' TARIQ PARVEZ, J.---Because of community of facts and same law points involved therein, we intend to dispose of Civil Appeals Nos.150-P, 151-P of 2009 and Civil Petition No, 654-P of 2009, through this single judgment.
2. Civil Appeal No, 150-P of 2009.---The respondents had filed Constitutional Petition bearing Writ Petition No,475 of 2006 before the Peshawar High Court, Peshawar with the averments that pursuant to an advertisement, published in Daily Mashriq, Peshawar, dated 15-3-2002, issued by the Director, Human Resource Development, Department of Forest, Government of N.-W.F.P., various posts of Assistant Directors (BPS-17) in Community Development, Extension and Gender and Development Directorate, Research & Development Directorate and Human Resource Development Department of the Forest Department; they applied for the said posts and after undergoing the due process of recruitment/appointment, they were appointed on contract basis on the approval of Departmental Selection Committee vide notification dated 20-11-2002; they further averred that they accordingly assumed the charge of their respective assignments on contract basis, where they continued to hold such offices by virtue of extension orders in terms of their contract; it was further submitted that while in service, on 5-7-2005, the N.-W.F.P. Civil Servant (Amendment) Act, 2005 (Act-IX of 2005) [hereinafter referred to as Act-IX of 2005] was passed by the Provincial Assembly of N.-W.F.P., which was assented to by the Governor of N.-W.F.P. On 12-7- 2005 and thereafter section 19 of the N.-W.F.P. Act No, XVIII of 1973 [hereinafter referred to as Act VIII of 1973] stood amended through Act-IX of 2005, as such their services were to be regularized by operation of law.
' The writ petition was filed for the reason that after the amendment, mentioned above, through an advertisement published in Daily Mashriq, Peshawar on 21-8-2005, the posts, which were already held/occupied by the respondents, were advertised, to be filled in through Provincial Public Service Commission.
3. Civil Appeal No, 151-P of 2009.---Mrs. Shagufta-respondent had filed Writ Petition No,1731 of 2006 before the Peshawar High Court, Peshawar, contending therein that she was appointed as Project Manager on contract basis in ADP scheme (Skill Optimization for Self Employed Women in N.- W.F.P.), vide appointment order dated 20-4-2000, by the Secretary, Zakat, Ushr, Social Welfare and Women Development Department, N.-W.F.P., Peshawar for a period of more than two years i,e, from 21-4-2000 to 30-6-2002; that thereafter from time to time, her contract was extended, which continued until she received a notice dated 26-5-2006, stating therein that her services would be terminated w,e,f, 30-6-2006 due to conversion of Skill Optimization Program from ADP to Revenue side; she was finally served with a notice of termination on 23-6-2006; it was, however, asserted that in view of Act-IX of 2005, the Government of N.-W.F.P. Was bound to regularize her services whereas to the contrary her services have been terminated.
4. Civil Petition No, 654-P of 2009.---The respondent-Sajjad Ahmed was petitioner in Writ Petition No, 2131 of 2008, who was appointed in BPS-17 on 20-11-2002 in Directorate of Human Resources Development N.-W.F.P. On the recommendation of the Departmental Selection Committee with the approval of the competent authority, after the selection process made in prescribed manner, on contract basis; that from 20-11-2002, the contract appointment of the respondent was to be regularized but his contract was extended on yearly basis till 15-12-2008; he too has pressed into service the provisions of N.-W.F.P. Civil Servant Act, 1973, duly amended by Act-IX of 2005 and claim that his services be regularized.
5. Writ Petition of the respondents in Civil Appeal No,150-P of 2009 was allowed on 11-9-2007, whereby the departmental authorities were directed to regularize their services from the date fixed by the Act-IX of 2005; however, they were held not entitled for adding their period of service on contract/temporary basis to their service credit, while being regularized.
' Likewise, while allowing the Writ Petition of the respondent in Civil Appeal No,151-P of 2009, the learned Division Bench of the Peshawar High Court extended the respondent the similar relief as was given in the earlier decision.
' Similarly, the respondent in Civil Petition No,654-P of 2009, who also approached the Peshawar High Court, was given the relief by the learned Division Bench of the Peshawar High Court, by placing reliance on the decision in Writ Petition No,475 of 2006.
6. The Provincial Government of the Province of KPK, being not satisfied from the decisions rendered by the Division Benches of the Peshawar High Court has filed instant appeals and petition.
7. Learned Additional Advocate-General KPK, appearing for the appellant/petitioner, argued that the respondents were employees on contract basis, that too on project works, which projects were being funded/financed by the ADP and when the foreign aid was stopped while the work on the projects was still on, therefore, the Provincial Government was constraint to convert the programs/projects of ADP to Revenue side i,e, to bring it in the regular budget of the Province.
' It was argued that all posts of BPS-11 are to be filled in through the process of qualifying the exams/interview of the Provincial Public Service Commission and because the respondents were not appointed in prescribed manner, which is prerequisite for appointment to civil services, they cannot claim the benefit of the Act-IX of 2005 and they have to undergo the examination to be held by the Provincial Public Service Commission.
' It was further argued that no doubt, the respondents were retained in service for so many years but that was through the extension in their service in terms of their contract and they never attained the status of regular civil servants.
8. In rebuttal to the arguments of the learned Additional Advocate-General KPK for the appellants/petitioner, learned counsel appearing for the respondents stated that the appellant has not come to this Court with clean hands because as many as 170 employees of different departments, working on contract basis, were the affectees but services of all others have been regularized except few respondents.
' They argued that it is a case of discrimination where a law passed by the Provincial Assembly is not being equally enforced against similarly placed persons.
' They added that initially, appointments of the respondents were made inline with Notification NO. SORT (S&GAD) 4-7/86, dated Peshawar, the 9th April, 1988, which prescribes the policy for appointment of a person on contract basis. Reference has also been made to clause (d) of the policy letter, appearing at page 41 of the Paper Book of Civil Appeal No, 150-P of 2009, which, inter alia, contains that "the appointment shall be made on the recommendations of a board-based Departmental Selection Committee which shall include a representative each from Services and General Administration Department and Finance Department not below the rank of an Additional Secretary".
' They further stated that all the appointment letters issued in favour of the respondents specifically contain that appointments have been made on the basis of recommendation made by the Departmental Selection Committee.
' It was further argued that no doubt all the posts, above BPS-11, are to be filled in through the Provincial Public Service Commission of KPK but this is not the only rule as there is exception to it because the Government of KPK has still powers to appoint any person to any post, which otherwise fall within the scope of Provincial Public Service Commission, but on contract basis.
9. We have heard the learned counsel for the parties at considerable length and have also gone through the relevant provisions of the law on the subject.
10. We are informed that although so many other employees have been regularized but their regularization has not been challenged by the Provincial Government except through the present appeals and petition, to which the learned Additional Advocate General, appearing on behalf of the appellant/petitioner, had no answer.
11. We have gone through the very detailed judgment, delivered by the learned Division Bench of the Peshawar High Court in Writ Petition No, 1731 of 2006 dated 11-9-2007, and find that all the legal objections have been properly dealt with and have been properly attended to/replied/answered by the learned Division Bench, while holding that case of the respondents squarely falls within the ambit of section 19(2) of the N.-W.F.P. Civil Servant Act, 1973, as amended by Act-IX of 2005. The said amendment is reproduced hereinbelow for easy reference:-- "(2) A person though selected for appointment in the prescribed manner to a service or post on or after the 1st day of July, 2001, till the commencement of the said Act, but appointed on contract basis, shall with effect from the commencement of the said Act, be deemed to have been appointed on regular basis. All such persons and the persons appointed on regular basis to a service or post in the prescribed manner after the commencement of the said Act shall, for all intents and purposes be civil servant, except for the purpose of pension or gratuity. Such civil servant shall in lieu of pension and gratuity be entitled to receive such amount contributed by him towards the Contributory Provident Fund along with the contributions made by Government to his account in the said Fund in the prescribed manner: ' Provided that in the event of death of such a civil servant, whether before or after retirement, his family shall be entitled to receive the said amount if it has already not been received by such deceased civil servant."
12. Very recently, a Bench of this Court, 'while deciding Civil Appeals Nos.834 to 837 of 2010 vide judgment dated 1-3-2011, has held that the cases of contractual employees, though appointed on project works, are squarely covered by the provisions of section 19(2) of the N.-W.F.P. Civil Servants At 1973.
' In view of above, we find no merit in these appeals and also in the petition, which are dismissed.Ln the circumstances of the case, no order as to costs.