2017 PLP (C (PLC(CS)N)

MAZHAR ALAM KHAN MIANKHEL, C.J.

The petitioners in these Writ Petitions, being employees in various Government departments, have prayed for their upgradation, which has been denied to them on the basis of impugned Notification/Policy dated 13.11.2012 of the Department.

2. On 02.06.2015, during the course of arguments before a learned Division Bench of this Court, the learned counsel for the parties informed the Court that different views have been taken by this Court in the matter. In two of the judgments this Court has held that the matter of upgradation is not a term and condition of service but in one of the judgment it was held that upgradation is a term and condition of service, so the aggrieved person cannot invoke the jurisdiction of this Court due to the bar contained in Article-212(3) of the Constitution of Islamic Republic of Pakistan, 1973.

3. In view of the above, the matter was referred to the Chief Justice for constitution of a larger bench; hence this larger bench is seized of the matter.

4. Perusal of the order sheet dated 02.06.2015 of the learned Division Bench would reveal that the august Supreme Court of Pakistan had already granted leave to appeal on the subject of upgradation.

5. Today, the learned counsel for petitioners produced copy of the judgment of Hon'ble Apex Court in Civil Appeals Nos.101 and 102-P of 2011, delivered by a learned Bench of five members headed by the Honourable Chief Justice of Pakistan, wherein it is held that upgradation does not come within the domain of terms and conditions of service. The relevant observations of their lordships of the Apex Court are reproduced here as under:-- "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 Zahar 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." When the learned counsel for the parties were asked as to whether the Policy in question has been framed under the Civil Servants Act or the rules framed thereunder, they replied in the negative and stated that the Policy in question has independently been formulated.

6. So, in this view of the matter, the question referred to this larger Bench is answered in the term that upgradation being not a term and condition of service, the grievance of a petitioner can be looked into in the constitutional jurisdiction of this Court. The following writ petitions, having similar point for determination, now will require decision on their respective merits. 1) W.P.2178/2013 (Mst. Bakht Haram and others v. Govt. and others) 2) W.P.No.3194/2014 (Fayyaz Khan v. Govt. and others) 3) W.P.1714/2015 (Intizar Ali and others v. Govt. and others) 4) W.P.1259/2015 (Hidayatullah and others v. Govt. and others) 5) W.P.40/2016 (Muhammad Tariq and others v. Govt. and others) 6) W.P.54/2016 (Muhammad Usman and others v. Govt. and others) 7) W.P.143/2016 (Hayatullah and others v. Govt. and others) 8) W.P.644/2011 (Shaukat Ali and others v. Govt. and others) 9) W.P.2757/2014 (Arshid Ali v. Govt. and others) 10) W.P.3386/2014 (Abdul Qayum and others v. Govt. and others) 11) W.P.3742/2014 (Abdul Aziz v. Govt. and others) 12) W.P.1975/2015 (Qasim Jan and others v. Govt. and others) 13) W.P.27/2012 (Amir Muhammad v. Govt. and others) 14) W.P.No.2089/2012 (Halim Said and others v. Govt. and others) 15) W.P.3199/2012 (Qari Shamsuddin and others v. Govt. and others) 16) W.P.1075/2013 (Said Farooq Shah and others v. Govt. and others) 17) W.P.3232/2014 (Ishfaq Ali v. Govt. and others) 18) W.P.3343/2014 (Mohammad Khalid v. Govt. and others) 19) W.P.No.556/2015 (Dr.Iqbal Begum v. Govt. and others) 20) W.P.417/2015 (Muhammad Ali and others v. Govt. and others) 21) Review Petition in W.P.No.2019/2013 (Abdul Hakeem v. Govt. and others) 22) W.P.1342/2015 (Roidad Khan and others v. Govt. and others) 23) W.P.2144/2015 (Nadir Khan and others v. Govt. and others) 24) W.P.660/2015 (Ahmad Saleem and others v. Govt. and others) 25) W.P.110/2015 (Mian Aziz Ahmad v. Govt. and others) 26) W.P.897/2015 (Raziullah Khan v. Govt. and others) 27) W.P.2928/2015 (Muhammad Kamran v. Govt. and others) 28) W.P.3255/2015 (Muhammad Bashir Khan v. Govt. and others) 29) W.P.3025/2015 (Muhammad Arif v. Govt. and others) 30) W.P.1612/2015 (Muhammad Ismail v. Govt. and others) 31) W.P.3366/2015 (Muhammad Ali v. Govt. and others) 32) W.P.4444/2015 (Aziz-ur-Rehman and others v. Govt. and others) 33) W.P.3818/2015 (Dr.Umar Ayub Khan v. Govt. and others) 34) W.P.3102/2014 (Najeebullah and others v. Govt. and others) 35) W.P.3060/2015 (Mujeeb-ur-Rehman and others v. Govt. and others) 36) W.P.2175/2014 (Insha Ullah Khan v. Govt. and others) 37) W.P.3303/2014 (Inshaullah and others v. Govt. and others) 38) W.P.1709/2010 (Mohammad Raziq and others v. Govt. and others) 39) W.P.3750/2014 (Irshad Akbar and others v. Govt. and others) The main judgment is placed on the case file of W.P. No. 2178/2013. The office is directed to fix the above writ petitions before the learned Division Benches of this Court for decision on merits and in accordance with law. MH/169/P Order accordingly.