' The petitioner, Executive Engineer of the Irrigation Department, calls in question the impugned order dated 21-3-1981 passed by respondent No,13, the Punjab Labour Court No, 1, Lahore and also the impugned judgment dated 2-5-1995 passed by the respondent No, 14, the Punjab Labour Appellate Tribunal, Lahore, whereby respondents Nos. 2 to 12 were reinstated in service on regular basis on absorption.
2. Respondents Nos. 2 to 10 are Tube well Operators whereas respondents Nos. 11 and 12 are Beldars in the Irrigation Department of the Government of the Punjab under the petitioner and were employed as back as in December, 1978, on workcharge basis. The Government took a decision in December, 1980, to make all employees of the category of the respondents as permanent employees and to consider them as having been appointed on regular basis. The respondents and all other employees of their category are workmen within the meaning of the Industrial Laws. The respondents and other similarly placed workers were not regularised on the ground that they had become over-aged. A notice dated 30-12-1980 of termination of their services was sent to the respondents and other similar workers. The said notice of termination of service was challenged before the Punjab Labour Court No, 1, Lahore, which accepted the grievance of the respondents and it was held that their services could not be terminated on the ground of being over-aged which consideration was relevant only at the time of original recruitment and not at any later stage. The order/notice of termination of these low-paid employees was set aside by the impugned order dated 21-3-1981. There was other round of litigation wherein the order dated 10-7-1982 was passed by the Punjab Labour Appellate Tribunal, Lahore, on the appeal of the petitioner. Writ Petition No, 2934 of 1982 was filed by respondents Nos. 2 to 12 which was accepted and the case was remanded to the Pur'jab Labour Appellate Tribunal to decide the appeal of the petitioner- Department afresh on merits. The Punjab Labour Appellate Tribunal passed the impugned judgment dated 2-5-1995 whereby the impugned order dated 21-3-1981 passed by the Punjab Labour Court No, 1, Lahore, was affirmed and the appeal of the petitioner-Department was dismissed.
3. The learned Assistant Advocate-General, Punjab, for the petitioner-Department has contended that respondents Nos. 2 to 12 were above the minimum age of 25 years and, therefore, they could not be made regular workers of the Irrigation Department and that the question of relaxation of their lack of qualification of age did not arise in their case. He further submitted that the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974, were not attracted to the case of the respondents inasmuch as the respondents were the low-paid workmen having been employed originally on daily rate basis. He relied on the judgment reported in 1992 PLC 924 in which it was held that the employees could not be made regular except in accordance with the rules of service.
4. I have considered the arguments of the learned Assistant Advocate-General, Punjab, for the petitioner-Department. At the outset, it would be useful to reproduce para. 8 of the impugned judgment dated 2-5-1995 passed by the learned Punjab Labour Appellate Tribunal, Lahore:-- "The services of respondents Nos. 2 to 12 were terminated on the sole ground that they could not be absorbed on regular basis as they were over-age. The question of upper age limit was germane at the time of initial recruitment of the respondents. If in spite of their being more than twenty-five years of age, they were appointed, it would be assumed that their upper age limit was impliedly relaxed. This question became irrelevant at the time of their absorption on regular basis on the sanction of the posts held by them on permanent basis. I, therefore, concur in the observation of the learned Labour Court that the services of the respondents could not be terminated on the ground that they were over-age at the time of their recruitment and once they were appointed, the condition of age stood automatically waived."
The objection as to over-age in regard to the respondents Nos. 2 to 12 was never raised or considered by the petitioner-Department at the time of their appointment or immediately thereafter. It was too late in the day for the petitioner-Department to raise such an objection when the respondents had acquired sufficient skill and experience to render valuable service to the State. The respondents/workmen are in the lowest category of employees and it was really injustice militating against the provisions of Articles 2A, 3 and 9 of the Constitution to deprive them of their livelihood on such like grounds. It does not behove a Government Department to take-such a position when it was fully cognizant of the age of all these workmen at the time of their recruitment. The objection as to the age of the respondents Nos.2 to 12 and other workmen should be deemed to have been waived. The reasoning given by the learned Punjab Labour Appellate Tribunal, Lahore, in my opinion, is unexceptionable. The State is expected to provide means of livelihood to its citizens as far as possible and not to deprive them of unless for very valid reasons. It was as back as 20 years when the respondents Nos.2 to 12 were appointed as workmen/workers with the petitioner. In the case of Bhagwati Prasad v. Delhi State Mineral Development Corporation (1990) 1 SCC 361), the Indian Supreme Court in a similar case took the view that in the case of daily rated workers the question of lack of qualification was relevant at the stage of appointment but not at the stage of confirmation when such employees had to their credit a long practical experience.
It was further held that even the artificial break of service to deprive benefit of continuous service to such employees was unlawful.
5. There is another aspect of the matter in this case. The order of reinstatement in service was passed by the Punjab Labour Court No, 1, Lahore, as back as on 21-3-1981 whereby the notice of termination from service was set aside. The respondents, it appears, have been performing their functions throughout without any break in service. The impugned judgment of the Punjab Labour 'Appellate Tribunal was passed on 2-5-1995 and it was at a much belated stage that the present writ petition was filed in January, 1997. The delay in filing the writ petition against the impugned orders has not been explained in the writ petition or in any other application by the petitioner or by the learned Assistant Advocate-General, Punjab, during the course of arguments. The Hon'ble Supreme Court has held; in the cases of The Chairman, District Screening Committee, Lahore and another v. Sharif Ahmad Hashmi (PLD 1976 SC 258), M.H. Mirza v. Federation of Pakistan through Secretary, Cabinet Division, Government of Pakistan, Islamabad and 2 others (1994 SCM R 1024) and Chairman, Pakistan Council of Scientific and Industrial Research', Islamabad and 3 others v. Dr. Mrs. Khalida Razi (1995 SCM R 698) that the Courts should strictly enforce the principle of laches in service matters.
6. Moreover, the impugned orders promote the social and economic justice as visualised by an Islamic State and the Constitution 'of Pakistan. The same need not be interfered with in the exercise of discretionary jurisdiction. It is now well-settled that even an order which is void and without jurisdiction may not be struck down by this Court if the same fosters justice. The impugned orders being just and fair do not call for any interference by this Court. In these circumstances, I am not inclined to exercise the discretionary jurisdiction by this Court.
7. Resultantly, the writ petition fails and is dismissed in limine.
8. Respondents Nos. 2 to 12 and all other employees who are placed in their category shall be treated as regular incumbents of their respective posts of Tubewell Operators and Beldars. The Secretary, Irrigation Department; Government of the Punjab, Lahore, is directed to ensure that formal orders of treating such employees as on regular basis are issued within a period of 60 days from today.