Sanaullah Vs Govt of Khyber Pakhtunkhwa & others

Judgment Sheet

IN THE PESHAWAR HIGH COURT,

PESHAWAR

(Judicial Department)

Writ Petition No.86 of 2018wthCOCNo.24-M of 2018 Sanaullah Vs.

Govt. of Khyber Pakhtunkhwa& others

JUDGMENT

Date of hearing: 17.10.2019

Petitioner by: M/S Sher Muhammad Khan and Jehanzeb Mehsood Advocates.

Respondents by: Dr. Adnan Khan, Advocate for respondent No.1.

Mr. Hamza Wali, Advocate, for respondents No.2 to 6.

Ahmad Ali, J.- Petitioner has filed present writ petition seeking therein cancellation of his termination letter dated 08.12.2017, advertisement dated 13.01.2018; and prayed for regularization of his services from the date of appointment in the Shaheed Benazir Bhutto University, Sheringal Dir Upper.

2.Brief and essential facts for the disposal of the present constitutional petition are that the petitioner having Master Degree in Social work was appointed as Lecturer in Social Work on ad-hoc basis vide office order bearing

No. SBBU/Estab/Or/13-309 dated 01.10.2012 for a period of one year against a fixed pay of Rs.25,000/- per month.

However thereafter, respondent/university awarded extensions to petitioner from time to time till 31.12.2017.

Meanwhile, an office order dated 08.12.2017 was issued by respondent No.5 whereby the petitioner was terminated w.e.f. 31.12.2017 as no further extension was granted to him. He filed instant writ petition with interim relief to suspend the operation of impugned termination letter. This court vide order dated 24.01.2018 suspended the operation of impugned office order dated 18.12.2017; and then vide order dated 14.02.2018 the interim relief granted earlier was kept continued and direction was issued to respondents to release salaries of petitioner from the month of December-2017.

3.Respondents No.2to 6 filed their comments and their main objection, as appearing from comments, was that the eligibility criteria for appointment against the post of Lecturer which was previously 1st Class Master Degree with no 3rd division which has now been replaced with fresh criteria effective from 01.07.2017 which requires M.Phil/Equivalent Degree obtained after 18 years of education in the relevant field, and as such, the petitioner do no fulfill the latest criteria for appointment against the post of lecturer. It was further mentioned in the comments

that the appointment of petitioner was without any advertise, test and interview, etc therefore, his services cannot be regularized. That they under the instructions of Provincial Inspection Team terminated the services of petitioner and advertised the vacancy.

4.Learned counsel for the petitioner argued that petitioner was appointed as Lecturer in Social Work initially for a period of one-year w.e.f. 01.10.2012 and owing to satisfactory performance as well as competency of the petitioner respondents awarded extensions to petitioner till 31.12.2017 and presently, till date, the petitioner has been performing his official duties in the respondent-university. There is no complaint against petitioner as to his efficiency and competency rather university administration as well as students are satisfied with his performance. He maintained that under the law, an employee can be retained for a period not exceeding one year, whereas, petitioner has continuously been serving in the respondent-university since October-2012 on the basis of one-year extensions however, respondents introduced a gap between each extension to show a break in the continuity of his services. He in the last, argued that the university awarded regularization to other contracts and ad-hoc employees and as such, petitioner who by now is overage, is entitled to regularization of his services.

5.Conversely, the learned counsel representing respondents argued that the appointment of petitioner was made without any advertisement, and therefore, he cannot claim the benefit of regularization. That by now the requiredqualification for the post of a lecturer is M.Phil and does not meet the criteria of minimum qualification.

They argued that the appointment of petitioner for the purpose of stopgap arrangement only and therefore, he cannot be regularized. They maintained that the Provincial Inspect Team have issued directions to relieve all the ad- hoc employees of the university and to fill up the budgetary positions through open advertisement, therefore, petitioner has rightly been terminated.

6.We have heard arguments advanced before us at the bar and have minutely sifted the record.

7.Meticulous sifting of the record reveals that the petitioner was appointed as Lecturer by the Vice- Chancellor on ad-hoc basis under Regulation 11(5)(c) of the Shaheed Benazir Bhutto University, Sheringal Regulation 2009, which provides that the Vice-Chancellor shall have the powers to create, re-designate and fill contract, temporary posts for a period not exceeding one year. It is also undisputed that the post on which the petitioner has been performing duties is a budgetary

position and after termination of petitioner the same post was advertised, however, owing to interim relief vide order dated24.01.2018 the operation of advertisement as well as termination letter was suspended, and as such petitioner has been performing duties till date. Although respondents have vehemently controverted the claim of petitioner for regularization but they have not contended any aspect of inefficiency or incompetency on the part of petitioner. The Regulation-2009 providesthe appointment of a temporary employee for a period not exceeding one year but in this case, the petitioner has been performing duties for the last seven years with a transparent service career.

8.Shaheed Benazir Bhutto University Sheringal was established in the year 2009 under the Shaheed Benazir Bhutto University, Sheringal Regulation, 2009; and this Universityhas not been taken under the Schedule-II of the Khyber Pakhtunkhwa Universities Act, 2012. The Regulation-2009 command that the appointment of a temporary employee should not befor a period of more than one year but in the present case respondent granted extensions one after the other to petitioner for a period of about five years and a break was inserted between every two extensions. The purpose of this break was to create a discontinuity in the services of petitioner as respondents

were already mindful that owing to continuous service, petitioner will claim regularization. Even then, respondents instead of making efforts for appointment of regular incumbent through an open advertisement within the very first year of appointment of petitioner, hired the services of petitioner again and again until the Provincial Inspect Team issued directions for the termination of petitioner. This gives rise to a strong presumption that the petitioner was competent, efficient and expert in his subject and for this reason respondents granted him extensions one after the other so as to take benefits of the services of petitioner for a long time. If the appointment of petitioner was a stopgap arrangement then why effort/advertisement was not made to fill this gap at theearliest and why respondents waited for a long time.

The respondent-university under the statutory rules cannot put an employee on ad-hoc basis for an unreasonable longer period when the appointment is made against a permanent and budgetary post. Guidance derived from the case of Nemat Ullah and others (2016 SCMR 1299).

9.It is common, that due to unemployment, competent, skillful and highly educated persons use to accept ad-hoc, daily-wages, fixed pay and contract employment against meagre salary with a hope that in future their services will be regularized but after taking

years long services when an employee crosses the age limit for appointment, authorities relieve him without any benefit in order to appoint another one. Respondents have appointed the petitioner for a period of one year temporarily but this period expanded to a span of about five years; now when the petitioner was at the verge of overage, his services were dispensed with. Though there are no statutory provisions or any other terms & conditions which may support the plea of petitioner for his regularization, rather such plea is dependent upon the length of his service rendered in the respondent-university.

Guidance derived from the case titled Messrs State Oil Company Limited VS. Bakht Siddique and others (2018

SCMR 1181).

10.There is no cavil to the proposition that at the time of appointment in the year 2012, the petitioner was having requisite qualification i.e. Master Degree and such criteria was updated on 01.07.2017. Thus, the fresh criteria for appointment is applicable after 01.07.2017 and the same cannot be stretched retrospectively.

11.The main objection of respondent-university was that the petitioner was appointed without advertisement and proper procedure by the Ex-Vice Chancellor of the University. In this regard we may observe that the

Syndicate of University in its very first meeting accorded regularization to its various contract and ad-hoc employees. Learned counsel representing the respondent- University tried to explain that those employees were appointed after adopting proper procedure for appointment, however, no advertisement and record of appointments etc is available to support this contention of the learned counsel for respondents. Even otherwise, if the petitioner was appointed by the Ex-Vice Chancellor but at the same time, present administration of the University also awarded extension to petitioner without any objection. While deciding the case titled Secretary to Government of N.-W.F.P. Zakat/Social Welfare Department, Peshawar, and another VS. Sadullah Khan (1996 SCMR 413) the Apex Court held that department having itself appointed civil servant on temporary basis in violation of rules could not be allowed to take benefit of its lapses in order to terminate services of civil servant merely because it had itself committed irregularity in violating procedure governing such appointment.

Similarly in another reported case titled Collector of Customs and Central Excise, Peshawar and 2 others (2004 SCMR 303) the Apex Court while deciding a case of ad- hoc employees terminated on the ground that their appointments were without advertisement and

test/interview etc, was pleased to hold that if prescribed procedure was not followed by the concerned Authority, the civil servants could not be blamed for what was to be performed and done by the Competent Authority. Civil servants had put in more than ten years of their service and had lost all their chances to get fresh appointment elsewhere as they stood disqualified being overage. Yet there is another case titled “Province of Punjab through Secretary, Agriculture, Government of Punjab and others Vs. Zulfiqar Ali” reported in 2006 SCMR 678, the Apex Court was pleased to held that it was not the case of authority that appointee lacked requisite qualification. The authority himself appointed the employee on temporary basis in violation of the rules for reasons best known to it.

Now, authority cannot be allowed to take benefit of its own lapses in order to terminate the services of the appointee merely because the authority had itself committed irregularity in violating the procedure governing the appointments.

12.The petitioner had been discriminated with other employees who were appointed in a similar manner and were subsequently confirmed and regularized through the Syndicate. Non-issuing of advertisement and holding test/interview etc by the respondent-university amounts to waiver and respondents should have been notified as

confirmed. Besides petitioner has served for 07 years and has thus accrued vested right of being regularized. The authority itself is responsible for making irregular appointments on temporary basis, and then it cannot subsequently turn down and terminate an employee on the ground that his appointment was made in violation of the rules particularly when the appointee fulfilled the requisite criteria. Guidance derived from 2004 SCMR 630 titled Water and Power Development Authority through Chairman, WAPDA House, Lahore VS. Abbas Ali Malanoand another, and 2005 SCMR 85Muhammad Shoaib and 2 others Vs. Government of N.-W.F.P. through the Collector, D.I.Khan and others.

13.Another argument of learned counsel for respondent-university that the service of petitioner was not continuous, rather there is a gap in between two periods, holds no water as this gap was not due to the uncontrolled circumstance rather the same was created intentionally with a view to debar the petitioner from the future claim of regularization. Petitioner was serving continuously and respondents were also in the need of his services and thus granted him extensions but it is not understandable that for what purpose a gap was inserted between the two extensions and why extensions were not granted without a gap. In-fact this gap in view of the august Supreme Court

of Pakistan as reported in 2018 SCMR 325 (B.I.S.E. DG Khan & another VS. Muhammad Altaf and others) is an artificial break and this was done to break the continuity of service of an employee with mala fide intent to avoid their regularization. This view was further endorsed in 2018 SCMR 1405titledBoard of Intermediate and Secondary Education, Faisalabad through Chairman and others VS.

Tanveer Sajid and others and 2019 SCMR 233 titled Board of Intermediate and Secondary Education, Multan through Chairman and another VS. Muhammad Sajid and others.

14.So far as the case in hand is concerned, there is no second cavil to this proposition that the petitioner was inducted into service as Lecturer by the Vice-Chancellor way back on 01.10.2012 on ad-hock basis for a period of one year and on expiry of one year, he was awarded extension for another year and this process of granting extension continued till 31.12.2017, but subsequently after the elapse of about five years, his services were neither regularized nor extended. Respondent-University while terminating his services had neither given a show-cause notice nor provided opportunity of hearing to the petitioner, rather passed the order even without taking into consideration the consequences of same. Undeniably the petitioner was offered job by the competent authority after

evaluating his academic as well as professional qualification. His period was being extended by the authority for about five years as the competent authority was fully satisfied with his performance, which fact itself reflects that his services were not only required for the University, rather the same were beneficial for the University as well. Furthermore, there is no allegation/ complaint against the petitioner with regard to carrying out official duties; rather extension of the period time and again in favour of the petitioner shows trust of the authority upon his services. Such extension in the tenure of service of the petitioner has undeniably created a legitimate expectancy in his mind with reference to his retention in the service on regular basis. Now the petitioner certainly has become over-age and as such he has lost all the chances to get fresh appointment anywhere as he would be disqualified on this score alone. Reliance is placed on the case titled Sher Alam And 9 others VS.

Government of Pakistan through Secretary SAFRON, Pak Secretariat Islamabad and 5 others2019 PLC (C.S.) 12 (Peshawar High Court) and the case titled Farmanullah Vs. Gomal University D.I.Khan and others 2017 PLC (C.S.) Note 116 (Peshawar High Court).

15.We thus allow this writ petition and direct respondents to regularize the services of petitioner as

Lecturer with effect from the date when he approached this Court through the present petition but for his pensionary benefit and other long terms benefits, if any, available under the law, he would be entitled from the date when he had joined the service of the University i.e.

JUDGE

Announced.

DIKhan DB Mr. Justice Ikramullah Khan, and Mr. Justice Ahmad Ali