IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE GULZAR AHMED, HCJ
MR. JUSTICE IJAZ-UL-AHSAN
MR. JUSTICE MUNIB AKHTAR
Civil Appeals No.249, 250, 255 & 257 of 2020
And
Civil Appeals No.273, 285, 289 & 301 of 2020
Against judgments dated 04.10.2017, 22.11.2017, 22.11.2017,
25.10.2017, 04.10.2017, 29.11.2018, 22.01.2019 & 14.03.2019 of
Peshawar High Court passed in Writ Petitions No.1298-P/17, 287-M/13,
1800/17, 2234-P/17, 449-P/15, 3289-P/17, 818-B/17 &6347-P/17.
CA.249 of 2020 Government of Khyber Pakhtunkhwa through
Secretary Agriculture, Livestock & Cooperative
Department Peshawar & Others Vs. Saeed-ul-
Hassan & Others
CA.250 of 2020 
District Officer On Farm Water Management
Dir Lower & Others Vs. Shahzada
CA.255 of 2020 
Government of Khyber Pakhtunkhwa through
Chief Secretary, Civil Secretariat, Peshawar &
Others Vs. Muhammad Imran Humayun Khan
CA.257 of 2020 
Government of Khyber Pakhtunkhwa through
Chief Secretary, Peshawar & Others Vs.
Muhammad Yasir Jamshed & Others
CA.273 of 2020 Government of Khyber Pakhtunkhwa through
Chief Secretary, Peshawar & Others Vs.
Muhammad Irfan & Another
CA.285 of 2020 Government of Khyber Pakhtunkhwa through
Secretary Agriculture, Livestock, & Cooperative
Department Peshawar & Another Vs. Iltaf
CA.289 of 2020 Government of Khyber Pakhtunkhwa through
Secretary Agriculture, Livestock, & Cooperative
Department Peshawar & Others Vs. Matiullah
CA.30 1 of 2020 Government of Khyber Pakhtunkhwa through
Chief Secretary, Civil Secretariat, Peshawar &
Others Vs. Muhammad Arif & Another
For the Appellant(s): 
Mr. Shumail Ahmad Butt, AG KP
Mr. Atif Ali Khan, Addl.AG, KP
Barrister Qasim Wadood, Addl.AG, KP
Irum Shaheen, DD, HED
-
j1
Asif Khan, Litigation Officer, HED
Amin Jan, AD, Fisheries
Guizar Mahmood, AD Fisheries KP
Engr. Falak Niaz, AD (Dost)
Rajbar Khan, SDO, PHE, KP
Sadullah, Asst. Secretary, BOR, KP
Faheem Ullab Khan, Sr. LO, KPPSC
Assad Ullah Khan, SO, P&D Deptt.
Amanatullah Qureshi, Dy. Secy. FDKP.
For the Respondent(s): Mr. Muhammad Asif Yousafzai, ASC
in CA No. 249 of 2020
Mr. Nasir Mahmood-P, ASC
in CA No. 250 of 2020
Mr. Khalid Rehman, ASC
in CA No. 257 of 2020
Mr. Muhammad Ijaz Khan Sabi, ASC
in CA No. 273 of 2020
Mr. Naveed Akhtar, ASC and
Mr. M. SharifJanjuha, AOR
in CA No. 285 of 2020
R-2 in Person (w/o enter appearance)
in CA No. 303 of 2020
Date of Hearing: 
25.11.2020
JUDGMENT
IJAZ UL AHSAN, J.- Through this single
Judgment, we intend to decide Civil Appeals (hereinafter
referred to as "CA") Nos.249, 250, 255, 257, 273, 285, 289
and 301 of 2020 as they involve a common question of law.
2.
Through the instant Appeals, the Appellants have
challenged the judgments of different benches of the
Peshawar High Court mentioned in Schedule I of this
Judgment. The Respondents had, through their
Constitutional Petitions, challenged the decisions of the
Appellants to terminate the services of the Respondents from
their respective posts. Their Petitions were allowed, and the
Appellants were ordered to reinstate and regularize the
Respondents against their respective posts.
3.
The necessary facts giving rise to this its are that
the Respondents were appointed on contract basis in different
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3
projects against different posts. Their services were extended
from time to time. They were subsequently terminated from
service on completion of the respective projects in which they
were appointed. They filed Constitutional Petitions to
challenge this action of the Appellants which were allowed
and, the Appellants were directed to reinstate and regularize
the Respondents in their respective posts. Certain other
Respondents then filed Constitutional Petitions for similar
treatment which were also allowed, and the Appellants were
ordered to treat the said Respondents at par with others who
had been regularized pursuant to the orders passed by the
High Court.
4.
Leave to appeal was granted by this Court vide
order dated 09.03.2020 in the following terms:-
"The learned Additional Advocate General, Khyber
Pakhtunkhwa contends that all the Respondents in these
petitions were employed either on project posts or on contract
basis or were employees under Section 42 of the Companies
Act, 2017 and in no circumstances their services were to be
regularized. He further contends that in all impugned
judgments, the learned High Court has merely allowed writ
petitions on basis of similarly placed persons, but without at
all adverting to the facts and circumstances of each case
separately and without applying its mind to the same. He
adds that even the laws under which their appointments
were made were not adverted to. He submits that the
Respondents who are employees on projects or contract
employees or Section 42 employees were not liable to be
regularized and thus their regularization by the learned High
Court through the Impugned Judgment in these petitions was
altogether illegal. In support of the contentions, the learned
law officer has referred to a three-member judgment of this
Court dated 24.06.2014 passed in Civil Appeal No.687 of
2014 (Government of Khyber, Agriculture, Livestock and
Cooperative Department through its Secretary and others v
Ahmad Din and another).
2.
We note that some of the petitions are time barred and
in one of the petitions even no condonation of delay has been
filed. The learned Law Officer states that such will be done
by the petitioners.
3.
The contentions raised by the learned Additional
Advocate General, Khyber Pakhtunkhwa need consideration.
Therefore, subject to limitation, leave to appeal is granted in
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these petitions to consider inter alia the same. The appeal
stage paper books shall be filed within a period of one month
with permission to the parties to file additional documents, if
any. As the matter relates to service, the office is directed to
fix the same expeditiously preferably after three months.
4. 
In the meantime, operation of impugned judgment(s)
shall remain suspended."
5. Learned Additional Advocate General, Khyber
Pakhtunkhwa (hereinafter referred to as "AAG") appearing for
the Appellants contends that the Respondents were employed
on contract basis, in different projects. As such, they had no
automatic right to regularization. Therefore, the learned High
Court has erred in allowing them regularization on
sympathetic grounds which action has no legal basis. The
Project Policy dated 02.07.08 (the "Project Policy") issued by
the Government of Khyber Pakhtunkhwa (hereinafter referred
to as "KP") specifically states that all the Respondents
employed in projects would stand terminated from service
upon completion of their respective projects. He adds that,
clause 10(vi) of the Project Policy specifically ousts any project
employee from claiming regularization and, the posts
converted to the regular side were to be filled through the
prescribed procedure as determined by the KP Public Service
Commission (hereinafter referred to as "KPPSC"). He
maintains that the provisions of the KP Regularization Act
2009 (hereinafter referred to as "2009 Act") did not apply to
the Respondents as the said Act specifically excludes the
class of employees to which the Respondents belong.
6. The Learned ASC for the Respondents on the other
hand submits that the Respondents were validly appointed to
their respective posts and as such, could not have been
arbitrarily terminated given the Appellants were satisfied with
their performance. Learned Counsel further submits that the
projects in which the Respondents were employed had been
converted to the regular side and as such, the Respondents
had a right to be regularized against their respective posts. As
such, the learned High Court has correctly held that they
ought to be regularized. Further, that the Appellants could
not have advertised the posts against which the Respondents
were working, and such action amounts to exploitation and
discrimination because others who were similarly placed were
appointed on regular basis whereas, the Respondents were
left out.
7. We have heard the learned AAG and the learned
ASC for the Respondents. It is an admitted position that all
the Respondents were appointed on contract basis, in
different projects of KP. The issues which fall for
determination before this Court are as follows: -
(i)
Could the Appellants terminate the services of the
Respondents after the period of the respective projects in
which the Respondents were appointed had elapsed; and
(ii)
Are the Respondents covered by the 2009 Act; and
(iii)
What is the effect of the terms and conditions of the
appointment orders of the Respondents; and
(iv)
What is the principle to be applied when giving relief in the
cases of similarly placed employees?
COULD THE APPELLANTS TERMINATE THE SERVICES OF
THE RESPONDENTS AFTER THE PERIOD OF THE
RESPECTIVE PROJECTS IN WHICH THE RESPONDENTS
WERE APPOINTED HAD ELAPSED.
8. The learned ASC for the Respondents has
submitted before us that the employment of the Respondents
was governed by the Project Policy issued by the Government
of KP. We have gone through the Project Policy. It
categorically states that those employed in different projects
would stand relieved from employment upon completion of
the Project in question. Clause 10 (v) of the Project Policy is
reproduced herein below for ease of reference: -
"On completion of the project, the services of the
project employees shall stand terminated. However, they
shall be re-appointed on need basis, if the project is extended
over any new phase or phases"
A bare perusal of the afore-noted clause of the
Project Policy makes it clear that employees, who were
employed in a project, would stand terminated, on the
completion of the project. The only exception is that the said
employees would be re-appointed on need basis if the project
is extended over any "new phase or phases". The record
reveals that the Respondents were terminated after the
projects in which they were appointed came to an end or,
were converted to the regular side. The learned High Court in
the impugned judgments has held that the Respondents had
a vested right to be regularized, on the basis of satisfactory
service, because of the conversion of different projects to the
regular side. We are unable to agree with the view taken by
the High Court for the reason that it is by now a settled
principle of law that, long or satisfactory contractual service
does not confer a vested right for regularization as
conversion from contractual to regular appointment requires
statutory support. We note that, even in those Appeals before
us where posts were created on the regular side, such as CA
No. 255 of 2020 and CA 301 of 2020, the posts in question
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were limited. If the Government has created a limited
number of posts on the regular side, the learned High Court
could not have stepped into the shoes of the appointing
authority and order the regularization of each Respondent
irrespective of availability of regular posts. Appointments on
the regular and newly created posts was to be made through
advertisement, open competition through a transparent
process via the KP Public Service Commission. It was
essentially a policy matter within the domain of the
Executive. The High Court therefore erred in law in
interfering with the same for no valid or justifiable reason.
9.
The creation of a post or posts on the regular side
does not confer, in the absence of any statutory support, an
automatic right of regularization in favour of the employees
employed on contractual basis against project posts.
Therefore, we hold that the conclusion reached by the High
Court in this regard is not sustainable.
10.
Further, clause 10(vi) of the Project Policy reads
as under: -
"In case the project posts are converted into regular
budgetary posts, the posts shall be filled in accordance with
the rules prescribed for the post through the Public Service
Commission or the Department Selection Committee, as the
case may be. Ex-Project employee shall have no right of
adjustment against the regular posts) however, if eligible,
they may also apply and compete for the posts with other
candidates"
The afore-noted clause of the Project Policy makes
three stipulations. First, that the project posts converted to
the regular side shall be filled in accordance with the rules
prescribed by the KPPSC or the Departmental Selection
8
Committee. Second, that a project employee shall have no
right of adjustment against the regular post. Third, if eligible, a
project employee may apply for the post in question for
regular appointment in accordance with the rules i.e. through
KPPSC or DSC, as the case may be. The learned High Court
has held that the Respondents had the right to be regularized
on the posts which were created on the regular side, and not
appointing the Respondents amounts to discrimination. We
are unfortunately unable to agree either with the reasons
given nor with the conclusion reached. We note that all posts
created on the regular side were to be filled in accordance
with the procedure of the KPPSC or DSC. The aforenoted
provision makes is clear that ex-project employees could not
claim regularization as a matter of right. Nothing is on record
to suggest that the Respondents applied for the regular posts
again, however, they approached the learned High Court in
Constitutional Jurisdiction directly for their reinstatement
and subsequent regularization which, the learned High Court
did, without considering the aforenoted Project Policy which
held the field and the vires of which or, any provision thereof,
was not under challenge.
11. We note that, in CA 257 of 2020, the regular posts
in question were created in the KPPSC and not the project in
question. This is evident from the letter dated 02.05.20 17 of
the Government of KP, Finance Department. The said letter
further states that the incumbents of the posts which were to
be shifted to the regular side would not be entitled to
regularization and, the regular posts would be filled in
accordance with the law. We note that the learned High Court
has circumvented and, literally changed the tenor of this
letter altogether by inserting in it, that which was never there,
nor was it intended to be there. Even otherwise, if posts are
sanctioned by the provincial government, it does not mean
that anyone may be appointed against the same arbitrarily or
whimsically without regard to any policy, procedure or legal
basis.
ARE THE RESPONDENTS COVERED BY THE 2009 ACT?
12. 
Section 2(b) of the 2009 Act defines 'employee' as
follows:-
"employee means an ad hoc or a contract employee
appointed by Government on ad hoc or contract basis or
second shift/night shift but does not include the employees
for project post or appointed on work charge basis or who are
paid out of contingencies"
The aforenoted provision of the 2009 Act has three
conditions. First, that the employee in question has to be
appointed by the government. Second, that the employee has
to be appointed on ad hoc or contract basis or second
shift/night shift. Thirdly, an employee to be able to benefit
from the 2009 Act must not have been employed against a
project post or, appointed on work-charge basis or, be paid
out of contingencies. The impugned judgments ignore the
definition of 'employee' and the exclusions incorporated
therein which has led to an erroneous conclusion being
drawn. 
F-
10
13. Section 3 of the 2009 Act lays down further
guidelines as to who may be regularized. The said Section is
reproduced as:-
"Regularization of services of certain em p logees. -- All
employees including recomendees of the High Court
appointed on contract or ad hoc basis holding that post on
31st December 2008 or till the commencement of this Act
shall be deemed to have been validly appointed on regular
basis having the same qualification and experience for a
regular post".
A bare perusal of the aforementioned provision
makes it clear that those employees who have been
appointed by the Government on or before 03.12.08 or till
the commencement of the 2009 Act i.e., 24.10.09 (hereinafter
referred to as "Cut-off Dates") would be entitled to
regularization. We have gone through the record and note
that all of the projects in which the Respondents were
employed were converted to the regular side after the Cut-off
Dates. The learned High Court has incorrectly applied and
stretched the application of the 2009 Act to cover the
Respondents without any lawful basis. It needs no repetition
that the job and jurisdiction of the High Court is to interpret
the law, test its vires on the touchstone of the Constitution
and examine the legality of executive / administrative actions
in exercise of its powers of judicial review. Reading provisions
or interpreting existing provisions in a manner which has the
effect of virtually adding new provisions constitutes excessive
and arbitrary exercise of jurisdiction and encroaches upon
the domain of the executive and legislative authority. Such
modus operandi militates against the fundamental principle
ICA
of trichotomy of powers which is a cornerstone of the
Constitution.
14.
It is clear and obvious to us that project
employees have specifically been excluded from the purview
of the 2009 Act. We note that in CA No. 257 of 2020, the
learned High Court has itself noted that the Respondents in
the said CA are not covered by the 2009 Act. Yet they were
directed to be regularized on sympathetic grounds without
any lawful basis, foundation or justification.
15.
In CA No. 285 of 2020, the project in question,
namely, "Expansion of Breed Improvement Service in NWFP'
was converted to the regular side after the services of the
Respondent (Mr. Iltaf) were terminated w.e.fi 30.06.09. The
said Respondent was issued a notice of termination which
was in line with the Project Policy, before his services were
terminated. The High Court has in our opinion incorrectly
applied the principle of non-discrimination and similar
treatment for similarly placed employees and has directed
that the Respondent in question be regularized. We note that
the learned High Court, without applying judicial mind to
ascertain the facts and circumstances of each case, has
passed an omissus order directing the regularization of all
the Respondents without adverting to the record on a case to
case basis, or applying the law to each case. Where the 2009
Act itself excludes project employees and also mentions Cut-
off dates, we are at a complete loss to understand how and
on what basis the High Court concluded that that the
Respondent was eligible for regularization. Even otherwise,
the services of the Respondent were validly and lawfully
terminated before the said project was converted to the
regular side i.e. vide notification dated 27.01.10. As such,
there was no question of regularization.
16.
The learned High Court has, in one of the
Impugned Judgments, on the question of deleted posts, held
that the Appellants were duty bound to convert all posts to
the regular side without deleting any one of them. As noted
above, executive policy making is not the domain of the High
Court in the scheme of the Constitution and, is the
prerogative of the executive to ascertain on the basis of its
need, requirement, available resources and fiscal space,
which posts it wishes to keep and which it wishes to abolish.
Separation of powers is a well-entrenched principle of
jurisprudence which requires that the Court cannot step into
the shoes of the Executive. As such, when the posts of the
Respondents in CA No. 273 of 2020 have been deleted by the
Finance Department, the learned High Court could not have
ordered the Appellants to reinstate the Respondents on non-
existent posts.
WHAT IS THE EFFECT OF THE TERMS AND CONDITIONS
OF THE APPOINTMENT ORDERS OF THE
17.
The learned AAG has submitted before us that all
of the Respondents were appointed on temporary posts as
stipulated in their employment contracts. We note that the
learned High Court has not adverted to this aspect of the
case and has simply applied the principle of similarly placed
employees to give relief to the Respondents. It has been
specifically mentioned in the appointment orders of the
Respondents that they cannot claim regularization and
further, that they are employed on contract for a specific
period of time. In this view of the matter, the learned High
Court has incorrectly applied the law to the cases of the
Respondents and as such, we find the view of the learned
High Court to be erroneous, and not in consonance with the
settled principles of law on the subject.
18. The Respondents have themselves conceded that
they were employed in different projects on temporary basis.
This fact has been admitted before us. The employment of
the Respondents was governed by the Project Policy which
specifically provides that ex-project employees cannot claim
regularization and that the posts in questions would be filled
per the rules of the KPPSC or the DSC. We are therefore of
the view that the learned High Court has erred in law in
ignoring the Project Policy and ordering regularization of the
Respondents without relying on any statutory instrument
which may have created a right in their favour. Discretionary
Jurisdiction under Article 199 of the Constitution cannot be
exercised in a vacuum. It must be grounded on a valid basis
of violation of specific and enforceable legal or constitutional
rights. The discretion must be exercised in a structured and
calibrated manner with due regard to parameters put in
place by the Constitution as well as by this Court. The
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impugned judgments are unfortunately lacking all the
aforenoted factors and are found to be unsustainable.
WHAT IS THE PRINCIPLE TO BE APPLIED WHEN GIVING
RELIEF IN THE CASES OF SIMILARLY PLACED
EMPLOYEES?
19.
The learned High Court in all the Appeals before
us has applied the principle of similar treatment of similarly
placed persons and has found the Respondents eligible for
Regularization. It is settled principle of law that each case
turns on its own facts and circumstances. When the record
is clearly suggestive of the fact that the Respondents could
not be regularized, and there were valid and sustainable
reasons to do so, the principle of similar treatment of
similarly placed employees could not blindly and
indiscriminately circumvent the record to regularize those
employees who are otherwise not entitled to regularization.
Further, some judgments were mechanically rendered
without examining the specific facts and circumstances of
individual cases by relying on earlier judgments directing
regularization and those too in incorrect and erroneous
basis. This, by itself, furnishes justification to set aside such
judgments. Even otherwise, the rule of similar treatment for
similarly placed persons has wrongly and incorrectly been
applied in the instant cases.
20.
The Court is supposed to interpret the law and
apply it in letter and spirit. The Court cannot go beyond what
the law is, and what interpretation permits. Courts lack
jurisdiction to provide remedies which are otherwise not in
.' 
.' 
IS'
the law or the Constitution by inventing remedies of their
own. This is a dangerous trend which threatens to weaken
the very fabric of constitutionalism and rule of law and, this
must be discouraged. The learned High Court cannot alter,
amend or renegotiate the terms and conditions of the
appointment orders of the Respondents for the simple reason
that it does not have jurisdiction to do so.
21. For the reasons recorded above, these appeals are
accordingly allowed, and the impugned judgments
unsustainable
are therefore set-aside.
Chie
ANNOUNCED IN COURT ON 2i .04 .21 AT
ISLAMABAD.
SCHEDULE I
DATE
04. 10.20 17
22.11.2017
22.11. 20 17
25. 10.20] 7
04.10.2017
11 2018
22.01.2019
14.03.2019
ED FOR REP
COURT
Peshawar 
High 
Court,
Peshawar
Peshawar High Court Bench
at Mingora (Dar-ul-Qaxa) Swat
Peshawar 
High 
Court,
Peshawar
Peshawar 
High 
Court,
Peshawar
Peshawar 
High 
Court,
Peshawar
Peshawar 
High 
Court,
Peshawar
Peshawar High Court, Bannu
Bench
Peshawar 
High 
Court,
Peshwu
No. 250 of 2020
CA No. 255
CA No. 273 of 2020
CA No. 285
CA No. 289 of 2020
CA No. 301 of 2020
S