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2014 P L C (C.S.) 609
[Islamabad High Court]
Before Riaz Ahmad Khan, J
Miss ZAKIA NAURIN and others
Versus
FEDERATION OF PAKISTAN and others
Writ Petitions Nos.13, 2044, 2293, 3278, 3325, 3385, 3767, 2195, 2229, 2570, 2592, 2642, 2970, 2971,
3352, 3407, 3463, 3557, 3592, 3593, 3595, 3654, 3961, 3963, 4174, 4188, 962,963, 1110, 1892, 2020,
961, 836, 833, 794, 2887, 1983 of 2012, 2082 of 2006, 1951 of 2009 and 2911 of 2011, decided on 31st
December, 2012.
Constitution of Pakistan---
----Arts. 25 & 199---Constitutional petition---Policy introduced by Federal Government to regularize
contractual employees in all Ministries/ Divisions/Attached Departments/ Autonomous Bodies/
Corporation having rendered services for a period of one year on contract basis---Refusal of Authority to
regularize services of petitioners being contract employees (PBS-17) in Pakistan Railways, Commissioner
Afghan Refugees, Higher Education Commission, Live Stock and Dairy Development Board, Earthquake
Reconstruction and Rehabilitation Authority---Validity---Record showed that Ministry of Railways had
regularized some Medical Officers in BPS-17 in compliance of such policy without referring their cases to
Federal Public Service Commission---Ministry of Railways had no authority to give a policy contrary to
policy of Federal Government---Petitioners-employees of Railways were entitled to be treated alike other
employees having been regularized---Government in said Policy had also provided that same would apply
to all employees getting salary from non-development/recurring budget under arrangement of
Government---Commissioner Afghan Refugees was attached Department of Federal Government, thus, its
said policy was equally applicable to petitioners-employees---Such policy was applicable to autonomous
bodies also, thus, Higher Education Commission would fall within its ambit---Higher Education
Commission having regularized some officers under said policy could not deny same treatment to
petitioners-employees---Such policy would equally apply to employees of Livestock and Dairy
Development Board for being under Ministry of Livestock and Dairy Development---Policy would apply
to Employees of Earthquake Reconstruction and Rehabilitation Authority having been established by
Government under Earthquake Reconstruction and Rehabilitation Act, 2011---Petitioners-employees had
been discriminated unlawfully as cases of similarly placed other employees had been sent for
regularization to Cabinet Sub-Committee---Petitioners had not sought implementation of terms and
conditions of service, High Court on ground of discriminatory treatment meted out to petitioners could
issue proper writ---Sending names of one set of employees for regularization and denying same treatment
to other similarly placed set of employees would be violative of Art.25 of the Constitution---High Court
accepted petitions with directions to Cabinet Sub-Committee to consider petitioners' cases for
regularization in accordance with such policy.
PLD 2011 SC 22; 2002 SCMR 82 and 2003 PLC (C.S.) 796 rel.
Muhammad Shoaib Shaheen, Muhammad Umair Baloch, Ijaz Anwar, Nasim Hussain, Muhammad Faazil
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Siddiqui, Shafqat Mahmood, Imtiaz Anwar Cheema, Muhammad Ramzan Khan, Mumtaz Ahmed and
Yasir Rahim Bhatti and Riasat Ali Azad for Petitioners.
Petitioner in person (in Writ Petition No.3767 of 2012).
Muhammad Munir Peracha, Malik Anwar Mukhtar and Nauman Munir Peracha, for H.E.C.
Muhammad Khalid Zaman for C.D.A.
Muhammad Asif Khan and Aftab Ahmed Butt for Housing Foundation.
Saeed Ahmed Zaindi and Ch Muhammad Ashraf Gujjar for ERRA.
Tajammal Hussain for Pakistan Railway.
Babar Ali for Livestock.
Muhammad Usman Ghani, for SAFRON.
Qazi Rafiuddin Babar D.A.G.
Raja Shakeel Abbasi, Standing Counsel.
Nadeem Arshcd S.O. Legal Finance Division.
Rasool Bakhsh Rohi, S.O. I.P.C.
Amjad Saeed Awan, S.O. Establishment and Syed Nizam ud Din, Assistant Director.
Iftikhar Anjum, Director, ERRA.
Farrukh Javed, SEED Certification Officer, Ministry of NFS&R.
Tariq Mehmood, Director Legal, I.S.I.
Zubair Ahmed Director Admin, T.B. Control Programme.
Dates of hearing: 18th, 19th; 21st and 31st December, 2012.
JUDGMENT
RIAZ AHMAD KHAN J.--- This judgment is directed to dispose of above titled writ petition as well as
Writ Petitions Nos.2044 of 2012, 2293 of 2012, 3278 of 2012, 3325 of 2012, 3385 of 2012, 3767 of 2012,
2195 of 2012, 2229 of 2012, 2570 of 2012, 2592 of 2012, 2642 of 2012, 2970 of 2012, 2971 of 2012,
3352 of 2012, 3407 of 2012, 3463 of 2012, 3557 of 2012, 3592 of 2012, 3593 of 2012, 3595 of 2012,
3654 of 2012, 3961 of 2012, 3963 of 2012, 4174 of 2012, 4188 of 2012, 962 of 2012, 963 of 2012, 1110
of 2012, 1892 of 2012, 2020 of 2012, 961 of 2012, 836 of 2012, 833 of 2012, 794 of 2012, 2082 of 2006,
1951 of 2009, 2887 of 2012, 1983 of 2012 and 2911 of 2011.
2. The petitioners in the above-mentioned writ petitions are working in different departments on contract
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basis. The Government of Pakistan introduced a Policy regarding regularization of contractual/daily
wages employees in all Ministries / Divisions / Attached Departments / Autonomous Bodies /
Corporations. According to said Policy, employees who have rendered services for a period of one year on
contract/daily wages, can be regularized. For this purpose, a Cabinet Committee was constituted and the
services of some of the colleagues of petitioners were regularized, but allegedly petitioners were ignored
without any cogent reason, so the writ petitions were filed.
3. Learned counsel for the petitioners submitted that the Government has introduced a Policy regarding
regularization of contractual/daily wages employees in all Ministries / Divisions / Attached Departments /
Autonomous Bodies. Consequent to said Policy, hundreds of employees in different departments have
been regularized. The petitioners as such, cannot be ignored and discriminatory treatment cannot be meted
out to the petitioners. Consequent to the Policy, the Hon'ble Supreme Court in different judgments have
already ordered regularization and in different department i.e. PTCL, Pakistan Post Office, ZTBL,
SNGPL, OGDCL and other Provincial as well as Federal Government departments, the services of ad
hoc, temporary and daily wages and contract employees have been regularized, so the petitioners are also
entitled to be regularized.
4. Since different departments are involved, so the cases of different respondents are taken up separately.
5. In case of "Syed Shandar Mehdi and others v. The Secretary/ Chairman, Pakistan Railways and others"
(Writ Petition No.2082 of 2006), learned counsel for the respondents submitted that the petitioners in this
case, are all Grade-17 employees and these employees cannot be regularized for the simple reason that
appointment in Grade-17 and above is always made through Federal Public Service Commission. Learned
counsel for the respondents in this respect, referred to Policy adopted by the Railway Board, wherein it
was provided that the directions of Cabinet Committee on regularization of contractual and daily wage
workers shall be followed, except contractual employees against project posts, employees working against
posts that are to be filled through the Federal Public Service Commission. Learned counsel in this respect
further submitted that the petitioners in the present case, have to be appointed by the Federal Public
Service Commission.
6. In case of "Miss Zakia Naurin and others v. Federation of Pakistan and others" (Writ Petition No.13 of
2012), learned counsel for the respondents submitted that the petitioners in the present case are employees
of Commissioner Afghan Refugees, Punjab. The petitioners are purely temporary contractual employees
working under educational project of UNHCR and in the contract of employment, the petitioners had
accepted the condition that they would not be entitled to any compensatory benefit. Learned counsel
further submitted that the Government Policy is not applicable to the case of petitioners.
7 In case of "Muhammad Anees Sadozai and others v. Federation of Pakistan and others" (Writ Petition
No.963 of 2012), learned counsel for the respondents submitted that the petitioners are employees of
Higher Education Commission, which had come into existence through Higher Education Commission
Ordinance, 2002. Section 12 of the Ordinance empowers the Commission to appoint such officers,
servants, consultants and advisors as it may consider necessary for the efficient performance of its
functions, on such terms and conditions as may be prescribed by the Federal Government in terms of
section 12(1) of the Ordinance. Learned counsel further submitted that Rules under the Ordinance are
made by the Commission and these Rules do not require approval of the Federal Government, as such, the
rules are non-statutory and therefore, no writ can be issued. The learned counsel further submitted that the
employees are to be appointed by the Commission and not the Federal Government. As such, the Federal
Government has no authority to issue direction to the Higher Education Commission to appoint any
person on regular basis. The Policy of the Federal Government as such, is not applicable to Higher
Education Commission.
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8. In case titled as "Abdul Rehman Bangash and others v. Federation of Pakistan and others (Writ Petition
No.836 of 2012) and "Ms Shabana Gul and others v. Federation of Pakistan and others" (Writ Petition
No.833 of 2012), learned counsel for respondents submitted that the petitioners are employees of project
namely "Milk Collection, Processing and Dairy Production and Development Program". The petitioners
were employees of corporation and were being paid through project fund. The project got completed on
30th June, 2011, so services of the petitioners were dispensed with as per terms and conditions of their
appointment letter. The petitioners, as such, have no vested or fundamental right and they could not
invoke constitutional jurisdiction of this Court.
9. In cases titled as "Nawazish Ali Khan Muhamand v. Federation of Pakistan" (Writ Petition No.3385 of
2012), "Rashid Mehmood and others v. Federation of Pakistan and others (Writ Petition No.2044 of
2012), "Kamran Amjad and others v. Federation of Pakistan and others" (Writ Petition No.3767 of 2012),
"Muhammad Moeen Raza and another v. Federation of Pakistan and others" (Writ Petition No.3325 of
2012), "Muhammad Shahbaz Qaiser and others v. Federation of Pakistan and others (Writ Petition
No.3278 of 2012) and "Shazia Haris v. Federation of Pakistan and others" (Writ Petition No.2293 of
2012), learned counsel for respondents submitted that the petitioners are employees of Earthquake
Reconstruction and Rehabilitation Authority (ERRA) and were project employees. The Rules governing
services of the petitioners are non-statutory, therefore, no writ can be issued. Learned counsel further
submitted that the funds to the authority are provided by different countries and on completion of the
project, the employees are also sent home. Learned counsel further submitted that in Writ Petition
No.3385 of 2012, the petitioner while in active service in Pakistan Army as a Major, was appointed in
ERRA. During this period, the petitioner sought retirement from Army and after retirement, was
appointed on contract w.e.f. 25-9-2008, which contract was renewed on several occasions. The petitioner
is still a contract employee, but the contract would expire on 30th April, 2013. Learned counsel however,
submitted that the petitioner was being paid from development budget grant and the Policy of the Federal
Government is not applicable to ERRA.
10. I have heard learned counsel for the parties and have also perused the record.
11. It was in 2011, that the Government decided to regularize contractual/daily wage employees in all
Ministries/Divisions/Attached Departments/Autonomous Bodies/Corporations. In this respect, a meeting
of the Cabinet Committee was held in Establishment Division on 29-6-2011, in which the following
proposal was made to the Prime Minister:---
(i) Contract employees who have completed one year satisfactory services be regularized.
(ii) Daily wages workers employed for 89 days (on spells) and completed three spells of their services
shall be regularized in conformity with the order of the apex Court.
(iii) The case of contract employees of BPS-16 and above may be submitted to the Committee for
regularization of their services through Cabinet decision instead of FPSC.
12. In the said meeting, however, officers of Ministry of Health, Special Education and Social
Welfare/NCCWD/NTD under CAD Division and Ministry of Woman Development were proposed to be
regularized w.e.f. 29-6-2011. This regularization was approved by the Prime Minister. Thereafter, another
meeting of Cabinet Sub-Committee on regularization of daily wages/contract employees in Ministries/
Divisions/Attached Departments/Autonomous Bodies/Organizations etc. was held on 13th September,
2011. In the said meeting it was decided to regularize contract as well as daily wages employees of
following departments:---
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(1) Ministry of Human Resource Development.
(2) Ministry of Petroleum and Natural Resources.
(3) Pakistan State Oil Company Ltd. (PSO) was directed to first regularize the workers engaged by PSO
on contract/daily wages and not the management cadre people.
(4) Pakistan Mineral Development Corporation (PMDC).
(5) Hydrocarbon Development Institute of Pakistan.
(6) Geological Survey of Pakistan.
(7) Ministry of Information and Broadcasting.
(8) Pakistan Television Corporation.
(9) Pakistan Broadcasting Corporation.
(10) Shalimar Broadcasting Corporation.
(11) Associated Press of Pakistan.
(12) Capital Administration and Development Division.
(13) Federal Government College for Women F-7/2, Islamabad.
(14) Regional Training Institute, Hyderabad.
(15) Federal Directorate of Education, Islamabad.
(16) National Institute of Science and Technical Education, Islamabad.
(17) Federal College of Education, Islamabad.
(18) Government Polytechnic Institute for Women, Islamabad.
(19) National Education Assessment System, Islamabad.
(20) Project Monitoring Unit ESR, Islamabad.
(21) Employees of Defunct Ministry of Health (NIH Karachi, FGSH and PIMS, Islamabad.
(22) Technical Panel on Teacher Education.
(23) Directorate General of Special Education.
(24) Federal Government College for Women F-7/2, Islamabad.
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(25) Regional Training Institute, Hyderabad.
(26) Ministry of Finance.
(27) Auditor General of Pakistan.
(28) Controller General of Accounts (CGA).
(29) Central Directorate of National Savings.
(30) Ministry of Narcotics Control.
(31) Ministry of Textile Industry.
(32) Ministry of Law, Justice and Parliamentary Affairs.
(33) Ministry of Communication (NHA).
(34) Planning Monitoring and Evaluation Cell.
(35) Establishment Division.
(36) Cabinet Division.
(37) Planning and Development Division.
(38) Statistics Division.
13. Since in the meeting, the representative of Sui Southern Gas Company Ltd. (SSGCL) was not
available, therefore, direction was issued to supply particulars of all contract/daily wages employees.
14. The above said meeting was again followed by another meeting dated 12th October, 2011, in which
222 officers belonging to BS-19, 18 and 17 of National Highway Authority (NHA) were regularized.
These officers included four retired army officers, namely Lt. Col. (R) Zulfiqar Ali Janjua, Maj. (R) Javed
Iqbal Gondal, Maj. (R) Syed Waqar Ali Shah and Maj. (R) Yawar Mehdi. It was however, provided that
only those employees had to be regularized who fulfill the conditions of qualification and experience
prescribed in the rules applicable to NHA employees BPS-17 to BPS-19 and their age is less than 50 years
as on 30-6-2011.
15. Thereafter, another meeting of Cabinet Sub-Committee was held on 4th July, 2012, wherein the
following decision was made:---
"The Cabinet Sub-Committee directed that the services of any of the contractual/daily wages employees
in the Ministries, Divisions, Attached Departments/Autonomous Bodies, Organizations etc. who has
completed more than one year of service of his/her employment will not be terminated/ discharged
without brining his case before the Cabinet Sub-Committee and the contractual services of all such
contract/daily wages employees should be extended till final decision by the Cabinet Sub-Committee."
16. Another meeting was scheduled to be held on 13-12- 2012 to consider the cases of employees of
following Ministries/Divisions/ Organizations:---
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(1) Cabinet Division (CDA).
(2) Ministry of Commerce (TCP - implementation report CSC Directives).
(3) Ministry of Capital Administration and Development Division.
(4) Ministry of Defence (Civil Aviation Authority).
(5) Ministry of Defence Production (Heavy Electrical Complex).
(6) Ministry of Industries (SMEDA).
(7) Ministry of IPC (Creation of 80 posts/developed projects).
(8) Ministry of National Food Security and Research.
17. It was in the above background that the present petitioners filed the present writ petitions for
regularization of their services. The contention of learned counsel for the petitioners is that these
Departments had adopted the policy of pick and choose. They select the names of their favourite people
and send the same to the Cabinet Division for regularization of their services and the remaining people are
left out. According to learned counsel for the petitioner, the said attitude of the Department is
discriminatory, which is violative of Article 25 of the Constitution. The record shows that this contention
of learned counsel for the petitioners is correct. In case of "Syed Shandar Mehdi and others v. The
Secretary/Chairman, Pakistan Railways and others" (Writ Petition No.2082 of 2006), it was brought to
notice of the Court that vide Notification No.Admn-II/2011-AP/I, dated 15th February, 2012, 9 Medical
Officers in BPS-17 were regularized in compliance of regularization Policy of the Government. These
officers could be appointed only through Federal Public Service Commission, but instead of sending their
cases to Federal Public Service Commission, they were regularized by the Ministry of Railways. In view
of the said decision of the Ministry of Railways, the petitioners in Writ Petition No.2082 cannot be
discriminated. Pakistan Railway Board has no authority to give a policy in contravention of the Policy of
Federal Government. It is also to be kept in view that Railway Board itself had decided to follow that
Policy of Federal Government and according to that policy certain officers were regularized in BPS-17,
then the same treatment should be meted out to the petitioners.
18. As far as case titled "Miss Zakia Naurin and others v. Federation of Pakistan and others" (Writ Petition
No.13 of 2012) is concerned, the petitioners no doubt are employees of Commissioner Afghan Refugees,
but the Policy is applicable to all Ministries/Divisions/ Attached Departments / Autonomous Bodies /
Corporations. The Department of Commissioner Afghan Refugees is an attached Department of Federal
Government and the Policy is equally applicable to the employees of Commissioner Afghan Refugees. It
is further to be noted that the Federal Government in the Policy had also provided that the Regularization
Policy shall be applicable to all employees getting salary from non-development/recurring budget under
the arrangement of Federal Government.
19. In case of "Muhammad Anees Sadozai and others v. Federation of Pakistan and others" (Writ Petition
No.963 of 2012), the petitioners are employees of Higher Education Commission, which had admittedly
come into existence through Higher Education Commission Ordinance, 2002, as such it cannot be said
that Higher Education Commission is not a Government department. Since the Policy is applicable to the
autonomous bodies as well, therefore, the Higher Education Commission cannot be placed outside ambit
of the Policy. It is also to be kept in view that admittedly certain other officers of H.E.C. have been
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regularized under the Policy, so the same treatment cannot be denied to the petitioners.
20. In case of "Abdul Rehman Bangash and others v. Federation of Pakistan and others (Writ Petition
No.836 of 2012), the petitioners are project employees of Livestock and Dairy Development Board,
which is under the Ministry of Livestock and Dairy Development. Since the petitioners are employees of
Government Department, therefore, the Regularization Policy is equally applicable. If on the material date
provided in the Policy, they were in service, their case is to be considered for regularization. It would be
for the Cabinet Sub-Committee to determine as to whether these petitioners are entitled to the benefits of
the Policy or not. However, it cannot be said that the Policy is not applicable to these petitioners.
21. In cases titled as "Nawazish Ali Khan Mohamand v. Federation of Pakistan" (Writ Petition No.3385 of
2012), "Rashid Mehmood and others v. Federation of Pakistan and others (Writ Petition No.2044 of
2012), "Kamran Amjad and others v. Federation of Pakistan and others" (Writ Petition No.3767 of 2012),
"Muhammad Moeen Raza and another v. Federation of Pakistan and others" (Writ Petition No.3325 of
2012), "Muhammad Shahbaz Qaiser and others v. Federation of Pakistan and others" (Writ Petition
No.3278 of 2012) and "Shazia Haris v. Federation of Pakistan and others" (Writ Petition No.2293 of
2012), the petitioners are employees of Earthquake Reconstruction and Rehabilitation Authority (ERRA),
which came into existence through Earthquake Reconstruction and Rehabilitation Authority Act, 2011, so
it cannot be said that it is not a Government Department. The Cabinet Secretariat, Establishment Division
vide letter dated 15th October 2012 has ordered for convening a meeting to take up cases of employees of
ERRA and the said letter was produced in the Court, so it cannot be said that the petitioners are outside
ambit of the Policy. Furthermore, it has already been decided by the Government that project employees,
who are paid salaries from non-development/recurring budget, shall also be considered for regularization,
so Regularization Policy is equally applicable to these petitioners as well.
22. In most of the cases, the petitioners have been discriminated, as cases of similarly placed other
employees have been sent for regularization to Cabinet Sub-Committee, which is totally unlawful. One of
the argument of learned counsel for the respondents was that since in most of the cases, the rules
governing services of the petitioners are non-statutory, so no writ can be issued. This contention is not
correct for the reason that the writ petitions are not for the implementation of any term or condition of
service. In addition to that, on the basis of discrimination, this Court has the jurisdiction to issue a proper
writ.
23. In PLD 2011 Supreme Court 22, where the petitioners were employees of Pakistan Television, the
Hon'ble Supreme Court of Pakistan 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...." It was further held that the petitioners could not
be discriminated without any cogent reason by violating the provisions of Article 25 of the Constitution
and it was duty of the Organization to protect their fundamental rights enshrined in Article 9 of the
Constitution.
24. In judgment reported as 2002 SCMR 82, it was held that "Employer could not mete out different
treatment to two groups of its employees, as dictates of law, justice and equity required exercise of power
by all concerned to advance the cause of justice and not to thwart it.
25. In 2003 PLC (C.S.) 796, it was held by the Supreme Court of Pakistan that "Persons similarly situated
or similarly placed were to be treated alike and could not be discriminated against under Article 25 of the
Constitution and would be entitled to the same relief which had been given to the other employees....."
26. Seeking guidance from the afore-mentioned judgments of the Hon'ble Supreme Court of Pakistan, it is
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held different treatment to similarly placed employees in an organization that cannot be meted out. If
names of one set of employees have been sent for regularization, then the denial of same treatment to
another similarly placed set of employees would be violative of Article 25 of the Constitution of Islamic
Republic of Pakistan, 1973. In view of the afore-mentioned facts, all these writ petitions are accepted. The
cases of the petitioners be immediately sent to the Cabinet Sub-Committee on regularization of
contract/daily wages employees in the Ministries/ Divisions/ Attached Departments/ Autonomous
Bodies/Organizations etc. Cabinet Sub-Committee should decide cases of the petitioners for
regularization in accordance with the Government Policy expeditiously, but not later than one month. Till
decision of the Committee, no adverse action shall be taken against the petitioners. Since, Policy of the
Government is that the services of the contract employees shall not be terminated, unless their cases are
decided, therefore, if services of the petitioners have been terminated during existence of the Policy, their
cases shall also be sent to the Cabinet Sub-Committee for consideration/regularization. All the petitions
are accordingly, accepted.
SAK/66/Isl. Petitions accepted.
;
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