' DOST MUHAMMAD KHAN, J'.--- C.M.As. Nos. 1336/2016 and 1430/16: The appellants are allowed to file additional documents. The C.M.As. Are allowed.
Civil Appeal No, 1109/13: This single judgment shall also decide connected Civil Appeals Nos. 1424 to 1428 of 2014, in which leave was granted on 23.9.2013 and 28.10.2014 to consider whether the learned Peshawar High Court has fallen in error by holding that the appellants in all these appeals were not regulated by statutory rules when on the other hand, the statutory rules, called the Workers' Welfare Board Employees Service Rules, 1997, were framed under Ordinance XXXVI of 1971.
' We have heard the learned ASCs for the appellants, learned ASC appearing for the A.G. KPK and have gone through the record of each case, the provisions of the Constitution, the Ordinance and the rules referred to above.
2. Learned ASCs for the appellants contended with considerable vehemence that Workers' Welfare Fund and thereafter Workers' Welfare Boards, Peshawar were created under the statutory law, called the Workers' Welfare Fund Ordinance, 1971 and thereafter the Federal Government while exercising power conferred by subsection (3) of section 8 of the Workers' Welfare Fund Ordinance, 1971 vide SRO/1193(I)/97, framed statutory rules of service called Workers' Welfare Fund (Employees Service) Rules, 1997, which regulate in a comprehensive manner the services of the employees of the Fund, right from the initial appointment, service benefits during the employment, promotion, posting and transfer, other allied and ancillary facilities and if in some matters these rules are silent, the Government Civil Service Rules shall apply, as is provided therein.
3. The learned ASC for the appellant 'further urged that although in majority of cases the initial appointment order was made on contract basis however, like permanent service/employment the probation period was fixed for one year while majority of the appellants have served the Education Wing of the Workers' Welfare Board, KPK for several years and under the rules, on completion of successful probation period, or to say, the contractual period, the employer could not violate the statutory rules and per rules referred to above, the services stood converted into permanent service/employment and cannot be held to be contractual any more.
4. Syed Arshad Ali, learned ASC appearing for the respondent department was of the view that the Rules of 1997 are undoubtedly statutory rules however, these rules relate exclusively to the employees and, cover their services, who are serving in the Workers' Welfare Fund at the Federal level, therefore, the Workers' Welfare Board, Peshawar by merely adopting or borrowing these rules could not be held to be independently enacted statutory Employees' Service Rules nor they can be applied to the cases of the appellants, unless independent and separate statutory rules of service of employees of Workers' Welfare Board are duly framed and notified with the approval of the Provincial Government.
5. True, that initially the Rules of 1997 were enacted by the Federal Government to regulate the services of the employees of the Workers' Welfare Fund however, the Ministry of Labour, Manpower and Overseas Pakistanis Division, Islamabad vide letter No,WWF(A).2(55)/96 dated 29.11.1997 directed the Workers' Welfare Boards in the Provinces and one of the letter was addressed to the Secretary Ministry of Labour, Government of the then NWFP (KPK) to immediately adapt these rules for regulating the services of the employees of the then NWFP Workers' Welfare Board. Per the decision of the Governing Body, taken in its 37th meeting held on 17.09.1997 adapted these rules.
The commencing para of the letter is reproduced below:- "I am directed to say that Ministry of Labour, Manpower and Overseas Pakistanis has notified the subject rules after getting the concurrence of Establishment Division, Finance Division and Law and Justice Division."
' As there was some delay on the part of the Workers' Welfare Board of the then (NWFP) government, a reminder letter No,WWF(A).2(55)/96/724 was again issued on 21st July, 1997, directing the Secretary Workers' Welfare Board NWFP (now KPK) to explain why the earlier letter was not responded and why the employees Services Rules in the Workers' Welfare Board have not been implemented. In para-2 it was advised as follows:- "2. You are advised to implement these rules from 1st June, 1997. The delay in this regard will create unrest among the employees of the Boards."
' Copies of this letter were also forwarded to (i) The Secretary, Punjab, Workers' Welfare Board, Lahore, (ii) The Secretary, Sindh Workers' Welfare. Board, Karachi and (iii) The Secretary, Balochistan Workers' Welfare Board, Quetta.
6. In response to the above strict reminder, issued by the Ministry of the Federal Government, the then government of NWFP (KPK) vide letter No,WWB.3-3/II/825 dated Peshawar the, 29.7.1997 informed the Federal Government in the following terms:- "SUBJECT:- ADOPTION OF WORKERS WELFARE FUND EMPLOYEES SERVICE RULES 1997 WORKERS'
WELFARE BOARD.
' Reference is invited to your letter No, WWF. (A).2(55)96/724 dated 21st July 1997 on the subject cited above and to inform that this Board had adopted the new Service Rules w.e.f, 1.6.1997."
The above official/public documents establish that it was not mere a simple adoption or borrowing the rules of the Workers' Welfare Funds, enacted by the. Federal Government but the same were adopted and made applicable with clear directions and express approval of the Federal Government in no uncertain terms thus, for all intents and purposes the same had become applicable with full statutory force to the services of the employees of the Workers' Welfare Board of the Province of KPK.
7. In view of this legal position, we are not inclined to accept the plea of the learned ASC, appearing for A.G. KPK 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 Constitutional Petitions of the appellants and it was perhaps for this reason 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, section 11-A the Workers' Welfare Boards were constituted, which inter alia provides:- "RA. Constitution of Workers' Welfare Boards.---(1) Where an allocation is made from the Fund to a 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 in the official Gazette, constitute a Board to be known as Workers' 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 shall consist of---
(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-
(i) 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 may be, body corporate.
(4) No act or proceedings of a Board shall be invalid by reason only of the existence of a vacancy in, or defect in the constitution of, the Board."
' While under section 11-8 of the Ordinance ibid, the Provincial Workers' Welfare Board has been described in the following terms:- "I1B. 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 constituting 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 place as the Provincial Government, agency or, as the case may be, body corporate constituting the Board may by notification in the official Gazette, specify.
(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 1[with the previous approval of the Governing Body].
(4) Subject to subsection (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 event 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 11C: 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 term of his predecessor."
' Similarly, under the provisions of section 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 services of the employees, their terms and conditions of service etc. The Workers' Welfare Board passed the regulations with the 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 9, 2010 and was promulgated, issued and published in the extraordinary gazette on 28th April, 2010, the Ministry of Labour, all Wings thereof and the attached departments to the Ministry of Labour, on the abolition of the Concurrent Legislative List, stood transferred, devolved upon and vested in the Provincial Governments with rights and liabilities, assets and the employees however, as. Several Ministries stood vested under the Constitution (Eighteenth Amendment) Act, in the Provincial Governments therefore, a machinery provision was provided in sub-Articles (6), (7), (8) and (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 below:- "270AA.
(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, bye-laws, regulations and notifications and other legal instruments having the force of law) in force in Pakistan or any part thereof, or having extraterritorial operation, 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 purposes 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, bylaws, regulations and notifications issued were provided protection, till the expiration of sunset, i.e, 30th 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 subjects 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 meetings 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 cut off date of June 30, 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 respectiye 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 Ministers of the four Provinces and the Federal Cabinet 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.
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 Divisions 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 service 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 principle too, the employer under the statutory rules cannot D 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 Workers' Welfare Board. Expulsion of these employees appears to be not based on bona fide but to 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 Liaqat Hussain and others v. Federation of Pakistan through 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 is considered to be the foundation of society, which brings economic wealth, social prosperity, political stability and maintaining healthy 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, Article 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, "Give 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 research skill and knowledge.
17. Keeping in view the above constitutional command contained in Article 25-A neither the Federal Government nor the Provincial Governments shrug off this constitutional obligation to fold off their hands, avoiding their responsibility to arrange for the compulsory education and for imparting 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 view of the law laid down in the case of Khawaja Muhammad Asif v. Federation of Pakistan (2013 SCM R 1205) the view 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 view 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.
' The. CMAs for seeking stay are also disposed of accordingly.