1

2016 S C M R 442

[Supreme Court of Pakistan]

Present Anwar Zaheer Jamali, C.J., Amir Hani Muslim and Iqbal Hameedur Rahman,
JJ

GOVERNMENT OF PAKISTAN M/o RAILWAYS, through Secretary and others---

Appellants

Versus

JAMSHED HUSSAIN CHEEMA and others---Respondents

Civil Appeal No. 308 of 2014, decided on 7th December, 2015.

(On appeal from the judgment of the Islamabad High Court, Islamabad dated 17-9-
2013 passed in I.C.A. 872 of 2013)

Civil service---

----Upgradation of post--- Discrimination--- Policy decision of Government regarding

upgradation of posts---Such decision could not be challenged in constitutional
jurisdiction of High Court on the purported plea of discrimination---Upgradation of
post was not a vested right.

Policy decision had been taken by the competent authority with the approval of
Federal Government for upgradation of pay scales of different categories of its
employees in a conscious manner, looking to the nature of their jobs etc, therefore,
such decision could not be challenged in writ jurisdiction (of the High Court) on the
purported plea of discrimination. Moreso, when Article 25 of the Constitution itself
provided a provision for such discrimination on the principle of reasonable
classification. In the present case, respondents had also been granted upgradation by
one step from BS-12 to BS-13 along with many others, who had been also given only
one step upgradation in the scales and in many other cases upgradation was allowed
by two steps. Thus, such classification/categorization by the competent authority
could not be struck down on the plea of discrimination, at the whims of respondents,
who had approached the High Court in such regard. Additionally respondents has also
failed to show that due to the impugned action of the competent authority any
 2

Fundamental rights of the respondents had been violated or they had any vested right
for such upgradation as per their choice.

Government of the Punjab through Chief Secretary, Lahore and others v. Abdul Sattar
Hans and 29 others 2015 SCMR 915; Asaf Faihuddin Khan Vardag v. Government of
Pakistan and others 2014 SCMR 676; Secretary Economic Affairs Divisions, Islamabad
and others v. Anwarul Haq Ahmed and others 2013 SCMR 1687; Abdul Waha and
others v. HBL and others 2013 SCMR 1383; Dr. Akhtar Hassan Khan and others v.
Federation of Pakistan and others 2012 SCMR 455; N.W.F.P. Public Service
Commission and others v. Muhammad Arif and others 2011 SCMR 848; Jahangir
Sarwar and others v. Lahore High Court and another 2011 SCMR 363; Government of
the Punjab through Chief Secretary, Punjab, Lahore v. Naseer Ahmad Khan through
L.Rs. and others 2010 SCMR 431; Muhammad Farid Khattak and others v. Chief
Secretary, Government of N.W.F.P. and others 2009 SCMR 980; Syed Mufeed Shah
and another v. Principal, Khyber Medical College, Peshawar and others 2006 SCMR
1076 and Watan Party through President v. Federation of Pakistan through Cabinet
Committee of Privatization, Islamabad and others PLD 2006 SC 697 ref.

Rai Muhammad Nawaz Khan Kharal, Advocate Supreme Court and Syed Rifaqat
Hussain Shah, Advocate-on-Record for Appellants.

Ch. Muhammad Anwar Bhindar, Senior Advocate Supreme Court for

Respondents.

Date of hearing: 7th December, 2015.

JUDGMENT

ANWAR ZAHEER JAMALI, C.J.---This civil appeal with leave of the Court is
directed against the judgment dated 17.9.2013, in Intra Court Appeal No.872/2013,
passed by the learned Division Bench of the Islamabad High Court, Islamabad,
whereby the said Intra Court Appeal at the instance of present appellants was
dismissed, and consequently the judgment dated 20.5.2013, passed by learned single
Judge in chambers of the Islamabad High Court, Islamabad in Writ Petition
No.975/2011, filed by respondents, thereby granting them requisite relief, was
maintained.

2. Briefly stated, relevant facts of the case are that in the month of March 2011,
the respondents Nos.1 to 20 (in short "the respondents") had instituted the above
referred writ petition under Article 199 of the Constitution of Islamic Republic of
 3

Pakistan, 1973 with the grievance of discrimination in the matter of upgradation of

their posts as against other employees of the appellants in different categories and in
that context they had prayed for following reliefs:-

"In view of the above circumstances, it is, therefore, most respectfully prayed
that the instant writ petition may kindly be accepted and the act of the
respondents not to upgrade the scales of the petitioners may graciously be
declared as illegal, unlawful, ineffective and inoperative upon the rights of the
petitioners and direction may graciously be issued to the respondents to
upgrade the post of Claim Inspector BS-13 to the BS-16, which is in the interest
of justice."

3. In the parawise comments submitted by the appellants before the Islamabad

High Court, the maintainability of the writ petition was challenged on various legal
grounds. On facts also, claim of respondents was challenged, inter alia, on the plea
that they have been also upgraded one scale from BS-12 to BS-13, duly approved by
the competent authority. Thus, there was no occasion of any discrimination in this
regard, as those who were given upgradation in scales by more than one step were in
different categories than the respondents.

4. The petition was heard by a learned single Judge in the Islamabad High Court
and it was allowed vide judgment dated 20.5.2013 with directions to the appellants to
initiate process for upgradation of posts of Claim Inspectors/respondents, keeping in
view the earlier recommendations, and such process be completed within two
months.

5. Being dissatisfied by the above judgment, Intra Court Appeal under section 3 of
the Law Reforms Ordinance, 1972, was filed by the appellants, which was dismissed
vide impugned judgment, as the learned Division Bench endorsed the view of the
learned single Judge contained in his impugned judgment.

6. Leave to appeal was granted in this case, inter alia, to examine whether the
private respondents, being civil servants, could have invoked the writ jurisdiction of
the High Court as regards their grievance, which according to learned ASC for the
appellants, related to terms and conditions of their service. Today, when the learned
ASC for the appellants was confronted with the ratio of judgment in the case of Ali
Azhar Khan Baloch and others v. Province of Sindh and others (2015 SCMR 456),
relating to concept of upgradation of posts, he candidly did not dispute the legal
position that upgradation to higher scale is not equivalent to promotion and no
concept of upgradation, as one of the terms and conditions of service, was provided
 4

under the Civil Servants Act, 1973. Therefore, for any grievance with reference to
upgradation, remedy was not available to the respondents before the Service
Tribunal. However, he forcefully argued that upgradation of scales was purely a policy
decision, which was to be taken by the competent authority with the approval of the
Government and in this regard the decision of the competent authority regarding
upgradation of different employees of the appellants was final and it could not be
interfered with by the Court, as has been done in the instant case by both the Courts
below.

7. Conversely, Ch. Muhammad Anwar Bhindar, learned ASC for the private
respondents made reference to the concise statement submitted by him on behalf of
respondents, which is accompanied with a chart to show the manner in which some
other employees of the appellants in different other categories have been given
upgraded scales, in some cases up to five steps, though the present respondents have
been given upgradation only by one step.

8. We have considered the above submissions and with the assistance of learned
ASCs, perused the material placed on record, which reveals that a policy decision has
been taken by the competent authority with the approval of Federal Government for
upgradation of pay scales of different categories of its employees in a conscious
manner, looking to the nature of their jobs etc, therefore, such decision cannot be
challenged in writ jurisdiction on the purported plea of discrimination. More so, when
Article 25 of the Constitution itself provides a provision for such discrimination on the
principle of reasonable classification. In the present case, respondents have also been
granted upgradation by one step from BS-12 to BS-13 along with many others, who
have been also given only one step upgradation in the scales and in many other cases
upgradation is allowed by two steps. Thus, such classification/categorization by the
competent authority cannot be struck down on the plea of discrimination, at the
whims of respondents, who had approached the Islamabad High Court in this regard.
In addition to it, learned ASC for the respondents has also failed to show that due to
the impugned action of the appellants any fundamental rights of the respondents
have been violated or they have any vested right for such upgradation as per their
choice. If any case law is needed to fortify the above view, reference can be made to
the following cases:-

(1) Government of the Punjab through Chief Secretary, Lahore and others
v. Abdul Sattar Hans and 29 others (2015 SCMR 915)

(2) Asaf Faihuddin Khan Vardag v. Government of Pakistan and others

(2014 SCMR 676)
 5

(3) Secretary Economic Affairs Divisions, Islamabad and others v. Anwarul

Haq Ahmed and others (2013 SCMR 1687)

(4) Abdul Wahab and others v. HBL and others (2013 SCMR 1383)

(5) Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others
(2012 SCMR 455)

(6) N.W.F.P. Public Service Commission and others v. Muhammad Arif and
others (2011 SCMR 848).

(7) Jahangir Sarwar and others v. Lahore High Court and another (2011
SCMR 363)

(8) Government of the Punjab through Chief Secretary, Punjab, Lahore v.

Naseer Ahmad Khan through L.Rs. and others (2010 SCMR 431)

(9) Muhammad Farid Khattak and others v. Chief Secretary, Government of

N.W.F.P. and others (2009 SCMR 980)

(10) Syed Mufeed Shah and another v. Principal, Khyber Medical College,
Peshawar and others (2006 SCMR 1076)

(11) Watan Party through President v. Federation of Pakistan through

Cabinet Committee of Privatization, Islamabad and others (PLD 2006 SC 697)

9. Foregoing are the reasons for our short order, which reads thus:-

"We have heard arguments of the learned ASCs for both parties. For reasons to
be recorded separately, this appeal is allowed. The impugned judgment dated
17.09.2013, passed by the learned Division Bench of the Islamabad High Court
in Intra Court Appeal No.872 of 2013 and judgment dated 20.05.2013, passed
by the learned single Judge in Chambers of the Islamabad High Court in Writ
Petition No.975 of 2011, are set aside, and the Writ Petition filed by
Respondents Nos.1 to 20 is accordingly dismissed.

(2) At this stage, learned ASC for appellant has clarified that Respondents
Nos. 1 to 20 have been earlier upgraded to Scale-13, therefore, he will ensure
payment of their salaries along with arrears, if any, from the date of their
 6

upgradation in Scale-13. Moreover, if need be, their cases for further

upgradation will also be considered. Order accordingly."

MWA/G-9/SC Appeal allowed.

2016 S C M R 859

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, C.J., Mian Saqib Nisar, Amir Hani Muslim, Ejaz Afzal
Khan and Mushir Alam JJ

REGIONAL COMMISSIONER INCOME TAX, NORTHERN REGION, ISLAMABAD and

another---Appellants

Versus

Syed MUNAWAR ALI and others---Respondents

Civil Appeals Nos.101 and 102-P of 2011, decided on 17th February, 2016.

(On appeal from judgment dated 27-4-2010, of the Peshawar High Court, Peshawar,
passed in Writ Petitions Nos.205 of 2010 and 33 of 2009)

(a) Civil service---

----"Upgradation" of post---"Promotion"---Issue of upgradation did not form part of

terms and conditions of service of civil servants---"Upgradation" of a post was distinct,
from "promotion".

(b) Civil service---

----"Upgradation" of post---Pre-conditions---Upgradation of post could not be made to

benefit a particular individual in terms of promoting him to a higher post and further
 7

providing him with the avenues of lateral appointment or transfer or posting---In

order to justify upgradation, the Government was required to establish that the
department needed re-structuring, reform or to meet the exigency of service in the
public interest---In the absence of such pre-conditions, upgradation was not
permissible.

(c) Constitution of Pakistan---

----Arts. 199 & 212(3)---Civil Servants Act (LXXI of 1973), Preamble---'Upgradation' of

post, issue of---Could be decided by the High Court in its Constitutional jurisdiction
under Art. 199 of the Constitution.

Issue relating to upgradation of civil servants could be decided by High Court in

exercise of its constitutional jurisdiction and bar contained under Article 212(3) of the
Constitution would not be attracted. Policy of upgradation, notified by the
Government, in no way, amended the terms and conditions of service of the civil
servant or the Civil Servants Act, 1973 and or the Rules framed thereunder. Service
Tribunal had no jurisdiction to entertain any appeal involving the issue of upgradation,
as it did not form part of the terms and conditions of service of the civil servants.

Ali Azhar Khan Baloch v. Province of Sindh 2015 SCMR 456 and Chief
Commissioner Inland Revenue and another v. Muhammad Afzal Khan (Civil Appeal
No.992 of 2014) ref.

Shahid Raza, Advocate Supreme Court for Appellants (in both appeals).

Ijaz Anwar, Advocate Supreme Court for Respondents Nos.1 - 8 (in C.A. No.
101-P of 2011).

Ijaz Anwar, Advocate Supreme Court for Respondents Nos.1 - 39 (in C.A. No.
102-P of 2011).

Date of hearing: 17th February, 2016.

JUDGMENT

AMIR HANI MUSLIM, J.---These Appeals, by leave of the Court, are directed
against common judgment dated 27.04.2010, passed by the Peshawar High Court,
Peshawar, whereby the Writ Petitions filed by the Respondents were disposed of with
the direction to the Appellants to act according to law and to do what is required by
 8

the law to do within a minimum possible time.

2. The facts necessary for the adjudication of the present proceedings are that
the Respondents and others while working as Superintendents/Supervisors with the
Appellants filed an Application before the Chairman, Federal Board of Revenue
(Revenue Division) for upgradation of their posts from BS-13 to BS-16, inter alia, on
the ground that since the post of Superintendent has been upgraded to BS-16 in
Federal/Provincial Government, therefore, the post of Superintendent may also be
upgraded in the Federal Board of Revenue from BS-13 to BS-16. The said Application
remained undecided, and the Respondents filed Writ Petitions before the Peshawar
High Court, which were disposed of by a learned Division Bench by the consolidated
impugned judgment.

3. The Appellants filed Civil Petitions for leave to Appeal against the judgment of
the Peshawar High Court in which leave was granted to consider whether in view of
the bar contained under Article 212(3) of the Constitution, the High Court has the
jurisdiction to entertain a Constitution Petition relating to the terms and conditions of
service of civil servants. Hence these Appeals.

4. The learned Counsel for the Appellants has contended that the jurisdiction of
the learned Peshawar High Court was barred under Article 212(3) of the Constitution,
as the issue of upgradation which was the subject matter of the Writ Petitions relates
to the terms and conditions of service of the Respondents and could not have been
adjudicated upon by the High Court. He next contended that the terms and conditions
of service of civil servants fall within the domain of the Service Tribunal, therefore, the
impugned judgment was without jurisdiction.

5. As against this, the learned Counsel for the Respondents have contended that
the issue of upgradation is not covered by the expression "terms and conditions of
service" of a civil servant, therefore, the High Court has the jurisdiction to decide the
issue.

6. We have heard the learned Counsel for the parties and have perused the
record. The expression "upgradation" is distinct, from the expression "Promotion",
which is not defined either in the Civil Servants Act or the Rules framed thereunder,
and is restricted to the post (office) and not with the person occupying it. The
upgradation cannot be made to benefit a particular individual in term of promoting
him to a higher post and further providing him with the avenues of lateral
appointment or transfer or posting. In order to justify the upgradation, the
Government is required to establish that the department needs re-structuring, reform
 9

or to meet the exigency of service in the public interest. In the absence of these pre-
conditions, upgradation is not permissible.

7. The aforesaid definition of the expression "upgradation" clearly manifests that

it cannot be construed as promotion, but can be granted through a policy. In fact, this
Court in the judgment titled as Ali Azhar Khan Baloch v. Province of Sindh (2015 SCMR
456) and an unreported judgment of this Court passed in the case of Chief
Commissioner Inland Revenue and another v. Muhammad Afzal Khan (Civil Appeal
No.992 of 2014) has held that the issue relating to upgradation of civil servants can be
decided by a High Court in exercise of its constitutional jurisdiction and bar contained
under Article 212(3) of the Constitution would not be attracted. The policy of
upgradation, notified by the Government, in no way, amends the terms and
conditions of service of the civil servant or the Civil Servants Act and or the Rules
framed thereunder. The Service Tribunals have no jurisdiction to entertain any appeal
involving the issue of upgradation, as it does not form part of the terms and
conditions of service of the civil servants. The question in hand has already been
answered by the aforesaid two judgments of this Court.

8. For the aforesaid reasons, we do not find any infirmity in the impugned
judgment; consequently these Appeals are dismissed.

MWA/R-2/SC Appeals dismissed.

2017 S C M R 890
[Supreme Court of Pakistan]
Present: Mian Saqib Nisar and Mushir Alam, JJ
FEDERAL PUBLIC SERVICE COMMISSION through Secretary---Petitioner
Versus
ANWAR-UL-HAQ (PRIVATE SECRETARY) ISLAMABAD and others---Respondents
Civil Petition No. 1424 of 2016, decided on 30th September, 2016.
(Against the judgment dated 08.2.2016 passed by Federal Service Tribunal, Islamabad
in Appeal No. 194(R)CS/2013)
 10

Civil Servants Act (LXXI of 1973)---

----S. 9(1)---Upgradation of post---Scope and purpose---Upgradation was not a
promotion---Upgradation was carried out without necessarily to create posts in the
relevant scales of pay---Upgradation was resorted to only for the incumbents of
isolated posts, which had no avenues or channel of promotion at all---Upgradation
under a scheme was personal to the incumbents of the isolated posts, to address their
stagnation and frustration on a particular post for sufficient length of service without
any progression or avenue of promotion---Upgradation was carried out under a
scheme and or a policy to incentivize, encourage and give financial benefits without
creating additional vacancies of higher grade---Upgradation by no standards could be
treated and or considered as promotion to a higher grade---Incumbent occupying
upgraded post retained their substantive grade.
Ali Azhar Khan Baloch and others v. Province of Sindh and others 2015 SCMR
456 ref.
Abdul Rashid Awan, DAG and Muhammad Ashraf, Director, FPSC for Petitioner.
Ghulam Fareed, Advocate Supreme Court for Respondent No.1.
Date of hearing: 30th September, 2016.
JUDGMENT
MUSHIR ALAM, J.---Petitioner, Federal Public Service Commission (FPSC), has
challenged the decision dated 8.2.2016 passed by the Federal Service Tribunal (FST)
Islamabad, whereby setting aside the order dated 8.01.2013, passed by the
competent authority, declining representation of the respondent seeking grant of
BPS-19. The petitioner was directed to grant BPS-19 and re¬-designate respondent
No.1 as Senior Private Secretary from the date he completed 12 years of service in
BPS-17.
2. Facts in brief appear to be that the respondent No.1 was originally appointed
on 2.12.1978 in Finance Division, as LDC, he was then promoted as Stenotypist on
19.02.1980. He was then appointed in the office of Wafaqi Mohtasib as Stenographer
in (BPS-15) on 19.02.1980, in which post he was confirmed on 08.12.1985. Later he
was appointed in FPSC, in selection grade BPS-16 on 21.5.1998 with effect from
6.2.1997. However, his substantive post remained as that of Stenographer (BPS-15.).
He earned promotion as Private Secretary (BPS-17) on 12.8.2011.
Pursuant to Office Memorandum (OM) dated 23.12.2011 (@ page 35) with the
concurrence of competent authority post of Private Secretary was upgraded, to BPS
18.
 11

3. On 05.6.2012 respondent No.1, made a request (@ page 26) for the grant of
BPS-19 on the ground inter alia that pursuant to OM dated 2nd June, 1983 his total
length of service comes to 12 years, 03 months and 26 days, thus entitled him for the
grant of BPS-19, which request was declined vide order dated January 8th 2013 on the
ground that he does "not hold the required length of 12 years service in BS-17 and
above as per clarification from Establishment Division vide their U.O. No.4/1/98-R-6
(Pt-II) dated 30.11.2012," which order of the competent authority was successfully
challenged before the FST, and vide its impugned decision dated 08.2.2016 the
petitioner was directed to grant BPS- 19 to the respondent and re-designate him as
Private Secretary from the date of his completing 12 years of service in BPS-17 on the
strength of formula laid down in Establishment Division O.M dated 02.6.1983, with
back benefit.
4. Mr. Abdul Rasheed Awan learned DAG, with vehemence urged that the
respondent did not possess 12 years qualifying length of service in substantive post of
BPS-17 and above. According to learned DAG, respondent was holding substantive
post of Stenographer in BPS-15, when he was appointed in Federal Public Service
Commission (in BPS-16 selection grade) he was promoted to BPS-17 on 12.8.2011,
pursuant to O.M. dated 23.12.2011 his post was upgraded to BPS-18 (@ page 35), it
was urged that upgradation of post of Private Secretary from BPS-17 to 18 is not a
promotion in terms of section 9(1) of the Civil Servants Act, 1973. It was urged that
the learned FST misdirected itself while treating respondent on substantive post,
which is factually not correct. It was urged that O.M. dated 2nd June, 1983; was not
correctly appreciated in proper perspective resulting into flawed judgment, which
cannot be sustained and is liable to be set aside. He prayed accordingly.
5. Mr. Ghulam Fareed, learned ASC for the respondent No.1 supports the
impugned decision of the FST. He has placed heavy reliance upon Finance Division
O.M dated 23.12.2011 to claim upgradation to BPS-19 on the strength of his length of
service in lower grade, in accordance with O.M dated 02.06.1983, referred to in first
mention O.M. He emphasized his service in lower grade is to be computed in
accordance with formula given by the Establishment Division as per O.M. dated
02.06.1983. For the purpose of computing length of service in different grade to earn
eligibility for BPS-19 he has placed heavy reliance on part (iii) to the O.M dated 2nd
June, 1983, to urge that the impugned decision of FST is based on correct appreciation
of facts and law does not call for interference.
6. Exercising right of rebuttal learned DAG has drawn our attention to proviso (ii)
and (iii) of O.M dated 2nd June, 1983 to urge that upgradation to BPS-19 or otherwise
cannot be claimed as a matter of right. It was urged that the minimum length of
service in a particular substantive grade is considered for consideration of promotion
in next higher substantive grade and not for the purposes of merely upgradation of
 12

the post. It was stated that the post of the respondent was being upgraded from time
to time. He cannot claim upgradation as a matter of right.
7. We have heard the arguments and perused the record. In order to appreciate
the contentions of both the learned counsel it would be beneficial to glance through
Office Memorandum dated 23.12.2011 and 02.06.1983 respectively, relied upon by
both the learned counsel in support of their respective contentions subject O.M dated
23.12.2011 reads as follow:-
"Government of Pakistan
Finance Division
(Regulation Wing)
OFFICE MEMORANDUM
F.No.19(55)Legal-II/2010-1055 Islamabad, the 23rd December,
2011
Subject:- UPGRADATION OF THE POSTS OF STENOTYPIST, STENOGRAPHER
AND PRIVATE SECRETARY
The undersigned is directed to say that consequent upon approval of the Prime
Minister of Pakistan, the posts of Private Secretaries, Stenographers and
Stenotypist have been upgraded with immediate effect subject to fulfillment of
the conditions mentioned against each:
Sr. Name of the Existing Upgraded Conditions
# Post BS BS
1. Private 17 --- Will continue to remain in BS-
Secretary 17 and will be granted BS-18
after putting in 5 years
satisfactory service Instead of 7
years. The Private Secretaries in
BS-18 will further be granted
BS-19 after putting in 12 years
service in BS-17 and above
taking benefit of Establishment
Division's O.M. No.1/9/80-R-II,
dated 2.6.1983. However, on
grant of BS-19 nomenclature of
the post will be Senior Private
Secretary. The existing Private
Secretaries in BS-17 will be
 13

granted BS-18 on one time

basis irrespective of their length
of service in BS-17.
2. Stenographer 15 16 With enhancement of
qualification for initial
appointment from
Intermediate to Graduation.
3. Stenotypist 12 14 With enhancement of
qualification for initial
appointment from
Matriculation to Intermediate.

The incumbents of the upgraded posts will also stand upgraded and their pay
will be fixed at the stage next above their basic pay in their lower pay scales.
2. The Establishment Division will amend the recruitment rules of the
above said posts, accordingly.
All Ministries/Divisions/Departments Sd/xxx
(Muhammad Azam Awan)
Section Officer (R-I)"
8. It is admitted position that the respondent No.1 was serving in BPS-16 in
Selection Grade (his substantive grade remained BS-15) before he was promoted to
BPS-17 on 12.8.2012. Post of Private Secretary (BPS-17) was upgraded to BPS-18
subject to five years qualifying length of service instead of seven years. In terms of
O.M dated 23.12.2011 which inter alia provided that all the Private Secretaries "will
continue to remain in BS-17 and will be granted BS-18 after putting in 5 years
satisfactory service instead of 7 years". However one time exception was created in
subject O.M as reproduced above, which provided that "existing Private Secretaries in
BS-17 will be granted BS-18 on one time basis, irrespective of their length of service in
BS-17".
9. Upgradation is not a promotion, as generally misunderstood. Upgradation is
carried out without necessarily to create posts in the relevant scales of pay it is carried
out under a policy and specified scheme as done in the instant case through subject
O.M dated 23.12.2011. It is resorted only for the incumbents of isolated posts, which
have no avenues or channel of promotion at all. Upgradation 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
 14

particular post without any progression or avenue of promotion. Post of

Stenographers/Private Secretaries is one of such kind of post, which has no avenues
or channel of promotion to higher grades as may be available to other incumbents in
civil service. Upgradation is carried out under a scheme and or a policy to incentivize
and to encourage and to give financial benefits without creating additional vacancies
of higher grade, upgradation by no standards could be treated and or considered as
promotion to higher grade. Incumbent occupying ungraded post retain their
substantive grade.
10. Now examining the case of the respondent No.1 he was serving as Private
Secretary in substantive grade BPS-17 when, O.M dated 23rd December, 2011 was
issued, which inter alia provided that all those serving in BPS-17 having put in 5 years
would be entitled to be upgraded to BPS-18 on satisfactory service in BPS-17 for a
period of 5 years instead of 7-1/2 years as earlier required per O.M dated 2.6.1983.
However, in view of one time exception, all the Private Secretaries including the
respondent No.1 working in BPS-17 on the date of issuance of O.M dated 23rd
December, 2011 was upgraded to PBS-18, irrespective of length of service in BPS-17,
respondent No.1 falling in such exception was accordingly promoted with merely little
over 4 months service in BPS 17, as noted above, it is merely a financial benefit
attached to upgradation, as and when such upgraded incumbent leaves or transfers or
vacancy occurs for any reasons than the vacancy is of substantive post and not that of
upgraded post and is accordingly filled up either by transfer, promotion or direct
appointment as the case may be.
11. Claim of the respondent that he has put in 12 years of service in BPS-17 as per
formula made applicable in terms of O.M. dated 2.6.1983. To appreciate such
contention it would be beneficial to examine such said Office Memorandum which
reads as follows:-
"GOVERNMENT OF PAKISTAN
CABINET SECRETARIAT
ESTABLISHMENT DIVISION
No.1/9/80-R.2 Rawalpindi, the 2nd June 1983
OFFICE MEMORANDUM
Subject: MINIMUM LENGTH OF SERVICE FOR ELIGIBILITY IN
PROMOTION OF OFFICERS
In pursuance of rule 8-A of the Civil Servants (Appointment, Promotion and
Transfer) Rules, 1973 and in supersession of the instructions laid down in the
Establishment Division's Office Memorandum No.1/9/80-R.II(A), dated the
 15

12th January, 1981, the President is pleased to decide that the minimum
length of service for promotion to various grades shall be as follows:-
For Grade-18 5 years in grade 17
For Grade-19 12 years in grade 17 and above
For Grade-20 17 years in grade 17 and above
For Grade-21 22 years in grade 17 and above
Provided that:-
i) Where initial appointment of a person not being a person in
government service takes placed in a post in grade 18, 19 or 20, the length of
service specified in this office memorandum shall be reduced by the following
periods:
First appointment in Reduced by
Grade-18 5 years
Grade-19 12 years
Grade-20 17 years
ii) Where initial appointment of a person already in government service
takes place, on recommendations of the Federal Public Service Commission in
a post in grade 18, 19 or 20 the length of service specified in this office
memorandum shall be reduced by the periods specified in proviso (i),
iii) Where first appointment of a person other than a person covered by
proviso (ii) was made to government service in grade 16 or below, one-half of
the service in grade 16 and one fourth in grade 15 and below may be counted
as service in grade 17 for computing length of service for the purpose of
promotion only.
All Ministries/Divisions Sd/xxx
(Mashkoor Ahmad Khan)
Joint Secretary
To the Government of Pakistan"
12. From bare perusal of above criteria, it could be seen that same is applicable
"for the purposes of promotion only". Admittedly, case of the respondent No.1 is of
upgradation and not that of promotion. As noted above upgradation is often
misconstrued as promotion, what respondent No.1 requested through his application
 16

is promotion to grade BPS-19, for which a selection process, in terms of section 9(1) of
the Civil Servants Act, 1973, read with Civil Servant (Appointment, Promotion and
Transfer Rules), 1973 is to be followed, which cannot be bypassed under any
circumstance. Civil servants are appointed and or promoted to the post and not to the
grades. This Court in the case of Ali Azhar Khan Baloch and others v. Province of Sindh
and others (2015 SCMR 456) in paragraph 138 @ page 514, has dealt with implication
and purport of upgradation, as retreated in the case of Regional Commissioner
Income Tax, Northern Region, Islamabad and another v. Syed Munawar Ali and others
(2016 SCMR 859), held in para No.7 @ page 862 it was further held that "issue relating
to upgradation of civil servants can be decided by a High Court in exercise of its
constitutional jurisdiction and bar contained under Article 212(3) of the Constitution
would not be attracted. The policy of upgradation, notified by the Government, in no
way, amends the terms and conditions of service of the civil servant or the Civil
Servants Act and or the rules framed there under. The Service Tribunals have no
jurisdiction to entertain any appeal involving the issue of upgradation, as it does not
form part of the terms and conditions of service of the civil servants."
13. In order to appreciate contentions of respondent his tenure of service in grade
below PBS-16 given in paragraph 6 of his appeal before FST; is reproduced as follows:-
"That the appellant fulfills/meet the requisite length of service as enunciated in
O.M dated 23.12.2011. The detail of the same is reproduced below for kind
perusal of this learned Tribunal:-
Sr. No. Post Period Length of To be counted in
service the light of O.M.
23.12.11 and
02.06.83
1. LDC 2.12.1978 1 year, 2 3 months, 19 days
to months, 16
18.2.1980 days
2. Stenotypist 19.2.1980 5 years, 9 1 year, 05 months,
to months, 19 07 days
07.12.1985 days
3. Stenographer 08.12.1985 11 years, 1 2 years, 9 months,
(BPS-15) to month, 25 06 days
05.2.1997 days
4. Stenographer 06.2.1997 14 years, 6 7 years, 3 months, 2
Selection to months, 5 days
Grade (BPS- 11.8.2011 days
16)
 17

5. Private 12.8.2011 4 months, 04 month, 10 days

Secretary to 10 days
(BPS-17) 22.12.2011
6. Private 23.12.2011 1 year, 01 1 year, 1 month, 8
Secretary to month, 8 days
(BPS-18) 31.01.2013 days
7. Total 13 years, 02
months 02 days"

14. Even if request of the respondent No.1 is considered for upgradation to BPS-
19, then also he has no case. Respondent No.1 was promoted in BPS-17 on 12.8.2011,
merely after 4 months and 10 days pursuant to O.M dated 23.12.2011, his post of
Private Secretary was upgraded to BPS-18. To claim benefit to O.M dated 2.6.1983, as
reproduced above he counted 1/2 of his earlier 14 years service in BPS-16 (Selection
Grade) from 6.2.1997 to 11.8.2011 as 7 years. From the calculation made by the
respondent No.1, it is manifest that he made error in counting his service in BPS-16
(Selection Grade) as that of BPS-16 in substantive grade. As noted in the narrative
above; he was serving in his substantive grade BPS-15 when his was appointed in
Federal Public Service Commission in BPS-16 (selection grade), merely serving in BPS-
16 in selection grade, could not be counted as service in substantive grade BPS-16 but
in BPS-15, therefore, such tenure of service could not be calculated 1/2 of 14 years
but in fact 1/4 of total service being below substantive grade BPS-16, i.e. from
2.12.1978 to 11.8.2011 which comes to approximately 22 years calculating 1/4th of
said period it comes to 5.5 years adding 4 months 10 day in BS-17 and 1 year 01
month and 8 days in BS-18 comes 6 years 6 months approximately in terms of formula
(per proviso (iii) to O.M dated 2.6.1983) even if rounded up to 8 years that it does not
meet the criteria of 12 years of length of service in BPS-17 and above required to be
upgraded to BPS-19. In view of the discussion made above, impugned decision of the
FST, cannot be sustained both on merits as well as for lack of jurisdiction, which is
accordingly, set aside, instant leave petition is converted into appeal and is allowed
accordingly.
MWA/F-3/SC Appeal allowed.
 18

2009 S C M R 980

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J. Ch. Ejaz Yousaf and Muhammad Farrukh
Mahmud, JJ

MUHAMMAD FARID KHATTAK and others----Appellants

Versus

CHIEF SECRETARY, GOVERNMENT OF N.-W.F.P. and others----Respondents

Civil Appeals Nos.650 to 652 of 2000, decided on 29th August, 2008.

(On appeal from the judgment, dated 6-1-2000 in Appeals Nos.13 of 1996, 14 of 1996
and 15 of 1996 passed by the N.-W.F.P. Service Tribunal, Peshawar).

(a) Civil service---

----Gradation and presumption of certain terms and conditions of a particular post---

Held, it was for the government to place a particular post in any grade or prescribe
certain terms and conditions therefor, as per its policy, and incumbents of a particular
post could not claim as of right for settlement of prescription or provision of certain
terms and conditions according to their own choice and it was always open for a
candidate to accept or not the terms and conditions prescribed for a particular post.

Province of Punjab v. Kamaluddin and others PLD 1983 SC 126 and Ahmad Hussain v.
Director of Education 2001 SCMR 955 distinguished.

(b) Service Tribunals Act (LXX of 1973)---

----S. 4---Nobody has a vested right in policy decision of the Government and Service
Tribunal is divested of power to indirectly set aside the public policy decision in
exercise of its power under Service Tribunals Act, 1973 or rules framed thereunder.

(c) Civil service---

---Grant of status to a civil servant with retrospective effect-Scope--Held, a particular

 19

status could not be legally bestowed upon a civil servant with retrospective effect,
even by a competent authority as he could not be legally made what he had never
been---Persons discharging similar duties appointed in different departments may
claim that they may be given the same status and benefits but a person, whose nature
of duties is altogether different and his terms and conditions were also not alike,
could not claim as of right that he may be allowed the same benefits and emoluments
which were not part of and covered by the terms and conditions of his service----
Government had the prerogative to determine terms and conditions of service of a
particular post which could not be challenged.

Ahmad Hussain v. Director of Education 2001 SCMR 955 and Province of Punjab v.
Kamaluddin and others PI,1) 1983 SC 126 distinguished.

(d) Service Tribunals Act (LXX of 1973)----

----S. 4---Upgradation of status---Civil servant, under the garb and cloak of financial
benefits could not demand upgradation of the post retrospectively from Service
Tribunal, such being outside the scope and ambit of the Service Tribunal.

Syed Asif Shah, Advocate Supreme Court for Appellants (in all Appeals).

M. Bilal, Senior Advocate Supreme Court for Advocate-General, N.-W.F.P. for

Respondents.

Date of hearing: 29th August, 2008.

JUDGMENT

CH. EJAZ YOUSAF, J.--- These appeals by way of leave are directed against a common
judgment, dated 6-1-2000 passed by the N.-W.F.P. Service Tribunal, Peshawar,
whereby three Appeals Nos.13, 14 and 15 of 1996, separately filed by the appellants,
were dismissed.

2. The relevant facts, briefly stated, are that the appellants were deputed by the
Khyber Medical College through the Vice-Chancellor, University of Peshawar, to
Jinnah Post Graduate Medical Centre, Karachi, in 1974 for doing B.Sc. in Medical
Technology. They did their B.Sc. in Medical Technology, in clinical group, whereas two
persons, namely Khushdil Khan and Abdul Shakoor did their B.Sc. in Medical
Technology, in Radiology group. On successful completion of training they were
 20

appointed against the existing post in BPS-16 in the pathology Department, Khyber
Teaching Hospital, Peshawar, while the other two namely, Khushdil Khan and Abdul
Shakoor, were appointed in Radiology group of the same hospital in BPS-16 on ad hoc
basis. The post of Chief Radiographer/Chief X-ray Technician in BPS-17 was advertised
through the Public Service Commission and Mr. Khushdil Khan, B.Sc. Medical
Technology, was selected/appointed against the said post. The posts of Medical
Technologist existing in the Pathology Department were advertised through the Public
Service Commission against which the appellants and Muhammad Anwar were
selected and appointed against these posts in BPS-16. The prescribed qualification for
the post of Medical Technologists (Clinical Group) was B.Sc. Medical Technology trout
ally recognized University whereas the prescribed qualification for the post of Chief
Radiographer/Chief X-ray Technician was Diploma in Radiography through organized
training of not less than two years in a recognized institute. It was the case of the
appellants that the prescribed qualification for the post of Chief Radiographer/Chief X-
ray Technician and those prescribed for the post of Assistant Physiotherapist were
definitely lower than the qualification prescribed for the post of Medical Technologist
(Clinical Group), but despite that 20 posts were placed in higher pay scale BPS-17 from
the dale of creation.

3. It is the case of the appellants that in the case of Refractionist the prescribed
qualification was simple B.Sc. with optics with one of the subject as compared with
B.Sc. Medical 'Technology which was a professional degree. Thus, the qualification for
the post of Refractionist was comparatively lower than the qualification for the post
of Medical Technologist in Clinical Group but it carried a higher pay scale BPS 17 while
BPS-16 was allowed to Medical Technologist. It is further case of the appellants that in
order to get resolve the controversy a representation was made as far back as in 1983
and it was supported by respondents Nos.2 and 3, as a result whereof the matter was
placed before the Anomaly Committee in the finance department which after
thorough examination recommended upgradation of the post of Medical Technologist
from BPS-16 to BPS-17. Respondent No.3, while accepting the recommendation of the
Anomaly Committee, ordered for upgradation of the said post with immediate effect
i.e. 1-1-1994.

4. It was grievance of the appellants that though the post of Medical Technologist had
been upgraded from BPS-16 to BPS-17 with effect from 1-1-1994, yet, since the
anomaly arose in the year 1978, and they were deprived of certain benefits,
therefore, the posts of Medical Technologists should have been upgraded from the
date when the anomaly occurred i.e. in the year 1978.

5. Learned N.-W.F.P. Service Tribunal, however, having found that the anomaly having
 21

been removed and the post of' Medical Technologist having been upgraded though
with immediate effect i.e. 1-1-1994 and the appellants having been appointed in BPS-
16 thereby accepting the terms and conditions of their appointment at that point of
time, there was no justification for allowing BPS-17 to the appellants from 1978.

6. Syed Asif Shah learned counsel for the appellants has contended that though
grievance of the appellants haft been partially redressed and the post of medical
Technologist was upgraded by the Government of N.-W.F.P. w.e.f. 1-1-1994, yet, since
the anomaly arose on 1-7-1978, the appellants had made representation in the year
1983, and on 29-3-1983 when the Government of Punjab, vide Notification No.
FD/PC/30-2, dated 29 3-1983, also allowed BPS17 to the B.Sc. Medical Technologist
therefore, the appellants were entitled to financial benefits from the date when the
anomaly arose. He has placed reliance on the case reported as The Province of the
Punjab v. Kamaluddin PLD 1983 SC 126.

7. Mr. M. Bilal, learned Senior Advocate Supreme Court, appearing on behalf of the
Advocate-General, N.-W.F.I'., on the other hand, while controverting the contentions
raised by the learned counsel for the appellants submitted that the appeal before the
Service Tribunal was incompetent as grant of relief claimed by the appellants was
beyond the jurisdiction of the "tribunal, inasmuch as the Provincial Government under
section 26(1) of the N. W. F. P. Civil Servants Act, 1973, was the sole authority to
frame financial rules and no exception could have been taken therefrom. He has
added that it was the prerogative of the Government to prescribed or fix the terms
and conditions of a particular post which could not have been challenged before the
Service Tribunal being outside the ambit and scope of aforementioned rule.

8. We have thoroughly considered the contentions raised by the learned counsel for
the parties and have also gone through the relevant record with their assistance,
carefully.

9. In the instant leave to appeal was granted by this Court in the following terms:---

"The learned counsel appearing for the petitioners submitted that Secretary to
Government of N.-W.F.P. Health Department respondent No.2 and Secretary
Finance Department 'respondent No.3 had supported the claim of the
petitioners for upgradation of the post. Correspondence in this matter
contained right from 1983 and, therefore, for the circumstances, the
petitioners were entitled to upgradation from the date they were inducted in
the service as has been done in the case of other employees of health
Department although they had much lesser qualification than the petitioners.
 22

It was further pointed out that the tenor of' the impugned order discloses that
it was apparently in favour or the petitioners but in the end without assigning
any valid reason their appeals were dismissed. In this context PLD 1983 SC 128
was referred to support his view point."

10. Precisely grievance of the appellants before the Service Tribunal was that it was
against law to allow lower pay scales to the incumbents of the post of having higher
qualifications and greater responsibilities than the incumbents of the post for which
lower qualifications were prescribed but higher pay scale was allowed. However, the
fact remains that neither the notification in question whereby according to the
appellants, the anomaly was removed and the post of Medical Technologist was
upgraded with effect from 1-1-1994, was challenged, nor the date of its application
was disputed. It is also an admitted fact that the appellants had accepted the terms
and conditions of their service in BPS-16 at the time of their induction and the other
post against which the appellants lay their claim, at the time of their joining service,
was in BPS-17 and it was open for them to compete against any one of the said posts,
but they opted to join as Medical Technologist. 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 therefor, 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 terms 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 u exercise of its power under the Service Tribunals Act, 1973
and the rules framed thereunder. No doubt in the case of Province of Punjab v.
Kamaluddin and others PLD 1983 SC 126, cited at the Bar by the learned counsel for
the appellants, the decision of the Tribunal ordering that Readers to Members of
Board of Revenue performing less onerous duties and serving in institution lower in
status than High Court, Reader of the High Court, having been placed in NPS-12, were
also entitled to be placed in NPS-16, was upheld, but the upgradation order was
prospective and it was never laid down that the upgradation would be from a
previous date or the notification would have a retrospective effect. Likewise in the
case of Ahmad Hussain v. Director of Education 2001 SCMR 955, though it was held by
this Court that the petitioners who were appointed as Physical Training Instructors
(PTI) in BPS-15 could not have been discriminated and were entitled to upgradation of
the post from the date of general upgradation of the posts but the fact remains that
the appellants in that case were all teachers and placed in similar situation whereas,
in the instant case the facts are other way round.
 23

11. It may be mentioned here that a particular status cannot be legally bestowed
upon a civil servant with retrospective effect, even by the competent authority as he
cannot be legally made what he had never been. It may be possible that persons
discharging similar duties appointed in different departments may claim that they
may be given the same status and benefits but a person, whose nature of duties is
altogether different and his terms and conditions are also not alike, cannot claim as of
right that he may also be allowed the same benefits and emoluments which arc not
part of and covered by the terms and conditions of his service. It would be pertinent
to mention here that in both the above referred cases i.e. Ahmad Hussain (supra) and
Kamaluddin (supra), the nature of' duties or the appellants and respondents were
alike; in first referred case they were Readers and were serving as such though in
different departments and in the second referred case they were teachers serving in
the same department, but in the instant case nature and duties of the Medical
Technologists (Clinical Group) and the Refractionist post being altogether different
and that too, in two different Provincial Governments i.e. Government of Punjab and
N.-W.F.P., how could the petitioners be treated alike.

12. As to the contention that since the Punjab Government had placed the post of
Medical Technologist in BPS-17 w.e.f. 29-3 1983, therefore, the Government of N.-
W.F.P. should have also allowed upgradation of the said post from the said date, it
may be pointed out here that it is the prerogative of the Government to determine
terms and conditions of service of' a particular post which cannot be challenged. In
fact the appellants under the garb clog of financial benefits want upgradation of the
post from 1-7-1978 instead of 1-1-1994 which being outside the scope and ambit of
the Service Tribunal Act, but the Tribunal has rightly refused to grant the relief.

13. Upshot of the above discussion is that these appeals being misconceived are
hereby dismissed.
 24

Writ petition no. 1932/2015

Muhammad Ayaz Butt

Civil Aviation Authority

Case Law Civil Aviation Authority Service Regulations No. 1.07 &
1.09 and nature, validity and enforceability of ‘Upgradation’

1.07
For any matter not provided for in these Regulations, the provision of the
Federal Government rules on the subject shall mutatis mutandis apply.

1.09
Matters not covered under these Regulations shall be governed under relevant laws of
the Federal Government till such time the Board may frame appropriate Regulations on
such a matter.

2016 SCMR 442 1

2016 SCMR 859 5

2017 SCMR 890 9

2009 SCMR 980 18