2017 PLP (C (PLC(CS)N)

MUHAMMAD AYUB KHAN, J.

Through this single judgment, we intend to decide the following cases, having identical facts and law point involved therein:- (1) W.P. No.320-D/2014 (Farmanullah Khan v. Gomal University etc.), (2) W.P. No.331-D/2014 (Hassan Waheed v. Gomal University etc.), (3) W.P. No.404-D/2014 (Muhammad Athar Rafique v. Gomal University etc. (4) W.P. No.566-D/2014 (Sifatullah v. Gomal University etc.) (5) W.P. No.588-D/2014 (Abdul Rashid and another v. Gomal University etc.) (6) W.P. No.722-D/2014 (Hafiz Muhammad Khalid v. Gomal University etc.) (7) W.P.No.285-D/2016 (Muhammad Fasihullab Khan v. Gomal University etc.) (8) W.P.No.569-D/2016 (Muhammad Khalid v. Gomal University etc.), (9) W.P.No.583-D/2016 (Muhammad Shoaib v. Gomal University etc.), (10) W.P.No 632-D/2016 (Binyamin Khan v. Gomal University etc.), (11) W.P.No.684-D/2016 (Mst. Saira Saba v. Gomal University etc.), (12) W.P. No.728-D/2012 (Alamgir Khan v. Gomal University etc.), (13) W.P.No.752-D/2016 (Ghulam .Mustafa v. Gomal University etc.), (14) W.P. No.781-D/2016 (Muhammad Yousaf v. Gomal University etc.), (15). W.P.No.909-D/2016 (Rehan Akbar Khan v. Gomal University etc.), (16) W.P.No.960-D/2016 (Mst. Amna Bibi v. Gomal University etc.), (17) W.P.No.8-D/2017(Miss Shumaila Kiran v. Gomal University etc.) (18) W.P.No.22-D 2017 (Sajjad Hussain v. Gomal University etc.), (19) W.P.No.25-D/2017 (Muhammad Arshad v. Gomal University etc.), (20) W.P.No.73-D/2017 (Abbas Khan v. Gomal University etc.), (21) W.P. No.122-D/2017 (Bashir Ahmad v. Gomal University etc.), (22) W.P. No.123-D/2017 (Muhammad Imran v. Gomal University etc.), (23) W.P. No.124-D/2017 (Muhammad Ramzan v. Gomal University etc.), (24) W.P. No.126-D/2017 (Fahim Nawaz v. Gomal University etc.), (25) W.P. No.127-D/ 2017 (Abdur Rehman v. Gomal University etc.) (26) W.P. No.138-D/2017 (Abdul Waheed v. Gomal University etc.) (27) W.P. No.139-D/2017 (Abdul Hafeez Khan v. Gomal University etc.), (28) W.P. No.140-D/2017 (Alamgir v. Gomal University etc.) (29) W.P. No.170-D/2017 (Ehsanullah. v. Gomal University etc.), (30) W.P. No.222-D/2017 (Mashkoor Ali Khan v. Gomal University etc.)

2. The common facts in all the cases are that the petitioners were appointed on fixed pay/contract basis initially for a term of six months and thereafter they were given extension in service from time to time. It has also been found in almost all the cases that the services of these contract employees have been brought on budgetary sanctioned posts, but the petitioners have been kept on contract basis. The petitioners are still serving in the respondents' university.

3. The learned counsel for the University raised preliminary objection to the maintainability of the writ petitions. The first objection was that service in the University has been declared as service of Pakistan and made reference to section 41 of the KP Universities Act, 2012 (KP Act No.X of 2012). The second objection was, that before approaching this Court, the petitioners were required to have availed the departmental remedy under section 40 of the KP Universities Act, 2012.

4. Learned counsel for the petitioners referred to the wording of section 41 and argued that in view of the status of the petitioners, they cannot be held as persons in the service of Pakistan. Learned counsel further argued that remedy of appeal is in no way efficacious remedy for the petitioners as they are complaining the inhuman and discriminatory treatment being meted out to them.

5. We have heard the arguments of learned counsel for the parties and have gone through the available record.

6. To resolve this controversy, both these sections are reproduced below:-- "

40. Appeal... Where an order is passed punishing any officer (other than the Vice-Chancellor), Teacher or other employee of the University or altering or interpreting to his disadvantage the prescribed terms or conditions of his service, he shall, where the order is passed by the Vice-Chancellor or any other Officer of Teacher of the University, have the right to appeal to the Syndicate against the order, and where the order is passed by the Syndicate, have the right to appeal to the Chancellor."

41. Service of the University... (1) All persons employed by the University in accordance with the terms and conditions of service prescribed by Statutes shall be persons in the service of Pakistan for the purposes of any court or tribunal set up by law in terms of Article 212 of the Constitution of the Islamic Republic of Pakistan: Provided that any provision as regards the terms and conditions of employment of persons in the service of Pakistan in general or in comparable employment notwithstanding the service of persons employed by the University shall be entirely governed by the terms and conditions prescribed by the relevant Statutes. (2) An Officer, Teacher or other employee of the University shall retire from service on the attainment of such age or tenure of service as may be prescribed."

7. The petitioners are serving in the respondents' university in the capacity of contract/fixed paid employees. The definition as given in the Civil Servants Act, 1973 or the Service Tribunal Act, 1974, excludes the contract or daily wages employees or those who are paid from contingencies. Besides this question needs no elaboration because the apex Court in Mubeen's case (PLD 2006 SC 602) resolved this controversy by holding that status of being in service of Pakistan cannot conferred by deeming clause or by inserting a section in any law. The Gomal University is a creation of Statute, its Syndicate/Senate has been empowered to formulate its rules/statutes, to be approved by the Chancellor (Governor of KPK), therefore, these rules are statutory and the Gomal University will be considered as statutory body. Section 41 of the KP Universities Act, 2012, if examined in the light of tests prescribed in the judgment of the apex Court (supra), we find that the petitioners cannot be held as civil servants for the purpose of Service Tribunal Act, 1974 and they have rightly approached this Court.

8. So far as the objection about non-availing the departmental remedy as provided under section 40 of the KP Universities Act, 2012 is concerned, we, while examining the cases, found that there are appeals, applications for regularization, but the respondents never bothered to consider or reply the petitioners. Besides it was the statutory duty of the respondents that when repeatedly this Court has allowed cases of identical nature, they should have considered the grievances of the petitioners at their end. The objection regarding maintainability is, therefore, repelled.

9. This Court in W.P.No.428-D of 2014 decided on 27.9.2016, W.P.No.646 of 2011 decided on 02.10.2013, W.P.No.25-D of 2015 decided on 20.5.2016, W.P.No.132-D of 2014, W.P.No.61-D of 2013 decided on 20.11.2013, W.P.No.224 of 2011 and W.P.No.321-D of 2014 decided on 18.11.2015, held that these contract employees of the Gomal University serving for over a decade and being discriminated in the matter of regularization are entitled to be regularized. In most of the case, either appeals have not been filed, or were maintained by the apex Court.

10. We are surprised at the apathy of the respondents, that they, instead of making appointments on regular basis, appointed employees on contract/fixed pay basis or ad hoc basis and kept these employees on the same status for decades and now alleging that due process was not observed at the time when they were appointed. We, for our satisfaction, examined the record of every petition and found that every petitioner had the prescribed qualifications for the posts held by them. In most cases, we found that these employees are highly qualified. They have gained sufficient experience beside no objection on their performance. We noted that many similarly placed employees were regularized either by the University itself or upon orders of the Court, thus the petitioners cannot be allowed to be discriminated in any manner and they deserve same treatment.

11. There is yet another aspect of the case. In many cases, these fixed pay employees were adjusted on sanctioned budgetary posts, as such, in view of the reported judgment (2016 SCMR 1375), these employees have a right to be regularized on these regular posts.

12. We have also found that while extending the contract services of the petitioners, one day artificial break was given in every order. This artificial break has been given to deprive the petitioners of regularization of their services. This practice has been deprecated by superior Courts in a number of judgments.

13. For what has been discussed above, we are in no mood to hold any other view from the one already expressed by this Court in numerous judgments of the contract employees of Gomal University and particularly to follow the dicta of apex Court reported as 1995 SCMR 1185 and 2009 SCMR 1.

14. We thus direct the respondents to regularize the services of the petitioners within thirty days of the receipt of the judgment under intimation to the Additional Registrar of this Court. We may also clarify that the petitioners shall not be entitled to back benefits.

15. This and the connected petitions are allowed on the same terms. ZC/170/P Petition allowed.