Mst. Bakht Haram Vs Govt. of KPK

JUDGMENT SHEET

PESHAWAR HIGH COURT PESHAWAR

JUDICIAL DEPARTMENT

Writ Petition No. 2178 of 2013

JUDGMENT

Date of hearing 01.03.2016

Appellant/Petitioner (Mst. Bakht Haram and 3 others) by Mr. Khalid Rehman, Advocate.

Respondents (Govt of KPK and 6 others) by Mr. Waqar Ahmad Khan, AAG.

MAZHAR ALAM KHAN MIANKHEL, CJ.- The

petitioners in these Writ Petitions, being employees in various Government departments, have prayed for their upgradation, which has been denied to them on the basis of impugned Notification/Policy dated 13.11.2012 of the Department.

2.On 02.06.2015, during the course of

arguments before a learned Division Bench of this Court, the learned counsel for the parties informed the Court that different views have been taken by this Court in the matter. In two of the judgments this Court has

held that the matter of upgradation is not a term and condition of service but in one of the judgment it was held that upgradation is a term and condition of service, so the aggrieved person cannot invoke the jurisdiction of this Court due to the bar contained in Article-212 (3) of the Constitution of Islamic Republic of Pakistan,

3.In view of the above, the matter was referred to the Chief Justice for constitution of a larger bench;

hence this larger bench is seized of the matter.

4.Perusal of the order sheet dated 02.06.2015 of the learned Division Bench would reveal that the august Supreme Court of Pakistan had already granted leave to appeal on the subject of upgradation.

5.Today, the learned counsel for petitioners produced copy of the judgment of Hon’ble Apex Court in Civil Appeals No.101 & 102-P of 2011, delivered by

a learned Bench of five members headed by the Honourable Chief Justice of Pakistan, wherein it is held that upgradation does not come within the domain of terms and conditions of service. The relevant observations of their lordships of the Apex Court are reproduced here as under:-

“The aforesaid definition of the expression “Upgradation” clearly manifests that it cannot be construed as promotion, but can be granted through a policy. In fact, this Court in the judgment titled as Ali Zahar Khan Baloch vs. Province of Sindh (2015 SCMR 456) and an unreported judgment of this Court passed in the case of Chief Commissioner Inland Revenue and another vs. Muhammad Afzal Khan (Civil Appeal No.992 of 2014) has held that the issue relating to upgradation of civil servants can be decided by a High Court in exercise of its constitutional jurisdiction and bar contained under Article 212(3) of the Constitution would not be attracted. The policy of upgradation, notified by the Government, in no way, amends the terms and conditions of service of the civil servant or the Civil Servants Act and or the Rules framed there- under. The Service Tribunals have no jurisdiction to entertain any appeal involving the issue of upgradation, as it does not form part of the terms and conditions of service of the civil servants.”

When the learned counsel for the parties were asked as to whether the Policy in question has been framed under the Civil Servants Act or the rules framed thereunder, they replied in the negative and stated that the Policy in question has independently been formulated.

6.So, in this view of the matter, the question referred to this larger Bench is answered in the term that upgradation being not a term and condition of service, the grievance of a petitioner can be looked into in the constitutional jurisdiction of this Court. The following writ petitions, having similar point for determination, now will require decision on their respective merits.

1)W.P.2178/2013 (Mst. Bakht Haram etc vs. Govt. etc.)

2)W.P.No.3194/2014 (Fayyaz Khan vs. Govt. etc.)

3)W.P.1714/2015 (Intizar Ali etc vs. Govt. etc.)

4)W.P.1259/2015 (Hidayatullah etc. vs. Govt. etc.)

5)W.P.40/2016 (Muhammad Tariq etc. vs. Govt. etc.)

6)W.P.54/2016 (Muhammad Usman etc vs. Govt. etc.)

7)W.P.143/2016 (Hayatullah etc. vs. Govt. etc.)

8)W.P.644/2011 (Shaukat Ali etc. vs. Govt. etc.)

9)W.P.2757/2014 (Arshid Ali vs. Govt. etc.)

10)W.P.3386/2014 (Abdul Qayum etc. vs. Govt. etc.)

11)W.P.3742/2014 (Abdul Aziz vs. Govt. etc.)

12)W.P.1975/2015 (Qasim Jan etc. vs. Govt. etc.)

13)W.P.27/2012 (Amir Muhammad vs. Govt. etc.)

14)W.P.No.2089/2012 (Halim Said etc. vs. Govt. etc.)

15)W.P.3199/2012 (Qari Shamsuddin etc. vs. Govt. etc.)

16)W.P.1075/2013 (Said Farooq Shah etc. vs. Govt. etc.)

17)W.P.3232/2014 (Ishfaq Ali vs. Govt. etc.)

18)W.P.3343/2014 (Mohammad Khalid vs. Govt. etc.)

19)W.P.No.556/2015 (Dr.Iqbal Begum vs. Govt. etc.)

20)W.P.417/2015 (Muhammad Ali etc. vs. Govt. etc.)

21)Review Petition in W.P.No.2019/2013 (Abdul Hakeem vs. Govt. etc.)

22)W.P.1342/2015 (Roidad Khan etc. vs. Govt. etc.)

23)W.P.2144/2015 (Nadir Khan etc. vs. Govt. etc.)

24)W.P.660/2015 (Ahmad Saleem etc. vs. Govt. etc.)

25)W.P.110/2015 (Mian Aziz Ahmad vs. Govt. etc.)

26)W.P.897/2015 (Raziullah Khan vs. Govt. etc.)

27)W.P.2928/2015 (Muhammad Kamran vs. Govt. etc.)

28)W.P.3255/2015 (Muhammad Bashir Khan vs. Govt. etc.)

29)W.P.3025/2015 (Muhammad Arif vs. Govt. etc.)

30)W.P.1612/2015 (Muhammad Ismail vs. Govt. etc.)

31)W.P.3366/2015 (Muhammad Ali vs. Govt. etc.)

32)W.P.4444/2015 (Aziz-ur-Rehman etc. vs. Govt. etc.)

33)W.P.3818/2015 (Dr.Umar Ayub Khan vs. Govt. etc.)

34)W.P.3102/2014 (Najeebullah etc. vs. Govt. etc.)

35)W.P.3060/2015 (Mujeeb-ur-Rehman etc. vs. Govt. etc.)

36)W.P.2175/2014 (Insha Ullah Khan vs. Govt. etc.)

37)W.P.3303/2014 (Inshaullah etc. vs. Govt. etc.)

38)W.P.1709/2010 (Mohammad Raziq etc. vs. Govt. etc.)

39)W.P.3750/2014 (Irshad Akbar etc. vs. Govt. etc.)

The main judgment is placed on the case file of W.P.

No. 2178/2013. The office is directed to fix the above writ petitions before the learned Division Benches of this Court for decision on merits and in accordance with law.

Announced

01.03.2016 CHIEF JUSTICE

JUDGE

JUDGE

A.Mateen