' WAQAR AHMAD SETH, J.--- Through the instant constitutional petition Muhammad Ayub and others petitioners have approached this Court with the following relief:- "(i) Declaring that the petitioners have been validly regularized vide Notification No,Secy/P&D/FS/Admn/2012-13/2580 dated 6.6.2013 and that the Notification No,Secy/P&D/FS/ Admn/2012-13 dated 15.07.2013 whereby the notification dated 6.6.2013 has been suspended is illegal, unlawful, without lawful authority and of no legal effect.
(ii) Declaring the acts and omission of the respondents whereby they are discriminating in respect of the Petitioners and other similarly placed hence the petitioners deserve similar treatment the services of the petitioners may please be regularized.
(iii) The reluctance on the part of respondents in regularizing the services of the petitioners against their respective posts is mala fide, illegal and violative of the right of the petitioners. The respondents are bound to allow the law and to regularize the services of the petitioners."
2. Brief facts of the case are that the petitioners were initially appointed by the Government of Khyber Pakhtunkhwa (then NWFP) Planning, Environ and Development Department and were posted in the Civil Secretariat P&D Department and in the year 2003 the FATA section was shifted to a newly established FATA Secretariat Warsak Road, Peshawar and the petitioners along with their posts were transferred there; that Federal Government (SAFRON Division) vide letters dated 05/06/2000 and 26/07/2003 brought the posts of the petitioners on regular side but the petitioners were not regularized despite the fact that 35 other colleagues of the petitioners were regularized through notification dated 19/07/2005. That vide office memorandum dated 29/08/2008 the Federal Government decided to regularize the contract employees from BPS-1 to BPS-15 which was opposed by the Establishment Department of KPK and in the meantime the KPK government promulgated NWFP Contract Employees (Regularization of Services) Act, 2009 whereby all contract/ad hoc employees were regularized, however such benefit was not extended to the petitioners on the ground that they are not covered under the aforesaid Act. That vide notification dated 06/06/2013 the services of the petitioners were regularized but after 39 days the said impugned notification dated 6/6/2013 was suspended through impugned notification dated 15/07/2013 which is illegal, unlawful, without lawful authority, in violation of Rules and law, thus ineffective upon the rights of the petitioners. Thus having no other remedy available to the petitioners, they have knocked the door of this Court through the instant constitutional petition.
3. We have heard the learned counsel for the parties and have gone through the materials placed on file.
4. It appears that petitioners were appointed on the recommendations of the Departmental Selection Committee in BPS-1 to 11 in a project namely Monitoring and Evaluation Cell, Social Action Plain FATA, P&D Department on contract basis, against existing vacancies, till the expiry of the project, vide different orders but in the year 1995. Subsequently, the same project along with posts was converted from development to non development budget vide order dated A 05.06.2000. Vide order dated 26th July 2003, twenty one (21) more posts were created and different employees were appointed against those, posts but on temporary basis.
5. Vide notification dated 19th July 2005 thirty five (35) number of posts created on revenue side along with incumbents of the same project, were regularized leaving behind petitioners from regularization without any plausible reasons. Record is also suggestive that upon the applications of the petitioners case was submitted to the Governor's Secretariat Khyber Pakhtunkhwa, the then controlling authority and the Hon'ble Governor, KPK held as under:- "I, therefore, as Governor Khyber Pakhtunkhwa do hereby approve in principle the following parameters for regularization of project employees working in FATA with immediate effect and as a one time dispensation;
(i) That corresponding SNEs with the same nomenclature and grade stand approved on the regular side.
(ii) That the posts/cadres are not available on the Provincial side of Khyber Pakhtunkhwa.
(iii) That the employees working against project posts have been appointed in strict accordance with rules and procedure and is fully qualified.
(iv) That the employee is having minimum 2 years continuous service in the project and she/he performed satisfactorily.
(v) That such employees should be junior most in that particular grade in case senior regular employees is already available. In case of more than one project employees of the same nomenclature and post, their inter-se-seniority shall be determined as per prevalent policy.
(vi) Such employees so regularized would have nontransferable service from the organization/cell/office concerned and their claim of promotion, as and when occurring, will be in line in the same organization in which they were initially appointed.
' FATA secretariat may take necessary action accordingly.
6. Despite the clear decision the bureaucratic setup in the system delayed the matter when on 29th August 2008, the Cabinet Secretariat Government of Pakistan upon the decision of Federal Cabinet issued office memorandum which is reproduced below for the convenience.
Office memorandum Dated 29th July 2008.
Regularization of BS-1 to BS-15 contract employees-Cabinet decision case No, 76/10/2008, dated 04.06.2008.
' The undersigned is directed to state that the Federal Cabinet has decided that all those employees who were working on contract basis against posts in BS-1 to BS-15 in the Federal Ministries/Divisions/ Attached Department/ Subordinate Office/Autonomous/Semi-Autonomous Bodies/ Corporations and were appointed up to 03.06.2008 may be regularized. The decision of the Cabinet will also apply to the contract employees working in FATA.
' The eligibility criteria for regularization of the contract employees may be as under:- Eligibility Criteria: ' All those employees who are working on contract basis against posts in BS-1 to 15 in Federal Ministries/ Divisions/ Attached Departments/ Subordinate Offices/ Autonomous/ Semi Autonomous Bodies/Corporations and were appointed prior to the decision of Cabinet, dated 04.06.2008 (viz upto 03.06.2008) may be regularized.
(a) Those who are working against tenure posts; project posts or daily wages; or those who are being paid from contingent or defence budget are not eligible for regularization.
(b) ...........................................
7. Despite the above referred office memorandum petitioners services were not regularized when in the meanwhile Government of Khyber Pakhtunkhwa introduced KPK, Act No, XVI of 2009 whereby all employees on contract or ad hoc basis and holding that post on 31st December 2008 or till the commencement of this Act, were deemed to have been validly appointed on regular basis.
Astonishingly petitioners were not considered as Federal Government Employees despite above referred office memorandum dated 29th August 2008, which was exclusively made applicable to the contract employees working in FATA nor were given the benefit of Act, No, XVI of 2009. In September, 2001 yet another summary was prepared regarding the regularization of P&D FATA employees under regularization of Service Act, 2009. The operative part of the summary is reproduced below whereas the complete summary is annexed at pages 41 to 43 of the writ petition.
"With the promulgation of Khyber Pakhtunkhwa Employees Regularization of Services Act, 2009 (Annex-G), the situation has completely changed. The claim of regularization or these employees is now covered under the Act ibid. The Act lays down the following three conditions for regularization of employees: a. The employees should be ad hoc or contract employees. b. They must be the employees of provincial Government of Khyber Pakhtunkhwa. c. The employees must be holding regular post on 31st December 2009 or till the commencement of this Act i.e, 24th October 2009.
' It is proposed that Nineteen employees (details are at Annex-II) may kindly also be regularized under the Khyber Pakhtunkhwa Employees Regularization Act, 2009 with effect from 20th October 2009.
8. Finally with the approval of Governor, Khyber Pakhtunkhwa, Regularization notification dated 06.06.2013 of the petitioners from the date of their initial appointment was issued, which was acted upon and petitioners received their salaries for the month of June 2013 as regular employees, but without mentioning any reasons, justification or approval of the Competent Authority, the imppgned notification dated 15.07.2013 was issued whereby the regularization notification dated 06.06.2013 was suspended, till further orders, which is impugned before this court.
9. This court in number of judgments /writ petitions regularized the employees working in the FATA and finally a larger bench was constituted in order to scrutinized the applicability of office memorandum issued in view of the Federal Cabinet decision dated 29.08.2008 referred in para-6 above. The Hon'ble larger bench heard the Writ Petition No,969/2010 on 17.11.2013 and held as under:- quote.
"Accordingly, a Full Bench was constituted to consider the legal process despite of repeated directions given by the Cabinet Division and the Ministry of SAFRAN.
5. Initially 157 posts were created and sanctioned by the President of Pakistan, who is the Executive Authority for FATA, which is exercised through the Governor of Khyber Pakhtunkhwa as his Agent and the Ministry of SAFRAN has to oversee the Administrative, Departmental, Social Development Projects, Law and Order and other allied matters which has been listed in the Policy Decision of the Federal Government and to give guidance and instruction to FATA Secretariat. The Ministry of SAFRAN has also supported the case of the petitioner and many others, who are waiting for regularization of their services.
6. The learned counsel representing FATA Secretariat (Mr. Imtiaz Ali, Advocate) although did not oppose the decision of the Cabinet Sub-Committee, conveyed to FATA Secretariat through Cabinet Division, however, he was of the view that let a time frame be given to FATA Secretariat to do the needful and comply with the directive of the Federal Cabinet but at the same time to prove a service structure for these and other employees of alike nature, whose services are to be regularized, so that, all matters are determined and conclusively settled once for all to avoid inter se litigation between these employees or between these employees and FATA Secretariat.
In the connected W.P. No,289-P/2012, the plea taken by the replying respondents is that it is the Federal Public Service Commission to appoint the petitioners under the Function Rules of 1978, however, while taking this stance the replying respondents have conveniently ignored that the petitioner is holding the post, below grade-15 thus, it does not fall within the domain of the Federal Public Service Commission.
8. A Division Bench of this Court in similar circumstances while entertaining Writ Petitions bearing Nos.82-P/2012 and 2305-P/2012, through an elaborate judgment dated 14.05.2013, has categorically held that the Federal Cabinet decision, conveyed to the FATA Secretariat on 29.08.2008 on the subject matter, directing to regularize the services of contract employees from BPS-1 to BPS-15 was not adhered to without any lawful justification. After discussing the legal and constitutional position, it was ultimately held that because other alike employees were treated differently, given benefit to them of the above policy by the respondents, thus, it was further held that the petitioners of those two petitions shall be deemed to have been regularized from the date when the Federal Cabinet took the decision on 29.08.2008 and was conveyed to the FATA Secretariat but in their respective pay sales.
9. The case of the petitioners is placed on the same pedestal and equal footing and when the replying respondents are not controverting this legal position rather have conceded in regularizing the services of all such employees including the petitioners but with the request that they may be given a reasonable time to create certain posts and to draw service structure for these and other employees to regulate their .Permanent employment in FATA Secretariat vis-a-vis their emoluments, promotions, retirement benefits and inter se seniority as well then, we are not supposed to go into the interpretation of various provision of the constitution, that of the Business Rules of 1973 of the Federal Government, the Notification through which the FATA Secretariat was established and the Notification through which the Ministry of SAFRAN was constituted/created and was given an effective and active role in the affairs of the FATA.
' Accordingly, this and the connected petition, mentioned above, both are admitted and allowed as prayed for, Services of all the petitioners including those, who are similarly placed and serving on contract basis in the FATA Secretariat, shall be regularized in light of the Cabinet decision conveyed to FATA Secretariat by the Cabinet Division, meeting of which was held on 13.03.2013.
' Needles to remark that in views of the judgment of the Hon'ble Apex Court in the case of "Government of NWFP (Now KPK) v. Mst. Shagafta Sayyed" (CPLA No, 151-P/2009), once the Project employees, who were working on contract basis and some of whom on that ground was not given relief by this Court like the rests, they too were granted the same relief on the analogy that no clear line of demarcation can be drawn between them, therefore, the FATA Secretariat shall not create any unnecessary impediment in the way of similar placed project employees and shall not enter into the field of unessential technicalities to block the way of the petitioners and similarly placed other employees, who too are entitled to the same relief although not before us because on the strength of principle of law laid down by the Hon ' ble Apex Court in the case of "Hameed Akhtar Niazi v. The Secretary Establishment Division, Government of Pakistan"
(1996 SCM R 1185), however, the FATA Secretariat is given three (03) months time to complete the entire process discussed above and it shall be clearly understood that it is a last chance for them and no further extension would be granted on any ground whatsoever because the matter is old enough and the petitioners along with hundred and hundreds others art suffering and are in trouble besides mental agony. The Additional Chief Secretary FATA with collaboration of other Secretaries and with the instruction of Government of Khyber Pakhtunkhwa may create a task force to achieve the objections highlighted above including preparation of service structure and regularization of service of these employees, so that, the entire process is completed within the given time". Unquote.
10. The above, cited judgment was upheld by the Apex Court hence, the same holds the field. It appears that either the officials of FATA Secretariat, Planning and Development/respondents are inefficient or they had some ulterior motives because the above quoted judgment of the larger bench is very much clear. Moreover in the presence of office memorandum dated 29th August 2008 and Act, XVI of 2009, the petitioners had the preferential rights to be regularized, way back, any how they were regularized in June 2013, but the inefficiency and ulterior motives of the respondents are apparent from the impugned notification dated 15.07.2013 whereby regularization notification dated 06.06.2013 has been suspended till further orders by Secretary (P&D), FATA Secretariat, without mentioning any reasons or justification or approval from the Governor KPK, who approved the regularization of the petitioners. Even otherwise, the regularization notification dated 06.06.2013 has been acted upon and as such gain the protection of law of locus poenitentiae. 1999 SCM R 1004, Chairman, Minimum Wage Board, Peshawar and another v. Fayyaz Khan Khattak. ----S. 13 General Clauses Act (X of 1897), S.21---Regularization of service---Effect---Locus poenitentiate, principle of ---Applicability---Once the Competent Authority conceded the regularization of service of a civil servant by virtue of S. 13 of the Act, it created valuable rights in favour of civil servant which, under the rule of locus poenitentiae, could not be reversed by taking contradictory pleas at different times before different forums---Authorities could not approbate and reprobate in the same breath about the same matter and having regularized the services of civil servant could not take the plea that he was ad hoc temporary employee whose services could be terminated.
11. In view of the above, larger bench decision, different notifications and discriminatory treatment melted out to the petitioners, who were appointed way back in the year 1995 by the duly constituted Departmental Selection Committee, the impugned notification of suspension of regularization of service is set aside as being illegal, unlawful, void and mala fide. The petitioners are deemed to be regular employees since their initial appointment.
12. Before parting with the judgment it is also observed and recommended that the officials involved in the case of petitioners of FATA Directorate right from 2008 when the Cabinet Division office memorandum was issued are either inefficient or they had some ulterior motives, specially respondent No,4 and Deputy Secretary (Admn) therefore, departmental disciplinary proceedings in accordance with the law under intimation to the Additional Registrar (J) of this court, within 45 days, are recommended.