Amin-ur-Rehman etc Vs Govt. of KPK

JUDGMENT SHEET

PESHAWAR HIGH COURT,PESHAWAR

JUDICIAL DEPARTMENT)

Writ Petition No.433-P of 2014.

Amin ur Rehman & others..Petitioners.

Versus.

Government of KPK etc.Respondents.

J U D G M E N T.

Date of hearing 17.03.2015

appellant/Petitioner by Abdul Ghaffar, Advocate.

Respondent by Mian Arshad Jan, AAG.

WAQAR AHMAD SETH,J:- Through this single judgment/order we intend to dispose of this writ petition as well a connected WP No. 2948-P of 2014 as common question of law and facts are involved.

2- Petitioners in both the writ petition have called in question the amendment brought about vide notification dated 13th November 2012, whereby the post of SET BPS-16, with new nomenclature as SST, BPS-16, meant for promotion purposes, has been amended to the disadvantage of the in service employees / petitioners.

The addition of clause / word, “2nd class” to the qualification for promotion to the post of SST, as per petitioners is against the fundamental rights and adverse to the terms and conditions of service, hence the

violation of Article 4, 24 and 25 of the constitution has been alleged.

3- These writ petitions have been filed by the petitioners on 6th February 2014 & 22nd September 2014, respectively, whereas the impugned amendment was introduced on 13th November 2012 and which has been acted upon in number of cases, hence the question of laches is also there. Promotion, even otherwise is a term and condition of service and Article 212 of the Constitution of Islamic Republic of Pakistan 1973, specifically creates a bar upon this court under Article 199, of the Constitution.

4- Since the petitioners have called in question the amendment brought in the promotion Rules and due to which they are alleging adverse effect on the touch stone of the fundamental rights etc, therefore, they have the every right to challenged the same, but before the competent forum as provided to them, i.e Service Tribunal, where the amendment, as wel,l be challenged.

In the celebrated case of I.A SHARWANI and others Vs GOVERNMENT OF PAKISTAN through secretary, reported in 1991 SCMR 1041, it has been held as under:-

(d)----S.4---Appeal---Jurisdiction---Civil servant when aggrieved by a final order,

whether original or appellate, passed by a departmental authority in respect of his terms and conditions, his remedy, if any, is by way of an appeal before the Service Tribunal even where the case involves vires of a particular Service Rule or a Notification or the question, whether an accused civil servant can claim the right to be represented by a counsel before the Enquiry Officer---If a statutory rule or a notification adversely affects the terms and conditions of a civil servant, the same can be treated as an order in terms of S.4(1) in order to file an appeal before the Service Tribunal.

(e)---S.4---Constitution of Pakistan (1973), Art. 25---Appeal---Jurisdiction of Service Tribunal---Civil servant cannot be-pass Service Tribunal by adding a ground of violation of the Fundamental Rights--- Service Tribunal will have jurisdiction in a case which is founded on the terms and conditions of the service even if it involves the question of violation of the Fundamental rights.

5- In view of above, these writ petitions are held not maintainable, dismissed as such, however, petitioners are at liberty to approach the competent forum, if so advised. CM No. 272-P of 2015 regarding impleadment is allowed.

ANNOUNCED.

Dated: 17/03/2015.

JUDGE

JUDGE

JUDGMENT SHEET

PESHAWAR HIGH COURT,PESHAWAR

JUDICIAL DEPARTMENT)

Writ Petition No.2948-P of 2014.

Mushtaq Ahmad ....Petitioner.

Versus.

Government of KPK etc.Respondents.

J U D G M E N T.

Date of hearing _________________________________ Appellant/Petitioner______________________________ Respondent_____________________________________ WAQAR AHMAD SETH,J:- Vide our detailed judgment of today in WP No. 433-P of 2014, this writ petition is dismissed as not maintainable.

ANNOUNCED.

17th March 2015

JUDGE

JUDGE