Qayyum Khan vs Divisional Forest Officer, Mardan Wildlife Division, Mardan
This appeal challenges the Peshawar High Court's dismissal of a review petition concerning the termination of the appellant's employment as a Wildlife Watcher. The appellant was initially appointed on a contract basis, and subsequently, the project was converted into permanent posts by the provincial government. While other similarly situated employees were regularized, the appellant's services were terminated, and another individual was appointed in his place. The core legal question was whether the appellant was entitled to regularization and continuation of service following the conversion of project posts into permanent ones, given the principle of non-discrimination. The Supreme Court held that the appellant was discriminated against, as his situation was materially indistinguishable from other employees who were regularized. Consequently, the Court set aside the impugned judgments, ordered the appellant's reinstatement from the date of termination, and granted him back benefits and pensionary credit for the intervening period. The key principle laid down is that the government cannot arbitrarily terminate contract employees and 'cherry-pick' replacements when project posts are converted to permanent status, as this violates the principle of non-discrimination.
- Does the conversion of project posts into permanent posts entitle existing contract employees to regularization?
- Can the government arbitrarily terminate contract employees and appoint others when project posts are regularized?
- Is a contract employee entitled to back benefits and pensionary credit upon reinstatement following discriminatory termination?
- 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 W rit Petition No.2547-P of 2012, was dismissed.
2. The facts necessary for the presen t 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.BO1 1/FC/1-d 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 dismisse d. 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 No.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 most of the projects in which the aforesaid Respondents were appointed, were regularized before the cut-of f 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 No.134-P of 2013 etc. (Government of KPK through Secretary , Agriculture vs. 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 or 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.