' TALAAT QAYYUM QURESHI, J.---The petitioners are Agriculture Graduates, working in Agriculture Extension Department as Agriculture Officers in BPS-17. They have completed more than 18 years of their service but despite their eligibility to get "Selection Grade", they have not been extended the said benefit i,e, "Selection Grade". Through the writ petition in hand the petitioners have challenged the act of respondents whereby the petitioners have been deprived of the said benefit being against law, rules, instructions/directions of the Government of N.-W.F.P. Besides being discriminatory.
2. Mr. Shahzada Shahpur Jan, the learned counsel stated at Bar that he would confine his arguments only to the grant of "Selection Grade" to the petitioners.
3.He argued that Agriculture Extension, Livestock and Dairy Development are attached with Food, Agriculture, Livestock and Cooperative Departments. A meeting of Council of Common Interests was held at Rawalpindi on 7-9-1975 which recommended that the Animal Husbandery Graduates, Agriculture, Forest Graduates and Soil Chemists should be treated at par with other Professional Graduates such as Doctors and Engineers for the purpose of pay and prospects of promotion. The Government of N.-W.F.P. Allowed the Animal Husbandry Graduates 33% Selection Grade, quota from BPS-17 to BPS-18 vide Letter NOFC(PRC)1-96, dated 15-9-1996 but the Agriculture Graduates were ignored for giving the same benefits.
3. It was also argued that the Provincial Government has also extended., the benefit of Selection Grade to Doctors, Engineers and employees of different Departments, but the Agriculture Officers of Agriculture Extension Department have been excluded from the scope of same benefits despite the fact that the petitioners have equal status and position with said Officers. This act of the Provincial Government is discriminatory, hence needs interference by this Court.
4. On the other hand Mr. Muhammad Younis Tanoli, the learned Advocate-General argued that the jurisdiction of this Court is barred under Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973 as the matter relates to terms and conditions of service of petitioners. He placed reliance on Muhammad Hayat Channa and others v. Jethanand Rathi and others (1997 PLC (C.S.)
336) and Muhammad Anis and others v. Abdul Haseeb and others (PLD 1994 SC 539).
5. It was also argued that no right of the petitioners has been violated, therefore, the writ petition is not maintainable.
6. We have heard the arguments of the learned counsel for the parties and gone through the record annexed with the writ petition.
7. In order to determine as to whether grant of "Selection Grade" to the petitioners would fall under the category of promotion or not, we will have to see as to what is "Selection Grade".
8. Government of Pakistan Ministry of Finance vide O.M. No,2(47) R-II(1)/54, dated 13, June, 1955 clarified as to what was "Selection Grade" in the following words:- "A question was raised whether for the purpose of F.R. 30 appointment to the Selection Grade of cadre involves the assumption of duties and responsibilities of greater importance than those attaching to posts in the ordinary grade of that cadre. The position of ordinary grade and the Selection Grade are two grades of one and the same post. Promotion of a person from the ordinary grade to the Selection Grade does not mean a change of posts and consequently does not involve assumption of duties and responsibility of greater importance for the purpose of F.R.30."
9. That grant of "Selection Grade" is a promotion and august Supreme Court of Pakistan in Abdul Matin Khan and 2 others v. N.W.F.P. Through Chief Secretary and 2 others (PLD 1993 SC 187) had held that change of grade to higher pay scale amounts to promotion.
10. Having found that grant of "Selection Grade" amounts to promotion, we are of the firm view that N.W.F.P. Services Tribunal had no jurisdiction and jurisdiction of this Court is not barred under Article 212(3) A of the Constitution of the Islamic Republic of Pakistan, 1973. In this view of the matter we have gained wisdom from Government of the Punjab through Secretary Service, Punjab, Lahore and 4 others (1991 SCMR 696). The august Supreme Court while dismissing the appeals filed before the Service Tribunal held:-- "In the circumstances, all the appeals are allowed. The decision of the Service Tribunal is set aside and it is held under the existing rules consistently practised that wherever there is a change of grade or post for the better, there is an element of selection involved that is promotion and it is not earned automatically, but under an Order of the competent authority to be passed after due consideration on the comparative suitability and the entitlement of those incompetent. Hence, the service appeals filed by the respondents before the Service Tribunal are dismissed with no order as to costs."
' Similarly while %relying upon the abovementioned judgment of the august Supreme Court of Pakistan in Abdul Matim Khan and 2 others v. N.W.F.P. Through Chief Secretary and 2 others (PLD 1993 SC 187) held:-- "The learned counsel for the appellant in Appeal No,183-P of 1990 tried to argue that the change of grade to higher pay scale does not amount to promotion. He wanted to rely on some circular in this behalf. However, when a recent judgment of this Court contrary to his submission was pointed out to him he could not pursue the point any further. It is Government of the Punjab v. Muhammad Awais Shahid (1991 SCMR 696). On this ground alone the appeal of the Government No,184-P of 1990 merits to be allowed and it is ordered accordingly. The other Appeal No, 183-P of 1990 is dismissed. There shall be no order as to costs."
10. The same view was again taken by the august Supreme Court of Pakistan in C.P. No, 262-P of 1990 (Fakhre Alam and another v. Khawaja Muhammad and 5 others) and C.P. No,263-P of 1990 (Fakhre Alam and another v. Mutabar Khan and 5 others) decided on 15-12-1992 and it was held:-- "After making some reference to Pay Revision Rules of 1973 and 1977 it was also observed that the rules which specifically treated the grant of higher pay scale for the same or similar post which had been provided for a percentage of said post would amount to promotion was not retrospective in its application. But it was further added that as noticed in the earlier part of the said judgment, 'It has always been the rule and even if this provision did not exist, the interpretation would be no different'.
With the afore discussed verdict of the Supreme Court rendered in the case of Muhammad Awais Shahid which has by now been followed in several other judgments, when brought to the notice of the learned counsel for the respondents he could not resist the appeals any further. They are allowed and the impugned orders are set aside."
11. It is on record that meeting of Council of Common Interests was held at Rawalpindi on 7-9-1975 and while approving the recommendations of the Agriculture Enquiry Committee Report it was decided that Animal Husbandry Graduates and the Agriculture, Forest Graduates and Soil Chemists should be treated at par with the Professional Graduates such as Doctors and Engineers for the purpose of pay and prospects of promotion. While implementing the said decision Government of N.-W.F.P. Finance Department vide Memo. No,FD (PRC) (1)/96 dated 15-9-1996 placed 33% of posts Veterinary Doctors from BPS-17 to BPS-18 "Selection Grade" with immediate effect. Though the decision of Council of Common Interests dated 7-9-1975 was implemented for the Veterinary Doctors working in BPS-17 and BPS-18 and they were given 33% posts in "Selection Grade" but the same decision was not made applicable to the Agriculture Graduates who were to be treated at par with the professional Graduates such as Doctors and Engineers. Therefore, the officials of the Agriculture Extension Department who were Agriculture Graduates were discriminated.
12. The Government of N.-W.F.P. After consultation with the Federal Government vide Memo.
No,FD(PRC)1-1/96/97, dated 9-10-1997 issued instructions/directions to all the concerned Departments for grant of Selection Grade/senior scale. The said instructions/directions are reproduced hereunder for convenience:-- "No,FD(PRC)1-1/96-97 Government of N-W.F.P. Finance Department.
' From: The Secretary To Government of N.-W.F.P., Finance ' Department.
' Dated Peshawar the 9-10-1997.
' To 1-11 All concerned.
' Subject: Award of Selection Grade in Different Cadres.
' Sir, ' I am directed to refer to the subject noted above and to say- that it has been decided in consultation with the Federal Government as well as the. Services and General Administration Department to lay down the following conditions for grant of Selection Grade/Senior Scale:--
(a) Selection Grade may be granted on the basis of Seniority-cum-fitness.
(b) The official to whom Selection Grade is proposed to be granted must have successfully completed his probationary period and must possess the following length of service in his existing pay scales. {{TABLE}}
(1) For grant of Selection As prescribed for Grade in BPS-18 and promotion to these pay above.
Scales.
(ii) For grant of Selection Three years service in Grade in BPS-17 and the existing Pay Scales below.
Of the post. {{TABLE}} ' Your Obedient Servant (Sd.)
(Muhammad Sultan)
' Additional Finance Secretary-V ' Endst. No,FD(PRC)1-1/96-97 Copy for information to:-1-3 All concerned (Sd.)
(Sultan Mehmood Khattak)
Deputy Secretary (Regulation)
Endst. No,FD(PRC)1-1/96-97 Copy forwarded to:-1-6 All concerned (Sd.)
(Muhammad Khan)
' Section Officer (SR-I)"
' As per the aforequoted letter all those officials having the requisite length of service and those who were fit were entitled to grant of "Selection Grade". The petitioners who have completed more than 18 years of their services were fit and were entitled as per the said memo. For grant of "Selection Grade", and the learned Advocate-General was unable to show any reason as to why the instructions/directions of the Government of N.W.F.P. Contained in memo. Dated 9-10-1997 were not made applicable in the case of petitioners, when the officials of Health, C&W, Irrigation, Education and all other Departments of Provincial Government were granted the benefit of said memo. (dated 9-1-1997). This also shows that the petitioners and all other Agriculture Graduates working in Agriculture Extension Department were not treated similarly with occupants of equivalent posts.
13. The judgments quoted by the learned Advocate-General are of no help to him because the same are not applicable to the case in hand being irrelevant.
' Keeping in view the above discussion, we accept the writ petition in hand and direct the respondents to consider the petitioners for grant of "Selection Grade". The needful be done within a period of two months. Parties shall bear their own costs.