Qurban Ali and Others (Petitioner) VS Province of Sindh & Others (Respondent)

<Jw( \c Gt,- '. /-*.-o q f.1L \e--s odRTIFlC.\TIi Otr iri.li r'-1 t L- P tlL'. I z\1 l>. tt I ot ' G,^[-'* A t, L 0'r . vs Pr'"vi- 7 s-Jl'

SINDII IJIC}I COUR'I'

Conyositiou:i ttk - 7,,--L * t't't lL.t.i" tLL4- RSA t4! |L'tL - n(,,- j..rte ?m-1'/^ ^r*;

Dates of bearilg;. Z3 !- 3.,tl t. '.f|, ?-! t1' t^ -t0 Decidc{l ')n t:i ob-te 'l

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(il)Judglrent aPl.oY.d ior i-ca rcportiDg.

CBITTIF ICATI]

,"t'l')'ltl lli',J'i',,$lt'J'Jl;1,"1[:i',iT';l?";1,?'""':i]?''t#'Tilli l,l.li.' ,,,.,, i-,ir.iir i';iplrrins a pr,:vicus dccision.

lslrikc oul wlichcver ls not opplicsblc

/' No'I'E:-(i) This slip is ooly to bo tscd wh'D sonrc a(fion is to bc t'ak'n'

(iil If thc slip is uscd, ttre llcadq mlst sttEch it !o thc to!' of the llrst IlaSc of lhc iudSrDcnt.

wliting th€ Judgmcrt whcthcr tb0 {iiil Rcrdcr tnnst ask the Judge Jor Jt)dgnrcnt is 0pprovcd lcportilB (ivr J'hosc dircctio0s which drc not to bc us€d shou)d bc dclct'd' SGP., Kar --L iiii) 1459-5,000- 6'93--T'S

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IN TIIE HIGH COUR'I ()F'SINDII, BDNCII AT SUKKI IR

2q -V?,/) 3f.70 l()l:l (. P. No.D- cri

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>c/,., ,,.i Qurbon Ali S/O Arbab Ali Chann4

2.Sa,eem Ahmed S,() Noor Muharnmad Sarnoo, shoulGt AIi s/O Muhammad Moosa Mallah, ,1. Aursngzeb S/O Haji Ali Hassan Tunio,

5.Zuli&ar Ali S/O Rahmatullah Khaskhcli,

6.Mazhar Ali S/O Shamsuddin Sial, t. 1. Akhlaque Htrssain S,iO Muhammad Liaque Solangi,

8.Misri Khan S/O Jumo Khan Bhurl : 9. Charesar S/O Allsh obha]o IIulljo,

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i t0 Shahid Hussain Si'O Qadir Bux Bhani, i ll Muhammad Arshad S,/O Bashir Ahmed l(amboh, t2 Ashlaque Ahmcd SiO Qurban,4.li Dehraj. vr:hri l(n.! ."n e! ,.nljr Xoh.r,rro l.nht". Al1 RiO Taluka Mchrabpur & Kandiaro, Drstri(t Naushehro f ( r\t/e. ......................... l)etitioncrs

VLRSI S

I P.O. Sifl dh. through Chicf Secretary. New Sindh Secretariat Karachi.

Secretary, Fisheries & live stock, i Govemmeol ol'Sindh, Barrack No 90. Opp-3ite Sindh Assembly BuildinS, Ka,achi' Sccrctary, []lanrring & Developmenl Dcpan snt, Govemment of Sirdh, Karachi,

.1 Director Ceneral F'ishcries.

Covemment of Sindh. st Ba.racks No.50. Pakistan Secrclariat Karachi 5 Direc(or Rcsearch & Developmenl l;ishertes Depanment. Govemmenl of Sindh, At Uarrack No.50. Pakistan Secretariat Karachi,

r-18

(t Dircctor fisheries lnland. Thandi Sarak I Iyderabad,

Director Fisheries, Sindh, Hatcheries and lraining. Govemment of Sindh, Hyderabad,

8./- Section Officar (ccnerfll) Fishcries & Live Srock l)epanment Covcmnlent of Sindh Karachi. .. . . . . Ilcsponrlcntr

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c()1\s TITI]TIo N PETITO\ I NDEII ARTI(' LL ISq OFTIIT] (I)NSTITT]TIOIN OF ISL,{NI I(' l{f Pt Bt.I( olr PAKTSTAN 1973.

That petitioners named above r€spectfully begs to submit as under:- I That $9 pctitioners are respcctable and la* abiding pcrsons and thcy resid€s at above mentioned address.

l Itat on 16-ll-2009 the petitionsr No.t was appoilred as purnp Operator (BPS-3), on l-9-2009 thc petirione! No.2 was appointed as plumbcr (BpS- 3), on l-10-2009 the petitiotcr No.3 was appointed as fisher Man./ Lahoror (BPS-I). on l-9-2009 the petirioner No.4 was appoinrod as Dlcctrician (BPS-7), on 1-8-2009 the peritionq No.5 was appointed as Chokidar ,i watchman (BPS-]), on 12-12-2009 the pctitioner No.6 \las appointed as Fisherman / Labourer (BPS-I). on l-9-2009 the petitioner No.7 was appoioted as Naib Qasid (BPS-I), on l-9-2009 the petirioner No.8 was appointcd as Chowkidar/Watchman (BPS-I), on l0-2-2010 the petirioner No.9 was appointcd as Lab Atrcndant (BPS-I), on l-9-2009 the netitioncr No.lo was appointed as Fishennan / Labourer (BPS-I), on 29-9-2009 thc petitioner No.l I was appoilrled as fisherman / Labour (BPS-l), oll 0t-t 0- 2009 thc petitioner No.12 was appointod as Cenerator Operator (BPS-g) in Fisherics depanment lbr the period of I year on tcmporarily basis. Ph('loslat

t'tl

IN THE HIGH COURT OF SINDH AT I(ARACHI

C.l'. No.D-5397 of 2019.

!q5rnti

Qurban Ali and others ttuough Mr' GhazanJar Ali.Jatoi, Adv(--ate.

Respond€nis The State through Mr. Abdul Jaleel Zubedi, Assistant Advocate General a/u' \4r- Muhammad Aslam Ansari, Director of Fisherics.

Dates of hearinS: 23.09.2019 and 30.09 2019

f)ate of announaement: 07.10.2019

OItDLIt Mohammad Karim Khan Agha,I.lhis full bench has been lormed by the Hon'blc Chief of this eourt in order to answer a qucstion ('f law Justice arisinB oLlt <rf wo opposing orders passed by h{o seParate Division Benches of this court.

2.ln esse cc. the Filtheries DePartment Govcrnment of Sindh (C(Xj) appointed 87 Pelsons on contract to cary out an imProvement scheme hatcheries beint! the "strengthcning and imProvement of fish and shrimP to time' in Sindh" in 2009-2010 whose contracts u'ere renewed from time 'fhe contract emPloyecs were linally ter nated by an Order dated 19-09' 2013 by thc Director G€neral Fisheries Sindh GOS \a'ith the aPProval ot the

competent authority due to non allocution of funds in the aforesaid

rlevelopment s(heme (the impr:gned order)'

Slome of these terminated worke$ filcd a petition at thP Sindh lligh

and their re Court Kara.hi seeking thc st lin8 dow! of the imPugned order thc case instatement and rcgulalization of their services lhe bencir heard and through order dated 2 2-2016 whilst relying on the case of Dr' Iqbal the Sindh (Regularizatiolr, |an V Province of Sindh (201'1 PLC (CS) 1153,

fgo

of Ad hoc and Contract EmPloyees) Act 2013 and the fact that the CC)S had already established a scrutiny committee to consider the cligibility of petitioners for legularizatron under the Sindh (Reguladzatjon ol Ad h(r and Contract Employecs) Acl 2013 ordered that the Ptitioners be con-sidered for regularization b)- the COS (the Karachi ortlcr) 4' A little later on some other Petihoncrs who had als(' been aflected by the impugned order filed a petition before the Sindh lligh Cou at Sukkur essenhally seeking tht'same reliet as the Petitioners who had filed petitions before the Kara.hi Bench as discussed above. The Karachi order uiJortunately rvas not brought to the attention of the High Court lJivision Bench hearing similar Petitions in Sukkur. The Sindh HiSh Court Slrkkur Division bench took a different vievr of the matter and through order dated 21-04-2015 the lligh Court Llcnch at Sukkur in effect dismissed thcir petihons on account of jurisdiction- NamelY, that sin'e the Petition€rs lvere civil Eervants the HiSh Court could not considel their matter since it fell within the €xclusive domain oI the S4rvice Tribunal (the Sukkur or'ler)

5.Thus, on tlre same issue of whether the Petitioners who had been appointecl as afotesaid on contract by the lisherie3 DePartment GOS ct-rulLi be regularized tho different opposing orderc hati teen handed down by this Court.

6.Hence, this larger bench has been fomEd to decide as a matte! of law a$ to how the Pehtioners in this instant petition should be trcated in the above circumstances.

7.Lcarned counsel for the Fchtioners c(tntended that the Sukkur order was per incuriam and that the Karachi order had 'orrectly aPPlted th{'r i.r!v. lhis r,\'as because in the Sukkur order it had eroneously fornd that the petitionels h-ere civil servants and thus \4?re subiect to the Servicc libunal when in fact they r"!'ere not civil selvants and their Petitions should have beer decided by this court in its constitutional iurisdiction' lle furlhe! submitted that the cale of Dr'Iqbal ,an (SuPra) as cited in the Karachi orrier had clinched the issue of how contract employces should be treated in terms of the Sjn(lh (Regularization of Ad h()c and Contrad q

t3l

Employees) Act 2013 and that the petitioners in this Petition $'e!e entitled to the same h'eatmcnt as the petitione6 in thc Karacfu orLler as theY were a part o[ thc same batch of petitioners *'ho had been terminated by thc impugnetrl ordcr. Namely, be considered by the *-rutiny cortmittec for rcSularization. ln suPPort ol his contenhons he Pla.ed reliance on Begrrm Nucrat AIi Go[da v. Federation of Pakr6tan and others (Pl-D 2013 Suprcme Court 829), lkram BEI and 524 others v. Ndtional Bank of Pakislan through Pr4ident and another (2U)5 trMR 100), tsoard of Intermediate and Secondary Education, Faisalabad through Chai(man and othcrs Tanveer Saiid and others (2018 SCMR 1405), Ali Azhar Khatr Baloch and others v. Province of Sindh and others (2015 lxlMR 456), Sindh Civil Servants Act 1973,sindh Civil Sen'ice Tribunal Act 1973 and Siidh (Regulariation of Ad ho. and Contract EmPIoyees) Act 2013.

8.On the other hand leamed AAG has iflitially argued that this court .annot hea! this Petition a5 the instant Petition had already bccn di$missed on metit5 vide order ol this court dated 06-08-20 t6

9.On ments he argued that the Sukkur order had bc'cn (orreatlv decidcd and ought to tale Prelerence over the Karachi order although he conceded that the Petitionels were not civil servallts He further submitted lhat b]'an order dated 17-09-2019 anothe! Divisional Bench of this court had very reccntly dismissed the P€t;tion of similarll' placed Petitioners in the same batch as the .Lrrrent petitioners in thc imPugned order to L€ regularired and as such thc instance Petitions should also he dismisse'l ln support of hjs contentions hc has Placed reliancc on the unrePortcd cate of ihis court of Qutban Ali and another V Covernmenl of Sindh datcd 17-09-2019 and the Sukkur order B'hich in his vieu had correctl,v enunciated the Iaw on tlus matter as oPPosed to the Kara(hi order' 10 We have heard the atgunrents of the lealned counsel for the petitioner's as well as leahed AAG and hdve.onsidered the relevant law including the cases cited at the bar.

11.Iurning to thc issue of maintainabiliB. We hale reviewcd the lile 't and nole that order datcd 08J)8-20I6 rJid disnrrss this pehtion howcvcr the

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orde! was pasccd in thc absence of the Petitioners. Even othcr^'ise the order wrongly re(ordcd that this .ourt did not have jurisdiction to entertain the same (as we shall come to later in this order) and in our view the order cannot be termed as onc on merit More imPortantly, by order dated '11-O5-2017 this coud restored this Petition back to the position it was at w'hen it was dismiss€d bI ordcr dated 08.(18.2016. It is to bc noted that thc Asst. AC was plesertt on the date when tlle Petition was rcstored and that he made no objection to the same alrd that order was not appeaicd which has no$'attained finality. Ihis issue was also not raised on the last 11 dales of hearing by the AAG IT is also by now well settled that the la& requiies matters to be decided on melits as opposed to techni.alities and as such 14'e find this Preliminary obie(tion to the maintainability of the petition k, bc mis(onceived antl lind the Petition at Ieast so far as the restoration application is concerned to be maintainable.

Whcther this court has jurisdiction to hear this matter undcr Article 199 ol the constituti()n we !{ill now attcnd to.

1?. At the outset we have considered the cas€ of Qurban Ali (supra) as relied upon by the respondents and have noted that althouBh this case relates to the same batch of employees as lhe Pctitiurers wbo also challenged the impugned order this Petition was not decided on merits. Instead it had been dismisscd on account of laches sincc the petitioners had approach this court over 3 vears after the imPugned order came ink) for.e, Thi6 is not the ca6€ in the instant petiticin which was filed Promptly on 2&10-2013 and as such is not hit by laches.

13.The first issue before us aPpears to bc u'hether this court has jurisdiction to hear this Petiti()n. ln our view this will turn on whether the contract emplovees can be legarded as civil servants or not lf the petitionels fall into the category oI civil seffants then this court will have no jurisdiction to hear the same and the .ase of thc PetitioneN will have to be taken up by the Sindh Serlice Tribunal as Per Arti(le 212 of the Constitut;on lf thc petitioners are not civil seryants then tfus c(rurt will have jurisdiciion to determine the matter Lrnder its c(,nstitutional juri..lictrt'n un(ipr Arti( lc 1999 LeePins in ! i€ra' the iacts an(i

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cir.unstances of this Particular case and Article 25 of the Constitution' Although thc respondents have conccded that the petitionc's arc nol civil servant we shall by way oI abundant caution still consider and deternune thi6 issue.

14.Article 212 ol the Constitution Providcs as undcr:_ l

212.Adfiinistrdtioe Courts an Tibunals (1) Notu'ifisffl'tding afiything hcretrtb?i)re conlaiad lhe tt\ProPflite LPgislalurc mn! by Acl ffrLn'ida lot the eslabltsh E l t'fl one ot nore Adrnlnistrutiue coutts ot Tibuflals to e*rcise eaclusioe iu sdiction in ftsPctl of -

(a)natte$ ftlating to the teftns and cofidltio'ts of pe6ons @ho arc ot haTte been in the s?nticc of Pdklslun, incltding disciqli ary flatteG;

(b)multcrs ftlaling lo tlrn s arisinS {rom torluow n.ts oJ' Goftmmen' ot afiy Pcrsol i the seni2 of Pd|islan, ot of diy lotul ot olhcr aulhoitv enpou'ered lty lato kt l?t'11 r v ldx or cess and any slrDatll of sr.ch authiily ,r,chtlr itt lhe discha6? oI hts lluhe| as such senwnl; ot

(c)matlers fttttli S lo tl? acq isition, all ifiislration nnd disPosal of uny prL4nrty trhtch is decnttd to be tneny llal1erlv nirr anV l41tt

(2)Nottbithsta ding anlthing lrcreinabol)s cofltained, 'ohere ix! Adrflinis*atioe Cofit ot Tibunal is establlshed uniler clause (li, no other cortt shall Sra t an hi rrctiofl, 'nake afly oftlet or enlefiain attV yroczeditrgi in tesPect of atlry fiattet to which the j isdiction ;f such Adfiinbttutioe Coutt ot Ttibu aI ?xtefids: Proddti tllnl llz Pnt'isions oJ this dsus? shall not oPlty to n Adminiskatite Au or 'libunal rstablisll,.d und$ dn Ad o.f n Prorircial Assctnbly unl.ss, at thc rcquesl of tlnt Asseflbly made in the furm of n resohttioi, Pa iom l hy lnlo e,'telld'l the Prof isitt9 la such i Court orTtibunal.

(3)An nPfat lo tht sllPreme Cnurt fron a i lSmc I d rce olier or seatence ol an Adhinistratil,e Coutt or'fibuml slnll lie a ly il the suprcntc Colu . t?iq \al$f 1 lh,tl llh ias( otltalt.s sub'l ttltul qucsnot ol lat ol lubtiL I tryrhnt?. lto,tl' l?nrc la afyal

15.Iri the case of AIi Azhar Khart Balo.h v. Provin'e of Sitdh and others (2015 SCMI{ 456) it r','as held as under at Page 521 ParagraPh-l49i- "14g. Article 2L2 ol tle Cofisttluliott ousls lhc Br5diclio't ol Hnh C'ourls arul citttl Coutls in ft5pecl of tht mattets Y'laining lo lefi$ and cond/,jions ol cioil ,en)a tt ln ultqt oflls tl?

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t)rL.,,iston\ Lrl A/titip 212 io tlol cottJil t] $ncnrknl j isdtctiott to cioil Co rls, Hi3,r Cor/ls a d Tnbunnls. fhe oustcr rontcfilllate.l wdcr th? saiil Atticle is a Constitutional cofifiittil, nfld, therelorc, ol eccssitv resticts lhe irisdictio of cit,il .owts o l High Coxns on thc subjcrt, .ahih sqwrrchl lalls toithitr thc d.lusil,c tlouain of Trirrnals."(btrl(l adde(l)

1r'. Tho PreanlL.le h, the Sifdh Civil Ser\ tnts A.t 1973 rcads nr un(ler,

^I-IIE SINDH CIWL SERVANTS

4CT,1973

{'tNDH ACf NO.XIV Of 19i3)

Karachi, lfu stt' Decemh?r, 1973

AN AC?

to regutate the appointrtgnt of Persofls to, ortl thc tann\ n d .unditions of s?nr.e of Pcr5orts in, tfu scnti.e ol Pokistan in cofinection u'ith the af[airs of rhe Ptuohtce ol Sifldh

Pleatnble, -

Wbreos it is exptdicnt to ftSulntc W In t, lhc aryaifilfietll af persans to, n d lht t?nns and cottditions ol senrice of Perlotu in, lhe sflice of Pahislan ii connection lL,ith the afairs of the Prortirce of Srru1h Md proide ht matfurs ru ecletl l@rcl[ilh or ancillary lherelo:

ll is h?reby ena!.led as hllolt s!

1, Shon ti ., Lpqti.otion afil cot tfiencefttent.7 (1) This Ac t tttdy be called the Sindlt Cilril Se-.'ants Act, 1973

(2)It alplles to .ioit setuLnts wheretet they na! be.

(3)tt shall come nno t'otce nt onde (bold added)

17 S.2 (b) oI the Sindh Civil Servants Act 1973 defines a "civil servant" as un(1et:

(i)" ctoil seroant" rcans a Wrrofi who is a fiember of a ooil sen'ict o.f IIE Proltince at l'rllds c ctoil post n conncclion lf ith ttu flJfam of th? Prouill&, bul does nol ntclude

(i)a Wrson ho is on drlulalitn lo the Proufice Jrom the Fccl4ratlott or on! olhet Prottince or iklhaity; or r

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(it 4 Person who is eriPloYed on cofltract, or a kttrk' Llut4ed hasi', oruho is paid from coilingekdes; or (iii) a pel{ion uho is "roorker" or "aLarkman" os dtf ed il lh? Foctorirs Act, 1934 (XXV of 1934). ot lll? Work un's Coryxnsalior. Acl,1923 (V l of1923).

(lb)tlapulaliott" means llu PostirlS ol n person fi qccordAne uith s b se.tion (1) of sectioft 1GA;

18 The preamble to the Sindh Service f bunals Act, 1973 reads as undor:-

"THE SINDH SERWCE TRIBUIIAL

ACT,1973

tslNDH ACf NO.Xv OF /9/J)

Karachi, lhc 5tt' Dccenber, 1973

AN ACT

to prooide /o/ establbhrnefit of Seruice Tribu als to .xercise jurisdlctiott in reslect o/ fiatters relating to the lerms and cortditiofis of seroice of citil seroaits.

v\theftas it is exPetlie t to Plooidc for the ?stdblishfieflt of Ailrnifiistttttioe T bun\k, tt, bP c,llled Seruicc Tibuttek, to ctercise exclush'e jutisdictio irl rcsPect of motters rclating to th4 tetlfii an.l cofiilitions ol sefliic" of cioll setoants' qnd .fo/ mstter' conrecteil th?r?u'ith or a illary ttt?ftto

Il is hereby enacted as follol'si

1.Short tltle, cot tnencane t artil aPllicatiorl. (1) Thts Atl mav bc cnlled the Sindh Serok"Tibatal Act, 1973.

(2)lr shill con| 11110 .brcc at once

(3)tt sryties to atl c;oil setuonts uheleaer thc! t'toy lre.fuold added)

19.S.2 (a) oI the Sindh Service Tribunals Act 1973 which has becn promulSated as mentioncd above in order to deal with mattcrs relahng to the terms and conditions of service o(.ivil servants/ and lor matters connected therewith o! ancillarl' thereto defines a "civil servan/' at S 2(a) as under;

t

2k) "cloil seroafi( ntnfi$ o Wtsott tttho. is or l@,s beet a membet of lhe Cioii lkn)i|" nl the Pronince or, loLls or has hel.l a dt'il Wst in co ne(kofl t!,ilh the illans of the Pro|i ce, ontl Ior thc plttlose ol aty froceedin| under lhis acl ittch,llzs a Persa ula t5 ot htr.s been, distnisse , ilischtrged. rcnoeed or rclircd Ircm ntLh s?ra e or Posl as u con*quetrv ol lhe r;d{ of tttt bpotlne, al aulhnrty b docs nol inclu.lP - tt) p,)son tt'ho is ofi dePutnlot Lo lte Ptorlnce ftom lt| 't F eraho or anv olher Profince at Nlhoril!; ar 0n g lerson who is efiPlo|ed on conttoct' or on ltork chdrgei basis, or ttln $ laid lrLntl cLt linsenr'ies; ar \ti a fcrso ltlo is a "ttvtktr" or "u'o*nnn" ot deli ed Ln lhe FadoriEs Att, 1934 (1r-., Of 7934)' or the Worknen's Compensalon acl, l92i (Vlll OF'1923),

(aa\ "CorPoratiofi" uea s a CorPontliott or lnstill,,iorl sel up ot estabtishcd W a Prot)ircial enact neht \bold aidedl m. Thus, based on our consideration oi the abovc law we have no doubt in <rur minds that the petitioners who are contract emPloyecs are not civil scrvants and as such we can consider the Petition in our constitutioMl jurisdiction under Article 199 of the Constitution based on the pafiicular facts and circumstances of this case and Article 25 ol the C-onstifution.

27.We ate fortified in our conclusion since in the case of AIi Azhar Khan Baloch (8uPra) when the SuPreme Court directed this court to 8o rhrough the suits and filed be,ore this court in connection with Petitions service matte6 and to determine whethe! the matter ought 10 be Placed before the Service Tribunal or be dealt with by this court vide order dat€d 176 March.2015, it was hcld by a Division Bench of this.ourt alter consideting the issue that this Petition fell within the iurisdidion of this cou in thc following termsi "Th? Peti one9 claim to bc co tr,icl emPlovees' hence cre not .cioil. sentaints. This berrch has scfltttnizei this pctttton ln the liSht of ir/dsne1lt doted 05.1.20t5, ,rdssed tn Citil R'!iell' Petitton No 79J 'o1"2013 et" lAti Azhar Kha Batoch o Prooinc? ol Sitdh tt inothet) and ne?d ot to be tnnsfencd to thc Sindh Seruicc Tibunal Let the rnotlPr be Placcd belore the batch of thb Court lor its decisiol on fieits."lbold dded) Si,/ Chief lusttt,.'

sd/- l*lge

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22.Turning to the question of per in curium.

'Per incuriam" is,lefined in Bla.ks law dictionar]' as under:

1 "l'er incuriam, adi, (of a judicial de.ision) wrongty de(ided, u5u' because the judge or iudges were ill-inform€d about the applicable law.

As a pieneral rule the only cases in v,'hich decisions should be held to have been givei Fr n uriam arc tho.k of (ier:isions Sivtn in ignorance or forgetfulness ol some ilronsistent statutory Plovision or oF some auth;ritv bindin8l on thc court .oncemed, so that in such (ases some leatures of the decision or some steP in thc rcasoning on which it is base.l is found on that account to t'e demorrstrably wron8. This definition is not necessarily exhaustivc, but cases noi rtrictlj'within it whi.h can ProFerlJr be held to havr been decicled per incuriam, must in our Judgmcnt, corrsistently ivith the stare decisis rule w'hich is an essential Part of our law' tx' ol the rarcst occurrence RuPert Cross & J.W Harris, Pre(td'rt in English Law 119 (4th ed.1991)."(bold added)

23.In HRC No.40927S o{ 2012 Application by Abdul Rehman Farooq Pirzada (PLD 20li rc 829) h'hich was examinirrg the cntitlement of superior court juilges who had served morc than two years but less than 5 years to be entitled to a Pension and whilst holding a iudgment of the Supreme Court which had held such entitlemcnt aJter two ycars to bc Per incu anr the suPreme court considered in detail the meanin8 of Per incuriam at Para-94 in the folbwinEi terms

Maiorilvview"9+ N,'* laking uP lhc rssue oI 'rPI'lrcahrlil\ and crlc(t (rl thrs Iu(l,r,rn,'nt dll( I the irrrPlem'rltah('n ol Ju'li;mcnt rrrr'lcr challenl;e, so a,r to see wtethor it sh()uld have Fr(tsPcctive or r ctrosE;lrve arDlicabililv, the first thing to be noted i5 that in our short or.lcr iaie,l 1f-4'2m3 we h.ve decldred thrl th€ law enunciated in the iudtment under challenge i3 "Per in&riam" 'Ilre fallout of such d(taration is that it is a iudgnrent lvithout iurisdi(tion. thus, lor all intent and PurPose\ not rn L'c quL'(J as ,rrcce.lenf. rather liable lo Lre ixnorfll. n usclLl drs' ussion "n the 'Per rni,rriam' trnds Pl'ce rn thc catc of l,,ncept anJ rmport of Sindh lligh couit far Ass({-iation (suPra), lvhich rcads as under:- \ii) MAXIM 'PER INCURIAM^.

37.'lnauria' literally meaas "carelessness"' [n Practice Pel incuriam is taken to mein pe! ignolatium and ignored iI it is rcndered in iSnoratium of a $tatute or other binding authorily'

38 What is mcanl by giving a decision per incu(lam is gtatute hns not been b(o{8ht to tiving a decision when a (ase or a ihe a ention of the court and they have dven the decision in ignorance or forgetfulness of the erigten(e of that case or that iatute or forgetf-utness of some inaonsistent stntutory Provision or of some atithority bilding on lhe coult, so that in su'h cases some part of the deiirion ol some step in the reasoning on which it was based was on that a(coulrt demonskably wton& 5o that in gteP in the such like cases. sorne part of the declsio& or softe reasoning on which it i5 bated. is found, orr that account to tr€ demonstiably wtong. S€e Nirmal Jcet Kaur's casc 120{"1 SCC 558 at 565 Para 2t), Casselaand C(,. l-td. s casc (LR 1972 AC 1027 at 1113. 1131), tvatson's case IAELR 1947 (2) 193 at 196, Nforellc l-td s case (LR i955 QB 379 at 380), Elmer Ltd's case {1{eeklv t'aw Reports 1981, (3) 867 at 875 and {l7it), tsristol AeroPlane Co s case Ltd (AELR 1955 lAbln rS++ 1z) zl: at page 29'1)and Mtrre)ie s case

39.The ratro of the aforesaid judgmcnts is that once the Court has come to the conclusion that iudgftent was dclivered Pet incuiiam then Court is not bound to lollow such decision on the well knon'n PrinciPle that the iudgmcnt itseli is .rvithout jurisdiction ani pcr'incuriurn, thcrclore, it desewes to be ol'er- iulerl at the carliest oPPo.ttnity ln such situation' it is the dut-"" and obliSation of thc apex Co;rt to rectify it- Tl€ law has to bc rievelopei graclually by the intelPretation ol the C('nstitutirh then it will ;tfeci the wliole nation, therefore, this Clourt' as nenli()ned above, is bound to revier, such iudgments to Put the nation on tht'

rriht Palh as it is lhe duLv and, obllSation or thc t'urt rn vrcw.ol Artrtlls 4, 5(2) redJ with Article\ l8e and 190 (n tht Constitution."(b()id added)

AND page-994 and 995 at para4, thich reads as undet:

Minority view but in full agreement with the rnaiority view on the meaiing of per incuirnm;'4 The aJorestated- Iegal position e,,pt.rins ani hi;hh,thls lhe uuc magnitudc dnd tho \uPrrmacv ol this Court in rc-gar.r to the dispcnsatron or ,ustice in the 'ountry Ial\' antl the enunciatlion and the declaration of thc lala'by it' As thc it' bein8 laill down by tlle (aPcx)Court, a,rd the order(s) passed bY the paramor.rnt anrl ultimate in nature, has to bc inPeratiYel) anLl maridatoriJy follou'ed, trbeyed and adhered to bv all the concerncd' in vreh' I{eading A;ticles 1u9 anil 190 conjointlv' ancl while keePing the sch"eme of the constitutiory the very PurPose' thc pivotal position and the status of this Ct'urt (Prescribed above)' it is ptDcJicnt ttlat (orre(t law sh'Irl'l be prorrorlncctl bv the aper tenerdted CJurr. And pursuant lo the above object and due to thc Dosition of lhis Court, thc Court is cumbered with' inviolable I"""..tiiirw, and a sacred duty, to interPret' declare and obeyed en.inciate the taw (or(eclly, so th'l it should be followed' a'l the i.a "Jf,*"a to purposivily ard in teher and ePirit'inbyPakielan) oitt", o.g"ns of tit" itate (including atl olher Courts

r8{

stri(tly inconsonance with the true aim of lhe afoiementioncd Articles. It may be Pertinent to mention here, that any invalid enun(iation of law, shatl (onttavene and imPqgn the very charactei, and aHribute(s) of this Cou,t and such bad/wrong law shall .ause drasti. adverse effe.ts on the socio-economic, oolitical, s.eogaphi(al, €thnic, cultural aspects and dyn'rmi(6 of ihe ,,atioi, t-he society, th€ PeoPIc at large and thc Slate in presentee or in futurio. ln the above context, refetence can also be ;ade to Arti(le 4 of the Constitution which enehrinc' (inter alia) an inalie{uble ritht of every (itizen to be dealt with in accordance with the law, obviously this shalt mean the law thal is. correctly laid down by this Coun. As it is a cardinal PrinciPle o' justice, tha-t the law should be worn by the Jlrdge in his sleeves and justice should be imParted accordin8 to the la1v, notwithstanding ivhether the parties in a lis be{ore thc Court are misdirccted and rnist,la.lrd :n tlr.lt reBdr(l Therefore, if any law whi(h has been inviltdly pronounced and de(lared by this Court, whi(h in particular ls baued upon ignorance of any Provisions r)f the bonstitutiun, an4/or ie founded on Sross and grave misinte(pretation theteof; the Ptovisions of the relevant law have been ig;nored, misread and misaPPlied; the law already enunciaied and settled by this Court on a spe(ific subiect, has not been taken inlo account, all rhis, inter alin, shall constitute n given iudgment(s) as Per in(uriam; nnd incoflsistenyconflicting ie.ision o'f thi; Court shall also fall in that catetory Such (lrrision undoubtcdly shall have 8r{ve conscquences and repercussr!'ns on thc itdlc, thts Persorrs/ cilizens, thP so<'rel) and thc publrc at large as statcd ab,)ve. [hcreforc, il A ju'lgment or a decision oI this tourt which is found to be Per incuria'n (noter what is a iudgment per in.uriam has been dealt with by my brothe! i,e in majority view) ..........

lhe question, ho$'ever, shall be as to hora'this ctut-'- shouki te discharge.l and the ot)iect of correcting the h'rong lal^', dnd setting it (ihc lah, right should be achieve'l' L)ne ('f thc ()bvious *,"", nf Ating so is, ivhen a Party to the lis seeks revie$' of the *'r,:,ng judg;n ent in tetn$ of Article 188 o[ the Constitution But wfrat,lf'thal reme,ty is not availed ior anv reason, or even if availcd by the conccrncd, is dis(ardcd by the Court (again by committin€i another *'rong). Whether thcreafter, such a wrong decisi()n on.ihe point of lau', iannot bc remedied antl intcrfered with' revisited or set aside at all or in other &'ords, evcn if a judgment rvhich is patently Per'it incuriam, ;nlinitely should be lcft outstnndinS' atl,rving to become the liabilit-Y of this Court and our lecal/iuilri'ral sy.tenr, f( r all fururc l-mPs. Antl the (tlus) Cour! 'rnil rh-..v'rcm shoulJ bP letterc(l b) rt 'rnd hPl(t rs d rdPt !e lherck' l.,avinll it inldCt ro pervade dnd pernrcdle *.'riou. PreiuJrre rrr p.rpoir,,u,o th" p.ironsr (il:7en5 of lhP counl& and c\un lhP itate, compelling rirem, to bc dealt t ith b\ a wrong,/invalid law' ilesplte it iaving conre to the notice of the Court, tlnotlSh anv meturs whatsoever, that such decision suJfcrs tr()ln Patetlt and gr('ss vice, and it is vividll n iudtlment per incurianr bl'all relerences

Ito

The answet is "No". ln my candid view the aPplonch to leave su.h r de.ision to stay irta.t thall be ludi(ro!$ and shall Iead to drnsti( e(fects as indiaated above. Rather in such a sitlation this Court, havint spetial position in our iudicature (iudicial Byetem ae highlightcd above) shall have the inherent, inhinsi( and inb.ed power (iulisdiction) vested in it, (a) to d€clare n iudgmerit per incuriam; (b) decline to follow lhe same as a valid Precedent, ic) and/or to set it aside. Fot lhe exer.ise of rutisdiction in that r€tard and (or the discharge of th€ duty ls mentioned earlier, it i3 ab;olutely iffcl€vant a.rd immaterial vide (via) which source it (declsion) haB come to the notite of the Court. 'fhe Court once attaining the knowledge of such a bl€ftished and flawed de.isiorihas the sole ptivilege, to exanrine the eame and to dc(ide about its fate, whefher il is per incuriam o. otherwise' I this context, it lnav be mcntioned, for example, it' u4rilc hearirrg somr' .ase, it is brought to the attcntion oI the Court by the membt'r(s) d the Bar; or duri[g the heali]rg of an] matter, the Court itstll fi|ds an ear,icr iudgm;nt to be Per incuriam, or iI a fudge (Judge of this Court) in lhe coursr: o{ fus study or rcsearch, comes across any judgment rahich ifl his view is Per incuriam or ii any inlormation through the Regis[ar ol the Cou.t it Passed on to the honourable ChiefJustice oI the Court or to any othcr Judge (of *tis Court), bv any mcmber ol the Bar, or the memtEr of the ci\'it so(iety (any organization/group of the societ\') that a judgmcnt is fcr incurlaln lniter u'ithoui the inf(,rmant havin8 any ri8ht or locus standi of hcaring or the audience, until tlle matter is set out for hea ng in tht Court and the Cour( decms rt ProPer to hcar him), thr Court ilr exercise of its inhercnt suo motu Polver and the dut) menhone(l abUve (ernFhasis suPPlie(l) 5hall have thc du€ iuthorit! and the eml)o\{crment to examine such a judSment, in ordcr [o ascertari and adjud8e iI the lah'laid down thcrein is incorrect or othen^'ise' And if the iudgmcnt is found to bc per incuriam, it shall bc dcalt u,ith accordingly. Ifl such a situation (as earlier stated) ii shall n()t be of much si€inilicance, as to wlro has brought the lice of the lvhich chanael tt has iudgment to lhe notice of the Court or tkough ie"&ed there. Rather, the Pivotal asPe(t, the obiect, fhe con'eln and the nnxiety of this court ahould be to examine th€ iudgment and if it is pet in.udam to set the law riSht with crrnsiderable uryency". (boLd added)

24.laking guidarrce from the above definition of Per incuriafi wc are of the considered view that the Sukkur order at the timc it was Passed wa$ per inauriam because it has erroneously de.ided that thP petitioners being contract employecs were civil servants and thus not subject to lhe jurisdiction of this court bc'cause it has {ailed to follow thc 'orrert principles of law which had already been Iaid down in the case of Dr. lqbal Jan (Supra) in cunnection w;th whether or not cotllract employces were civil servants or not h'hich case a long r'!'idr the eatlier v

nt

Karachi order dated 26-02-2015 was decided before the Sukkur order but on account of a lack of ProPer a*sistance unlortunately neither the aloresaid case nor the Karachi order were brought to the attention of the High Court at SuJ&ur white Passing the Sukkur ordcr whi'h lead to it eroneously intcrPreting the law berause the latest case law and relcvanl legal priflciples had not been Placed before it for its consideration $'hich would have otherwise Lleen binding on it and necessitated under the Constitution the HiSh Court at Sukkur following such Division Bench prcredents of this court.

25.Since we have found the PetitioneF ,rot to be civil servants and that rve have jurisdiction to Proceed with and decide this cas€ based or the particular facts and cilcumstances of this case the question arises as to what the next steP should be kecPinB in vicw Article 25 of ihe Constitution.

26.lt is true that the law has moved on since 2013 when this Petition wag filed i! respect of how contract emPloyees should be dealt with under the lar4,. For examplc, in the case of State oil ComPany Lihited V Bakht Siddique (2018 SCMR 1181) it was hetd by the supleme (ourt that

c,utsourced contractual emPlovees based on the facls and circumstances of

the casc $,ere entitled lo be regularized as they had enjoyed long servi(e' r.r,ere fulfilling the same fun(tions as regr'rlar emPlo)ees and the the outsourcing was in eflett a sham mechanism devlscd simPIY to dcny contractual employees of regularization. On the other hand in the case of and Alted EosPital Qazi Muoir Ahmed V RawatPindi Medical Collete (2019 sr-MR 648) it was held by the SuPieme Court that the rcmedy oI conhackral emPloyees iI terminated was to file a civil suit lor damages and not fo! reinstatement belorc this court. PcrhaPs the foroet case is distiDguishable from rhis instant petition in that it referred tu indire'-t conhactual emPlolecs (outsourcctl) and the latter case referred to employees who were formerly civil sen'ants who received conhactual extensi()ns a{ter retirement r'\'hcreas thc instant Petitioners Iell int'r neither of thesc rwo categorics and concemed regllarizatiul as oPposcd to reinstatement under a speciJic Act and neither of the aforesaid sllprcmc t'l

I ?)

court cases based upon their ovr'n Particular lactrs and ciraumstances were confronted with a situation which rnay have becn in violatiofl ot Article 25 of the Constitution.

27, In our view most impo.tantly bas€d on the Particular faats and circumstances of the case beiore us we must bc cogniTant of Article 25 of the Constitution and is a fundaolental riSht which guarantees that Percons in the 5ame class/category should be keat€{ in the same manner ln accordan(e w_ith law without any disarimination. Thus. since in the Karachi order pctsons who wcre in the same bat(h of contract emPloyees (and who were in exactly the same Politiol as the petitioners in this petition) and lrho also had their contiacts terminatcd b1' the impugned order ha,l theit cases referred to the scrurinv committee to conriider $'hether under the relevant criteda as laid down in Dr,Iqb'l ,an'8 case (Supra) the)'should be regulalized under the Sindh (Regxlarization of Ad hlJc and Contract Employees) Act 2013 we hereby dircct the Govermrent of Sindh to place the case of th€ Petitionels in the instanl Petition who are in the same batch of petitioaers as in the Karachi order (and who were in exadly the 6ame posltion as the P€titionels in this Petition) before a s(rutiny committee which shall consider and decide whether th€ petitioners should be regularized based on the rclevant criteria as Iaid down in Dr.Iqbat Jan'a case (Supra) under lhe Sindh (Regularization of Ad hoc and Contract Employees) Act 2013 within th'o months of the date of this order as no dis<rimination is Permitted under Article 25 of thc Cunstitution between those in the same bat(h o( the Petitioners in thc Karachi order as there is no ifltcttigibte dilfere tia kthich distittsuisl&i percorjs or things tlfit are grouPeil togelher frcfi those atho haae been lcft o../f)bclwecn the two scts oI Petitionerc both ot whom werc sailing in the same boat. In tiis tesPect reliance is Placcd on the case I'A' Sherwani V Government of Pakistan (SCMR 1991 1041). This is more so since if the Karachi order which was passed before the Sukkur order had been brought to the attention of the HiSh Court at Sukkur based on the case of Moltilin€s V Ardeshir Cowasiee (PLD 1995 SC 43) the lligh coufi at Sukkur would have been bound to tollow it and thc Petitioneni in this sirnilar rel'cf a', fptrlion anJ the Suklur ortler would h.rle been Sranted

I

t;

tt3

their batch matcs in thc Karachi ordcr back in 2013. It is by now seftle(l that litigants should not be made to suffcr on account oi the laPscs oI tht courts which arc not thet fault. We also note that the Sindh (Reguldrization of Ad h(.- and Conhact Employees) Act 2013 is also still in the fielr] and iI we were to deny the oPPortunity of the Petihoners lo become regularized under this Act tt€u timcly Petitions we h'ould '.tespite in eflect be making this Acl rcdundant in their (ase which this court has no Powcr to do.

28.As such the case of the petitioners should be sent to the scrutinv committce for regularization and if regularized shall be rcgularized from the date o{ thc decision of the scrutin:/ cr)mlrritt€e if it is in thcir favor. It is mdde clear that this order is applicable to only th.,st P€titioners in thc same bat.h of petitionets in thc Karachi order on account ol Article 25 of thc constitution. A copy of this order shall be sent bv the office immediately to lhc Chief Secretaiy Coverrunent of Sindh for infornution and compliance.

29.It ma), be noted here tfEt when tle COS apPealed the case of Dr.lqbal ,an (Supra) to the Supreme colrrt which con(erned the rpllularization of Dr's on contractual basis thc suPreme court in its order datcd 0u{}-l-2015 recorded tlrat the G)S through its Advocatc Ccneral undertook to implement the direcliLrns in Dr.Iqbal Jan's case (Su|ra) in tlr)th letter and spirit and on his undertaking the suPreme (oufi disPosPll oi the @S's appeal with the directions that the GOS shall fully imPlement the ]udgment in Dr.Iqbal Jan's cate (SuPra) within one month of thc date oI its ordcr in the follo!.ing termsi

Order "'fhe lrarned Advo(atc Ceneral, Sin.lh says thaf the Governmcnt of Sindh would not press thi6 Petifion and thc impugned judgment of the Leam€rl High Court shall be imPlemented in letter and sPiit. The Respondents lady Doctors. who are Pr$ent in Courl havc no obiechon to such statement of the Learned Advocate Ccncral, Sindh.

In these circumstances, this Petihon is disPosed o[ as not Press€d. The Govelnnrent of Sindh shall lully i Plement the impugned, r la

/1q

judtment of the Learned High Court in letter and spirit within a period of one month fron today." (bol(l a(lde{l)

30.Keeping in view that the Karachi order was not challenged belor€ I the Supreme Court and was.o[rplied with in temE of Dr'Iqbal Jan'g case (Supra) we can see no reason why thc COS sh(ruld tdke erccPtion to this order whereby simitarly Placcd PeoPlc within the same grouP and class are to be treated equally and in the same manner as Per Article 25 ctl the Constitution.

31.The above petltion slands disposed of in the above teffns ,f nf 11 [*tJ

JUL)CI

Iih'

IUDCE

I

L6