2024 SCLR 26
Other citations: 2023 SCP 379 = 2024 SCMR 142
[Supreme
Court of Pakistan]
Present:
Munib Akhtar, Shahid Waheed and Musarrat Hilali, JJ
Chief
Secretary, Government of Balochistan, Civil Secretariat, Quetta and
others—Appellants
versus
Adeel-ur-Rehman
and others—Respondents
Civil
Appeal No.441 of 2020, decided on 1st December, 2023.
[On appeal against the
judgment dated 30.09.2019 passed by the High Court of Balochistan, Quetta, in
C.P.No. 1120 of 2017]
HEADNOTES
(a) Constitution
of Pakistan —
— Art. 25 — Equality of citizens — Scope —
Article 25 of the Constitution does not envisage negative equality — Such
right can only be claimed when decision is taken in accordance with law — A
wrong concession in favour of one person does not entitle any other person to
claim benefit of a wrong decision. [Para. No. 6]
(b) Civil
service —
— Regularization — Scope — Mere creation of
posts on regular side does not confer, in the absence of any statutory support,
an automatic right of regularization in favour of the contract employees
working against project posts. [Para. No. 6]
Government of Khyber Pakhtunkhwa through
Secretary Agriculture, Livestock and Cooperative Department Peshawar and others
v. Saeed-ul-Hassan and other [2021 SCMR 1376] referred.
(c) Balochistan
Civil Servants (Appointment, Promotion and Transfer) Rules, 2009 —
— R. 9 — Appointment — Scope — Rule
9(1)(a) of the Balochistan Civil Servants (Appointment, Promotion and Transfer)
Rules, 2009 provides that the appointment to posts in BPS-16 and above or
equivalent, if fall within the purview of the Commission, shall be made on the
basis of a test and interview to be conducted by the Balochistan Public Service
Commission. [Para. No. 5]
Province of Sindh
and others v. Muhammad Taqi Shah [2018 SCMR 1607] referred.
Muhammad Ayaz Swati, Additional Advocate General, Balochistan
for appellants.
Muhammad Shoaib Shaheen, Advocate Supreme Court and
Muhammad Ali Kanrani, Advocate Supreme Court for respondents.
Date of hearing: 31st October, 2023.
JUDGMENT
Musarrat Hilali, J:—This
appeal, by leave of the Court, is directed against judgment dated 30.09.2019
passed by the High Court of Balochistan, Quetta, in Constitution Petition
No.1120 of 2017, whereby the appellants were directed to regularize the
services of the respondents and also to pay them the arrears of salaries and
allowances. Leave to appeal was granted by this Court vide order dated
27.03.2020 as follows:
“The
learned Additional Advocate General, Balochistan contends that the Respondents
were employed on contract in a project against the posts which fell within the
purview of Balochistan Public Service Commission (BPSC) and on transfer of the
said project on non-development side although services of 43 other employees of
the project were regularized but the Respondents were not given the said
benefit as they were holding the posts of BPS-16 and above were required under
the law to be appointed after undergoing the process of BPSC and there is no
law or rule on the basis of which such condition could have been relaxed by the
competent authority. He adds that in the impugned judgment also the learned
High Court has not made reference to any such law or rule while accepting the
writ petition filed by the Respondents and thus it suffers from illegality”.
2. The submissions made by the learned
Additional Advocate General, Balochistan need consideration. Leave to appeal is
therefore granted to consider inter alia the same”.
2. Necessary facts of the case are that
in pursuance of a publication made in the daily Mashriq, Quetta dated
26.06.2009 the respondents on the recommendation of the Project Appointment
Selection Committee were initially appointed, on contract basis, as I.T.
Instructors in BPS-17 by the Project Director. Apart from the respondents,
certain other appointments were also made by the Project Director in pursuance
of the above-mentioned publication. On completion of the project, the Finance Department,
Government of Balochistan vide its letter dated 05.11.2013 conveyed
administrative approval regarding shifting of 58 project posts including I.T.
Instructors from development to non-development side with direction to follow
the codal formalities as per existing Government Policy for adjustment of
project employees on the regular strength from development to non-development
side. In the summary moved to the Chief Minister Balochistan, the
recommendations were made for regularization of the project employees including
the present respondents. The Chief Minister Balochistan while agreeing with the
proposal given by the Finance Secretary on 21.03.2016 approved that only those
employees are regularized who are recommended by the Project Head of CIDA
through letter No.2138-41/CIDA dated 10.09.2013. The names of the respondents
were included in the above referred letter dated 10.09.2013 for regularization
but the Secretary, Secondary Education Department, contrary to the approval,
approved regularization of only 43 employees serving in BPS-7 and below on
30.06.2016 and services of the respondents, who were in BPS-17 were not
regularized. The respondents, then filed constitution petition before the
Peshawar High Court, seeking their regularization, which was allowed vide the
impugned judgment.
3. Heard learned counsel for the parties
and with their assistance perused the record.
4. The case of the appellant is that a
summary of 43 contract employees into regular service was approved while for
BPS-17 and above, the appellants were not competent to appoint or regularize
any contract employee as the same come within the domain of the Balochistan
Public Service Commission, however, the learned High Court allowed the writ
petition of the respondents purely on the ground of discrimination.
5. Rule 9(1)(a) of the Balochistan Civil
Servants (Appointment, Promotion and Transfer) Rules, 2009 (the AP&T Rules) clearly provides that
the appointment to posts in BPS-16 and above or equivalent, if fall within the
purview of the Commission, shall be made on the basis of a test and interview
to be conducted by the Balochistan Public Service Commission (the Commission). Similarly, Rule 3(i)(a)
of the Balochistan Public Service Commission (Functions) Rules, 1982 (the BPSC Functions Rules), provides
that the Commission shall conduct tests and examinations for initial
recruitments to civil posts in BPS 16 to 22 connected with the affairs of the
province, except those specified in the Schedule appended to the Rules. Sub
clause (b) of Rule 3 (i) of the BPSC Functions Rules further empowers the
Commission to conduct a test and interview for initial recruitment to any other
post which may be referred to it by the Government, which may otherwise not
fall within the purview of the Commission.
6. As far as the question of
regularization of similarly placed persons by the Department vide Notifications
dated 26th July, 2007 and 22nd February, 2011 is
concerned, suffice it to say that Article 25 of the Constitution does not
envisage negative equality. Such right can only be claimed when decision is
taken in accordance with law. A wrong concession in favour of one person does
not entitle any other person to claim benefit of a wrong decision. This Court
in plethora of judgments has ruled out that the posts in BPS-16 and above shall
be filled through Public Service Commission. Reference can be made to the case
reported as Province of Sindh and
others v. Muhammad Taqi Shah [2018 SCMR 1607]. As far as the
regularization of contract employees subsequent to creation of posts on regular
side is concerned, in number of cases it has been held by this Court that mere
creation of posts on regular side does not confer, in the absence of any
statutory support, an automatic right of regularization in favour of the
contract employees working against project posts. Reliance is placed on the
case reported as Government of Khyber
Pakhtunkhwa through Secretary Agriculture, Livestock and Cooperative Department
Peshawar and others v. Saeed-Ul- Hassan and other [2021 SCMR 1376].
7. For the discussion made above, we are
of the considered view that case of the present respondents falls within the
purview of Rule 9 (1) (a) of the AP&T Rules so also under Rule 3 (i) (a)
and 3 (i) (b) of the BPSC Functions Rules. The decision given by the High Court
in the Constitution Petition is without any basis and is not sustainable in the
eye of law, therefore, the same is set-aside. The Government of Balochistan is
directed to refer these posts to the Commission for recruitment in accordance
with the law through fresh publication on open merit basis. The respondents are
directed to participate in the fresh recruitment process to be undertaken by
the Commission and the Commission is directed to entertain their applications.
In the peculiar circumstances of the case, the question, if any, of any age
limit shall not be a hurdle in the way of the respondents. The appeal, in above
terms stands disposed of.
Order accordingly