' MRS. AYESHA A. MALIK, J.--- Through this Writ Petition, the petitioner seeks a direction to the respondents to grant him Selection Grade in BS-15 from BS-11.
2. Brief facts of the case are that the Finance Department issued a letter dated 27-7-1987 revising the pay and fringe benefits of the employees of the Government of the Punjab. Thereafter, in continuation of the said letter, another letter dated 21-1-1988 was issued which upgraded technical posts in different departments and also allowed selection grades to the government servants subject to a minimum qualification. The case of the petitioner is that nearly all of the government departments have acted upon the said two letters and upgradation and selection grades were granted to the employees as per letter dated 21-1-1988. However, respondents Nos.1 and 2 have not upgraded the post of the petitioner even though he is entitled for the same. The petitioner made a representation before respondent No,1 for redressal of his grievance who vide order dated 16-6- 2012 has rejected the representation of the petitioner. Hence this Writ Petition.
3. Learned Law Officer raised an objection that upgradation and award of selection grade is a matter of promotion, hence the case of the petitioner cannot be decided in a constitutional petition. That the petitioner should have filed an appeal before the Punjab Service Tribunal (the Tribunal) against the impugned order as the matter in issue relates to the terms and conditions of service, hence the bar of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 is applicable to the case of the petitioner. He also argued that the petitioner cannot be granted upgradation and selection grade as the scheme was abolished in the year 2001 and a new structure was subsequently put in place.
4. Learned counsel for the petitioner in rebuttal has relied upon the case-law cited at "Abid Hussain and 5 others v. Secretary to Government of the Punjab, Finance Department, Civil Secretariat, Lahore and 5 others (2012 PLC (C.S.) 26)" to argue that the cases of upgradation have been adjudicated upon in constitutional jurisdiction on the ground of discrimination. Since the petitioner also challenges discrimination, hence, the bar of Article 212 of the Constitution is not attracted.
5. Arguments heard. Record perused.
6. The petitioner is a Laboratory Technician appointed in BPS-9 on 19-4-1993. The prayer of the petitioner is that he be awarded upgradation to BS-11 and selection grade of BS-15 from the date of his appointment. Essentially, the petitioner is seeking a higher grade for which a selection process is admittedly required. The petitioner's case was considered by the respondent No,1, but rejected as a 4-tier service structure has been created for paramedics. In terms of the order, the petitioner has available to him a promotion channel upto BPS-16 subject to availability of post, mandatory training and required length of service. However, the petitioner wants to be treated at par with the persons mentioned in para 6 of the instant petition. The record as appended with the Petition shows that the persons named in para 6 were upgraded in the years 1991 and 1994, whereas the petitioner's case was considered in the year 2012. Learned counsel for the petitioner contends that the petitioner has been agitating the matter for a long time, however, there is nothing on the record to substantiate the same. As per the record, he filed Writ Petition No,23321 in the year 2009 wherein a direction was given on 7-12-2011 to decide the representation of the petitioner. The petitioner is aggrieved by the impugned order as it denies him upgradation and selection grade. The case relied upon cited at 2012 PLC (C.S.) 26 (supra) is one where the cadre was abolished and the petitioners were excluded from upgradation on the ground that their cadre was abolished. In the cited case, this Court held that they should be treated at par with their counterparts in the same department since they were all permanent government servants and the petitioner should not be denied upgradation solely on the ground that his.Cadre was abolished. Hence the cited case is distinguishable from the instant petition. In the instant case, the petitioner is alleging discrimination against the orders passed in the years 1991 and 1995 with respect to certain technical officers.
There is nothing on the record to explain the long period of delay by the petitioner in agitating the issue. He filed Writ Petition No,23321 in the year 2009, some 14 years after the decision was made.
Now at this belated stage, with a new structure in place,. The petitioner has no grounds to agitate discrimination or otherwise. Furthermore, the petitioner has been considered for upgradation and denied the same as the petitioner has available a promotion channel under the new 4-tier structure and also since the selection grade scheme was abolished on 1-12-2001.
7. Be that as it may, the prayer of the petitioner is that he be awarded upgradation and selection grade from the date of his appointment. In terms of the dicta laid down in . The case titled "Government of the Punjab through Secretary Services, Punjab, Lahore and 4 others v. Muhammad Awais Shahid and 4 others (1991 SCMR 696)" upgradation is a form of promotion. It was held by the Hon'ble Supreme Court of Pakistan that "Wherever there is a change of grade or post for the better, there is an element of selection involved that is promotion and it is not earned automatically, but under an order of the competent authority to be passed after due consideration on the comparative suitability and entitlement of those incompetent." Section 8 of the Punjab Civil Servants Act, 1974 (the Act) provides that promotion is a term and condition of, service. Under Section 8 of the Act, a civil servant shall be eligible to be considered for promotion provided that he possesses the prescribed qualifications for promotion. As per section 3(2) of the .Act, the service tribunal shall have exclusive jurisdiction with respect to matters of terms and conditions of service of civil servants. Since upgradation and.Award of selection grade is a form of promotion, therefore, in terms of section 3(2) read with Section 8 of the Act, the question of upgradation/grant of selection grade must be decided by the Service Tribunal. The petitioner has an effective, efficacious remedy available to him for redressal of his grievance by approaching the Service Tribunal which has exclusive jurisdiction to deal with such matters.
8. For the aforementioned reasons, this writ petition has no merit, hence dismissed.