2017 PLP (C (PLC(CS)N)

HAIDER ALI KHAN, J.

Through this single judgment we are going to dispose of the instant writ petition as well as the connected petition bearing W.P No. 578-M/2012 as both the matters are identical in nature having common questions of law and facts.

2. Petitioners in both the petitions have sought for the following relief:-- "It is, therefore, prayed that on acceptance of this writ petition this august Court may kindly: A) Direct the respondents to regularize the services of petitioners in accordance with N.W.F.P Civil Servants (Amendment) Act, 2005 (N.W.F.P Act No. IX of 2005) and N.W.F.P Employees (Regularization of Services) Act, 2009 (N.W.F.P Act No. XVI of 2009) with back benefits; or B) Direct the respondents to implement 2002 Contract Policy introduced by the Provincial Government for welfare of contractual employees, in its true sense; C) Direct the respondents to grant the reliefs and allowances, which the Government announces from time to time; D) Direct the respondents to release the wages/payment of three days per quarter where in documents the contracts have been shown to be terminated but in fact the petitioners were on duty and marked present in attendance register; E) Any other relief, which this august Court deems appropriate in the interest of justice, may also be granted.

3. Grievances of the petitioners are that they are the employees of the Forest Development Corporation on contract basis for the durations of Eighty Eight days since 1998 which is repeatedly renewed after two or three days of the termination of the last contract. Their further stance is that the petitioners are entitled to be regularized under provisions of N.-W.F.P now Khyber Pakhtunkhwa Civil Servants (Amendment) Act, 2005 and N.-W.F.P Employees (Regularization of Services) Act, 2009. The petitioners have further averred that because of the non-regularization according to the Acts ibid, the respondents have deprived them of other service benefits such as allowances, increase in wages, yearly vacations, bonuses and other privileges announced by the Federal as well as Provincial Government from time to time. The petitioners approached different authorities for redressal of their grievances but in vain, hence, they have invoked the constitutional jurisdiction of this Court through these two writ petitions which are being disposed of through this single judgment.

4. Comments of Respondents Nos. 2 to 4 were asked for which were so submitted by them whereby they denied the stance of the petitioners by raising various legal as well as factual objections.

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

6. No doubt the Forest Development Corporation is governed by N.-W.F.P now Khyber Pakhtunkhwa Forest Development Corporation Ordinance, 1980 (Ordinance No.2 of 1980) having its own Board of Directors constituted under the said ordinance. It is also noticeable that heavy snowfall in Malakand Division and ban on commercial harvesting announced by the Federal Government in the year 1993 had adversely affected the activities of the Corporation which resulted in retrenchment of the Corporation employees and ultimately a mutual agreement was executed between the parties on 20.12.1997. As a result of this agreement the employees of the Corporation including the petitioners received huge amount as retirement benefits under the Golden Hand Shake Policy introduced by the respondents. It is also observed that as per agreement dated 20.12.1997 executed during Golden Hand Shake Scheme, the corporation gave concession of the option of recruiting the ex-employees of the Corporation on contract basis for completion of the remaining and ongoing activities of the Corporation. The relevant portion of the agreement in this regard is reproduced herein below:- "If in future the FDC Management requires to employee staff for the completion of the remaining required activities of the Corporation, the ex-employees will be given preference for contractual employment according to their suitability, qualification and experience for the said job. The C.B.A unions undertake not to object upon the procedure of employment to be carried out by the FDC management." Later on, when the Provincial Government relaxed the ban, the Corporation recruited the petitioners on contract basis on fixed pay for the period of 88 days for the purpose of harvesting the trees on limited scale and clearing the backlog. Admittedly, the petitioners in both the writ petitions were the employees of Respondent No. 4 on regular basis and they have availed the option of Golden Hand Shake during the year 1997 by receiving the retirement benefits. Even the contractual employment was given to the petitioners as a matter of grace and in accordance with the terms of the agreement dated 20.12.1997 at the time of exercising their option of Golden Hand Shake.

7. It is also noticeable that the petitioners are not civil servants and in this regard Section 2(1)(b) of Khyber Pakhtunkhwa Civil Servants (Amendment) Act, 2005 is relevant which is reproduced herein below:-- 4(b) "civil servant" means a person who is a member of a civil service of the Province, or who holds a civil post in connection with the affairs of the Province, but does not include-- (i) a person who is on deputation to the Province from the Federation or any other Province or other authority; (ii) a person who is employed on contract, or on work charged basis, or who is paid from contingencies; or (iii) Admittedly, re-employment of the petitioners was on contract basis and as such they are not civil servants according to the definition referred to above, therefore, the petitioners cannot be benefitted by the ibid Act. Moreso, as the petitioners are the employees of Forest Development Corporation which is a corporate Bench body governed by Khyber Pakhtunkhwa Forest Development Corporation Ordinance, 1980 besides they are not civil servants, therefore, they cannot be regularized under the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009. Thus, in the circumstances especially when the petitioners have once received retirement benefits through Golden Hand Shake policy as regular employees and again their services were hired on fixed pay and on contract basis which employment is not governed by the Acts ibid, then the prayer of the petitioners through these writ petitions is not tenable.

8. In view of what has been discussed above, the instant writ petition as well as the connected writ petition bearing W.P No. 578-M/ 2012, being without any force, are hereby dismissed. ZC/305/P Petition dismissed.