PLJ 2013 Islamabad
Present: Iqbal Hameed-ur-Rahman, C.J.
MUHAMMAD
GHAFOOR--Petitioner
versus
MINISTRY OF
RAILWAY through its Secretary/Chairman,
etc.--Respondents
W.P. No. 3216 of
2011, heard on 29.5.2012.
Constitution of Pakistan
----Arts. 199
& 212--Constitutional petition--Promotion on acting charge basis--Not
entitled for move over--Principle of laches as civil
servant had been retired from service--Issue involved in writ petition relates
to terms and conditions of service--Validity--Petitioner prayed for grant of
move-over, as such prayer made through writ petition relates to enforcement of
terms and conditions of service of petitioner--By virtue of Art. 212 of
Constitution, petitioner could not invoke constitutional jurisdiction of High
Court u/Art. 199 of Constitution, hence, petition was not maintainable. [P. 229] A
1997
SCMR 1730 rel.
Mr. Ghulam Rasool Bhatti,
Advocate for Petitioner.
Mr. Tajammal Hussain, Advocate for
Respondents.
Date of hearing:
29.5.2012.
Judgment
Through the
instant constitutional petition under Article-199 of the Constitution of the
Islamic Republic of Pakistan, 1973, the petitioner has made the following
prayers:--
"It is,
respectfully prayed that the instant writ petition may kindly be accepted and
the respondents may graciously be directed to grant the move-over from BPS-17
to BPS-18 as given to the other officers of Pakistan Railway namely Fazal Karim, Assistant Signal
Engineer & Muhammad Anwar Assistant Work Manager having the same status w.e.f. 01-12-1991 to 26-12-1995 and the back benefits of
the said move-over may also be calculated for the purpose of pensionary benefits and directions for the payment of all
the back benefits may also be given to the respondents.
It is further
prayed that the last pay drawn by the petitioner may kindly be revised and the pensionary benefits of the petitioner be re-calculated and
the same be paid to him alongwith all back
benefits."
2. The petitioner, in the writ petition has
alleged that he served Pakistan Railway for about 39 years in different
positions and had retired as Mechanical Engineer w.e.f.
26-12-1995 vide letter dated 24.12.1995. The petitioner was appointed on
01-10-1955 in the respondent department as apparatus and due to his excellent
performance he was promoted as Foreman Grade-III, BPS-16 in April, 1976 and
thereafter, was promoted as Assistant Mechanical Engineer on acting charge
basis in Rawalpindi Division in BPS-17 w.e.f.
27-04-1985 vide letter dated 01-12-1986. Thereafter, upon the approval of the
Departmental Promotion Committee, the petitioner was promoted to BPS-17 on
acting charge basis w.e.f. 27-04-1986 vide letter
dated 31-01-1987. The petitioner has alleged that he was at the maximum stage
of BPS-17 by way of move-over but he was deprived from his legitimate right of
move-over in BS-18 since 01-12-1992, hence, the instant writ petition.
3. In response to the notice issued to the
respondents, written comments have been filed by the respondents.
4. Learned counsel for the petitioner has argued
that the petitioner was entitled for move-over in BPS-18, as he was working in
BPS-17, on acting charge basis, whereas, the respondents have adopted
discriminatory attitude towards the petitioner, as the benefit of move-over was
extended to a number of colleagues of the petitioner.
5. Conversely, learned counsel for the
respondents has argued that the issue involved in the instant writ petition
relates to the terms and conditions of service of the petitioner, hence, the
petitioner could not invoke the constitutional jurisdiction of this Court in
view of the bar contained under Article 212 of the Constitution of the Islamic
Republic of Pakistan, 1973; that the petitioner was promoted on acting charge
basis against the post of BPS-17, hence, he is/was not entitled for move-over
to BPS-18 and the writ petition is hit by principle of laches
as the petitioner was retired from service in 1995, whereas, the instant writ
petition was filed in the year 2011.
6. I have heard the learned counsel for the
petitioner as well as learned counsel for the respondents and perused the
documents appended with the instant writ petition.
7. The petitioner through the instant writ
petition has prayed for grant of move-over from BPS-17 to BPS-18, as such, the
prayer made through the instant writ petition relates to the enforcement of the
terms and conditions of service of the petitioner. By virtue of Article-212 of
the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner
could not invoke the constitutional jurisdiction of this Court under
Article-199 of the Constitution of the Islamic Republic of Pakistan, 1973, hence, the instant writ petition is not maintainable.
It would also not be out of place to mention here that the Hon'ble
Supreme Court of Pakistan in the judgment reported as Pakistan Railways through
G.M. Lahore and another v. Zafarullah, Assistant
Electrical Engineer and others (1997 SCMR 1730) has held that:--
"Move-over---Essential
condition---Guidelines for considering cases of move-over of employees-Appointment
of civil servant on acting charge basis/current charge basis--Entitlement to
move-over to next grade-Appointment by way of acting charge or on current
charge basis being not of permanent nature but only stop-gap-arrangement; same
would not confer any vested right for regular promotion to that post and such
appointment would not amount to a regular appointment against the post or
cadre, or confer any right to claim seniority or move-over--One of the
essential conditions for grant of move-over is that the persons concerned must
be a regular member of the service, cadre or post concerned." Underlining
is mine.
8. In view of what has been discussed above, I
feel no force in the instant writ petition. Resultantly, the same stands
dismissed.
(R.A.) Petition
dismissed
