2024 P L C (C.S.) 482
[Balochistan High Court]
Before Muhammad Hashim Khan Kakar and Gul Hassan Tareen, JJ
FAIZ MUHAMMAD
Versus
PROVINCE OF BALOCHISAN through Chief Secretary, Civil Secretariat, Quetta and
others
C.P. No.1242 of 2022, decided on 22nd August, 2022.
Civil service ---
----Post, upgrading of ---Principle ---Doctrine of laches ---Applicability ---Petitioner sought
upgrading of the post in which he was serving---Validity ---Petitioner could not claim up-
gradation as a matter of right, nor it could be made to benefit a particular individual i.e. the petitioner, in terms of promoting him to a higher post ---Issue of need of restructuring, reform
or to meet exigency of service in public interest and absence of isolated post was not involved in the matter ---In absence of such pre -conditions, up- gradation was not permissible
to petitioner ---Notification of posting of respondent official was issued on 22- 04-2019,
whereas petitioner assailed the same on 04 -08-2022, i.e. after 3 - 4 years ---Petitioner did not
explain delay caused in filing of petition, which suffered from laches and was not maintainable ---Constitutional petition was dismissed, in circumstances.
Regional Commissioner Income Tax, Northern Region, Islamabad and another v.
Syed Munawar Ali and others 2016 SCMR 859; Ali Azhar Khan Baloch and others v.
Province of Sindh and others 2015 SCMR 456; Federal Public Service Commission through
Secretary v. Anwar -ul-Haq (Private Secretary) Islamabad and others 2017 SCMR 890; Fida
Muhammad v. Government of Khyber Pakhtunkhwa through Secretary Education, Peshawar and others 2021 SCMR 1895; Muhammad Amjad v. The Director General, Quetta Development Authority and another 2022 PLC (C.S.) 594; 2022 SCMR 797; Hafiz Khalid Irshad v. Ahmed Khan Wattoo 1997 SCMR 1124 and Peer Muhammad v. Government of Balochistan through Chief Secretary and others 2007 SCMR 54 rel.
Inamullah Khan Kakar for Petitioner.
Date of hearing: 11th August, 2022.
ORDER
GUL HASSAN TAREEN, J. ----The petitioner namely Faiz Muhammad, was
appointed as Social Welfare Officer in B -17 in 1992, and on 29th September, 2016, he was
promoted to the position of Deputy Director B -18. The Government of Balochistan, Social
Welfare Department has planned to establish more Medical Social Services Projects to supplement, monitor and evaluate to ensure that the needy people are served properly. The department proposed to upgrade the post of Deputy Director (Medical Social Services) to the post of Director (B -19) in person for petitioner within the preview of policy for up- gradation
of post dated 23rd April, 2007. On 31st October, 2017, a summary for Chief Minister Balochistan was prepared.
2. The summary was moved, however, recommendations of up- gradation were returned
with remarks that the proposal of up- gradation may be placed before the Secretary, Law
Department, the Chairman, Up- gradation Committee. The committee, on 10th July, 2020,
unanimously recommended for up- gradation of the post of Deputy Director. It is case of the
petitioner that the respondent No. 5 being an influential person has been posted against the non- cadre post of the Director, Balochistan Awami Endowment Fund vide Notif ication dated
22nd April, 2019. Respondent No. 5 has statedly, started interference in the up- gradation
case of the petitioner. On 06th October, 2020, vide agenda item No. 7 of minutes of meeting
of the Provincial Cabinet, the up- gradation of post was deferred. The petitioner also made an
application to the Chief Minister; however, same is pending without any fate.
3. The petitioner's counsel Mr. Inamullah Khan Kakar, Advocate states that, the
petitioner is entitled for up- gradation of the post of Deputy Director (B -18) to Director (B -
19) and the Up- gradation Committee has unanimously recommended for such up- gradation,
while the Provincial Cabinet has illegally deferred the up- gradation case of the petitioner
vide agenda item No. 7 dated 06th October, 2020. The learned counsel also submits that the
respondent No. 5, being an influential has been posted against a non- cadre post of Director
(B-19) Balochistan Awami Endowment Fund vide Notification dated 22nd April, 2019. He
placed reliance upon the case laws referred to in ground E of the memo of the petition.
4. We have heard the counsel for the petitioner and gone through the impugned decision
of the Provincial Cabinet and the impugned Notification.
5. The case of the petitioner has two parts. In the first, the petitioner has sought setting
aside of the decision of the Provincial Cabinet dated 06th October, 2020 whereby the up-gradation of post of the petitioner has been deferred and in the second, the petitioner has
called in question the transfer and posting of the respondent No. 5 vide Notification dated
22nd April, 2019.
6. So far as the first part of the petition is concerned, this Court can decide the question
of up- gradation for, the up- gradation is a matter which is not relatable to the terms and
conditions of the service of the petitioner. We may place reliance on the case of Regional Commissioner Income Tax, Northern Region, Islamabad and another v. Syed Munawar Ali
and others, published in 2016 SCMR 859. The petitioner claimed up- gradation of the post of
Deputy Director (B -18) to Director (B -19). According to the contention of Mr. Inamullah
Khan Kakar, Advocate, the Up- gradation Committee under the chairmanship of Secretary,
Law Department has unanimously recommended the up- gradation, is not incorrect; however,
the relevant issue would be that, "whether the recommendation of the committee has some
legal backing?" It is an admitted aspect of the case, that the recommendation of the post of Deputy Director B -18 to Director B -19 is particular to the person of the petitioner and is not
based on a policy decision across the board for a particular category of civil servants. The expression "up- gradation" is distinct from the expression "promotion" and is confined to the
post and not with the person occupying it. Up- gradation is resorted only for the incumbents
of isolated posts, to address stagnation of an incumbent on a particular post without any progression of promotion. The Hon'ble Supreme Court of Pakistan in the case of Ali Azhar Khan Baloch and others v. Province of Sindh and others, published in 2015 SCMR 456, in paragraph 138 of the judgment has held that "the up- gradation cannot be made to benefit a
particular individual in terms of promoting him to a higher post or further providing him with the avenues of lateral appointment or transfer or post. In order to justify the up- gradation, the
Government is required to establish that the department needs restructuring, reform or to meet the exigency of service in public interest. In the absence of these pre- conditions, up-
gradation is not permissible."
7. The Hon'ble Supreme Court in the case of Federal Public Service Commission
through Secretary v. Anwar -ul-Haq (Private Secretary) Islamabad and others, published in
2017 SCMR 890, in paragraph 9 of the judgment, has held that "the up- gradation under the
scheme is personal to the incumbents of the isolated posts, to address stagnation and frustration of incumbent on a particular post for sufficient length of service on particular post without any progression or avenue of promotion."
In the case of Fida Muhammad v. Government of Khyber Pakhtunkhwa through
Secretary Education, Peshawar and others, published in 2021 SCMR 1895, the Hon'ble Supreme Court of Pakistan, in paragraph 8 of the judgment, has held that "the upgradation cannot be claimed as a matter of right but it is in fact based on a policy decision of the competent authority for its implementation across the board for the particular categories of
employees jot down in the scheme/notification who fulfilled the required qualification which
is normally a particular length of service in a particular pay scale." Same parameters have been highlighted by the Hon'ble Supreme Court of Pakistan in case of Muhammad Amjad v. The Director General, Quetta Development Authority and another, reported in 2022 PLC (C.S.) 594 and 2022 SCMR 797.
8. Since, the petitioner cannot claim up- gradation as a matter of right; up -gradation
cannot be made to benefit a particular individual i.e. the petitioner, in terms of promoting
him to a higher post. The issue of need of restructuring, reform or to meet the exigency of service in public interest and absence of isolated post, is not involved in the instant case, therefore, in absence of these pre- conditions, up -gradation is not permissible to the
petitioner.
9. So far as the second part of the case is concerned, it relates to the posting of
respondent No. 5. The respondent No. 4, vide Notification dated 22nd April, 2019, had posted the respondent No. 5 against the post of Director (B -19) Balochistan Awami
Endowment Fund. The transfer and posting of a civil servant is an integral part of the terms and conditions of service of a civil servant in accordance with section 10 of the Balochistan Civil Servants Act, 1974. The question of posting of the respondent No. 5 on any ground and even against a non -cadre post, cannot be looked into by this Court in view of constitutional
bar of Article 212 (2), the Constitution of the Islamic Republic of Pakistan, 1973 ("the Constitution"). The jurisdiction of this Court under Article 199, of the Constitution, is not unlimited but is "subject to the Constitution" and then, "if this Court is satisfied that no other adequate remedy is provided by law." For the purpose of this case, the words, "subject to the
Constitution" mean the bar of Article 212(2), the Constitution. The words "no other adequate
remedy is provided by law" means that when the sub- constitutional piece of legislation is
silent on the question of a particular grievance. A party has first to cross the constitutional
barrier and then the barrier of the sub- ordinate legislation, before invoking the constitutional
jurisdiction of this Court. The question of the respondent No. 5's posting relates to his terms
and conditions of service, therefore, such question could only be agitated before the Balochistan Service Tribunal constituted under Article 212(2) of the Constitution and the
Balochistan Service Tribunals Act, 1974. We place reliance on the case of Hafiz Khalid
Irshad v. Ahmed Khan Wattoo, published in 1997 SCMR 1124. In paragraph 3 of the
judgment, it was held that:
"3. We have heard the learned counsel for the parties. As stated above, the dispute between the parties relates to their posting/transfer inter se which is a matter relatable to the terms and conditions of their service. Such disputes fall within the exclusive jurisdiction of the Service Tribunal and the jurisdiction of all other Courts including High Court is expressly barred by virtue of the provisions of Article 212(2) of the constitution. This aspect of the matter, it appears has not been looked into by the learned Judge in the High Court before passing the impugned order. ----"
In case Peer Muhammad v. Government of Balochistan through Chief Secretary and
others, published in 2007 SCMR 54, in paragraph 4 of the judgment it was held by Hon'ble Supreme Court of Pakistan that:
"------It is well- settled by now that the question of posting of a Government servant
squarely falls within the jurisdictional domain of the Competent Authority subject to law and rules made thereunder. The question of posting/transfer relates to terms and conditions of a Government servant and Service Tribunal would have exclusive jurisdiction to dilate upon and decide such matters and Constitutional jurisdiction cannot be invoked to get such controversies resolved. We have also adverted to the question of mala fides which according to the learned Advocate Supreme Court could have been dilated upon in Constitutional jurisdiction which is not correct because the provisions as contained in Article 212 of the Constitution of Islamic Republic of Pakistan ousts jurisdiction of all other Courts and orders of the departmental authority even though without jurisdiction or mala fide can be challenged only before the Service Tribunal and jurisdiction of Civil Court including High Court is specifically ousted. The plea of mala fide does not confer upon High Court jurisdiction to act in the matter in view of the Constitutional ouster as contained in Article 212 of the Constitution of Islamic Republic of Pakistan and learned Service Tribunal has full jurisdiction to interfere in such- like matters. -----"
10. Even otherwise, the impugned Notification of the posting of the respondent No. 5 was
issued on 22nd April, 2019, whereas, the petitioner impugned it on 04th August, 2022, after 3.4 years. The delay caused in filing the instant constitution petition has not been explained by the petitioner. The petition suffers from laches, as such, is not maintainable on this ground as well.
11. Hence, the petition to the extent of second part as well, is not maintainable.
Resultantly, the instant Constitution Petition is dismissed being not maintainable.
MH/141/Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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