PROVINCE OF PUNJAB through Secretary Agriculture Department, Lahore Versus MUHAMMAD ARIF

IJAZ UL AHSAN, J.--- By this single judgment, we propose to decide the above mentioned Civil Appeals as these arise out of the same impugned order of the Lahore High Court, Multan Bench, Multan, dated 04.04.2019.

2. These appeals with the leave of the Court are directed against the order of the Division Bench of Lahore High Court, Multan Bench, Multan dated 04.04.2019 whereby Intra Courts Appeals filed by the appellants were dismissed and the judgment dated 23.01.2019 passed by the learned Single Judge-in-Chambers of said Court was upheld.

3. Briefly stated the facts necessary for disposal of these appeals are that Government of Pakistan launched PSDP funded "National Program for Improvement of Watercourses in Pakistan". The Punjab component (NPIW) during the year 2004-2005 envisaged improvement of watercourses and irrigation schemes. The respondents were appointed in various capacities on contract basis under the NPIW in 2005 initially for a period of four years. Their contract employment period was extended from time to time but stood automatically terminated on closure of the project after completion of its gestation period on 30.06.2012.

4. It appears that subsequently the respondents were appointed afresh on contract basis under the World Bank (IDA) assisted project titled "Punjab Irrigated Agriculture Productivity Improvement Project" (PIPIP) w.e.f. 01.07.2012.

5. During the currency of the project, the respondents filed writ petitions before the High Court seeking regularization of their contractual appointments against project posts. The petitions were disposed of with a direction to the Secretary Agriculture to treat the petitions as representations and decide the same after affording an opportunity of hearing to the respondents.

6. In compliance of the said order, the respondents were heard and after considering the terms and conditions of contract appointments of the respondents and the policy of the Government regarding regularization of service, their representations were rejected. Aggrieved of the aforesaid rejection, the respondents filed constitutional petitions seeking the same relief. These were allowed and Intra Courts Appeals filed by the appellants were dismissed. Hence, these appeals.

7. The learned Additional Advocate General, Punjab submits that the High Court failed to appreciate the true import and meaning of the relevant law and the record relating to regular appointment of contract employees. He maintains that High Court failed to consider that the respondents were appointed for a specific project and their services were liable to be terminated automatically on completion of the project period. He further maintains that the respondents were appointed for specific projects under specific contracts which were time bound, therefore, they were not entitled for regularization. He further maintains that case law relied upon by the High Court is not attracted to the facts and circumstances of the present case has been misinterpreted and the impugned judgments of the High Court are unsustainable.

8. Learned counsel for the respondents, on the other hand, have vehemently argued that the respondents were entitled to seek their regularization on the basis of provisions of Punjab Regularization of Service Act, 2018, which cater for regularization of contract employees. They further maintain that projects had been taken over by the Government. As such, the respondents were working on contract basis against present posts. They further maintain that the respondents performed services for considerable periods of time and as such, have vested rights to be regularized.

9. We have heard the learned counsel for the parties and gone through the record.

10. It is clear and obvious from the record that the respondents were appointed afresh under the World Bank assisted development project w.e.f. 01.07.2012 on contract basis, initially for a period of three years. Under condition XVIII titled "Tenure", the project posts were sanctioned only for the period and the period of employment was to be automatically terminated if not extended on expiry of the contract period. It appears that the gestation period of PIPIP expired on 30.06.2017, therefore, services of the respondents automatically stood terminated. Although the World Bank has provided additional financing to PIPIP from 30.06.2017 till 30.06.2021, on the basis of the terms of conditions of such extension, the contracts of some of the employees were not extended. We do not find any force in the argument of learned counsel for the respondents that they were discriminated against in so far as contracts of some of the contract employees were extended while those of others were not. In our opinion, in so far as it relates to contract employees of the project, it is the prerogative of the project management to determine which employees are required for the extended period and stage of the project for effective implementation of the same. No vested right exists in favour of a particular employee to insist that the management should be directed to retain his services and extend his contract.

11. Another aspect of the matter that appears to have escaped the notice of the High Court are the specific provisions of the contract of appointment. These are reproduced below for ease of reference:- x) Contract appointment shall not confer any right of regular appointment nor shall such appointment be regularized under any circumstances. xviii) The project post being offered has been sanctioned for the period upto the approved project period. The tenure of appointee shall automatically stand terminated on this date, if not extended, for a term as may be prescribed by the Government before the expiry of the contract.

In the presence of clear and unambiguous terms as noted above, we are of the view that the relief sought by the respondents as granted by the High Court could not have been granted in the facts and circumstances of these cases.

12. Another significant aspect of the matter is that the respondents have almost entirely relied upon regularization policy of the government of the Punjab as incorporated in the Punjab Regularization of Service Act, 2018 (to be referred as Act 2018). Perusal of the Act 2018 clearly indicates that term "contract employee" excludes a person appointed to a post in a project, (underlining is ours for emphasis) programme, project management unit, project management office, time bound (one-time) development activity or as work charged employee or an employee on daily wages. The learned Additional Advocate General has been asked to confirm if the respondents were project employees and that the projects had not been taken over by the Government, he has unequivocally confirmed that this is indeed the case and that the respondents have always been project employees and therefore, were not entitled to the benefit of Act 2018.

The Act 2018 deals with employees appointed on contract basis in a Government Department against the posts which are either vacant or likely to become vacated. Further these are sanctioned posts against which appointments made on contract basis and such contracts continue for years on end on the basis of periodic extensions. The Act 2018 envisages the right of regularization of service to a contract employee who has continuously been serving as such for a period not less than four years on the commencement of the Act to be considered for appointment on regular basis if:

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

(b) he is qualified for the post;

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

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

We are, therefore, in no manner of doubt that there is a qualitative and conceptual difference between contract employees covered by provisions of the Punjab Regularization of Service Act, 2018 and contract employee employed in projects who have been specifically excluded from the benefit of the Act 2018 in terms of section 2(c) of the Act. The case law cited on behalf of the respondents and also relied upon by the High Court dealt with and laid down law relating to the first category of contract employees and not to employees of projects who were working on contract basis for specific period of times.

13. We have also noticed that services of some of the respondents had already been terminated at the time of filing of constitutional petitions and directions were issued for their regularization as well. This course of action could not be lawfully adopted in view of the fact that by virtue of termination of their contracts, the matters had become past and closed transactions. We find that the High Court erred in law in allowing the petitions on the basis of Punjab Regularization of Service Act, 2018 and the case law on the subject neither of which was attracted to the facts and circumstances of the instant appeals. Therefore, we find that impugned orders of the High Court are unsustainable. The same are accordingly set aside.

14. Above are the reasons for our short order of even date, which for ease of reference is reproduced below:-

"We have heard the counsel for the parties and also gone through the record of the appeals. For the reasons to be recorded, all these appeals are allowed and the impugned judgment dated 04.04.2019 passed by the Lahore High Court is set aside."

MWA/P-2/SC Appeals allowed.