2020 PLP (C (PLC(CS))

SHAHID JAMIL KHAN, J.

The petitioners seek direction for regularization under the Punjab Regularization of Service Act, 2018 ("Regularization Act of 2018"). They are contract employees against the posts of School Health and Nutrition Supervisors in BS-17. Admittedly, the employment contracts are being extended, from time to time, since 2009.

2. Learned AAG, opposing the petition, submitted that appointments against these posts can be made only on recommendation by the Punjab Public Service Commission ("Commission"). Learned counsel for the petitioners, in rebuttal, has reiterated that petitioners are entitled to be regularized under Regularization Act of 2018.

3. Heard. Record perused.

4. To ascertain petitioners' entitlement, provisions of Regularization Act of 2018 are examined. The Act was promulgated, in public interest, to provide for appointment on regular basis to certain employees serving on contract. The term 'contract employees', for the purpose of this Act, is defined in Section 2(c), which reads:- "2(c) "contract employees" means an eligible person appointed on contract in a department immediately before the commencement of the Act but does not include a person appointed to a post in a project, programme, project management unit, project management office, time bound (one-time) development activity or as work-charged employee or an employee on daily wages;" [emphasis supplied] Regularization is defined in Section 2(f), which is:- "2(f) "regularization" means the appointment of an eligible contract employee on regular basis, with immediate effect, in accordance with the Act;" [emphasis supplied] Besides specifying exclusions, the Section 2(c) defines 'contract employees' as an eligible person appointed, on contract, immediately before commencement of the Act. The words "eligible person" used in this clause seem to refer the eligibility for contract appointment. However, use of this phrase in clause 2 (f) refers to eligibility required for the post against which regularization is to be effected. Regularization of such employee, who was eligible to be appointed on contract under relevant law or policy, is to be made through appointment in accordance with this Act. The Regularization Act of 2018 is applicable to persons who completed three years continuous service, under contract, before or after its commencement. Section 1(3) (being substituted by the Amendment Act of 2019) is reproduced:- "

1. Short title, extent, application and commencement (3) It shall apply to all the persons employed on contract in a department, who have completed three years continuous service before or after the commencement of the Act." [emphasis supplied]

5. After the amendment, it appears, that the Regularization Act of 2018 is made applicable to all contract employees, who completed three years' service on contract and on fulfillment of condition under this statute are entitled for regularization. The legislature has curtailed the practice of prolonged contract employment, in presence of sanctioned posts and availability of eligible persons for initial appointment against regular vacancy. Such explanation of keeping an employee on contract employment for a considerable long period has been deprecated by superior court and for reference judgment in Messrs State Oil Company Limited v. Bakht Siddique and others (2018 SCMR 1181) can be cited. Relevant excerpt from this judgment is reproduced for a quick reference:- "

3. We heard the learned counsel for the petitioner and found both the submissions not well founded and are misconceived. The regularization of the employees is not a part of the terms and conditions of service of the employees for which there need to be some statutory rules but it depends upon the length of service and in terms of equity that a person who has given his prime life and youth to a department is always kept in dark and his services were taken in a very explorative manner. So it is on the principle of the above that they have approached the learned High Court for regularization of their service, where there is no statutory rules or law while exercising its jurisdiction for the purposes of enforcement of the fundamental right to life particularly Articles 9 and 25 of the Constitution. Therefore, the first objection about the maintainability of the writ petition has no force and is accordingly rejected. As regards the question that the respondents were not the employees of the petitioner but the contractor, suffice it to say that it is a normal practice on behalf of such industries to create a pretence and on that pretence to outsource the employment of the posts which are permanent in nature and it is on the record that the respondents have been in service starting from as far back as 1984. This all seems to be a sham or pretence and therefore, it being not a case of any disputed fact and no evidence was required to be recorded. Moreover, we have seen from the order under challenged that in such like cases where the orders have been passed by the Labour Tribunals, the employees, even those who were under the contractors' alleged employment, have been regularized by the petitioner. And thus keeping in view the rule of parity and equality, all the respondents even if considered to be the employees of the contractor, which is not correct, they having been performing duties of permanent nature should have been regularized. However, at this stage, we would like to observe that the employment of the respondents shall be regularized with effect from the date when they approached the learned High Court through the Constitution petition but for their pensionery benefit and other long terms benefits, if any, available under the law, they would be entitled from the date when they have joined the service of the petitioner. All the petitions are accordingly dismissed." [emphasis supplied] Since the petitioners have, admittedly, completed three years of continuous service on contract, therefore, the Regularization Act of 2018 is applicable to them. However, eligibility for the post, in question, and fulfillment of certain preconditions need to be determined under the Act, for which procedure and mechanism is provided.

6. Section 3 of the Regularization Act of 2018 is protecting the appointments on contract, made immediately before commencement of this Act, despite defects as enumerated in subsection (1). The subsection (2) is stipulating certain conditions, required to be fulfilled, for entitling a contract employee to be regularized under this Act. The Section 3 is reproduced:- "

3. Regularization, etc.- (1) Notwithstanding the mode or manner of appointment, or any deficiency or defect in the procedure or anything contained in the Punjab Civil Servants Act 1974 (VIII of 1974), the rules framed thereunder or any recruitment policies, any person appointed on contract, immediately before the commencement of the Act, shall be deemed to have been validly appointed and such appointment shall not be called in question. Explanation.-The expression 'appointed' includes the extension, from time to time, of the term of the contract." (2) Notwithstanding anything contained in the Act, the contract employees who have continuously been serving as such for a period not less than three years shall be eligible to be considered for appointment on regular basis if: (a) a regular vacancy allocated for initial recruitment is available for regularization; (b) he is qualified for the post; (c) he has not been appointed on a special pay package; (d) his performance during the period of contract has remained satisfactory; and (e) he does not opt to continue as contract employee." [emphasis supplied] Collective reading of both the subsections under Section 3 shows that a person appointed on contract, if completes three years of service, even after commencement of this Act, shall be eligible to be considered for appointment on regular basis if; (i) regular vacancy is available for initial appointment, (ii) he has required qualification for the post, (iii) the contract appointment was not against a special pay package, (iv) his performance during the contract period was satisfactory and (v) he did not opt to continue as contract employee. Under Section 10, if a contract employee does not opt against regularization within sixty days, he shall be deemed to have opted for regularization.

7. After expiry of sixty days from commencement of the Regularization Act of 2018, the competent authority is bound to submit his case for regularization either before Scrutiny Committee, constituted under Section 5, or before Commission for recommendation, under Section 4, if appointment against the post falls within the purview of Commission. However, a contract employee, who was appointed on recommendations of the Commission, shall be regularized by appointing authority, without referring his case to the Commission. The Sections 4 and 5 are reproduced for quick reference:- "

4. Procedure for regularization.- (1) The case of a contract employee appointed on the recommendations of the Commission shall be submitted to the appointing authority for regularization without reference to the Commission or the Scrutiny Committee. (2) If the post falls within the purview of the Commission but the contract employee was appointed otherwise than on the recommendations of the Commission, the case shall be referred to the Commission for recommendations. (3) If the post is outside the purview of the Commission, the case of a contract employee shall be placed before the Scrutiny Committee constituted under the Act for recommendations.

5. Scrutiny Committees.- (1) The appointing authority shall constitute one or more Scrutiny Committees for purposes of the Act. (2) A Scrutiny Committee shall scrutinize the academic record and other relevant documents of the contract employee and verify that the contract employee is eligible and qualified for regularization. (3) The Scrutiny Committee shall forward its recommendations to the appointing authority." [emphasis supplied]

8. The Scrutiny Committee shall forward its recommendations to appointing authority, after due verification of academic record and scrutinizing the relevant record to determine whether the conditions stipulated in Section 3(2) are fulfilled. It goes without saying that a contract employee, who fulfills the conditions, to the satisfaction of Scrutiny Committee or the Commission, is entitled to be regularized under Regularization Act of 2018 with immediate effect. The person, so regularized, shall be governed under the Punjab Civil Servants Act, 1974 and the rules framed thereunder. However, seniority and fixation of pay etc. shall be governed by the provisions under Sections 6 to 9 and 11 of the Regularization Act of 2018.

9. In view of above, it is held that petitioners are liable to be considered for regularization under the Regularization Act of 2018. The appointing authority is directed, therefore, to send petitioners' cases to the Commission, if appointment against the posts in question falls within the purview of Commission, otherwise their cases for determination of eligibility be placed before the Scrutiny Committee. If Scrutiny Committee is not constituted under Section 5, it is directed to be constituted within 15 days without fail. Needful be done within 45 days from receipt of this order. Till determination of petitioners' eligibility, as directed, the services/appointments of petitioners shall not be terminated. The Petition is Allowed in the manner and to the extent, as held and directed in this judgment. ZC/N-10/L Petition allowed.