WAQAR AHMAD SETH, J:- Through this single judgment we intend to decide the instant writ petition as well as connected writ petitions bearing Nos. 305, 571-A of 2015, 904, 929, 996, 1072, 1084, 1102 & 1169-A of 2016, COC No. 376- P/2015 in WP No. 130-B/2014, 181-B 2017, 249 & 250-B of 2017, 507, 635, 712, 713, 746, 817, 818, & 819-B of 2016, 190 D/2016, 438-P/2015, 498-D/2015, 568-D/2015, 750, 784, 804, & 8187-D of 2016, 942, 948, 1022, 1292-P 2017, 1358/201 1, 1881, 2554, 2694, 3453, 3567-P/2017, 3618, 3659 , 3786, 3787, 3953, 4125, 4256, 4376-P/2016, 4517-P/2017 & 4734 & 4735-P of 2016, as identical question of facts and law are involved therein.
2. Petitioners, Muhammad Younas, Aminullah Khan & Jawad Ahmad, being President / Representatives of Contract Employees Union, Worker Welfare Board, Khyber Pakhtunkhwa, Peshawar / Bannu / South Waziristan Agency , have filed the instant constitutional petiti on with the prayer to declare; i) the constitution of the Governing Body
(GB) 2015 16 of Worker Welfare Fund, as illegal, void, unconstitutional, against the rules / policy and Worker Welfare Fund Ordinance, 1971 and any act of the Governing Body upon its constitution as illegal, void, un- constitutional against the rules and policy of Worker Welfare Fund Ordinance , 1971; ii) 132nd meeting and impugned minutes of the Governing Body (GB) 2015-16 of Worker Welfare Fund held on 1.10.2015 and any decision taken, act approved therein, as illegal, void, unconstitutional, against the rules / policy and Worker Welfare Fund, Ordinance, 1971; iii) the impugned 81 meeting of Worker Welfare Board, Khyber Pakhtunkhwa held on 30th December , 2015 and its minutes dated 12.1.2016 and any decision, act of the Worker Welfare Board, Khyber Pakhtunkhwa done subsequent upon the impugned 81' meeting as illegal, void, un-constitutional and against the rules / policy / Ordinance, 1971; iv) the respondents may be directed to release all the shares of the Province of Khyber Pakhtunkhwa in W orker W elfare Fund and to annual the rationalization of employees.
3. In essence the case of petitioners is that, on 12May, 2015, an agreement in-between petitioners & Minister for Labour & Manpower, Khyber Pakhtunkhwa, was executed qua regularization of all teaching and non-teaching staff of Worker Welfare Board, Khyber Pakhtunkhwa, followed by notification dated 13.5.2015, whereby it was notified that all contract employees of Khyber Pakhtunkhwa, Worker Welfare Board will be recommended for regularization before 30.06.2015, subject to clearance from NAB. On 13.10.2015, yet another notification bearing No. SO (L) LD/3-23/2015 was issued regarding regularization / extension of contract employees for further period of three years subject to observance of codal formalities, but on 1.10.2015 when the new Governing Body (GB) held its 132' meeting has approved the rationalization of teaching staff and reduction of estimated establishment of Worker Welfare Board, Khyber Pakhtunkhwa from 1927.00 million & 1746.00 million to 1000.00 million, which was subsequently approved by the Governing Body (GB) 2015-16 of Worker Welfare Board, Khyber Pakhtunkhwa, in its 81 meeting held on 30.12.2015, hence the instant writ petition for regularization.
WP No. 750-P/2016.
The petitioner of the instant writ petition was appointed as Junior Clerk on contract basis, which was extended from time to time, but subsequently abstained from duty by holding salary , as well.
WP No. 1881-P/2017.
Petitioner, Muhammad Abid Javed, was appointed as Laboratory Assistant BS-11 on 19.4.2012, as non teaching staff on contract basis, but was terminated from service vide impugned letter of termination 15.10.2014, against which he filed application / appeal which was sent to respondent No.1 on 20.2.2015 for decision, but of no avail, hence the writ petition.
WP No. 3453-P/2016.
Petitioner of the instant writ petition was appointed as Assistant Director on 29.8.2012, and after completion of probation was regularized vide order dated 28.8.2013, and uptill May, 2016, he was paid salary as regular employee, but subsequently his salary was stopped by treating him contract employee, hence the petition for regularization.
Petitioners of the instant petition have been appointed on contract basis in different Labour / Worker Colonies & Community Centers since 2011& onward and have been given extension till June, 2018 by WWB in its 85 meeting, however , they are seeking regularization on the analogy of order dated 8.2.201 1 whereby other employees have been regularized.
WP No. 3668-P/2016.
Petitioner was appointed as Senior Clerk BS-7 on 29.3.201 1, on contract basis, and vide order dated 20.2.2012, was regularized, but later on excluded from the regularized list of employees, hence the petition for regularization.
WP No. 3659-P/2016.
Petitioner through the instant petition seeks declaration to the effect that he has been appointed after due process of law, in a prescribed manner , therefore, the respondents be directed to place his name in the Seniority List of confirmed employees and circulate the same as per rules; with further prayer for release of salary withheld for the last seven months.
Nayyar Zaman & Mst. Najma, petitioners were appointed as Principals, on contract basis vide order dated 21.12.2012 & 14.1.2013 respectively, which was extended from time to time, however on 21.9.2016, one Mr. Arshad Hussain & Musarrat Jabeen, were appointed on acting charge basis as Principal against the post of petitioners, and petitioner were relieved, hence the petition for regularization.
WP No. 2554-P/2017.
Petitioner was appointed as Teacher 13S-14 vide order dated 11.2.2012, on contract basis, however, on 2.5.2013; he was downgraded to BS-9, as Lab Assistant and later on stopped his salary and declared him as Black List, hence the petition.
WP No. 904, 929, 996,1072, 1084, 1102, 1169-A/2016.
Petitioners of the instant petition have been appointed on different posts through different advertisements on contract basis, and since then are continuously performing their duties on their respective posts of appointments.
On 21.8.2015, petitioners through representative submitted application for regularization, but inspite of regularization respondents have constituted Rationalization Committee and withh eld their salaries since March, 2016.th d st th Petitioner of the instant petition was appointed on 18.1.2013, as Elementary Teacher 13S-14 on contract basis for a period three years, but was terminated on 19.7.2013, however, on 19.11.2013, was re-instated. On 14.2.2014, all appointments were stand cancelled, which was withdrawn in 76 meeting held on 22.9.2014, vide notification dated 3.10.2014, and since then petitioner is performing her duty regularly, but till November, 2015 salary of petitioner has been withheld without any reasons, hence the petition for regularization as well as salary.
WP No. 818-D/2016.
Petitioner of the instant petition was appointed as Principal BS-7 on contract basis vide order dated 21.1.2013 and since then he performing his duty with devotion, but without any reasons respondents have stopped his salary from June 2013 to August 2015 and March 2016 up till now, against which approached the competent authority, but in vain, hence the petition for regularization as well as salary.
WP No. 784-D/2016.
Petitioner of the instant petition was appointed as Subject Specialist BS-17 on contract basis for a period three, however on 19.7.2013, she was terminated, and on 7.8.2013 was re instated, and since then she is regularly performing her official duties, but since March, 2016, she has not been paid her salary; rather subsequently abstained from duty.
WP No. 804-D/2016.
Petitioner was appointed as Junior Instruc tor BS-14 at Matric Tech Program (Female) DI Khan for a period of three years and received her salary till 31.5.2016, but thereafter respondents have stopped her salary and abstained her from duty , hence the petition for regularization and payment of salary .
WP No. 498-D/2016.
Petitioner through the instant petition seeks regularization of his service as Commerce Teahcer BS-14 at Working Folk Grammar School, DI Khan against the newly created vacant post and release of his monthly salary with effect from 1.4.2014.
WP No. 568-D/2015.
Petitioner of the instant petition was appointed as Teacher BS-14 in Working Folk Grammar School DI Khan-II (Female) on contract basis vide order dated 21.1.2013, was terminated on 25.9.2013, which was subsequently withdrawn /cancelled on 13.11.2013, however , on 14.2.2014, the re instatement order was cancelled, which was challenged before this Court in WP 305-D/2014. During the proceedings, petitioner was reinstated on 14.10.2014 and since then she is performing her duties but respondents are not paying her salary hence the petition for regularization as well as salary .
WP No. 1022, 3953 4376-P/2016, 507, 713, 746, 781, 818, 819-B/2016.
Petitioners of the instant petition are teaching and non-teaching staff of Worker Welfare Board, who were appointed on contract basis for a period three years which was later on cancelled on 28.4.2014. On 3.3.2015 overage, less qualified and fake degree holders were excluded and their contract was extended to 30.6.2016, coupled with agreement with Minister of Manpower & Labour for their regularization, but despite that vide minutes of 81 meeting dated 30.12.2015, the Worker Welfare Board, has constituted rationalized committee for rationalizing the staff, hence the petition in hand for regularization.
WP No. 181 & 149-B/2017.
Jahanzaib Khan, Bismillah Jan & Ahmad Ali Khan, petitioners were appointe d on 24.1.2012, 20.2.2012 & 13.5.201 1, respectively and accordingly they took over the charge, but subsequently , were restrained from duty and placed in the black list, hence the petition.
WP No. 948, 942, 2694, 4125 & 4734-P12016.
Petitioners have prayed that they have been validly appointed against the mentioned post on contract basis and on the recommendation of selection committee were regularized on successful completion of probation period and as per decision of the Worker Welfare Board, acts omissions of the respondents in still treating the petitioners as contract employees and stopping their salary is illegal, unlawful, in violation of law against the express provision of law, Worker Welfare Fund Ordinance, 1971 and the Rules there-under and thus of no legal effect, therefore, the petitioners are entitled to be treated as regular employees and pay of the posts.
WP No. 4256 -P/2016.th st Petitioner of the instant writ petition was appointed in teaching cadre in BS-14 on contract basis for a period of three years which was extended from time to time and has served for considerable length of five years, for which petitioner deserve regularization but despite several applications respondents paid no heed, hence the petition for regularization.
WP No. 4735-P/2016.
Mst. Ruclia Bibi, petitioner was appointed on 25.4.2011 and later on was promoted to BS-16 on the recommendation of Departmental Promotion Committee. On 28.6.2012, petitioner alongwith contract employees were regularized in its 64 meeting held on 17.6.2011, and drawn her salary from regular budget since august 2016, but thereafter salary of petitioner has been stopped without any reasons for which petitioner submitted applications, but of no avail, hence the petition.
WP No. 4514-P/2017.
Petitioner i.e All Pakistan Workers Welfare Board Employees Union (CBA) throu gh its President have filed the instant writ petition for regularizing the services of all employees union on the criteria of Governing Body in its meeting 109 held on dated 7.2.201 1.
WP No. 130 -B/2014 & 635-B of 2015.
Petitioners of both the writ petitions have asked for directing the respondents to approve policy guidelines for timely disposal of their grievances with further prayer of declaring the act of placing the petitioners Surplus Pool as illegal, void and of no legal effect by directing the respondents to adjust them on their respective posts of appointment. WP No. 305, 571-AJ2015 & 438-D/2015.
Through the writ petitions 517-A/2015 & 438-D/2015, petitioners have asked for promotion to the post of Principal on the ground of seniority cum-fitness / 50% promotion quota while through writ petition No. 305-A/2015, petitioner has asked for implementation of notification No. FD/SO(FR)10- 22/2014 dated 20.5.2014 whereby certain posts including the post of petitioner have been upgraded.
WP No. 1358/2011 & 1292-P/2017.
Through writ petition petitioners who are 25 in numbers have asked for implementation of minutes of the Worker Welfare Board regarding promotion of the teaching staff of working Folks Grammar School held on 26.5.2008 & 27.5.2008 and to allow promotion to BPS-16 to petitioners with further prayer of arrears in higher scale since order dated 10.7.2009 & restoration of office orders dated 14.6.2010 whereby BS-17 was allowed to the petitioners with arrears / benefits; while through writ petition No. 1292-P/2017 petitioner has asked for promotion to BS-11 and allowing its benefits / fixing of pay
4. Comments were called from respondents which they furnished and negated the stance of petitioners.
5. We have heard learned counsel for the parties and perused the available record.
6. Before dilating upon the merits of the writ petitions it would be imperative to go through the judgment of the apex Court, which was passed in number of civil appeals, when these writ petitions were held not maintainable, and the apex Court while remanding the matter to this Court has held in its judgment dated 14.4.2016, which reads as under:-
7. "In view of this legal position, we are not inclined to accept the plea of the learned ASC, appearing for AG.
ICPK rather we are of the considered view that his contention is based on entire misconception and similarly the learned Bench of the Peshawar High Court landed in a field of illegalities, ignoring this important legal aspect of the case. Probably no proper assistance was given to the High Court at the time of hearing of the constitution petitions of the appellants and it was perhaps for this reasons that the learned Bench of the High Court failed to take notice of it.
8. Even from another angle, after going carefully through the various provisions of the workers Welfare Fund Ordinance, particularly , S. 11-A the Workers Welfare Boards were constituted, which inter alia provides:- "11A. Constitution of Workers Welfare Boards.--(1) Where an allocation is made from the Fund to Provincial Government, any agency of the federal government hereafter in this chapter referred to as the agency or a body corporate under clause (a) of section 10, such provincial government, agency or, as the case may be, body corporate may, by notification to the official Gazette, constitute a Board to be known asth th worker welfare board, hereafter in this chapter referred to as the board for the efficient management and administration of the allocated money and the projects or other measures financed by such money .
(2). A board consist of.-- (a). A chairman who shall be, in the case of a Board appointed.--
(i) By a Provincial Government, secretary to that Government in the department dealing with matters relating to labour welfare; or (ii). by an agency or a body corporate, such officer as the federal government may appoint; and (b). Not more than nine other members to be appointed by the Provincial Government, agency or, as the case may be, body corporate of whom.-- At least two shall be appointed from amongst the employers; and (ii). At least two shall be appointed from amongst the workers.
(3). The members of a Board other than the Chairman shall hold office for such period and on such terms and conditions as may be determined by the Provincial Government, agency or, as the case maybe, body corporate.
(4). No act or proceedings of a board shall be invalid by reasons only of the existence of a vacancy in, or defect in the constitution of, the Board."
While u/s 11-B of the Ordinance ibid, the Provincial Workers Welfare Board has been described in the following terms:- "11B. Board to be a body corporate, etc.-{1) The Board shall be a body corporate by the name notified by the Government, agency or, as the case may be, body corporate cons tituting it, having perpetual succession and a common seal with power, subject to the provisions of this Ordinance, to contract, acquire hold and dispose of property, both movable and immovable, and shall by the said name sue or be sued.
(2). The head office of the board shall be at such places the provincial government, agency or as the case may be, body corporate constituting the board may by notification in the official gazette, apply .
(3). The Chairman of the Board shall be its chief executive and may appoint, a Secretary and such other staff on such terms and conditions as the board may sanction (with the previous approval of the Governing Body)
(4). Subject to sub-section (3), all decisions of the Board shall be expressed in terms of the opinion of the majority of the members of the board present in a meeting and, in the even t of an equality of votes, the Chairman shall have a second or casting vote.
(5). The provincial government, agency or , as the case may be, body corporate may issue directions to the board constituted by it regarding matters of policy including matters relating to scheme made under clause (a) of section 1 1C.
Provided that if a difference arises as to whether a direction relates to a matter of policy , the decision of the federal government shall be final.
(6). A casual vacancy in the office of a member shall be filled, as soon as may be, by the nomination of another person and the person nominated to fill such vacancy shall hold office for the unexpired terms of his predecessor."
Similarly , under the provisions of S. 11-C the Board was empowered in specific and also in general terms to do any other thing necessary for, connected with or incidental to, discharge of its functions under this Ordinance or the rules or scheme made thereunder .
9. After the direction and approval of the Federal Government the Workers Welfare Board of each Province including the KPK (the then NWFP) adopted the statutory Rules of 1997, enacted by the Federal Government and for comprehensive management of the administration of the allocated money and the projects or other measures financed by such money service of the employees, their terms and conditions of service etc. the workers welfare board passed the regulations with approval of the Provincial Government and because of the powers conferred on it by the Rules of 1997.
10. Leaving aside the above legal position for a while, after constitution (Eighteenth Amendment) Act, 2010, which received assent of the President on April 91 2010 and was promulgated, issued and published in the extraordinary gazette on 28 April, 2010, the Ministry of Labour , all wings thereof and the attached departments to the Ministry of Labour , on the abolition of the Concu rrent Legislative List, stood transferred, devolved upon and vested in the Provincial Government with rights and liabilities, assets and the employees however , as several Ministries stood vested under the Constitutions (Eighteenth Amendment) Act, in the Provincial Governments therefore, a machinery provision was provided in sub- Articles (6), (7), (8) & (9) of Article 270-AA of the Constitution of the 1973 to practically give effect to new scheme of devolution, a high power Commission was constituted in well planned manner .
To understand the true import of the above provisions the same are reproduced herein blow:- "270-AA( 1)...
(6). Notwithstanding omission of the Concurrent legislative list by the constitution (Eighteenth Amendment) Act, 2010, all laws with respect to any of the matters enumerated in the said list (including Ordinances, Orders, rules, byelaws, regulations and notifications and other legal instruments having the force of law) in force in Pakistan or any part thereof, or having extra-territorial operations, immediately before the commencement of the constitution (Eighteenth Amendment) Act, 2010, shall continue to remain in force until, altered, repealed or amended by the competent authority.
(7). Notwithstanding anything contained in the Constitution, all taxes and fees levied under any law in force immediately before the commencement of the constitution (Eighteenth Amendment) Act, 2010, shall continue to be levied until they are varied or abolished by an Act of the appropriate legislature.
(8). On the omission of the Concurrent Legislative List, the process of devolution of the matters mentioned in the said list to the Provinces shall be completed by the thirtieth day of June, two thousand and eleven.
(9). For purpose of the devolution process under clause (8), the Federal Government shall constitute an implementation commission as it may deem fit within fifteen days of the commencement of the Constitution (Eighteenth Amendment) Act, 2010."
11. The above provisions of sub-Articles (6), (7) and (8) on plain reading leave nothing in doubt nor it is open for debate that all laws made by the Federal Government / Competent authority, Ordinances passed the orders made, rules, laws, byelaws, regulations and notifications issued were provided protection, till the expiration of sunset, i.e 30 June 2011 and for the implementation of the devolution process a Committee of the eminent Senators, headed by the incumbent Chairman was notified as Implementation Commission, which was tasked to implement the devolution plan with full effect by the target date, mentioned above. The commission in its report, duly published and available on its website devised strategic plan to achieve the task, given to it by the target date.
12. Under the head-note, Recommendations of the Commission for the Third Phase of Devolution, recommendations were made for winding up of 5 Ministries in the third and final phase of devolution, transfer of provincial subject to the provinces, which includes the Ministry of Labour and Manpower, with all its assets and liabilities including the laws made, rules enacted, notifications etc issued, unless amended by the appropriate legislature of the Provinces. The Commission held sixty eight meeting from May 5, 2010 to June 26, 2011, out of which four were chaired by the then Prime Minister and completed its assigned task by the cutoff date of June 2011, set in the Eighteenth Amendment to the Constitution.
13. The Commission during the third and final phase of devotion also endorsed a new industrial regulations Act, for the Federal Capital while the Provinces promulgated their own Industrial Laws through their respect Provincial Legislatures. The implementation Commission, after consultation with the Provinces, their Chief Ministers, and Chief Secretaries placed the report before the Federal Cabinet, attended by the four Chief Minister of the four Provinces and the Federal Cabinet in its meeting held on December 1, 2010, approved the recommendations of the implementation Commission with regard to devolution of five Ministries on the Provinces, in the first phase, the devolution of five Ministries and partial devolution of six Ministries in the second phase while its report with regard to the devolution of remaining seven Ministries in the third phase (which includes the Ministry of Labour and Manpower) were approved by the Federal Cabinet in its meeting held on June 28, 2011.th th
14. It is evident from the report of the Commission that the Federal Cabinet / Government approved the adjustment and repositioning of a total number of surplus employees of this Ministry, numbering 61, 231 in various division without any retrenchment or lay off. Before the Constitution (Eighteenth Amendment) Act, Ministry of Labour was within the domain of the Federal Government and once under its approval and direction the Workers Welfare Board has adopted the rules, regulating the terms and conditions of services of its employees then after above constitution amendment, by now, these rules are exclusively within the domain of the Provincial Government / Workers Welfare board and unless the same is amended, repealed, modified or re-enacted under the changed Constitutional scenario, the same have a binding statutory force and the services of the employees of the workers welfare board i.e the appellants and others, is squarely and undoubtedly regulated by the said rules, because till date these rules have neither been repealed nor amended in any manner by the Provincial Government or for that matter by the Provincial Assembly of the KPK.
15. So far as the contractual employment is concerned, not only in view of the statutory rules adopted, the scope of the contractual employment has been considerably narrowed down while on the general principles too, the employer under the statutory rules cannot put the employee on contract basis for an unreasonable longer period when the appointment is made against a permanent vacancy / sanctioned post as this Court has deprecated this practice time and again, therefore, the plea taken by the government of KPK is absolutely misconceived one and we are unable to endorse it because it will perpetuate injustice to the employees, majority of whom are females and attached to the education core of the worker welfare board.
Expulsion of these employees appears to be not based on bona fide but it create a room for favouritees to accommodate them because sanctioned posts unless abolished by the competent authority cannot be kept vacant and more particularly, in the education sector. In the case of Fiaqat Hussain and others v. Federation of Pakistan thr. Secretary Planning and Development Division, Islamabad (PLD 2012 SC 225) this court has held as follows:- "Art. 25-A--right to education--Education plays an important role in the successful life of an individual.
Generally, education plays an important role in the successful life of an individual. Generally education is considered to be the foundation of society, which rings economic wealth, social prosperity, political stability and maintaining health population. Further progress of society is stopped in case of deficit of educated people, who enjoy respect among their colleagues and can effectively contribute to the development of their country and society by inventing new devices and discoveries. Islam is a scientific religion emphasizing on the need of scientific inquiry. While quoting several verses of Holy Quran and the Ahadith of Holy Prophet Hazrat Muhammad it was concluded that in the success of individual and the society as whole the education plays a very important role and is considered to be foundation of the society. In almost all societies, receiving education and attending school is necessary to achieve success. It is the key to move forward and ultimately succeed in life. The knowledge and wisdom can only be gained through the experience of learning. It is important to note that the teachers are the most important factors for an innovative society because teachers' knowledge and skills not only enhance the quality and efficiency of education but also improve the prerequisites of research and innovation."
In the Constitution (Eighteenth Amendment) Act, Articles 25-A was added which identifies the education as one of the fundamental rights of the people. The same is reproduced below:- "25A. the state shall provide free and compulsory education to all children of the age of five to sixteen years in such manner as may be determined by law ."
Napoleon Bonaparte said, "Given me educated mothers, I shall give you educated nation."
16. Taking a glance of the developed countries, the only key of their success is indebted to formal and informal education and scientific based researched skill and knowledge.
17. Keeping in views the above constitutional command contained in Article 25-A neither the Federal Government nor the Provincial Government shrug off this constitutional obligation to fold off their hands, avoiding their responsibility to arrange for the compulsory education and for importing skill, knowledge and education. Teachers are essential limb of the system and they performing a noble job, cannot be treated in this manner, as has been done in these cases.
18. There is another grievance of the appellant that they were sacked by the Caretaker Government, which was having a limited mandate to organize, arrange and hold general elections. Of course they may perform day to day affairs of the Government, which are essential for the performance of duties for their institutions, however, in views of the law laid down in the case of Khawaja Muhammad Asif v. Federation of Pakistan (2013 SCMR 1205) the views was held to the effect that except in extraordinary circumstances, the caretaker Government / Cabinet had to confine itself to run day to day administration of the State and to take decisions, required for orderly running of the affairs of the State but the decisions, having far reaching effects should only be taken by the elected government, having the mandate to perform extraordinary functions of achieving the most noble object i.e the welfare of the people, for which purpose it is being chosen. This plea of the appellants sounds highly reasonable and being based on principles cannot be ignored.
19. For what has been discussed above, from constitutional, and all legal angles we are of the considered views that the services of the appellants are fully protected by the statutory rules, referred to above in the earlier para of the judgment and any invasion on their service benefits and rights by the authorities entitle them to approach the High Court through constitution petition (writ petition), thus, the impugned judgment of the Peshawar High Court, Peshawar operates on ill founded and misconceived propositions of law, dismissing their writ petitions, and because it has not decided the cases of the appellants on merits, therefore, in view of the above guidelines all the appeals are allowed in the above terms and remanded to the learned High Court to re-decide the same on merits, keeping in mind the guidelines stated above.
7. The ratio decidendi of the above judgment so remanded by the apex Court is that the Worker Welfare Fund (Employees Service) Rules, 1997 are statutory in nature and are applicable to the cases / instant writ petitions with all force. In all the cases, petitioners are the employees of Worker Welfare Board, and according to Rule-13 of the Rules 1997 for the purpose of initial appointment, it reads as under:-
13. Procedure for initial appointment. -- (1). Initial appointment to posts in pay scale-19 and above shall be made by the appointing authority on recommendations of the Selection Board.
(2). Initial appointment to posts in pay sacle-18 and below, shall be made by the appointing authority on recommendations of the Selection Committee concerned.
(3). No person, who is not a citizen of Pakistan, shall be eligible for appointment to any post; Provided that the requirement may be relaxed by the Chairman in suitable cases.
(4). Persons married to a person who is not a citizen of Pakistan, shall not be appointed to a post in the Fund except with the prior approval of the Chairman.
(5). A candidate for initial appointment must possess the educational qualification and experience and must be within the age limit laid down for the post in Part-II of appendix-2 to these rules; Provided, that maximum age limit may be relaxed up to give years by the appointing authority if no suitable candidate within the prescribed age limit is available.
(6). The vacancies shall be advertised in the national press."
8. According to the above quoted rule, the appointing authority in BS-18 & below is Secretary as defined in rule-2 and going through the appointment orders of almost all the petitioners, the same have been issued / signed by the Director Education / Secretary , Khyber Pakhtunkhwa, Worker Welfare Board, Peshawar being the authority , and all the petitioners are Pakistani Nationals, their educational qualification, experience etc are not disputed, in almost all the cases. Even otherwise, if anyone is not qualified for the post due to education qualification, he can be removed by issuing a show cause notice etc, in this respect, but nothing is on record till date that any of the petitioner is not qualified / ineligible for the post, which he is holding. As regarding the age limit, majority of the petitioners are within age, and some of them, who were overage, they have placed on record age relaxation certificates, duly approved by the competent authority. According to Rule-I3 subrule-6, record suggests that proper advertisement was made and in this respect, in number of writ petitions, petitioners have annexed the advertisement so made, but the respondents in their reply and even at the time of arguments are of the view that entire record of selection was destroyed / burned, but by whom?. The respondents have not denied in explicit that there was no advertisement and the advertisements so annexed by the petitioners in individual writ petitions is a bogus document, which we cannot presume that the same is a bogus document, because it do contain the date and a complete print of said newspaper. In all the appointments orders, annexed with the writ petitions, it is specifically mentioned that "on the recommendations of selection committee" which further legalized the appointment orders as per Rule-13 subrule-6, as quoted above. The appointment orders of all the petitioners clearly reflect that the same were issued in accordance with the provision of Rule-13. The plea of the respondents that the antecedents were not verified at the time of appointment also do not hold the field, as Rule-16 provides for verification of the character and antecedents of the candidates and it could be done at any time, during the service.
9. It is an admitted fact that all the petitioners were appointed on contract basis and for that purpose, Rules-30 and 31 of the Rules ibid are very much clear and nothing contrary to the said provision has been pointed out by the respondents. We have before us an agreement dated 12.5.2015, so reached between the duly elected representative of the petitioners and Minister for Labour and Manpower , Khyber Pakhtunkhwa, regarding regularization of all teaching and nonteac hing staff. The same was endorsed vide notification No. 1-1N-52/2657-62 dated, 13.5.2015 with the recommendations for regularization of all contract employees before 30.6.2015 by the Secretary Worker Welfare Board, Khyber Pakhtunkhwa, Peshawar , which also reflects that not only, who were appointed in the previous regime, the incumbent Secretary is in favour of regularization of the employees / petitioners because they were I are eligible, competent and fit for appointment and their services and efforts are acknowledged.
10. We have before us, document / notification dated 13October , 2015 which refers to a meeting held in "Bani Gala", in this respect we are afraid that what is "Bani Gala", neither there is any Government office nor declared office and how and why these meetings were scheduled over there giving political covers to the officials meetings, however , the said notification would reflect that in that meeting Secretary Labour Department / Chairman Worker Welfare Board, Khyber Pakhtunkhwa, Secretary Worker Welfare Board, Khyber Pakhtunkhwa, Secretary to Chairman PTI, and three representative of contract employees union were present and decided as under:- "After comprehensive deliberations, the meeting arrived at the following decision / way forward subject to finalization of recommendations of the rationalization committee constituted by the governing body worker welfare fund (Islamabad) in its 132" meeting held on 1.10.2015 to look into the affairs of the contract employees and outcome of the standin g committee of the Senate of Pakistan on the same issue which will be held on 15.10.2015.
As decided in an earlier agreement signed between the Minister for Labo ur and the striking contract employees representatives, the recom mendation regarding regularization / extension of the contract for further period of three years with effect from 31.12.2015 of those employees who would be found eligible after fulfillment of the following codal formalities will be sent to the governing body WWF , Islamabad for final decision before 30 November , 2015: a. All their testimonials will be verified from the concerned Boards / Universities from where they have obtained certificates / degrees. b. Those contract employees who have less / irrelevant qualification, third division prescribed qualification, fake degrees and or overage on the date of their appointment will not be recommended for extension / regularization in contract period."
11. Record is suggestive that on 2.6.2011 in 112th meeting of the Governing Body of the Worker Welfare Fund, approval of 18 females schools in the province of Khyber Pakhtunkhwa was granted ' in order to bifurcate co-education and in this respect for newly created 18 females school rupees 1927.00 million as estimate charges were approved in the 126th Meeting of the Governing Body held on 22.8.2014. Likewise in 131st meeting held on 10th September, 2015, rupees 1746.00 million in order to fulfill the other fiscal demands of all teaching and nonteaching staff was given. Cutting it short in 137th meeting held on 30.3.2017, it was decided to further extend the contract of the petitioners beyond 30.6.2017 of 2251th th employees and finally in the second Special Committee meeting of the Worker Welfare Fund, held on 20.10.2017 it has been decided after detailed discussion and due deliberation with the majority decision as under:- a. "The Workers Welfare Board, KP may provide certificates regarding the performance of its technical institutes and the employees who met the eligibility criteria of their respec tive posts at the time of their appointment. Subject to provision of those certificates, the Special Comm ittee recommended that the formal Ex-Post Facto technical institutes of WWB KP i.e Matric-T ech, Mono-T ech and Poly-T ech which were not earlier approved explicitly . b. The Chairman, WWB KP, being the Competent Authority , may extend the contracts of those technical institutes' employees who fulfill the criteria of recruitment at the time of appointment for a period of two
(02) years. The case regarding their regularization may be decided by the WWB KP subsequently .
Whereas, in the first meeting of Special Committee held on 12.10.2017, it was decided as under:- "In light of the data approved by WWB, KP and the reports of the Review Committee and Appellate Committee of WWB, KP all 48 schools are performing well, therefore Ex-post Facto approval may be taken from Governing Body of the Fund in respect of the schools which were functionalized without expressed approval of the Governing Body, though by allocating funds for running these schools for six years, the GB already extended implied approval.
The contract employees who fulfilled recruitment at the time of appointment, like educational qualification, age relaxation, experience etc, are recommended for regularization to the Governing Body for approval."
12. Even otherwise, we have before us document showing, few referred of Taj Wali Said, Deputy Director BPS-18, Humara Ali, Assistant Director BPS-17, Shehriyar Javed, Steno Typist, Majid Khan, Computer Operator , Akbar Rehman, Junior Assistant and Zubair Khan, who were appointed alongwith the petitioners, but their services were regularized at head offices of Worker Welfare Board, Khyber Pakhtunkhwa. There are certain employee's i.e Muhammad Uzair , Assistant Director BPS-17, Naveed Iqbal, Assistant Director BPS-17, Azam Zahid, Assistant Director BPS-17 etc, who were regularized and at present have been sent on deputation to other departments from Worker Welfare Board, as well. Likewise, the contract employees, still on contract have been sent on deputation few such names are Qudratullah, Assist ant Director , Imam Khan, Assistant Direc tor, Muhammad Zeb, Assistant Director , Fahim Khalil, Assistant Director , Mufti Muhammad Yavob, Assistant Director and Fazli Rehman Superintendent. In addition to these individuals, we have before us record showing that the individual, who have been regularized in different grades without the approval of any Governing Body and they are still the regular employees of the department. Few such names and their designations are Shah Zulqarnain, Assistant Director , Shahid Gul Wazir, Assistant Director , Shahab Akhtar Ali, Assistant Director , Sajjad Ahmad, Assistant Director , Rizwan Khan Kundi, Assistant Director and Shahid Haider Assistant Directo r. All these appointment and regularization confirms the discrimination done to petitioners.
13. The matter clinches over here as there are 48 sanctioned schools and the posts against which petitioners, admittedly are performing their duties and claiming their regularization are the sanctioned post. The other group of employees whose services were terminated during this period came up for hearing before this Court and by allowing all the connected writ petition in consolidated judgment rendered in WP No. No. 1392-P/2013, titled Niamatullah versus Chairman Worker Welfare Board & others, have been re instated. Since, the 48 numbers of schools are sanctioned and the petitioners fulfill recruitment criteria at the time of appointment, there is no allegation of deficient educational qualification etc and have been recommended for regularization, therefore they have the preferential right to be considered as regular employees. Yes, the department reserved the right to apply the formula of retrenchment as and when required. Besides this it is the prerogative of the employer to issue show cause notice / explanation to any of its employee, if found deficient on the requisite qualifications, experience or any other lacking. The petitioners have served the institutions since 2009 onwards and there is no complaint whatsoever, regarding performance, efficiency and conduct and as such, they deserved the regularization against the post which they are holding, teaching cadre or nonteaching cadre.
14. For the purpose of promotion Rules-18 to 22 are applicable and after regularization the claims of those petitioners who fall within the promotion zone be placed before the competent authority for a decision in this respect, but within a period of two months. Terminating the employment of some of the petitioners before and after the meeting held on 30.6.2015 & 9.3.2017, wherein approval for extension of 2251 is also, illegal unlawful besides being unjustified. The plea of taking cognizance by the NAB authorities and taking action against the then Chairman / Secretary and in-retaliation taking action against the petitioners also seem to be mala fide.
15. The plea of respondents that initial appointment was defective is not justified as in the case of Mian Tarici Javed versus Province of Punjab through Chief Secretary and others, reported in 2008 SCMR -598 (c), it has been held as under:- "--S. --West Pakistan General Clauses Act (VI of 1956), S. 20--appointment in violation of rules--V alidity-- Such appointment would be against the policy of law--despite such legal defect initial appointment, principle of locus poenitentiae would not permit competent authority to undo same after a long time and remove incumbent from service."
Exactly in the similarly circumstances, the apex Court in its judgment titled Muhammad Shoaib and 2 others versus Government of Khyber Pakhtunkhwa etc, reported in 2005 SCMR-85 , has held as under:- --Art. 212(3)--Leave to appeal was granted by Supreme Court to consider; whether the appointments of civil servants were illegal and void ab initio being against the prescribed rules; and whether the Government having first appointed the civil servants without observing the codal formalities, could subsequently turn around and say that such appointments were illegal.
(b) North-W est Frontier Province Service T ribunals Act (I of 1974)-- --S. 4--Removal from service--Audi alteram partem, principle of-- Applicability--Illegal act of authorities-- Effect--Civil servants were appointed in Agriculture Department without any advertisement and test--Civil servants were removed from service without any show-cause notice on the ground that their appointments were illegal and against the prescribed rules--Service Tribunal dismissed the appeal -- Validity-- Authorities were bound to issue show-cause notice to the civil servants in that regard--If such notice would have been issued, the civil servants might have come out with the defence that the appointments were not illegal and that the illegality, if at all, had been committed by the department itself for which action the civil servants could not be penalized---Civil servants in circumstances, were condemned unheard and were made to suffer for the illegality committed by the Government itself--Principle of natural justice and audi alteram partem, was violated and non-issuance of notice could not be ignored unless a fair opportunity of representing their point of view had been given to the civil servants at one stage or the other--No such opportunity was given at any stage before termination of service---Supreme Court required that action be taken against those who were guilty of making illegal appointments and deprecated that the same authority committed illegality itself not once but twice; one at the time of appointment and second at the time of removing the civil servants from service-- Authority could not be allowed to punish others for the illegal acts of its own--Order of removal from service of civil servants was declared void as well as violative of the principles of natural justice, locus poenitentiae and estoppel --Judgment passed by Service Tribunal was set aside and civil servants were reinstated in service with back benefits--Appeal was accepted.
(c) Good governance-- --Change of administration--Non-endorsing of action of previous administration--Illegal appointments withdrawn by new administration - Effect --Government is perpetual entity--Heads may change but government does not--Action once taken by one administration is to be followed by the changed administration more particularly when it involves employment of people--Thousands of people are rendered jobless and tens of thousands of families are rendered destitute simply because some subsequent administration did not endorse action of previous administration--People in present times are rendered jobless in order to accommodate certain other people of their own choice as such the same is tantamount to creating false sense of achieving employment levels--Action is required to be taken against those who are guilty of making illegal appointments.
Again in the case of Collector of Customs and Central Excise Peshawar and 2 others versus Abdul Waheed and 7 others, reported in 2004 SCMR -303 the apex Court has held as under:- ---S.4---Constitution of Pakistan (1973), Art.212(3)--Service of ad hoc appointees, termination of--Political appointments--Non compliance of procedure for appointment--Lapses on the part of Appointing Authorities-- Services of civil servants were terminated for the reason that they were not appointed on merits rather the appointments were made due to political and external pressures--Termination order was set aside by Service Tribunal and the civil servants were reinstated on the ground that the Appointing Authority, at no stage, had applied its independent mind at the time of initial appointment and carried out the directives of other Authorities--Plea raised by the Authorities was that the' appointments of civil servants were made without observing prescribed procedure -for appointment and they were no more required being ad hoc appointees -Validity--Appointments of civil servants were made by Competent Authority--If prescribed procedure was not followed by the concerned Authority , the civil servants could not be blamed for what was to be performed and done by the Competent Authority---Competen t Authorities should be held responsible and liable for the lapse on their part--Civil servants had put in more than ten years of their service and had lost all their chances to get fresh appointment elsewhere as they stood disqualified being overage--Supreme Court noted it with concern that in case the civil servants were to be removed then the same would amount to hitting them hard creating problems for the society at large considering each of the civil servants being a bread earner of his family---Appointing Authorities had been acting mechanically without application of mind, therefore, the civil servants could not be made to suffer for whimsical and mechanical acts of the Authorities--Supreme Court declined to interfere with the judgment passed by Service Tribunal as the act of the Authorities was not in accordance with law---Authorities had terminated the services of civil servants without any just and legal cause--Leave to appeal was refused.
Likewise, in the case of Secretary to Govt. of Khyber Pakhtunkhwa Zakat / Social Welfare Department Peshawar versus Saadullah Khan reported in 1996 SCMR-413 and Fuad, Asadullah Khan versus Federation of Pakistan etc reported in 2009 SCMR-412 it has been held that "irregularities committed by the department during selection / appointment, appointees could not be condemned subsequently with the change of heads of department or at other levels. Government was an institution in perpetuity and its orders could not be reversed simply because the heads had changed Such act of the departm ental authority was all the more unjustified when the candidate was otherwise fully eligible and qualified to hold the job."
16. Taking guidance of the above precedents, we are of the view that if at all any illegality / irregularities have been committed by the employer, the petitioners could not be made scapegoat and that too due to cognizance by NAB and by now the petitioners had become overage and could not seek employment elsewhere. Petitioners had been denied the right of equal treatment as some of the colleagues placed in similar situation had been extended the benefit of regularization, which was not permissible in view of Article-25 of the Constitution of Islamic Republic of Pakistan 1973.
17. The petitioners cannot be kept for indefinite period on contract. They are supposed to be regularized in service.
The right of employment is the right of livelihood and in this respect the apex Court of the country has observed in the case Dr. Naveeda Taufail and 72 others versus Government of Punjab etc, reported in 2003 SCMR-291, as under:- --Ss. 2(i)(a) & 10--Constitution of Pakistan (1973), Art.25--Ad hoc appointment, regularization of-- Principle of equality -Applicability--Petitioners were appointed as lecturers by Provincial Government on ad hoc basis--Despite having been appointed for many years, the Provincial Government declined to regularize the. posts of petitioners, whereas the similar appointees by Federal Government had already been regularized--Petitioners contended that non-regularizing of the posts was against the principles of equality as contained in Art.25 of the Constitution --Validity--Petitioners being employees of Provincial Government could not claim regularization as of right in the light of policy of Federal Government but the principle of equality as embodied in Art.25 of the Constitution would demand that the petitioners while facing similar circumstances should be treated in the similar manner--Principle of equality would impliedly be attracted in favour of the petitioners as they being ad hoc lecturers in the Provincial Government would stand at par with that of the ad hoc employees of Federal Government and it would be fair, just and proper to consider the cases of petitioners for regularization--Ad hoc appointments having created a legitimate expectancy in the minds of petitioners for their retention on regular basis, Supreme Court directed the Provincial Government, while seeking guidance from the scheme of regularization of ad hoc employees of Federal Government, to initiate the process of regularization of petitioners through Provincial Public Service Commission-- Supreme Court further directed that in case any of the petitioners was not found suitable by the Public Service Commission, he would not be retained in service--Petition for leave to appeal was, converted into appeal and was allowed.
The process of education is ongoing and no one would be permitted to close down the operational schools rather the Worker Welfare Board would be encouraged to increase the number of schools, in view of the present rate of literacy in the country and especially in the Province of Khyber Pakhtunkhwa.
18. While allowing all the writ petitions, all the petitioners who are in service stand regularized and those whose were restrained / dispensed with but appointed on contractual basis stand reinstated. Petitioners who are seeking promotion their writ petitions are allowed by treating them regular employees and their cases of promotion be deemed to be pending before the appropriate committee for promotion in accordance with the Worker Welfare Fund (Employee Services) Rules, 1997. Order accordingly.