GOVERNMENT OF NORTH-WEST FRONTIER PROVINCE through Secretary, Agriculture, Livestock and Cooperatives Department, Peshawar and others vs ABDULLAH KHAN and others

' ASIF SAEED KHAN KHOSA, J.---The respondents in the present appeals had been selected for appointment in the prescribed manner on or after the first day of July, 2001 and before the 23rd day of July, 2005 but they had all been appointed on contract basis and upon enactment of subsection

(2) of section 19 of the North-West Frontier Province Civil Servants (Amendment) Act, 2005 they were to be deemed to have been appointed on regular basis but upon failure of the Provincial Government to treat them as such they and some others filed different Writ Petitions before the Peshawar High Court, Peshawar which Writ Petitions had been allowed by a learned Division Bench of the said Court through a consolidated judgment dated 1-12-2009 with a direction to treat the said respondents as regular employees. On that occasion the learned Additional Advocate- General appearing for the Provincial Government had conceded the claim of the respondents and others to be treated as regular employees. Instead of challenging that judgment of the Peshawar High Court, Peshawar before this Court the appellants herein chose to file Review Petitions before the Peshawar High Court, Peshawar but all such Review Petitions were dismissed by a learned Division Bench of the said Court through a consolidated judgment dated 1-12-2009. The said consolidated judgment dismissing the Appellants' Review Petitions has been assailed by the appellants before this Court through the present appeals after obtaining leave of the Court on 14- 9-2010.

2. We have heard the learned counsel for the parties at some length and have gone through the relevant record of the case with their assistance.

3. The main contention of the learned counsel for the appellants is that the respondents were project employees appointed on contractual basis and, thus, they were not entitled to be regularized in service and in this regard he has referred to the provisions of the North-West Frontier Province Employees (Regularization of Services) Act, 2009. We have, however, remained unable to subscribe to this submission of the learned counsel for the appellants inasmuch as according to clause (aa) of subsection (1) of section 2 of the North-West Frontier Province Employees (Regularization of Services) Act, 2009 "contract appointment" meant appointment of a duly qualified person made "otherwise than in accordance with the prescribed method of recruitment".

It is admitted at all hands that the appointments of the respondents were made in accordance with the prescribed method of recruitment and through the Departmental Selection Committee and, thus, their case did not attract the above mentioned definition of "contract appointment" contained in clause (aa) of subsection (1) of section 2 of the said Act of 2009. It may be true that the definition of "employee" contained in clause (b) of subsection (1) of section 2 of the said Act of 2009 excluded the employees appointed for a "project post" but before the Peshawar High Court, Peshawar as well as before this Court the appellants have utterly failed to produce anything to establish their assertion that the respondents had in fact been appointed for any project post. All that the appellants could produce before the Peshawar High Court, Peshawar in that regard were some salary slips and payrolls but such salary slips or payrolls could not been accepted as proper substitute for positive and definite proof of the nature of the respondents' appointment or employment.

4. We have found that the case of the respondents was in fact squarely covered by the provisions of subsection (2) of section 19 of the North-West Frontier Province Civil Servants (Amendment) Act, 2005 because the respondents had been appointed on contract basis in a manner in accord with the prescribed procedure and that they had been appointed between the period which was catered for by the said Act of 2005. In this view of the matter we have found the learned Division Bench of the Peshawar High Court, Peshawar to be quite justified in allowing the respondents' Writ Petitions and in dismissing the appellants' Review Petitions and also in directing the appellants to treat the respondents as regular employees.

5. We have unmistakably noticed that during the hearing of the respondents' Writ Petitions before the Peshawar High Court, Peshawar the claim of the respondents and the legal position applicable to them had been conceded by the learned Additional Advocate-General appearing for the Provincial Government and, therefore, the appellants cannot be allowed at this stage to turn around and to try to wriggle out of that concession which we have otherwise found to be quite correct and fair.

6. It is not disputed before us that the original consolidated judgment passed by the Peshawar High Court, Peshawar in the respondents Writ Petitions had not been assailed by the appellants before this Court and they have now approached this Court challenging the consolidated judgment passed by the Peshawar High Court, Peshawar dismissing their Review Petitions. In .Our considered opinion the appellants' Review Petitions had been dismissed by the Peshawar High Court, Peshawar quite correctly as no error patent on the face of the record had been pointed out by the appellants and the consolidated judgment passed by the Peshawar High Court, Peshawar in the Writ Petitions filed by the respondents stands unchallenged before this Court on its merits till date. The appellants cannot now be allowed to assail the consolidated judgment passed in the respondents'

Writ Petitions while disregarding the rigours of the law of limitation.

7. For what has been. Discussed above all these appeals are dismissed with no order as to costs.