Bise Sahiwal etc. vs Akhtar Usman etc.

2020 P L C (C.S.) 1036

[Lahore High Court (Multan Bench)] Before Abid Aziz Sheikh and Muzammil Akhtar Shabir, JJ BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, SAHIWAL and another Versus AKHTAR USMAN and 2 others I.C.A. No.152 of 2019, decided on 5th November, 2019.

Civil service--- ----Regularization of services---Scope--- Equality of citizens---Rule of consistency--- Respondents had filed constitutional petitions seeking regularization of their services --- Single Judge of High Court vide the impugned order had allowed the constitutional petitions- --Validity---Orders similar to the impugned orders had been passed in some other Constitutional petitions by the Single Judges of the High Court which were upheld in intra court appeals--- Respondents were entitled to the same relief on the principle of consistency and equality---Respondents/employees could not be discriminated without any cogent reason by violating the provisions of Art. 25 of the Constitution and it was duty of employer department to protect fundamental rights of employee as enshrined in Art.9 of the Constitution---No ground to interfere in the impugned order was made out---Intra-court appeals by the employer department, being devoid of merits, were dismissed. Dr. Naveeda Tufail and 72 others v. Government of Punjab and others 2003 SCMR 291; Pir Imran Sajid and others v. Managing Director/General Manager (Manager Finance) Telephone Industries of Pakistan and others 2015 SCMR 1257; Board of Intermediate and Secondary Education, D.G. Khan and another v. Muhammad Altaf and others 2018 SCMR 325; Mirza Naeem Baig's Case C.P. No.2509 of 2016 and Multiline Associates v. Ardeshir Cowasjee and 2 others PLD 1995 SC 423 ref.

Board of Intermediate and Secondary Education, Multan through its Chairman and another v. Muhammad Iqbal and 29 others I.C.A. No.186 of 2018; Board of Intermediate and Secondary Education, Multan through its Chairman and another v. Muhammad Sajid and another I.C.A. No.149/2018 and Board of Intermediate and Secondary Education, Multan through its Chairman and another v. Furrukh Mehmood and another I.C.A. No.150/2018 foll. Board of Intermediate and Secondary Education, Multan through Chairman and another v. Muhammad Sajid and others 2019 SCMR 233 and Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others 1999 SCMR 2883 rel.

Board of Intermediate and Secondary Education, Bahawalpur and others (in all cases) v. Sher Muhammad and others Civil Petitions Nos.301-L to 309-L and 316-L to 318-L of 2019 distinguished.

Allah Bakhsh Khan Kulachi for Appellants (in I.C.As. Nos.15, 153, 177 and 178 of Nemo. for Appellants (in connected I.C.As. Nos.75, 145, 146, 147, 180, 181, 182, 183, 198, 222 and 223 of 2019).

Ch. Saleem Akhtar, Syed Nasir Abbas, Muhammad Usman Khan Babar and Hamid Aziz for Respondents.

ORDER

Through this consolidated order, we intend to decide the instant intra-court appeal along with connected intra-court appeals i.e. I.C.As. Nos. 153, 177, 178 of 2019 filed by the Board of Intermediate and Secondary Education, Sahiwal ('Sahiwal Board') and I.C.As. Nos.75, 145, 146, 147, 180, 181, 182, 183, 184, 198, 222, 223 of 2019 filed by the Board of Intermediate and Secondary Education, Multan ('Multan Board'), as common questions of law and facts are involved in these appeals, which have been filed against similar orders dated 14.02.2019, 20.02.2019 and 21.02.2019 ('Impugned order') passed by learned Single Judge in Chambers whereby by allowing the constitutional petitions filed by the res pondents ('Respondents'), both the Boards ('Appellants') were directed to regularize service of the respondents with the respective Boards.

2.The brief facts are that the respondents who are employees of appellants filed constitutional petitions seeking regularization of their services by contending that being daily wagers, who had been working with the appellants for a considerable length of time, were entitled to regularization of their services. The learned Single Judge vide the impugned order allowed the said constitutional petitions with a direction to appellant-Board to regularize the services of respondents as had previously been done in case of similarly placed employees serving in different Boards of Education in the Province of Punjab. The said o rders are under challenge through these connected appeals.

3.It has been contended by the learned counsel for the appellants that the impugned orders are against the facts of the case and law on the subject and are liable to be set aside, whereas on the contrary the learned counsel for the respondents have defended the impugned orders.

4.It is observed that orders similar to the impugned orders were passed in some previous petitions by the learned Single Judges of this Court and were upheld through various orders previously passed in different ICAs. One such order passed in different petitions dated 15.05.2018 relating to other employees of Multan-Board was upheld by order dated 29.05.2018 passed in I.C.A. No.186 of 2018 titled "Board of Intermediate and Secondary Education, Multan through its Chairman and another v. Muhammad Iqbal and 29 others along with connected appeals by placing reliance on similar orders passed in I.C.A. No.149/2018 titled "Board of Intermediate and Secondary Education, Multan through its Chairman and another v. Muhammad Sajid and another" and I.C.A. No.150/2018 titled "Board of Intermediate and Secondary Education, Multan through its Chairman and another v. Furrukh Mehmood and another"; which were previously decided vide order dated 14.05.2018 in the following terms:- "6. Undeniably, many similarly placed daily wagers / contract employees of BISE,

Rawalpindi, have already been ordered to be regularized and findings rendered by learned Rawalpindi Bench of this Court have been affirmed upto the level of Hon'ble Apex Court in the case of Mirza Naeem Baig and others supra. As such, on the principle of consistency and equality, present respondents are also entitled to the same relief. Learned Single Bench, after appreciating the dictum of law laid down by the Hon'ble Supreme Court in Dr. Naveeda Tufail and 72 others v. Government of Punjab and others (2003 SCMR 291), Pir Imran Sajid and others v. Managing Director/General Manager (Manager Finance) Telephone Industries of Pakistan and others (2015 SCMR 1257), Board of Intermediate and Secondary Education, D.G. Khan and another v. Muhammad Altaf and others (2018 SCMR 325) and judgment dated 07.03.2018, passed in the case of Mirza Naeem Baig and others supra, came to the conclusion that respondents are similarly placed with the daily wagers / contract employees of BISE, Rawalpindi, who have already been ordered to be regularized. It is well-settled that where Hon'ble Supreme Court deliberately and with the intention of settling the law, pronounces upon a question, such pronouncement is the law declared by Hon'ble Apex Court within the meaning of Article 189 of the Constitution, and is binding on all Courts in Pakistan.

7.Needless to say that the respondent-employees cannot be discriminated without any cogent reason by violating the provisions of Article 25 of the Constitution and it is duty of their Board to protect their fundamental rights enshrined in Article 9 of the Constitution. Appellant-board has failed to show as to how the case of respondent- employees is distinguishable from those who have already been confirmed and regularized. The persons recruited and posted in the same manner are ought to be treated alike and cannot be discriminated against, thus, respondent-employees are entitled far the same relief which has been given to other similarly placed employees."

5.When confronted that how the present case is different from the case of other similarly placed employees who have been granted relief through the afore-said orders, the learned counsel for the appellant despite his efforts and raising certain objection has not been able to convince us on this query by pointing out any distinguishable features. However, the learned counsel for appellants has argued that the impugned order passed by learned Single Judge in Chambers is not based on proper appreciation of law on the subject and is liable to be set aside; in this regard, it is observed that while dismissing I.C.As. Nos.149 and 150 of 2018, the learned Division Bench of this Court had rightly relied upon the judgments of the Hon'ble Supreme Court of Pakistan passed in cases titled Dr. Naveeda Tufail Pir Imran and Muhammad Altaf (supra) in addition to case of Mirza Naeem Baig decided on 7th March, 2018 in C.P. No.2509/2016 wherein services of similarly placed employees of Rawalpindi Board were regularized and we do not find any distinguishable factor or reason to differ with the afore-referred order dated 14.5.2018 passed in I.C.As. Nos.149 and 150 of 2018 whereby the appeals filed by appellant-Board have been dismissed. It is pertinent to mention here that the case of Mirza Naeem Baig (supra) was again referred with approval by the Hon'ble Supreme Court of Pakistan in Board of Intermediate and Secondary Education, Multan through Chairman and another v. Muhammad Sajid and others (2019 SCMR 233) in which services of employees of Multan Board were regularized by making reference to the afore - referred order passed in the case of employees of Rawalpindi Board, which principle is

binding on this Court and the impugned order is inconsonance with the law settled by the Hon'ble Supreme Court of Pakistan in the afore-referred judgments, therefore, the said argument of the learned counsel for appellant is repelled.

6.Even otherwise, earlier judgment of equal Bench of the High Court on the same point of law is binding upon this Bench. Reliance in this regard is placed on Multiline Associates v. Ardeshir Cowasjee and 2 others (PLD 1995 SC 423). The same principle was reiterated in case reported as Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others (1999 SCMR 2883) wherein it is provided that "Bench of same number of Judges of the same High Court, or of the Supreme Court, cannot deviate from the view of an earlier Bench". As already observed above, the learned counsel for appellant - Board has not been able to convince us that the view earlier taken by the learned Division Bench of this Court was not in accordance with law or facts of the case, hence we are not inclined to take a different view.

7.At this stage the learned counsel for the Sahiwal Board has referred to order dated 20.03.2019 passed by the Hon'ble Supreme Court of Pakistan in Civil Petitions Nos.301 -L to 309-L and 316-L to 318-L of 2019 passed in the case of "Board of Intermediate and Secondary Education, Bahawalpur and others (in all cases) v. Sher Muhammad and others" and states that in the said cases, only 43 out of 75 employees were ordered to be regularized on the basis of number of available seats and in the present in case the number of available seats was less than the employees to be considered for regularization; suffice it to observe that neither such ground was taken before the learned Single Judge in Chambers who decided the constitutional petition nor such ground was raised through the grounds of appeal filed before this Court and has been raised as an afterthought. Besides it has not been mentioned that how many seats are available with the Board as compared to the number of employees ordered to be regularized. Even otherwise, the order relied upon by the learned counsel was specific to the Bahawalpur Board and not to the Appellants and furthermore, the said order has been passed on the basis of an arrangement between the parties which would be in personam and not in rem to be applicable to the present case, therefore, the said ground in not available to the appellants.

8.For what has been discussed above, no ground is made out to interfere in the impugned order passed by the learned Single Judge in Chambers. Consequently, the instant (I.C.A. No.152/2019) as well as the connected appeals (I.C.As. Nos.75, 145, 146, 147, 153, 177, 178, 180, 18 l, 182, 183, 184, 198, 222 and 223 of 2019) being devoid of merits are dismissed.

SA/B-2/L Appeals dismissed.