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Official Citation: 2009 PLC(CS) 389
Court / Jurisdiction: PESHAWAR-HIGH-COURT
Parties: Dr. RIZWANULLAH vs GOVERNMENT OF N.-W.F.P. through Chief Secretary, N.-W.F.P., PeshawarHonorable Justice Dost Muhammad KhanRoohul Amin,Qaiser Rashid
This judicial decision was delivered by the PESHAWAR-HIGH-COURT. The matter involves proceedings between Dr. RIZWANULLAH and GOVERNMENT OF N.-W.F.P. through Chief Secretary, N.-W.F.P., PeshawarHonorable Justice Dost Muhammad KhanRoohul Amin,Qaiser Rashid, officially reported as 2009 PLC(CS) 389. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.
2009 P L C (C
2009 P L C (C.S.) 389
[Peshawar High Court]
Before Dost Muhammad Khan and Zia-ud-Din Khattak, JJ
Dr. RIZWANULLAH and 42 others
Versus
GOVERNMENT OF N.-W.F.P. through Chief Secretary, N.-W.F.P., Peshawar and 4 others
Writ Petitions Nos.1510, 1509, 1742, 1741, 1721, 1677, 1842, 1846, 2088, 1682, 2090, 242, 2002 of 2007 and 739, 27, 365, 460, 908 of 2008, decided on 18th November, 2008.
(a) North-West Frontier Province Civil Servants Act (XVIII of 1973)---
----Ss. 2, 19 [as amended by S.2(2) of North-West Frontier Province Civil Servants (Amendment) Act (IX of 2005) w.e.f. 23-7-2005)] & S.25---North-West Frontier Province Public Service Commission (Functions) Rules, 1983, R.4---Constitution of Pakistan (1973), Art.199---Constitutional petition---Appointments on contract basis against advertised posts by Selection Committee/Departmental Authority after conducting tests and interviews of petitioners---Consistent renewal of contract period of petitioners by competent authority and their working on respective posts till promulgation of North-West Frontier Province Civil Servants (Amendment) Act, 2005---Non-regularization of petitioner's contract services by authority after promulgation of Amending Act, 2005---Plea of authority was that selection of civil servants on contract basis for BPS-11 and above was within jurisdiction of Public Service Commission, thus, petitioners for not having been appointed in "prescribed manner" were not entitled to benefit of S.2(2) of Amending Act, 2005---Validity---Appointment of persons on contract basis by Governor or any person authorized by him in exercise of powers under S.25 of North-West Frontier Province Civil Servants Act, 1973 did not fall within the ambit of Public Service Commission for not being regular civil servants under S.2(2) thereof---By virtue of deeming phrase and words "all such persons" as used in S.2(2) of Amending Act, 2005, petitioners on its promulgation automatically stood regularized and deemed as civil servants for all purposes except pensionary benefits, thus, issuance of notification/executive order in this regard was only a formality to be done by departmental heads and petitioners were not required to approach them for such purpose---Petitioners could not be blamed for inaction of authority---Authority had no power to undo what was intended by Legislature, except to determine inter se seniority of petitioners on strength of their service---Petitioners by rendering continuous services for 4 to 10 yeas efficiently had acquired rich experience in relevant field thus, they would be of much worth as compared to new selectees of Public 'Service Commission for not possessing such long experience---High Court directed authority to do the needful within specified time---Principles.
Miss Shagufta Sayed and others v. Government of N.-W.F.P. Writ Petition No.1731 of 2006 and Mst. Naveed Yousaf, PST and 21 others v. E.D.O. and others Writ Petition No.1648 of 2007 fol.
(b) Interpretation of statutes---
----Delegated powers of rules making, exercise of---Object and scope stated.
The object of delegation of rules making powers is always aimed at to carry out and achieve the objects and purposes of an Act of Legislature. Thus, a rule making authority cannot enact a rule to override or render the main Statute ineffective.
When any rule/regulation or executive order made/passed by any authority under delegated powers of legislation comes in conflict with the statute made by the Legislature, then it shall be void to that extent and shall give way to the parent statute, which shall have overriding and superimposing effect.
Gatron (Industries) Limited v. Government of Pakistan and others 1999 SCMR 1072 fol.
(c) Estoppel---
----Estoppel would not operate against a Statutes.
(d) Constitution of Pakistan (1973)---
----Art. 201---Decision of a former Division Bench on a point of law---Validity---Subsequent Division Bench, though could not differ with opinion of former Bench, but if wished to differ with same, it might ask Chief Justice to constitute a larger Bench or leave such matter for decision of Supreme Court.
The Province of East Pakistan v. Dr. Azizul Islam PLD 1963 SC 296; The Province of East Pakistan v. Sirajul Huq Patwari PLD 1966 SC 854; Multiline Associates v. Ardeshir Cowasjee and others 1995 SCMR 423; Haji Ali Khan and Company, Abbottabad v. Messrs Allied Bank of Pakistan Limited PLD 1995 SC 362 and Sidheswar Ganguly v. State of West Bengal PLD 1958 SC India 337 rel.
Roohul Amin for Petitioners.
Qaiser Rashid, Addl. A.-G., Dr. Alam Dar, Asstt. Director Health and Bughdad Shah, S.O; Health for Respondents.
Date of hearing: 18th November, 2008.
JUDGMENT
DOST MUHAMMAD KHAN, J.---This single judgment shall also decide the following connected writ petitions:--
(i) Writ Petition No.1509/2007, Dr. Aziz Khan and others v. Government of N.-W.F.P and others, (ii) Writ Petition No.1059 of 2007, Muhammad Khalid and another v. Province of N.-W.F.P. through Secretary Zakat and others, (iii) Writ Petition No.1742 of 2007, Dr. Mumtaz Hussain and another v. Government of N.-W.F.P. and others, (iv) Writ Petition No.739 of 2008, Dr. Mansoor Ahmad and others v. Government of N.-W.F.P. and others, (v) Writ Petition No.1741 of 2007, Dr. Ali Muhammad and others v. Government of N.-W.F.P. and others, (vi) Writ Petition No.1721 of 2007, Dr. Tehmina Jalil v. Government of N.-W.F.P. and others, (vii) Writ Petition No.1677 of 2007, Dr. Mustafa and others v. Government of N.-W.F.P. and others, (viii) Writ Petition No.1842 of 2007, Dr. Muhammad Jawad v. Government of N.-W.F.P. and others, (ix) Writ Petition No.1846 of 2007 Dr. Farkhanda Jabeen v. Government of N.-W.F.P. and others, (x) Writ Petition No.2088 of 2007, Dr. Hamidullah v. Government of N.-W.F.P. and others, (xi) Writ Petition No.1682 of 2007, Dr. Shah Wali Khan v. Government of N.-W.F.P. and others, (xii) Writ Petition No.27 of 2008, Fida Muhammad Khan v. Government of N.-W.F.P. and others, (xiii) Writ Petition No.365 of 2008, Dr. Saleem Qasim and others v. Government of N.-W.F.P. and others, (xiv) Writ Petition No.460 of 2008, Abdur Rashid Pharmacist v. Government of N.-W.F.P. and others, (xv) Writ Petition No.908 of 2008, Dr. Aurangzeb v. Government of N.-W.F.P. and others, (xvi) Writ Petition No.2090 of 2007, Dr. Shahida Begum v. Government of N.-W.F.P. and others, (xvii) Writ Petition No.242 of 2007, Dr. Abdul Qasim v. Government of N.-W.F.P. and others, (xviii) Writ Petition No.2002 of 2007, Tauseef Aman v. Government of N.-W.F.P. and others.
because identical questions of law having decisive force are involved in all these petitions.
2. Before taking for discussion he law points involved herein, it is deemed proper to mention here that during hearing in the case of Dr. Farmanullah v. Chief Secretary, Government of N.-W.F.P. And others (Civil Appeal No.504 of 2008) before the Honourable Supreme Court, the learned Additional Advocate General, N.-W.F.P. made a statement that Writ Petition No.1510 of 2007 (the present one) involving similar questions of law was pending before this Court, thus, made a prayer that as a rule of propriety, the above Civil Appeal No.504 of 2008 shall be kept pending so that the ibid Writ Petition No.1510 of 2007 (of the present petition) is disposed of and the apex Court was pleased to order accordingly. The Registrar of this Court was directed to place the said Writ Petition No.1510 of 2007 before the Honourable Chief Justice for expeditious disposal. After receipt of the said order, the Honourable Chief Justice directed listing of all these cases for early disposal.
3. Today preliminary arguments were heard and because 2 judgments of this Court delivered in the case of Miss Shagufta Sayed and others v. Government of N.-W.F.P. Writ Petition No.1731 of 2006 decided on 11-9-2007 and the other given in the case of Mst. Naveed Yousaf, PST and 21 others v. E.D.O. and others Writ Petition No.1648 of 2007 dated 24-9-2008 was cited at the Bar, therefore, this petition along with the above connected writ petitions were admitted to full hearing. The learned Additional Advocate General and the learned counsel representing the petitioners in the above petitions agreed that let all be decided today because of the directions given by the apex Court and with the consent of the learned Additional Advocate General, the parawise comments filed in this petition were treated as comments in all the above writ petitions because he did not want to add any thing to the already submitted comments in this case. The learned counsel were directed to address the Court after the break.
4. Arguments heard and available record/documents annexed with the said petitions were perused and the admitted position in all these case on factual side is that all the petitioners in these petitions were initially appointed on contract basis by the departmental heads/departmental selection committees and their appointments were duly notified by the Government.
5. Some of the petitioners were appointed way back in 1995, others in 1999 and their contract period was duly renewed/extended from time to time through various notifications issued by the competent departmental authority. The last one in the series in some cases was issued in the year, 2004 while in other cases, the last notifications were issued in the year, 2007. Thus the learned Additional Advocate General did not dispute that the present petitioners were holding posts in the Health and other departments as employees appointed on contract basis when the N.-W.F.P. Civil Servants (Amendment) Act (IX) of 2005 came into force on 23rd July, 2005. He also did not controvert that after the notification of the Act in the extraordinary gazette of N.-W.F.P., some of the petitioners were still kept as contract employees by their respective departments, extending the tenure of their contract employment vide different notifications issued from time to time. Thus, it is an established fact that the petitioners in this writ petition and all those in the connected writ petitions, were contract employees working on their respective posts at the time when the N.-W.F.P. Civil Servants (Amendment) Act (IX) 2005 came into effect.
6. The learned counsel for the petitioners, in all these petitions, raised the following points of law which, may be summed up as follows:--
"(i) this Court in the case of Miss Shagufta Sayed and others v. Government of N.-W.F.P. and others, vide judgment given in Writ Petition No.1731 of 2006 dated 11-9-2007 had conclusively decided all the law points involved herein. Thus a subsequent D.B. cannot hold a different opinion from the one already formed;
(ii) that admittedly the petitioners in all these petitions were contract employees under the Government of N.-W.F.P. and were serving in different departments when- the Amendment Act (IX) of 2005 came into effect. Thus in view of the amendments introduced in section 19 of the N.-W.F.P. Civil Servants Act XVIII of 1973 on the strength of subsection (2) of section 2 of the Amendment Act, 2005, the contract services of all the petitioners ipso facto stood regularized but the respondents, putting unreasonable and irrational construction on the above provision of law, have refused to regularize their services which is, an act ab initio void and coram non judice;
(iii) that all these petitioners were duly selected and appointed in the prescribed manner on contract basis by the competent authority and all of them have successfully undergone written test/interview taken by the departmental selection committees/competent authorities; and
(iv) The contract employment of the petitioners was extended from time to time till the date when they earned the benefit of the provision of the Amendment Act (IX) 2005 and because the provincial Government has regularized similar contract employees in different Provincial Departments simply through executive orders/notifications but the petitioners herein, are given discriminatory treatment which has been forbidden by the constitutional command contained in Articles 4, 8 and 25 of the Constitution, 1973.
7. The learned Additional Advocate General, raised three-fold contentions with regard to the legal propositions involved herein, which are briefly cited below:---
(i) that all the petitioners were appointed on contract basis under a written agreement as stopgap arrangement and they were supposed to quit the posts they were holding, on the arrival of the selectees of the N.-W.F.P. Public Service Commission;
(ii) that the petitioners are estopped by their conduct because even after the promulgation/coming into force of the Civil Servants (Amendment) Act (IX) 2005, they sat quiet and did not agitate their grievance with regard to non-regularization of their services. Thus they cannot avail any relief from this Court.
(iii) that Rule 4 of the N.-W.F.P. Public Service Commission (Functions) Rules, 1983 amended vide Notification No.SOR -I(E&AD)1-99/73 dated 2-11-2002 has impliedly brought the selection of civil servant on contract for BPS-11 and above, within jurisdiction/powers of Public Service Commission, therefore, the petitioners herein were not appointed in the "Prescribed manner". Hence, they are not entitled to avail the beneficial provision of subsection (2) of section 2 of the Amended Act (IX) 2005 because they were selected/appointed by the departmental heads/Selection committees and not by the Provincial Public Service Commission.
8. The learned Additional Advocate-General has laid considerable stress on the amended rule 4 ibid, therefore, we have to take up the same for discussion in the first instance as it has incisive and decisive role in determining the eligibility of all the petitioners under the provision of subsection (2) of section 2 of the Amendment Act (IX) 2005.
9. Under the provision to section 2(1)(b) of N.-W.F.P. Civil Servants Act, 1973 civil servant has been defined and under clause (ii), those employed on contract, or on work charged basis, or those paid from contingencies are excluded from the said definition. Similarly section 25 of the N.-W.F.P. Civil Servants Act (N.-W.F.P. Act No. XVIII of 1973), has conferred powers on the Governor of the Province or any person authorized by him to appoint persons on contract basis. The same is reproduced below:---
"25. Appointment of persons on contract etc.--- The Governor or any person authorized by the Governor in that behalf may, on such terms and conditions as he may specify in each case, appoint person on contract basis, or on work charged basis or who are paid out of contingencies:
Provided that all such employees who were working in any such capacity immediately before the commencement of this Act shall continue to be so employed on the same terms and conditions on which they were appointed."
10. The plea of the learned Additional Advocate General that due to amendment in rule-4 of the N.-W.F.P. Public Service Commission (Functions) Rules, 1983, in 2002, the appointments of persons on contract basis have also been brought within the fold of N.-W.F.P. Public Service Commission is absolutely untenable in law because firstly the said rule contained a non obstante clause and it has clarified in clauses (i) to (iii) that certain posts shall be outside the purview of the Commission. Even if it is construed in the way, the learned Additional Advocate General desires, it would come in conflict with the clear and explicit provisions of subsection (2) of section 2 and section 25 of the N.-W.F.P. Civil Servants Act, 1973 wherein appointment of persons on contract basis has been taken out of the purview of Provincial Public Service Commission being not regular civil servants and the Governor or a person authorized by him in this' behalf shall be the authority for appointment of persons on contract basis.
11. It is an ironclad principle with regard to the interpretation of statute that when any rule/regulation or executive order made/passed by any authority under delegated powers of legislation comes in conflict with the Statute made by the legislature, then it shall be void to that extent and shall give way to the parent Statute which shall have overriding and superimposing effect. In the case of Gatron (Industries) Limited v. Government of Pakistan and others 1999 SCMR 1072, it was held by the apex Court that rights created by a Statute cannot be taken away through executive order of rule making authority. The object of delegation of rule making powers is always aimed at to carry out and achieve the objects and purposes of an Act of legislature. Thus a rule making authority cannot enact a rule to override or render the main Statute ineffective. Therefore, the view of the learned Additional Advocate General being based on misconception, cannot prevail. Amended rule 4 even if construed the other way as was suggested, is ultra vires being in direct clash/conflict with the main Statute. Section 26 of the N.-W.F.P. Civil Servants Act, 1973 also clearly explains the above position which admits of no doubt nor it suffers from any ambiguity to be debated upon.
12. Under the provision of section 25 of the N.-W.F.P. Civil Servants Act, 1973, the Provincial Government, through different notifications/orders/circulars has authorized the administrative secretaries/heads of the attached departments as competent authority for the appointment of persons on contract basis and the table given thereunder, was not contested by the learned counsel for the Government.
13. The posts which the petitioners are/were holding on contract basis, were duly advertised in the prescribed manner by the competent authority, the petitioners applied for the same, they appeared before the Selection Committees/Departmental Authority in due course and have successfully undergone the tests and interviews thus, were selected on merits but on contract basis. Their contractual services were consistently renewed from time to time and they retained the said posts till the time when the N.-W.F.P. Civil Servants (Amendment)' Act (IX) 2005 came into force on 23rd July, 2005.
14. To understand the relevant provisions i.e. subsection (2) of section 2 of the Amendment Act (IX), the same is reproduced below:---
"Subsection (2).---A person though selected for appointment in the prescribed manner to a service or post on or after the 1st day of July, 2001, till the commencement of the said Act but appointed on contract basis, shall, with effect from the commencement of the said Act, be deemed to have been appointed on a regular basis. All such persons and the persons appointed on regular basis to a service or post in the prescribed manner after the commencement of the said Act shall, for all intents and purposes be civil servant, except for the purpose of pension or gratuity. Such a civil servant shall, in lieu of pension and gratuity, be entitled to receive such amount contributed by him towards the contributory provident fund, along with the contributions made by Government to his account in the said fund, in the prescribed manner."
15. The language of the above provision is plain and well conceivable, therefore, leave nothing in doubt with regard to the regularization of contractual services of the petitioners. The deeming phrase used therein has put a seal of endorsement on this view. Second part of the above provision has almost conclusively determined the matter in controversy because the two terms used therein i.e. "all such persons and the persons appointed on regular basis to a service or post in the prescribed manner" clearly lay down that the employees on contract basis now regularized and those appointed on regular basis (through Public Service Commission) for all intents and purposes be civil servant except for the purposes of pension and gratuity. A clear line of demarcation has been drawn by the legislature between the two categories of civil servants, the one who are taken on contract basis but regularized through the above provision and those appointed on regular basis through the Public Service Commission both have been referred to with clear intents but for the purposes of pensionary benefits. If the legislature intention was that only those persons appointed on regular basis shall be deemed to be a civil servant, then it would have never employed the words all such persons which have direct nexus with the petitioners. Thus the view of the learned counsel for the government is absolutely misplaced and untenable in law.
16. A bare look at the history of legislation on this subject in the past further reinforced the above view that the petitioners' services have been duly regularized by the legislature and nothing has been left for the executive to notify their names in the official gazette or to pass any executive order. In this regard, the N.-W.F.P. Ad hoc Civil Servants (Regularization of Services) Act-II of 1987 is much relevant wherein a proviso was added to section 3 thereof to the following effect:---
"Provided that--
(i) the services of such civil servants shall be deemed to have been regularized under this Act only on the publication of their names in the official Gazette,"
In the N.-W.F.P. Employees on Contract Basis (Regularization of Services) Act, VIII of 1989, section 4 is couched in the following words:--
"S. Regulation of services of certain Civil Servants.---(I) Notwithstanding anything contained in any law for the time being in force, any Civil Servant, who is or has been appointed or deemed to have been appointed against any post in any Government Department under section 3 of this Act shall be deemed to have been regularly appointed from the date of his continuous officiation, subject to eligibility, according to the service rules applicable to the post, verified by the administrative Secretary of the department concerned."
17. Again the same language was used in section 4 of the N.-W.F.P. Employees on Contract Basis (Regularization of Services) (Amendment) Act-II of 1990.
18. The relevant provision of the Act (IX), 2005 has been worded almost in a totally different language wherein nothing has been left for' the administrative secretaries or the heads of the attached department/competent authorities to issue notification with regard to the regularization of services of contract employees because the object has been clearly accomplished through the plainly understandable words used in section 2(2) of the Act (IX) "2005. On this analogy all the petitioners stood regularized on coming into force of the Act under discussion and issuance of notification/executive order in this regard would be only a formality for the departmental heads/administrative secretaries. Thus authorities were under statutory obligation to do what is required by the law to do and the petitioners were not required under the said provision to approach them for issuance of such order/notification.
19. The above discussion and the reproduction of different legislation made from time to time by the Provincial Assembly lead one to a definite conclusion which shall go without any fear of rebuttal that the petitioners' contractual services were duly regularized and the phrase "prescribed manner" so used in the former and for those who are regularly appointed (repeated) would lead to an inference that the Act (IX) has drawn a clear distinction between the petitioners and those who are appointed on regular basis otherwise there was no need to mention both the categories of employees tagged with the words "prescribed manner". Thus the impression given by the learned counsel for the Government is absolutely fallacious and does not stand to reason. As already discussed in the earlier para., the appointment of employees on contractual basis have been taken away from the purview and domain of N.-W.F.P. Public Service Commission and for such appointments, the above statutory provision has authorized the Governor of the Province or those authorized/appointed by him to be the competent authorities for appointment of contract employees. Therefore, if the amended rule 4 of the N.-W.F.P. Public Service Commission (Functions) Rules, 1983 is construed in the way adopted by the said counsel, then in that case the rule can be held to be ultra vires because it has been framed/issued by the Government under the delegated powers of legislation is for all intents and purposes must remain subordinate and subservient to the statutory law and the latest shall override the same for all purposes and intentions.
20. The two categories of employees i.e. contract employees and regularly appointed employees are thus placed under the 'domain of two different authorities i.e. the Governor or persons authorized by him and the Provincial Public Service Commission. Thus the statutory law has provided two different channels for appointment of the above two categories…
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