MUHAMMAD NASIR MAHFOOZ, J.--- Petitioner seeks indulgence of this court through instant writ petition filed under article 199 of the Constitution of Islamic Republic of Pakistan, for the following prayer.
"It is, therefore, humbly prayed that this Hon'ble court may very graciously be pleased to issue a writ, order or direction, directing respondents to regularize the services of petitioner on the post of lecturer, in the Khushhal Khan Khattak University from the date of his first appointment on the said post i.e. 14.01.2013 with all back benefits in terms of seniority and monetary benefits. Any other relief deemed appropriate by this Hon'ble Court in the given circumstances of case, may also be granted to the petitioner ."
2. Petitioner alleges that he has got Master of Science in Computer Science and course work in Ph.D in Computer Science is also completed. Besides, petitioner is member Academic Council and Syndicate of the University. His services were hired as lecturer on fixed pay for a period of six months on 14.01.2013. His services were further extended on 18.06.2015, then renewed on 20.06.2015 for further period of one year and then on 13.06.2018 and still performing his duties on the said post. Despite serving for such a long period respondents are adamant not to regularize his service. Hence, the instant writ petition.
3. Respondents submitted their comments, wherein though admitted the grant of extension, but denied his claim for regularization on the ground that after appearing in the EATA test for the post of Lecturer in Computer Science, he failed to qualify the same and, there fore, he is not entitled to be allowed to remain in service as well as regularization of his service. It is also added in the comments that initially appointment to such post shall be made after advertisement and regular test and interview , so that all other competing candidates shall also be considered.
4. We have heard arguments of learned counsel for the parties and perused the record.
5. Learned counsel for petitioner relied upon the case law, reported as 2018 SCMR 157; 2018 SCMR, 157; 2018 SCMR 1405; 2016 SCMR 1375. Besides number of judgments of this Court passed in different writ petitions and judgment of Hon'ble Supreme Court of Pakistan, wherein service of adhock, fixed pay and contract employees has been regularized.
6. On the other hand, learned counsel for respondents, referred to the Khushhal Khan Khattak University , Karak statute 2016, with specific reference to rules, relating to appointment and scales of pay in the Statute 2016.
Rule 3 provides method of appointment to be made by need assessment committee, when services of a candidate are to be hired. It also provides confirmation of availability of sanctioned posts, besides appointment of teachers by initial appointment after advertisement. Learned counsel for respondents has tried to invoke provision of these rules in regulating services of petitioners. He also submitted that till framing of these rules in the year 2016, the University had adopted rules of University of Peshawar.
7. We have heard arguments of learned counsel for the parties and have perused the available record as well as case law on the subject.
8. It requires to mentioned that petitioner has been appointed in the year 2013, according to the rules of University of Peshawar, as the statute of Khushhal Khan Khattak University was not yet in the field, so for all intents and purposes, their services shall governed by the rules adopted at that time, because according to section 2 of the Khushal Khan Khattak University , Karak, Annual Report Statutes, 2016, these statutes shall come into force at once and no retrospective effect has been given there under. No relevant provision from the statutes of University of Peshawar was pointed out by the learned counsel for respondents to negate contention of petitioner that his services required to be regularized, after having served continuously and without interruption from the last 4/5 years. Even if, petitioner has opted to appear in the EATA exam, his past service cannot be dispensed with on this score alone. Plethora of case law can be referred in this regard, when Hon'ble Supreme Court and different Courts of the country have regularized services of the employees in different departments. In the latest judgment reported in case titled "Abdul Ghafoor and others Vs the President National Bank of Pakistan and others" (2018 SCMR 175), it is held that:
7. In the present case also, the respondent bank cannot be allowed to persist in its similar practice and machination to exploit its workers and to defeat the spirit and purpose of law and the judgments of this Court, by describing the employment of the petitioners as a contract and calling such workers as "contractors" instead of "contract employment" and "contract employees". As the petitioners for all intents and purposes were engaged/employed by the respondent bank for manual jobs and were being paid salary/compensation for the services they rendered for the respondent-bank, on monthly basis and from year to year personally/manually, and having so served for more than one year, on several 11 months stints, have earned entitlement for regularization of their services with the respondent-bank."
9. In another judgment of Hon'ble Supreme Court, rendered in case titled "Board of Intermediate and Secondary Education Faisalabad through chairma n andothers Vs Tanveer Saiid and others" (2018 ScMR 1405) it is held that.
8. Turning to the instant case, the resp ondents-employees have been workin g with the petitioner-BISEs for a long period of time ranging between 3 to 12 years, as mentioned in the impugned judgments by the learned High Court. Though they were initially appointed for a period of 89 days but after the expiry of said period, their contracts were renewed from time to time for further periods of 89 days at a time with an artificial break of 1 or more days. It seems that the motive behind such artificial break was to avoid regularization of their services on the pretext that they were not continuously in service. Since the respondents were in service for a long time, it clearly shows that the posts they were occupying were permanent in nature and not casual or temporary. It further indicates that the services of respondents were not only required but also beneficial to the department and that they (respondents) had been performing their duties with due diligence to the satisfaction of the authorities. Noting has been placed on the record that may show anything to the contrary.
10. In view of the principle laid down in afore noted judgments of Hon'ble Supreme Court, petitioner is also entitled to be treated in the similar manner , as he is highly qualified and no reason for distinguishing his case has been pointed out.
11. In view of above, instant writ petition is allowed and his service on the post of Lecturer , Computer Science be regularized, with no order as to costs.