2018 PLP (C (PLC(CS)N)

WAZIR SHAKEEL AHMED, J.

Through this writ petition we intend to dispose of identical writ petition bearing Nos.76/14,80/14 and 35/15 as these four petitions have been filed against termination order on the basis and pursuance of circular No SO (S)-1-1(49)/2014 dated 08-5-2014 issued by respondent No.2. Admittedly the petitioner named above was appointed by respondent No.4 as ASI in BPS-09 under the Prime Minster's Assistance Package hereinafter called package as his father Muhammad Ibrahim DSP was died rather murdered when he was going towards his house from the place of his duty. The Office Order No.IGP-1(1)/A.P1118-22/2012 dated 05-4-12 also reveals that the petitioner was appointed on the above post after satisfying that the petitioner was full filing the relevant educational and physical standards. The above appointment was of course made against the vacant post as required by the package with effect from 05-1-2012. It is admitted that after his recruitment the petitioner was nominated for probationary ASI course in Police Training College Sihala which the petitioner successfully completed. It is also on record that the petitioner was admittedly getting/drawing his pay and allowances etc admissible to a permanent police employee and a proper service book of the petitioner was maintained by the respondent No.6. Nothing to further mention that the annual and revised pay are also incorporated in the said service book of the petitioner. The petitioners of Writ Petition No.76/14 were appointed as FCs in the police department under the package for the initial period of two years and their services were further extended for one year and through the impugned circular the services of all the petitioners were also terminated vide order dated 3rd June, 2014. It is also worth mentioning here also that the petitioners completed their recruitment courses from police training school in the year, 2002 and petitioners 2, 7 to 9 also successfully completed their course of Special Quick Responses Force under the supervision of the Armed Forces of the country. Accordingly the service books of the petitioners prepared and maintained by the concerned respondents and the petitioners were also held entitled to enhanced increments and pay revisions through entries in their service books. The salaries of the petitioners were stopped from 1st April, 2014 by respondent No.3 without any just reason whereupon the petitioners were forced to approach the concerned authorities and instead of redressal of their grievances their services were terminated. It is also an admitted fact that the petitioners submitted an appeal to Chief Minster/Chief Executive Gilgit-Baltistan against their termination order in pursuance of circular dated 08-5-2014 supra. The Chief Minster/Chief Executive Gilgit-Baltistan vide his letter No.CM-Sectt-1(9)/2014/0319-22 dated 12-6-2014 was pleased to cancel the above mentioned circular of respondent No.2 and restore the contract services of the employees including that of present petitioner with effect from the date of their termination. The learned Deputy Advocate General has failed to contradict the above factual position and to apprise this court regarding any proceedings initiated by the answering respondents to get the above order of cancellation of termination orders reviewed by the Chief Minister/ Chief Executive Gilgit-Baltistan. 10 incumbents whose names are mentioned in the WP No.80/14 were also appointed in the police department Gilgit-Baltistan under the above package by the competent authorities against vacant vacancies of L.D.Cs. in the police department on contract basis initially for 2 years and their services were further extended for the period of one year. The petitioners in the above writ petition were also terminated vide impugned circular dated 28-5-2014. The petitioners of Writ Petition No.35/15 were also appointed in the police department Gilgit-Baltistan vide different office orders under the package after fulfilling the codal formalities ensuring eligibility and fitness. Petitioners 1, 2 and 3 joined the department as F.Cs. while petitioner No.4 was inducted as LDC BPS-7. All the above petitioners of the Writ Petition No.35/15 also enjoyed initial period two years of their service and the same were terminated vide impugned order issued in pursuance of impugned circular of respondent No.2. We have heard the learned counsel for the parties and also gone through record of the case with their able assistance. Now let us go through the most discussed circular issued by the respondent No.2 in pursuance of which the termination orders of two writ petitions were made which is reproduced as under:- No. So(s)-1-1(49)/2014. Government of Gilgit-Baltistan Gilgit-Baltistan Secretariat Services Department Gilgit dated 8th May, 2014 CIRCULAR Subject: CONTRACT APPOINTMENT IN CASE OF HEIRS OF GOVERNMENT EMPLOYEES WHO DIE IN SERVICE. The under signed is directed to refer Establishment Division O.M No.7/40/2005-E-2 dated 13th June, 2006 on the subject and to issue the following instructions for strict compliance. (a) Under the above referred O.M One family member of a government servant who dies in services shall get a government job on contract basis. (b) This type of contract appointment can be made only once for two years in BS-1 to 15 subject to availability of post and the heir of the deceased possessing the required qualification/ experience prescribed for the post. (c) Under Establishment Division O.M No.8/1/2011-E-2 dated 20th April, 2011, the policy is applicable to only one spouse (husband or wife) or child or step child and cannot be extended to more than one family members nor to the same member twice. It cannot be extended to any other family member except specified earlier i.e. husband, wife son or daughter, hence other relatives like brother /son in law etc are not eligible. (d) The person appointed under contract in the policy shall not avail extension in contract beyond two years and he/she shall not be regularized/absorbed in the same post. (e) Under Establishment Division O.M No.7/40/2005-E-2 dated 11th July, 2006, it is applicable only to employees who died after 1 July, 2005.

2. Time and again departments are approaching the services Department for clarification/guidance. Hence, above guidance are issued for strict compliance. Sd/xxx (Abbas Ali Khan) Deputy Secretary (Services) Government of Gilgit-Baltistan Tel 920220 It is expedient to further reproduce the office memorandum dated 13-6-2006 issued by the Government of Pakistan Cabinet Secretariat Establishment Division Pakistan on the basis of which the above reproduced circular was made. Government of Pakistan Cabinet Secretariat Establishment Division No.7/40/2005-E-2 Islamabad, the June 13,2006 Office Memorandum Subject:- Assistance package for families of government employees who die in service. The Undersigned is directed to refer to the subject noted above and to convey the approval of Prime Minster of Pakistan to the following assistance package for government employees who die in service. Item In service Deaths Security related Deaths Lump Sum Up to Rs.1.0 million according to following rates Up to Rs.1.5 Million according to following rates Grant Pension Accommodation Employment Education Health Plot of land House Building Advance . Employment for post in BS-01 to BS-15 on two years contract without advertisement. .. .. . . Employment for post in BS-01 to BS-15 on two years contract without advertisement. . ...

2. All the Ministries/Divisions are requested to take further necessary Action in the matter accordingly. Sd/xxx (Ch. R.A. Zia) Section Officer From the plain perusal of above memorandum it is crystal clear that nowhere in the O.M dated 13-6-2006 it is mentioned that "The person appointed under the contract in policy shall not avail extension in contract service beyond two years and he/she shall not be regularized/absorbed, so the instructions contained in the circular in hand dated 08-5-2014 specially the above reproduced portion enumerated in para (d) are clearly unfound and passed on mala-fides, to the contrary the Government of Pakistan has formulated guidelines for extension of contract service according to which as matter of a policy" the period of contract shall not be extended beyond two years but in exceptional cases where it is considered necessary to extend such period beyond two years the advise /concurrence of the FPSC was to be sought at least 6 months in advance of the period of a original appointment. In the para 2 of the above guidelines issued by the Cabinet Secretariat Establishment Division Pakistan 23-12-2000. It was also held that "the above caveat is only applicable to such post which fall within the purview, of Rule 3 of FPSC (Function) Rules, 1973 i.e. posts in BPS-16 and above and posts 11 to 15 in the departments specified in the sub-paras (i) to (iv) of para 4 of the guidelines which is reproduced as;- i. Extension of contract appointments beyond two years to posts in BS-17-19 shall be subject to the approval of the Establishment Secretary. ii. Extension of contract appointments beyond two years to posts in BS-16 shall be subject to the approval of the Secretary of Administrative Division concerned and heads of departments BS-21. iii. Extension of contract appointments beyond two years to posts in BS-15 and below shall be subject to the approval of a grade-21 Officer designated by Secretary in the case of Ministries/ Divisions and head of department in the case of attached departments and subordinate offices. iv. The case for extension shall be moved at least two month's, in advance of the expiry of original appointments. The learned Deputy Advocate General on the one hand failed to rebut the number of office orders placed in the two writ petitions regarding regularization of certain employees who were appointed under the package like that of present petitioners and on the other hand also failed to furnish the detail list of persons who were permanently appointed on the basis of package in hand since 2006 till date, however Deputy Advocate General has submitted the copy of letter addressed to respondent No.2 and the Law Secretary for the above purpose. It is also an admitted fact on record of this petition that 112 employees of the office of Military Accountant General were regularized by the Government of Pakistan vide letter No.565/AM/704-139/ cont dated 13-1-2012. We have also found in an another writ petition titled Shan v. Provincial Government that the concerned/Government functionaries i.e. the above respondents in a case of Power Department Gilgit-Baltistan confirmed/regularized the service of many employees in Power Department except the petitioner who was appointed on contract like that of other employees of the same department who was denied regularization of his contract service just because of the fact that he was appointed on contract basis on clear cut vacant vacancy but that was under the Family Assistance Package. It is also admitted State of affair that Gilgit-Baltistan legislative Assembly is the only competent forum in the territory of Gilgit-Baltistan to enact/pass bills regarding the service of Gilgit-Baltistan and by doing so the GBLA has passed an Act called Contract Employees (Regularization of services) Act, 2014. The Article 3 of the above Act is read as under:- Article 3:- Regularization of service of certain employees: All employees appointed on contract basis and holding their posts in different departments of Gilgit-Baltistan prior to or till the commencement of this Act shall be deemed to have been validly appointed on regular basis having same qualification and experience for regular post for initial appointments. Provided that employees from BS-1-14 who have completed one year service and employees BS-16-17 and 18 who have completed two years service shall be regularized. In the light of what has been discussed above we are of the firm opinion that the impugned orders of termination of the petitioners are based on mala fide intentions which is clearly manifest in the circular issued by the office of respondent No.2 being discriminatory and against the golden principle of natural justice and that of locus poenitentiae and we by setting aside the same we direct that the petitioner be regularized with all back benefits of a regular employees from the date of their termination. W.P.No.35/15. The petitioners named above have called in question the Office orders bearing No.PTC-1(1)/2462-67 dated 11-10-2014, SP HN-1(1)4951-56/2014 dated 4-6-2014,IGP-1(69)/8755-62-2014 dated 25-8-2014 and No.SP-HN-1(1)/7453-56/2014 dated 10-7-2014, whereby, the services of the petitioners as Foot Constables and L.D.C. were terminated in pursuance of Circular No.SO(S)-1-1(49)/2014, dated 08-5-2014, issued by respondent No.2. 2 Brief facts of the present case are summarized as under:-- (a) All the petitioners named above mentioned were appointed in the police department Gilgit-Baltistan under the P.Ms. Assistance Package by the competent authorities against vacant vacancies in the police department on contract basis initially for 2 years, after ensuring the necessary codal formalities are complied with. (b) It is also on record that some other employees under the Assistance Package who were terminated in pursuance of the impugned circular issued by Services Department GB, they submitted an appeal to Chief Minister/Chief Executive Gilgit-Baltistan against their termination order in pursuance of circular dated 08-5-2014 supra. The Chief Minister/Chief Executive Gilgit-Baltistan vide his letter No.CM-Sectt-1(9)/2014/0319-22 dated 12-6-2014 was pleased to cancel the above mentioned circular of respondent No.2 and restored the contract services of the employees including that of present petitioners with effect from the date of their termination.

3. We have heard the learned counsel for the parties at length and also gone through record of the case with their able assistance.

4. The answering respondents vide their parawise comments have admitted the above mentioned office order dated 5th January, 2012, whereby, the petitioners were appointed in the police department in pursuance of Assistance Package on contract basis for a period of two years against the vacant posts. But in para 5 of their comments admits that the services of the petitioners have been terminated under the circular issued by Gilgit-Baltistan Services Department dated 8th May, 2014 the answering respondents vide their above comments under para No.5 supra have reproduced the relevant sub-para (d) of the impugned circular dated 8th May, 2014 and reiterated that the termination order has been made in compliance of the above made circular.

5. Now let us go through the most discussed circular issued by the respondent No.2 in pursuance of which the termination orders of two writ petitions were made which is reproduced as under:- No.SO(S)-1-1(49)/2014. Government of Gilgit-Baltistan Gilgit-Baltistan Secretariat Services Department Gilgit dated 8th May, 2014 CIRCULAR Subject: CONTRACT APPOINTMENT IN CASE OF HEIRS OF GOVERNMENT EMPLOYEES WHO DIE IN SERVICE. The under signed is directed to refer Establishment Division O.M No.7/40/2005-E-2 dated 13th June, 2006 on the subject and to issue the following instruction s for strict compliance. (f) Under the above referred O.M One family member of a government servant who dies in services shall get a government job on contract basis. (g) This type of contract appointment can be made only once for two years in BS-1 to 15 subject to availability of post and the heir of the deceased possessing the required qualification/ experience prescribed for the post. (h) Under Establishment Division O.M No. 8/1/2011-E-2 dated 20th April, 2011, the policy is applicable to only one spouse (husband or wife) or child or step child and cannot be extended to more than one family members nor to the same member twice. It cannot extended to any other family member except specified earlier i.e. husband, wife, son or daughter, hence other relatives like brother /son in law etc are not eligible. (i) The person appointed under contract in the policy shall not avail extension in contract beyond two years and he/she shall not be regularized/absorbed in the same post. (j) Under Establishment Division O.M No.7/40/2005-E-2 dated 11th July, 2006, it is applicable only to employees who died after 1 July, 2005.

2. Time and again departments are approaching the services Department for clarification/guidance. Hence, above guidance are issued for strict compliance. Sd/xxx (Abbas Ali Khan) Deputy Secretary (Services) Government of Gilgit-Baltistan Tel 920220

6. It is expedient to further reproduce the office memorandum dated 13-6-2006 issued by the Government of Pakistan Cabinet Secretariat Establishment Division Pakistan on the basis of which the above reproduced circular was made. Government of Pakistan Cabinet Secretariat Establishment Division No.7/40/2005-E-2 Islamabad, the June 13,2006 Office Memorandum Subject:- Assistance package for families of government employees who die in service. The Undersigned is directed to refer to the subject noted above and to convey the approval of Prime Minister of Pakistan to the following assistance package for government employees who die in service. Item In service Deaths Security related Deaths Lump Sum Up to Rs.1.0 million according to following rates Up to Rs.1.5 Million according to following rates Grant Pension Accommodation Employment Education Health Plot of land House Building Advance . Employment for post in BS-01 to BS15 on two years contract without advertisement. .. .. . . Employment for post in BS-01 to BS15 on two years contract without advertisement. . ...

2. All the Ministries/Divisions are requested to take further necessary Action in the matter accordingly. Sd/xxx (Ch. R.A. Zia) Section Officer

7. From the plain perusal of above memorandum it is crystal clear that nowhere in the O.M. No.7/40/2005-E-2 dated 13-6-2006 it is mentioned that "The person appointed under the contract in policy shall not avail extension in contract service beyond two years and he/she shall not be regularized/absorbed," so the instructions contained in the circular in hand dated 08-5-2014 specially the above reproduced portion enumerated in para (d) are clearly unfound and based on mala-fide intentions.

8. We have heard learned Assistant Advocate General and learned counsel for petitioners at length on the question that whether petitioners have any right of appointment on regular basis against any available vacant post on the sole ground that their fathers/ mothers have died while serving in the police department. The second question debated before us is that whether legal heirs of any deceased government employee can claim permanent appointment against any vacant post, below grade BPS-15, simply because he/she is son or daughter of such deceased. Learned Assistant Advocate General opposed this notion vehemently and argued that employment in any government department is given only on the ground of merit. In the opinion of learned Assistant Advocate General, this notion or concept, if acted upon, will go counter to the concept of strict observance of merit. On the other hand, learned counsel for petitioners was of the view that sudden death of a government employee, who was the only bread earner of such family, deprives the family from such bread earner shocking such family, and at such a situation, appointment of a legal heir of such deceased certainly gives an effect of patronage of the government. Learned counsel for the petitioners further argued that in such a case government can appoint a qualified person fulfilling the requirements of the post which the government is filling in, except the competition, if any, required for appointment against such post. Anyhow, such post should be below BPS-15.

9. In the case in hand, petitioners are legal heirs of deceased and have been appointed after finding them fit for appointment against the suit posts. We agree with the arguments of learned counsel for petitioners and hold that appointments of petitioners were correct in all respects and their termination is against the normal norms of law. We, therefore, accept this petition and direct the respondents for issuing orders showing continuance of services of the petitioners from the date of their termination. Moreover, we direct respondents for appointing any legal heir of any deceased government employee in future but subject to condition that such appointment should be below grade BPS-15, of any legal heir of the deceased government employee. The appointing authority of the department concerned has the right to ascertain the genuine legal heir proposed for appointment by one or more genuine legal heirs of the deceased government employee.

10. It is also painful to observe that an eligible person duly nominated by genuine legal heirs on a clear cut vacancy is initially appointed on contract basis in almost all cases his contractual services are further extended for number of terms and thereafter his services are terminated with a stroke of pen on erroneous and unfounded grounds as we have observed in the present case, so we also hold that all the employees of Gilgit-Baltistan who are appointed after completing the above discussed codal formalities is entitled to for appointing him or her on permanent footing instead of his/her appointment on any kind of temporary basis. Petition accepted. File be consigned to record. ZC/125/GB Petition allowed.