' AZIZ-UR-REHMAN, J.- By means of this Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, filed on 24th February, 2015, the Petitioner viz. Abdul Khalique has sought the following reliefs:- "(a).The selection Notification of PRO in BS-I6 in Board of Investment may please be reviewed.
(b) To direct the Respondent to upgrade the post of PRO from BS-16 to BS-17 w.e.f.
20.02.1999 and included in the seniority list of Assistant Director in BS-17 for next promotion of Deputy Director BS-18 as already Mr. Riaz-ul-Hassan and Mr. Adil Karim have been promoted through same Channel.
(c) To direct the Respondent No. I to issue Notification for up gradation the post of PROs in BS-17 in Board of Investment.
(d) To grant any relief/reliefs which this Honourable Court may deems fit and proper looking to the circumstances of the case."
2. The brief relevant facts in the background are as follows:-
3. The Petitioner it appears, was appointed as a Public Relations Officer [BS-161 initially on temporary basis in Board of Investment [In short Boil through Federal Public Service Commission in 2009 and in his such capacity, the Petitioner since then i.e. 9th September, 2009, is performing his duties on the post of PRO in grade 16 and presently he is posted as a Public Relations Officer at Board of Investment Karachi Office at Karachi.
4. Per assertions, the Petitioner is claiming discrimination meted out to him mainly on the plea that the PRO's/Information Officers/ Protocol Officers are being inducted in Federal Government/Provincial Governments in 'BS-17' whereas, in Board of Investment [In short BoI], the PRO's are inducted through FPSC in 'BS-16' which act according to the Petitioner's stand is against the- recruitment rules of Federal Government of Pakistan. Besides, all Assistant PRO's/Assistant Information Officers/Assistant Protocol Officers are also being inducted in Federal Government/Provincial Governments in 'BS-17' whereas, only in Bol, the Public Relation Officers are inducted through Federal Public Service Commission [In short FPSC] in 'BS-16' instead of being inducted in 'BS-17'. The aforesaid method of induction is not only discriminatory but also violation of Article 25 of Constitution of Islamic Republic of Pakistan, 1973.
5. With a view to establish the act of discrimination, it has been averred that in the year, 2004, one Mr. Riaz ul Hassan, Ex PRO/Information Officer 'BS-17' from Sindh Government was absorbed and promoted in BoI as a Deputy Director 'BS-18' who as asserted by the Petitioner is now a Director in BoI Karachi office, in 'BS-19'. Likewise, one Mr. Adil Karim Statistical Officer 'BS-17' has also been promoted as a Deputy Director 'BS-18' in 2014. In view of this position, the Petitioner claims as being deserved to be upgraded to the post of PRO in 'BS-17' otherwise, as stated the Petitioner shall be seriously prejudiced and victimized if, the post of PRO in 'BS-16' is not upgraded to a post of PRO in 'BS-17'. Hence the instant Petition inter alia with a prayer for directing the Respondent No.1 to issue Notification for up-gradation the post of PRO's from 'BS-16' to 'BS-17' in Board of Investment.
6. On 02.03.2015 when the above petition came-up before the Court then in view of office objection regarding bar of the petition as contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, it was ordered as follows: "2. Office has taken objection with regard to bar of Article-212 of the Constitution. Petitioner appears in person. Let this matter be placed before Honorable Division Bench-I, for the purpose of scrutiny in light of Supreme Court judgment."
7. Thereafter, on 26.03.2015, when the above petition came- up before DB-I for 'scrutiny purposes' in the light of judgment passed by the Hon'ble Supreme Court of Pakistan dated 5th January, 2015 [Ali Azhar Baloch v. Province of Sindh and others], then the following order was passed:- "The Petitioner is a civil servant. He is not seeking enforcement of any existing terms and conditions of his service but only seeks that the post of PRO which has been upgraded in other departments may also be upgraded in the Board of Investment. In the light of the judgment of Hon'ble Supreme Court dated 05.01.2015 in Civil Review Petition No.193/2013 and others [Ali Azhar Baloch v. Province of Sindh and others] this petition need not be transferred to the Service Tribunal. Let the matter be placed before the Service Bench of this Court on 07.04.2015 for its decision on merits."
8. Upon service, comments on behalf of the main contesting Respondents were filed. In the comments inter alia it was asserted that posts of 'Public Relations Officers', 'Information Officers' and 'Protocol Officers' are 'distinct' and of 'separate designations' that is to say with different duties, as such, these posts cannot be considered at par with each other. Moreover, the qualification required for filling the post of a Protocol Officer in 'BS-17' and regarding promotion of Information Officers in 'BS-17' is 2nd Class Master's Degree in Information Relations /Journalism/Public Relations/Mass Communication whilst the necessary basic qualification to fill in the post of 'Public Relation Officers' [BS-161 in the Bob is 2nd Class Bachelor's Degree. In view of this position, the Petitioner as being 'Public Relations Officer' [BS-16] and not a 'Protocol Officer' or 'Information Officer' [BS-17], cannot stand qualified/or otherwise, fulfills the requisite criteria much-less for up- gradation of the post of PRO from 'BS-16' to' BS-17'. In the end, the contesting Respondents have asked for dismissal of the above petition as being merit less.
9. Heard the Petitioner in person and learned standing counsel and with their assistance we have also gone through the available record.
10. As far as the objection of the contesting Respondents regarding bar of the petition under Article 212 of the Constitution is conceived, it is worth to note that the 'pay' of the Petitioner though is one of the terms and conditions of service of a civil servant but in the instant case the Petitioner is claiming up-gradation from 'BS-16' to 'BS-17' on the basis that other officials similarly placed in some other Departments/ organizations of Federal and Provincial Governments have been inducted/are being inducted since long in 'BS-17' instead of 'BS-16' which in no event can be said to be a term and condition of the service of Petitioner because in the case in hand the grievance of the Petitioner is that he is being unfairly discriminated by the Respondents. Moreover, as per order of DB-I dated 26.03.2015, the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has already been ordered as not to be transferred to the Service Tribunal [In the case in hand FST
11. Since, the Petitioner is claiming discrimination on the ground of equality before law as guaranteed by Article 25 of the Constitution of Islamic Republic of Pakistan, 1973, it would, therefore, be appropriate to reproduce herein Article 25 of the Constitution, 1973 which reads as follows:- "25. Equality of Citizen--(1) All citizens are equal before law and are entitled to equal protection of law.
(2) There shall be no discrimination on the basis of sex alone.
(3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children."
12. The aforesaid Article, it is needless to say, finds place in 'Part H' of the Constitution which contains provisions relating to fundamental rights and principles of policy. The equal protection of law however, does not envisage that all citizen are to be treated in all circumstances as equal rather it contemplates that person similarly placed are to be treated alike. Likewise, it may be noted that equality of citizens does not mean that all laws/rules must apply to all the subjects or that all the subjects must have same rights and liabilities. Moreover, for seeking relief on the basis of 'discrimination' one has to establish that the nature of work being performed is essentially the same.
13. The aforesaid Article, no doubt, not only guarantees an important right of all citizens to be treated equally before law without any discrimination but also it enables them to claim equal protection of law without any distinction. Manifestly, this Article prohibits 'discrimination' on the basis of sex, but at the same time, it also permits the State to make any special provision of law for the protection of women and children. The Constitution, it is significant to note, un-like other enactments is a living document which portrays the aspirations and genius of the people and aims at creating progress, peace and welfare among the citizens and all other nations. The provision of equality before law and equal protection of law since long has been subject-matter of discussion by the jurists, commentators and of several judgments of various Courts including our superior Courts. In Jibendra Kishore Achharyya Chowdhury and 58 others v. The Province of East Pakistan [PLD 1957 SC (Pak.) 9], the clause of equal protection of law came-up for consideration and after dilating upon in details, it was observed as follows:- "Whatever else the expression 'equal protection of law may mean, it certainly does not mean equality of operation of Legislation upon all citizens of the State. The expression has been borrowed from the Fourteenth Amendment to the Constitution of the United States which was intended to secure to the emancipated Negroes, equal rights to the enjoyment of life, liberty and property .... No rule has yet been formulated by the Supreme Court as to what may be regarded as a denial of the 'equal protection of the laws' that will embrace every case and the application of the principle has always depended on the facts of each case some broad propositions as to its meaning have been enunciated. One of these propositions is that equal protection of the laws means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in like circumstances, in their lives, liberty and property and in pursuit of happiness. Another generalization more frequently stated is that the guarantee of equal protection of the laws requires that all persons shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed. In the application of these, principles, however, it has always been recognized that classification of persons or things is in no way repugnant to the equality doctrine provided the classification is not arbitrary or capricious, is natural and reasonable and bears a fair and substantial relation to the object of the legislation. It is not for the Courts in such cases, it is said, to demand from the Legislature a scientific accuracy in the classification adopted. If the classification is relevant to the object of the Act it must be upheld unless the relevancy is too remote or fanciful. A classification that proceeds on irrelevant considerations, such as differences in race, colour or religion will certainly be rejected by the Courts." [Underlining is ours]
14. Significantly, the 'equality clause' in the Constitution of Islamic Republic of Pakistan, 1973, does not prohibit the framing of different laws in different circumstances provided a rational standard is laid down for to guide the discretion of the relevant authority to choose the appropriate law. Only 'irrational' or 'arbitrary discrimination' would amount to 'legislative despotism' and indeed it would offend Article 25 of the Constitution of 1973. Being this so, it is quite clear that wherever the 'statutory functionary[ies]' acts with mala fide or in a partial, unjust, oppressive and/or 'discriminatory manner', then it's action can be challenged for violation of 'equality clause' of the Constitution, however, if the case is otherwise, then, of course, it cannot be questioned.
15. In I.A. Sherwani's case [1991 SCM R 1041] after considering the judgments in F.B. Ali's case [PLD 1975 SC 506], Abdul Wali Khan's case [PLD 1976 SC 57], Aziz Begum's case [PLD 1990 SC 899], Shirin Munir and others v. Government of Punjab [PLD 1990 SC 295] and several other judgments of the Supreme Court of India, the following principles were deduced in the light thereof.
"(i) that equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike;
(ii) that reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis;
(iii) that different laws can validly be enacted for different sexes, persons in different age group, persons having different financial standings, and persons accused of heinous crimes;
(iv) that no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances;
(v) that a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25
(vi) that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed, (vii)that in order to make a classification reasonable, it should be based---
(a) on an intelligible differential which distinguishes persons or things that are grouped together from those who have been left out;
(b) that the differential must have rational nexus to the object sought to be achieved by such classification." [Underlining is ours]
16. In the case in hand, it is important to note that the Petitioner is alleging 'discrimination' but without pin-pointing violation of any specific provision of law/Rules which can be challenged/questioned on the touch stone of Article 25 of the Constitution of 1973. The Petitioner in the present case has also failed to establish any 'vested right' as being violated by the Respondents. Needless to say, for seeking a relief much-less under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, there must be an established and a bona fide right which may be 'statutory right' or otherwise, but indeed it ought to have been recognized by law. Moreover, such right must be clear and, of course, free from any sort of controversy that is to say, where recording of evidence is not required. The object of proceedings to be initiated under Article 199 of the Constitution is the enforcement and protection of a 'vested right' and by no means it is meant for the establishment of a right. The right of which a redress is being sought under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 must not only be an existing right but for seeking remedy under the Constitutional jurisdiction, the infringement of such vested right must be there.
From the case of Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others [2011 SCM R 1813] on the aforesaid aspect of the matter, the relevant observations read as follows:-
10. ..."It is incumbent upon party seeking constitutional remedy to show that such party has a clear legal right and that such right is so clear as not to admit of a reasonable doubt or controversy.
High Court will not go into disputed questions of fact in Constitutional jurisdiction. This is more so when it is supported by attending circumstances and relevant record. Constitutional jurisdiction of High Court, cannot be converted into that of an appellate Court. Disputed questions of fact cannot be entertained or allowed to be re agitated in writ jurisdiction. When the relevant law provides othei forums for the purpose. It follows that finding of fact recorded by appellate Court below on appraisal of evidence cannot be disturbed in writ jurisdiction. In constitutional jurisdiction Court does not go into a question involving minute details nor can it decide facts of which no foundation is laid, unless it is shown that such controversy is devoid of supporting record, or perverse." (M.H.
Abidi v. State Life Insurance Corporation 1990 MLD 563, Muhammad Nazim v. Rehana Parveen Begum 1990 MLD 344).
11. It is well settled by now that "the superior Courts should not involve themselves into investigations of disputed question of fact which necessitate taking of evidence. This can more appropriately be done in the ordinary civil procedure for litigation, by a suit. This extraordinary jurisdiction is intended primarily, for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority can be established without any elaborate inquiry into complicated or disputed facts. Controverted questions of fact, adjudication on which is possible only after obtaining all types of evidence in power and possession of parties can be determined only by courts having plenary jurisdiction in matter and on such ground constitutional petition was incompetent." (State Life Insurance Corporation of Pakistan v. Pakistan Tobacco Co. Ltd. PLD 1983 SC 280). [Underlining is ours]
17. In the present case, the Petitioner is holding the post of the PRO in Board of Investment [BoI] for which Posts recruitment rules have already been framed by FPSC in consultation with the Establishment Division. All the posts of PRO's thus advertised by the FPSC are in 'grade 16' and the Petitioner as being well aware of such grade had applied for the same with open eyes and as per his sweet will. In view this position, the question of any 'discrimination' as being alleged by the Petitioner under the facts and circumstances of the case in hand does not arise particularly when the Petitioner was also in knowledge of the posts of Assistant PROs/Assistant Information Officers and Assistant Protocol Officers in other Departments of Federal Government and Provincial Governments in grade 17. Being relevant, the Memorandum dated 07th August, 2009 regarding Petitioner's appointment is reproduced as under:- "By Courier Service No. 1(5)-HR/2004 Government of Pakistan Board of Investment (Ministry of Investment)
Attaturk Avenue, G-5/1 ' Islamabad, the 7th August, 2009 MEMORANDUM ' Consequent upon the recommendation of Federal Public Service Commission, Mr. Abdul Khalique has been selected for appointment as Public Relations Officer (BS-16) on temporary basis in the Board of Investment, Islamabad on the following terms and conditions:-
(i) He will draw pay in the BS-16(6, 060-470-20,160) and allowances as admissible under rules and revised from time to time.
(ii) He will be on probation for a period of one year with effect from the date of his joining in this office. The period of probation can be extended for a further period of one year if the conduct will not be according to the mark.
(iii) During the period of his temporary employment, his services may be terminated at any time without assigning any reason by giving 14 days notice. In case he wants to terminate his appointment, he has to submit resignation in writing and shall have to continue in Government Service till his resignation is accepted by the competent authority. In case he absents himself without acceptance of resignation he shall render liable to disqualification for future Government Service.
(iv) His appointment will be provisional subject to verification of character antecedent.
(v) He will count seniority in his grade in accordance with rules.
(vi) He will be required to produce Medical Fitness Certificate from Authorized Medical Officer and Character Certificates from two officers (Grade-17) before he is allowed to assume duty.
(vii)He will be subject to Government Servants (Efficiency and Discipline) Rules, 1973, Civil Servants Act, 1973 and Removal from Service (Special Powers) Ordinance, 2000 amended from time to time.
2. If the above terms and conditions are acceptable to Mr. Abdul Khalique, he may report for duty in the Board of Investment, Islamabad within 14 days of the date of issue of this offer. If he does not accept the offer or fails to join duty within the specified period, the offer will be treated as cancelled. [Underlining is ours]
3. No TA/DA will be admissible to him on joining his duty.
Sd/- (Abdul Sattar)
Assistant Director(HR)
Mr. Abdul Khalique, Flat No.5/198 F-6 RF Colony PAC Kamra District Attock Cell No:0345-3909160"
18. From the aforesaid Memorandum, it is quite evident that the Petitioner with open eyes accepted the Post of PRO in grade 'BS-16' on the terms and conditions stipulated therein. Per the *aforesaid Memorandum, the Petitioner's service is also subject to Civil Servant Act, 1973 and naturally the rules made thereunder. At this juncture, we would like to refer to sub-rule (2) of Rule 3 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 which reads as follows:-
3. (2) The method of appointment and the qualifications and other conditions applicable to a post shall be as laid down by the Ministry or Division concerned in consultation with the Establishment Division.
19. It is significant to note that under sub-rule (2) of Rule 3 of the Civil Servant [Appointment, Promotion and Transfer] Rules, 1973, the method of appointment, qualification and other applicable conditions regarding the posts 'BS-16' etc. Is to be laid down by the Ministry or the Division concerned, in consultation with the Establishment Division. The Petitioner herein, it is needless to say, without any 'hue' and 'cry' accepted the post of PRO in grade 16. As such, now the Petitioner, at this point of time and that too without questioning/challenging the authority of the concerned 'Ministry' or 'Division' viz-a-viz the method to be laid down with consultation of Establishment Division is not within it's so-called right to claim any sort of 'discrimination' and/or his up-gradation under the facts and circumstances of the case. The aforesaid mandatory requirement of law could not be done away by Court merely at the wish and whims of the Petitioner.
20. The Petitioner herein, indeed, is a 'Public Relations Officer' [BS-16] however, he cannot claim to be treated equivalent to 'Information Officers' [BS-17], and 'Protocol Officers' [BS-17] because, all these designations besides, having different nomenclatures are of different duties, as such, they cannot be considered at par with each other. Moreover, the performance of the Petitioner as reflects from the letter of Nasreen Ali, Director General of Prime Minister's Office, Board of Investment[Exurban 'C' to the comments of Respondents] does not seem upto mark. The relevant portions from the aforesaid letter read as follows:
1. DG BOI Karachi have repeatedly advised Mr. Abdul Khalique, PRO of this office to submit report of his visit to Korea (KDI). Please refer serial # "d" of application dated 25th September, 2013 sent by Mr. Abdul Khaliq. But he has not submitted anything till date.
2. Before his visit to Korea he was assigned protocol duties but it has been noted that he was unable to perform protocol duties up to the mark as he had mishandled a foreign trip of the then MOS/Chairman BOI during his protocol duties at airport. Thereafter, there was clear instructions from him to DG Karachi by the then MOS/Chairman, not to send him again for his protocol till his last day in BOI on 15th May, 2013. Reluctantly, he hunted for a course in Korea and left on R&R.
3. Mr. Abdul Khaliq was assigned to attend to a 22 member UK Economic Investment Delegation led by High Commission of Pakistan in UK visiting Karachi this very important delegation was also mishandled by Mr. Abdul Khaliq, he was unable to reach airport. Karachi was facing heavy rain that day, the official vehicle stopped at the middle of the road but dedicated officers like Aftab
(DD) and Nadeem (AD) reached their destination though they were not assigned to do the job they arranged for substitute vehicles and made the event a grand success.
4. Moreover, Protocol in Karachi is far more different than what it is at other stations, Protocol is not picking up suitcases or opening car doors. Protocols of foreign dignitaries or senior officers, involves proper communication skill, in BOI Karachi we provide counseling on Investment related queries right at the airport as and when a guest ion is raised. Over hear each delegate is treated as a potential investor. Secondly, ability to take action on the spot with respect to immigration/Visa on arrival in case BOI delegate coming without visa/ landing permit. For dignitaries/persons who visit through their own chartered aircrafts, special arrangements are made at VIP Lounge, maintain liaison with handling agent, CAA, airline operations, Met Deptt:, Also make full proof security arrangements on case to case basis by providing security during visit of VIP and 'VVIP as per status of delegation/State Guest and directives of competent authorities, cannot be left at the mercy of PRO Mr. Abdul Khaliq. Most of all Airport facilitation is the IMAGE BUILDING of Pakistan. Such assignments require experience and knowledge. Simply being appointed on a position of a PRO does not serve the purpose.
5. It has come to my notice that Mr. Abdul Khaliq had mishandled protocol duties whenever assigned to him during his tenure in BOI Islamabad also. As evident to this effect, that an inquiry conducted by Mr. Amir Sultan, (then Director Admin) BOI Islamabad Mr. Abdul Khaliq was suspended in BOI Islamabad. Reluctantly, no further protocol duties were assigned to him in BOI Islamabad. (please refer personal file of Mr. Abdul Khaliq).
6. Please, refer serial # 'b ' of the application from Mr. Abdul Khaliq, I still recall that Mr. Anis ul Hasnain Musvi sahib (former Secretary) BOI asked me to take Mr. Abdul Khaliq, Probably after the enquiry etc was carried out against him. If his acumen for Protocol duties was known to me I would have discouraged his posting in Karachi.
7. Moreover, he has no knowledge of PR as he has not made any arrangements of coverage of print and electronic media for senior officers of BOT and nor any press hand out of BOI promotion and publicity material has been initiated by PRO.
8. It is further submitted that 80% staff of this office is retiring by 2016 and out of 49 sanctioned posts, 2 posts of different cadres including officers/staff are lying vacant, hence no officer [B-16), is available who can process/initiate files in Administration, Facilitation, General Branch, Accounts, and Budget. I had instructed our former Director Admin to train Mr. Abdul Khaliq in Admin matters which he is already doing.
9. It has been noted that he cannot write and speak correct English, required for the job of a PRO or PR, therefore the protocol job of foreign investor Delegation is mostly assigned to Mr. .Nadeem
(AD) who is an MBA. [Underlining is ours]
10. Keeping in view position explained above, services of PRO (Mr. Abdul Khalique) are being utilized in Administration Wing in the public interest. Otherwise,. If PRO is not willing to work at BOI Karachi I have no objection to be transferred him back to BOI Islamabad. (please refer serial # 'h' of Mr. Abdul Khaliq's application).
21. The case of the Petitioners at no angle does fall within the ambit of Article 25 of Constitution of Islamic Republic of Pakistan, 1973, as the Petitioner herein has not only failed to challenge the authority/ competency of the 'Ministry' and/or 'Division' viz-a:viz the lay downing the, method of appointment, qualifications and all other applicable conditions inter alia pertaining to the Post of PRO in 'BS-16', as mandated under sub-rule (2) of Rule 3 of Civil Servants [Appointment, Promotion and Transfer] Rules, 1973, but besides has failed to establish any 'vested right' and/or any sort of 'discrimination' even otherwise, as being violation of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973. In the scenario, Article 4 of the Constitution of Islamic Republic of Pakistan, 1973 is also relevant as such the same is also reproduced here-in-below:- "4. Right of individuals to be dealt with in accordance with law, etc.-(1) To enjoy the protection of law and to be treated in accordance with law in the inalienable right of every citizen, wherever he may be, and of every other: person for the time being within Pakistan.
(2) In particular-
(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law ;
(b) no person shall be prevented from or be hindered in doing that which is not prohibited by law and
(c) no person shall be compelled to do that which the law does not require him to do."
[Underlining is ours]
22. Evidently, under Article 4 of the Constitution of Islamic Republic of Pakistan; 1973, every individual needs to be treated in accordance with law but at the same time, the aforesaid Article also envisages that no person shall be prevented from or be hindered in doing that which is not prohibited by law or shall be compelled to do that which the law does not require him to do. The Petitioner in the case in hand is clearly being dealt with in accordance with law/rules framed under Section 25 of Civil Servants Act, 1973 [LXXI of 1973]. Further, at this point of time, we-would also like to refer to and reproduce herein the relevant part of the Rule 10 of the Civil Servants [Appointment, Promotion and Transfer] Rules, 1973 which reads as follows:- "10. Initial appointment to the All-Pakistan Services, the Civil Services of the Federation and posts in connection with the affairs of the Federation in basic pay scales 16 and above or equivalent, except those which under the Federal Public Service Commission (Functions) Rules, 1978, do not fall within the purview of the Commission, shall be made on the basis of tests and examinations to be conducted by the Commission."
[Underlining is ours]
23. The aforesaid Rule, it is worth to note, was substituted by the SRO No.733(I)/2003 the Gaz. Pak.
Extr. Pt. 11, P.No.1687 dated July 28, 2003 obviously much prior to the appointment of the Petitioner in BS-16 in year, 2009. Like-wise, Rule 3 of Federal Public Service Commission [Functions') Rules, 1978 being relevant is reproduced herein below:-
(3) The Commission shall conduct tests and examinations for recruitment to all posts in connection with the affairs of the Federation in basic pay scale 16 and above or equivalent other than the posts,- (a)...............................
(b).........................................
(c)................................................
(i).........................................
(ii)...............................................
(d).........................................................
(e).......................................................................
24. The pari materia, sub-rule (2) of Rule 3 of the Sindh Civil Servants [Appointment, Promotion and Transfer] Rules, 1973 came-up before the Division Bench of this Court in somewhat like circumstances, in the case of Faisal Nisar and 3 others v. Province of Sindh and 3 others in C.P No.D- 4491 of 2012 [un-reported case], wherein the Hon'ble Division Bench of this Court held as follows :-
12. The first point to note is that the APT Rules do not impose departmental uniformity across the Government. Each department is allowed, subject to consultation with the Services and General Administration Department, to decide for itself the methods of appointment to and qualifications and other conditions for, the various posts in the said department. This is only to be expected. The work of different departments varies and can differ considerably one from the other. Thus, the Wildlife Department performs functions quite different from the Education Department, which is different from the Excise and Taxation Department, and so on. This differentiation is but natural._ "
[Underlining is ours],
25. Moreover, in the aforesaid ease, on the point of discrimination and grievance of the Petitioner raised in C.P.No.D-4491 of 2012 [Faisal Hisar and 3 others v. Province o Sindh and 3 others, the Division Bench of this court [in somewhat similar circumstances of the present case] while, dilating upon the aspect of the 'discrimination' held/observed as follows:- "14, .... It is clear that if the posts involve the performance of similar duties or functions and the difference is of three grades or more, then unless something to the contrary can be shown, the differential placement will be regarded as discriminatory, and the posts in the lower grade will be directed to be upgraded to the higher one. This would be so even if the posts are in different departments. (Of course, the degree of similarity required for this purpose may itself be in issue in a particular case, and to that extent each case may turn on its own facts and circumstances.
However, that is not the situation at hand, since It was not contested by learned AAG (properly, in our view) that the duties performed by the present Petitioners as computer programmers were so different from those of computer programmers in the other departments that they became dissimilar). Thus, there is an outer limit, as it were, beyond which the difference will be clearly discriminatory. However, the crucial question is whether it follows from this that any difference at all will be discriminatory. The reason why this question arises is of course that in the present case, the difference is only of one grade: the petitioners are in BPS-I6 while their counterparts are in BPS-17. It is also to be noted that, as already indicated above, the Petitioners have only been able to show two departments, the Criminal Prosecution Service and the Wildlife Department, in which computer programmers have been placed in BPS-17. [Underlining is ours]
16. ... In the present case, the differential is of only one grade (BPS-16 v BPS-17) and the record as made available shows that only in two departments have computer programmers been placed in the higher grade. Thus, neither of the two situations noted above obtain. Having considered the matter, in our view the differential in the present case cannot be regarded as discriminatory within the meaning of Article 25. From the record as available it appears that in each of the departments concerned, i.e., the Excise and Taxation Department, the Criminal Prosecution Service and the Wildlife Department the posts were placed in the relevant grade from the beginning. In other words, it appears not to be the case that in the letter two departments, the post of computer programmer was originally in BPS-16 and was then upgraded to BPS-17. Now, the scheme of the APT Rules indicates that each department is to have some flexibility In determining its own needs and establishing the criteria for the various posts therein. The requirement of consultation with the Services and General Administration Department ensures that on an overall basis the structure of Government in each department is broadly the same. However, this does not, in our view, negate the variation made permissible, in particular, by Rule 3(2) of the APT Rules. It is pertinent to note that if any (and every) difference, even in respect of similarly placed employees/posts, were to be regarded as discriminatory within the meaning of Article 25, then a rigid uniformity will be imposed on the departmental structure of Government. In such a situation, if even one department were to make any adjustment or change, it would then have to ripple immediately through the entire departmental structure and become automatically applicable to and in all other departments. In our respect/tit view, such a result would not be in consonance with the law.
Article 25 and the case law noted above do not?, in our respectful view, prohibit or preclude all variation or difference. Certain outer limits have been established or can be deduced (i.e., the two ,situations noted in the last preceding para). But that does not, in our respectful view, amount to a conclusion that there can be no variation at all." [Underlining is ours].
26. Inter alia, because of the principle laid down in the aforesaid case we are of the considered view that Petitioner herein is not entitled to be up-graded from 'BS-16' to 'BS-17' in his capacity as PRO or otherwise, can claim the same benefits which are being paid to 'Assistant PROs /' Assistant Information Officers' /'Assistant Protocol Officers' having already been inducted/being inducted in Federal Government/ Provincial Governments in 'BS-17'. The Petitioner, in our considered opinion is being fairly treated and as alleged was never 'discriminated'. No doubt, 'equal pay' for 'equal work' is an 'integral part' of the Constitution but in the case in hand, this principle much-less merely at the whims of Petitioner cannot be made applicable. In the instant case the Petitioner has voluntarily accepted his appointment in 'BS-16', as such now he could not be permitted to repudiate his own act and claim up-gradation from 'BS-16' to 'BS-17' or claim other benefits of 'BS- 17'. The duties being performed by the PRO in BoI, apparently are not the same or similar with the duties and nature of work of other departments. Moreover, the principle of 'equal pay for equal work' has not been described either as a 'Fundamental Right' or as a 'Principle of Policy' in the Constitution of Islamic Republic of Pakistan, 1973, however, in view of the 'equality clause' under Article 25 of the Constitution, 1973 effect to it can be given, however, under suitable circumstances which, nevertheless, are lacking in the present case.
27. From the record, it further reveals that the 'Public Relations Officers', 'Information Officers' and 'Protocol Officers' of their departments are three separate designations, of course, with different duties and nature of the work as such, merely at the whims of the Petitioner these posts in 'BS-17' cannot be considered at par with the post of the Petitioner in 'BS-16'. The reliance of the Petitioner regarding filling-up the post of a 'Protocol Officer' in 'BS-17' and referred 'Notification' of the Government of Sindh, regarding 'promotion of Information Officers' [BS-17] cannot be made an absolute rule/standard under the facts and circumstances of the present case obviously for the reason that the Petitioner is a 'Public Relations Officers' and not a 'Protocol Officer' or 'Information Officer'. Besides, the requisite 'qualification' to fill in the post of 'Protocol Officers' [BS-17] as prescribed in the referred 'advertisement', is 2nd Class 'Master Degree' in 'International Relations' /'Journalism' /'Public Relations'/' Mass Communication' whilst, the basic qualification required to fill in the post of 'Public Relations Officer' [BS-16] in 'Board of Investment' is 2nd Class Bachelor's Degree. As far as the case 'of Mr. Riaz-ul-Hassan, 'Ex-Information Officer' is concerned, knowingly, he was an employee of 'BS-17' in Government of Sindh and as such, was absorbed in the Board of Investment [BoI], in his own grade [BS-17] and this, per stand of contesting Respondents, is in accordance with the Civil Servants Act, 1973 and Recruitment Rules of Board of Investment which rules have not challenged/questioned by the Petitioner herein.
28. From the 'comments' of contesting Respondents it also reveals that the Department is maintaining 'combined seniority list' of 'DEPUTY ASSISTANT DIRECTORS' and 'PUBLIC RELATIONS OFFICERS' in the Board of Investment [BoI], as such, the up-gradation of the post of 'Public Relations Officers' from 'BS-16' to 'BS-17' is not possible while, at the same time keeping the post of 'Deputy Assistant Directors' in 'BS-16'. BoI, if, upgrades the posts of both 'Deputy Directors' and 'Public Relations Officer' from 'BS-16 to 'BS-17' then 'Assistant Directors' who are in 'BS-17' will also demand their up-gradation on the same analogy. Reluctantly, the whole 'administrative structure' of Board of Investment [BoI] may fall to collapse. As far as, the case of Mr. Adil Kalim, Statistical Officer is concerned, according to the Respondents he was promoted from the post of 'Statistical Officer'
[BS-17] to 'Deputy Director' [BS-18] in accordance with the Recruitment Rules of Bol that prescribed the 'channel of promotion' of 'Statistical Officer' [BS-17] to the post of 'Deputy Director' [BS-18], however, subject to completion of five [5] years service.
29. Upon conclusion of arguments and after having found the case of the Petitioner 'devoid of merits', the same was dismissed by our 'short order' dated 16.09.2015 which reads as follows:- "The matter was part heard on the previous date and since the issue raised by the Petitioner who appears in person was with respect to discrimination and recently a Division Bench of this Court (of which one of us was a member) gave judgment in somewhat similar circumstances in C. P. No.D-4491/20I2, copy of that judgment was provided to the Petitioner as also learned Standing Counsel in order to assist the Court with specific reference to the judgment. We have, today, heard the Petitioner with specific reference to the judgment aforesaid.
' Having heard the Petitioner as also learned Standing Counsel (who has been ably assisted by Ms. Nasreen Ali, Director General, BOI), for detailed reasons to be recorded later, this petition is dismissed."
30. What has been discussed above are the reasons for our short order' dated 16.09.2015 whereby, the above petition was dismissed, however, with no order as to costs. In view of the dismissal of the Petition, the 'interim order' passed on 29th June, 2015 also stands recalled/vacated.