2003 PLP (C (PLC(CS))

Ss. 42(12) & 47

Civil service

Upgrading of a post

Writ petition was dismissed by the High Court on the ground that it was purely in the discretion of the Authority to upgrade a post and a direction could not be issued by the High Court for exercising a discretionary power in a particular way

Validity

View taken by the High Court was correct as creation and upgrading of posts, revision of pay scales and such-like matters lay purely in the executive domain and the Courts of law could not interfere in such matters

Courts could interfere only if there was an illegality, but no such situation existed in the case

Judgment of the High Court could not be interfered with in circumstances

Petition for leave to appeal against judgment of the High Court was dismissed. Ghulam Mustafa Mughal, Advocate for Petitioner. Date of hearing : 10th August, 2000. Mehboou-ur-Rehman, petitioner herein, was serving in Education Department of the Government. When the University of Azad Jammu and Kashmir was set up a large number of Lecturers, Assistant Professors etc. serving in the Education Department were transferred en bloc to the University on permanent basis. After about ten years a post of Director Finance was advertised. The petitioner moved an application and was duly selected to the said post.

2. On 6th January, 1994 Finance and Planning Committee of the University, headed by the Vice-Chancellor Dr. Muhammad Sarwar Abbasi, made a recommendation that the Registrar and Director Finance holding offices at the relevant time may be given B-20 as personal scale to bring them at par with Controller of Examination who had already been granted B-20. However no action was taken on this recommendation because, according to the petitioner, the matter remained pending in the administration section of the University. The petitioner retired from service on 20th July, 1994. About two years after his retirement, the petitioner moved an application requesting that the recommendations of Finance and Planning Committee may be given effect to. The matter was considered by the Syndicate on 31st October, 1996 but the proposal was turned down on the ground that BPS-20 could be given to the petitioner only if in case any of his counterparts in the Education Department was to be promoted to B-20. This decision was passed on the basis of Statute for Transferred Category Teachers issued on 21st February; 1980. The petitioner filed a complaint before the Mohtasib who issued a direction that the Syndicate tray reconsider the matter. The derision of the Mohtasib was sought to be modified by the University by filing a review petition but it was dismissed. In obedience to the direction of the Mohtasib the Syndicate reconsidered the case of the petitioner but rejected it on 15th September, 1998. The decision was again based on same ground relating to the Statute for Transfer Category Teachers.

3. The petitioner filed a writ petition in the High Court which has been dismissed on the ground that it was purely in the discretion of the University to upgrade a post and a direction cannot be issued by the High court for exercising a discretionary power in a particular way. The High Court has also held that a legal right could have possibly accrued to the petitioner in light of the principles laid down in the Statute for Transferred Category Teachers but no counter-part of the petitioner in the Education Department had been promoted to B-20 till the retirement of the petitioner.

4. I have heard the learned counsel for the petitioner, Mr. Ghulam Mustafa Mughal, at some length but he has not been able to show that the view taken by the High Court is incorrect. Creation and up gradation of posts, revision of pay scales and such like matters lie purely in the executive domain and the Courts of law cannot interfere in these matters. Courts can interfere only if there is an illegality but no such situation exists in the present case. No vested right resided in the petitioner to be promoted to B-20. As rightly held by the High Court, a right would have accrued to the petitioner in light of the Statute for Transferred Category Teachers but is not contested that the said statute was not violated. In these circumstances there is no justification for granting leave in the case. The petitioner, therefore, fails. H.B.T./227/SC(AJ&K)??????????????????????????????????????????????????????????????????????? Petition dismissed.