HAKIM ALI UJJAN and others vs PROVINCE OF SINDH and others

FAISAL ARAB, J.--- The petitioners of all these seven petitions, were employed on contract basis in the year 2007 as Lab: Attendants, Watermen, Watchmen Naib Qasids, Gardeners, Cooks and sanitary workers in the basic pay scale of 1 to 4. All of them were employed on vacancies which are of permanent nature. On completion of three year contract period, they filed the present petitions.

Learned counsel for the petitioners argued that a Division Bench of this Court has already decided similar matter in C.P. No,D-991 of 2010 and has given directions that all low paid employees who have worked for more than three years on a permanent post should be regularized' against such post. Learned A.A.-G., on the other hand argued that the petitioners were employed on contract basis and under the provisions of section 2 of Sindh Civil Servants Rules, 1979 a contract employee has no protection, he cannot be regarded as Civil Servant and upon completion of the contract period he ceases to be in service. Reliance was placed on an unreported judgment of Supreme Court passed in Civil Appeals Nos.468, 471, 474, 632, 633, 852, 859, 899, 901,950 and 974 of 2010, wherein it has been held that where the terms of conditions of an employee are not governed by any statutory rules then the rule of master and servant shall apply.

2. We have noted that all the posts to which the petitioners have been appointed on contract basis are of permanent nature. Where a post is of a permanent nature then it has to be filled in through a permanent appointment. He may be initially appointed on probation but after successfully completing the probationary period, he is to be treated as confirmed employee. The practice of employing a person on contract basis on a permanent post has always been deprecated by superior Courts. This creates a sense of insecurity amongst such employees. Like in the present case, a person who has served for more than three years in a permanent post in pay scales 1 to 4 cannot be thrown out on the ground that he was employed on contract basis. Hence, a case for absorption in service on permanent basis is made out for the reason that job is not of such a nature which requires specialization or high qualification. It is an admitted position that for the last more than three years the petitioners are working in their respective posts and are being paid their salaries. At no stage during subsistence of their contract any of them was terminated for being incompetent or found unsuitable for the job for any justifiable reason. There cannot be two sets of employees working on the same post in government service, one employed on contract basis and the other on permanent basis, though the post is of a permanent nature. In the present case the manner in which the petitioners are being treated is highly unreasonable. Learned A.A.-G. Pointed out that process of recruiting 7187 non-Teaching staff is already underway and applications for appointment to the posts of BPS 1 to 4 have been published in newspapers and the petitioners ought to have applied for such posts instead of filing these petitions. We are not impressed by such an argument. The petitioners have been satisfactorily working on permanent posts for the past more than three years on contract basis which are of grade 1 to 4 only, hence they are to be permanently absorbed in service first. In case any post still remains vacant after such absorption, the department shall be free to advertise and fill such posts.

3. We allowed these petitions by short order dated 31-5-2011 insofar as the petitioners who are working in BPS 1 to 4 are concerned and these are the reasons for the same.