' SHAHID JAMIL KHAN, J. --- The instant Infra Court Appeal, as well as, Intra Court Appeal No,118/2013 arise out of the order dated 08.12.2011 passed by the learned Single Judge of this Court in W. P.
No,173/2011. This order was firstly challenged in Civil Appeals No, 262 & 263 of 2012 before the august Supreme Court of Pakistan. The Hon'ble Court vide order dated 20.09.2013 was pleased to treat the Appeals as Intra Court Appeals ("ICAs") and remanded the matter back to the Lahore High Court, Rawalpindi Bench, Rawalpindi to decide the ICAs on merits.
2. ICA No, 117/2013 is filed by the employee who was petitioner in W.P.No,173/2011; whereas ICA No, 118/2013 is filed by the Secretary, Special Education Department, Government of the Punjab, who was respondent No,1 in the main petition.
3. Before proceeding further, the operative part of the order impugned in both the appeals is re- produced hereunder to understand the nature and prayer in both the appeals:--- "There is no doubt that the petitioner was initially appointed as an adhoc employee by the respondent/ department. His term was extended from time to time. He was offered employment on contract, vide offer of appointment dated 25.7.2007 and his service was ultimately regularized vide order dated 22.11.2007. He served the respondent/department incessantly. His case is at par with that of Sarfraz Ahmad and with the case of those employees whose matter has been referred in Sarfraz Ahmad's case. The petitioner is held entitled to all back benefits, allowances and funds etc. From the date of his appointment as an adhoc employee. Regarding the placing of the petitioner in BS-16, the prayer made in this petition is turned down. The placement of the employees' in various scales is always subject to the possession of the qualification and fulfillment of other conditions which the petitioner lacks. This petition is partly accepted."
4. The facts, necessary for deciding these appeals, are that appellant/petitioner was appointed as Braille Teacher in Govt. Qandeel Secondary School for blind at Rawalpindi on adhoc basis in BS-11 vide order dated 12.12.1990. The service of the appellant/petitioner was converted from adhoc to contract vide letter dated 25.07.2007 for five years in BS-11. The petitioner moved W. P. No,2088/2007 in this Court and challenged the order dated 25.07.2007 for Appointment on Contract, being violative of letter dated 31.05.2007 by the Chief Minister. This Court vide order dated 28.09.2007 directed respondent No,1 to examine the representation of the petitioner and decide the same within a period of 15-days. The Directorate of Special Education, Government of the Punjab, withdrew the offer letter dated 25.07.2007 and regularized the appellant/petitioner vide order dated 22.11.2007 in BS-11 with immediate effect i,e,, 22.11.2007. The appellant/petitioner's request for grant BS-16 was declined vide letter dated 25.05.2010.
' This order prompted the appellant/petitioner to file W. P. No, 173/2011, in which the order dated 25.05.2010 , issued by the Directorate of Special Education Government of the Punjab, was assailed.
It was prayed that the regularization with effect from 22.11.2007 was violative of the direction by the Chief Minister, Punjab, as competent authority vide letter dated 31.05.2007 had directed regularization of the appellant/petitioner services with effect from 12.12.1990.
5. Learned Single Judge accepted the second part of the prayer i,e, regularization with effect from 12.12.1990 relying on Sarfraz Ahmad v. Government of Sindh, reported as Unclassified Cases (2007 UC 9)as is evident from the re-produced part of the order in question.
6. Learned counsel for the appellant/petitioner argued that the learned Judge in Chamber has erred in holding that the petitioner lacked the qualification for up-gradation of the post to BS-16 from BS-11. He has also urged that the learned Single Judge overlooked to examine the case in view of the letter dated 01.04.1986 issued by the Finance Department, Government of the Punjab regarding revision of pay scales. He has mainly assailed the rejection of relief to the extent of granting BS-16 to the appellant with effect from 12.12.1990.
7. Learned counsel for the appellant/respondent No,1 in ICA No, 118/2013 has assailed the order to the extent of relief granted and argued that after being regularized the petitioner had attained the status of a civil servant, therefore, the grievance regarding regularization with effect from 12.12.1990 and up-gradation to BS-16 was to be challenged before the Punjab Service Tribunal in view of Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973, therefore, the petition was not maintainable. It was also argued that by accepting the appointment, the petitioner was stopped by his conduct and could not have claimed the regularization in BS-16.
8. Heard both the parties and record perused.
9. So far the ICA filed by the Secretary Education, appellant/respondent No,1 is concerned, the objection regarding the maintainability of the writ petition is not convincing for the reason that the claim of regularization with effect from 12.12.1990 i,e,, from the date of assuming the post as adhoc employee and its regularization in BS-16 relates to the Post Regularization Period. Therefore, attaining status of a civil servant alone would not be sufficient to attract the bar contained under Article 212 of the Constitution. This finding is further strengthened by the order of the Hon'ble Apex Court dated 20.09.2013, by which the appeals were converted into ICAs and were remanded to this Court for decision. In opening paragraph of the judgment, stating reasons for remanding the appeals, the Hon'ble Apex Court has observed that there was no remedy of appeal/review/revision available under the law. Relevant para from the judgment is re-produced as under:-- "Admittedly, against- the impugned judgment of the learned High Court, remedy of an Infra Court Appeal (ICA) was available to the appellants, as on account of the relief claimed by the appellant in Civil Appeal No,262/2012, on the basis of cause of action set out in his writ petition there was no remedy of appeal/review/ revision etc. Under the law, therefore, having not availed the remedy of ICA by both the sides, the present appeals are not competent."
The objection of maintainability is, therefore, turned down.
10. After holding that the writ petition was maintainable against the impugned order dated 25.05.2010, we may advert to the merits of the claim/prayer of the appellant/petitioner whereby the request for grant of BS-16 with effect from the date of appointment i,e,, 12.12.1990 was turned down observing that it could not be acceded to because BS-16 was granted to either selectees of the Punjab Public Service Commission or by promotes on seniority-cum-fitness basis. It was also observed that the higher grade could not be granted with retrospective effect.
11. We are not convinced by the arguments of learned counsel for the appellant/petitioner regarding grant of BS-16 with effect from12.12.1990 i,e,, date of appointment as ado employee. It is important to note that the notification of revision of pay scales relied upon by the appellant/petitioner is dated 01.04.1986, wherein the qualification for BS-16 is written as B.A./B.Sc. It is important to note that on the date of appointment as adhoc teacher when the notification was in field, the appellant/petitioner accepted appointment in BS-11, despite the fact that he was having the qualification for appointment against BS-16. In our considered view the regularization could only be claimed against the post which was accepted by the appellant/petitioner as ad hoc employee. Claim of regularization in BS-16 appears to be an afterthought. The appellant/petitioner, therefore, has no right to claim regularization in BS -16. He is merely pursuing his wish of being appointed in BS-16. After accepting appointment in BS-11 on adhoc basis, he is caught by the principle of estoppels.
' The appellant/petitioner's claim regarding discrimination against other employees is not substantiated as no proof is found on record that any adhoc employee in BS-11 was regularized in BS-16 merely for the reasons that at the time of appointment he was holding a B.A. Degree as qualification required for appointment in BS-16.
12. Both the appeals, therefore, are turned down/dismissed for the reasons given above. The order of the learned Single Judge dated 08.12.2011 passed in W. P. No, 173/2011 is upheld.