Full Judgment Text & Judicial Ruling

2018 P L C (C.S.) 619 [Islamabad High Court] Before Athar Minallah, J Ms. SHAGUFTA HASHMAT and others Versus FEDERATION OF PAKISTAN through Secretary Cabinet Division and others W.P. No.2117 of 2016, decided on 1st November, 2017. (a) Civil Servants Act (XIV of 1973)--- ----S. 5---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Pt. III--- Contract employees---Regularization in service---Policy issued by the Federal Government to regularize contract employees ( Regularization policy )---Scope---Regularization policy could not be inconsistent with primary legislation, such as the Civil Servants Act, 1973---Federal Government was not empowered to bypass or render statutory provisions redundant by way of a regularization policy---Likewise, a delegated legislation, such as the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 would prevail to the extent of conflict with a regularization policy---Policy of the Federal Government had to be interpreted in conformity with the statutory provisions or delegated legislation made there under. (b) Civil Servants Act (XIV of 1973)--- ----S. 5---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Pt. III---Constitution of Pakistan, Arts. 25 & 27---Appointment in service---Principles stated. Following are the settled principles with regard to appointment in service; in government departments and statutory organisations; (i) The posts in government departments and statutory organizations ought to be filled within reasonable time by following the procedure prescribed under the relevant law; (iii) Appointments of any nature, whether initial or ad hoc, permanent or temporary, if made in violation of the principles of competitive transparency, inter alia, without inviting applications from the public, was in violation of the Constitution and, therefore, void. (iv) Appointment to a post in the public sector made in a non-transparent and discriminatory manner offended the Fundamental Rights guaranteed under Articles 25 and 27 of the Constitution. (v) Selecting a qualified, eligible and most deserving person was a sacred trust which was to be discharged honestly and fairly in a just and transparent manner and in the best interest of the public.

Dr Naveeda Tufail and 72 others v. Government of Punjab and others 2003 SCMR 291; Mushtaq Ahmad Mohal and others v. The Honourable Lahore High Court, Lahore and others 1997 SCMR 1043; Syed Mubashir Raza Jaffri and others v. Employees Old Age Benefits Institution (EOBI) through President of Board, Board of Trustees and others 2014 SCMR 949; Suo Motu Action Regarding Eligibility of Chairman and Members of Sindh Public Service Commission and others 2017 SCMR 637; Muhammad Ashraf Tiwana and others v. Pakistan and others 2013 SCMR 1159; Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others PLD 2012 SC 132; Asaf Fasihuddin Khan Vardag v. Government of Pakistan and others 2014 SCMR 676; Chief Secretary Punjab and others v. Abdul Raoof Dasti 2006 SCMR 1876; Government of N.W.F.P. through Secretary Forest Department, Peshawar and others v. Muhammad Tufail Khan PLD 2004 SC 313; Munawar Khan v. Niaz Muhammad 1993 SCMR 1287; Mushtaq Ahmed Mohal v. Lahore High Court 1997 SCMR 1043; Obaidullah v. Habibullah PLD 1997 SC 835 and Abdul Rashid v. Riazuddin 1995 SCMR 999 ref. (c) Civil service--- ----Contract/temporary employees---Regularization in service---Conduct of employer--- Where a person was qualified to hold a post and fulfilled all other conditions prescribed under the law, then a right may accrue to be considered for permanent appointment if the temporary appointment of the person had continued for a considerable length of time and the conduct of the employer had created an impression in the mind of such a person that he may be retained on a regular basis. (d) Constitution of Pakistan--- ---Arts. 25 & 199---Constitutional jurisdiction of the High Court---Illegality---Plea of discrimination---Illegality could not be pleaded as a ground for discrimination, nor could it be allowed to be perpetuated while exercising powers under Art.199 of the Constitution. (e) Constitution of Pakistan--- ----Art. 199---Constitutional jurisdiction of the High Court---Legitimate expectation, doctrine of---Scope---Question of legitimate expectation could not be adjudicated while exercising jurisdiction under Art.199 of the Constitution since it involved disputed questions of fact. (f) Constitution of Pakistan--- ----Art. 199---Constitutional jurisdiction of the High Court---Scope---Contract/temporary employee---Regularization in service---Question as to whether or not the conduct of an employer had created an impression in the mind of the employee that the former intended to retain him on a regular basis was definitely a question of fact and not justiciable while exercising powers under Art.199 of the Constitution. (g) Civil Servants Act (XIV of 1973)--- ----S. 5---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, R. 11 & Pt. III---Constitution of Pakistan, Art.25---Contract/ contingent/ daily wage employees---Regularization in service---Regularization policy issued by the Federal Government---High Court observed that most of the petitioners, who were contract/temporary teachers in government educational institutions, were appointed without observing the principles of transparency and that too on a daily wage basis or honourary basis; that salaries of teachers were being paid from a student fund, which was a gross violation of Art.25A of the Constitution, and that it was a sacred trust to be discharged by the competent authorities to ensure that no person was appointed illegally or in a non-transparent manner, so that every student had access to the best amongst the best of the teachers---High Court issued direction with regard to regularization of contract/contingent/daily wage employees. High Court issued the following directions with regard to regularization of contract/contingent/daily wage employees; (i) The case of each petitioner (contract/contingent/daily wage employee) shall be considered and decided by the relevant competent authority; (ii) The appointments of petitioners, which were made without advertising the posts and observing the principles of competitive transparency, were illegal, void and tantamount to misconduct on the part of the appointing authority. Petitioners who were appointed as teachers, without advertisement and without following principles of competitive transparency had been serving for a considerable time. The failure of Federal Government was obvious in taking timely measures. The Federal Government, therefore, owed a duty of care towards such petitioners as well. It would, therefore, be just and proper for the Federal Government to consider and take appropriate decisions in accordance with law relating to the fate of such petitioners. The Federal Government may, inter alia, consult the Federal Public Service Commission in this regard because the petitioners fell in the category of pay scale 16 and above. Before taking any adverse action against such petitioners (teachers), they shall be afforded reasonable opportunity of hearing; (iii) It was the duty of the department and the Federal Government to pay salaries to the teachers employed in public schools or colleges from the approved budget rather than burdening the students, which was a serious violation. (iv) The cases of those petitioners who were appointed through a transparent recruitment process and were seeking regularization against the posts in pay scale 1 to 15, described in section 5 of the Civil Servants Act, 1973, shall be scrutinized by the respective departments in the light of the Regularization Policy [Office Memorandum No F.53/1/2008-SP dated 11-05-2017 issued by Cabinet Secretariat, Establishment Division, Government of Pakistan]. The cases of the eligible employees shall be placed before the Departmental Selection Committee, as required under Rule 11 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. The latter, having regard to the said Rules, shall give its recommendation in each case. The petitioners in pay scale 16 and above or equivalent shall apply directly to the Federal Public Service Commission, strictly in accordance with clause (ii) of the Regularization Policy . (v) In the case of petitioners who were employees of entities established under a special statute wherein the Federal Government had a control, administrative or financial, their cases shall be scrutinized and placed before the competent authority for its decision, having regard to the Regularization Policy . (vi) In the case of juridical persons incorporated under the relevant laws, the cases of the petitioners who were its employees shall be placed before the respective Board for a decision, inter alia, having regard to the Regularization Policy . Muhammad Shoaib Shaheen, Abdul Rahim Bhatti, Hafiz S.A. Rehman, G.M. Chaudhry, Hafiz Munawar Iqbal, Muhammad Nauman Munir Paracha, Ashfaq Ahmed Khan, Ch. Tanveer Akhtar, Raja Muhammad Khan, Misbahullah Khan, Haroon ur Rashid, Ali Nawaz Kharal, Muhammad Umair Baloch, Ashfaq Ahmed Khan, Kazi Sheharyar Iqbal, Zill e Huma, Ahmed Abdul Rafey, Ishtiaq Ahmed Raja, Shafiq ur Rehman Dab, Faisal Bin Khurshid, Ch. Manzoor Khamboh, Khawaja Aurangzaib Alamgir, Muhammad Asif Gondal, Matloob Hussain Malik, Ali Murad Baloch, Waqar Ahmed, Rana Samreen Akhtar, Muhammad Ramzan Khan, Ch. Muhammad Ashraf Gujjar, Ishtiaq Ahmed Rana, Muhammad Aftab Alam Rana, Zia Ul Haq Kiyani, Ch. Saifullah Warriach, Muhammad Sajjad Bangash, Ahsan Hameed Dogar, Mehr Muhammd Bakhsh, Hafiz Ali Asghar, Safeer Khadim, Hafiz Ahmed Rashid, Muhammad Waqas Malik, Ibrar Hussain, Muhammad Anwar Mughal, Muhammad Aslam Chaudhry, Ishtiaq Ahmed Cheema, Muhammad Umar, Anar Khan Gondal, Muhammad Kashif Tabassam, Muhammad Usman Khan, Muhammad Afzal Khan Jadoon, Syed Sadaqat Ali, Arshad Mehmood and Hafiz Mazhar Maiken for Petitioners. Qausain Faisal Mufti, Ch. Sageer Ahmed, Rai Azhar Iqbal Kharal, Muhammad Ramzan Khan, Muhammad Riaz Akbar, Raja Zubair Hussain Jarral, Muhammad Nauman Munir Paracha and Sadia Naerean Malik Advocates, Afnan Karim Kundi, Addl. Attorney General Kh. Muhammad Imtiaz, Assistant Attorney General, Munir Ahmed, J.S. Finance Div. Dr. Masood Akhtar Sr. J.S. S. Ahmed Bahar Zaidi, Director FPSC, M. Tahir Iqbal, A.D. FPSC, Muhammad Younas, S.O. Establishment Div. S.M. Rehan Naqvi, A.D. Legal FDE, Zaheer Iqbal, S.O. Cabinet, Khan Hafeez, Dy. Secy. Finance, Khan Zeb, A.D. Law BECS, Kashif Ch. Manger Legal USC and Nadeem Arshad, S.O. Finance for Respondents. Dates of hearing: 24th February, 2017, 3rd, 10th, 17th March, 2017, 7th April, 2017, 19th May, 2017, 2nd, 9th, 16th June, 2017 and 2nd August 2017. JUDGMENT ATHAR MINALLAH, J.--- Through this consolidated judgment I shall decide the instant petition along with the petitions listed in Annexure-A attached thereto. 2. The petitioners in all these petitions are seeking regularization of their services. The petitioners were appointed on contract, daily wage or contingent staff basis. Most of the petitioners are serving as teaching staff at various public schools or colleges. Interestingly, many of them are drawing salaries from the Student Fund. The Student Fund is not part of the approved budget. It is a fund created from contributions collected from the students. Nothing is available on record to show that the appointing authority in the case of public schools or colleges are empowered to appoint teachers on a daily wage basis against private funds collected from the students. However, it was informed that this practice has continued from the time when teachers appointed in these schools were not declared as civil servants. There is also no explanation about why some teachers have been appointed on an honorary basis. The record also indicates that several petitioners had not been appointed through a transparent competitive process, nor were the posts advertised. They include contract employees appointed in various projects on the development side. The majority of the petitioners are seeking regularization, which would have the effect of being appointed as a civil servant. Some of the petitioners are employees of entities established under a statute or have been incorporated as juridical persons under the Companies Ordinance, 1984. In some cases they have been employed for a long period of time and their respective contracts have been extended from time to time. All the petitioners have prayed for a direction that they be regularized against permanent posts. Most of the petitioners were appointed in grade/pay scale 16 and above. For a better understanding of the questions raised in the instant petitions some material facts need to be recorded, as follows: 04-06-2008. A summary was sent for the approval of the Federal Cabinet, titled Regularization of BS-1 to BS-15 contract employees . 26-08-2008 The Cabinet approved the above summary. 29-08-2008. Office Memorandum, dated 29-08-2008, was issued pursuant to approval granted by the Federal Cabinet. The salient features of the approved regularization policy are; (a) Employees working on contract basis in pay scale BS-01 to BS-15 in the Federal Ministries/Divisions/Attached Departments/ Subordinate offices/ Autonomous/ Semi Autonomous Bodies/ Corporations and appointed up to 03-06-2008 were entitled to be regularized. (b) The decision of the Cabinet extended to the contract employees appointed in the Federally Administered Tribal Areas. (c) Eligibility Criteria. (i) Employees working on contract basis against BS-1 to BS-15 and appointed prior to the decision of the Cabinet, dated 04-06-2008 i.e. up to 03-06-2008 were eligible. (ii) Employees working against tenure posts, project posts, or on daily wage basis or those who were paid from the contingent or defense budget were declared ineligible for regularization. (d) The date for regularization of all contract employees, after completing all formalities, was prescribed as 01-07-2008. (e) The seniority of regularized contract employees was to take effect from the date of their regularization i.e. 01-07-2008. (f) Age relaxation. Age relaxation was to be given by the competent authority as per existing rules. (g) Provincial quota was to be adhered to as far as possible. (h) Qualifications.

Qualifications prescribed for the post were to be strictly followed and in case a contract employee did not meet the required qualifications for the post then he could be regularized against a lower post for which he possessed the requisite qualifications. (i) A Cabinet Sub-Committee under the chairmanship of the then Minister of Labour and Man Power was constituted for ensuring regularization of the eligible contract employees in accordance with the approved regularization policy. 29-06-2011. The Cabinet Sub-Committee proposed altogether different terms and conditions/criteria through a summary sent to the Prime Minister. The proposed policy/criteria was as follows: 1. Contract employees who have completed one year of satisfactory service be regularized. 2. Daily Wage workers employed for 89 days (one spell) and having completed three spells of their service shall be regularized in conformity with the order of the apex Court. 3. The cases of contract employees of BPS-16 and above may be submitted to the Committee for regularization of their services through the Cabinet decision instead of the FPSC. It was also proposed in the summary that the regularization will take effect from 29-06-2011, pending the approval of the Cabinet. Nothing has been placed on record to show that the above proposed policy was placed for approval before the Federal Cabinet, nor is such a decision on record. The learned Addl. Attorney General, during the course of arguments, made a statement on behalf of the Federal Government that the above proposed policy was neither placed before nor approved by the Federal Cabinet. 30-06-2011. The above proposed policy was approved by the Prime Minister of the Islamic Republic of Pakistan. 11-09-2014. This Court, vide judgment dated 11-09-2014 rendered in W.P. No.965/2013 and several other connected petitions, declared the policy of regularization as illegal and void. 10-09-2014. The petitions which were pending before this Court, relating to grievances in respect of regularization, were disposed of through a consent order. The Secretary Cabinet Division, Government of Pakistan, was, inter-alia, directed to constitute a Committee headed by an officer not lower in rank than a Federal Secretary or a retired Hon ble Judge of the august Supreme Court for this purpose. The order, dated 10-09-2014, passed in W.P. No. 1703/2013 and the connected petitions, attained finality on being confirmed by the august Supreme Court. 09-04-2015. Intra Court Appeals preferred against judgment, dated 11-09-2014 passed in W.P. No.965/2013 and connected petitions, were allowed by a Division Bench of this Court pursuant to statement made on behalf of the Federal Government and issuance of Notification, dated 02-04-2015. Moreover, it was observed as follows: While implementing the policy irregularities may have been committed in some cases and there is no bar on the respective Departments to proceed in accordance with law on case to case basis. Regularization policy cannot be construed or implement in a manner which may extend legitimacy to illegal appointed employees. Reference in this regard may be made to paragraph 26 of the judgment of the august Supreme Court in Syed Mubashir Raza Jaffri v. Employees Old Age Benefits Institution (2013 SCMR 949). 02-04-2015. The Notification, dated 02-04-2015, was made an integral part of the judgment, dated 09-04-2015 passed in Intra Court Appeal No. 325/2014 etc. and the same is reproduced as follows:

To be published in next issue of Gazzette of Pakistan (Part-I) GOVERNMENT OF PAKISTAN

CABINET SECRETARIAT CABINET DIVISION ***** Islamabad, the 2nd April, 2015 NOTIFICATION No.F.2/3/2014-Lit In pursuance of Islamabad High Court orders passed in W.Ps Nos.1703 and 965/2013 on 10th and 11th September, 2014, respectively and with the approval of the Prime Minister, Committee comprising of the following has been constituted in the Establishment Division:- Composition: (a) Mr. Haseeb Athar (BS-22 an Officer of Secretariat Group)

(b) Additional Secretary-III, Cabinet Division, Islamabad (c) Joint Secretary (Admn.), Establishment Division, Islamabad (d) Joint Secretary/Equivalent, Law, Justice and Human Rights Division,

Islamabad. Terms of Reference of the Committee: i. The Committee shall examine the cases for regularization of Contract/Contingent/ Daily Wages employees which are under adjudication in various Judicial Fora and have been referred to the Federal Government for consideration/Disposal as per guidelines issued vide O.M. No.10/30/2008-R.II dated 29th August, 2008. ii. The prescribed qualification for each post shall be adhered to; iii. The Committee shall pass speaking orders in each case after giving an opportunity of hearing to the employees and the respective employers. iv. In the event that the Committee comes to the conclusion that there has been discrimination in implementing the policy, the decision shall be communicated to the Secretary, Cabinet Division who shall ensure its implementation without delay. v. The Committee shall consider all the petitions deemed to be pending before the Federal Government by treating them as representations. vi. The Committee shall identify all such cases in which the employees are eligible under the policy guidelines vide O.M. No.10/30/2008-R.II dated 29th August, 2008 and shall refer them to the respective employers for appropriate action. vii. The committee shall also decide the cases referred to by the employers where material irregularities/illegalities are identified by the employer and referred to the Committee on case to case basis. 2. Establishment Division will be the Secretariat of the Committee and will provide Secretariat assistance to the Committee. (Hafiz Shahzad Masood) Section Officer (Lit/Coord)

02-06-2016. The judgment of this Court, dated 11-09-2014 whereby the Intra Court Appeals were allowed and consequently the judgment, dated 11-09-2014, passed in W.P. No. 965/2013 etc. was set aside attained finality having been up held by the august Supreme Court in the following terms: a. That the process of regularization in terms of the Judgment dated 09.4.2015 of the learned Division Bench of Islamabad High Court may be conducted by the competent authority in accordance with the law without being influenced by any extraneous considerations or directions. b. After the process is completed, if any, individual has any grievance either for not being regularized or, if any, other person is regularized illegally or with illegal consequences, such individuals may seek their remedies available to them in accordance with law. It is, therefore, obvious that the regularization policy, the details whereof were described in Office Memorandum, dated 29-08-2008, read with Notification, dated 02-04-2015 attained finality. 11-05-2017. The Federal Cabinet in its meeting held on 12-04-2017 approved yet another policy and details thereof are contained in office Memorandum, dated 11-05-2017 (hereinafter referred to as the New Policy ), which is reproduced as follows:

GOVERNMENT OF PAKISTAN CABINET SECRETARIAT ESTABLISHMENT DIVISION ******* No F.53/1/2008-SP Islamabad the 11th May, 2017 OFFICE MEMORANDUM Subject:- Amendment in the Recruitment Policy/Mechanism to Ensure Merit Based Recruitment in the Ministries/ Divisions/Sub-ordinate Offices/ Autonomous/ Semi- Autonomous Bodies/Corporations/ Companies / Authorities The undersigned is directed to state that the Federal Cabinet in its meeting held on 12th April, 2017 has accorded approval of the subject amendment to be inserted as para 1(e) in the Recruitment Policy/Mechanism issued vide this Division's O.M.No.531/2008-SP dated 16th January, 2015 as under:- 1(e) Appointment on Regular Basis of Contract/ Contingent Paid/Daily Wage/Project Employees For the purpose of appointment on regular basis of Contract/ Contingent Paid/Daily Wage/Project employees the following criteria shall be observed:- (i) All Contract/Contingent Paid/Daily Wage/Project employees who have rendered a minimum of one year of service, in continuity, as on 1-1-2017 (hereinafter referred to as eligible employees) may apply for appointment on regular basis in the manner prescribed hereinafter provided that the condition of continuity shall not be applicable in case of person(s) employed on daily wages who have completed at least 365 days service. (ii) For initial appointment to posts in BS-16 and above, the employees shall apply direct to FPSC against relevant/suitable vacancies as and when arising for which they are eligible. (iii) For initial appointment to posts in BS-1 to BS-15, the eligible employees may apply as per criteria given vide this Division's O.M.No.53/1/2008-SP dated 16-1-2015 and 3-3-2015 shall be adopted.

(iv) The eligible employees shall be awarded extra marks in interview at the rate of one (01) mark for each year of service rendered upto a maximum of five (05) marks, on the recommendations of the respective selection authorities. (v) The period served as contract/contingent paid/daily wage/ project employee, shall be excluded for the purpose of determination of upper age limit in addition to relaxation of upper age limit as per existing rules. (vi) Qualifications prescribed for a post shall be strictly followed. In case, a person does not possess the prescribed qualifications/ experience for the post he/she is applying for, he/she shall not be considered for the same. (vii) The employee must be in good mental and bodily health and free from any physical defect likely to interfere with the discharge of his duties unless appointed against disability quota. (viii) The advantage of para 1(e) is a one-time dispensation for all contract/ contingent paid/ daily wage/ project employees for their eligibility to regular employment. 2. This Division's O.M. of even number dated 16th January, 2015 is modified to the above extent. All Ministries/Divisions are requested to take further action accordingly. -sd-

(Attiq Hussain Khokhar) Director General Tel: 051-9103482 All Ministries/Divisions Rawalpindi/Islamabad

3. With the consent of all the learned counsel appearing on behalf of the petitioners, the petitions were argued by Mr. Hafiz S.A. Rehman, Mr. Abdul Rahim Bhatti and Mr. Shoaib Shaheen ASCs. 4. The learned counsel contended that; in majority cases temporary appointments are made when sanctioned posts are not available or the competent authority, due to the volume of work, feels it is necessary; most of the petitioners have served for more than…

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