2017 P L C (C.S.) 1471
[Balochistan High Court]
Before Muhammad Noor Meskanzai, C.J. and Muhammad Hashim Khan Kakar, J
MUHAMMAD JAN and 3 others
Versus
The GOVERNMENT OF BALOCHISTAN through Chief Secretary and another
C.P. No.744 of 2014, decided on 11th May, 2017.
Civil service ---
----Contract employee ---Vacancy, availability of ---Regularization of service ---Petitioners had
been working as contract employees for the past more than ten years and instead of regularizing
their services, authorities adve rtised the post for fresh appointments ---Validity ---Petitioners had
been serving in their respective positions for the last about more than ten years, though on contract basis, yet the nature of their jobs were permanent ---Petitioners had been performing
their functions/duties to the entire satisfaction of their employer and further that throughout the
whole period, their services were required and they remained useful and beneficial to the department ---Re -advertisement of the posts was indicative of the fa ct that the services were
needed as long the department existed ---No allegation of any misconduct or incompetence
against the petitioners ---Petitioners had right to continue against the same posts, besides
availability of regular posts and creation of addi tional posts ---High Court directed the authorities
to regularize services of petitioners without back benefits in accordance with law ---Petition was
allowed accordingly.
Province of Punjab v. Ahmed Hussain 2013 SCMR 1547; Ejaz Akbar Kasi v. Ministry of
Information and Broadcasting PLD 2011 SC 22 and Managing Director, Sui Southern Gas
Company Ltd. Karachi v. Ghulam Abbas 2003 PLC (C.S.) 796 rel.
Manzoor Ahmed Rehmani for Petitioners.
Zahoor Ahmed Baloch, Assistant Advocate General for Respondents.
Date of hearing: 11th April, 2017.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. --- Through this petition filed under
Article 199 of the Constitution of Islamic Republic of Pakistan 1973 ("the Constitution"), the
petitioners, being employees of the Zakat and Ushr D epartment, Balochistan, made the following
prayer:
"Accordingly, respectfully prayed, that this Hon'ble Court may kindly be pleased to
declare that in the light of para No.6 of the petition, the six newly created posts of Junior Auditor B -7, which has been specifically created for the purpose of
regularization/adjustment of services of the petitioners may not be used for any other purpose except the regularization/ adjustment of the services of petitioners.
Further this Hon'ble Court may kindly also be leas ed by declaring the advertisement
dated 27- 09-2014 issued in Daily Jung Quetta by respondent No.2 to the extent of
additional newly created six posts of Junior Auditor of B -7 (which were specifically
created for the purpose of regularization/adjustment of the services of petitioners), as illegal, unlawful, without authority and of no legal effect.
Further this Hon'ble Court may kindly be pleased that appointments of the petitioners were not on contract basis in the light of advertisement dated 24- 01-2003 ra ther same
were on temporary basis and after completion of probation period, their services have been regularized.
Further this Hon'ble Court may kindly be pleased to declare stoppage/non- extension of
contracts of petitioners and making fresh appointments a s illegal, unlawful, without
lawful authority and of no legal effect.
Further this Hon'ble Court may kindly be pleased to direct the respondents to regularize against the already sanctioned posts by Finance Department (during financial year 2013-14) on per manent basis and consider/count experience/period served in Zakat Department
by relaxing the relevant rules, in the interest of justice."
2. It is case of the petitioners that they are employees of Zakat and Ushr Department,
Government of Balochistan and have been serving there on contract basis for the last about 10 to 12 years, however, their services have not been regularized in spite of availability of the posts. It is further case of the petitioners that the publication dated 24th January 2003, made in daily
newspaper Jang, Quetta, upon which they applied for their respective posts, also shows that the posts in question are permanent in nature and not on contract basis. It is also case of the petitioners that neither has the project been abolished, nor have their services been terminated, yet the posts in question have not been regularized despite availability of the posts, while on the other hand, on account of such act on the part of the department, the petitioners are running from
pillar to post and s ome of them have even gone overage for any fresh service. It was incumbent
upon the department to have regularized their services in the department, particularly when they
have been serving in the department for the last so many years. It is further case o f the petitioners
that on the one hand, the Government of Balochistan takes pleas of non- availability of
funds/finance, while on the other hand, through publications in daily newspapers, it advertised the posts of Junior Auditor (B -7). Besides, though due approval was granted in favour of the
petitioners for their regularization upon the newly created six additional posts of Junior Auditor (B-7), yet they have not been considered despite the fact that their fundamental rights have been
accrued. The petition ers approached the concerned authorities but with no fruitful results, hence
this petition.
3. In response to pre -admission notice, respondents Nos.1 and 2 filed para -wise comments
to the petition, wherein they denied the allegations as contained in the pe tition.
4. We have heard learned counsel for the parties and have gone through the record with
their valuable assistance. It is contended by learned counsel for the petitioners that the petitioners
were working honestly to the satisfaction of their superiors and no complaint of any nature was ever received against them. He further contended that retention of the petitioners by the respondents for a period of more than 10 years and their repeated renewal of contract period clearly shows that the posts/positi ons held by them were/are of permanent nature, which were
essentially required by the department for its smooth functioning. According to him, the petitioners have rendered prime time of their lives in serving the department and, presently, some of the pet itioners have grown overage for any other suitable employment.
5. On the other hand, learned Assistant Advocate General contended that the petitioners
were appointed on contract basis and the respondents are not obliged to regularize their services, as the petitioners had admitted the terms and conditions of temporary appointments.
6. Having heard learned counsel for the respective parties and with their assistance, we have
gone through the material available on record, which reveals that the petitioners were initially appointed as Audit Officers by the defunct Central Zakat Council in the year 2003 for one year in order to carry out internal audit of Zakat Funds at Provincial/Divisional and District level. Their salaries, being contractual emp loyees, were released to the provinces by the Government
of Pakistan, Ministry of Religious Affairs out of the 10% of the total collection of the Zakat funds earmarked for administrative expenditure.
7. On the request of certain employees, who were appoint ed on contract basis up to 3rd
June, 2008 against the post of BPS -1 to BPS -15 in the Federal Ministries/Divisions/Attached
Department/Subordinate offices/Autonomous/Semi -Autonomous Bodies/Corporations, a
decision was taken by the Federal Cabinet to regular ize the services of contract employees and in
this regard Office Memorandum No.10/30/2008- R-II dated 29th August 2008 was issued by the
Government of Pakistan, Cabinet Secretariat Establishment Division. However, prior to
completion of regularization proce ss of the contract employees, 18th Amendment in the
Constitution brought by Act No.10 of 2010, the subject of Zakat and Ushr was devolved to the provinces and the Provincial Government, instead of regularizing services of the petitioners, advertised the said posts for fresh appointment vide publication dated 2nd December, 2012, appeared in daily newspaper Jang, Quetta.
8. The record further reveals that on application of the petitioners, a summary was sought
by the then Chief Minister from Religious Affairs and Interfaith Harmony Balochistan, wherein
the following proposal was floated/suggested by the then Secretary/Chief Administrator Zakat:
"In view of the above if authorities desired the applicant (sic.) to accommodate the applicants then the Finance Depa rtment may be directed to create (6) six more posts of
Junior Auditor (B -07) one in each division, so the grievances of the applicants could be
minimized."
After approval of the summary by the Chief Minister Balochistan, besides the advertised six posts of Junior Auditor, additional six posts of Junior Auditors were also created by the Finance
Department vide letter dated 31st July, 2013, which reads as under:
"The undersigned is directed to refer to your department's letter NO.SO(ZKTB)4-
18/PZF/2012/2127 da ted 12th July, 2013 and summary duly approved by the Honorable
Chief Minister Balochistan UO No.FD.SO(Bud:VI)3- 1/2012- 13 dated 21st May, 2013 on
the subject noted above and to convey sanctioned of the Finance Department to the creation of additional six posts of Junior Auditor (B -07) during the current financial year
2013- 14 through summary quoted above.
The Administrative Department is further advised to submit Administrative Approval of the same for authentication of its audit copy by the Finance Department."
After granting of administrative approval to the creation of six posts of Junior Auditor by the competent authority, the Finance Department vide letter dated 9th September, 2013, sought the names of contract employees, who were granted approval by the Chief Minister, Balochistan.
9. When the repeated request for regularization did not find favour with the Management of
the respondents' department, the petitioners approached this Court by means of filing the instant petition. This Court, while disposing C.M.A. No.1744/2014 on 22nd October, 2014, passed the
following order:
"Till the next date of hearing, the appointments with regard to the newly created posts of Junior Auditors are stayed".
10. After hearing learned counsel for the parties and having gone through the available
record, we are of the confident view that the posts of the Auditors are permanent jobs by its
nature for the reasons: firstly, requirement of their services as long the Zakat and Ushr Department exists; secondly, renewal of their co ntracts on year to year basis since their
inception; thirdly, publishing/advertising the set positions, after declining request of the petitioners for regularization of their services and; fourthly, creation of six additional posts of Junior Auditors by the Department. The petitioners have been serving Zakat Department in their respective positions for the last about more than 10 years, though on contract basis, yet it can safely be said that the nature of the jobs is permanent. The petitioners have been pe rforming their
functions/duties to the entire satisfaction of their employer and further that throughout the whole period their services were required and they remained useful and beneficial to the department. The re- advertisement of the said posts is indi cative of the fact that these services are needed as
long the department exists. There is no allegation of any misconduct or incompetence against the petitioners. While holding this view, we are fortified from the observations made by Hon'ble Supreme Court of Pakistan in the case of "Province of Punjab v. Ahmed Hussain" (2013 SCMR
1547).
11. It is an admitted feature of the case that the petitioners were working for the last about
more than 10 years and, as has observed hereinabove, their services are needed to the
respondents' department. Even otherwise, it is also to be taken into consideration that almost all the petitioners have become overage during the period of their service and cannot go anywhere, nor can apply to earn their livelihood in any departm ent or organization, therefore, the
respondents' department, instead of advertising their positions, should have regularized the
services of the petitioners.
12. It is not disputed that the petitioners were appointed on contract basis and they were
working in the respondents' department till re -advertisement of their position. The most
important aspect of this case, which requires consideration, that the Government of Balochistan,
as evident from different notifications, annexed with memo. of the petition, has regularized the services of more than 10,000 employees, appointed on contract basis in the Population Welfare Department, Agriculture Department, Health Department, Irrigation and Power Department, Education Department, Finance Department, Planning and Development Department,
Agriculture and Cooperatives Department as well as employees of Aghaz -e-Haqooq Balochistan
Package, however, the said benefits have not been extended to the petitioners, which is violative of the guaranteed and secure rights of the petitioners as provided under Articles 2- A, 4 and 25 of
the Constitution. In the case of "Ejaz Akbar Kasi v. Ministry of Information and Broadcasting" (PLD 2011 SC 22), Hon'ble Supreme Court, while dealing with the said proposition, held that:
"We are not inclined to agree to the reasons which prevailed upon the Board in not
regularizing the group 4, 5 and 6 when at the same time the employees of other Groups as noted hereinabove were regularized beside other individual persons whose names have also been m entioned hereinabove. This Court has laid down a criteria in respect of such
employees who have somehow identical contentions in the case of Ikram Bari and others v. National Bank of Pakistan through President and another (2005 SCMR 100). Therefore, we are of the opinion that the case of the petitioners deserves to be considered
by the Board of Directors for the reasons noted hereinabove as they cannot be discriminated without any cogent reason by violating the provisions of Article 25 of the Constitution a nd at the same time after having spent a considerable period of their lives in
the Organization performing duties on contract basis. It is also the duty of the Organization to protect their fundamental rights enshrined in Article 9 of the Constitution."
Similarly, in the case of "Managing Director, Sui Southern Gas Company Ltd. Karachi v.
Ghulam Abbas" (2003 PLC (C.S.) 796), the Hon'ble Supreme Court of Pakistan held that:
"Persons similarly situated or similarly placed were to be treated alike and could no t be
discriminated against under Art.25 of the Constitution and would be entitled to the same relief which had been given to the other employees."
13. It is also sufficed to add here that it is not plea of respondents that any of the petitioners
lacks requ ired qualification or their performance was below average. It is also an admitted
feature of the case that the petitioners were appointed by the competent authority after fulfilment of all the codal formalities i.e. publication, test and interviews. If the selection process was
lawful and legal and six additional post of Junior Auditors were created specifically for accommodation of the petitioners, then advertising the same and doing whole of the exercise of selection once again does not reflects any sense by depriving the experienced employees.
14. The case law cited by learned Assistant Advocate General that contract employees did
not have vested right for regular appointment and the controversy, in respect of the petitioners has been set at rest by Hon'b le Supreme Court in Suo Motu case No.15 of 2010 is concerned,
with utmost respect to the said judgment, we have gone through the same, but feel slight
difference in the present situation, as the posts of Junior Auditors held by the petitioners have been cr eated after obtaining administrative approval from the competent authority specifically
meant for accommodation of the petitioners. Similarly, the petitioners in the aforesaid cited case were appointed by the then Chairman District Zakat Committees on fixe d salaries for a specific
term and task. Their appointments were not under a particular law, but under a policy decision
taken by the defunct Central Zakat Committee.
For the discussion made hereinabove, we are clear in our mind that the petitioners were
selected as Junior Auditors after proper advertisement, test and interview conducted by the
Departmental Selection Committee and have served the department for about 10 to 12 years without any complaint of unsatisfactory performance, thus, have the right t o continue against the
same posts, besides availability of six regular posts and after creation of six additional posts of Junior Auditors. This petition is allowed. The respondents are directed to regularize the services of the petitioners without the bac k benefits in accordance with law.
MH/115/Bal. Petition allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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