' RIAZ AHMAD KHAN J.--- This judgment is directed to dispose of above titled writ petition as well as Writ Petitions Nos.2044 of 2012, 2293 of 2012, 3278 of 2012, 3325 of 2012, 3385 of 2012, 3767 of 2012, 2195 of 2012, 2229 of 2012, 2570 of 2012, 2592 of 2012, 2642 of 2012, 2970 of 2012, 2971 of 2012, 3352 of 2012, 3407 of 2012, 3463 of 2012, 3557 of 2012, 3592 of 2012, 3593 of 2012, 3595 of 2012, 3654 of 2012, 3961 of 2012, 3963 of 2012, 4174 of 2012, 4188 of 2012, 962 of 2012, 963 of 2012, 1110 of 2012, 1892 of 2012, 2020 of 2012, 961 of 2012, 836 of 2012, 833 of 2012, 794 of 2012, 2082 of 2006, 1951 of 2009, 2887 of 2012, 1983 of 2012 and 2911 of 2011.2887 of 2012, 1983 of 2012 and 2911 of 2011.
2. The petitioners in the above-mentioned writ petitions are working in different departments on contract basis. The Government of Pakistan introduced a Policy regarding regularization of contractual/daily wages employees in all Ministries / Divisions / Attached Departments / Autonomous Bodies / Corporations. According to said Policy, employees who have rendered services for a period of one year on contract/daily wages, can be regularized. For this purpose, a Cabinet Committee was constituted and the services of some of the colleagues of petitioners were regularized, but allegedly petitioners were ignored without any cogent reason, so the writ petitions were filed.
3. Learned counsel for the petitioners submitted that the Government has introduced a Policy regarding regularization of contractual/daily wages employees in all Ministries / Divisions / Attached Departments / Autonomous Bodies. Consequent to said Policy, hundreds of employees in different departments have been regularized. The petitioners as such, cannot be ignored and discriminatory treatment cannot be meted out to the petitioners. Consequent to the Policy, the Hon'ble Supreme Court in different judgments have already ordered regularization and in different department i.e, PTCL, Pakistan Post Office, ZTBL, SNGPL, OGDCL and other Provincial as well as Federal Government departments, the services of ad hoc, temporary and daily wages and contract employees have been regularized, so the petitioners are also entitled to be regularized.
4. Since different departments are involved, so the cases of different respondents are taken up separately.
5. In case of "Syed Shandar Mehdi and others v. The Secretary/ Chairman, Pakistan Railways and others" (Writ Petition No,2082 of 2006), learned counsel for the respondents submitted that the petitioners in this case, are all Grade-17 employees and these employees cannot be regularized for the simple reason that appointment in Grade-17 and above is always made through Federal Public Service Commission. Learned counsel for the respondents in this respect, referred to Policy adopted by the Railway Board, wherein it was provided that the directions of Cabinet Committee on regularization of contractual and daily wage workers shall be followed, except contractual employees against project posts, employees working against posts that are to be filled through the Federal Public Service Commission. Learned counsel in this respect further submitted that the petitioners in the present case, have to be appointed by the Federal Public Service Commission.
6. In case of "Miss Zakia Naurin and others v. Federation of Pakistan and others" (Writ Petition No,13 of 2012), learned counsel for the respondents submitted that the petitioners in the present case are employees of Commissioner Afghan Refugees, Punjab. The petitioners are purely temporary contractual employees working under educational project of UNHCR and in the contract of employment, the petitioners had accepted the condition that they would not be entitled to any compensatory benefit. Learned counsel further submitted that the Government Policy is not applicable to the case of petitioners.
7 In case of "Muhammad Anees Sadozai and others v. Federation of Pakistan and others". (Writ Petition No,963 of 2012), learned counsel for the respondents submitted that the petitioners are employees of Higher Education Commission, which had come into existence through Higher Education Commission Ordinance, 2002. Section 12 of the Ordinance empowers the Commission to appoint such officers, servants, consultants and advisors as it may consider necessary for the efficient performance of its functions, on such terms and conditions as may be prescribed by the Federal Government in terms of section 12(1) of the Ordinance. Learned counsel further submitted that Rules under the Ordinance are made by the Commission and these Rules do not require approval of the Federal Government, as such, the rules are non-statutory and therefore, no writ can be issued. The learned counsel further submitted that the employees are to be appointed by the Commission and not the Federal Government. As such, the Federal Government has no authority to issue direction to the Higher Education Commission to appoint any person on regular basis. The Policy of the Federal Government as such, is not applicable to Higher Education Commission.
8. In case titled as "Abdul Rehman Bangash and others v. Federation of Pakistan and others (Writ Petition No,836 of 2012) and "Ms Shabana Gul and others v. Federation of Pakistan and others" (Writ Petition No,833 of 2012), learned counsel for respondents submitted that the petitioners are employees of project namely "Milk Collection, Processing and Dairy Production and Development Program". The petitioners were employees of corporation and were being paid through project fund. The project got completed on 30th June, 2011, so services of the petitioners were dispensed with as per terms and conditions of their appointment letter. The petitioners, as such, have no vested or fundamental right and they could not invoke constitutional jurisdiction of this Court.
9. In cases titled as "Nawazish Ali Khan Muhamand v. Federation of Pakistan" (Writ Petition No,3385 of 2012), "Rashid Mehmood and others v. Federation of Pakistan and others (Writ Petition No,2044 of 2012), "Kamran Amjad and others v. Federation of Pakistan and others" (Writ Petition No,3767 of 2012), "Muhammad Moeen Raza and another v. Federation of Pakistan and others" (Writ Petition No,3325 of 2012), "Muhammad Shahbaz Qaiser and others v. Federation of Pakistan and others (Writ Petition No,3278 of 2012) and "Shazia Haris v. Federation of Pakistan and others" (Writ Petition No,2293 of 2012), learned counsel for respondents submitted that the petitioners are employees of Earthquake Reconstruction and Rehabilitation Authority (ERRA) and were project employees. The Rules governing services of the petitioners are non-statutory, therefore, no writ can be issued.
Learned counsel further submitted that the funds to the authority are provided by different countries and on completion of the project, the employees are also sent home. Learned counsel further submitted that in Writ Petition No,3385 of 2012, the petitioner while in active service in Pakistan Army as a Major, was appointed in ERRA. During this period, the petitioner sought retirement from Army and after retirement, was appointed on contract w.e.f, 25-9-2008, which contract was renewed on several occasions. The petitioner is still a contract employee, but the contract would expire on 30th April, 2013. Learned counsel however, submitted that the petitioner was being paid from development budget grant and the Policy of the Federal Government is not applicable to ERRA.
10. I have heard learned counsel for the parties and have also perused the record.
11. It was in 2011, that the Government decided to regularize contractual/daily wage employees in all Ministries/Divisions/Attached Departments/Autonomous Bodies/Corporations. In this respect, a meeting of the Cabinet Committee was held in Establishment Division on 29-6-2011, in which the following proposal was made to the Prime Minister:---
(i) Contract employees who have completed one year satisfactory services be regularized.
(ii) Daily wages workers employed for 89 days (on spells) and completed three spells of their services shall be regularized in conformity with the order of the apex Court.
(iii) The case of contract employees of BPS-16 and above may be submitted to the Committee for regularization of their services through Cabinet decision instead of FPSC.
12. In the said meeting, however, officers of Ministry of Health, Special Education and Social Welfare/NCCWD/NTD under CAD Division and Ministry of Woman Development were proposed to be regularized w.e.f, 29-6-2011. This regularization was approved by the Prime Minister. Thereafter, another meeting of Cabinet Sub-Committee on regularization of daily wages/contract employees in Ministries/ Divisions/Attached Departments/Autonomous Bodies/Organizations etc. was held on 13th September, 2011. In the said meeting it was decided to regularize contract as well as daily wages employees of following departments:
(1) Ministry of Human Resource Development.
(2) Ministry of Petroleum and Natural Resources.
(3) Pakistan State Oil Company Ltd. (PSO) was directed to first regularize the workers engaged by PSO on contract/daily wages and not the management cadre people.
(4) Pakistan Mineral Development Corporation (PMDC).
(5) Hydrocarbon Development Institute of Pakistan.
(6) Geological Survey of Pakistan.
(7) Ministry of Information and Broadcasting.
(8) Pakistan Television Corporation.
(9) Pakistan Broadcasting Corporation.
(10) Shalimar Broadcasting Corporation.
(11) Associated Press of Pakistan.
(12) Capital Administration and Development Division.
(13) Federal Government College for Women F-7/2, Islamabad.
(14) Regional Training Institute, Hyderabad.
(15) Federal Directorate of Education, Islamabad.
(16) National Institute of Science and Technical Education, Islamabad.
(17) Federal College of Education, Islamabad.
(18) Government Polytechnic Institute for Women, Islamabad.
(19) National Education Assessm ent System, Islamabad.
(20) Project Monitoring Unit ESR, Islamabad.
(21) Employees of Defunct Ministry of Health (NIH Karachi, FGSH and PIMS, Islamabad.
(22) Technical Panel on Teacher Education.
(23) Directorate General of Special Education.
(24) Federal Government College for Women F-7/2, Islamabad.
(25) Regional Training Institute, Hyderabad.
(26) Ministry of Finance.
(27) Auditor General of Pakistan.
(28) Controller General of Accounts (CGA).
(29) Central Directorate of National Savings.
(30) Ministry of Narcotics Control.
(31) Ministry of Textile Industry.
(32) Ministry of Law, Justice and Parliamentary Affairs.
(33) Ministry of Communication (NHA).
(34) Planning Monitoring and Evaluation Cell.
(35) Establishment Division.
(36) Cabinet Division.
(37) Planning and Development Division.
(38) Statistics Division.
13. Since in the meeting, the representative of Sui Southern Gas Company Ltd. (SSGCL) was not available, therefore, direction was issued to supply particulars of all contract/daily wages employees.
14. The above said meeting was again followed by another meeting dated 12th October, 2011, in which 222 officers belonging to BS-19, 18 and 17 of National Highway Authority (NHA) were regularized. These officers included four retired army officers, namely Lt. Col. (R) Zulfiqar Ali Janjua, Maj. (R) Javed Iqbal Gondal, Maj. (R) Syed Waqar Ali Shah and Maj. (R) Yawar Mehdi. It was however, provided that only those employees had to be regularized who fulfill the conditions of qualification and experience prescribed in the rules applicable to NHA employees BPS-17 to BPS-19 and their age is less than 50 years as on 30-6-2011.
15. Thereafter, another meeting of Cabinet Sub-Committee was held on 4th July, 2012, wherein the following decision was made:-- "The Cabinet Sub-Committee directed that the services of any of the contractual/daily wages employees in the Ministries, Divisions, Attached Departments/Autonomous Bodies, Organizations etc. who has completed more than one year of service of his/her employment will not be terminated/ discharged without brining his case before the Cabinet Sub-Committee and the contractual services of all such contract/daily wages employees should be extended till final decision by the Cabinet Sub-Committee."
16. Another meeting was scheduled to be held on 13-12- 2012 to consider the cases of employees of following Ministries/Divisions/ Organizations:--
(1) Cabinet Division (CDA).
(2) Ministry of Commerce (TCP - implementation report CSC Directives).
(3) Ministry of Capital Administration and Development Division.
(4) Ministry of Defence (Civil Aviation Authority).
(5) Ministry of Defence Production (Heavy Electrical Complex).
(6) Ministry of Industries (SMEDA).
(7) Ministry of IPC (Creation of 80 posts/developed projects).
(8) Ministry of National Food Security and Research.
17. It was in the above background that the present petitioners filed the present writ petitions for regularization of their services. The contention of learned counsel for the petitioners is that these Departments had adopted the policy of pick and choose. They select the names of their favourite people and send the same to the Cabinet Division for regularization of their services and the remaining people are left out. According to learned counsel for the petitioner, the said attitude of the Department is discriminatory, which is violative of Article 25 of the Constitution. The record shows that this contention of learned counsel for the petitioners is correct. In case of "Syed Shandar Mehdi and others v. The Secretary/Chairman, Pakistan Railways and others" (Writ Petition No,2082 of 2006), it was brought to notice of the Court that vide Notification No,Admn-II/2011-AP/I, dated 15th February, 2012, 9 Medical Officers in BPS-17 were regularized in compliance of regularization Policy of the Government. These officers could be appointed only through Federal Public Service Commission, but instead of sending their cases to Federal Public Service Commission, they were regularized by the Ministry of Railways. In view of the said decision of the Ministry of Railways, the petitioners in Writ Petition No,2082 cannot be discriminated. Pakistan Railway Board has no authority to give a policy in contravention of the Policy of Federal Government. It is also to be kept in view that Railway Board itself had decided to follow that Policy of Federal Government and according to that policy certain officers were regularized in BPS-17, then the same treatment should be meted out to the petitioners.
18. As far as case titled "Miss Zakia Naurin and others v. Federation of Pakistan and others" (Writ Petition No,13 of 2012) is concerned, the petitioners no doubt are employees of Commissioner Afghan Refugees, but the Policy is applicable to all Ministries/Divisions/ Attached Departments / Autonomous Bodies / Corporations. The Department of Commissioner Afghan Refugees is an attached Department of Federal Government and the Policy is equally applicable to the employees of Commissioner Afghan Refugees. It is further to be noted that the Federal Government in the Policy had also provided that the Regularization Policy shall be applicable to all employees getting salary from non-development/recurring budget under the arrangement of Federal Government.
19. In case of "Muhammad /knees Sadozai and others v. Federation of Pakistan and others" (Writ Petition No,963 of 2012), the petitioners are employees of Higher Educatiion Commission, which had admittedly come into existence through Higher Education Commission Ordinance, 2002, as such it cannot be said that Higher Education Commission is not a Government department. Since the Policy is applicable to the autonomous bodies as well, therefore, the Higher Education Commission cannot be placed outside ambit of the Policy. It is also to be kept in view that admittedly certain other officers of H.E.C. have been regularized under the Policy, so the same treatment cannot be denied to the petitioners.
20. In case of "Abdul Reitman Bangash and others v. Federation of Pakistan and others (Writ Petition No,836 of 2012), the petitioners are project employees of Livestock and Dairy Development Board, which is under the Ministry of Livestock and Dairy Development. Since the petitioners are employees of Government Department, therefore, the Regularization Policy is equally applicable. If on the material date provided in the Policy, they were in service, their case is to be considered for regularization. It would be for the Cabinet Sub-Committee to determine as to whether these petitioners are entitled to the benefits of the Policy or not. However, it cannot be said that the Policy is not applicable to these petitioners.
21. In cases titled as "Nawazish Ali Khan Mohamand v. Federation of Pakistan" (Writ Petition No,3385 of 2012), "Rashid Mehmood and others v. Federation of Pakistan and others (Writ Petition No,2044 of 2012), "Kamran Amjad and others v. Federation of Pakistan and others" (Writ Petition No,3767 of 2012), "Muhammad Moeen Raza and another v. Federation of Pakistan and others" (Writ Petition No,3325 of 2012), "Muhammad Shahbaz Qaiser and others v. Federation of Pakistan and others"
(Writ Petition No,3278 of 2012) and "Shazia Haris v. Federation of Pakistan and others" (Writ Petition No,2293 of 2012), the petitioners are employees of Earthquake Reconstruction and Rehabilitation Authority (ERRA), which came into existence through Earthquake Reconstruction and Rehabilitation Authority Act, 2011, so it cannot be said that it is not a Government Department. The Cabinet Secretariat, Establishment Division vide letter dated 15th October 2012 has ordered for convening a meeting to take up cases of employees of ERRA and the said letter was produced in the Court, so it cannot be said that the petitioners are outside ambit of the Policy. Furthermore, it has already been decided by the Government that project employees, who are paid salaries from non- development/recurring budget, shall also be considered for regularization, so Regularization Policy is equally applicable to these petitioners as well.
22. In most of the cases, the petitioners have been discriminated, as cases of similarly placed other employees have been sent for regularization to Cabinet Sub-Committee, which is totally unlawful.
One of the argument of learned counsel for the respondents was that since in most of the cases, the rules governing services of the petitioners are non-statutory, so no writ can be issued. This contention is not correct for the reason that the writ petitions are not for the implementation of any term or condition of service. In addition to that, on the basis of discrimination, this Court has the jurisdiction to issue a proper writ.
23. In PLD 2011 Supreme Court 22, where the petitioners were employees of Pakistan Television, the .Hon'ble Supreme Court of Pakistan held that "....we are not inclined to agree to the reasons which prevailed upon the Board in not regularizing the Group 4, 5 and 6 when at the same time the employees of other Groups as noted hereinabove were regularized...." It was further held that the petitioners could not be discriminated without any cogent reason by violating the provisions of Article 25 of the Constitution and it was duty of the Organization to protect their fundamental rights enshrined in Article 9 of the Constitution.
24. In judgment reported as 2002 SCMR 82, it was held that "Employer could not mete out different treatment to two groups of its employees, as dictates of law, justice and equity required exercise of power by all concerned to advance the cause of justice and not to thwart it.
25. In 2003 PLC (C.S.) 796, it was held by the Supreme Court of Pakistan that "Persons similarly situated or similarly placed were to be treated alike and could not be discriminated against under Article 25 of the Constitution and would be entitled to the same relief which had been given to the other employees "
26. Seeking guidance from the afore-mentioned judgments of the Hon'ble Supreme Court of Pakistan, it is held different treatment to similarly placed employees in an organization that cannot be meted out. If names of one set of employees have been sent for regularization, then the denial of same treatment to another similarly placed set of employees would be violative of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973. In view of the afore-mentioned facts, all these writ petitions are accepted. The cases of the petitioners be immediately sent to the Cabinet Sub- Committee on regularization of contract/daily wages employees in the Ministries/ Divisions/ Attached Departments/ Autonomous Bodies/Organizations etc. Cabinet Sub-Committee should decide cases of the petitioners for regularization in accordance with the Government Policy expeditiously, but not later than one month. Till decision of the Committee, no adverse action shall be taken against the petitioners. Since, Policy of the Government is that the services of the contract employees shall not be terminated, unless their cases are decided, therefore, if services of the petitioners have been terminated during existence of the Policy, their cases shall also be sent to the Cabinet Sub-Committee for consideration/regularization. All the petitions are accordingly, accepted,--