Abdur Reheem VS Govt. of Pakistan etc

S,IIEET

IN THE ISL/IWD HIGH OOIIRT,ISUW.D.

JTTDICIAL DDPARTMEI,TT.

WRIT PEf,ITION IYO. 1863 /2O 13

ABDI'L RAIIEEM

Vs.

(x)w. oF PAISSIAN & ANOTHER, PETITIONER BY: Hafrz S.A. Rehman, ASC, Muhammad Anwar Mughal, M/s Muhammad Shoaib Shaheen, Umair Baloch, Abdul Rehman Siddiqui, Ch Asghar AIi, Tariq Mehmood fehangiri, Mohsin Bhatti, Syed Mumtaz Mazhar Naqvi, S.A. Mateen, Naseem Hussain, Nabeel Rehman, Mr Saiiad A. Satti, Anar Khan Gondal, Barrister Huma5run Nawaz l0ran, Syed Tassawar Hussain Shah, Mohammad Amin Farooqi, Abdul Rahim Bhatti and Atta ur Rehman, Mian Muhammad Zafar lqbal, Fiaz Ahmed A. fandran, Ch. Asghar AJi & Ms. Neeli Khan, Mian Muhammad Faisal lrfan, Noman A. Farooqi and Naseem Hussain, Advocates for petitioners in their respective petitions.

RTSPONDENTS BY: M/s Fazal-ur-Rehman Khan Nlazi, learned DAG and Haseeb Muhammad Chaudhary, standing counsel.

M/s Maqbool Elahi Malitr, Salman Maqbool Malik, Sh. Iftikhar Ahmed, Mirua M. Ansar, Mr. Saiiad A. Satti, Hafiz Naeem, Rehan Moin, Muhammad Idrees Ch, Rehan Seerat, Advocates for respondents in their respective petitions.

M/s Tahir Mehmood Abbasi and Muhammad Umar Sohaib Pimada for applicant in C.M. No.1735/14 in W.P. No. 1863/2013 M/s Masood Akhtar Ch. J.S (Admn), Shahid Dayo, D.S (Admn).

Mr. Mohtasimbillah Rana, Section Officer and Syed Zeeshan Raza Zaidi, S.O Estt. Division.

Mr. Muhammad Mirai Khan, S.O, Law, CADD,

Mr. Zahoor Ahmad Arain, Assistant /o Finance.

Mr Amir Ali, Dy. Asst. Director, FGEHF

Mr Muhammad Arshad Anium, A.D. Legal, FDE

M/s Muhammad Imran, DD Law NHA.

Mr. Ahsan Amin (A.D) PHA Foundation.

Mr. Haroon Rashid, Assistant Director, FPSC.

Mr Muhammad Abdullah, Asst. Director (tegal Affairs) & Khalid Hussain famali M/o Foreign Affairs.

DATE OT ST'OR" ORI'ER.. 29.Os.2074

DATE A9 DDTNIED JITIXIMETi,/,|,, 1O.O7.2O14

*-.F No.186312073 2

SHAUI{AT AZIZ SIDDIOW: .} Through short order dated 29.O5.2OL4 Writ petition i,ios. 1863, 2260,2628,2527,2559, 2735.1 2815.,9111, 9181, 9449,4013, fiL7, 4219,4381 of 2O13' 23121of 2O11 ar^d,2462,25,63 of 2O]4 were disposed of which is reproduced herein below:-

"For tle reasons to be recorded later on, the wrtt Petttton .I\Ios.r86o, 2260, 4387 of 2O73, 2327 of 2O77 and, 2462, 2563 of 2O74 are being disposed of together urith the declaration that Cabinet S\tb Committee is not mandated under the laut and constifution to regularize the seruices of emplogees inducted in ttrc Gouernment, Semi-Gouernment deparfinents os well as stafiiory bodies and to assume tle role of appointing/competent autlnitg. Tle Cabinet for that matter cannot euolue a procedure, introdue ang policg, and adopt a mechnnism whichis in direct uiolation of stafiitory laut, Constttution of Islamic Republic of Pakistan and principle of nafiiral justice, fair plag and transparencA. Tlp Cabinet Sub- Committee cannot take ang decision uhichmag result into demotion of rule of law and negation of meit to be preuailed in tle Country. Tle question of regularization of emplogees u)a.s outside tle domain of tlrc Cabinet Sub-Committee as tlrc persons brought to the different departments through back door, dubious procedure, formula based on nepotism, fauouitism, malafide and aimed to achieue tlrc political designs hnue been shielded. ft is an admitted fact that in most of the cases euen tle prescribed procedure was not folloued and no competitiue process was euolued.

2.While seeking gaidanre from tlrc latest ju-dgment of tlrc Hon'ble Supreme Court of Pakistan, passed in Constittttion Petition No.06/2011 titled as 'Sged Mubaslur Raza Jafri Vs. Emplogees Old Age Benefit Instifitte, this court herebg leld that all tle persons whose seruices ho.ue been regulariz.ed as a result of deci.sion of Cabinet $tb-Committee is of no legal effed, uoid-ab-initio and non- existence.

3.The ampetent autlwrities of the respectiue departments are directed to take deci,sion uith regard to regularization of those emplogees taho fulfihled the prescibed qualification and entered the organization/department as a result of competitiue process agairst tle uacant sanctioned posfs. Rest of the appointments hnue no legal sanctitg, tlerefore, fate of tlrcir future mag be decided in accordance with the judgment passed bg the Hon'ble Supreme Court of Pakistan referred aboue and instant iudgment. "

2.By this detail Judgment all the above mentioned Writ Petitions are being disposed of together as these involve similar questions of law and facts arising out of directives issued by the Cabinet Sub Committee for regularization of services of daily wages/contract employees of tl:e Federal Government and its auEonomolts bodies/corporation, etc. having one year length of service up to tJre age limit of 5O years. Petitioners in writ petition No.226O /2013, writ petition No.31 11 /2OL3 as weli as writ petition No.4213 l2}l3 have called into questions the pov/er ai-rd auihoritl' of

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the Cabinet Sub Committee to issue such like directive as well as the appointments made in pursuance thereto and Petitioners in all other petitions - have somewhat prayed for regularization of their services at the touch stone of the said directive.

3.Petitioner Nawab Ali had initially filed Const. Petition No.86/2011 before the Honourable Supreme Court of Pakistan which was remitted to this Court vide order dated 22.O5.2OL3 for its disposal while treating it as Writ Petition.

For convenience the said order is reproduced as hereunder:

"Afier hearing leamed Counsel for tlrc parties, the following order is passed uith consent:-

a) Tlrc petitions along utith CMAs slnll be sent to tlrc Islamabad iligh Court and will be treated as urit petitions pendirq before tle said Court.

b) The parties haue been sented and are represented before us; theg are directed to appear before tle Registrar of the Islamabad High Court on 29.05.2013 whereafier tle Registrar, Islamabad High Court slnil bnng firc maller to the attention of Honorable the Chief Justice for adjudication of these petitiors.

Since matters of importarrce relating to emplogntent opportunities and tlrc burden on the *ate Exchequer are inuolued, we are hopeful thnt the Islamabad High Court slwll decide these petitions expeditiouslg and if possible within three montls before the qtestions aising in tlrcse petitions pima-facie appear to be simple and straightfonlard."

4.Petitioner Nos. 2 to 11 and Respondent Nos. 5 to 2L in Writ Petition No.1863/2013 were impleaded on their own applications; the amended memo of parties was submitted by the petitioner No. 1 accordingly. The respondents were directed to file their report and parawise cornments. The concise statement filed by the respondent No. 4 before the Honourable apex Court was treated as such.

In the meanwhile, the rest of the petitions mentioned hereinabove were also entrusted to this Court, wherein all the respondents were afforded full opportunity to advance their point of view through the report, parawise comments and arguments.

5.Learned Counsel for the Petitioner in WP No. 2260 /2013 1\{r. Abdur Rehman Siddiqui, Advocate has contended that since the impugneC

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appointments/regularizations have been made only in pursuErnce of the aforesaid directive issued by the Cabinet Sub Committee, without adhering to -the legal process and prescribed manner as required under Section 5 of the Civil Servants Act, 1973 read with the provisions contained under the Civil Servants (Appointment, Promotion & Transfer) Rules, L973, the Federal Public Service Commission Ordinance, L977, FPSC (Functions) Rules, 1978 as well as the statutes and rules of the Corporations and Autonomous Bodies where under the said manner has been prescribed.

Learned Counsel further argued that the impugned directive as well as the regularization orders are hit by Article 18 read with Articles 4, 9 &,25 of the Constitution of Islamic Republic of Pakistan (hereinafter referred to as the Constitution). As per the learned counsel, the said appointments being politically motivated and without the due process of law are liable to be set aside in view of case law reported as PLD 1995 SC 530, 1995 SCMR 999, 2OO2 SCMR Ll24,2OO7 PLC(CS) 849, 1993 SCMR 1284, NLR 1994 (Seruices) L, 1996 SCMR 1349,2000 SCMR L72O,2OO4 PLC (CS) 1235 and PLD 2OL2 SC 132 and the very latest judgment of the Supreme Court of Pakistan dated 17.O3.2O 14 in Const. Petition No.6/2011 (EOBI case).

6.Learned counsel of the rest of the petitioners in WP No.226Ol2Ol3 namely Muhammad Anwar Mughal, Advocate an associate of. Hafiz S.A. Rehman, Advocate and Mian Bilal Bashir while adopting the arguments of Mr.

Abdur Rehman Siddiqui, Advocate have added that even the NHA employees who were ordered to be rcgflarizred without sanctioned posts were not paid from the regular budget which is also illegal and unlawful and the same deserwe to be reversed.

7.Mr. Tariq Mehmood Jehangiri, Advocate for the Petitioners in WP No. 42L3/2OL3 has also adopted tl'.e aforesaid arguments. He further added that NHA had to shift the development budget meant for construction of roads in order to pay the salaries of the aforesaid employees who are working against the posts which are not sanctioned so far. He further submitted that the NHA Chairman time and again has requested the Finance Division to allocate special budget for payment of their salaries but no response has so far been received

W.P No.1853l2OL3 5

there from, which means that Federation is not concurring the sanction of the said posts, thus the serwices of the said employees are liable to be terminated.

8.On the other hand, Mr. Maqbool Elatri Malik, Advocate, Raja Aamir Abbas, Advocate, Sheikh Iftikhar Ahmad, Advocate as well as Raja Muhammad Asghar, Advocate have contested the above mentioned writ petitions on behalf of the Respondent employees and that of NHA respectively. They have argued that the Petitioner has no locus standi to assail the directive of the Cabinet Sub Committee which enjoys the Executive Authority of the country. They also attached the appointment of some of tl:e Petitioners rvhose initial appointment was also tainted with legal flaws. karned Counsel added that, by virtue of the said directive, legal riglts have stood created in favour of tJ:e respondent employees. It is setfled principle of law that if an order has taken legal effect, the same cannot be reversed or withdraum to the disadvantage of the ernployees. It has been further submitted that the NHA authorities were legally obliged to obey the said directive issued by the Cabinet Sub Committee. The Writ Petitions are, therefore, liable to be dismissed being devoid of merits.

9.The remaining writ petitions pertain to the employees of Education department who have either been regalairzed and are seeking benefits on the basis of said rego,laizatton or those who have prayed for regularization of their seryices being placed in similar circumstances. On behalf of the said petitioners, Mr. Fayyaz Ahmad Jandran, Advocate appearing in WP No.3443/2013, submitted that since senrices of the Petitioners have been regularized vide notifications dated O8.O2.2O13 & 18.02.2OL3, hence they are entifled to assume their respective duties and payment of salaries accordingly.

Mr. Muhasrmad Shoaib Shaheen on behalf of private respondents in WP No. SLLL/2OL3, etc. contended that since services of their colleagues have been regalaiz,ed vide judgment of this Court dated 24.09.2OL2 in WP No.20L4/2012 with subsequent direction in Crl. Org. No. 25912OL2, hence they are entitled to the similar relief in view of L996 SCMR 1185, 2OO5 SCMR 1OO, 2O1O SCMR ZSg, 2OO2 SCMR 7L,2OO2 SCMR 82 ar:d PLD 2003 SC 724. The other learned counsel of the petitioners who are seeking similar relief have advanced their point of view on similar grounds.

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10.I have heard the arguments of botl: the sides and perused the record. The issues involved in all the petitions revolve around reg;Jarizatson of the services of contract/duly wages employees as per directive issued by the Cabinet Sub Committee. Therefore, primary question needs to be addressed is that under which authority of law, the Cabinet Sub Committee was Justified to pass such llke dlrectlve. For determining the said question, Article 90 of the Constitution required to be referred whereby it has been provided that executive authority of the federation shall be exercised in the name of the President by the Federal Government, which includes the Prime IVlinister and Federal Ministers but the said authority has to be exercised subject to the Constitution. It means that whenever the authority is exercised, it has to be within the limits prescribed by the Constitution. Article 9O of the Constitution is reproduced here under:- The Federal @oernment.-(1) Srhject to tlrc Constitution, the exeantiue autlwitg of the Federation shall be exercised in tlrc mate of the President bg tlrc Federal Gouernm.ent, consisting of ttrc hime Minister and the Federal Ministers, uthich slnll act through the Prime Minister, utho shnll be the chief executiue of the Federation.

@ In ttrc performance of his functions under the Constitution, tlrc pime Minister mag act either directlg or through tlte Federal Ministers.

Cabinet is component of the Federal Ministers and Advisers which are appointed under Article 91 of the Constitution which reads as under:- s97..The Cabtnet.-(l) There slwll be a Cabinet of Ministers, with tlrc Prime Minister at its head, to aid and aduise tlrc hesident in t?rc exercbe of hisfundions."

Under Article 99(2)of the Constitution, Federal Government is obliged to speciff the manner by rules in which orders and other instruments are to be made and executed which is reproduced as under:-

699.Conduct ol buslzess of Federal @aernment.-(2) Tlrc (Federal Gouernment) s?nll bg rules specifg th.e manner in which orders and otlrcr instruments made and eteanted (in th.e name of t\rc President) shall be authenticated, and the ualiditg of anA order or in"stntment so authenticated, and tlte ualidifu of ang order or instrument so autlrcnticated s1p1tt rnt be Etestioned in ang court on the ground ttnt it was not made or exeanted bg tlw President."

It is abundantly clear from the above constitutional provisions that neither the Prime Minister nor the members of the Federai Cabinet are 'permitted to perform their functions beyond the legal provisions i.e.

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Ccnstitution, Statutory Law & the Rules. Needless to mention that there is an olo adage of jurisprudence that "Nobody is above the law". That is why the - Rules of Business 1973 were duly framed so as to conduct the business of the Federal Government. Under the said rules, although there is a concept of Cabinet Sub Committees on different subjects yet there is no such like provision regarding intervention of the Cabinet Sub Comrnittee regarding governing the terms and conditions of tl:e services of the employees. However, Cabinet Sub Comrnittee can recommend any reformation in the services structure which can be approved by the Cabinet squarely in accordance with law and the Constitution.

1 1. The learned counsel for the Petitioners have rightly pointed out that appointments in the civil service has to be made in prescribed manner as required under Section 5 of the Civil Servants Act, 1973 read with the provisions contained under the Civil Servants (Appointment, Promotion & Transfer) Rules, 1973, the Federal Rrblic Service Commission Ordinance, 1977, FPSC (Functions) Rules, L978. For reference Section 5 of the Civil Servants Act, 1973 is reproduced as under:- .,5. Appolntments.- Appointments to an All Pakistan Seruice ar to a ciuil seruice of the Federation or to a ciuil post in connection usith the aflairs of the Federatiory hrcluding ang ciuil post connected uith defence, shnil be made in th.e prescibed manner by the President or bg a person aut?nrized bg tlw President in this belwlf.

Similarly, the procedure for appointments in corporations/autonomous bodies has been prescribed under their relevant statutes and rules. For instance, in the case of NHA, the said manner has been provided under Sections 13 & 14 of the National Highway Authority Act, 1991 read with Rule No. 12 & 13 of the NFIA Employees Serwice Rules, 1995, further read witJ: Rule Nos. 3, 4, 5 & 6 of Chapter-l, Rule Nos. 1 & 2 of the Chapter-3 read wittr the items contained under Schedule-IV of the NHA Employees (Appointment & promotion) Rules, 1995. For reference sections 13 and L4 of the National Highway Authority Act, 1991 are reproduced hereunder:- n13. Appolntment of officers' seraants, etc"--

(1)the authoifu mag fromtime to time emplog sttchofficers and seruants, or appoirrt such experts or consultants, as it mag cortsider necessary for the performance of its functions, on such terms artd conditiolts 6rs it mag deemfit.

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(2)Nottttithstanding angthing contained in sub-section (7), ang rules made, or orders or instructions isszed, bg the Autlwitg, or in the terms and conditiorts of seruice of ang person emploged bg or seruing und.er tLrc Auttaritg, the AutlaitA maA at ang time terminate t?rc seruices of ang person, afier giuing him not less than sirtg dags notice or paA for tlrc period bg ttthich such ratice falls short of sirtg dags.

(3)Seruice under t?rc Autlnitg is herebg declared to be seruice of Pakistan and euery person lnlding a post under the Authoritg, not being a person utho is on deputation to tle Autlwitg from ang Prouince, s?wll be deemed to be a ciuil seruant for tlw purposes of th.e Seruice Tlibunals Act, o74. Recntltment and condltlons of setttice.* The Authoitg shall, tttith the approual of the Council, prescibe the procedure for appointment andterms and unditions of seruice of its officers and seruants.

12.In both the cases, the said prescribed m€rnner includes; issuance of proclamation in the national press so as to afford equal access to the citizens of Pakistan as per Article 18 read with Articles 4, 9 & 25 of the Constitution;

determination of merit by adjudgrng qualification, experience, age limit, eligibility, suitability, physical fitness and prescribed quota through FPSC/Departmental Selection Board/ Departmental Selection Committee etc.

Admittedly the said process has utterly been deviated from, ratJrer it will be justified to say that by virtue of the directive so issued by the Cabinet Sub Committee, all the aforesaid legal provisions and Articles of the Constitution have stood held in abeyance. Thus, the said appointments/regularizations are void, ab initio as the Cabinet Sub Committee was neither empowered to issue such like directives nor the said directive was binding upon the respective competent authorities. It has righAy been argued that the said appointments/regularizations are tainted vdth political motive which is evident from the meeting of tJ,.e Cabinet Committee dated 13.09.2011 wherein a political leader of Pakistan People's Party namely Ch. Manzoor Ahmad, Chairman, Peoples Labour Bureau/Member of Central Executive Committee (CEC) of PPP was also in attendance despite the fact tl:at he was not a member of the Cabinet. As per the learned counsel the then political regime at first instance engaged their favorites on contract basis in different departments of the Federal Government/ Autonomous bodies and Corporations and adopted a novel procedure for regularizatton of their services, thus they are inducted through back door channel instead of laid down procedure.

W.P hlo.1863l2OL3 9

13.Admittedly to safeguard fundamental rights of the cittz,en and to maintain transparency in appointments against the posts under the Federal Government as well as in the public sector organizations/ autonomous bodies/corporations, the Parliament to the best of its collective wisdom, has guaranteed the certain measures which everybody is obliged to observe. It goes witltout saying that for appointments in the Civil Service of the Federal Government against tl e post of BPS-16 and above, duty has been assigned to FPSC and the posts BPS-I to 15 have to be filled through Departmental Selection Committee of the concerned Ministries and Divisions. The competent authority for appointments as such for BPS-I to 19 is the Secretary of a Ministry or Division and for BPS-20 and above, the said authority vests in the Prime Minister of Pakistan. In this hierarchy, a Minister has no role whatsoever.

Simiiarly, the appointments in autonomous bodies/corporations are to be made through their concerned Board/Selection Committee by adopting the procedure prescribed by their statutes and serwice regulations respectively. In this regard, ireither any Secretary of a Ministry nor any Minister or even the Prime Minister of Pakistan has any role whatsoever, except in appointments of the Heads /Chiet Executive Oflicers or Members of Board of Governors/Directors, etc.

i4. Keeping in view the aforesaid legal position, a Minister/MNA whosoever has been deliberately kept away from the said appointrnents so as to avoid any political influence. It will be worthwhile to note that almost every Division has been attached with a Ministry except the Establishment Di'"ision which regulates the seryices of the Civil Seruants that is why there is no concept of Cabinet Sub Committee to regulate the said services in any manner whatsoever.

Instead, the Honourable Apex Court time and again has been pleased to specifically declare that Ministers or MNAs etc. have no role in the service structure and any order passed under influence of the Minister or MNA was always set aside having been treated as politically motivated. It is also matter of record that the Honourable Supreme Court of Pakistan has been consistenfly directing the bureaucracy not to obey such like illegal orders passed by the Minister/MNAs, reference in this behatf is made to PLD 1995 SC 530 titled Zahid, Akhtar Vs. Govt. of Rrnjab etc., 1995 SCMR 999, Abdul Rashid Vs. Riaz- 'ud-Din & others, 2OO2 SCMR 1L24, Syed Sikandar Ali Shah Vs. Auditor

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General of Pakistan & another &, 2OO7 PLC(CS) 849, Secretary Education NWFP, Peshawar & two others Vs. Mustameer Khan & another. - 15. Moreover, the Honourable Supreme Court of Pakistan vide its farnous - judgment dated 17"O3.2OL4 in Const. Petition No.612011, etc. titled as Syed Iv{ubashir RazaJaffery Vs. EOBI, etc. declared t}rat Cabinet Sub Committee had no authori$ or power to issue a directive for regularization of services of the Contractual/Daily Wages Employees. The operative part of the sarne is reproduced as under:-

"27. As a seEtel of aboue dr,scassdoA both these petitions are allowed and dispo sed of in tle following terms : -

(a)All the illegal appointments, deputations and absorptions made in the EOBI, as detailed in tlre report of foct finding committee on recruitment/appointm.ent, are declared to be witlwut lawful autlwitg and of no legal effed. Accordinglg their seruices stand terminated forthwith;

(b)All these uacancies and otter auailable uacancies in EOBI slnll be aduertised andfilled afresh strictlg in accordance uith applicable rules and regalations, subject to prescibed qtota, reEtisite qualifications and merit criteia, for uthich tlrc Chairmory EOBI shall be personallg responsible to en sure tran sp arencg ;

(c)The matter regarding all tlrc illegal appointments, including the appointment of Raja Azeemul Hoq Minhas in tlrc World Bank, shnll be inuestigated bg tlrc NAB authorities; tle respondenfs .lVos.3 to 7 and all otlrcrs directlg or indiredlg inuolued in tlrc process of such illegal appointments on tle basis of arntption, nepotism and political exigencies shall be proceeded against in accordance uith laut uith intimation regarding compliane of these direction to this Court within tuto montls.

@) Affice slwll prepare and maintain a separate file for initiating contempt proceedings, under Article 204 of the Constitution and other enablaign prouisions of contemgtt laws, against all tlase utho are, pima facie, found WilU of uiolation or forder dated 2 1 . 0 1. 2 0 1 1 in H. R. C No. 4 I 0 1 2 - P of 2010, partianlarlg in tle process of appointment of 238 emplogees/oficials durtng ttrc peiod September 2011 to Mag 2012.

Above said judgment being a judgment-in-rem is also attracted on the case in hand and this Court is obliged to obey the same while deciding the instant case. According to informations placed before the Court, Petition seeking review of Judgment in EOBI case also dismissed by the august Supreme Court. Similarly, the Honourable Supreme Court of Pakistan vide numerous judgments has always been pleased to declare any appointment made without adopting the due process of law to be void, ab-initio, illegal and

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without lawful authorit5r, in this regard reliance is being placed on 1993 SCMR 1284, NLR 1994 (Senrices) L, L996 SCMR 1349, Abdul Jabbar Memon's case, _2000 SCMR 1720, Capt. Retd. Muhammad Naseem Hijazi Vs. Province of Punjab etc. 2OO4 PLC (CS) 1235, Muhammad Mazhar Alam Vs. Director Land Record, Board of Revenue Punjab, Latrore & 05 others and PLD 2Ol2 SC 132, Muhammad Yasin Vs. Federation of Pakistan, etc. Thus, it can safely be held that all the appointments/regalarizanons under challenge made by National Highway Authority and education department are hit by the aforesaid constitutional/legal provisions as well as on the touchstone of the legal principles settled by the Apex Court in the aforesaid judgments. It is a matter of great concern that even the directive was issued by the Cabinet Sub Committee for regularization of more than one thousand NHA officers and employees without having sanctioned posts and in utter disregard of the legal consequences. If the said directive of the Cabinet Sub Committee and the appointments/regularizations so made are allowed to sustain that will not only tantamount to usurpation of powers of the relevant authorities but will also be snatching away the guaranteed fundamental rights from the citizen of Pakistan which otherwise cannot be abridged even by an act of Parliament. Therefore, as enshrined under Article 8 of t]:e Constihrtion. The Cabinet Sub Committee being answerable to the Parliament cannot adopt a course which does not fall even within the punriew of the Parliament itself.

i6. In compliance of the order of this court passed on L5.O7.2A13, Mr. Muhammad Rafique Tatrir, Joint Education Advisor, Mlo Capital Administration & Development, Islamabad filed a comprehensive report with regard to recruitments made in the Education Department in the last three years in all scales. The conclusive part of the said report is reproduced here under:- o7. Ouerall Data of Employees Engaged/Regalan'lzed/reeommended for regulartzatlon W the Cabtnet Sub'Commlttee on Regularlzatlon t. Oaerall 2tt4t emplogees (347 contracf + 2507 dally utages) lncludlng 7779 teachbtg and 7O69 non-teqchlng emplogees ltaae been engaged bg dtJferent atlached depattment/subordlnate offices under Dducatlon Wtng of Capttal Admlnlstratlon & Deuelopment Dtntstott" Islamabad.

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ii. Afi of total 2848 emplogee, 779 emplogees haae been regularlzed and adfusted, agahst posts, uthlle, 7706 emplogees h.aae been regularized subJect to aoall.a,bllttg of posts and, gd to be afljusted, tti, 7023 emplogees (contracr- + dailg wages) are stllt usorklng ln dilferent instlttrtlotts btfi ue not regularlzed. W the Cabinet Sub- Commiltee on Regularlzatlon due to nonfulfillment of critenia for regru,latizo:tlon l.e (Ol geu contr:o'ct perlod and OS spetl of 89 d.ags as dailg wager at the tlme of regrularlzatton).

Obseruatlons:

1.The abooe regalanlzatlon has been made ln aiolatlon of the Supreme Court's fudgment ln Constltl.ttlonal Petltlon No.42 of 2OO7 dated O4.O2.2O77, Sectlon 77(B) of Cftrtl Seruolnt Act, 7973and Rule 5 of fPSC (It.mcttotts) Rules, 797t.

tt. The dallg wages emplogees were appointed cs stop gdpe anrangement by lncompetent authorlty agatnst non-exlstlng, (non- san&loned) posts out of stttdentfunds without deslgnatlon and pag scale. Nelther competltfin process urrrs adopted nor proainclal/regftonal quota obsented. JVo merlt utd,s obsented ln appolntment of Contract and, engagement of Dailg Wages emplogees. Moreooer, factltles on aoluntary basts haoe a.lso got regularized utlro,se testlmonlals were nelther scnttlnlzed nor thq wereformallg engaged.

111.The procedure regerdlng eppolntment on contract and thenfurther esrf,enslon ua"s not made ds per loild down procedure, The ertenston in most of cases was made contrary to rules and without consent o.;t fPSC. In some c@ses the contraci emplogees got stig order from coutts and then remalned on contro,c't setdces begond two gears, la. In some ccses, the sanctioned. posts were referred to FPSC for regtilar recntttm'ent and the process utas ln the finat stage uthen the contract emplogees worldng aga;lnst the posts uere regularized bg t E Cabtnd Sub-Commlttee, uithdraulng the casesfrom FPSC. u. No recort regardlng wlthdrawaUsuspension of I'PSC authorlfu for rectttltment ln BS-75 and, abooe bg the competent fonnn/authoritg l.e Parliameflt and authorlzlng the Cabtnet Sub-committee is aaallable.

d. The proJect emplogees ure?e tegalarized contrary to thc declared pollcg oJ regulat*atlon.

uti, Posts are not doailahle for adfustment of emplogees regularized subje& to aoallabllttg of posts.

dii. The Cabtnet Sub+ommlttee for regular-lzation ls dlsbanded and the poltcg for regalorlzatlon ls not ln praatlce.

Similarly the letter dated 05tt Sept. 2OL3 written by Director Recruitment NHA to the SO (Roads-I) Ministry of Communications, Government of Pakistan, Islamabad placed on record regarding illegal appointment a:rd re;gtlarization in National Highway Authority during previous five years is of great significance which is reproduced as under:-

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IiTATIO T{AL ITIGI{WAY AWHORTTY (Recnitment Sedionl 27-Mauue Area, G-9/ 7, No.l (17)/Admn@/NHA/ 13/ 506 Islamabad, tl,e 05t], Sept. 2013 Mr. Asghar Ali, Section Olficer (Road.s{), Ministry of Communications, Gouemment of Pakistan, Islamabad.

Subject: II.I,F*iNL IPPOIITTUPITT ATf,D NEGUIANTZNTION IN TiTATIONAL

IIIGI{WAY AWHORITY IN PREWOUS TWP TEIIRS.

Reference Ministry of Communications letter No.7F.No.10(3)11 Roads dated Ist. August 2013 ontle.subject noted aboue.

2.It is apprised thot the uieuts/comments on the application of Mian Bilal Bashir Aduocate Supreme Court of Pakistan are asunder:- il Thc ertsf,,tng regalar strength of NIIA ts 7735 posts, out of whlch 7795 x posts arc filled. Moreouer, 77 x deputafionists are posted against regular posts.

it) NIIA appointed 997 x contract emplogees again;st PC-1 strengtla 8L x other emplogees u)ere also appointed on contract basrs against temporary created posfs of lTauma Centers on Motonttogs for fiue gears. Contract emplogees become to 1078 out of which seruices of 1060 x emplogees (979 x contrad, employees appointed against PC-7 strength and 81 x emplogees of Tlauma Centers) haue been regularized on the recommendations of Cabinet $tb Committee. W\tereas, L8 x contract emplogees of PC-l strength are still uorking on contract basis.

iii)994 x emplogees uere also oppointed bg NHA against PC-J posfs on dailg wo.ge basis and reEtlarized on the recomm.endations of Cabinet Sub Committee. Out of uthich 24 x emplogees of this category lnue lefi their job and 970 x emplogees are still uorking in NHA. iu) V x emplogees of B*1 ulrc utere initiallg appointed in NHA on regular basis were declored xtrplus in 2O0L due to Rightsizing of NIIA on tlrc direction of Chief Exeantiue of Pakistan. TIE said emploAees were adjusted against PC-l posts for the purpose of pag and alloutances till ttrc auailabilitg of regalar posts. All these 7 x emplogees are still working in ' NHA and drawing salary against PC-l posts.

u) 19 x Ex-NTC emplogees appointed afresh on regular ba.sis in HHA on the orders of Honourable Islamnbad High courl, Islamabad against supernumerary posts created bg NIIA Executiue Board are working in

NHA,

ui) 419 x ex-sached contract emplogees re-instated and regalarized under Sacked Emplogees Re-instatement Act 2010 are also usorking in NIIA against supernumerary posts created bg NHA Exeantiue Board. uii) 71.ll 29.08.2073, 3670 enplogees are senfing in NIIA on regula" basis ds Pe" detdll ghten aboae.

uiit) A ca.se for creation of regular posts bg tlle NHA Exeantiue board for ad.justment of all such contract/ dailg wage emplogees uhose seruices

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hnue been regulariz'ed lns been processed. Howeuer, tle case has been pended due to sfafus quo order passed bg ttg Honourable Lahore High Court Lahore in Writ Petition No.5242 of 2O13 titled 'Amir Haider etc. Vs. GM NIIA Lalwre and otlers".

3.rt ls admlttedtad that durtng the last tloe ge@rs all appolntments on contrrct/dallg wage Dasis were made ln NIIA wlthout conducdng wrltrten test.

4.Z'tu-s issues uithtlrc approual of Member (Admn) NHA, please.

(Asglur All Sorhadl) I)lrector (Recndtment)

CC.

o SO to Cluirman NHA.

o PAto Member (Admn) NHA.

As is evident from the observations recorded by the Joint Education Advisor and contents of letter by Director Recruitrnent NHA, thousands of employees brought to set ups without due process, rather through highly questionable mode. To my mind big number brought more serious consequences; therefore, same cannot be allowed to remain intact on the ground that large number of employees may affect adversely.

77.It is well setfled law that principles of good governance demand that if a particular thing is prescribed to be done in a particular m€mner, the same has to be done in that manner and not otherwise. It is in this view of the matter that in order to uphold and maintain the rule of law in the country, the Honourable Supreme Court of Pakistan in the recent years has not only delivered the landmark and celebrated judgments on the subject but it has also laid down the golden principles to be followed for the times to come. In this behalf, the reliance is placed on judgments cited as PLD 2OO9 Supreme Court 789, Sindh High Court Bar Association, etc. Vs. Federation of Pakistan, etc. PLD 2009 SC 789 & 879, Dr. Mobashir Hassan Vs. Federation of Pakistan, etc. PLD 2O1O SC 1, Shahid OraT<zat, etc. Vs. Pakistan, PLD 2011 SC 365, Muhammad Yasin Vs.

Chairman OGRA, PLD 2Ol2 SC 132, Mir Muhammad Idrees, etc. FOP, etc., PLD 2O7l SC 213, Hamid Mir, etc. Vs. FOP, etc. PLD 2OL3 SC 244 and judgment of this court cited as Muhammad Ashfaq Atrmad Vs. Ali Arshad Hakeem, etc. 2Ol3 PLC(CS) 1463. By virtue of tl:e said judgrnents, the Honourable Apex Court was pleased to remove a good number of Judges of tJ:e superior courts who were neither recommended throughlegal/constitutional process nor their appointments were approved by the constitutional authorities. Even the defunct

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Islamabad High Court was abolished/dissolved, having been established without adopting the constitutional process. More so, the statute namely NRO r'.,hich was hit by the fundamental rights was struck down. Similarly, the of Chairman NAB who was even fonner Judge of the Honourable _appointments Supreme Court of Pakistan, the Chairman OGRA, the President NBP, the Chairman PEMRA and Chairman FBR were righfly declared illegal and having been made without adopting tl:e due process of law.

18.In view of the aforementioned constitutional and legal provisions duly supported by the case law so cited, all the appointments/regularizations having been made pursuant to the directive issued by the Cabinet Sub Committee are void, ab initio, illegal and without laurfrrl auttrority. It is also settled proposition of law that contract appointments are always subject to the terms set out in the contract itself and they canrnot claim regularization as a matter of course as laid down by the Honourable Supreme Court Pakistan in the case of Khawqja Muhammad Asif. Vs. FOP, cited as 2013 SCMR 1205, State Life Insurance Empioyees Federation of Pakistan Vs. FOP, etc. as well as 1994 SCMR 1341, State Life Insurance Employees Federation of Pakistan Karachi Vs. Federal Govt. of Pakistan & two others. Reliance has also been placed on 2013 SCMR 120, Federation of Pakistan Vs. Muhammad Azam Chattha, 2006 SCMR 1545, Shoukat Babar Virk & others Vs. Syed Amjad Ali Shah & others, 2005 SCMR 642, Govt of Baluchistan, Department of Health Vs. Dr. Zahida Kakar & 43 others, 1998 SCMR 1930, Agha Saleem Khurshid & another Vs. Federation of Pakistan & others, 2OO4 PLC (CS) 758, Maj. Rtd. Nisar Ali Vs. Pak Atomic Enerry Commission & another & 2005 PLC (CS) 1447, Nadeem Ahmed Vs. Pakistan State Oil Company Ltd. & another.

19.Since the said directive issued by the Cabinet Sub Committee void, ab initio, and wittrout lawful authority,,hence the superstructure built thereon has to fall on the ground automatically in view of PLD 1958 SC 104 and perpetual rights cannot be gained on the basis of such like void and illegal directives and for that matter guidance may be sought from the law laid down by the Honourable Supreme Court of Pakistan in the case of Engineer In Chief Branch through Ministry of Defence etc. Vs. Jataluddin PLD L992 SC 2O7, Abdul Haque indhar, etc. Vs. Province of Sindh, etc. 2OOO SCMR 9A7, Nazir Ahmad

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Panhawar Vs. Government of Sindh, 2005 SCMR 1814 and Muhammad Siddique through LRs. Vs. Punjab Senrice Tribunal 2OO7 SCMR 318.

20.Contention of the learned counsel for employees who are seeking regularizations or benefits on the basis thereof are, therefore, devoid of any force. They cannot even claim to be treated accordingly having been similarly placed on the touchstone of discrimination or in view of the case law cited by them particularly Hameed Akhtar Niazi's case 1996 SCMR 1185 and so on as no benefit can be claimed on the basis of void orders. The other judgments cited by the learned counsel as 2005 SCMR 100, Ikram Bari & 524 others Vs. National Bank of Pakistan and another, 2010 SCMR 739, Secretary Schools, Govt. of Punjab Education Department & others Vs. Yasmin Bano, 2OO2 SCMR 71, Abdul Samad & otJrers Vs. Federation of Pakistan & others, 2OO2 SCMR 82, Engineer Narain Das & another Vs. Federation of Pakistan and others and PLD 2AA3 SC 724, Managing Director Sui Southern Gas Company Ltd. Karachi Vs.

Ghulam Abbass & others are absolutely distinguishable having no nexus with the case in hand. More so, none of the learned counsel appearing from the other side has been able to cite even a single judgment of the Honourable Apex Court or for that matter of a High Court whereby the said question of validity of the directive so issued by the Cabinet Sub Committee was even determined or declared within the four corners of law. As regards, the appointments of the petitioners suffice to say tl:at the said question is not before me as the same has not been called into question in any m€rnner whatsoever. I am not persuaded by the arguments of the learned Counsel for employees, who appointed besides the prescribed procedure and competitive process that employees may be allowed to continue as it is not their fault but the authority that they inducted in a dubious manner. Ultimate benefrciaries are the employees and they were fully aware tl:at their appointments were being made on extraneous considerations and not as per requirement of law. Moreover, to allow such like motivated and polluted act to remain in freld and breath would result into reviewing the adoctrine of necessit/ which as a result of historical struggle has been buried by apex Court for all times to come. During the course of arguments this Court inquired from the learned counsel of employees as to w-hether serwices of an employee can be regularized without adopting the due

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process of law, they were of the view that neither the said process can be deviated from nor any authority whatsoever including the Cabinet Sub Committee was empowered to make such like recommendations. Nonetheless, it js their case that since services of a good number of employees have been .reguiarized pursuant to the directive so issued by the Cabinet Sub Committee, hence it has created certain rights in favour of the said employees and simultaneously it has caused a discrimination to the remaining employees w'hose serwices have not been regulaized.

2L. Last but not the least, even the competent authorities including the Prime Minister of Pakistan have never even been empowered to relax the laid down procedure and prescribed manner except in a hardship case. So the m.anner having been adopted for eroding the legal provisions can hardly be subscribed. There is no legal or constitutional provision or any dictum laid down by the Honourable Supreme Court which might have allowed the executive order to override the constitutional, legal and statutory provisions.

This country has already suffered so many setbacks. We can see the examples of Steel Mills, Pakistan International Airlines and Pakistan Railways and such i.ike other Institutions which have collapsed only because of having been over burden by over emplo5mrents. If the appointments against unsanctioned posts without allocation of financial budget are allowed to continue that will amount to support and contribute in breakdown of the said institutions.

These are the reasons of my short order dated 29.O5.2OL4.

JUDGE

Approved for Reporting.

"Waoar Ahmad"

d*";;74///t/

Uploaded By : Engr. Umer Rasheed Dar