Stereo. H C J D A-38.

JUDGMENT SHEET
IN THE LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT

Writ Petition No.66323 of 2020

Muhammad Tariq
Versus
Controller General of Accounts, Islamabad & others

JUDGMENT

Date of hearing: 06.06.2022.

Petitioner by: M/s Muhammad Iqbal Mohal and Kamran
Bashir Mughal, Advocates.
Respondents by: Mr. Aftab Rahim, Deputy Attorney General.
Barrister Ameer Abbas Ali Khan, Assistant
Advocate General.
M/s Mazhar Khurshid, Accounts Officer
and Hafiz Ayaz Ahmad, Assistant Accounts
Officer.

MUHAMMAD SAJID MEHMOOD SETHI, J.- Through

instant petition, petitioner has challenged the vires of order dated
11.12.2020, passed by respondent No.3 / Accounts Officer
(Admn.), Lahore, whereby petitioner’s services as Junior Auditor
(BPS-11) were not regularized on account of not having minimum
prescribed qualification of 2nd Class Bachelor Degree in
Commerce, rather he was offered the post of Naib Qasid (BPS-01)
on contract basis. Petitioner has sought following relief from this
Court:-
“In view of the facts and submissions made above, it is,
therefore, most respectfully prayed that while accepting the
instant writ petition, the impugned order dated 11.12.2020,
passed by respondent No.3 whereby the petitioner is being
demoted from the post of Junior Auditor (BS-11) to Naib
Qasid (BPS-01) and impugned policy whereby the
qualification for the post of Junior Auditor has been
enhanced from C-Grade Diploma in Commerce to 2nd Class
Bachelor Degree in Commerce may kindly be set aside to
the extent of petitioner and petitioner may kindly be allowed
to perform his duty as Junior Auditor (BPS-11) in the light of
first appointment order dated 19.06.2013 and recruitment
policy for the year 2006 in the interest of justice, equity and
fair play.
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It is further prayed that the petitioner may kindly be

regularized from the date of his initial appointment as Junior
Auditor i.e. 19.06.2013.”

2. Learned counsel for petitioner submits that petitioner, being

eligible in all respects, was appointed as Junior Auditor (BS-11) on
19.06.2013 by the respondent-department while observing all the
codal formalities, therefore, he could not have been chunked from
the service with direction to join as Naib Qasid (BS-01) on the
pretext of revision in eligibility criteria. He adds that impugned
order is absolutely illegal and without any legal justification being
violative of Articles 4 & 9 of the Constitution of the Islamic
Republic of Pakistan, 1973. He contends that impugned revised
policy / notification must be given prospective effect and
petitioner’s vested right cannot be taken away by dint of
subsequent notification while giving it retrospective effect. In
support, he has referred to Mst. Farhana Naz and others v.
Government of Punjab and others [2014 PLC (C.S.) 1270], Mir
Hassan v. Province of Sindh through Secretary and 3 others [2017
PLC (C.S.) 864] and Malik Muhammad Hashim Awan and
another v. Chief Secretary Government of Punjab, Lahore and 3
others [2017 PLC (C.S.) 1085].
3. On the other hand, learned Law Officer defends the
impugned order.
4. Arguments heard. Available record perused.
5. Perusal of record shows that after death of petitioner’s father
on 29.04.2013, while serving as Divisional Accounts Officer (BS-
17), he applied for appointment under the Prime Minister’s
Assistance Package for the families of government employees who
die in service. Under the scheme, petitioner was entitled to be
offered appointment on regular basis as per his eligibility.
However, he was appointed on contract basis as Junior Auditor
(BS-11) vide office order dated 19.06.2013, which was kept on
extending upto 09.06.2022, thus, contractual employment of
petitioner is expanding over a period of almost 09-years creating
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expectancy of regularization of his services. However, petitioner

was encountered with an unexpected anomaly, whereby the
competent authority, instead of regularization, discontinued his
services as Junior Auditor (BS-11), on the basis of subsequent
change in qualification and experience criteria. Respondent-
authority erred in law to appreciate that regularization is not the de
novo appointment on regular basis of a contract employee subject
to possession of newly stipulated / added educational qualification
rather it is in fact confirmation of an existing employment. The
prescribed qualification for the purpose of regularization of
services of a contract employee should be that which was prevalent
at the time of his appointment. There is no denial to the fact that
petitioner was appointed as Junior Auditor as back as in the year
2013 and refusal to regularize and continue his services at this
belated stage on the ground of change of requisite qualification, in
pursuance of revised policy / rules introduced in the year 2014,
does not appeal to prudence. The regularization of services does
not create a new job, it only removes the lurking fear of sudden
severance of services of an employee and would make his
employment status equal to his contemporaries appointed on
regular basis on the same day. Reliance is placed upon Aftab
Ahmad and others v. Government of Punjab and others [2012 PLC
(C.S.) 602] and Dr. Kh. Khurshid Ahmad v. Government of Punjab
and others [2014 PLC (C.S.) 1068].
6. Needless to say that right accrued to a person cannot be
taken away on the strength of a subsequent notification / policy
and any notification which purports to impair an existing or vested
right, always applies prospectively in absence of any legal
sanction. It is well-settled that effect of a notification / policy
taking away certain rights would start from the date of its issuance
and only beneficial notification can operate retrospectively.
Reference is made to Collector of Central Excise and Land
Customs and 3 others v. Azizuddin Industries Ltd., Chittagong
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(PLD 1970 SC 439), Jawaria Maqsood v. Joint Admission

Committee for Medical Colleges through Chairman and 3 others
(2017 YLR 1571), Al-Noor Sugar Mills Limited and another v.
Federation of Pakistan and others (2018 SCMR 1792), Malik
Muhammad Hashim Awan and another v. Chief Secretary
Government of Punjab, Lahore and 3 others [2017 PLC (C.S.)
1085], Mst. Ameeran Mai v. I.-G. Punjab Police, Lahore and 2
others [2015 PLC (C.S.) 289], Province of Punjab through
Secretary to the Government v. Dr. Muhammad Zafar Iqbal and 10
others [2018 PLC (C.S.) 152] and Kanwal Rasheed v. Accountant
General, Punjab and others [2019 PLC (C.S.) 783].
7. The extraordinary constitutional jurisdiction of this Court is
always exercised with compassion and this Court cannot disregard
the fact that non-regularization and discontinuation of petitioner’s
services are the acts violative of right to livelihood. Reliance is
placed upon Naveeda Tufail and 72 others v. Government of
Punjab and others (2003 SCMR 291) and the case of Mst.Farhana
Naz supra.
In Naveeda Tufail’s case supra, the Hon’ble Apex Court,
while discussing right of livelihood, has ruled as under:-
“Employment for a common person is a source of livelihood
and a right of livelihood is an undeniable right to a person. If
work is sole source of livelihood of a person, then right to
work is not less than a fundamental right which has to be
given protection.”

8. In view of the above discussion, instant petition is allowed

to the extent that impugned order is declared to be illegal and
without lawful authority, thus, same is set aside.

(Muhammad Sajid Mehmood Sethi)

Judge
APPROVED FOR REPORTING

Judge
*A.H.S. /Sultan*