2018 PLP (C (PLC(CS)N)

IJAZ ANWAR, J.

Through this writ petition, the petitioners who are holding posts of Assistant Directors (BPS-16) are seeking upgradation. The facts as narrated in this writ petition are that the petitioners are serving as Assistant Directors (BPS-16) in the Wafaqi Mohtasib (Ombudsman) Offices, Peshawar, D.I.Khan, Islamabad and Karachi respectively.

2. The Wafaqi Mohtasib Ombudsman Secretariat, Islamabad in its meeting of Selection and Promotion Committee held on 5th and 6th June, 2014 allowed upgradations to different categories of posts on the analogy that the similar posts were already upgraded by the Federal Government in different Departments and Organizations. The case of the petitioners for the upgradation was also considered and it was decided to upgrade the post of Assistant Director BPS-16 to BPS-17. It is the case of the petitioners that thereafter they continuously approached the respondents for issuance of formal notification of upgradation but no such order was issued. They prayed that the respondents be directed to allow upgradation to the petitioners.

3. The respondents were put to notice and they submitted their comments, wherein they have not denied the decision of the Selection and Promotion Committee. However, they alleges that the matter was taken up with the Finance Division, Government of Pakistan, Islamabad. The Finance Division vide letter dated 2.6.2015 replied that the Ombudsman Office to take up the matter with the Establishment Division, Government of Pakistan, Islamabad. They accordingly taken up the matter with the Establishment Division vide letter dated 6.7.2015 and according to them, the case is under process and as soon as, any decision/order is received from the Establishment Division, it will be implemented accordingly.

4. Arguments heard and record perused.

5. The Office of Wafaqi Mohtasib was established under the Wafaqi Mohtasib (Ombudsman) Order, 1983. In Section 24, the powers of the Mohtasib are mentioned since Section 24 is relevant to the present controversy, hence the said section is reproduced for convenience as follows:- "

24. Conduct of business.

(1) The Mohtasib shall be the Chief Executive of the Office and shall enjoy administrative and financial autonomy as may be prescribed by the Federal Government (Amended by Ordinance No.LXXII of 2002) (2) The Mohtasib shall be the Principal Accounting Officers of the Office in respect of the expenditure incurred against budget grant of grants controlled by the Mohtasib and shall, for this purpose, exercise all the financial and administrative powers delegated to him. (Amended by Ordinance No.LXXII of 2002) (3) The Ombudsman shall have full powers to create new posts and abolish old posts, to change nomenclature and upgrade or downgrade any post provided the expenditure on any item is met from within the allocated budget of the office of Ombudsman. (under lined for emphasis) (4) The Ombudsman shall have full powers to re-appropriate funds from one head of account to another head of account and to sanction expenditure on any item from within the allocated budget. (5) The Ombudsman may delegate any of the above mentioned powers to a member of the staff not below BPS-21 or equivalent. Provided that approval of the Ombudsman shall be obtained by the delegate for exercise of powers under subsection (3) and for re-appropriation of funds under subsection (4), before implementation thereof.

6. In accordance with Section 24(3) ibid, the Ombudsman has full powers to upgrade or downgrade any post, while exercising these powers, the matter of upgradation of different posts were taken up by the Wafaqi Mohtasib Secretariat, Islamabad in its meeting held on 5th and 6th June, 2014 and upgraded numerous posts. It also recommended upgradation of the post of Assistant Directors from BPS-16 to BPS-17. The relevant para is reproduced:- iv. Upgradation of the post of Assistant Director. As per Wafaqi Mohtasib (Ombudsman) Officers Service Rules, 2009 the posts of Assistant Director (BS-16) and Superintendent (BS-16) are to be filled by promotion of Assistants (BS-14) with five years' service in BS-11 and above. The post of Superintendent is to be up-graded from BS-16 to BS-17 by the Federal Government, as announced in the budget speech of the Finance Minister. On the same analogy the post of Assistant Director may also be up-graded to BS-17 so as to keep it at par with the post of Superintendent BS-17. It was recommended that after the up-gradation of the post of Superintendent BS-16 to BS-17, the post of Assistant Director (BS-16) may also be up-graded as Assistant Director (BS-17)".

7. The Wafaqi Mohtasib Secretariat, implemented these recommendations in respect of almost all other posts. The post of Deputy Registrar (BS-16) was upgraded from BPS-16 to BPS-17 and the incumbent of the post was also allowed upgradation. Similar is the case of Telephone Operators, Data Processing Assistants Superintendents, Deputy Directors and Calligraphists, etc. It is strange to note that while upgrading the above referred posts, the respondents immediately implemented the recommendation of Selection and Promotion Committee. However, in the cases of petitioners, firstly the Finance Division advised the Mohtasib Office to take up the matter with the Establishment Division and when vide letter dated 6.7.2015, the matter was taken up with the Establishment Division, no decision was taken even after about two years.

8. The Wafaqi Mohtasib Office has full powers under Section 24 of the Wafaqi Mohtasib (Ombudsman) Order, 1983 and there is no need of waiting for the concurrence of the Establishment Division. In the instant case, we find that the petitioners are treated discriminately and they were denied equal protection of law.

9. It is well established principle of law that equal treatment of unequal is as condemnable as unequal treatment of equal. Equal protection of law means that no person of or class of person shall be denied the same protection of law which is enjoyed by other person or other class of persons in like circumstances. Similarly, reasonable classification amongst different groups of persons is admissible; however, to justify the validity of a classification, it must be shown that it is based on reasonable distinction or that it is on reasonable basis or rest on real or substantial difference of distinction. Reference can be made to the reported judgments of the Apex Court PLD 1975 SC 506, PLD 1993 SC 375 and 1991 SCMR 1041.

10. The petitioners having already been recommended for upgradation by the Selection and Promotion Committee, besides higher post is of Deputy Director (BPS-17) was upgraded in anticipation on the ground that the lower posts of Assistant Director is going to be upgraded, therefore, the respondents are bound to upgrade the petitioners with immediate effect.

11. We thus allow this writ petition and direct the respondents to issue formal notification of upgradation of the post of Assistant Director from BPS-16 to BPS-17 and to allow this higher scale to its incumbents within a period of thirty (30) days from the announcement of this judgment.

12. This writ petition is allowed in the above terms. ZC/380/P Petition allowed.