' By this common judgment I propose to .Dispose of Writ Petitions Nos.17276, 18115, 19821 of 1999, 22007 of 2001, 22379, 23301, 23302, 2330, 23304, 23305, 23306, 23307, 23308, 23309, 23310, 23311, 23312, 23313, 23314, 23315, 23316, 23317, 23318, 23319, 23320, 23321, 23322, 25323, 23324, 23325, 23326, 23327,23328, 23329, 23330, 23331, 23332and 23333 of 1999 as questions of law and facts in all these matters are similar.
2. Brief facts of the said cases are that all the employees were appointed as technical/non- technical staff temporarily on daily wages and they had been working with respondent No,6 for over three years satisfactorily and there have been no adverse reports against them. It is alleged that the sanction of the posts of the petitioners were granted by the competent authority and the educational qualifications fixed for recruitment of Class-IV Staff through Notification dated 13-1- 1968 and again vide letter- dated 11-6-1973 and Rules of 1973 was 6th Class or even less. It is alleged that the petitioners and others are Middle and some of them are also Matric. The respondents, according to the petitioners, have been in past confirming the temporary staff/Electric Muawan etc., whose qualification was 8th class or even below that. Reference has been made to order dated 24-6-1997 and similarly the Managing Director, IBU Headquarters Office, Lahore has confirmed the temporary staff working at Peshawar under the orders of Peshawar High Court. Respondent No,1 vide letter dated 3-1-1970 addressed to all Divisional Superintendent sent a copy of Railway Board's letter dated 17-12-1969, whereby it was decided that all temporary posts which were continuing for more than three years should immediately be placed on permanent footing.
3. It is asserted that in spite of completion of 3 years service like others the petitioners services are not being confirmed and they claimed that they had been discriminated by the respondents. They approached the Union for help and Pakistan Railway National Labour Alliance through its letter, addressed to the respondents in April, 1999, has prayed for confirmation of the Temporary Labour Staff (TLA) according to Rules.
4. It is further alleged that respondent No,2 vide letter dated 14-9-1999 has circulated a copy of Ministry of Railway's Letter No,46/1/96(E-1) dated 25-5-1999 with the direction that the recruitment should be made in essential and technical vacancies only. Total number of recruitment to be made is 4277. Division-wise allocation has also been given. First of all surplus staff in the Pakistan Railways due to closure of Section/Trains or any other surplus staff should be absorbed first by redesignation in the same scale from non-essential categories to essential categories with the approval of the competent Authority. It was also mentioned in the letter that it had been decided against Serial No,6 of the letter that Temporary Labour Staff (TLA) against these posts should be discontinued after recruitment. The categories of staff to be recruited alongwith basic scales and revised qualification has also been attached with the letter. In the letter the qualification against Muawan was prescribed as Matric 2nd Division instead of earlier qualification of below sixth class.
The petitioners moved a representation for their confirmation and the Electrical Foreman/RTL vide letter dated 9/1999 has recommended their case to Regional Electrical Engineer, Lahore for consideration.
5. Through these Constitutional petitions it has been prayed that the respondents may be directed to act in accordance with law, not to discriminate against the petitioners, confirm them against existing permanent posts like their other colleagues against permanent vacancies of Electrical Muawan/TRA etc. And against the vacancies which will be made available after confirming and adjusting them only then direct recruitment through advertisement be made.
6. Writ Petition No, 19821 of 1999 involving similar controversies was admitted for regular hearing and the other writ petitions were also admitted for regular hearing. It was directed to the respondents that the services of the petitioners would not be terminated/dispensed with in the meanwhile.
7. In parawise comments and report respondents Nos.1 to 6 have raised preliminary objection that the writ petitions are not maintainable as no cause of action has arisen in favour of the petitioners.
It has further been submitted that the petitioners were never appointed on permanent basis but were only TEA, who were not likely to be permanent as no appointment letter was issued in their favour and no service book was maintained by the Authorities for the simple reason that they were recruited for temporary purpose, therefore, they have no locus standi to approach this Court. It is further stated that the petitioners were temporary employees and they cannot be regularised in service and they cannot be confirmed automatically. It is further stated that the Railway Authorities have published a notice dated 23-9-1999 inviting applications from all the candidates, which includes the vacancy of Electric Muawan (TRL) requiring qualification of Matric 2nd Division and the petitioners and others have failed to apply within time rather approached this Court, therefore, they have no locus standi to approach this Court. It is stated that vide letter 23-9-1999 qualification for Electrical Muawan (RTL) is Matric 2nd Division and is not Middle. It is further contended that temporary staff was recruited through proper selection and having passed medical examination prescribed for the appointment can be confirmed but the TLA, who were neither recruited through proper selection nor passed any examination, therefore, cannot be confirmed as they were engaged for specific purpose up to three months or as the case may. It. Was also stated that the persons engaged against TLA were never allowed to work for more than three months continuously on particular job. It is also stated by respondents that the petitioners could not be considered against surplus staff. Hence they were never appointed regularly and cannot claim their permanent absorption against the vacancies, which are to be advertised.
8. The learned counsel for petitioners Mr. Muhammad Zaman Qureshi, Advocate, contends that the qualifications for Electrical Muawan is up to 6th class according to Notifications issued on 13-1-1968 and on 11-6-1973 and all the petitioners are middle and some of them are matriculate, hence when they were appointed their basic qualification for appointment against posts of Electrical Muawan etc. Was less than 8th class, hence they were qualified for the same although they were appointed on workcharge basis. It is contended that subsequent enhancement of qualification made through policy letter dated 14-9-1999 is with mala fide intention and ulterior motive in order to deprive the petitioners to remain as TLA to deprive them from the post. It is further contended that the petitioners are being discriminated as other similarly placed persons were confirmed in view of judgment of Peshawar High Court in Writ Petitions Nos.412 of 1995 to 513 of 1995 with concurrence and FA and ACO has accorded approval for confirmation of the employees who were party to the proceedings i,e, 102 temporary TLA Bridge Branch. It is further contended that the letter was issued from Head Quarter of the respondents to all the Divisional Superintendent that all temporary posts which were continuous for more than three years might immediately be placed on permanent - footings in consultation with the D.A.Os. Concerned. Hence the policy and instructions of Railway Departments were that the persons serving as temporary employees for more than three years be regularised in service. The petitioners due to issuance of this letter, which is Annexure-I of this petition has continuous service for more than three years are eligible to be regularised in service on permanent footing and cannot be removed from service under the garb of temporary employees.. The learned counsel further referred to Annexure-K of this petition, which shows that the total recruitment, which is to be made by the respondents is 4277 and Division wise allocation was also enclosed in Annexure-B to the letter of Policy dated 14-9-1999, which is the cause of grievance for filing instant wilt petition. The petitioners claim is that they are firstly to be absorbed as they are relevant staff and they had already served temporary for more than three years, hence they have to be first adjusted against the vacancies of electrical Muawan and those posts cannot be advertised for filling of the remaining vacancies. It is contended that this law is also applicable to the petitioners as well, but the respondents are illegally not adjusting them against said vacancies and have advertised The posts showing the posts as available to be filled and in order to deprive the petitioners from their permanent adjustment as they had already been qualified, the qualification has been enhanced instead of less than 8th class. It is further contended that section 2-A of the Service Tribunals Act is not applicable to the case of petitioners on the ground that under section 4(1)(b) Federal Service Tribunals Act, the case of petitioners falls within the purview of exceptions as they were not permanent employees, according to the respondents, being workers and due to MOD the employees of Railway Department could not approach Labour Court, hence only remedy available to the petitioners under the law was to file writ petitions. It is further contended that the Civil Service Act, 1973 is simply meant for civil servants and section 2-B of Civil Service Act defines civil servant and if it is read with Federal Service Tribunal Act it does not include a person falling under sub-clause (2), who is an employee on contract basis or is employed on contingent basis. The learned counsel contends that under section 2(ii) of the Service Tribunals.
Act, the case of petitioners falls within exceptions and the remedy before the Labour Court is not available to the petitioners. It is further contended that under section 4 of the Federal Service Tribunals Act, no appeal can be tiled without tiling appeal to the Authority against the order, and as no order has been issued against the petitioners and they could not file appeal, hence the appeal before the Federal Service Tribunal , not competent. He has relied upon PLD 1977 SC 382, 1998 PLC (C.S.) 777, 1999 PLC (C.S.) 1208 at page 1210 and 1998 SCMR 1911=1998 PLC (C.S.) 1154. The learned counsel further contends that only employees covered under section 2-A can file appeal who were not previously civil servant. In this respect he relies upon 1999 SCMR 197. He further contends that under Industrial Relations Ordinance, 1969 section 1 subsections (2) and 3(b) of IRO is applicable to the railway employees and when the Railway Department has been included in essential service, the imposition of IRO has been exempted and the Railway servants cannot go to the Labour Court.
He relies on PLD 1978 Karachi 132 and PLD 1992 SC 451(b). It is further contended that the workcharge employees are not civil servants. He has referred PLD 1996 SC 610 and contends that the Hon'ble Supreme Court of Pakistan has held that the nature of work for which the employees were employed as workcharge employees will show that they are workers and further contended that the workcharge employees who were employed on workcharge basis against permanent posts were entitled to be confirmed. Reliance has been placed on 1997 PLC (C.S.) 1131, PLD 1978 Karachi 132, 1985 PLC (C.S.) 681, PLD 1973 SC 144 and PLD 1974 SC 291 at page 292 on the ground that the petitioners are seeking a direction and the power to issue direction vests in the High Court and can be exercised by it under Article 199 of the Constitution of Islamic Republic of Pakistan and Service Tribunal has no authority to issue any- direction. He has further contended that West Pakistan Industrial and Commercial Employment (Standing Order) 1968 Standing Order I has given classification of workman and according to classitication of workman permanent is who has completed more than nine months, 3 months or more and 12 months including breaks. It contended that the petitioners are serving for more than 3 years, hence the petitioners are entitled to be confirmed permanently.
9. Mr. Asmat Kamal, learned Advocate, appearing on behalf of Union in Writ Petition No, 19821 of 1999 has adopted the arguments of Mr. tuhammad Zaman Qureshi, Advocate, and draw attention of this Court to the case PLD 1.992.SC 451 at page 455 to contend that the work charge employees cannot be treated as civil servants. He also relies on 1993 SCMR 2385 to contend that the workcharged employees fall in exceptions of the Civil Service Act. He further relies upon 1999 PLC 872 and contends that if the employees are allowed to continue service for more than 9 months, it was held that they are permanent employees. The learned counsel has further relied on NLR 2002 (sic) 30 to contend that the petitioners are workers but cannot approach the Labour Court due to declaration of Railway Department as essential service, hence only writ petition can be filed by the petitioners.
10. On the other hand, the learned counsel appearing on behalf of Railway Department, Sheikh Anwar-ul-Haq, Advocate, has seriously contested the writ petitions. Preliminary objection has been raised by him about maintainability of the writ petitions after induction of section 2-A in Service Tribunals Act and though the petitioner are temporary employees yet they can approach the Service Tribunal. He has relied on the case reported in 2000 SCMR 826. It is further contended that the petitioners are also civil servants for the limited purpose of filing of appeal before Service Tribunal for redressal of their grievances regarding matter of terms and conditions of service. He further relied upon 1997 SCMR 169 and 1998 SCMR 220 to contend that the matter relates to terms and conditions of service, which is not amenable in writ jurisdiction. He further relies upon 2000 SCMR 832 to contend that section 2-A is applicable with retrospective effect. He has further relied upon NLR 1999 Lahore 56 and contends that ad hoc employees and workcharge employees cannot be treated as permanent employees unless they are appointed on permanent basis. Likewise he also relied upon 1992 SCMR 1341. He further contended that the petitioners were never appointed on permanent basis rather they were appointed for limited purpose and specific work, therefore, they cannot be treated as permanent employees. It is further submitted that the basic qualification for permanent employees of the said seat is matriculate according to letter issued on 14-9-1999 and the petitioners if qualify can apply for the same, but /hey cannot claim their adjustment against the post as they were never appointed on regular basis through proper selection by the advertisement of posts and filling the same on merits.
11. Mr. Jahangir A. Jhoja, Advocate, appearing on behalf of the respondent contends that the petitioners are civil servants as they are included in the definition of civil servant under section 2 of the Civil Servants Act, 1973 by the insertion of section 2-A in the Service Tribunals Act, hence after the induction of section 2-A all the employees who were not civil servants previously have become civil servants for limited purpose for redressal of their grievance before the Service Tribunal.
According to the learned counsel the facts and circumstances of this case relates to terms and conditions of service of employees, therefore, the matter squarely falls within the jurisdiction of Service Tribunal and the jurisdiction of this Court is barred under Article 212 of the Constitution.
12. Mr. Amir Latif Rana, Advocate, appearing in writ petition on behalf of respondents has also relied upon 1991 SCMR 197 to contend that the Railway Employees have also become civil servants Who were not previously civil servants and can approach to Service Tribunal.
13. In reply to arguments of the learned counsel for respondents, Mr. Muhammad Zaman Qureshi, Advocate, has argued that the appeal before the Service Tribunal can only be filed against order under section 4 of Service Tribunals Act and no order has been passed by the respondents hence they cannot be referred to Service Tribunal, even if they are declared to be civil servants as only direction is being sought from this. Court, which can only be issued by this Court and not by the Service Tribunal.
14. I have heard the arguments of the learned counsel for parties and perused the documents attached with these writ petitions. The first pivotal question, which requires to be decided before making decision on merit is that whether section 2-A of the Service Tribunals Act is applicable to the petitioners or not and that whether after induction of section 2-A in 1999 all the employees including workcharge employees or employees on contract basis are civil servants and can approach to the Service Tribunal in the matters relating to the terms and conditions of their service.
Preliminary objection raised by the learned counsel for respondents is that the petitioners were employees on temporary basis and they can approach to the Service Tribunal for redressal of their grievance. I have considered the arguments of learned counsel for parties. The consistent view taken by the Supreme Court of Pakistan after induction of section 2-A in Service Tribunals Act is that all the employees working on contract or on workcharge basis and temporary employees are civil servants for the limited purpose to approach the Service Tribunal for redressal of their grievance. I am fortified by the view taken by august Supreme Court in Zaheer Ullah and 13 others v.
Chairman, WAPDA, Lahore (2000 SCMR 826)', wherein it has been decided that section 2-A which was inserted in the Service Tribunals Act, 1973, by its own force, created a class of Government Servants by fiction, for the purpose of allowing them to avail remedy of appeal before the Service Tribunal. Section 2-A while providing that the service under any authority, corporation, body or organization established by or under a Federal Law or which is owned or controlled by the Federal Government or in which the Federal Government has a controlling share in interest is declared to be the service of Pakistan and every person holding a post under such corporation or organization shall be deemed to be a civil servant for the purpose of Service Tribunals Act does not make any differentiation between the employees working in such organization either as regular employees or contract employees or workmen. Employees though not falling in the definition given in section 2(b) of Civil Servants Act, 1973, were covered by the provisions of section 2-A for the purposes of availing remedy before the Service Tribunal. The fact that persons were employed in the organization/corporation on contract basis, could not disentitle them to the remedy of appeal which became available to them on account of incorporation of section 2-A in the Service Tribunals Act, 1973.
15. Hon'ble Supreme Court of Pakistan in case G.M. National Bank of Pakistan and others v. Abdul Aziz and others (2002 PLC (C.S.) 18) has gone to the extent that if the petition, appeal or writ petition before the High Court, were pending relating to the matter of employees before induction of section 2-A in the Service Tribunals Act, shall abate under section 6 of Service Tribunals Act as the aggrieved party can approach to the Service Tribunal without any discrimination whether the party was civil servant or employer. Therefore, section 6 of the Service Tribunals Act, 1973 would override section 4 of the Service Tribunals Act, 1973 and being a special remedy created as a consequence of abatement of proceedings, the appeal should have been entertained by the Service Tribunal. In this case Supreme Court of Pakistan has held that if the matter was decided by the Labour Court and the appeal was pending before the Labour Appellate Tribunal by insertion of section 2-A in the Service Tribunals Act, 1973 the appeal before Labour Appellate Tribunal had abated, and the matter was taken to Service Tribunal. The appeal before the Tribunal was dismissed for lack of jurisdiction on the ground that the appeal before the Tribunal would be an appeal against judgment of Labour Court. It was held that effect of section 2-A of the Service Tribunals Act, 1973 was that notwithstanding any judgment rendered by the Labour Court, or any other forum, all such matter covered under section 2-A of the Service Tribunals Act, 1973 stood abtated. It is further held Service Tribunal alone had the exclusive jurisdiction to examine the grievance of such persons. This judgment is complete answer to the arguments of the learned counsel for petitioners that even after induction of section 2-A in the Service Tribunals Act still they are excluded from the definition of civil servant given in section 4(1-B) and their case falls in exception as they are workers. In the said judgment Supreme Court has held that even the workers who had filed petition before the Labour Court which was decided and the appeal, pending before the Labour Appellate. Court was abtated as the persons who are workers are covered by section 2-A (ibid) and shall have only remedy before the Service Tribunal. In such circumstances, the arguments of the learned counsel for petitioners that the petitioners were exempted is not tenable and has not been accepted by the Supreme Court of Pakistan in the above referred Case.
16. Similar view has been taken in Syed Aftab Ahmed and others v. K.E.S.C. And others 1999 SCMR 197 at page 200 B and C) and it was held that under section 2-A of the Service Tribunals Act all the employees can go to the Service Tribunal relating to the matter of terms and conditions of service.
Needless to add that the Hon'ble SupremeCourt in Malik Mumtaz Ahmad and others v. Federal Service Tribunal (2000 SCMR 832) has held that section 2-A is applicable with retrospective effect.
17. Due to above reason I hold that the writ petitions are not maintainable and are dismissed.
However, before parting with this judgment, I direct the respondents to decide the petitions of petitioners within 60 days, if filed before them within seven days from announcement of this judgment, which will enable them to seek their remedy before relevant forum.