2023 SCLR 47

Other citations:

2023 SCP 261 (https://www.supremecourt.gov.pk/downloads_judgements/c.p._4424_2021.pdf)

2023 SCMR 1932 (https://www.pakistanlawsite.com/Login/MainPage)

[Supreme Court of Pakistan]

Present: Sayyed Mazahar Ali Akbar Naqvi and Athar Minallah, JJ

Muhammad Suleman—Petitioner

versus

Chief Secretary, Government of Khyber Pakhtunkhwa, Civil Secretariat, Peshawar and others—Respondents

Civil Petition No. 4424 of 2021, decided on 17^th August, 2023.

(Against the judgment dated 03.06.2021 of the Peshawar High Court, Peshawar passed in Writ Petition No.962-P of 2020.)

HEADNOTES

(a)   Khyber Pakhtunkhwa Employees (Regularization of Services) Act (XVI of 2009) —

— Ss. 3, 2(b), 2(c) and 2(d) — Regularization of services of certain employees — Non-compliance with transparent appointment procedures and ineligibility for regularization — Scope — The petitioner had not been appointed through a competitive transparent process — Moreover, the appointment was not made by the “Government” nor a “Government Department” as defined under clauses ‘c’ and ‘d’ of Section 2 respectively, of the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009 — The expression ‘employee’ has been defined in clause ‘b’ ibid as meaning an ad hoc or a contract employee appointed by the Government on ad hoc or contract basis or second shift/night shift but excluded the employees of project post or appointed on work charge basis or who were paid out of contingencies — The petitioner, therefore, did not fall within the definition of the expression ‘employee’ for the purposes of Section 3 of the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009 — Petitioner was not eligible to be regularized under the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009, as such, petition for leave to appeal was dismissed. [Para. No. 4]

(b)   Civil service —

— Appointment — Scope — Appointments of any nature, whether initial or ad hoc, permanent or temporary, if made in violation of the principle of transparency and competitive process, inter alia, without inviting applications from the public is in violation of the Constitution and are, therefore, void — Selecting a qualified, eligible and most deserving person is a sacred trust which is to be discharged honestly and fairly in a just and transparent manner and in the best interest of the public. [Para. No. 4]

Muhammad Umair Baloch, Advocate Supreme Court for the petitioners.

Nemo. for the respondents.

Date of hearing: 17^th August, 2023

ORDER

Athar Minallah, J.- Muhammad Suleman son of Abdul Rahim has sought leave against judgment dated 03.06.2021 of the Peshawar High Court whereby his constitutional petition was dismissed.

2.           The Principal, Government College, Landi Kotal, Khyber Agency had appointed the petitioner as a Lecturer. The appointment was on temporary basis and against a fixed remuneration of Rs.5000/-. It is not disputed that the appointment of the petitioner had not been made in a transparent manner i.e. pursuant to publication of the vacancy and inviting applications from eligible persons. Moreover, the remuneration was paid from the Agency Development Fund of the Political Agent of Khyber Agency. The Peshawar High Court vide order dated 08.06.2009 disposed of Writ Petition No.161/2008 and the respondents were directed to decide the pending representation of the petitioner. Since the competent authority had failed to comply with the direction, therefore, a second petition i.e. Writ Petition No.1839-P/2009 was filed and it was allowed by the Peshawar High Court vide judgment, dated 15.10.2009. The said judgment was assailed by the Principal, Government Degree College, Landi Kotal before this Court. In the meanwhile, the petitioner was regularized vide notification, dated 03.10.2011 in compliance with the direction of the Peshawar High Court but it was explicitly made subject to the disposal of the petition by this Court. Civil Appeal No.99-P/2010 was disposed of by this Court vide order dated 20.03.2019 with the consent of the parties in the light of the direction given by this Court in paragraph 5 of an earlier order dated 07.03.2019 passed in Civil Petition No.55-P of 2017. In compliance with the said order of this Court, the case of the petitioner was considered by the competent authority and the latter declared that the petitioner was not eligible for the purposes of regularization under the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009 (the Act of 2009). Consequently, notification, dated 09.01.2020 was accordingly issued. The said notification was assailed by the petitioner by invoking the jurisdiction of the Peshawar High Court vested under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 and it was dismissed vide the impugned judgment, dated 03.06.2021.

3.           We have heard the learned counsel.

4.           It is not disputed that the petitioner had not been appointed through a competitive transparent process. Moreover, the appointment was made by the Principal of the College against a fixed remuneration paid from the Agency Development Fund. The appointment had not been made by the “Government” nor a “Government Department” as defined under clauses ‘c’ and ‘d’ respectively, of the Act of 2009. The expression ‘employee’ has been defined in clause ‘b’ ibid as meaning an ad hoc or a contract employee appointed by the Government on ad hoc or contract basis or second shift/night shift but excluded the employees of project post or appointed on work charge basis or who were paid out of contingencies. The petitioner, therefore, did not fall within the definition of the expression ‘employee’ for the purposes of Section 3 of the Act of 2009. This Court has consistently held that appointments of any nature, whether initial or ad hoc, permanent or temporary, if made in violation of the principle of transparency and competitive process, inter alia, without inviting applications from the public is in violation of the Constitution and are, therefore, void. Selecting a qualified, eligible and most deserving person is a sacred trust which is to be discharged honestly and fairly in a just and transparent manner and in the best interest of the public.¹²³⁴ As already noted above, the petitioner was not eligible to be regularized under the Act of 2009 and therefore, the decision of the competent authority communicated vide notification, dated 09.01.2020 was unassailable. In the circumstances, no substantial question of law has arisen for consideration of this Court and therefore, leave is refused and consequently, the petition stands dismissed.

Petition dismissed

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¹ Govt of NWFP and others v. Muhammad Tufail Khan (PLD 2004 SC 313)

² Chief Secretary Punjab and others v. Abdul Raoof Dasti (2006 SCMR 1876)

³ Muhammad Ashraf Tiwana and others v. Pakistan and others (2013 SCMR 1159)

⁴ Muhammad Yasin v. Federation of Pakistan and others (PLD 2012 SC 132)