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Petitioner: Ms Shagufta Hashmat, etc. VS Respondent: Federation of Pakistan, through Secretary Cabinet Div., etc.
Court Name: Islamabad High Court Judge(s): Athar Minallah Title:Ms Shagufta Hashmat, etc. vs Federation of Pakistan, through Secretary
Cabinet Div., etc. Case No.: W.P. No. 2117 of 2016 Date of Judgment:2017-11-01 Reported As: 2017 IHC 241 Result: Petition dispose of Judgment ATHAR MINALLAH, J.- Through this consolidated judgment I shall decide the instant petition alongwith the petitions listed in 'Annexure-A ' attached thereto. 2. The petitioners in all these petitions are seeking regularization of their services. The petitioners were appointed on contract, daily wage or contingent staff basis. Most of the petitioners are serving as teaching staff at various public schools or colleges. Interestingly , many of them are drawing salaries from the Student Fund. The Student Fund is not part of the approved budget. It is a fund created from contributions collected from the students. Nothing is available on record to show that the appointing authority in the case of public schools or colleges are empowered to appoint teachers on a daily wage basis against private funds collected from the students. However , it was informed that this practice has continued from the time when teachers appointed in these schools were not declared as civil servants. There is also no explanation about why some teachers have been appointed on an honorary basis. The record also indicates that several petitioners had not been appointed through a transparent competitive process, nor were the posts advertised. They include contract employees appointed in various projects on the development side. The majority of the petitioners are seeking regularization, which would have the effect of being appointed as a civil servant. Some of the petitioners are employees of entities established under a statute or have been incorporated as juridical persons under the Companies Ordinance, 1984. In some cases they have been employed for a long period of time and their respective contracts have been extended from time to time. All the petitioners have prayed for a direction that they be regularized against permanent posts. Most of the petitioners were appointed in grade/pay scale 16 and above. For a better understanding of the questions raised in the instant petitions some material facts need to be recorded, as follows: 04-06-2008.
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A summary was sent for the approval of the Federal Cabinet, titled "Regularization of BS-1 to BS-15 contract employees ". 26-08-2008. The Cabinet approved the above summary . 29-08-2008. Office Memorandum, dated 29-08-2008, was issued pursuant to approval granted by the Federal Cabinet. The salient features of the approved regularization policy are; a) Employees working on contract basis in pay scale BS-01 to BS-15 in the Fede ral 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 . 29-06-201 1. 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 29-06-201 1, 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. 30-06-201 1. The above proposed policy was approved by the Prime Minister of the Islamic Republic of Pakistan. 11-09-2014. This Court, vide judgment dated 11-09-20 14 rendered in W.P. No. 965/2013 and several other connected petitions, declared the policy of regularization as illegal and void.
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10-09-2014. The petitions which were pending before this Court, relating to grievances in respect of regularization, were disposed of through a consent order . The Secretary Cabinet Division, Government of Pakistan, was, inter-alia, directed to constitute a Committee headed by an officer not lower in rank than a Federal Secretary or a retired Hon'ble Judge of the august Supreme Court for this purpose. The order , dated 10- 09-2014, passed in W.P. No. 1703/2013 and the connected petitions, attained finality on being confirmed by the august Supreme Court. 09-04-2015. Intra Court Appeals preferred against judgment, dated 11-09-2014 passed in W.P. No. 965/2013 and connected petitions, were allowed by a Division Bench of this Court pursuant to statement made on behalf of the Federal Government and issuance of Notification, dated 02-04-2015. Moreover , it was observed as follows: "While implementing the policy irregularities may have been committed in some cases and there is no bar on the respective Departments to proceed in accordance with law on case to case basis. Regularization policy cannot be construed or implement in a manner which may extend legitimacy to illegal appointed employees. Reference in this regard may be made to paragraph 26 of the judgment of the august Supreme Court in "Syed Mubashir Raza Jaffri v. Employees Old Age Benefits Institution" (2013 SCMR 949). " 02-04-2015. The Notification, dated 02-04-2015, was made an integral part of the judgment, dated 09-04-2015 passed in Intra Court Appeal No. 325/2014 etc. and the same is reproduced as follows: To be published in next issue of Gazzette of Pakistan (Part-I) GOVERNMENT OF P AKIST AN CABINET SECRET ARIA T CABINET DIVISION ***** Islamabad, the 2 nd April, 2015 NOTIFICA TION No.F.2/3/2014-Lit In pursuance of Islamabad High Court orders passed in W.Ps No.1 703 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 Of ficer 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
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guidelines issued vide O.M. No.10/30/2008-R.II dated 29 th 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 Of ficer (Lit/Coord) 02-06-2016. The judgment of this Court, dated 11-09-2014 whereby the Intra Court Appeals were allowed and consequently the judgment, dated 11-09-2014, passed in W.P. No. 965/2013 etc. was set aside attained finality having been up held by the august Supreme Court in the following terms: a. That the process of regularization in terms of the Judgment dated 09.4.2015 of the learned Division Bench of Islamabad High Court may be conducted by the competent authority in accordance with the law without being influenced by any extraneous considerations or directions. b. After the process is completed, if any, individual has any grievance either for not being regularized or, if any, other person is regularized illegall or with illegal consequences, such indivi duals may seek their remedies available to them in accordance with law . It is, therefore, obvious that the regularization policy , the details whereof were described in Office Memorandum, dated 29-08-2008, read with Notification, dated 02-04-2015 attained finality . 11-05-2017. The Federal Cabinet in its meeting held on 12-04 2017 approved yet another policy and details thereof are contained in office Memorandum, dated 11-05-2017 (hereinafter referred to as the "New Policy"), which is reproduced as follows: GOVERNMENT OF P AKIST AN CABINET SECRET ARIA T
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ESTABLISHMENT DIVISION No F.53/1/2008-SP Islamabad, the 1 1 May , 2017 OFFICE MEMORANDUM Subject:- Amendment in the Recruitment Policy/Mechanism to Ensure Merit Based Recruitment in the Ministries/ Divisions/Sub-ordinate Of fices/ Autonomous/ Semi-Autonomous Bodies/Corporations/ Companies/Authorities The undersigned is directed to state that the Federal Cabinet in its meeting held on 12 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 0.M.No.531/2008-SP dated 16 January, 2015 as under:- "1(e) Appointment on Regular Basis of Contract/ Contingent Paid/Daily W age/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 0.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. Contd. ..p/2 -2- (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 16 January , 2015 is modified to the above extent. All Ministries/Divisions are requested to take further action accordingly . -sd- (Attiq Hussain Khokhar) Director General Tel: 051-9103482 All Ministries/Divisions Rawalpindi/Islamabad 3. With the consent of all the learned counsels appearing on behalf of the petitioners, the petitions were argued by Mr. Hafiz S.A. Rehman, Mr . Abdul Rahim Bhatti and Mr . Shoaib Shaheen ASCs. 4. The learned counsels contended that; in majority cases temporary appointments are made when sanctioned posts are not available or the competent authority , due to the volume of work, feels it is necessary; most of the petitioners have served for more than five years and their respective service contracts have been extended by the competent authority from time to time; the petitioners legitimately expect that their services would be regularized; the petitioners are entitled to be regularized under the policy which had been proposed by the Cabinet Sub Committee and approved by the Prime Minister of Pakistan on 30-06-201 1; other similarly placed employees have been extended the benefit of regularization while the same is being denied to the petitioners; the process ofth th th th
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regularization is part of the terms and conditions of service; the petitioners, having served for more than five years, have become entitled to be regularized and a vested right in this regard has also accrued in their favour; the Provincial Governments from time to time have also extended the benefit of regularization to employees appointed on contract basis; rights have accrued in favour of the petitioners pursuant to the regularization policy approved by the Prime Minister of Pakistan on 30-06-201 1; under the policy proposed by the Cabinet Sub Committee and approved by the Prime Minister on 30-06-201 1, the petitioners have become entitled and, therefore, their right to be regularized cannot be denied; on the recommendations of the Cabinet Sub Comm ittee, employees on contract or daily wage basis have also been regularized in service without the indulgence of the Federal Public Service Commission (hereinafter referred to as the 'Commission '); more than one hundred thousand employees have been extended the benefit under the regularization policy proposed by the Cabinet Sub Committee through summary dated 29-06-201 1, which was approved by the Prime Minister on 30-06-201 1; in several cases representations were made by the petitio ners regarding regularization of their services; refusal to regularize the services of the petitioners is in violation of Articles 9, 10-A, 25-A and 27 of the Constitution; the august Supreme Court, in the case titled "Ikram Bari and 524 others v. National Bank of Pakistan through President and another" [2005 SCMR 100], has declared that the right of livelihood is an integral part of the fundamental right guaranteed under Article 9 of the Constitution. The learned counsels also referred to the various legislative enactments relating to the regularization of the employees; they referred to statutes passed by the legislatures of the Khyber Pakhtunkhwa and Sindh in support of their contention that when an employee has served for a long period of time, it gives rise to a right to be regularized; the petitioners cannot be ignored because other similarly placed employees have been extended the benefit of regularization. The learned counsels have placed reliance on case law listed in their respective written arguments. 5. The learned Addl. Attorney General addressed the arguments on behalf of the Federation. It was argued that; the judgment rendered by a Division Bench of this Court, dated 09-04-2015, has attained finality; consequent upon its affirmation by the august Supreme Court vide order , dated 02-06-2016 passed in Civil Appeal No. 1119 of 2015, CMA No. 513 of 2016 in Civil Appeal No. 1119 of 2015, Civil Appeals No. 1120 to 1126 of 2015, Civil Petitions No. 2925 & 3386 of 2015 and 467 of 2016 ; the regularization policy , the details whereof are described in office Memorandum, dated 29-08 2008, had attained finality; Office Memorandum, dated 29- 08-2008, has prescribed the eligibility criteria; the Cabinet Sub Committee, constituted by the Federal Cabinet for the purposes of implementation of the regularization policy , was not empowered to propose another policy to the Prime Minister nor was the latter vested with the jurisdiction to approve the same; reliance has been placed on "Messrs Mustafa Impex, Karachi and others v. The Government of Pakistan through Secretary Finance and others" [PLD 2017 SC 808]; initial appointments made in a non-transparent manner are void ab-initio and, therefore, such a person cannot claim a right to be regularized; the purported policy approved by the Prime Minister on 30-06-201 1, without seeking approval from the Federal Cabinet, is without lawful authority and jurisdiction; the cases of the petitioners do not fulfill the conditions prescribed in the OM dated 29-06-2008; the said OM attained finality consequent upon affirmation by the august Supreme Court in the judgment, dated 09-04-2015, rendered by a Division Bench of this Court; the Federal Cabinet has approved a fresh regularization policy and the details thereof are contained in Office Memorandum, dated 11-03-2017; the petitioners who meet the criteria in the said OM will be considered for being regularized. 6. The learned counsels have been heard and the record perused with their able assistance. 7. The petitioners are seeking their regularization. Admittedly, several employees have been regularized pursuant to the decision of the Federal Cabinet on 26-08 2008 and the purported policy approved by the Prime Minister on 30- 06-2011. The petitioners can broadly be divided into two categories, firstly, those who upon regularization will attain the status of civil servants and, secondly, employees of entities either established through an Act of the Majlis-e - Shoora or which have been incorporated as juridical persons under the Companies Ordinance, 1984. The petitioners who would attain the status of civil servants are essentially seeking to be appointed on a permanent basis under the Civil Servants Act 1973 (hereinafter referred to as the "Act of 1973 "). In the case of the latter category their appointments will be governed under the relevant statute or Memorandum and Articles of Association, as the case
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may be. Before discussing the regularization policy , it would be beneficial to survey the applicable law regulating the appointment of a civil servant. 8. 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 Rules "). It would be beneficial for the adjudication of these petitions to examine the scheme of the Act of 1973 and the APT Rules. 9. The Act of 1973 was enacted and notified in the official gazette on 29-09-1973. The object and purpose of the enactment is to regulate, by law, the appointment of persons to the service of Pakistan and their terms and conditions. Sub section (2) of section 1 declares that the Act of 1973 shall apply to all civil servants wherever they may be. The expression 'civil servant' is defined in section 2(b) as a person who is a member of an All-Pakistan Service or of a 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. However , clauses (i) to (iii) excludes from the definition of a civil servant, inter-alia, a person who is on deputation or is emplo yed on contract or work charge basis or falls in the definition of a 'worker ' or 'workman'. Section 2(a) defines 'ad hoc appointment' as meaning an appointment made otherwise than in accordance with the prescribed method of recruitment, pending recruitment. The expression "initial appointment" is defined in section 2(c) as meaning appointment made otherwise than by promotion or transfer . Likewise, 'permanent post' is defined in section 2(e) as meaning a post sanctioned without limit of time. The expression 'selection authority' has been defined as meaning the Federal Public Service Commission, a Departmental Selection Board, Departmental Promotion Committee or other authority or body on whose recommendation any appointment or promotion is made in the prescribed manner . The next relevant definition is that of 'temporary post' which means a post other than a permanent post. Section 5 provides that appointments to an All-Pakistan Service or to a civil service of the Federation or to a civil post in connection with the affairs of the Federation, including any civil post connected with defence, shall be made in the prescribed manner by the President or by a person authorized by the latter in that behalf. 'Prescribed' means prescribed by rules and, therefore, in the context of the appointment of a civil servant, the APT Rules have been made. Section 7 provides that a person appointed on probation shall, on satisfactory completion of his probation, be eligible for confirmation in a service or, as the case may be, a post as may be prescribed. Sub section (3) of section 7 provides that there shall be no confirmation against any temporary post. Sub section (5) of section 7 provides that confirmation shall take effect from the date of occurrence of permanent vacancy in that service or post or from the date of continuous officiation, in such service or post, whichever is later. Section 11 A is in respect of absorption of a civil servant, who is rendered surplus. Section 25 empowers the President or any person authorized by him or her in this behalf to make such rules as appear to be necessary or expedient for carrying out the purposes of the Act of 1973. The APT Rules were, therefo re, made and notified in the exercise of powers conferred under the said provision. 10. The APT Rules were made and notified vide SRO 1498(I)/73, dated 20-10-1973, in exercise of the powers conferred under section 25 of the Act of 1973. The expressions 'appointing authority', Selection Board, Commission and Departmental Promotion Committee are defined in clauses (a), (b), (c) and (d) respectively of rule 2. Rule 3 prescribes three methods of appointment i.e. (a) by promotion, (b) by transfer , and (c) by initial appointment. Sub rule (2) of rule 3 provides that the method of appointment and the qualifications and other conditions applicable to a post shall be as laid down by the Ministry or Division concerned, in consultation with the Establishment Division. For the purposes of adjudication of the instant petitions, this Court would restrict its examination to the provisions which relate to initial appointment. 11. The provisions relating to an 'initial appointment' are contained in Part-III of the APT Rules…
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