Ziaullah Khan vs Govt.of Pak etc

2011 P L C ( C . S . ) 7

[Peshawar High Court]

Before Ejaz Afzal Khan, C. J. and Mazhar Alam Khan Miankhel, J

ZIAULLAH KHAN

Versus

GOVERNMENT OF PAKISTAN through Secretary Law, Justice and Human Rights, Islamabad and 3 others

Writ Petition No.2509 of 2009 and C.M. No.273 of 2010, decided on 27th August, 2010.

(a)National Accountability Ordinance (XVIII of 1999)---

----S. 28---Constitution of Pakistan, Art.199---Constitutional petition---Civil service--- Appointment and regularization of service---Petitioner initially worked with the National Accountability Bureau as private investigator for 6 years; and then he worked for 2 years as a contract employee in BPS-18---Services of petitioner once again were hired as such for another period of six months---Petitioner, being a qualified, skilful and experienced person sought regularization of his service---Petitioner had further asserted that he deserved alike treatment as was meted out to one of his colleagues who being contract employee in BPS-18, was inducted in regular service of the department in BPS-19 on the directive/ratification issued by the Prime Minister---Petitioner had also submitted that his name was not considered by the Chairman for the regular post of BPS-18 advertised by the department, despite strong recommendations of Director-General, while still forty sanctioned posts of BPS-18 were lying vacant for the last so many years---When a similarly placed person i.e. person employed on contract basis; and that too having no basic qualification for initial recruitment, could be inducted as a regular employee; qualified and experienced person like petitioner, who had worked in the department, having many commendations at his credit, could also be inducted as a regular employee, when he had a sufficient experience with the department at his credit---Petitioner being qualified, eligible and experienced person, also deserved the alike treatment of regularization of his service---Authorities were directed to consider the name of the petitioner for regularization of his service.

(b)Constitution of Pakistan---

----Art. 25--Equality before law---Principles---Equality before law, was the basic concept of Islam and that concept had been borrowed by English, American and European

Constitutions from Islam---Two similarly placed persons could not be treated differently--- Principle of equality before law and prohibition of discrimination between the similarly placed persons, was the essence of rule of law---Even selective, discriminatory and distinctive treatment by the Government was also prohibited---Two similarly and equally placed persons, could not be treated differently.

M. Zahid Aman and Shakeel Ahmad for Petitioner.

Nemo for Respondents.

Date of hearing: 15th July, 2010.

JUDGMENT

MAZHAR ALAM KHAN MIANKHEL, J.---The petitioner' herein seeks issuance of appropriate writ by directing the respondents to regularize his service in the NAB as he has served the NAB initially as private investigator from 2000 to 2006 and then from 2006 to 2008 as a contract employee in (BPS-18). His services were once again hired as such for another period of six months with effect from April 7, 2009 to October 6, 2009. Being a qualified, skilful and experienced person, he too deserves alike treatment as was meted out to one Miss Aaliya Rasheed who being contract employee in BPS-18 was inducted in regular service of the NAB in BPS-19 on the directive/notification issued by the Prime Minister.

2.The learned counsel for the petitioner, in support of his petition further submitted that the name of the petitioner was not considered by the respondent No.2 for the regular post of BPS-18 advertised by the NAB in spite of strong recommendations of respondent No.3. He added that still forty sanctioned posts of BPS-18 are lying vacant for the last so many years.

3.As against that, the learned counsel for the respondents submitted that the case of the petitioner can, in no terms be equated with that of Mst. Aaliya Rasheed as she was working on contract against a sanctioned establishment post whereas the petitioner was appointed, on contract on lump sum basis under section 28(0 of National Accountability Ordinance, 1999 whereas regular appointment is made under Employees Terms and Conditions of Services (TCS), 2002. The petitioner also lacked the prerequisite five years post academic qualification in BPS-17 or equivalent in the fields of investigation or inquiries etc. as provided in the schedule provided in the TCS. He further submitted that the present petition is barred under explanation IV of section 11 and Order II, rule 2 of C.P.C. as his earlier writ petition was dismissed and the present one is barred under the above provisions of C.P.C.

4.We have considered the submissions of the learned counsel for the parties and have gone through the available record. The same would reveal that the petitioner initially was working with the NAB as private investigator from 2000 to 2006 and then was appointed as investigation officer on contract for a period of two years from 2006 to 2008. His status was equivalent to that of BPS-18 for the purposes of T.A./D.A. only. Then once again he served

for a period of six months as such. During this period, he completed several professional courses and the record would reflect his satisfactory performance in the NAB and nothing adverse was pointed out by the respondents. This would reflect his experience and efficiency. During his attachment with the NAB, certain regular posts of BPS-18 were advertised and in spite, of recommendations for his appointment by respondent No.3, .he was refused regular induction. The record available on file and not denied by the respondents would further reveal that on his application, the Prime Minister of Pakistan also recommended his case for consideration as per rules/policy vide P.M.'s Sectt U.O. No.2(37)DS(Imp.II)/ 4737/09 dated

5.Appointments in NAB are made on contract/temporary basis by the Chairman NAB under section 28 of National Accountability Ordinance, 1999 and under Employees Terms and Conditions of Services (TCS), 2002. The academic qualification and requirements for regular appointments are given in the schedule of TCS. The relevant portion of the schedule is reproduced as under:---

S. Nomenclature BPS Age Academic Qualification Experience No of the post Limit Min.

Max.

1 Director- 21 40 Second Class or Grade 'C' Master's Degree in 22 years post General 50 Business academic Administration/Commerce/Economics/Statistics/ qualification Defence of Strategic Studies Law/Computer experience in Science from a recognized University or a BPS-17 and Chartered Accountant or B.E./B.Sc. above or (Civil/Mechanical/ Electrical/Petroleum or any equivalent in qualification approved by the competent Investigation authority or Inquiries or Research or Legal Matters or in the field to be specified at the time of advertisement

3 Additional 19 30 -do- 12 years post Director/ 40 academic Deputy quantization Secretary experience in BPS-17 and above of equivalent in the fields specified against, S.No.1.

4 Deputy 18 25 -do- . 5 years post Director/ Sr. 35 academic Investigation qualification Officer/Section experience in Officer BPS-17 or equivalent in the fields specified against S.No.1.

6.The petitioner has sought regularization of his service in the light of a contract employee of BPS-18 of NAB whose services were regularized as Additional Director with effect from 26-6-2003 in (BPS-19) in pursuance of the approval of Prime Minister of Pakistan. Departmental Selection Committee of NAB was also in accord with the approval of the Prime Minister and accordingly a notification was issued in this regard. Though the requisite experience appears to be there but the qualification of Miss Aaliya Rasheed though not available on the record but submissions made at the bar were not denied that she is M. A. History. If the schedule is seen, then M.A. History is not a qualification for any post from BPS-16 to 21.

7.This case was also heard at length on 13-7-2010 but we were unable to understand that when a similarly placed person i.e. on contract and that too having no basic qualification for initial recruitment, can be inducted as a regular employee, and on the other side, a qualified and experienced person like petitioner who has worked within the NAB having many commendations at his credit, cannot be inducted as a regular employee when he has a sufficient experience with the NAB at his credit. If such a person is not considered for his regular induction in the department with which he has worked for more than eight years then who else would consider him when such a long span of his attachment with the NAB has blocked other ways for him as at present his age would be the first impediment in his way for any such application for regular appointment as he is more than 35 years of age by now. The argument of the learned counsel for the respondents that the initial appointment of the petitioner was under section 28(f) of National Accountability Ordinance, 1999 and not against a sanctioned establishment post would not be so forceful to convince us as to why the petitioner is not a fit person to be regularized specially when the terms and conditions of service of the petitioner and that of the lady are almost similar. He was even not allowed to appear in the examination for regular advertised posts of BPS-18 as stated above. The procedure adopted for the regularization of service of the lady in the given circumstances can well be adopted for the petitioner as he being qualified and fit person for regularization of service also deserves the alike treatment. Article 25 of the Constitution of Islamic Republic of Pakistan unequivocally and expressly provides equality before law and equal protection of law to the equally placed persons. The status and experience of the two if considered, that is at par with an edge to the petitioner i.e. his requisite qualification for the job which is missing in the case of lady. There is no cavil to the proposition that equality before law is the basic concept of Islam and this concept has been borrowed by English, Americans and European Constitutions from Islam. Two similarly placed persons cannot be treated differently. The principle of equality before law and prohibition of discrimination between the similarly placed persons is the essence of rule of law. Even selective, discriminatory and distinctive treatment by' the Government is also prohibited. So, the two similarly and equally placed persons cannot be treated differently and the petitioner in the circumstances not only deserves but is entitled to be treated alike.

8.As far as bar under section 11 or Order II, Rule 2 of C.P.C. is concerned, that would not become a legal hurdle in the way of petitioner as his earlier petition was not decided on its merits and was only dismissed being not maintainable. The relevant portion of the same is reproduced below:---

"2. ... Since the contract period of the petitioner has already been expired and the contract was not renewed, we in our constitutional jurisdiction cannot force the respondents either to extend his contract or to regularize his service.

3.Resultantly, this writ petition is misconceived which is hereby dismissed in limine along with interim."

This question can also be replied in other words that his fresh appointment in the year 2009 after the dismissal of the above writ petition would also give him a fresh cause of action and as such his instant petition would not be barred by section 11 or Order II, Rule-2 of C.P.C.

9.For what has been discussed above, we have no hesitation to hold that the petitioner being qualified, eligible and experienced person also deserves the alike treatment of regularization of his service. So, in the circumstances of the case by allowing this writ petition, we would direct the respondents to consider the name of the petitioner for regularization of his service as discussed above.

H.B.T./292/P Petition allowed.