AYAZ AHMED MEMON vs PAKISTAN RAILWAYS, MINISTRY OF RAILWAY, ISLAMABAD through Chairman and another

SHAHID ANWAR BAJWA, J.--- With the consent of learned counsel this Constitution petition was finally heard at Katcha Peshi stage and is being decided accordingly.

2. Petitioner, it is claimed in the petition applied for the post of Assistant Programmer (BS-16) and after due selection process was hired as Assistant Programmer (BS-16) vide employment contract dated 3-4-2004 for a period of three years and contract was continued from year to year. Vide letter dated July 5, 2010 post-facto approval for the extension of the contract from 22-4-2006 to 24-6-2010 was granted and thereafter vide the same letter the contract was extended till 30-6- 2011. An advertisement was placed in daily 'Nation' on August 12, 2010 again inviting applications for appointment on contract basis for the post of Assistant Programmer (BS-16). This Constitution Petition was filed with a prayer that petitioner be treated as permanent employee of Pakistan Railways with all consequential benefits.

3. Learned counsel for the petitioner submitted that the petitioner has been working on contract since 2004 and is at present in 7th year as contract employee. He submitted that continuation of the contract for more than 7 years and the advertisement clearly indicate that it is a permanent post and it amounts to exploitation on part of departmental authorities to keep a permanent post vacant and continue to employ persons in such posts on contract basis.

4. Mr. Latifur Rehman Sarwari, learned counsel for Pakistan Railways, referred to Para.15 of the parawise comments. Learned counsel submitted that though the post is of permanent nature but under the rules the post is required to be filled by promotion and therefore, the petitioner is not entitled to be regularized on this post.

5. Mr: Ashiq Raza, adopted arguments of Mr. Sarwari. Exercising his right of reply learned counsel for the petitioner submitted that if the post is meant to be filled by promotion under the rules then it is not logical to advertise the post in August, 2010 particularly when the petitioner is working on this post for almost 7 years.

6. We have considered the submissions made by the learned counsel and have also gone through the record.

7. Record reveals that on 31-3-2009 the following diary-sheet was recorded:--- "During the course of his arguments, learned counsel for the petitioner has pointed out that the legitimate claim of the petitioner of his permanent appointment as "Assistant Programmer (BPS- 16)" is virtually conceded by the respondents in their parawise comments, except on the plea that this vacancy is to be filled in by promotion, as laid down in the relevant recruitment rules.

According to learned counsel, no such recruitment rules at all have been framed by respondent Pakistan Railways, therefore, such plea is also misconceived. Mr.. Latifur-Rehman Survery, learned counsel representing Pakistan Railways in this petition, requests for time to seek instructions in the matter and place on record such recruitment rules, if available, with the respondents.

' Till to date learned counsel for Pakistan Railways has not been able to place on record any piece of paper to establish that under the rules of Pakistan Railways posts of Assistant Programmers are to be filled through promotion. While arguing learned counsel submitted that the posts have been referred to the Federal Public Service Commission. Learned counsel when confronted with the question whether any such statement made in the comments filed by the Pakistan Railways, frankly conceded that no such statement has been made in the comments. Besides there is a contradiction in what the learned counsel stated and what was stated in the comments. In the comments it is stated that it is a promotion post. If it a post to be filled through promotion, there could not have any question of referring it to Federal Public Service Commission.

8. The petitioner has been for almost 7 years on this job and it is Pakistan Railways which has been extending the contract from year to year. If it was a permanent post and (no material has been placed before us to establish that it was not a permanent post) it should have been filled over the last 6 years or so. However that has not been done. Article 3 of the Constitution of Islamic Republic of Pakistan provides as under:--- "3. Elimination of exploitation.--- The State shall ensure the elimination of all forms of exploitation and the gradual fulfillment of the fundamental principle, from each according to his ability and to each according to his Work."

9. It is one of the most nefarious kinds of exploitation that a person is recruited on contract for a post of permanent nature and is continued as such from year to year keeping that person on the tenterhooks of uncertainty with the sword of termination of contract permanently hanging over his head by nothing but the most fragile thread of one knotted eyebrow of a superior. Such a situation cannot be, and indeed should not be allowed to be countenanced.

10. Thus it appeared that the post is permanent in nature; there are no rules making it a post to be filled through promotion and the petitioner has worked on the post, though on contract basis, for a number of years. Being conscious of the fact that this Court cannot assume to itself jurisdiction of Selection Authority as that role must be left to the departmental authorities to perform, we direct the Respondent No,2 to, within a period of two months, assess the suitability of petitioner for permanent absorption on the post and thereafter take action in accordance with the law and submit report to this Court. This Constitution Petition is disposed of in the above terms. Listed application is also disposed of.