2013 PLP (C (PLC(CS))

IQBAL HAMEEDUR RAHMAN, C.J.

Through the instant constitutional petition under Article-199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has made the following prayers:

"It is, respectfully prayed that the instant writ petition may kindly be accepted and the respondents may graciously be directed to grant the move-over from BPS-17 to BPS-18 as given to the other officers of Pakistan Railway namely Fazal Karim, Assistant Signal Engineer and Muhammad Anwar Assistant Work Manager having the same status w.e.f. 1-12-1991 to 26-12-1995 and the back-benefits of the said move-over may also be calculated for the purpose of pensionary benefits and directions for the payment of all the back-benefits may also be given to the respondents. It is further prayed that the last pay drawn by the petitioner may kindly be revised and the pensionary benefits of the petitioner be re-calculated and the same be paid to him along with all back benefits."

2. The petitioner, in the writ petition has alleged that he served Pakistan Railway for about 39 years in different positions and had retired as Mechanical Engineer w.e.f. 26-12-1995 vide letter dated 24-12-1995. The petitioner was appointed on 1-10-1955 in the respondent department as apparatus and due to his excellent performance he was promoted as Foreman Grade-III, BPS-16 in April, 1976 and thereafter, was promoted as Assistant Mechanical Engineer on acting charge basis in Rawalpindi Division in BPS-17 w.e.f. 27-4-1985 vide letter dated 1-12-1986. Thereafter, upon the approval of the Departmental Promotion Committee, the petitioner was promoted to BPS-17 on acting charge basis w.e.f. 27-4-1986 vide letter dated 31-1-1987. The petitioner has alleged that he was at the maximum stage of BPS-17 by way of move-over but he was deprived from his legitimate right of move-over in BS-18 since 1-12-1992, hence, the instant writ petition.

3. In response to the notice issued to the respondents, written comments have been filed by the respondents.

4. Learned counsel for the petitioner has argued that the petitioner was entitled for move-over in BPS-18, as he was working in BPS-17, on acting charge basis, whereas, the respondents have adopted discriminatory attitude towards the petitioner, as the benefit of move-over was extended to a number of colleagues of the petitioner.

5. Conversely, learned counsel for the respondents has argued that the issue involved in the instant writ petition relates to the terms and conditions of service of the petitioner, hence, the petitioner could not invoke the constitutional jurisdiction of this Court in view of the bar contained under Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973; that the petitioner was promoted on acting charge basis against the post of BPS-17, hence, he is/was not entitled for move-over to BPS- 18 and the writ petition is hit by principle of laches as the petitioner was retired from service in 1995, whereas, the instant writ petition was filed in the year 2011.

6. I have heard the learned counsel for the petitioner as well as learned counsel for the respondents and perused the documents appended with the instant writ petition.

7. The petitioner through the instant writ petition has prayed for grant of move-over from BPS-17 to BPS-18, as such, the prayer made through the instant writ petition relates to the enforcement of the terms and conditions of service of the petitioner. By virtue of Article-212 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner could not invoke the constitutional jurisdiction of this Court under Article- 199 of the Constitution of the Islamic Republic of Pakistan, 1973, hence, the instant writ petition is not maintainable. It would also not be out of place to mention here that the Hon'ble Supreme Court of Pakistan in the judgment reported as Pakistan Railways through G.M. Lahore and another v. Zafarullah, Assistant Electrical Engineer and others (1997 SCMR 1730) has held that:

"Move-over

Essential condition

Guidelines for considering cases of move-over of employees

Appointment of civil servant on acting charge basis/current charge basis

Entitlement to move-over to next grade

Appointment by way of acting charge or on current charge basis being not of permanent nature but only stop-gap arrangement; same would not confer any vested right for regular promotion to that post and such appointment would not amount to a regular appointment against the post or cadre, or confer any right to claim seniority or move-over

One of the essential conditions for grant of move-over is that the persons concerned must be a regular member of the service, cadre or post concerned." Underlining is mine.

8. In view of what has been discussed above, I feel no force in the instant writ petition. Resultantly, the same stands dismissed. KMZ/22/Isl. Petition dismissed.