' MUHAMMAD ALI MAZHAR, J.--- This constitutional petition is brought to claim the following relief(s):---
(a) Direct the respondents to treat the petitioners as regular employees with all the consequential benefits.
(b) Restrain the respondents, its agents, employees, or anybody acting on their behalf from taking any adverse action against the petitioners.
(c) Grant any further relief that this Hon'ble court deems proper and appropriate.
(d) Grant the costs of the petition.
2. The case of the petitioners is that they are rendering their services as Women Medical Officers at various Rural Health Centers located in the remote places in the Province of Sindh. They were selected as Woman Medical Officers in the year, 2009, in the National Maternal, Neonatal and Child Health Program. It is also their case that they were selected through due process of law to provide basic health facilities to female population of rural areas.
3. The learned counsel for the petitioners argued that the grievance of the petitioners is that despite performing their contractual obligations to the best satisfaction of the competent authority, they have not been regularized so far. It was also argued by him that the petitioners made numerous requests/applications to the competent authority for the regularization of their services but all in vain and no action was taken to redress the grievance. The petitioners have complained sheer discrimination and also infringement of their fundamental rights enshrined under Articles 4, 9 and 25 of Constitution of Islamic Republic of Pakistan, 1973. The learned counsel also pointed out the statement which was filed on 1-2-2014 during pendency of this petition with a copy of Summary floated by the Secretary Health on 27-9-2013 to the worthy Chief Minister for regularization of Doctor and Paramedical Tutors in Benazir Bhutto Youth Development Program Health Department. He argued that when a summary for Regularization of other employees who are at par and placed in the similar position has been forwarded to the Chief Minister for approval, then why similar summary cannot be moved for the present petitioners so that their cases may also be treated at par and their services may also be regularized.
4. He further argued that during pendency of this petition, Sindh Government has promulgated "The Sindh (Regularization of Ad hoc and Contract Employees) Act, 2013", according to which, employees appointed on Ad hoc or Contract basis or otherwise (excluding the employee appointed on daily-wages and work-charged basis), against the post in BS-1 to BS-18 or equivalent basic scales, who is otherwise eligible for appointment on such post, shall be deemed to have been validly appointed on regular basis. It was averred that when the law has been promulgated for regularization during pendency of this petition, it has become a vested right of the present petitioners also and respondents are bound to consider their cases for regularization as there is no legal impediment or hindrance in this regard. Learned counsel for petitioners in support of his contention referred to an order passed by this court at circuit court, Larkana in C.P.No,D-284 of 2010 and at Sukkur Bench in C.P.No,D-802 of 2011. The C.P.No,D-802 of 2011, Sukkur Bench was allowed by consent while in another C.P., before the Circuit Court, Larkana, the Secretary Health, Government of Sindh, appeared and submitted that a committee has been constituted to examine case of said petitioners for their regularization. It was further stated by Health Secretary that vaccinators have been regularized, the same pattern shall also he considered by the committee at the time of regularization of services of said petitioners. So on his firm statement, petition was disposed of with the directions to complete the process within a period of three months. Learned counsel for the petitioners also referred to the order dated 30-4-2014, passed by Hon'ble Supreme Court in Civil Appeals Nos.84-K to 86-K of 2012. The appeals were filed by the Province of Sindh against the judgment of this court passed in C.Ps.Nos.D-1615, 1616 and 1932 of 2011 in which this court passed the order for regularization of employees of National Program for the Improvement of Watercourse, (NPIW). On the date of hearing when the learned Advocate General (Sindh) was confronted with the Sindh (Regularization of Ad hoc and Contract Employees) Act, 2013, he fairly conceded before the apex court that appeals filed by Government have become infructuous as blanket protection under this Act as regards their appointment has been given. On this statement, appeals were disposed of by the Hon'ble Supreme Court. However, it was left open for Government of Sindh to take appropriate action against said respondents against whom Government has reservation about their fitness and eligibility, but such exercise was directed to be undertaken strictly in accordance with law.
5. Learned A.A.-G. pointed out the comments of respondent No,3 which were adopted by respondent No,2 also. In the comments of respondent No,3, it was admitted that petitioners are performing their services as Woman Medical Officer. It was further stated that selections were made on the availability and suitability basis to place H.R. on contract basis for project life to fill-up gaps in existing public health system. A plea was also taken that regularization is not within the domain of respondent No,3 and petitioners are performing their duties with their sweet will. Nature of employment of petitioners is temporary and contractual one. Furthermore all the petitioners are aware that their services are being governed under Employment Agreement signed by them with their sweet will hence there is no question of their regularization. Learned A.A.-G. argued that summary relied upon by learned counsel for petitioners has no relevancy to present case. Though he admits that Hon'ble Supreme Court disposed of Civil Appeals Nos.84-K to 86-K of 2012 on the statement of learned Advocate-General (Sindh) but government has been left open to take appropriate action against the respondents if there is any issue of fitness and eligibility. He confirmed the order passed by learned circuit bench Larkana of this court in which Secretary Health himself appeared and admitted that a committee has been constituted for the purpose of regularization in the similar or identical cases.
6. It is a matter of record that during pendency of this petition, Sindh (Regularization of Ad hoc and Contract Employees) Act, 2013 was promulgated on 25th March, 2013 with immediate effect. The preamble of the law makes it clear that it was promulgated to provide for regularization of the services of certain employees appointed on ad hoc and contract basis or otherwise (excluding the employees appointed on daily-wages and work-charged basis). In Clause (b) of section 2, (definition clause) "Appointment of an employee" means the appointment of a duly qualified employee made on ad hoc and contract basis or otherwise (excluding the appointment on daily- wages and work-charged basis). In Clause (d), "employee" means a person appointed to a post on ad hoc and contract basis or otherwise (excluding the employee appointed on daily-wages and work-charged basis). While Clause (e) defines the post which means the post held by an employee in Government department and includes the post in a Project of such department in connection with the affairs of the Province.
7. So let us first clarify in view of definition clause made in section (2) of the Act that benefit of this Act will go to all ad hoc and contract employees and employees include the employees performing their duties on a Project of such department in connection with affairs of the Province.
Now main section under the Act is section 3 which provides and or stipulates the criterion for regularization which envisages in well-defined terms that an employee who has been appointed on ad hoc and contract basis against the post in BS-1 to BS-18 or equivalent basic scales, who is otherwise eligible for appointment on such post and is in service in the Government department and its project in connection with the affairs of the Province, immediately before the commencement of this Act, shall be deemed to have been validly appointed on regular basis. Off course the Act excludes the employees appointed on daily- wages and work-charged basis from its purview which is not in issue. Now after promulgation of aforesaid Act, there must not be any interference or hindrance for regularization of employees who are performing their duties on ad hoc or contract basis and any denial to this right to any employee who is otherwise eligible under the Act will deem to be an exploitation. Under Article 3 of the Constitution, it is the responsibility of the State to ensure elimination of all forms of exploitation and gradual fulfillment of the fundamental principle, from each according to his ability, to each according to his work.
8. In the judgment authored by one of us (Muhammad All Mazhar, J), 2013 PLC (C.S.) 121 (Muhammad Akram Solangi and others v. D. C.O, Khairpur and others), it was held that reading of Article 4 of the Constitution of Islamic Republic of Pakistan shows that it incorporates the doctrine of equality before law or equal protection of law and no action detrimental to the life, liberty, body, reputation or property of any person could be taken except in accordance with law Public functionaries were supposed to function in good faith honestly an within the precincts of his power so that person concerned should be treated in accordance with law. Good governance is largely dependen upon upright, honest and strong bureaucracy particularly in written Constitution wherein important role of implementation has been assigned to bureaucracy. Object of good governance cannot be achieved by exercising discretionary powers unreasonably or arbitrarily and without application of mind. Such objective can be achieved by following rules of justness, fairness and openness in consonance with command of Constitution enshrined in different Articles including Articles 4 and 25 of the Constitution. Once it is accepted that the Constitution is supreme law of country, no room is left to allow any authority to make departure from any of the provisions of law and rules made thereunder. Article 3 of the Constitution makes its incumbent upon the state to ensure elimination of all forms of exploitation and the gradual fulfillment of fundamental principles from each according to his ability, to each according to his work. Under Article 38 of the Chapter, Principle of policy, it is provided that the state shall secure the well-being of the people, irrespective of sex, caste, creed, or race by raising their standard of living by preventing concentration of the wealth and means of production and distribution in the hands of a few to the detriment of general interest and by ensuring equitable adjustment of right between employer and employee and landlord and tenant. In the above context, the Hon'ble Supreme Court in the case of Ikram Bari reported in 2005 SCMR 100 held that Islamic welfare state is under obligation to establish a society, which is free from exploitation wherein social and economic justice is guaranteed to its citizens. Objectives Resolution, by virtue of Article 2-A of the Constitution, has been made substantive part of the Constitution which unequivocally enjoined that in State of Pakistan the principles of equality, social and economic justice as enunciated by Islam would be fully observed which would be guaranteed as fundamental rights. Principles of policy contained in Article 38 of the Constitution also provide that the State should secure the well-being of the people by raising their standards of living and by ensuring equitable adjustment of rights between employer 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 earnings of inaviduals. State is obliged under Article 3 of the Constitution, to ensure the elimination of all forms of exploitation and gradual fulfillment of the fundamental principle, from each according to his ability, to each according to his work.
9. While implementing the Act, it is the responsibility of Government to apply and allow the benefit to all employees placed in equal and similar circumstances without any discrimination and not to B pick and choose the employees for conferring the benefit or advantage of this law. It is also an admitted position that learned Advocate General (Sindh) conceded before Hon'ble Supreme Court that after promulgation of the Act, appeals before Supreme Court have become infructuous as law has given them blanket protection as regards their appointment. We would also like to hold that when the law giver declares or promulgates any beneficial law it is his responsibility to implement it across the board with an open heart and benevolence without any conservative or rigid approach. The law under discussion is a beneficial statute proclaimed with the sole aim to provide and secure the rights of a particular category or class of employees for their betterment and to safeguard and preserve the contractual or ad hoc employment into a permanency. The letter of law enshrines that the efforts should be made to bequeath the benefit and its advantage to all the deserving employees in rem rather than to seek ways and means to deprive them on one or the other pretexts which is against the norms of good governance. It is often seen in the labour and service matters that laws are made but somehow or the other, its implementation is delayed so that every individual has to recourse to the court of law for its benefit and advantage and wait for considerable time. Had the law implemented in its letter and spirit, this would have lessen or decrease an unnecessary burden on the court's docket but on the contrary what we have experienced in some other cases also that despite promulgation of law with a broader spectrum which is a laudable effort, the contractual/ ad hoc employees are forced to first knock the door of this court for implementation which virtually made the spirit of law redundant. Though in this case, the law was made during pendency of the petition and once the law is made, the present petitioners are equally entitled for the same benefit and consideration. It is also well settled principle of law that the court may take to judicial notice of the changed D situation and circumstances and can also mould and modify the relief accordingly.
10. Learned counsel for petitioners and learned both, extensively argued the matter and agreed that this petition may be disposed of at Katcha Peshi stage. In view of the above, this petition is admitted to regular hearing and disposed of in the following terms:--
(1) All the petitioners shall be deemed to have been validly appointed on regular basis in view of section 3 of the Sindh (Regularization ofAd hoc and Contract Employees) Act, 2013.
(2) The Hon'ble Supreme Court in its order passed in Civil Appeals Nos.84-K to 86-K of 2012, left it open to the government to take appropriate action against the respondents, against whom they have reservation about their fitness and eligibility. If in this case, the competent authority has any such reservation regarding the fitness or eligibility of any petitioner, they may take appropriate action but such exercise should be taken strictly in accordance.
(3) Entire exercise should be completed within a period of two months positively.
(4) C.M.A. No,33746 of 2013 was moved by an intervener but nobody appeared for her, hence this application is dismissed for non-prosecution. However other listed applications are also disposed of in terms of this judgment.