Fida Muhammad Vs Government of Khyber Pakhtunkhwa through Secretary Local Government Election & Rural Development Department Peshawar & others

JUDGMENT SHEET

PESHAWAR HIGH COURT

ABBOTTABAD BENCH

(ludicial Department) WP No. 1648-A/2022

I-ida Muhammad (Petitioner)

v/s Government of Khyber Pokhtunkhwu through Secretary Locttl Government Elections & Rural Development Deportment, Peslrawor & others ------(Raspondents) Prcsent: Mr. Abdul Rchman Qadir, Advocate, lbr the petitioner.

Malik Amjad Anayat, learnod AAG lor the rcspondcnts No. I to 4.

Raja Yasir Ayaz Kiyani, Advocatc. lor thc respondent No.5.

Date of hearing: 01.11 .2023

JUDGMENT

MUI{AVIMAD IJAZ J.- Pctitioncr has filed the instant constitutional pctition, under u\rticle i99 of The Constitution of Islamic Itcpublic ol Pakistan 1973, with the following prayer;

"It is, therefore, respectfully prqted thul otl occeptunce o.f lhe instuttt writ petitiott, the reqtondenls be directed to aword up-grorlotiort to the petitiotter in BPS-14 w.e..f 20.05.2014 us uwurded to the other enrployees, with ull huck bcneJits trrrtl consequentiul relief.s, rlitlt cosl. At41: other rclief, w,lriclt tltis llonouruble Court deenr just utrd oppropriote, in tlrc given circuwslfirtcas of the instanl cusc, mil.y also grociottsl-1: he fr ttvyurded.

7 Prccisely, the facts of thc casc as; tr)cr thc contents of the instant petition arc that thc:

prcsent petitioner is an clntr)loyee o1' l'hc l(hyl.rcr (D.tl.) Ilotr't,lt JIr. Jrrstire Knurrn II:'!.rl trIin"t t'rt .t \Ir. Justicc llrhinrrrrrl ljrz Khar

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Pakhtunkhwa Local Council Board and presently working as license inspector in BPS-ll in the Tehsil Municipal Administration, Haripur. It is {urther pleaded that in the year 2014 the Government of Khyber Pakhtunkhwa through Finance Department has issued a notification dated 20.05.2014 whereby different posts of ministerial staff comprising of Superintendent, Assistant, Senior Clerk and Junior Clerk wcre upgradcd, which notification was also adopted by thc respotrdent board in verbatim vide notification dated 15.08.2014 and accordingly the incumbcnt of the said posts were also upgraded vide a formal office order dated 26)02015 whcrcby the employees of the Tehsil Municipal Administration I{aripur including the present pctitioncr werc upgraded liom BPS-9 to BPS-1l, howcvcr, the grievance of the petitioner is lhat respondcnt was required to upgrade him to BPS-14 instead to BPS- I1, therefore, he has approached to this Court 1'or the necessary direction to upgrade the scalc of thc pctitioner from BPS-9 to RI'}S-14.

3.When this case was taken uP for

hearing on 01.11.2023 respondents werc put on notice and they were directed to submit thcir (D.8.) IIon'blc XIr. Justice KaDrrn thynt .Uirnkhcl & Mr. Jtrstice Nluh^mnrxd Ijlz Khln

para-wise comments which they have accordingly subrnitted.

4" Arguments of both the learned counsel fcrr the parties were heard in considerable detail and the record perused with their able assistance.

5.The maitt emphasis of the iearned counsel for the petitioner was that since as pcr notification of the Finance Department Governrtent of Khyber Pakhtunkhwa dated 20.05.2014 which was also adopted by the respondent No.3 vide notification dated 15.08.2014 whereby the post of senior clerk has been upgraded from BPS-9 to IIPS-14 therefore, respondents are rcquircd to upgrade him to BPS-14, however, when learnccl counsel for the petitioner was confronted that as to from where he has withdrawn this wisdom that petitioner would be granted the upgraded scale of a senior clerk as when he is performing his duty as a license inspector, though he was unable to rcply any satisfactory answer but took the plea that responderrt may treat the post of license inspector equal to the senior clerk.

6, During the course of arguments learned counsel for the petitioner was alstl ( D B') I I on' br'c N I r' il:llff $ti','i :,llil l "|i);:i,'1,""'

confronted that there is no reference of upgradation of the post of license inspector as as stated herein above that only posts of Superintendent, Assistant, Senior Clerk and Junior Clerk have been upgraded, whereas, the post of license inspector is nowhcrc mentioned in the subject notification and even thcn the post of petitioner has been upgraded from IIPS- 9 to BPS-I1, for this too he could not satisfactory explained and remained stick to his stance that respondents should treat the designation of liccnse inspector as senior clerk, however, we failed to understand that all the posts whether senior clcrk, water rate inspector or site inspector or liccnse inspector have their different job description and it is entirely the domain of the respondcnts to upgradc the post of a pafticular set of employe e and to leavc the other unchanged.

7.It is also relevant to mention here that the learned cotlnsel for the petitioner made much emphasis that petitioner has been discriminated, however, we failed to understand the phenomenon of discrimination as interpreted by thc learned counsel fbr the petitioner as discrimination could bc clairned only if an employce of thc samc class is treated clifferentlY, we askcd hirn that as to whethcr (D.8.) Hotr'bte }Ir. Justice Knnrr^n Itnyat NlinilLIel & IvIr. Jrrstice llulriDrnrrd Ijiz Kh2il

any license inspector has been grantcd BPS-14 his reply was in negative, when such being the position then it is within the authority of the rcspondcnts to award upgradation to a particular class of employce and denied the same to the other on the basis of principle of intelligible differentia. In the case of Jaltansir Sarwar and o ers Versus Lahore Hish Court and unother reported as 2O1I SCMR 363 the Hon'ble Apex Courl has held that it is wcll settled by now that "equality clause does not prohibit different laws for those differently circumstanced provided a rational standard is laid down to guide the discretion of the relevant Authority to choose the appropriate law. A State may classify pcrsons and objects for the purpose of legislation and make laws applicable only to pcrsons or objects within a class. In lact almost all legislation involve s some kind o l' ry olassification whereby some pcople acquire r:ights or suffer disabilities which othcrs do not. Expression "equal protection of laws" rJoes not place embargo on power of Statc" (D.R.) IIoil'blt llr..luslict Krnrrnn llal'at Nlianhhtl & Ilr. lilstice Nluhnn)ilrnrl litz Khin

to classif,z either in adoption of police laws, or tax laws, or eminent domain laws" rathcr gives to State exercise of widc scopc of discretion, of course, nullifying "what is without any reasonable basis". l'he State has the power of what is known as "classification" on the basis of rational distinctions relevant to the particular subject dealt with. Classification may be due to geographical situation or it may be based on territorial, economic, communal and other similar considerations. The Constitution itself contemplates passing of different laws for different provinces by their respcctivc legislatures. The doctrine of reasonable classification is founded on the assumption that the State has to perform multifarious ry activities and deal with a vast number of problems. It, therefore, should have the power to make a reasonable classification of persons and things, to whom diffcrcnt treatment may be accorded, provided there is (D.8.) Hotr'ble )Ir. Juslice Krilrrrn IIxrit Ilirilk}tl & NIr. Justice Iltrhinrnrr(l I.irz Khril

legitimate basis for such difference the State can make laws to attain special objects, and the administrative authorities may make classification, in pursuance of such laws. In the case of Ghulam Mustafa Insari and 48 ot Versus Government of The Puniah and otlters reported as PLD 2004 Supreme Court (Pak.) 1903, the Hon'ble Apex Courl has held that thc cquality is amongst-equals and un equals cannot be treated as equals. Reliance could also be madc on thc casc titled I.A Sharwani and other, Versus Government of Pakistan throutlh returv.

Finunce Islsmahad and others rcporlcd as 1991 1041. We understand that the respondents have upgraded the posts of clcrical/ ministerial staff only which cornprising of Superintendent, Assistant, Senior Clcrk and Junior Cierk and as the petitioner does not belong to thc 4- said category of employee, thereforc, he could not claim the upgradation of his post lrom lll'}S-9 to

BPS- 1 4

8 Learned counsel for the pctitioncr also made reference to the order of this Court dated 15.02.2023 passed in COC No.Ol-A12020 whereby (D.8.) Ilotr'ble Ntr. Jilslice Kamran llaJ-lt Nlinnkhel & Mr. Justice Nluhinrmid l.iflz Khril

the respondents were directed to adhcrc to the ordcr of the learned Labour Couft, granting thc pctitioncr BPS-14. l-Iowever, subsequently thc pctitioncr filed another COC No.03-4/2021, whcrc the said anomaly has been explained and it has bccn observed that the plea of the petitioncr bcl'orc thc Labour Court was that he may be promotcd to lll'}S- 9 and he has never prayed before thc Labour Courl for his promotiorVupgradation to IIPS- 14, thcrcforc, any directions in the order of this Court datcd 15.03 .2021 for grant of BPS-14 may bc a clcrical rnistake or it may be the result of impropcr assistance as by than was not at all thc casc of pctitioner and he was contesting his casc Ibr- thc grant of promotion to BPS-9 and not for []PS-14, therclbrc, such ground of thc pctitioncr too is misconccived.

9.For the afore-stated rcasons, this writ pctition being bereft of any mcrit is dismisscd.

Ann Dt.01.11.2023

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.IUDG

(D,8.) IIou'ble Nlr. Jrrstice Kamratr lli)at IIixilLh(l & IIr. Justice \tuhlilrilrr(l I.i{z Khril