SYED AFSAR SHAH, J.-- Through the instant Writ Petition, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, Maulana Ihsan-ul-Hadi and thirty others the petitioners, seek indulgence of this Court for issuance of an appropriate writ directing the respondents to consider their case for upgradation of the post of Pesh-iImam/Khatib from BPS-9 to BPS-16.
2. Facts leading to the filing of the instant petition as deciphered from the record are that the petitioners were appointed by the Provincial Government against the posts of Pesh-i-Imam in various departments in BPS-5 and 7 respectively. They were having the qualifications of Sanad of Shahadat-ul-Almiya (equivalent to degree of M.S Islamiyat/Arabic) from Madrasas registered with Wafaq-ul-Madaris/Tanzimatul Wafaq-ulMadaris. Petitioner No, 1 being the president of Association of Pesh-iImam moved an application to the respondent No,1 for upgradation of their post to BPS-16, whereupon a meeting of all the Departments were called upon and a decision was taken to the effect that case of the petitioners for upgradation to BPS-16 be placed before the upgradation committee constituted by the Provincial Government for consideration. In pursuance of the meeting conducted by the upgradation committee on 14.3.2013, the following decisions were made:- "(i) Those incumbents who are in possession of minimum educational qualification of Shadat-ul- Alia or equivalent may be upgraded to BS-12 irrespective of the length of their service.
(ii) The incumbents who are in possession of minimum educational qualification of Shadat-ul- Khasa or equivalent may be upgraded to BS-10 irrespective of the length of service.
(iii) The Pesh-i-Imam of those Mosques where only two or three times (Juma/Zuhr, Asar and Maghrib) prayers are regularly performed and who are clothed with minimum qualification of Shahadat-ul-Alia or equivalent (Preference for proficiency in Qirat and Hifz-i-Quran) may be upgraded to BS-10.
(iv) On the analogy of the Auqaf and Religious Affairs Department fresh appointment as Imam Masjid/Pesh Imam/Khateeb having a Sanad either in Dars-e-Nlzami or a Sanad of Fazil-i-Arabi may be made in BPS-12, in all the Government Masajid, where regular Eidain/Jumma/Five times prayer are performed.
' However, the Administrative Departments, where the posts of Pesh-e-Imam/Imam Masjid/Khateeb exist, are required to take up the case separately with the Finance Department for upgradation of their respective posts along with the following information to the Finance Department.
(i) Complete details in respect of these posts i.e, nomenclature, total sanctioned strength along with BPS and qualification of the existing incumbents will be provided by the Administrative Department.
(ii) A statement showing the details of those incumbents who are having the above criteria for BS- 10 and BS-12 may also be attached with the above information."
' Since the above decision aggravated the grievances of the petitioners, therefore, they filed the instant petition on the ground that the impugned decision of the upgradation committee is discriminatory as the petitioners are in possession of a degree/sanad of Shahadat-ul-Almiya which is equivalent to M/A Islamiyat/Arabic and the respondents while granting BPS-12 to the petitioners have only considered the qualification of Shahadat-ul-Alia which is equivalent to B.A.
3. The learned counsel for the petitioners emphasized that the petitioners have been appointed against the post of Pesh-i-Imam and since their respective appointment, they are performing their duties with zeal and zest but without any proper service structure. He further argued that the petitioners are serving in dead cadre having no window of promotion to the higher post/upper scale. He went on to say that the post of Pesh-i-Imam is also not transferable to any other post in higher pay scale, therefore the petitioners lacking chance of elevation to the higher rank. He maintained that the senior Arabic teacher/theology teacher in Elementary and Secondary Education Department possessing the same qualification have been placed in BPS-16. Similarly, the Pesh-i-Imam performing duties in Pakistan Tele Communication, Limited and WAPDA Department are getting their perks and privileges in BPS-15 but the petitioners have been discriminated only for the reason that their services are confined to the mosques for two time prayers, learned counsel for the petitioners further added. Developing his arguments, learned counsel for the petitioners urged that the petitioners having equal status to the above referred employees of PTCL and WAPDA Departments, therefore, the grade, perks and privileges allowed to the official of the above said departments should also be extended to the petitioners in view of the equivalence of their duties and responsibilities.
4. Conversely, the learned A.A.G. Vehemently argued that the upgradation of the post and consequent increase in the emolument is a question relating to the terms and conditions of service which is amenable to the jurisdiction of Service Tribunal, constituted under the Constitution of Islamic Republic of Pakistan for dealing with the matters of Civil Service pertaining to the terms and conditions of employee, therefore, the relief claimed by the petitioners is not a fit subject for adjudication by the High Court in exercise of its constitutional jurisdiction, as it is exclusively barred under Article 212 of the Constitution of Islamic Republic of Pakistan 1973. While buttering his arguments, the learned A.A.G. Emphasized that upgradation committee constituted by the Provincial Government has properly considered the case of petitioners and has recommended the upgradation according to their job description and so far the post of Arabic Teacher and employee of PTCL and WAPDA are concerned, they are governed by their own rules and regulations, thus, the case of petitioners is not analogous in any respect to the referred case, therefore, does not fall in the ambit of discrimination. Lastly he argued that creation and upgradation of the post, revision of pay scale and such like matters lie purely in executive domain and the courts of law always refrain itself to interfere in it.
5. Having heard learned counsel for the parties, perusal of record would reveal that the petitioners are working in different departments of Provincial Government and performing their duties as Pesh-iImam/Khatib in different mosques. Their appointments have been made under the Khyber Pakhtunkhwa Appointment Promotion and Transfer Rules, 1989 and undisputedly they are having the status of Civil Servant, therefore, before adhering to the merit of the case we would like to attend the objection raised by learned A.A.G regarding maintainability of the instant Writ Petition.
' In the given circumstances, it will be more appropriate to determine as to whether upgradation of a post or change in the scale of pay would fall under terms and conditions of service? Admittedly, the petitioners are civil servants, performing their duties in different cadre and seeking upgradation of their post to BPS-16. It is undeniable fact that the change of grade must change the scale of pay of the petitioners, wherein obviously the element of the selection would be involved like promotion and order of competent authority would be required to be passed for revision of pay and consideration of the comparative suitability and entitlement of the incumbent. In the literal sense the upgradation means "rate higher or raise in value or esteem or give a promotion to or appointment to a higher position or an upward slope or grade. Under the service law, the expression "Upgradation" has been understood in wider sense and assign a meaning of elevation and rising to a higher grade or pay scale. Similarly in ordinary parlance the term "promotion" is frequently used in cases involving service law which may be understood to mean "moving upwards and leaving the original pedestrian". A person already holding a position would have promotion if his position is upgraded to a higher post with higher pay scale. The difference between promotion and upgradation is that when incumbent is placed in a higher pay scale with a change in the designation with an additional qualification and change in the nomenclature, responsibility and duties shall be regarded as promotion, but where the post is placed in higher scale of pay with or without change in designation without requirement of any new qualification for holding the post in the higher grade, not specified in the recruitment 'rules for the existing post, and without involving change in the responsibility and duties may be treated as upgradation. Needless to mention that in both the cases i.e, promotion and upgradation, the incumbent must be placed in higher scale of pay and the element of suitability, eligibility must be involved. The promotion is always granted to an employee under the prescribed rules, while upgradation is extended to ensure that an employee who may not get a chance of promotion on account of a service in a cadre should at least be placed in upper grade in his pay with acclivity in grade while on the other hand to prevent stagnation. The general purport of this clarification, it appears that when the post is placed in higher scale of pay with or without change in designation without requirement of any qualification and without involving any change in the responsibility and duties, even then such placement must be treated as promotion to higher grade and pay scale because the grant of upgradation of an employee must enhance his pay and such category of improvement can only be dealt with under the head of promotion. It is settled law that whenever there is a change of grade or post for better, there would be an element of selection involved i.e, promotion and it must be through a process of scrutiny. From the above discussion, it is clear than crystal that grant of selection grade, upgradation and promotion to higher pay scale relates to terms and conditions of service and in view of the explicit bar under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, the Service Tribunal possess the exclusive jurisdiction to determine such question.
Any change in the pay scale of the employee shall bring his case within the ambit of terms and conditions of service. In this respect, reliance may be placed on the judgment of Hon'ble Supreme Court of Pakistan rendered in case titled "Government of the Punjab through Secretary Services, Punjab, Lahore and 14 others v. Muhammad Awais Shahid and 4 others" (1991 SCMR 696) wherein it was ruled that whenever, there is a change of grade or post for the better, there is element of selection involved i.e, promotion and it is not automatically. Similar view was followed by the Lahore High Court in case titled "Muhammad Saeed Ahmad v. Secretary to Government of Punjab Health Department and others" (2013 PLC (C.S) 538).
6. In matter of upgradation, numerous cases may be quoted wherein the aggrieved person (s)/civil servant (s) have approached the Service Tribunal for redressal of their grievances pertaining to upgradation of post. In some of the cases, the decision of respective Tribunals have been brought before the August Supreme Court of Pakistan which has got approbation. In case titled "Sajjad Hussain Kazmi v. Secretary, Establishment Division, Government of Pakistan Islamabad and 2 others" 1998 PLC (C.S) 1463), the then appellant filed an appeal before the Service Tribunal on the ground that he had been upgraded from BPS-13 to BPS-16 by the then Respondent department but later on a corrigendum was issued whereby the earlier notification of upgradation was cancelled.
His appeal before the Federal Service Tribunal, Camp Office Lahore was dismissed on merit, against which leave to appeal was granted by the August Supreme Court of Pakistan and was finally decided on 2nd June 1998 in the following words: "Keeping in view the stand taken by the respondents through Mr.Shahid Saeed, Advocate Supreme Court that the appellant has not been denied the status of Class-II Officer, the effect of Corrigendum, dated 28.3.1991 was simply to cancel the earlier Gazette Notification dated 18.3.1990 for the reason that it did not qualify for being published in the Official Gazette and that appellant's pay, allowances and pension etc. As also his seniority-position has not been adversely affected, we are inclined to dismiss this appeal with the observation that the appellant shall continue enjoying the status of Class-II Officer, as heretofore. Order accordingly. No cost."
7. In the case of ."Mukhtar Ahmad Siddiqui v. Secretary to Government of Pakistan, Ministry of Finance, Islamabad and others" 2001 SCMR 923), the Civil Servant approached the Federal Service Tribunal for issuance direction to the Department to upgrade him to the post of BPS-17 w.e.f, March 1972 with all consequential benefits, however, the Federal Service Tribunal after hearing the arguments of the parties, dismissed the appeal holding it as time barred and the petition for leave to appeal against the judgment of Federal Service Tribunal was dismissed by the August Supreme Court of Pakistan on merit. Likewise Syed Nasim-ul-Haq brought an appeal before the Federal Service Tribunal on the ground that he being a civil servant fulfilled requisite qualification and conditions for his upgradation to BPS-17 on specified date, therefore, the department was having no reason for denying him the upgradation and retrospective effect particularly when other incumbents of the posts were allowed upgradation from the specified date. The grievance of the incumbent was redressed and his appeal was allowed by the Federal Service Tribunal in case titled "Syed Nasim-ul-Haq Naqvi v. Secretary Ministry of Commerce, Islamabad and 4 others" (1992 PLC (C.S) 195). In case titled "Kamal Uddin and 30 others v. Province of Punjab and others" (1986 PLC (C.S) 807), issue of upgradation of the Readers and Judgment Writers of High Court was decided by the Federal Service Tribunal.
8. In the year 1995, the Government of Khyber Pakhtunkhwa was pleased to accord sanction as a special case to the upgradation of 113 posts of Librarian from BPS-16 to BPS-17 to the employees whose names were mentioned in the notification dated 20.6.1995. The other employees of the same department equipped with the similar qualification brought their grievance before the NWFP Service Tribunal (Now Khyber Pakhtunkhwa Service Tribunal) through Service Appeals which were allowed and the Provincial Government was directed to upgrade the appellants to BPS-17. The above judgment was impugned by the Provincial Government through a petition for leave to appeal which was granted by august Supreme Court of Pakistan, in case titled "Government of NWFP etc v. Muhammad Aslam Khan" C.A No, 172 of 1998 and other cases on the same subject matter, titled "Government of NWFP v. Gul Aslam and others" (C.Ps Nos.52 to 58-P of 2003) were heard together. Ultimately all the referred cases were dismissed and judgment of Service Tribunal was maintained. On analogy of the above referred cases, Bibi Musarrat, Shahid Ali and Nasir Khan filed Service Appeals Nos.1114, 1115 and 1116 of 2006 respectively before the Khyber Pakhtunkhwa Service Tribunal, which were dismissed, however appeal before the August Supreme Court of Pakistan, against the judgment of NWFP Service Tribunal Peshawar were allowed and the benefit of upgradation were allowed to the employees.
9. From the above quoted judgments of Service Tribunal as well as of August Supreme Court of Pakistan one could reach to an irresistible conclusion that the matter of upgradation of post to higher pay scale falls within the ambit of terms and condition of service and the Service Tribunal has the jurisdiction to decide the matter and jurisdiction of this court is barred under Article 212 of the Constitution of Islamic Republic of Pakistan. By now it is more than settled that an order, even passed on the basis of mala fide, Coram Non Judice or in violation of any rule, the same could only be challenged before the Service Tribunal because in such like matters, Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 places complete embargo on any other court, except the tribunal constituted for the purpose.
10. Again, this Court while dealing with a similar controversy in Writ Petition No, 1210-P of 2013, observed the following:- "The issue in hand relates to "up gradation", which in essence is "promotion" to a higher grade.
Surely, the same falls within the "terms and conditions" of service, which under Article-212 of the Constitution, is the exclusive domain of Service Tribunal."
11. In view of the constitutional bar, and above all while deriving wisdom from the precedents cited in the preceding paras, this court has got no jurisdiction to entertain the instant petition which is dismissed being not maintainable.