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C.M.As. Nos.9498 and 2589 of 2014 in Constitutional Petition No.D-684 of 2012, decided on 2nd September, 2014.

----Arts. 199 & 25--- Constitutional petition--- Civil service---Regularization---Discrimination---Petitioners were employed on contract basis on consolidated meager pay---Contention of the petitioners was that inspite of working for a period of more than 05 years their services had not been regularized, whereas the services of other employees, who had been employed subsequent to the petitioners, had been regularized thus treating the petitioners discriminately---Authorities had not denied the appointment of the petitioners and stated that the process had been initiated for the regularization of petitioners and petitioners would be regularized as per policy of the Government---High Court allowed the constitutional petition and directed that the petitioners should be regularized/confirmed in their services as per law and should be permanently absorbed on a priority basis---Constitutional petition was allowed in circumstances. Hakim Ali Ujjan and others v. P.O. Sindh and others SBLR 2011 Sindh 1575 rel. Hadi Bux Bhatti for Petitioner. Munir Ahmed Awan for Respondents. Manoj Kumar Tejwani for Respondent No.4. Shaharyar I. Awan, Asstt. A.-G.

The petitioners at S.Nos. 25, 38, 59 and 62 have been regularized and therefore the learned counsel does not press this petition on their behalf. The petitioners at S.Nos.26 and 76 have left the Department of their own choice and now tendering the service in some other Department and the petition is also not pressed on their behalf. Consequently, the petition against petitioners Nos.25, 38, 59, 62, 26 and 76 is dismissed as not pressed. 2. It is, inter alia contended by the learned counsel for the petitioners that they were employed on contractual basis with the respondents Nos.2 and 3 after fulfillment of all codal and legal formalities. The petitioners are low level employees working as Sanitary Workers/Underground Coolies on consolidated meager pay with TMA, New Sukkur. It is the contention of the petitioners that inspite of working for a period of more than 5 years, their services have not yet been regularized by the respondents/Department despite the fact that there has been no complaint against their service from any quarter. It is further contended that subsequent to their appointment more than 50 persons have been appointed afresh and since the new appointees were backed by the influential people, therefore, their services have been regularized whereas the petitioners, who have been serving diligently for the past so many years, have been ignored in an arbitrary manner and discrimination has been meted out to them, which is against Article 25-A of the Constitution of Islamic Republic of Pakistan, 1973. 3. That in the years 2010 and 2011, the services of the petitioners were transferred to respondent No.4 North Sindh Urban Service Corporation (NSUSC), along with the budgetary provisions of the salary, on a deputation basis. The petitioners contend that inspite of performing satisfactory service and working against permanent posts, they have been discriminated and have not been regularized and therefore they have been constrained to appear before this Court for enforcement of their fundamental rights. 4. The respondents Nos.2 and 3 have filed their comments and they have not denied the appointment of the petitioners. The respondents have also stated that process has been initiated for the regularization of the petitioners and they will be regularized as per policy of the Government, which though announced has not been implemented as yet. They have further taken the plea that the contractual employees have no vested or constitutional right and therefore, the petition is not maintainable against them. 5. The respondents Nos.4 and 5 have also filed their counter-affidavits to the main petition, in which they have stated that no writ jurisdiction under Article 199 of the Constitution can be invoked against them as they are a private company and registered under the provisions of Companies Ordinance, 1984. They have further stated that the petitioners are contract employees and regularization of their services, if at all, is not the domain of the respondents Nos.4 and 5 but it is upto the respondents Nos.2 and 3 to decide the matter. 6. We have heard the arguments, perused the record and have gone through the case-law cited by the parties. 7. In an identical case bearing C.P.No.D-2567 of 2011 we have already passed orders and the said judgment reads as follows:--- "We find nothing adverse on record against the petitioners nor has any significant rebuttal being made in the comments filed by the respondents. In such circumstances we direct the respondents to regularize/confirm their services as per law if there are no complaints against them and they duly fulfill all the legal and codal formalities as required under the law for their confirmation. The petition stands partly allowed." 8. We are also fortified in this regard by the judgment reported in SBLR 2011 Sindh 1575 Hakim Ali Ujjan and others v. P.O. Sindh and others, where the learned Division Bench has decided as follows:--- "Like in the present case, a person who has served for more than three years in a permanent post in pay scales 1 to 4 cannot be thrown out on the ground that he was employed on contract basis. Hence, a case for absorption in service on permanent basis is made out for the reason that job is not of such a nature which requires specialization or high qualification. It is an admitted position that for the last more than three years the petitioners are working in their respective posts and are being paid their salaries. At no stage during subsistence of their contract any of them was terminated for being incompetent or found unsuitable for the job for any justifiable reason. There cannot be two sets of employees working on the same post in government service, one employed on contract basis and the other on permanent basis, though the post is of a permanent nature. In the present case the manner in which the petitioners are being treated is highly unreasonable." 9. Consequently, we allow this petition and direct that the petitioners should be regularized/confirmed in their services as per law and should be permanently absorbed in service on a priority basis. In case any post still remains vacant, the Department shall be free to advertise and fill such post in accordance with law. These are the reasons for our short order dated 2-9-2014 whereby we had allowed this petition. SA/I-26/Sindh

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