Case Note: Writ Petition No. 9010/2021 titled “Muhammad Umer Khalid Vs. GoP, etc” reported as 2021 LHC 2069

This note discusses a recent judgment of the honorable Lahore High Court, Lahore, in matter titled above. The matter mainly pertained to a former contractual employee whose contractual services were terminated by way of an order passed by the competent authority on 04.04.2019 as a result of an inquiry initiated against him under the provisions of Punjab Employees Efficiency Disciplinary & Accountability (PEEDA) Act, 2006. Background of the petitioner was that he was appointed on a contract for a period of three years on 30.06.2015. Thereafter, his contractual services would have been extended for a further period, since he was in his contractual services at the time of passing of order dated 04.04.2019, whereby he was terminated.

The honorable Court, in its judgment dated 21.06.2021, dealt with two legal questions:

  1. Whether the Petitioner could have been reinstated into his contractual services by invoking the constitutional jurisdiction of the honorable High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973?
  2. Whether, after the expiry of three years from the date of his appointment, he had become eligible to be considered for regularization under the provisions of Punjab Regularization of Service Act, 2018 (“Act 2018”)?

To answer the first question, the honorable Court relied upon the settled jurisprudence in a number of judgments of the august Supreme Court of Pakistan. The law, in this regard, is very clear that a contractual employee may not seek reinstatement into his contractual services, by invoking the Writ jurisdiction under Article 199 of the Constitution. This principle finds its roots in Federation of Pakistan Vs. Muhammad Azam Chattha (2013 SCMR 120), as well as other judgments as referred in para 4 of the judgment under consideration. The answer to this question was pretty straight forward, and hence decided that way by declining the request of the Petitioner for reinstatement into contractual services.

However, while answering the second question, the honorable Court accepted the petition to the extent of regularization of his services under the Act, 2018. The honorable Court relied upon the fact that at the time of promulgation of the Act, 2018, the Petitioner was in services. The Court further observed that the provisions of the Act, 2018, are self-executory provisions, do not require a further legislation, and hence shall come into play on their own. The honorable Court also relied upon the judgment reported as Mst. Nabila Niaz & others Vs. Secretary Health & others (2020 PLC (CS) 675) of the learned single bench of the same honorable Court; and the judgment reported as Government of Khyber Pakhtunkhwa Vs. Liaquat Ali (2021 SCMR 630). To further strengthen the reason of self-executory provisions, and effect of lack of subordinate legislation in pursuance of such provisions, the honorable Court relied upon judgments of superior Courts from domestic & international jurisprudence as referred in paras 13-19 of the judgment. While concluding, the honorable Court, in para 20, allowed the other prayer of the petitioner pertaining to being considered for regularization.

The answer to this second proposition raised a number of questions for the reader. The most pertinent one being that how a person, not in services anymore, and whose reinstatement also disallowed, may be considered for regularization. Hence, a deeper discussion is required.

With regards to the first proposition, the law has been manifestly decided and settled. In addition to the judgments relied upon by the honorable Court, there are some recent judgments on this point including: Abid Iqbal Hafiz Vs. Secretary Public Prosecution (PLD 2010 SC 841), Abdul Wahab Vs. HBL (2013 SCMR 1383), Ministry of IPC Vs. Arbab Altaf Hussain (2014 SCMR 1573), Qazi Munir Ahmed Vs. Rawalpindi Medical College (2019 SCMR 648), Miss Naureen Naz Butt Vs. Pakistan International Airlines (2020 SCMR 1625).

However, with the disallowing of first part of the claim, allowing the second part is tricky. A detailed analysis of the Act, 2018 has been provided in two judgments referred above: Nabila Niaz and Liaquat Ali. The former was given by a single bench of the honorable Court and discusses, inter alia, the eligibility to be considered for regularization in terms of the said act. The said judgment, in para 5, has discussed the very provisions of Act, 2018 involving Sections 3, 4, 5, 7, & 10. Plain reading of Section 3(1) makes every appointment made on contract, before the commencement of the Act, to have been done validly regardless of the mode or manner of appointment, and further barred a challenge to any such appointment. Section 3(2) chalks out the eligibility criteria for being considered for appointment on regular basis including: availability of regular vacancy allocated for initial recruitment; being qualified for the post, having not been appointed on a special pay package [meaning the person should be appointed against a pay scale], performance being satisfactory, and intention to not continue as a contract employee. Section 4 provides procedure for regularization in terms of forwarding of case to commission for its recommendation; Section 5 mandates the appointing authority to constitute scrutiny committees, whereas Section 10 mandates the consideration of every eligible employee for regularization under the act, in absence of communication of specific denial to the appointing authority. The honorable Court in Nabila Niaz Case, relied upon, the plain reading of Section 3, and by allowing the petition, directed the competent authority to consider the cases for regularization.

In the later judgment of Liaquat Ali supra, the august Supreme Court of Pakistan, while discussing the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009, as enforced in KPK – a legislation prior in time, however, contains similar nature of provisions – decided that if the preconditions are met, and a person falls within the purview of the said act, the terms of the contract shall be overridden.

The judgment under consideration decided that Section 3(2) of the Act, 2018 (as amended by Act XXIII of 2019), read with Section 10, are self-executory in nature, which is the true interpretation of the Act, 2018, and the allowing of the Petitioners case to the extent of him being considered for regularization is also within the purview of law. However, with this judgment, the ball is in the executive’s court again. To say this, Section 3(2) needs to be considered:

(2)           Notwithstanding anything contained in the Act, the contract employees who have continuously been serving as such for a period not less than three years shall be eligible to be considered for appointment on regular basis if:

(a)     a regular vacancy allocated for initial recruitment is available for regularization;

(b)     he is qualified for the post;

(c)     he has not been appointed on a special pay package;

(d)    his performance during the period of contract has remained satisfactory; and

(e)  he does not opt to continue as contract employee.

[Emphasis Supplied]

What is most important is the fact that this provision read with Section 10 of the Act, 2018 are self-executory in nature. The law requires that any person who has been in continuous service shall be considered, in absence of any communication showing disinterest. Moreover, the Act, 2018 has mandatorily required for the constitution of Scrutiny Committees and consideration of the cases under Sections 4 and 5 of the Act, 2018. In the present case, the Petitioner had completed his initial tenure of three years with effect from 30.06.2015, and with the expiry of said period, the provisions of Act, 2018 came into play suo motu.

Section 3, as reproduced above, in addition to conditions provided in sub-clauses (a) to (e), has a condition precedent: continuous service of three years for becoming eligible to be considered for appointment on regular basis. Without diverging from the actual proposition, it would not be out of the place to mention that the august Supreme Court in a number of judgments including Deputy Director Food Faisalabad Division Vs. Muhammad Tauqir Shah (2021 SCMR 760), Province of Punjab through Secretary Livestock Vs. Dr. Javaid Iqbal (2021 SCMR 767) & Secretary Population Welfare Vs. Habib-ur-Rehman, etc (CP No. 318-L to 303-L of 2018) has decided the prospective effect of regularization, debarring the retrospective effect which is also supported by Section 6 of the Act, 2018, hence, the regularization would be a fresh appointment as highlighted above. After having fulfilled that condition precedent, only then the next conditions would come into play.

While partially allowing the petition, the honorable Court, has actually “directed to consider the petitioner for regularization in terms of the Regularization of Service Act, 2018 on the basis of what has been discussed above and without being influenced by the Disciplinary proceedings or their result”. Such a direction, stricto senso, is in accordance with the scheme of law. However, without getting into the specifics, the Petitioner in the instant case, may hit by one or more of the conditions mentioned in Section 3, which proposition is now to be considered by the concerned authority. Again, the direction is to consider, and not to directly regularize.