MIRZA VIQAS RAUF, J. The petitioners are working as Physical Training Instructors (hereinafter referred to as "PTIs") in different Federal Educational Institutions in Pakistan under the Federal Government Educational Institutions (Cantonments and Garrisons), Rawalpindi. The grievance of the petitioners is that though they are entitled for the upgradation of their posts but the respondents, in disregard of the Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as "Constitution"), are creating unnecessary hurdles in their way.
2. On this petition, a notice was issued to the respondents vide order dated 16th December, 2021 after making observations to the following effect:- "The petitioners are working under the Federal Government Educational Institutions (Cantonment and Garrisons) and they are seeking up-gradation of their posts in the light of Prime Minister's Directive No.2605, dated 17.02.2011.
2. Learned counsel for the petitioners, inter alia, contends that similarly placed employees have already been benefited with the said Directive, whereas, the petitioners without any lawful excuse have been denied the same relief. Contends that initially the petitioners invoked constitutional jurisdiction of this Court through W. P. No.1560 of 2019, which was disposed of vide order dated 04.11.2020 and on account of inaction on part of respondents Nos.1 and 3, the petitioners moved.
Criminal Original No.140-W of 2021, but it was disposed of by way of order dated 01.12.2021 in the light of office memorandum dated 08.11.2021, issued by the Ministry of Finance. Learned counsel while making reference to office memorandum submits that though there was complete concurrence of the Ministry of Establishment as well as the Ministry of Defence with regard to the up-gradation of the posts, but the Ministry of Finance, without assigning any lawful reasoning, differed with the said recommendations. While making reference to an order dated 28.05.2013, passed in W.P.No.1662 of 2012, learned counsel contends that the petitioners have been discriminated, which is in oblivion of Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973.
3. Notice.
4. Learned Law Officer while entering appearance accepts notice on behalf of respondents, so there is no need of issuance of any formal notice to this effect. The respondents may submit written statement within three weeks."
3. In response thereto, the respondents have submitted their respective written statements wherein they resisted the claim of the petitioners on the ground that their status is quite different from the employees of the Federal Directorate of Education Islamabad whose post is upgraded to BS-17. It is also asserted that the petitioners cannot claim upgradation as a matter of right. The petition is also resisted on the ground that the petitioners have already been granted upgradation previously and now they cannot claim the upgradation for the second time.
4. Learned counsel for the petitioners as well as learned Law Officer have addressed this Court on the pro and contra points raised in the petition and the written statements.
5. After having heard both the sides at considerable length, I have perused the record.
6. The petitioners were initially appointed as "PTIs" (BS-15) in different Federal Educational Institutions in Pakistan under the Federal Government Educational Institutions (Cantonments and Garrisons), Rawalpindi. In the year 2011, the Prime Minister of Pakistan, during his address on the occasion of launching ceremony of Uniformity of Education, made certain announcements, including the upgradation of posts of teachers working under Federal Directorate of Education, Ministry of Education w.e.f 1st November, 2011 with the direction to the Education Department to work out the details in consultation with Finance Division. This followed the summary, which was placed before the Prime Minister of Pakistan. After the concurrence of the Finance Division, the approval was accorded by the Prime Minister of Pakistan, which was notified through Notification dated 14th October, 2011, whereby the teaching posts in BS-16, including PTI (Senior) prior to 1st January, 2011 under Federal Directorate of Education, Islamabad were upgraded to BS-17 with re- designation of the post as Secondary School Teacher (SST) BS-17 on one-time basis w.e.f 1st January, 2011. This prompted some of the employees serving under Federal Directorate of Education as well as one Muhammad Khalique Khan Sajid, "PTI" serving in F.G. High School, Marir Hassan, Rawalpindi Cantt to voice their grievance qua upgradation through W.Ps.No.1662, 1663 and 1664 of 2012 before this Court. The petitions were accepted by way of a common order dated 28th May, 2013 in the following manner: - "6. In view of the Prime Minister's Directive No. 2605 dated 17.02.2011 and keeping in' view the order dated 29.09.2008 passed by the Federal Service Tribunal and the judgment dated 13.02.2012 passed in W.P.No.1826/2011, there are no reasons to form a different opinion that the one formed in the referred judgements. These writ petitions are accepted. The respondents are directed to make the funds available and order the up-gradation in the case of the petitioners which has so far been withheld on the pretext of the paucity of the funds w.e.f. 01.01.2011, the date when the same up-gradation was bestowed to those serving under the Directorate of Education, Islamabad keeping in view the time scale formula in case of the petitioners in the instant W.P.No.1622/2012 and to the other petitioners without application of the time scale formula as it is not applicable in their case. "
7. It is not in dispute that the said order has attained finality as it was never challenged by the respondents. In the meanwhile, the Government of Pakistan, Finance Division (Regulations Wing) issued office memorandum dated 14th May, 2014, whereby approval of the Finance Division was conveyed for the upgradation/re-designation of the post of "PTI" (BPS-14) to "PTI" Senior (BPS-16) in Federal Government Educational Institutions (Cantonments and Garrisons) w.e.f 01.01.2011 i.e. the date from which these posts were upgraded in Federal Government Educational Institutions under Federal Directorate of Islamabad. As the petitioners were remained fruitless, so they filed W.P. No. 3114 of 2014, which was disposed of by way of order dated 17th April, 2018. For ready reference and convenience, same is reproduced below: - "The learned Law Officer has presented copy of the order dated 13.04.2018, whereby the post of Physical Training Instructor (PTI) has been upgraded from the date of appointment or w.e.f.
01.06.1991 as the case may be considering the effect of the judgment of the Honourable Supreme Court of Pakistan. Hence, the petitioners are satisfied and to this extent, the petition has borne fruit.
2. So far as the grievance of the petitioners that the respondents are not treating them in the cadre of teachers is concerned, they are directed to approach respondent No. 2 by way of filing an application/ representation. If the said application/ representation is moved, respondent No.2 shall attend the same and decide it in accordance with law within a period of one month.
3. With the above direction, this petition stands disposed of."
It is quite obvious from the above said order that grievance of the petitioners was twofold, one relatable to the upgradation of their posts in BS-17 and second to the effect of upgradation from BS-15 to BS-16 w.e.f 01.06.1991. As the petitioners were awarded upgradation of their post from BS-15 to BS-16 w.e.f 01.06.1991, so second limb of their grievance was stand redressed by the respondents.
Since first part of grievance was yet to be redressed, so they approached the respondents through representation in terms of order dated 17th April, 2018 but they remained unable to persuade the respondents. As a result, the petitioners filed Crl. Org. No. 24-W of 2019.
8. In the -meanwhile, a letter was issued on behalf of Director Federal Government Educational Institutions (Cantonments and Garrisons) Directorate on 3rd July, 2018 observing therein that in order to dispel the discrimination and redress the grievances of the staff working in FGEI (Cantonments and Garrisons) set up it is requested that: a. All PTIs serving in different lower pay scales may be upgraded on one-time basis to BPS-14 with re-designation as PTI (Junior) w.e.f. 1 Jan 2011. b. All PTIs who were granted upgradation from BPS-15 to BPS-16 W.e.f. 1 June 1991 be granted the same upgradation to PTI (BPS-17) and re-designated as SST w.e.f. 1 Jan 2011.
In the light of said development, the petitioners opted not to press the criminal original in order to avail the appropriate remedy. Resultantly, Crl.Org.No.24-W of 2019 was disposed of accordingly vide order dated 10th April, 2019. The petitioners thereafter filed W.P.No.1560 of 2019 as they remained unsuccessful before the respondents, which was disposed of by way of order dated 4th November, 2020 and the matter was transmitted to respondent No.3. This followed CrI.Org.No.140-W of 2021 complaining non-compliance of order dated 4th November, 2020. As the respondent No.3 decided the representation of the petitioners in terms of the said order, though with a delay but favourable to them and it was pointed out that, the matter of upgradation is primarily resisted by the Ministry of Finance with certain reservations as depicted in the office memorandum dated 8th November, 2021, so it was observed that no contempt is made out from the facts of the case and resultantly the petition was dismissed leaving the petitioners to have a resort to any other proceedings, if permissible under the law. The petitioners then voiced their grievance through present petition pleading that they have been discriminated by the respondents.
9. Now the sole question before this Court is that whether the petitioners are justified to claim their upgradation of post in BS-17. Upgradation is not a part of terms and conditions of service, rather it is based on a policy decision of competent authority, the purpose of which is to eliminate the sufferings of employees from stagnation and to avoid them from being stuck up in some isolated post without any pathway or probability of promotion despite satisfactory length of service in a particular post. Upgradation cannot be thus claimed as a matter of right by an employee or group of employees but at the same time when once the competent authority decides to redress sufferings of employees who may remain as dormant in future and proceeded to upgrade a particular post, such benefit cannot be extended only to single or one set of persons serving at the same post. Article 25 of the "Constitution" ordains that every citizen shall be dealt wish equally and there shall be no discrimination. Guidance in this respect can be sought from Fida Muhammad v.
Government of Khyber Pakhtunkhwa through Secretary Education, Peshawar and others (2021 SCMR 1895), Federal Public Service Commission through Secretary v. Anwar-ul-Haq (Private Secretary) Islamabad and others (2017 SCMR 890) and Regional Commissioner Income Tax, Northern Region, Islamabad and another v. Syed Munawar Ali and others (2016 SCMR 859).
10. As already observed that this petition is resisted by the respondents mainly on the ground that the petitioners are since serving in the Federal Government Educational Institutions (Cantonments and Garrisons), so they cannot claim the upgradation of their post as allowed to the employees of the Federal Directorate of Education, suffice to observe that this contention holds no water firstly' on the ground that respondent No.2 in its letter dated 3rd July, 2018 has already recommended the upgradation of the post of "PTI" in BS-17 to dispel the discrimination in the employees of Federal Directorate of Education and employees working in FGEI (Cantonments and Garrisons). Secondly, it is an undeniable fact that in W.P.No.1664 of 2012, one of the petitioners was "PTI" teacher, who was allowed relief of upgradation by way of judgment dated 28th May, 2013 and said judgment was never challenged by the respondents. They are thus now precluded to draw any distinction in the case of the petitioners.
11. So far contention of learned Law Officer that in recent past, the Government of Pakistan Cabinet Secretariat Establishment Division has issued an office memorandum dated 21st July, 2022, whereby a committee has been constituted in the Establishment Division with the approval of the Prime Minister of Pakistan to consider the cases of upgradation/re-designation of civil posts, suffice to observe that office memorandum cannot operate retrospectively though it has a legal force.
12. The nutshell of above discussion is that the petitioners have successfully established that they have been treated discriminatory by the respondents in the matter of upgradation of post, which act of the respondents offends the mandate of Article 25 of the "Constitution". Resultantly this petition is allowed. As a sequel whereof, the respondents are directed to upgrade/re-designate the post of "PTI" BS-16 to BS-17 (SST) accordingly. No order as to costs.