IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Constitutional Petition No. D- 76 of 2013.

Present:

Mr. Justice Nazar Akbar.

Mr. Justice Muhammad Saleem Jessar.

Naveed Khan Domki. …………….Petitioner.

Versus

Director General, Health Services Sindh

Hyderabad & others. ..…..….Respondents.

Mr. Akhlaq Ahmed Baloch, Advocate for petitioner.

Mr. Munawar Ali Abbasi, Asstt. A.G alongwith Dr. Liaquat Ali, D.H.O Kashmore @ Kandhkot.

Date of hearing: 24.02.2017.

Date of Judgment: 24.02.2017.

J U D G M E N T

Nazar Akbar,J: Learned counsel for the petitioner has contended that the petitioner was appointed by respondent No.2 as Laboratory Technician (BPS-09) in Health Department and was posted at Basic Health Unit Bachro as Medical Technician for 90 days w.e.f. 18.2.1997. The period of his contract was repeatedly extended on expiry of 90 days time and since 1997 he has been working in same capacity without being regularized despite the fact that he was entitled for regularization in terms of the Sindh (Regularization of Adhoc and Contract Employees) Act, 2013, (hereinafter referred as Sindh Regularization Act). According to the learned counsel in terms of Section 3 of the Sindh Regularization Act, the regularization has been given retrospective effect. Section 3 is reproduced as under:

“3.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 employees 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.”

2. Mr. Munawar Ali Abbasi, the learned Asstt. A.G. tried to impress upon the Court that the petitioner is no more in service and after three months contract he was removed. He insisted that District Health Officer, Kashmore @ Kandhkot is coming with the record to show that the petitioner is no more in service. In the meanwhile District Health Officer Dr. Liaquat Ali Kalwar has appeared. He was shown official service card issued by the department with the photograph of the petitioner and he admitted that this is genuine service card. He has also identified the petitioner in Court and said that he is in service. He further stated that he has joined as D.H.O six months back and petitioner was already in service and during last six months there is no break in the service of the petitioner. The perusal of original service card clearly indicates that the date of appointment of petitioner is 18.01.1997.

3. The perusal of record shows that respondent No.1 Director General Health Services Sindh Hyderabad has filed comments on 19.03.2014. Even in his comments Director General Health has conceded almost every facts such as the continuation of the service of the petitioner right from 1997 till date and he has not prayed for dismissal of the petition. In reply to the prayer clause he has left it at the discretion of the Court. The exact reply to the prayer clause is “it is discretion of the Hon’ble Court as deem fit”. In fact the comments of respondent No.1 was admission and no objection to the grant of the relief claimed by the petitioner.

4. Learned counsel for the petitioner has referred to the letter dated 23.4.2014 from the respondent No.4 to respondent N.6, which reads as under:

OFFICE OF THE

DISTRICT HEALTH OFFICER,

KASHMORE @ KANDHKOT

No.DHO/GEN/KASH/- 1707/08, dated 23.04.2014.

To,

The Secretary Health,

Government of Sindh,

Health Department, Karachi.

Through: Director General Health Service Sindh, Hyderabad.

Subject: APPROVAL TO REGULARIZE SERVICE OF ADHOC EMPLOYEE MR. NAVEED KHAN LABORATORY TECHNICIAN (BS-09) LETTER NO. /1 OF 7718 DATED 20.04.2014.

Mr. Naveed Khan son of Akbar Khan Domki was initially appointed as Laboratory Technician against the post of Medical Technician in the year 1996 for the period of 90 days only by the District Health Officer Jacobabad. His services were extended for further 90 days time to time and when District Kashmore @ Kandhkot was established as a new district he was working there as Laboratory Technician in Health Department. Since the appointment he is drawing the salary.

At present respected Director General Health Services Sindh Hyderabad has informed advised/ directed under signed to issue regular appointment order to him against the vacant post of Laboratory Technician (BS-09) with retrospective effect from 1996 i.e. his initial date of appointment on Adhoc basis. Therefore it is requested to your kind honour for such approval so that action may b initiated according to your kind instructions.

(Enclosed 01).

Sd/-

District Health Officer

Kashmore @ Kandhkot.

5. In support of his contentions learned counsel for the petitioner has relied upon case of Dr. Iqbal Jan and others v. Province of Sindh and others reported in 2014 P L C (C.S) 1153. Subsequently, on the basis of the case of Dr. Iqbal Jan another Const. Petition No. D- 3290/2014 Re; Dr. Rehan Khan v. Province of Sindh and others was also allowed by this Court and more than 110 adhoc employees in Health Department were regularized in terms of the Sindh Regularization Act.

6. In view of the above clear cut facts and the law promulgated by the Sindh Assembly, it is indeed unfortunate that after about 20 years of service, instead of acknowledging his performance, the petitioner, was forced to approach the Court for regularization of his service in accordance with the already existing law. The failure of the respondents particularly Director General Health to regularize the petitioner from 1997 without any justification was patently malafide or speaks of some corruption in the Health department that is why the petitioner who has served for about 20 years has not been regularized. It is pertinent to mention here that in both the case law relied upon by learned counsel for the petitioner, this Court had directed the same respondent who are respondent in the instant petition, namely, Province of Sindh through Secretary, Health Department to regularize the services of adhoc/contract employees.

7. The respondents were under statutory obligations to regularize the services of the petitioner. It is the duty of government functionaries to ensure equal treatment of law. Article 4 read with Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973 makes it clear that the State is supposed to apply law evenhandedly. In terms of Article 4 of the Constitution, the petitioner was entitled to enjoy protection of Section 3 of the Sindh Regularization Act and to be treated in accordance with it. In the case in hand the respondents have regularized more than hundred Adhoc employees on the orders of this Court by application of the Sindh Regularization Act and therefore, the respondents are guilty of violating Article 25 of the Constitution by not extending equal protection of the provision of Section 3 of the Sindh Regularization Act to the petitioner in the like manner it was extended to the other Adhoc employees in the Health Department, Government of Sindh. In-fact the respondent who were party to the case of Dr. Iqbal Jan and others v. Province of Sindh and others reported in 2014 P L C (C.S) 1153, were also under obligation to have treated the petitioner at par with the petitioners in the two petitions in the light of judgment of Supreme Court in the case of Government of Punjab and others v. Sameena Parveen and others (2009 SCMR-1). The relevant observation is reproduced below:

“It was held by this Court in the case of Hameed Akhtar Niazi ..v..The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185 that if a Tribunal or this Court decides a point of law relating to the terms and conditions of a civil servant who litigated, and there were other civil servants, who may not have taken any legal proceedings, in such a case, the dictates ofjustice and rule of good governance demand that the benefit of the said decision be extended to other civil servants also, who may not be parties to that litigation instead of compelling them to approach the Tribunal or any other legal forum. This view was reiterated by this Court in the case of Tara hand and others v. Karachi Water and Sewerage Board, Karachi and others 2005 SCMR 499 and it was held that according to Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 all citizens are equal before law and entitled to equal protection of law.”(Emphasis provided).

8. In view, of the above quoted passage of Supreme Court judgment the findings of the case of Dr. Iqbal Jan (2014 PLC (C.S) 1153) and the unreported case of Dr. Rehan Khan and 110 others were equally applicable to the case of the petitioner before us.

9. We are of the considered view that since the law is there and there is no dispute about applicability of the law of Sindh Regularization Act in the case of the petitioner who is adhoc employee of respondents, the conduct on the part of respondents after the promulgation of the Sindh Regularization Act was malafide and against the constitutional right of the petitioner. The petitioner should have been regularized from the date of his appointment in accordance with the mandate of Section 3 of the Sindh Regularization Act that an adhoc employee “shall be deemed to have been validly appointed on regular basis”.

10. In view of the above facts and legal position, the petitioner is declared to be regularized in service with effect from 1997. The respondents are, therefore, directed to treat him Regular Employee of the Health Department, Government of Sindh and extend all service benefit which were denied to him on the pretext that his services were not regularized.

11. The petition is allowed in the above terms.

JUDGE

Ansari/*