PLJ 2018 Quetta 150 (DB)
Present : MUHAMMAD NOOR MESKANZAI , C.J. AND MUHAMMAD HASHIM KHAN KAKAR , J.
MUHAMMAD JAN & others --Petitioners
versus
GOVERNMENT OF BALOCHISTAN through Chief Secretary and another --Respondents
C.P. No. 744 of 2014, decided on 11.5.2017.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional Petition --Appointment on Contract basis --Non regularization --
Advertisement for post of junior Auditors --Non consideration of applicants for post ment ioned in
advertisement on regular basis --Overage fector --Direction to --It is an admitted feature of case
that petitioners were working for last about more than 10 years and, as has observed
hereinabove, their services are needed to respondents’ department --Even otherwise, it is also to
be taken into consideration that almost all petitioners have become overage during period of their service and cannot go anywhere, nor can apply to earn their livelihood in any department or organization, therefore, respondents’ department, instead of advertising their positions, should have regularized services of petitioners --It is not plea of respondents that any of petitioners lacks
required qualification or their performance was below average --It is also an admitted featu re of
case that petitioners were appointed by competent authority after fulfillment of all codal formalities i.e. publication, test and interviews --If selection process was lawful and legal and six
additional post of Junior Auditors were created specifical ly for accommodation of petitioners,
then advertising same and doing whole of exercise of selection once again does not reflects any
sense by depriving experienced employees --Petitioners were selected as Junior Auditors after
proper advertisement, test and interview conducted by Departmental Selection’ Committee and
have served department for about 10 to 12 years without any complaint of unsatisfactory performance, thus, have right to continue against same posts, besides availability of six regular
posts and after creation of six additional posts of Junior Auditors --Petition was allowed. [Pp.
155, 156 & 157] A, B & C
Ejaz Akbar Kasi vs. Ministry of Information and Broadcasting
PLD 2011 SC 22 ref.
Mr. Manzoor Ahmed Rehmani, Advocate for Petitioners.
Mr. Zahoor Ahmed Baloch, Asstt. A.G. for Respondents.
Date of hearing: 11.4.2017.
J
UDGMENT
Muhammad Hashim Khan Kakar, J.--Through this petition filed under Article 199 of the
Constitution of Islamic Republic of Pakistan 1973 (“the Constitution”), the petitioner s, being
employees of the Zakat and Ushr Department, 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 leased 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 lawful authority and of no legal effect.
Further this Hon’ble Court may kindly be pleased that appointments of the petitioners
were not on contract basi s in the light of advertisement dated 24- 01-2003, rather 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 as 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 permanent 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 Zaka t 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
petitio ners 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 some 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 depar tment for the last so many years. It is further case of 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 petitioners approached the concerned authorities, but with no fruitful results, hence this petition.
3. In response to pre -admission notice, Respondents No. 1 and 2 filed para -wise comments to
the petition, wherein they denied the allegations as contained in the petition.
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/positions hel d 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 petitioner s 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 ini tially
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 employees, 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 appointed 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 regularize 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 Div ision. However, prior to
completion of regularization process 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 Department 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 C hief 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 dated 12th July, 2013 and summary duly approved by the Honorable
Chief Minister Balochistan U.O 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 t he
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 CMA 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 contracts 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 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.
The re- advertisement of the said posts is indicative 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 vs. 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 department 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 & 25 of the
Constitution. In the case of “Ejaz Akbar Kasi vs. Ministry of Information and Broadcasting” (PLD 2011 SC 22), Hon’ble Supreme Cour t, 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 mentioned 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 reas on by violating the provisions of Article 25 of the
Constitution and 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 vs.
Ghulam Abbas” (2003 PLC (CS) 796), the Hon’ble Supreme Court of Pakistan held that:
“Persons similarly si tuated or similarly placed were to be treated alike and could not 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 required 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 fulfillment 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’ble Supreme Court in suo moto 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 Auditor’s held by the petitioners have been created 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 fixed salaries for a specific term
and task. Their appointments were not under a particular law, but under a policy decision taken by the defunct C entral 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 to 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 back benefits in accordance with law.
(Y.A.) Petition allowedThis 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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