AHMAD ALI, J. The petitioner filed this writ petition praying therein for the following relief: "It is therefore, respectfully prayed that on acceptance of this writ petition: i. The non-appointment of petitioner may be declared illegal, without jurisdiction, without lawful authority besides being for ulterior motives and political consideration. ii. The respondents may be directed to appoint the petitioner as Primary Health Care Technician as the other petitioners in the other writ petition No.2286 P/2016 titled as "Wajih Ullah & others Vs. D.G. Health KP etc" have already been appointed while the present petitioner has been ignored. iii. Any other order deemed appropriate in the circumstances of the case, may also be passed. The petitioner may be allowed put for any other argument/document at the time of hearing of this writ petition."
2. Brief facts, necessary for the disposal of present constitutional petition are that the petitioner has been serving as Lady Health Visitor (LHV) under respondents No.1 & 2 since 2008 on contract basis in the Sarhad Rural Support Programme (SRSP), and served as such for more than 09 years in the Basic Health Units but respondents are not ready to appoint her against regular post for the reason that she has done her education in 'Arts' subjects.
That on doing away of SRSP , the petitioner should have been reverted to govern ment as the Basic Health Units have been given back to the government.
3. On the direction of this court respondents filed para-wise comments to the writ petition wherein, issuance of the desired writ is opposed mainly on the ground that the petitioner was not a governm ent employee rather she was an employee of the PPHI/SRSP and after the expiry of agreement of government with PPHI/SRSP services of petitioner cannot be retained by the department.
4. Learned counsel for the petitioner argued that the government in order to provide health facilities at Basic Health Units, supported the programmes under PPHI/ SRSP and appointed a numbe r of employees under the said programme. However , the agreement between government and SRSP has come to an end and now the government has taken over the control of Basic Health Units. Other similarly placed employees have been appointed by respondents against regular vacancies whereas, the petitioner has been discriminated. He maintained that the petitioner is also entitled to be appointed against regular vacancy .
5. Learned AAG controverted the stance of petitioner and argued that the petitioner never remained the service of the government and therefore, she cannot be appointed on regular basis. He maintained that the qualification for the post of Lady Health V isitor is Matric with science whereas, the petitioner has done her matric in Arts subjects.
Therefore, she is not eligible for appointment against the post of L.H.V .
6. We have heard arguments of the learned counsel for parties and gone through the record with their valuable assistance.
7. Perusal of the record reveal that the government of Khyber Pakhtunkhwa for the provision of Primary Healthcare services to general public at Basic Health Units entered into an agreement with the Sarhad Rural Support Development Programme (SRSP). Handi ng over of the control of Basic Health Units to SRSP was to improve the presence of staff, equipment and medicines so as to provide smooth treatment to patients. The petitioner was appointed as Primary Healthcare Technician by the SRSP to serve in the rural and remote areas of the province. It would not be out of place to mention that the provincial government had signed an agreement with SRSP , however , and People Primary Healthcare Initiative (PPHI) Project started working under SRSP as its sub-contractor .
According to DMC (detailed marks certificate) the petitioner passed LVH Examination from Nursing Examination Board, Khyber Pakhtunkhwa, in 2004 and according to "Rules & Regulations for Nursing Educational Institutions"
(Revised in January-2001) promulgated by the Pakistan Nursing Council, Islamabad, the candidates having Matric with Arts were eligible to get admission in the Nursing and LHV Examination. Thus, LHV Examination Certificate of petitioner is valid, authentic and was issued in accordance with the Rules/Policy in vogue during the year 2004.
Now, rules have been amended which changed the curriculum whereby Matric with Science has been declared compulsory for admission in the Nursing or LHV examinations. However , the changed rules had not invalidated the previous degrees/certificates obtained by the candidates having Matric with Arts. The LHV Examination Certificate of the petitioner cannot be held inoperative or incompetent, and as such, the changed criteria/policy of Matric with Science cannot be stretched retrospectively to wash away the rights of candidates who were eligible in the past.
There is no cavil with the proposition that in the past so many LHVs were appointe d in the Health Department who were having LHV Examination Certificate with Matric in Arts, as such, petitioner cannot be treated apart. Therefore, objection raised by the respondents that petitioner is having Arts subjects holds no water . The petitioner in view of her LHV Examination is held eligible for the post of Lady Health Visitor. Reliance can be placed on 2014 PLC (C.S.) 1270 [Lahore High Court] titled Mst. Farhana Naz and others Vs. Government of Punjab and others wherein it was held: Civil service---Contractual employee--- Regularization--- Right of livelihood--- Change in qualification for the post--- Effect---Subsequent change in policy requiring different qualifications could not affect the right of the petitioners/employees from being extended the benefit of regularization as at the time of appointment they possessed relevant qualifications --- Extraordinary constitutional jurisdiction of High Court was always exercised with compassion and could not disregard the fact that non-regularization of service of the petitioners/employees was an act which was violation of right of livelihood."
8. The respondents also negated the petitioner as an employee of Health Department rather according to them, she was appointed by the Sarhad Rural Support Programme (SRSP) who was the contractor of provincial government to provide health services to general public in the government owned Basic Health Units (BHU). No doubt the petitioner was appointed by the SRSP as LHV to perform duties in the BHU, but there is no denial of the fact that SRSP was working under the provincial government by way of an agreement. Thus, indirectly the petitioner was also an employee of the Health Department and undoubtedly , she served as LHV in the government owned BHU which was temporarily given under the control of project under SRSP . Now, the provincial government has taken back the administrative control of the BHUs and employees are needed there to provide health services to needy people.
9. In the case reported as 2018 SCMR 157, titled Abdul Ghafoor and others Vs the President National Bank of Pakistan and others , petitioners contended performance of their duties as cleaner and messengers and sought their regularization in the respondent-bank, however , the respondent-bank refuted their stance that their services were hired on the basis of a contract and they were paid their charges being contractors. The august Supreme Court of Pakistan pleased to held that since petitioners for all intents and purposes were engaged/employed by the Bank and were being paid salary/compensation for the services they rendered, on monthly basis from year to year, and having so served for more than one year on several 11 months stints, they had earned entitlement for regularization of their services with the Bank. Thereby the august Apex Court directed the bank to regularize the services of petitioners as permanent employees.
10. Similarly , in another case, the services of employees providing janitorial services to the National Bank of Pakistan through an outsourced company , were directed to be regularized by the Abbottabad Bench of this Court, vide judgment reported as 2019 PLC (CS) Note 7 titled 'Sohail Ahmed and 3 others VS. National Bank of Pakistan through its Regional Head, Regional Of fice Abbottabad, KPK and another ' and it was held: "The job description and the comment s filed by the Respondents bank do not give any impression that the petitioners are not working under the administrative control of the Respon dent bank. It appears that in order to nullify the effect of the judgement of Ikram Bari supra, a system has been devised that employees would serve the Respondent bank but with the financial arrangements with a outsourced company . Hence, the most crucial issue in the case is to see whether in the present scenario relationship of employer and employee exists between the parties. The description, janitorial service itself suggests and means one who keeps the premises of a building clean, tends the heating system and makes minor repairs. Hence, we hold that these services are essential regular services of the bank."
11. As the petitioner was performing duties of permanent nature in the government owned Basic Health Unit and paid through an outsource organization namely SRSP , therefore, her services rendered in the BHU of the Health Department were essential services and in view of supra dictum the relationship of employee and employer exist between parties.
12. The petitioner was serving in the Sarhad Rural Support Programme under the People Primary Healthcare Initiative Project in the Basic Health Unit; however , the said project/programme has been put to an end and Health Department has taken over the administrative control of BHUs all over the province. After relieving employees working under PPHI Project at BHUs, posts have become vacant for appointment on regular basis. An Office Order issued by the District Health Officer Peshawar (page 36-37) bearing No.5934-37/DHO/PPHI dated 13.09.2013 reflects that Mrs. Fatima Zar Khan, a PHC Technician was adjusted against existing regular vacancy on the basis of her satisfactory performance report of the District Support Manager PPHI Peshawar . Thus, in the case of petitioner respondents cannot be allowed to adopt dual standard. Guidance may be derived from the case titled "Nizamuddin and another vs. Civil Aviation Authority and 2 others" ( 1999 SCMR 467 ), wherein it was held: "---Art. 25---Equity of citizens-- Government is not supposed to discriminate between the citizens and its functionaries cannot be allowed to exercise discretion at their whims, swee t-will or as they please rather they are bound to act fairly , evenly and justly".
13. In the case of Government of KPK through Secretary , Agriculture Vs. Adnanullah and others , Civil Appeal No.134-P of 2013 (2016 SCMR 1375 and 2017 PLC (C.S) 307 Supreme Court ) employees were appointed under different projects of the provincial govern ment of Khyber Pakhtunkhwa however , their projects were taken over by the provincial government and resultantly the employees were terminated and regular/ permanent vacancies were advertised. The Apex Court reinstated all the project employees by holding, "The Government of KPK was also obliged to treat the Respondents 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 employ ees." The same view was also endorsed in the case of "Rizwan Javed and others VS. Secretary Agriculture Livestock and others" 2017 PLC
(CS) 712 [Supreme Court ], whereby the august Apex Court was pleased to reinstate the project employees who were terminated after the project was taken over by the provincial government.
14. The supra view in Civil Appeal No.13 4-P of 2013 was also adopted by the august Apex Court in the case of "Qayyum Khan VS. Divisional Forest Officer, Mardan and others" 2017 PLC (C.S) 428, wherein the august Court was of the view: "--- 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 KPK Government. It appears that the Appellant 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 KPK through Secretary , Agriculture v. Adnanullah 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."
15. As discussed above, the petitioner was serving as LHV in the government owned Basic Health Unit under the outsourced organization' s Project which has admittedly been taken at the budget of provincial government. For this purpose, new vacancies have been created for the purpose of fresh appointment whereas, services of petitioner have been terminated without any notice despite the fact that she was having nine years' service at her credit. This act of the authority is not warranted in view of the dictum laid down by the august Supreme Court of Pakistan in the case titled "Pakistan and others v. Public At Large and others (PLD 1987 Supreme Court 304). The relevant excerpt is reproduced as under: "---When a public authority is to be exercised for resolving a controversy regarding rights and liabilities, the decision would not be rendered without proceedings in which the person affected is also afforded an opportunity of hearing.
It is common principle which governs the administration of justice in Islam that in case of liability with penal or quasi-penal consequences and/deprivation of basic rights a notice as well as an opportunity of hearing, are of absolute necessity . This by itself has to be recognized as a basic right".
16. For what has been discussed above, this writ petition is allowed as prayed for and respondents are directed to appoint the petitioner as LHV on regular basis within 30 days from receiving this judgment. No order as to cost.