2021 PLC (C.S.) 57 | W.P. No. 2356-P of 2017 | Decided on 7 November 2019
Before the Peshawar High Court

In this important service law matter concerning regularization of contract employees in the Health Department, Khyber Pakhtunkhwa, Mr. Saifullah Muhib Kakakhel, Advocate Supreme Court , represented the petitioner before the Peshawar High Court. The case has since been reported as Rafia Bibi v. Director General (Health), Khyber Pakhtunkhwa & Others and stands as a significant authority on regularization of project employees, protection against retrospective application of qualification rules, and equality under Article 25 of the Constitution.

The petitioner had served for more than nine years as a Lady Health Visitor (LHV) in government-owned Basic Health Units (BHUs) under the Sarhad Rural Support Programme (SRSP), working through the People’s Primary Healthcare Initiative (PPHI). After the Provincial Government of Khyber Pakhtunkhwa resumed administrative control of BHUs, several similarly placed employees were adjusted against regular vacancies. However, the petitioner’s services were terminated on the grounds that she had passed Matriculation in Arts subjects instead of Science and that she was not a direct government employee.

Before the Court, three principal legal questions arose: whether amended qualification rules requiring Matric with Science could invalidate previously acquired LHV certification; whether a project employee working in government BHUs could claim regularization after government takeover; and whether differential treatment among similarly placed employees violated constitutional guarantees of equality.

The Honourable High Court held that at the time the petitioner completed her LHV certification, Matric (Arts) candidates were eligible under the prevailing rules. The subsequent amendment introducing a Matric with Science requirement could not be applied retrospectively to invalidate qualifications lawfully obtained. The Court declared that previously issued certificates remained valid and legally operative.

On the question of employment status, the Court observed that although the petitioner was appointed through SRSP/PPHI, she was performing permanent and essential duties in government Basic Health Units. The nature of her service established a substantive employer-employee relationship with the Health Department, particularly after the Government’s takeover of BHUs.

The Court further emphasized that other similarly placed employees had been regularized and that the Government could not adopt a selective or discriminatory approach. Equal treatment under Article 25 of the Constitution must be ensured, and the State cannot engage in “cherry picking” among employees who stand on identical footing. The judgment also reaffirmed settled principles of service jurisprudence that subsequent policy changes cannot extinguish accrued rights, and that long-serving contract or project employees cannot be arbitrarily removed upon transition of administrative control.

Allowing the constitutional petition, the High Court directed the respondents to appoint the petitioner as Lady Health Visitor (LHV) on a regular basis and to complete the appointment process within thirty days.

This judgment is a leading authority in Khyber Pakhtunkhwa on regularization of project and contract employees, particularly in the Health Department and BHU/PPHI framework. It clarifies the limits of retrospective application of amended recruitment rules, strengthens constitutional protection against discrimination in service matters, and reinforces the judiciary’s role in safeguarding accrued employment rights in government takeover situations.