Termination of Contract of MEA-Recovery of Motorcycles & TABs etc.

DIRECTORATE GENERAL POPULATION WELFARE DEPARTMENT
14-Babar Block New Garden Town Lahore

No. PWD/DG/Admn. /MEAs/2017-18/527 Dated: 22.12.2020

All District Population Welfare Officers in Punjab.

Subject: – TERMINATION OF CONTRACT OF MONITORING & EVALUATION
ASSISTANTS (MEAs) — RECOVERY OF MOTORCYCLES, TABS ETC.

I am directed to refer to the subject cited above and to state that contract of all MEAs working in your respective district stood terminated / exhausted w.e.f. 31.12.2017 and no further extension in contract period was granted vide this office letter bearing No.PWD/DG/Admn./MEAs/2017/526 dated 08.01.2018 (copy enclosed). It was directed to all District Population Welfare Officers in Punjab to take possession of official Motorcycles, Tabs and any other items / assets of the department from MEAs.

I am further directed to state that MEAs filed various Writ Petitions Nos.
134550/18, 153209/18, 152378/18, 7429/19, & 16413/19 in Honourable Lahore High
Court, Lahore against termination of their contract and prayed for reinstatement into
service as well as regularization of their services. The Honourable Lahore High Court,
Lahore passed an order dated 20.02.2019 by virtue of which aforementioned Writ
Petitions were allowed and the Respondents were directed to consider the case of the
petitioners for regularization forthwith. The department assailed the order dated
20.02.2019 passed by Single Bench, Honourable Lahore High Court, Lahore before
Division Bench, Honourable Lahore High Court, Lahore through ICAs Nos. 19032/2019, 19033/2019, 19034/2019 & 26322/2019. The Division Bench, Honourable Lahore High Court, Lahore vide its order dated 02.12.2020 has allowed all aforementioned ICAs in favour of department and impugned order dated 20.02.2019 passed by the Learned Single Judge, Honourable Lahore High Court, Lahore in Writ Petitions Nos. 134550/18,
153209/18, 152378/18, 7429/19, 16413/19 & 51141/2020 have been set aside (copy enclosed). As such, litigation has attained finality and the matter is no longer under trial / litigation.
In view of the above, I am, therefore, directed to request you to recover / take possession of all official Motorcycles, Tabs and any other items / assets of the department from MEAs concerned within 02-days positively without any further delay.
The compliance report must reach in this office by 24.12.2020.

Deputy Director (Admn.)

Ends: As above. C.C. 

1. P.S. to Director General, Population Welfare Department, Punjab.
2. Assistant Director (General), Directorate General, PWD, Punjab, Lahore.

Ayesha A. Malik J: Through this ICA along with connected ICAs No.19032/2019, 19033/2019, 19034/2019 and 26322/2019, the Appellants have impugned order dated 20.2.2019 passed by the learned Single Judge in WP Nos.134250/18, 153209/18, 152378/18, 7429/19 and 16413/19.

2. The basic contention of the Appellants that is Government of Punjab is that the Respondents being project employees have been ordered to be regularized vide impugned order dated 20.2.2019 which is against the mandate of the law. Learned Law Officer submits that the Respondents were appointed as Monitoring and Evaluation Assistants on contract basis for inspection of facilities of PWD, Punjab in the year 2016. This was a project appointment and their contracts were extended from time to time for the duration of the project. She explained that 116 Monitoring and Evaluation Assistants were appointed on the basis of an advertisement for the duration of the project. When the project converted to the non-development side, their contracts were extended up to 31.12.2017 whereafter their contracts were ended. She stated that the impugned order is factually incorrect as it observes that the Respondents were still working under contract whereas in tact the contracts of the Respondents were terminated on 31.11.2017.

Learned Law Officer stated that the Respondents therefore could not be regularized as their contracts had been terminated and since they were hired for a specific-purpose their contracts were extended till the time that they were required.

3. On behalf of the Respondents, it is argued that they were appointed as Monitoring and Evaluation Assistants on contract basis in the year 2016. That they have always been working on contract basis and that they were entitled to regularization. Since their request had not been duly considered, they filed writ petitions seeking a directions from the Court for their cases also to be considered for regularization as were the cases of Male Mobilizer in the Social Security Department, Punjab.

4. In terms of the impugned order, the Respondents were appointed on contract basis and they sought regularization on the strength of judgment dated 26.9.2013 passed by this Court in WP No.13784/2010 titled Solid Hussain etc. v. Government of Punjab etc. The Respondents were field
workers and claimed that they were entitled to the same benefit as given in the stated writ petition. The learned Single Judge while relying on the said judgment observed that it has been upheld by the august Supreme Court of Pakistan in CP No.646-L of 2014 which was dismissed on 29.2.2016, hence the Court directed the Appellants to regularize the Respondents. As per the
record, the Respondents were appointed through an ADP Scheme titled “Hiring of 116 Monitoring and Evaluation Assistants for inspection of Facilities of PWD Punjab (2015-16). This was a project launched by the Population Welfare Department in all 36 districts of Punjab for inspection of
facilities of PWD, Punjab. During, the subsistence of the project, the contracts of the Respondents were extended from time to time. On 4.5.2017 it was agreed that the project be converted to the non-development side and 116 posts of Monitoring and Evaluation Assistants be created for regular inspection of facilities of PWD, Punjab. The Respondents’ contracts were extended till 31.12.2017 after which their contracts were terminated with effect from 31.12.2017 vide letter dated 8.1.2018. The Appellants were required to frame service rules for the post of Monitoring and Evaluation Assistants for which a committee was constituted. Therefore we find that as per the record the Respondents were hired against a project and being

1C-1 No.19031/2019

project employees they are not entitled to regularization. The impugned order has relied upon CP No.646-L of 2014 to state that the judgment impugned therein has been upheld by the august Supreme Court of Pakistan. However, we have gone through the order in CP No.646-L of 2014 and find that the judgment impugned before the august Supreme Court of Pakistan was passed in ICA No.323/2013 dated 17.3.2014 whereby the appeal filed by the Government of Punjab was dismissed for being barred by time. It is against this order that the CP was filed which was dismissed, thereby upholding the judgment that the appeal was barred by time. We note that so far as the merits of the case, the august Supreme Court of Pakistan has not deliberated on the same. However on the issue of project employees, the august Supreme Court of Pakistan has held in Province of Punjab through Secretary Agriculture Department, Lahore and others v. Muhammad Arif and others (2020 SCMR 507) that the project employees cannot be regularized unless proper rules have not been framed. It is also noted that the judgments relied upon that is Government of Khvebr Pakhtunkhwa through  Secy. Agriculture and others v. Adnanullah (2016 SCMR 1375) and Rizwan Javed and others v. Secretary Agriculture Livestock and others (2016 SCAM 1443) are distinguishable as the relevant law in this case before the august Supreme Court of Pakistan was the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009 for the Province of Khyber Pakhtunkhwa. This is distinguishable from the Punjab Regularization of  Service Act, 2018 wherein it is specifically stated in Section 2 that contract employees do not include a person appointed to a post in a project, programme, project management unit, project management office, time bound (one-time) development activity or as work-charged employee or an employee on daily wages. Hence on the basis of the Punjab Regularization of Service Act, 2018, the Respondents are not entitled to regularization. In this regard, it is noted that the Respondents were never appointed against sanctioned posts on contract basis. Reliance is placed on 2020 SCMR 507 (supra). In the absence thereof the Respondents cannot claim regularization as the post against which they seek regularization has to be filled up in terms of the relevant rules for the post or in pursuance of the Punjab Regularization of Service Act, 2018. Furthermore it is noted that the Respondents contract expired on 31.12.2017 whereafter they were not given an extension. At the time when the writ petitions were filed the Respondents were not in the service of the Appellants as there was no valid contract between the parties. This is evident from the notices issued to the Respondents by the Appellants stating that their contracts have expired and will riot be extended. Under the circumstances, the findings in the impugned order that the Respondents’ contract have not been terminated is contrary to the record as there was no contract between the Respondents and the
Appellants, therefore their services could not have been regularized.

5. Under the circumstances, the instant ICA along with connected ICA are allowed and impugned order dated 20.2.2019 passed by the learned Single Judge in WP Nos.134250/18, 153209/18, 152378/18, 7429/19 and 16413/19 is set aside.

The District Monitoring Officers in Punjab

Subject:- TERMINATION OF CONTRACT OF ALL MONITORING & EVALUATION ASSISTANTS (MEAs)

I am directed to refer to the subject cited above and to convey that in pursuance of Government of the Punjab, S&GAD (Regulations/O&M Wing) letter No. SO(ER13)5-3/2014/ Contract( Project) dated 23.07.2014, contract of all MEAs working in your respective district stands terminated/exhausted with effect from 31.12.2017 and no further extension in contract period shall be granted.

I am further directed to state that all MEAs working in your respective district may also be directed to return/handover official Motorcycle. TAB and any other items in their custody to respective District Population Welfare Officers.

These instructions may be adhered to in letter and spirit and compliance report thereof may be furnished to this off ice upto 10.01.2018 positively.

I his is issued with the approval of the Competent Authority/Director General. Population Welfare Department, Punjab.

Assistant Director (Admn.)