ASIM HAFEEZ, J. Consolidated judgment of 20.05.2024 (in short 'impugned decision'), handed down by learned Single Judge in Chambers, while deciding constitutional petition bearing W.P No.41334/2023, along connected petitions, is subject of challenge through collectively heard Intra- Court Appeals - numbered as ICA No.38859/2024, ICA No.38860/2024 and ICA No.38861/2024.
Essential facts are that appellants, who were appointed on contractual basis against designated post(s) in the project, identified as Establishment of Musafir Khana [Panah Gah] ('the Project'), seek regularization of their services / employment, primarily on these grounds. a) On the premise of conversion of the Project from development to non-development category - it is an uncontroverted fact that conversion from one category to another took place in or about September 2021, which event happened during the continuity of services of the appellants, as project employees. b) Allegation of cherry-picking conduct is attributed on the plea that identical treatment, as meted out to similarly placed employees, was conspicuously denied to the appellants.
2. Essentially, right to be considered for regularization was acknowledged by impugned decision, subject to policy in vogue. Operative part thereof is reproduced hereunder for explaining the context.
"Admittedly, the petitioners are in service albeit on contract, and the Projects have been converted in to non-development side and the posts have been advertised for the recruitment, therefore, the petitioners may apply for the same, if they have not already done and the respondents are directed to make the recruitment against the Projects posts on regular basis, strictly adhering to and complying with the safeguard extended for the projects employees, in terms of letter dated 06.06.2022."
3. Learned counsel for the appellants waged a twin-pronged attack against impugned decision. It is argued the decision under reference falls in the category of a per incuriam decision, whereby it failed to follow / adhere to the dicta settled in matters involving grievances against lack of regularization of services, in identical circumstances, and Constitutional Courts had acknowledgment right of regularization as an enforceable right. It is emphasized that ratio settled variously, and affirmed by the Apex Court, acquired status of a binding precedent but not followed while deciding constitutional petitions. And in support thereof, learned counsel referred following decisions; "Muhammad Adeel & other Vs. Government of Punjab through Secretary Population Welfare Department, Lahore & others" (W.P. No. 9077 of 2022), "Rana Saifullah & others Vs. Province of Punjab through Chief Secretary, Lahore & others" (W.P. No. 68220 of 2020), "Shahid Ali & others Vs. Province of Punjab through its Chief Secretary, Civil Secretariat, Lahore & others" (W.P. No. 8748 of 2019), "Jawarah Ehsan, etc Vs. Government of Punjab, etc." (W.P. No. 216631 of 2018). Learned counsel emphasized that while deciding the case of Rana Saifullah & others (supra) reliance was placed on the decision of the Supreme Court of Pakistan in the case of "RIZWAN JAVED and others v. SECRETARY AGRICULTURE LIVESTOCK and others' (2016 SCMR 1443), wherein ratio settled in the case of "GOVERNMENT OF KHYBER PAKHTUNKHAWA through Secy.
Agriculture and others v. ADNANULLAH and others" (2016 SCMR 1375) was reiterated. It is argued that decision in the case of Jawarah Ehsan, etc. (supra) was affirmed by the Supreme Court of Pakistan while dismissing civil petition seeking leave to appeal in the case of "Province of Punjab through Secretary Social Welfare & Bait-ul-Mall, Department, Lahore Vs. Jawarah Ehsan, etc."
(Civil Petition No. 3381-L/2019 and connected petitions), hence, ratio of the decision acquired status of a binding precedent, albeit not adhered. And on same analogy, it is emphasized that case of Rana Saifullah & others (supra) was affirmed by the Supreme Court of Pakistan while dismissing civil petition seeking leave to appeal in case of "Province of Punjab through Secretary, Literacy & Non Formal Basic Education Department, Lahore, etc. Vs. Rana Saifullah, etc." (Civil Petition No. 657-L of 2023). Further, in same vein, it is argued that cases of "Province of Punjab through its Chief Secretary Lahore, etc Vs. Bashir Ahmad Khan and others" (Civil Petition No. 3416 of 2023) and "Province of Punjab and others Vs. Shahid Ali and others" (I.C.A No. 21994 of 2019) laid a binding dicta. Learned counsel further refers the case of "Government of the Punjab through Secretary Environment Protection Department, Lahore & another Vs. Maqsood Ahmed & others"
(Civil Appeals No. 275 & 276 of 2014) to support submissions. Learned counsel emphasized that upon conversion of the Project from development to non-development category appellants are entitled to seek indulgence of provisions of Punjab Regularization of Service Act, 2018 (Act, 2018)
Lastly, submits that appellants belong to different class of employees, owing a right to be considered for regularization of services, and gelling them with freshly sought recruits, in wake of recently advertised for initiating process of recruitment against the posts in question, is an obvious affront to binding precedents and otherwise discriminatory.
4. Learned Law Officer replied that claim of regularization of the services is governed in terms of policy letter No. SO(ERB)5- 3/2014/Contract (Project) dated 6th June 2022, captioned as 'Appointment of Employees of Different Projects on Regular Basis after conversion of project from development to non-development side' (referred as the 'Policy of 2022'), whereby certain advantages were extended to the appellants by way of age relaxation and acknowledgment of the experience gained for the relevant post. Submits that desired claim of exclusivity qua regularization, by treating appellants different from the potential / fresh recruits, is contrary to the terms of appointments letters of the appellants and in wake of specific bar therein no carte blanche right of regularization could be extended to the prejudice of those, who had not applied for project posts on account of its transitory nature. Further submits that allegation of cherry-picking, in the context of applicable policy, is unfounded and no instance is quoted where any different treatment was extended to similarly placed employees, in terms of the Policy of 2022.
5. Case heard. And opinion of the court is rendered in following terms.
6. Controversy regarding an employee's entitlement to regularization of the services and legal- cum-regulatory framework is by and large settled and those elementary tenets need no re- visitation, which are that no vested right qua regularization of services could be claimed but an employee can claim a right to be considered for regularization, subject to law or policy, regulating regularization of project employees, where project was converted from development to non- development category. Learned counsel for the appellants do not dispute factum of right to be considered for regularization but claim exclusivity of consideration of appellants for regularization under the legal and structural/procedural framework provided under the Act, 2018. And conversely respondent's department claimed that the Act, 2018 was not applicable to the case of the appellants, whose claim for regularization has had to considered in terms of the Policy of 2022. In wake of the divergence of submissions, moot question is whether appellants are entitled to claim benefit of the legal and structural / procedural framework provided under the Act, 2018 once character of the Project would change from development to non-development category. Case of the appellants is that question of applicability of Act, 2018 has to be considered in the context of binding precedents settled in cases of ADNANULLAH and others (supra) and RIZWAN JAVED and others (supra) - which was followed variously in cases involving determination of question of regularization. It is repeatedly iterated that aforesaid decisions were not appreciated while handing down the impugned decision. In these circumstances, it is to be determined that whether impugned decision withstands the scrutiny of dicta laid in the cases of ADNANULLAH and others (supra) and RIZWAN JAVED and others (supra), which were followed while deciding the cases of Jawarah Ehsan, etc. (supra) and Rana Saifullah & others (supra) - later decisions were affirmed by the Apex Court upon refusing grant of leave to appeal.
There is no cavil that decisions of the Apex Court, refusing leave to appeal are not construed as binding precedents in terms of Article 189 of the Constitution of Islamic Republic of Pakistan, 1973, nonetheless, claim is put to scrutiny in light of doctrine(s) of `Ratio decidendi' and `Obiter dicta'.
Contention that impugned decision is per incuriam manifests lack of proper appreciation of the ratio of decisions in cases of ADNANULLAH and others (supra) and RIZWAN JAVED and others (supra), which decisions constitute an authority in the context of the facts involved. Supreme Court of Pakistan while deciding the case of RIZWAN JAVED and others (supra) relied upon the decision of ADNANULLAH and others (supra), paragraph 31 of later decision is relevant for ascertaining the authority / ratio of the decision, which paragraph is reproduced hereunder, "The record further reveals that thee Respondents were appointed on contract basis and were in employment / service for several years and Projects on which they were appointed have also been taken on the regular Budget of the Government, therefore, their status as Project employees has ended once their services were transferred to the different attached Government Department, in terms of Section 3 of the Act. The Government of KPK was also obligated to treat the Respondents at par, as it cannot adopt a policy of cherry picking to regularize the employees of certain Projects while terminating the services of other similarly placed employees."
7. Is ratio settled in the case of ADNANULLAH and others" (supra) attracted to the controversy at hand. Decision in case of ADNANULLAH and others" (supra) involves interpretation of section 3 of Khyber Pakhtunkhwa Employees (Regularization of Services) Act (XVI of 2009), wherein no discussion / elaboration was found in the context of application of the Act XVI of 2009 to the project employee in terms of specific exclusion provided therein. Section 2(b) of Act (XVI of 2009) defines an employee, which excludes employees for the project post. Hence, decision in the case of ADNANULLAH and others" (supra) extends no assistance on the point that whether project employee could take benefit of the Act, 2018 - controversy at hand. Scope of application of Act (XVI of 2009) to an employee of the project was specifically discussed in the case of "Government of Khyber Pakhtunkhwa through Chief Secretary and others Vs. Muhammad Younas" (2021 SCMR 1045), paragraph 6 thereof is referred by learned law officer, which reads as, "Before examining this issue, the legal position ought to be laid out clearly. In this regard, reference is made to sections 3 and 2(b) of the 2009 Act: "3. Regularization of services of certain employees. All employees including recommendees of the High Court appointed on contract or ad hoc basis and holding that post on 31st December, 2008 or till the commencement of this Act shall be deemed to have been validly appointed on regular basis having the same qualification and experience for a regular post."
"2(b) employee" means an ad hoc or a contract employee appointed by Government on ad hoc 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".
A plain reading of the above provisions makes it abundantly clear that contractual or ad hoc employees appointed before 24.10.2009 i.e. the date of the commencement of the Act, were eligible for regularization. However, since the post against which the Respondent was appointed, was converted to the regular budget in 2014, it is clear that the Respondent falls outside the purview of the 2009 Act. Before the conversion of the post to the regular budget, the Respondent was simply a project employee. Under section 2(b) of the 2009 Act, project employees are categorically excluded from the benefit of regularization under section 3 of the 2009 Act. Through the Impugned Judgment, the learned High Court has, in essence, extended the cut-off date provided in the 2009 Act by almost four years which is not permissible under the law. Courts of law are required to interpret the law and can neither rewrite the law nor read into the law something which is not provided therein. No matter how sympathetic a Court may feel towards a litigant or a set of litigants, Courts are duty-bound and required by the Constitution of the Islamic Republic of Pakistan to adhere to the letter of law and not decide cases based on subjective feelings of sympathy which can vary from person to person. Law and its interpretation must be clear and consistent which is precisely why the adherence to the law is insisted upon as it lends stability to the system and increases the confidence of citizens in the law and the legal system.
Involvement of subjectivity has the potential to make dispensation of justice variable and uncertain which is an anathema to a system based upon laws. Therefore, the Peshawar High Court in our opinion fell in grave error by concluding that the Respondents were entitled to regularization under the provisions of the 2009 Act despite the fact that the said Act was clearly inapplicable to them."
[Emphasis supplied]
8. Decision in the case of Muhammad Younas (supra) resettled the question that section 3 of Act (XVI of 2009) is not applicable to the project employee(s), which were excluded from the ambit of regularization under the Act (XVI of 2009). There is no discussion on specific exclusion of project employee from the definition of an employee in case of ADNANULLAH and others. Hence, drawing support from the authority / law enunciated in Muhammad Younas (supra), application of provisions of the Act, 2018 to the appellants, wherein too definition of employee excludes a person appointed to a post in a project..... [section 2 (c) of Act, 2018] becomes doubtful. Notably, Single Judge in Chambers relied upon the ratio settled in the case of Muhammad Younas (supra), which is sufficient to dismiss an aspersion that impugned decision is per incuriam decision. We do not scribe to the argument that status of project employee would ipso facto change, simplicitor, upon conversion of the Project from development to non-development category, which conversion in this case was otherwise effected after promulgation of Act, 2018, which enactment specifically excludes project employees from its ambit. Constitutional court has no authority to direct inclusion of category of project employee for the purposes of extending the benefit of Act, 2018 - by way of changing the status of an employee. This kind of intrusion is an act in excess of jurisdiction.
In view of the above, we opine that appellants stood excluded from the purview of Act, 2018. It is also notable that no discussion, let alone any adjudication, is otherwise found on the question of applicability of Act, 2018, qua claim of regularization of a project employee, in cases of Jawarah Ehsan, etc. (supra) and Rana Saifullah & others (supra), hence, ratio settled therein and affirmation thereof by the Apex Court, by way of refusal to grant leave to appeal, have had no binding precedential value - when controversy at the heart of the matter was not adjudicated upon therein. Article 189 of the Constitution of Islamic Republic of Pakistan, 1973, has its significance and same cannot be undermined.
9. Learned counsel for the appellants is unable to convince us that why appellants shall be treated as a class, distinct from the potential recruits when nothing of this sort was provided in the Policy of 2022 and even in the policy precursor thereto, i.e., the Policy of 2014 though appellants enjoy some advantage(s) extended in terms of age-relaxation and experience gained in relevant field. No enforceable right is available even in terms of policy of 2014, if conversion of the Project from development to non-development category was reckoned from September 2021. And learned Single Judge in Chambers rightly rejected the plea of treating appellants as a category of its own.
There is no confusion to the extent that regularization is subject to the conditions prescribed through an enactment or the policy - instant matter is regulated through later instrument. No instance of discrimination in terms of Policy of 2022 is pointed. Right to be considered for regularization, in terms of policy of 2022, was acknowledged in the impugned decision. Judgments of the constitutional courts, whereby cherry-picking exercise was found administered and consequently deprecated / denounced, are not applicable where plea of discrimination remains unsubstantiated. Ratio of decision in case of Dr. Naveeda Tufail and 72 others v. Government of Punjab and others (2003 SCMR 291) is not attracted. The case of "Masood Ahmad and others" is not an authority to direct regularization unconditionally, but directed the government to consider claimants on merits, which includes consideration of the law or policy applicable.
10. Appellants can claim benefit of the Policy of 2022 but claim under the Act, 2018 is not entertainable. Regularization cannot be claimed as a right but a privilege extended and subjected to certain conditionalities.
11. In view of the aforesaid, we do not find any illegality in the judgment dated 20.05.2024, hence, this and connected appeals are, hereby, dismissed.