' CH. MUHAMMD MASOOD JAHANGIR, J.--- The petitioners by filing the instant writ petition have prayed as under:---
(i) An appropriate writ may graciously be issued.
(ii) The respondents Nos.2 and 4 may kindly be directed to extend the benefit of Notification No,14- 11-2011 to the petitioners as well and also to make appropriate speedy legislation for the up gradation of the petitioners posts.
(iii) The respondents Nos.5 and 6 may kindly be directed to release the petitioners 20% deputation allowance along with arrears without further delay.
(iv) Writ Petition may kindly be accepted with all consequential benefits.
(v) Any other and better relief, which this Honourable Court deemed appropriate in the circumstances of the case, may also be awarded to the petitioners.
2. The learned counsel for the petitioners has argued that the petitioners are working in the same scales since decades, but they have not been promoted to the next scale on the pretext that no post is available in the service structure due to which the petitioners promotion is blocked, that after the 18th Amendment in the Constitution of Islamic Republic of Pakistan the concerned department of the petitioners was handed over to the Provincial Government and the petitioners are working under School Education Department, Government of Punjab since then as their services were also surrendered in consequence of Provincial autonomy on deputation but the petitioners are not being paid 20% deputation allowance without any justification, that vide notification dated 14-10-2011 the Federal Government has followed the formula of up-gradation in TIME Scale from BS-16 and above under the Federal Directorate of Education w,e,f, 1-1-2011 as provided in the said notification, that the petitioners submitted representation to respondents Nos.2 and 4 for redressal of their grievance, but the same has not been acceded to vide reply dated 23- 4-2013 on the sole score that they have been working on deputation basis and the petitioners have been deprived of their lawful rights without any fault on their part, that the petitioners are not being paid 20% deputation allowance as per law as provided by the Federal Government to the other employees, that the attitude of the respondents is vivid as the petitioners have been deprived from their right of promotion as well as release of 20% deputation allowance.
4. Conversely the learned D.A.-G. assisted by the learned A.A.-G. refuted the arguments advanced by the learned counsel for the petitioner and argued that according to policies which are in field the petitioners are not entitled for grant of any relief and that the writ petition under Article 212 of the Constitution of Islamic Republic of Pakistan is not maintainable as the controversy relates to administration act.
5. Arguments heard and record perused.
6. The admitted facts of the case are that the petitioner No,1 had joined the services in National Equipment Centre School Education Department, Lahore as Subject Specialist (Chemistry) in BS-17 on 1-8-1983. Then after 23 years service he was given current charge to the post of Deputy Director (BS-18) in the year 2006 and was regularly promoted to said scale in the year 2007 after the retirement of Deputy Director, who is working in the said scale till now. However, petitioner No,2 joined the said department as Subject Specialist (Physics) BS-17 on 20-11-1988 and even after twenty-five years service he has not been promoted so far on the pretext that there was only one post of BS-18 'which has already been filled. Similarly petitioner No,3 had been posted in the said department as Workshop Superintendent in BS-16 in the year 1982, who was promoted in the year 2006 to BS-17 and is serving there since then. The Federal Government vide notification dated 14- 10-2011 has made a criteria regarding the employees of education department for their promotion.
The case of the petitioners is similar to the said employees.
7. The comments have been filed by the different respondents, who have principally agreed the claim of the petitioners, but showed their inability to promulgate the same as it requires special legislation both at the Federal and Provincial level. For ready reference, the relevant extracts from their comments are reproduced hereunder:--- "Respondent No,1.
"Paras. 6-8.--- The matter relating to career progression of devolved employees shall be addressed after promulgation of the Provincial legislation. Moreover, with the approval of the Prime Minister of Pakistan, the issue of Provincial Legislation has been forwarded to the forum of Council of Common interests."
Respondent No,5.
"6. The facts narrated in this para are based on record, hence the same are admitted, however, it is submitted that the recommendations of any high up cannot give a right to any public servant until and unless the relevant Ministries make service structure/rules.
7 Admitted to the extent that the Notification No,F.1-1/2011-EDU Dated 14-10-2011, issued by the Federal Government has adopted the formula of up-gradation in TIME SCALE from B-16 and above.
The Federal Government may promote the petitioners under application of this Notification, however, the said Notification does not pertain to the petitioners specifically.
8. Matter of record. The reply of Joint Secretary Devolution Cell, Cabinet Division indicates that the formulation of legislation regarding the promotion of employees transferred on deputation under 18th amendment is subject to the promulgation at Federal as well as Provincial legislation.
Respondent No,2.
"Para.2.--- The matter of posting and transferring of government servants under section 10 of Civil Servants Act, 1973 as well as upgradation of posts and grant of 20% deputation allowance etc falls within the purview of the Establishment Division and the Government of the Punjab."
8. The said question has already been dealt with by the learned Islamabad High Court in the order dated 12-3-2013 passed in W.P.No,1442 of 2012 and relevant portion thereof is reproduced below:-- - "3. There is no denial that petitioners are lurking in the arena of uncertainty due to inaction on the part of respondents. Bureaucratic approach to shift the responsibility on others is, culture in our set up and instant matter is no exception. Respondents are not ready to realize that merely paying salary to Government Employees is not sufficient, as seniority of any Government Employee is pride for which every employee aspire.
4. In this view of the matter instant petition is allowed and respondents are directed to take all remedial steps to undo the wrong and redress the grievance of the petitioners within one month of the receipt of instant order."
9. The august Supreme Court of Pakistan in the judgment reported as Dr. Naveeda Tufail and 72 others v. Government of Punjab and others (2003 SCMR 291) has resolved the controversy that the employees of similar cadre although belonging to Federal as well as Provincial Governments have to be treated alike. The relevant portion from the said judgment is reproduced as follows:--- "The petitioners, being ad hoc employees of Provincial Government, cannot claim regularization as of right in the light of policy of Federal Government but the principle of equality as embodied in Article 25 of the Constitution of Islamic Republic of Pakistan, 1973, would demand that they while facing the similar circumstances, should be treated in the same manner. The principle of equality would impliedly be attracted in favour of the petitioners as they being ad hoc lecturers in the Provincial Government and therefore, it would be fair, just and proper to consider their cases for regularization."
10. As regards the claim of the petitioner for disbursement of deputation allowance @ 20% the Federal Government of Pakistan through the Establishment Division has already issued letter dated February 29, 2012 to the Chief Secretary, Government of the Punjab, Lahore with the request for payment of the said allowance. For facility of reference the said letter is reproduced hereunder: -- "Subject:-- PAYMENT OF DEPUTATION ALLOWANCE TO THE EMPLOYEE OF DEVOLVED MINISTRIES/DIVISIONS.
' My dear ' As you are aware the Federal Government, in pursuance of Constitutional (Eighteenth Amendment) Act, 2010 (Act X of 2010), transferred Federal employees to all Provincial Governments along with offices, on deputation basis under section 10 of the Civil Servants Act, 1973, on their existing posts. Some of these employees have pointed out that the Deputation Allowance @ 20% is not being disbursed to them.
2. The payment of deputation allowance to all the Federal employees transferred to the Provincial Governments on deputation basis was decided in the meeting of the Federal Secretaries held on 11th November, 2010.
3. I shall be grateful if instructions are issued to relevant authorities for payment of 20% deputation allowance to all Federal Government employees working in the devolved entities/offices in your Province with effect from the date of their transfer to the Provincial Government."
Sd/- (Khushnood Akhtar Lashari) Mr. Nasir Mehmood Khosa, Chief Secretary, Government of the Punjab, Lahore.
11. In view of the above discussion, since it is found that the petitioners are performing their duties without any complaint and stigma on their service file and they have a right to achieve their seniority, therefore, the respondents are directed to take all necessary steps to remedy the grievances of the petitioners as early as possible. The Provincial Government is also directed to ensure that the aforesaid letter dated 29-2-2012 is taken effect in letter and spirit and 20% deputation allowance will be disbursed to the petitioners from the date of their entitlement.
12. This writ petition stands disposed of accordingly.