Present: Ijaz Ahmad, J.
AFTAB AHMAD
etc.--Petitioners
versus
GOVERNMENT OF
PUNJAB etc.--Respondents
W.P. No. 1102 of
2011, decided on 12.1.2012.
Punjab Civil Servants
(Appointment and Conditions of Service) Rules, 1974--
----Rr. 18 to 21-A--Notification No. D.S. (O
& M) 5-3/2004--Constitution of Pakistan, 1973--Art.
199--Constitutional petition--Appointment of contract employees--Petitioners
were appointed as secretaries of union councils on contract
basis--Qualification was required matric at least in
second division--Notification--To order appointments on regular basis in
relaxation of rules, of employees recruited on contract basis--Fulfillment of
requirements--Petition was dismissed--Challenge to--Petitioners possessed
requisite educational qualification for appointment as
secretaries--Regularization of their services on basis of eligibility on day of
initial appointment and regularization of services could not be conditioned
with any added qualifications--Qualification of F.A. for appointment as union
secretary was not applicable with retrospective effect--Entitlement to
regularization on account of eligibility on the day when appointed on contract
basis--Petitioners lacked the added qualifications were refused regularization
of their services--Validity--Qualification in vogue for post of Secretary U/C
even on permanent basis matriculation on the day when petitioners were
appointed on contract basis--Appointment as Secretary on permanent or contract
basis was to be made--Substantial difference inter-se both types of appointment
was that of tenure of services, second was of pensionary
benefits, which on termination of service would be given in case of one and
denied in case of other--Amendment in Rules 2005 did not take effect of service
would not be effected by it--Order refusing regularization of petitioners
services and disallowing further extension of contracts was held to illegal and
ineffective upon rights of petitioner, hence was set-aside--Services of all
petitioners who were eligible according to requirement on day of their initial
appointment on contract basis would stand regularized--Petition was accepted. [Pp. 292 & 293] A, B & C
2010
SCMR 739 ref.
Mr. Tanveer Iqbal Khan, Advocate for
Petitioners.
Mr. Shahid Mehmood Abbasi, AAG for Respondents.
Date of hearing:
22.12.2011.
Order
The petitioners
were appointed as Secretaries of the Union Councils in BS-5 on contract basis
on 20.4.2007. The qualification required and possessed by the petitioners on
that date was Matric at least in second division. The
Govt. of Punjab S&GAD Department (Regularization Wing) vide
Notification No. D.S (O&M) 5-3/2004/ Contract (MF) dated 14.10.2009
(Annex-D) was pleased to direct that all the Autonomous /Semi-Autonomous
Bodies/Special Institutions in Punjab shall make the appointment on regular
basis of the contract appointees in BPS-1 to 15 in line with Notification dated
14.10.2009 (Annex-F). The latter mentioned notification provides that the Chief
Minister, Punjab was pleased to order the
appointments on regular basis in relaxation of the relevant rules, of the
employees recruited on contract basis against the posts presently held by them.
These appointments were however, to be subject to the fulfillment of
requirement of Rules 18 to 21-A of the Punjab Civil Servants (Appointment and
Conditions of Service) Rules, 1974. The petitioners and others submitted Writ
Petition 2733 of 2010 seeking the regularization of their services. During
pendency of the petition, the services of 33 petitioners were regularized vide
order dated 26.2.2011. The petition was dismissed vide order dated 6.4.2011 to
the extent of the remaining petitioners who now are the petitioners in the
instant petition. The petitioners preferred ICA. No. 44 of 2011.
During the course of arguments, the learned counsel appearing on behalf of the
appellants sought withdrawal of the appeal and also of Writ Petition No. 2733
of 2010 with permission to present a fresh petition as it had been necessitated
in view of the order dated 26.2.2011 having been passed by the competent
authority regularizing the service of the successful contract employees. The
learned Division Bench seized with the ICA
allowed the withdrawal of the ICA
and writ petition with permission to file a fresh petition.
2. It is contended by the learned counsel for
the petitioners that the petitioners possessed the requisite educational
qualification for appointment as Secretaries, Union Council. On the eve of the
regularization of their services their cases have to be considered on the basis
of their eligibility on the day of the initial appointment and the
regularization of their services could not be conditioned with any added
qualifications. The learned counsel for the petitioners refers to Punjab Local
Council Service (Appointment and Conditions of Service Rules, 1983 wherein the
required qualification is Matriculation. He submits that the amendment made in
the Punjab Local Government District Service (Teshil/Town
Cadre) Rules 2005 through notification dated 7.8.2007 requiring the
qualification of F.A for appointment as Union Secretary is not applicable with
retrospective effect. He places reliance on "Secretary (Schools),
Government of Punjab, Education Department and others vs. Yasmeen
Bano" (2010 SCMR 739) to argue that the
petitioners are entitled to regularization on account of their eligibility on
the day when they were appointed on contract basis.
3. On the other hand, this petition is opposed
by the learned Assistant Advocate General. It is contended that the petitioners
on the basis of their eligibility at the time of contract appointment could
continue as contract employees as long the parties mutually agree. Their
regularization into service can only be ordered subject to fulfillment of the
requirements of the Punjab Appointment and Conditions of Service Rules, 1974;
that the petitioners do not possess the qualifications required under the Punjab
Local Government District Service (Tehsil/Town Cadre)
Rules 2005 as amended on 7.8.2007.
4. I have heard the learned counsel for the
petitioners, the learned Assistant Advocate General and also gone trough the record.
5. The Notification dated 14.1.2009 directs that
the Autonomous/Semi-Autonomous Bodies/Special Institutions in Punjab
shall make appointments on regular basis, of the contract appointees in line
with another even dated notification. The latter referred notification,
conditions the regular appointment of the contract employees subject to
fulfillment of the requirement of Rules No. 18 to 21-A of the Punjab Civil
Servants (Appointment and Conditions of Service) Rules, 1974. The referred
rules make it imperative that a candidate for initial appointment to a post
must possess the prescribed educational qualifications. The services of some of
the petitioners in Writ Petition No. 2733 of 2010 who possessed the required
educational qualification introduced in the Rules 2005 ibid through Notification
dated 7.8.2009 were regularized vide order dated 26.7.2011. The petitioners
lacking the said added qualifications were refused the regularization of their
services.
6. The qualification in vogue for the post of
Secretary Union Council even on permanent basis was Matriculation on the day
when the petitioners were appointed on contact basis. The appointment as
Secretary on permanent or contract basis was to be made in BS-5. The first
substantial difference inter-se both types of appointments is that of tenure of
service, the second is of the pensionary benefits,
which on the termination of service would be given in case of one and denied in
case of the other. The amendment in Rules 2005 does not only require the added
qualification of F.A, it also promises the appointment of Secretary Union
Council in BS-7 instead of previous BS-5.
7. The term that should not be left undefined is
the "Regularization" of the service. Regularizing as defined in the
Oxford English Dictionary is (1) making something regular (2) making a
temporary situation legal or official.
In the Blacks Law Dictionary, Regular place of business and the
regular course of business have been ascribed the meaning in contradiction to
temporary place of business and in contrast to incidental or occasional
business operations. The term "Regularization" is calculated to
condone the irregularities. The Regularization, thus
is not the de-novo appointment on regular basis of the contract employees
subject to possession of newly stipulated added educational qualification. It
is in fact the uninterrupted continuation of the service of the previous
contract employees till the completion of their normal tenure. The act of
regularization of service does not create a new job,
it only removes the lurking fear of sudden severance of their services. That
makes their employment status equal to their contemporaries appointed on
regular basis on the same day.
8. The amendment introduced on 7.8.2007 in the
Punjab Local Government District Service (Tehsil/Town/Municipal
Administration Cadre) Rules, 2005 does not take effect of their service will
not be effected by it. The order dated 26.2.2011 refusing the regularization of
the petitioners' services and disallowing the further extension of their
contracts is held to be illegal and ineffective upon the rights of the
petitioner, hence is set-aside.
9. Following the dictum laid down in
"Secretary (Schools), Government of Punjab, Education Department, and
others vs. Yasmeen Bano"
(2010 SCMR 739) the services of all the petitioners who were eligible according
to the requirement on the day of their initial appointment on contract basis
would stand regularized. They will be entitled to all the benefit as mentioned
in the notification dated 14.10.2009. This petition stands accepted.
(R.A.) Petition accepted
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