QAYYUM KHAN vs DIVISIONAL FOREST OFFICER, MARDAN and others
This appeal arises from the dismissal of a review petition by the Peshawar High Court concerning the termination of the appellant's services as a Wildlife Watcher. The appellant was appointed on a contract basis in 2010, and subsequently, the post was converted into a permanent position by the Government of KPK in 2012. Despite this conversion, the appellant's services were terminated, and another individual was appointed in his place. The core legal question was whether the appellant, whose contract post was regularized, was entitled to be retained in service rather than terminated, particularly when similarly situated employees were regularized. The Supreme Court held that the appellant was subjected to discrimination, as the government had selectively retained others while terminating him. Relying on the principles established in the case of Government of KPK through Secretary, Agriculture v. Adnanullah and others, the Court allowed the appeal, set aside the impugned judgments, and ordered the appellant's reinstatement with back benefits and pensionary credit for the intervening period. The key principle laid down is that the government cannot arbitrarily discriminate against contract employees when their project posts are regularized.
- Is a contract employee entitled to regularization when their project post is converted into a permanent post by the government?
- Can the government selectively terminate a contract employee while regularizing similarly situated employees in the same project?
- Is an employee entitled to back benefits and pensionary credit upon reinstatement after an unlawful termination?
- North West Frontier Province (now KPK) Employees (Regularization of Services) Act, 2009
' AMIR RANI 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,BO11/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 B 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.