2017 PLP (C (PLC(CS)N)

ROOH-UL-AMIN KHAN, J.

In pursuance of an advertisement published in local dailies, the petitioner applied for employment against the post of Steno-Typist ( BPS-12). After qualifying the test and interview held in the office of Provincial Program Implementation Unit, National Program for Family Planning and Primary Health Care, he was selected and appointed on contract basis, vide order dated 19.7.2012. Consequently, he submitted his charge report on 24.7.2012 and assumed his duties as Steno-Typist in the office of Provincial Program Implementation Unit National Program for Family Planning and Primary Health Care. In the meanwhile, the process of regularization was underway; therefore, his name was included in the regularization list of employees of the department. In this regard, an Inter Provincial Coordination (IPC) meeting was held at Islamabad on 3.7.2012 for regularization of the services of the Lady Health Workers (LHWs) Program employees, wherein it was decided that the LHWs Program Fields staff i.e. LHWs, LHSs, Accounts Supervisors and Drivers will be regularized with effect from 1st July, 2012 as initial appointment and financial implication was to be borne by the Federal Government and shall be made accordingly on the basis of employees' strength as on 30.6.2012. Since the program field /PMU staff regularization notification had not yet been issued by the Federal or Provincial Government, therefore, permission was sought for payment of salary and allowances to all the concerned and also to include in the program PMU employees list for regularization. Here it would not be out of context to mention that some of the affectees had approached the august Supreme Court of Pakistan through Civil Petition followed by Misc. Application No. 506/2012, for redressal of their grievance which was disposed of vide order dated 7.3.2011 and the respondents were directed that no adverse decision contrary to petitioner's valid interest was to be taken by the Federal or Provincial Government and all efforts were to be made to protect the rights of the petitioners.

2. In conformance to the above mentioned order of the august Supreme Court of Pakistan, the Health Department, Khyber Pakhtunkhwa Lady Health Workers Program Provincial Program Implementation Unit, Peshawar, on 17.10.2014 issued notification in terms of section 4(1) of the Khyber Pakhtunkhwa Regulation of Lady Health Workers Program and Employees ( Regularization and Standardization) Act, 2014, whereby LHWs Program Khyber Pakhtunkhwa working in Program Provincial Program Implementation Unit, Peshawar were regularized w.e.f. 1.7.2011, but astonishingly the name of petitioner was excluded which aggravated his grievance, hence this petition.

3. Initially comments of respondents were called for which were submitted, wherein the request of petitioner regarding regularization was refuted on the sole ground that according to Regularization Act of LHWs Program, all the employees who were appointed in the program on contract or fixed stipend basis before 1st of July, 2012 and holding the said post till the commencement of this Act, were regularized with effect from 1st July, 2012, whereas the petitioner was neither appointed before 1st July, 2012 nor he was holding the post on the above said date.

4. Having heard learned counsel for the parties and after perusal of the record it reveals that undisputedly, petitioner was appointed against the post of Steno-typist (BPS-12) on contract basis after qualifying the test and interview held in the office of Provincial Coordinator, LHWs Program. The posts were duly advertised in the newspaper on 31.5.2012, whereas the test and interview were held on 5.7.2012. The appointment letter could not be issued by the department, statedly, due to some administrative reasons. It is an admitted fact that the petitioner was appointed in prescribed manner against substantive vacancy of Steno-typist but on contract basis, and at the time of promulgation of Khyber Pakhtunkhwa Regulation of Lady Health Workers Program and Employees (Regularization and Standardization) Act, 2014, he was serving the department as Steno-Typist also. It is also borne out from the record that when the process of regularization was afoot, the petitioner was in active service of the respondent/department. It is also not disputed that the respondent-department, in compliance of judgment of the august Supreme Court of Pakistan issued the regularization notification of LHS, LHWs, Accountant Supervisors and Drivers and PMU staff of the National Program for Family Planning and Primary Health Care, Khyber Pakhtunkhwa, whereby they were regularized against their posts with effect from 1st July, 2012, but astonishingly the petitioner was deprived of the benefits of the Regularization Act on the sole ground that he had been appointed after the target date i.e. 1st July, 2012. Record divulges that the Prime Minister of Pakistan had constituted a Committee under the chairmanship of Syed Khurshed Ahmad Shah, the then Federal Minister for Religious Affairs to look into the issue of regularization of 105086 number of LHWs, working on contract / fixed basis, throughout the country as the Prime Minister was pleased to regularize them with effect from 1.7.2013, however the august Supreme Court of Pakistan directed the Federal and Provincial Governments to consider their case of regularization with effect from 1.7.2012 instead of 1.7.2013. The direction of the august Supreme Court of Pakistan was in the better interest of employees, because the Government was constrained to hold that the services rendered by the employees ( LHWs) prior to regularization would not be counted for any retiring package/benefits. The fixation of cut-off date i.e. 1.7.2012 is misinterpreted by the respondents in a detrimental manner to the vested rights of petitioner. There is no cavil to the fact that the purpose of constitution of Committee under the Chairmanship of a Federal Minister was only to help the ad hoc employees by extending them the benefit of regularization and not to thwart grant to the employees. An overview of the above fact would reveal that the respondents, instead of extending benefit of the beneficial enactment to the employee, are creating hurdle and hampering its accomplishment. Not only the Court, but the Government departments are also under laden duty to provide justice to its employees and look with favour in interpreting remedial and curative enactment, which are beneficial in nature. The provisions of any beneficial statute are to be liberally construed, so as to advance the remedy and suppress the mischief and to ensure that the legislative intent in this behalf is not frustrated. It is settled law that in absence of the express words to the contrary, the legislative or sub-legislative enactment should not ordinarily be construed to destroy the vested rights.

5. Besides, a similar controversy cropped up between another deprived employee and respondents department which was brought by the employee before this Court in case bearing W.P. No. 1167 of 2012 titled Mst. Robina Bibi v. Provincial Coordinator etc, wherein the same contention of the department was repelled and the act of respondents i.e. non-regularization of service of the then petitioner was declared against the principle of equal treatment as enshrined in the Constitution and by accepting the writ petition, directed the respondents to regularize the services of the incumbent like other similar employees already regularized in compliance with the order of august Supreme Court of Pakistan with all service benefits. Needless to mention that petitioner of the above mentioned writ petition had been appointed after the alleged targeted date i.e. 1.7.2012.

6. It is settled law of the land that alike shall be treated alike, whereas in the instant case, the petitioner has been denied the similar treatment by the respondents department, which is a worst example of discrimination on part of respondents. Expression as envisaged in Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 means that no person or class of persons shall be denied the same protection of law which is enjoyed by other persons or other class of persons in like circumstances. Similarity of treatment has been guaranteed by the Constitution, 1973 which cannot be denied on the basis of like and dislike.

7. For what has been discussed above, the instant petition is allowed. The respondents-department is directed to regularize the petitioner with effect from the date of his contract employment with all the service benefits. ZC/353/P Petition allowed.