1. MUHAMMAD YAR WALLANA, MEMBER-II -- By this order I intend to decide the above-captioned 28 service appeals as common question of law and jurisdiction is involved.
2. 2.There are three sets of appeals. In the first set the appellant at serial No, 1 namely Nazir Ahamd while working as Stenographer on selection grade (BS-15) in the office of Executive District Officer (Agriculture), Sheikhupura submitted a representation before Secretary, Government of Punjab, Finance Department seeking upgradation of the post as Senior Scale Stenographer (BS-16), which request was turned down vide impugned order bearing No, SO(A-II)/9- 8/2012, dated 24.5.2013, against which departmental appeal preferred by him also met the same fate and was rejected vide impugned order bearing No, DDO(HRM)/SKP/3345, dated 29.8.2013. Hence, this appeal is filed on 27.9.2013.
3. 3.In the second set of appeals the appellants mentioned at serial Nos, 2 to 27 belong to Zakat & Ushr Department where they are serving as Accountants (BS-11) and through the instant appeals they are aggrieved by order bearing No, 3658/AZ&U/1-Misc./07/AO(Admn), dated 20.2.2011, whereby their request for upgradation of the post of Accountant (BS-11) to (BS-14) was turned down by .Administrator Zakat & Ushr vide order bearing No, SO(LAW)1-178/2013, dated 6.2.2015, whereby their departmental appeals were rejected by the Chief Secretary, Punjab. Hence, these appeals are filed on 9.3.2015.
4. 4.In the third set of appeal the appellant at serial No, 28 namely Manzoor Ahmad, Ex-Probation Officer- Reclamation and Probation, Home Department. Punjab (BS-16) through the instant appeal filed on 8.2.2017 seeks direction to respondents to award him BS-17 w.e:f. 1992, BS-18 w,e,f, 2000 and BS-19 w,e,f, 2008.
5. 5.The appellants have alleged discrimination at the part of the respondents in refusing their claim for upgradation of the posts as similarly placed other civil servants of different other departments under Government of Punjab assigned with similar duties, functions and responsibilities and having similar qualifications and mode of appointment were enjoying upgradation of their posts at the part of Government' of the Punjab but the appellants have been meted out discriminatory treatment. Hence, they invoked jurisdiction of this Tribunal u/S. 4 of Punjab Service Tribunals Act, 1974 claiming equal treatment of likes' in'' similar circumstances assignments and nature of duties: 6.While 'confronted with the question of jurisdiction learned counsels for the appellants submitted that upgradation of the posts primarily concerns the proces of selection, passing of order by the competent authority for the purpose and thus involves all elements of promotion and falls in the terms and conditions of service wherefor this Tribunal has exclusive jurisdiction under Section 4 of Punjab Service Tribunals Act, 1974 and that no other remedy is available to the appellant. Learned counsels for the appellants placed reliance upon Punjab through Secretary Services, Punjab, Lahore and 4 others Vs. Muhammad Awais Shahid and 4 others (1994 SCMR 696), Government of Pakistan Wo Railways through Secretary and others Vs. Jamshed Hussain Cheema and others (2016 SCMR 442), Maullana Ihsan-ul-Hadi Vs. Government of Khyper Pakhtunkhwa through, Chief Secretary and 4. others (2016 PLC (C.S.) 779), Chief Commissioner, Inland Revenue and another Vs. Muhammad Afzal Khan and others (2014 SCMR 1687), Muhammad Saeed Ahmad Vs. Secretary to Government of Punjab, Health Department and other (2013 PLC (C.S.) 538).
6. 7.Conversely, the learned District Attorney placed his reliance on Muhammad Farid Knattak and others Vs. Chief Secretary Government of N.W.F.P. and others (2009 PLC (C.S.) 172) and Regional Commissioner Income Tax, Northern Region, Islamabad and another Vs. Syed Munawar Ali and others (2016 SCMR 859) and maintained that up gradation of a post does not fall within .the terms and conditions of a civil servant and as such this Tribunal has no jurisdiction to adjudicate the question involved in these appeals.
7. 8.I have considered all the grounds taken up in the service appeals, arguments advanced at 'the bar by learned counsel for the appellants and the learned District Attorney and have gone through the case-law cited at the bar.
8. 9.The learned counsel for the appellants have built-up. arguments for maintainability of these service appeals on the basis of judgment of Honorable apex Court reported as Punjab through Secretary Services, Punjab, Lahore and 4 others Vs. Muhammad Awais Shahid and 4 others (1994 SCMR 696), which judgment' has been followed in score of other judgments of the Hon'ble apex Court as well as the Hon'ble superior Courts particularly in following reported cases:-- (i)Government of Pakistan Wo Railways through Secretary and others Vs. Jamshed Hussain Cheema and others (2016 SCMR 442)
9. (ii)Maullana lhsan-ul-Hadi Vs. Government of Khyber Pakhtunkhwa through Chief Secretary and 4 others (2016 PLC (C.S.) 779)
10. (iii)Chief Commissioner. Inland Revenue and another Vs. Muhammad Afzal Khan and others (2014 SCMR 1687)
11. (iv)Muhammad Saeed Ahmad Vs. Secretary to Government of Punjab, Health Department and others (2013 PLC (C.S.) 538).
12. In all the above-referred cases the Honorable superior Courts were of the view that the question of up gradation of any post has all essential elements of promotion and thus Service Tribunals have the exclusive jurisdiction to entertain such questions of law and facts agitated by the civil servants.
13. But by virtue of the dictum of Honorable apex Court reported as Regional Commissioner Income Tax, Northern Region, Islamabad and another Vs. Syed Munawar Ali and others (2016 SCMR 859), the Honorable apex Court has graciously taken the view that up gradation of posts could not be made to benefit a particular individual and for its jurisdiction the Government was required to establish that the department needed restructuring, reform or to meet the exigency of service in the public interest and in absence of such conditions, up gradation is not permissible. The Hon'ble apex Court has further laid down that up gradation cannot be construed as promotion but it can be granted through a policy and that by virtue of the view of the Hon'ble apex Court in Ali Azhar Khan Balouch's case (2015 SCMR 456) and by virtue of an unreported judgment of the Hon'ble apex Court passed in Civil Appeal No, 922/14 such an issue relating to up gradation of civil servants can be decided by the Hon'ble High Court in exercise of its Constitutional jurisdiction and bar contained under Article 212(3) of the Constitution of Islamic Republic of Pakistan. 1973 would not be attracted.
14. The judgment further reads that Service Tribunals have no jurisdiction to entertain the appeals involving the issue of up gradation and it does not form terms and conditions of service of the civil servants.
10. In Service Appeal No, 1088/2017 the learned counsel for the said appellant had referred to judgment' dated 18.6.2015 passed in C.P. No, 886/2015 wherein the Hon'ble apex Court had taken the view that the question of up gradation if not adhered to by the Government the only remedy available was to file an appeal before the Service Tribunal and the learned counsel for the appellant in Service Appeal No, 1088/2017 had thus argued that his appeal was maintainable before this forum. I have gone through the judgment of the Hon'ble apex Court above-referred and find that the matter was not remanded to this Tribunal rather leave was refused and the petition bearing No, 886/2015 seeking leave was dismissed. However, one could feel the long journey of litigation traversed by appellant Manzoor Ahmad in filing different petitions, ICAs and finally this service appeal, which remained finally non-productive for him mainly due to question of jurisdiction and the question of forum available to him for this purpose. But since the judgment of the Hon'ble apex Court above-referred (2016 SCMR 859) for redress of grievance arising out of alleged non-adherence to the requests of civil servants for up gradation of posts the remedy under. Article 199 of Constitution of Islamic Republic of Pakistan, 1973 has been made available and any aggrieved civil servant could seek a recourse for settlement of such dispute before the Hon'ble High Courts. The relevant extract from the afore-referred judgment is reproduced hereunder.-- "(b) In order to justify up gradation the Government was required to establish that the department needed re-structuring, reform or to meet the exigency of service in the public interest---In the absence of such preconditions, u pgradtion was not permissible.
(c) Upgradation' of post, issue of---Could be decided by the High Court in its Constitutional jurisdiction under Art. 199 of the Constitution."
11. For the reasons recorded above, this Tribunal has no jurisdiction to decide the issue of up gradation, hence all these service appeals are dismissed due to want of jurisdiction. The appellants may avail remedy against the impugned orders subject to all just and legal exceptions before the Honorable Lahore High Court, Lahore.