2020 PLP (C (PLC(CS))

SYED MUHAMMAD ATTIAQUE SHAH, J.

This commission judgment shall also dispose of connected Writ Petition No.757-A/2014 titled 'Riast Gulzar v. The Government of Khyber Pakhtunkhwa and 2 others', having involved the same question of law and facts therein with prayer for their regularization in service of the Board.

2. Brief facts leading to filing of writ petitions are that the petitioners have been appointed against the post of Assistant Directress Sports, Stenographer, Steno Typist and Junior Clerks, as contingent paid staff against a fixed pay in Board of Intermediate and Secondary Education, Abbottabad in the years, 2011 to 2014, as they are fulfilling the required educational qualification and the respondents have also extended the period of their service in the Board after expiry of initial period of their appointment. The petitioners alleged that they have been performing their services without any break to the satisfaction of the Board Authorities and prayed for acceptance of their writ petitions and their regularization in services of the Board, in accordance with law.

3. The respondents were put to notice, who contested both the writ petitions by filing their parawise comments, wherein, they denied the right of the petitioners to be regularized in service of the Board, on various legal as well as factual grounds. They asserted that the appointment of the petitioners was purely temporary in nature for 89 days, or till the date of formal advertisement of respective vacancies, whichever was earlier in point of time and, as a consequence thereof, the petitioners' employment at the end of 89th day, automatically stood terminated until a fresh appointment letters, on the same terms and conditions, were issued on the next day following thereto and they cannot claim continuity in their service without break nor confirmation or regularization against such a temporary post.

4. Arguments of learned counsel for the petitioners, learned Standing Counsel appearing on behalf of the Board and learned AAG heard and record perused with their able assistance.

5. The record would show that the petitioners have been appointed for 89 days by the respondents as contingent paid staff against the various posts, referred to above, and since their appointment in the years 2011 to 2014, the petitioners have been performing their duties and after the expiry of initial period of their service, the respondents extended the said period for further 89 days, however, their services were not regularized on the sole ground that they were contingent paid staff and their services could not be regularized notwithstanding availability of sanctioned posts and the budget therefor. It is also noteworthy that the respondents have also not disputed the performance of the petitioners. The superior Courts have always disapproved the practice of continuous service on temporary/contract/daily wages/contingent paid staff basis for long period of time. The issue involved in the present writ petitions has recently been settled by the august Apex Court in case titled 'Board of Intermediate and Secondary Education, Faisalabad through Chairman and others v. Tanveer Sajid and others' (2018 SCMR 1405), relied upon by the learned counsel for the petitioners, wherein, after making threadbare and exhaustive discussion, the august Apex Court has observed that: "

6. It may be noted that the superior Courts have always condemned the practice of keeping the employees on temporary basis for long periods of time without confirming or regularizing their services. It has been held that an employee being jobless and in fear of being shown the door has no option but to accept and continue with the appointment on whatever terms a job is offered by the employer. In fact such consent to continue to work as temporary employee is not in the nature of free consent between the employees, on the one hand and employers on the other. A person so employed is in no position to bargain with the employers/departments which are in a disproportionately dominating bargaining position as compared to the employee and the employer could always coerce them to waive their legal protection and accept, contractual terms or face the risk of losing their jobs. [see: Habibullah v. Government of the Punjab (PLD 1980 Lah. 37), Pakistan v. Public at Large (PLD 1987 SC 304) and Sui Southern Gas Company Ltd. v. Ghulam Abbas (PLD 2013 SC 724).

7. This Court in the case of Dr. Anwar Ali Sahto v. Federation of Pakistan (PLD 2012 SC 101), held that even contract employees could be reinstated in service in appropriate cases if such appointment had become permanent by efflux of time. A similar view was take in the case tilled as Abdul Sattar v. Sui Northern Gas Pipelines Limited (2001 SCMR 1935). In the case of Ikram Bari v. National Bank of Pakistan (2005 SCMR 110) the Court after relying upon the afore-noted judgment held that persons, who have served for more than three years, without a break of more than 15 days, are entitled to regularization of their services. The august Apex Court has also referred to case of 'Ejaz Akhar Kasi v. Ministry of Information and Broadcasting' (PLD 2011 SC 22), wherein, it was held that: 'The contract employees of PTV Corporation who approached this Court for regularization their services on the ground that they had worked for many years on contract basis, therefore, deserved to he considered for regularization, were directed to be regularized. The review petition filed against the said judgment was dismissed.' In the aforementioned case, the august Supreme Court of Pakistan has also referred to the case of 'Pir Imran Sajid v. Managing Director/General Manager' (Manager Finance) Telephone Industries of Pakistan' (2015 SCMR 1257), wherein, the same issue was involved and directions were issued for regularization of the services of the TIP employees. The august Apex Court, while adverting to the merits of the case of the employees of the BISE, Faisalabad has explicitly held that:-

8. Turning to the instant case, the respondents-employees have been working with the petitioner-BISEs for a long period of time ranging between 3 to 12 years, as mentioned in the impugned judgments by the learned High Court. Though they were initially appointed for a period of 89 days hut after the expiry of said period, their contracts were renewed from time to time for further periods of 89 days at a time with an artificial break of 1 or more days. It seems that the motive behind such artificial break was to avoid regularization of their services on the pretext that they were not continuously in service. Since the respondents were in service for a long time, it clearly shows that the posts they were occupying were permanent in nature and not casual or temporary. It further indicates that the services of respondents were not only required but also beneficial to the department and that they (respondents) had been performing their duties with due diligence to the satisfaction of the authorities. Noting has been placed on the record that may show anything to the contrary .

10. In view of the above, we are of the view that the learned High Court has rightly directed the petitioner-BISEs/Government of Punjab to regularize the services of respondent-employees. Thus, no case for interference in the impugned judgments is made out. These petitions are accordingly dismissed and leave to appeal is refused." In another case titled 'Board of Intermediate and Secondary Education, DG Khan and another v. Muhammad Altaf and others' (2018 SCMR 325), the august Apex Court has taken the same view and regularized the services of the employees of the Board.

6. Thus, while considering the case of the present petitioners in the light of the law laid down in the aforementioned cases, particularly, the BISE, Faisal Abad's case (Supra), this Court concludes that they are 'similarly placed' with the employees of the said Board and entitled to the same treatment as extended to them. Accordingly, for the reasons stated hereinabove, both the writ petitions are admitted and allowed and respondents are directed to regularize the services of the petitioners in accordance with law from the date of their initial appointment. ZC/14/P Petition allowed.