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Petitioner: MANSOOR KHAN VS Respondent: GOVERNMENT OF KHYBER PAKHTUNKHWAHonorable Justice Waqar Ahmad SethGhulam Nabi Khan,Rab Nawaz Khan
2016 P L C (C.S.) 575
[Peshawar High Court]
Before Waqar Ahmad Seth and Syed Afsar Shah, JJ
MANSOOR KHAN and others
Versus
GOVERNMENT OF KHYBER PAKHTUNKHWA and others
W.P.No.2307-P of 2013, decided on 6th November, 2014.
Civil service---
----Contract employees--- Termination of service--- Scope---Discrimination---Petitioners were holding civil posts in connection with the affairs of the Federation and were civil servants---Terms and conditions of service of petitioners were to be regulated by Khyber Pakhtunkhwa Civil Servants Act, 1973---Matters falling within the domain of Art.240 of the Constitution and Khyber Pakhtunkhwa Civil Servants Act, 1973 would not be out of the ambit of a Constitutional court---Procedure for the purpose of appointment was followed properly and selection of petitioners were made by the competent selection committees---All the appointments were temporary on contract basis for fixed terms or till arrival of recommendations of Public Service Commission---Petitioners took-over the charge under the settled law of the land---All the posts were converted into regular with creation of regular posts---Petitioners were continuously in-service right from the day of appointments till the issuance of impugned dispensation order---Even dispensed with/terminated employees had been re-appointed by reducing the upper age limit against the regular posts---Appointments had been made on regular basis from amongst the dispensed with employees---Petitioners had been discriminated who had become over-aged by now---Constitutional petition was accepted in circumstances.
2013 SCMR 304 distinguished.
Haji Zahir Ali and others v. Government of Balochistan and others 2010 SCMR 678 and Dr. Munir Ahmad and 37 others v. Government of Pakistan, Finance Division, Islamabad and 4 others" 2007 PLC (C.S) 285 rel.
Ghulam Nabi Khan for Petitioners.
Rab Nawaz Khan, AAG for Respondents.
Date of hearing: 6th November, 2014.
JUDGMENT
WAQAR AHMAD SETH, J.--- Through the instant Constitutional petition under Article 199 of Constitution of Islamic Republic of Pakistan 1973, the petitioners have approached this Court for the following relief:-
"In the aforesaid circumstances, it is, therefore, respectfully prayed that on acceptance of this Writ Petition, the Office Order No.9790-9822 dated 29/7/2013 regarding dispensation being illegal, unlawful, without jurisdiction / authority may please be set aside and the respondents be directed to allow the petitioners to carry on their services of their posts.
It is also humbly prayed that the respondents may please be directed to extend the benefit of regularization to the petitioners from the dates of their appointments thereby treating the petitioners equally with the other employees serving in the different institution within the jurisdiction of FATA."
2. Precisely stating the facts of the case necessary for disposal of the instant petition are that Director Education (FATA) Secretariat advertised certain posts of Teachers/Lecturers in the different Schools/ Colleges through advertisements (Annexure C, C-1 and C-2), the petitioners being eligible applied for the said posts and after completing the legal procedure, they were appointed on their respective posts on fixed monthly basis initially for two years and they have been serving on the said posts for so many years without any intervention or extension issued by the respondent's department. However, in the year 2008 at the first time services of the petitioners were extended for one year and this practice was regularly going on yearly basis. Vide office order dated 07/01/2013 Finance Department FATA Secretariat, 1797 posts were created for Establishment of different Schools which includes the posts of the petitioners and lastly vide impugned office order dated 29/07/2013 the services of the petitioners were dispensed with effect from 30.06.2013. It is averred in the petition that the Government of Pakistan, Cabinet Secretariat (Establishment Division), Islamabad approved the regularization of the FATA employees vide minutes of meeting circulated through letter dated 17.05.2013, followed by a letter dated 28/05/2013 issued by the Governor's Secretariat but no benefit of the above letters have been extended to the petitioners despite the fact that according to the above letters, so many employees being on the same footing and working on Project basis have been duly regularised. It is further averred that so many employees of the Education Department serving in FATA who were appointed on the fixed pay and also on the same footing have been regularised by the respondents' Department while the said benefit has not been extended to the petitioners which is clearly discrimination with the petitioners and violation of the relevant Rules. According to the petitioners, they have approached the respondents/department for the grant of such relief/benefit but in-vain, hence having no other adequate and efficacious remedy, they have approached this Court through the instant constitutional petition.
3. Arguments heard and record perused.
4. Petitioners were engaged by the respondents in different schools/college situated within the territory of the agencies /FRs, as IT teachers. According to Article 240 of the Constitution of Islamic Republic of Pakistan, 1973, appointment to and the conditions of service of persons in the services of the Federation, posts in connection with the affairs of the Federation and all Pakistan service are determined by or under Act of Majlis-e-Shoora and in the case of services of a Province, by or under Act of the Provincial Assembly.
5. Pursuant to the provisions of Article 240 of the Constitution and in order to regulate by law the appointments of persons to and conditions of service of persons in the service of Pakistan and to provide for matters connected therewith or ancillary thereto, Civil Servants Act, 1973 was enacted wherein "Civil Servant" has been defined in Section 2(b) of the Act as under:-
"Civil Servant" means a person who is member of all Pakistan service or of civil service of the Federation or who holds a civil post in connection with the affairs of the Federation, including any such post connected with defence, but it does not include.
(i) a person who is on deputation to the Federation from any Province or other authority;
(ii) a person who is employed on contract, or on work charge basis, or who is paid from contingencies; or
(iii) a person who is a "worker" or "workmen" as defined in the Factories Act, 1934 (XXV of 1934), or the Workmen's Compensation Act, 1923 (VIII of 1923);
6. The appellants holding civil post in connection with the affairs of the Federation are, therefore, Civil Servants within the meaning of Section 2(b) of the Civil Servants Act, and their services including terms and conditions are to be regulated by the Civil Servants Act, 1973.
7. In exercise of powers conferred under Section 25 of the said Act the President of Pakistan has made Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. According to Rule 3(2) of the said Rules, method of appointment and qualifications and other conditions applicable to a post are to be laid down by the Ministry or the Federation concern, in consultation with the Establishment Division.
8. So far as the embargo and restraint on the exercise of jurisdiction of the High Court or Supreme Court of Pakistan under the provisions of Article 247(7) is concerned the same is not attracted to the case in hand for the reasons that the posts are created in respect of civil service of Pakistan and appointments made thereto are governed by the terms and conditions land down in Civil Servants Act, 1973. Matter falling within domain of Article 240 of the Constitution and Civil Servants Act, 1973 promulgated pursuant to the provision of the said Article and Rules made thereunder would not got out of the ambit of a Constitutional Court on the ground that such a civil servant was appointed against a post created and meant for managing or looking after the affairs relating to FATA. Apart from the above similar matters pertaining to the service of employees of FATA DC were entertained by this Court and the August Supreme Court of Pakistan. We would, therefore, hold that jurisdiction of this court would not be ousted in view of bar articulated in clause 7 of Article 247 of the Constitution.
9. As far as the procedure contained in the law of land for the purpose of appointment is concerned, the same was followed properly as the required advertisements are on record, and selection of all the petitioners were made by the Competent Selection Committees after preparing the merit list, in the year 2003, and onwards after establishment of IT Laboratory's in FATA. In the advertisement on record, the word 'contract' was used but appointment letters were on fixed pay for a period of two years on temporary basis, with no mention of project neither in Advertisement nor in appointment orders. Accordingly petitioners took over the charge after Medical, as required under the settled law of land. In some of the appointment letters Civil Servants Act, 1973 was also mentioned, however, all appointments were temporary on contract basis for fixed terms or till the arrival of the recommendees of the KPK Public Service Commission. The appointment of IT teachers were made from the years 2003 to 2005 as per policy of the then Government, in education sector, in FATA, PATA, and settled area simultaneously. For promoting standard education 1797 Posts were created in FATA for establishment of Public School, High Schools, Middle Schools, IT Laboratory's, vide letter dated 07.01.2013, (Annexure-F page 63 of the writ petition) shows the break-up 284 posts of I.Ts in different Agencies/FRs which also reflects the needs of I.Ts Teachers as permanent category, as well but strange enough the impugned order 29.07.2013 has been issued, which reads:---
"Subsequent to shifting to regular side with creation of regular post by the Federal Government and closure of the projects on 30.06.2013 titled "Provision of Salaries for IT Staff of 26 X High Schools in FATA (under Federal Government matching Grant Scheme)" and an ADP Schemes "Information Technology (IT)" in various Agencies/FRs, contract services of all the IT teachers working therein the schools and colleges in FATA under the above said schemes, are hereby dispensed, with effect from 30.06.2013. The DDOs concerned may stop payment of monthly salaries of the IT teachers beyond 30.06.2013."
10. Two important aspect of the impugned order, annexure-G are that, firstly all the posts of I.Ts are converted into regular side with creation of regular posts and secondly, all the petitioners were continuously in-service right from the day of appointments till the issuance of impugned dispensation order dated 29.07.2013.
11. The Petitioners are claiming equal treatment as the ITs engaged along with petitioners in the settled area have been regularized under KPK Employees (Regularization of Service) Act, 2009, vide notification dated 26.10.2010 (Annexure-D-13 page 50 is referred), notification dated 23.06.2010 (Annexure-D/14 page 51), notification dated 09.03.2011 (Armexure-D/15 page 52 is referred) and so on. The plea of the respondents is that petitioners were appointed in a project post and that too on fixed pay hence neither covered under Act, 2005, or under Act, 2009. Moreover, it was argued that contract, work-charged and temporary employees have no vested right for regular appointment. (interestingly there is no mention of Project in the Advertisement nor in the appointment orders).
12. In reference to contract appointments against a project post in FATA territory in recent past following orders/notifications have been issued.
---Decision of Cabinet Sub-Committee on regularization of contract/ daily-wages employees office memorandum dated 27.05.2013 annexed at page 71 of the writ petition reads:
---250 "The Cabinet Sub-Committee discussed and observed that the employees of FATA Secretariat belong to the Project and the employees getting salaries through development budget cannot be considered for regularization until and unless their projects are transferred to non development budget or equal number of posts are available with the Ministry on non development budget for regularization of their services. If posts are available on non development budget or the employees are getting salaries through non development then all those contract/daily wages employees who have served for more than one year can be regularized". In the instant case posts have been created on regular side.
----Governor order dated 28.05.2013, "I, therefore, as Governor Khyber Pakhtunkhwa do hereby approve in principle the following parameters for Regularization of Project Employees working in FATA with immediate effect and as a one time dispensation".
i) That corresponding SNEs with the same nomenclature and grade stand approved on the regular side.
ii) That the posts/cadres are not available on the Provincial side of Khyber Pakhtunkhwa.
iii) That the employees working against project posts have been appointed in strict accordance with rules and procedure and is fully qualified.
iv) That the employee is having minimum 2 years continuous service in the project and she/he performed satisfactory.
v) That such employee should be junior most in that particular grade in senior regular employee(s) is already availab1e. In case of more than one project employees of the same nomenclature and post their inter-se-seniority shall be determined as per prevalent policy.
vi) Such employees so regularized would have non transferable service from the organization/cell/office concerned and their claim of promotion, as and when occurring will be in line in the same organization in which they were initially appointed.
----Adjustment of teaching/non-teaching staff of Bajour Public School on newly created posts dated 20.05.2013 by the competent authority i.e. Governor of KPK (Annexure-K of the writ petition).
----Notification dated 30.05.2013 whereby Computer Operator, Junior Clerks, Naib Qasids, have been regularized (Annexure-L of the writ petition).
----Adjustment of Teaching/non Teaching staff of Parachinar Public School on newly created posts dated 20.05.2013 by the Competent Authority i.e. Governor of KPK. (page 88 of Writ Petition)
----Notification of 2013 I.Ts Lab in-charge working on contract basis in the Education Institution in FATA, since long----regularized in the interest of public service, by the Competent Authority---exactly similar to the petitioners. (Page 89 of Writ Petition).
----Similarly in settled area, the I.Ts appointment, along with petitioners under the same policy stand regularized under the Act, 2009 (Annexure-M of the writ petition)
13. In the appointment orders of the petitioners reference of Civil Servants Act, 1973 is given (page-41 annexure D-5), hence, KPK Civil Servant (Amendments) Act, 2005 and KPK Employees (Regularization of Service) Act, 2009 are also applicable as there are the Amendments in Act, 1973 and as such some of the petitioners filed W.P. No.2085-P/ 2012 before this Court, the same was disposed of with following remarks:-
"The documents annexed with the writ petition and the comments furnished by the respondents show that the process of regularization is still on and it is yet to be brought to its logical end. They further reveal that the respondents have not yet refused to regularize the petitioners against the said posts. The project is going on and the salaries are paid to the petitioners. So at this stage when no order refusing regularization of the petitioners has been passed, we do not think the petitioners have been clothed with any cause of action. The writ petition is thus rejected being premature. However, in case the situation turns otherwise, the petitioners may if so advised, approach this court for the redressal of their grievance".
14. Record is also suggestive that even dispense with /terminated employees of FATA Community School teachers were re-appointed by reducing the upper age limit, against the regular post, one such recent notification reads as under:-
i) "The available regular vacant PST (BP-7) posts in the Primary/Middle Schools in FATA will be filled up from amongst the Community School Teachers and no fresh candidate considered for recruitment till all the eligible community School Teachers are absorbed against regular posts in their respective Agencies/FRs.
ii) The non-local eligible Community School Teachers shall be considered for re-appointment against the regular vacant posts of PST (BS-7) after adjustment of local qualified teachers.
iii) The services of the unqualified teachers shall be dispensed with.
iv) The Community Schools whose teachers are appointed and shifted to other schools against regular posts would be closed down.
v) The respective Community Schools students would be shifted to nearby regular schools and no further Recruitment of Community Schools will be made".
And accordingly appointments were made on regular basis from amongst the dispensed with employees (Annexure -S page 105 to 107).
15. In similar circumstances regarding the FATA contract employees, in W.P. No.969 of 2010 decided on 07.11.2013, it has been held:
"Petitioners of this and of the connected petitions are aggrieved of the inaction and implied denial of the respondents particularly, FATA Secretariat Authorities, not regularizing their services in accord with the decision of the Cabinet/Cabinet Sub-Committee dated 29.08.2008. The simple ground given by the Authorities for the impugned action is that the petitioners are not employees of FATA Secretariat, hence, they cannot get the benefit of Cabinet decision, referred to above".
For the redressal of their grievance, they earlier filed W.P. No.969/2010 before the High Court which was allowed mainly on the strength of amended provision of Section 19 of the Civil Servants Act, 2005, followed by similar Amendment Act, 2009, directing the regularization of services of contract employees.
The respondents filed a leave petition before the Hon'ble Apex Court where the matter was considered from all aspects. The view held by this court was although impliedly upheld, however, the Apex Court further held that because of the Cabinet decision, referred to above, which was a matter agitated in the petition before the High Court, was not properly addressed and no decision was given thereon, therefore, it was deemed appropriate to remand the case to reconsider that aspect from all legal angles within a minimum possible time, however, preferably it may be decided by a Full/Larger Bench.
Accordingly, a Full Bench was constituted to consider the legal effect of the above decision of the Cabinet Sub-Committee which was communicated to FATA Secretariat by the Cabinet Division/Secretariat, directing it to regularize the services of the petitioners any many others alike, numbering 1282 but the respondents put the matter on the back burner and on the ground of sheer technicalities thwarted the process despite of repeated directions given by the Cabinet Division and the Ministry of SAFRAN.
Initially 157 posts were created and sanctioned by the President of Pakistan, who is the Executive Authority for FATA, which is exercised through the Governor of Khyber Pakhtunkhwa as his Agent and the Ministry of SAFRAN has to oversee the Administrative, Departmental, Social Development Projects, Law and Order and other allied matters which has been listed in the Policy Decision of the Federal Government and to given guidance and instruction to FATA Secretariat. The Ministry of SAFRAN has also supported the case of the petitioner and many others, who are waiting for regularization of their services.
The learned counsel representing FATA Secretariat (Mr. Imtiaz Ali, Advocate) although did not oppose the decision of the Cabinet Sub-Committee conveyed to FATA Secretariat through Cabinet Division, however, he was of the view that let a time frame be given to FATA Secretariat to do the needful and comply with the directives of the Federal Cabinet but at the same time to provide a service structure for these and other employees of alike nature, whose services are to be regularized, so that, all matters are determined and conclusively settled once for all to avoid interse litigation between these employees or between these employees and FATA Secretariat.
In the connected W.P. No.289-P/2012, the plea taken by the replying respondents is that it is the Federal Public Service Commission to appoint the petitioners under the Function Rules of 1978, however, while taking this stance the replying respondents have conveniently ignored that the petitioner is holding the post, below grade-15 thus, it does not fall within the domain of the Federal Public Service Commission.
A Division Bench of this court in similar circumstances while entertaining Writ Petitions bearing No.82-P/2012 and 2305-P/2012, through an elaborate judgment dated 14.05.2013, has categorically held that the Federal Cabinet decision, conveyed to the FATA Secretariat on 29.08.2008 on the subject matter, directing to regularize the services of contract employees from PBS-1 to PBS-15 was not adhered to without any lawful justification. After discussing the legal and constitutional position, it was ultimately held that because other alike employees were treated differently, giving benefit to them of the above policy by the respondents, thus it was further held that the petitioners of those two petitions shall be deemed to have been regularized from the date when the Federal Cabinet took the decision on 29.08.2008 and was conveyed to the FATA Secretariat but in their respective pay scales.
The case of the petitioners is placed on the same pedestal and equal footing and when the replying respondents are not controverting this legal position rather have conceded in regularizing the services of all such employees including the petitioners but with the request than they may be given a reasonable time to create certain posts and to draw service structure for these and other employees to regulate their permanent employment in FATA Secretariat vis-a-vis their emoluments, promotions retirement benefits and interse seniority as well then, we are not supposed to go into the interpretation of various; provisions of the constitution, that of the Business Rules of 1973 of the Federal Government, the notification through which the FATA Secretariat was established and the notification through which the Ministry of SAFRAN was constituted/created and was given an effective and active role in the affairs of the FATA.
Accordingly, this and the connected petitions, mentioned above, both are admitted and allowed as prayed for. Services of all the petitioners including those, who are similarly placed and serving on contract basis in the FATA Secretariat, shall be regularized in light of the Cabinet decision conveyed to FATA Secretariat by the Cabinet Division, meeting of which was held on 13.03.2013.
Needless to remark that in view of the judgment of the Hon'ble Apex Court in the case of "Government of NWFP (Now KPK) v. Mst. Shagufta Sayyed" (CPLA No. 151-P/2009), once the Project employees, who were working on contract basis and some of whom on that ground was not given relief by this Court like the rests, they too were granted the same relief on the analogy that no clear line of demarcation can be drawn between them, therefore the FATA Secretariat shall not create any unnecessary impediment in the way of similarly placed Project employees and shall not enter into the field of unessential technicalities to block the way of the petitioners and similarly placed other employees who too are entitled to the same relief although not before us because on the strength of principle of law laid down by the Hon'ble Apex Court in the case of "Hameed Akhar Niazi v._The Secretary Establishment Division, Government of Pakistan' (1996 SCMR 1185), however, the FATA Secretariat is given three (03) months time to complete the entire process discussed above and it shall be clearly understood that it is a last chance for them and no further extension would be granted on any ground whatsoever because the matter is old enough and the petitioners along with hundred and hundreds other are suffering and are in trouble besides mental agony. The Additional Chief Secretary FATA with collaboration of other Secretaries and with the instruction of Government of Khyber Pakhtunkhwa may create a task force to achieve the objectives highlighted above including preparation of service structure and regularization of service of these employees, so that the entire process is completed within the given time.
16. From the above documents it is clear beyond doubt, that there…
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