Iqbal Hussain Vs Govt. of KP & others

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, MINGORA

BENCH (DAR-UL-QAZA), SWAT

(Judicial Department)

1.W.P No. 1142-M/2022 with Interim Relief (N) (Iqbal Hussain and others vs. Government of Khyber Pakhtunkhwa through Secretary Industries and Commerce, Peshawar and others)

2.W.P No. 1232-M/2023 with Interim Relief (N) (Mst. Sharafat-un-Nisa vs. Government of Khyber Pakhtunkhwa through Secretary Industries and Commerce, Peshawar and others)

3.W.P No. 1268-M/2023 with Interim Relief and C.M 2324/2023 (N) (Aziz-ur-Rahman and another vs. Government of Khyber Pakhtunkhwa through Secretary Industries and Commerce, Peshawar and others

4.W.P No. 1404-M/2023 with Interim Relief, C.Ms 2323/2023, 174 and 1172/2024 (Abdul Karim and others vs. Government of Khyber Pakhtunkhwa through Secretary Industries and Commerce, Peshawar and others)

5.W.P No. 1030-M/2024 with Interim Relief (Mst. Nida Azeem and another vs. Government of Khyber Pakhtunkhwa through Secretary Industries and Commerce, Peshawar and others) Present: Barrister Dr. Adnan Khan, ASC for the petitioners.

Mr. Rahimullah Chitrali, Asst:A.G for the respondents.

Mr. Rehmat Khan Kundi, Advocate for the respondents No. 2 and 3.

Date of hearing: 20.01.2026

JUDGMENT

QAZI JAWAD EHSANULLAH, J.- Through this single judgment, we intend to decide this and the connected W.P No. 1232-M/2023 titled ‘Mst. Sharafat-un-Nisa vs. Government of Khyber Pakhtunkhwa through Secretary Industries and Commerce, Peshawar and others’, W.P No. 1268-M/2023 titled Abdul Sabooh (D.B.) Hon’ble Mr. Justice Salah-ud-Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah

‘Aziz-ur-Rahman and another vs. Government of Khyber Pakhtunkhwa through Secretary Industries and Commerce, Peshawar and others’, W.P No. 1404-M/2023 titled ‘Abdul Karim and others vs. Government of Khyber Pakhtunkhwa through Secretary Industries and Commerce, Peshawar and others’ and W.P No. 1030-M/2024 titled ‘Mst. Nida Azeem and another vs.

Government of Khyber Pakhtunkhwa through Secretary Industries and Commerce, Peshawar and others’ as in all these connected cases common questions of law and fact are involved.

2.In brief, the Khyber Pakhtunkhwa Technical Education & Vocational Training Authority (“KP-TEVTA”) is a statutory body established under the Khyber Pakhtunkhwa Technical Education & Vocational Training Authority Act, 2015 (“the Act”). Section 4(4) of the Act empowers the Authority to regulate the recruitment of its employees, in pursuance whereof the KP- TEVTA Revised Regulations, 2020 were framed and duly notified. Paragraph-12 of the said Regulations provides for the appointment of employees from BPS-01 to BPS-17 on a contract basis to meet the emergent needs of institutions working under the Authority. In exercise of the aforesaid statutory powers, KP- TEVTA initiated recruitment against various posts. The petitioners, though appointed against different cadres and pay scales, were all engaged under the same legal regime, namely Paragraph-12 of the Revised Regulations, 2020. Upon Abdul Sabooh (D.B.) Hon’ble Mr. Justice Salah-ud-Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah

appointment, they joined their respective duties and have been continuously serving since then. The case of the petitioners is that similarly placed contractual and emergent employees appointed by KP-TEVTA had already been favourably considered by the Board of Directors (“the Board”) in its 19th and 20th meetings for regularization of their services. In its 19th meeting, the Board unanimously resolved to regularize the services of certain contract employees, which decision was subsequently reaffirmed in the 20th meeting, wherein further directions were issued for the regularization of a large number of contractual employees, including those working under the nomenclature of Khyber Pakhtunkhwa System of Technical & Vocational Training (KP- STEVT). Likewise, per their averments, employees appointed on contract basis at GPI Matta were also regularized pursuant to the said decisions of the Board. The grievance of the petitioners is that, despite being appointed under the same statutory framework and despite performing duties of a similar nature, they were excluded from regularization apparently on the basis that their appointments were made after the cut-off date of 31.12.2020.

According to the petitioners, the fixation and application of such a cut-off date is discriminatory, arbitrary and violative of Articles 4, 9, and 25 of the Constitution of the Islamic Republic of Pakistan, Abdul Sabooh (D.B.) Hon’ble Mr. Justice Salah-ud-Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah

3.While arguing the case, learned counsel for petitioners has relied upon the judgment of this court dated 20.09.2023 rendered in the case of ‘Irfan Ullah and another v. Government of Khyber Pakhtunkhwa’ (W.P No.3017-P/2022), wherein an identical controversy was examined and it was held that once the competent Authority / Board has taken a policy decision for regularization of contractual employees, the same could not be selectively applied to the detriment of similarly placed persons.

4.As against that, the respondents in their official comments have stated that petitioners were appointed on temporary basis and that their appointments have been made without any advertisement and merit as well.

5.Heard and the record gone through.

6.After hearing learned counsel for the parties and examining the record with due care, this Court finds that the appointments of the present petitioners are clearly traceable to the statutory regulations framed under the governing Act. Their engagement was neither secret nor a backdoor induction; rather, it was made through a prescribed process to meet genuine institutional requirements. The decisions taken by the Board of Directors in its 19th and 20th meetings were of a general and policy nature, aimed at resolving the issue of long-serving contractual employees of KP-TEVTA. No rational or legally sustainable Abdul Sabooh (D.B.) Hon’ble Mr. Justice Salah-ud-Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah

distinction has been highlighted to place the petitioners on a different footing from those already regularized, save for reliance upon a cut-off date which finds no foundation either in the parent statute or in the regulations themselves. It is a settled principle of law that similarly situated persons must be treated alike, and that any classification, to withstand judicial scrutiny, must rest on an intelligible differentia having a rational nexus with the object sought to be achieved. The denial of consideration for regularization to the petitioners, while extending the same benefit to other employees appointed under the same regulatory framework, squarely offends the constitutional guarantee of equality before law. Moreover, once the competent Authority had itself resolved, as a matter of policy, to regularize contractual employees, the implementation of such decision could not be left to arbitrary or selective application, as such an approach would vitiate the decision itself and render it vulnerable on the touchstone of fairness and reasonableness.

7.Regularization in public service must strictly conform to the constitutional mandate of equality, fairness and non- discrimination. Article 4 of the Constitution guarantees that every person shall be dealt with in accordance with law, thereby proscribing arbitrary, capricious or unguided exercise of discretion in promotion matters. Article 25 enshrines the principle of equality before law and equal protection of law, requiring that Abdul Sabooh (D.B.) Hon’ble Mr. Justice Salah-ud-Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah

similarly placed employees be treated alike and forbidding any pick-and-choose or selective grant of promotion without a rational and lawful basis. Article 27 further safeguards qualified citizens against discrimination in matters of service, a protection which, by settled judicial interpretation, extends to promotion as a natural and integral incident of service. Consequently, any denial or deferment of regularization in disregard of eligibility, seniority or prescribed criteria, while extending the same benefit to others similarly situated, is constitutionally impermissible and liable to be struck down. Respondent No.2, in his official comments, has primarily refuted the claim of the petitioners on the ground that the service matters of TEVTA employees recruited under the TEVTA Act, 2015 are regulated by the regulations framed thereunder, whereas the service matters of the existing civil servants working in TEVTA are governed by the Civil Servants Act, 1973 and the rules made thereunder. He has further admitted that a cut-off date was devised for the purpose of scrutinizing experienced staff, while asserting that the availability of vacant posts was also a relevant consideration for the regularization of contractual services. The aforesaid defences, however, are in clear conflict with the constitutional principles of equality, fairness and non-discrimination, as consistently articulated and affirmed by the superior Courts, and cannot be sustained to justify selective or arbitrary denial of regularization to similarly placed employees. In Abdul Sabooh (D.B.) Hon’ble Mr. Justice Salah-ud-Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah

I.A. Sherwani and others v. Government of Pakistan through Secretary Finance Division, Islamabad and others1, the Supreme Court of Pakistan struck down exclusions founded upon arbitrary cut-off dates as being violative of Article 25 of the Constitution.

The legality of fixing a cut-off date as a basis for classification was examined in the aforesaid judicial pronouncement. The settled position which can be gathered from the dictum is that a date per se is not unconstitutional; its validity depends upon whether it is founded on an intelligible differentia and bears a rational nexus with the object sought to be achieved. Where a cut- off date is arbitrarily or whimsically chosen, having no relevance to the purpose of the statute or scheme, particularly when used to determine eligibility for service or pensionary benefits, it offends the principle of equality and is liable to be annulled. Conversely, a cut-off date fixed for the enforcement of a taxing statute or for granting fiscal concessions may be upheld, as such matters fall within the policy discretion of the Legislature or the Government, provided the choice of date is not capricious. The relevant observations of the apex Court are reproduced herein below for the facility of reference.

“29. The question, whether a specified date can be the basis of classification, has been the subject-matter of judicial pronouncements. In this regard, it may be pertinent to refer to the following cases:--

(i)D.R. Nim v. Union of India (A I R 1967 SC 1301);

1991 SCMR 1041

Abdul Sabooh (D.B.) Hon’ble Mr. Justice Salah-ud-Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah

in which the Indian Supreme Court, while construing Rule 3 of the Indian Police Service (Regulation of Seniority) Rules, 1954, held that date of 19-5-1951 fixed by the Government for reckoning the service of promoted Indian Police Officers was invalid since the same had nothing to do with the application of R.3 (3) provisos 1 and 2 of the above Regulation.

(ii)Jaila Singh and another v. State of Rajasthan and others (A I

R 1975 SC 1436);

In the above case, the Indian Supreme Court, while construing Condition No.3 of the Rajasthan Colonization (Rajasthan Canal Project) which provided that pre-1955 tenants would be entitled to the allotment of more land as compared to the post-1955 temporary tenants, held that the difference in the period of occupation between pre-1955 and post-1955 tenants is not of such an extent as to justify allotment of larger extent of land to the pre-1955 tenants than to the post-1955 tenants nor for the discrimination among pre-1955 tenants between those holding more than 25 bighas and those holding less than 25 bighas.

(iii)The reference to the case of D.S. Nakara and others v. Union of India (supra) may again be made as in the above case, the Indian Supreme Court has inter alia held that the Government action to specify a date for qualifying for the benefit under the slab pension scheme was arbitrary and unconstitutional as it was not covered by reasonable classification.

(iv)Union of India and another v. Messrs. Parameswaran Match Works etc. (A.I.R. 1974 S.C. 2349);

In the above case, the Indian Supreme Court was considering the vires of a notification issued under Rule 8 of the Central Excise Rules (1954) providing for concessional rate of duty on match boxes only to those manufacturers who had filed declarations as required by the above proviso before 4-9-1967. It was held that the choice of the above date for granting concessional rate of duty was not discriminatory as to violate Article 14 of the Constitution as the purpose of the notification was to prevent the larger units who were producing and clearing more than 100 millions matches in the financial year 1967-68 and which could not have filed the declarations, from splitting up into smaller units in order to avail of the concessional rate of duty by making declarations subsequently. It was further held that the choice of a date as a basis for classification cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the circumstances.

(v)D.G. Gouse & Co. (Agents) Pvt. Ltd. v. State of Kerala and another (A I R 1980 SC 271);

In the above case, the question before the Indian Supreme Court was, whether the choice of 1-4-1973 as the date for imposition of tax under the Kerala Building Tax Act (7 of 1975) was Abdul Sabooh (D.B.) Hon’ble Mr. Justice Salah-ud-Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah

discriminatory and violative of Article 14 of the Indian Constitution. The Indian Supreme Court reiterated the principle enunciated by it in the above case of Union of India and another v. Messrs. Parameswaran Match Works etc. referred to hereinabove at S. No. (iv) and held that in view of the factual aspect of the case referred to therein, the above dote was not discriminatory as to violate Article 14 of the Indian Constitution.

30.It may be stated that as a general proposition it cannot be laid down that in no case a specified date can be made basis for classification. It will depend on the facts of each case and if the specification of a particular date is based on an intelligible differentia, which in turn has nexus to the object for which the relevant statute has been enacted, such classification will be legal and valid but if the specification of a date is arbitrary or whimsical, it cannot be made basis for classification as has been held in the above case of D.S. Nakara and others v. Union of India (supra) by the Indian Supreme Court. Furthermore, a distinction is to be drawn between a case in which a date is specified for the purpose of qualifying for certain benefit under certain enactment/scheme and a date which may be specified for the enforcement of a particular Taxing Statute or a notification granting certain concession from payment of taxes and excise duty. In our view, the former category should pass the test of reasonable classification, whereas for the latter category, there is no such requirement as the Legislature or the Government has the discretion/power to fix a date for the enforcement of a particular, statute or for granting certain concession in respect of tax or excise duty, and for that purpose, there cannot be any mathematical or logical way of fixing a date except that the Legislature or the Government may fix the same according to its own need and convenience.

8.The settled constitutional principle emerging from the above pronouncement is that classification, to be legally sustainable, must rest on identifiable qualities or characteristics common to those included and absent in those excluded, and must bear a rational nexus with the object sought to be achieved. Once a benefit or exemption is extended to a particular class, it is constitutionally impermissible to deny the same to other similarly situated persons through artificial sub-classification lacking a rational basis. Any such selective exclusion amounts to hostile Abdul Sabooh (D.B.) Hon’ble Mr. Justice Salah-ud-Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah

discrimination and is violative of the equality clause enshrined in Article 25 of the Constitution. The said view has recently been reaffirmed by the apex Court in its judgment dated 05.12.2023 in Civil Petition No. 159 to 178, titled M/s AK Tariq Foundry Bar Khyber through its Authorised Representative v. Government of Pakistan through Federal Secretary Finance and Revenue Division, Islamabad and others, wherein the Court clearly held:

“10. The classification must be based on some qualities and characteristics which are to be found in all the persons grouped together and absent in the others left out of the class. When the exemption is granted to a particular class of persons, the benefit thereof is to be extended to all similarly situated persons. There does not remain any room for creating sub-classification thereby excluding one sub-category without adopting any differentia having a rational relation to the object of exemption. The record does not exhibit any rational distinction on the basis of which two industries of steel and ghee or cooking oil were deprived of the benefit of exemption envisaged under Entry 152 of the Sixth Schedule to the Sales Tax Act. There cannot be any discriminatory treatment of some persons who fell in the same category for it would then be violating the equality clause enshrined in Article 25 of the Constitution.”.

The Supreme Court further held that exclusions lacking any rational nexus with the object sought to be achieved amount to clear and palpable discrimination and are liable to be struck down as being ultra vires the Constitution. This settled constitutional doctrine applies with equal force to regularization matters in public service, where arbitrary cut-off dates or selective Abdul Sabooh (D.B.) Hon’ble Mr. Justice Salah-ud-Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah

exclusions cannot be sustained in the absence of intelligible differentia and a rational nexus with the object of the policy.

9.A similar controversy of identically placed employees of KP-TEVTA already stood conclusively settled by this Court in Irfan Ullah’s case (supra), wherein the precise question of selective regularization of contractual employees of the respondents-department had come under judicial scrutiny. After examining the record and the stance of the department, this Court held as follows:

“4. Both the petitioners are the pioneers employees of the respondents-department and have been posted against various posts since 2015. Their appointments were made pursuant to an advertisement issued in various dailies and in response when they applied for the said posts, however, they were appointed on contract basis. This fact is evident from their appointment letters available on record. However, after the expiry of the contract of the appointment, fresh appointment letters were issued to the petitioners for specific period and this practice continued till 2022. When the BOD in its 19th meeting held on 20.07.2022 recommended vide agenda item No.4 that the employees of the Authority who were appointed on emergent basis would be regularized. In this regard the constitution of the committee was recommended comprising of Secretary Industries as chairman, Special Secretary Finance, Representative of Establishment and Managing Director of the Authority as members to work out and bring the financial implication of such conversion in the next Board meeting. Similarly 41 number of employees were also proposed to be regularized in the said meeting.

5.The proposals made by the BOD in 19th meeting, held on 20.07.2022 were approved by the following 20th meeting held on 12.08.2022 and this fact is confirmed from the decision of the Board as agenda item No.1. However agenda item No.4 further elaborates and Abdul Sabooh (D.B.) Hon’ble Mr. Justice Salah-ud-Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah

confirms the regularization of 41 number of employees after receiving the recommendation of the committee which was formulated pursuant to the decision of the Authority in 19th meeting.

6.The respondents in para-7 of the comments have stated that since the nature and scope of the duties of the petitioners were different, therefore, they were not regularized pursuant to the directions of the BOD of the Authority. However, when the learned counsel for the respondents and representative of the department were asked that in what manner the job description of the petitioners was different and whether their names were available in the list of 41 number of employees who were ordered for regularization, they have frankly conceded that there was no differences in the job description of the petitioners viz-a-viz the regularized employees and further admitted that the names of both the petitioners were enlisted in the list of 41 number of employees who were recommended for regularization.

7.It appears that it is a classic case of discrimination as it is surfacing on the record that the petitioners were discriminated against the similarly placed employees who were working with the respondents-department since long and the competent authority has ordered for their regularization. Since the petitioners have not been treated in accordance with law and were discriminated which offends the cardinal principles of equal protection of law to all citizens of Pakistan as envisaged by Articles 4 and 25 of the Constitution, therefore, we are constrained to allow this petition and direct the respondents to consider the cases of the petitioners for regularization in terms of the decision of the Authority/Board unanimously taken in 19th and 20th meetings. The needful be done within a period of one month.”

The above judgment was subsequently assailed before the apex Court too who, while deciding Civil Petition No. 762-P of 2023 on 25.02.2025, maintained the view taken by this Court, thereby lending finality to the principle that once the competent Authority has resolved, as a matter of policy, to regularize Abdul Sabooh (D.B.) Hon’ble Mr. Justice Salah-ud-Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah

contractual employees, the benefit thereof cannot be withheld from similarly placed persons on arbitrary or discriminatory grounds.

10.Such being the position, and respectfully following the ratio laid down by the apex Court as well as this Court in the afore-referred dicta, we are of the considered view that the petitioners have successfully made out a case warranting indulgence of this Court. Consequently, all these writ petitions are allowed, and the respondents are directed to consider the cases of the petitioners for regularization in terms of the decisions unanimously taken by the Authority/Board in its 19 th and 20th meetings, strictly in accordance with law. The needful shall be done expeditiously and, in any case, not later than thirty (30) days from the date of receipt of a certified copy of this judgment.

Announced Dt: 20.01.2026 -Sd-

JUDGE

-Sd-

JUDGE

Abdul Sabooh (D.B.) Hon’ble Mr. Justice Salah-ud-Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah