REHAN ALI vs MINISTRY OF TECHNICAL PROFESSIONAL through Secretary and 3 others
The instant constitutional petition was filed seeking the regularization, confirmation, and absorption of the petitioner, who was initially appointed as a Dispatch Rider on a temporary contract basis by the respondent department. The core legal questions involved whether a contractual employee whose service rules are non-statutory can invoke writ jurisdiction for regularization, and whether the petitioner was entitled to regularization under government policy despite the discontinuation of his services and concealment of material facts. The Islamabad High Court dismissed the petition, holding that the respondent department's service rules were non-statutory and unapproved by the government, that contract employees of the department were exempt from regularization per Cabinet decisions, and that writ jurisdiction is not maintainable in the absence of statutory rules or a violation of a vested legal right. The key principle laid down is that contractual or daily wage employees governed by non-statutory rules cannot claim regularization as a matter of right through constitutional petitions.
- Whether a contractual employee whose service rules are non-statutory can invoke writ jurisdiction for regularization?
- Does the classification of department employees as public servants under section 15 of the National Vocational and Technical Training Commission Act, 2011 make them civil servants entitled to file a writ petition?
- Can contractual or daily wage employees claim regularization as a matter of right when service rules and cabinet policy exempt them?
- Does the suppression of material facts, such as pending proceedings before a Labour Court, disentitle a petitioner to discretionary relief in constitutional jurisdiction?
- Section 17, National Vocational and Technical Training Commission Act, 2011
- Section 15, National Vocational and Technical Training Commission Act, 2011
- Section 21, Pakistan Penal Code 1860
' NOOR-UL-HAQ N. QURESHI J.--- The instant petition preferred for regularization/confirmation/absorption of the petitioner and inaction on the part of respondents as illegal without lawful authority.
2. It is mainly contended that the petitioner was appointed as Dispatch Rider on 17-12-2009 up to 31-3-2010 when period was extended from time to time and lastly up to 31-12-2011. The petitioner performed his duties honestly with full dedication and sincerity.
3. The petitioner since performing his duties for more than two years and according to the government policy, petitioner is entitled to be regularized even after one year service.
4. Respondents department on receiving notice of this petition, submitted their report and para- wise comments. The respondents took stance that the petitioner filed a petition before the Presiding Officer, Punjab Labour Court No,9, Multan, assailing discontinuance of his services vide letter dated 4-10-2011 which the petitioner has concealed in the instant petition, therefore, petitioner is not entitled for any relief as has concealed the facts.
5. Besides the above, it is also contended that no departmental appeal prior to the institution of instant writ petition was filed. Recently a petition for reinstatement to the Worthy Prime Minister of Pakistan was filed in which he admitted that his services were discontinued vide letter dated 4-10- 2011 as such the petition merits no consideration and same is liable to be dismissed. The petitioner otherwise would have a chance to seek relief if his services were in continuity but no any-authority referred which could rescue the petitioner. It is also contended that the petitioner while preferring writ petition has not submitted statutory Rules which fact has been concealed from the Court as the answering respondents having no any statutory rules, therefore, petition does not lie and if any grievance existing that leading towards the relationship of petitioner and answering respondent falling under Master and Servants Act therefore writ is not the proper remedy and petitioner has to seek relief by filing suit for damages.
6. Learned counsel for the petitioner early in the morning when the petition was taken up not available, however, arguments of respondents were heard and subsequently, learned counsel for petitioner came in late hours when he advanced his arguments.
7. Learned counsel for the respondents has reiterated his such averments in the para-wise comments and report as well as the above referred contentions.
8. Learned counsel for the petitioner has conceded that though the Rules framed by answering respondent have not yet been statute but since the department is established under the Act, therefore, writ lies against such department which is established under some statute. Besides above, learned counsel for the petitioner was also emphasized that Rules framed under section 17 of the National Vocational and Technical Training Commission Act, 2011 therefore, deemed to be statutory. Section 15 of the said Act provides the employees of department are public servants with the definition of section 21 P.P.C., therefore, even if the Rules are non-statutory, petitioner within the meaning of public servant can invoke writ jurisdiction. He also argued that terms of contract are violated, therefore, writ lies. According to the contract, 14 day's notice is mandatory which since has been violated, therefore, petitioner has every right to prefer instant writ petition.
9. Arguments heard, record perused as well as the relevant provision referred above.
10. At the very outset, learned counsel for the petitioner concealed IA that Rules are non-statutory in view thereof writ does not lie is an admitted fact and question of law.
11. So far the concern of applicability of section 15 defining all the IB employees of department as public servants does not mean that every public servant must be considered as civil servant.
12. If otherwise, he would have been deemed to be civil servant then, appeal must have been lie(??) to the Tribunal. It is also a hard fact on record not denied by learned counsel for petitioner that petitioner is not in service now and he preferred the petition before the Labour Court at Multan as well as preferred representation before Prime Minister of Pakistan which is also pending adjudication.
13. That the learned counsel for the respondents since relied upon letter dated 4-6-2012 certifying the Rules of NAVTTC have yet not been approved by the Government of Pakistan, therefore, same are non-statutory which fact has not been denied by learned counsel for the petitioner.
14. Another letter dated 2-7-2012 confirming the decision of Cabinet Sub-Committee in a meeting held participating the representation of NAVTTC thereby exempting NAVTTC from regularization on contract or daily wages employees. As such there is no provision of regular service as per their Service Rules.
15. The fact so mentioned above has also not been denied. Therefore, under no circumstances, petitioner can claim his regularization as his right.
16. Since, no right of petitioner has been violated, therefore, petition merits no consideration. Same is hereby dismissed.
Cited by 4 cases
- HASSAN JAWED and another vs PUNJAB EDUCATION FOUNDATION and 4 2018 PLC (C.S.) 580
- Syed NASRULLAH vs The DIRECTOR GENERAL PAKISTAN SPORTS BOARD, ISLAMABAD and 2 others 2018 PLC (C.S.) 367
- Hassan Javed and another vs Punjab Education Foundation and 4 others 2017 LHC 3717
- HASSAN JAVED and another vs PUNJAB EDUCATION FOUNDATION and 4 2018 PLJ Lahore 303