ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
C.P.No.D-4546 of 2012
Order with signature of Judge(s)
Present:
Mr.Justice Muhammad Ali Mazhar
Mr.Justice Abdul Maalik Gaddi
Ayaz Ahmed Memon.……..v/s……….Pakistan Railways
& others
18.10.2016
Petitioner appearedin person
Syed Samiullah Shah for Respondent No.1 to 4
Non present for Respondent No. 5 to 9
Sheikh Liaquat Hussain, Standing Counsel
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Muhammad Ali Mazhar, J.This petition has been brought to achieve directions against the respondent No.1 to 4 to regularize the services of the petitioner.
2. The ephemeral of the case are that the petitioner was appointed vide Employment Contract dated 03.4.2004 to the post of Assistant Programmer (BPS-16) in the office of Divisional Superintendent, Karachi. Despite lapse of considerable period he was not regularized therefore he filed Constitutional Petition No.D-983 of 2007 on the premise that the spanof his contractual engagement unequivocally shows that he has been appointed against a permanent post and non-regularization of his service amounts to exploitation on the part of the departmental authority to keep a permanent post vacant and continue to employee on contract basis. The earlier petition of the same Petitioner (C.P.No.D-983 of 2007)was disposed of vide judgment dated 14.10.2010 and for the ease of
reference, paragraph 9 and 10 of thejudgment are reproduced as under: -
“9. It is one of the most nefarious kinds of exploitation that a person is recruited on contract for a post of permanent nature and is continued as such from year to year keeping that person on the tenterhooks of uncertainty with the sword of termination of contract permanently hanging over his head by nothing but the most fragile thread of one knotted eyebrow of a superior. Such a situation cannot be, and indeed should not be allowed to be countenanced.”
10. Thus it appeared that the post is permanent in nature; there are no rules making it a post to be filled through promotion and the petitioner has worked on the post, though on contract basis, for a number of years. Being conscious of the fact that this Court cannot assume to itself jurisdiction of Selection Authority as that role must be left to the departmental authorities to perform, we direct the Respondent No.2 to, within a period of two months, assess the suitability of petitioner for permanent absorption on the post and thereafter take action in accordance with the law and submit report to this Court. This Constitution Petition is disposed of in the above terms. Listed application is also disposed of.”
(The judgment is reported in 2011 PLC (C.S) 281)
3. The petitioner argued in person that he applied for the post of Assistant Programmer through proper channel and was initially appointed on contract basis for 02 years. Consequent upon his appointment, the petitioner was relieved by the learned District Judge, Hyderabad through office order No.36 dated 22.4.2004 subject to lien of the petitioner to be maintained for two years. After relieving from his parent department, the petitioner joined respondent No.1. He successfully completed his two years contract and throughout his incumbency no chance of complaint was given to the respondents. After completion of contract, the petitioner was not relieved but verbally directed to continue his job. Subsequently he was directed to perform his duties through a letter dated 02.10.2006 which was followed by another letter dated 01.11.2006.The petitioner was given an understanding that the cases of contractual staff working in IT Department of Pakistan Railways have been strongly recommended to the Ministry of Railways as such the said staff was directed to continue their job till the decision is arrived. Since the petitioner was not relieved by the Respondents therefore he applied for extension of his lien to the learned District Judge, Hyderabad but the same was declined and since then he is no more employee of the District Court, Hyderabad and he lost his permanent employment. He further argued that after rendering services for a considerable period of time, he has a legitimate right and expectation to be regularized but the respondents are avoiding regularization on different pretexts.
4. The learned counsel for the respondent No. 1 to 4 argued that no assurance for permanent absorption was given to the appellant. The contractual employment is valid only for the time frame stipulated therein.The contractual appointment cannot be converted into permanent employment without completing the formalities and approval of the competent authority. Working on permanent post does not accrue right to consider a contract employee as permanent. He further argued that the post of assistant programmer (BS-16) is a permanent post but the petitioner was appointed on contract basis hence he cannot be regularized on the basis of his qualification unless codal formalities are complied with in respect of his regularization.
5. Heard the arguments. It is distinctively emergingfrom the record that in the earlier petition, the Respondent No.2 was directed to consider and assess the suitability of the Petitioner for his permanent absorption within two months and submit the report to this Court.Seemingly this order was not complied with therefore the petitioner filed this fresh petition rather thanputting forwarda contempt application in his earlier petition for implementation of order in its true perspective.
6.In this ensuingpetitiontoo, his prayer is identical. Petitioner has also pointed out Page 97, which is an Office Memorandum conveyed by the Deputy Director, Admn.II, Pakistan Railways, Government of Pakistan in the year 2010 to the Establishment Division with reference to the minutes of meeting of Cabinet Sub-Committee of Regularization of Contract/Daily Wages Employees in the Ministries/Divisions/Attach Departments/Autonomous Bodies/Organizations etc. and since the Petitioner is performing his duties in the Information and Technology Department, therefore, at Serial No.7 his name was also mentioned with designation as Assistant Programmer (BS-16). In the concluding paragraph of this letter, request was made to the Establishment Division to convey approval of the Sub-Committee of the Cabinet for regularization of the services of employees mentioned in the letter.
7. The learned counsel for the respondent No. 1 to 4could not controvert the judgment passed by this court. No rational or any other lucid reason was shown for non-compliance of the earlier order, however, learned counsel for Respondents referred to a letter of Deputy Director sent to the Secretary, Federal Public Service Commissionon 25.5.2016 with reference to the present Petition. In the concluding paragraph of this letter request was made to the Federal Public Service Commission to examine the recommendations of the Sub-Committee of the Cabinet in respect of officers on contract basis and tender advice regarding the regularization of the Petitioner.
8.Since in the earlier round, this court has already passed the order and held that for last considerable period of time the petitioner is performing his duties against a permanent post and also issued directions for regularization and absorption. Not only this, the Railway Department had itself engaged in the communication with the Secretary Establishment for regularization of various employees mentioned in the letter. So far as the Federal Public Service Commission is concerned, this is not the case of initial appointment, but the regularization is to be based in terms of the order passed by this court and minutes of meeting of Cabinet Sub-Committee of Regularization of Contract/Daily Wages Employees in the Ministries/Divisions/AttachDepartments/Autonomous Bodies/Organizationshence there was no justification to seek advice of the Federal Public Service Commission after passing order by this court in Constitutional Petition No.D-983 of 2007, which was not challenged in the apex courtand sothe matter attained finality.
9.No doubt that the petitioner is continuously performing his duties since 2004 but on contract basis against a permanent post which fact has not been denied by the official respondents. It is worst kind of exploitation to retain an employee on contract against a permanent post for such a considerable time. It is also obvious that the management has no issue against his performance or working otherwise there was no rational or logic to extend period of contract from time to time since 2004. After performing duties for sixteen years what due process is expected at this stage. On the contrary the continued extension of contract by the respondents is nothing but a sword of Damocles that can be used as tool or weapon to determine the contract at their whims or leisure without due process of law at any time. To enjoy the protection of law and to be treated in accordance with law is inalienable right of every citizen. Reading of Article 4 of the Constitution of Islamic Republic of Pakistan shows that it incorporates the doctrine of equality before law or equal protection of law and no action detrimental to the life, liberty, body, reputation or property of any person can be taken except in accordance with law. Public functionaries are supposed to function in good faith honestly and within the precincts of his power so that person concerned should be treated in accordance with law. Article 3 of the Constitution makes its incumbent upon the state to ensure elimination of all forms of exploitation. Reference can be made to the judgment authored by one of us (Muhammad Ali Mazhar-J) which is reported in 2013 PLC (C.S) 121 (Muhammad Akram Solangi & others v. D.C.O. Khairpur & others). The honourable Supreme Court in the case of Ikram Bari, reported in 2005 SCMR 100 held that Islamic welfare state is under obligation to establish a society, which is free from exploitation wherein social and economic justice is guaranteed to its citizens. Objectives Resolution by virtue of Art.2-A of the Constitution, has been made substantive part of the Constitution which unequivocally enjoined that in State of Pakistan the principles of equality, social and economic justice as enunciated by Islam would be fully observed which would be guaranteed as fundamental rights. Principles of policy contained in Article 38 of the Constitution also provide that the State should secure the well-being of the people by raising their standards of living and by ensuring equitable adjustment of rights between employer and employees and provide for all citizens, within the available resources of the Country, facilities for work and adequate livelihood and reduce disparity in income and earnings of individuals. State is obliged under Article 3 of the Constitution, to ensure the elimination of all forms of exploitation and gradual fulfilment of the fundamental principle from each according to his ability, to each according to his work.
10. In the case of Ejaz Akbar Kasi v. Ministry of Information and Broadcasting. (2011 PLC (C.S.) 367)Thepetitionerspleaded that they are serving PTV in different positions on contract basis and successfully completed period of more than ten years. The apex court in this case held that “we are of the opinion that the Board of Directors may have not declined the petitioners’ regularization, however, it is a fact that regularization of contract employees, if at all is to be made is to depend upon the performance. The petitioners who have appeared in person state that they have qualified the test and their performance as well is upto mark which is evident that for the last more than ten years they have been allowed to continue work against the vacancies which they are holding without any interference and there is, now, no question of performance at all as they have already shown their performance”. In the case of Chairman, Pakistan Railways V.S Arif Hussain and others, (2008 PLC (C.S.) 240), theapexheld that posts against which respondents were appointed and had been continuously performing their duties as temporary labour on yearly basis were permanent. Respondents having rendered continuous service for considerable period are entitled to claim regularization of their services. In the case of Hakim Ali Ujjan v. Province of Sindh (2012 PLC (C.S.) 127),the court held thatpetitioners were employed on contract basis in the year 2007 on vacancies which were of permanent nature. Where a post was of a permanent nature, the same had to be filled in through permanent appointment. The petitioners, who had been satisfactorily working on permanent posts for the past more than three years on contract basis were directed to be absorbed in service first.
11.As a result of above discussion, this petition is admitted to regular hearing and disposed of with the directions to the respondent No.1 to 4 to issue Notification of petitioner’s regularization in service within fifteen days and submit compliance report through MIT-II of this court.
Judge
Judge