JUDGMENT SHEET MTNGORA BENCH (DAR-UL-QAZA ...

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JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,MTNGORA BENCH (DAR-UL-QAZA), SWAT

(Judicial Department)

1. \M.P No.330-1W2015

Said Badshah s/o Rostam Khan Regimental No.l3l9,Subedar, Dir Levies Force, District Dir Lower.

(Petitioner)Versus

The Islamic Republic of Pokistan through Secretary toGovernment of Pakistan, Ministry/Division of SAFRON atIslamabad and 09 others

(Respondents)Present: ful/S Abdul Hakim and Muhammad ll<ram Khan, Advocates

for petitioner.

Mr. Hussain Ali, Deputy Attorney General for FederalGovernment.

Mr. Rafiq Ahmqd, Assistant Advocate General forProv inc ial G ov ernment.

Mr. Aziz-ur-Rehman, Advocate for added RespondentNo.l0.

Respondents No. I & 9 in person

z. W.P No. 634-M/2016

Subedar Major Pashat Khan and 02 others(Petitioners)

VersusGovernment of Pakistan through Secretary SAFRON,Civil Secretariat, Islamabad and 03 others.

(Respondents)Present: Mr. Asghar Ali, Advocate for petitioner.

Mn Hussain Ali, Deputy Attorney General for FederalGovernment.

Mr. Rafiq Ahmad, Assistant Advocate General forP r ov inc i a I G ov ernm ent.

Muhammad Bashir Khan, Naib Subedar, Dir Levies atTimergara r/o Chapat P.O Chakdara, Tehsil Adenzai,District Dir Lower.

(Petitioners)Versus

Government of Pakiston through Secretory SAFRON,Civil Secretariat, Islomabqd and 07 others.

Adu. (Respondents)Present: Mr. Azrz-qf-Qelwta for petitioner.

D.B: Mr. Justice ljaz AnwarMn Justics Muhammad Nasir Mahfooz

{lnf

3. W.P No. 694-Ml20l7

.,

Mr. Hussain Ali, Deputy Attorney General for FederalGovernment.

Mr. Rafiq Ahmad, Assistqnt Advocote General forP r ov inc i al G ov ernment.

Date of hearingt 19.10.2017

JUDGMENT

IJAZ ANltrAR, J.- Through this single judgment, we

intend to dispose of this writ petition bearing No. 330-

Ml 2015 as well as the connected writ petitions bearing

No. 634-M/2016 and 694-MJ20l7 as common

questions of law and facts are involved in all these

petitions

Petitioner in the instant writ petition has

averred that he was appointed as Sepoy at the age of 18

years in Dir Levies Force and after getting step by step

promotion, reached to the rank of Subedar, vide order

dated 17.12.2009. Initially, the services of the Levies

Force was governed under the Frontier Irregular Corps

(F.I.C) Rules, 1962, but, later on, for regulating the

service matters of the Force, the Provincially

Administered Tribal Areas (PATA), Levies Force

Regulation, 2012, was promulgated, whereunder the

PATA Levies Force (Service) Rules, 20t2, were framed

for the personnel of the Provincial Levies Force besides,

separate service Rules called as "PATA Federal Levies

Force Service (Amended Rules, 2013" alongwith its

)

Irl/

D.B: Mn Justlc8 ljz Anwar

(W.P No 34 ol 201 7 Aziz-w-R.hm.n V. Ser.t.ry, Wal.r & Pil.. .nd ohec)

-3 -

Schedule were also framed for regulating the service of

Federal Levies personnel performing duties in PATA. It

is further alleged that vide Notification dated

12.12.2013, Schedule-I and Schedule-Ill of the Rules

were amended and Rule 8 of the said Rules provides

that "promotion shall be strictly on seniority cum fitness

basis as well as on the required length of service as

specified in Schedule-I", while Rule 17 says that "all

levy personnel shall retire as per Schedule-Ill and no

extension in service beyond retirement shall be

granted". He funher averred that Respondent No.6,

namely, Pashat Khan, had joined the Force as Sepoy on

01.12.1982 at the age of 18 years whereas the

Respondent No.7, Dilawar Jan, joined the Force on

01.L2.1982 at the age of 20 years and both of them were

to be retired on 30.11.2012, as per office order dated

20.09.2013, because their services, including promotion

and retirement, are governed by the "F.I.C Rules, 1962"

and not by the subsequent Rules, therefore, they are not

entitled to remain in service anymore and, as such,

cannot be considered senior to him. The petitioner

alleged that he rendered 31 years and 1 1 months service

and also performed his duties as subedar for five years

and 5 months besides transparent service record and was

hopeful for promotion on the retirement of Subedar

0

D.B: Mr. Justice Uaz AnwarMn Justice Muhammad Nasir Mahfooz

(W P No. 34 o12017 Azlz-urR.hnan Vs Ser.tary, Wd* & Porc. a.d oh.E)

{r

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Major Muhammad Idrees, but as per the seniority list

and the working papers prepared for filling the said post,

he was dropped, hence, in this respect, he submitted an

application on 24.04.2015 to Respondent No.4 which

was not considered and, in the meanwhile, Respondent

No.3 iIlegally promoted Respondent No. 6, vide

Notification No. SO (Levies) HD2O4IDIR (U&L) dated

15tr May, z}ll,hence, this writ petition.

3. As per contents of W.P No. 634-M120L6,

petitioner No.1, Pashat Khan, was promoted to the rank

of Subedar Major, vide order dated 15.05.2015, while

petitioners No. 2 and 3, Tariqat Yar and Muhammad

Rafiq, were promoted to the ranks of Subedar, vide

order dated 28.05.2015, but respondents are not ready

to fix their pay in accordance with their respective

higher scales from the date of their promotion. They

averred that their services were regulated by PATA

Levies Force (Services) Rules, 20L2, which were, later

on, repealed by PATA Federal Levies Force Services

(Amended) Rules, 2013, wherein the time frame for

retirement was amended. Subsequently, the above

mentioned time frame for retirement was fuither

amended, vide Notification No. SO (Levies) HD/ FLW/

l-ll20l3No1-I dated 12.12.2013. The last amendment

I0

O.B: Mr. Justice Uaz AnwarMr, Justice Muhammad Nasir Mahfooz

W.P No.3H or2o17 Azi:-urRehm.n V3. Ser.lary, W.l.r & Pow.r..d oheE)

-5-

was made, vide Notification No. SO (Levies)

HDffLWl-112013/ Vol-I dated 25.08.2016, according

to which the length of servicelage for subedar major

was fixed as 37 years service or 60 years of age,

whichever is earlier, while for subedar was fixed as 35

years service or 60 years of age whichever is ealier

whereas for Naib subedar was fixed as 33 years service

or 60 years of age whichever is earlier. Under

Schedule-Ill of the Rules 2013, ibid, the time frame for

retirement of the Levies employees was as under:-

Subedar major 37 years service or 60 years of agewhichever is earlier.

Subedar 35years service or 60 years of age

whichever is earlier.

Naib-Subedar 33 years service or 60 years of agewhichever is earlier.

According to the petitioners, as per Notification No. SO

(Levies) HD/FLW/L-1120131 Vol-I dated 25.08.2016,

their dates of retirement were 15.05.2017, 01.12.2017

and 21.07.2018 respectively but the Respondent No.3

was informed through letter No. SO (Levies)/tlD/2-

4l20l3lDir Lower dated 06.10.2016 regarding minutes

of the meeting held on 03.08.2016 pertaining to the

issue of retirement of Levies Force in Dir Lower and

was directed to retire the petitioners from their services.

Being aggrieved, they have filed W.P No. 634-1W2016.

?

D.B: Mr, Justice ljaz AnwarMr. Justice Muhammad Nasir Mahfooz

M. Zatnl PS'

(W.P No. 3+M or2017 Mz-urR.hm.n Vi. sd.tary, wdl.r& Porcr and oth.B)

-6-

4. The Petitioner in W.P No. 694-M/2017, who is

respondent in petition W.P No. 330-I\4/ 2015, has

asserted that the dates of retirement of the petitioners in

the connected writ petitions are prior to that of the

present petitioner, namely, Muhammad Bashir Khan,

therefore, he filed application for vacation of stay

granted by this Court in favour of the petitioner in writ

petition filed by Said Badshah. He alleged that if the

stay is vacated, all the Subedars and Naib Subedars will

be retired and the petitioner will remain as the only

eligible Naib Subedar for promotion w.e.f 07.10.2017

to 18.10.2017 .

5 Arguments heard and record perused.

l{0

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age and promotion of the levies personnel (Frontier

The matter in hand pertains to the retiring

Irregular Corps). Their age of retirement and criteria for

promotion is completely different from other Provincial

as well as the Federal Government employees. The

services of the Malakand and Dir Levies were, initially,

govemed under the Frontier Irregular Corps Rules,

L962. Rule 2has prescribed the tenure of promotion of

different posts, while rule 3 has prescribed the

retirement age. Since the applicability of these rules is

D.B: Mr. Justice ljaz AnwarMr. Justice Muhammad Nasir Mahfooz

M. Z.rd PS'

W. P No. 34 ol 20r 7 Aziz-urR.hman V.. Ser.lary, Wals & PMr and oh.6)

-7 -

the main controversy between the parties, as such, for

convenience, it is reproduced in original:-

2.

(i)

(ii)

(iii)

3.(i)

(ii)

(iii)

(iv)

All future promotions:-

To Jamadars will be for 5years only.

To subedar will be for 3 years onlyexcept in special cases in this limit.

To subedar Major will be for 4 yearsonly extendable for further one yearby Local administration, providedthey are not liable to retire earlier inaccordance with the provisions ofrules below.

All spoys will retire after 18 yearsservice.

All non-commissioned officers willbe retired after 25 yearc service.

Al1 others will retire on attaining theage of 50 years or on completion of30 years service, whichever is earlier.

No extensions of service will begranted on attaining the age andservice of 30 years.I

2The Federal Government, vide gazette

notification dated 25.5.2010, notified Federal Levies

Forces Regulation, 2010, and Federal Levies Force

(Service) Rules, 2010, vide notification dated

27.6.2010, however, they were made applicable to the

Federal Levies personnel in the Federally Administered

Tribal Areas. The above regulations were then

repealed, vide gazette notification dated 7.8.2012,

funher notiffing Federal Levies Force Regulation,

2012, and Federal Levies Force (Service) Rules, 2012.

D.B: Mr, JusticeMr. Justice

M. Z.t.l PS' Uaz AnwarMuhammad Nasir Mahfooz

(W.P No.3H orA17Azi2-orR6hman vi. S&r.t.ry, Wdff & Powil.nd oh.6)

-8-

It is pertinent to mention that the

provincial government also notified the PATA Levies

Force Regulation, 2012, and vide notification dated

L3.9.20L2, notified Provincially Administered Tribal

Rule 25 of the Rules, 2012, repealed the previous rules,

orders or instructions enforced in respect of the PATA

Levies force. Under the newly notified rules, a

t{

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procedure has been set for seniority and promotion. It

was due to promulgation of the service rules and its

frequent amendments, that has created confusions and a

controversy cropped up regarding the retiring age of the

employees. They approached this Court for getting the

7 To appreciate the controversy, in order to

resolve it, Rules 8, 16 and schedule 1 of the

Provincially Administered Tribal Areas (PATA) Levies

Force (Service) Rules, 2012, are reproduced for ready

reference

8. Seniority and promotion. Promotion shall be

strictly on seniority cum fitness basis as well as

on the required length of service as specified in

schedule-I. The service of personnel by initial

recruitment or promotion may be dispensed

with or reverted if, in the opinion of the

competent authority his work and conduct is

not satisfactory during probation period or due

D.B: Mr. Justlco ljaz AnwarMr. Justico Muhammad Naslr Mahfooz

interim relief.

M Zarrl PS'

(w P No. 34 or 20i7 Aza:-ulR.hman Vr. S*r6tary. W.t.r & Peer and otheG)

Areas (PATA) Levies Force (Service ) Rules, Z0lZ.

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Ir,

to abolishment of posts, as the case may be. A

seniority list shall be maintained at district

level.

16. Retirement.- The force personnel shall retire

from service on attaining the age of

superannuation, i.e., 60 years or he may opt for

retirement after completing 25 years of regular

service.

Schedule-1.

Again, amendment in the service rules for

Federal Levies Force in PATA was introduced on

04.2.2013. For ready reference, the amended Rules 8,

17, schedule-l and III are reproduced as under:-

8. Seniority and promotion:- (1) promotion shallbe strictly on seniority cum fitness basis as wellas on the required length of service as specifiedin Schedle-l.

@ The service of personnel by initialrecruitment, promotion or transfer may be

dispensed with or reverted if, in the opinion ofthe competent authority his work and conduct isnot satisfactory during probation period or due

to abolishment of posts, as the case may be.

D.B: Mr. Justico ljaz AnwarMr. Juatice Muhammad Naslr Mahfooz

s

#

PosUrank Eligibility forpromotion

Promot-lonquota

Directquota

Qualification

1 Subedarmajor(Bs-16)

05 years as

subedar orl0 yearsservice inhis credit

100%

2 Subedar(BS-13)

05 years as

NaibSubedar or8 yearsservice inhis credit.

100%

3 NaibSubedar(BS-l r)

05 yearsservice as

Havaldar

100%

4

(W.P No. 3q ot2017 Aziz-urRehm.n V.. Sercl.ry, W.l.r & Powr and oh.6)

-10-

{

a

Provided that in case of dispensing withtheir service or reversion the concernedauthority shall record cogent reasons for suchaction in writing.

(3) The seniority list of the X'orce shall bemaintained at district level. Commandant shallbe responsible for maintaining the seniority listof the force and shall notify annually.

17. Retirement.- All levy personnel shall retire asper schedule III and no extension in servicebeyond retirement shall be granted.

Schedul-1

Schedule-Ill.

D.B: Mn Justice ljaz AnwarMr. Justlce Muhammad Nasir Mahfooz

S.

#Postrrank Eligibility

forpromotion

Promoti-on quota

Directquota

Qualifi-cation

1 Subedar

major(BS-r6)

03 years

servlceAS

subedar

t00%

2 Subedar(BS-13)

03 years

serviceas Naib-subedar

100 %

5 Naib-Subedar(BS-l r)

03 years

serviceas

Havaldar

t00%

4

s.# PosVRank Length of service/Age

1 Subedar Major( BS-16) 38 years service or 03years service as subedarmajor or 60 years age


2 Subedar (BS-13) 35 years service or 03

years service as subedaror 57 years age whicheveris earlier.

J Naib Subedar (BS-11) 32 years service or 03

years service as Naibsubedar or 54 years agewhichever is earlier.

4

M. Zatal PS'

(W P No.34M ot2017Aziz-urRehmanV.. Sdolary,Wal.r& Pw.r and olhe6)

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/

Later on, vide notification dated 12.12.2013,

schedule-l and III were, again, amended which rs as

under:-

Schedule-III

The matter not ended here and vide notification

dated 25.8.2016, certain clarifications and modifications

were, again, introduced including in schedule-Ill, which is

reproduced as under:-

0

S

#

Posrrank Eligibilityforpromotion

Promotlon

quota

Directquota

Qualification

1 Subedarmajor(BS-16)

one vearservice as

subedar

100%

2 Subedar(BS-13)

one yearservice as

naib-subedar

100%

3 NaibSubedar(BS-l l)

one vearservice as

hawaldar

100%

4

s.# PosVRank Length of service/Age

1 SubedarMajo(BS-r 6)

37 years service or 60 years of age


2 Subedar(BS-13)



3 NaibSubedar(BS-r l)



s.# Post/rank For To be read as

1 Subedar Major(BS-16)

37 years service or 60years of age whicheveris earlier.

37 years service or03 years service as

subedar major or 60years of age

O.B: Mr. J@tlc. Ua, Anwarllr. Ju.tlco Muh.mmad Na.lr drooz *drywr'.P rftnn)

Schedule-I

-t2-

D.B: Mr. Justice ljaz AnwarMr. Justice Muhammad Nasir Mahfooz

(W.P No.34 or 117 A:l!-uFR€hm.n v.. Sel.i.ry, Wd.r& Pow.r.nd oth.6)

I

whichever is earlier

2 subedar (BS-13)



subedar or 60 yearsof age whichever isearlier.

5 Naib Subedar(BS-16)



subedar major or 60years of agewhichever is earlier.

8 The .'F.I.C" Rules, 1962, were superseded by

"PATA" Levies Force (Service) Rules, 2012. Rule 25 is the

repealing clause, it is reproduced for ready reference:-

S.25 Repeal: Any rules, orders or instructions

enforce in respect of PATA Levies force,

immediately before the commencement of these

rules shall stand repealed in so far as those rule,

order of instructions are inconsistent with the

rules.

Surely, the "FIC Rules, 1962" were inconsistent

to the extent of retiring age and tenure of promotions, as such,

the "PATA" Levies Force (Service) Rules, 2012, were made

applicable on Employees, who were in service on the issuance

of Gazette notification dated 20.09.2012. The subsequent

amendments in the above Rules take precedence over the

previous rules and, thus, the amended rules will apply to the

serving employees.

It would be advantageous to reproduce the latest

notification dated 25.8.2016, whereby again amendments were

introduced in "PATA" Levies Rules, 2012. According to the

n

9

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latest amendment, the service of Federal Levy Force rendered

before 2012 was made countable as pensionable, and the

pension rules of the Federal Government were made

applicable. The controversy created earlier on the

promulgation of the rules and frequent amendments have been

resolved through the above notification dated 25.08.2016,

relevant Para-3 is reproduced:-

"3. Condonation of over stay exceeding the

prescribed length of service or age limit shall be

allowed on case to case basis with due approval of

the competent authority i.e., Secretary, SAFRON

after futl implications are worked out and sent to

SAFRON and subsequent approval by Finance

Division as the over stay was not the fault of the

lely personnel.

This Para was purposely added as anomalies were

created about the age of retirement and tenure of promotion.

10. The leamed DAG has also frankly and quite

rightly suggested that those petitioners may be allowed to

complete their tenure of the promotion already granted as per

the Rules that are presently in field. The promulgation of the

notification dated 25.08.2016 has made the task of this Court

much easier. In somewhat similar situation, the august

Supreme Court of Pakistan in the case DCO/Chairman.

Recruitment Committee . Khaniwal and others vs. Kishwar

Sultan and others 0016 S -128$. while dealing with an

Inr

CMR

D.A: irr. Jultlco lid Anw.riri Ju.Uco Muhamma.l Na3lr ilahfooz

-14-

anomalous situation used certain words, we borrow it and

reproduce here being very relevant:-

"It is never too late to mend but what to do!

Retain them, is the answer of the protagonists

of status quo. Don't worsen the bad ifcorrection is possible, is the answer given by

those, who are guided by prudent and

progressive outlook".

11. We are, thus, not inclined to disturb the

promotion already granted and would direct the respondents to

allow the promoted petitioners to complete their term of

promotion. Similarly to strictly follow the amended upto-date

rules in the matter of promotion/retirements. Therefore, this

and the connected writ petition No. 694-M/2017 challenging

the promotion orders are dismissed, while W No.

634-M/2016 is partially allowed

Announced

t(r,

IU D GE/

Dt: 19.10,

-'*

O.B: Mr. Ju3tlcs lja AnwarMn Jurtic. Muhammad Naslr Mahfooz

M Z.htPS'

(W.P No.34 d 2Ol7 m-u-R.hh.n v.. Sd.l.ry.Wa., t Pffi..d frr)

/&-JUDGE

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