CH. MUHAMMAD ILYAS, MEMBER - These appeals being identical in terms of facts and law are being disposed of by this single judgment by using the appeal of Mr. Arif Hussain, as the lead appeal.
2. The background of the case is that 12 temporary posts of E.T. Muawans (B-1) were created in Electric Traction Department, Pakistan Railways, Khanewal, in 1983 in order to fill up water in the coaches of Express Trains at Khanewal Station sanction for which continued to be obtained on year to year basis up to 1992 whereafter considering the work of water filling in the coaches of trains as a regular task. These posts were Carrie d against the permanent posts. The staff so engaged were, however, continued to be called TLA Staff (Temporary Labour) and their services were terminated for a day after every three months. There are two types of staff in general in its category; and the TLA Staff usually employed by making provision of their post/period against a work, charged\ against the post created for the work charged and abolished on the completion of the projects and the other Ad-hoc or Substitute staff appointed against permanent posts as a temporary measure. The appellants have continued being in service since their initial appointment as under with a one-day periodical break in their service and charged against permanent posts having features of both the types.
Sr, Name/father r's name Date of first No appointment 1 Muhammad Iqbal Ameer s/o Ameer 05.08.1983 2 Muhammad Ibrahim s/j) Qasim Ali 10.08.1983 3 Ashiq Hussain s/q Kabir Khan 01.09.1983 4 Gul Muhammad s/o Lali Khan 01.09.1983 5 Bashir Ahmed s/o Sajawal 05.05.1984 6 Saghir Hussain s/o M. Murad 05.05.1984 7 Muhammad Luqman si o Maqsood Ali 10.11.1986 8 Tahir Abbas s/o Sharif Hussain 10.06.1990 9 Arif Hussain s/o Bashir Ahmed 30 09.1999 10 Ghulam Abbas s/o Mul azim Hussain 09.10.1909 11 Muhammad Arif s/o Muhammad Manzoor 20.07.2001 12 Muhammad Saleem s/o Muhammad Aziz 05 10.2002 {{ TABLE }}
3. The Railways administration decided vide their policy letter No. 831-E/132-XIV(E-Policy), dated 21.04.1985 as follows: "It has been decided that all the workers who were appointed on ad-hoc basis or as substitutes against permanent posts and have been working for more than one year be absorbed on regular basis.
(2) The services of such staff will be regularized from the dates they were originally appointed to the posts and one day breaks, if any, made after three months' services, will be recouped by grant of leave due.
(3) The formalities of placing requisitions through Employment Exchange, advertisement etc. Are dispensed with.
(4) Their services may be regularized through properly Constituted Selection Committee of the appropriate level".
4. In pursuance of the above policy, the department regularized the services of -hundreds of employees by fixing a cut-OF date extended from time to time, the latest having been set vide department's letter dated 03.05.2005 as up to 30.06.2005. In-between some of the employees who were denied regularization, owing to the expiry of the cut-OF date or for other reasons;, resorted to the judicial forums including Wafaqi Mohtasib, Labour Courts and Superior Courts and the class-IV staff such types as ad- hoc, substitutes and TLA in the category of gangmen, Muawans, Pump Drivers, Khakroobs were accordingly regularized after a verdict in their favour. The appellant have mentioned in the Memo, of appeal some of the instances such as letter dated 04.08.1999, 05.05.2000 whereby in compliance of the#Wafaqi Mohtasib's orders (Annexure "D") services of ad- hoc and substitutes were regularized. Similarly the employees in the Engineering Branch who were working on permanent posts and treated as ad-hoc TLA were regularized by Divisional Superintendent; Lahore in implementation of the decision of the Labour Court No. 8 dated 05.01.2002. So were employees regularized in Engineering Bridge Branch by the Divisional Superintendent, Lahore on 27.05.2003 as were 14 Gangmen who had been working on TLA basis regularized by the Divisional Superintendent, Multan in pursuance of the Lahore High Court, Multan Bench vide order dated 24.09.2004. The appellants have, however, been denied the benefit as they are being treated as TLA and for the reason that the policy of the department pertained to the ad- hoc and substitute employees and excluded those who were work charged.
5. The learned counsel for the applicants argued that first of all the applicants have been working against the posts which were of permanent nature and they were paid From the general revenues after the posts originally created on year to year basis were brought on a permanent footing considering the water filling in coaches of trains as a regular class It was only that their services continued to be terminated for a day after every three months intentionally to deprive them of a claim .For regularization. His, contention- was that they had been incorrectly categorized as TLA. He referred to the regularization of TLA staff in Lahore and Peshawar Divisions and contended' that the appellants despite being placed in similar circumstances were being discriminated against. He further argued that the dictum laid down by the judicial forums including the FST that all employees who had continued in service for more than three years in any capacity such as daily wagers or temporary employees got an inherent right to be regularized. He cited 2002 PLC (CS),67 whereby work-charged employees were confirmed. He also cited 2005 SCM R 100, 2003 PLC (CS)
573 in support of his arguments for the right of the employees, for regularization after long service.
The appellants who have been working for the last 20 years or more could not be thrown out just because they, happened to be originally appointed as TLA. He also referred to the department's letter dated 17.12.1999 which included the regularization of services, of ad-hoc and TLA employees of the Lahore Division.
6. On the other hand, the comments filed on behalf of Respondent No. 5, by Divisional Assistant Electrical Engineer, Khanewal under whose jurisdiction the appellants fell and whose comments were also adopted by other respondents took the plea that: (emphasis added).
"The posts were created on TLA basis in 1983 but the staff so engaged were brought against permanent post in order to avoid getting sanction of the posts after every three months. As the position of staff were not changed through any order so this staff remained called as TLA staff.
Approval for their utilization is still obtained after every three months and a such the staff is correctly being considered as TLA staff and engaged for every three months with one day break in service."
While Contending that the orders of the Headquarter Lahore were not applicable to TLA staff, he simultaneously admitted having taken up the case with the Chief Personnel Officer, P.R. Lahore to convey relaxation in the rules to enable him to regularize the services of the TLA staff. With' regard to regularizations having been done in the Lahore and Peshawar Divisions, he pleaded not being aware of the basis of regularization in the said Divisions.
7. Having heard the arguments of the parties and gone through the record, we have reached the conclusion that there does not appear to be any cogent reason for denying the appellants their right to regularization while hundred of others in similar circumstances have been regularized on the basis of their long service. It appears rather very, unjust on the part of the authorities to be insistent on calling them as TLA while simultaneously admitting that they are working against permanent posts and that it is merely to avoid the sanction of the higher authorities that the illegal procedure of terminating their services for a day after every three months had been adopted. That is exactly what was declared by the Hon'ble Supreme Court a fraud against the helpless daily wages employees of NBP in the case reported as 2005 SCM R 100 Supreme Court found it difficult to counter once:- "the approach of the bank that the temporary godown staff and the daily wages employees should be continued to be governed on disgraceful terms under the provisions of S. 24-A of General Clauses Act, 1897 to act reasonably, fairly and justly - Any employee being jobless and in fear of being shown the door, had no option but to accept and continue with the appointment on whatever conditions it was offered by the bank - Service Tribunal had rightly imposed a condition at three years length of service with not more than fifteen days break between the consecutive appointments and termination of service for regularization of service of the employees - Such conditions were reasonable and were also in line with the policy decisions taken by the bank itself from time to time....."
"No equilibrium of bargaining strength between employer and employee existed - Manner in which the employee had been dealt with by the bank was a fraud on the statute."
The position taken by the respondents in case of appellants ' V the sense of natural justice and fair play as much as it smacks of the unforgivable discrimination that has been perpetuated against - them on frivolous and flimsy grounds which is so evident from the^history of the case.
8. In view of the foregoing, we had no hesitation in accepting the appeals of the appellants which we announced in open Court and we hereby direct that in terms of the respondents' policy dated 21.04.1985 the appellants be immediately regularized by the respondents without fail, within the date extended by them up to 30.06.2005 vide their letter dated 03.05.2005 regardless of the fact that no cut-OF date would apply in this case.