2021 PLP (C (PLC(CS)N)

AHMAD ALI, J.

Petitioners through this petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, are seeking the following relief: In view of the above-mentioned facts and circumstances, it is respectfully prayed that the writ petition may kindly be issued by directing the respondents to regularize the services of the petitioner from the date of their initial appointment in the same manner as similarly paced employees referred to above were regularized with all consequential benefits.

2. A long and short of the present constitutional petition is that an Earthquake Reconstruction and Rehabilitation Authority (hereinafter referred as ERRA) was established under the direct administrative control of the Prime Minister Secretariat and its Principle Office was located at Islamabad whereas, regional offices were located in all the provinces at different locations. Petitioners were appointed by the Authority on contract basis on different posts, and as such, they started to perform their duties with devotion and honestly without any stigma on their career. The contract of petitioners was extended from time to time without any break. However, in the meanwhile, under the funds allocated by ERRA the Provincial Government of Khyber Pakhtunkhwa established Provincial Earthquake Reconstruction and Rehabilitation Agency (hereinafter referred as PERRA) as well as District Reconstruction Units (in short DRU) in the Planning Development Department. The services of petitioners were transferred to PERRA. In the course of time, in order to constitute an autonomous organization for post disaster damage assessment, recovery, reconstruction and rehabilitation of the areas affected by the earthquake and to provide for matters connected therewith or incidental thereto, the Earthquake Reconstruction and Rehabilitation Authority Act, 2011, was promulgated. Petitioners after getting statutory cover, in order to seek regularization initially filed Writ Petitions Nos.964 and 965/2013 and 465/2017 before the Hon'ble Islamabad High Court. The Hon'ble Islamabad High Court treated all the petitions as representation and remitted it to the Federal Government with certain directions. In compliance of the said directions, the ERRA passed an order on 04.06.2018 whereby petitioners being served under the PERRA were directed to approach the provincial government. Thus, petitioners requested the Secretary/DG PERRA and the Chief Minister K.P.K. to regularize their services but with no result, thus, petitioners filed this petition with the above quoted relief.

3. This Court directed respondents to file para-wise comments to the writ petition which have been so furnished in three set of respondents, wherein, issuance of the desired writ is opposed.

4. Learned counsel for the petitioners argued that the petitioners have been serving on contract basis since 2007 and now petitioners have become over age and they have been in hanging position as the Federal Government regularised contract employees of the ERRA but petitioners were refused regularization on the score that they are provincial employees under PERRA. Besides, Government of Khyber Pakhtunkhwa vide Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2018, regularized the services of project employees but the petitioners were malafidely discriminated. learned counsel maintained that that ERRA Islamabad has been merged into National Disaster Management Authority Islamabad; and therefore, PERRA being provincial authority is having same relation with the Provincial Disaster Management Authority. He prayed for acceptance of writ petition.

5. Conversely, the learned counsel appearing on behalf of respondents denied the stance of petitioners on the score that the petitioners being contractual employees and appointed against project post are not entitled to regularization. He prayed for dismissal of the writ petition.

6. We have heard arguments and have carefully perused the record with their valuable assistance.

7. The perusal of the record leads us to the fact that the Government of Pakistan established an Earthquake Reconstruction and Rehabilitation Authority (ERRA) in the Prime Minister's Secretariat to spearhead the reconstruction and rehabilitation activities in the areas affected by the earthquake of 08.10.2005. The ERRA was responsible for formulation of a comprehensive implementation strategy and programme document in consultation with the Governments of Khyber Pakhtunkhwa and Azad Jammu and Kashmir as well as concerned District Government. Accordingly, in order to streamline the implementation of the reconstruction and rehabilitation process in the earthquake affected areas in the Khyber Pakhtunkhwa, the Planning and Development Department Provincial Government vide Notification dated 13.02.2006 established Provincial Earthquake Reconstruction and Rehabilitation Agency (PERRA) to act as Secretariat of the Provincial Steering Committee and also coordinate planning, implementation and supervision of ERRA funded activities in the earthquake affected District of Khyber Pakhtunkhwa. The Provincial Government also decided to appoint a Director General BPS-20 as head of the PERRA. The services of petitioners were hired on contract basis by the PERRA under the ERRA funded activities in the Khyber Pakhtunkhwa. Nevertheless, on 14.03.2011 in order to constitute an autonomous organization for post disaster damage assessment, recovery, reconstruction and rehabilitation of the areas affected by the earthquake and to provide for matters connected therewith or incidental thereto, the Earthquake Reconstruction and Rehabilitation Authority Act, 2011, was promulgated.

8. Petitioners being serving in the PERRA under the ERRA funded projects, filed constitutional petitions before the Hon'ble Islamabad High Court seeking their regularization. The Honourable Islamabad High Court, while treating the petition as representation, remitted the writ petitions to the Federal Government for decision in view of the observations recorded by the Hon'ble Court. The competent authority of the ERRA, vide letter F.No.3(1)/2010/D&SCC/ERRA dated 06.04.218, in compliance of the directions of the Hon'ble Islamabad High Court, decided the matter and held the petitioners being served under the PERRA as provincial government employees and clarified that the funds provided by the ERRA does not indicate that the contract persons are employees of ERRA. Now petitioners have come with this constitutional petition with the supra quoted relief against the provincial government.

9. There is no cavil with the proposition that the petitioners have been serving in the PERRA under the administrative control of provincial government for the last 13 years continuously but without any job security.

10. According to the terms and conditions of the appointment order of petitioners, they have been engaged on the basis of two years contract which is in continuance till date despite the fact that more than 12 years have been passed with no end in the future particularly when there is a permanent staff of PERRA which means that the nature of duties performed by PERRA employees is permanent. Even otherwise, petitioners have been serving for the last twelve years, it means the they are eternal need of the department. Now collaboration of Provincial Disaster Management Authority (PDMA) and Provincial Earthquake Reconstruction and Rehabilitation Authority (PERRA) with District Reconstruction Unit (DRU) has increased the requirement of staff and performance of duties by the petitioners. Their services have been matured and as such they have earned entitlement for regularization of their services. Regularization of employees does not require any statutory rules rather the same depends on the length of their service, therefore, they are fully entitled to be regularised. Reliance is placed on the cases titled, Abdul Ghafoor and others v. The President National Bank of Pakistan and others (2018 SCMR 157), Board of Intermediate and Secondary Education, DG Khan and another v. Muhammad Altaf and others (2018 SCMR 325), Board of Intermediate and Secondary Education, Faisalabad through Chairman and others v. Tanveer Sajid and others (2018 SCMR 1405) and Messrs State Oil Company Limited v. Bakht Siddique and others (2018 SCMR 1181).

11. Petitioners, even otherwise, have become overage to get the job anywhere else and especially in the circumstances when they have acquired the requisite qualification for the post and appointed in due course of law; they have the right to continue against the same. Reliance is placed on the cases titled "Sher Alam and 9 others v. Government of Pakistan through Secretary SAFRON, and 5 others" 2019 PLC (C.S.) 12 (Peshawar High Court) and Farmanullah v. Gomal University D.I. Khan and others 2017 PLC (C.S.) Note 116 (Peshawar High Court).

12. There is another very important legal aspect of the case; petitioners are also claiming regularization on the touchstones of the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2018 (hereinafter referred as the Act-2018). Respondents Nos.1, 8 to 10 in their comments have opposed the regularization of petitioners owing to the ibid Act-2018 on the ground that petitioners were not appointed in accordance with the project policy which is the mandatory requirement under Section 1(2) of the said Act, 2018.

13. A threadbare perused the K.P. Employees (Regularization of Services) Act, 2018 reveals that the Act was promulgated to provide for the appointment and regularization of services of certain employees appointed on ad hoc basis against civil posts and contract basis against project posts in the Province of the Khyber Pakhtunkhwa. Subsection (2) of the Section 1 of ibid Act, 2018 provides that it shall apply to all the employees as defined in clause (e) of subsection (1) of Section 2 of this Act. We deem it appropriate to reproduce here in below the relevant provisions of the Section 2(1) of ibid Act of 2018:

2. Definitions.

(1) In this Act, unless the context otherwise requires; (a)

(b)

(c)

(d)

(e) "employees" mean duly qualified,- (i) one hundred and fifty-eight (158) District Specialists of Health Department, who are appointed on ad hoc basis against civil posts w.e.f. 4th July, 2017 and holding such civil posts till the commencement of this Act; and (ii) persons, who are appointed in the projects on contract basis in accordance with the project policy; (f)

(g)

(h) "project" means a perpetual nature project, the continuation on which and conversion to regular budget is essential for service delivery duly identified by the Departments and reflected in the Schedule;

14. The respondents Nos.1, 8 to 10 though raised the objection that appointments of petitioners were not in accordance with project policy but there is not a single document which may support their objection and no project policy, in this regard, could be made available on the record. The said objection seems a lame excuse. Two class of employees are in the same department, first on regular basis and second on contract basis; the later have been serving for more than a decay without any security while the former are enjoying all the fringe benefits despite the fact that there is no difference in the job description of regular and contract employees. Petitioners were appointed for a period of two years in the project which is still continued and they are performing duties of perpetual nature for the more than twelve years and depriving them from the fruit of regularization under the provisions of K.P. Employees (Regularization of Services) Act, 2018, is a discrimination. In the case of petitioner respondents cannot be allowed to adopt dual standard. Guidance may be derived from the case titled "Nizamuddin and another v. 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, sweet-will or as they please rather they are bound to act fairly, evenly and justly".

15. PERRA is although not included in the Schedule of the K.P. Employees (Regularization of Services) Act, 2018 nevertheless, undeniably the function of PERRA in perpetual in nature particularly when the ERRA Islamabad has been subsumed in the National Disaster Management Authority (NDMA). The august Supreme Court of Pakistan while deciding the fate of project employees within the purview of Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009, in the case titled Government of Khyber Pakhtunkhwa through Secy. Agriculture and others v. Adnanullah (2016 SCMR 1375 and 2017 PLC (C.S) 307 Supreme Court) was pleased to upheld the Judgment of this Court whereby services of all the project employees were directed to be regularized. The same view was also endorsed in the case of "Rizwan Javed and others v. Secretary Agriculture Livestock and others" 2017 PLC (C.S.) 712 [Supreme Court]. This view in Rizwan Javed case was also adopted by the august Apex Court in the case of "Qayyum Khan v. 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 Khyber Pakhtunkhwa 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 Khyber Pakhtunkhwa 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."

16. We, in the premises aforesaid, allow this writ petition and direct respondents to regularize the services of petitioners on their existing posts, with notional increase in their pay from the date of their first appointment. However, petitioners shall not be entitled to arrears in terms of pay. Pending CM disposed-off accordingly. No order as to cost. ZC/183/P Petition allowed.