2016 PLP 859 (SCMR)

AMIR HANI MUSLIM, J.

These Appeals, by leave of the Court, are directed against common judgment dated 27.04.2010, passed by the Peshawar High Court, Peshawar, whereby the Writ Petitions filed by the Respondents were disposed of with the direction to the Appellants to act according to law and to do what is required by the law to do within a minimum possible time.

2. The facts necessary for the adjudication of the present proceedings are that the Respondents and others while working as Superintendents/Supervisors with the Appellants filed an Application before the Chairman, Federal Board of Revenue (Revenue Division) for upgradation of their posts from BS-13 to BS-16, inter alia, on the ground that since the post of Superintendent has been upgraded to BS-16 in Federal/Provincial Government, therefore, the post of Superintendent may also be upgraded in the Federal Board of Revenue from BS-13 to BS-16. The said Application remained undecided, and the Respondents filed Writ Petitions before the Peshawar High Court, which were disposed of by a learned Division Bench by the consolidated impugned judgment.

3. The Appellants filed Civil Petitions for leave to Appeal against the judgment of the Peshawar High Court in which leave was granted to consider whether in view of the bar contained under Article 212(3) of the Constitution, the High Court has the jurisdiction to entertain a Constitution Petition relating to the terms and conditions of service of civil servants. Hence these Appeals.

4. The learned Counsel for the Appellants has contended that the jurisdiction of the learned Peshawar High Court was barred under Article 212(3) of the Constitution, as the issue of upgradation which was the subject matter of the Writ Petitions relates to the terms and conditions of service of the Respondents and could not have been adjudicated upon by the High Court. He next contended that the terms and conditions of service of civil servants fall within the domain of the Service Tribunal, therefore, the impugned judgment was without jurisdiction.

5. As against this, the learned Counsel for the Respondents have contended that the issue of upgradation is not covered by the expression "terms and conditions of service" of a civil servant, therefore, the High Court has the jurisdiction to decide the issue.

6. We have heard the learned Counsel for the parties and have perused the record. The expression "upgradation" is distinct, from the expression "Promotion", which is not defined either in the Civil Servants Act or the Rules framed thereunder, and is restricted to the post (office) and not with the person occupying it. The upgradation cannot be made to benefit a particular individual in term of promoting him to a higher post and further providing him with the avenues of lateral appointment or transfer or posting. In order to justify the upgradation, the Government is required to establish that the department needs re-structuring, reform or to meet the exigency of service in the public interest. In the absence of these pre-conditions, upgradation is not permissible.

7. 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 Azhar Khan Baloch v. Province of Sindh (2015 SCMR 456) and an unreported judgment of this Court passed in the case of Chief Commissioner Inland Revenue and another v. 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 thereunder. 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. The question in hand has already been answered by the aforesaid two judgments of this Court.

8. For the aforesaid reasons, we do not find any infirmity in the impugned judgment; consequently these Appeals are dismissed. MWA/R-2/SC Appeals dismissed.