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JUDGMENT SHEET

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

(Judicial Department)

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

Said Badshah s/o Rostam Khan Regimental No.l3l9, Subedar, Levies Force, District Dir Lower. (Petitioner) Versus The Islamic Republic of Pokistan through Secretary to Government of , Ministry/Division of SAFRON at Islamabad and 09 others (Respondents) Present: ful/S Abdul Hakim and Muhammad ll

Mr. Hussain Ali, Deputy Attorney General for Federal Government.

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

Mr. Aziz-ur-Rehman, Advocate for added Respondent No.l0.

Respondents No. I & 9 in person

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

Subedar Major Pashat Khan and 02 others (Petitioners) Versus Government of Pakistan through Secretary SAFRON, Civil Secretariat, Islamabad and 03 others. (Respondents) {l Present: Mr. Asghar Ali, Advocate for petitioner. n f Mn Hussain Ali, Deputy Attorney General for Federal Government.

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

3. W.P No. 694-Ml20l7

Muhammad Bashir Khan, Naib Subedar, Dir Levies at Timergara 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 Anwar Mn Justics Muhammad Nasir Mahfooz .,

Mr. Hussain Ali, Deputy Attorney General for Federal Government.

Mr. Rafiq Ahmad, Assistqnt Advocote General for P 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. services the Levies Irl Initially, the of / 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 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 {r 01.12.1982 at the age of 18 years whereas the 0 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

D.B: Mr. Justice Uaz Anwar Mn Justice Muhammad Nasir Mahfooz (W P No. 34 o12017 Azlz-urR.hnan Vs Ser.tary, Wd* & Porc. a.d oh.E) -4-

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 I order dated 28.05.2015, but respondents are not ready 0 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

O.B: Mr. Justice Uaz Anwar Mr, 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 age whichever is earlier. Subedar 35years service or 60 years of age whichever is earlier. Naib-Subedar 33 years service or 60 years of age ? whichever 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.

M. Zatnl PS' D.B: Mr, Justice ljaz Anwar Mr. Justice Muhammad Nasir Mahfooz (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 6 The matter in hand pertains to the retiring

age and promotion of the levies personnel (Frontier

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

M. Z.rd PS' D.B: Mr. Justice ljaz Anwar Mr. Justice Muhammad Nasir Mahfooz 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. All future promotions:- (i) To Jamadars will be for 5years only. (ii) To subedar will be for 3 years only except in special cases in this limit. (iii) To subedar Major will be for 4 years only extendable for further one year by Local administration, provided they are not liable to retire earlier in accordance with the provisions of rules below.

3.(i) All spoys will retire after 18 years service. (ii) All non-commissioned officers will be retired after 25 yearc service. (iii) Al1 others will retire on attaining the age of 50 years or on completion of 30 years service, whichever is earlier. (iv) No extensions of service will be granted on attaining the age and I service of 30 years. 2 The 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.

M. Z.t.l PS' D.B: Mr, Justice Uaz Anwar Mr. Justice Muhammad 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

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

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

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 t{ employees. They approached this Court for getting the 7 interim relief.

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

M Zarrl PS' D.B: Mr. Justlco ljaz Anwar Mr. Justico Muhammad Naslr Mahfooz (w P No. 34 or 20i7 Aza:-ulR.hman Vr. S*r6tary. W.t.r & Peer and otheG) -9 -

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.

s PosUrank Eligibility for Promot- Direct Qualific promotion lon quota ation # quota

1 Subedar 05 years as 100% major(B subedar or s-16) l0 years service in his credit

2 Subedar 05 years as 100% (BS-13) Naib Subedar or 8 years service in I his credit. r, 3 Naib 05 years 100% Subedar service as (BS-l r) Havaldar

4

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 shall be strictly on seniority cum fitness basis as well as on the required length of service as specified in Schedle-l. @ The service of personnel by initial recruitment, promotion or transfer 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 to abolishment of posts, as the case may be.

D.B: Mr. Justico ljaz Anwar Mr. Juatice Muhammad Naslr Mahfooz (W.P No. 3q ot2017 Aziz-urRehm.n V.. Sercl.ry, W.l.r & Powr and oh.6) -10-

Provided that in case of dispensing with their service or reversion the concerned authority shall record cogent reasons for such action in writing.

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

17. Retirement.- All levy personnel shall retire as per schedule III and no extension in service beyond retirement shall be granted. Schedul-1

S. Postrrank Eligibility Promoti- Direct Qualifi- # for on quota quota cation promotion

1 Subedar 03 years t00% major servlce (BS-r6) AS subedar

2 Subedar 03 years 100 % (BS-13) service as Naib- subedar

5 Naib- 03 years t00% { Subedar service (BS-l r) as a Havaldar

4

Schedule-Ill.

s.# PosVRank Length of service/Age

1 Subedar Major( BS-16) 38 years service or 03 years service as subedar major or 60 years age whichever is earlier.

2 Subedar (BS-13) 35 years service or 03 years service as subedar or 57 years age whichever is earlier.

J Naib Subedar (BS-11) 32 years service or 03 years service as Naib subedar or 54 years age whichever is earlier.

4

M. Zatal PS' D.B: Mn Justice ljaz Anwar Mr. Justlce Muhammad Nasir Mahfooz (W P No.34M ot2017Aziz-urRehmanV.. Sdolary,Wal.r& Pw.r and olhe6) - 11-

Later on, vide notification dated 12.12.2013,

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

under:-

Schedule-I

S Posrrank Eligibility Promot Direct Qualification for lon quota # promotion quota

1 Subedar one vear 100 major service as % (BS-16) subedar

2 Subedar one year 100 (BS-13) service as % naib- subedar

3 Naib one vear 100 Subedar service as % (BS-l l) hawaldar

4

/ Schedule-III 0 s.# PosVRank Length of service/Age

1 Subedar 37 years service or 60 years of age Majo( whichever is earlier. BS-r 6)

2 Subedar 35 years service or 60 years of age (BS-13) whichever is earlier.

3 Naib 33 years service or 60 years of age Subedar whichever is earlier. (BS-r l)

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:-

s.# Post/rank For To be read as

1 Subedar Major 37 years service or 60 37 years service or (BS-16) years of age whichever 03 years service as is earlier. subedar major or 60 years of age

O.B: Mr. J@tlc. Ua, Anwar Muh.mmad Na.lr drooz llr. Ju.tlco *drywr'.P rftnn) -t2-

whichever is earlier

2 subedar (BS- 35 years service or 60 35 years service or 13) years of age whichever 05 years service as is earlier. subedar or 60 years of age whichever is earlier.

5 Naib Subedar 33 years service or 60 33 years service or (BS-16) years of age whichever 07 years service as is earlier. subedar major or 60 years of age whichever 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 I rules. n 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.

9 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

D.B: Mr. Justice ljaz Anwar Mr. 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) - 13 -

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 I lely personnel. n r 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 SCMR-128$. while dealing with an

D.A: irr. Jultlco lid Anw.r iri 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 if correction 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 t( r, IU D GE/

Announced /&- Dt: 19.10, JUDGE

-'*

M Z.htPS' O.B: Mr. Ju3tlcs lja Anwar Mn Jurtic. Muhammad Naslr Mahfooz (W.P No.34 d 2Ol7 m-u-R.hh.n v.. Sd.l.ry.Wa., t Pffi..d frr)