Dr Qurban Ali etc Vs Province of Punjab etc

For No: HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Writ Petition No.41383 of 2020.

Dr. Qurban Ali. Versus Province of Punjab and others. S.No. of order/ Date of order/ Order with signature of Judge, and that of parties of proceeding Proceeding counsel, where necessary

(9)31.01.2022. Mr. Hafiz Tariq Naseem, Advocate, M/s Muhammad Salman Ullah Khan, Usman Shafique Butt, Zeeshan Ghani Sulehria, Muhammad Nouman Shamas Qazi, and Jalil- ur-Rehman Butt, Advocates for the petitioners. Mr. Shahid Abrar Basra Advocate assisted by Mr. Zeeshan Afzaal Hashmi, Advocate for petitioners in W.P.43628/2021.

Mr. Zafar Rahim Sukhera, Assistant Advocate General.

This constitutional petition along another constitutional petition bearing W.P. No. 43628 of 2021 calls for enforcement of Notification No. SO(A-I)7-63/2017 of 05.06.2018 (‘Notification’), whereunder certain benefits are allegedly claimed by the petitioners.

2.Grievance primarily is that benefits of the Notification are denied. It is alleged that petitioners held scale BS-18 + 165 – Special

Pay [commonly claimed by the petitioners], which was merged with BS-19 on the introduction of 4-Tier Service Structure in the Research Wing of the Agriculture Department, province of Punjab, but elevation, by fiction of law, was not considered while considering promotion to the grade, next to the upgraded posts. Brief facts are that petitioners, to the instant petition, were appointed on contractual basis, and their services were later regularized upon invoking Punjab Regularization of Services Act, 2018. Since the controversy hinges on the construction of Notification, it is expedient to reproduce the terms of the Notification.

“The Governor of the Punjab has been pleased to approve the re- Structuring of Research Wing of Agriculture Department under the 4-Tier Service Structure in the ratio of 3:19:36:42 for BS-20, 19, 18 & 17, respectively, for 1081 officers of Research Wing of Agriculture Department subject to following conditions:

i. The existing scale BS- 18+Rs.165/Special Pay is merged with BS-19 on introduction of 4-Tier Service Structure in the Research Wing.

ii. 4-Tier Service Structure is allowed to the officers/ researchers from BS-17 to BS-20 with the ratio of

iii. Research Allowance @ 25% of initial basic pay to 1081 officers of Research Wing of Agriculture Department.

iv. The service Rules shall be framed under the 4- Tier Service Structure through Service Rules Committee after identification of posts.

v. The Service Structure will be implemented after framing of Service Rules.

vi. After the implementation of approved service structure, further promotion of the officers will purely be performance based subject to a strict and quantitative Performance Appraisal

System as approved by the competent authority.

vii. The approved Quantitative Performance Appraisal System for the BS-17 to BS-20 officers of the Research Wing of Agriculture Department will replace the ACR/PERs form in vogue.

2.Promotions to the upgraded posts will be made strictly in accordance with amended Service Rules approved by the Service Rules Committee in the S&GAD.”

[Emphasis supplied]

3.Learned counsel argued that petitioners were appointed against distinctive post(s), classified as BS-18 + 165-SP –, which per se merged in BS-19, and benefit whereof was denied, while ignoring the upgraded status of the petitioners to BS-19, which affected their promotion prospects. Learned counsel referred to another Notification dated 19.08.2020 to show that persons serving in BS-18 + 165-SP were shown as Principal Scientists in scale

BS-19, which status was denied to the petitioners. In essence, the case of the petitioners is that by operation of law – upon promulgation of Notification of 05.06.2018 – they stood elevated to scale BS-19, which upgradation need to be given effect in the service rules. Attention of learned counsel was drawn to paragraph 2 of the Notification, he responded that promotion(s) to the upgraded posts will be made according to the amended service rules, introduced by way of Notification dated 03.10.2019, but incidentally, scale BS-18 + 165-SP was conspicuously missing in the amended rules, and petitioners were, for all intent and purposes, were treated in BS-18 instead of placing and identifying them in upgraded scale of BS-19. Adds that appointment of the petitioners was against distinctive post, which stood merged in BS-19, who drew support from the report / para-wise comments filed by the respondents No.1 and 2. Learned counsel

representing petitioners in

W.P.No.43628/2020 adopted the submissions and emphasized that vested right has been extended to the petitioners, upon issuance of the Notification.

4.Conversely, learned Law Officer opposed petition on the plea of maintainability and merits. Submits that promotion of the petitioners shall be made in accordance with the amended Service Rules and no claim to promotion could be made simplicitor in the guise of up-graded posts, financial benefits whereof have been availed by the petitioners.

5.Arguments heard and available record perused.

6.Petitioners seek declaration that same be treated in scale BS-19, pursuant to merger effected through the Notification. There is no dispute qua the terms of the Notification, and only its implementation is sought by way of declaration that upgradation be treated as

equivalent to regular promotion. It is not disputed that upgradation was offered in terms of the Notification, which is erroneously treated as regular promotion. Paragraph-2 of the Notification is clear, which indicates that promotion to the upgraded posts shall be in accordance with the amended rules, which provides for the promotion and conditions thereof.

7.The terms of Notification are

misconstrued and mere upgradation of post cannot be treated or considered as promotion to the higher grade. Notification nowhere suggested that upgradation was a substitute to the mechanism of regular promotion, which otherwise was subject to the conditions prescribed under the rules. Validity of the amended rules is not under challenge. The interpretation proposed is contrary to law, service rules and plethora of judicial pronouncements. Guidance is sought from

ratio settled in the case of “FEDERAL PUBLIC SERVICE COMISSION through Secretary. Vs.

ANWAR-UL-HAQ (PRIVATE SECRETARY)

ISLAMABAD and others” (2017 SCMR 890), relevant portion whereof is reproduced hereunder.

“9. Upgradation is not a promotion, as generally misunderstood.

Upgradation is carried out without necessarily to create posts in the relevant scales of pay it is carried out under a policy and specified scheme as done in the instant case through subject O.M. dated 23.12.2011. It is resorted only for the incumbents of isolated posts, which have no avenues or channel of promotion at all. Upgradation under the scheme is personal to the incumbents of the isolated posts to address stagnation and frustration of incumbent on a particular post for sufficient length of service on particular post without any progression or avenue of promotion. Post of Stenographers / Private Secretaries is one of such kind of post, which has no avenues or channel of promotion to higher grades as may be available to other incumbents in civil service. Upgradation is carried out under a scheme and or a policy to incentivize and to encourage and to give financial benefits without creating additional vacancies of higher grade, upgradation by no standards could be treated and or considered as promotion to higher

grade. Incumbent occupying ungraded post retain their substantive grade.

[Emphasis supplied]

8.Upgradation claimed, in the wake of plea of promotion upon merger in BS-19, cannot be construed as promotion – treating petitioners to be promoted to the substantive post in scale BS-19. The expression, promotion and up gradation are distinct, as held in the case of

“REGIONAL COMMISSIONER INCOME

TAX, NORTHERN REGION, ISLAMABAD

and another. Vs. SYED MUNAWAR ALI and others” (2016 SCMR 859), relevant portion whereof is reproduced as under:- “We have heard the learned Counsel for the parties and have perused the record. The expression “upgradation” is distinct, from the expression “Promotion”, which is not defined either in the Civil Servants Act or the Rules framed thereunder, and is restricted to the post (office) and not with the person occupying it. The upgradation cannot be made to benefit a particular individual in term of promotion him to a higher post and further providing him with the avenues of lateral appointment or transfer or posting”.

[Emphasis supplied]

9.No exception can be taken in the case of the petitioners, by treating upgradation as

promotion. Promotion of the petitioners shall be considered in terms of the applicable rules. Notification cannot be construed to provide any shortcut or jump-over to the promotion. Claim of the petitioner, to treat upgradation, disguised as promotion is dismissed. Since there is no dispute qua factum of terms and conditions of Notification, hence, no comments required. Mere change of nomenclature of the post for sake of restructuring, effecting merger, cannot be construed, or equated with promotion, to the prejudice of other civil servants. Arguments, to tacitly treat terms of Notification superior to the rules, are fallacious. Terms and conditions of the Notification were subjected to the service rules. This petition seeks declaration to declare petitioners promoted to BS-19, which declaration if made – would violate the law/rules. Guidance is solicited from the ratio in the case of “Lt. Col. (R.) ABDUL WAJID

MALIK. VS. GOVERNMENT OF THE

PUNJAB and another” (2007 PLC (C.S) 617). Relevant portion whereof is reproduced hereunder:

“The petitioner was at the outset asked as to whether he was ever promoted in grade-21, the answer was in negative. How the petitioner could have claimed the benefits of upgradation of the post of DG O&M from BS-20 to BS-21

merely on the ground that the post was upgraded because upgradation of the post simplicitor does not confer any right on the petitioner qua benefit of upgradation because he was never promoted against the upgraded post. ***” [Emphasis Supplied]

10.Petitioners were regularized against the substantive posts held by them, to which letter / order no objection was raised – though said regularization was made after the issuance of the Notification. [Evident from the letter at page 19 of this petition – Annexure-F]. Petitioners were employed in BS- 18+Rs.165/SP, who were regularized in same grade and their posts were upgraded, in respect whereof financial benefits are drawn and their promotion prospectus are being considered for BS-19, as per the service rules. I do not find any misreading of the Notification. Upgradation simplicitor is a lateral movement but not promotion.

11.There is another aspect. Posts in BS-19 and above for the purpose of promotion(s) are deemed as selection posts, which are required to be filled on selection-cum-merits basis, and petitioners could not claim promotion to the selection posts, simplicitor upon purported merger / upgradation, in the guise of

Notification – which per se subjected promotions to the upgraded posts in accordance with the amended service rules. This court will not embark up on an exercise to review the terms and conditions of service, in garb of plea for enforcement of Notification. Any grievance with respect to terms and conditions of service can be raised through invoking remedies provided by law – no such remedy is available before this Court in the wake of jurisdictional limitation placed in terms of Article 212(2) of the Constitution of Islamic Republic of Pakistan, 1973.

12.In view of the above, no right can be claimed to promotion to substantive grade of BS-19 in the guise of merger / upgradation under the Notification.

13.Petitions are not maintainable in law and same are dismissed. No order as to the costs.

(ASIM HAFEEZ)

JUDGE

Approved for Reporting.

*Imtiaz Nasir*