IN THE HIGH COURT OF SINDH AT KARACHI

 

C.P.NO.D-3679 OF 2014

 

                             Present

                             Mr. Justice Muhammad Ali Mazhar

                             Justice Mrs.Ashraf Jahan

 

Dr. Bashir Ahmed & others    ……….        Petitioners

 

Versus

Province of Sindh,

Through Chief Secretary

& others.                                 ….…….     Respondents

 

Date of hearing 27.05.2015

 

Mr. M.M Aqil Awan Advocate for the Petitioners

Mr. Abdul Jalil Zubedi A.A.G

Dr. Ashok, Technical Officer, representative of Director Animal Breeding.

 

Abdul Rehman on behalf of Secretary Livestock

****************

 

JUDGMENT

 

 

Muhammad Ali Mazhar, J: This petition is brought to seek out a declaration that on promulgation of Sindh (Regularization of Adhoc and Contract Employees) Act, 2013, the petitioners have acquired the status of permanent employees, therefore, the respondents be directed to issue their orders for regularization and also pay their salaries and other benefits with effect from 01.07.2012.

 

 

2. The brief facts of the case are that the petitioners obtained the degree of Bachelor of Veterinary Medicines (DVM). The applications were invited for job by the Respondent No.3 in the newspaper on 20.06.2010 for the  appointments in different categories on contract basis. The first category was Veterinary Officer for 64 vacancies with the qualification of Doctor of Veterinary Medicines. In response to the advertisement, the petitioners applied for the post of Veterinary Officer BS-17. They qualified in the written test and were also called for interviews, thereafter, they were issued offer letters on 08.02.2011. The initial contractual employment was made up to 30.06.2011 but it was extended for one year with effect from 01.07.2011 to 30.06.2012. After extension for one year, the petitioners started efforts for pursuing their regularization in service but the issue remained pending for a considerable period despite floating summary to the Chief Minister, Sindh. It is also their claim that though their last extension was up to 30.06.2012 but they were continuously performing their duties and in the meanwhile, Sindh (Regularization of Adhoc and Contract Employees) Act, 2013 was promulgated.

 

 

3. The learned counsel for the petitioners in order to show the continuity in job invited our attention to various documents attached with the memo of petition. He pointed out page 55, which is a monthly statement, prepared by the petitioners for the work done at Artificial Insemination Center in District Matiari for the month of April, 2013 along with the challan through which amount was deposited with the Government treasury for the month of April, 2013. This amount was received from the growers for artificial insemination. He also referred to page 59 to 61 to show monthly progress statements of Matiari center. He further argued that besides this, the petitioner No.3 also performed emergency duties. While referring to page 63, he demonstrated that three Veterinary Officers including petitioner No.1 were assigned the duties for arrangement of free veterinary relief camp at Hala Cattle Market and on 28.02.2012, the petitioner No.1 was deputed at departmental stall. He further argued that departmental authority also made efforts for regularization of the petitioners for the reasons that they have been imparted training and now they are well experienced in the field of animal husbandry. If the petitioners are not regularized, the entire infrastructure created will be crumbled and cause loss of millions of rupees to the public exchequer. It was further contended that summary was floated by the department on 17.06.2013 which was opposed by the Finance Department but, in the meanwhile the Sindh (Regularization of Adhoc and Contract Employees) Act, 2013 was promulgated. In the month of March, the petitioners along with other contract employees were on hunger strike at Karachi Press Club and on promulgation of Sindh (Regularization of Adhoc and Contract Employees) Act, 2013, the Secretary Livestock persuaded the protestors to break the strike. Some photographs in this regard are attached with the memo of petition. To deal with the matter of regularization, a high powered committee was constituted comprising 14 members including two petitioners and their meeting was held on 20.05.2014 in which it was resolved that fresh summary should be floated to the Chief Minister, Sindh. It was further contended that though the petitioners were employed on contract basis but under the Constitution and Service Laws particularly Civil Servant Act, 1973 and Sindh Civil Servant (Appointment Promotion Transfer) Rules, 1974, there is no provision to make appointments on contract basis. He next argued that for the determination of post, Finance Department has no role to play. The contract and adhoc employment has always been discouraged by the Superior Courts because such type of appointments never advances the objective of good governance and since the petitioners have attained the status of permanent employees, therefore, the Respondents be directed to issue their orders for regularization in the service. In support of his arguments, the learned counsel referred to some case laws which are as under:-

 

(1)    2008 PLC (C.S.) 240 (Chairman, Pakistan Railways and others V.S Arif Hussain and others).---Regularization of services---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, were entitled to claim regularization of their services.

 

 

(2)    2011 PLC (C.S.) 281 (Ayaz Ahmed Memon v. Pakistan Railways, Ministry of Railway, Islamabad and another). Appointment on contract basis. Petitioner was employed on contact for a period of three years, but said contract continued from year to year and his service continued for more than 7 years---Petitioner had prayed that he be treated as permanent employee with all consequential benefits---Validity---If the post on which the petitioner was appointed, was a permanent one it should have been filled over during the last 6 years or so, but that had not been done---Such was one of the most nefarious kinds of exploitation that a person was recruited on contact for a post of permanent nature and was continued as such from year to year.

 

 (3)  2012 PLC (C.S.) 127 (Hakim Ali Ujjan and others v. Province of Sindh and others).Regularization of service---Petitioners were employed on contract basis in the year 2007 on vacancies which were of permanent nature; on completion of three years contract period, the petitioners filed petitions for regularization of their services---Plea of the authorities was that as petitioners were employed on contract basis, they had no protection as they could not be regarded as civil servants and that upon completion of the contract period they would cease to be in service---Validity---Where a post was of a permanent nature, the same had to be filled in through permanent appointment--- Petitioners, who had been satisfactorily working on permanent posts for the past more than three years on contract basis, were to be permanently absorbed in service first.

 

 

4. The learned A.A.G filed the comments for the Respondents. He failed to controvert the qualification of the petitioners, their appointment on contract basis, their extension in the contract and satisfactory performance of their duties. However, he argued that in A.D.P No.43 (Development of Milk and Meet production) in Sindh along with other staff, Veterinary Officers were appointed on contract basis. At the end of project on 30.06.2012, the PC-IV was submitted to the planning and Development Department but the Finance Department rationalized the post of Veterinary Officer from 64 to 10. The summary of regularization was submitted to the Chief Minister, Sindh but due to unfavorable comments of Finance Department, the same was not recommended. To rebut the assertion of the petitioners’ counsel regarding the continuity in service of the petitioners, the learned A.A.G argued that the petitioners remained on their positions by their own will and they voluntarily performed their routine work and attended the emergency duties with the aim to help the animal of district Tharparkar and other areas. The learned A.A.G in view of the comments also conceded that the Sindh Regularization Act, 2013 has been passed but it has not been implemented in the case of petitioners and at present, the matter is pending before the committee constituted by the department. He denied that the petitioners were kept on false hopes on the contrary he argued that the measures taken up for the regularization of the petitioners revealed that all best possible efforts have been made for their regularization.

 

5. Heard the arguments. The learned counsel for petitioners and learned AAG, both, extensively argued the matter and agreed that this petition may be disposed of at Katcha Peshi stage. To start with, we would like to first observe that the appointment of petitioners on contract basis, their extension up to 30.6.2012 and satisfactory performance has not been denied by the respondent in their comments. However, an office order dated 15.6.2012 has been attached with the comments to show that the contractual appointment of Veterinary Officer BS-17 was terminated with effect from 30.6.2012. This consolidated order in relation to 64 veterinary officers was issued by the Secretary to the Government of Sindh Livestock and Fisheries Department. Nothing has been avowed before us by the learned AAG nor anything is mentioned in the comments to indicate the service of termination letter to the petitioners informing them the determination of their contractual engagement with effect from 30.6.2012. On  the contrary learned counsel for the petitioners argued that no such letter was ever received by the petitioners and since the nature of job was permanent, therefore, the petitioners were incessantly performing their duties. In order to controvert this argument the learned AAG referred to the  response of paragraph 6 of the petition in the comments that staff remained at their position on their own will and voluntarily performed the routine work and attended the emergencies duties to help and treat the animals.

 

 

6. It is also an admitted fact that in the month of June 2013, a summary was floated by the Secretary, Livestock & Fisheries Department to the Chief Minister Sindh for regularization of services and release of salaries of all contract employees of ADP Schemes i.e. “Development of Milk and Meat Production in Sindh” and “Strengthening of the Directorate of Animal Breeding Sindh Hyderabad” in Livestock & Fisheries Department, Government of Sindh. On one hand a plea was taken that contractual engagement of the petitioners extinguished with effect from 30.6.2012 but on the other hand, the Secretary moved the summary in the month of June, 2013 to the Chief Minister Sindh for the regularization of contract employees and payment of their salaries. Since the summary could not find favour of the Finance Department therefore, regularization was not approved by the Chief Minister. One more document is available on record i.e. the minutes of meeting dated 20.5.2014 which transpires that a committee was constituted to resolve the issue and its meeting was convened in the office of Minister, Livestock & Fisheries Sindh. The item No.4 mentioned in the minutes related to the regularization and continuation of contract staff of directorate of animal breeding. The committee resolved that the summary will be  submitted  by the  Department  to the  Chief  Minister

 

 Sind for  reconsideration of regularization of Veterinary, Para-veterinary and ministerial staff within due course of time after decision on the fate of already floated summary for 145 Doctors or after taking the competent authority into confidence. When we saw the list of participant, we find out the names of petitioner No.1 at Sr.No.2 and the name of petitioner No.2 at Sr.No.9 being representatives of contract employees who also attended/participated in the meeting. At this juncture we would like to revisit the contention of the respondents that the contract was terminated with effect from 30.6.2012 but on the contrary not only the earlier summary was moved in the month of June, 2013 but a committee was also constituted which held its meeting on 20.5.2014. The availability of these documents belies and contradicts the contention that the contract was terminated rather it reinforces and fortifies the assertion of the petitioners’ counsel that the petitioners were in continuity to their services which fact nonetheless countered by the respondent halfheartedly with the explanation that petitioners were voluntarily performing their duties without salary.

 

7. One more significant facet cannot be ignored is an enactment i.e Sindh (Regularization of Adhoc and Contract Employees) Act, 2013 notified on 25.03.2013 with immediate effect. This Act was crafted for regularization of the services of certain categories  of employees appointed on adhoc and contract basis or otherwise (excluding the employees appointed on daily-wages and work-charge basis) in the Province of Sindh. In Section 2, definition clause (d)  ‘employee’ means a person appointed to a post on adhoc and contract basis or otherwise (excluding the appointment on daily-wages and work-charged basis). In order to perceive the nucleus of this legislation, it is expedient to reproduce Section 3 of the Act, which is in fact representing and focusing on the true intent and wisdom of the legislature:-

 

“3. Regularization of services of employees.  Notwithstanding anything contained in the Act or rules made thereunder or any decree, order or judgment of a court, but subject to other provisions of this Act, an employee appointed on adhoc and contract basis or otherwise (excluding the employee appointed on daily-wages and work-charged basis), against the post in BS-1 to BS-18 or equivalent basic scales, who is otherwise eligible for appointment on such post and is in service in the Government department and it’s project in connection with the affairs of the Province, immediately before the commencement of this Act, shall be deemed to have been validly appointed on regular basis.”

 

 

 

 

 

8. The minutiae of the aforesaid section makes it clear that the employees appointed on adhoc and contract basis against the post in BS-1 to BS-18 or equivalent basic scale who is otherwise eligible for appointment on such posts and in service in the Government Department and its project in connection with the affairs of the Province immediately before the commencement of this Act  shall be deemed to have been validly appointed on regular basis. In this case not only a summary was moved for regularization after promulgation of 2013 Act but another committee was also constituted for considering the cases which also resolved to submit the case for re-consideration though the letters of law denotes that on enactment of 2013 Act the contract and adhoc employees in service shall deem to have validly appointed on regular basis. This law was considered in the case of Dr.Iqbal Jan and others reported in 2014 P.L.C. (C.S) 1153, the judgment was authored by one of us (Muhammad Ali Mazhar-J). The relevant excerpt of the judgment is as  under:-

 

“9. While implementing the Act, it is the responsibility of Government to apply and allow the benefit to all employees placed in equal and similar circumstances without any discrimination and not to pick and choose the employees for conferring the benefit or advantage of this law. It is also an admitted position that learned Advocate General (Sindh) conceded before hon’ble Supreme Court that after promulgation of the Act, appeals before Supreme Court have become infructuous as law has given them blanket protection as regards their appointment. We would also like to hold that when the law giver declares or promulgates any beneficial law it is his responsibility to implement it across the board with an open heart and benevolence without any conservative or rigid approach. The law under discussion is a beneficial statute proclaimed with the sole aim to provide and secure the rights of a particular category or class of employees for their betterment and to safeguard and preserve the contractual or adhoc employment into a permanency. The letter of law enshrines that the efforts should be made to bequeath the benefit and its advantage to all the deserving employees in rem rather than to seek ways and means to deprive them on one or the other pretexts which is against the norms of good governance. It is often seen in the labour and service matters  that laws are made but somehow or the other, its implementation is delayed so that every individual has to recourse to the court of law for its benefit and advantage and wait for considerable time. Had the law implemented in its letter and spirit, this would have lessen or decrease an unnecessary burden on the court’s docket but on the contrary what we have experienced in some other cases also that despite promulgation of law with a broader spectrum which is a laudable effort, the contractual/adhoc employees are forced to first knock the door of this court for implementation which virtually made the spirit of law redundant. Though in this case, the law was made during pendency of the petition and once the law is made, the present petitioners are equally entitled for the same benefit and consideration. It is also well settled principle of law that the court may take to judicial notice of the changed situation and circumstances and can also mold and modify the relief accordingly.”

 

9. The judgment passed in the case of Dr.Iqbal Jan was challenged in the apex court in C.P.L.A No.237-K/2014 but the learned Advocate General did not press the petition and undertook that judgment will be implemented. The petition was disposed of by the apex court with the directions that the Government of Sindh shall fully implement the judgment of High Court in letter in spirit within one month. (Reference can be made to unreported orders dated 30.1.2015, passed by this court in CP.No.D-869 & 871/2011, 3516/2012 & 499/2013 &  in CP.No.D-3290/2014). One more crucial aspect is resonating from the comments of the respondents that the staff of Directorate of Animal Breeding is facing difficult situation. The infrastructure created for 54 field artificial insemination centers and 10 district offices in 10 district are without officers and different department occupied the building unlawfully on one pretext or the other and the services of special trained persons are not being utilized for which the scheme was approved. Such type of clear admission leads us to a firm belief that the vacancies in question are of permanent nature and without sufficient manpower, department cannot be functioned. After raising infrastructure if 54 field insemination centers in 10 district offices are left derelict and deserted, this will not only create a chaos but also cause huge loss to the public exchequer. The project was launched, staff was trained for specialized fields and after  achieving the optimum level of their skills, the respondents are determined to avoid the petitioners existence in the job and showing no serious efforts to implement  2013 Act in their case except that summary was moved to Chief Minister and high powered committee was constituted to give recommendations. The first summary was turned down on the advice of finance department. What we understand that respondent No.2 and 3 are the relevant departments and authorities to decide the need and strength of required manpower to run the department effectively and meaningfully but despite favorable summary moved by the Secretary Livestock and Fisheries Department to the Chief Minister not only for regularization but also for payment of salaries, the finance department raised the objection and matter is stuck up while there is no justification to prolong the issue once the Act of 2013 is promulgated. We have carefully examined the comments filed by the respondents but do not find any serious opposition by tooth and nail. If the comments of the respondents are considered in juxtaposition, following position is emerged:

 

“After that the summary was submitted to the Honourable Chief Minister for regularization of the staff of the scheme & on unfavorable comments of Finance Department the same was not recommended.

Staff  remained on their positions by their own will & voluntarily performed the routine works, attended the emergencies & also performed the emergency duties at Tharparkar voluntarily by their own will with aim to help & treat the animals of Tharparkar District & other areas.”(See reply to paragraph 6 to the petition)

 

“Yes the measures for regularization of staff were taken along with justification mentioned also in the summary moved to the Hon’ble Chief Minister. (Copy of summary is attached)

 

Yes it is fact that without staff at present Directorate of Animal Breeding facing very difficult situation, all the infrastructure created i.e 54 filed Artificial Insemination Center & 10 Districts Officers in 10 Districts are without officers and different department occupied the building unlawfully on the one hand and on other hand services of specially trained persons are not utilized for which the scheme approved”. (See reply to paragraph 7 of the petition).

 

“Measures taken by the department includes re submission of summary to Finance Department for regularizations of all staff of the scheme and also the summary was submitted to the Hon’ble Chief Minister.

 

All these proceedings takes the considerable times, but the services of these employees were already been terminated in the light of terms and conditions of their offer orders by No. SO (G) L & F/contract/DAB/2012 Karachi dated 15 June.

 

Furthermore there is no any implementation has been made by Sindh Government (Regularization of Adhoc & Contract Employees) Act, 2013 up to yet” (See reply to paragraph 8 of the petition).

 

 

“Yes the Act was passed by the Sindh Assembly for regularization of Adhoc/contract employees and the worthy Secretary Livestock and Fisheries department was given the news in light of aforementioned Act but the same has not been implemented by the Government”. (See reply to paragraph 9 of the petition)

 

“The Department have taken efforts and measures for regularization of all the staff of the scheme on every forum previously, the proceedings are continuously in progress and at present under consideration of committee constituted by the department”. (See reply to paragraph 10 of the petition)

 

 

“All the above mentioned measures and proceeding regarding the regularization of the staff reveals that there is no mean of false hopes given to the petitioners by the respondents and all possible measures have been taken for regularization of all the staff of the scheme.

 

Furthermore, the Hon’ble Court may decide on petition in the light of given comments for the mentioned paras in the petition and according to laws”. (See reply to paragraph 11 of the petition)

       

10. 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 another 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).

 

 

11. 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 fulfillment of the fundamental principle from each according to his ability, to each according to his work. 

 

12. In view of the above, this petition is admitted to regular hearing and disposed of in the following terms:-

 

(1)    All the petitioners shall be deemed to have been appointed on regular basis in terms of Section 3 of the Sindh (Regularization of Adhoc and Contract Employees) Act, 2013.

 

(2)    If the respondents have any reservation regarding the fitness or eligibility of any petitioner, they may take appropriate action but such exercise should be taken strictly in accordance with law.

 

(3)    C.M.A No. 18702/2014 (Injunction Application) is also disposed of in the above terms.

 

 

Karachi:-                                                         Judge

Dated.31.8.2015

                                                        Judge