2018 PLP (C (PLC(CS)N)

ABDUL SHAKOOR, J.

Through the instant petition, being filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioners Gul Zarif and two others have asked for issuance of direction to the respondents to upgrade the post of petitioners from BPS-17 to BPS-18 and BPS-16 to BPS-17 with all back benefits.

2. Brief facts as spelt out from the writ petition are, that petitioners Nos.1 and 2 have been shown to be holding BPS-17, whereas petitioner No.3 is holding BPS-16. In the year 2010, the Government of Khyber Pakhtunkhwa vide notification dated 11.10.2010 laid down criteria for the up-gradation of the posts in the entire departments of the Province, as a result whereof 2 officers of the respondent department have been up-graded from BPS-17. In the absence of service structure for the employees of the respondent department, it was decided that up-gradation of 21 officers shall be on personal basis. The petitioners in year 2014, have also qualified to be up-graded from BPS-17 to BPS-18 and BPS-16 to BPS-17 like the aforesaid officers of the department. They despite being eligible for up-gradation, have not been considered for up-gradation like aforementioned officers. Petitioners have been moved from pillar to post for their up-gradation like other 21 officers but of no avail. Resultantly, they were left with no other option but to invoke the constitutional jurisdiction of this Court for the redressal of their grievance through the instant writ petition.

3. The respondents, in their comments, took the stance for refusing the up-gradation to the petitioners that other officers who have been up-graded on personal basis were having the different cadre than the cadre of present petitioners.

4. The learned counsel appearing on behalf of petitioners, in support of claim of the petitioners, argued that the respondents, in view of the criteria laid down in the notification referred to above, have qualified to be up-graded like the other officers, but despite that no steps or measures have been taken by the department to treat the petitioners at par with the other employees, thus it is a clear discrimination meted out to the petitioners and the respondents in the face of the command of Article 25 of the Constitution could not make a discrimination between the employees of the same department having similar case and position. He further contended that stance of the respondents that petitioners have not been accorded the similar treatment like other officers as they were having different cadre, is not tenable in view of the criteria laid down for the said purpose.

5. The learned Additional Advocate -General, appearing for the respondents, contended that the petition in hand is not maintainable for the reason that up-gradation falls within contemplation of terms and conditions of service, thus the petition in hand is hit by Article 212 of the Constitution. He next submitted that the cadre of petitioners was altogether different than the cadre of other officers whose post has been up-graded from BPS-17 to BPS-18.

6. We have heard learned counsel for the parties very carefully and also perused the record very minutely.

7. As far as the contention of learned Addl: A.G., that instant petition is hit by Article 212 of the Constitution, is concerned, same has no force for the reason that the apex Court in the case of Ali Azhar Khan Baloch, which is reported as 2015 SCMR 456, while dealing with the matter of up-gradation of civil servants, has held that up-gradation of civil servant does not fall within the contemplation of terms and conditions of their service. Thus, in view of the case law laid down by the apex Court in the case (supra), this Court has got the jurisdiction to entertain the petition in hand for its disposal.

8. As far as the second contention of learned Addl: Advocate General that the cadre of petitioners was different than those whose post has been up-graded from BPS-17 to BPS-18 is concerned, same is not supportive of any rule, regulation as well as the criteria on the basis of which their posts have been up-graded from BPS-17 to BPS-18. The criteria laid down in notification dated 11.10.2010 is as under: UPGRADATION OF POSTS PROPOSED DUE TO INDIVIDUAL HARDSHIP CASES. (a) "Proposals for up-gradation of certain posts due to the reasons that some civil servants do not have further promotion chances and have stayed on one position for reasonably long time will be placed before the committee for consideration only if the proponent departments provides following information: (i) Reasons due to which concerned Government servant is unable to be promoted in Normal procedure. (ii) All requisite details about creation of such posts and formulation of service rules with particular reference to the reasons as to why the service rules cannot give career progression to the holders of these posts. (iii) Whether organizational structures as well as service rules need revision to avoid recurring of the hardship to the future entrants. (iv) The steps taken by the department concerned to resolve such hardships on permanent basis. (b) The committee after proper scrutiny of case in terms of above parameter and if satisfied that the up-gradation of certain posts is the only solution may make its recommendation to the competent authority for up-gradation on personal basis provided that: (i) There shall be no up-gradation of posts beyond BPS-19 in such cases. (ii) Such recommendation will only be made in case where there are absolutely no promotion prospects in the service structure for incumbent of said post (s). (iii) No such recommendation will be made in a case where the incumbent has less than 10 years of stay on one and the same position. (iv) The incumbent has not been earlier elevated in the existing pay scale by personal up-gradation. (v) The proposed up-gradation will be personal to the incumbent and the post shall stand downgraded as and when vacated by such incumbent". A bare look at the criteria laid down for the up-gradation shows that the employees who have been stayed in the same scale for the 10 years and having no future prospects for promotion, have been held entitled for up-gradation in next scale. It does not talk about any such thing which respondents advanced for refusal of up-gradation of petitioners. Thus, the stance of respondents is having no legal force at all on the strength of which they have denied the benefit of up-gradation to the petitioners viz-a-viz other 21 officers. The facts of the case of petitioners clearly indicate that they have completed ten years service in the same scale in the year 2014 and there is no chance of their future promotion for the reasons that there is no service structure for their progression, promotion or up-gradation.

9. Even otherwise, the learned counsel for the respondents could not put forward any intelligible differentia between the case of present petitioners and those employees whose post was up- graded from BPS-17 to BPS-18 for the purpose of different treatment. When there is no intelligible differentia, between the one set of employees against the others of the same, department, then they have to be treated alike for the purpose of benefits extended to one set of employees and denied to others. The Honourable Supreme Court in the case reported in 1991 SCMR 1041 (I.A. Sharwani v. Government of Pakistan), while dealing with such situation as in case in hand, has held that: "(i) that equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike; (ii) that reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis; (iii) that different law can validly be enacted for different sexes, persons in different age groups, persons having different financial standings, and persons accused of heinous crimes; (iv) that no standards of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances; (v) that a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25; (vi) that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed; (vii) that in order to make a classification reasonable, it should be based

(a) on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out; (b) that the differentia which distinguishes must have rational nexus to the object sought to be achieved by such classification". Keeping in view the above principles, the petitioners are also entitled to be treated alike others who have been up-graded to BPS-18.

10. For reasons mentioned herein above, we accept this writ petition and direct the respondents to place the case of petitioners before the Up-gradation Committee for their up-gradation like other officers, who have already been up-graded from BPS-17 to BPS

18. ZC/293/P Petition allowed.