' MUHAMMAD JUNAID GHAFFAR, J.--- Through instant petition, the petitioner has prayed for directions to respondents .for-'up grading the petitioner from (BPS-16) to (BPS-17) with all consequential back benefits.
2. The petitioner who was a graduate at the relevant time had applied against the vacancy announced by the respondents for LAN Technician/I.T. associate for which the basic qualification required was a Bachelor's degree in Computer Science. Such positions were on contract basis and the petitioner was appointed as LAN Technician on contract basis through the Selection Board. On expiry of such contractual period, the petitioner was regularized after approval of the Syndicate of the respondent University in its meeting held on 18-12-2004. It has been further stated that in fact the position of LAN Technician is a post of (BPS-17) for which a Master's degree is the pre-requisite.
However, the petitioner on the basis of his qualification was though regularized as LAN Technician, but in Grade (BPS-16) instead of (BPS-17). Subsequently, the petitioner had obtained Masters degree on 5-2-2007 and thereafter applied for (BPS-17) through application dated 16-2-2007 which was regretted by the respondents with the observation that as and when any post of LAN Technician in (BPS-17) is advertised, the petitioner can apply for the same. The petitioner kept on pursuing his case and thereafter on 14-1-2009 the petitioner's request was declined through a letter whereby it was stated that at the time of appointment, the petitioner did not possessed the four years degree, hence the petitioner's request cannot be entertained. However, the petitioner was informed that he is at liberty to apply for the said post as and when the vacancy occurs and is advertised. The instant petition has been filed against the said rejection and directions to apply afresh instead of Up gradation (BPS-17) without going through such procedure for fresh appointment.
3. Learned Counsel for the petitioner has contended that the very regularization of the petitioner vide office order dated 31-12-2005 had stated that the service of the petitioner is being regularized as LAN Technician in the Basic Pay Scale of (BPS-16) plus usual allowances as admissible under the Rules against clear vacancy of LAN Technician (BPS-17), hence for all legal and practical purposes, the petitioner was working in (BPS-17) as the position of LAN Technician was only available in pay scale (BPS-17) and not in (BPS-16). Learned counsel further contended that since admittedly the petitioner had subsequently obtained the Masters degree, as such the petitioner was entitled for up gradation from (BPS-16) to (BPS-17) as the petitioner was already working as a regular employee on the post of LAN Technician. Learned Counsel also referred to the minutes of meeting of 87th meeting of the Syndicate and contended that in somewhat similar circumstances case of all those teaching assistants who did not possessed masters degree after their appointment in (BPS-16) were recommended to be adjusted accordingly in (BPS-17) as and when fresh appointments of teachers were required to be made. Per learned Counsel subsequently, the case of teaching assistants had been considered and their posts were upgraded to (BPS-17) without following the procedure of fresh appointment. Learned counsel finally contended that even otherwise the petitioner had applied for appointment in (BPS-17) through normal procedure after obtaining the masters degree and had also appeared in the test but has not been called for the interview as yet and the case of the petitioner is still pending.
4. Conversely, learned counsel for the respondents has raised objection on the maintainability of the instant petition as according to the learned counsel there were no statutory rules governing the terms and conditions of employment of the respondent University, hence the instant petition is not maintainable before this Court. Learned Counsel further contended that though the petitioner was employed for a special project on contract basis, however taking a lenient view, after completion of the said project, the petitioner and others were regularized on the basis of existing education/qualification. Learned counsel contended that after accepting the regularization offer in (BPS-16) the petitioner had no case for requesting up-gradation, as the petitioner stood regularized on the basis of his qualification. Per learned counsel the petitioner had worked for more than 2 years in (BPS-16) and thereafter has requested up gradation to (BPS-17). Without prejudice to these submissions, learned counsel contended that after opting to apply afresh in (BPS-17) the petitioner through the instant petition is trying to challenge the orders including the order of regularization on which the petitioner after acceptance has worked for so many years. Learned counsel further contended that the petitioner had already preferred three appeals before the department and after dismissal of all these appeals, the petitioner is trying to improve his case through the instant petition. Learned counsel finally contended that insofar as the appearance in test afresh is concerned, the result announced in respect of said test conducted on 12-5-2011 reflects that the petitioner has been shown to have been involved in cheating/copying and therefore, no interview call could have been given to the petitioner. In support of his contention, learned counsel has relied upon the cases of Abdul Rashid Khan v Registrar, Bahauddin Zakaria University, Multan and others (2011 SCM R 944), Ijaz Hussain Suleri v. The Registrar and another (1999 SCM R 2381), University of the Punjab, Lahore and 2 others v. Ch. Sardar All (1992 SCM R 1093) and Pakistan Defence Officers'
Housing Authority and others v. Lt. Col. Syed Janaid Ahmed (2013 SCM R 1707).
5. We have heard both the learned counsel and have perused the record and the case-law relied upon. By consent the matter is being decided at Katcha Peshi stage.
6. We would first like to deal with the objection regarding maintainability of the instant petition on the ground that the respondents do not have any statutory rules, as such in view of the case-law relied upon by the learned counsel for the respondents the petition is not maintainable. Though the learned counsel has contended that there are no statutory rules in respect of employment with the respondents, however, on perusal of the office order through which the services of the petitioner were regularized, it appears that there is some reference to such statutory rules. The petitioner's services were regularized by the Vice-Chancellor of the respondent university in exercise of powers vested in him under section 28(vi) of SAU {Sindh Agriculture University} Act, 1977 read with section 4(b) of the Sindh University Laws (Amendment) Ordinance, 1982. In the same office order at Para 4 it has been further stated that the services of the petitioner will be subject to provisions of Sindh Agriculture University Employees (Efficiency and Discipline) statutes and other service statutes and rules enforced from time to time. Therefore, the contention of the learned counsel for the respondents that there are no statutory rules of employment is itself in contradiction to the regularization order issued by the respondents. The Honourable Supreme Court in the case of Pakistan Defence Officers Housing Authority (supra) has deduced certain principles of law at para- 50 page 1742 of the said judgment after having, examined the precedent case-law on the subject of maintainability of writ petitions under Article 199 of the Constitution specially in respect of service matters. The relevant principles at sub Paras (i), (iii) and (iv) are important and are reproduced as under:---
(i) Violation of Service Rules or Regulations framed by the statutory bodies under the powers derived from Statutes, in absence of any adequate or efficacious remedy can be enforced through writ jurisdiction.
(ii)
(iii) In all the public employments created by the Statutory bodies and governed by the Statutory Rules/Regulations and unless those appointments are purely contractual, the principles of natural justice cannot be dispensed with in disciplinary proceedings.
(iv) Where the action of a statutory authority in a service matter is in disregard of the procedural requirements and is violative of the principles of natural justice, it can be interfered with in writ jurisdiction.
(iv)
' In view of such position, the objection with regard to the maintainability of the instant petition is misconceived and is hereby repelled and it is held that since the respondent University is a statutory body and has statutory rules governing the terms and conditions of employment, therefore, the instant petition is maintainable.
7. Coming to the merits of the instant petition it may be observed that material facts as are relevant for the adjudication of the case are not in dispute. The petitioner was admittedly appointed on contract basis as a LAN Technician initially for one year, where after the services of the petitioner and other project employees were regularized on 31-12-2005. Since the petitioner at the relevant time, when his services were being regularized had a bachelor's degree, his appointment as LAN Technician was regularized in (BPS-16) instead of (BPS-17) although the post given to the petitioner was of a LAN Technician. The order of regularization dated 31-12-2005 categorically states that the Vice-Chancellor of the University was pleased to regularize the services of the petitioner as LAN Technician in the revised basic pay scale (BPS-16) plus usual allowances as admissible under the rules against clear vacancy of LAN Technician (BPS-17) in the Computerization & Networking Enhancement Program at ITC w.e.f, 1-1-2006. Subsequently, the petitioner after working in (BPS-16) applied for up-gradation from (BPS-16) to (BPS-17) as the petitioner had thereafter obtained Masters Degree. It is pertinent to note that such fact of obtaining the Master's Degree by the petitioner has not been denied by the respondents. However the request of the petitioner was declined for two reasons as is discernable from the comments as well the documents placed on records. First reason being that at the time of regularization of petitioner's services, the petitioner had only a bachelor's degree, hence was only entitled for (BPS- 16). The second reason stated is, that the appointment in (BPS-17) besides requiring a master's, degree also requires fulfillment of certain rules of appointment which is to be routed through the Selection Board. The question now is as to whether the petitioner was entitled to be up-graded after obtaining the Master's degree to (BPS-17) and be brought at par with others who were also appointed along with the petitioner initially on contract basis, but owing to the fact that they possessed the Master's Degree at the time of regularization, were given (BPS-17) as against the petitioner who was given (BPS-16). For this we would like to refer to the office order passed on 31-12- 2005 through which the petitioner's services were regularized. The relevant portion of the said order is as follows:--- "In view of his earlier contract appointment made through the recommendations of the Selection Board under Resolution No,[54]-5 made in its 54th meeting held on 27-11-2004 and approved by Syndicate vide Resolution No,[80]-17 in its 80th meeting held on 18-12-2004, the Vice-Chancellor, SAU Tandojam in exercise of powers vested in him under section 28(vi) of SAU Act, 1977 read with section 4(b) of the Sindh University Laws (Amendment) Ordinance, 1982 is pleased to regularize the services of Syed Azam Raza son of Syed Mansoor Ali Zaidi as LAN Technician in the Revised Basic Pay Scale of Rs,4375-240-14575 (BPS-16) plus usual allowances as admissible under the rules against clear vacancy of LAN Technician (BPS-17) in the Computerization and Networking Enhancement Program at ITC w.e. from 1-1-2006 on the following terms and conditions. (Emphasis supplied)
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8. It can be seen from the above order that it has been specifically stated that though the petitioner is being regularized in (BPS-16), but such regularization is against a clear vacancy of LAN Technician (BPS-17) in the Computerization and Networking Enhancement Program at ITC. So it is not in dispute that at the time of the petitioner's regularization, the petitioner was adjusted against a vacancy which was of (BPS-17) and not of (BPS-16). The petitioner has thereafter qualified himself for being regularized in (BPS-17) as admittedly petitioner had obtained the Master's Degree and such fact is not in dispute. In view of such position insofar as the vacancy of post in (BPS-17) is concerned, it was available and the petitioner was working against such post as a LAN C Technician but in (BPS-16) instead of (BPS-17). Therefore when the petitioner had obtained the Master's Degree it cannot be said that no post existed of LAN Technician in (BPS-17) at that time.
Hence the act of respondents whereby the petitioner had been asked to wait and apply for the said post afresh as and when the same is advertised after going through the process of fresh appointment was not proper and justified. This in fact amounts to depriving the petitioner from any promotion on the basis of his experience and or qualification for ever, even though vacancy of such post existed and by arrangement of the respondents itself; the petitioner was working on that post in (BPS-16). In view of such position we are of the candid view that the petitioner has not been dealt with in accordance with law and has been deprived of his lawful rights despite having requisite qualification as well as lien on a post on D which the petitioner was already working and a clear vacancy for which existed admittedly. Any subsequent advertisement for such vacant post after the petitioner had obtained Master's Degree was not legal and correct and cannot be appreciated by this Court. In this view of the matter, in our view it is not just and fair not to consider the case of the ID petitioner for up-gradation to (BPS-17). If we are to arrive at any other conclusion, then the same would put the petitioner and people in like situation in no win situation and that too forever. Being promoted and up-graded is a legitimate expectation of every employee, be it in private or public sector, though subject to fulfillment of certain conditions, which the petitioner in the instant case has already fulfilled as soon as he obtained the Master's Degree. The respondents case is not that thereafter the said vacancy of LAN Technician is no more available, as admittedly the petitioner is still working as a LAN Technician, (though in BPS-16), whereas the post of LAN Technician is of (BPS-17). Therefore, when the vacancy is available, the promotion is a right of such person who is otherwise qualified. The petitioner in the instant matter stood qualified as soon as he passed and obtained the Master's degree and should have been awarded (BPS-17) for the reasons as aforesaid.
9. In view of such position we are of the view that the instant petition merits consideration as the petitioner has made out a case of indulgence from this Court, consequently the instant petition is allowed. The petitioner shall be awarded and upgraded to (BPS-17) as he stands qualified.
However, since the petitioner had himself opted to also apply afresh against post of LAN Technician advertised subsequently, and was unable to qualify, he would not be entitled to any back benefits and such up-gradation shall be prospective from the date of this order.
10. The petition stands allowed as above.