' MUHAMMAD FARRUKH IRFAN KHAN, J.--- Through this single judgment I intend to decide Writ Petition No,38525/2015 as well as Writ Petitions Nos.4191/2016, 38928/2015, 32360/2015, 33822/2015, 38935/2015, 38934/2015, 36519/2015, 37794/2015,37023/2015, 37021/2015, 1146/2016, 35934/2015, 40014/2015, 12864/2016, 9371/2016, 669/2016, 39559/2015 and 21531/2016 as they all proceed almost on similar facts and circumstances and the law point involved therein is also identical.
2. It is submitted by learned counsel that all the petitioners were originally appointed as Guard Grade-I in BS-9 on the basis of their educational qualification and after successfully undergoing departmental training course, medical fitness and the First Aid Course etc.; that employees of their rival cadre on the same train commonly known as STEs (special ticket examiners) appointed with the basic qualification of matric have been awarded BS-11 and BS-14 and promoted as Group Inspectors and Divisional Inspectors; that their pay scales have not been upgraded proportionately as compared to employees of various other categories like the Fireman and Station Master Group, whose pay scales were revised and upgraded from time to time. It is further submitted that the category of Guards is declared as operational, inevitably insuring safe and smooth operation of trains, whereas, the duties assigned to their rival cadre namely STEs is strictly confined to preparation and verification of tickets of the passengers on board and are not required to undergo any departmental training/course, neither they are subject to any medical test or periodic vision test nor any refresher course for enhancement of their competence and capabilities. It is claimed that STEs cannot be equated with the category of Guards but strangely the post of STEs has been upgraded but the Guards have been ignored; that two of the Guards earlier filed Writ Petitions Nos.7088/12 and 14255/11 which were allowed by this Court vide order dated 21.12.2012; that this order was duly implemented upon and the colleagues of the petitioners namely Muhammad Jameel, Muhammad Mansoor, Ikhlaq, M. Bagga and Shahid Tanveer have been upgraded but the benefit of said judgment is not being extended to the present petitioners.
3. The stance of the respondents in their report and parawise comments is that the Hon'ble Apex Court in the judgment dated 17.02.2016 passed in Civil Appeals Nos.101 and 102-P of 2011 titled Regional Commissioner of Income Tax v. Syed Munawar Ali and others (2016 SCM R 859) has deprecated the tendency of upgradation to benefit a particular individual, therefore, these petitions are not sustainable.
4. Arguments heard. Record perused.
5. Earlier Writ Petition No,7088/12 titled "M. Faisal Masood v. Pakistan Railways" involving identical questions of law and facts has been allowed by this Court vide order dated 21.12.2012 with the following observations:- "Respectfully following the rationale of law laid down by the Honorable Supreme Court in the cases supra and applying the aforesaid criteria to the facts and circumstances emerging from the instant case, it is abundantly clear that petitioner and his coworkers (emphasis supplied) are being dealt with in a discriminatory manner through pick and choose which course of action cannot be allowed to be undertaken being in conflict with the fundamental rights enshrined in the Constitution of Islamic Republic of Pakistan. In this view of the matter, this petition is allowed and the respondents are directed to consider the case of the petitioners/guards for their upgradation and promotion in line with the practice being adopted in the case of STEs expeditiously and strictly in accordance with law and in the light of this Court's order and direction of the Federal Service Tribunal referred to herein above within a period of three months of the receipt of this order."
6. It is thus abundantly clear that the aforesaid order is in rem and not personam and in compliance of this order the Establishment and Finance Divisions of the Ministry of Railways approved the upgradation of the posts of Guard vide letter dated 25.06.2014 which is reproduced here as under:- GOVERNMENT OP PAKISTAN MINISTRY OF RAILWAYS (RAILWAYS BOARD)
' No,F.No,8(1)/2011-E-I Islamabad Dated: 25.06.2014 ' General Manger/Operations ' P.R.Headquarters Office, Lahore.
' SUB; UPGRADATION OF PAY SCALE OF GUARD ' In compliance to the Lahore High Court judgment dated 21.12.2012, the Establishment and Finance Divisions have approved the up-gradation posts of Guard' Gr-I, Guard Grade-II and Guard Grade- III in Pakistan Railways subject to amendment in the Recruitment Rules/Personnel Manual and filling up the upgraded posts in the manner prescribed in Establishment Division's letter No,8/36/2000/R-1 dated 31.12.2008 (Copies enclosed).
' You are requested to implement this decision accordingly under intimation to this Ministry.
Sd/ (Muhammad Yamin) Director/Establishment
7. After issuance of aforesaid letter no justification was left with the respondent/department in extending benefit of the aforesaid judgment of this Court in individual cases. It is very painful to note that despite elapse of more than two years of the approval of the upgradation of the posts of the Guards by the Ministry of Railways, the respondents are hesitant in implementing the decision which is clearly directed to the upgradation of the entire cadre of the part of a category of employees known as "GUARDS" and not for the upgradation of any specific individual. The observation of the Hon'ble Apex Court made in the judgment referred supra, I am afraid, can in no manner be urged to provide shelter to the respondents for not implementing the decision which has already been taken by their Ministry pursuant' to the direction of this Court and particularly when the facts and circumstances of the case in hand proceeds on a different and distinct scenario. The Hon'ble Apex Court in the cited case while dismissing the appeal of the department observed as under:- "The expression "upgradation" is distinct, from the expression "Promotion", which is not defined either in the Civil Servants Act or the Rules framed thereunder, and is restricted to the post (office) and not with the person occupying it the upgradation cannot be made to benefit a particular individual in term of promoting him to a higher post and further providing him with `the avenues of lateral appointment or transfer or posting. In order to justify the upgradation, the Government is required to establish that the department needs re-structuring, reform or to meet the exigency of service in the public interest. In the absence of these pre-conditions, upgradation is not permissible."
7.(sic) In the aforesaid judgment the Hon'ble Apex Court deprecated the tendency of upgradation of the post for the benefit of a particular individual but it has not laid any restriction on the upgradation of a post in general subject to fulfillment of the requirement of law. Here in the instant case, the post of GUARDS has been upgraded and not of an individual, benefit whereof has been given to some of the employees while the same benefit is being denied to the other equally placed GUARDS which infact is in stark violation of the dictum laid down by the Hon'ble Apex Court in the above referred judgment and so also against the earlier judgment of this Court passed in W.P.No,7088/12.
8. Another important aspect of the matter is that the order of this Court for upgradation of the post was passed on 21.12.2012 which was I not challenged by the respondents and thus has attained finality and also A implemented upon vide letter dated 25.06.2014 reproduced supra. The judgment of the Hon'ble Apex Court which according to the respondents is coming in their way to upgrade the post of the petitioners infact endorses that this Court has jurisdiction in the matters of upgradation in relation to a class or category of employees. It is not the case of the respondents that the present writ petitioners, can be categorized differently from GUARDS, who have already been extended the benefit of earlier judgment of this Court. The judgment of this Court dated 12.12.2012 has been implemented upon by the respondents on a selective basis, thus benefiting certain individuals and denying the same benefit to all other equally placed individuals which is against the canon of justice. B The case of the petitioners is at par with the cited case of the writ petitioners, therefore, in view of dictum laid down by the Hon'ble Apex Court reported as Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others (1996 SCM R 1185) as well as Government of Punjab through Secretary Education, Civil Secretariat, Lahore and others v. Sameena Perveen (2009 SCM R 1), they are also entitled for the same relief.
9. For what has been stated above, all these writ petitions are allowed in terms of the earlier judgment of this Court dated 21.12.2012 and the respondents are directed to extend the same benefits to all the GUARDS of the Railways Department which they have already granted to some individuals within three months from the date hereof.