ATIR MAHMOOD, J.---- Through this single judgment, we intend to decide I.C.A. No,224681 of 2018 and I.C.A.
No,224680/2018 as common question of law and facts are involved in these appeals.
2. This Intra-Court appeal has been directed against the judgment dated 27.04.2018 passed by learned Single Judge in Chamber in W rit Petition No,25833/17.
3. Brief facts of the case are that respondents were appointed on contract basis in the appellant organization after due process on 11.01.2012 which contr act was extended time to time and finally extended upto 11.01.2017.
Government of Punjab regularized the services of all contract employees including the employees of autonomous bodies through notification dated 02.03.2013. In the light of said notification a meeting was convened by the appellants wherein it was decided that firstly the service rules will be notified and then the said notifications for regularization of services will be followed accordingly . Consequently , on 16.05.2016 vide Gazette Notification No,DG(PF A)ADM/2-92/2012 the service rules were notified. As a result, the respondents approached the appellants for their regularization but their request was declined which resulted into filing of W.P. No,83233/2017 and W.P. No,42667/2017 which were disposed of by learned Single Judge in Chamber with the direction to the concerned to decide the matter of the respondents, however , they rejected the representation of the respondents vide order dated 15.08.2017. Feeling aggrieved, respondents filed W.P. No,258 33/2017 before learned Single Judge of this Court which was accepted in the following terms: "For what has been discussed above, both the above writ petitions are allowed. The petitioners are reinstated in service from the date of their termination. Respondent No,1 is directed to constitute a committee as required in the regularization policy for the year 2013 to consider the case of the petitioners for regularization and complete this exercise within two months from the date hereof."
Hence, these intra-court appeal have been filed.
4. Learned counsel for the appellant contends that impugned judgment has no sanctity in the eye of law as the appellant, Punjab Food Authority has no regularization policy to make appointments on regular basis; that the impugned judgment has been passed without applying the judicious mind; that the High Court could not renegotiate, alter and amend the terms of employment offered by the authorities to its contractual employees; that contractual employee cannot invoke constitutional jurisdiction of the High Court under Article 199 of the Constitution; that the respondents have no vested right for regularization of their services beyond the scope of terms and conditions of their contracts. Argued that impugned judgment and decree is the result of misreading and non-reading of evidence, therefore, same is liable to be set aside. He relied upon "Chairman NADRA, Islamabad through Chairman, Islamabad and another v . Muhammad Ali Shah and others " (2017 SCMR 1979 ).
5. Conversely , learned counsel for the respondents submitted that no illegality has been committed by the learned Single Judge while passing the impugned judgment, therefore, no interference is called for and appeal is liable to be dismissed.
6. Arguments heard. Record perused.
7. The primary question involved in this case that whether the respondents were entitled to be re-instated and regularized or not.
8. Perusal of record reveals that respondents were appointed on contract basis with the appellant on 11.01.2012 and the contract period of the respondents was extended time to time which was lastly extended upto 11.01.2017.
During their period of contract they time and again requested for regularization of service, however , that request was declined repeatedly . Thereafter , during the continuation of employments of the respondents, Government of the Punjab issued a letter No,DS/(O&M)(S&GAD)5-3/2013 dated 01.03.2013 whereby the autonomous bodies were directed to make appointments on regular basis of the contract appointees in BS-1 to 15 in the following terms: "In continuation of this Department's Notification No,DS(O&M) 5- 3/2004/Contract(MF) dated 14.10.2009, the Chief Minister of the Punjab has been pleased to direct that all Autonomous/Semi-Autonomous, Bodies/Special Institutions in the Punjab may make appo intments on regular basis of the contract appointees in BS-1 to 15 in line with the Services and General Administration Department notification No, DS(O &M) (S&GAD)5-3/2013) dated 01.03.2013."
(Emphasis provided)
The respondents being employees of an autonomous body approached to the authority for regularization of their service in light of above said letter , however , instead of regularization, their contract period was extended and finally on 11.01.2017 they were terminat ed from their service which resulted into filing of constitutional petition before learned Single Bench of this Court. Learned Single Bench, after hearing both sides allowed the writ petition through impugned judgment and reinstated the respondents in service from the date of their termination and appellant was further directed to constitut e a committee as required in the regularization policy for the year 2013 to consider the case of the petitioners for regularization and complete this exercise within two months from the date hereof
9. We have minutely perused the judgment passed by learned Single Judge in Chamber , impugned in this appeal as well as perused all the available record and this thing comes to the surface that through afore-mentioned notification issued by Government of the Punjab dated 02.03.2013 autonomous bodies were directed to make appointments on regular basis, of the contract appointees in BS-1 to 15, therefore, the appellant being autonomous body was liable to comply with the said letter , however , they remained failed in this regard. The plea taken by the appellant is that they have made appointment of respondents purely on contract basis and in their contract agreement it was clearly mentioned at Sr. No,10 that contract appointment shall not confer any right of regular appointment nor such appointment will be regularized under any circumstances, therefore, the respondents are barred to claim regularization through constitutional petition. The Hon'ble Supreme Court of Pakistan has not appreciated rather discouraged this practice of departments, government or the private, who hire the services of the poor people by issuing the appointment letters by inserting the clause that the appointee will not claim any right of regularization, just to defeat the legal provisions applicable therein, in fact it is the device which is based on mala fide being used to deprive the poor people who served with the appellant for years. The Hon'ble Supreme Court of Pakistan many a times through elaborativ e judgments has deprecated this practice and regularized the services of employees working of contract basis. As there is huge rate of unemployment in the country and the jobless persons try to get job on the terms and conditions which sometimes deprives them from their legal right and on this score alone the departments are not allowed to use said agreement of contract as an obstructive tool in their way of regularization of their service and contract employees cannot be deprived from their legal right of regularization in any way especially when a policy of regul arization is framed by the Government and the department has exclusive jurisdiction/authority to do this. Furthermore, at the time of appointment on contract and while signing the agreement, the employees have no position of bargaining with the employer and employer could always coerce them to waive their legal protection and accept, contractual terms or face the risk of losing their jobs. Reliance is placed upon case reported "Habibullah v. Government of the Punjab " (PLD 1980 Lah. 37) and "Pakistan v. Public at Large" (PLD 1987 SC 304). In the present case, the Punjab Food Authority while recognizing the right of the respondents held its 12th meeting on 28.11.2014 wherein it was decided that after formulation of service rules, the notification of Government of Punjab qua the regularization of service of respondents would be implemented.
Thereafter , service rules of the employees of Punjab Food Authority were duly approved and notified, however , the services of the respondents were not regularized but terminated after extension of their contract period instead of implementation of their decision taken in afore-mentioned 12th meeting as well as in compliance of notification of Punjab Government, despite the fact that some other employees are still working there, however , the respondents were deprived from their legal right. Under Article 25 of the Constitution, the authority cannot be allowed to follow the policy of pick and choose rather they are duty bound to treat all employees equally qua their service as well as their benefits. We are fortified with the judgment of August Supreme Court of Pakistan titled as "Qayyum Khan v.
Divisional Forest Officer , Mardan and others " (2016. SCMR 1602) wherein it has been held that: "The present appellant was appointed in the year 2010 on contract basis in the project after completion of all the requisite codal formalities, when on 25.05.2012 the project was taken over by the Khyber Pakhtunkhwa Government. It appears that the appellan t was not allowed to continue after the change of hands of the project.
Instead, the Government by cherry picking , had appointed some other person in place of the appellant. The case of the present appellant is covered by the principles laid down by this Court in the case of Civil Appeals Nos, 134-P of 2013 etc. (Government of KPC through Secretary , Agriculture v. Adanullah and others ), as the Appellants was discriminated against and was entitled to continue the job with the employees who were similarly placed and were allowed induction on regular basis."
In another case reported as "Khyber Pakhtunkhwa through Secretary Agriculture and others " (2016 SCMR 1375 ) it has been held as under: "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 Respon dents 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."
The appellant also objected on the maintainability of the writ petition filed before the learned Single Judge in Chamber . It is now well settled law that the object of good governance cannot be achieved by exercising discretionary powers unreasonably or arbitrarily and without application of mind but objective can be achieved by following the rules of justness, fairness, and openness in consonance with the command of the Constitution enshrined in different Articles. The impor tance of the above principle that the appellant is expected to deal with respondents qua the matter of regularization for fairly, justly , honestly , transparently and in accordance with law and instructions of higher authorities so that the concerned persons should be treated in accordance with law without any discrimination, have also been highlighted in various judgments by the superior courts in "Zulfiqar Ali v. The State " (1998 SCMR 1016 ) and "Muhammad Akram Solangi and 17 others v. District Coordination Officer , Khairpur and 3 others ", (2013 PLC (C.S.) 121). Learned Single Judge in Chamber has rightly relied upon the landmark judgment titled as "Pir Imran sajid and others v. Managing Director/General Manager (Manager Finance) Telephone Industries of Pakistan and others ", (2015 SCMR 1257 ) wherein a principle laid and grievance with regard to the terms and conditions of service can be invoked in constitutional jurisdiction. Hence, the writ petition filed before learned Single Judge was fully competent; therefore, this contention of the appellant has no force.
10. Even otherwise, the contract agreement of the respondents was extended time to time for a period of 05-years and repeated renewal of their contract of employment clearly shows that the posts against the appointment of the respondents was made are of permanen t nature and it also ascertains that respondents have been discharging their duties entirely to the satisfaction of appellant, therefore, retaining the services of the respondents on the contract, instead of, on the permanent basis is absolutely mala fide and unfair . The respondents have served five years of his life to the organization and if they deems as terminated, they have become overage for further appointment. Hence, while discharging official functions, efforts should be made to ensure that no one is prevented from the earning his livelihood because of unfair and discriminatory act on their part. There is nothing in the afore- mentioned notification that employees of which particular department are entitled for regularization rather perusal of said notification clears that employees of all autonomous bodies are entitled for this benefit.
11. Looked from whatever angle, it is evident that the authority has not applied its mind while exercising its discretion to the grievance of the respondents rather it has resulted in pick and choose in the exercise of discretion.
Having observed that the respondents were eligible for regularization, yet not regul arized, therefore, it had militated against the command of Article 4 of the Constitution according to which it is an inalienable right of individual to be dealt in accordance with law and the law on the subject. Learned Single Judge has discussed each and every aspect of the case and then passed the impugned judgment. We see no illegality therein. The case law relied upon by the appellant "Chairman NADRA, Islamabad through Chairman, Islamabad and another v. Muham mad Ali Shah and others " (2017 SCMR 1979 ) being distinguishable on facts is not attracted in this case, as such, it is not helpful to the appellant.
12. As a result of above discussion, this appeal is without any substance which is accordingly dismissed. No order as to cost.