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Petitioner: WASEEM RIAZ VS Respondent: MINISTRY OF CAPITAL ADMINISTRATION AND DEVELOPMENT (CADD)Honorable Justice Athar MinallahMuhammad Aftab Alam Rana,Ch. Shafiaq ur Rehman and Arshad Mahmood
2019 P L C (C.S.) 403 [Islamabad High Court] Before Athar Minallah, J WASEEM RIAZ and 119 others Versus MINISTRY OF CAPITAL ADMINISTRATION AND DEVELOPMENT (CADD) through Secretary and another
W.P. No. 3220 of 2016, decided on 6th March, 2018.
(a) Civil Servants Act (LXXI of 1973)---
----S. 5---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Rr. 10, 11, 12, 13, 14, 15, 16 & 17---Notification O.M. No.F.53/1/2008-SP dated 11-05-2017---Constitution of Pakistan, Art. 25---Recruitment policy---Petitioners were appointed on daily wages in various educational institutions and they sought direction to the authorities for their regularization---Validity--- Initial appointment to a post described in S. 5 of Civil Servants Act, 1973 was covered under Part-III of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---Qualifications and other conditions relating to eligibility to a post were laid down by concerned Ministry or Division in consultation with Establishment Division---Posts were divided into 2 categories; in basic pay-scale 16 and above or equivalent and in basic pay scale 1 to 15 or equivalent---Appointment to former posts were required to be filled through tests and examinations conducted by Federal Public Service Commission and in case of latter on recommendation made by Selection Committee of the relevant department after vacancies were advertised---Candidate for any post was eligible to be considered if he or she had possessed prescribed educational qualification, experience and other conditions---Age limit was also a relevant factor---All posts, whether permanent or temporary, were to be filled strictly in accordance with Civil Servants Act, 1973 and Civil Servants (Appointment, Promotion and Transfer) Rules, 1973--- New recruitment policy was not in conflict with Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 while implementing new policy appointing authority was to ensure that provisions of Civil Servants Act, 1973 and Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 were not violated in case of making appointments to posts described in S. 5 of Civil Servants Act, 1973--- Initial appointments of petitioners on daily wage basis were made in violation of principles of transparency and were void as other similarly placed persons were regularized therefore, petitioners could not be treated alike--- Illegality could not be made ground for discrimination nor would give rise to rights being accrued in favor of petitioners---Petitioners were seeking their appointment as civil servants under Civil Servants Act, 1973 and Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---New recruitment policy approved by Federal Cabinet was not in conflict with Civil Servants Act, 1973 and Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---Petitioners were in pay scale 16 and above and they were at liberty to apply directly to Federal Public Service Commission in accordance with new recruitment policy, i.e. Notification OM No. F.53/1/2008-SP dated 11-05-2017---High Court while exercising Constitutional jurisdiction could not condone lack of transparency and then allow illegality to perpetuate---Constitutional petition was dismissed in circumstances.
Khalid Saeed v. Shamim Rizvan and others 2003 SCMR 1505 and Mst. Mukhtar Begum and others v. Ala-ud-Din and others 1999 SCMR 914 rel.
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 Institutions (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; Abdul Rashid v. Riazuddin 1995 SCMR 999 and Messrs Mustafa Impex, Karachi and others v. The Government of Pakistan through Secretary Finance and others PLD 2016 SC 808 ref.
(b) Civil Servants Act (LXXI of 1973)---
----S. 2(a)---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Part-IV & R. 17---Ad-hoc appointment---Procedure---Only in exceptional circumstances and that too after seeking prior clearance from Federal Public Service Commission appointing authority may make ad-hoc appointment if latter considers it in public interest to fill post urgently till a candidate is nominated for initial appointment by Federal Public Service Commission such ad-hoc appointment can only be made for a period of 6 months---Even for making an ad-hoc appointment it is mandatory under Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 to advertise post and to observe qualifications and other conditions prescribed to case of making an initial appointment.
(c) Interpretation of statutes---
----Act and rules---Conflict---Effect---If a subordinate legislation is in conflict with parent statute, i.e., primary legislation, then it is void and ultra vires---Valid subordinate legislation can neither be made redundant nor supersede through a policy let alone a statute enacted by Legislature.
(d) Constitution of Pakistan---
----Art. 199---Constitutional jurisdiction of High Court---Scope---Policies and Fundamental Rights---Scope---Policies which are in violation of Fundamental Rights guaranteed under the Constitution or affect interests of public at large are void and therefore open to be challenged.
Watan Party and another v. Federation of Pakistan and others PLD 2013 SC 167 rel.
Muhammad Aftab Alam Rana for Petitioners.
Ch. Shafiaq ur Rehman and Arshad Mahmood for Respondents.
Israr ul Haq, Assistant Attorney General.
Muhammad Asif Channa, AD PEPA.
Date of hearing: 6th December, 2017.
JUDGMENT
ATHAR MINALLAH, J.---The petitioners have invoked the jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution ) seeking a direction to the respondents for regularization and implementation of Notification, dated 8-2-2013, issued by the Capital Administration and Development Division. The said notification was issued pursuant to recommendations made by the Sub-Committee of the Cabinet in its meeting held on 13-12-2012. The petitioners have also assailed summary, dated 31-05-2016 and its approval, dated 29-07-2016 and 13-08-2016.
2. The facts, in brief, are that some of the petitioners were appointed on daily wage basis in Basic Scales 16 and 17 as lecturers while others as JLT in BPS-16. The appointments were made in various educational institutions under the control of the Federal Directorate of Education i.e. the respondent No. 2. Pursuant to the policy approved by the Federal Cabinet in 2008 the Sub-Committee of the Cabinet on regularization of contract/daily wages recommended the petitioners for regularization. Consequently Notification, dated 08-02-2013, was issued by the Capital Administration and Development Division in respect of regularization of the petitioners subject to availability of posts. The Secretary, Capital Administration and Development Division sent a summary, dated 31-05-2016, to the Prime Minister of Pakistan recommending that vacant posts in BS-16 and 17 may be filled through the Federal Public Service Commission (hereinafter referred to as the Commission ). It was proposed that the Commission after carrying out scrutiny of the daily wagers may recommend the eligible candidates for being appointed on regular basis. The Finance Division forwarded the summary to the Prime Minister on 29-07-2017 and the latter approved the proposals contained therein on 13-08-2016. The petitioners are, therefore, seeking implementation of Notification, dated 08-02-2013. They have also assailed summary, dated 31-05-2016 and the approval granted by the Prime Minister on 13-08-2016.
3. The learned counsel for the petitioners has contended that; a vested right has accrued in favour of the petitioners since they stand regularized vide Notification, dated 08-02-2013; vested rights have accrued in their favour which cannot be taken back; the petitioners have served since a long time and, therefore, denial of the right to be regularized in service tantamounts to exploitation and, therefore, it is in violation of Article 3 of the Constitution; several other similarly placed employees have already been regularized in service and, therefore, refusal on part of the respondents to implement Notification, dated 08-02-2013, tantamount to violation of their fundamental rights guaranteed under Article 25 of the Constitution; the summary, dated 31-05-2016, was based on mala fide; public functionaries are under an obligation to act fairly and honestly; the impugned action and refusal to give effect to Notification, dated 08-02-2013 is in violation of vested rights.
4. The learned Assistant Attorney General, on the other hand, has argued that; this Court vide judgment, dated 01-11-2017, rendered in W.P. No. 2117/2016, rel "Ms. Shagufta Hashmat and others v. Federation of Pakistan, through Secretary Cabinet Div. and others" has already held that regularization amounts to initial appointment of a civil servant and that it cannot be made otherwise than as provided under the Civil Servant Act, 1973 (hereinafter referred to as the Act of 1973 ) and the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 (hereinafter referred to as the "APT Rules"); the petitioners were appointed on daily wage basis without selection through a transparent competitive process; the initial appointments are void and, therefore, no super structure can be built thereon; the Notification, dated 08-02-2013 is ultra vires the Act of 1973 and therefore, it does not create any right in favour of the petitioners.
5. The learned counsel for the petitioners and the learned Assistant Attorney General have been heard and the record perused with their able assistance.
6. It is an admitted position that the petitioners were appointed on daily wage basis without observing the principles of transparency. Moreover, the petitioners were not appointed against permanent posts. It is also admitted that the petitioners are in pay scales 16 or 17 and vide Notification, dated 08-02-2013, it was purportedly declared that they had been conditionally regularized in service i.e. subject to availability of posts. The said notification was issued pursuant to recommendations made by the Sub-Committee of Cabinet on regularization. However, the petitioners have not been regularized as yet and at this stage they do not enjoy the status of civil servants under the Act of 1973. In case Notification, dated 08-02-2013, is implemented the petitioners will attain the status of civil servants. The regularization of the petitioners will inevitably tantamount to initial appointment of civil servants under the Act of 1973 read with the APT Rules. The questions which have emerged for consideration of this Court in the instant petition are as follows:
a) The status of Sub-Committee of the Cabinet on regularization in the context of the Act of 1973 and the APT Rules?
b) The legality of Notification, dated 08-02-2013, in the context of the Act of 1973 read with the APT Rules; and lastly,
c) Whether rights have accrued in favour of the petitioners to be appointed as civil servants on regular basis against permanent posts?
d) What is the effect of direct appointment on daily wage basis without observing the principles of transparency?
7. In order to answer these questions it would be beneficial to examine the background relating to various policies formulated by the Federal Government relating to regularization of contract employees and the provisions of the Act of 1973 and the APT Rules. These aspects have been examined in detail by this Court vide judgment, dated 01-11-2017, rendered in W.P. No. 2117/2016, re: "Ms. Shagufta Hashmat and others v. Federation of Pakistan, through Secretary Cabinet Div. and others" The relevant paras are, therefore, reproduced as follows:
RELEVANT FACTS OF THE REGULARIZATION POLICIES: 04-06-2008.
8. A summary was sent for the approval of the Federal Cabinet, titled "Regularization of BS-1 to BS-15 contract employees". 26-08-2008.
9. The Cabinet approved the above summary.
29-08-2008.
10. 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.
11. 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.
12. The above proposed policy was approved by the Prime Minister of the Islamic Republic of Pakistan. 11-09-2014.
13. 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.
14. 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.
15. 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.
16. 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 For a 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.
17. 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.
18. 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
THE ACT OF 1973 AND APT RULES:
19. The Act of 1973 regulates the appointment of a person to the service of Pakistan and their terms and conditions. The appointment of a civil servant is, therefore, governed under the provisions of the Act of 1973. The other relevant legislation for the purpose of adjudication of the instant petitions is the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 (hereinafter referred to as the "APT…
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