regularization of contractual employees cannot be done in the absence of specific laws Supreme court case law.

regularization of contractual employees cannot be done in the absence of specific laws Supreme court case law

کنٹریکٹ ملازمین کی ریگولرائزیشن۔

سپریم کورٹ آف پاکستان کا فیصلہ

(یونیورسٹی آف ایگریکلچر پشاور کے کنٹریکٹ ملازمین کی مستقلی سے متعلق)

سپریم کورٹ آف پاکستان نے اپنے فیصلے میں پشاور ہائیکورٹ کے ان احکامات کو کالعدم قرار دے دیا جن کے ذریعے یونیورسٹی آف ایگریکلچر پشاور کے کنٹریکٹ ملازمین کو مستقل کرنے کی ہدایات دی گئی تھیں۔ عدالتِ عظمیٰ کے اہم قانونی نکات درج ذیل ہیں:

1۔ مستقلی کے لیے قانونی جواز کی شرط

سپریم کورٹ نے واضح طور پر قرار دیا کہ کنٹریکٹ ملازمین کی مستقلی اس وقت تک ممکن نہیں جب تک اس کے لیے کوئی واضح قانون، قواعد یا ادارہ جاتی پالیسی موجود نہ ہو۔

عدالت کے مطابق ملازمت کی مستقلی صرف عدالتی احکامات کے ذریعے نہیں بلکہ واضح قانونی فریم ورک، شفاف طریقہ کار اور میرٹ کے اصولوں کے تحت ہی ہو سکتی ہے۔

2۔ سابقہ تاریخ سے مستقلی (Ante-dated Regularization) کی ممانعت

عدالتِ عظمیٰ نے قرار دیا کہ ملازمت کی مستقلی سابقہ تاریخ سے نہیں دی جا سکتی جب تک قانون اس کی صریح اجازت نہ دے۔

مستقلی کا اطلاق صرف حکم نامہ جاری ہونے کی تاریخ سے آگے ہو سکتا ہے، نہ کہ ابتدائی تقرری کی تاریخ سے۔

3۔ پالیسی معاملات میں عدالتی مداخلت کی حدود

سپریم کورٹ نے ادارہ جاتی خودمختاری (Institutional Autonomy) کے اصول کو برقرار رکھتے ہوئے کہا کہ

عدالتیں تعلیمی اداروں کی پالیسی میں مداخلت نہیں کر سکتیں، الا یہ کہ وہ پالیسی آئینِ پاکستان میں دیے گئے بنیادی حقوق سے متصادم ہو۔

4۔ پشاور ہائیکورٹ کے فیصلوں کا خاتمہ

سپریم کورٹ نے پشاور ہائیکورٹ کے ان تمام فیصلوں کو کالعدم قرار دیا جن کے تحت یونیورسٹی کو کنٹریکٹ ملازمین کی مستقلی کا حکم دیا گیا تھا۔

عدالت نے درخواستوں کو اپیلوں میں تبدیل کر کے منظور کر لیا۔

خلاصۂ فیصلہ

یہ فیصلہ اس اصول کو مضبوط کرتا ہے کہ:

کنٹریکٹ ملازمین کی مستقلی بغیر قانون یا پالیسی کے ممکن نہیں

مستقلی ماضی سے لاگو نہیں ہو سکتی

عدالتی دائرہ اختیار اداروں کی پالیسی تک محدود ہے

تعلیمی اداروں کی خودمختاری کو آئینی تحفظ حاصل ہے

The Supreme Court of Pakistan, in its judgment, overturned the decisions of the Peshawar High Court regarding the regularization of contractual employees at the University of Agriculture, Peshawar. Here are the key decisions made by the Supreme Court:

1. Legal Basis for Regularization:

The Supreme Court emphasized that regularization of contractual employees cannot be done in the absence of specific laws, rules, or institutional policies permitting such regularization. It ruled that regularization must be supported by a clear legal framework or policy, ensuring fairness, transparency, and adherence to meritocratic principles.

2. Ante-date Regularization:

The Court clarified that regularization cannot have retrospective effect (ante-date regularization) unless authorized by law. It held that regularization orders must take effect prospectively from the date of the order, not from the initial appointment date of the employee.

3. Judicial Interference in Policy Matters:

The Court underscored the principle of institutional autonomy, stating that courts should not interfere in the policy decisions of educational institutions unless those policies violate fundamental rights guaranteed by the Constitution.

4. Setting Aside High Court Judgments:

The Supreme Court set aside the judgments of the Peshawar High Court that had directed the university to regularize the contractual employees. It converted the petitions into appeals and allowed them accordingly.

In essence, the Supreme Court's decision reinforced the requirement for legal backing and institutional policy in the regularization of contractual employees, while also emphasizing the limits of judicial intervention in internal policy matters of educational institutions.

Must read Judgement

IN THE SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

Present:

Mr. Justice Syed Mansoor Ali Shah

Mr. Justice Jamal Khan Mandokhail

Mr. Justice Athar Minallah

C.Ps No.2270, 4783 and 4784 of 2019, C.Ps No.1228 to 1230, 1295

to 1298, 1555, 1781 to 1783, 1807, 456-P and 496-P of 2020,

C.P.5871/2021, C.P.5872/2021, C.P.2291/2022, C.P.2782/2022,

C.P.3811/2022 to C.P.3813/2022 and C.P.1438/2019.

(Against the order(s)/judgment(s) of Peshawar High Court Peshawar

dated 02.04.2019, passed in W.P. No.956-P of 2018.

dated 11.02.2020, passed in W.P. No.3799-P/2019

dated 13.02.2020, passed in W.P. No.4433-P/2019

dated 13.02.2020, passed in W.P. no.4088-P/2019

dated 06.02.2020, passed in W.P. No.3253-P/2019

dated 06.02.2020, passed in W.P. No.4507-P/2019

dated 06.02.2020, passed in W.P. No.1568-P/2019

dated 06.02.2020, passed in W.P. No.1512-P/2019

dated 12.03.2020, passed in W.P. No.3091-P/2019

dated 12.03.2020, passed in W.P. No.3582-P/2019

dated 12.03.2020, passed in W.P. No.3583-P/2019

dated 12.03.2020, passed in W.P. No.5318-P/2019

dated 12.03.2020, passed in W.P. No.5893-P/2018

dated 04.06.2020, passed in W.P. No.4875-P/2019

dated 29.06.2020, passed in W.P. No.3538-P/2019

dated 23.09.2021, passed in W.P. No.1762-P/2020

dated 14.10.2021, passed in W.P. No.3788-P/2020

dated 10.05.2022, passed in W.P. No.2699-P/2020

dated 01.06.2022, passed in W.P. No.1561-P/2021

dated 12.03.2020, passed in W.P. no.4526-P/2019

dated 12.03.2020, passed in W.P. No.4729-P/2019

dated 12.03.2020, passed in W.P. No.3679-P/2019

dated 07.03.2019, passed in W.P. No.3125-P/2017)

Vice Chancellor Agriculture University, Peshawar, etc. (In all cases)

…….Petitioner(s)

Versus

Muhammad Shafiq, etc. (In CP 2270/2019)

Malik Fareed Ullah Awan (In CP 1228/2019)

Wakeel Khan, etc. (In CP 1230/2019)

Tahir Majeed, etc. (In CP 1295/2019)

Neem Jan, etc. (In CP 1296/2019)

Abidullah (In CP 1297/2019)

Arbab Afzaal Hussain, etc. (In CP 1298/2019)

Aamir Hussain, etc. (In CP 1555/2019)

Aamir Hussain, etc. (In CP 1781/2019)

Amjad Ali, etc. (In CP 1782/2019)

Irfan Ullah, etc. (In CP 1783/2019)

Muhammad Naeem, etc. (In CP 1807/2019)

C.P. No.2270 of 2019, etc. 2

Hazrat Ali, etc. (In CP 496-P/2019)

Javid Iqbal, etc. (In 5871/2019)

Rooh ullah, etc. (In CP 5872/2019)

Shahzad Khan, etc. (In CP 2291/2019)

Muhammad Nazir, etc. (In CP 2782/2019)

Habib Ullah Tariq, etc. (In CP 3811/2019)

Muhammad Zeeshan Ali Shah (In CP 3812/2019)

Abdul Qadeer (In CP 3813/2019)

Fazli Mahboob, etc. (In CP 1438/2019)

….Respondent(s)

For the Petitioner(s): Mr. Naveed Akhtar, ASC.

a/w Jahan Bakht, V.C.

Muhammad Rizwan, Registar

For the Respondent(s): Ms. Tahmina Ambreen, ASC

Hafiz S.A. Rehman, Sr. ASC

Mr. Shahid Saleem Khel, ASC

Mr. Jehanzeb Mahsud, ASC

Mr. Niaz Wali Khan, ASC

Mr. Ijaz Ahmad, ASC

Mr. Muhammad Asif Yousafzai, ASC

Mr. Zartaj Anwar, ASC

Mr. Nasrum Minallah, ASC

Mr. Waseem ud Din Khattak, ASC

Mr. Amjad Ali, ASC

Mr. Khaled Rehman, ASC

Syed Rifaqat Hussain Shah, AOR

Mr. Wakeel Khan-in-person

Mr. Shafique, in person

Mr. Sultan Mazhar Sher, Addl. AG KPK

Research Assistance: Umer A. Ranjha, Law Clerk.

Date of hearing: 17.01.2024

…

JUDGMENT

Syed Mansoor Ali Shah, J. –

Civil Petition No.2270/2019: This consolidated judgment shall decide

the instant petition as well as, petitions mentioned in Schedule A to this

judgment as common questions of law and facts arise in these cases.

2. The brief facts giving rise to the instant petition is that a set

of contractual employees (hereinafter referred to as the “Respondents”)

joined the University of Agriculture, Peshawar (“Petitioner”) as Class IV

employees from 2009 to 2012. Aggrieved of the fact that the

Respondents were not considered as permanent employees despite

serving the Petitioner University for seven (07) to eight (08) years, they

C.P. No.2270 of 2019, etc. 3

invoked the constitutional jurisdiction of the Peshawar High Court,

Peshawar under Article 199 of the Constitution of the Islamic Republic

of Pakistan, 1973 (the “Constitution”) vide W.P. No. 965-P/2013

praying for their regularization of service and grant of all back benefits.

The High Court held that as some of the Respondents having a similar

nature of job, have already been regularized, the Respondents were also

entitled to be dealt with accordingly. In doing so, the High Court

disposed the petition vide judgment dated 02.04.2019 (“Impugned

Judgment”) directing the Petitioners to consider the Respondents

strictly in accordance with law and in line with the earlier judgments of

the High Court. Hence, the present appeal by leave of this Court.

3. The following set of cases before us include five categories

of employees; (i) Category-A: This includes the Respondents who were

contractually employed and subsequently regularized by the High

Court. The said regularization has been challenged; (ii) Category-B: In

this case, the Respondents were appointed on regular basis after

advertisement and in compliance with the due process. Their contention

is that they be given regularization from the date of their initial

appointment when they were first appointed on contractual basis

(“ante-date regularization”); (iii) Category C: This category includes

those Respondents who were regularized through Court orders with

immediate effect, which were not challenged by the Petitioner. Having

been regularized, the Respondents have once again approached the

High Court to seek ante-date regularization, which was granted to them,

hence the challenge ; Category D: This includes the Respondents who

simply seek ante-date regularization. Schedule-A to this judgment lists

the cases falling in each of the aforesaid categories.

4. We have heard the learned counsel for the parties perused

the record with their able assistance. The questions to be addressed by

this Court are two-fold; firstly, whether the contractual employees could

be regularized in the absence of any law or policy allowing such

regularizartion; secondly, whether the Respondents who stood

regularized through earlier court orders, which remain unchallenged to

date, seek ante-date regularization i.e., from the date of their initial

appointment on contract basis.

5. In order to understand the issue at hand, it is expedient to

understand the regime of regularization which in essence means to

C.P. No.2270 of 2019, etc. 4

make “regular” or “permanent.” Once the contractual services are

regularized, the appointment can become substantive or permanent and

cannot be terminated without due process. Therefore, the regularization

of a contractual employee is a fresh appointment into the stream of

regular appointment.1 The differences between a contractual employee

and a regular employee is material for both the employee and the

employer and, inter alia, include: (i) Duration of employment; a

contractual employee is usually employed for a specific period or task,

with a set end date. (ii) Benefits; contractual employee generally do not

receive the same benefits or statutory protection as a regular employee.

(iii) Scope of work; contractual employee is engaged for specific project

or task. (iv) Flexibility; contractual employee often has more flexibility in

terms of work hours and location. (v) Cost Considerations: a contractual

employee can be less costly in the short term as it doesn’t require

benefits and other long-term financial commitments. (vi) Risk

Management; hiring regular employee is often a long-term commitment,

so organizations opt for contractual workers to manage risks associated

with fluctuating market demands. Therefore, any institution opting for

regularization of its employees must be either mandated by law or must

carry out regularization through a well-thought out policy of the

institution concerned laying down the criteria and the process for

regularization; performance evaluation of the contractual employee

must be assessed to determine if the employee meets the standards

required for a regular position; there must be availability of positions

that match the skills and experience of the contractual employee; the

budgetary considerations and financial implication of a regular

employee be weighed and considered. There must be a fair assessment

of the employee’s qualifications, performance and merit, so as to ensure

only competent and committed employees be granted permanent

employment status.2 Regularization is, therefore, not a ritualistic and

mechanical exercise. It requires fresh assessment of the candidature of

the contractual employee by the competent authority before he is made

a regular employee as any such act carries long term financial

implications on the institution concerned. The process of regularization

is grounded in principles of fairness, openness, transparency, non-

Province of Punjab through Secretary, Livestock and Dairy Development, Government of Punjab v. Dr. Javed

Iqbal (2021 SCMR 767).

2 Hadayat Ullah v. Federation of Pakistan (2022 SCMR 1691); Syed Mubashir Raza Jaffri v. Employees of Old Age

Benefits Institution (2014 PLC 428).

C.P. No.2270 of 2019, etc. 5

discrimination and public interest.3 Regularization therefore has a close

nexus with institutional policy and autonomy.

6. It is well settled that there is no vested right to seek

regularization for employees hired on contractual basis unless there is

any legal or statutory basis for the same.4 The process of regularization

requires backing of any law, rules or policy.5 It should adhere to the

relevant statutory provisions and government policies.6 In the absence

of any of the same, a contractual employee cannot claim regularization.

Applying the principles settled by this Court to the proposition at hand,

it becomes clear that the Respondents have no automatic right to be

regularized unless the same has specifically been provided for in law or

policy which in the present case is not available. Any regularization

without the backing of law offends the principles of fairness,

transparency and meritocracy and that too at the expense of public

exchequer. The Impugned Judgment has also erred in law by failing to

take into account that where a contractual employee wishes to be

regularized, he must demonstrate statutory basis for such a claim, in

the absence of which, relief cannot be granted solely on the principle of

“similarly placed persons.7” Article 25 of the Constitution has no

application to a claim based upon other unlawful acts and illegalities. It

comes into operation when some persons are granted a benefit in

accordance with law but others, similarly placed and in similar

circumstances, are denied that benefit. But where a person gains, or

is granted, a benefit illegally, other persons cannot plead, nor can the

court accept such a plea, that the same benefit must be allowed to

them also in violation of law.8 Thus, the ground of discrimination also

does not stand, because in order to establish discrimination it is

important to show that the earlier act was based on law and policy,

which has not been the case here. Thus, with respect to the first

question raised, we are of the view that the regularization of the

Ikhlaq Ahmed v. Chief Secretary, Punjab (2018 SCMR 1120).

4 Faraz Ahmed v. Federation of Pakistan (2022 PLC 198); Government of Khyber Pakhtunkhwa v. Sher Aman and

others (2022 SCMR 406); Vice Chancellor, Bacha Khan University Charsadda, Khyber Pakhtunkhwa v. Tanveer

Ahmad (2022 PLC (C.S.) 85; Pakistan Telecommunciation Company Ltd. v. Muhammad Samiullah (2021 SCMR

998); Messrs Sui Northern Gas Company Ltd. v. Zeeshan Usmani (2021 SCMR 609); Khushal Khan Khattak

University v. Jabran Ali Khan (2021 SCMR 977); Pakistan Telecommunication Company Ltd. v. Muhammad

Samiullah (2021 SCMR 998); Government of Khyber Pakhtunkhwa v. Saeed-Ul-Hassan (2021 SCMR 1376);

Muzaffar Khan v. Government of Pakistan (2013 SCMR 304); Government of Balochistan, Department of Health v.

Dr. Zahid Kakar (2005 SCMR 642).

5 Government of Khyber Pakhtunkhwa v. Sher Aman and others (2022 SCMR 406); Government of Khyber

Pakhtunkhwa, Workers Welfare Board v. Raheel Ali Gohar (2020 SCMR 2068.

6 Government of Khyber Pakhtunkhwa v. Intizar Ali (2022 SCMR 472); Pir Imran Sajid v. Managing Director

Telephone Industries of Pakistan (2015 SCMR 1257).

Deputy Director Finance and Administration FATA v. Dr. Lal Marjan (2022 SCMR 566).

Muhammad Yasin v. D.G. Pakistan, Post Office (2023 SCMR 394).

C.P. No.2270 of 2019, etc. 6

Respondents cannot take place without the backing of any law, rule or

policy and without an open and transparent process based on an

objective cirteria, as discussed above.

7. At this juncture, it is underlined that the process of

regularization is a policy matter and the prerogative of the Executive

which cannot be ordinarily interfered with by the Courts9 especially in

the absence of any such policy. It does not befit the courts to design or

formulate policy for any institutuion, they can, however, judicially

review a policy if it is in violation of the fundamental rights guaranteed

under the Constitution. The wisdom behind non-interference of courts

in policy matters is based on the concept of institutional autonomy

which is defined as “a degree of self-governance, necessary for effective

decision making by institutions of higher education regarding their

academic work, standards, management, and related activities…”10

Institututional autonomy is usually determined by the level of capability

and the right of an institution to decide its course of action about

institutional policy, planning, financial and staff management,

compensation, students, and academic freedom, without interference

from outside authorities.11 The autonomy of public institutions is not

just a matter of administrative convenience, but a fundamental

requirement for the effective functioning of a democratic society, as

public sector organizations are guardians of the public interest.

Democracy, human rights and rule of law cannot become and remain a

reality unless higher education institutions and staff and students,

enjoy academic freedom and institutional autonomy.12 More recently,

the concept has in its longstanding and idealized form been well

captured in the Magna Charta Universaitum 2020 that states

“…intellectual and moral autonomy is the hallmark of any university

and a precondition of its responsibilities to society.13”

8. Courts must sparingly interfere in the internal governance

and affairs of educational institutions i.e., contractual employments.14

9 Waqas Aslam v. Lahore Electric Supply Company Limited (2023 SCMR 549); Province of Punjab through Chief

Secretary, Lahore v. Prof. Dr. Javed Iqbal (2022 SCMR 897).

10 Chapter V, Recommendation concerning the Status of Higher-Education Teaching Personnel (1997) UNESCO <

https://en.unesco.org/about-us/legal-affairs/recommendation-concerning-status-higher-education-teachingpersonnel?>

11 OECD, Governance and Quality Guidelines in Higher Education: A Review of Governance Arrangements and

Quality Assurance Guidelines (2005).

12 Khyber Medical University v. Aimal Khan (PLD 2022 SC 92).

13 Principles, Values and Responsibilities, Magna Charta Universaitum (2020).

14 Waqas Aslam v. Lahore Electric Supply Company Limited (2023 SCMR 549)

C.P. No.2270 of 2019, etc. 7

This is because the courts are neither equipped with such expertise, nor

do they possess the relevant experience that would allow for interference

in such policy matters. Under this autonomous realm, educational

institutions are entitled to deference when making any decisions related

to their mission.15 At the same time, any transgression by Courts would

amount to the usurpation of the power of another, which would be

against the spirit of Article 7 of the Constitution as it is not the role of

the Courts to interfere in policy decisions.16 The judicial pronouncement

of the Courts in other jurisdictions i.e., United States of America17,

United Kingdom18 and India19 also provide that that courts should not

interfere in the internal affairs of educational institutions.

9. Now coming to the second question raised, given that the

regularization of the Respondents cannot take place without the backing

of any law, rule or policy, there lies no claim for ante-date regularization.

It is well settled that when the basic order is without lawful authority,

then the entire superstructure raised thereon falls to the ground

automatically.20 However, if it is the case of some Respondents i.e.,

Categories B, C, and D who stood regularized through earlier Court

orders which remain unchallenged can seek ante-date regularization, it

is well established that regularization takes effect prospectively, from

the date when a regularization order is passed.21 This is because

regularization is based on several considerations which help guage not

only the competence and ability of the employee, proposed to be

regularized, but also the financial impact and long term legal obligations

on the employer institution. It is a conscious decision to be taken by the

employer institution at a particular time and therefore cannot be given

a retrospective effect. Thus, the Respondents in the aforesaid categories

cannot claim ante-date regularization.

10. For the above reasons, the impugned judgments are

contrary to the well-established judicial pronouncements of this Court

and hence, set aside. Thus, the instant petition filed by the Petitioner

15 Hafsa Habib Qureshi v. Amir Hamza and others (2023 SCP 388).

16 Abdul Hameed and others v. Water and Power Development Authority (2021 PLC (C.S.) 1439).

17 Regents of University of Michigan v. Ewing 474 U.S. 214 (1985); Healy v. James 408 U.S. 169 (1972).

18 R v. Dunsheath; Ex parte Meredith [1950] 2 All ER 741; Thorne v. University of London [1966] 2 All ER 338.

19 Neelima Misra v. Harinder Kaur Paintal (1990) 2 SCC 746; Bhushan Uttam Khare v. Dean, B. J Medical College

(1992) 2 SCC 420; Basavaiah v. H. L. Ramesh AIR (2010) 8 SCC 372.

20 Pakistan People’s Party Parliamentarians v. Federation of Pakistan (PLD 2022 SC 574); Atta-ur-Rehman v.

Sardar Umar Farooq (PLD 2008 SC 663).

21 Province of Punjab through Chief Secretary, Lahore v. Prof. Dr. Javed Iqbal (2022 SCMR 897); Province of

Punjab through Secretary, Livestock and Dairy Development, Government of Punjab v. Dr. Javed Iqbal (2021

SCMR 767)

C.P. No.2270 of 2019, etc. 8

and those listed below in Schedule A are converted into appeals and

allowed.

11.

C.Ps No.4783, 4784 and 456-P/2019: The question of law

involved in these petitions is different from the other petitions. Office is,

therefore, directed to de-club these petitions from rest of the bunch and

fix them separately for hearing. Adjourned.

Islamabad,

17th January, 2024.

Approved for reporting

Sadaqat

Judge

SCHEDULE-A

Sr. No. Category Case Number

Category-A

C.P. No.2270/2019

C.P. No.1230/2019

C.P. No.1781/2019

C.P. No.1782/2019

C.P. No.496-P/2020

C.P. No.2291/2022

C.P. No.3812/2022

C.P. No.1438/2019

Category-B

C.P. No.1807/2020

10.

C.P. No.3811/2022

11.

C.P. No.3813/20222

12.

C.P. No.1228/2020

13.

Category-C

C.P. No.1229/2020

14.

C.P. No.1295/2020

15.

C.P. No.1296/2020

16.

C.P. No.1297/2020

17.

C.P. No.1298/2020

18.

C.P. No.1555/2020

19.

C.P. No.1783/2020

20.

C.P. No.5871/2021

21.

C.P. No.5872/2021

22.

Category-D

C.P. No. 2782/2022

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