SAHIBZADA ASADULLAH, J.----Through the instant petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has prayed the following relief:- It is, therefore, humbly requested that on acceptance of the instant writ petition, the petitioner is beseeching to declare Notification vide SO (Budget)HD/ 15-29/2016 Vol-II dated 8th April, 2020 for regularization of the candidates appointed on contract basis in special police force Pakhtunkhwa Spec ial Police Officer illegal and void and inef fective upon the rights of the petitioner .
2. Brief facts' giving rise to the instant petition are that the petitioner was appointed as Constable Special Police Force vide order dated 14.5.2019 and joined his duties on 15.5.2019 accordin gly. Vide Khyber Pakhtunkhwa Special Police Officers (Regularization of Services) Act, 2019, all the contractu al appointments defined under section 2-A of the Act have been regula rized with effect from the commencement of the Act and in consequent thereof all the contract special police officers, who were holding their posts from 1st August 2019 have been regularized under the Statute. The respo ndent No. 2 vide impugned Notification dated 8.4.2020 has omitted to include the name of petitioner into Notification ibid and the petitioner has been replaced by one Mr. Abdul Shakoor mentioned at serial No. 74. The petitioner requested the respondents/authorities to regularize the services of petitioner under the Act promulgated but to no avail, hence the instant constitutional petition.
3. On directions of this Court, the respondents submitted their para-wise comments.
4. Arguments heard. Available record perused.
5. It is an admitted fact that in pursuance of the provisions contained in section 3 read with section 5 of Khyber Pakhtunkhwa Special Police Officers (Regularization of Services) Act, 2019 (Khyber Pakhtunkhwa Act No. XXVII of 2019) and on the recommendation of Provincial Police Officer, Khyber Pakhtunkhwa and approval of Provincial Cabinet, the Home and Tribal Affairs Department Regularized 94 Special Police Officers (SPS) working in Dera Ismail Khan vide Notification dated 08.4.2020. The petitioner was appointed as Constable Special Police Force vide order bearing No. 2452/EC dated 14.5.2019 and on the basis of allegations levelled against the petitioner to be involved in notorious activities, he was discharged from service by the District Police Officer, D.I. Khan vide order dated 20.12.2019. On appeal for re-instatement, filed by the petitioner before Regional Police Officer, D.I.
Khan Region, it was found that proceedings against S.P.C Malik Muhammad Naveed/petitioner have been decided without giving him an opportunity to defend himself. He was neither served a show cause notice nor given a personal hearing before imposing penalty of dismissal from service, thus, the allegations levelled against the petitioner do not warrant an extreme action like dismissal and the petitioner was reinstated in the service from the date of dismissal.
6. The basic question to be answered in this case is as to whether the petitioner is entitled for regularization under Khyber Pakhtunkhwa Special Police Officers (Regularization of Services) Act, 2019 ? In order to better comprehend the matter , it is pertinent to mention here that the petitioner was discharged from service by the D.P.O, D.I.Khan on 20.12.2019 and consequent upon the acceptance of his appeal for re-instatement in service, he was reinstated in service from the date of his dismissal i.e 20.12.2019. The Notification regarding regularization of service of Special Police Officers was issued on 08.4.2020. In order to maintain a petition, petitioner has to demonstrate that he was entitled for regularization under Khyber Pakhtunkhwa Special Police Officers (Regularization of Services) Act, 2019 and that while reinstating him in service, the employer has violated the vested rights of petitioner by not including the name of the petitioner in the list of regularized employees/SPOs, only then the Court will exercise its constitutional jurisdiction to rescue the employee/petitioner who has been wronged.
7. The Petitioner is claiming equal treatment as the other SPOs, who have been regularized under the Khyber Pakhtunkhwa Special Police Officers (Regularization of Services) Act, 2019 vide Notification dated 8.4.2020. The plea of the respondents is that at the time of impugned Notification dated 08.4.2020, the petitioner was not in service hence could neither get the fruits of the Act, 2019, nor could be regulariz ed under Khyber Pakhtunkhwa Special Police Officers (Regularization of Services) Act, 2019, this is an unfortunate plea which has been raised by the respondents with no other purpose but to deprive the petitioner of what was his due and we have no other option but to term it as callous, ill-founde d and without force, as on the date when the impugned Notification was issued, the petitioner was proceeded departmentally , as disciplinary proceedings were in vogue by then the fate of the petitioner was not finally determined, how could respondents decided at their ends that the petitioner was not in service, albeit to the fact, that his appeal for reinstatement was accepted and he was reinstated in service from the date of his dismissal i.e 20.12.2019. We are yet surprised to know . that when the petitioner was dismissed from his service on 20.12.2019 and reinstated after departmental proceedings were conducted, on 22.6.2020 and that it was in the intervening period i.e 8.4.2020 that the notification No. SO(Budget)IHD/15-29/2016 Vol-II dated 8.4.2020 was issued by the provincial Government, what led the respondents to hold that the petitioner by then was not in service, despite the fact that the guilt of the petitioner was tested departmentally and ultimately he earned exoneration which led the department to hold that the petitioner was in service right from the date of his termination/dismissal and his this exoneration fetched him the benefits of the Notification ibid. Petitioner is aggrieved of the inaction and express denial of the respondents particularly , respondent No. 2, not regularizing his services in accord with the Notification. dated 8.4.2020. We are not persuaded with what was submitted for the respondents and the plea taken by the respondents regarding departmental proceedings and termination of the petitioner from his service is unfounded as his exoneration from the charges is a plain answer to the reservations forwarded.
8. We don't see any distinction between the petitioner and those, who stood regularized under the ambit of Khyber Pakhtunkhwa Special Police Officers (Regularization of Services) Act, 2019 and we lurk no doubt in our mind that the petitioner deserves the same treatment.
9. In the case of "Haji Zahir All and others v. Government of Balochistan and others" reported in 2010 SCMR 678, it has been held that:- "Civil Service......... Termination of service of contract employees by Excise and Custom Department and non- consideration of their cases under newly enforced regularization policy ....Order of High Court dismissing such petition considering petitioners as civil servants while directing authorities to consider them in process of selection...V alidity .... Plea of petitioners was that initial contract period of 12 months was extended from time to time till termination of their services; that they performed their duties diligently without any complaint from authorities and gained experience in relevant filed; that authorities had not considered their cases in such policy , though had regularized service of their other colleagues, which fact was not denied by authority in their comments; that impugned act of authorities was violative of provision Arts. 2,2-A, 3, 4, 5(2) and 25 of the constitution guaranteeing social and economic justice to its citizens and public functionaries were bound to obey commands of the Constitution... Supreme Court granting leave to appeal to consider , inter alia, such contentions of petitioners."
10. In the case of "Dr. Munir Ahmad and 37 others v. Government of Pakistan, Finance Division, Islamabad and 4 others" reported in 2007 PLC (C.S.) 285 it has been held that:- b) Arts. 2-A, 4, 25, 27, 37 & Preamble---Equality---Scope---Concept of equal protection and equality before law is hallmark of the constitutional scheme recognized by not only the preamble, objective Resolution, Arts. 25 & 27 of the Constitution but also by the Principle of Policy contained in Art. 37 of the Constitution--- Equal protection and equal treatment of citizens similarly placed is universally accepted and recognized principle which has been explained by many authors in text books and judges in precedents --- Statutory functionaries in a democratic set up cannot make any individual distinction for any extraneous reasons and exercise of discretion must be free of arbitrariness and caprices.
11. After assessing the entire record, this Court reaches to an inescapable conclusion that the petitioner has been succeeded in making out a case for indulgence of this Court, resultantly , the petition in hand is admitted and allowed. The respondents are directed to regularize the services of petitioner as Constable Special Force under the ambit of Khyber Pakhtunkhwa Special Police Officers (Regularization of Services) Act, 2019 right from the date of issuance of Notification dated 08.4.2020 accordingly .