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W.P. No.3851-2014
FORM NO.HCJD/C
JUDGMENT SHEET
IN THE ISLAMABAD HIGH COURT,
ISLAMABAD
CASE NO. : W.P. NO.3851-2014
Khalid Safdar
Vs.
The Secretary, Ministry of Finance, Government of Pakistan,
Islamabad
Petitioner by : Mr.M. Shoaib Shaheen, Advocate
Respondent by : Mr. Jahangir Khan Jadoon, Standing
Counsel with Nadeem Arshad, SO
(Legal), Ministry of Finance.
Date of hearing : 07.11.2014
NOOR-UL-HAQ N. QURESHI J. Through the present
writ petition by invoking writ jurisdiction, the petitioner seeks
following prayer: -
“Under the above mentioned circumstances and
facts, it is respectfully prayed that the writ petition
may kindly be accepted and operation of Office
Memorandum issued by the Finance Division
(Litigation Wing) vide their OM F.No.4(5)-R-14/2012
dated 25th July, 2014 may be suspended till final
decision of the case and the status of grant of BPS-
18 and BPS-19 to the Private Secretaries may be
changed to that of ‘promoted’ as already directed
by this Honourable Court”
2. Brief facts leading towards the disposal of this writ
petition are that the petitioner is serving as Senior Private
Secretary BPS-19 in the Federal Board of Revenue, Islamabad
bearing more than 25-years of reputable service. He was
granted BPS-19 with nomenclature of Senior Private Secretary
in the light of Office Memorandum dated 23.12.2011 issued by
the Finance Division with the concurrence of the Prime
Minister of Pakistan, whereby the posts of Stenotypists,
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Stenographers & Private Secretaries were upgraded with
immediate effect subject to fulfillment of the certain
conditions. As the petitioner fulfilled such conditions,
therefore he was granted BPS-19. Later on, after a period of
three years, impugned Office Memorandum dated 25.07.2014
was issued by treating the status of Senior Private Secretaries
(BPS-19) at par with move over, which was being granted on
completing certain length of service prior to 01.12.2001. For
this reason, Senior Private Secretaries (BPS-19) were held not
to be entitled to any change in Rental Ceiling/House Rent
Allowance. For convenience, the impugned Office
Memorandum is reproduced herein below: -
“The undersigned is directed to refer to the above
subject and to say that a number of queries are being
received from various quarters regarding rental ceiling
for hiring of residential accommodation to Private
Secretaries BP-19 with a nomenclature of Senior Private
Secretary.
2. It is clarified that grant of the higher time scale i.e.
BS-18/19 to the Private Secretaries (BS-17) is not
construed to be a promotion to the post carrying higher
pay scale but the higher time scale is treated to be an
extension of the post of Private Secretary (BS-17). The
substantive pay scale of the Private Secretary remains
BPS-17 even after grant of higher time i.e. BPS-18/19. In
fact, with reference to its status, the grant of higher time
scale on completing certain length of service should be
treated at par with move-over, used to be admissible
prior to 01.12.2001. The employees allowed move-over
were not entitled to any change in Rental Ceiling/House
Rent Allowance as clarified by Finance Division’s OM
No.F.1(7) R-3/85 dated 1st August, 1994 (copy enclosed)”
The petitioner’s prayer with regard to grant of status as
‘promoted’ from BPS-18 to BPS-19 is based upon the judgment
dated 17.04.2014 passed in W.P. No.2362/2008, 1408/2013,
1484/2013 & Crl. Org. Nos.147-W-2011 & 317-W-2012 by this
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Court, wherein it was directed to make necessary corrections
in the Notification regarding upgradation of the petitioners in
BPS-18 and BPS-19 by using the words ‘promoted’ instead of
‘placed in’ to save them from financial loss as well as loss of
pre-mature increments.
3. Learned counsel for the petitioner has argued that
impugned Office Memorandum dated 25.07.2014 is against the
law and facts of the case, which is liable to be declared as null
and void. It is contended that impugned Office Memorandum
has infringed the fundamental rights of the petitioner and has
caused irreparable loss in lieu of hiring of residential
accommodation viz-a-viz other officers of BS-19 of all other
cadres who are enjoying the hiring facility as per entitlement of
above Scale. The difficulty for the petitioner is that residential
accommodation was got hired by him as per covered area
according to BPS-19 and agreement was executed in this
behalf, but now, at this belated stage, he will suffer from
financial loss as well as deprivation of status in consequence
of issuance of impugned Office Memorandum. The impugned
Office Memorandum has been issued treating grant of BPS-19
to the Private Secretaries as move-over, which is ridiculous, as
policy of move-over stood discontinued since the year 2001.
Moreover, according to Office Memorandum dated 23.12.2011,
the word ‘Upgradation’ has been used for Stenotypists,
Stenographers and Private Secretaries, which means that
after fulfillment of criteria mentioned in the above Office
Memorandum, the incumbents shall be granted BPS-19 with
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nomenclature of Senior Private Secretary. Therefore, there
exists no relation between grant of BPS-19 to the Private
Secretaries and the policy of move over. It is further
contended that in response to the Finance Division’s OM dated
22.09.2014, the Established Division has cleared the clouds of
doubt over the issue in hand by replying the above Office
Memorandum through letter dated 24.09.2014 that the grant of
higher scale and denial of allowances of the higher scale to the
incumbents, prima facie, is discriminatory in nature and goes
against the canons of justice. Therefore, the view held by the
Establishment Division was that the Finance Division may
review its policy and allow the grant of rental ceiling/other
allowances of higher posts to the incumbents as the existing
policy of the Finance Division is legally defective and cannot
be endorsed by this Division. It is next argued that impugned
Office Memorandum has been issued after delay of about three
years from the date of issuance of Notification dated
23.12.2011, which highlights the discriminatory treatment viz-
a-viz fringe benefits allowed to various officers of different
cadres on grant of BPS-19 from BPS-18. Moreover, the
Finance Division has itself used different words at various
forums mystifying the status of grant of BS-18 & BS-19 to the
Private Secretaries. It is further argued that nowhere in the
Notification dated 23.12.2011, the word ‘time scale’ has been
used, but Finance Division as an afterthought, has created
difficulties for the petitioner and others by issuing impugned
Office Memorandum. In furtherance of his arguments, it is
contended by the learned counsel that the petitioner may be
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W.P. No.3851-2014
given the same relief as was given earlier in above mentioned
writ petitions by using the words ‘promoted’ to save him from
financial loss as well as loss of premature increment.
4. On the other hand, learned Standing Counsel assisted by
the representative of respondent has vehemently opposed the
relief sought by the petitioner. It is contended that grant of BS-
18/19 to Private Secretaries (BPS-17) is not promotion in terms
of Section 9 (I) of the Civil Servants Act, 1973, but a financial
benefit of higher scale. It is argued that on receiving queries
from different quarters, it was considered appropriate to
clarify the position through impugned Office Memorandum
dated 25.07.2014. It is contended that Finance Division has
wrote a letter to Establishment Division stating that the stance
taken by it through above mentioned Office Memorandum
dated 24.09.2014 is negation of their own comments/opinion
which was requested to be rectified. It is further argued that
through various Office Memorandums, the Establishment
Division had earlier observed that the grant of higher time
scale is not a promotion in terms of Section 9(1) of the Civil
Servants Act, 1973 and does not involve upgradation of posts.
It is further contended that there is no similarity of petitioner’s
case with the cases of Maula Bux Chandio & Imdad Hussain
Malik as referred to by the learned counsel for the petitioner,
because National Assembly is an autonomous body and it has
its own service rules regarding terms and conditions of
services of its employees, therefore, the status of petitioner
cannot be compared with status of employees of National
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Assembly in view of the prevailing recruitment rules of Federal
Government. With reference to the status of Senior Private
Secretary, it has been argued that the grant of higher time
scale on completing certain length of service should be
treated at par with move over used to be admissible prior to
01.12.2001, therefore, the employees who were allowed move
over were not entitled to any change in rental ceiling/house
rent allowance as clarified by Finance Division’s OM dated
01.08.1994.
5. Arguments heard & Record perused.
6. From perusal of record, it is evident that the posts of
Stenotypists, Stenographers and Private Secretaries were
upgraded vide Office Memorandum dated 23.12.2011 issued
by the Finance Division. This Office Memorandum clearly
shows that upgradation of above posts was made after
approval of the Prime Minister of Pakistan. In the said Office
Memorandum, there is no mention that the upgradation was
just like a move over or it was to be regarded as move over.
The impugned Office Memorandum dated 25.07.2014 has been
issued by the Finance Division at their own without obtaining
any approval from the Prime Minister of Pakistan. Moreover,
no consultation with the Establishment Division appears to
have been made as apparent from impugned Office
Memorandum. Another, not unrelated feature of this case to
which this Court attached considerable importance is that
impugned Office Memorandum has been issued after lapse of
a considerable period of two years and ten months and during
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W.P. No.3851-2014
this period, no action was taken by the Finance Division. It has
not been explained that why the Finance Division kept mum for
such a long time. It is also necessary to point out here that
during this period, number of Senior Private Secretaries by
taking advantage of BPS-19 got hired the residential
accommodations according to the entitlement of BPS-19 and
now when rent agreements have been executed in this behalf
and payments have been made/received, suddenly the Finance
Division has awakened from slumber and has issued the
impugned Office Memorandum without giving any genuine
reason. This action on the part of respondent No.1 is clearly
anomalous.
7. It is also noticed that though posts of Stenotypists,
Stenographers & Private Secretaries have been upgraded
simultaneously through Office Memorandum dated 23.12.2011,
but clarification made through impugned Office Memorandum
that there will be change in Rental Ceiling/House Rent
Allowance is only to the extent of Senior Private Secretaries
which clearly smacks malafide on the part of respondent No.1,
who has not explained that why other categories have been
excluded. For this obvious reason, action taken by respondent
No.1 amounts to discrimination.
8. In para-4 of facts to the written comments submitted by
respondent No.1., it has been mentioned that posts of Private
Secretaries have not been upgraded rather they have been
granted senior scale on completion of prescribed length of
service. A bare perusal of Office Memorandum dated
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23.12.2011 whereby above posts were upgraded reveals that
there is not a single word regarding grant of time scale, rather
the word ‘Upgradation’ has been specifically used for the
above posts.
9. Another interesting point which cannot be lost sight is
that in prayer clause of para-wise comments submitted by
respondent No.1, it is mentioned that after filing of instant writ
petition, Finance Division has referred the matter to the
Establishment Division for views/comments on 22.09.2014. It
would not be out of place to mention that in response to letter
dated 22.09.2014, Establish Division has issued letter dated
24.09.2014. Although, comments were submitted by
respondent No.1 on 14.10.2014 yet letter dated 24.09.2014 has
not been submitted with the same by respondent No.1
deliberately with malafide intention. Therefore, the petitioner
had to submit this letter as additional document through CM
No.5299/2014, which was allowed on 05.11.2014. On the said
date, representative of respondent No.1 sought time to verify
the said letter, but today, nothing has been explained in this
regard, rather along with report, a copy of letter F.No.9(24)R-
I/2014-379 dated 05.11.2014 issued by the Finance Division to
the Establishment Division has been attached, which shows
that instead of verifying the above said letter dated 24.09.2014
as directed by this Court, respondent No.1 has asked to rectify
the said letter dated 24.09.2014, which shows that direction
issued by this Court has not been complied with. It also shows
that respondent No.1 has admitted the genuineness of said
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letter dated 24.09.2014. In Office Memorandum dated
24.09.2014, Established Division clearly alleged that grant of
higher scale and denial of allowances of the higher scale to the
incumbents, prima facie, is discriminatory in nature and goes
against canons of justice. It was advised by the Establishment
Division therein that the Finance Division may review its policy
and allow the grant of rental ceiling/other allowances of higher
posts to the incumbents, as the existing policy of the Finance
Division is legally defective and cannot be endorsed by the
Establishment Division. This OM sufficiently proves stance
taken by the petitioner.
10. It is also observed that to issue such like letters
(impugned Office Memorandum) is the authority of
Establishment Division. Had respondent No.1 any authority to
issue impugned letter then why it sought clarification from the
Establishment Division after issuance of impugned Office
Memorandum. It shows the malafide attitude of respondent
No.1. In this regard, I would like to refer Rule 11 of Rules of
Business, 1973, which is regarding Consultation with the
Establishment Division. This Rule says as under:-
11. Consultation with the Establishment Division.—
No Division shall, without previous consultation
with the Establishment Division, issue, or authorize the
issue of, any orders, other than orders in pursuance of
any general or special delegation made by the
Establishment Division, which involve—
a) --------
b) --------
c) --------
d) a change in terms and conditions of service of Federal
civil servants.
e) a change in the statutory rights and privileges of any
Federal Government servant”.
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From the above rule it is copiously clear that the authority to
issue the impugned Office Memorandum dated 25.07.2014 lies
with Establishment Division and respondent No.1 had no
authority to issue impugned Office Memorandum.
11. It is axiomatic of law that “A communi observantia non
est’ recedendum” (where a thing was provided to be done in a
particular manner it had to be done in that manner and if not so
done, same would not be lawful). So, it is observed that before
issuance of impugned Office Memorandum dated 25.07.2014
without prior consultation/concurrence from the
Establishment Division, respondent No.1 has committed a
serious illegality, so the same is also ineffective upon the
rights of Private Secretaries, who have been or going to get
benefit of Office Memorandum dated 23.12.2011. On the basis
of obstructive document, a right occurred in favour of
beneficiaries after approval of the Prime Minister of Pakistan
cannot be snatched away.
12. From all above, the Hon’ble Supreme Court of Pakistan in
an unreported case titled ‘Federation of Pakistan Vs.
Mahmood Javed Butt (Civil Appeal No.637 of 1998 decided on
28.01.2002) has observed that upgradation amounts to
promotion. Relevant portion of the said judgment is
reproduced as under for reference:-
“After careful consideration of all the facts of the case we are of the
view that although upgradation has been described as placement
but in fact it amounts to promotion because all the criteria for the
same as laid down by law has been fully dealt with”
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13. For what has been discussed above, it is held that impugned Office
Memorandum dated 25.07.2014 has no value in the eye of law. So, the
same is set aside. Consequently, upgradation of Private Secretaries as
Senior Private Secretaries made through Office Memorandum dated
23.12.2011 will be considered as promotion to save them from financial loss
as well as loss of premature increments.
14. With above observations, instant writ petition stands disposed of.
(NOOR-UL-HAQ N. QURESHI)
JUDGE
Approved for Reporting.
JUDGE
Zawar
Uploaded By: Zulqarnain Shah
