Stereo. H C J D A 30.

Judgment Sheet IN THE LAHORE HIGH COURT LAHORE BAHAWALPUR BENCH, BAHAWALPUR JUDICIAL DEPARTMENT
Case No: WP 2767/2008 Muhammad Aslam Versus Vice Chairman, etc.

JUDGMENT Date of hearing Petitioner by Respondents by: 11.11.2009 Ch. Manzoor Ahmad & Mr. Ahmad Mansoor Chishti, Advocates. Mr. Masood Ashraf Sheikh, Advocate. Muhammad Ramzan Abid, Superintendent General, CDA.

Syed Mansoor Ali Shah, J.-

Through this

consolidated judgment W.P. Nos.2767, 2768, 2769, 2770, 2771, 2772, 2773, 2774, 2775, 2776 of 2008 pertaining solely to Patwaris, W.P. Nos. 2810 & 2811 of 2008 pertaining to one Assistant Inspector, two Sub-Engineers, four Junior Clerks and Two Naib Qasids and Crl. Org. No.310/2009 are disposed of together. 2. The question involved in all these cases is

Whether the petitioners appointed on contractual basis by Cholistan Development Authority, who duly joined the service and put in unblemished service of almost eight months could be terminated with a stoke of a pen without notice or without paying salary in lieu of notice? In fact a more deeper question is Whether contractual employees

have

rights

especially

fundamental

rights

guaranteed under Articles 9 and 14 of the Constitution and whether the said employees enjoy the benefit of Article 4 of the Constitution? 3. Admitted facts in the cases of the Patwaris

(BS-5) are that the Authority through its Vice Chairman/Managing Director issued a letter in the year 2006 for advertisement to fill the vacant posts of Patwaris (on regular basis). The said letter states that the applications for the said posts be invited by 25.04.2006. Thereafter, an advertisement appeared in the daily newspapers on 13.04.2006 as well as on 15.04.2006. The Departmental Selection Committee was constituted comprising Vice Chairman/Managing Director of the Authority, Deputy Secretary (Admn.) P&D and Director Revenue (Col.) CDA as its members. The said Departmental Selection

Committee received 116 applications for the posts of Patwaris, out of which five Patwaris were appointed against the five posts as is reflected in the minutes of the Departmental Selection Committee held on 03.05.2006 in the office of Vice Chairman/Managing Director CDA, Bahawalpur. In the said minutes it is recorded:

That

the

Departmental

Selection

Committee recommended that there is an acute shortage of staff as there has been no increase since almost 20 years. However, the work load has increased tremendously and, therefore, the Committee requested P&D

department to allow CDA to enroll staff against 100% vacant seats. Twenty Patwaris were put on the waiting list by the Department Selection Committee including the nine petitioners at serial No.1 to 9 till availabilities of the vacancies. (The official representing the CDA who appeared in Court admitted that twenty Patwaris were short listed, out of which the first nine were the petitioners). 4 Subsequently, under the Contract

Appointment Policy, 2004 dated 29.12.2004, the Vice Chairman/Managing Director CDA appointed the petitioners as Patwaris on contract basis against vacant posts for the time being/stopgap arrangement w.e.f. 31.12.2007. The terms and conditions of the appointment were as follows:i. This appointment is purely on temporary basis for a period of one year. Their service can be terminated at any time without notice and

ii.

without assigning any reason thereof. iii. They will produce medical fitness certificate issued by the MS. BVH. and Bahawalpur within a period of one month from the date of joining. Their services are liable to termination on one month notice from either side or one month pay in lieu of notice. Their contract will be extended on their satisfactory performance.

iv.

v.

5.

Admittedly, the petitioners joined the service

under the said order and having worked for almost eight months were served with the impugned order dated 20.09.2008 which states: WHEREAS it was decided in the meeting held on 03.09.2008 in the office of Additional Secretary (Admn) P&D Department that the appointments made as stopgap arrangement on contract basis to the posts of Patwaris and other posts were illegal and without observing rules & regulations and Contract Appointment Policy, 2004. AND THEREFORE, in pursuance of the above decision, the previous contract of Mr. Aslam as Patwari (BS-5) is hereby terminated w.e.f. 04.09.2008. Similar orders were passed for all the Patwaris. 6. The facts relating to the Junior Clerks are also

the same. After advertisement appointment letters

were issued during June, July and August 2007 and termination letter was issued on 20.09.2008. It is pointed out that the said petitioners also went through a proper selection process, which have been recorded in the minutes of meeting of the Department Selection Committee held on 25/26th May 2007. 7. The termination letter which is identified for

all the petitioners is reproduced hereunder: OFFICE OF THE MANAGING DIRECTOR, CHOLISTAN CHOLISTAN DEVELOPMENT AUTHORITY, BAHAWALPUR ORDER WHEREAS it was decided in the meeting held on 03.09.2008 in the office of Additional Secretary (Admn) P&D Department that the appointments made as stopgap arrangement on contract basis to the posts of Patwaris and other posts were illegal and without observing rules & regulations and Contract Appointment Policy, 2004. AND THEREFORE, in pursuance of the above decision, the previous contract of Mr. Aslam Patwari (BS-5) is hereby terminated w.e.f. 04.09.2008 (AN). Sd/MANAGING DIRECTOR CHOLISTAN DEVELOPMENT AUTHORITY BAHAWALPUR 8. The counsel for the petitioners Ch. Manzoor

Ahmad and Mr. Ahmad Mansoor Chishti Advocates

argued that the petitioners could not be terminated without notice as envisaged in the order dated 16.01.2008. It is further argued that the petitioners have already been interviewed and have gone through the process of Department Selection Committee and were in waiting for appointment, however were appointed under the Contract

Appointment Policy, 2004 instead. Therefore, there is no violation of the rules and regulations or the Contract Appointment Policy 2004 as stated in the impugned order. It is argued that having worked for almost eight months when the respondent authority regularly paid them salaries the abrupt termination is in violation of the principles of natural justice, besides offending their fundamental rights. It was also argued that under clause 14 of the Contract Appointment Policy the respondent/authority should have appointed the petitioners for three to five years. However, they were appointed for only one year. It was also argued that the respondent/authority has been arbitrarily following the policy of pick and choose and some of the petitioners falling in the category of junior clerks as well as sub-engineers have been granted extension vide letters dated

20.09.2008 and 13.02.2009 and, therefore, the actions of the Authority is discriminatory. 9. Mr. Masood Ashraf Sheikh, Advocate, learned for the respondents/CDA vehemently

counsel

opposed the petitions by submitting that the appointments are absolutely illegal and without lawful authority. He submitted that the petitioners cannot be beneficiaries of an illegal act. The said counsel was asked how the Vice Chairman/Authority had issued the appointment letters and how come the petitioners were allowed to work and were paid for almost eight months and whether any departmental action against the Vice Chairman for issuing the alleged illegal appointment letter has been initiated? To these questions counsel for the CDA had no answer. He was further asked how Contract Recruitment Policy, 2004 blended in with the Cholistan Development Authority Act, 1976 and the Cholistan Development Authority (Appointment and Conditions of Service) Rules, 1993 to which he responded that the Authority is bound to follow the Contract Recruitment Policy as per the requirement of the rules of business of the Provincial

Government. The counsel for CDA failed to refer to any rules and regulations mentioned in the

termination letter which stood violated or the Contract Recruitment Policy, 2004. There was also no answer to the question why CDA being a statutory authority did not issue appropriate notice as per the terms and conditions of the appointing order dated 16.01.2008 before terminating the services of the petitioners. 10. 11. Arguments heard and record perused. Record shows that the petitioners on the basis

of a public advertisement went through a proper process of selection for regular appointment as per the rules of the Cholistan Development Authority namely, CDA (Appointment and Conditions of Service) Rules, 1993. However, due to limited number of seats the petitioners were placed on the waiting list, therefore, the petitioners had undergone the due process of selection for a regular employee and as a result had also fulfilled the requirements of the Contract Recruitment Policy, 2004. Therefore, the appointment letter issued by the Managing Director CDA was in line with the Contract Recruitment Policy, 2004 as the petitioners had already undergone the selection process for regular recruitment and were not picked out of the blue. After the appointment letter the petitioners joined the

services and worked for almost 8 months, drawing their salaries regularly and rendering unblemished service for the said period. The services of the petitioners were terminated vide impugned letter dated 20.09.2008. This was in violation of the order of appointment itself which clearly stated: that the service is liable to termination of one months notice from either side or one months pay in lieu of notice and the Contract Appointment Policy, 2004 which states in its preamble:
SUBJECT CONTRACT APPOINTMENT POLICY

In the past, contract appointments were made against a few selected posts whereas, the bulk of appointments in the government sector were made on regular basis. However, during the last few years, it has been increasingly realized that the regular mode of appointment is not suitable for most of the government sector assignments due to administrative and financial factors. 2. The Government has now generally

shifted from regular mode of appointment to the contract mode, in view of the changing management practices and to achieve the goals of good governance in public sector

departments/organizations. Despite this major shift in policy, no legal/policy framework, governing various aspects of contract

appointment, is available except the general guidelines issued by Finance Department regarding terms and conditions of contract appointment. As a result, a number of confusions keep arising especially with respect to the contract appointments of persons who are already working on regular basis in the government sector. 3. To clarify the legal position of contract

appointments and to provide policy guidelines for the same, a comprehensive Contract Appointment Policy has been framed which is hereby issued. Clause (Xvii) of the said policy stats: XVII) TERMINATION OF CONTRACT APPOINTMENT. i) Contract appointment is liable to be terminated on one months notice or one months pay, in lieu thereof, on either side without assigning any reason. Since the Government has shifted from regular mode of appointment to the contract mode in general, there is a need to ensure that sufficient safeguards are provided against arbitrary termination of contract employees and such employees are given a reasonable security with respect to the terms and conditions of their contract service. Appointing Authorities should, therefore, ensure that contract appointments are generally not terminated before the expiry of the term of contract, unless it is clearly determined that performance of a contract employee is unsatisfactory or he is guilty of inefficiency, misconduct or corruption.
(emphasis supplied)

ii)

12.

The impugned order mentioned that the said

appointment was without observing the rules and

regulations of the Contract Appointment Policy, 2004. However, the counsel for the CDA failed to refer to a single rule or regulation or any clause of the said Policy, which stood violated. 13. It is now settled law that public functionaries

must act justly, fairly and in accordance with law. This has also been recognized by encoding section 24A of the General Clauses Act. Reliance is placed upon re. Ikram Bari and 524 others v. National Bank of Pakistan through 100), President re. Capital and another,

(2005 SCMR

Development

Authority through Chairman and another v. Mrs. Shaheen Farooq and another, (2007 SCMR 1328) and re. M/s Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport,

Karachi and others, (1998 SCMR 2268). Further Article 4 of the Constitution comes to the rescue of every citizen in Pakistan and does not distinguish between a contractual employee or a regular employee. Every person has to be treated in accordance with law and is entitled to equal the protection of law, even the contractual employees. Reliance is placed upon re. New Jubilee Insurance Company Ltd., Karachi v. National Bank of Pakistan,

Karachi, (PLD 1999 S.C. 1126), re. Mushtaq Ahmed Mohal and others v. The Honourable Lahore High Court, Lahore and others, (1997 SCMR 1043) and re. Rana Asif Nadeem v. Executive District Officer, Education, District Nankana and 2 others, (2008 PLC (C.S.) 715). Therefore, the duty caste on the public functionaries to act fairly and justly includes the obligation to strictly abide by the terms of the contract which have been laid out in their own policy and appointment letters unless the said terms have been violated by the employees. 14. It does not befit institutions to violate the very

terms and conditions which have been settled by the said institutions themselves while offering

appointment. To brush aside due process of law tarnishes transparency and weakens governance. 15. The petitioners even though being contractual

employees, must have had all the legitimate expectations to complete their term of contract especially after having worked for 8 months and after having drawn their salaries for the said period. The said appointment was, therefore, their livelihood and to deprive them of their livelihood without due process, offends Article 9 of the Constitution which

includes in the right to life, the right to livelihood. Reliance is placed upon re. The Employees of the Pakistan Law Commission, Islamabad v. Ministry of Works and 2 others, (1994 SCM 1548), re. General Secretary, West Pakistan Salt Miners Labour Union (CBA) Khewra, Jhelum v. The Director, Industries and Mineral Development, Punjab, Lahore, (1994 SCMR 2061) and re. Ms. Shehla Zia and others v. WAPDA, (PLD 1994 S.C. 693). 16. The petitioners also enjoy the protection of

Article 14 of the Constitution which relates to a dignity of a person. The impugned order offends the dignity of an employee and reduces the employee into a chattel who can be thrown out of service without any notice and in the most unkindest manner extinguishing his legitimate expectations and

trampling upon his dignity and livelihood which is not permissible under the Constitution. 17. The institutions can only be strengthened if

they respect the rule of law and the fundamental rights of each and every employees working in the said institution. It is such like arbitrary, haphazard and unreasoned orders which weaken the institutions, generate corruption and cripple democracies. Good

governance is to have accessibility, accountability, predictability, transparency, participation, consensus, efficiency, effectiveness, inclusiveness and ethics. 18. As per the Contract Appointment Policy 2004

the petitioners were to be appointed for a period of 3 to 5 years. Even this clause stood violated while appointing the petitioners. 19. In the matters of contractual employees their

termination is to be governed strictly in accordance with the terms settled in the appointment letter and the duty of the public functionaries to act justly, fairly and in accordance with law fully covers the responsibility on the part of the public functionaries to honour the terms and conditions settled for these contractual employees. It is well settled that no adverse order can be passed against a person without affording the other person the chance of hearing or without issuing the said person with notice. In the present case the impugned order not only violates the settled principles of natural justice but also offends Articles 4, 9 and 14 of the Constitution. It has also been pointed out that out of the said petitioners some have been appointed and given fresh contracts. This action of the respondent authority exhibits

discrimination, further violating article 25 of the Constitution. 20. In view of above, the termination order dated

20.09.2008 is hereby set aside as being unlawful and unconstitutional. The petitioners will complete their term of contract. The respondent authority is however free to proceed against the petitioners strictly in accordance with the terms and conditions settled in the appointment letter. It is, however, clarified that there exist two contractual provisions in the terms and conditions of the appointment letter which are mentioned hereunder: ii) Their service can be terminated at any time without notice and without assigning any reason thereof. Their services are liable to termination on one month notice from either side or one month pay in lieu of notice.

iv)

Clause (ii) above is not sustainable in the presence of clause (iv) mentioned above besides is in violation of clause (xvii) of the Contract Appointment Policy, 2004. In any case such a clause is against the settled principles of natural justice and offends the due process/clause enshrined in the Constitution.

Therefore, Clause (ii) of the terms and conditions is

also set aside and shall be expunged from the appointment letters. 21. As per clause (xiv) of the Contract

Appointment Policy 2004 the initial recruitment on contract basis of the petitioners had to be for a period of 3 to 5 years. Therefore, on the expiry of the one year period the petitioners shall be considered by the department under clause (xiv) and given preference over fresh recruits in case fresh appointment are being made at that time. 22. In view of above, these petitions are allowed in

the above terms. 23. The relief granted under this judgment does not

extend to petitioner no.4 i.e. Nazim Hussain, son of Ghulam Hussain in W.P. No.2810/2008, as he was not short listed like the other petitioners. To his extent W.P. No.2810/2008 is dismissed.

(Syed Mansoor Ali Shah) Judge Approved for Reporting.

*A.W.*