Can a grade 9 post convert in grade 16 in writ petition.












 Khateeb Grade 9 post convert into Grade 16



  • Writ petition main molna ne 30 dosre sathio ke sath kpk govt ke khalaf writ file ki.
  • Writ maib moqaf akhtiar kia gia ke خطیب ke uhda ko ju ke grade 9 ka hai us ko grade 16 main convert kia jaye.
  • petition as deciphered from the record are that the petitioners 
    were appointed by the Provincial Government against the 
    posts of Pesh-i.Imam in various departments in BPS-5 and 7 
    respectively. They were having the qualifications of Sanad 
    of Shahadat-ul-Almiya (equivalent to degree of M.S 
    Islamiyat/Arabic) from Madrasas registered with Wafaq-ulMadaris/Tanzimatul Wafaq-ul-Madaris. Petitioner No. 1 
  • Petitioners ne apni taleem batai ju ke MS ke barabar hai.
  • Hakoomat ne mamla upgradition committee ke samne rakha
  •  Petitioners (مولانا) ka moqaf yeh tha ke humari darkhasat ju upgradition committee ne reject kar di hai wo de wo ghalat or molna ke sath discrimination hai.
  • Kionke molna ki decree MA ke barabar haike
  • High Court ne mamle ko suna or buhat sari judgments ko quote kia or bilakhar writ petition dismiss kar di.
  • Yeh ke High Court ne qarar dia ke yeh mamla service tribunal ka hai.
  • Jiss ko High court main writ petition under section 199 constitution main challange nahi kia ja sakta.



Judgement of High Court.

t
IN THE PESHAWAR HIGH COURT, PESHAWAR
JUDICIAL DEPARTMENT
 
 
Writ Petition No. 1990-P/2013. 
 Maulana Ihsan-ul-Hadi etc Versus Government of 
Khyber Pakhtunkhwa through Chief Secretary, Civil 
Secretariat, Peshawar. 
 
 Date of hearing …….30.10.2014 
JUDGMENT 
Petitioner(s). By Mr__________________________________________ 
 
Respondent (s) By Mr.________________________________________ 
 
************ 
SYED AFSAR SHAH, J.- Through the instant Writ Petition, 
under article 199 of the Constitution of Islamic Republic of 
Pakistan, 1973, Maulana Ihsan-ul-Hadi and thirty others the 
petitioners, seek indulgence of this Court for issuance of an 
appropriate writ directing the respondents to consider their 
 2
case for upgradation of the post of Pesh-i.Imam/Khatib from 
BPS-9 to BPS-16. 
2. Facts leading to the filing of the instant 
petition as deciphered from the record are that the petitioners 
were appointed by the Provincial Government against the 
posts of Pesh-i.Imam in various departments in BPS-5 and 7 
respectively. They were having the qualifications of Sanad 
of Shahadat-ul-Almiya (equivalent to degree of M.S 
Islamiyat/Arabic) from Madrasas registered with Wafaq-ulMadaris/Tanzimatul Wafaq-ul-Madaris. Petitioner No. 1 
being the president of Association of Pesh-i-Imam moved an 
application to the respondent No.1 for upgradation of their 
post to BPS-16, whereupon a meeting of all the Departments
were called upon and a decision was taken to the effect that 
case of the petitioners for upgradation to BPS-16 be placed 
 3
before the upgradation committee constituted by the 
Provincial Government for consideration. In pursuance of
the meeting conducted by the upgradation committee on 
14.3.2013, the following decisions were made:- 
 “ (i) Those incumbents who are in 
possession of minimum educational 
qualification of Shadat-ul-Alia or equivalent 
may be upgraded to BS-12 irrespective of the 
length of their service. 
 (ii) The incumbents who are in possession 
of minimum educational qualification of 
Shadat-ul-Khasa or equivalent may be 
upgraded to BS-10 irrespective of the length 
of service. 
 (iii) The Pesh-e-Imam of those Mosques 
where only two or three times (Juma/Zuhr, 
Asar and Maghrib) prayers are regularly 
performed and who are clothed with 
minimum qualification of Shahadat-ul-Alia 
or equivalent (Preference for proficiency in 
4
Qirat & Hifz-i-Quran) may be upgraded to 
BS-10. 
 (iv) On the analogy of the Auqaf & 
Religious Affairs Department fresh 
appointment as Imam Masjid/Pesh 
Imam/Khateeb having a Sanad either in 
Dars-e-NIzami or a Sanad of Fazil-i-Arabi 
may be made in BPS-12, in all the 
Government Masajid, where regular 
Eidain/Jumma/Five times prayer are 
performed. 
 However, the Administrative 
Departments, where the posts of Pesh-eImam/Imam Masjid/Khateeb exist, are 
required to take up the case separately with 
the Finance Department for upgradation of 
their respective posts alongwith the 
following information to the Finance 
Department. 
(i)
Complete details in respect of these 
posts i.e. nomenclature, total sanctioned 
strength alongwith BPS and qualification of 
 5
the existing incumbents will be provided by 
the Administrative Department. 
(ii) A statement showing the details of 
those incumbents who are having the above 
criteria for BS-10 and BS-12 may also be 
attached with the above information.” 
 Since the above decision aggravated the 
grievances of the petitioners, therefore, they filed the instant 
petition on the ground that the impugned decision of the 
upgradation committee is discriminatory as the petitioners 
are in possession of a degree/sanad of Shahadat-ul-Almiya 
which is equivalent to M/A Islamiyat/Arabic and the 
respondents while granting BPS-12 to the petitioners have 
only considered the qualification of Shahadat-ul-Alia which
is equivalent to B.A. 
3. The learned counsel for the petitioners 
emphasized that the petitioners have been appointed against 
6
the post of Pesh-i-Imam and since their respective 
appointment, they are performing their duties with zeal and
zest but without any proper service structure. He further 
argued that the petitioners are serving in dead cadre having
no window of promotion to the higher post/upper scale. He
went on to say that the post of Pesh-i-Imam is also not 
transferable to any other post in higher pay scale, therefore 
the petitioners lacking chance of elevation to the higher rank. 
He maitnained that the senior Arabic teacher/ theology 
teacher in Elementary and Secondary Education Department 
possessing the same qualification have been placed in BPS-
16. Similarly, the Pesh-i-Imam performing duties in Pakistan 
Tele Communication, Limited and WAPDA Department are 
getting their perks and privileges in BPS-15 but the 
petitioners have been discriminated only for the reason that 
 87
their services are confined to the mosques for two time 
prayers, learned counsel for the petitioners further added. 
Developing his arguments, learned counsel for the 
petitioners urged that the petitioners having equal status to 
the above referred employees of PTCL and WAPDA 
Departments, therefore, the grade, perks and privileges 
allowed to the official of the above said departments should 
also be extended to the petitioners in view of the equivalence 
of their duties and responsibilities. 
4. Conversely, the learned A.A.G vehemently 
argued that the upgradation of the post and consequent 
increase in the emolument is a question relating to the terms 
and conditions of service which is amenable to the 
jurisdiction of Service Tribunal, constituted under the 
Constitution of Islamic Republic of Pakistan for dealing with 
the matters of Civil Service pertaining to the terms and 
conditions of employee, therefore, the relief claimed by the 
petitioners is not a fit subject for adjudication by the High 
Court in exercise of its constitutional jurisdiction, as it is 
exclusively barred under Article 212 of the Constitution of 
Islamic Republic of Pakistan 1973. While buttering his 
arguments, the learned A.A.G emphasized that upgradation 
committee constituted by the Provincial Government has 
properly considered the case of petitioners and has 
recommended the upgradation according to their job 
description and so far the post of Arabic Teacher and 
employee of PTCL and WAPDA are concerned, they are 
governed by their own rules and regulations, thus, the case 
of petitioners is not analogous in any respect to the referred 
case, therefore, does not fall in the ambit of discrimination.
 9
Lastly he argued that creation and upgradation of the post,
revision of pay scale and such like matters lie purely in 
executive domain and the courts of law always refrain itself
to interfere in it. 
5. Having heard learned counsel for the parties, 
perusal of record would reveal that the petitioners are 
working in different departments of Provincial Government 
and performing their duties as Pesh-i-Imam/Khatib in 
different mosques. Their appointments have been made 
under the Khyber Pakhtunkhwa Appointment Promotion and 
Transfer Rules 1989 and undisputedly they are having the 
status of Civil Servant, therefore, before adhering to the 
merit of the case we would like to attend the objection raised
by learned A.A.G regarding maintainability of the instant 
Writ Petition. 
 10
 In the given circumstances, it will be more 
appropriate to determine as to whether upgradation of a post
or change in the scale of pay would fall under terms and 
conditions of service? Admittedly, the petitioners are civil 
servants, performing their duties in different cadre and 
seeking upgradation of their post to BPS-16. It is undeniable 
fact that the change of grade must change the scale of pay of 
the petitioners, wherein obviously the element of the 
selection would be involved like promotion and order of 
competent authority would be required to be passed for 
revision of pay and consideration of the comparative 
suitability and entitlement of the incumbent. In the lateral 
sense the upgradation means “rate higher or raise in value or 
esteem or give a promotion to or appointment to a higher 
position or an upward slope or grade. Under the service law, 
11
the expression “Upgradation” has been understood in wider 
sense and assign a meaning of elevation and rising to a 
higher grade or pay scale. Similarly in ordinary parlance the
term “promotion” is frequently used in cases involving 
service law which may be understood to mean “moving 
upwards and leaving the original pedestrian”. A person 
already holding a position would have promotion if his 
position is upgraded to a higher post with higher pay scale.
The difference between promotion and upgradation is that 
when incumbent is placed in a higher pay scale with a 
change in the designation with an additional qualification 
and change in the nomenclature, responsibility and duties 
shall be regarded as promotion, but where the post is placed 
in higher scale of pay with or without change in designation
without requirement of any new qualification for holding the 
 12
post in the higher grade, not specified in the recruitment 
rules for the existing post, and without involving change in 
the responsibility and duties may be treated as upgradation. 
Needless to mention that in both the cases i.e. promotion and
upgradation, the incumbent must be placed in higher scale of 
pay and the element of suitability, eligibility must be 
involved. The promotion is always granted to an employee 
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. The general 
purport of this clarification, it appears that when the post is
placed in higher scale of pay with or without change in 
designation without requirement of any qualification and 
14 13
without involving any change in the responsibility and 
duties, even then such placement must be treated as 
promotion to higher grade and pay scale because the grant of 
upgradation of an employee must enhance his pay and such
category of improvement can only be dealt with under the 
head of promotion. It is settled law that whenever there is a 
change of grade or post for better, there would be an element 
of selection i.e. promotion and it must be through a process
of scrutiny. From the above discussion, it is clear than 
crystal that grant of selection grade, upgradation and 
promotion to higher pay scale relates to terms and conditions
of service and in view of the explicit bar under article 212 of 
the Constitution of Islamic Republic of Pakistan, 1973, the 
Service Tribunal possess the exclusive jurisdiction to 
determine such question. Any change in the pay scale of the
employee shall bring his case within the ambit of terms and 
conditions of service. In this respect, reliance may be placed 
on the judgment of Hon’ble Supreme Court of Pakistan 
rendered in case titled “Government of the Punjab though 
Secretary Services, Punjab, Lahore and 14 others Vs 
Muhammad Awais Shahid and 4 others” (1991 SCMR-
696) wherein it was ruled that whenever, there is a change of 
grade or post for the better, there is element of selection 
involved i.e. promotion and it is not automatically. Similar 
view was followed by the Lahore High Court in case titled 
“Muhammad Saeed Ahmad Vs Secretary to Government 
of Punjab Health Department and others” (2013 PLC 
(C.S)- 538.
6. In matter of upgradation, numerous cases may 
be quoted wherein the aggrieved person (s)/civil servant (s) 
 15
have approached the Service Tribunal for redressal of their 
grievances pertaining to upgradation of post. In some of the 
cases, the decision of respective Tribunals have been 
brought before the August Supreme Court of Pakistan which 
has got approbation. In case titled “Sajjad Hussain Kazmi 
VS Secretary, Establishment Division, Government of 
Pakistan, Islamabad and 2 others” 1998 PLC (C.S) 1463, 
the then appellant filed an appeal before the Service Tribunal 
on the ground that he had been upgraded from BPS-13 to
BPS-16 by the then Respondent department but later on a 
corrigendum was issued whereby the earlier notification of 
upgradation was cancelled. His appeal before the Federal 
Service Tribunal, Camp Office Lahore was dismissed on 
merit, against which leave to appeal was granted by the 
 16
August Supreme Court of Pakistan and was finally decided 
on 2nd June 1998 in the following words: 
 “Keeping in view the stand taken by 
the respondents through Mr.Shahid 
Saeed , Advocate Supreme Court that 
the appellant has not been denied the 
status of Class-II Officer, the effect of 
Corrigendum, dated 28.3.1991 was 
simply to cancel the earlier Gazette 
Notification dated 18.3.1990 for the 
reason that it did not qualify for being 
published in the Official Gazette and 
that appellant’s pay, allowances and 
pension etc. as also his seniorityposition has not been adversely 
affected, we are inclined to dismiss 
this appeal with the observation that 
the appellant shall continue enjoying 
the status of Class-II Officer, as 
heretofore. Order accordingly. No 
cost.” 
17
7. In the case of “Mukhtar Ahmad Siddiqui 
Vs Secretary to Government of Pakistan, Ministry of 
Finance, Islamabad and others” 2001 SCMR 923, the 
Civil Servant approached the Federal Service Tribunal for 
issuance direction to the Department to upgrade him to the 
post of BPS-17 w.e.f March 1972 with all consequential 
benefits, however, the Federal Service Tribunal after hearing 
the arguments of the parties, dismissed the appeal holding it 
as time barred and the petition for leave to appeal against the 
judgment of Federal Service Tribunal was dismissed by the 
August Supreme Court of Pakistan on merit. Likewise Syed 
Nasim-ul-Haq brought an appeal before the Federal Service 
Tribunal on the ground that he being a civil servant fulfilled 
requisite qualification and conditions for his upgradation to 
BPS-17 on specified date, therefore, the department was 
 18
having no reason for denying him the upgradation and 
retrospective effect particularly when other incumbents of 
the posts were allowed upgradation from the specified date.
The grievance of the incumbent was redressed and his 
appeal was allowed by the Federal Service Tribunal in case 
titled “Syed Nasim-ul-Haq Naqvi Vs Secretary Ministry 
of Commerce, Islamabad and 4 others” (1992 PLC (C.S) 
195. In case titled “Kamal Uddin and 30 others vs 
Province of Punjab and others” (1986 PLC (C.S) 807, 
issue of upgradation of the Readers and Judgment Writers 
of High Court was decided by the Federal Service Tribunal. 
8. In the year 1995, the Government of Khyber 
Pakhtunkhwa was pleased to accord sanction as a special 
case to the upgradation of 113 posts of Librarian from BPS-
16 to BPS-17 to the employees whose names were 
 19
mentioned in the notification dated 20.6.1995. The other 
employees of the same department equipped with the similar 
qualification brought their grievance before the NWFP 
Service Tribunal (Now Khyber Pakhtunkhwa Service 
Tribunal) through Service Appeals which were allowed and
the Provincial Government was directed to upgrade the 
appellants to BPS-17. The above judgment was impugned by 
the Provincial Government by filing a petition for leave to 
appeal which was granted by august Supreme Court of 
Pakistan, in case titled “Government of NWFP etc Vs 
Muhammad Aslam Khan” C.A No. 172 of 1998 and other 
cases on the same subject matter, titled “Government of 
NWFP Vs Gul Aslam and others” (C.Ps No. 52 to 58-P of 
2003) were heard together. Ultimately all the referred cases 
were dismissed and judgment of Service Tribunal was 
 20
maintained. On analogy of the above referred cases, Bibi 
Musarrat, Shahid Ali and Nasir Khan filed Service Appeal 
No. 1114, 1115 and 1116 of 2006 respectively before the 
Khyber Pakhtunkhwa Service Tribunal, which were 
dismissed, however appeal before the August Supreme Court
of Pakistan, against the judgment of NWFP Service Tribunal 
Peshawar were allowed and the benefit of upgradation were 
allowed to the employees. 
9. From the above quoted judgments of Service 
Tribunal as well as of August Supreme Court of Pakistan 
one could reach to an irresistible conclusion that the matter
of upgradation of post to higher pay scale falls within the 
ambit of terms and condition of service and the Service 
Tribunal has the jurisdiction to decide the matter and 
jurisdiction of this court is barred under article 212 of the
 21
Constitution of Islamic Republic of Pakistan. By now it is 
more than settled that an order, even passed on the basis of 
malafide, Coram Non Judice or in violation of any rule, the 
same could only be challenged before the Service Tribunal 
because in such like matters, article 212 of the Constitution 
of Islamic Republic of Pakistan, 1973 places complete 
embargo on any other court, except the tribunal constituted 
for the purpose. 
10. Again, this Court while dealing with a similar 
controversy in Writ Petition No. 1210-P of 2013 , observed 
the following:- 
 “The issue in hand relates to “up 
gradation”, which in essence is 
“promotion” to a higher grade. Surely, 
the same falls within the “terms and 
conditions” of service, which under 
22
Article-212 of the Constitution, is the 
exclusive domain of Service Tribunal.” 
11. In view of the constitutional bar, and above all 
while deriving wisdom from the precedents cited in the 
preceding paras, this court has got no jurisdiction to entertain 
the instant petition which is dismissed being not 
maintainable. 
 JUDGE
 
JUDGE
 
Announced on 
30
th October, 2014 
*


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