QAYYUM KHAN vs DIVISIONAL FOREST OFFICER, MARDAN and others
This appeal by leave of the Court is directed against the order of the Peshawar High Court dismissing a review petition filed against the dismissal of a writ petition challenging the termination of the appellant's services as a Wildlife Watcher. The core legal question concerns whether a contract employee whose project post is converted to a permanent post can be arbitrarily terminated and discriminated against while similarly placed employees are regularized. The Supreme Court held that the appellant was discriminated against by being denied continuation or regularization while others were allowed induction, rendering his termination unlawful. The Court laid down the principle that contract employees whose project posts are converted or taken over by the government cannot be subjected to arbitrary termination and cherry-picking, and are entitled to equal treatment and reinstatement along with back benefits and pensionary counting for the intervening period when similarly placed persons are regularized.
- Whether a contract employee whose project post is converted into a permanent post is entitled to regularization on parity with similarly placed employees?
- Can the government terminate a contract employee upon taking over a project and appoint another person in their place through cherry-picking?
- Whether an employee unlawfully terminated from a project taken over by the government is entitled to reinstatement and back benefits?
- North West Frontier Province (now KPK) Employees (Regularization of Services) Act, 2009
' AMIR HANI MUSLIM, J.---This Appeal, by leave of the Court is directed against order dated 19.05.2015 passed by the Peshawar High Court, Peshawar, whereby the Review Petition filed by the Appellant against the order dated 13.02.2014 passed in Writ Petition No,2547-P of 2012, was dismissed.
2. The facts necessary for the present proceedings are that on 01-02-2010, the Appellant was appointed as Wildlife Watcher (BS-05) in Sakra Wildlife Range, Mardan, on contract basis till the expiry of the Project. On 25.05.2012, during the contract period of the Appellant, the Finance Department, Government of KPK, vide letter No,B011/FC/1- 5A/2012/13, converted the contract posts of Wildlife Watchers into permanent posts in the said Range. However, the Appellant was not considered for appointment on permanent basis and his services were terminated, vide order dated 05.06.2012.
3. The Appellant assailed the order of his termination before the Peshawar High Court, by filing Writ Petition No,2547 of 2012, which was dismissed. The Appellant filed Review Petition against the judgment passed by the learned High Court in the Writ Petition, which too was dismissed. The Appellant assailed the judgments of the learned Peshawar High Court before this Court by filing Civil Petition for leave to Appeal in which leave to Appeal was granted on 16.12.2015. Hence this Appeal.
4. The learned Counsel for the Appellant has contended that the post against which the Appellant was appointed had been converted to a regular post, therefore, the Appellant ought to have been appointed against the regular post. He submits that many other employees working on contract basis in the projects were regularized after the project posts had been converted to regular posts.
5. On the other hand, the learned Additional Advocate General, KPK, has supported the impugned judgments.
6. We have heard the learned Counsel for the Appellant and the learned Additional Advocate General, KPK. The only distinction between the case of the present Appellant and the case of the Respondents in Civil Appeals Nos.134-P of 2013 etc. Is that the project in which the present Appellant was appointed was taken over by the KPK Government in the year 2012 whereas most of the projects in which the aforesaid Respondents were appointed, were regularized before the cutoff date provided in North West Frontier Province (now KPK) Employees (Regularization of Services) Act, 2009. The present Appellant was appointed in the year 2010 on contract basis in the project after completion of all the requisite codal formalities, when on 25.05.2012, the project was taken over by the KPK Government. It appears that the Appellant was not allowed to continue after the change of hands of the project. Instead, the Government by cherry picking, had appointed some other person in place of the Appellant. The case of the present Appellant is covered by the principles laid down by this Court in the case of Civil Appeals Nos.134-P of 2013 etc. (Government of KPK through Secretary, Agriculture v. Adnanullah and others), as the Appellants was discriminated against and was entitled to continue the job with the employees who were similarly placed and were allowed induction on regular basis.
7. We, for the aforesaid reasons, allow this Appeal and set aside the impugned judgments. The Appellant shall be reinstated in service from the date of his termination and is entitled to the back benefits for the period he has worked with the project of the KPK Government. The service of the Appellant for the intervening period i.e, from the date of his termination till the date of his reinstatement shall be counted towards his pensionary benefits.