2011 PLP (C (PLC(CS))

SHAHID ANWER BAJWA, J.

These constitutional petitions were finally heard at Katcha Peshi stage and are being decided accordingly.

2. Order dated July 2, 2009 was issued by the Secretary, Excise and Taxation Department Government of Sindh. This order stated that 26 posts, detailed therein, of Excise & Taxation Officers were being abolished and up-graded/re-designated as posts of Deputy Directors (Senior Excise and Taxation Officer) BS-18 with immediate effect subject to the conditions that Officers will be promoted against the up-graded posts on the basis of seniority as per rules through Departmental Promotion Committee. Thereafter DPC was held and 24 Officers were recommended while case of 2 Officers were deferred including the Petitioner in C.P No.1537 of 2009 who was deferred for the reason that he had not acquired any ACR since 22-2-2005 as he had been on extra ordinary leave and was awaiting posting when this Constitution Petition was filed by the petitioner with a prayer that deferment of his promotion be declared as unlawful illegal, unconstitutional and mala fide and directing the respondents to promote the petitioner to the next higher grade. On the other hand Constitution Petition No.448 of 2010 was filed by the 10 petitioners, they being the persons who had not being promoted as out of total 91 posts of Excise and Taxation Officers only 26 posts had been upgraded. They prayed that up-gradation of only 26 posts instead of all the posts be declared as illegal etc. and respondents be directed to upgrade all the posts.

3. Learned counsel for the petitioner submitted that there are no rules for up-gradation and concept of up-gradation was that when the Government, consequent to its having come to the conclusion that an employee, given the existing structure, does not have any chance of promotion and is, therefore, blocked in his career, up-grades the post so as to alleviate sense of misery of the incumbent. Learned counsel relied upon Gulzar Ali Khushhk and others v. Province of Sindh and others C.P. No.2448 of 2008 decided by a Division Bench of this Court on 25-1-2010.

4. Mr. Adnan Karim learned Assistant Advocate General Sindh referred to the Notification dated July 2, 2009 and submitted that 26 posts of BS-17 had been abolished and in their place 26 posts of BS-18 had been created and a transparent process had been designed that promotion shall take place on the basis of seniority and recommendation of Departmental Promotion Committee in accordance with the rules. In respect of petitioner in Constitution Petition No.1537 of 2009 the learned A.A.-G. referred to the comments and submitted that one post of BS-18 has been kept vacant for this petitioner and his case will be considered once he has earned at least ACR. He further submitted that this petitioner had been on extraordinary leave from 22-2-2005 to 22-4-2008 and since 31-5-2008 till the filing of the comments which were filed in September, 2009 has been awaiting posting on administrative grounds. He submitted that 33% of the posts of BS-17 were surrendered and in their place 33% posts of BS-18 were created. He placed on record a working paper submitted by the Deputy Director Administration which evidences that consequent upon up-gradation of the posts amendment in the rules is under consideration of the Sindh Government. Learned A.A.-G. distinguish the case of Gulzar Ali Khushhk (supra). He relied upon Muhammad Farid Kattak and others v. Chief Secretary Government of N.-W.F.P. and others 2009 PLC (C.S.) 752.

5. We have considered the submissions made by the learned counsel and have also gone through the record as well as case law cited at the bar.

6. As far as the factual context is concerned that obviously trite and simple; 26 out of 90 posts have been up-graded. Contention of the learned counsel for petitioners is that if post is up-graded the holder of the post is automatically promoted and if 1 post is up-graded all others similar posts must also be up-graded: If one, then all is the rule, so the learned counsel contended. Contention of the Provincial Government is that only 26 posts have been upgraded and up-gradation is different from promotion and for promotion the rules are being followed.

7. Learned counsel for the petitioner very heavily relied upon judgment of this Court in Gulzar Ali Khushhk's case (supra). The petitioners in that case were Assistant Engineers (BS-17) in Rural Development Department. One of their colleagues made a representation to the Minister for up-grading of his post and re-designation it as District Officer (Technical). Up-gradation involved move from BS-17 to BS-18. This was approved by the Chief Minister. Post was up-graded to BS-18 but the benefit was extended only to those who had completed 15 years of service as Assistant Engineers. The petitioners in that petition had not completed 15 years and they challenging the condition of 15 years for up-gradation. Operative part of the Notification was quoted in the Judgment and it was in' the following words:

"No.SO(A)RD/1-13/08. In pursuance of Government of Sindh, Finance Department advise contained U.O.No.FQ(SR-IV)2-36/2008, dated 21-7-2008, Sanction is hereby accorded for up-gradation of the posts of Assistant Engineer, Rural Development Department from BS-17 to BS-18 and redesignated as District Officer (Technical)/Town Officer (Technical) to those who have completed 15 years service in the cadre containing names of the 39 incumbents presently working against the 52 sanctioned posts as per list given below:--" Thereafter in para 13 it was held as under: ".... cases of promotion are regulated in accordance with the relevant rules framed for such purposes and every potential candidate after fulfilling the prerequisite has legitimate expectations to be considered for promotion to the next -cadre.

8. This petition was consequently allowed. It may be pointed out that it was specifically noted in the Judgment (Para 4 thereof) that Notification in question named the persons who had been up-graded. On the other hand learned A.A.-G. relied upon Muhammad Farid Kattak's case (supra). The appellants were deputed by Khyber Medical College Peshawar to Jinnah Post Medical Centre Karachi in 1974 for under going course of B.Sc. in Medical Technology. Some got degree in Clinical Group while other got in Radiology Group. Thereafter they were appointed in BS-16. Post of Chief Radiographer/Chief X-ray Technician was advertised and one of the person who had got the degree in Radiological Group was selected and appointed. Subsequently post of Medical Technologist was advertised against which one Muhammad Anwer was selected. This was a post in BS-17. It was contended that prescribed qualification for Chief Radiographer was diploma in Radiography and the post of BS-17 whereas the prescribed qualification for Medical Technologist (Clinical Group) was B.Sc. Medical Technology and was placed in BS-16. It was contended that B.Sc. Medical Technology is a qualification higher than Diploma in Radiography and therefore such placement is in violation of law. The Supreme Court observed as under:

".... It would be pertinent to mention here that it is for the Government to place a particular post in any grade or prescribe certain terms and conditions therefore, as per its policy, and incumbents of a particular post cannot claim as of right for settlement of prescription or provision of certain terms and conditions according to their own choice. It is always open for a candidate to accept or not the .teams and conditions prescribed, for a particular post. It is well-settled that nobody has a vested right in policy decision of the Government and therefore, the Service Tribunal too is divested of the power to indirectly set aside the public policy decision in exercise of its power under the Service Tribunals Act, 1973 and the rules framed thereunder.

9. Facts and the legal question involved in Muhammad Farid Kattak's case (supra) has here no nexus with the facts and legal question involved in the present case. However even the case of Gulzar Ali Khushhk (supra) is distinguishable, In Gulzar Ali Khushhk case posts were up-graded and Notification was issued by name and it was prescribed that only the post where employees had worked for 15 years have been up-graded. What has been done in the present case Notification states that posts have been up-graded not in terms of names of the incumbents but in terms of the posts specified. It is 26 of 91 posts which have been up-graded. Thereafter it has not been a situation where the holder of such particular posts at that particular time has been promoted. What has been done is that irrespective of the person holding that particular post at that particular time, certain posts have been up-graded. Such discretion cannot be disallowed to the Government for example there are District Coordination Officers in each District. Suppose the Government comes to the conclusion that a particular District or a particular number of Districts specifies have more onerous responsibilities and therefore decides to up-grade that post of DCOs. In their District such an exercises of discretion by the Government cannot be held to be without lawful authority. Same would be a situation in case of Police Station and Police Districts. We don't know anyone who can order that a quantum of work, the complexity of work and the Stakes involved in all Police Stations and in all Districts must be exactly equal and identical.

10. What is more important is that certain posts of BS-17 have been abolished. Consequently post of BS-18 has been created and then a process is prescribed for promotion through Departmental Promotion Committee is cannot be said to be in violation of law.

11. As far as case of petitioner in Constitution Petition No.1537 of 2009 is concerned this Court cannot be a Judge of fitness for promotion. That is for the departmental authorities to determine. Result of the above discussion is that these petitions are dismissed. Listed applications are disposed of. H.B.T./Z-25/K Petitions dismissed.