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Judgment Sheet Mtngora Bench (Dar-Ul-Qaza), Swat

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Judgment Sheet Mtngora Bench (Dar-Ul-Qaza), Swat 1 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 to Government of Pakistan, Ministry/Division of SAFRON at Islamabad and 09 others (Respondents) Present: ful/S Abdul Hakim and Muhammad ll<ram Khan, Advocates for petitioner. 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.
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