' Muhammad Younis Thaheem, J.--This judgment is directed to dispose of instant writ petition by which petitioner seeks direction to regularize his service against the post of Sales Manager with respondent Establishment.
2. Brief facts of the case are that KPK Text Book Board appointed petitioner as Sale Manager vide office order # E&N 5490 dated 17.10.2009 u/S. 13(3) of KPK Test Book Board Ordinance, 1971 and after a month Respondent # 2 made modification in basic appointment order # 5490 and designation was changed as Security Officer instead of Sales Manager vide office order # E & N 6237-42 dated 31.10.2009 and lastely was re-appointed as Security Officer vide office Order # E&A/PF/S.F-92/09 on 10.06.2013 u/S. 13(3) of the ibid letter on fixed salary of Rs, 18,000/- per month for a period of three months. Petitioner based his entitlement for regularization for his continued service to the Board since his first appointment or. 17.10.2009.
'
3. The Respondents # 1 & 2 submitted their comments and raised some preliminary objections so preliminary objections relating to Para # 3,4,5, & 6 are reproduced:-- "3. <i>That the instant writ petition is hit by Section 21(a)(b)of Specific Relief Act (I of 1877), pertaining to "Master and Servant".
' TBB Ordinance # 1, (Annexure X-1), appointed the petitioner, on fixed pay, on urgency basis, out of contingency budget, without creating any post for him, for a period of six months/three months, which period was not extendable under the rules, hence, the petitioner was neither adhoc nor contract nor project employee, but was contingent employee, who was paid out of contingencies, and therefore this writ petition is not maintainable and is liable to be dismissed on this score alone.
5. That this Honourable Court has no jurisdiction to entertain this writ petition as the controversial point involved in the instant writ petition is the law of "Master and Servant" an requires leading of evidence.
6. That the petitioner, being contingent employee of the Board, was appointed for a specific period of six months/three months which period was not extendable as per rules, hence, he is not a Civil Servant and therefore, he does not come under the purview of NWFP (KP) Employees (Regularization of Services) Act, 2009 (Annexure X-II) and hence, he is not entitled to seek protection under Section 3 of the said Act for regularization.
' Similarly, Paras.# 1, 2 & 5 on facts of comments are reproduced below: "1.Para-1 of the writ petition as drafted is incorrect, misleading and misconceived, hence, denied.
The appointment of petitioner by Respondent # 2 (Chairman, TBB) on 17:10.2009 as Sale Manager out of contingency budget, on fixed pay for a period of six/three months in the first instance, U/S. 13(3) of the NWFP (KP) Ordinance # 1 of 1971, was issued erroneously and wrongly as sale manager which has been rectified/corrected subsequently by Respondent # 2 by an order dated 31.10.2009 and thus he was appointed Acts security officer instead of sale manager, without any post, on urgency basis. Copy of office orders,, dated 17.10.2009 & 31.10.2009 are attached as Annexure X-IV)
2. Para-2 of the writ petition as drafted is incorrect, hence, denied. The appointment of the petitioner as security officer was out of contingency budget, on fixed pay, purely for a period of six/three months subject to good performance of work 'duty. Since the petitioner was irregular, dis-obedient and non-punctual in his duties, therefore, warnings/explanations were served upon him, but despite this, the petitioner could not amend his behavior nor he became dutiful and responsible in performance of his duties, therefore, he was not reappointed as such because of his laxity and irregularity in performance of duties in the board. (Copies of warnings/explanations are attached as Annexure X-V)
5. In reply to para-5 of writ petition, it is submitted that the petitioner, being contingent employee, having been appointed for a period of six/three months as contingent employee and therefore he is not a civil servant. IVWFP (KP) Employees (Regularization of services) Act, 2009 is not applicable in this case and therefore the petitioner is not entitled to be regularized U/S. 3 of the said Act,2009.
Since this petitioner was irregular, dis-obedient and habitual absentee without permission and approval of his superiors bosses, he was therefore not reappointed as security officer and thus was removed by the authority 4.Arguments heard and record perused.
5.From the perusal of record it is an admitted position that petitioner was initially appointed under section-13 (3) of Ordinance, 1971. The relevant provision of Section-13 (3) is reproduced below:-- "(3) Save as otherwise provided in this Ordinance or the Schedule, the Chairman may, in case of urgency, appoint for a period not exceeding six months such officers and servants as he may consider necessary.
' After a month his designation was modified/changed through order dated 31.10.2009 as Security Officer instead of Sales Manager.
6.From the judgment of this Court in Writ Petition # 2288-P of 2013 it transpires that Chairman Text Book board had decided to send a detailed summery of contingent/fixed pay employees of KPK Text Book Board will be submitted to the Controlling authority of the Board for regularization of civil servants. And in pursuance of the said decision a summery was prepared under the signature of the Chairman of the Board with the following recommendations for approval of controlling authority:-- "For overcoming the deficient/lack of staff, officials, the Chairman with the approval of the Board under Clause-13(3) of the Ordinance, 1971 has appointed some staff for a period of six months on fixed pay. The controlling authority, Khyber Pukhtunkhwa Text Book is requested to accord gracious approval to the creations of the above posts and regularization of these fixed pay employees."
7.The petitioner was paid from contingency fund and was not contract employee and in this respect the Division Bench of this Court in Writ Petition # 2288/2013 titled Mst. Noreen Begum and others vs. KPK Text Book Board in identical set of circumstances has held as below:-- "The petitioners are seeking regularization of their services, under the enabling provisions of the Khyber Pukhtunkhwa Act No, XVI of 2009("Act"). When the learned counsel was asked to explain whether the respondent Board was "Government" as envisaged under the Act, for the petitioners to avail the benefits of regularization of services provided therein to contract employees, he was unable to justify the same. Respondent Board is a statutory body, a creation of a statute and thus cannot be termed as a "Government" provided under the Act for the petitioners to avail benefits of regularization of their services."
8.The petitioner has been paid through exigency fund to meet the urgency of the Board and neither is contract employee nor fall in Pt any category of employee as defined u/S. 2(1) (b) of K.P.K Employees (Regularization of Services) Act, 2009 which reads as follow:--
2. Definitions.--(1) In this Act, unless the context otherwise requires;
(b) "employees" means an adhoc or a contract employees appointed by Government on adhoc or contract basis or second shift/night shift but does not include the employees for project post or appointed on work charge basis or who are paid out of contingencies.
In view of above discourse, this petition is dismissed. However, petitioner being similarly placed person is entitle for all benefits arising out of the judgment of this Court as discussed above in WP No, B 2288-P of 2013 and his name be included in the summary sent to controlling authority so that no discrimination be caused to him.
9.Thus, this writ petition is dismissed with above observations.