2023 PLP 46 (PLC)

NOOR ZAMAN, MEMBER.

Mr. Zulfiqar Ali and Hazrat Muneer petitioners were appointed as Security Guards in the respondent establishment respectively on 12-11-1985 and 17-06-1987. In memo. of petition they contended that they are respectively at Serial Nos.2 and 9 of seniority list of operational staff working in Maintenance Division-V, Faisal Masjid Islamabad. That the respondents Nos.3-5 are junior to them and exist respectively at Serial Nos.17, 21 and 28 of the seniority list. That notwithstanding this fact they have been upgraded to the post of Security Supervisors on 02-08-2012 ignoring the petitioners. Being aggrieved of this up-gradation/promotion of these junior colleagues, they served grievance notice on employer on 29-08-2012 and having no response this petition.

2. This petition was instituted on 08-11-2012. Respondent No.1 submitted defense reply on 17-04-2013. The case was however adjourned sine die, because of a pendency of suo motu case on the subject in the Hon'ble Supreme Court. The Supreme Court has now disposed the case and the petitioner requested to revive the petition.

3. The case was fixed on 10-04-2020 for hearing the petitioner Mr. Hazrat Muneer for himself and on behalf of the other petitioner appeared and explained his case. He stated that there was no post of Security Supervisor, but the management without creation of posts and fixing any criteria upgraded/promoted the respondents Nos.3-5 who are junior to the petitioners and that now they are their superiors.

4. Respondent No.4 present before the Bench along with learned counsel Mr. Muhammad Farooq Iqbal Khan, stated that post of supervisor has been created and criteria of Matric has been laid down for promotion/up-gradation of Security Guard to this post. Respondent No.4 reiterated the contention and promised to provide notification/circular for creation of the post of Security Supervisor. On the same day, Respondent No.4 provided Notification No.CDA-7(50)HRD-III/2009/Sec-V1/3130, dated 29th September, 2009 whereby post of Security Supervisor has been created and Matric has been made required for promotion to the post of Security Supervisor. Relevant portion of the notification is reproduce below:- "I am directed to convey that the CDA Board vide decision No.9475/1166/09/726/BF dated 21-08-2009 has solicited approval regarding separation of enforcement Cadre from Security Cadre. The Board has also approved the creation of post of Director Enforcement (BS-19) to be filled by transferring a post from Executive Cadre. The appointment criteria of the post Enforcement Directorate and Security Directorate was also approved by the Board". The criteria of appointment are attached." CRITERIA FOR APPOINTMENT TO THE POST OF Security Supervisor by promotion is as under S.No. Name of Post with basic pay scale Person eligible for promotion to the post in column No.1 Minimum qualification and experience and other conditions as per service Regulation, 1992. (1) (2) (3)

1. Security Supervisor (BS-8) Security Guard (BS-5) Intermediate with 10 years' service in the post of specified in column No.2 or Matric with 15 years service in the post of specified in column No.2. The Hon'ble Sindh High Court in 2020 PLC (C.S.) 204 (Arif Hussain v. FOP) held that the authority was competent to approve certain changes, of the permanent post on fulfillment of other formulation prescribed by the authority Board. The Hon'ble Supreme Court in (PLD 2015 SC 6) held that courts ordinarily refrain from interfering in policy making domain of the Executive and in absence of any mala fide or allegation the competent authority's decision with respect to the appointment on promotion cannot be interfered unless it is shown that the incumbent are not fulfilling the criteria as set forth by, the competent authority, which is not in the instant petition.

5. The petitioner himself consented to an appropriate order, if the respondent No.4 produced a notification for creation of Security Supervisor. The petitioners have no Matric qualification, therefore, they are not eligible for promotion to the post of Security Supervisor and the respondents Nos.3-5 have been legally promoted in line with notification mentioned above. The authority has discretion to determine criteria for promotion to certain post other then length of service. Therefore, the petition has no force of law, it is dismissed. Parties are left to meet their own cost. SA/1/NIRC Petition dismissed.