2018 PLP (C (PLC(CS)N)

No one has appeared on behalf of respondents inspite of several calls despite the fact that learned counsel representing the respondents department has appeared before this Court in some other case earlier. Respondents are therefore, proceeded against ex parte.

2. Through this Intra Court Appeal under section 3 of Law Reforms Ordinance, 1972 has been called into question impugned order dated 28.01.2016 passed by the learned Single Judge in Chambers of this court, whereby Writ Petition No.1311/2016 filed by the appellant has been dismissed in limine.

3. Relevant facts for the disposal of instant appeal are that appellant Muhammad Ismail after the death of his father a lower rank Railways employee was appointed as Gateman by the Pakistan Railways on contract basis under Prime Minister Family Package Scheme on 27.08.2008 and for regularization of his service under the above scheme, which was utilized by so many other employees, the appellant moved respondents' authorities but remained unsuccessful and he was callously terminated from the contract employment. In order to get justice appellant filed Writ Petition No.2876/2011, Crl. Org. No.14427 of 2015 but respondents' authorities did not treat him fairly and exhibited discrimination in his case, so appellant made the following ultimate prayer: In view of above submission, it is humbly prayed that by accepting this writ petition that the act/order of respondents to terminate the service of petitioner purportedly allegedly on 26.08.2010 as well as the order dated 19.11.2015 passed by respondent No.1 may kindly be declared without lawful authority and of no legal effect and the petitioner's services be reinstated with all back benefits and be also regularized. Any other relief which this Honourable court deems fit and proper may kindly be granted to the petitioner. After hearing arguments of learned counsel for the parties learned Single Judge in Chambers through the impugned order dismissed the writ petition of the appellant in limine by mainly observing that services of contract employees can be terminated at any stage with no remedy of reinstatement in view of dictum of law propounded in case reported as "Federation of Pakistan through Secretary Law, Justice and Parliamentary Affairs v. Muhammad Azam Chattha" (2013 SCMR 120), hence, this appeal.

4. Arguing the appeal learned counsel for the appellant submits that the impugned order passed by learned Single Judge in Chambers cannot be termed as apt response to the issue placed before the said Hon'ble Court as not covering all the aspects of the controversy because case of the appellant was quite different and distinguishable from case of the contract employees, whose rights and remedies are considerably weak and unprotected. Further argued that appointment of the appellant as Gateman on contract basis was in the backdrop of hardship circumstances faced by the appellant as his father, who was also Pakistan Railways employee had died in those days and Prime Minister Family Package Scheme was meant for the people in distress. Further argued that dozens of Pakistan Railways low paid employees recruited on contract basis were regularized by Pakistan Railways either at their will and caprice or under the orders passed by the High Court in several writ petitions and the Pakistan Railways filed several Civil Petitions Nos.626-L to 643-L, 650-L, 2897-L to 2912-L of 2015, 758-L, 1116-L and 1118 to 1122-L of 2016 before the august Supreme Court of Pakistan but lost vide order dated 08.06.2016 passed by the august Supreme Court of Pakistan and photo copy of said order has been placed before us for our perusal. Lastly submits that since the petitioner has been singled out by the respondents' department for imparting discriminatory treatment for some ulterior motive and mala fide therefore, appeal be accepted.

5. Heard. Record perused.

6. As noted above, the respondents Railways authorities vide order dated 18.4.2017 were required to file their reply to the instant appeal within a fortnight but no such reply has been filed nor any of their representative or counsel have appeared today to answer the submissions from the appellant's side. As noted earlier, the writ petition filed by the appellant was dismissed in limine by the learned Single Judge in Chambers on a mere score that since the appointment of the appellant as Gateman was contractual in nature for a specific time, therefore, the appellant was not entitled to any relief except the one prescribed through several judgments of the superior courts to claim damages. On perusal of copies of record of temporary service of the appellant under the respondents Railways Department annexed with the writ petition file as well as the record of respondents Pakistan Railways inconsistent working or treatment towards other employees of appellant's category depicts a different story and hints towards discriminatory treatment to some and favour to others. There is annexed record of meeting of Cabinet Committee regarding regularization of contract of Class-IV employees pertaining to year 2012 (Annexure H) at pages Nos.29 to

31. Then there is notice of appointment under the directive of Ministry of Railways received through Chief Personnel Officer, Pakistan Railways Headquarters Office, Lahore vide letter No.803-E/7/4-X/1(APO-IV) dated 18.3.2013 regularizing as many as 12-employees on contract basis at page No.32 of the writ petition, who were earlier appointed under Prime Minister Family Assistance Package. Similarly there is another notice of such kind issued by the Chief Personnel Officer, Pakistan Railways Headquarters Office, Lahore under the directive of Ministry of Railways dated 5.3.2012 (Anneuxre M) at page No.49 of the writ petition regularizing the contract services of 35 low paid employees. Besides this, the respondents Pakistan Railways had been taking inconsistent stance regarding the grievance of the appellant in the previous round of litigation that the services of the appellant were terminated on 26.8.2010 and that at the relevant time, the policy of regularization of contract service was not available for the benefit of appellant, the appellant has placed on record copies of his salary slips at Pages Nos.53 to 56 to indicate that he had been receiving salary from the Pakistan Railways till the month of January 2011. , There is also a copy of letter No.220-E/1/Apptt/P-2 dated 9.4.2012 issued from the office of Divisional Superintendent, Pakistan Railways, Multan available at page No.65 of the writ petition which reveals that Ministry of Railways had issued a directive on 5.3.2010 that the staff appointed on contract basis for a period of two years under Prime Minister Assistance Package whose services were terminated/discontinued on completion of two years contract period since December 2010 may be regularized.

6. In view of above detailed background clearly exhibiting inconsistent and discriminatory working of the respondents Pakistan Railways authorities, we feel compelled to remove the stain of discrimination nakedly employed upon the appellant by realizing duty of the Constitutional court. In this regard, it hardly requires to be emphasized that one of the fundamental right enshrined in the Constitution of the Islamic Republic of Pakistan, 1973 under Article 25 is equality of the citizens, primacy of law and equal protection to every citizen and jealous watch on discrimination. In a situation as involved in this case, which manifestly distinguished the instant case of the appellant from the case discussed in the Hon'ble apex Court ruling relied by the learned Single Judge in Chambers noted above, the appellant could not have been meted out a treatment prohibited by Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973. In this view of the background, the impugned order passed by the learned Single Judge in Chambers not found to be sustainable in the eyes of law is consequently set aside while allowing the instant appeal as a result of which, the writ petition filed by the appellant shall be considered to be accepted as prayed for. ZC/M-9/L Appeal allowed.