2010 PLP (C (PLC(CS))

IJAZ-UL-AHSAN, J.

Through this order, I propose to decide Writ Petition No.20381 of 2009 and Writ Petition No.9734 of 2009, as common questions of law are involved in both the petitions.

2. The petitioners were appointed as Probation/Parole Officers in BPS-16 in the Directorate of Reclamation and Probation Department through Punjab Public Service Commission. They possessed Master's degrees in Social Sciences and presently are performing functions in different Districts of the Province.

3. The main grievance of the petitioners is that despite recommendation of all concerned departments that the basic pay scale of Probation Officers be upgraded to BPS-17 from BPS-16, such recommendations are not being implemented. Further, as there are remote chances of rank promotion for them, they are entitled to be awarded time scale to BS-18, 19 and 20 after each 8 years, so that post-graduate government servants, entering in government service with BS-17 should have three steps up after 25 years of service. It is pointed out that similarly qualified government officials who join service in other departments including Social Welfare Education Health and Prisons Departments are granted BS-17 at the time of their induction. However, the petitioners are being discriminated against without just cause.

4. The petitioners had earlier filed Writ Petition No.3970 of 2009 (Samia Iqbal v. Government of Punjab) in which the same relief was sought. It appears that the Home Department supported the contentions of the petitioners. However, the Finance Department approved the same. After hearing the parties, the aforesaid petition was disposed of vide order dated 5-5-2009. The matter was referred to the Chief Secretary, Government of Punjab with the following observations:

"In the offending circumstances, it shall be appropriate to refer to the matter to the Chief Secretary, Government of the Punjab with a direction to look into the matter of his personal end, constitute a high-powered Committee. for resolving the petitioner's grievance and then the matter be finally resolved within a period of three months from today ..." The learned counsel for the petitioners has also drawn my attention to a note written by the Additional Secretary, Home Department addressed to the Home Secretary recommending that a summary may be moved with the Chief Minister for restructuring the Directorate of Probation and Reclamation through creation and upgradation of posts of Probation Officers and Parole Officers. He submits that despite such recommendation, no such summary has been moved. However, pursuant to the aforesaid order passed by this Court, a high-powered Committee was constituted, which gave its recommendations. According to the learned counsel, the aforesaid high-powered committee totally missed the ratio of the judgment and the recommendations made by it do not address the issue.

5. The department has filed its parawise comments, which have been examined. The learned Additional Advocate-General appearing on behalf of the respondents submits that the high-powered Committee which met under the chairmanship of Additional Chief Secretary examined the matter of upgradation of the post of Parole and Probation Officers in considerable detail. It examined the service structure of the Department including the posts of petitioners i.e. Parole and Probation Officers and made following recommendation:

"In accordance with the Punjab Directorate of Reclamation and Probation Service Rules, 1983, 90% of the post of Parole and Probation Officers are filled by direct recruitment through Punjab Public Service Commission from the candidates possessing qualification of Master's degree in Social Work or Social Welfare or Sociology or Rural Sociology from a recognized University. In the Rules no condition/restriction of Division/Grade of the Master's degree is mentioned. On the recommendation of the Punjab Public Service Commission, the Parole/Probation Officers are offered the job in BS--16 to which they give their acceptance to join as such. The best graduates are not attracted to this post and are also at liberty to compete for and join on selection any post in any other Department with the same qualification. The committee reached the conclusion that the upgradation of the posts of Parole/Probation Officer is not justifiable as they accept the job in BS-16. Therefore, the existing scale of BS-16 should continue to be offered for initial recruitment to the post." He points out that on the recommendation of the committee, the Finance Department has already upgraded one post of Director (Reclamation and Probation) from BS-18 to BS-19, one post of Deputy Director from BS-17 to BS-18, one post of Superintendent Certified School, Sahiwal from BS-17 to BS 18 and 9 posts of Assistant Directors from BS-16 to BS-17 in the Directorate of Reclamation and Probation, Punjab with immediate effect. He submits that it was observed that the posts other than the Parole and Probation Officers in the Directorate of Reclamation and Probation have already been upgraded, therefore, it was proposed that the officers of the departments may be allowed special allowance equivalent to one month initial basic pay as was proposed for officers/officials of the Prisons Department in Punjab. Accordingly, the Finance Department has already allowed special allowance @ one pay equivalent to the initial of relevant pay scale to the officers of the Directorate including the petitioners w.e.f. 15-7-2009. It is, therefore, submitted that the order of this Court has duly been complied with. The learned Additional Advocate-General has also raised a preliminary objection regarding maintainability of this petition. He submits that the issue raised in the writ petition i.e. upgradation of posts is a matter directly related to terms and conditions of service. He points out that such matters fall within the exclusive purview of Service Tribunal and jurisdiction of this Court is barred in terms of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. In this regard he has placed reliance on PLD 1983 SC 100, PLD 1995 SC 530, 1998 SCMR 2280 and 1999 SCMR 784.

6. The learned counsel has also placed on record a judgment of a Division Bench of this Court rendered in I.C.A. No.955 of 2009, in which it has been held that the question of upgradation of post is a matter of policy, which cannot be interfered with by this Court in exercise of its constitutional jurisdiction.

7. I have heard the learned counsel for the parties at length and have also examined the record with their assistance. It is noticed that the order dated 11-11-2008 passed by this Court was complied with insofar as a high-powered Committee comprising Senior Officials was constituted under the chairmanship of Additional Chief Secretary Punjab. After considering the grievance of the petitioners, the Committee arrived at the conclusion that the upgradation of the post of Parole/Probation Officer is not justifiable as they accept the job in BS-16 at the time of their appointment. Therefore, the existing scale of BS-16 should continue to be offered for initial recruitment to the post. The Committee, however, made other recommendations relating to upgradation of the posts of Assistant Director, Deputy Director and Director and also made other recommendations to streamline the service structure of the employees of the Directorate. The Committee also recommended that the case may be moved to Service Rule Committee of the Service and General Administration Department for amendment in the Punjab Directorate of Reclamation and Probation Service Rules, 1983 incorporating its recommendations. The contention of the learned counsel for the petitioner that the order of this Court has not been complied with is, therefore, not. well-founded. Notwithstanding the fact that the petitioners do not agree with the reasoning and recommendations of the Committee, their grievance has been taken up and discussed by the Committee. If the Committee has not recommended upgradation of the post, the petitioners may have a grouse with such recommendation, however, it cannot be said that the Committee did not follow the ratio of the judgment of this Court or that it failed to comply with the same. The question of upgradation of a post is a matter of policy, which cannot be' interfered with by this Court in exercise of its constitutional jurisdiction. An upgradation cannot be claimed by an employee as a matter of right. Reference in this regard may be made to the view of the honourable Supreme Court of Pakistan as expressed in judgment reported as Muhammad Faisal Khatak v. Chief Secretary Government of N.-W.F.P. and others 2009 SCMR

980. Further, it is apparent that the question of upgradation pertains to terms and conditions of service. The constitutional jurisdiction of this Court in such matters is barred under the provisions of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. The petitioners have an effective and efficacious remedy available to them by way of approaching the Service Tribunal, which has all the requisite powers to redress the grievance of the petitioners.

8. For the aforesaid reasons, I do not find this to be a fit case for interference iii exercise of constitutional jurisdiction of this Court. Consequently, these petitions fails and are accordingly dismissed. A.R.K./S-147/L Petitions dismissed.