Through this single judgment I propose to dispose of writ petitions No. 13073/2010, WP.No. 12499/2010, WP.No.12545/2010, W.P.No. 12500/2010, W.P.No. 12460/2010,W.P.No. 12496/2010, W.P.No. 12498/2010, W.P.No. 12494/2010, W.P.No. 12192/2010, W.P.No. 12493/2010, W.P.No. 12497/2010;W.P.No. 12495/2010, W.P.No. 13334/2010 and W.P. No. 12463/2010 as common question of law and fact is involved in all the above writ petitions.
2. The petitioners are daily wages employee of Clause-IV in Ch. Pervaiz Elahi Institute of Cardiology, (CPEIC) Multan, the Respondent No. 2. They are performing their duties for more than 2 years and the respondents are extending their contract of service from time to time after every 89 days and lastly vide order dated 06.11.2010 they were directed to work in CPEIC at contingent basis. There is no complaint against them and they are performing their duties according to the entire satisfaction of their employer. On 09.4.2009 Respondent No. 2 advertised different posts for recruitment for class- IV in the hospital and the petitioners were directed to apply fresh for their respective posts. The respondents appointed on all other posts under a political pressure without fulfilling the legal requirement but on hue and cry of petitioners they refrain from appointing the persons of their choice on the petitioners posts. The petitioners claims that they are entitled for regularization of their service as they are working on their respective posts from the last two years without any break and prayed that respondents be directed to confirm the petitioners on their respective posts.
3. Notices were issued to respondents. The respondents submitted their report and parawise comments, in their parawise comments Respondent No. 2 in reply to para No. 2 of petition submitted as under:-- "Para No. 2 is not correct.
The orders for regularization of service were issued to those who were already working on contract basis according to the Govt. of the Punjab Policy. As the petitioner is working on daily wages so he is not entitled for regularization of his service as per Govt. of the Punjab policy."
4. With the consent of learned counsel for the parties these petitions are decided as "Pacca Case" as both the parties have submitted their documents.
5. Learned counsel for the petitioners submits that appointment of petitioners like other employees was made against permanent post, as is evident from the fact that respondents have advertised the said posts through the impugned advertisement. He -submits that respondents have wrongly and illegally in violation of fundamental rights of petitioners chalked out a policy for employment of petitioners on daily wages on a fix salary, with short breaks in service after every 89 days they are issuing fresh letters of appointment. He referred Letter No. 23244/Admin/CPEIC, Multan issued by Medical Superintendent Ch. Pervaiz Elahi Institute of Cardiology Multan dated 22.11.2010 which is a proposal and in Para No. 15' of the said proposal it is mentioned as under:-- "It is important to mention that the services of these personals who are working on daily wages are the dire need of this sensitive cardiac Institute."
Submits that petitioners are entitled to be regularized. He has relied on Ikram Bari and others V.
National Bank of Pakistan through president and others (2005 PLC (C.S) 915), and Pakistan Telecommunication Company Limited through General Manager and other V. Muhammad Zahid and 29 others. (2010 S.C.M.R 253).
6. Learned A.A.G opposed the petitions and submits that the respondents have every right to employ the persons of their own choice. The daily wager are temporary staff and at the time of offering employment to them it was made clear that their services will be on daily wages. The petitioners were never inducted in service of Govt. of Punjab and they were agreed to be paid as fixed salary which includes all allowances etc. Further submits that petitioners were not hired against permanent posts. The petitioners were hired, from time to time for specified period and each time the appointment was essentially on a temporary basis and there is no continuity in the petitioner's service. He adds that mere fact that temporary/daily wages appointees continue for several years, does not mean that those would automatically be considered to be permanent or they have acquired any right to become a permanent employee. Reliance is placed on Federation of Pakistan and another V. Hashim Shah Qureshi (1987 SCMR 156), Government of Pakistan through Establishment Division, Islamabad and 7 others (PLD 2003 S.0 110) and Managing Director, SUI Southern Gas Company Ltd., Karachi V. Ghulam Abbas and others (PLD 2003 SC 724).
7. Heard. Record perused.
8. The precise proposition of law as canvassed by learned counsel for the petitioner is that petitioners were employed on daily wages and are not regularized despite having rendered services of more than 2 years as contract employee renewed from time to time. The petitioners are performing their duties like other permanent employees in the same grade. The respondents have regularized the service of number of contract employee but the petitioners have been denied of their legitimate right of permanent employment, as such the action of respondents is violative against their guaranteed rights Under Article 2.A, 4 & 25 of the Constitution of Islamic Republic of Pakistan. The respondents while filing the report and parawise comments have raised the objection that the petitioners are working on daily wages, hence their services could not be regularized. It is an admitted fact that petitioners are performing their duties on daily wages.
Respondent No. 2 vide letter No. 23244 dated 22.11.2010 requested the Secretary, Govt. of the Punjab, Health Department, Lahore for regularization of the contingent paid staff/daily wages. According to said letter 176 posts are for Grade 15, 84 posts are for Grade 6-16, 62 posts are for Grade 17 & 18 and as such total 322 posts are available. In this proposal it has been mentioned as under:- "13. As no recruitment has been made since June 2009, therefore, 149 posts of BPS 1 to 4 could not recruited. Moreover, Govt. of the Punjab has already imposed ban on the recruitment of Naib Qasid and Malis, though these were essentially required for the smooth functioning of the Hospital.
14.Due to all these constrains 180+57=237 personals of BPS 1 to 16 have been engaged as daily wages worker for proper and smooth functioning of the new established departments. Out of total 237 personals of 1-16, .180 personals of BPS 1-4 are hired on daily wages.
15.It is important to mention that the services of these personals who are working on daily wages are the dire need of this sensitive cardiac Institute.
16.This Cardiac Institute needs the services of these personals who have now become proficient and experienced in their respective fields for the smooth functioning of the hospital and in the larger interest of the critically ill cardiac patients whose number is progressively increasing.
17.It is, therefore, requested that the 180 posts of grade 1-4 of these persons may kindly be sanctioned and their services may kindly be got regularized from the competent authority.
18.It is further added that 57 employees working on daily wages are of grade 6 to 16. The fate of these employees working on daily wages may be decided by the Department. Sd/ Medical Superintendent, Ch. Pervaiz Elahi Institute of Cardiology, Multan.
The said proposal is pending disposal with Secretary Health. The argument of learned counsel for the petitioner is that respondents are not regularizing the petitioners inspite of the fact that their services are the dire need of hospital which is a hospital of special nature providing medical facility to the Cardiac patients in Multan. Reasons for non-regularization of petitioners as argued by learned counsel for the petitioners is that respondents are trying to accommodate the member of parliament who have no authority or right to recruit any person being the legislature. Their job is of legislation only and no more. He has pointed out a letter available at page 69 of the, petition, written by Executive District Officer (F & P), Multan to all the MPAs in Multan District, all the E.D.Os, the District Officer (Colleges), Multan, The Medical Superintendent, Nishtar Hospital, Multan, the Medical Superintendent, Cardiology Center, Multan, the Town Municipal Officer, TMA, Shujabad and the Town Municipal Officer, TMA, Jalalpur Pirwala. The subject of this letter is consultative meeting regarding recruitment against vacant posts. This letter shows that the allegation of learned counsel for the petitioner has some force. It is a question of recruitment of staff in a hospital which is the dire need of hospital but the respondents/officials i.e EDO is consulting the recruitment of the employees with all MPAs in Multan District, what is the need for consulting with the MPAs who are not expert in the subject and have no authority to appoint any person on Govt. job. Letter dated 22.11.2010 is pending disposal with Secretary Government, Health Department, Lahore and no action has been taken so far. Learned counsel has stressed that in case political pressure was allowed to be prevailed upon the entire system for recruitment will be destroyed. There is no denial of the fact that petitioners are daily wages employee of respondents, there is no complaint against them. The respondents are renewing their daily wages contract after every 89 days. They are working for the last more than two years.
9. The matter of temporary employees of National Bank of Pakistan came before Hon'ble Supreme Court of Pakistan and the Hon'ble Supreme Court of Pakistan held as under:-- 'An Islamic Welfare State is under an obligation to establish a society which is free from exploitation wherein social and economic justice is guaranteed to its citizens. The temporary Godown staff and the daily wages employees were continued in service of the Bank on payment of meager emoluments fixed by the Bank. In most of the cases of these employees, there were artificial breaks in their service so as to circumvent the provisions of the Labour Laws and the Rules of the Bank and to deny them the salaries and other service benefits of regular employees.
In some cases, the Bank did not issue formal letters of appointment or termination to the employees so as to preclude them to have aces to justice. There was no equilibrium of bargaining strength between the employer and the employees. The manner in which they had been dealt with by the Bank was a fraud on the statute. A policy of pick and choose was adopted by the Bank in the matter of absorption regularization of the employees. By Article 2-A of the Constitution which has been made its substantive part, it is unequivocally enjoined that in the State of Pakistan principle of equality, social and economic justice as enunciated by Islam shall be fully observed which shall be guaranteed as fundamental right. The principle of policy contained in Article 38 of the Constitution also provide, inter alia, that the State shall secure the well-being of the people by raising their standards of living and by ensuring equitable adjustment of rights between employers 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 earning of individuals. Similarly, Article 3 of the Constitution makes it obligatory upon the State to ensure the dimination of all forms of exploitation and the gradual fulfillment of the fundamental principle, from each according to his ability, to each according to his work.
This is the judgment of Hon'ble Supreme Court of Pakistan which is complete answer of the argument of learned Assistant Advocate General. The Respondent No. 1 is duty bound to treat the petitioner equally and without any reservation. The recruitment is not the job of legislator nor the legislator has any expertise which may be fruitful for the well-being of the institution.
10. A dispute contract of service of civil servant came before the Shariat Appellate Bench of the Hon'ble Supreme Court of Pakistan and' it was argued that contract of service of civil servant with the Govt. is contract which has been entered into between the parties knowingly and with free consent and it was held as under:-- "It was argued that the impugned provisions of law amounts to a contract between the Government and the civil servant and this involves his consent. Infact it is not the nature of free consent between free agents. On the one hand state power is projected in the form of the statute and on the other, the civil servant has no choice of a bargain on these provisions when joining the service. He cannot get it changed."
Hence, the argument of learned AAG that petitioners have accepted the contract of service is not tenable. The petitioners are poor citizens of Pakistan and the time of accepting the contract they were not in a position to negotiate the terms of service with the respondent.
11.It is an admitted fact on record that 176 posts of Grade 1-4 are available which are the dire need of the hospital which is providing a very sensitive medical facilities of heart patients. The petitioners are working with Respondent No. 2 on daily wages, the respondents are extending their contract after every 89 days. This type of policy has been held by the Hon'ble Supreme Court of Pakistan as fraud to statute.
12.The dispute of temporary employee and daily wages employee was came to consideration before Hon'ble Supreme Court of Pakistan in case Pakistan Telecommunication Company Limited through General Manager and other V. Muhammad Zahid and 29 others (2010 SCMR 253) and the Hon'ble Supreme Court of Pakistan has held as under:-- "Undisputedly, the crux of the case of the private respondents has been that they are being discriminated as against the other Operators performing service permanently with the PTCL or having been regularized in due course as Operators in the International Gateway Exchange performing similar functions in the Exchange apparently amounts to have been grossly violated as against the guaranteed rights under Articles 2-A, 4 and 25 of the Constitution by depriving them of their emoluments besides all other service benefits etc., described in Paragraph No. 2 of the writ petition being paid to other Operators performing service in the said Exchange and similarly placed and, therefore, discriminatory treatment has been meted out to the writ petitioners employed on daily wages and not regularized despite having rendered service for a period of more than 2 years as contract employees renewed from time to time mentioned in Para No. 16 (Supra)."
13.In the circumstances of the case in hand it is proved beyond any shadow of doubt that petitioners are being discriminated, the respondents are trying to recruit fresh employees in place of petitioners with the consultation of legislators against the law and fundamental rights of petitioners. The petitioners are performing their duties as per satisfaction of their employer, hence they have acquired the right to be confirmed on their posts.
14. The upshot of the above discussion is that respondents are directed to regularize the petitioners in service with effect from their initial appointment. The respondents are directed to issue appointment letters to petitioners within one month from today. However they will not be entitled for payment of difference of any arrears in their salary for the date of their initial appointment till the issuance of letter of appointment under the agreement. All the petitions are allowed with no order as to costs.