' Muhammad Ali Mazhar J.--This petition is brought to seek out regularization of contractual services into permanency.
2.The short-lived facts are that in the year 2007, eleven posts of Investigation Officer (I.0.) were advertised by the NAB in the newspapers for the appointment on two years contract. The petitioner was appointed vide appointment letter dated 7.9.2007 on two years contract. Subsequently, his contract was extended vide Office Order dated 26.11.2012 for one year on existing terms and conditions. Since the petitioner was never conferred the status of the permanent employee, therefore, he has approached this Court for regularization of his services in NAB.
3.The learned counsel argued that the functions of Investigation Officer in the NAB department are in fact a permanent feature. The petitioner was selected through rigorous process and was appointed in the year 2007 on contact basis but his contractual employment was continued and his last extension was made up to 12.12.2013. He further argued that the post of Investigation Officer BPS-18 was re-designated as Junior Expert-2 (BS-18). During the course of employment the petitioner was subjected to training and despite his contractual employment, the petitioner was treated at par with the regular employees. It was further contended that though the petitioner was 'appointed on contractual arrangement under Section 28 (f) of National Accountability Ordinance, 1999 but this section does not apply which only germane to the appointment of Advisors, Consultants and Experts. He also referred to National Accountability Bureau (NAB). Employees Terms and Conditions of Services (TCS), 2002 and argued that under Condition No, 2.02, it is provided that the appointment made in the prescribed manner by initial appointment or promotion or transfer in accordance with these terms and conditions of services shall be deemed to have made on regular basis while Condition No, 3.33 pertains to the appointment on contract basis which may be made when it is not possible to fill a post in a prescribed manner and it is necessary to do so in the interest of the NAB. The sub-condition (2) further provides that the appointment shall be made on specific terms and conditions which are acceptable by the person who is being appointed. The learned counsel argued that distinction in two genres of appointments makes it obvious that the petitioner was appointed on regular basis irrespective of his letter of appointment showing the engagement as contractual employee. Learned counsel further argued that various policies have been introduced by the Government to regularize the services of employees working on contract basis or on daily wages in the different ministries, divisions, attached departments and other organizations and in this regard on 12.3.2013, the Principal Secretary to the Chairman, NAB also forwarded names of various officers of the NAB to the Principal Secretary of Prime Minister for tabling the same before the Cabinet Sub-committee constituted for regularization of the services of contract and daily wages employees. He referred to the name of the petitioner appearing at Sr.No, 22 in the said list and further referred to the office memorandum/minutes of meeting of the cabinet subcommittee dated 21.1.2013 deliberating the regularization of contract/daily wages employees in the ministries, divisions, attached, department, autonomous bodies/organizations etc. And argued that the services of various employees of the different Government Departments were regularized and the names of their department are also mentioned in the decision of sub-committee. In support of his contention the learned counsel referred to the following case law:-
(1) 2010 SCMR 253 (Pakistan Telecommunication Company Ltd. & another v. Muhammad Zahid others). Undisputedly, the crux of the case of the private respondents has been that they are being discriminated as against the other Operators performing service permanently with the PTCL or having been regularized in due course as Operators in the International Gateway Exchange performing similar functions in the Exchange apparently amounts to have been grossly violated as against the guaranteed rights under Articles 2-A, 4, and 25 of the Constitution by depriving them of their emoluments besides all other services benefits etc., described in Paragraph No, 2 of the writ petition being paid to other Operators performing service in the said Exchange and similarly placed and, therefore, discriminatory treatment has been meted out to the writ petitioners employed on daily wages and not regularized despite having rendered service for a period of more than 2 years as contract employees renewed from time to time mentioned in Para No, 16 (supra), therefore, the impugned judgment is unexceptionable irrespective of the status of the private respondents be that of a 'worker' or a 'civil servant' or the 'contact' employees' having no nexus to the maintainability of the writ petition on the ground of discrimination meted out to them.
(2) 2011 PLC (C.S) 367 (Ejaz Akbar Kasi and others v. Ministry of Information and Broadcasting & others). Petitioners, in the present case, had qualified the test and their performance as well was up to the mark which was evident that for the last more than 10 years they had been allowed to continue work against the vacancies which they were holding without any interfertnce and there was, now, no question of performance at all as they had already shown their performance.
Petitioners, in circumstances, could not be discriminated without any cogent reason by violating the provision of Article 25 of the Constitution and it was the duty of the organization to protect their fundamental rights enshrined in Art. 9 of the Constitution. Petitions of the petitioners were accepted by the Supreme Court and their cases were sent to the organization for considering their cases for the purpose of regularization or otherwise in view of the observations made in the present judgment.
4. The learned counsel for NAB argued that the Chairman, NAB may appoint Advisors, Consultants and Experts under Section 28 (f) of NAO, 1999 for the assistance of the NAB. It is an admitted fact that the petitioner was performing his duties as Junior Expert. He further argued that the hiring of experts by the Chairman NAB is on case to case basis and it is not subject to provincial or regional quota but they are hired on lump sum remuneration and not on the basis of official basic pay scales. The contractual arrangement ..Is made only against the vacant posts in any department in NAB. Experts were never appointed against the sanctioned posts. Learned counsel referred to the paragraph 9 of the memo. Of petition in which the petitioner has alleged that the services of Ms. Madiha Irum and Ch. Zaheer Shakeel were regularized but he robustly denied and argued that these two persons are performing the duties as Experts and their services were never regularized and the offer letter issued to Zaheer Shakeel was withdrawn. It was further contended that during the contractual engagement of the petitioner, the NAB advertised the posts for recruitment Deputy Directors (BS-18) in November, 2011. The petitioner applied and appeared for written test conducted through NTS but he could obtain only 37 marks out of 100. He also referred to the case of one Abdul Rehman employed on contract basis in NAB (KPK), Peshawar, who had applied for regularization of his contract but his petition was dismissed by the Peshawar High Court and he moved to the Hon'ble Supreme Court but leave was refused. The terms and conditions of the petitioner's employment are laid down in his initial appointment letter and his status was never changed Learned counsel argued that if one expert is regularized in the employment then more than 66 other Experts will also come forward with the same request and for the same treatment which will create a chaos in the administration. The petitioner opted contract with his freewill and consent and not entitled to any relief.
5. Heard the arguments. It is an admitted fact that when this petition was filed on 31.10.2013, the petitioner was performing his duties as Junior Expert-2 on contractual engagement. NAB in its comments disclosed that the posts of Deputy Director BS-18 were advertised in November, 2011. The petitioner had applied for that post and appeared for written test conducted through National Testing Service (NTS) but he secured only 37 marks out of 100, so he was not called for an interview.
It is weird that this fact has been concealed by the petitioner in the petition. It is a matter of record that-first time the petitioner disclosed factum of his appearance in the test through his affidavit in rejoinder with the stand that the present case of the petitioner has no link with his 'success or failure in the NTS examination rather he has approached this Court for the equal treatment of his right on the basis of earlier precedent in which the contractual, employees of NAB have been regularized and he quoted cases of Alliya Rasheed and Ziaullah Khan. No plausible or conceivable justification was shown to us to rationalize the suppression and concealment of petitioner's failure in the test which may non-suit the petitioner but to advance the cause of justice we would like to decide this petition on merits.
6. The learned counsel for the petitioner took the plea that though the petitioner was appointed on contract basis but Section 28 (f) of National Accountability Ordinance, 1999 does not apply as it only relates to appointment of Advisors, Consultants or Experts. No doubt under clause (f) of Section 28 it is the prerogative of Chairman NAB to appoint Advisor, Consultant and Expert on payment of such fee or remuneration as he may determine but the plea of the petitioner that it does not apply on the petitioner's case is devoid of any force as the petitioner himself admitted in paragraph (1) of the petition that he was rendering services as Junior Expert-2 and after his initial appointment the post of Investigation Officer was re-designated as Junior Expert-2 and for the same post he was granted extension. According to paragraph (5) of the petition, the petitioner has double master degree in English and Criminology. It is further stated that eleven posts of Junior Expert-2 were advertised in the newspaper on 8th July, 2007 and after rigorous process of selection he was appointed as Junior Expert-2 on 7.9.2007. This clear admission of the petitioner also belies the contention of his learned counsel. Nevertheless, we are of the firm view that the Chairman NAB may appoint Advisors, Consultants and Experts under clause (f) of Section 28. Learned counsel also invited our attention to Condition Nos.
2.02 and 3.33 of National Accountability Bureau (NAB) Employees Terms and Conditions of Services (TCS), 2002. A simple visit to these "Conditions" adequately demonstrate that former relates to an appointment made in the prescribed manner by initial appointment in accordance with these conditions shall be deemed to have been made on regular basis which is not otherwise the case of the petitioner as he was never employed on regular basis. One more facet cannot be ignored that this "Condition" speaks of an initial appointment and the definition of "initial appointment" provided under clause (xix) of definition (Condition No, 2.01), means an appointment made on recommendation of the Departmental Selection Committee otherwise than by promotion or transfer. It is quite obvious and discernible that for making any regular appointment under TCS 2002, the recommendation of Departmental Selection Committee is required at the stage of initial appointment. While the mode and manner of appointment on contract is provided under Condition No, 3.33 which may be made when it is not possible to fill a post in the prescribed manner, so the appointment may be made on specific terms and conditions which are acceptable by a person who is being appointed. It is unequivocally spelt out under Section 28 (f) of NAO 1999 as well as in the National Accountability Bureau (NAB) Employees Terms and Conditions of Services (TCS), 2002 that employees may be engaged on contract and a clear distinction has been laid down not only for the appointment on regular basis and or contract basis but the ways and means are also provided separately in TCS, 2002 for tackling both genus of employment.
7. Learned counsel referred to the case of Ziaullah Khan, Writ Petition No, 2509/2009 decided by the Peshawar High Court. In this case the petitioner had claimed that being qualified, skilled and experienced person, he deserved alike treatment as was meted out to one Miss Aaliya Rasheed, who was appointed on contract basis but later on inducted into regular service in BS-19. In this case further plea was taken that during the attachment of the petitioner with NAB certain regular posts of BS-18 were advertised. Despite recommendation for the appointment of petitioner by one of the respondents he was refused regular induction. On his application the Prime Minister of Pakistan also recommended his case for consideration as per rule/policy. After hearing the arguments the learned Peshawar High Court issued directions to the NAB to consider the name of the petitioner for regularization of his service. Learned counsel also referred to an order passed in the case of Mohammad Mahmood Alam in Intra Court Appeal No, 03/2011. Writ petition filed by this man was dismissed by learned Single Judge of Islamabad High Court thereafter, he filed Intra Court Appeal. The learned Islamabad High Court predominantly hinge on the judgment passed by learned Peshawar High Court and directions were given to the NAB for the regularization of the service. When we looked into the brief facts it transpired that the appellant Mahmood Alam was appointed on contract basis in the year 2001 and on 4.10.2004, letter was issued regarding his regular appointment as Deputy Director which was withdrawn for unknown reasons in an unprecedented manner, so he pleaded discriminatory treatment. In another case of NAB, one Abdul Rehman filed Writ Petition No, 2638/2011 in the Peshawar High Court on a similar ground that he was employed on contract basis and after expiry of his contract his services were dispensed with, so he approached the Court for his regularization. In the judgment, the case of the earlier employee Ziaullah Khan was also referred to, nevertheless, the learned Peshawar High Court held that the contractual services would not clothe the employee with any fundamental right which can be enforced through writ jurisdiction of the High Court. The Peshawar, High Court dismissed the petition and did not go along with the view taken by the bench in the case of Ziaullah Khan. The petitioner challenged the order of the Peshawar High Court in the apex Court in Civil Petition No, 145-P of 2012 but vide order dated 22.5.2013, his civil petition was dismissed with the following observation: "The terms and conditions of the petitioner's employment were laid down in his initial letter of appointment and subsequent orders of extension. His status as 'contractual employee' never changed. We would refrain from making any direct observation regarding the legality or otherwise of the regularization of the services of the other contractual employee of the Organization, as that is not in issue before us. However, if that was done for some extraneous reasons, it cannot be cited as precedent by the petitioner. No case of discrimination is made out. The petition therefore dismissed and leave declined."
8. The orders referred to by the learned counsel for the petitioner have been examined by us but we have found it distinguishable to the facts and circumstances of the case in hand. While the observations of apex Court, refusing the leave to Abdul Rehman are quite relevant to the present case that the terms and conditions of the contractual engagement were laid down in the appointment letter and subsequent order of extension, therefore, status of the petitioner as contractual employee was never changed. In the case in hand also it is an admitted fact that the petitioner was employed on contract basis in the month of July, 2007 as Junior Ecpert-2 and he continued his contractual services without any reservation and also accepted the terms and condition of his contractual engagement with the NAB. His last contract was to be expired on 12.12.2013 and just before two months of its expiry he approached this Court for regularization.
Though he concealed and suppressed, but the facts remain that during his contractual engagement with the NAB he had voluntarily appeared in test but could not qualify. Learned counsel argued that the Principal Secretary of Chairman NAB forwarded 34 names of contractual employees to the Principal Secretary of the Prime Minister for placing their names before the cabinet sub-committee constituted for regularization of the contract employees. No doubt the name of the present petitioner is mentioned in the list and minutes of the meeting of sub- committee are also attached but the said minutes have nothing to do with the regularization of the contractual employees of NAB but relating to other departments. Nothing has been placed on record to show whether the case of contractual employees of NAB was ever considered by the sub-committee. It is also noteworthy to mention that there is no federal special legislation to confer any right of regularization to daily wages workers or contract employees like the Province of Sindh where by virtue of special law i.e, Sindh (Regularization of Adhoc and Contract Employees)
Act, 2013 different parameters and modalities have been settled for regularization of service of the employees working on adhoc and contract. Basis excluding the employees appointed on daily wages and work charge basis. There is no special federal piece of legislation analogues or parallel to Sindh (Regularization of Adhoc and Contract Employees) Act, 2013 in which the employees of Federal Government can also claim their contractual employment into regular service as vested right on the contrary each case has to be seen and decided on its own peculiar facts.
9. Learned counsel also referred to the case of PTCL (supra). The issue before the apex Court was relating to the Telephone Operators working in the international gateway exchange with their claim that they are the employees of the International Gateway Exchange and not to the Telecom Foundation, a charitable institution constituted under Section 5 of the Charitable Endowment Act, 1890 and they are wrongly treated employees of the foundation in order to deprive them from their legal rights. He also referred the case of Ejaz Akbar Kasi (supra), in which the employees were performing their duties for last more than 10 years in PTV. The management principally agreed to regularize the petitioners as well as the employees of some other group and the admission made before the apex Court was recorded in the order. The employees also pleaded before the apex Court that employees of Group 1 to 3 and 7 to 9 have been regularized leaving the employees of Group 4, 5 and 6 and this fact was also admitted by the counsel for the PTV. Thus, the Supreme Court reached ,to the conclusion that the Board of Directors may have not declined the petitioner's regularization. The Hon'ble Supreme Court for few petitioners sent the matter to the PTV management for consideration of their cases for the purposes of regularization. The facts and circumstances of both the aforesaid cases are distinguishable and not attracting to the facts of the case in hand. Merely relying the cases of Ziaullah Khan and or Mohammad Mahmood Alam do not provide any help or support to the case of the petitioner to contend or condemned any discriminatory treatment. The petitioner pointed out two employees Madhia Irum and Zaheer Shakeel with the allegations that their services have been regularized. Quite the opposite, the NAB counsel robustly controverted with clear statement that the services of these two persons have not been regularized and letter issued to Zaheer Shakeel was withdrawn as void ab initio. Copy of letter dated 18.6.2013 was also produced with the comments. Counsel for the NAB further argued that there are many contractual employees working in the department and the petitioner was not subject to any discriminatory or inequitable treatment. The pros and cons lead us to a well- founded, conclusion that the regularization in service cannot be claimed as vested right in this case, the petitioner had not only accepted the terms and conditions of his engagement initially but also accepted the extension of his contract on the same terms however, at the verge of its expiry approached this Court. So far as the discriminatory treatment is concerned nothing has placed on record to show any discriminatory treatment except two orders of Peshawar and Islamabad High Courts in which the facts of the case are found distinguishable and we have already discussed both the orders in the preceding paragraphs. Likewise nothing has been placed on record to demonstrate that the contractual services of Madhia Irum and Zaheer Shakeel have been regularized. The petitioner had voluntarily appeared in test for the post of Deputy Director BS-18 and obtained only 37 out of 100 marks but still he demands that he should be regularized in service on the strength of his contractual engagement regardless of his failure in the test for regular employment in NAB which is a mistaken perception.
10. As a result of above discussion this petition is dismissed.