SHUJAAT ALI KHAN, J.---Through this single judgment, I intend to decide this petition (W.P.No.12022 of 2021) as well as Crl.Org. No.35362-W of 2019 (contempt petition) having commonality of law and facts.
2. Briefly put, the facts forming factual canvas of these petitions are that the petitioners, in these petitions, applied against the post of Assistant Director Land Records, pursuant to an advertisement, got published by the Punjab Public Service Commission (PPSC) in the National Press on the requisition of the Board of Revenue (BOR). On conclusion of recruitment proceedings, they were appointed in the Board of Revenue, pursuant to Notification, dated 13.10.2014. Being aggrieved of their non-regularization,_ the petitioners filed W.P.No.2266 of 2017, before this Court which was disposed of, through order, dated 30.01.2019, while referring the matter to the Senior Member Board of Revenue, Punjab, Lahore (SMBR) with a direction to place the matter of the petitioners before the competent authority for regularization of their services. Since the services of the petitioners were not regularized by the SMBR despite issuance of direction by this Court, the petitioners have filed contempt petition complaining non-compliance of order, dated 30.01.2019, whereas in present writ petition the petitioner has assailed the decision of the Punjab Land Record Authority (PLRA) Board, taken in its 11th meeting, held on 13.10.2020, whereby request of the petitioner and other similarly placed persons for regularization of their services was turned down.
3. Mian Bilal Bashir, Advocate, representing the petitioner in this petition, submits that since the petitioner along with others, were appointed on the recommendations of the PPSC on contract basis pursuant to the requisition forwarded by the BOR, the Competent Authority in respect of said selectees was the SMBR, hence he was bound to move the case of the petitioners and other similarly placed persons for regularization in terms of Section 4 of the Punjab Regularization of Service Act, 2018 (the Act 2018); that according to Section 11 of the Punjab Land Records Authority Act, 2017 (the Act 2017), no employee can be transferred to the PLRA without his consent; that terms and conditions of service being enjoyed by a person in a government department cannot be altered while posting him in an authority by way of transfer; that after clearance of the course, held by the Management and Professional Development Department, (MPDD), Government of the Punjab, for confirmation/promotion of the petitioner against the post held by the petitioner in this petition, it stands affirmed that she along with others were recruited against the posts of permanent nature; that no legislative piece can be used retrospectively to the dis-interest of a person already enjoying a benefit under the previous scheme of law; that appointment of the petitioner and others through PPSC stands proof of the fact that the posts against which the petitioner and others were appointed carried the status of permanent nature. Relies on the case- law reported as Chairman, Federal Board of Revenue, Islamabad and another v. Mrs. Naureen Ahmed Tarar and others (2020 SCMR 90), Zila Council Jehlum through District Coordination Officer v. Messrs Pakistan Tobacco Company Ltd. and others (PLD 2016 SC 398), Water and Power Development Authority, Lahore through Chairman and others v. Haji Abdul Aziz and others (2012 SCMR 965) and Government of Sindh through Secretary, Home Department and others v. Abdul Jabbar and others (2004 SCMR 639).
4. Messrs Mushtaq Ahmad Mohal and Rana Iqbal Hussain, Advocates, while representing the petitioners in contempt petition, submit that since the SMBR failed to place the case of the petitioners for regularization before the Competent Authority, he is liable to be proceeded against under the provisions of the Contempt of Court Act, 2003 read with Article 204 of the Constitution of the Islamic Republic of Pakistan, 1973.
5. Mr. Mughees Aslam Malik, Advocate, representing the PLRA, argues that since the terms and conditions of service of the petitioners in PLRA are being governed under non-statutory service rules/regulations, instant petition is not maintainable; that according to Section 3(2) of the Act, 2017, PLRA being a body corporate, its employees cannot approach this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973; that since the petitioners were recruited against project posts, they are not entitled for regularization; that Section 11 of the Act, 2017 is not applicable to the petitioner and other similarly placed persons for the reason that the same is only meant for posting against the seats of Director and Additional Director; that the petitioners being employees of the Provincial Government cannot be regularized in PLRA.
6. Mr. Muzaffar Islam, Advocate, who is also representing the PLRA, in furtherance of the submissions made by Mr. Mughees Aslam Malik, Advocate, submits that according to the appointment/extension letters of the petitioners, they were appointed against temporary posts which were created through Schedule of New Expenditure (SNE), thus, they are not entitled for regularization; that since there are three categories of employees in PLRA, the petitioners do not fall within the category which is entitled for regularization; that after accepting their adjustment in PLRA, the petitioners have been working for the last five (5) years without any qualm about their adjustment which shows that they impliedly accepted their transfer to the PLRA against existing terms and conditions, thus, they are de-barred to seek regularization while considering themselves as employees of BOR and that according to terms and conditions contained in their appointment Notification the petitioners were estopped to claim regularization.
7. Learned Additional Advocate-General, while supporting the learned counsel representing the PLRA, states that since the petitioners were appointed against the project posts, they are not entitled for regularization; that as the petitioners have been adjusted against the substantive posts in PLRA, they have no cause of action to file this petition and that since a deeming clause has been introduced under Section 31(e) of the Act, 2017, instant petition deserves outright dismissal; that since the case of the petitioners for regularization was considered by the SMBR in line with order, dated 30.01.2019, no contempt is made out on his part especially when the petitioners have challenged the order of the PLRA Board in the writ petition. Relies on the case reported as Province of the Punjab through Secretary Agriculture Department and others v. Muhammad Arif and others (2020 SCMR 507).8. Mian Bilal Bashir, Advocate, representing the petitioner in this petition, while exercising his right of rebuttal, submits that since the findings of the PLRA Board are against the law laid down by the Apex Court of the country in the cases reported as Pakistan Defence Officers Housing Authority v. Mrs. Itrat Sajjad Khan and others (2017 SCMR 2010) and 2017 PLC (C.S) 1274, the same are not sustainable.
9. I have heard learned counsel for the parties at considerable length and have also gone through the documents, appended with this petition as well as those forming part of the report and parawise comments/replies submitted on behalf of the respondents, in addition to the case-law cited at the bar.
10. Firstly, taking up the objection raised by the learned Additional Advocate-General as well as learned counsel representing the PLRA against maintainability of this petition, I am of the view that admittedly prior to their transfer to PLRA the terms and conditions of service of the petitioners were governed under the Punjab Directorate of Land Records Posts Service Rules, 2010 (the Rules 2010) which were further amended in the year 2016 and the same having been framed under the statutory provision of section 23 of the Punjab Civil Servants Act, 1974, cannot be termed as non- statutory. The apex court of the country while dealing with somewhat similar proposition in the case, of P.T.C.L. and others v. Masood Ahmed Bhatti and others (2016 SCMR 1362) has inter-alia held as under: - "A fleeting glance at the provisions quoted above would reveal that the departmental employees on their transfer to the Corporation became employees of the Corporation under section 9 of the Act of 1991 and then of the PTCL under section 35 of the Act of 1996. Their terms and conditions of service were fully protected under sections '9(2) of the Act of 1991 and 35(2) of the Act of 1996.
None of the terms and conditions could be varied to their disadvantage as is provided by the sections reproduced above. Not only that the legislature also bound the Federal Government to guarantee the existing terms and conditions of service and rights including pensionary benefits of the transferred employees. Since they by virtue of the aforesaid provisions became employees of the Corporation in the first instance and then the PTCL, they did not remain Civil Servants any more. But the terms and conditions of their service provided by sections 3 to 22 of the Civil Servants Act and protected by section 9(2)-of the Act of 1991 and sections 35(2), 36(a) and (b) of the Act of 1996 are essentially statutory. Violation of any of them would thus be amenable to the constitutional jurisdiction of the High Court." (emphasis provided)
Further, the Apex court of the country in the case of Zarai Tarqiati Bank Limited and others v. Said Rehman and others (2013 SCMR 642) while adjudging the question qua maintainability of writ petition on behalf of the transferred employees has laid law to the following effect: "33. In the light of what has been discussed in the preceding paras, the Staff Regulations, 1961 and the Promotion Policy, 1999 stand incorporated by way of legislative reference and thereby have acquired a statutory status for the respondent employees who stood transferred and became employees of the company in terms of section 6 of the Ordinance, 2002. The writ petitions which sought enforcement of those regulations were maintainable."
Moreover, the Hon'ble Supreme Court of Pakistan in the case reported as Pakistan Telecommunication Company Limited and another v. Muhammad Zahid and 29 others (2010 SCMR 253) while dilating upon the question regarding maintainability of writ petition against autonomous bodies, semi-autonomous bodies, statutory bodies and companies functioning under the control of the Federal or Provincial Government has inter alia concluded as under:- "Now, what is meant by the phrase "performing functions in 'connection with the affair of the Federation or a Province". It is clear that the reference is to governmental or State functions, involving, in one form or another, an element of exercise of public- power. The functions may be the traditional police functions of the State, involving the maintenance of law and order and other regulatory activities; or they may comprise functions pertaining to economic development, social welfare, education, public utility services and other State enterprises of an industrial or commercial nature. Ordinarily, these functions would be performed by persons or agencies directly appointed, controlled and financed by the State, i.e. by the Federal Government or a Provincial Government. However, in recent years, there has been manifest a growing tendency on the part of governments to create 'statutory corporations for undertaking many such functions, particularly in the industrial and commercial spheres, the belief that, free from the inhibiting effect of red-tapism, these semi-autonomous bodies may prove more effective, flexible and also profitable. Inevitably, government retains effective control over their functioning by appointing the heads and other senior officers of these corporations, by regulating their composition and procedures by appropriate statutes, and by finding funds for financing their activities. Examples of such statutory corporations are the National Bank of Pakistan, the West Pakistan Water and Power Development Authority, the National Shipping Corporation, the Agricultural Development Bank of Pakistan, and the large number of Universities functioning under their respective statutes. On account of their common attributes, as mentioned in the preceding paragraph, they have all been regarded as persons performing functions in connection with the affair of the Federation or a Province."
If the objection raised by the learned Additional Advocate General as well as by the learned counsel for PLRA is considered on the touchstone of the afore-referred judgment of .the Hon'ble Supreme Court there leaves no ambiguity that maintainability of this petition is to be seen with reference to Rules, 2010, hence the objection raised by respondents side is hereby spurned.
Considering from another angle, according to own showing of the respondents the petitioners were adjusted in PLRA in the light of section 31(f) of the Act, 2017. Since the petitioners have sought enforcement of their terms and conditions of service while serving in BOR in terms of section 31(f) ibid, their request cannot be considered as non-maintainable as enforcement of a statutory provision can be sought from this Court.
11. The next moot question is as to whether after transfer of the petitioners from BOR to PLRA, the terms and conditions of service of the petitioners underwent a change or not. In this regard, I am of the view that according to the stance of the respondents the petitioners stood transferred to PLRA on the dint of section 31(f) of the Act 2017 which reads as under: - "(f) Assistant Directors Land Records and Land Record Officers sanctioned in the Directorate of Land Records, Punjab shall stand transferred to the Authority on the same terms and conditions as envisaged in their contracts and shall be deemed to be adjusted against the positions created in the Authority and shall be eligible for all benefits in Authority available for similar or equal posts in the manner prescribed." (emphasis provided)
From above, it is crystal clear that the petitioners were transferred to PLRA against same terms and conditions of service which were being enjoyed by them in BOR. At the cost of repetition, it is observed that according to the service rules applicable to the petitioners, at the time of their recruitment, which were subsequently amended in the year 2016, they were entitled for confirmation/promotion subject to fulfillment of requisite criteria. The apex Court of the country in the case of Divisional Engineer Phones, Phones Division, Sukkur and another v. Muhammad Shahid and others (1999 SCMR 1526) while dealing with the question relating to terms and conditions of service of a transferred employee on the strength of statutory law, has inter-alia held as under:- "In cases of Corporation created by the Government through statutory instruments if existing employees are transferred to the Corporation, in the absence of any provision to the contrary, the transferred employees continue to remain in the service of Corporation on the same terms and conditions under which they were working before their transfer to the Corporation."
Further, in the case of P.T.C.L. and others (supra) the Hon'ble Supreme Court of Pakistan, while dealing with status of the employees who were transferred from a government department to a statutory body on the strength of legislative piece, has inter-alia concluded as under:- "A fleeting glance at the provisions quoted above would reveal that the departmental employees on their transfer to the Corporation became employees of the Corporation under section 9 of the Act of 1991 and then of the PTCL under section 35 of the Act of 1996. Their terms and conditions of service were fully protected under sections 9(2) of the Act of 1991 and 35(2) of the Act of 1996.
None of the terms and conditions could be varied to their disadvantage as is provided by the sections reproduced above."
If the request of the petitioners for regularization of their service is seen on the strength of the afore-quoted judgments, it seems to be just and fair and it cannot be turned down mere on account of their transfer to PLRA.
12. Insofar as the plea of learned Law Officer as well as learned counsel representing PLRA that since the petitioners were appointed on contract basis against project posts, they are not entitled for regularization is concerned, suffice it to note that admittedly PPSC undertook recruitment process pursuant to the requisition sent by the BOR. In my humble opinion, to appreciate the plea, under discussion, perusal of the Requisition Form sent by the Senior Member/Member (Revenue)/Secretary to Government of the Punjab, Revenue Department, to PPSC is imperative which for convenience of reference is imaged below: - The afore-imaged requisition sent by the BOR furnishes replies two important queries raised by the learned counsel for the respondents. Firstly, it clarifies that the appointment of the petitioners was not temporary in nature rather it was contractual, thus, the argument advanced by Mr. Muzaffar Islam, Advocate representing PLRA, that the petitioners were appointed against temporary posts stands negated from the documents attached by respondents Nos.1 and 2 with their report and parawise comments. Secondly, in the afore-imaged requisition, against Serial No.8 it has been clarified that the terms and conditions of the petitioners were to be governed under Notification, dated 20.08.2010. The said Notification having been issued after approval of the Governor in terms of section 23 of the Civil Servants Act, 1974 enjoyed the status of statutory Rules, hence the petitioners cannot be considered project employees at the whims of the respondents.
13. Since necessary information regarding the department/organization in the which the prospective selectees are to be appointed is contained in public advertisement, in my humble opinion a cursory glance over the advertisement pursuant whereto the petitioners applied against the post in question would be conducive. For facility of reference, the same is imaged below:- From afore-imaged advertisement, it is crystal clear that there was no mention of the fact that the recruitment was to be made against any project post rather it was clarified in unequivocal words that recruitment was meant for BOR. It is well settled by now that terms and conditions for appointment against a particular post in a government department are determined on the basis of the public advertisement pursuant whereto the recruitment process is to be undertaken.
Reliance in this regard is placed on LESCO v. Muhammad Shoaib (2020 PLC (C. S.) 654), Syed Faisal Ali v. Federation of Pakistan (2019 PLC (C. S.) 751), Muhammad Wasif Khan v. I.G. Police (2018 PLC (C.S.) Note 181) and Usman Ashraf v. Inspector General of Police (2017 PLC (C. S.) 232). If the question as to whether the petitioners were appointed against any project is adjudged on the touchstone of the afore-referred judgments, there leaves no doubt that they were hired on contract basis in the Board of Revenue Punjab, under Contract Policy, 2004.
14. A perusal of the file shows that the Government of Punjab, S&GAD Department, Lahore, through Notification, dated 12.08.2010, notified the Punjab Directorate of Land Records Posts Service Rules, 2010, upon approval by the Governor of the Province. The said Notification along with the Schedule annexed therewith is imaged below:- The afore-imaged rules were amended in the year 2016 through Notification, dated 17.08.2016. The said Notification along with relevant Schedule is also imaged below:- GOVERNMENT OF THE PUMAS SERVICES & GENERAL ADMINISTRATION DEPARTMENT (REGULATIONS WING)
Dated Lahore, the 17th August, 2016 NOTIFICATION No.SOR-III(S&GAD)1-7/ 2010. In exercise of the powers conferred under section 23 of the Punjab Civil Servants Act 1914 (VIII of 1974), Governor of the Punjab is pleased to make the following rules:
1. Short title and commencement- (1) These rules may be cited as the Punjab Directorate of Land Records Posts Service Rules 2016.
(2) They shall come into force at once.
2. Method of recruitment- The method of recruitment, minimum qualifications, age limit and other incidental matters for the posts of the functional unit shall be such as art given in the Schedule appended to these rules.
3. Repeal. - The Land Records Ministerial Service Rules, 1963 and the Punjab Directorate of Land Records Posts Service Rules 2010 are hereby repealed.
DR. MUHAMMAD SALEM' MUIR SECRETARY (REGULATIONS) S&GAD 14O.SORAIII(S&GAD)1-7/2010 Dated Lahore, the 1st September, 2016 A copy is forwarded for information and necessary action to:- The Senior Member Board of Revenue, Punjab.
The Secretaries, Government of the Punjab, i) Finance Department. ii) Law &Parliamentary Affair's Department. iii) Management & Professional Development, Department.
3. The Accountant General, Punjab, Lahore.
4 The Secretary, Punjab Public Service Commission, Lahore.
5. The Deputy Secretary (Reg:), Law & Parliamentary Affairs Department
6. The Director, Land Records, Punjab.
1. The Deputy Secretary (PC); Finance Department, Lahore.
The System Analyst (O&M Wing),=S&GA Department, Lahore with the request-to incorporate the above remit/wed amendments in the database created in the 0>& M Wing, S&GAD.
9. The Private Secretaries to the Governor Punjab/Chief Minister/Chief Secretary/Additional Chief Secretary and secretary (Services), S&GAD.
10. The Superintendent, Government Printing Press Punjab, Lahore with the request to get published this-notification in the Official Gazette and supply 20 printed copies thereof to the undersigned:- (MUHAMMAD SALEEM)
SECTION OFFICER. (R-III)
A cursory glance over the afore-imaged rules shows that the same were approved by the Governor of the Province while exercising his power in terms of section 23 of the Punjab Civil Servants Act, 1974. The said fact alone renders it crystal clear that the appointment of the petitioners was not against any project and the rules governing their terms and conditions of service were statutory in nature.
15. It is not out of place to mention here that according to the afore-imaged rules a complete mechanism for recruitment against the post of Assistant Director Land Record and confirmation/promotion against the said post has been provided meaning thereby that they were entitled to the benefit of the Act, 2018 irrespective of the fact as to whether they were working in BOR or PLRA.
16. It is trite law that with a view to determine the status of an employee, the relevant rules and regulations governing his terms and conditions at the time of induction in government service play pivotal role. Insofar as the matter in hand is concerned, at the cost of repetition, it is observed that since the terms and conditions of post being held by the petitioners were to be determined on the basis of afore-imaged rules, they cannot be deprived off their lawful right of regularization merely on the ground that they have been transferred to PLRA.
17. Considering from another angle, the terms and conditions of service of a government employee after induction in service are determined according to recitals of their appointment letter. To appreciate the said point, the operative part of Notification relating to appointment of the petitioners is imaged below:-
2. The appointment of the above mentioned persons will be governed under the previsions of Contract Appointment Policy, 2004.
3. Seniority of these officers vis-a-vis other will be determined as per rules.
4. The appointment of the above persons is subject to verification of their degrees/certificates of academic qualifications/any other particular/document or information submitted by the candidate and if any one or all of these are subsequently found to be bogus/forged/incorrect etc. the appointment will be withdrawn.
5. Their services will be liable to be terminated at soy time without assigning any reason, if their work and conduct is not satisfactory or the vacancy ceases to exist. In such an event, they will be given one month's notice for termination of service or one month's pay in lieu thereof. In case they wish to resign at any time, one month's notice will be necessary or in lieu thereof one month's pay shall be forfeited.
6. The appointment of the shove persons is subject to verification of their antecedents from Local Police/Special Branch,
7. The above mentioned persons will draw their salary from the Directorate of Land Records, Punjab, Lahore during the period of their training till further orders.
8. The candidates shall have to undergo a 16 weeks Training Programme starting from 27-10-2014 scheduled to be conducted by Management & Professional Development Department, Government of the Punjab. The candidates are directed to report to Programme Coordinator, MPDD at 08:00 A.M sharp on 27-10-2014.
9. Prior to joining training in MPDD every candidate shall submit his/her medical fitness certificate issued by the Medical Superintendent, Services Hospital, Wore along with his/her joining report in this Directorate on or before 25-10-2014.
10. The candidates after completion of their training of 16 weeks shall report immediately on the next working day to the Directorate of Land Records, Punjab for further assignment.
A cursory glance over the afore-imaged operative part of Notification regarding appointment of the petitioners shows that it has nowhere been mentioned that the appointment of the petitioners was against a project. Further, in the said notification a reference has also been made to Contract Appointment Policy, 2004, meaning thereby, that the petitioners were contract employees for all intents and purposes.
18. The next question, which surfaces for determination by this Court, is that as to whether the petitioners are entitled for regularization in terms of the Act, 2018. In this regard I am of the view that the Act, 2018 is applicable to the contract employees and the term "contract employee" has been defined under Section 2(c) of the. Act, 2018, which for convenience of reference is reproduced herein below:
(c) "contract employee" means an eligible person appointed on contract in a department immediately before the commencement of the Act but does not include a person appointed to a post in a project, programme, project management unit, project management office, time bound (one-time) development activity or as work-charged employee or an employee on daily wages."
From above, it is abundantly clear that the persons who have been appointed against a post in a project, programme, project management unit, project management office, time bound, development activity, work charge employees and an employee on daily wages have been excluded but the petitioners, being contract employees in terms of Contract Appointment Policy, 2004, are fully covered under the Act, 2018.
19. Another important question is as to who is competent/responsible to regularize the services of the petitioner. Section 4 of the Act, 2018 deals with the procedure for regularization of a contract employee which for facility of reference is reproduced herein below: "4. Procedure for regularization.--(1) The case of a contract employee appointed on the recommendations of the Commission shall be submitted to the appointing authority for regularization without reference to the Commission or the Scrutiny Committee.
(2) If the post falls within the purview of the Commission but the contract employee was appointed otherwise than on the recommendations of the Commission, the case shall be referred to the Commission for recommendations.
(3) If the post is outside the purview of the Commission, the case of a contract employee shall be placed before the Scrutiny Committee constituted under the Act for recommendations."
According to afore-quoted section 4(1), in cases where the contract employees have been appointed on the recommendations of the PPSC, it is the duty of the Department to put up their case before the Appointing Authority for regularization. At the cost of repetition it is noted that as per afore-imaged Schedule, the Appointing Authority in respect of the petitioners was the Member (Revenue)/SMBR, BOR. Further, the appointment letters were issued in favour of the petitioners by the Directorate of Land Records, Board of Revenue, Government of Punjab, Lahore. In this backdrop, it was incumbent upon the SMBR/Member (Revenue) BOR to regularize the services of the petitioners in the light of the Act, 2018.
20. A perusal of Minutes of 11th Meeting of PLRA Board, held on 13th October, 2020 shows that pursuant to the order passed by this Court in W.P. No. 2266/2017 case of the petitioners was forwarded by PLRA to the BOR fog consideration. The Full Board meeting of BOR was held on 28.07.2020 wherein following decision was taken: - "The house after deliberations on the proposals of PLRA anonymously opined that the matter regarding regularization of ADLRs and other staff of PLRA falls within the ambit/competence of PLRA Board which is fully empowered under the PLRA Act, 2017. The matter is, therefore, referred back to PLRA Board to decide the same in accordance with law and relevant regulations."
The conduct of the respondents, portrayed above, leaves no doubt that with a view to deprive the petitioners of their lawful right of regularization the respondents have made them shuttle cock inasmuch as the SMBR is of the view that after transfer of the petitioners to PLRA, the BOR has nothing to do with question relating to regularization of their services whereas the DG PLRA is of the opinion that since neither he sent any request to BOR for transfer of the petitioners to PLRA in terms of section 11 of the Act, 2017 nor the Act, 2018 is applicable to the employees of the PLRA, he cannot take any decision qua regularization of the petitioners.
21. While going through the report and parawise comments filed on behalf of the Chief Secretary, Government of the Punjab and Board of Revenue (respondents Nos.1 and 2 in this petition) I have noted that with a view to establish that the petitioners were recruited against a project, the said respondents have attached copy of Notification, dated 09.12.2013 (Annexure-G) which for facility of reference is imaged below: - The recitals of the afore-imaged Notification shows that the SMBR assigned the administrative control over Assistant Director Land Records/Assistant Collectors First Grade posted at Service Centers of Computerized Land Revenue Records in Tehsils, including posting and transfer, grant of casual/earned leave upto 30-days and TA/DA to the Project Director, Project Management Unit, LRMIS, Board of Revenue, Punjab with the clarification that the Project Director would exercise administrative control subject to the general supervision and control of SMBR/Secretary to Govt. of the Punjab, Revenue Department. The Notification, under reference, instead of lending any support to the case of the respondents goes against them for the reason that in the said Notification the Project Director PMU was not giver the powers of the appointing authority, thus, mere assigning the role of supervision does not give him the status of Appointing Authority. In this scenario, the stance of the respondents that the, petitioners were appointed in PMU cannot be given any weightage.
22. Now coming to the case-law, referred by the learned Law Officer I am of the view that the same is inapplicable to the present case for the reason that in the referred matter the controversy in pith and substance revolved around the regularization of contract employees appointed in a project whereas the discussion in the paras supra shows that appointment of the petitioners was made in BOR on contract basis and not against any project.
23. Brain Drain is one of the burning issues being faced by the country in these days. In my humble opinion, beside other factors the maltreatment towards the persons selected through competitive process, at the hands of the persons at the helm of the affairs in government departments, in respect of their future prospects and refusal to grant their rights is the main reason. The dismal picture of the affairs portrayed above shows that the respondents are trying their hard to keep the petitioners aloof from the benefit of regularization of their services despite the fact that during the course of selection PPSC find them the best available stuff. If the issue of brain drain is to be redressed, such like acts should be deprecated and the lawful rights of the citizens should be given to them even without interference of the Courts. There is nothing on record to show that there was any complaint about output of the petitioners since their induction in the BOR in the year 2014. In this scenario, the respondents instead of being egoistic should admit the rights of the petitioners towards regularization of their services.
24. During the course of arguments, learned counsel representing PLRA put much emphasis on the fact that since the petitioners have been performing their duties in PLRA without any objection, they have impliedly accepted their adjustment there against existing terms and conditions, hence they are not entitled for regularization. In this regard, I am of the view that since their terms and conditions of service in the BOR were protected at the time of their transfer in PLRA they were entitled to the service prospects guaranteed under the Rules, 2010. Secondly, the petitioners apprehending terminating of their services might have reported in PLRA. The Apex of the country while taking note of such imbalanced situation between the employer and the employee in the matter of Ikram Bari and 524 others v. National Bank of Pakistan and another (2005 SCMR 100) has inter alia held as under: "15. An Islamic Welfare State is under an obligation to establish a society which is free from exploitation wherein social and economic 'justice is guaranteed to its citizens. The temporary Godown staff and the daily wages employees were continued in service of the Bank on payment of meagre emoluments fixed by the Bank. In most of the cases of these employees, there were artificial breaks in their service so as to circumvent the provisions of the Labour Laws and the Rules of the Bank and to deny them the salaries and other service benefits of regular employees. In some cases, the Bank did not issue formal letters of appointment or termination to the employees so as to preclude them to 'have access to justice. There was no equilibrium of bargaining strength between the employer and the employees. The manner in which they had been dealt with by the Bank was a fraud on the Statute. A policy of pick and choose was adopted by the Bank in the matter of absorption/ regularization of the employees. By Article 2-A of the Constitution, which has been made its substantive part, it is unequivocally enjoined 'that in the State of Pakistan principle of equality, social and economic justice as enunciated by Islam shall be fully observed which shall be guaranteed as fundamental right. The principle of policy contained in Article 38 of the Constitution also provide, inter alia, that the State shall secure the well being of the people by raising their standards of living and by ensuring equitable adjustment of rights between employers and 'employees and provide for all citizens, within the available resources of the country, facilities for work and adequate livelihood and reduce 'disparity in income and earnings of individuals.
Similarly, Article 3 of the Constitution makes it obligatory upon the State to ensure the -elimination of all forms of exploitation and the gradual fulfilment of the, fundamental principle, from each according to his ability, to each according to his work. It is difficult to countenance the approach of the Bank that the temporary Godown staff and the daily wages employees should be continued to be governed on disgraceful terms and conditions of service for an indefinite period. In view of section 24-A of the General Clauses Act, 1897, the National Bank was required to act reasonably, fairly and justly. An employee being jobless and in fear of being shown the door had no option but to accept and continue with the appointment on whatever conditions it was offered by the Bank. In the case of Pakistan v. Public at Large PLD 1987 SC 304, it was contended before the Shariat Appellate Bench of this Court that the provisions of law impugned therein amounted to a contract between the Government and the civil servant and thus they involved his consent. It was observed that in fact it as not in the nature of a free consent between the agents. On the one hand, State power was projected in the form of a Statute and on the other, the civil servant had no choice of a bargain on those provisions when joining the service. He could not get it changed. In Habibullah v.
Government of the Punjab and 5 others PLD 1980 Lah. 37, it was held that the employer being placed in a position of authority and strength could always coerce employees to waive their legal protection and accept, contractual terms at the pains of losing his job."
25. For what has been discussed above, this petition (W.P. No.12022 of 2024) is accepted and impugned decision, dated 13.10.2020, taken by the PLRA Board in its 11th Meeting is set-aside. As a result, the DG, PLRA is directed to place case of the petitioners and other selectees, who are in service, before the SMBR who in turn shall issue order qua regularization of services of the petitioners and other similarly placed persons, within one month positively, under intimation to this Court through the Deputy Registrar (Judicial). No order as to costs.
26. Insofar as the contempt petition (Crl. Org. No.35362-W of 2019) is concerned, suffice it to note that since SMBR has already been directed to issue order qua regularization of services of the petitioners, no further proceedings are required in the contempt petition which is disposed of accordingly. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.