Judgment Sheet

IN THE PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

Writ Petition No. 1990-P/2013.

Maulana Ihsan-ul-Hadi etc Versus Government of

Khyber Pakhtunkhwa through Chief Secretary, Civil

Secretariat, Peshawar.

Date of hearing …….30.10.2014

JUDGMENT

Petitioner(s). By Mr__________________________________________

Respondent (s) By Mr.________________________________________

************

SYED AFSAR SHAH, J.- Through the instant Writ Petition,

under article 199 of the Constitution of Islamic Republic of

Pakistan, 1973, Maulana Ihsan-ul-Hadi and thirty others the

petitioners, seek indulgence of this Court for issuance of an

appropriate writ directing the respondents to consider their

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case for upgradation of the post of Pesh-i.Imam/Khatib from

BPS-9 to BPS-16.

2. Facts leading to the filing of the instant

petition as deciphered from the record are that the petitioners

were appointed by the Provincial Government against the

posts of Pesh-i.Imam in various departments in BPS-5 and 7

respectively. They were having the qualifications of Sanad

of Shahadat-ul-Almiya (equivalent to degree of M.S

Islamiyat/Arabic) from Madrasas registered with Wafaq-ul-

Madaris/Tanzimatul Wafaq-ul-Madaris. Petitioner No. 1

being the president of Association of Pesh-i-Imam moved an

application to the respondent No.1 for upgradation of their

post to BPS-16, whereupon a meeting of all the Departments

were called upon and a decision was taken to the effect that

case of the petitioners for upgradation to BPS-16 be placed

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before the upgradation committee constituted by the

Provincial Government for consideration. In pursuance of

the meeting conducted by the upgradation committee on

14.3.2013, the following decisions were made:-

“ (i) Those incumbents who are in

possession of minimum educational

qualification of Shadat-ul-Alia or equivalent

may be upgraded to BS-12 irrespective of the

length of their service.

(ii) The incumbents who are in possession

of minimum educational qualification of

Shadat-ul-Khasa or equivalent may be

upgraded to BS-10 irrespective of the length

of service.

(iii) The Pesh-e-Imam of those Mosques

where only two or three times (Juma/Zuhr,

Asar and Maghrib) prayers are regularly

performed and who are clothed with

minimum qualification of Shahadat-ul-Alia

or equivalent (Preference for proficiency in

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Qirat & Hifz-i-Quran) may be upgraded to

BS-10.

(iv) On the analogy of the Auqaf &

Religious Affairs Department fresh

appointment as Imam Masjid/Pesh

Imam/Khateeb having a Sanad either in

Dars-e-NIzami or a Sanad of Fazil-i-Arabi

may be made in BPS-12, in all the

Government Masajid, where regular

Eidain/Jumma/Five times prayer are

performed.

However, the Administrative

Departments, where the posts of Pesh-e-

Imam/Imam Masjid/Khateeb exist, are

required to take up the case separately with

the Finance Department for upgradation of

their respective posts alongwith the

following information to the Finance

Department.

(i) Complete details in respect of these

posts i.e. nomenclature, total sanctioned

strength alongwith BPS and qualification of

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the existing incumbents will be provided by

the Administrative Department.

(ii) A statement showing the details of

those incumbents who are having the above

criteria for BS-10 and BS-12 may also be

attached with the above information.”

Since the above decision aggravated the

grievances of the petitioners, therefore, they filed the instant

petition on the ground that the impugned decision of the

upgradation committee is discriminatory as the petitioners

are in possession of a degree/sanad of Shahadat-ul-Almiya

which is equivalent to M/A Islamiyat/Arabic and the

respondents while granting BPS-12 to the petitioners have

only considered the qualification of Shahadat-ul-Alia which

is equivalent to B.A.

3. The learned counsel for the petitioners

emphasized that the petitioners have been appointed against

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the post of Pesh-i-Imam and since their respective

appointment, they are performing their duties with zeal and

zest but without any proper service structure. He further

argued that the petitioners are serving in dead cadre having

no window of promotion to the higher post/upper scale. He

went on to say that the post of Pesh-i-Imam is also not

transferable to any other post in higher pay scale, therefore

the petitioners lacking chance of elevation to the higher rank.

He maitnained that the senior Arabic teacher/ theology

teacher in Elementary and Secondary Education Department

possessing the same qualification have been placed in BPS-

16. Similarly, the Pesh-i-Imam performing duties in Pakistan

Tele Communication, Limited and WAPDA Department are

getting their perks and privileges in BPS-15 but the

petitioners have been discriminated only for the reason that

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their services are confined to the mosques for two time

prayers, learned counsel for the petitioners further added.

Developing his arguments, learned counsel for the

petitioners urged that the petitioners having equal status to

the above referred employees of PTCL and WAPDA

Departments, therefore, the grade, perks and privileges

allowed to the official of the above said departments should

also be extended to the petitioners in view of the equivalence

of their duties and responsibilities.

4. Conversely, the learned A.A.G vehemently

argued that the upgradation of the post and consequent

increase in the emolument is a question relating to the terms

and conditions of service which is amenable to the

jurisdiction of Service Tribunal, constituted under the

Constitution of Islamic Republic of Pakistan for dealing with

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the matters of Civil Service pertaining to the terms and

conditions of employee, therefore, the relief claimed by the

petitioners is not a fit subject for adjudication by the High

Court in exercise of its constitutional jurisdiction, as it is

exclusively barred under Article 212 of the Constitution of

Islamic Republic of Pakistan 1973. While buttering his

arguments, the learned A.A.G emphasized that upgradation

committee constituted by the Provincial Government has

properly considered the case of petitioners and has

recommended the upgradation according to their job

description and so far the post of Arabic Teacher and

employee of PTCL and WAPDA are concerned, they are

governed by their own rules and regulations, thus, the case

of petitioners is not analogous in any respect to the referred

case, therefore, does not fall in the ambit of discrimination.

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Lastly he argued that creation and upgradation of the post,

revision of pay scale and such like matters lie purely in

executive domain and the courts of law always refrain itself

to interfere in it.

5. Having heard learned counsel for the parties,

perusal of record would reveal that the petitioners are

working in different departments of Provincial Government

and performing their duties as Pesh-i-Imam/Khatib in

different mosques. Their appointments have been made

under the Khyber Pakhtunkhwa Appointment Promotion and

Transfer Rules 1989 and undisputedly they are having the

status of Civil Servant, therefore, before adhering to the

merit of the case we would like to attend the objection raised

by learned A.A.G regarding maintainability of the instant

Writ Petition.

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In the given circumstances, it will be more

appropriate to determine as to whether upgradation of a post

or change in the scale of pay would fall under terms and

conditions of service? Admittedly, the petitioners are civil

servants, performing their duties in different cadre and

seeking upgradation of their post to BPS-16. It is undeniable

fact that the change of grade must change the scale of pay of

the petitioners, wherein obviously the element of the

selection would be involved like promotion and order of

competent authority would be required to be passed for

revision of pay and consideration of the comparative

suitability and entitlement of the incumbent. In the lateral

sense the upgradation means “rate higher or raise in value or

esteem or give a promotion to or appointment to a higher

position or an upward slope or grade. Under the service law,

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the expression “Upgradation” has been understood in wider

sense and assign a meaning of elevation and rising to a

higher grade or pay scale. Similarly in ordinary parlance the

term “promotion” is frequently used in cases involving

service law which may be understood to mean “moving

upwards and leaving the original pedestrian”. A person

already holding a position would have promotion if his

position is upgraded to a higher post with higher pay scale.

The difference between promotion and upgradation is that

when incumbent is placed in a higher pay scale with a

change in the designation with an additional qualification

and change in the nomenclature, responsibility and duties

shall be regarded as promotion, but where the post is placed

in higher scale of pay with or without change in designation

without requirement of any new qualification for holding the

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post in the higher grade, not specified in the recruitment

rules for the existing post, and without involving change in

the responsibility and duties may be treated as upgradation.

Needless to mention that in both the cases i.e. promotion and

upgradation, the incumbent must be placed in higher scale of

pay and the element of suitability, eligibility must be

involved. The promotion is always granted to an employee

under the prescribed rules, while upgradation is extended to

ensure that an employee who may not get a chance of

promotion on account of a service in a cadre should at least

be placed in upper grade in his pay with acclivity in grade

while on the other hand to prevent stagnation. The general

purport of this clarification, it appears that when the post is

placed in higher scale of pay with or without change in

designation without requirement of any qualification and

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without involving any change in the responsibility and

duties, even then such placement must be treated as

promotion to higher grade and pay scale because the grant of

upgradation of an employee must enhance his pay and such

category of improvement can only be dealt with under the

head of promotion. It is settled law that whenever there is a

change of grade or post for better, there would be an element

of selection i.e. promotion and it must be through a process

of scrutiny. From the above discussion, it is clear than

crystal that grant of selection grade, upgradation and

promotion to higher pay scale relates to terms and conditions

of service and in view of the explicit bar under article 212 of

the Constitution of Islamic Republic of Pakistan, 1973, the

Service Tribunal possess the exclusive jurisdiction to

determine such question. Any change in the pay scale of the

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employee shall bring his case within the ambit of terms and

conditions of service. In this respect, reliance may be placed

on the judgment of Hon’ble Supreme Court of Pakistan

rendered in case titled “Government of the Punjab though

Secretary Services, Punjab, Lahore and 14 others Vs

Muhammad Awais Shahid and 4 others” (1991 SCMR-

696) wherein it was ruled that whenever, there is a change of

grade or post for the better, there is element of selection

involved i.e. promotion and it is not automatically. Similar

view was followed by the Lahore High Court in case titled

“Muhammad Saeed Ahmad Vs Secretary to Government

of Punjab Health Department and others” (2013 PLC

(C.S)- 538.

6. In matter of upgradation, numerous cases may

be quoted wherein the aggrieved person (s)/civil servant (s)

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have approached the Service Tribunal for redressal of their

grievances pertaining to upgradation of post. In some of the

cases, the decision of respective Tribunals have been

brought before the August Supreme Court of Pakistan which

has got approbation. In case titled “Sajjad Hussain Kazmi

VS Secretary, Establishment Division, Government of

Pakistan, Islamabad and 2 others” 1998 PLC (C.S) 1463,

the then appellant filed an appeal before the Service Tribunal

on the ground that he had been upgraded from BPS-13 to

BPS-16 by the then Respondent department but later on a

corrigendum was issued whereby the earlier notification of

upgradation was cancelled. His appeal before the Federal

Service Tribunal, Camp Office Lahore was dismissed on

merit, against which leave to appeal was granted by the

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August Supreme Court of Pakistan and was finally decided

on 2nd June 1998 in the following words:

“Keeping in view the stand taken by

the respondents through Mr.Shahid

Saeed , Advocate Supreme Court that

the appellant has not been denied the

status of Class-II Officer, the effect of

Corrigendum, dated 28.3.1991 was

simply to cancel the earlier Gazette

Notification dated 18.3.1990 for the

reason that it did not qualify for being

published in the Official Gazette and

that appellant’s pay, allowances and

pension etc. as also his seniority-

position has not been adversely

affected, we are inclined to dismiss

this appeal with the observation that

the appellant shall continue enjoying

the status of Class-II Officer, as

heretofore. Order accordingly. No

cost.”

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7. In the case of “Mukhtar Ahmad Siddiqui

Vs Secretary to Government of Pakistan, Ministry of

Finance, Islamabad and others” 2001 SCMR 923, the

Civil Servant approached the Federal Service Tribunal for

issuance direction to the Department to upgrade him to the

post of BPS-17 w.e.f March 1972 with all consequential

benefits, however, the Federal Service Tribunal after hearing

the arguments of the parties, dismissed the appeal holding it

as time barred and the petition for leave to appeal against the

judgment of Federal Service Tribunal was dismissed by the

August Supreme Court of Pakistan on merit. Likewise Syed

Nasim-ul-Haq brought an appeal before the Federal Service

Tribunal on the ground that he being a civil servant fulfilled

requisite qualification and conditions for his upgradation to

BPS-17 on specified date, therefore, the department was

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having no reason for denying him the upgradation and

retrospective effect particularly when other incumbents of

the posts were allowed upgradation from the specified date.

The grievance of the incumbent was redressed and his

appeal was allowed by the Federal Service Tribunal in case

titled “Syed Nasim-ul-Haq Naqvi Vs Secretary Ministry

of Commerce, Islamabad and 4 others” (1992 PLC (C.S)

195. In case titled “Kamal Uddin and 30 others vs

Province of Punjab and others” (1986 PLC (C.S) 807,

issue of upgradation of the Readers and Judgment Writers

of High Court was decided by the Federal Service Tribunal.

8. In the year 1995, the Government of Khyber

Pakhtunkhwa was pleased to accord sanction as a special

case to the upgradation of 113 posts of Librarian from BPS-

16 to BPS-17 to the employees whose names were

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mentioned in the notification dated 20.6.1995. The other

employees of the same department equipped with the similar

qualification brought their grievance before the NWFP

Service Tribunal (Now Khyber Pakhtunkhwa Service

Tribunal) through Service Appeals which were allowed and

the Provincial Government was directed to upgrade the

appellants to BPS-17. The above judgment was impugned by

the Provincial Government by filing a petition for leave to

appeal which was granted by august Supreme Court of

Pakistan, in case titled “Government of NWFP etc Vs

Muhammad Aslam Khan” C.A No. 172 of 1998 and other

cases on the same subject matter, titled “Government of

NWFP Vs Gul Aslam and others” (C.Ps No. 52 to 58-P of

2003) were heard together. Ultimately all the referred cases

were dismissed and judgment of Service Tribunal was

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maintained. On analogy of the above referred cases, Bibi

Musarrat, Shahid Ali and Nasir Khan filed Service Appeal

No. 1114, 1115 and 1116 of 2006 respectively before the

Khyber Pakhtunkhwa Service Tribunal, which were

dismissed, however appeal before the August Supreme Court

of Pakistan, against the judgment of NWFP Service Tribunal

Peshawar were allowed and the benefit of upgradation were

allowed to the employees.

9. From the above quoted judgments of Service

Tribunal as well as of August Supreme Court of Pakistan

one could reach to an irresistible conclusion that the matter

of upgradation of post to higher pay scale falls within the

ambit of terms and condition of service and the Service

Tribunal has the jurisdiction to decide the matter and

jurisdiction of this court is barred under article 212 of the

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Constitution of Islamic Republic of Pakistan. By now it is

more than settled that an order, even passed on the basis of

malafide, Coram Non Judice or in violation of any rule, the

same could only be challenged before the Service Tribunal

because in such like matters, article 212 of the Constitution

of Islamic Republic of Pakistan, 1973 places complete

embargo on any other court, except the tribunal constituted

for the purpose.

10. Again, this Court while dealing with a similar

controversy in Writ Petition No. 1210-P of 2013 , observed

the following:-

“The issue in hand relates to “up

gradation”, which in essence is

“promotion” to a higher grade. Surely,

the same falls within the “terms and

conditions” of service, which under

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Article-212 of the Constitution, is the

exclusive domain of Service Tribunal.”

11. In view of the constitutional bar, and above all

while deriving wisdom from the precedents cited in the

preceding paras, this court has got no jurisdiction to entertain

the instant petition which is dismissed being not

maintainable.

JUDGE

JUDGE

Announced on

30th

October, 2014

*Amir Khan*