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Petitioner: Muhammad Younas & others VS Respondent: Federation of Pakistan through Secretary Ministry of Overseas Pakistani & Human Resource Development (HRD) & others
Court Name: Peshawar High Court Judge(s): Waqar Ahmad Seth Title:Muhammad Younas & others vs Federation of Pakistan through Secretary
Ministry of Overseas Pakistani & Human Resource Development (HRD) & others Case No.: Writ Petition 347-B of 2016. Date of Judgment:2017-11-22 Reported As: 2017 PHC 1200 Result: Order accordingly Judgment WAQAR AHMAD SETH, J:- Through this single judgment we intend to decide the instant writ petition as well as connected writ petitions bearing Nos. 305, 571-A of 2015, 904, 929, 996, 1072, 1084, 1102 & 1169-A of 2016, COC No. 376- P/2015 in WP No. 130-B/2014, 181-B 2017, 249 & 250-B of 2017, 507, 635, 712, 713, 746, 817, 818, & 819-B of 2016, 190 D/2016, 438-P/2015, 498-D/2015, 568-D/2015, 750, 784, 804, & 8187-D of 2016, 942, 948, 1022, 1292-P 2017, 1358/201 1, 1881, 2554, 2694, 3453, 3567-P/2017, 3618, 3659 , 3786, 3787, 3953, 4125, 4256, 4376-P/2016, 4517-P/2017 & 4734 & 4735-P of 2016, as identical question of facts and law are involved therein. 2. Petitioners, Muhammad Younas, Aminullah Khan & Jawad Ahmad, being President / Representatives of Contract Employees Union, Worker Welfare Board, Khyber Pakhtunkhwa, Peshawar / Bannu / South Waziristan Agency , have filed the instant constitutional petiti on with the prayer to declare; i) the constitution of the Governing Body (GB) 2015 16 of Worker Welfare Fund, as illegal, void, unconstitutional, against the rules / policy and Worker Welfare Fund Ordinance, 1971 and any act of the Governing Body upon its constitution as illegal, void, un- constitutional against the rules and policy of Worker Welfare Fund Ordinance , 1971; ii) 132nd meeting and impugned minutes of the Governing Body (GB) 2015-16 of Worker Welfare Fund held on 1.10.2015 and any decision taken, act approved therein, as illegal, void, unconstitutional, against the rules / policy and Worker Welfare Fund, Ordinance, 1971; iii) the impugned 81 meeting of Worker Welfare Board, Khyber Pakhtunkhwa held on 30th December , 2015 and its minutes dated 12.1.2016 and any decision, act of the Worker Welfare Board, Khyber Pakhtunkhwa done subsequent upon the impugned 81' meeting as illegal, void, un-constitutional and against the rules / policy / Ordinance, 1971; iv) the respondents may be directed to release all the shares of the Province of Khyber Pakhtunkhwa in W orker W elfare Fund and to annual the rationalization of employees.
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3. In essence the case of petitioners is that, on 12May, 2015, an agreement in-between petitioners & Minister for Labour & Manpower, Khyber Pakhtunkhwa, was executed qua regularization of all teaching and non-teaching staff of Worker Welfare Board, Khyber Pakhtunkhwa, followed by notification dated 13.5.2015, whereby it was notified that all contract employees of Khyber Pakhtunkhwa, Worker Welfare Board will be recommended for regularization before 30.06.2015, subject to clearance from NAB. On 13.10.2015, yet another notification bearing No. SO (L) LD/3-23/2015 was issued regarding regularization / extension of contract employees for further period of three years subject to observance of codal formalities, but on 1.10.2015 when the new Governing Body (GB) held its 132' meeting has approved the rationalization of teaching staff and reduction of estimated establishment of Worker Welfare Board, Khyber Pakhtunkhwa from 1927.00 million & 1746.00 million to 1000.00 million, which was subsequently approved by the Governing Body (GB) 2015-16 of Worker Welfare Board, Khyber Pakhtunkhwa, in its 81 meeting held on 30.12.2015, hence the instant writ petition for regularization. WP No. 750-P/2016. The petitioner of the instant writ petition was appointed as Junior Clerk on contract basis, which was extended from time to time, but subsequently abstained from duty by holding salary , as well. WP No. 1881-P/2017. Petitioner, Muhammad Abid Javed, was appointed as Laboratory Assistant BS-11 on 19.4.2012, as non teaching staff on contract basis, but was terminated from service vide impugned letter of termination 15.10.2014, against which he filed application / appeal which was sent to respondent No.1 on 20.2.2015 for decision, but of no avail, hence the writ petition. WP No. 3453-P/2016. Petitioner of the instant writ petition was appointed as Assistant Director on 29.8.2012, and after completion of probation was regularized vide order dated 28.8.2013, and uptill May, 2016, he was paid salary as regular employee, but subsequently his salary was stopped by treating him contract employee, hence the petition for regularization. Petitioners of the instant petition have been appointed on contract basis in different Labour / Worker Colonies & Community Centers since 2011& onward and have been given extension till June, 2018 by WWB in its 85 meeting, however , they are seeking regularization on the analogy of order dated 8.2.201 1 whereby other employees have been regularized. WP No. 3668-P/2016. Petitioner was appointed as Senior Clerk BS-7 on 29.3.201 1, on contract basis, and vide order dated 20.2.2012, was regularized, but later on excluded from the regularized list of employees, hence the petition for regularization. WP No. 3659-P/2016. Petitioner through the instant petition seeks declaration to the effect that he has been appointed after due process of law, in a prescribed manner , therefore, the respondents be directed to place his name in the Seniority List of confirmed employees and circulate the same as per rules; with further prayer for release of salary withheld for the last seven months. Nayyar Zaman & Mst. Najma, petitioners were appointed as Principals, on contract basis vide order dated 21.12.2012 & 14.1.2013 respectively, which was extended from time to time, however on 21.9.2016, one Mr. Arshad Hussain & Musarrat Jabeen, were appointed on acting charge basis as Principal against the post of petitioners, and petitioner were relieved, hence the petition for regularization. WP No. 2554-P/2017. Petitioner was appointed as Teacher 13S-14 vide order dated 11.2.2012, on contract basis, however, on 2.5.2013; he was downgraded to BS-9, as Lab Assistant and later on stopped his salary and declared him as Black List, hence the petition. WP No. 904, 929, 996,1072, 1084, 1102, 1169-A/2016. Petitioners of the instant petition have been appointed on different posts through different advertisements on contract basis, and since then are continuously performing their duties on their respective posts of appointments. On 21.8.2015, petitioners through representative submitted application for regularization, but inspite of regularization respondents have constituted Rationalization Committee and withh eld their salaries since March, 2016.th d st th
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Petitioner of the instant petition was appointed on 18.1.2013, as Elementary Teacher 13S-14 on contract basis for a period three years, but was terminated on 19.7.2013, however, on 19.11.2013, was re-instated. On 14.2.2014, all appointments were stand cancelled, which was withdrawn in 76 meeting held on 22.9.2014, vide notification dated 3.10.2014, and since then petitioner is performing her duty regularly, but till November, 2015 salary of petitioner has been withheld without any reasons, hence the petition for regularization as well as salary. WP No. 818-D/2016. Petitioner of the instant petition was appointed as Principal BS-7 on contract basis vide order dated 21.1.2013 and since then he performing his duty with devotion, but without any reasons respondents have stopped his salary from June 2013 to August 2015 and March 2016 up till now, against which approached the competent authority, but in vain, hence the petition for regularization as well as salary. WP No. 784-D/2016. Petitioner of the instant petition was appointed as Subject Specialist BS-17 on contract basis for a period three, however on 19.7.2013, she was terminated, and on 7.8.2013 was re instated, and since then she is regularly performing her official duties, but since March, 2016, she has not been paid her salary; rather subsequently abstained from duty. WP No. 804-D/2016. Petitioner was appointed as Junior Instruc tor BS-14 at Matric Tech Program (Female) DI Khan for a period of three years and received her salary till 31.5.2016, but thereafter respondents have stopped her salary and abstained her from duty , hence the petition for regularization and payment of salary . WP No. 498-D/2016. Petitioner through the instant petition seeks regularization of his service as Commerce Teahcer BS-14 at Working Folk Grammar School, DI Khan against the newly created vacant post and release of his monthly salary with effect from 1.4.2014. WP No. 568-D/2015. Petitioner of the instant petition was appointed as Teacher BS-14 in Working Folk Grammar School DI Khan-II (Female) on contract basis vide order dated 21.1.2013, was terminated on 25.9.2013, which was subsequently withdrawn /cancelled on 13.11.2013, however , on 14.2.2014, the re instatement order was cancelled, which was challenged before this Court in WP 305-D/2014. During the proceedings, petitioner was reinstated on 14.10.2014 and since then she is performing her duties but respondents are not paying her salary hence the petition for regularization as well as salary . WP No. 1022, 3953 4376-P/2016, 507, 713, 746, 781, 818, 819-B/2016. Petitioners of the instant petition are teaching and non-teaching staff of Worker Welfare Board, who were appointed on contract basis for a period three years which was later on cancelled on 28.4.2014. On 3.3.2015 overage, less qualified and fake degree holders were excluded and their contract was extended to 30.6.2016, coupled with agreement with Minister of Manpower & Labour for their regularization, but despite that vide minutes of 81 meeting dated 30.12.2015, the Worker Welfare Board, has constituted rationalized committee for rationalizing the staff, hence the petition in hand for regularization. WP No. 181 & 149-B/2017. Jahanzaib Khan, Bismillah Jan & Ahmad Ali Khan, petitioners were appointe d on 24.1.2012, 20.2.2012 & 13.5.201 1, respectively and accordingly they took over the charge, but subsequently , were restrained from duty and placed in the black list, hence the petition. WP No. 948, 942, 2694, 4125 & 4734-P12016. Petitioners have prayed that they have been validly appointed against the mentioned post on contract basis and on the recommendation of selection committee were regularized on successful completion of probation period and as per decision of the Worker Welfare Board, acts omissions of the respondents in still treating the petitioners as contract employees and stopping their salary is illegal, unlawful, in violation of law against the express provision of law, Worker Welfare Fund Ordinance, 1971 and the Rules there-under and thus of no legal effect, therefore, the petitioners are entitled to be treated as regular employees and pay of the posts. WP No. 4256 -P/2016.th st
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Petitioner of the instant writ petition was appointed in teaching cadre in BS-14 on contract basis for a period of three years which was extended from time to time and has served for considerable length of five years, for which petitioner deserve regularization but despite several applications respondents paid no heed, hence the petition for regularization. WP No. 4735-P/2016. Mst. Ruclia Bibi, petitioner was appointed on 25.4.2011 and later on was promoted to BS-16 on the recommendation of Departmental Promotion Committee. On 28.6.2012, petitioner alongwith contract employees were regularized in its 64 meeting held on 17.6.2011, and drawn her salary from regular budget since august 2016, but thereafter salary of petitioner has been stopped without any reasons for which petitioner submitted applications, but of no avail, hence the petition. WP No. 4514-P/2017. Petitioner i.e All Pakistan Workers Welfare Board Employees Union (CBA) throu gh its President have filed the instant writ petition for regularizing the services of all employees union on the criteria of Governing Body in its meeting 109 held on dated 7.2.201 1. WP No. 130 -B/2014 & 635-B of 2015. Petitioners of both the writ petitions have asked for directing the respondents to approve policy guidelines for timely disposal of their grievances with further prayer of declaring the act of placing the petitioners Surplus Pool as illegal, void and of no legal effect by directing the respondents to adjust them on their respective posts of appointment. WP No. 305, 571-AJ2015 & 438-D/2015. Through the writ petitions 517-A/2015 & 438-D/2015, petitioners have asked for promotion to the post of Principal on the ground of seniority cum-fitness / 50% promotion quota while through writ petition No. 305-A/2015, petitioner has asked for implementation of notification No. FD/SO(FR)10- 22/2014 dated 20.5.2014 whereby certain posts including the post of petitioner have been upgraded. WP No. 1358/2011 & 1292-P/2017. Through writ petition petitioners who are 25 in numbers have asked for implementation of minutes of the Worker Welfare Board regarding promotion of the teaching staff of working Folks Grammar School held on 26.5.2008 & 27.5.2008 and to allow promotion to BPS-16 to petitioners with further prayer of arrears in higher scale since order dated 10.7.2009 & restoration of office orders dated 14.6.2010 whereby BS-17 was allowed to the petitioners with arrears / benefits; while through writ petition No. 1292-P/2017 petitioner has asked for promotion to BS-11 and allowing its benefits / fixing of pay 4. Comments were called from respondents which they furnished and negated the stance of petitioners. 5. We have heard learned counsel for the parties and perused the available record. 6. Before dilating upon the merits of the writ petitions it would be imperative to go through the judgment of the apex Court, which was passed in number of civil appeals, when these writ petitions were held not maintainable, and the apex Court while remanding the matter to this Court has held in its judgment dated 14.4.2016, which reads as under:- 7. "In view of this legal position, we are not inclined to accept the plea of the learned ASC, appearing for AG. ICPK rather we are of the considered view that his contention is based on entire misconception and similarly the learned Bench of the Peshawar High Court landed in a field of illegalities, ignoring this important legal aspect of the case. Probably no proper assistance was given to the High Court at the time of hearing of the constitution petitions of the appellants and it was perhaps for this reasons that the learned Bench of the High Court failed to take notice of it. 8. Even from another angle, after going carefully through the various provisions of the workers Welfare Fund Ordinance, particularly , S. 11-A the Workers Welfare Boards were constituted, which inter alia provides:- "11A. Constitution of Workers Welfare Boards.--(1) Where an allocation is made from the Fund to Provincial Government, any agency of the federal government hereafter in this chapter referred to as the agency or a body corporate under clause (a) of section 10, such provincial government, agency or, as the case may be, body corporate may, by notification to the official Gazette, constitute a Board to be known asth th
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worker welfare board, hereafter in this chapter referred to as the board for the efficient management and administration of the allocated money and the projects or other measures financed by such money . (2). A board consist of.-- (a). A chairman who shall be, in the case of a Board appointed.-- (i) By a Provincial Government, secretary to that Government in the department dealing with matters relating to labour welfare; or (ii). by an agency or a body corporate, such officer as the federal government may appoint; and (b). Not more than nine other members to be appointed by the Provincial Government, agency or, as the case may be, body corporate of whom.-- At least two shall be appointed from amongst the employers; and (ii). At least two shall be appointed from amongst the workers. (3). The members of a Board other than the Chairman shall hold office for such period and on such terms and conditions as may be determined by the Provincial Government, agency or, as the case maybe, body corporate. (4). No act or proceedings of a board shall be invalid by reasons only of the existence of a vacancy in, or defect in the constitution of, the Board." While u/s 11-B of the Ordinance ibid, the Provincial Workers Welfare Board has been described in the following terms:- "11B. Board to be a body corporate, etc.-{1) The Board shall be a body corporate by the name notified by the Government, agency or, as the case may be, body corporate cons tituting it, having perpetual succession and a common seal with power, subject to the provisions of this Ordinance, to contract, acquire hold and dispose of property, both movable and immovable, and shall by the said name sue or be sued. (2). The head office of the board shall be at such places the provincial government, agency or as the case may be, body corporate constituting the board may by notification in the official gazette, apply . (3). The Chairman of the Board shall be its chief executive and may appoint, a Secretary and such other staff on such terms and conditions as the board may sanction (with the previous approval of the Governing Body) (4). Subject to sub-section (3), all decisions of the Board shall be expressed in terms of the opinion of the majority of the members of the board present in a meeting and, in the even t of an equality of votes, the Chairman shall have a second or casting vote. (5). The provincial government, agency or , as the case may be, body corporate may issue directions to the board constituted by it regarding matters of policy including matters relating to scheme made under clause (a) of section 1 1C. Provided that if a difference arises as to whether a direction relates to a matter of policy , the decision of the federal government shall be final. (6). A casual vacancy in the office of a member shall be filled, as soon as may be, by the nomination of another person and the person nominated to fill such vacancy shall hold office for the unexpired terms of his predecessor." Similarly , under the provisions of S. 11-C the Board was empowered in specific and also in general terms to do any other thing necessary for, connected with or incidental to, discharge of its functions under this Ordinance or the rules or scheme made thereunder . 9. After the direction and approval of the Federal Government the Workers Welfare Board of each Province including the KPK (the then NWFP) adopted the statutory Rules of 1997, enacted by the Federal Government and for comprehensive management of the administration of the allocated money and the projects or other measures financed by such money service of the employees, their terms and conditions of service etc. the workers welfare board passed the regulations with approval of the Provincial Government and because of the powers conferred on it by the Rules of 1997. 10. Leaving aside the above legal position for a while, after constitution (Eighteenth Amendment) Act, 2010, which received assent of the President on April 91 2010 and was promulgated, issued and published in the
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extraordinary gazette on 28 April, 2010, the Ministry of Labour , all wings thereof and the attached departments to the Ministry of Labour , on the abolition of the Concu rrent Legislative List, stood transferred, devolved upon and vested in the Provincial Government with rights and liabilities, assets and the employees however , as several Ministries stood vested under the Constitutions (Eighteenth Amendment) Act, in the Provincial Governments therefore, a machinery provision was provided in sub- Articles (6), (7), (8) & (9) of Article 270-AA of the Constitution of the 1973 to practically give effect to new scheme of devolution, a high power Commission was constituted in well planned manner . To understand the true import of the above provisions the same are reproduced herein blow:- "270-AA( 1)... (6). Notwithstanding omission of the Concurrent legislative list by the constitution (Eighteenth Amendment) Act, 2010, all laws with respect to any of the matters enumerated in the said list (including Ordinances, Orders, rules, byelaws, regulations and notifications and other legal instruments having the force of law) in force in Pakistan or any part thereof, or having extra-territorial operations, immediately before the commencement of the constitution (Eighteenth Amendment) Act, 2010, shall continue to remain in force until, altered, repealed or amended by the competent authority. (7). Notwithstanding anything contained in the Constitution, all taxes and fees levied under any law in force immediately before the commencement of the constitution (Eighteenth Amendment) Act, 2010, shall continue to be levied until they are varied or abolished by an Act of the appropriate legislature. (8). On the omission of the Concurrent Legislative List, the process of devolution of the matters mentioned in the said list to the Provinces shall be completed by the thirtieth day of June, two thousand and eleven. (9). For purpose of the devolution process under clause (8), the Federal Government shall constitute an implementation commission as it may deem fit within fifteen days of the commencement of the Constitution (Eighteenth Amendment) Act, 2010." 11. The above provisions of sub-Articles (6), (7) and (8) on plain reading leave nothing in doubt nor it is open for debate that all laws made by the Federal Government / Competent authority, Ordinances passed the orders made, rules, laws, byelaws, regulations and notifications issued were provided protection, till the expiration of sunset, i.e 30 June 2011 and for the implementation of the devolution process a Committee of the eminent Senators, headed by the incumbent Chairman was notified as Implementation Commission, which was tasked to implement the devolution plan with full effect by the target date, mentioned above. The commission in its report, duly published and available on its website devised strategic plan to achieve the task, given to it by the target date. 12. Under the head-note, Recommendations of the Commission for the Third Phase of Devolution, recommendations were made for winding up of 5 Ministries in the third and final phase of devolution, transfer of provincial subject to the provinces, which includes the Ministry of Labour and Manpower, with all its assets and liabilities including the laws made, rules enacted, notifications etc issued, unless amended by the appropriate legislature of the Provinces. The Commission held sixty eight meeting from May 5, 2010 to June 26, 2011, out of which four were chaired by the then Prime Minister and completed its assigned task by the cutoff date of June 2011, set in the Eighteenth Amendment to the Constitution. 13. The Commission during the third and final phase of devotion also endorsed a new industrial regulations Act, for the Federal Capital while the Provinces promulgated their own Industrial Laws through their respect Provincial Legislatures. The implementation Commission, after consultation with the Provinces, their Chief Ministers, and Chief Secretaries placed the report before the Federal Cabinet, attended by the four Chief Minister of the four Provinces and the Federal Cabinet in its meeting held on December 1, 2010, approved the recommendations of the implementation Commission with regard to devolution of five Ministries on the Provinces, in the first phase, the devolution of five Ministries and partial devolution of six Ministries in the second phase while its report with regard to the devolution of remaining seven Ministries in the third phase (which includes the Ministry of Labour and Manpower) were approved by the Federal Cabinet in its meeting held on June 28, 2011.th th
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14. It is evident from the report of the Commission that the Federal Cabinet / Government approved the adjustment and repositioning of a total number of surplus employees of this Ministry, numbering 61, 231 in various division without any retrenchment or lay off. Before the Constitution (Eighteenth Amendment) Act, Ministry of Labour was within the domain of the Federal Government and once under its approval and direction the Workers Welfare Board has adopted the rules, regulating the terms and conditions of services of its employees then after above constitution amendment, by now, these rules are exclusively within the domain of the Provincial Government / Workers Welfare board and unless the same is amended, repealed, modified or re-enacted under the changed Constitutional scenario, the same have a binding statutory force and the services of the employees of the workers welfare board i.e the appellants and others, is squarely and…
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