Muhammad Israr Minto VS CDA etc

ORDER SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

W.P.No.3154 of 2019 Muhammad Israr Minto Versus Capital Development Authority and others S. No. of order Date of order/ Order with signature of Judge and that of parties or counsel where / proceedings Proceedings necessary.

10.02.2022 Petitioner in-person.

Mr. Usman Rasool Ghuman, Advocate for the C.D.A. Mr. Haseeb Hassan, Advocate for M.C.I. Through the instant writ petition, the petitioner, Muhammad Israr Minto, seeks a direction to the Capital Development Authority (“C.D.A.”) to decide his case for promotion from BPS-18 to BPS-19 in accordance with the law.

2.The record shows that on 20.05.1985, the petitioner was appointed as Store Officer (BPS-17) in the C.D.A. On 03.02.1990, the petitioner, after having served as Store Officer (BPS-17) for five years, applied to the Chairman, C.D.A. to be considered for promotion to the post of Deputy Director (BPS-18) in accordance with the provisions of the Capital Development Authority Service Regulations, 1985 (“the 1985 Regulations”). It is not disputed that for a Store Officer (BPS-17) to be considered for promotion as Deputy Director (BPS- 18), the Promotion Policy, which is part and parcel of the said Regulations, requires a person to have served for five years as Store Officer (BPS-17) and to have earned three good Annual Confidential Reports (“ACRs”). The promotion is to be on the basis of seniority-cum-fitness.

3.Apparently, the petitioner had also submitted an application for the inclusion of his name in the seniority list of the executive cadre. The petitioner had complained that officers junior to him had been promoted.

4.Vide letter dated 02.09.1991, the Directorate of Personnel, C.D.A. informed the petitioner that he belonged to the Store Cadre, and that as per the 1985 Regulations, he will be considered for promotion to the post of Deputy Director (Stores) as and when a post was available. Furthermore, he was informed that he had no right to claim promotion in the Executive Cadre.

5.Vide letter dated 15.10.1991, the C.D.A. informed the petitioner inter alia that the post of Deputy Director (Stores) has been filled by promoting the senior most Store Officer.

6.After a gap of nine years, the C.D.A. informed the petitioner that he could not be considered for promotion to the Deputy Director (Stores) as the said post had been “liquidated by the competent authority.”

7.After a gap of another nine years, the petitioner submitted an appeal / representation to the Chairman, C.D.A. seeking his promotion to the post of Deputy Director (BPS-18). In the said appeal, it is mentioned that he had filed appeals on five occasions but the same had not been considered.

8.During the entire thirty one years’ service of the petitioner in the C.D.A., he had not been promoted. The petitioner retired from service on 26.02.2016 on attaining the age of superannuation. Three and a half years after his retirement, the petitioner filed the instant petition praying for a direction to the C.D.A. to promote him to BPS-18, BPS-19 and BPS-20 with effect from the dates when he became eligible for promotion. He also prayed for all back benefits to be paid to him. In effect, the petitioner is seeking proforma promotion.

9.The petitioner appeared in-person and, after narrating the facts leading to the fling of the instant

petition, submitted that he had been treated most unfairly by the senior management in the C.D.A. by not considering him to promotion to a post in BPS-18 during his entire thirty one years of service in the C.D.A.; that the petitioner had time and again submitted representations to the Chairman, C.D.A. to consider him for promotion but to no avail; that the petitioner was denied consideration for promotion while persons were appointed against the post of Deputy Director (Stores) from the Executive Cadre on transfer basis; that after 1992, four officers from the Engineering Cadre had been posted as Deputy Director (Stores) on the ground that the said post belongs to the Engineering Cadre; and that the petitioner ought to be considered for proforma promotion since he was denied consideration for promotion for reasons beyond his control.

10.On the other hand, learned counsel for the C.D.A. submitted that the petitioner joined the C.D.A. as Store Officer (BPS-17) on 20.05.1985 and retired from service on 26.02.2016; that there is no provision in the C.D.A. Employees’ Service Regulations, 1992 about proforma promotion or promotion after retirement; that the C.D.A. had requested the Ministry of Interior to clarify as to whether the guidelines for proforma promotion under Fundamental Rules-17 (“FR-17”) are only applicable to civil servants or would they apply to employees of C.D.A. as well; that the Finance Division, vide office memorandum dated 09.01.2019, has clarified that the guidelines on FR-17 are limited to cases of proforma promotion of civil servants as defined in Section 2(b) of the Civil Servants Act, 1973 and do not apply to the employees of C.D.A.; and that since the said Service Regulations has no provision for proforma promotion, the instant petition is liable to be dismissed.

11.I have heard the contentions of the petitioner as well as the learned counsel for the C.D.A. and have perused the record with their able assistance.

12.The facts leading to the filing of the instant petition have been set out in sufficient detail in paragraphs 2 to 8 above, and need not be recapitulated.

13.This Court sympathizes with the petitioner since during his entire thirty one years of service in the C.D.A., he was never considered for promotion from the post of Store Officer (BPS-17) to a higher post. The petitioner’s case is that by the year 1990, he had served as Store Officer (BPS-17) for five years and, therefore, became eligible to be considered for promotion to the post of Deputy Director (Stores)

(BPS-18).

14.If the petitioner was not being considered for promotion despite his representations, he could have approached the competent Court of law for the redressal of his grievances. The petitioner did not do so during his twenty six years of service after 1990 and waited three and a half years after his retirement before filing the instant petition wherein he has sought a direction to the C.D.A. to grant him the benefits of an officer promoted to a post in BPS-18 in the year 1990 and of the posts in BPS-19 and 20 from the dates when he became eligible for promotion to the said posts. The petitioner did not come up with any plausible explanation for the inordinate delay in approaching this Court.

15.FR-17(1) reads as follows:- “FR-17(1) subject to any exceptions specifically made in these rules and to the provisions of sub- rule(2), an officer shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date when he assumes the duties of that post and shall cease to draw them as soon as he ceases to discharge those duties.

Provided that the appointing authority may, if satisfied, that a civil servant who was entitled to be promoted from a particular date was, for no fault of his own, wrongfully prevented from rendering service to the Federation in the higher post, direct that such civil servants shall be paid the arrears of pay and allowances of such higher post through proforma promotion or up-gradation arising from the ante-dated fixation of his seniority.”

16.It is not disputed that neither the 1985 Regulations nor the C.D.A. Employees’ Service Regulations, 1992 (“the 1992 Regulations”) have any provision for proforma promotion akin to FR-17, which is applicable only to civil servants. It is an admitted position that employees of the C.D.A. are not civil servants therefore, FR-17 does not apply to them.

17.FR-17 applies to civil servants. Additionally, it applies to the employees of the organizations which have adopted the provisions of FR-17 in their respective Service Regulations. Regulation 3.03(2) of the 1992 Regulations provides that in all matters not expressly provided for in the said Regulations, employees shall be governed by appropriate rules, orders and instructions of the Federal Government made applicable to the employees by orders of the Authority with such changes as considered necessary.

18.There is nothing on the record to show that the Authority (i.e., the C.D.A.) had made the provisions of FR-17 or any of the Fundamental Rules applicable to employees of the C.D.A. The provisions of the Fundamental Rules do not apply on their own force to the employees of the C.D.A. Since there is no concept of proforma promotion under the said Regulations, which governed the terms and conditions of the petitioner’s employment with the C.D.A., the petitioner has no legal basis for seeking the issuance of a writ directing the C.D.A. to consider him for proforma promotion.

19.The petitioner has relied on an office order dated 11.07.1997 in support of his contention that the C.D.A. had been granting ex-post facto or proforma promotions to employees in the C.D.A. The said contention has no force since the said office order is for move-over of the employees of the C.D.A. on the basis of recommendations of a committee constituted by the Government. Move-over cannot be equated with promotion. In the case of Ch. Muhammad Nawaz Vs. The Federal Government Employees Housing Foundation (2018 PLC (C.S.) 352), I had the occasion to hold as follows:

“14. A move over is simply an extension in an employee's pay scale. It is well settled that a move over from one scale to another does not amount to a promotion, but it is awarded to an incumbent after reaching the maximum of his substantive scale. A move over cannot be equated with a promotion. It is a sort of a financial aid to an employee who otherwise fulfills all the qualification for a higher grade but cannot be promoted for want of a vacancy or a post. In the cases of Muhammad Rafique v. Management Director (WAPDA) (1995 SCMR 1549), and Tanvir Ahmad v. Chief Secretary, Government of Punjab (2004 SCMR 647), it has been inter-alia held that a more over should not be considered as a promotion to a post in a higher pay scale.”

20.In view of the above, I do not find any merit in this petition, which is accordingly dismissed with no order as to costs.

(MIANGUL HASSAN AURANGZEB)

JUDGE

Ahtesham*