SYED ARSHAD ALI, J. Through the instant Writ Petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, Mst. Maryam and Mst. Waqar-un-Nisa the petitioners seek constitutional jurisdiction of this Court with the following prayer:- "It is therefore, very respectfully prayed that the respondents may very kindly be directed to follow the Notification ibid in letter and spirit and the petitioners be absorbed being existing employees of the Foundation. Furthermore that the petitioners are also entitled to regularization of their service after the promulgation of various Acts promulgated from time to time.
Any other relief deemed appropriate' in the circumstances may also very kindly be granted".
2. It is averred in the petition, that the petitioner No. 1 was appointed as Elementary Education Foundation Community School Teacher in the year 2005 while the petitioner No. 2 was appointed in the year 2010 and since then the petitioners are performing their duties with their abilities and without objections either from their superiors or the general public. The respondents vide Notification bearing No.SO(AB)E&SE/15-1/EEF/2013 dated 25.11.2013 issued under section 11 of the Khyber Pakhtunkhwa Elementary Education Foundation Ordinance, 2002 (Ordinance No. XXX of 2002) framed regulations known as the Khyber Pakhtunkhwa Elementary Education Foundation Employees (Terms and Conditions of Service) Regulations, 2013 herein after referred to as Regulations that provided service structure to the employees of the Foundation. Under para-10 of the Regulations, all the then existing employees were regularized and absorbed in the Foundation. In essence, the Petitioners seek the regularization of their services under Paragraph-10 of the Regulations in the respondents Foundation.
3. Respondents were put to notice, out of whom the respondents Nos.1 and 4 conte sted the claim of the petitioners by filing their para-wise comments. In the said comments, they have not controverted/disputed the appointments of the petitioners in the years 2005 and 2010 but have stated that Para-10 of the Regulations is applicable to the regular employees of the Foundation and not to its project/programs staff. They have further stated that the Community school where the petitioners were working was closed down through letter dated 19.05.2017 and as such the present petitioners are no more in services of the respondents Foundation.
4. Arguments of learned counsel for the petitioners as well as the learned Asst: A.G on behalf of the respondents were heard at length and record of the case was also perused with their able assistance.
5. It is evident from record that the petitioners are the employees of the respondents Foundation. The petitioners are working as Girls Community School Teachers of the Elementary Education Foundation (EEF) since 2005 and 2010 respectively . However , they were appointed on contract basis and at the end of every year, their contract would be renewed for further period of one year. Indeed the respondents do not contest the appointments of the petitioners as a Teacher in Elementary Education Foundation Community School, however have claimed that they are the project employees and the Regulations do not govern the appointments of the petitioners. The word "employee " has been defined in section 2(1) of the Regulations: to mean an employee of the Foundation ". The Regulations does not draw any distinction between the regular employees of the Elementary Education Foundation and its project employees. When the Regulations itself does not draw any distinction between the regular and project employees of the Foundation, then we are afraid that drawing distinction between the two categories would be something to add in the rules which has not otherwise been provided in it accordingly . Para-10 of the Regulations in very clear words envisages that the existing employees of the Foundation as on commencing day of the. Regulations shall be absorbed in the equivalent pay scale. Para-10 of the said Regulations reads as under:-
10. Initial appointment through absorption...
"The existing employees of the Foundatio n as on commencing day of these regulations, shall be absorbed in the equivalent pay scale. As the post of Community Literacy Officer has been upgraded as District Programme Officer BPS-17 hence the existing Community Literacy Officers shall be upgraded and absorbed as District Programme Officers in BPS-17".
6. It is not the case of the respondents that on the commencing day of the Regulations i.e. 25.11.2013, the petitioners were not in services of the Foundation. The respondents by not regularizing the services of the petitioners have violated the clear terms of Para-10 of the Regulations. As far as the contention of the respondents that the services of the petitioners were dispensed with w.e.f 19.05.2017 is concerned, suffice it to note that this petition came up for hearing on 14.04.2017 and on the said date, this Court had restrained the respondents from taking any adverse action against the petitioners. Therefore the impugned order , whereby the services of the petitioners were dispensed with on closu re of their respective schools is not only violation of the Regulations but the clear direction of this Court dated 14.04.2017. Furthermore, it is evident from record that the petitioners have qualified their intermediate examination but the petitioner No. 1 also undergone the requisite Primary Teaching Certificate (PTC), therefore they are eligible to hold the post of Girls Community School Teachers established by Elementary Education Foundation. In the similar cases when the Hon'ble Lahore High Court had ordered for the regularization of the contract employees of BISEs and the matter went to the august Supreme Court of Pakistan, the august Supreme Court of Pakistan in the case titled BISE Faisalabad v. Tanveer Sajid and others (2018 SCMR 1405 ) in Para-8 of the judgment has observed:-
8. Turning to the instant case, the respondents-employees have been working 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.
The law annunciated by the august Supreme Court of Pakistan in the aforesaid judgment also reflects in Abdul Sattar and another v. SNGPL and others (2001 SCMR 1935 ), Dr. Anwar Ali Sahto and others v. Federation of Pakistan and others (PLD 2002 Supreme Court 101), Diamond Industries Limited v. M. Zafar-ul-Haq Hijazi and 2 others (PLD 2003 Supreme Court 124), Ejaz Akbar Kasi and others v. Ministry of Information and Broadcasting and others (PLD 2011 Supreme Court 22), Ikram Bari and 524 others v. National Bank of Pakistan (2005 SCMR 100) and Pir Imran Sajid and others v. Managing Director/General Manager (Manager Finance) T elephone Industries of Pakistan and others (2015 SCMR 1257 ).
7. Even otherwise, it is the mandate/responsibility of the respondents to provide free and compulsory education to all children of the age of five to sixteen years under Article 25(A) of the Constitution of Islamic Republic of Pakistan, 1973. Therefore, closing the Community Schools would otherwise of fend Article 25(A) of the Constitution.
8. In view of the above, we are constrained to allow this petition, set aside the order dated 19.05.2017 regarding the closure of Girls Community School Mamdheri and termination of agreements with teachers and direct the respondents to regularize the services of the petitioners in the Elementary Education Foundation corresponding to their pay scales with immediate ef fect.