IQBAL HAMEED-UR-REHMAN, J.--- Through the instant petition, the petitioner prays that she be designated as an Assistant Mistress in BPS-14 in line with order dated 17-12-2003 passed by respondent No,1, and further she be given her salary by treating her as Assistant Mistress BPS-14 from October, 2003 as she is serving as teacher on attachment basis against the vacant seat of Miss Asima Huma Lady Teacher.
2. Brief facts as narrated in this petition are that the petitioner was appointed as a Clerk. Thereafter, she was transferred against the vacant seat of Miss Asima Huma who was teaching in the Post Model Girls High School Multan Road, Lahore, on the attachment basis. Thereafter, respondent No,1 passed an order on 17-12-2003 whereby she was adjusted as Assistant Mistress in BPS-9 in the said school. She reported her joining as Assistant Mistress to respondent No,3. The adjustment order was not implemented by respondent No,1, as such she moved an application to respondent No,1 for implementation of the same but respondents Nos.1 and 2 adjusted Miss Naveeda Kausar respondent No,6 as Assistant Mistress BPS-14 and respondents Nos.4 and 5 were redesignated as Assistant Mistress in BPS-14 from her basic previous designations as Librarian. Hence this writ petition.
3. It is contended by learned counsel for the petitioner that the petitioner is M.A. Arabic and B.Ed., and since 17-12-2003 the petitioner being a clerk is teaching the subject of Arabic in Pakistan Post Model Girls High School, Multan Road, Lahore, but she has not been promoted instead respondents Nos.4 to 6 who have low qualification as compared to her have been promoted. It is further contended that in promoting the said respondents, discrimination has been exercised by respondent No,2 and that not only Articles 3, 4, 9 and 25 of the Constitution of Islamic Republic of Pakistan, 1973 have been ignored but also rules governing the service matters of the employees of Post Master General Offices have been violated by respondents Nos.1 and 2. It is further contended that the petitioner nowadays is very disappointing and is suffering from inferiority complex due to the fact that she is introduced in the school as a clerk while other teachers serving in the same school, who hold low .Qualification as compared to the petitioner, are enjoying the status of the officers in the said school. It is further contended that the petitioner is teaching the subject of Arabic being M.A. In Arabic with effect from 17-12-2003 but she is receiving her salary as a clerk and in this respect, a certificate verifying the said fact has been issued by the Headmistress, Post Model High School, Multan Road, Lahore.
4. On the other hand, the learned D.A.-G. At the very outset has questioned the maintainability of the petition by asserting that grievance of the petitioner relates to the terms and conditions of service which this Court is barred under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. It is further asserted that the petitioner has not been able to show that any discriminatory attitude is being adopted towards her as she has only urged through this petition that she is entitled to the grant of BPS-14 on the ground that she has been working on the said post as a stop-gap arrangement and she cannot claim promotion as of right on the basis of the said claim and in this respect, he has relied upon 1998 SCM R 882. It is further contended that the petitioner has a back door entry and the Court is very watchful of the process through which selection is to be made i.e, through proper Selection Board by adopting a proper procedure. It is further contended that at the most, the petitioner could claim for the salary for the work already done and for this purpose, the petitioner should move before the Service Tribunal and in view of the same, this petition merits to be dismissed.
5. Arguments heard. Record perused.
6. Grievance of the petitioner relates to the terms and conditions of service which this Court is barred under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. Even the petitioner has not been able to show that any discriminatory attitude is being adopted towards her as she has only urged through this petition that she is entitled to the grant of BPS-14 on the ground that she has been working on the said post as a stop-gap arrangement and she cannot claim promotion as of right on the basis of the said claim. In this respect, reliance is placed upon Zafarullah Baloch v. Government of Balochistan and others 2002 SCM R 1056, wherein it has been held that promotion is not a vested right of a civil servant because it depends upon eligibility-cum- fitness. The claim of the petitioner for the payment of her salary and allowances for a period with effect from October, 2003 till to date on account of her performing duties as Assistant Mistress in BPS-14 seems to be genuine. Reliance is placed on the case of Sh. Amar Maftoon v . Government of the Punjab through Secretary Education and another 1992 SCM R 1869 wherein it has been held that:- "Civil servant worked against post of higher grade and discharged functions of such post, which entitled him to the pay attached to that post. Incorporation of condition in civil servants posting order that he was adjusted against own pay and grade, would be inconsequential and not a bar for him to claim higher grade of pay. Civil servant was thus, entitled to the pay of higher post during the period he worked against the same."
' In the case Federation of. Pakistan v. Shahzada Shahpur Jan and 2 others 1986 SCM R 991 it has been held that "civil servant, who while working in higher grade but without any formal order of promotion to higher grade, was entitled to pay of higher grade from the date he was promoted to higher post with said higher grade, onwards along with increments falling due every year". In the case of Islamic Republic of Pakistan through Secretary, Finance Division, Government of Pakistan, Islamabad v. Qazi Abdul Karim, Deputy Accountant-General, N.-W.F.P. Peshawar and another 1978 SCM R 289 wherein it has been held that "employee promoted to officiate in a higher post involving higher responsibility is entitled to minimum pay of grade of higher post".
7. In view of the above circumstances this petition is accepted to the extent of the claim of the petitioner regarding payment of the salary and allowances of the post of Assistant Mistress.
Accordingly, respondents Nos.1 to 3 are directed to make the payment of pay and allowances of the post of Assistant Mistress to the petitioner with effect from October, 2003, till today.