MIANGUL HASSAN AURANGZEB, J.----Through the instant writ petition, the petitioners, who are all retired employees of the Airport Security Force ("A.S.F ."), seek consideration for up-gradation of posts with effect from 12.03.2015 (i.e. the date when the Finance Division, Government of Pakistan, conveyed its conditional concurrence to the up-gradation of posts in A.S.F . from BS-16 to BS-17, BS-17 to BS-18 and BS-18 to BS-19).
2. The record shows that vide office mem orandum dated 20.02.2015, the Establishment Division conveyed to the Aviation Division its agreement to the up-gradation/re-designation of certain posts in A.S.F ., subject to the concurrence of the Finance Division and amendment in the recruitment rules of A.S.F . As per the said office memorandum, the existing post of Deputy Assistant Director (BS-16) was to be up-graded to Assistant Director (BS-17); the post of Assistant Director (BS-17) was to be up-graded to Deputy Director (BS-18); and the post of Deputy Director BS-18) was to be up-graded to Additional Director (BS-19). Vide office memorandum dated 12.03.2015, the Finance Division conveyed to the Aviation Division its concurrence to the up-gradation of the posts referred to above. This concurrence was subject to (i) the up-gradation of the post of Director (BS-19) to (BS-20) to be completed first, (ii) amendment in the recruitment rules, and (iii) appointment to the up-graded posts to be made in the manner prescribed in the Establishment Division's letter dated 31.12.200 8. The amendment in A.S.F .'s recruitment rules was notified on 05.08.2016. In October , 2016, the Departmental Selection Committee of A.S.F . promoted officers in A.S.F . against the up-graded posts. The petitioners assert that they should not be made to suffer on account of the substantial delay occasioned in notifying the amendments in A.S.F .'s recruitment rules.
They further assert that had the respondents not delayed the amendment in the recruitment rules, the petitioner would have been timely considered for promotion against the up-graded posts. Therefore, the petitioners, in their writ petition have prayed for the following relief:- "Under the above said circumstances, it is most humbly prayed that the instant writ petition may please be accepted, the inaction/delay at the part of the respondents may kindly be declared illegal, unlawful and without lawful authority , as a consequence thereof the respondents may kindly be directed to remove the anomaly and discrimination/disparity and consider the petitioners for upgradation w.e.f 12.03.2015 the date when it was approved against the post of BPS-16 to 17, BPS-17 to 18 and BS-18 to 19 keeping in view OMs at (Annex-C,D&E), along with consequential/back benefits."
3. Learned counsel for the petitioners submitted that in the year 2013, the Senate Standing Committee in its meeting decided that in order to boost the morale of officers in A.S.F ., and in order to bring their pay-scales at par with officers in other law enforcing agencies, the Ministry of Defence, in consultation with the Ministry of Finance and the Establishment Division would finalize a proposal for up-gradation of posts in A.S.F . He further submitted that even after the approval of the Establishment Division and Finance Division on 20.02.2015 and 12.03.2015, respectively , the Aviation Division unduly delayed the up-gradation of posts of Deputy Assistant Director to Assistant Director , and Assistant Director to Deputy Director; that on various dates between April, 2015, to November , 2016, all the petitioners retired; that the petitioners had been deprived of up-gradation with effect from 12.03.2015, when the Finance Division, concurred with the up-gradation of posts in the A.S.F .; that the petitioners were deprived of up-gradation for reasons beyond their control, therefore, they were entitled to be given the benefit of proforma up-gradation under the proviso to FR-17(1) with effect from 12.03.2015; that the denial by the respondents to up-grade the petitioners with effect from the said date is a violation of the petitioners' fundamental rights. Learned counsel for the petitioners prayed for the writ petition to be allowed and for a declaration to be made that the petitioners' up-gradation should be considered to be with ef fect from 12.03.2015.
4. Learned counsel for the petitioners drew the attention of the Court to the notification dated 27.08.201 1, issued by the Controller General of Accounts, and the office memorandum dated 14.05.2014, issued by the Finance Division, and submitted that these were examples of back-dated up-gradations of posts in different organizations. Learned counsel for the petitioners also made reference to the proviso to FR-17(1) in support of his submission that the proforma promotion or up-gradation can be antedated.
5. On the other hand, the learned Deputy Attorney-General along with Mr. S. Iftikhar Naqvi, Assistant Director (Legal), A.S.F ., submitted that as per the existing policy , decisions regarding up-gradation/re-designation of posts in BS-01 to BS-19 are to be taken by the Finance Division in consultation with the Establishment Division; that as per Establishment Division's office memoran dum dated 03.02.2001, when the competent authority approves the up- gradation of a post, appointment against the up-graded post is to be made in accor dance with the provisions of the Civil Servants (Appointments, Promotion , and Transfer) Rules, 1973; that as per Establishment Division's letter dated 31.12.2008, up-gradation of a post does not mean up-gradation of its incumbent; that the Establishment Division, vide office memorandum dated 20.02.2015, agreed to the up-gradation of posts in A.S.F . subject to the concurrence of the Finance Division, amendment in the recruitment rules, etc; that the up-graded posts were to be filled by the concerned Ministry/Division after completion of the process of up-gradation; that since the up-gradation in question was subject to certain conditions, therefore, the Departmental Promotion Committee could not promote officers to the up-graded posts until the conditions were fulfilled; that the amendment in the recruitment rules were notified on 05.08.2016; that the Departmental Promotion Committee on 31.10.2016, promoted the officers to the up-graded posts with effect from 31.10.2 016. Learned Deputy Attorney-General prayed for the writ petition to be dismissed.
6. I have heard the contentions of the learned counsel for the petitioners as well as the learned Deputy Attorney- General, and have perused the record with their able assistance.
7. Under the provisions of the Airport Security Force Act, 1975, the A.S.F . is mandated to ensure security of all civil airports in Pakistan. The Senate Standing Committee for Defence in its meetings dated 12.11.2012, and 04.03.2013, recommended the up-gradati on of posts in officers' cadre in A.S.F . It was felt that there was a need for the command structure of A.S.F . to be elevated to make it compatible with other law enforcement agencies. The Aviation Division in its summary dated 11.02.2014 to the Prime Minister of Pakistan made the following recommendations regarding up-gradation/re-designation of posts in A.S.F .:-
(a) The post of Director General (BS-20) may be upgraded from BPS-20 to BS-21 (Major General).
(b) Deputy Director General (Coord) in BPS-I9 be upgraded to BS-20 (Brigadier).
(c) 05 Posts of Director in BS-19 (out of authorized strength of 09) may be upgraded in BS-20.
(d) Existing rank of Deputy Director (BS-18) may be re-designated as Additional Director in BS-19. 04 Posts of existing Directors (BS-19) shall also be re-named as Additional Director (BS-19).
(e) Existing rank of Assistant Director (BS-17) be re-designated as Deputy Director in BS-18.
(f) Existing rank and pay scale of Deputy Assistant Director (BS-16) be re-designated as Assistant Director in BS- 17.
8. The Establishment Division vide letter dated 25.02.2014 supported the proposed up-gradation/re-designation' of posts of the officers of A.S.F ., subject to (i) the concurrence of the Finance Division, (ii) amendment in the recruitment rules, and (iii) filling up the up-graded posts in the manner prescribed in the Establishment Division's letter dated 31.12.2008. However , the Finance Division in its letter dated 28.04.2014 did not support the proposed up-gradation of posts in A.S.F . On 24.05.2014, the Prime Minister of Pakistan approved the proposals contained in paragraphs 4(a) and (b) of the above mentioned summary submitted by the Aviation Division. The proposal contained in paragraphs 4(a) and (b) in the said summary are only with regard to the up-gradation of the post of Director General from BS-20 to BS-21, and the post of Deputy Director General (Coordination) from BS-19 to BS- 20.
9. Vide office memorandum dated 20.02.2015, the Establishment Division conveyed to the Aviation Division its agreement to the up-gradation of the following posts in Sr.No.Existing Post and BPS Approved upgradation/ re- designation 1 Deputy Director (BS-18) Additional Director (BS-19)
2 Assistant Director (BS-17)Deputy Director (BS-18)
3 Deputy Assistant Director (BS-16)Assistant Director (BS-17)
10. Establishment Division's said agreement to the up-gradation of the said posts of A.S.F . was subject to (i) the concurrence of the Finance Division, (ii) amendment in the recruitment rules, and (iii) filling up the up-graded posts in the manner prescribed in the Establishment Division's letter dated 31.12.2008. Vide office memorandum dated 12.03.2015, the Finance Division conveyed to the Aviation Division its concurrence to the up-gradation of the above mentioned posts in A.S.F . subject to the following conditions:- i. To avoid anomaly in the administrative setup of ASF, up-gradation of the post of Director (BS-19) to (BS-20) will be completed first. ii. Amendment in the Recruitment Rules. iii. Appointment to the upgraded post may be made in the prescribed manner in light of Establishment Division's d.o letter No.8/36/2000/R-I dated 31.12.2008.
11. Under the Establishment Division's office memorandum dated 20.01.2001, the cases of up-gradation/re- designation of posts in BS-01 to BS-19 are to be decided by the Finance Division in consultation with the Establishment Division. The Finance Division's concurrence regarding the up-gradation of the above mentioned posts was clearly conditional in nature. Therefore, the up-gradation of the said posts could not have