Mrs. Irshad Qaiser, J.--By this single judgment, we propose to decide Writ Petitions Nos, 376-P, 377- P and 378-P of 2012, wherein the petitioners have asked for the issuance of an appropriate writ declaring that the orders dated 26.1.2012 regretting to re-instate/regularize their services being nullity in the eye of law are liable to be set aside.
2. The petitioners are seeking the benefits under the provisions f NWFP now KPK, Employees (Regularization of Services) Act, 2009 WFP now KPK Act No, XVI of 2009), vide which the services of all adhoc and contractual employees were regularized by the Province Legislature, thus they have filed these constitutional petitions praying for daring the impugned order issued by the respondents as without lawful authority as well as of no legal effect and also prayed for issuance writ to the respondents not only to reinstate them out also regularize them in accordance with the aforesaid provisions of the Act.
3. The case of the petitioners are that on the recommendations Departmental Selection Committee and with the approval of the competent authority, they were appointed on contract in various Projects the ADP Schemes, titled "Centre for Mentally Retarded & Physically handicapped (MR & PH), Nowshera, and Welfare Home for Orphan male Children Nowshera, vide order dated 23.8.2006 and 29.8.2006 for period up to 30.6.2007. Their services along with others were extended pm time to time till 30.6.2011 through different notifications. Later on vide Notification dated 8.1.2011 this scheme was converted into current judge with the approval of the Chief Minister of KPK, but the services the petitioners were dispensed with after 1st July 2011, while the services of their other colleagues were kept intact till date. The case of petitioners are that they were duly recommended by the apartment Selection Committee and their appointment orders were used by the competent authority, therefore, they have qualified for regularization against the posts held by them. They further prayed that their services were wrongly and illegally dispensed with because the Schemes in which the petitioners were serving were brought on regular budget with effect from 1.7.2011, vide notification dated 8.1.2011. Funds have been allocated and Centers are still functioning and more so, their other colleagues functioning in the same project, were either regularized or their services were transferred to other Projects on regular basis. This treatment meted out to the petitioners have been challenged in the instant writ petitions.
4. The record further reveals that a letter dated 17.1.2011 was addressed to the Secretary to Government of KPK, Zakat, Ushr, Social Welfare and Women Development Department, Peshawar, wherein it was endorsed that the Finance Department has agreed to the conversion of the schemes namely Establishment for Welfare Home Female Nowshera from Developmental to non- Developmental side as approved by the Chief Minister and accordingly-most of the projects were transferred from ADP to the current budget and their employees were regularized but the services of the petitioners were not regularized rather their services were dispensed with.
5. Learned counsel appearing on behalf of the petitioners contended that where the, other employees of the Projects were regularized under NWFP now KPK, Employees (Regularization of Services Act, 2009 (NWFP now KPK Act No, XVI of 2009), the cases of the petitioners clearly and squarely fell within the purview of the Act mentioned above, therefore, they be regularized at par with those who are similarly placed and positioned. He further contended that when the petitioners were appointed on contract against the sanctioned posts and were selected in a prescribed manner, they were required to be reinstated and regularized at par with those who are similarly placed and positioned.
6. As against that, the learned counsel appearing on behalf of the respondents by referring to the relevant portion of the order appointing the petitioners contended that where the petitioners themselves accepted the terms and conditions of their appointment and agreed to be employees of contract, they could not turn round to ask for their regularization. He next contended that where the petitioners were purely project employees and their recruitment was entirely based on project policy, they have no right to claim regularization of their services in the department let alone their reinstatement. The learned counsel next contended that after conversion of the scheme from ADP to Revenue side, the posts in BPS 16 and 17 have now fallen in the purview of KPK Public Service Commission and have to be filled in accordance with the prescribed procedure.
7. We have gone through the record carefully and considered the submissions of the learned counsel for the parties.
8. Before we proceed to consider whether the petitioners were appointed in a prescribed manner, we would like to refer to Section 25 of the Civil Servants Act, 1973 which reads as under:- "25. Appointment of persons on contract, etc.--The Governor or any person authorized by the Governor in that behalf may, on such terms and conditions as he may specify in each case, appoint persons on contract basis, or on work-charged basis, or who are paid out of contingencies: Provided
9. A perusal of section quoted above reveals that the Governor or any other person authorized by him in this behalf can, on such terms and conditions, he may specify in each case, appoint person on contract basis. This is the only provision, which deals with the contractual appointment. The appointment of the petitioners made in conformity with this provision shall be deemed to have been made in a prescribed manner. When so, the petitioners are legally required to be reinstated and regularized. It was not contested by the respondents that the appointment orders of the petitioners were made by the competent authority in a prescribed manner. It is important to mention here that at the time of appointment of the petitioners as project employees, the method of appointment was through Departmental Selection Committee (DSC). The Project was funded by the ADP, however, keeping in view the progress made, the importance and utility of the projects, services of the petitioners were extended from time to tittle but on contract basis. There are other two important facts, which are required to be considered i,e, that the petitioners were project employees, thus their tenure of service was depended on the completion of project. The second important thing is that after the successful operation and management of the project and being of public utility, the Provincial Government converted the scheme from project budget to the current budget. The required funds were allocated for the, same in -the annual budget on current basis.
Quite apart from this, when many other similarly placed and positioned persons have been regularized under the judgments of this Court rendered in the cases of Dr. Rizwanullah and 42 others Vs. Government of NWFP through Chief Secretary, NWFP, Peshawar and 4 others (2009 PLC (C.S) 389), Miss Shagufta Syed Vs. Govt. of NWFP through Secretary Zakat, Ushr, Welfare and Women Development Department Peshawar in Writ Petition No, 1731/2006 and lnayatul Haq etc. Vs. E.D.O. etc. in Writ Petition 1662/2007 (Supra), it would be rather unjust and unfair to deny the same right to the petitioners.
10.With regard to the relieving orders of the petitioners from their duty in the light of above legal position, suffice it to say that the record as well comments furnished by the respondents nowhere suggest that the performance of the petitioners were unsatisfactory which warranted the impugned action, as the averment of the comments clearly shows that the same are evasive in nature negating the factum of bona fide of impugned action, especially when the other employees similarly placed and positioned have been regularized and shifted to regular posts and as such the petitioners have been discriminated upon without any rhyme or reason on their part. Thus the dispensation of the service of the petitioners cannot be held to have been based on valid and justified reasons.
11.It is worthwhile to refer to relevant provisions of Section 3 of the NWFP now KPK, Employees (Regularization of Services) Act, 2009, which runs as under;--
3. Regularization of services of certain employees.-All employees including recommenders of the High Court appointed on contract or adhoc basis and holding that post on 31st December, 2008 or till the commencement of this Act shall be deemed to have been validly appointed on regular basis having the same qualification and experience for a regular post.
Provided........................
12.A look at the above quoted provision would reveal that if a person is appointed in a prescribed manner to a service or post on 31st December, 2008 or till the commencement of this Act, shall be deemed to have been validly appointed on regular basis having the same qualification and experience for a regular post. There is no denial to the fact that the petitioners are contract employees and are entitled to the protection, of the beneficial provision of Section 3 of the NWFP now KPK, Employees (Regularization of Services) Act, 2009, to which superimposing and overriding effect, was given on all the rules and law to the contrary. Above all else, this Court in its elaborated judgment in Writ Petition No, 360/09 (Amir Hussain & 4 others Vs. Government of NWFP) and 15 others decided on 15.9.2011 had discussed in detail the relevant provisions of NWFP Civil Servant Act, 1973 (Act No, XVIII of 1973 as well as NWFP now KPK (Regularization of Services) Act No, XVI of 2009 and held reads as under: "Through the provision of Section 4-A of the Amendment Act, overriding effect was given to the provision of this Act over all other laws & rules for the time being enforce and it was further provided that any law or rule, coming in conflict with the provision of Amendment Act or inconsistent thereto, shall cease to have effect. This clause overriding & superimposing nature has equipped the provision of Amendment Act No XLI of 2009, with ever lasting effect over all other laws & rules then in vogue."
13.This judgment was challenged in CP Nos,562-P to 578-P, 588-P to 589-P, 605-P to 608-P of 2011, 55-P and 56-P and 60-P of 2012 All the petitions were dismissed by the apex Court, vide order dated 22.3.2012 by holding "when undisputedly and admittedly the respondents were appointed in the prescribed manner though on contract basis but they otherwise fulfilled the requirements of the Amendment Act, 2009, they were entitled to same and similar treatment as meted out to other similarly placed colleagues of the respondents. Objection that vacancies are not available would be invalid because it is within the power of the Provincial Government to create/sanction additional posts in order to accommodate its contractual employees and to give effect to the Amendment Act, 2005 and Regularization Act, 2009".
14. As a sequel to our above discussion, we admit and allow these writ petitions by declaring the impugned action of the respondents qua dispensing with their services as void ab initio and direct the respondents to reinstate them in services right from the date of their relieving i,e, 1.7.2011 with further direction to regularize them from the date of their appointment with all monetary back benefits.