ALI NAWAZ CHOWHAN, J.-- This is an appeal under Section 64 of the Employees' Social Security Ordinance, 1965, against an order dated 17.4.2003 passed by the Social Security Court, Punjab. It has been stated before this Court that since December, 2002, the appellants are making the social security contribution. The dispute only relates to the period from June, 1993 until before December, 2002, during which such contribution were not made.
2. The reason for not making the contributions is inter alia that the services were not extended during this period to the employees of the appellant and that the appellant had to suffer medical expenses with respect to the employees during this period.
3. The question whether the facilities were being provided during this period, is not answered by the parawise comments which were submitted before the Vice Commissioner by the Director Social Security and a reference in this connection may be made to paragraph 6 (Annexure D-1 at page 26), which reads as follows:- "6. It is fact that no medical care has been provided to the workers of complainant's unit because the case of the complainant on his request for entering into an agreement under Section 46 of Ordinance had already been referred to Head Office for approval, a reply of which has not so far been received by this office, in spite of issuance of reminder on the subject, on 30th August, 1993 vide No. SSLE/Cont/(S)/93/2201. It is imperative need to state that the complainant was informed about the latest position of his case by this office vide letter No.SSLE/Cont/(S)/93/2148, dated 24.8.1993."
4. Section 46 of the Ordinance enables the parties to enter into an agreement, whereby the employer provides facilities himself and such provisions are regulated by the agreement. Section 46(5) reads as follows:- "The Institution may enter into an agreement with an employer who maintains a hospital or dispensary or any other medical facility for the benefit of his employees for the utilization of such hospital dispensary or facility for the purposes of the Institution and such agreement may, among other.Things specify the persons to whom medical care shall be provided, the type of benefit to be made available, the minimum level of such benefit, the conditions under which such benefit shall be provided, the extent of supervision which the Institution may exercise over the hospital, dispensary or other medical facility, the submission of reports to the Institution by the employer, and the extent and manner of reimbursement to the employer"
5. This Court has been informed that since the year 1993 the potition for entering into a contract with the Institution was kept pending and the contract was never signed (Annexures M/4 and N).
6. The relevant Notification whereby the provisions of the Social Security Ordinance, 1965, were extended, is dated 15.12.1992
7. The appellant is not shy of admitting his legal liability. But the argument from his side appears to be sound when the appellant invokes the principle of quid pro quo. A reference in this connection may be made to the preamble part of the Ordinance, which reads as follows:- "Whereas it is expedient to introduce a scheme of, social security for providing benefits to certain employees or their dependents in the event of sickness, maternity, employment injury or death, and for matters ancillary thereto."
8. It is absolutely clear that this Ordinance came about for providing benefits/services to the employees and their dependents, referred to in the preamble part of the Ordinance and corresponding to these services, a financial contribution is to be made by the employer. Therefore, both the employer and the institution are to fulfill their obligations in terms of the duties imposed on them under the provisions of the Ordinance. The contribution is, therefore, in the nature of a fee attracting inter alia the principle laid down in the following case-law: (i) Mehboob Yar Khan and another v. Municipal Committee, Mian Channu and 2 others (PLD 1975 Lah. 748); (ii) Sheikh Muhammad Ismail and Co Ltd., Lahore v. The Chief Cotton Inspector. Multan Division Multan and others (PLD 1966 SC 388); (iii) Abdul Majeed and another v. Province of East Pakistan and, others PLD 1960 Dacca 502.
9. As to what happens when an employer provides the envisaged facilities/services to its employees in a case where these facilities/services have not been provided by the Institution? The answer to this is well given in the case of Kohinoor Chemical Co. Ltd. And another v. Sindh Employees' Social Security Institution and another {PLD 1977 S.C. 197 (relevant portion at page 211)}, which reads as follows:- "(1)
The arrears of contributions may not be realised from an employer for the period during which he had made alternative arrangements for affording the necessary benefits to the employees and had made a contribution in that behalf at least equal to the rate prescribed under the Ordinance and the Rules and Regulations framed thereunder. Otherwise, the realization of arrears would mean a double levy on the employer, without any corresponding benefits to his employees. However, the existence of any such adequate alternative arrangements must be established to the satisfaction of the Social Security Institution." .
10. This Court had also the advantage of reading the observations of the Hon'ble Chief Justice of Pakistan in this case and the relevant portion of which is being reproduce below:- "If was stated from the bar by the learned counsel for the Employer, respondent herein, that the workers employed at the Head Office have all along been provided, under an agreement, some of the services which the respondent would have rendered to them had they been registered with it under the West Pakistan Employees' Social Security Ordinance. If that be so then the appellant will have no liability to make additional contribution to the fund of the Social Security Institution. A distinction must be made in this respect .Between a tax and a fee. The contribution which the Employer and the workers are required to pay to the Social Security Institution is in the nature of a fee for rendition of services enumerated in th West Pakistan Employees' Social Security Ordinance and not a tax. There is thus no absolute liability to pay or the part of the Employer as well as the workers."
11 This Court respectfully takes guidance from the observations of the Supreme Court in this case and would direct the Social Security Department to exclude from its claim of arrears the money which was already contributed by the Employer against medical expenses borne for the benefits of its bona fide employees and their dependents, provided the Employer satisfies the Institution through proper record about the expenditures so made. The matter, therefore, for this exercise has to be referred back to the. Institution for purposes of calculations and satisfaction about the expenditures made and for needful action thereafter as per the observations made herein above.
12. After the calculations are made with respect to the general expenditures, the rest of the expenditures shall be paid without any penalty because there has been a bona fide objection.
Besides a stay order was also obtained throughout against the demand. In this connection, reliance is placed on PLD 1991 SC 308 (relevant portion is at page 315).
Appeal Allowed.
2005 C.L.R. 1561 [Lahore] Present: SYED JAMSHED ALI, J. Syed Amjad All Shah Versus Federation of Pakistan through Ministry for Information and Broadcasting, Islamabad & 5 others Writ Petition No. 4722 of 1998, decided on 2nd June, 2004.
(a) Constitution of Pakistan (1973)- -Arts 199, 25-Pakistan Television Corporation Employees Service Rules, Rr 6.2, 6.3---Public appointment---Denial of equal opportunity of-Effect--Petitioner, by way of writ petition in High Court challenging validity of appointment of respondent as Program Producer with PTV on contract basis urged that neither applications from other eligible candidates were invited, nor a public notice was given and the process of selection was not undertaken-Validity Effect of said provisions was that is a vacancy was to be filled in, irrespective of capacity, including contract employment, from amongst employees of PTV, all eligible persons were entitled to be considered---Said rules did. Not permit the making of any appointment including a contract appointment in secrecy without providing opportunity to compete -for the past to other eligible employees of PTV---Denial of equal opportunity in the matter of public employment was, violative of the Constitution---Writ . #TBS For the Petitioner: Faisal Zaman and Aleem Baig Chughtai, Advocates. #TBE #TBS (.Para 9) #TBE #TBS Constitution was not applicable. #TBE #TBS --Arts. 199, 212-Contender of post of-Exercise of, writ jurisdiction-Bar of-Question of---Writ p6tition in High Court-Held: Petitioner was only a candidate for the said post of Program Producer--- Petitioner was not enforcing terms and condition of his service---Alleged bar, of Art. 212 of #TBE #TBS
(b) Constitution of Pakistan (1973)--- #TBE #TBS (Paras 7,8) #TBE For the Respondents Nos. 2 to 5: Naveed Ashiq Alvi, Advocate.
For the Respondent No. 6: Irfan Khalil Qureshi, Advocate. Dates of hearing. 1st and 2nd June, 2004.
SYED JAMSHED ALI, J.--- The petitioner is a contender for the post of Program Producer in pay group No. 5 in the Pakistan Television. Vide order dated 25.9.1999, respondent No. 6; was appointed as Program Producer on contract for. a .Period of two years. His appointment was however, terminated vide order dated 23.11.1996. However, on the application of the said respondent, routed through the Minister for Information and Media Development, he was again appointed to the said post vide order dated 13.9 1997.
2. The petitioner is already serving in the P.T.V. His case is that the post of Program Producer was first advertised on 8-.11.1992 and then on 5.2.1995. The petitioner applied at both the occasions but the process of selection was not finalized and vide order dated 25.9.1996 respondent No. 6 was appointed to the post on contract basis for which neither applications from other eligible candidates were invited, nor a public notice was given and the process of selection was not undertaken. It is contended that the act of the respondents to secretly dole out public employment without following the proper procedure and denying an opportunity to the' petitioner to compete for the said post is pure and simple an act of favoritism and , is clearly against the rule laid down by the Hon'ble Supreme Court in re: Abdul Jabbar Memon and others (1996 SCM R 1349) and Capt.
(Retd.) Muhammad Naseem Hijazi Director Finance and Admn. Gujranwala v. Province of Punjab and 2 others (PLJ 2000 SC 1720). He further submits that vide order dated 23.11.1996 the services of respondent No. 6 were terminated but he was able to muster political support and on the application addressed to the Minister for Information and Media Development he was again appointed on contract for a period of two years. Therefore, the administrative discretion has been abused and an equal opportunity in the public employment has been denied to the petitioner in, violation of the guarantee of Article 25 of the Constitution.
3. The learned counsel for the P.T.V. Contends that since the petitioner is already in service of the P.T.V., this writ petition is barred under Article 212 of the Constitution, because of the ban, regular appointment to the post in-question could not be made, the P.T.V. Is a -commercial organization and while recruiting persons at various levels a number of considerations have to be kept in view.
He produced two charts at the time of hearing which show that a large number of persons are employed by the P.T.V. On daily wages or contract basis. According to him, the procedure for regular appointment was not applicable to contract appointments. He also referred to chapter XV of the Pakistan Television Corporation, Employees Service Rules which provides departmental remedies and contended that this writ petition is not maintainable.
4. Learned'counsel for respondent No. 6 submits that because of the ban there is an acute shortage of Program Producers and since respondent No. 6 was working as Assistant Program Producer Current Affairs since 1989, he was appointed on contract basis. His appointment was, therefore, in the interest of the organization. It is further contended that the petitioner is serving as an Associate Engineer therefore, he is not eligible for the post of Program Producer.
5. The learned counsel fore the petitioner, in rebuttal has controverted the contentions of the learned counsel for the respondents. He submits that the required qualification for the post of Program Producer, according to the public notice, dated 5.2.1995, was a Master's Degree in various subjects and since the petitioner has already acquired a Master's Degree he was, eligible for the said post. He further submits that a department representation was made to the Managing Director by the petitioner on 16.9.1997 which was declined vide order dated 23.10.1997 and it was only thereafter that the petitioner has approached this Court in the present Constitutional petition.
6. The submissions made by the learned counsel for the parties have been considered. Rule 6 1 of the P.T.V.
Service Rules provides for filling in the vacancies in Groups 2 to 6 by promotion and according to rule 6.2 if no suitable candidate is available within the channel of promotion relevant to a particular vacancy, it shall be advertised among all serving employees of the Corporation Rule 4.1 classifies the employees into different categories and it includes a contract employee who is defined in Rule 4.2. Rule 6.3 provides that applications received from the serving employees under Rule 6.2 will be scrutinized and the candidates, who possess required qualification and experience, will be interviewed by the Selection Board which will submit its recommendations to the Managing Director for approval. Rule 6.4 provides that if a suitable candidate is not available, within the channel of promotion a candidate may be appointed from outside and for the purpose the appointing authority may either advertise the vacancies or may adopt any other procedure which is considered by him to be in the best interest of the Corporation.
7. The effect of the aforesaid provisions is that if a vacancy is to be filled in, irrespective of the .Capacity, including contract employment, from amongst the employees of the P.T.V., all eligible persons are entitled to be considered under Rule 6.2 and by the Selection Board as required by Rule 6.3. The aforesaid rules do not permit the making of any appointment including a contract appointment in secrecy without providing opportunity to compete for the post to other eligibleemployees of the P.T.V. Denial of equal opportunity in the matter of public 'employment.
Violates Article 25 of the Constitution and, therefore, cannot be countenanced. The contention of the learned counsel for the petitioner is fully supported by the rule laid down in the case of Abdul Jabbar Memon (supra).
8. The petitioner was only a candidate for the post of Program Producer. He is not enforcing terms and conditions of his service. Therefore, the bar of Article 212 of the Constitution is not applicable.
Reference may be made to Dr Ahmad Selman Waris Assistant Professor Services Hospital. Lahore v.
Dr. Naeem Akhtar and 5 others (PLD 1997 SC 382) which is a complete answer to the above contention. The her contention that since the appointment has not been made on regular basis it was not necessary to adhere to the proper procedure "is also equally untenable. The fact that P.T.V.
Is a commercial organization and, therefore, free to make contract appointments in dis-regard of their own rules and the rule laid down by the Hon'ble Supreme Court only projects "King can do no wrong" theory which cannot be accepted in .a society governed by written Constitution.
9. Accordingly, . This writ petition is allowed. Appointment of respondent No 6 as Program Producer made vide order dated 13 9.1997, is declared as without lawful authority with the result that the post occupied by him will be deemed to, be vacant and- if the respondents are minded to fill in the said vacancy, the procedure prescribed in the Service Rules shall be followed. No order as to costs.