2020 PLP (C (PLC(CS)N)

AYESHA A. MALIK, J.

This judgment decides upon the issue raised in the instant, petition as well as in connected Writ Petition No.4327/2013 whereby the Petitioners seek regularization of their service as Assistant Audit/Account Officer (BS-16) and Senior Auditor (BS-11).

2. The case of the Petitioner of Writ Petition No.4328/2013 is that she was appointed as Assistant Audit/Account Officer (BS-16) on contract basis for three years on 04.02.2008, which was extended from time to time. On 19.01.2010 and 15.05.2010 Respondent No.2 issued Notifications for regularization of contract employees in BS-16 and BS-17 and on the basis thereof 114 contract employees in BS-16 and BS-17 were regularized but the Petitioner has been deprived without assigning any reason and justification. Again Respondent No.2 issued Notifications dated 18.06.2010 and 01.06.2011 and on the basis of said Notifications 192 contract employees in BS-16 have been regularized but the Petitioner has not been regularized. Hence this Petition.

3. The case of Petitioner of Writ Petition No.4327/2013 is that he was appointed as Senior Auditor (BS-11) on contract basis for three years on 04.02.2008, which was extended from time to time. On 14.10.2009. Respondent No.1 issued Notification for regularization of all the contract employees in BS-1 to BS-15 and on the basis thereof, Respondent No.4 vide order dated 22.04.2010 regularized most of the employees of the hospital including the colleagues of the Petitioner who were appointed with the Petitioner on the same day and by the same committee but the Petitioner has not been regularized without assigning any reason and justification. The Petitioner being aggrieved by the act of Respondent No.4 filed Writ Petition No.12378/2011, which was disposed of vide order dated 06.06.2011 with the direction to respondent No.4 to hear the grievance of the Petitioner and pass appropriate orders in accordance with law. Ultimately, Respondent No. 4 vide order dated 12.11.2011 refused to regularize the services of the Petitioner. Hence this Petition.

4. Learned counsel argued that almost all the employees working in BS-16 and BS-17 in Finance Wing of Health and Medical institutions under the contract Policy, 2004 have been regularized but the Petitioners have been ignored by the Respondents. Learned counsel further argued that the employees who were appointed along with the Petitioners and recommended by the same Committee on the same date have been regularized by the Respondent from the date i.e. 14.10.2009 but the Petitioners have been refused the same benefit without any reasons, who are working since 2008, hence they are entitled to be regularized. While relying on the dicta laid down by the august Supreme Court of Pakistan in "Izhar Ahmed Khan and others v. Punjab Labour Appellate Tribunal, Lahore and others" (1999 SCMR 2557) learned counsel argued that if a work is of permanent nature then a person working as such post is required to be a regularized. Learned counsel argued that all the posts of the Respondent Hospital have been regularized but the petitioners have been deprived of their right. Therefore, this act is discriminatory. In this regard, learned counsel has placed reliance on the Notifications of regularization issued in (sic) our of Medical Technologist, Budget Officers, Budget Account Officers, Account Officers, Nurses and Audit Officer dated 9.01.2010, 15.05.2010, 18.06.2010 and 03.07.2019 of other hospitals and of Respondents Nos.3 and 4.

5. On behalf of Respondents Nos.1 and 2, it is argued that the post of the Petitioners is not a sanctioned post, hence the Petitioners cannot be regularized. It is also argued that the posts of the Petitioners were created by the Board of Management of Respondents Nos.3 and 4 in the year 1999, hence the Petitioners do not fall within the category of sanctioned post and are not eligible for regularization. Learned Law Officer further argued that the there is a distinction between permanent and regular appointments as those posts which are not sanctioned by the Government of the Punjab can attain permanent status by the institution itself as per their discretion. However, for the purposes of being a regular employee of the Government of the Punjab, the post has to be a sanctioned post.

6. Report and parawise comments have been filed by the Respondent Hospital wherein it is stated that the posts of the Petitioners were created by the Board of Management of Respondents Nos.3 and 4, that they are paid by the Board of Management and that the petitioners were aware of this fact that their seats have been adjusted by the Board of Management and that they are not entitled to regularization. During the course of arguments, it was clarified that the pay slips of the Petitioners clearly indicate that they are drawing their pay against the seats created by the Board of Management.

7. The basic issue before the Court is whether the Petitioners have a right to be a regularized. Admittedly, the Petitioners have been working with the Respondent Hospital since 2008 as Assistant Audit/Account Officer (BS-16) and Senior Auditor (BS-11) which means that they have been working for more than twelve years at the posts of Assistant Audit/Account Officer and Senior Auditor with no promotion and that the said posts are of a permanent nature. On the Court's query, learned Law Officer clarified that Nurses and Audit Officers have all been regularized pursuant to the order of this Court dated 16.07.2010 passed in W.P. No.7782/2010 against sanctioned posts.

8. In the judgment referred to by the learned Law Officer, a similar matter was considered with reference to the Respondent Hospital whereby the services of Nurses, Plumbers, Helpers and Sweepers were regularized as the posts were sanctioned by the Government of the Punjab through the Finance Department, hence it was directed that they be given the benefit of being a declared regularize under the prevailing policy at the time. So far as Mehreen Raheem, Petitioner in W.P. No.4328/2013 is concerned, the basic issue is that her post has not been regularized by the Government of the Punjab. As per the record available on the file, the Government of the Punjab itself regularized the services of Budget and Account Officers of the said hospital vide order dated 15.05.2010 and Audit Officer vide order dated 03.07.2019 therefore, the Petitioner Mehreen Raheem being the Assistant Audit/Account Officer of the said hospital is also entitled to the same relief as her case is at par with the above stated two employees, who have been regularized by the Government of the Punjab vide notifications dated 15.05.2010 and 03.07.2019. As far as, Haroon Shahzad, Petitioner in W.P. No.4327/2013 is concerned, as per the record available on the file, the employees' working in BS-1 to BS-15 have been regularized by the Respondents in terms of the notification dated 14.10.2009 issued by the Government of the Punjab whereby the employees working on contract basis were declared eligible to be regularized but the Petitioner Haroon Shahzad has not been regularized without any legal justification rather his case is at par with the employees who have been regularized by the Respondents as he was also recommended by the same Committee on the same day. In terms of the record and what has been argued before the Court, the Government of Punjab has not given any satisfactory response as to why the posts of the Petitioners have not been considered for regularization. As per the record, the Respondents contention that the matter cannot be considered by the Government of Punjab or Finance Department is incorrect as the Government of Punjab exerts control over some hospitals, including Respondent No.3 and has regularized the services of its employees. Hence a clear case of discrimination is made out as similarly placed employees have been regularized. Furthermore, contract employee, serving at a permanent post cannot be deprived of his right to regularize especially since the Government has framed a policy on this issue and has regularized similarly placed employees in other Hospitals. Reliance is placed on "Ayaz Ahmed Memon v. Pakistan Railways, Ministry of Railway, Islamabad through Chairman and another" (2011 PLC (C.S.) 281), "Hakim Ali Ujjan and others v. Province of Sindh and others" (2012 PLC (C.S.) 127) and "Muhammad Faisal Khan and 48 others v. Secretary (Health), Government of Punjab, Lahore and another" (2012 PLC (C.S.) 130). In fact since other employees of the Respondent Hospital have been regularized having the same terms and conditions of their appointment letters as compared to the appointment letter of the Petitioners, the Petitioners are also entitled to the same treatment.

9. In view of the aforesaid, this petition is allowed. Since it is an admitted position that other contract employees in the same hospital were regularized, Respondents Nos.1 and 2 are directed to regularize the services of the Petitioners from the date being 14.10.2009. ZC/M-66/L Petition allowed.