AYESHA A. MALIK, J. This common judgment decides the instant Intra Court Appeal ("ICA") as well as connected I.C.A. No.207440/2018 whereby the Appellant has impugned judgments dated 24.04.2018 and dated 29.03.2018 passed by learned Single Judge in W.P. Nos.20827/2016 and 105238/2017 and allowed both the Petitions.
2. The basic case of the Appellant is that through the impugned order dated 24.04.2018, the learned Single Judge declared a post to be permanent and against the said post regularized the Respondents. Learned counsel argued that the post was not a permanent post and in fact there is no permanent post available against which the Respondents could have been regularized. Learned counsel further argued that the Respondents claim that they were recruited as Court Clerk in the legal department of the Appellant yet they seek regularization against the post of Mali. Learned counsel argued that there was no permanent post against which the Respondents could be recruited as they were recruited from time to time to do various odd jobs and there is no permanent post available against which they can claim regularization.
3. On the other hand, learned counsel for the Respondents supports the impugned judgments and argued that the Respondents joined the Appellant in 2007 on daily wages as Court Clerk, which post was permanent in nature yet they were never regularized. Learned counsel argued that the petition was filed by the Respondents seeking regularization from the date of their appointment with all back benefits to the post of Court Clerk. The impugned judgments considered the contention of the Respondents and held that since the Respondents have been in service for nine years, they have acquired the status of a permanent workman under the Standing Order 1 of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. Further that since they were initially appointed as Mali and were deputed to work' as Court Clerk, hence they are entitled to be appointed against the permanent post of Mali. The Court therefore, declared the post to be permanent and directed the Appellant to regularize the services of Respondents against the said post.
4. We have heard the learned counsel for the parties at great length. The basic issue is whether or not the Respondents could have been regularized and whether the Court could have declared the post to be permanent.
The contention of the Appellant is that there was no post available against which the Respondents could have regularized. This fact has been clearly stated in the report and parawise comments filed by the Appellant in W.P. No.20827/2016 and in W.P. No.105238/2017 and further that there is no vacant sanctioned post of Mali against which the Respondents can be regularized. It has also been pointed out that the Respondents were not recruited through any procedure, that was no advertisement, interview or appointment letter issued in their favour. They were simply employed from time to time, on daily wages, to meet the day to day requirements of the Appellant. Moreover it is an admitted fact that there was no permanent post against which the Respondents were appointed. When confronted with this question, learned counsel for the Respondents was unable to show that the post of Court Clerk was a permanent post against which they sought regularization.
Learned counsel for the Respondents were also confronted with the fact that they sought regularization against the post of Court Clerk but instead were regularized as Mali. In this regard, they were unable to show that there was a sanctioned post of Mali against which they were regularized. Interestingly as per the Respondents case they worked as Mali and only worked as Court Clerk. Learned counsel for the Appellant clarified that there is no vacancy available against any post of Mali and that the Respondents were appointed on daily wages to work on different projects for which there are no permanent posts against which they can be regularized.
5. On the issue of declaring a post permanent, we note that this is an administrative function of the relevant department. In involves financial considerations whereby the rate of a sanctioned pay has to be applicable. It also requires that the department follow due process for appointment so as to ensure that required and qualified people do the job. In this case the Respondents sought regularization against the job of Court Clerk for which there is no sanctioned post. The Court declared the post of Mali as permanent as there were no vacant posts and regularization the Respondents against the Court declared post. There has been no financial sanction for their posts, hence as such there is no financial sanction to pay the Respondents as it has not been budgeted.
6. Under the circumstances, we are of the opinion that the impugned judgments could not have declared the post of Mali as permanent as this is the function of the relevant department after looking into financial and other aspects of the matter. As per the august Supreme Court of Pakistan judgment at, best the Court can direct that a candidate be considered for regularization, however it cannot order for the regularization of persons against posts that have not been sanctioned and are not permanent posts. Therefore, we find that in this case a direction declaring a post as permanent could not have been given since the Respondents sought regularization as Court Clerks which admittedly is not a permanent post. Even otherwise, we find it alarming that the Respondents seek regularization against the post of Court Clerk, which is the job they claim they have been doing for ten years and yet their regularization is against the post of Mali, for which they themselves states they never worked.
7. For what has been discussed above, these ICAs are allowed and the impugned judgments dated 24.04.2018 and dated 29.03.2018 passed by learned Single Judge in W.P. Nos.20827/2016 and 105238/2017 are set aside.