The Federal Constitutional Court (FCC) on Monday dismissed the appeal of the Chief Secretary of Khyber Pakhtunkhwa against the Peshawar High Court (PHC) decision to reinstate contract employees in the KP health department.
Court Ruling
A two-member bench of the FCC, comprising Justice Aamer Farooq and Justice Syed Arshad Hussain Shah, ruled on the appeal filed through the Chief Secretary against the PHC judgment dated May 31, 2018. The respondents, former employees in the KP health department, were appointed as Dispensers (BS-6) on a contract basis in the erstwhile Federally Administered Tribal Area (FATA) with effect from November 28, 2002, and March 6, 2007, respectively.
Background of the Case
Following the deletion of health facilities from the ADP 2010-11, the services of staff working in health facilities under the ADP Scheme, including the respondents, were terminated with effect from June 30, 2010. After failing to obtain relief through departmental appeals, the respondents filed a writ petition in the High Court under Article 199 of the Constitution, which was allowed.
The PHC directed the KP government to reinstate the respondents in their services and issue formal regularization orders strictly in accordance with law. However, the interregnum period during which they did not perform duties was to be treated as extraordinary leave without pay.
Arguments of the Petitioner
The KP Additional Advocate General vehemently argued that the High Court did not appreciate the facts in their true perspective and erred in law by directing reinstatement. He contended that the respondents were contract employees appointed for particular projects, and their services were liable to be terminated automatically upon project closure. He further argued that contract employees have no vested right to be regularized, relying on the case of Deputy Director Finance and Administration FATA versus Lal Marjan (2022 SCMR 566).
Court's Observations
The Court noted that the case of the respondents falls within the ambit of Cabinet Decision Case No.76/10/2008 dated June 4, 2008, issued via Establishment Division O.M. No.10/30/2008-R.II dated August 29, 2008. This decision regularized all contract employees working in BS-1 to BS-15 prior to June 4, 2008, including employees of FATA.
The Court stated that the respondents should have been regularized under the aforementioned decision and policy of the Federal Government. However, they were illegally deprived of their right, causing them to suffer. It further observed that neither the advertisement nor the appointment letters mentioned that the appointments were for particular projects. Hence, the termination of services on project closure was illegal and not tenable in law.
Distinction from Precedent
Regarding the case of Lal Marjan, the Court observed that although the petitioners in that case were employees of FATA, they did not claim regularization under the Federal Government's decision but under the KP Employees (Regularization of Services) Act 2009, which was not applicable to FATA. Therefore, their cases failed. The Court noted that the Supreme Court was not adequately assisted in that regard, leading to dismissal of those appeals.
Final Judgment
The FCC judgment concluded: “We see no force in the instant petition, which is dismissed and leave to appeal is refused.”
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