' RAUF AHMAD SHEIKH, J.--- The petitioner has prayed that inaction on part of respondents to consider the service rendered by him w,e,f, 17-2-1979 to 8-5-1987 towards his pay and pension be declared as illegal and they be directed to consider the same for the above mentioned purposes. It was stated that the petitioner was appointed as Casual Labourer under the respondents on 17-2- 1979 and throughout his service worked as Oil Engine Driver and his service was up to the mark and satisfaction of his superiors. He was given appointment letter on 27-4-1987 but his previous service was not counted towards pay and pension so he made repeated requests from time to time but the respondents did not accept his genuine demand without giving any response and passing any order. It was contended that Sher Zaman and Musaddaq Khalid, whose services were also regularized like the services of the petitioner, were given the benefit of addition of the service rendered prior to regularization towards pay and pension but in his case the said benefit has been withheld and as such he has not been treated equally with the said employees so his fundamental right as guaranteed under Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 has been infringed. With these averments an order as stated above has been prayed for.
2. The respondents contended that the petition was not maintainable in its present form; that the same was bad for non-joinder of necessary parties; that the same is not maintainable under Article 199(3) of the Constitution of Islamic Republic of Pakistan, 1973; that petitioner was appointed as casual labourer (RTE) in 1987 so his salary and pension would be determined from the date of joining the service; that his previous appointment w,e,f, 17-2-1979 was purely of casual nature so the same cannot be counted towards pension and pay as the same is not verified from the Audit and pay bills; that the petitioner was informed through letter dated 20-7-2009 that his request cannot be acceded to and other points mentioned by him were also repelled; that the case of the persons mentioned in the petition was different from that of the petitioner, who was casual labourer appointed on a project and that under the rules, he could have not been given the benefit prayed for.
3. The learned counsel for the petitioner has reiterated the above contentions and vehemently contended that the petition had continuous service to his credit w,e,f, 17-2-1979; that there was no break in his service and he has performed the duties satisfactorily throughout his career; that no doubt the seniority cannot be given to him w,e,f, 17-2-1979 but he is entitled to pay and pension benefit for the period prior to his regularization as was given to other employees, who also started career as casual labourers but their services were subsequently regularized. In support of the contentions raised reliance is placed on 2005 SCM R 100 and 2002 SCM R 574.
4. In the comments the respondents have contended that the petition is barred under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973; that the petition is not in proper form and the Federal Government could have been impleaded only through Secretary to the Government of Pakistan Ministry of Defence; that the petitioner cannot take benefit of the services rendered as casual labourer on a project; that Sher Zaman etc. We're working against Permanent posts so after regularization they were given the benefit of the previous service and that the petitioner was a daily wager prior to regularization of his service so can claim benefit for the said period.
5. At the outset the learned Standing Counsel has conceded that the service of the petitioner is governed by the Civil Servants Act as was clearly mentioned in his appointment letter Annexure "H" but contended that he had performed his duties as casual labourer before regularization of his service so he cannot take benefit of the service rendered as C.L. The appointment letter does show that his service would be governed by the Civil Servants Act, 1973 and rules made there-under so the petition is not barred under Article 199(3) of the Constitution of Islamic Republic of Pakistan, 1973. It is an admitted fact that he has been performing duties regularly w,e,f, 17-2-1979. This fact is fortified from the employment certificate Annexure "E" and certificate Annexure "D". It is not denied that he has been regularly and continuously working w,e,f, 17-2-1979. Sher Zaman son of Gul Zaman, who was also working as casual labourer (RTE) was regularized w,e,f, March, 1987 and, admittedly he has been given benefit of his previous service rendered prior to regularization. If the Government Servant without break continuously remains in service then after regularization he has the right that the same be counted towards pay, pension and promotion but not for seniority. In this respect reliance is placed on 2002 SCM R 574. The learned Standing Counsel has vehemently contended that under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 the writ petition is not maintainable and the petitioner should seek remedy before the Federal Service Tribunal. It is proved on record that the petitioner was not treated equally with Sher Zaman, who was placed under similar circumstances so his right of equal treatment as provided under Article 25 of the Constitution stands infringed and he can invoke the constitutional jurisdiction of this Court. It is not denied that respondents are the authority and appellate authority of the petitioner.
According to him he has been making requests time and again but they have shelved the application without passing any order although this contention appears to be ill-founded in view of letter dated 20-7-2009 but even on rejection of this request, he has cause of action. No petition is bad for mis-joinder and non-joinder of parties as provided under Order I, Rifle 9 C.P.C. The concerned authorities, who were competent to pass appropriate order in accordance with law, had failed to perform their duties so the petitioner rightly opted to file a petition against them. It is true that under section 79 of C.P.C., the Federal Government can sue and be sued as Federal 'Government of Pakistan through Secretary of the Government but in this case the petitioner has confined his grievance against respondents Nos.1 and 2 i,e, the authority and appellate authority in his case. It is an established law that the technicalities should not hamper the course of justice and may not be used to create hurdles in way of administration of substantial justice. The petitioner, who has otherwise proved that he has been treated with discrimination and has illegally been deprived of the benefit, which is due to him for spotless and continuous service of 8 years prior to his regularization should not be non-suited and his petition should not be knocked down for technical reason i,e, form of the petition. In this aspect reliance is placed on 20031E SCMR 318. For the foregoing reasons, the petition is accepted and respondents are directed to count the service rendered by the petitioner prior to his regularization as has been done in case of Sher Zaman etc. And all benefits be given to him in the like manner.