2013 PLP 890 (SCMR)
GOVERNMENT OF KPK through Chief Secretary and others — Appellants/Petitioners Versus BILAL AHMAD KAKAIZAI and others — Respondents
| Citation | 2013 PLP 890 (SCMR) |
| Forum / Court | Supreme Court of Pakistan |
| Bench Members | Nasir-ul-Mulk, Amir Hani Muslim and Muhammad Athar Saeed, JJ |
| Parties | GOVERNMENT OF KPK through Chief Secretary and others — Appellants/Petitioners Versus BILAL AHMAD KAKAIZAI and others — Respondents |
| Primary Law | Khyber Pakhtunkhwa Employees (Regularization of Services) Act (XVI of 2009) |
Q1: What are the key laws and sections cited in 2013 PLP 890 (SCMR)?
This judgment primarily cites: Khyber Pakhtunkhwa Employees (Regularization of Services) Act (XVI of 2009) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2013 PLP 890 (SCMR)?
The case was heard and decided by the Supreme Court of Pakistan bench comprising: Nasir-ul-Mulk, Amir Hani Muslim and Muhammad Athar Saeed, JJ.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2013 PLP 890 (SCMR) (GOVERNMENT OF KPK through Chief Secretary and others — Appellants/Petitioners Versus BILAL AHMAD KAKAIZAI and others — Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Lal Jan Khattak, Additional A.-G., KPK for Appellants/Petitioners.
- S.M. Attique Shah, Advocate Supreme Court for Respondent (in C.As. Nos.88-P, 90-P and C.P. 313-P of 2011).
- Date of hearing: 14th March, 2013.
- ----S. 3---Regularization of services---Ad hoc appointees---Right of ad hoc appointees to seek regularization under the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009---Scope---Notification concerning a (Government) post not to be given retrospective effect to extend benefit of regularization---Provincial Government advertised posts of Additional Government Pleaders for recruitment on ad hoc basis prescribing qualification of LLB with five years' experience as an advocate---Respondents were appointed on ad hoc basis to the said posts for a period of six months till selection of appointees by the Public Service Commission---Services of respondents were terminated after completion of six months---Respondents filed a constitutional petition before the High Court seeking regularization of their service relying upon S.3 of Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009---During pendency of said constitutional petition, Provincial Government issued a notification, by which requirement of five years' experience for posts in question was dispensed with---High Court while relying upon said notification accepted the constitutional petition and gave directions for regularizing services of respondents---Legality---Admittedly respondents did not have the required five years' experience on the date when they were appointed as ad hoc appointees for a term of six months---Services of respondents were terminated on expiry of their term before the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009 was promulgated---Respondents did not have the required experience of five years standing as an advocate on the date of promulgation of Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009---Notification by which requirement of five years' experience was dispensed with was issued after the said Act, therefore the notification could not be applied retrospectively to extend benefit of S.3 of Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009---Once the services of respondents were terminated, they were required to compete for the posts through the Public Service Commission---Ad hoc appointment of respondents would not give them a vested right for seeking their regularization under the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009---Impugned judgment of High Court was contrary to the law and was set aside accordingly---Appeal was allowed accordingly.
- 2. Facts necessary for the disposal of the present appeals are that the Government of N.-W.F.P. advertised posts of Additional Government Pleader (BS-17) for recruitment on ad hoc basis on 29-9-2008, prescribing the qualification of LLB with five years experience as an Advocate preferably on civil side, as provided by Notification No.E&A (LD) 2-58/93 dated 15-7-2006. The respondents were appointed on different dates in the year 2008 on ad hoc basis for a period of six months till the arrival of appointees of the Public Service Commission. After completion of six months, their services were terminated. The respondents filed departmental appeals which were dismissed. The respondents filed constitutional petitions before the learned Peshawar High Court, seeking regularization of their services by invoking the provision of section 3 of Act XVI of 2009, which was enacted on 24-10-2009, as a corollary to the North West Frontier Province Employees (Regularization of Services) Ordinance 2009, issued on 24-9-2009.
- 4. It is contended by the learned Additional Advocate-General, KPK, that the learned High Court has overlooked the provision of Regularization of Services Act, 2009, which apply to only those who qualifies to hold the post sought to be regularized. In this respect he submitted that none of the respondents had five years experience on the date when they were appointed as Additional Government Pleaders.
- The, respondents did not have the required experience of five years standing as an Advocate on civil side on the date of promulgation of the Act. The notification dated 9-3-2011 came late in time by which condition of required five years experience was dispensed with. Therefore, the notification dispensing with the condition of five years experience for the post could not be applied retrospectively to extend the benefit of the Regularization Act. The language of section 3 of the Act is unambiguous on that score.
Headnotes / Summary
(On appeal from judgment dated 10-3-2010 of the Peshawar High Court, passed in W.Ps. Nos. 142, 1300, 1368, 1542, 2037, 2544, 503 of 2010 and judgment dated 7-10-2010 in W.P. No. 220 of 2010.)
S. 3
Ad hoc appointees
Right of ad hoc appointees to seek regularization under the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009
Scope
Notification concerning a (Government) post not to be given retrospective effect to extend benefit of regularization
Provincial Government advertised posts of Additional Government Pleaders for recruitment on ad hoc basis prescribing qualification of LLB with five years' experience as an advocate
Respondents were appointed on ad hoc basis to the said posts for a period of six months till selection of appointees by the Public Service Commission
Services of respondents were terminated after completion of six months
Respondents filed a constitutional petition before the High Court seeking regularization of their service relying upon S.3 of Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009
During pendency of said constitutional petition, Provincial Government issued a notification, by which requirement of five years' experience for posts in question was dispensed with
High Court while relying upon said notification accepted the constitutional petition and gave directions for regularizing services of respondents
Admittedly respondents did not have the required five years' experience on the date when they were appointed as ad hoc appointees for a term of six months
Services of respondents were terminated on expiry of their term before the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009 was promulgated
Respondents did not have the required experience of five years standing as an advocate on the date of promulgation of Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009
Notification by which requirement of five years' experience was dispensed with was issued after the said Act, therefore the notification could not be applied retrospectively to extend benefit of S.3 of Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009
Once the services of respondents were terminated, they were required to compete for the posts through the Public Service Commission
Ad hoc appointment of respondents would not give them a vested right for seeking their regularization under the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009
Impugned judgment of High Court was contrary to the law and was set aside accordingly
Appeal was allowed accordingly. Respondent in person (in C.P. No.314-P of 2011).
Judgment & Decree
AMIR HANI MUSLIM, J.
These appeals, by leave of the Court, and civil petitions, involving common question of law and facts, are directed against the impugned judgments of the learned Peshawar High Court, whereby writ petitions filed by the respondents were accepted and their services were regularized.
2. Facts necessary for the disposal of the present appeals are that the Government of N.-W.F.P. advertised posts of Additional Government Pleader (BS-17) for recruitment on ad hoc basis on 29-9-2008, prescribing the qualification of LLB with five years experience as an Advocate preferably on civil side, as provided by Notification No.E&A (LD) 2-58/93 dated 15-7-2006. The respondents were appointed on different dates in the year 2008 on ad hoc basis for a period of six months till the arrival of appointees of the Public Service Commission. After completion of six months, their services were terminated. The respondents filed departmental appeals which were dismissed. The respondents filed constitutional petitions before the learned Peshawar High Court, seeking regularization of their services by invoking the provision of section 3 of Act XVI of 2009, which was enacted on 24-10-2009, as a corollary to the North West Frontier Province Employees (Regularization of Services) Ordinance 2009, issued on 24-9-2009.
3. During the pendency of the writ petitions, the Government of N.-W.F.P. issued notification dated 9-3-2011, by which the requirement of five years experience as contained in the notification dated 15-7-2006 was dispensed with. The learned High Court, while relying upon the notification dated 9-3-2011, accepted the writ petitions directing the appellants to regularize the services of the respondents by the impugned judgments. The Government of KPK filed civil petitions challenging the judgments of the learned Peshawar High Court, when on 13-7-2011, leave to appeal was granted.
4. It is contended by the learned Additional Advocate-General, KPK, that the learned High Court has overlooked the provision of Regularization of Services Act, 2009, which apply to only those who qualifies to hold the post sought to be regularized. In this respect he submitted that none of the respondents had five years experience on the date when they were appointed as Additional Government Pleaders.
5. He next contended that the respondents were never qualified for their appointment as Additional Government Pleaders and the term 'regularization' clearly envisage that, only those appointees shall be considered for regularization who were holding same qualification and experience prescribed for a regular post. He submitted that ad hoc appointees cannot seek benefit of such a concession and provision of section 3 of the Act would only apply to those employees who were in service and not to the employees whose services were terminated after lapse of time stipulated in the notification of their appointments.
6. He further contended that services of one of the ad hoc appointee namely Noor Elahi Khan were regularized though he did not have the required experience of five years, could not be made a ground for regularization of the services of the respondents. According to him, the Government has already initiated departmental proceedings not only against him but also against the responsible officer who has committed this illegality.
7. As against this the learned counsel for the respondents has contended that during pendency of the writ petitions before the learned High Court, notification dated 9-3-2011 was issued through which the condition of five years experience, as provided in the earlier notification dated 15-7-2006 was dispensed with, therefore, the respondents were qualified to be considered for regularization.
8. He next contended that the respondents were discriminated against, as services of Noor Elahi Khan, one of the co-petitioner, were regularized by the appellant, for which no plausible explanation has been offered.
9. We have heard the leaned counsel for the parties at length and have also perused the record. In the first place, admittedly the respondents did not have the required five years experience on the date when they were appointed as ad hoc Additional Government Pleaders for a term of six months. The services of the respondents were terminated on expiry of their term before the Act XVI of 2009 was promulgated as an Act of the Provincial Assembly. In order to gather the intent of the legislature promulgating Regularization Act, section 3 is reproduced herein below:-- "
3. Regularization of services of certain employees-- (1) All employees including recommendees of the High Court appointed on contract basis or ad hoc basis and holding that post on 31th December, 2008 or till the commencement of this Act shall be deemed to have been validly appointed on regular basis having the same qualification and experience for a regular post." The, respondents did not have the required experience of five years standing as an Advocate on civil side on the date of promulgation of the Act. The notification dated 9-3-2011 came late in time by which condition of required five years experience was dispensed with. Therefore, the notification dispensing with the condition of five years experience for the post could not be applied retrospectively to extend the benefit of the Regularization Act. The language of section 3 of the Act is unambiguous on that score.
10. Moreover, once the services of the respondents were terminated, they were required to compete for the post through the Public Service Commission. The ad hoc appointment of the respondents will not give them a vested right for seeking their regularization on the basis of the Act. As far as the regularization of services of Noor Elahi Khan is concerned, ex facie, it is without lawfully authority, for which departmental proceedings have been initiated. We, for the aforesaid reasons, are clear in our mind that the respondents cannot seek benefit of regularization on such a ground. The impugned judgments of the learned High Court are contrary to the established law and are liable to be set aside.
11. In view of above, the appeals are allowed. The civil petitions are converted into appeals and allowed. The impugned judgments in the civil petitions are set aside. MWA/G-8/SC Appeals allowed.