MUBARAK ALI KHAN vs PROVINCE OF SINDH through Secretary Finance Up-gradation of post to BPS-19

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MUBARAK ALI KHAN VS PROVINCE OF SINDH through Secretary Finance Up-gradation of post to BPS-19---Scope---Petitioner had claimed that he performed more than 17 years satisfactory service in Grade 17, therefore, he was entitled to up-gradation for BPS-19 as per Office Memorandum issued by the Finance Division, Government of Pakistan dated 23.12.2011---Legality---From perusal of record it transpired that the petitioner was employed as Private Secretary in the office of Provincial Ombudsman (Mohtasib) in Grade-17---Petitioner filed representation for award of benefit of the up-gradation to BS-19 in terms of the Office Memorandum dated 09.09.2021 issued by Provincial Government and memorandum dated 23.12.2011 issued by the Finance Division Government of Pakistan, which provided for the grant of up-gradation to BS-19 when employee completed 12 years' service as Private Secretary in grade 17 or above---Petitioner was appointed in Grade-17 on 23.12.2011 and retired on 28.02.2022 on attaining the age of superannuation and fell short of 12 years mandatory feat for up-gradation to Grade-19---Notification dated 02nd June 1983 issued by the Establishment Division, Cabinet Secretariat, Government of Pakistan provided method for calculation of the length of service---Per said notification the service rendered by the employee in Grade 16 and below must be calculated for the purpose of counting of service in Grade-17---Clause (iii) of the said notification would apply to the case of the petitioner, which provided that one-half of the service by a person if appointed in grade 16 or below and one-fourth of the service in Grade-15 and below might be counted as Grade-17 for computing length of service for the purpose of up-gradation---From the record it transpired that the petitioner was appointed in Grade-5 in the year 1980 and was promoted in Grade-16 on 09.08.2008 where he worked in said grade until 22.02.2011---Total length of service rendered by the petitioner in Grade-16 was 03 years, 04 months and 13 days and one-half of that period was 01 year, 08 months and 06 days, whereas, the petitioner had also served as Private Secretary from 27.10.1992 to 08.08.2008 for aperiod of about more than 15 years and one-fourth of the service would be 03 years and 11 months---Petitioner had served in Grade-17 and above for a period of 10 years and 03 months, if the portion of the service rendered by the petitioner in Grade 15 and 16 in terms of the office memorandum dated 02nd June 1983 than the total length of service rendered by the petitioner would be 18 years and 11 months---However, under the referred memorandum, that calculation had been left at the discretion of the competent authority by using word "May” in clause (iii) of the notification---Per notification dated 17th September 2021, the Services General Administration Department, had also granted same benefits as had been granted to the Private Secretary of the Federal Government---If the competent authority was vested with a discretion was power, the discretion had to be exercised fairly, justly and strictly in accordance with law---Since no reason had been assigned to exclude the period of service rendered by the petitioner in Grade-15 and 16 for counting towards his up-gradation in Grade 19, which if counted would bring his case within the parameters fixed under the referred Office Memorandum---Respondents had failed to exercise the discretionary powers, in the case of the petitioner, therefore, a case for indulgence of this Court was made out to exercise the power of judicial review conferred under Art. 199 of the Constitution of Islamic Republic of Pakistan, 1973, for issuance of the appropriate writ---Petition was allowed, respondents were directed to decide the case of the petitioner afresh after giving him right of hearing strictly in accordance with law.

MUBARAK ALI KHAN vs PROVINCE OF SINDH through Secretary Finance Up-gradation of post to BPS-19 — 2026 PLC(CS) 621 KARACHI-HIGH-COURT-SINDH

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