Stereo. H C J D A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT LAHORE

RAWALPINDI BENCH, RAWALPINDI
JUDICIAL DEPARTMENT

Case No: ICA 117/2013.

Muhammad Azam. Versus Secretary, Special Education

Department, etc.
JUDGMENT

Date of hearing 07.04.2014.

Appellant by: Mr. Muhammad Ramzan Khan, Advocate.
Respondents by: Raja Muhammad Hameed, Assistant Advocate
General alongwith Muhammad Kashif Hayat,
Law Officer, Special Education Department,
Government of the Punjab.

Shahid Jamil Khan, J:- The instant Intra Court Appeal, as

well as, Intra Court Appeal No.118/2013 arise out of the order dated
08.12.2011 passed by the learned Single Judge of this Court in W. P.
No.173/2011. This order was firstly challenged in Civil Appeals No.
262 & 263 of 2012 before the august Supreme Court of Pakistan. The
Hon’ble Court vide order dated 20.09.2013 was pleased to treat the
Appeals as Intra Court Appeals (“ICAs”) and remanded the matter
back to the Lahore High Court, Rawalpindi Bench, Rawalpindi to
decide the ICAs on merits.

2. ICA No. 117/2013 is filed by the employee who was petitioner

in W. P. No.173/2011; whereas ICA No. 118/2013 is filed by the
Secretary, Special Education Department, Government of the Punjab,
who was respondent No.1 in the main petition.

3. Before proceeding further, the operative part of the order

impugned in both the appeals is re-produced hereunder to understand
the nature and prayer in both the appeals:-

“There is no doubt that the petitioner was initially

appointed as an adhoc employee by the respondent/
department. His term was extended from time to time. He
ICA No. 117/2013. 2

was offered employment on contract, vide offer of

appointment dated 25.7.2007 and his service was ultimately
regularized vide order dated 22.11.2007. He served the
respondent/department incessantly. His case is at par with
that of Sarfraz Ahmad and with the case of those
employees whose matter has been referred in Sarfraz
Ahmad’s case. The petitioner is held entitled to all back
benefits, allowances and funds etc. from the date of his
appointment as an adhoc employee. Regarding the placing
of the petitioner in BS-16, the prayer made in this petition
is turned down. The placement of the employees in various
scales is always subject to the possession of the
qualification and fulfillment of other conditions which the
petitioner lacks. This petition is partly accepted.”

4. The facts, necessary for deciding these appeals, are that

appellant/petitioner was appointed as Braille Teacher in Govt.
Qandeel Secondary School for blind at Rawalpindi on adhoc basis in
BS-11 vide order dated 12.12.1990. The service of the appellant/
petitioner was converted from adhoc to contract vide letter dated
25.07.2007 for five years in BS-11. The petitioner moved W. P.
No.2088/2007 in this Court and challenged the order dated 25.07.2007
for Appointment on Contract, being violative of letter dated
31.05.2007 by the Chief Minister. This Court vide order dated
28.09.2007 directed respondent No.1 to examine the representation of
the petitioner and decide the same within a period of 15-days. The
Directorate of Special Education, Government of the Punjab,
withdrew the offer letter dated 25.07.2007 and regularized the
appellant/petitioner vide order dated 22.11.2007 in BS-11 with
immediate effect i.e., 22.11.2007. The appellant/petitioner’s request
for grant BS-16 was declined vide letter dated 25.05.2010.

This order prompted the appellant/petitioner to file W. P. No.

173/2011, in which the order dated 25.05.2010, issued by the
Directorate of Special Education Government of the Punjab, was
assailed. It was prayed that the regularization with effect from
22.11.2007 was violative of the direction by the Chief Minister,
Punjab, as competent authority vide letter dated 31.05.2007 had
ICA No. 117/2013. 3

directed regularization of the appellant/petitioner services with effect

from 12.12.1990.

5. Learned Single Judge accepted the second part of the prayer i.e.
regularization with effect from 12.12.1990 relying on Sarfraz Ahmad
v. Government of Sindh, reported as Unclassified Cases (2007 UC 9)
as is evident from the re-produced part of the order in question.

6. Learned counsel for the appellant/petitioner argued that the

learned Judge in Chamber has erred in holding that the petitioner
lacked the qualification for up-gradation of the post to BS-16 from
BS-11. He has also urged that the learned Single Judge overlooked to
examine the case in view of the letter dated 01.04.1986 issued by the
Finance Department, Government of the Punjab regarding revision of
pay scales. He has mainly assailed the rejection of relief to the extent
of granting BS-16 to the appellant with effect from 12.12.1990.

7. Learned counsel for the appellant/respondent No.1 in ICA No.

118/2013 has assailed the order to the extent of relief granted and
argued that after being regularized the petitioner had attained the
status of a civil servant, therefore, the grievance regarding
regularization with effect from 12.12.1990 and up-gradation to BS-16
was to be challenged before the Punjab Service Tribunal in view of
Article 212 of the Constitution of the Islamic Republic of Pakistan,
1973, therefore, the petition was not maintainable. It was also argued
that by accepting the appointment, the petitioner was stopped by his
conduct and could not have claimed the regularization in BS-16.

8. Heard both the parties and record perused.

9. So far the ICA filed by the Secretary Education,

appellant/respondent No.1 is concerned, the objection regarding the
maintainability of the writ petition is not convincing for the reason
that the claim of regularization with effect from 12.12.1990 i.e., from
the date of assuming the post as adhoc employee and its regularization
in BS-16 relates to the Post Regularization Period. Therefore,
attaining status of a civil servant alone would not be sufficient to
ICA No. 117/2013. 4

attract the bar contained under Article 212 of the Constitution. This
finding is further strengthened by the order of the Hon’ble Apex Court
dated 20.09.2013, by which the appeals were converted into ICAs and
were remanded to this Court for decision. In opening paragraph of the
judgment, stating reasons for remanding the appeals, the Hon’ble
Apex Court has observed that there was no remedy of appeal/review/
revision available under the law. Relevant para from the judgment is
re-produced as under:-

“Admittedly, against the impugned judgment of the

learned High Court, remedy of an Intra Court Appeal
(ICA) was available to the appellants, as on account of
the relief claimed by the appellant in Civil Appeal
No.262/2012, on the basis of cause of action set out in his
writ petition there was no remedy of appeal/review/
revision etc. under the law, therefore, having not availed
the remedy of ICA by both the sides, the present appeals
are not competent.”

The objection of maintainability is, therefore, turned down.

10. After holding that the writ petition was maintainable against the
impugned order dated 25.05.2010, we may advert to the merits of the
claim/prayer of the appellant/petitioner whereby the request for grant
of BS-16 with effect from the date of appointment i.e., 12.12.1990
was turned down observing that it could not be acceded to because
BS-16 was granted to either selectees of the Punjab Public Service
Commission or by promotees on seniority-cum-fitness basis. It was
also observed that the higher grade could not be granted with
retrospective effect.

11. We are not convinced by the arguments of learned counsel for

the appellant/petitioner regarding grant of BS-16 with effect from
12.12.1990 i.e., date of appointment as adhoc employee. It is
important to note that the notification of revision of pay scales relied
upon by the appellant/petitioner is dated 01.04.1986, wherein the
qualification for BS-16 is written as B.A./B.Sc. It is important to note
that on the date of appointment as adhoc teacher when the notification
was in field, the appellant/petitioner accepted appointment in BS-11,
 ICA No. 117/2013. 5

despite the fact that he was having the qualification for appointment
against BS-16. In our considered view the regularization could only
be claimed against the post which was accepted by the
appellant/petitioner as adhoc employee. Claim of regularization in
BS-16 appears to be an afterthought. The appellant/petitioner,
therefore, has no right to claim regularization in BS-16. He is merely
pursuing his wish of being appointed in BS-16. After accepting
appointment in BS-11 on adhoc basis, he is caught by the principle of
estoppels.

The appellant/petitioner’s claim regarding discrimination

against other employees is not substantiated as no proof is found on
record that any adhoc employee in BS-11 was regularized in BS-16
merely for the reasons that at the time of appointment he was holding
a B.A. degree as qualification required for appointment in BS-16.

12. Both the appeals, therefore, are turned down/dismissed for the
reasons given above. The order of the learned Single Judge dated
08.12.2011 passed in W. P. No. 173/2011 is upheld.

(Shezada Mazhar) (Shahid Jamil Khan)

Judge Judge

*A.W.*
Approved for Reporting.