Shahzada Mustafa VS Govt

Judgment Sheet

IN THE PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

Writ Petition No.2514 of 2014

JUDGMENT

Date of hearing...........................09.09.2015.......................................

Petitioners (Shehzada Mustafa Anwar and others) By Ijaz Anwar, advocate.

Respondents (Government of Khyber Pakhtunkhwa through Chief Secretary Khyber Pakhtunkhwa, Civil Secretariat Peshawar and others) By Mujahid Ali Khan, AAG.

WAQAR AHMAD SETH, J.- Through this constitutional petition, the petitioners seek issuance of an appropriate writ directing the respondents to extend their contract of services on adhoc basis for the period of one year as per terms and conditions of the initial appointment order as no nominee of the Public Service Commission had yet been arrived.

2.As per averments of the petitioners,

respondents advertized various posts of Drug Inspectors (BPS-17) on adhoc basis and the petitioners being eligible had applied for the same and after due process of selection the competent authority appointed them as Drug Inspectors (BPS-17) vide notification dated 12.03.2013 on adhoc basis for a period of one year or till the arrival of the nominee of the Public Service Commission. On the expiry of period of one year, the case of the petitioners was

forwarded for extension of their contract in service vide letter dated 13.02.2014 but the same was not extended despite the fact that 19 posts of Drug Inspectors are still vacant and the four candidates recommended by the Public Service Commission have also not been appointed so far, hence, filed the instant writ petition.

3.Respondents were served with a notice and respondents 2 and 4 submitted their parawise comments wherein they stated that the petitioners were appointed on contract basis for the period of one year or till the availability of regular selectee of Public Service Commission. They further stated that as their contract was expired in February, 2014, therefore, no further extension of their contract is to be allowed in terms and conditions of their appointment.

4.Arguments heard and record perused.

5.There is no cavil to the proposition that an adhoc employee cannot claim regularization, but in the instant writ petition, petitioners have asked for extension in their adhoc appointment till the arrival of selectees of Public Service Commission, as the post against which they were deputed / posted are still lying vacant alongwith other number of vacancies of Drug Inspector in the respondents department.

6.Vide notification dated 21st February 2013, petitioners were appointed by the competent authority on the recommendations of Departmental Selection Committee, as Drug Inspectors in BPS-17 on adhoc basis (non transferable), for a period of one year or till the availability of regular selectees of Public Service Commission, whichever is early, with immediate effect.

Petitioner No.1 was posted at District Chitral, petitioner No.2 at District Kohistan and petitioner No.3 at District Upper Dir.

7.On 28th May 2014, vide notification, on the recommendations of Khyber Pakhtunkhwa Public Service Commission, the competent authority appointed four Drug Inspectors on regular basis, with immediate effect and they were posted at DHO Office, Mardan, DI Khan, Nowshera & Bunner, but no specific order was passed regarding the petitioner, but were dispensed with. At the time of arguments learned counsel for petitioners produced a documents showing that in all there are nineteen Drug inspector posts in the department and number of same are lying vacant. Learned AAG present alongwith representative, admitted the fact and stated at the bar that, the same have been requisitioned to the Public Service Commission and would be filled in, in near future after the recommendation of Public Service Commission.

8.Petitioners are not claiming regularization;

they have come to the courts with clean hands and have asked for continuation of adhoc appointment, till the arrival of selectees from the Public Service Commission.

Since the posts are lying vacant, and there are numerous notifications where under, in pursuance to the judgment of this court the contract and adhoc appointments are extended by the Health Department i.e present respondents, reference is made to annexure-J, page 27 to 40 of the writ petition, therefore, petitioners have every right to continue for the intervening period i.e till the arrival of selectees on regular basis or abolishing of the post.

9.This court while deciding writ petition No.

1041-P of 2011 on 11.04.2014, in respect of project employees, has held that the employees have the potential right to continue till the life of project. The said judgment was assailed before the apex court and was upheld vide judgment dated 19th November 2014 in civil petition No.

892 & 893 of 2014.

10.In view of the precedents on record, this writ petition of the petitioners is admitted & allowed, to the extent that they are reinstated as Drug Inspector, BPS-17 against their place of posting (non transferable), on adhoc basis, till the arrival of selectees of Khyber Pakhtunkhwa,

Public Service Commission, against the post of petitioners.

However, they would not be entitled to wages / salary for the intervening period, as they have not worked during this time. With no order as to cost.

ANNOUNCED: JUDGE

JUDGE

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