2004 PLP (C (PLC(CS))

Ch. Muhammad Din Gorsi, Advocate Supreme Court for Respondent No.3. Date of hearing: 6th June. 2003. JAVED IQBAL, J‑‑‑These petitions are directed against the judgment dated 15‑5‑2000 passed by learned Federal Service Tribunal, Islamabad; whereby the appeal preferred on behalf of petitioners have been dismissed. The above captioned petitions are being disposed of by this order as identical questions of law and facts are involved in these petitions.

2. Precisely stated the facts of the case as enumerated in the judgment impugned are that "the appellants herein, were got employed on work charged basis by the authorities of the respondents some time prior to 1996 and the appellants moved a Constitutional Petition No.22687 of 1996 in the Hon'ble Lahore High Court claiming to have become permanent employees by the operation of law with a prayer for order to treat as such for the purpose of salary, wages/increments, seniority and promotion etc. The respondents, therein, at the very outset objected the maintainability of the Constitutional petition in view of the insertion of section 2‑A in the Service Tribunals Act, 1973 read with Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 and eventually the Hon'ble Lahore High Court dismissed the writ petition in limine on 4‑3‑1998 with the orders verbatim reproduced below:‑‑ "I have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the record. The admitted position is that all the petitioners joined respondent Corporation or its predecessor more than two years before filing of this rit petition. This is also admitted that none of them was on probation. The respondents by raising the objection with reference to section 2‑A have accepted them regular employees, therefore, they are held civil servants for the purpose of Service Tribunals Act, 1973, therefore, the 'writ is dismissed in limine." Pursuant to the said judgment whereby the petitioners were declared as civil servants in view of the provisions as contemplated in section 2‑A of the Service Tribunals Act, 1973 (hereinafter referred to as the Act) the learned Federal Service Tribunal was approached by way of appeals (730 (L) to 764 (L) of 1998) which have been rejected vide judgment impugned, hence the above captioned petitions.

3. The petitioners entered appearance in person and mainly contended that legal and factual aspects of the controversy have not been dilated upon in a comprehensive manner and its true perspective which resulted in a serious miscarriage of justice. It is next contended that learned Service Tribunal has erred in holding that work charge/daily wages employees are not civil servants for the purpose of section 2‑A of the , Act by ignoring the fact that the Pakistan Telecommunication Company Limited is a State owned company initially established under the provisions of Ordinance No.XXIII of 1997 and subsequently it became an Act of Parliament (Act NO.XVII of 1996). The shares of the Pakistan Telecommunication Company Limited are held by the Federal Government and its employees are deemed to be in the service of Pakistan by virtue of section 2‑A of the Act. It is urged emphatically that no statutory rules governing the terms and conditions of the employees of the Pakistan Telecommunication Company Limited are formulated and resultantly the provisions as contemplated in West Pakistan Industrial and Commercial. Employment (Standing Orders) Ordinance, 1968 shall be applicable and therefore, the, employees of the Pakistan Telecommunication Company Limited being civil servants by virtue of section 2‑A of the Act can approach learned Federal Service Tribunal for the redressal of their grievances. It is further argued that the provisions as contained in section 2‑A of the Act have been misconstrued and misinterpreted and the judgment impugned is violative of the dictum laid down in case Zahirullah and 13 others v. Chairman WAPDA Lahore and others (2000 SCMR 826) whereby while interpreting section 2‑A of the Act inserted by means of the Service Tribunals (Amendment) Act, 1997, the work charge/daily wages employees were held civil servants for a limited purpose i.e. to approach learned Service Tribunal for the. redressal of their grievances regarding service matters and thus the petitioners would be deemed to be civil servants under section 2‑A of the Act and their appeals should have been entertained under section 4 of the. Act. It is argued that the question concerning regularization of service of the petitioners squarely falls within the jurisdictional domain of learned Service Tribunal by virtue of section 5 of the Act which has not been exercised by ignoring the law as laid down in case Pakistan Railways through General Manager v. Ghulam Rasool (1997 SCMR 1581 resulting in serious prejudice against the petitioners who cannot be kept on work charge/daily wages for an indefinite period having rendered more than six years of service and in 'a few cases such period runs into decades and they cannot be deprived of the benefits on sheer technicalities extended to work charge/daily wages employees 'by the learned Lahore High Court by means of judgment in case Muhammad Asim and others v. Pakistan Telecommunication and others (1997 PLC (C.S.) 1131) which was never challenged before this Court and attained finality. It is pointed out that pursuant to the said judgment various employees placed in the similar position were regularized. It is lastly contended that the respondent should not be allowed to take somersault by whom the petitioners were admitted civil servants in view of section 2‑A of the Act and in view of their categoric admission before the learned High Court the writ petition preferred on behalf of petitioner was dismissed with the following observations which is binding not only on the respondent but also on the learned Service Tribunal as well:‑‑ "I have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the record. The admitted position is that all the petitioners joined respondent‑Corporation or its predecessor more than two years before filing of this writ petition. This is also admitted that none of them was on probation. The respondents by raising the objection with reference to section 2-A have accepted them regular employees, therefore, they are held civil servants for the purpose of Service Tribunals Act, 1973, therefore, the writ is dismissed in limine. "

4. Messrs Naeem Bokhari and Muhammad Khalid Farooq, learned Advocate Supreme Court appeared on behalf of caveator and supported the judgment impugned for the reasons contained therein and pointed out certain financial restraints due to which regularization of such employees was not possible. It is to be noted that during the course of arguments at one stage it was assured that each case would be examined on its own merits and every possible effort would be made to get the services of deserving employees regularized but the said stance was changed for the reasons best known to the Pakistan Telecommunication Company Limited.

5. We have examined the respective contentions as canvassed at the bar in the light of relevant provisions of law and record of the case. The pivotal point which needs consideration seems to be as to whether regularization of such employees depends on the whims and wishes or the concerned authorities of the Pakistan Telecommunication Company Limited or some comprehensive policy is required to be formulated because various similarly placed employees have been regularizes by the Pakistan Telecommunication Company Limited in violation of well recognized principles i.e. first come first serve and first come last go. Besides that the contentions as mentioned herein above need consideration. We are, therefore, inclined to gram leave by converting these petitions into appeals which may be fixed at some early date in view of the hardships being faced by such employees. S.A.K./A‑450/SC Leave granted.