IN THE HIGH COURT OF SINDH AT KARACHI

Constitutional Petition No.D-499 of 2009

Present:

Mr. Justice Gulzar Ahmed &

Mr. Justice Shahid Anwar Bajwa.

J U D G M E N T

Date of hearing : 08^th April, 2010.

Petitioner through : Mr.Abdul Kareem Khan, Advocate.

Respondent through : Syed Tassawar Hussain, Advocate.

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GULZAR AHMED, J.:- Through this petition, petitioner has made the following prayer:

“ It is, therefore, respectfully prayed that his Hon’ble Court may be pleased to direct the above named Respondents to allow the entire benefits of BS-18 since May, 1994 when performed his duty as Executive Engineer with full devotion till his retirement as on 31-12-2008.

Any other relief which this Hon’ble Court may deems fit and proper under the circumstances of the case.”

It is contended by learned counsel for the petitioner that Resolution No. 78 dated 10.5.1994 was passed by Karachi Water and Sewerage Board (KW&SB) in which post of Executive Engineer (Auto) Scale-18 was created and that the petitioner being Incharge of the Auto Division of the Board was entitled to be regularized in the post and Executive Engineer (Auto) Scale 18 from 10.5.1994. He has contended that though the petitioner has retired on 31.12.2008, his service as Executive Engineer(Auto) was acquired by respondent on contract also and in support of his submission relied upon the case of FEDERATION OF PAKISTAN V/S SHEHZADA SHAHPUR JAN (1986 SCMR 991) and ABDUL QAYYUM V/S SECRETARY MINISTRY OF DEFENCE (NLR 1993 SCJ 348).

On the other hand, learned counsel for respondent KW&SB has contended that Rule 15(4) of the Karachi Water and Sewerage Board Employees (Promotion, Confirmation & Seniority) Rules, 1987 in clear terms prohibits regularization of adhoc appointments with retrospective effect and in this regard has relied upon the case of CH.FAQEER MUHAMMAD V/S SECRETARY TO GOVERNMENT OF PUNJAB (2009 SCMR 405).

We have considered the submission made by learned counsel and have gone through the record.

It appears that petitioner was employed as overseer in BPS-11 with the KW&SB. Through an office order dated 19.5.1992 the petitioner was promoted to the post of Assistant Executive Engineer (Auto) BS-17 with immediate effect. On 10^th May 1994 a resolution was passed by the Board by which post of Executive Engineer (Auto) scale-18 was created and petitioner claims that he was posted as Executive Engineer (Auto) on the creation of such post. Through office order dated 23.2.2008 petitioner was promoted to the post of Executive Engineer (E&M) BS-18 subject to approval of Government of Sindh. Through further office order dated 31.12.2008, petitioner was retired from service with effect from 31.12.2008. This petition is filed by the petitioner after he has retired from service with the prayer as noted above. Counter affidavit has been filed by the respondent KW&SB.

The petitioner claims benefits of the post of Executive Engineer (Auto) BS-18 since May 1994 on the basis that he has worked on the said post on adhoc basis. After the creation of post of Executive Engineer (Auto) BS-18 the petitioner seems to have been representing KW&SB for his regularization as Executive Engineer (Auto) BS-18 but no decision apparently was made on such representations rather through an office order dated 23.2.2008, the petitioner, who was working as Assistant Executive Engineer (E&M) BS-17, was promoted to the post of Executive Engineer (E&M) BS-18. The name of the petitioner in this office order appears at serial No. 4. After about ten months of such promotion, the petitioner was retired from the service on attaining the age of superannuation. The respondents in their counter affidavit have not disputed the fact of petitioner being posted as Executive Engineer (Auto) BS-18 but have simply taken the stand that the petitioner cannot claim regularization of his adhoc appointment with retrospective effect. Counsel for the petitioner has referred to the cases of Federation of Pakistan (supra) and Abdul Qayyum (supra) to substantiate his contention that if an employee is posted on a higher grade either on adhoc basis or officiating basis and performs higher duties, he is entitled to be paid the benefits of such higher post. We have closely considered both these judgments. No doubt, it is provided that if a civil servant is posted on higher post and performs higher duties, he has been made entitled to benefits of such higher post as per the prescribed rules applicable to civil servants and the judgments of the Hon’ble Supreme Court of Pakistan are based on such rules. It has not been held as a general principle of law that a person given adhoc or officiating charge of higher post or to perform higher duties automatically becomes entitled to benefits of higher post or of higher duties. Petitioner’s counsel has not cited before us any rule applicable to the employees of KW&SB entitling them to benefits of higher post or higher duties assigned on adhoc or officiating basis.

In the case of Abdul Qayyum (supra) the Hon’ble Supreme Court while discussing the question of entitlement of a civil servant to higher pay on the basis of being posted on higher post without regular promotion has observed as follows:

“ It also needs to be clarified that eligibility and qualification shall always have to be kept in mind. If a person is made to work on a higher post for which he suffers the disqualification and/or ineligibility otherwise, he would not be entitled to any additional benefit on the basis of rule laid down in the afore discussed case law.

There is another exception also; namely, that when a person is only made to perform some other function which does not strictly fall within the scope of the duties of the post on which he is appointed already, in accordance with the exigencies of the distribution of the work but without promotion to officiate in or hold the higher post, so as to discharge the full duties of the higher post, this rule of increase of pay on the reasoning in the case of Muhammad Hashim would not apply. For example, where a person performing function in one post is made in addition, to work also in another capacity equal or higher, but without promoting him to officiate in or hold the higher post so as to discharge the full duties of the higher post, for such work or duty, he would not be entitled to the increase of the pay even to the minimum.”

The above rule laid down by Hon’ble Supreme Court also adds further conditions for being entitled to benefits of higher posts or higher duties on adhoc or officiating basis that the person should be eligible and qualified for the higher post and if he suffers from disqualification or ineligibility, he will not be entitled to additional benefits. The petitioner has not pleaded in the petition the criteria of eligibility and qualification for being appointed as Executive Engineer (Auto) BS-18 in KW&SB nor the petitioner has pleaded in the petition that petitioner fulfilled the criteria of eligibility and qualification. Thus from the record it could not be determined also that petitioner in fact was eligible and possessed the qualification for being appointed as Executive Engineer (Auto) BS-18.

For the foregoing reasons we find no merit in this petition and same is therefore dismissed in limine.

J U D G E