Muhammad Rustam Vs Registrar PHC

JUDGMENT SHEET

PESHAWAR HIGH C OURT. ABBOTTABAD BENCH

JUDICIAL DEPARTMENT

Writ Petition No.8l7-A of 2017

JUDGMENT

Date of hearing......... ...... 22.0 1.20 I 9 Petitioner(s) ...(Muhammad Rustam) by Mr. Muhammad Waqas, Advocate ... ... ...

Respondent(s)...(fhe Stdte) by Mr. Khalid Rehman, Advocate

I.IAZ ANWAR. J.- Petitioner, Muhammad Rustam, Private Secretary (Retired) of Peshawar High Court, Abbottabad Bench, has invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, against the orders dated 29.04.2015 and 17.06.2017 of the Administrative Committee, Peshawar High Court, Peshawar, whereby, his Representation and Review Petition were dismissed, and has PraYed for:

"It is, therefore' very humblY and respectfullY PraYed that on acceptance of this Wtit Petition, the imPugned otders tlated 29.04.2015 antl {r

17.06.2017 of Honourable Administrative Committee, Peshawar High Court, Peshawar passed in Mercy Petition/Representation and Review Petition of the petitioner, may kindly be set aside and by reviewing/ modifying the notification dated 04.11.2011 issued by worthy respondent No.l;

-/irctly, retrospective effect be given to ibid notiJication dated 04,11.20111 and secondly the post of petitioner may kindly be declared promoted/ upgraded to BPS-20, retrospectively, i,e. w.e.f,, the date, on which he had completed 17 years service on regular basis in BPS-I7 & above, in the light of 3" provisions of KPK Civil Servants Promolion Policy, 2009, with all back beneJits or to ay other relief to which the Honouroble Court deemed Jit and proper in the circumstances of the case ond oblige."

2 In essence, the petitioner is seeking his proforma upgradation to BPS-20 in the light of Khyber Pakhtunkhwa Civil Servants Promotion Policy, 2009 with retrospective effect, from the date when he had completed 17 years service and above.

3 Learned counsel for the petitioner argued that the petitioner was allowed BPS-17 vide a

Notification dated 21.10.1990 with effect from 01.07.1983. He was upgraded vide order dated 8th March, 1993 with effect from 01.07.1990 and vide Notification dated 16.11.2011, Honourable the Chief Justice of this Court upgraded the posts of Private Secretaries / Readers / Superintendents BPS-18, who have completed 12 years satisfactory service in BPS- 17 and above to BPS-19 with immediate effect, the petitioner was also benefited there from. Leamed counsel while placing reliance upon the Khyber Pakhtunkhwa Civil Servants Promotion Policy, 2009 contended that the petitioner having more than five years service in BPS-18, as such, the Notification dated 04.11.2011 may be ante-dated, besides, three private Secretaries of this Court, namely, Abdul Matin, Gulab Khan and Muhamamd Ishaq Shah having been upgraded vide Notification dated 28'h March, 2017 , as such, similar treatment may also be given to the petitioner by allowing him proforma up- gradation to BPS-20 so that his pension be fixed accordingly. He placed reliance on 2017 PL C (C.S.)

![91!q93,2017 SCMR 890, 20t7 P C 1445 t9 98 SCMR 1736 and 2016 GBLR 106-108. .

4 Learned counsel for the respondent

argued that there is no concept of retrospective up- gradation. He further argued that by the time when the up-gradation to BPS-20 was allowed to certain officers of the High Court, the petitioner has already been retired with effect from 12.03.2016. Leamed counsel p laced reliance on 1991 SCMR 1041 and contended that retired employees cannot claim parity with the serving employees. Leamed counsel further placed reliance on the judgment of the Supreme Court reported as 2012 SCMR 1004 and contended that the petition in hand is hit by the principle of'laches' and where there is inordinate delay in filing of writ petition, this Court is not required to go into the merits of the case.

5 Arguments of leamed counsel for the parties heard and record perused.

6 The case of both the parties is based upon the Khyber Pakhtunkhwa Civil Servants Promotion Policy, 2009, because the Hon'ble High Court while upgrading certain Private Secretaries BPS-19 to BPS-20 have placed reliance on this policy, as such, for resolving the controversy,

discussion on this policy would be relevant. Section 9 of Khyber Pakhtunkhwa Civil Servants Act, 1973, provides for promotion, AS such, it is reproduced below for convenience:

"9. Promotion.--- (1) A civil servant possessing such minimum qualifications as may be prescribed shall be eligible for promotion to a higher post for the time being reserved under the rule for departmental promotion in the service or cadre to which he belongs.

(2)A post referred to in sub-section (1) may either be a selection post or a non selection post to which promotion shall e made as may be prescribed-

(a)in the case of a selection post, on the basis of selection on merit; and .

(b)in the case of non-selection post, on the basis of seniority-cum-fitness."

Section 9 refers to Rules governing promotion, under section 26 of the Act, the Govemor or any person authorized by him is competent to make rules for carrying out the pu{pose of the Act, ibid. Similarly, Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989 (APT, Rules, 1989) were framed in exercise of powers conferred under section 26 of the Khyber Pakhtunkhwa Civil Servants Act, 1973. These rules fuither streamline processing of cases pertaining to appointment, promotion and transfer. Rule 18 of the APT Rules' 1989 is also relevant, which is reproduced below for ready reference:

"18. General Rules.--- In all matters not expressly provided for in these rules, civil servants shall be govemed by such rules as have been or may hereafter be prescribed by Government and made applicable to them."

The Khyber Pakhtunkhwa Promotion Policy, 2009 (Promotion Policy 2009) is in addition to the rules and provisions oflaw above referred. In Rule l8 ibid, the matters, which are not provided under the APT Rules, 1989, shall be govemed by the rules prescribed by the Govemment. The Promotion Policy, 2009 so framed by the Govemment is exhaustive in nature and has covered almost all matters that could crop up while dealing with cases of promotion.

7 In the instant case, Para I(a) of the Promotion Policy is relevant, which reads as under:

"I. Length of service.

(a)Minimum lenglh of service for promotion to posts in various basic scales will be as under: Basic Scalel8: 5 years' service in BS-17 Basic Scale 19: 12 years' service in BS-17 & above Basic Scale 20: 17 years' service in BS-17 & above The promotion policy cannot be applied in isolation' The above referred length ofservice only provides the minimum length of service for promotion of a civil servant to become eligible for promotion but of- course it is subject to recruitment rules framed by the

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govemment for respective departments providing channel of promotion.

8.We have examined the minutes of the Hon'ble Administration Committee, whereby the case of upgradation was considered and while relying upon the Promotion Policy, those Private Secretaries were allowed BPS-20. Interestingly, again the Hon'ble Administration Committee in its meeting held on 15 Jtne, 2077 further modified the upgradation order dated 28.03 .20 I 7 and gave it retrospective effect from 14.03.2014. With all respect, the Hon'ble High Court can pass any order exercising its power conferred by the Govemment of Khyber Pakhtunkhwa Finance Department Notifi cation bearing No.SO(A/Cs)/FD/2- 1196 dated 07.12.1996, however, such discretion is always structured and should conform to the rules and regulations goveming the promotion/upgradation.

g. For upgradation ofposts, there is a policy formulated by the Provincial Govemment and conveyed by the Khyber Pakhtunkhwa Finance Department (Regulation Wing) vide Circular No' SO(FR)[FD/7 -2l2OO8 dated 1 1ft October, 2010, under the heading, "POLICY AND CNTENA FOR l(

UPGRADATION OF POSTS'. In this up-gradation policy certain pre-conditions are provided, which are relevant to the instant case and as such reproduced below for ease of reference:-

"UPGRADA TION OF POSTS PROPOSED DUE TO

INDIWDAAL HARDHSIP CASES.

(a)Proposals for upgradation of certain posts due to reasons that some civil servants do not have further promotion chances and have stayed on one position for reasonably long time, will be placed before the committee for consideration only if the proponent deparime nts provides following information : - (, Reosons due to which concerned Government semant is unable to be promoted in normal procedure.

(ii)All requisite details about creation of such posts and formulation of semice rules with particular reference to the reasons as to why lhe semice rules cannot gve cateer progression to the holders ofthese posts.

(iiil Whether organizational slruclure as well as service rules need revision to avoid recurring of the hardship to the future entrants.

(iv)The steps taken by the department concerned to resolve such hardships on permanent basis.

(b)The committee afier proper suutiny of case in terms of above parameter and if satisfied that the upgradation of certain post(s) is only solution, may make its recommendation to the competent authority for upgradation on personal basis provided that:

(t)There shall be no apgradation of post beyond BPS-19 in such cases.

(it)Such recommendations will only be made in case where there are absolutely no promolion prospects in the semice structure for incumbent of said post(s).

(iii)No such recommendations will be made in a case where the incumbent has less than 10 years of stay on one anil the same position;

(iv)The incumbent hds not been earlier elevated in the exisling pay scale by personal upgradation' (v) The proposed upgradation will be petsonal to the incumbent and the post shall stand

downgraded as and when vacated by such incumbent,"

Admittedly, all the Private Secretaries, above referred, upgraded to BPS-20 vide order dated 28.03.2017, have already availed upgradation vide a general order of the High Court issued vide Notification No.282-J dated 04.11.2071, whereby, Hon'ble the Chief Justice of this Court has upgraded the posts of ail those Private Secretaries and Readers/Superintendents (BPS-18), who have completed 72 yearc satisfactory service to BPS-17 and above to BPS-19. Thus, if we consider the mandatory terms of upgradation policy, the officers so upgraded has to stay atleast l0 years in a upgraded post. We restrain ourselves from commenting upon other conditions, whether further upgradation beyond BPS-19 is permissible or otherwise.

10.In order to have a conducive progression in service, the service rules must provide avenues of promotion, the august Supreme Court of Pakistan in the case of 'Federal Public Setvice Commission through Secretary. Vs. Anwar-ul-Haq (Privale Secretary) Islamubad and others' (2017 SCMR 890)

while commenting in a case for upgradation held as below:

"It is resorted only for the incumbents of isolated posts, which have no avenues ot channel of promolion at all, Upgradation under. the scheme is personal to the incumbents of the isolated posts, to address slagnation and frustration of incumbent on a particular post for sufftcient length of service on particular post without any progression or averrue of promotion. Post of.

Stenographer/Priuate Secretaries is one of such kind of post, which has no avenues or channel of promolion to higher grades as may be available to other incumbents in civil semice. apgradation is carried out ander a scheme and or a policy to incentivize and to encourage and lo give financial benefits without crealing addilional vacancies of higher grade, upgradation by no standards could be treated and or considered as promolion to higher grade. Incumbent occupying upgraded post retain their substantive grade."

It has further been held in this judgment that upgradation is not promotion. Similarly, it is held that

"The policy of upgrailation, noti/ied by the Government, in no way, amends the terms and conditions of semice of the civil semant or the Civit Servants Act and or the rules framed there under."

In any case, where the Hon'ble Administration Committee of this Court has granted upgradation to three Private Secretaries, certainly it creates heartbuming amongst other similarly placed and if this is the criteria of upgradation, then it should be

extended to all other similarly placed, who fulfill the criteria set out in the promotion policy.

11.The august Supreme Court of Pakistan in the case of 'I.A.Sharwani v Governnient of Pakiston' (1991 SCMR 1041) considered the serving civil servants and retired civil servants as different class. Relevant Para of the judgment is reproduced hereunder:

" Reasonable classification will be that all the pensioners as a group are to be treated as one class and all serving civil servants as a group dre to be treated as a separate class...If the pay scales of serving civil' seryants are raised, the civil servants, who have by then already retired cannot have any legitimate grievance to agitate for notional revision of their pay scales for recomputing their pension amounts for any purpose and there cannot be any unifurmity in the dmounts of pension among the civil servants despite of hating equal rank and equal length of service, if they retire not on one date but on different dates and in between such dates pay scales are revised... Pension can, however, have a legitimate grievance if he is not treated dlike with other pensioners. "

12.It is further clarified that the Promotion Policy 2009 cannot be outstretched so that it may be made a base for the promotion of civil servant' as referred in the above Paras, for upgradation there is policy of the provincial government i.e. "Policy and 0 Criteria for Upgradation of Posts". The petitioner having already retired on 12.03.2016 and was

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benefited vide Notification dated 16.11.201l, when he was upgraded to BPS-19, was having no right whatsoever to claim further upgradation without completion of 10 years in that scale.

13.For reasons stated above, we find no substance in the claim ofthe petitioner. The petition in hand is misconceived, which is accordingly dismissed with no order as to costs.

Announced.

Dt.22.01.2019.

JU GE

JUDGE

M.Srleem/"

(DB)Mt. Justice Lal Jan kalatlak Mr- Justice ljat Anrar