage or contract employees......The New Policy, therefore, has to be given a purposive interpretation by holding that it would extend to the eligible categories during the period between the First Regularization Policy and the New Policy..... It is noted, however, that the cases of employees who are not governed under the Act of 1973 or the APT Rules are on a different footing.
They would be governed under the relevant statute or the articles of association, as the case may be. If an entity has been established under a statute and the Federal Government has administrative or financial control over it, then unless such statute has expressly made the policies of the Federal Government binding, the decision-making authority shall be at liberty to formulate a policy of its own. A......It is also noted that the question of legitimate expectation cannot be adjudicated while exercising jurisdiction under Article 199 of the Constitution since it involves disputed questions of fact. Whether or not the conduct of an employer has created an impression in the mind of the employee that the former intends to retain him on a regular basis is definitely a question of fact and not justiciable while exercising powers under Article 199 of the Constitution.
Moreover, even if a case is made out in terms of legitimate expectation yet no appointment can be validly made in violation of the relevant law e.g., the Act of 1973 and the APT Rules.
32. For what has been discussed above, it is held and directed as follows:
(i) The case of each petitioner shall be considered and decided by the relevant competent authority, having regard to the above discussion.
23. It was held in the case of Mst. Sahgufta Hashmat (supra), that the High Court while exercising powers under Article 199 of the Constitution cannot determine the question of regularization rather it should be determined by the concerned department only in view of the guidelines mentioned in Para 25 of the judgment. The judgment was upheld in appeal by way of a reported Judgment 2019 PLC (CS) N 19 further directions in Para-123 that only those project employees can claim regularization whose respective projects have been converted from development to non- development phase by the Government of Pakistan and hence those employees whose respective projects were closed, expired or completed will not be regularized.
24. Even in case the projects under which the petitioners were employed, is transferred from development to non-development phase then, the eligibility of concerned employees will be adjudged fairly by the department in light of principles contained in Para-123 of the judgment reported in 2019 PLC(CS) N 19 as following:- iii. All project employees who are appointed in BPS-16 and above on project could not claim regularization of their services unless their projects have been converted from development to non-development phase by the Government of Pakistan. In such eventuality, all those employees who are working on those projects shall continue to work and if their initial appointments in the project have been made through a transparent manner i.e. advertisement, test, and interview, then their cases be sent to FPSC in terms of Section 11(b) of the Civil Servants Act, 1973 read with the powers referred in Rules 4 and 5 of the FPSC (Functions) Rules, 1978. Their posts and their appointments shall be considered regularized subject to decision of the FPSC on the question of their eligibility, qualification and fitness merely on the basis of opinion of FPSC or conducting test and interview within a period of six Months. iv. All project employees of BPS-1 to BPS-15 working in projects, which have been converted from development to non-development, shall be considered for the purpose of their regularization of services by their competent authorities while considering their qualification, eligibility, and fitness on case to case basis within the period of six (06) months (as one time exercise), subject to the condition that their initial selection was made through transparent manner i.e. advertisement, test and interview. ix. Employees who are already working in different Ministries, Divisions and others whose their services have been regularized; they should not be disturbed as their cases fall within the ambit of past and closed transaction, subject to conditions that they were appointed in accordance with law in a transparent manner. xi. The employees, petitioners/appellants (BPS-1 to BPS-15) of those projects which were closed/expired/completed will not be regularized, however they will be given preference as well as additional marks in future jobs due to their experience, qualification and they will also be given age relaxation under the rules.
25. Furthermore, in a case reported as 2019 PLC(CS) N 19 the respondent-department (Ministry of Climate Change) was directed by this Court to make regulations to deal with terms and conditions of employment of its employees sub-Para (xiv) of para-123 in following terms:- In cases of employees of Ministry of Climate Change, under the Pakistan Climate Change Act, 2017, the Minister in-charge shall make regulations with the approval of the Federal Government for the purpose of appointments of officer, advisors, experts, consultant, and employees with reference to section 19(2)(e) and powers confirmed under section 17 of the Pakistan Climate Change Act, 2017.
However, if relevant rules and regulations are not promulgated/notified the officers who have been hired are not to be considered validly appointed. In other case, the services of all those employees have to be dealt in accordance with regulations and rules notified by the Federal Government referred in the Act.
26. The judgment in ICA was challenged before the Supreme Court of Pakistan in number of civil petitions for leave to appeal, mainly CP No. 2792 of 2018 and the same was decided vide judgment dated 13.03.2019 wherein the judgment of this Court was upheld by observing in Para-04 in terms that:- "Having heard the learned counsel for the petitioner and going through the record, we find that the petitioner was a contract employee and had no vested right to regularization as has repeatedly been held by this Court. It was the prerogative of the employer either to extend the employment of an employee or refuse such extension. An employee cannot be foisted upon an unwilling employer especially so where the employment is expressly by way of a contract which is terminable in accordance with the terms and conditions of contract. The learned single judge as well as the ICA Bench have addressed the matter in considerable detail and also dealt with all categories of employees whether they were contract employees, employees appointed on ad hoc basis, project employees or employees appointed against posts from BS-1 to BS-15 and had laid down criteria and parameters for their employment, process for such employment and the modalities of the same.
27. The appointment on project post does not confer any right for permanent absorption or to be retained for indefinite period as laid by this Court in the case of "Dr. Muhammad Naseem Khan v.
Dr. Shahzad Ali Khan & others" (2023 PLC (CS) N 8) in Para-12-13, while placing reliance upon the Judgment of the Supreme Court of Pakistan in case law reported in 2022 SCMR 406, 2022 SCMR
472. It was held that:- It is well settled that an appointment on "Project Post" does not confer any right for permanent absorption or to be retained for an indefinite period. It is my view that no sooner any Project comes to an end, the employees appointed on Project posts and for the purposes of such a Project, can be shown the doors on the winding up of the Project.
13. The High Court cannot step into the shoes of the appointing authority. It also cannot extend the scope of a contract that has been signed by an employee as the same goes against the spirit of the very concept of contract employment. When an employee accepts a post in a project, he is aware of the fact that the project will come to an end on its completion or cessation of its funding (as the case may be) and with that, his employment will also come to an end. Forcing the authorities to "accommodate or retain" such employees for an indefinite period or to absorb them, is not only a transgression of the powers vested with the High Court under Article 199 of the Constitution, but is also a burden on the Government Exchequer which the Court is not at liberty to place......It is the prerogative of the employer to decide the terms and conditions of an employee's contract. It is not for the Court to step into the shoes of the employer and force it to employ someone for whom there may not be a sanctioned post available and even if there is one, without following due process, procedure and criteria......It is well settled principle of law that regularization cannot take place without there being any statutory backing......It is well settled proposition of law that the High Court in exercise of its Constitutional jurisdiction under Article 199 of the Constitution cannot assume the role of the appointing authority and direct employer to amend/ alter the terms and conditions of the contract in favour of employee, which have been agreed upon by the said employee.
28- Having examined the case from every angle and in view of the observations recorded hereinabove, it is held that case of petitioners lacks merits. Consequently, the instant writ petition alongwith W.P.No.3068 of 2015. W.P. No.1225 and 1231 of 2022 are accordingly dismissed with all C.Ms. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.