WAOAR AHMAD SETH, J: - Shakeel Ahmad and others, hereinafter called the petitioners, have filed this constitutional petition under Article-199 of the Constitution of Islamic Republic of Pakistan, 1973 with the prayer to declare the notification dated 11 May, 2016, illegal and unlawful, direct the respondents to allow the program continue till the approved extended period i.e 30 June 2018 with further directions to respondents to make arrangement for absorption / regularization of the petitioners under Regularization Act, 2009.
2. In essence, the case of petitioners is that, the Provincial Government and Surhad Rural Support Program hereinafter referred to as (SRSP) entered into an agreement / MoU initially in the year 2006 and subsequently in the year 2013 for provision of Primary Health Care Service / President's Primary Healthcare Initiative / People's Primary Healthcare Initiative and in consequence thereof, initially the program was started in certain districts, which on performance was extended to other districts and as such like others petitioners were appointed against their cadres. After appointment petitioners were posted against the respective posts / districts and they run the task to the best of their ability, however, it was on 11 May, 2016, when the Provincial Government issued the impugned notification by directing the respective District Health Officer to take-over the management from Surhad Rural Support Program (SRSP) for the PPHI, hence the instant writ petition.
3. Comments were called from respondents, which they furnished by negating the stance of petitioners and states that Surhad Rural Support Program (SRS P) is a Company registered under the Companies Ordinance, 1984. On executing the MoU, on 3.1.2013, between the Government and SRSP , the MoU, before 3.1.2013, has exhausted its validity. Last para of the preamble reflected on page-1 of the MoU dated 3.1.2013, provides that therefore, now both the parties agree to enter into this MoU, under which improved arrangements will be made in the overall environment and spirit of, and to achieve the purpose of approved Health Sector Strategy of the Government of KPK to hand over the management of Health Facilities under the agreement in the selectedth th th district of the province of KPK by the First party (Health Department) to the Second Party (SRSP). As per terms of the agreement, the second party (SRSP) shall ensure to appoint duly qualified doctors/paramedics meeting the standards / criteria set by the First party as far as qualification, training and skills are concerned, second party will have sole discretion over the employing, posting, removing, remuneration and customary managerial prerogative over staff that is recruited by it. Staff recruited by the second party SRSP shall have no claim against the first party (Health Department) upon conclusion of this agreement. In sub-clause (d) of Clause-I it provides that the agreement is applicable to the districts Lakki Marwat, Bannu, Karak, Kohat, Peshawar, Charsadda, Nowshera, Mardan, Swabi, Haripur, Abbottabad, Mansehra, Shangla, Swat, Malakand, Uper Dir and Chitral. All the BHU's of these districts are covered by the agreement except BHU Bamburiat in Chitral and three BHU's in Shangla, namely Chichro, Bamorai and Olandar. The agreement shall remain valid for a period of three years commencing from the date of conclusion / signing, however, the MoU /agreement was extended upto 30.6.2018 by the approval of Competent Authority. That the Government of Khyber Pakhtunkhwa, has no concern with the matters, terms and condition of service of the petitioners as they have been appointed by a Company and serving with it under the Principal of Master & Servant, if the petitioners have any claim provided under any law, they may sui against the company under the provision of relevant laws at proper forum, lastly requested for dismissed of the writ petition.
4. We have heard learned counsel for the parties and perused the available record.
5. All the petitioners were appointed against different posts after an agreement dated 21.9.2007, reached between the Federal Government through the National Program Director, PPHI, with the Surhad Rural Support Program (SRSP), where a mechanism was chalked out for the recruitment of staff, initially.
Subsequently, after the 18 Amendment the Provincial Government enter into the agreement with the SRSP and accordingly, almost all the districts were involved through an agreement with the district administration at the district level, where the DCO's and Chief Executive Officers, SRSP, were signatories. Accordingly, in the year 2008, 4 more districts were handed over to PPHI and in all districts the post of Provincial Government / Health Department were involved. The monthly salary was to be paid from the public exchequer through health department government of KPK, and only for administrative purpose; the PPHI was in-charge.
In all 17 districts of the Province appointments were made against which petitioners are working since then till date. Record reveals that the so called project has been extended to the year 2018, but abruptly under malafide intention, the impugned notification dated 11 May 2016, has been issued for the closure of PPHI, operation but simultaneously advertisements have been made where, applications have been invited for recruitment of Doctors and others against 1069 posts, which indeed are the posts of the Health Department.
6. Letters of appointment of petitioners were issued on the recommendations of Selection Committee's in each and every district. Admittedly, the salaries were paid from the funds provided by the Health Department with the concurrence of Finance department. On 11 of May 2016, the Deputy Secretary Admn, Government of Khyber Pakhtunkhwa, addressed letter to the Deputy Commissioners of almost of all the Districts of Khyber Pakhtunkhwa with the subject of closure of (PPHI) People's Primary Healthcare Initiative, operation of Surhad Rural Support Program, (SRSP) which reads as under:- To The Deputy Commissioners; Peshawar , Kohat, Nowshera, Swabi, Karak, Upper Dir, Chitral, Charsadda, Mardan, Haripur , Malakand, Swat, Shangla, Abbottabad, Mansehra, Bannue and Lakki Marwat.
Subject: CLOSURE OF PPHI OPERA TIONS OF SRSP Dear Sir, I am directed to refer to the subject noted above and to state that, as you are aware, Basic Health Units (BJUs) in your respective District are being managed by the Sarhad Rural Support Program
(SRSP) for the PPHI. As per decision, SRSP is to return the management of these BHUs to the respectth th `k'
District Health Officer w.e.f June 30, 2016. Accordingly, it is most important to ensure that the take- over is undertaken in any orderly manner and subject to fulfillment of all codal formalities.
2. It is proposed that: a. The Deputy Commissioner may please constitute Committee under his Chairmanship, comprising the district Health Officer, District Officer Finance and the District Manager of PPHI, to ensure the smooth take-over of BHUs in the District as per prescribed legal procedure. b. The Committee may please ensure that representatives are deputed to physically examine the buildings, equipment, furniture, fixture, stores (including medicines etc) and duly check the same with relevant register / record books of the respective BHUs. Proper handing and taking over the above referred components be ensured under the signature, names and stamp of the responsible officer duly witnessed by the responsible officers. c. Funds remaining with the District Office of PPHI at the end of June, 30, 2016 shall be deposited back in the Government Treasury in the respective Head subject to fulfillment of all codal formalities and in a manner as advised by Finance Department. d. Accounts of PPHI shall be audited by duly appointed statutory auditors of SRSP immediately after 1 July, 2016 and district wise audit report, thereof shall be shared by them with the Health Department.
It is once again requested that the entire exercise must be completed subject to the fulfillment of all codal formalities and well in time, please.
7. It is important to mention that simultaneously Government of Khyber Pakhtunkhwa / Health Department / Director General Health Services, Khyber Pakhtunkhwa floated an advertisement dated 23.5.2016, for filling up these posts on adhoc basis, copy of the said advertisement is at page-27 of the writ petition. This advertisement clears the position that the posts are still in existence and these posts were of the Health Department and the salaries were being paid by the Health Department, but under a camouflage system of People's Primary Healthcare Initiative and for that matter Surhad Rural Support Program. Even in the comments it has not been clarified and denied that these posts were not in all the government institutions, non permanent posts and their salaries were not provided from the budget / grant of the Provincial Government. The general plea of the respondents is that the Surhad Rural Support Program (SRSP) is a Company, who had memorandum of understanding with the Government and the said Surhad Rural Support Program under the package named Peoples Primary Healthcare Initiative (PPHI) provided the services of all the employees.
8. This Court has already discussed the conduct of Surhad Rural Support Program (SRSP) and the People' s Primary Healthcare Initiative (PPHI) with the Government of Khyber Pakhtunkhwa under a settlement / understanding, in number of judgments which are upheld by the apex Court.
In writ petition bearing No. 3880-P of 2015 titled Asif Khan & others vs Government of KPK etc, it has been held as under:- The appointment orders of the petitioners would reveals that they were appointed by the Competent Authority i.e District Support Manager , PPHI, DSU, Mardan on the recommendations of Selection Committee after proper test and interview , in response to advertisement, since 2010. The contract period was extended from time to time and even in the comments there is nothing regarding the closure or winding of the office / department where petitioners are employed. Record is suggestive that alongwith the petitioners other employees were also engaged in different district of the Province under the same advertisement by PPHI and this court in WP No.292/201 1 vide judgment dated 19.06.2014, W P No. 4335/2010 vide judgment dated 19.03.2013 and WP No. 1670/2010 with exactly similar circumstances and similarly placed employees have regularized their services from the date of their initial appointment, with all back benefits.
The Peoples Primary Health Care, initiat ive (hereinafter referred as PPHI Projec t), is a continuous and ongoing project / department and petitioners are still working against the post since their appointments notwithstanding the fact that in similar situation, in 13 District out of 24 District of Khyber Pakhtunkhwa, not only the post have been regularized but the employees there in have also been regularized with all the benefits like civil servants. Lawst requires treatment of similarly placed employees, in one manner and nowhere in the comments respondents have stated that the post against which petitioners performing their functions is quite different in nature then the one which have been regularized, hence on the strength of the judgment and order dated 22.01.2012 passed by a Division Bench of this Court in WP No. 1670/2010 titled Nijat Ali & other Vs. Government of KPK through Chief Secretary and others duly supported by the Federal Government and the subsequent judgment and order dated 19.09.2013 of a Division Bench at Dara-ul Qaza (Swat Bench) involving identical points in WP No. 4335/2010 titled Rahimullah etc Vs. Government of KPK etc regularizing the contract employees/petitioner of different categories in both the petitions by the respondents-department of KPK in line with their approved policy , we are incline to accede to the prayer made by the petitio ners in this petition. For the above reasons, we allow this constitutional petition and direct the respondents-department that the petitioners be regularized against the posts from the date of their appointment with all back benefits.
In view of above this writ petition is allowed, respondents-department is direct ed to regularize the petitioners against the posts of their initial appointments with all back benefits.
In writ petition No. 992-P of 2015, titled Waseem Jan & others vs Govt. of KPK, in exactly similar circumstances, it was held that:- Record is suggestive that petitioner No.1 was appointed by Executive District Officer (Health) Peshawar upon the retirement of his father against the quota of Employee son on 18.8.2011, whereas rest of the petitioners were appointed on the recommendation of the selection committee on contract basis for a period of 11 months but on 13.3.2015 the impugned conclusion of service order was issued, probably on the instructions of Director General Health Services, as the copy of the said impugned order was sent to the same office alongwith District Health Officer, Peshawar. The contents of conclusion of service letter clearly reflects that there is a memorandum of understanding (MOU) between the People's Primary Healthcare Initiative program and the Health Department, Government of Khyber Pakhtunkhwa and according to said MOU the regular staff would be appointed by the Health Department and thereafter services of the contract employees / petitioners would be dispensed with.
Petitioners have served the department continuously since 2011 and there is no adverse order in this respect, against the petitioners. There is no plea of retrenchment etc, rather it is an admitted fact that the posts are there and the selectees of the Health Department would be adjusted against the same. There is nothing regarding their eligibility.
CM No. 1290-P of 2015, filed by six applicants for impleadment shows that they are subsequent appointees against the quota of retired / deceased son employees and were appointed vide order dated 27.3.2015, 4.7.2015, 8.4.2015 confirming that it is the Health Department through District Health Officer , who used to appoint employees against the posts at BHU' s, which were previously filled in through People' s Primary Healthcare Initiative. There is nothing on record to show that the posts, against which petitioners were appointed, have been abolished, or were of temporary nature.
The impugned conclusion of service notice is dated 13.3.205, is with the reason of appointment of regular staff by the Health Department whereas the appointments orders of the annexed with CM No. 1290-P of 2015 are of 27.3.2015, 7.4.2015 & 8.4.2015, showing that the reasons mentioned in the impugned order were not correct and lawful. This Court in number of writ petitions regularized the services of all most all the projects initiated through Sarhad Ruler Support Program (SRSP) and People's Primary Healthcare Initiative Program. We have before us, the agreement so signed between the Government of Khyber Pakhtunkhwa, Health Department and Sarhad Ruler Support Program, which is the internal understanding between the Government and Private Limited Company.
Petitioners were appointed against their post which they are holding continuously; on the recommendations of Departmental Selection Committee and the post against which they are working still exists; therefore, they have the right to continue their jobs, as prayed for.
In view of the above, without touching the appointment of applicants or CM No. 1290-P of 2015, who are appointed against the deceased son / retired son employee's quota, the writ petition of present petitioners is allowed as prayed for.
9. The subsequent advertisement for filling up the posts by Health Department confirms that all these posts were of the Provincial Government with perm anent status. Even otherwise the government / department has the prerogative to terminate the employment, in case of closure of BHU's but only applying the principle of last come first go. Since, it was a game hatched by the political figures under which People's Primary Healthcare Initiative was provided a source of income otherwise, all the BHU's and the posts therein are supposed to be filled in by the Health Department as the BHU's are of the Government and not private institutions.
In case titled Naseem Ijaz etc vs Govt. of KPK, bearing writ petition No. 2091-P of 2015, it has been held as under:- Brief facts of the case are that the respondents advertised various posts in different District of the Province and the petitioners being fit and eligible for the posts, also applied through prescribed manner and on the recommendation of the Selection Committee they were appointed as Medical Technician and are serving with zeal and devotion to the satisfaction of their superior's that in most of the District, the similarly placed employees were regularized who was enjoying the benefit of regular civil servant; that this Hon'ble Court allowed writ petitions No. 292/2011 & 388-P of 2015 decided on 19.6.2014, writ petition No. 4335/2010 decided on 19.3.2013 and writ petition No. 1670/2010 filed by the similar placed employees and the respondents were directed to regularize the petitioners therein against the posts from the date of their initial appointment with all back benefits; that the petitioners working in so called project scheme declared as Regular / brought on record Budget by the Health Department moreover, their appointments have been made through proper procedure fulfilling all the requirements and that even in thirteen district, the said practice is restricted only to the extent of Basic health Units whereas the other Units like Civil Dispensaries, Mother Health Units, District Headquarters, Hospital, Tehsil Headquarters, Hospital; Rural Health Centers even situated in the remote area of the District area treated as regular employees and are extended all the benefits of a regular civil servant like increments, pension etc, that the judgments / orders passed by this Court in the different writ petitions of similar nature have been implemented by the respon dents department but refused to the present petitioners being not part of those very petition, hence, the petitioners having no other adequate remedy approached this Court through the instant constitutional petition.
At the very outset, learned counsel for the petitioners stated that the issue involved herein has already been decided by this Court on 21.5.2015 in Asif Khan and others case (writ petition No. 3880 P/2015), relevant portion whereof reads that; The Peoples Primary Health Care, initiative (hereinafter referred as PPHI Project), is a continuous and ongoing project / department and petitioners are still working against the post since their appointments notwithstanding the fact that in similar situation, in 13 District out of 24 District of Khyber Pakhtunkhwa, not only the post have been regularized but the employees there in have also been regularized with all the benefits like civil servants. Law requires treatment of similarly placed employees, in one manner and nowhere in the comments respondents have stated that the post against which petitioners performing their functions is quite different in nature then the one which have been regularized, hence on the strength of the judgment and order dated 22.01.2012 passed by a Division Bench of this Court in WP No. 1670/2010 titled Nijat Ali & other Vs. Government of KPK through Chief Secretary and others duly supported by the Federal Government and the subsequent judgment and order dated 19.09.2013 of a Division Bench at Dara- ul Qaza (Swat Bench) involving identical points in WP No. 4335/2010 titled Rahimullah etc Vs. Government of KPK etc regularizing the contract employees/petitioners of different categories in both the petitions by the respondents-department of KPK in line with their approved policy, we are incline to accede to the prayer made by the petitioners in this petition. For the above reasons, we allow this constitutional petition and direct the respondents-department that the petitioners be regularized against the posts from the date of their appointment with all back benefits.
In view of above this writ petition is allowed, respondents-department is directed to regularize the petitioners against the posts of their initial appointments with all back benefits .
In view of above clear findings, this court also follows the same. The learned Additional Advocate General has got no objection on acceptance of instant writ petition in light of judgment dated 21.5.2015 passed by this Court in writ petition No. 3880-P/2015.
Accordingly , this writ petition is allowed and the respondents-department is directed to regularize the petitioners against the posts of their initial appointments with all back benefits. However , the COC No. 480- P/2015 has become in fructuous dismissed as such.
10. For the reasons recorded hereinabove, this writ petition is allowed as prayed for .