ZULFIQAR AHMED Versus GOVERNMENT OF KHYBER PAKHTUNKHWA, through Secretary Elementary and Secondary Education, Peshawar

SYED ARSHAD ALI, J.--- Petitioners Zulfiqar Ahmed and Akmal Hussain, who are Secondary School Teachers SSTs in Elementary and Secondary Education, Khyber Pakhtunkhwa, seek the constitutional jurisdiction of this Court praying that:-

"Under the circumstances, it is prayed that on acceptance of the instant writ petition, the respondents may kindly be directed to upgrade the post of petitioners from BPS-16 to BPS-17 according to resolution unanimously adopted by the Provincial Assembly in its meeting held on 05.01.2015 w.e.f the said date with payment of all back benefits to the petitioners being deprived by the respondents by their illegal, unlawful and mala fide acts by not implementing the aforesaid resolution as required by the rules of business of the Khyber Pakhtunkhwa Provincial Assembly of 1988 and any other relief which this Honourable Court may deemed fit may kindly be granted to the petitioners."

2. Brief but the essential facts of the case are that petitioners are serving as Secondary School Teacher in Basic Pay Scale BPS 16 (SSTs) in Elementary and Secondary Education Department, Khyber Pakhtunkhwa. The petitioners have filed instant petition in representative capacity and a list of SSTs has been annexed with the petition, who are also being represented by the petitioner. Petitioners belong to both the categories i.e. promotees as well as direct appointees through the Public Service Commission.

3. Vide Notification No. SO(FR)10-22(B)/2005 dated 01.10.2007 issued by the Finance Department of the Government of Khyber Pakhtunkhwa, various posts of the teachers including the SST were upgraded, however, through Notification No. SO(FR)10-22(B)/2005 dated 26.01.2008, the earlier notification dated 01.10.2007 was withdrawn by the Finance Department. Under the subsequent notification the up-gradation of the post of SST/SET from BPS-16 to BPS 17 was made subject to a condition i.e. " that the incumbent must have held the post of SST for at least ten years and up-gradation to the post shall be made through DPC as per laid down procedure". Similarly, vide Notification No.FD/SO(FR)10-22/2014 dated 20.05.2014, the respondents Finance Department up-graded various posts in education department, however, the posts of SSTs were not included in the said notification. Similarly, the Provincial Assembly of Khyber Pakhtunkhwa in its meeting held on 25.01.2015, unanimously recommended to the Provincial Government for the up-gradation of the posts of SST from BPS 16 to BPS 17 on the structure granted to the similarly placed teachers of the other provinces of the country, but the said recommendations have never been implemented by the Provincial Government so for. Vide Notification No. FD/SO(FR)7-20/2015 dated 30.06.2015, the government of Khyber Pakhtunkhwa once again up-graded several posts from BS-1 to BS-15 in various department, however, the incumbents holding the posts of SSTs in BS-16 and BS-17 were ignored and denied up-gradation, instead they were given only ad hoc relief in shape of a special compensatory allowance. Feeling dissatisfied with such discrimination, the petitioners filed instant writ petition.

4. The respondents filed their comments wherein they have raised objection to the maintainability of the petition and controverted the assertions of the Petitioners.

Arguments heard and record perused.

5. At the very outset, the learned Additional Advocate General has raised a preliminary objection on the maintainability of this petition and has argued that the petitioners have no vested right to be governed under any set of rules and the provincial Government has the prerogative to change/alter the rules governing the terms and conditions of services of its employees. The learned Additional Advocate General has further argued that the High Court has no jurisdiction to interfere in the policy matter of the department and lastly argued that the jurisdiction of this Court is barred under Article 212 of the Constitution. He relied on "Zafar Iqbal v. Director Secondary Education Multan 2006 SCMR 1427", "Mumtaz Ali Bohio v. Federal Public Service Commission 2002 SCMR 772" and "Sheikh Ansar Ahmed v. Federation of Pakistan 2010 PLC (C.S) 1018".

6. The learned counsel appearing on behalf of the petitioners, while controverting the arguments of learned Additional Advocate General, has argued that in essence the petitioners are seeking up-gradation of their posts pursuant to the unanimous resolution of Provincial Assembly. Under the Rules of business framed by the Khyber Pakhtunkhwa Provincial Assembly, (Rules) the unanimous resolution passed by the Provincial Assembly is binding on the Provincial Cabinet and the petitioners through this petition are seeking enforcement of the unanimous resolution passed by the Provincial Assembly wherein the provincial assembly has decided that that SST cadre of the Education Department of Khyber Pakhtunkhwa will be given service structure and time scale in line with the service structure of the similarly placed SST teachers working in the provinces of Balochistan, Sindh, Gilgit Bultistan and Azad Jammu and Kashmir. He relied on "Mustafa Impex Karachi v. Government of Pakistan through Secretary Finance PLD 2016 SC 808".

7. Heard: In essence, the petitioners are seeking up-gradation of the post of Secondary School Teachers (SST) from BPS-16 to BPS-17 on two grounds. First, discrimination as in the sister provinces, the basic pay scale offered to SSTs is BPS-17 and secondly the unanimous resolution passed by the Provincial Assembly of Khyber Pakhtunkhwa on 05.01.2015, whereby it was unanimously agreed by the Provincial Assembly to allow up-gradation of post of SST Cadre in line with the service structure offered by Balochistan, Sindh, Gilgit Baltistan and Azad Jammu and Kashmir to the similarly placed SSTs. Since the matter relates to up-gradation of their posts (SST) from BPS 16 to BPS 17, which do not constitute the terms and condition of the civil servant, therefore, the said grievance is not amenable to the jurisdiction of the Service Tribunal. This issue has been finally laid to rest by the august Supreme Court of Pakistan in "Regional Commissioner Income Tax, Northern Region, Islamabad and another v. Syed Munawar Ali and others (2016 SCMR 859)" by holding that:-

"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. The petitioners also seek direction of this Court to the respondents to place the unanimous recommendation of the Provincial Assembly before the Cabinet/Provincial Government for giving effect to it. Since there is no order impugned before us relating to enforcement of the terms and condition of the civil servants with in the contemplation of section 4 of the Khyber Pakhtunkhwa Service Tribunal Act, 1974 (The Act) and the relief claimed as stated above, is in the nature of a command to the departmental authority which in essence, cannot be issued by the Service Tribunal, having limited jurisdiction. Indeed, the petitioners are seeking issuance of writ of mandamus which is a sole prerogative of the constitutional Courts. In this regard, wisdom can be drawn from the law laid down by the august Supreme Court in "Executive District Officer School and Literacy District Dir Lower v. Qamar Dost Khan (2006 SCMR 1630) and Pakistan International Airlines Corporation v. Samina Masood (PLD 2005 SC 831)". Hence, the objection of the respondents/government to the maintainability of the writ petition is overruled.

9. Now moving to the merit of the case, it is evident on record that the Provincial Assembly has passed an unanimous resolution on 05.01.2015 which is reproduced as under:-

The said resolution has been conveyed to the respondent No.2 by Assistant Secretary-IX, Provincial Assembly of Khyber Pakhtunkhwa through letter dated 06.01.2015 for information and necessary action. Respondents solicited the opinion of the Law Department on the issue through letter dated 25.08.2015. In turn, the law department has opined as under:-

"I am directed to refer to your Department's letter No.SO(PE) E&SED/10-12/Std Committee No.26/15 dated 25.08.2015 on the subject noted above and to stated that Law Department is of the view that the report of standing committee No.26 has been unanimously adopted by the Provincial Assembly, in presence of the Government members, the same has biding effect therefore, Elementary and Secondary Education Department may submit the compete case to Cabinet for orders with regard to implementation of the report."

10. The learned counsel representing the petitioners is of the view that since the resolution was unanimous, hence, is binding on the Provincial Government. The learned counsel has relied on Rule 135 of the Rules which reads as under:-

"135. Copy to department concerned.---(1) A copy of every resolution, which has been passed by the assembly, shall be forwarded to the Department concerned of the Government.

(2) Any such resolution shall have effect only as a recommendation to Government, except a resolution non connection with an Order promulgated by the Governor under Article 128 of the Constitution, or a resolution with respect to the removal of the Speaker or the Deputy Speaker from office:

Provided that if a resolution is unanimously adopted, it shall be binding on the Provincial Cabinet to implement the same as their collection responsibility under clause (4) of Article 130 of the Constitution."

However, we cannot subscribe to the argument of learned counsel for the petitioners, for the reason that the proposed unanimous resolution will have obviously financial implications and will also involve expenditure from the Provincial consolidated fund or withdrawal from the public accounts of the province as allowing higher pay scale to the petitioners will result in increase in their pay. Under Article 115 of the Constitution of Islamic Republic of Pakistan, 1973 (the Constitution) the powers of Provincial Assembly has been restricted by enacting any bill which would involve expenditure from the Provincial Consolidated fund or withdrawal from the public accounts of the province, unless the said bill is introduced with the consent of the provincial Assembly. When for introduction of a bill, involving financial implications on the Provincial Consolidated Funds, if the powers of the provincial Assembly has been restricted, then obviously any resolution passed by the Provincial Assembly without consent of the Provincial Government having implication on Provincial consolidated fund cannot be made binding on the provincial Government. The ratio of the judgment of Mustafa Impex supra is not applicable to the present case wherein it has been held that adherence to the rules of business framed under Article 99 of the Constitution are binding. Indeed, it is settled principle of law that any rules which offends the parent act or constitution, have no force in the eyes of law. However, the respondent No.2 has no authority to halt the process of placing the recommendations of the Provincial Assembly before the Cabinet. It is then for the cabinet to decide the issue keeping in view all the circumstances.

11. Now adverting to the second limb of the arguments of petitioners that the sister provinces have allowed BPS-17 to the SSTs. In this behalf, they have placed on record the notification dated 29th November, 2015 of the Government of Balochistan which reflects that the SSTs in that province are drawing the salary of BPS-17. Similarly the provincial Assembly has also referred in its resolution that the Governments of sister provinces of Balochistan, Sindh, Gilgit Baltistan and Azad Jammu and Kashmir have allowed BPS-17 to the SSTs whereas the Province of Khyber Pakhtunkhwa has allowed BPS-17 to those SSTs only who have served at least 10 years in the said cadre. Hence, there is apparent disparity in the pay scale of similarly placed teachers of different provinces. True that each province has different financial resources, however, in the present case, the grievances of the petitioners have not been redressed through a speaking order. The conduct of respondents by withholding the recommendations of the provincial assembly and not placing the same before the Provincial Government/Cabinet is not warranted under the law. Hence, by allowing this petition we direct respondents Nos.2 to 4 to place the case of the petitioner with detailed working paper stating therein the financial implications and the status of the similarly placed teachers in the sister provinces, in detail to the provincial Government/Cabinet in accordance with law. We expect that the entire process shall be completed within two months from the receipt of this judgment.

ZC/312/P Petition allowed.