Muhammad Ayub Khan, J.--Through this single judgment, we intend to decide the following four writ petitions, having common question of law and facts:--
(i) W.P. No, 73-D/2016 Salahuddin & 10 others vs. Govt. of KPK, etc
(ii) W.P. No, 05-D/2017 Muhammad Zahoor, etc vs. Govt. of KPK, etc
(iii) W.P. No, 170-D/2016 Abdul Wahab, etc vs. Govt. of KPK, etc
(iv) W.P. No, 13-D/2017 Muhammad lqbal vs. Govt. of KPK, etc.
2. In essence, the case of the petitioners is that they were appointed on different cadres. Their services were terminated despite the fact that the said project was brought on regular budget.
Petitioners being aggrieved of the acts and actions of the respondents, have filed these writ petitions.
3. The respondents filed their para-wise comments wherein they have stated that the petitioners were appointed on different posts in a project and the service contract of the petitioners have been terminated on completion of the project as per terms and conditions incorporated in their contract. They further asserted that in case the project posts are converted into regular budgetary posts, shall be filled in within prescribed rules through the Public Service Commission or the Departmental Selection Committee, as the case may be.
4. The learned counsel for the petitioners submits that under the similar circumstances, the services of the project employees of the same department have been regularized by this Court in W.P. No, 302D/2013, where against the respondents filed appeals, the judgment of this Court was upheld by the august Supreme Court of Pakistan vide judgment dated 20.4.2015 and the review petition filed by the respondent-department was also dismissed vide judgment dated 26.10.2015.
The learned counsel for the petitioners also produced the copy of judgment dated 24.02.2016 of the august Supreme Court of Pakistan, and argued that a number of project employees have been regularized in the light of the judgment of the apex Court quoted above, on the ground that the project wherein the writ petitioners were serving, have been brought on regular budget.
5. As against that, the learned Addl: A.G, representing the State, argued that though the posts were re- advertised as per rules and filled through open competition, and at the moment, there is no vacant post against which the service of the petitioners could be regularized.
6. Arguments heard and record perused.
7. Perusal of the record reveals that initially, the petitioners were appointed in the year 2006/2007 on contract for a period of one year and their period of contract was extended from time to time in the said project, however, their services were terminated on 30.6.2010, due to conversion of the project on regular budget. Record further reflects that although the employees working against the project post were regularized automatically or in the light of the judgment of this Court, the moment development budget was converted into regular side. There is no denial to the fact that the day when the petitioners were in service, the project in which they were appointed, was converted into regular side. We have before us number of judgments on the point which were upheld by the apex Court and accordingly regularization order to the different projects have been made, but the petitioners have been discriminated. The only plea raised by the respondents, is that the ex-project employees have no right of adjustment against the regular post. We have before us the latest judgment of the apex Court dated 24.02.2016 in connected civil appeals, wherein the judgment of this Court have been upheld and the ratio desidendi of the judgment is that all those posts which were converted into regular budget and the employees appointed and posted against those posts, have the preferential right to be regularized. The case of the petitioners squarely falls within the ambit of Regularization Act No, VII of 2009, as they are appointees of 2006/2007 and were in service when said Act was promulgated. The operative part of the judgment of the apex Court in reference to Section 3 of the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009, reads as under:-- "26. We have heard the learned Law Officer as well as the learned ASCs, representing the parties and have gone through the relevant record with their able assistance. The controversy in these cases pivots around the issue as to whether the Respondents are governed by the provisions of the North West Frontier Province (now KPK) Employees (Regularization of Services) Act, 2009, (hereinafter referred to as the Act). It would be relevant to reproduce Section 3 of the Act:
3. Regularization of Services of certain employees---All employees including recommendees of the High Court appointed on contract or adhoc basis and holding that post on 31st December, 2008, or till the commencement of this Act shall be deemed to have been validly appointed on regular basis having the same qualification and experience".
27. The aforesaid Section of the Act reproduced hereinabove clearly provides for the regularization of the employees appointed either on contract basis or adhoc basis and were holding contract appointments on 31st December, 2008 or till the commencement of this Act. Admittedly, the respondents were appointed on one year contract basis, which period of their appointments was extended from time to time and were holding their respective posts on the cut-of date provided in Section 3 (ibid).
28. Moreover, the Act contains a non-obstante clause in Section 4A which reads as under: "4 A. Overriding effect---Notwithstanding anything to the contrary contained in any other law or rule for the time being in force, the provisions of this Act shall have an overriding effect and the provisions of any such law or rule to the extent of inconsistency to this Act shall cease to have effect.
29. The above Section expressly excludes the application of any other law and declares that the provisions of the Act will have overriding effect, being a special enactment. In this background, the cases of the Respondents squarely fall within the ambit of the Act and their services were mandated to be regulated by the provisions of the Act.
30. It is also an admitted fact that the Respondents were appointed on contract basis on Project posts but the Projects, as conceded by the learned Additional Advocate General, were funded by the Provincial Government by allocating regular Provincial Budget prior to the promulgation of the Act. Almost all the Projects were brought under the regular Provincial Budget Schemes by the Government of KPK and summaries were approved by the Chief Minister of the KPK for operating the Projects on permanent basis. The "On Farm Water Management Project" was brought on the regular side in the year 2006 and the Project was declared as an attached Department of the Food, Agriculture, Livestock and Co-. operative Department. Likewise, other Projects were also brought under the regular Provincial Budget Scheme. Therefore, services of the Respondents would not be affected by the language of Section 2(aa) and (b) of the Act, which could only be attracted if the Projects were abolished on the completion of their prescribed tenure. In the cases in hand, the Projects initially were introduced for a specified time whereafter they were transferred on permanent basis by attaching them with Provincial Government departments. The employees of the same Project were adjusted against the posts created by the Provincial Government in this behalf.
31. The record further reveals that the Respondents were appointed on contract basis and were in employment/service for several years and Projects on which they were appointed have also been taken on the regular Budget of the government, therefore, their status as Project employees has ended once their services were transferred to the different attached Government Departments, in terms of Section 3 of the Act. The Government of KPK was also obliged to treat the Respondents at par, as it cannot adopt a policy of cherry picking to regularize the employees of certain Projects while terminating the services of other similarly placed employees".
8. In view of the above, these writ petitions are allowed and the respondents are directed to issue appointment orders of the petitioners within one month from the date of receipt of the judgment, however, the petitioners are not entitled to back benefits as they have not performed duties during this period with the respondents/ department and filed the constitutional petitions, however, they are allowed seniority by counting their previous service in the Project.
Order accordingly.