Ahmad Ali, J. Through the instant Writ Petition, filed under Article 199 of the Constitution of Islamic Republic of Pakistan. 1973, petitioner has prayed for the following relief: "It is. therefore, most humbly prayed that on acceptance of instant writ petition. the respondents may please be directed to consider / appoint the petitioner on retired employees' son quota as early as possible to avoid further hardship, with any other orders which this Hon'ble Court deems fit and necessary may also be granted":
2. In essence, the grievance of the petiti oner is that his father was working with the respondents/ department as Naib Qasid (BPS 05) and got retired from service on 30.06.2019. on attaining the age of superannuation After the retirement of his father , he approached the respondents time and again for his appointment under the retired employees' son quota but in vain. Thus, having no other efficacious remedy , the petitioner has approached this Court under the Constitutional jurisdiction for the redressal of his grievance.
3. Arguments heard and record gone through.
4. Perusal of record reveals that vide order dated 01.07.2019, father of the petitioner namely Muhammad Qayyum, who was Naib Qasid of Forest Development Corporation, Peshawar , got retirement from service on 30.06.2019, on attaining the age of superannuation i.e. 60 years. Record further unfolds that the father of petitioner was previously serving as Naib Qasid BPS-03, and he was upgraded to BPS-5 w.e.f. 01.07.2015 vide an order issued in the year 2017 and it was specifically mentioned in the said office order that the up-gradation was in the interest of Corporation. The order further transpires that Forest Development Corporation, Peshawar , upgraded the pay- scales of the officials from BPS-01 to BPS-05 and BPS-06 to BPS-15, without change in their designation and type of the duties. Besides, officials were awarded personal up-gradation to higher pay scales by name meaning thereby there was no change in the substantive pay-scales and designations of the of ficials awarded upgradation.
5. The learned Additional Advocate General representing the respondents contended that though father of the petitioner was Naib Qasid in the respondent/department but he got retired from service in Basic Pay Scale 05, which does not fall under the definition of Class-IV employee. In order to answer the contention/ objection of the learned AAG, we would like to go through the amendments, made by the Government of Khyber Pakhtunkhwa, in the Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion & Transfer) Rules, 1989 issued through Notification dated 19.04.2016. from which, relevant Clause and Section is reproduced hereunder for ready reference: Amendments
2. In rule 10.- a) In sub-rule (2), in second proviso, for the figures and word "1 to 4" the figures and word "3 to 5" shall be substituted.
Thus, after the ibid amendment the Rule 10(2) of the Civil Servants (APT) Rules, 1989 is read as under:
10. Appointment by Initial Recruitment:- (1)----
(2) Initial recruitment to posts which do not fall within the purview of the Com mission shall be made on the recommendation of the Departmental Selection Committee, after vacancies have been advertised in newspapers.
Provided that nothing contained in this sub-rule shall apply to the household staff of the Chief Minister House Peshawar , Frontier House Islamabad, Frontier Rest Houses Bannu, Swat and Abbottabad, Frontier House Nathia Galli and Shahi Mehman Khana, Peshawar and any other House to be established by the Government: Provided further that the appointment in Basic Pay Scale-3 to 5 shall be made on the recommendations of the Departmental Selection Committee through the District Employment Exchange concerned, or, where in a District, the of fice of the Employment Exchange does not exist, after advertising the posts in the leading newspapers.
6.The perusal of ibid provisions clarify that, after the ibid amendment, employees up-to BPS-5 are the Class-IV members of an establishment. Even otherwise, as mentioned above, the post of the father of petitioner was carrying substantive pay-scale BPS-3 and he was awarded upgradation in BPS-5 in the interest of Corporation. It was a personal upgradation and after his retirement post automatically reverted back to BPS-3 with the same set of duties. It would not be out of place to mention here that there is a hell of difference between promotion and upgradation. The placement of an official in a higher pay scale with a change in the designation with an additional qualification and change in the nomencla ture, responsibility and duties shall be regarded as promotion. But when 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 recruitmen t rules for the existing post, and without involving change in the responsibility and duties will be treated as upgradation. The promotion is always granted 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. In an upgradation, the official continues to hold the same post without any change in the duties and responsibilities but merely gets a higher pay scale whereas, promotion is basically to a higher post and not to a higher grade.
7. The policy regarding reserving 25% quota of appointment for the children of retired Class-IV employees though stipulates that the competent authority directed that a quota of 25% falling to the share of initial recruitment in BPS- 1 to BPS-4 shall be reserved for appointm ent of one of the children of a retiring civil servant on superannuation. But as mentioned in the Rule 10(2) of the K.P. Civil Servants (A.P.T.) Rules, 1989 the figures/words 'BPS-1 to BPS-4' have been amended/replaced with figures/words 'BPS-3 to BPS-5'. This encompasses the pay scale of the father of petitioner held at the time of superan nuation i.e. BPS-5 as, the pay scales referred in the said policy mean 'substantive pay-scales' as to permanent post which employees held substantive ly. The term 'substantive pay' is defined in the Rule 9(28) of the Fundamental Rules which is reproduced as under: F.R.9. (28) Substantive pay means the pay other than special pay, personal pay or emoluments classed as pay by the President under rule 9 (21) (a) (iii), to which a Government servant is entitled on account of a post to which he has been appointed substantively or by reason of his substantive position in a cadre.
The referred Rule 9 (21) (a) of F .R. says: F.R.9.(21)- (a) Pay means the amount drawn monthly by a Government servant as--
(i) the pay, other than special pay or pay granted in view of his personal qualifications, which has been sanctioned for a post held by him substantively or in an officiating capacity , or to which he is entitled by reason of his position in a cadre, and
(ii) overseas pay , technical pay , special pay and personal pay , and
(iii) any other emoluments which may be specially classed as pay by the President.
8. From the above, there remains no cavil with the proposition that the post held by the father of petitioner was carrying substantive pay-scale 'BPS-3' with substantive post 'Naib Qasid' and as such he was undoubtedly a Class-IV employee falling within the domain of policy retarding 25% reserved quota of the children of Class-IV employee retired on attaining the age of superannuation.
9. Thus, in view of the above observations, this Writ Petition is accepted and the respondents are directed to enlist the name of the petitioner in the list so maintained for the purpose by the concerned department within seven days and consider the petitioner for appointment on his own turn, commensurate to his qualification against 25% retired employees son' s quota, subject to observing all other instructions in this behalf.
10. Before parting with this judgment, we deem it appropriate to mention that the amendments in the K.P. Civil Servants (A.P.T.) Rules, 1989, vide notification No.SO(R-VI)E&AD/1-3/2015 dated 19.04.2016 can be treated prospectively only because all the class-IV employees throughout the province Khyber Pakhtunkhwa were awarded upgradation to higher grades up-to BPS-5 by the Finance Department vide Notification dated 30.06.2015 w.e.f.
01.07.2015. Before that up-gradation, the pay-scales of Class-IV employees were ranging from BPS 1 to 4 only, and the ibid amendment was made to encompass the up-graded scales of Class-IV employees to protect their rights; and no other class or group of employees having BPS-5, except Class-IV employees, can step forward to claim the benefit of same retrospectively .
11. In view of the foregoing, this writ petition is allowed in the above terms. No order as to cost.