2021 PLP (C (PLC(CS)N)

AHMAD ALI, J.

This common judgment shall also decide the following writ petitions having similar facts and prayers (mentioned against each) for redressal of their grievance:- W.P. No.78-M of 2018, W.P. No.79-M of 2018, W.P. No.80-M of 2018, W.P. No.81-M of 2018, W.P. No.82-M of 2018, W.P. No.83-M of 2018, W.P. No.84-M of 2018, W.P. No.87-M of 2018, W.P. No.88-M of 2018, W.P. No.89-M of 2018 "It is therefore prayed that by accepting the instant writ petition, the order of termination dated 08.12.2017 and advertisement published in daily "AAJ" dated 13.01.2018 for fresh appointments, may please be declared void, illegal, discriminatory and without jurisdiction and the services of petitioner be declared as regularized since the date of his appointment and he be paid the salary and other benefits till final decision of this august Court. Any other remedy which is just and efficacious, though not prayed for specifically, be also awarded by exercising inherent powers of this august Court". W.P. No.63-M of 2018 "Under the circumstance the Hon'ble Court is most respectfully prayed that on the acceptance of this petition, this august Court may kindly declare the office order issued by respondent No.02 after June 2017 as illegal and without legal force. And direct respondent No.02 to refrain from such office orders till the appointment of permanent Vice-Chancellor. Other remedy to which the petitioner is found fit in law, justice and equity may be allowed". W.P. No.1204-M of 2018 "It is accordingly respectfully prayed that the impugned office order No.SBBU/Estb/Ntf/17-905 dated 08.12.2017 issued by respondent No.2 being Incharge vice chancellor of Sheringal University Dir Upper may kindly be order to be declared Illegal, unwarranted, without lawful authority, un-constitutional and the petitioner may kindly be order to be re-instate on the position which was holding on the appointment order as law officer/legal Advisor in the interest of justice". W.P. No.260-M of 2018 "It is therefore most humbly prayed that on the acceptance of the petition orders dated 8/12/2017 declared illegal, void and without lawful authority. The respondents be directed to regularize the petitioners. Any other remedy Hon'ble Court deems fit and appropriate".

2. Petitioners have filed present writ petitions seeking therein cancellation of their termination letters dated 08.12.2017, advertisement dated 13.01.2018; and prayed for regularization of their services from the date of appointment in the Shaheed Benazir Bhutto University, Sheringal Dir Upper.

3. Brief and essential facts for the disposal of these constitutional petitions are that the petitioners having requisite qualification were appointed against different posts on ad-hoc basis vide office orders (detailed in the above cited writ petitions) for specific period against fixed pay. However thereafter, respondent/university awarded extensions to petitioners from time to time till 31.12.2017. Meanwhile, through impugned office orders issued by respondent No.5, the petitioners were terminated w.e.f. 31.12.2017 as no further extension was granted to them. They filed these writ petitions with interim relief to suspend the operation of impugned termination letters. This court suspended the operation of impugned office orders; and thereafter the interim relief earlier granted were kept continued and direction was issued to respondents to release salaries of petitioners from the month of December, 2017.

4. Respondents have filed the requisite comments in all these writ petitions, but as all these cases are having same facts and circumstances, therefore, we would like to refer to the comments filed by Respondents Nos.2 to 6 in the instant writ petition (W.P No.86-P/2018), in which their main objection, as appearing from comments, was that the eligibility criteria for appointment against the post of Lecturer which was previously 1st Class Master Degree with no 3rd division which has now been replaced with fresh criteria effective from 01.07.2017 which requires M.Phil/Equivalent Degree obtained after 18 years of education in the relevant field, and as such, the petitioner do no fulfill the latest criteria for appointment against the post of lecturer. It was further mentioned in the comments that the appointment of petitioner was without any advertisement, test and interview, etc therefore, his services cannot be regularized. That they, under the instructions of Provincial Inspection Team, terminated the services of petitioner and advertised the vacancy. Similar is the position of other petitioners.

5. Learned counsel for the petitioners argued that petitioners were appointed initially for certain specific periods and owing to satisfactory performance as well as competency of the petitioners, respondents awarded extensions to petitioners till 31.12.2017 and presently, till date, the petitioners have been performing their official duties in the respondent-university. There are no complaints against petitioners as to their efficiency and competency rather university administration as well as students are satisfied with their performance. They maintained that under the law, an employee can be retained for a period not exceeding one year, whereas, petitioners have continuously been serving in the respondent-university since their appointments on the basis of one-year extensions however, respondents introduced a gap between each extension to show a break in the continuity of their services. In the last, they argued that the university awarded regularization to other contracts and ad-hoc employees and as such, petitioners who by now are overage, are entitled to regularization of their services.

6. Conversely, the learned counsel representing respondents argued that the appointments of petitioners were made without any advertisement, and therefore, they cannot claim the benefit of regularization. That by now the qualifications of petitioners for these posts do not meet the criteria of minimum qualification. They argued that the appointments of petitioners were for the purpose of stopgap arrangement only and therefore, they cannot be regularized. They maintained that the Provincial Inspection Team have issued directions to relieve all the ad-hoc employees of the university and to fill up the budgetary positions through open advertisement, therefore, petitioners have rightly been terminated.

7. We have heard arguments advanced before us at the bar and have minutely sifted the record.

8. Meticulous sifting of the record reveals that the petitioners were appointed on ad-hoc basis under Regulation 11(5)(c) of the Shaheed Benazir Bhutto University, Sheringal Regulation, 2009, which provides that the Vice-Chancellor shall have the powers to create, re-designate and fill contract, temporary posts for a period not exceeding one year. It is also undisputed that the posts on which the petitioners have been performing duties are budgetary positions and after termination of petitioners the same posts were advertised, however, owing to interim relief granted by this court, the operation of advertisement as well as termination letters were suspended, and as such petitioners have been performing duties till date. Although respondents have vehemently controverted the claim of petitioners for regularization but they have not contended any aspect of inefficiency or in competency on the part of petitioners. The Regulation, 2009 provides the appointment of a temporary employee for a period not exceeding one year but in these cases, the petitioners have been performing duties for the last several years with a transparent service career.

9. Shaheed Benazir Bhutto University Sheringal was established in the year 2009 under the Shaheed Benazir Bhutto University, Sheringal Regulation, 2009; and this University has not been taken under the Schedule II of the Khyber Pakhtunkhwa Universities Act, 2012. The Regulation, 2009 command that the appointment of a temporary employee should not be for a period of more than one year but in these cases respondents granted extensions one after the other to petitioners for a period of more than three to six years and breaks were inserted between every two extensions. The purpose of these breaks was to create a discontinuity in the services of petitioners as respondents were already mindful that owing to continuous service, petitioners will claim regularization. Even then, respondents instead of making efforts for appointment of regular incumbent through an open advertisement within the very first year of appointment of petitioners, hired the services of petitioners again and again until the Provincial Inspection Team issued directions for the termination of petitioners. This gives rise to a strong presumption that the petitioners were competent, efficient and expert in their subjects/duties and for this reason respondents granted them extensions one after the other so as to take benefits of the services of petitioners for a long time. If the appointments of petitioners were stopgap arrangement then why effort/advertisement was not made to fill this gap at the earliest and why respondents waited for a long time. The respondent-university under the statutory rules cannot put an employee on ad-hoc basis for an unreasonable longer period when the appointment is made against a permanent and budgetary post. Guidance derived from the case of Nemat Ullah and others (2016 SCMR 1299).

10. It is common, that due to unemployment, competent, skillful and highly educated persons use to accept ad-hoc, daily-wages, fixed pay and contract employment against meagre salary with a hope that in future their services will be regularized but after taking years long services when an employee crosses the age limit for appointment, authorities relieve him without any benefit in order to appoint another one. respondents have appointed the petitioners for a specific period (in most of the writs for one year temporarily) but this period expanded to a span of about three to six years; now when the petitioners were at the verge of overage, their services were dispensed with. Though there are no statutory provisions or any other terms and conditions which may support the plea of petitioners for their regularization, rather such plea is dependent upon the length of their service rendered in the respondent-university. Guidance derived from the case titled Messrs State Oil Company Limited v. Bakht Siddique and others (2018 SCMR 1181).

11. There is no cavil to the proposition that at the time of their appointments, the petitioners were having requisite qualifications and such criteria was updated on 01.07.2017. Thus, the fresh criteria for appointment is applicable after 01.07.2017 and the same cannot be stretched retrospectively.

12. The main objection of respondent-university was that the petitioners were appointed without advertisement and proper procedure by the Ex-Vice Chancellor of the University. In this regard we may observe that the Syndicate of University in its very first meeting accorded regularization to its various contract and ad-hoc employees. Even otherwise, if the petitioners were appointed by the Ex-Vice Chancellor but at the same time, present administration of the University also awarded extension to petitioners without any objection. While deciding the case titled Secretary to Government of N.-W.F.P. Zakat/Social Welfare Department, Peshawar and another v. Sadullah Khan (1996 SCMR 413) the apex Court held that department having itself appointed civil servant on temporary basis in violation of rules could not be allowed to take benefit of its lapses in order to terminate services of civil servant merely because it had itself committed irregularity in violating procedure governing such appointment. Similarly in another reported case titled Collector of Customs and Central Excise, Peshawar and 2 others (2004 SCMR 303) the apex Court while deciding a case of ad-hoc employees terminated on the ground that their appointments were without advertisement and test/interview etc, was pleased to hold that if prescribed procedure was not followed by the concerned Authority, the civil servants could not be blamed for what was to be performed and done by the Competent Authority. Civil servants had put in more than ten years of their service and had lost all their chances to get fresh appointment elsewhere as they stood disqualified being overage. Yet there is another case titled "Province of Punjab through Secretary, Agriculture, Government of Punjab and others v. Zulfiqar Ali" reported in 2006 SCMR 678, the Apex Court was pleased to held that it was not the case of authority that appointee lacked requisite qualification. The authority himself appointed the employee on temporary basis in violation of the rules for reasons best known to it. Now, authority cannot be allowed to take benefit of its own lapses in order to terminate the services of the appointee merely because the authority had itself committed irregularity in violating the procedure governing the appointments.

13. The petitioners had been discriminated with other employees who were appointed in a similar manner and were subsequently confirmed and regularized through the Syndicate. Non-issuing of advertisement and holding test/interview etc by the respondent-university amounts to waiver and respondents should have been notified as confirmed. Besides petitioners have served for a long period and have thus accrued vested right of being regularized. The authority itself is responsible for making irregular appointments on temporary basis, and then it cannot subsequently turn down and terminate an employee on the ground that his appointment was made in violation of the rules particularly when the appointee fulfilled the requisite criteria. Guidance derived from 2004 SCMR 630 titled Water and Power Development Authority through Chairman, WAPDA House, Lahore v. Abbas Ali Malano and another and 2005 SCMR 85 Muhammad Shoaib and 2 others v. Government of N.-W.F.P. through the Collector, D.I. Khan and others.

14. Another argument of learned counsel for respondent-university that the services of petitioners were not continuous, rather there is a gap in between two periods, holds no water as this gap was not due to the uncontrolled circumstance rather the same was created intentionally with a view to debar the petitioners from the future claim of regularization. Petitioners were serving continuously and respondents were also in the need of their services and thus granted them extensions but it is not understandable that for what purpose a gap was inserted between the two extensions and why extensions were not granted without a gap. In fact this gap in view of the august Supreme Court of Pakistan as reported in 2018 SCMR 325 (B.I.S.E. D.G. Khan and another v. Muhammad Altaf and others) is an artificial break and this was done to break the continuity of service of an employee with mala fide intent to avoid their regularization. This view was further endorsed in 2018 SCMR 1405 titled "Board of Intermediate and Secondary Education, Faisalabad through Chairman and others v. Tanveer Sajid and others and 2019 SCMR 233 titled "Board of Intermediate and Secondary Education, Multan through Chairman and another v. Muhammad Sajid and others".

15. So far as these cases are concerned, there is no second cavil to this proposition that the petitioners were inducted into service by the Vice-Chancellor way back on ad-hock basis for a period of one year and on expiry of one year, they were awarded extension for another year and this process of granting extension continued till 31.12.2017, but subsequently after the elapse of a considerable period of three to six years, their services were neither regularized nor extended. Respondent-University while terminating the services had neither given a show-cause notice nor provided opportunity of hearing to the petitioners, rather passed the orders even without taking into consideration the consequences of same. Undeniably the petitioners were offered job by the competent authority after evaluating their academic as well as professional qualifications. The period was being extended by the authority for several years as the competent authority was fully satisfied with their performance, which fact itself reflects that their services were not only required for the University, rather the same were beneficial for the University as well. Furthermore, there is no allegation/complaints against the petitioners with regard to carrying out official duties; rather extension of the period time and again in their favour shows trust of the authority upon their services such extension in the tenure of service of the petitioners has undeniably created a legitimate expectancy in their minds with reference to their retention in the service on regular basis. Now the petitioners certainly have become over-age and as such they have lost all the chances to get fresh appointment anywhere as they would be disqualified on this score alone. Reliance is placed on the case titled Sher Alam and 9 others v. Government of Pakistan through Secretary SAFRON, Pak Secretariat Islamabad and 5 others 2019 PLC (C.S.) 12 (Peshawar High Court) and the case titled Farmanullah v. Gomal University D.I. Khan and others 2017 PLC (C.S.) Note 116 (Peshawar High Court).

16. We thus allow these writ petitions and direct the respondents to regularize the services of petitioners against their respective posts with effect from the date when they approached this Court through their writ petitions but for their pensionary benefits and other long terms benefits, if any, available under the law, they would be entitled from the date when they had joined the service of the University i.e. their initial appointments. SA/210/P Petitions allowe