Pakistan Case LawFAWAD SHAFQAT Versus GOVERNMENT OF KHYBER PAKHTUNKHWA, through Chief Secretary Peshawar
The petitioners, contractual employees in a project under the Directorate of Tourist Services, Khyber Pakhtunkhwa, filed these constitutional petitions seeking regularization of their services, relying on a general Provincial Cabinet decision directing the regularization of project employees. The core legal question is whether the court can issue a writ of mandamus directing the government to regularize contractual project employees based on a general cabinet policy, absent specific statutory backing. The court held that regularization is not a vested right and cannot be claimed merely on the basis of a general cabinet directive. The court emphasized that regularization requires a specific statutory framework or legal backing, and absent such a framework or formal approval by the relevant authorities, the judiciary cannot compel the government to regularize project employees. Consequently, the court dismissed the petitions, finding no merit in the claims. The court established the principle that employees of a government department or project cannot claim regularization as a matter of right, and in the absence of a specific statutory framework, courts lack the jurisdiction to impose an obligation on the government to regularize such contractual services.
- Can contractual project employees claim regularization as a matter of right based on a general cabinet decision?
- Does a general cabinet decision regarding regularization create an enforceable legal right for project employees without specific statutory backing?
- Does the court have the jurisdiction to direct the government to regularize contractual employees in the absence of a statutory framework?
SYED ARSHAD ALI, J.--- This consolidated judgment shall dispose of the instant Writ Petition as well as connected Writ Petition No. 1021-P/2023 as essentially adjudication of a common question of law and facts are involved in both petitions.
2.The petitioners, who were appointed on a contract basis by the Director General, Directorate of Tourist Service Khyber Pakhtunkhwa in an ADP scheme No. 1122 "Capacity Building of Hospitality Industry and Tour Operators Khyber Pakhtunkhwa", have filed the instant constitutional petition praying that:--
"On acceptance of the instant writ petition an appropriate writ may please be issued declaring that the petitioners were validly appointed against their respective posts in the project of Directorate General of Tourist Services namely "Capacity building of Hospitality Industry and Tour operators" on contract basis, and holding the prescribed qualifications/experience since their appointments and performing their duties with the best of their abilities and without any complaint whatsoever, treating the petitioners as contract and not a regular employees of the respondent department and repeatedly depriving them from the favour of regularization by not treating them at par with similarly placed contractual employees tantamount to high discrimination and such cherry picking policy of the respondents may please be declared as illegal, unlawful and without lawful authority and of no legal effect, or any other remedy not specifically asked for and deem proper in the circumstances of the case may also be allowed".
3.It is evident from the record that, through the Khyber Pakhtunkhwa Tourism Act, 2019 ("the Act, 2019") , a legal framework to promote culture and tourism in the Province of Khyber Pakhtunkhwa was statutorily notified and an authority was established under section 6 of the Act, 2019 known as Khyber Pakhtunkhwa and Tourism Authority. However, the petitioners' services were hired in a Project with certain TORs and for a specific period. It is an admitted fact that the petitioners are still performing their duties in the Project.
4.The essential grievance of the petitioners stems from the decision of 69th meeting of Provincial Cabinet held on 12.04.2022. The said decision is reproduced as under- i In order to solve the problem of the Department regarding provision of security vehicles to their respective ministers, a policy for purchase of vehicles in the Departments pool should be devised.
Pursuant to the said decision, various departments of the Provincial Government had initiated the process of regularization of the contract employees, and since then, the government employees in various departments were regularized, but through an Act of the Provincial Assembly. Regarding the status of the Project where the petitioners were working, the Director General, being the Project Director, has also initiated an initiative with the parent department through various correspondence wherein it is stated that the Project is perpetual in nature and the employees of the Project could fulfil all the required criteria for the regularization of the project employees with the relevant qualification and experience as advertised. Therefore, the Project is required to be regularized. The Director General, through a letter dated 30.06.2022, has also prepared a working paper to the parent department for the regularisation of the services of the employees. The department has also convened a meeting headed by Muhammad Shoaib, Additional Secretary-II, in the chair regarding the regularization of the services of the petitioners; however, so far, the matter could not be taken up with the Finance Department of the Province. In this view of the matter, the petitioners have filed a constitutional petition seeking direction to the Government for the regularization of their services.
5.The respondents contest the said assertions of the petitioners through their comments wherein they have stated that the Act, 2019 does not empower the Authority or its Board of Directors to regularize the contractual employees of Projects of the Directorate of Tourist Services. Therefore, it is not a matter of reluctance, rather it is because the Act, 2019 provides for no such allowance or possibility.
5. Messrs Ziaur Rehman Tajik and Faheemullah Akhunzada, the worthy counsels representing the petitioners, have thoroughly argued the case. It was their contention that despite the fact that the petitioners are working in the Project but their services are still required by the respondents and as such they are performing their duties and in view of the decision of the Cabinet the respondents were required to regularize the petitioners as the decision of the cabinet in terms of Rule 25(2) of Khyber Pakhtunkhwa Government Rule of Business, 1985 is binding on the department. In support of their contention, the petitioners have placed reliance on the cases of Chairman, Minimum Wage Board, Peshawar and another v. Fayyaz Khan Khattak (1999 SCMR 1004), Nizamuddin and another v. Civil Aviation Authority and 2 others (1999 SCMR 467) Government of Khyber Pakhtunkhwa through Secy. Agriculture and others v. Adnanullah (2016 SCMR 1375) Syeda Humaira Sultana v. Government of Khyber Pakhtunkhwa through Chief Secretary and 3 others (2021 PLC (C.S.) 1074) Abdul Wahab and others v. Government of KP through its Chief Secretary, Peshawar and others (Writ Petition No. 4272-P/2023 decided on 10.04.2025) Syed Muhammad Shoaib and others v. Federation of Pakistan and others (C.Ps. Nos. 5176/2013 and 151/2014 dated 15.12.2016 of the worthy High Court of Sindh at Karachi), Muhammad Ayub and others v. Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and others (W.P. No. 2737-P/2013 dated 22.01.2015) and Chairman NADRA, NADRA Headquarter, Islamabad and others v. Abdul Majeed and another (2025 SCMR 612).
6.On the other hand, the worthy AAG and the learned counsel representing the respondents have stated that the cabinet decision was general in nature and only those employees could be regularized pursuant to the decision of the cabinet, whose regularization was required in the best interest of the public. The Project of the petitioners was never identified by the cabinet to be regularized; therefore, the petitioners have no right to regularization. In support of their contention, they have placed reliance on the cases of Mian Azam Waheed and 2 others v. The Collector of Customs through Additional Collector of Customs, Karachi (2023 SCMR 1247), Jameel Qadir and another v. Government of Balochistan, Local Government, Rural Development and Agrovilles Department, Quetta through Secretary and others (2023 SCMR 1919), Government of Khyber Pakhtunkhwa, Workers Welfare Board through Chairman v. Raheel Ali Gohar and others (2020 SCMR 2068), Deputy Director Finance and Administration FATA through Additional Chief Secretary FATA, Peshawar and others v. Dr. Lal Madan and others (2022 SCMR 566), Government of Khyber Pakhtunkhwa through Secretary Forest, Peshawar and others v. Sher Aman and others (2022 SCMR 406), Pakistan Telecommunication Company Ltd. v. Muhammad Samiullah (2021 SCMR 998), Province of Punjab through Secretary Communication and Works Department, Lahore through Chief Engineer (North/Central) Punjab Highway Department, Lahore v. Yasir Majeed Sheikh and others (2021 SCMR 624), Worker Welfare Board through its Secretary, Peshawar v. Shaukatullah (Civil Appeals Nos. 654 and 655 of 2020 decided on 23.11.2020), Government of Khyber Pakhtunkhwa through Secretary Labour Chairman Workers Welfare Board, Khyber Pakhtunkhwa Civil Secretariat, Peshawar v. Ziaur Rehman and others (Appeals Nos. 656-661 of 2020 decided on 13.11.2020), Worker Welfare Board, Khyber Pakhtunkhwa v. Nematullah and others (Civil Petitions Nos. 4504 to 4576 and 4589 of 2017 decided on 08.01.2018). Zuffiqar Ahmad v. Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and others (W.P. No. 1116-A/2023 decided on 29.02.2024), Nadeem Ahmed and others v. Government of Khyber Pakhtunkhwa, through the Secretary, Sports, Tourism Archaeology, Museums and Youth Affairs Department, Peshawar and others (W.P. No. 4397-P/2024 decided on 10.09.2024).
7.The assertions of the learned counsel for the petitioners have some weight. Although an Authority was established under the Act of 2019 to regulate the affairs of the Directorate of Tourism Services, a good number of civil servants who had been serving in the Tourism Department prior to the Authority's creation were declared surplus. This decision was made despite the fact that the petitioners continue to perform duties aligned with their designated positions, clearly indicating that their services are still required by the department. However, the law is by now settled that the employees of any department or project cannot claim regularization as a matter of right. Regularization requires a statutory or legal backing and in the absence of such a framework, courts cannot impose any obligation on the Government. Government of the Punjab through Chief Secretary, Punjab, Lahore and another v. Zaka Ullah and others (2025 SCMR 443), Waqar Ahmed and others v. The Federation of Pakistan through Cabinet Secretariat, Establishment Division, Islamabad and others (2024 SCMR 1877), National Database and Registration Authority (NADRA) through Chairman, Islamabad and others v. Jawad Khan and 2 others (2023 SCMR 1381) . In the present cases, the petitioners cannot claim regularization based on the Cabinet's decision, as it was general in nature. In appropriate cases, regularization in certain departments was carried out through statutory intervention. However, in the present cases, there is no summary available on record indicating that the petitioners' cases were ever placed before the Finance Division or the Cabinet for consideration of regularization of their services.
8.In view of our jurisdictional contour, we cannot direct the respondents/Government for the regularization of the portioners. Resultantly, we find no merit in these petitions, which are accordingly dismissed.
MQ/208/P Petition dismissed.
Judges on this bench
- Syed Arshad Ali451 judgments
- Dr. Khurshid Iqbal172 judgments