Sher Badshah V s Govt. of Pakistan etc

Judgment Sheet

IN THE PESHAWAR HIGH COURT,

PESHAWAR

(Judicial Department)

WP No. 3253-P/2014.

Sher Badshah etc Vs Government of Pakistan, etc.

JUDGMENT

Date of hearing. 27.10.2016

Petitioner(s) by: Mr. Khalid Rehman Advocate.

Respondent(s) by: Mr.Manzoor Khalil DAG alongwith Mr. Ijaz Anwar Advocate.

ISHTIAQ IBRAHIM, J:- Sher Badshah, Syed Hussain Shah, Shah Jehan, Muhammad Jamal Badshah, Taj Farosh, Gohar Rehman and Abdul Hamid, petitioners, craves the indulgence of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, with a prayer that:-

“On acceptance of this Writ Petition this Hon’ble Court may graciously be pleased to declare the acts and actions of

Respondents and the impugned order communicated vide letter dated 22.9.2014 as without lawful authority and hence of no legal effect and this august Court may further be pleased to direct the respondents to act in the matter in accordance with law and to extend the benefit of up-gradation to the petitioner in the light of the office Memorandum dated 4.7.2011 issued by Respondent No.1 and to issue the petitioner revised LPC and accordingly to revise his pension also with all ancillary back benefits.”

2.Petitioners were serving in Afghan Refugees Organization as “Refugee Village Administrator(BPS-16)” who were appointed in the years, 1980, 1981 & 1984 respectively. After attaining the age of superannuation, they got retired from their service on different dates. After their retirement, the post of “Refugees Village Administrators” was upgraded from BPS-16 to BPS-17 by the Commissioner Afghan Refugees Khyber Pakhtunkhwa w.e.f. 01.01.2013, in pursuance of Establishment Division O.M. No.8/150/2008-R-I dated 13.7.2012, Finance Division (Regulation Wing) O.M NO.F.1

(47)-R-I/2012-940 dated 7.1.2012 and approval of Secretary M/O SAFRON vide letter No.F.I (13) RM/2008 dated 11.01.2013 regarding the upgradation of the post of

(43)Refugees Village Administrators from BS-16 to BS-17.

Lateron, a corrigendum was issued vide No.CAR/Admn/Up-Gradation/RVA/525-33 dated 11.7.2013 by the Commissioner Afghan Refugees Khyber Pakhtunkhwa that:

“This Commissionerat Notification No.

CAR/Admn/Up-Gradation/RVA/16-24 dated 15.1.2013, regarding up- gradation of the pay scales of the post of Refugees Village Administrator (RVA) from BS-16 to BS-17, may be read as, ”the post of Refugees Village Administrator(RVA) is up-graded from BS-16 to BS-17 w.e.f 31.03.1991 instead of 01.01.2013.”

Sensing that retrospective effect of up-gradation from BS- 16 to BS-17 has been given since 31.3.1991 and that at that time petitioners were in serving in the said department, initially Sher Badshah, petitioner, approached this Court by filing the present Writ Petition

No.3253-P/14 but lateron during pendency of instant petition, Said Hussain Shah, Shah Jehan, Muhammad Jamal Badshah, Taj Farosh, Gohar Rehman, Abdul Hamid and Muhammad Riaz filed CMs 213-P/15, 273-P/15 and 299- P/15 on different dates for their impleadment as petitioners in the present Writ Petition, which were allowed on 25.2.2015 and 18.6.2015 respectively and their names were ordered to be written in the panel of petitioners with red ink.

3.After putting on notice, the respondents submitted their comments, raising therein factual and legal objections and stated that being retired servants, the petitioners cannot be treated at par with the serving employees.

4.Arguments of learned counsel for the parties, learned DAG for Federation heard and material available on file perused.

5.There is no denial of the fact that petitioners were serving as “Refugees Village Administrator BPS-16)” which posts were now upgraded from BS-16 to BS-17 with retrospective effect from 31.3.1991, on which date all the petitioners were serving and retrenched from service long after the said date by attaining the age of superannuation.

Though now petitioners have retired from their service but retrospective effect from 31.3.1991 has been extended for up-gradation of post of “Refugees Village Administrator” from BPS-16 to BPS-17 therefore, petitioners are also entitled for the benefit of said upgradation with retrospective effect. Had the said notification of up-gradation been issued in time the petitioners would have also been entitled, but since they are retired employees their case was not pleaded by the employer/ respondents with no fault of their own. Since the Government itself has given the effect to the notice of up-gradation with retrospective effect for the year 1991

and as such petitioners are entitled to the up-gradation and retiring benefits in the up-graded posts, in which they got retired.

6.Earlier this Court while allowing Writ Petition No.1709/2010, titled, “Muhammad Raziq & others Vs Government of Pakitan & others” & Writ Petition No.3008-P/2012, “Abdul Sattar Khan & others Vs Government of Pakistan etc” has granted such relief to the retired employees of Commissioner, Afghan Refugees Commissionerat, vide order dated 16.6.2016, therefore, petitioners being “similarly placed employees” are also entitled to the same relief under the principle of consistency and equality before law as per the judgment laid down by the Hon’ble Supreme Court of Pakistan in the cases of “Hameed Akhtar Niazi Vs The Secretary Establishment Division, Government of Pakistan & others” (1996 SCMR 1185), “Tara Chand and others Vs Karachi Water and Sewerage Board,Karachi & others”

(2005 SCMR 499). Likewise, in case of “Government of Punjab, through Secretary Education, Civil Secretariat, Lahore and others Vs Sameena Parveen and others” (2009 SCMR 1) it has been held by the apex Court that;

“When a Tribunal or Court decides a point of law relating to the terms of service of a civil servant which covered not only the case of civil servant who litigated but also of other civil servants, who might have not taken any legal proceedings, the dictates of justice and rule of good governance demand that the benefit of the decision be extended to the other civil servants, who may not be parties to that litigation instead of compelling them to approach the Tribunal or any other legal forum.”

7.In view of above discussions as well as case law cited above, we are of the firm view that the petitioners of instant case are at par with the petitioners of Writ Petition No.1709/2010 and WP No.3008-P/2012 decided on 16.6.2016 by this Court, therefore, petitioners being similarly placed employees” are also entitled to the up-gradation and retiring

benefits in the up-graded posts, in which they got retired.

Consequently this Writ Petition is allowed as prayed for.

Announced:

JUDGE

JUDGE

“A.Qayum”`