2018 PLP (C (PLC(CS)N)

MUHAMMAD FARRUKH IRFAN KHAN, J.-- Through the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner has challenged the legality and validity of the decision of the competent authority refusing him upgradation from B.P.S.-11 to B.P.S.-14, vide letter dated 12.11.2015, issued by respondent No.5.

2. Brief facts of the case are that the petitioner was initially appointed as Field Assistant in BPS-11 on contract basis on 8.8.2005 and his services were regularized on 27.10.2010. Respondent No.1 through office order No.PBM/Estb/106/ICT/3189, dated 25.5.2010 upgraded the post of "Assistant" from BPS-11 BPS-14. However, this benefit was not extended to the petitioner. Aggrieved the petitioner filed W.P. No.26354/15, which was disposed of, vide order dated 8.9.2015, directing the respondents to decide his application for upgradation. The respondents failed to comply with the order of this Court whereupon the petitioner filed Cr.Org. No.2647-W/15, in which the respondents produced the Impugned order dated 12.11.2015 whereby the petitioner's request was declined. Hence, the instant writ petition.

3. Learned counsel for the petitioner contends that the impugned decision of refusing upgradation to the petitioner by the respondents is contrary to the law and facts on record; that the petitioner has been deprived of his legal right which has been given to the similarly placed employees having the same job description; that by refusing the petitioner upgradation he has been treated discriminately, which is violative of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973; that the only difference between the post of "Office Assistant" and "Field Assistant" is that of nomenclature whereas the job description is the same; that the respondents have misinterpreted the notification dated 29.6.2007 to exclude the petitioner from its benefit. It has been prayed that the impugned decision of the respondents be declared as illegal and unlawful and the respondents may be directed to grant the petitioner BPS-14 from the date when he became eligible pursuant to notification dated 29.6.2007.

4. Conversely learned counsel for respondents Nos.3 to 5 submits that the petitioner is a civil servant and the relief sought falls within the terms and conditions of his service, therefore, the instant petition is not maintainable due to the bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973; that in the notification dated 29.6.2007 the post of Assistant Field was not upgraded, therefore, its benefit could not be extended to the petitioner; that vide order No.25/1/2006/Admin/III, dated 22.4.2010 the matter has already been clarified by the Federal Government that by the notification dated 29.6.2007 only the posts of LDCs/Junior Clerks, UDCs/Senior Clerks and Assistants/Head Clerks/Senior Auditors were upgraded; and that the nomenclature of the post held by the petitioner being a different from the posts mentioned in the said notification, the petitioner has no right to ask for the upgradation of his post.

5. Arguments heard. Record perused.

6. Through the instant writ petition the petitioner has not claimed any relief which relates to the terms and conditions of his service. He has also not alleged violation of any of his legal right, which is guaranteed by the Rules and Regulations of the respondent-Department. He has only agitated before this Court that he has been discriminated by the respondent-department in the matter of upgradation of his post while this benefit has been extended to similarly placed employees of the same department. So, apparently the prayer made in this petition does not come within the terms and conditions of the petitioner's service and is not hit by the bar of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. In forming this view I am fortified by the wisdom laid down by the August Supreme Court of Pakistan in the cases reported as I.A. Sherwani and others v. Government of Pakistan through Secretary Finance Division, Islamabad and others (1991 SCMR 241) and Regional Commissioner Income Tax, Northern Region, Islamabad and another v. Syed Munawar Ali and others (2016 SCMR 859) wherein it has been held that the issue of upgradation does not form part of terms and conditions of service of civil servant. Reliance is also placed on the case of Javaid Hussain Qureshi v. Finance Department, Government of the Punjab through Secretary Finance and 2 others (2004 PLC (C.S.) 586) and Muhammad Hanif and 11 others v. Government of Punjab, through Secretary (I&C) Services General Administration and Information Department. Lahore and 2 others (2004 PLC (C.S.) 1089).

7. The question of alleged discrimination has been examined by this Court. It is claim of the petitioner that job description of Office Assistant and Field Assistant is the same, therefore, granting upgradation to Office Assistant and denying same relief to Field Assistant in the same department amounts to discrimination, which is violative of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973. This stance of the petitioner is substantiated from the available record. In this regard letter of respondent No.5 dated 16.4.2012 wherein he had sought clarification from the Deputy Secretary, Regulations, Finance Division, Regulations Wing, Islamabad is of great importance. For facility of reference the same is reproduced hereunder: "Subject: CLARIFICATION REGARDING UP-GRADATION OF POST UNDER FINANCE DIVISION OFFICE MEMORANDUM DATED 29.6.2007: The undersigned has been directed to refer to Finance Division Office Memorandum No. F.6(4)/RI.2006, dated 29.6.2007 in which clerical posts in BPS-7, BPS-9 and BPS-11 are upgraded (Copy enclosed).

2. Pakistan Bait-ul-Mal runs Diversified Vocational Dastakri Schools in each district all over the country in which poor women folk are imparted free of cost vocational trainings in many disciplines. One (01) post of Field Assistant (BPS-11) is also sanctioned for each DVDS. The post has same pre-requisites for appointment as that of Office Assistant and has also similar job description. The nomenclature of the post is Field Assistant because the post is sanctioned for each DVDS, established in each district. Furthermore, the said post along with the incumbents has been regularized in the year 2010.

3. Clarification is required whether the post of Field Assistant (BPS-11), having the clerical nature of work, may also be up-graded to BPS-14 at par with Office Assistant (BPS-14) or otherwise."

8. In the aforesaid letter respondent No.5 has admitted that pre-requisite for appointment and job description of the two posts i.e. "Field Assistant" and "Office Assistant" are the same. This fact is also strengthened from the detail job description of the "Field Assistant" and "Office Assistant" placed on the record by the respondent-department. Through Office Order No. PBM/Estb/Gen.05/Punjab/1780, dated Islamabad the 30th April, 2015 the petitioner was transferred against an existing vacancy of Office Assistant. He was again transferred against the post of Office Assistant, vide Office Order No.PBM(Pb-I/Estb/ PF-FA-02/7246, dated 14.5.2015. These two transfers of the petitioner further support his version that there is no distinction regarding job, description between the two posts i.e. Field Assistant and Office Assistant. Even otherwise mere difference of nomenclature does not disentitle the petitioner from the same benefit which has been granted to similarly placed employees of the same department. In these circumstances, I am of the view that the petitioner is being discriminated by the respondents, which is not permitted under Article 25 of the Constitution of Islamic Republic of Pakistan, 1973. The law requires that similarly placed persons, must be treated alike and criterion of distinction, must be based on intelligible differentia having nexus with the object of the law. In the case of Javaid Hussain Qureshi v. Finance Department, Government of the Punjab through Secretary Finance and 2 others (supra) this Court while dealing an identical matter has observed that when the qualification for both the posts was the same and both the officials were performing the same duties, the petitioner could not be treated differently. It has further been observed that the principle 'equal pay for equal work' although not specified in the Constitution as Principle of Policy, yet it was built in Article 3 of the Constitution. Learned counsel for the respondents has failed to draw any distinction between the two posts except of nomenclature, which is immaterial in view of the case reported as Abid Hussain and 5 others v. Secretary to Government of the Punjab, Finance Department, Civil Secretariat, Lahore and 5 others (2012 PLC (C.S.) 26). In this view of the matter, this Court is of the considered view that the petitioner has been deprived of the right of up-gradation without any justifiable reason or ground. The interpretation of notification dated 29.6.2007 made by the respondent-department is against the settled principle of reasonable classification defined by the superior courts of this country.

9. In view of above, the instant writ petition is allowed and the respondents are directed to grant the petitioner same scale i.e. BPS-14 as has been granted to Office Assistant from the date when he became eligible for the same. No order as to costs. ZC/A-45/L Petition allowed.