PLJ 2006 Tr.C. (Services) 322
[Federal Service Tribunal,
Present: Ch. Muhammad Ilyas and Saeed Ahmad Zaidi, Members
SHAH MUHAMMAD and others--Appellants
versus
SECRETARY, M/O COMMUNICATION, GOVT. OF PAKISTAN ISLAMABAD
and 2 others--Respondents
Appeals Nos. 17 to 22 (Q)/CE/2004 & 127(Q)/CE/2005,
decided on 28.4.2006.
(i) Civil Procedure
Code, 1908 (V of 1908)--
----S. 11--Res Judicata--Present appeal was also on same
grounds--Maintainability--Mere modification in prayer would not enable the
appellant to file fresh appeal--Validity--Mere modification in the prayer would
not enable the appellant to file fresh appeal because like that appeal the
present appeal also challenged same order which is apparent from
paragraph--Appeal was dismissed. [P.
331] A
(ii) Service
Tribunals Act, 1973 (LXX of 1973)--
----S. 4--Absence of impugned order--Appeal was not
maintainable--Adverse order--Validity--There was no adverse order which could
be impugned--Circular issued by the respondents in pursuance of the
instructions received from the Government to make their recruitment process
transparent by advertising the posts--Alleged departmental representation/appeal
which the appellants are pressing in service for saving the limitation and to
justify the present appeal, did not even remotely relate to the impugned
circular--There is neither anything adverse in that circular nor does it
specifically relate to any of the appellants--Held: Appeals maintainable. [P. 331] B
(iii) Limitation Act,
1908 (IX of 1908)--
----S. 5--Condonation of delay--Delay in filing appeal was
not explained--Effect--Appeal barred by limitation--Appellant could assail the
circular dated 9.12.2003, the delay in filing the present appeal is suit to be
explained by him as these appeals were filed on 27.9.2004 &
23.7.2004--Application for condonation of delay the appellant has neither
explained the said period of delay nor has he been able to put forth any reason
for which the delay could be condoned--Held: Appeal is, therefore, barred by
limitation. [P. 331] C
(iv) Civil Servants
Act, 1973 (LXXI of 1973)--
----Ss. 2(1)(b) & 7(3)--Service Tribunals Act, 1973--S.
4--Terms and conditions of contract employees were governed by their
contract--Mere efflux of time does not give vested right of regulations or
absorption or appellants--Validity--Terms and conditions of contract employees
were governed by the contract of their employment and that they had no vested
right to absorption or appointment on regular basis and that mere efflux of
time did not make any difference--Held: None of the appellants had any vested
right to regularization or absorption by the respondents.
[Pp.
332 & 333] D & E
2005 SCMR 642, PLD 2002 SC 101, 2003 PLC (CS) 796, PLD 2001
SC 176, 2002 SCMR 82, 2003 SCMR 7, 2005 SCMR 100, 2003 PLC (CS) 796, ref.
Sh. Riazul Haq, Advocate for Appellants in Appeal Nos. 17 to
22(Q)CE/2004.
Mr. M. Shoaib Shaheen, Advocate for Appellant in Appeal No.
127(Q)CE/2005.
Mr. Abdur Rahim Bhatti, and Raja M. Asghar Khan, learned
Counsel for Respondents with DR.
Mr. Muhammad Younus Chaudhry, Director (Legal).
Date of hearing : 16.3.2006.
Judgment
Saeed Ahmed Zaidi, Member.--The above appeals involve common
questions and are, therefore, disposed by this consolidated order the facts of
the Appeal No. 127(Q)/CE/2005 being somewhat different the same is taken up
separately.
Appeal No. 127(Q)CE/2005: Brief facts of the case are that
the Appellant was initially appointed on 5.8.1996 as Inspector B-16 in the
Respondent-National Highway Authority (NHA) but his services were terminated on
16.2.1997. After his termination, he was appointed on daily wages for three
months and then again on contract for different periods. Lastly, he was
appointed on contract for a period of two years commencing from 1.3.2001 vide
order dated 21.2.2002. The said two years period was further extended by
another two years w.e.f. 1.3.2003 and, thus, his contract expired on 28.2.2005.
The appellant contends that on 20.12.2004 he represented to the competent
authority of NHA that his contract should be made for three years instead of
the two years contract given to him vide order dated 21.2.2002. Since the
Respondents did not give any reply, he approached the Balochistan High Court
through a Constitutional Petition No. 62 of 2005. On 24.4.2005 the High Court
admitted the writ petition and also ordered maintenance of status quo. Later,
on 5.4.2005 the Appellant filed Appeal No. 45 (Q)CE/2005 before this Tribunal
challenging the order dated 21.2.2002 whereby his contract period was extended
by only two years, on the ground that the Chairman NHA had approved the
contract for three years. Appellant's prayer in the said appeal was:--
"In view of the above mentioned circumstances, it is
respectfully prayed that the instant appeal may graciously be accepted with
cost, and the impugned order dated 21.2.2002 may please be modified by treating
the period of contract appointment as "three years" with effect from
1.3.2003 instead of two years as per approval of the competent authority."
The said appeal came up for preliminary hearing on
22.7.2005. After hearing the parties and perusing the relevant minutes
concerning approval of Appellant's contract, this Tribunal concluded that--
"..... the extension of appointment contract for two
years was in order as per approval of the competent authority given by him on
21.2.2002 before the issuance of extension letter for two years to the
Appellant and other three officers....The appeal based on that issue alone is
accordingly dismissed in limine....".
However, while dismissing the aforementioned appeal, this
Tribunal made certain observations advising the Respondent-NHA to consider
sympathetically the Appellant's case for regularization. On the day after the
dismissal of the said appeal, the Appellant filed the present appeal on
23.7.2005, in the very first paragraph of which the Appellant states as
follows:--
"....thereafter the Appellant was appointed as A.D. (Engineer)
on contract basis for a period of two years vide order dated 21.2.2002
(Annex-A), which is impugned order in this appeal and is being agitated before
this Hon'ble FST".
After narrating various facts and grounds, the Appellant has
made the following prayer.
"....in view of the above, it is respectfully prayed
that impugned order declining the extension of contract/regularization services
may kindly be set aside and Respondent-NHA may kindly be directed to regularize
the services of the Appellant."
3. We have heard the
learned counsel for the Appellant as well as the counsel for the Respondents
and have also perused the documents and the judgment on which reliance has been
placed by them.
4. The learned
counsel for the Appellant argued that the Appellant has served the Respondents
for well over 10 years and, therefore, has acquired a vested right to
regularization. He further contended that there were posts available with the
Respondents but instead of regularizing the Appellant, they have advertised the
posts and were inducting "out siders" whereas qualified and
experienced persons like the Appellant were available. He further contended
that on the basis of Appellant's satisfactory performance a proposal was moved
in January, 2002 by his superiors for the extension of his contract period by
three years but the Respondents allowed only two years contract.
5. The learned
counsel for the Appellant argued at length on the applicability of the
principles laid down by the Hon'ble Supreme Court in the cases Dr. Anwar Sahto
vs. Federation of Pakistan (PLD 2002 SC 101), M.D. SSGCL vs. Saleem Mustafa
Sheikh (PLD 2001 SC 176), Engineer Nairan Das vs. Federation of Pakistan (2002
SCMR 82) and Abdul Samad vs. Federation of Pakistan (2003 SCMR 7). He also placed
reliance on the judgment of the Hon'ble Supreme Court in Ikram Bari &
others vs. National Bank of
6. The learned counsel
for the Appellant on the strength of above judgments argued that the Appellant
having served the Respondents for a long period of time and periodic extensions
of his contract, he had a "legitimate expectancy" for regularization
of his services. Besides, the Respondents having extended his contract from
time to time there was a "promissory estoppel" and, therefore, the
Respondents could not refuse regularization of Appellant's service.
7. The learned
counsel for the Appellant then argued that as in the aforementioned cases of
SSGCL employees, the Appellant was also discriminated inasmuch as that the
Respondents have regularized a number of employees and have in fact
incorporated Rule 20 in the NHA Employees Service Rules of 1995 notified by the
Federal Government vide SRO No. 70(K)/95 dated 9.3.1995. The sub-rule (2) of
Rule 20 of the said Rules, according to him, provides for regularization of
work-charged employees serving in NHA's various projects. He stressed that not
only there exist precedents for regularization of services of employees who
have been employed on various projects but also the statutory authority for
regularizing them. He further asserted that the said rule authorizes
regularization of even those employees who were working with NHA on deputation
and the Authority accordingly regularized the services of such deputationists.
8. The learned
counsel for the Appellant stated that the aforementioned rulings of the Hon'ble
Supreme Court in the cases of Dr. Anwar Sahto, Narian Das, Saleem, Mustafa
Sheikh and Ghulam Abbas, were attracted in the case of Appellant inasmuch as
that like of Sui Southern Gas Company (which was a party in those cases), NHA
too has service rules for its employees. Similarly, the criteria laid down by
the Hon'ble Supreme Court in National Bank employees case (Ikram Bari &
others vs. NBP) that employees having more than three years service without
breaks in service exceeding 15 days should be regularized, should be applied
for regularization of service of Appellant and other NHA employees.
9. Replying to the
arguments of the learned counsel for the Appellant, the learned counsel for the
Respondents took following preliminary objections:--
(i) the
appeal aws barred by limitations;
(ii) the
Appellant's earlier Appeal No. 45(Q)CE/2005 having been dismissed in limine by
the Tribunal, the present appeal on the same grounds was not maintainable on
the principle of res-judicata. It was contended that the Appellant has, by the
present appeal challenged the order dated 21.2.2002 whereby his contract was
not extended by the desired period of three years which is the same prayer as
in his earlier appeal;
(iii) the
appeal was not maintainable because there was no impugned order adversely
affecting any terms and conditions of the Appellant. One of the two orders
challenged by the Appellant i.e. order dated 21.2.2002 has already been dealt
with in this Tribunals judgment in Appeal No. 45(Q)CE/2005. As far as the other
"so called" impugned order is concerned, it is merely a circular dated
9.12.2003 emphasizing Government's guidelines that appointments in NHA should
be made in a transparent manner which does not specifically concern the
Appellant in any way.
The learned counsel for the respondents also argued the case
on merits and contended that the present appellant was initially appointed on
5.8.1996 but his services were terminated after 6 months on 16.2.1997.
Similarly, there were gaps between his subsequent appointments which were more
than one year and 7 months. He further urged that the appellant's latest
contract expired on 28.2.2005 and thereafter he had ceased to be an employee of
the respondent NHA and that even the extension of one year that he was seeking
in his contract and which was not allowed by this Tribunal (as a consequence of
dismissal of Appeal No. 45(Q)CE/2005), expired on 28.2.2006.
11. The learned
counsel for the respondents took pains to impress that the cases of Sui
Southern Gas Co. Ltd. (SSGCL) employees as well as those of National Bank were
distinguishable from that of the appellant and there was no parallel between
them. It was stated that the cases of SSGCL employees were decided on two
principles. Firstly, the petitioners in those cases were appointed in the
`Management Cadre' of the Company. Under that Company's service rules, such
appointments could only be made on probation and once the probation period had
been successfully completed, such employees became regular employees and,
therefore, had to be absorbed by the Company. In the case of certain low level
employees like Meter Readers the Hon'ble Supreme Court while reviewing its
earlier judgment in the case of Ghulam Abbas vs. Federation of Pakistan
reported as 2003 PLC (CS) 796 held that these employees were appointed for an
indefinite period without specifying the project in which they had been
appointed and were, therefore, in continuous employment of the Company. As far
as the case of National Bank Employees is concerned, the Bank's position was
that the temporary godown staff was employed by them on behalf of the borrowers
and, therefore, they were not employees of the Bank. The Hon'ble Supreme Court
repelled their contention and upheld this Tribunal's judgment whereby it had
laid down the criteria of three years employment without breaks of more than 15
days for regularization. It was argued that the case of appellant did not fall
into any of the categories of the employees dealt with in the above mentioned
cases and, therefore, the aforesaid judgments were not attached in his case.
12. Learned counsel
for the respondents also contended that the appellant was a contract employee
governed by the terms and conditions of his contract and relied upon the recent
judgment of the Hon'ble Supreme Court reported as 2005 SCMR 642 (Government of
Balochistan vs. Dr. Zahida Kakar) wherein it has been held that no vested right
was created in favour of contract employees. He further contended that the
appellant's appointment being under a contract, his terms and conditions were
those which were given in his contract and, therefore, he did not have any
right to absorption or regularization. He argued that by mere efflux of time,
no right to regular appointment was created. He also denied that the
respondents have committed any violation of provincial quota.
13. The respondents
counsel also stated that all the appellants were free to apply for the posts
advertised by the respondents and even offered argued extension in the last
date for making such application. He informed that the following appellants
applied against the posts advertised by the Respondents:
(i) Mr.
Shakirullah for the post of Inspector B-16 and also A.D. (Engineer) B-17 and a
call letter was issued to him for the post of Inspector B-16;
(ii) Mr.
Ahsanullah applied for the post of Inspector B-16 but lacked the basic
qualifications;
(iii) Mr.
Sibghatullah applied for the post of A.D. (
(iv) Mr. Saeed
Ahmed applied for the post of Inspector B-16 and A.D. (Eng) B-17.
14. The learned
counsel for the respondents also relied upon the judgment of this Tribunal in
Appeal No. 773(R)CE/2003 Saqlain Mehdi vs. NHA which has been upheld by the
Hon'ble Supreme Court. The said employee was also a contract employee of NHA
and was held not entitled to regularization/absorption. While considering the
said Saqlain Mehdi CP No. 973 of 2004 the Hon'ble Supreme Court held that:
(i) "...The
petitioner, through this petition, seeks leave to appeal against the judgment
dated 10.2.2004 of the Federal Service Tribunal whereby his appeal for
regularization in service was dismissed.
(ii) Saqlain
Mehdi was appointed in the National Highway Authority on 15.3.2000 on contract
basis for a period of one year which, after short duration, was extended to a
period of three years. The case, alongwith others with recommendation of
committee concerned, was forwarded to the Chairman, National Highway Authority
for regularization but the same was turned down ultimately. His appeal before
the Tribunal also failed.
(iii) Not only
that the petitioner had no vested right in claiming regularization of his
contract job and not only that it was rightly turned down but, at present, the
services of the petitioner stand terminated on the expiry of contract in
dispute. The petitioner being no more in service, the instant petition has
become infructuous and is dismissed accordingly. Leave to appeal
refused..."
Appeals Nos. 17 to 22(Q)CE/2004.
15. The appellants
and respondents counsel made the same arguments as have been recorded above
while discussing Appeal No. 127(Q)CE/2005. The difference between the said
appeal and present appeals is in the periods of employment and nature of
employment of various employees. The Appellants in Appeals Nos. 17 to 22
(Q)CE/2004 were employed by NHA for following periods and jobs mentioned
against their names:
S. Appeal No. Name Designation Contract/daily Contract
No. wages
period expired on
1. 17(Q)CE/04 Shah Muhammad Inspector
(BS-16) 17.7.96 to 16.8.98 Terminated 14.10.96
21.2.98
to 20.5.98
10.8.99 to
20.6.2000 (Extended for
21.6.00
to 20.6.02 further two years
21.6.00
to 20.6.04 i.e. 19.6.2006)
2. 18(Q)CE/04 Shukrullah AD
(Engr) (BS-17) 14.1.02 to
13.1.04 13.1.2004
3. 19(Q)CE/04 Ehsanullah Sub-Engr.
(BS-11) 25.4.96 to 24.4.98 Terminated 14.12.96
5.5.98
to 4.8.98
29.1.2000-6
month
28.5.00
to 27.5.01
4.4.02
to 3.4.04 3.4.2004
4. 20(Q)CE/03 Shoukar Ali Sub-Engr.
(BS-11) 22.4.96 to 21.4.98 Terminated 14.12.96
21.9.98
for 3 months
Inspector
(BS-16) 12.10.99 to 11.10.2000 31.4.2004 (Contract
18.4.2000
to 17.4.01 extended for
further
1.5.01
to 31.4.04 three years)
5. 21(Q)CE/04 Sibghatullah Ad
(Engr) (B-17) 19.12.95 to 18.12.98 1.5.2004
2.12.99
to 1.12.2000 (Extended
contract
2.5.2000
to 1.5.02 for further two
2.5.02
to 1.5.2004 years)
6. 22(Q)CE/04 M. Saeed Ahmed Inspector
(BS-16) 8.9.96 to 7.9.98 Terminated 14.12.96
AD
(Engr) (BS-17) 9.3.02 to
8.3.04 8.3.2004
7. 127(Q)CE/05 Shahzad Sarwar Inspector
(BS-16) 8.8.96 to 7.8.98 Terminated 16.2.97
25.9.98
to 24.12.98 28.2.2005
AD
(Engr) (BS-17) 1.3.01 to
28.2.03 (Extended for
1.3.03.
to 28.2.2005 further two
years)
16. We have
considered the arguments of both the sides. We would first like
to take up
the preliminary objections raised by the Respondents
regarding maintainability of the present appeals. The first objection taken by
them is with regard to non-maintainability of Appeal No. 127 (Q)CE/2005
vis-a-vis dismissal of Appeal No. 45 (Q)CE/2005 dismissed on 22.3.2005 as it
was also filed on the same grounds. We find that in that appeal the Appellant
had agitated against the order whereby he was not granted extension of 3 years
in his contract period. We find force in the argument of the learned counsel for
the Respondents. A mere modification in the prayer would not enable the
Appellant to file a fresh appeal because like that appeal the present appeal
also challenges the same order of 21.2.2002 which is apparent from paragraph-1
Appeal No. 127(Q)CE/2005. The issue was considered and adjudicated and the
Appellant's appeal was dismissed.
17. The principle of
resjudicata, therefore is attracted in this case and we find that the appeal is
not maintainable on this ground as well. The second objection taken by the
Respondents in respect of all the appeals is that the there was no adverse
order which could be impugned. We find force in this argument also. The so
called order dated 9.12.2003, is in fact a circular issued by the Respondents
in pursuance of the instructions received from the Government to make their
recruitment process transparent by advertising the posts etc. The alleged
departmental representation/appeal which the Appellants are pressing in service
for saving the limitation and to justify the present appeal, did not even
remotely relate to the impugned circular. We also find force in the argument of
the learned counsel for the Respondents that there is neither anything adverse
in that circular nor does it specifically relate to any of the Appellants. The
said circular merely reiterates Government's policy that recruitment process be
transparent and according to the rules so that everyone gets an equal
opportunity. The said circular has nothing to do with the terms and conditions
of appellant consequently; on this ground too the appeals are not maintainable.
18. We have also
perused the application for condonation of delay. We find that even if it be
accepted that the Appellant could assail the circular dated 9.12.2003, the
delay in filing the present appeal is still to be explained by him as these
appeals were filed on 27.9.2004 & 23.7.2005. In the Appellant's application
for condonation of delay the Appellant has neither explained the said period of
delay nor has he been able to put forth any reason for which the delay could be
condoned. The appeal is, therefore, barred by limitation also.
19. We have
considered the Appellant's arguments on the merits of the case as well. He
mainly relied on the aforementioned rulings in the cases of SSGCL and National
Bank employees. We find that the question of rights of contract employees for
absorption on regular basis came up for adjudication. This question, however,
came up for consideration in the case of Dr. Anwar Ali Sahto vs. SSGCL
(reported as PLD 2002 SC 101) wherein it was held as follows:--
"...where the grievance flows from a contract of
service not governed by any statutory rules or departmental rules having the
force of law, the jurisdiction of the Tribunal is confined to examination of
the grievance of the dismissed/terminated employee on the touchstone of the
terms and conditions of the contract of service/letter of appointment. If in a
given case the letter of appointment envisages termination of an employee on
one month's notice the Tribunal has no jurisdiction to alter the terms and
conditions mutually agreed upon between the employer and the employee while
exercising its jurisdiction in terms of Section 2-A ibid....."
20. The
aforementioned judgment was reviewed by the Hon'ble Supreme Court in M.D. Sui
Southern Gas Ltd. vs. Ghulam Abbas 2003 PLC (CS) 796 and modified on the ground
of discrimination. The Supreme Court held that the cases of doctor/petitioners
were of the same nature as the petitioner's in Saleem Mustafa Sheikh vs. SSGCL,
Narain Das vs. SSGCL and Abdul Samad vs. Federation of Pakistan and, therefore,
the said judgment was applicable to the petitioners (Dr. Anwar Ali Sahto &
others) cases also because the latter were also similarly placed. However,
while reviewing the said judgment the Hon'ble Supreme Court, did not in any way
modify the aforementioned rule laid down by it in respect of contract employees
in Anwar Ali Shato PLD 2002 Supreme Court 101. We find that Hon'ble Supreme
Court has consistently held that the terms and conditions contract employees
were governed by the contracts of their employment and that they had no vested
right to absorption or appointment on regular basis and that mere efflux of
time did not make any difference. In the recent judgment in Dr. Zahida Kakar case
reported as 2005 SCMR 642, the Hon'ble Supreme Court has held that:--
"...such appointment terminates on the expiry of
contract period or any extended period on the choice of employer or appointing
authority, Prima facie such appointment does not create any vested right."
21. We have also
perused this Tribunals judgments in Appeal No. 773(R)CE/2003 Saqlain
Mehdi vs. NHA
and the Hon'ble Supreme Courts
order in holding this Tribunal's judgment, and find tha the ratio of the case
is equally applicable to these appeals. In view of the abovementioned judgments
of the Supreme Court, we have little hesitation in holding that none of the
Appellants had any vested right to regularization or absorption by the
Respondents. The appeals are, therefore, without any merit and are dismissed.
22. There is no order
as to costs. Parties be informed accordingly.
(Rao Farid ul Haq Khan) Appeals
dismissed.