' IMTIAZ ALI, J.--- Tariq Habib and two others through present writ petition and one Zabihullah through connected Writ Petition No,1645 of 2010 have invoked the Constitutional jurisdiction of this Court impugning order dated 2-6-2008 of respondents whereby their contract services have been terminated w.e.f, 30-6-2008. They have sought a declaration to the effect that their services stood regularized by virtue of N.-W.F.P. Civil Servants (Amendment) Act, 2005 (hereinafter the Act of 2005).
2. The background of the case is that petitioners in present writ petition were appointed on 14-4- 2005 and 17-8-2004, while petitioner in connected Writ Petition was appointed on 23-8-2006 on contract basis in BPS-17 in different ADB Schemes of Social Welfare Department as Superintendent, Welfare Home; Principal, School for Deaf and Dumb Children, Dargai Malakand Agency; Rehabilitation Officer, at Drug Addicts Centre, Dir Lower and Superintendent Welfare Home, D.I. Khan respectively. Appointments were for a period of two years and as per terms and conditions, their services were subject to termination on two months notice or two months pay, in lieu thereof. It, was also provided in their appointment orders that such appointment shall not confer on them any right of regular appointment/absorption. After expiry of two years initial period of their contract services against the aforesaid project post were extended for further one year upto 30-6-2008 vide Notification No,SOH(SW) VI-55/2006/13933 dated 23rd August, 2007.
It so happened that Provincial Government decided to convert some of the ADBs Schemes to regular/current budget w.e.f, 1-7-2008 while some of such schemes were deleted/excluded by the Administrative Department from the aforesaid date. This decision of Provincial Government was conveyed to all concerned vide Notification No,DSW/PO/Regulation/06-07/1762-66 dated 7-4-2008 and a direction was issued to the Head of different schemes to "inform all the employees of the above schemes that their services are no more required by this Directorate beyond 30-6-2008"
Consequently, a common notice was issued to petitioners vide No,SOH (SW)II-171/Gen/2006/1407- 18 dated 2-6-2008. The operative part whereof is reproduced below:-- ' Subject:-- NOTICE It is to inform you that the Finance Department Government of N.-W.F. P. , has agreed to the conversion of the following ADP Schemes to the regular/Revenue Budget with effect from 1-7- 2008:---
(i) Welfare Home for Child Beggars, Peshawar.
(ii) Welfare Home Bannu/D.I. Khan.
(iii) School for Deaf Children Dargai, Malakand
(iv) Rehabilitation Centre for Drug Addicts, Dir (Lower)
(2) The regular posts will, therefore, be filled in accordance with Method of recruitment prescribed in the rules.
(3) In view of the above, your contract services will stand terminated on 30-6-2008 (Afternoon) as per terms and conditions of contract agreement executed by you with the Government.
3. Petitioners have impugned the aforesaid notice dated 2-6-2008. Their contention is that section- 2 of the Act of 2005 whereby section 19 of N.-W.F.P. Act No,XVIII of 1973 has been substituted, lays down that all persons appointed after 1st day of July, 2001 till the commencement of the said act i.e, 23rd July, 2005, but on contract basis, shall be deemed to have been appointed on regular basis. Petitioners having been appointed during the aforesaid period shall also be held to have been regularly appointed and consequently the impugned Notice/order be declared as mala fide in law and fraud upon the legal right of petitioners.
4. Before examining the contention of petitioners, the background in which the aforesaid Amendment Act of 2005 was brought and the scope and effect of such amendment has to be appreciated.
5. While approving the budget for the year 2001-2002, Provincial cabinet with an object of getting rid of expenditure on account of payment of pension to civil servants, decided that in future all sanctioned post shall be filled through contractual appointments. In consequence thereof, Government of N.-W.F.P. Finance Department framed contract policy 2002 vide No,FD(SOSR-II)12- 1/2002 dated October 26, 2002. According to this policy appointments to all initial recruitment posts, in all Government Departments, except the uniformed personnel in the Police and Prisons Departments and Judiciary, etc., were to be made on contract basis. Contract employees so appointed would not contribute to G.P. Funds and not entitled to pension /gratuity benefit. This policy was acted upon for considerable period; despite widespread resentment against the same.
Not only there was criticism directed against such contract policy but such policy had also created anomaly in that although these contract appointments were made against sanctioned civil posts, but the appointees stood excluded from definition of 'civil servant' as per section 2(b) of N.-W.F.P.
Civil Servants Act, 1973 which clearly laid down that a person employed on contract shall stand excluded from the definition of 'Civil Servants'.
6. To remove such anomaly the aforesaid contract policy was reviewed and as a result thereof section-19 of N.-W.F.P. Civil Servant Act, 1973 was substituted through N.-W.F.P. Civil Servants (Amendment) Act, 2005 which was notified/published in the Gazette of N.-W.F.P., Extraordinary, on 23rd July, 2005 and took effect therefrom. Section 19 substituted through aforesaid Amendment Act IX of 2005, relevant portion whereof, is to the following effect:--- "19. Pension and gratuity.-- (1) ..................................................
(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 a 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."
7. The perusal of aforesaid provision would show that to claim benefit of the same an employees had to fulfil following conditions:---
(a) He was selected for appointment in the prescribed manner.
(b) He was appointed to service or post (post having been defined in relevant service rules as a post sanctioned in connection with the affairs of province).
(c) The appointment should have been made between first day of July, 2001 (the date of introduction of contract policy) and 23rd July, 2005 (the date when N.-W.F.P. Civil Servants (Amendment) Act, 2005 came into force).
8. The aforesaid resume of facts fully establishes that object of amendment was to regularize services of employees who had been appointed in consequence to the aforesaid contract policy.
This conclusion also draws support from a Notification No,6(E&AD)1-13 13/2005 dated 10th August 2005 which explains that this amendment was applicable only to those employees who had been appointed on contract n basis against regular sanctioned posts and not meant for regularization of contract employees working against project posts. Operative part of aforesaid Notification is reproduced below:--- {{URDU TEXT}}
9. Now when in the above background the case of petitioners is examined they do not qualify for the benefit of amendment in Civil Servant Act brought about by the Act of 2005. Petitioners were admittedly appointed in the year 2004 against project posts and were serving as such when the Act of 2005 came into force. They neither considered themselves beneficiary of such amendment at the relevant time nor claimed the same. So much so that on 23rd August, 2007 they accepted extension in their contract services for a further period of one year upto 30-6-2008. Even when they were issued impugned notice dated 2-6-2008 whereby their services stood terminated w.e.f, 30-6- 2008 they did not agitate the matter before any forum. As a matter of fact the development which prompted the petitioners to approach this Court through present writ petition filed on 29-9-2009 were two judgments of this Court whereby a number of contract employees were regularized by virtue of substituted section 19 of N.-W.F.P. Civil Servants Act, 1973. These judgments are in Writ Petition No,1731 of 2006 titled Shagufta Syed v. Government of N.-W.F.P. Decided on 11-9-2007 and Writ Petition No,1510 of 2007 titled Dr. Rizwanullah and others v. Government of N.-W.F.P. Decided on 18-11-2008. In support of these petitions, learned counsel for petitioners has heavily relied upon aforesaid judgments by stating that their case is identical to the petitioners in aforesaid writ petition and therefore, they are to be treated alike.
10. There is no doubt, that through aforesaid judgments this court has held a large number of employees/petitioners to be entitled to the regularization of their services under the provision of section 2 of N.-W.F.P. Civil Servants (Amendment) Act X of 2005 and Provincial Government was directed to extend the benefit of said Act to all those petitioners. On close scrutiny, however, the case of present petitioners is quite distinguishable from the case of petitioners before this court in aforesaid cases. In Writ Petition No,1731 of 2006 decided on 11-9-2007 although petitioners were initially appointed as project employees but later such posts were converted from development budget to regular/ permanent budget and petitioners continued to serve against such regular post as contract employees when the Act of 2005 regularizing services of contract employees came into force on 23rd July, 2005. Meaning thereby that they stood appointed as contract employees against sanctioned posts, within the target period, mentioned in the Amendment Act of 2005. This distinction is clearly spelt out from the following para of the judgment dated 11-9-2007 in Writ Petition No,1731 of 2006:--- Another aspect of equal importance is that after successful accomplishment of the objectives relating to the Projects/Schemes, by the petitioners, the Provincial Government firmly decided to continue with the Projects/Schemes and not only converted the same from developmental budget to regular /permanent budget but also retained the petitioners on their respective posts for further five years and three years respectively. True that extension of the tenure of service of the petitioners from time to time were on yearly basis after the projects/schemes were converted to permanent budget schemes/projects, however, it was legal obligation of the Departmental Appointing Authority to have obtained the approval of the Public Service Commission (N.-W.F.P.) as is required under the relevant rules but this omission was not for once rather was repeated three or five times when it ultimately came out of a deep slumber/hibernation on 26-5-2006 when the services of the petitioners were held automatically terminated on 30-6-2006 by issuing notices to the petitioners on the pretext that these posts would be filled up on the arrival of the recommendees of the N.-W.F.P. Public Service Commission. The mala fide of the Authority is evident from the fact that the Amendment Act regularizing the services of the contract employees came into force on 23rd July, 2005 and three days thereafter, the impugned notices were issued to the petitioners albeit the conversion of their posts from Project Employees to contract employees putting the same on the pay rolls of the Provincial Government on permanent basis had taken place before coming into force of the Amendment Act IX, 2005.
' The above position is further crystallized from following observations in the same judgment:- "the incisive and decisive factors in the present case is that although the petitioners were initially appointed as Project Employees but those projects/schemes were duly converted to regular /permanent/currency budget schemes and the services of the petitioners after conversion could not be termed those of project employees because permanency was accorded to the schemes/projects by the Provincial Government and the employees attached therewith could not be held to be project employees any more".
' Above judgment is, therefore, not applicable to the case of petitioners.
11. So far as judgment dated 18-11-2008 in Writ Petition No,1510 of 2007 Dr. Rizwanullah v. Government of N.-W.F.P. Is concerned such judgment was delivered in quite different circumstances and is not even remotely attracted to the case of petitioners. In that case petitioners were appointed as Medical Officers on contract basis way back in 1995-1999 and their contract period was renewed/extended from time, lastly on 31-8-2007 their contract was extended w.e.f, 2-1-2007 to 31- 8-2007 vide Notification dated August 16, 2007, however, in the same notification, it was provided that "on expiry of their contract, services of the above Medical Officers shall stand terminated".
Petitioners in that case questioned the aforesaid notification by claiming the benefit of amended section-19 subsection (2) of N.-W.F.P. Civil Servants Act, 1973. The only issue in such writ petition as well as aforementioned Writ Petition No,1731 of 2006 was as to whether petitioners therein were appointed in prescribed manner or not, because the stance of the Government was that after amendment brought about in Rule-4 of N.-W.F.P. Public Service Commission (Function) Rules, 1983 vide Notification SOR-I (E&AD)I99/73 dated 2-11-2002 such appointments were to be made through Public Service Commission while petitioners therein were selected/ appointed by the Departmental Head/Selection Committee and not by the Provincial Public Service Commission. The writ petition was allowed by repelling the arguments advanced by learned Additional Advocate-General who appeared on behalf of Provincial Government. Since unlike petitioners before us they had been appointed on contract basis against regular/sanctioned post and not against project post, therefore, this judgment is also of no help to the petitioners.
12. As a last resort, learned counsel for petitioner produced another judgment of this Court in Writ Petition No,361 of 2010 titled Miss Balqees v. Province of N.-W.F.P., decided on 29-11-2010 and asserted that the case of said Miss. Balqees was not only identical to the case of present petitioners but as a matter of fact she was co-employees in the same department with the petitioners and her services were also terminated through an identical order; her writ petition has been allowed and she has been ordered to be re-instated in service.
13. It is true that case of petitioners is identical to the case of Miss Balqees who has been granted relief by this Court in Writ Petition No,361 of 2010 but perusal of such judgment reveals that the same has been allowed by holding that her case was identical to the case of petitioners in Writ Petition No,1731 of 2006 titled Shagufta Syed v. Government of N.-W.F.P. Decided on 11-7-2007. It appears that writ petition of Miss Bilques was allowed in motion, without notice to the Government by holding that her case was identical to the case of petitioners in previously decided cases but distinction between the case of petitioner therein with the earlier decided cases was not drawn as has been done by us. Additionally, the very issue as to whether an employee on contract basis against a project post was entitled to the benefit of Act of 2005 was neither urged nor discussed and decided in the aforesaid judgment. We, therefore, with respect could not subscribe to the view taken by the said Hon'ble Bench who in our view were not properly assisted in the case. Before closing this judgment we may also point out that Zabihullah, petitioner in connected Writ Petition No,1645 of 2010 is even otherwise not entitled to any relief under the Act of 2005 because his very initial recruitment was made on 23rd August, 2006 i.e, much after coming into force of Act of 2005.
14. For what has been stated above, this writ petition as well as connected Writ Petition No,1645 of 2010 are devoid of merits and are hereby dismissed.