2014 PLP (C (PLC(CS))

MIAN FASIH-UL-MULK, J.

Petitioner is the widow of late Abdur Rahim, who was serving in the Education Department as Superintendent (PBS-16) and stood retired as such on 5-12-1995. The Provincial Government, however, on 30-10-1993 vide No.FD(PRC)/4-1/91 had adopted the policy to grant 33% selection grade (BPS-17) to holder of the posts of Administrative Officer etc. (BPS.16) along with Superintendents on joint seniority list but subject to the conditions that the Administrative Department/Services and General Administration Department shall change the method of appointment to the post of Administrative Officer, Accounts Officers and Assistant Accounts Officers etc in the respective recruitment and appointment rules; and that selection grade shall be effective from the date of notifying the changed method of appointments

2. The Education Department did not comply the above order within reasonable time, which was acted upon in the year 2002 and that too with effect from 19-7-1999 instead of 30-10-1993. The aggrieved Superintendents etc filed appeals before the Khyber Pakhtunkhwa Service Tribunal, where their appeals were accepted and they were held entitled to selection grade w.e.f. 30-10-1993 as per seniority position.

3. The above order of Khyber Pakhtunkhwa Service Tribunal was challenged by the Department before the august Supreme Court of Pakistan in Civil Petitions Nos.35-P to 51-P and C.P. 301-P of 2007. The apex Court vide judgment dated 5-3-2010 dismissed the appeals of the Department with the following observations made in Paras.6 and 7 of the judgment, which reads as under:

"It is pertinent to mention here that the department cannot be allowed to sleep for any indefinite period to amend the rules and to prepare seniority list at the cost of the respondents, who are government employees and they are always anxious about their promotion or to get benefit of the service as early as could be possible. Unfortunately, in instant case, after issuance of the policy letter dated 30th October 1993 rules were amended in 1997 but perhaps the seniority list was prepared later on and on account of such slackness, the respondents had suffered a lot and ultimately in 2001 they were given selection grade and in the meantime, some of them stood retired. We are, therefore, of the opinion that under these circumstances the Service Tribunal has rightly granted relief to the respondents and judgments passed by it, being unexceptionable, admit no interference by this Court. It is informed by the learned counsel appearing for the respondents that despite lapse of about more than 16/17 years, the judgments of the Service Tribunal, passed in favour of the respondents, have not been implemented. In such state of affairs, we direct the concerned authority to implement the same within a period of four weeks and send a compliance report to the Registrar of this Court, for our perusal in Chambers."

4. Grievance of petitioner in the instant writ petition is that her husband was in service in the year 1993 and in view of the judgments of the Service Tribunal as well as Hon'ble Supreme Court of Pakistan, he was entitled to the benefits of selection grade being at S.No.9 of the seniority list coupled with the fact that juniors to him have already been granted such benefit.

5. The stance of respondents in their comments is that husband of petitioner was retired from service in the year 1995 and he remained alive till the year 2007 but he never agitated the matter of his promotion and now at such a belated stage, the instant writ petition being suffering from serious laches, no relief can be granted to the petitioner.

6. Arguments heard and record perused.

7. Admittedly, selection grade was allowed by the Provincial Government vide notification dated 30-10-1993 at a time when husband of petitioner was in service. However, the department concerned acted upon the order of Provincial Government in the year 2001 and granted such benefit to eligible employees with effect from 19-7-1999, on which date, husband of petitioner was not in service having been retired. The matter was taken to the Service Tribunal by the aggrieved employees, which was decided on 15-8-2006, and finally the matter was agitated before the apex Court; thus final verdict in the case was announced on 5-3-2010, on which date, husband of petitioner was not alive for agitating the matter of his promotion because at the time of his retirement, no selection grade was granted to the Superintendents, which was granted to various Superintendents after his retirement and then the matter remained pending adjudication before the competent Courts till 5-3-2010. The judgment of the apex Court was implemented by the Department on 26-4-2010 and the petitioner agitated the matter of selection grade of her husband before the Secretary Elementary and Secondary Education as well as Director Secondary Education, Khyber Pakhtunkhwa through appeal dated 19-5-2010 just within a period of one month from implementation of the judgment of the august Supreme Court of Pakistan. We, therefore, find no inordinate delay in filing the instant writ petition.

8. When there is no denial to the fact that selection grade has been granted to Superintendents w.e.f. 30-10-1993, on which date husband of petitioner was in service as Superintendent (BPS.16), being senior on the seniority list and similarly placed with those incumbents who too were retired during the period of pendency of litigation but were allowed the said relief in the light of judgments of Service Tribunal and Hon'ble Supreme Court of Pakistan, he cannot be discriminated against by the Department for the reason of raising the matter at a belated stage.

9. Accordingly, petitioner, who is widow of Abdul Rahim Superintendent is entitled to the relief prayed for in this writ petition. We, therefore, direct the respondents to treat the petitioner's husband at par with the persons who have been given benefits of selection grade (BPS-17) despite of their retirement in the light of judgment of the apex Court. The petitioner would consequently be entitled to pensionary benefits of her husband by including the benefits of such selection grade into his emoluments/pension.

10. For the reasons stated above, this writ petition is admitted to regular hearing and accepted in the terms stated above. JJK/2/P Petition accepted.