BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, FAISALABAD through Chairman and others vs TANVEER SAJID and others

MIAN SAQIB NISAR, C.J.---All these petitions involve common question of law, namely, whether or not daily wagers/contract employees of petitioners/respective Boards of Intermediate and Secondary Education (BISE) are entitled to regularization. As such, these are being disposed of vide this common judgment.

2. The controversy in brief is that the respondents have been working in the establishment of the petitioner/respective BISE as Naib Qasids, Baildars, Helper Carpenters, Helper Plumbers, Daftries, Security Guards, Sweepers, Offset Machine Helpers, Drivers, Junior Clerks and Data Entry Operators, for long period of time ranging between 3 to 12 years, on contract basis. The contracts provided employment for a period of 89 days and with a break of a few days were renewed from time to time for further periods of 89 days. After benefitting from their services, instead of regularizing the services of the respondents, the petitioners took steps to make fresh appointments against the posts held by them. In these circumstances the respondents filed representations before the petitioners/authorities for regularization of their services, but the same were rejected. Being aggrieved, they filed various writ petitions before the learned High Court which were heard and decided by separate judgments/orders. The first of such writ petitions (W.P. No,3304/2014) was decided vide order dated 7.6.2016 whereby the petitioner/ relevant BISE was directed to regularize the services of the concerned respondents. While granting relief, the learned High Court placed reliance on the judgments of this Court in the cases titled as Province of Punjab through Secretary Communication and Works and others v. Ahmed Hussain (2013 SCM R 1547) and Dr. Naveeda Tufail and 72 others v. Government of Punjab and others (2003 SCM R 291).

3. The petitioners challenged the said order through Intra Court Appeal No,56/2016 which was dismissed vide order dated 22.6.2016. This order has been impugned before us in C.P. No,2509/2016.

The other writ petitions filed by the respective respondents were also allowed following the ratio of the order in W.P. No,3304/2014. The said orders have also been impugned in other civil petitions.

4. Heard the learned counsel for the parties and perused the record with their assistance. It is the case of the petitioners that the BISEs are independent corporate Bodies, having been established under section 12(6) of the Punjab Boards of Intermediate and Secondary Education Act, 1976 (the Act of 1976) and conduct their affairs under the directions of the controlling authority. The respondents are neither contract nor work-charge employees. They have been hired on daily wages for a period of 89 days from time to time on need basis. As such, they have no vested right to be regularized merely on the ground that they have rendered services over a long period of time.

There is a difference between daily wagers and work charge employees and while relying upon Ahmed Hussain's case (supra) the learned High Court has not considered this aspect of the matter.

Likewise, the judgment in Dr. Naveeda Tufail's case (supra) is also distinguishable. It is further contended that presently there is a requirement of participation in the written test through the NTS before appointment. However no such test was conducted when the respondents were inducted into service. As such they cannot automatically be inducted/regularized without meeting the requirements.

5. On the other hand, the case of the respondents is that the posts against which they are working are permanent in nature. They have been performing their duties with due diligence to the satisfaction of the authorities. Therefore, the learned High Court has rightly granted them the relief of regularization.

6. It may be noted that the superior Courts have always condemned the practice of keeping the employees on temporary basis for long A periods of time without confirming or regularizing their services. It has been held that an employee being jobless and in fear of being shown the door has no option but to accept and continue with the appointment on whatever terms a job is offered by the employer. In fact such consent to continue to work as temporary employee is not in the nature of free consent between the employees, on the one hand and employers on the other. A person so employed is in no position to bargain with the employers/departments which are in a disproportionately dominating bargaining position as compared to the employee and the employer could always coerce them to waive their legal protection and accept. contractual terms or face the risk of losing their jobs. [see: Habibullah v. Government of the Punjab (PLD 1980 Lah. 37), Pakistan v. Public at Large (PLD 1987 SC 304) and Sui Southern Gas Company Ltd. v. Ghulam Abbas (PLD 2003 SC 724)).

7. This Court in the case of Dr. Anwar Ali Sahto v. Federation of Pakistan (PLD 2002 SC 101), held that even contract employees could be reinstated in service in appropriate cases if such appointment had become permanent by efflux of time. A similar view was taken in the case titled as Abdul Sattar v. Sui Northern Gas Pipelines Limited (2001 SCM R 1935). In the case of lkram Bari v. National Bank of Pakistan (2005 SCMR 110) the Court after relying upon the afore-noted judgment held that persons, who have served for more than three years, without a break of more than 15 days, are entitled to regularization of their services. Relevant portion from the said judgment is reproduced below:- "15. It is difficult to countenance the approach of the Bank that the temporary Godown staff and the daily wages employees should be continued to be governed on disgraceful terms and conditions of service for an indefinite period. In view of section 24-A of the General Clauses Act 1897, the National Bank was required to act reasonably, fairly and justly. An employee being jobless and in fear of being shown the door had no option but to accept and continue with the appointment on whatever conditions it was offered by the Bank. ...

18. In our view, the conditions of three years length of service with not more than 15 days break between the consecutive appointments and termination of service imposed by the Tribunal for regularization of service of employees are quite reasonable and are also in line with the policy decisions taken by the Bank itself from time to time .

In the case of Ejaz Akbar Kasi v. Ministry of Information and Broadcasting (PLD 2011 SC 22), contract employees of PTV Corporation who approached this Court for regularization of their services on the ground that they had worked for many years on contract basis, therefore, deserved to be considered for regularization, were directed to be regularized. The review petition filed against the said judgment was dismissed. In the case of Pir Imran Sajid v. Managing Director/General Manager (Manager Finance) Telephone Industries of Pakistan (2015 SCM R 1257) this Court held as under:- "6. Admittedly, all the appellants have been serving TIP in their respective position since about last more than twelve (12) years, though on contract basis, however, renewal of their contracts on year to year basis since the inception clearly shows that the nature of their jobs/duties is permanent and not casual or temporary, and that the appellants have been performing their functions/duties to the satisfaction of their employer and further that throughout the whole period their services were required, and have remained useful for and beneficial to the organization. There is no allegation of any misconduct or incompetence against the appellants, rather they have been granted increments from time to time. It has also not been, and indeed, in the facts and the circumstances of the case, could not have been, claimed that the posts held by the appellants and the work carried out by them was of a temporary nature.

9. It is now well established that right to life as envisaged by Article 9 of the Constitution, includes the right to livelihood and as laid down in the case of Abdul Wahab (supra), the "right to livelihood, therefore, cannot hang on to the fancies of individuals in authority." Certainly, as has further been held in the said judgment; "it shall unmistakably be permissible that the employment of an employee can be brought to an end, but obviously in accordance with law", whereas in the present case, and as observed earlier, there was/is no justification for not making their employment permanent, and for keeping their entire career, rather livelihood exposed and susceptible to the whims of the authorities, which also hurts the dignity of the appellants.

10.Indeed the service/employment rules of TIP are non-statutory, but such does not prevent the appellants from seeking implementation of the decision/order of the Federal Government/ministry for their regularization.

11. It hardly needs to be emphasized that the whole edifice of governance of the society has it genesis in the Constitution and laws aimed at to establish an order, inter alia, ensuring the provisions of socio-economic justice, so that the people may have guarantee and sense of being treated in accordance with law that they are not being deprived of their due rights.

13. Looking through the above constitutional prism and keeping in view the facts that the federal government which owns, controls, manages and finances TIP has directed TIP to regularize the appellants, and that admittedly the appellants have initially been appointed in an open and transparent manner and after the vacancies were advertised in the newspapers, one cannot escape the conclusion that the appellants ought to have been regularized."

In another case (H.R.C. No, 16360/2009), this Court took suo motu notice of non-regularization of Lady Health Workers and other staff working in the Province of Punjab for many years and directed the concerned authorities to regularize their services. Thereafter, pursuant to the order of this Court (passed in Crl. Original Petition No, 15/2012 in H.R.C. No, 16360/2009), the services of Lady Health Supervisors, Accounts Supervisors, Lady Health Workers, Drivers and other PMU Staff of the National Programme for Family Planning and Primary Healthcare Punjab were regularized vide Notification dated 29.7.2016.

8. Turning to the instant case, the respondents-employees have been working with the petitioner- BISEs for a long period of time ranging between 3 to 12 years, as mentioned in the impugned judgments by the learned High Court. Though they were initially appointed for a period of 89 days but after the expiry of said period, their contracts were renewed from time to time for further periods of 89 days at a time with an artificial break of 1 or more days. It seems that the motive behind such artificial break was to avoid regularization of their services on the pretext that they were not continuously in service. Since the respondents were in service for a long time, it clearly shows that the posts they were occupying were permanent in nature and not casual or temporary.

It further indicates that the services of respondents were not only required but also beneficial to the 'department and that they (respondents) had been performing their duties with due diligence to the satisfaction of the authorities. Noting has been placed on the record that may show anything to the contrary.

9. With regard to the submission that the respondents have not appeared in the written test through NTS, suffice it to say that the respondents are mostly Class-IV employees and inducted in service many years ago. As such. at the time of their recruitment there was no requirement of appearing in the said test. Further. while working on the respective posts, their performance was satisfactory and for that reason their contracts were renewed from time to time. It has not even been alleged that the performance of any of the respondents was below par. In such a situation, the superior Courts have always exercised their extraordinary constitutional jurisdiction with compassion and in favour of the employees. Needless to observe that the Federal as well as the Provincial Governments have regularized hundreds of daily-wagers, work-charge and contract employees working in various Departments and Organizations. Thus, on the basis of the above, we are in complete agreement with the learned High Court that the respondents-employees are entitled for regularization of their services.

10. In view of the above, we are of the view that the learned High Court has rightly directed the petitioner-BISEs/Government of Punjab to regularize the services of respondent-employees. Thus, no case for interference in the impugned judgments is made out. These petitions are accordingly dismissed and leave to appeal is refused.