4 Tier Service Structure – Finance Reply in Court Case 03.01.2024
OFFICE MEMORANDUM
Subject: 4 Tier Service Structure
Kindly refer to your memo No.65047/Writ-64688 dated 08.12.2023 on the subject cited above.
2. Report/para wise comments in the subject cited case on behalf of Respondent No.3 (Finance Secretary) are enclosed herewith in triplicate as desired. Next date of hearing is 16.01.2024.
Respectfully Sheweth:
PRELIMINARY OBJECTIONS:
1) It is submitted that the policy decision of the Government regarding up-gradation of posts cannot be challenged in constitutional jurisdiction of the High Court on the purported plea of discrimination. Up-gradation of post is not a vested right. Reliance is placed on the judgement reported as “2016 SCMR 442”.
2) That in an identical case, the Hon’ble LHC, Lahore, vide order dated 09.02.2021 (Annex-AA), dismissed Writ Petition No.644/2021 titled as “Miss. Riffat Sultana Versus Govt. Of Punjab, etc.”
3) That in another identical case, the Hon’ble Lahore High Court, Lahore, vide order dated 01.11.2021 (Annex-BB), dismissed Writ Petition No.71586/2021 titled as “Muhammad Yousaf Versus Secretary P&SH Department, etc.” as under:
Learned counsel for the petitioner accepts that the petitioner was granted up-gradation of his post to BS-09 under Notification dated 24.11.2011. She has been unable, however, to demonstrate that the petitioner was entitled to further up-gradation of his post to BS-09 under the said Notification. Clause 2(ii) of Notification dated 24.11.2011 reads as under:
- In the first instance, the existing incumbents of Clinical & PHC Cadre posts shall stand automatically up-graded / adjusted to next levels, within their respective categories of posts, in order of seniority as one time dispensation.
- The aforementioned clause demonstrates that the up-gradation envisaged under Notification dated 24.11.2011 was a one-time benefit. Be that as it may, the Rules were subsequently replaced in the year 2012 through Notification dated 14.04.2012. The petitioner has not been able to demonstrate that his plea for up-gradation of his post in BS-12 on 24.11.2011 has any merit to it.
- In the circumstances, this writ petition being devoid of any merit is accordingly dismissed.”
4. That in another identical case, the Hon’ble LHC, Lahore, vide order dated 17.11.2021 (Annex-CC), dismissed Writ Petition No.48602/2021 titled as “Hassan Mehmood Vs Secretary Health etc.” in the following terms:
“Be that as it may, under Notification dated 24.11.2011, the petitioner could only be granted up-gradation of his post in the next pay scale as a one-time dispensation. The petitioner was thereafter promoted as Chief Technician (BS-16) w.e.f. 24.11.2011 whereas the Service Rules, 2003 relating to Paramedics were recalled by Service Rules, 2012 according to which five years’ experience on the post with six weeks training in the relevant technology is mandatory for further promotion to BS-14. Similarly, the post of Chief Technician (BS-16) was liable to be filled up on the basis of seniority cum fitness from amongst Senior Technician (BS-14), it is, therefore, evident that the direct up-gradation of the petitioner’s post from Junior Technician (BS-12) to Chief Technician (BS-16) w.e.f. 24.11.2011 was illegal and against Service Rules, 2012.
Even otherwise, the up-gradation of post or reversion to a lower post relates to the terms and conditions of the service and therefore, the remedy of the petitioner would lay before the Punjab Services Tribunal.
This writ petition being not maintainable is accordingly dismissed.”
That in another identical case, the Hon’ble Lahore High Court, Multan Bench, Multan, vide order dated 15.11.2022 (Annex-DD), decided Writ Petition No.7532/2020 titled as “Adnan Suhail Faisal, etc. Versus Govt. of Punjab, etc.” as under:
“7. In this view of the matter, this petition is allowed to the extent of one time benefit of up-gradation to the petitioners in the light of Clause 2(ii) of Notification dated 24.11.2011 (mentioned supra).”
REPORT
It is submitted that the petitioners have filed the instant writ petition contending therein that the impugned orders dated 17.10.2023, 10.10.2023 and 06.06.2022 passed by respondent No.5, 6 & 8 respectively may be declared as illegal, unlawful, colourful exercise of powers, result of mala fide and arbitrariness, contrary to the provisions of principle of locus poenitentiae and audi-alteram partem and the same may be set aside in the larger interest of justice. It has further been prayed that the respondents may be directed to refrain from effecting recovery of amount already advanced to the petitioners meanwhile.
The request of petitioners is not justified for the following reasons that;
a) According to the Notification No.SO(NDY)-7-1/2010-(Paramedics), dated 24.11.2011, re-organization of Paramedical Cadre under 4-Tier Allied Health Service Structure was allowed with the ratio of 50:34:15:1 (i.e. BS-9,12,14 & 16) and all the existing categories of Allied Health Professional (Paramedics) falling in BS-05 to BS-08 were placed / up-graded with its re-designation as Junior Technician (BS-09) as one time dispensation. Service Rules were required to be amended accordingly. After amendment in the Service Rules, further promotions to the next tiers were to be made through DPC on seniority-cum-fitness basis. This structure was to be allowed keeping in view District/Institution-wise seniority list of up-gradation of present incumbents to next level without observing ratio (Annex-EE).
b) It is pointed out that Service Rules were amended accordingly vide Notification dated 14.04.2012 (Annex-FF). After amendment in the service rules, further promotions to the next tiers were to be made through DPC on seniority-cum-fitness basis. This structure was to be allowed keeping in view district/institution-wise seniority instead of up-grading all present incumbents to next level without observing ratio and seniority. But the field formation of Health Department started upgrading the incumbents without taking into account district/institution-wise seniority, which was in violation to the rules & policy.
c) In terms of Para 3 (viii) of said notification, Health Department, in consultation with Finance Department and Regulations Wing of S&GAD, shall provide an operational mechanism to monitor and facilitate the implementation process and resolve the anomalies/difficulties. Accordingly, Health Department, with the approval of Chief Secretary, constituted an Inter Departmental Committee to address the anomalies and re-design an implementation mechanism regarding paramedics.
Terms of reference of the Committee were as under:
i. To devise implementation mechanism for Allied Health Service Structure of Paramedics.
ii. To address any anomalies/difficulties with regards to its implementation.
d) The said Committee finalized its recommendations which were duly approved by the Chief Minister. Health Department, in consultation with Finance Department, developed implementation mechanism for up-gradation of Allied Health Professionals vide letter No.SO(G-II)38-3/2012(P) dated 02.01.2014 (Annex-GG). According to the said Notification, the existing incumbents were to be upgraded / adjusted to next level, within their respective categories of the posts, in order of seniority. However, the up-gradation / service structure was to be implemented subject to the following conditions:
i) Implementation of service structure of Allied Health Professionals for the post from BS-05 to BS-16 as well as for the posts from BS-17 to BS-20 will be in accordance with ratio of 50:34:15:1 keeping in view district/institution-wise seniority instead of upgrading all present incumbents to next level without observing ratio and seniority. Health Department must also observe ratio prescribed for initial recruitment and promotion in the Punjab Health Department Allied Health Professional (Service) Rules, 2012.
ii) In case the posts available in the proposed upper tier are less than the number of employees to be upgraded, the left over employees will be placed against upgraded posts on availability of vacant posts.
iii) Implementation will be in accordance with decision of Inter Departmental Committee.
iv) Implementation will be subject to Note-I below schedule of the Punjab Health Department Allied Health Professionals (Service) Rules, 2012, where all the existing incumbents whose posts have been upgraded up to BS-16 (vide notification dated 24.11.2011) shall undergo a short course to be designed in consultation with the University of Health Sciences or any other relevant institution and would be conducted at District Health Development Centers. This short course shall be in addition to the courses prescribed under rules ibid.
e) In-spite of above said development, Service Structure could not be implemented in its true perspective due to want of identification of posts. Hence, Finance Department time and again requested the Administrative Department for authentication of audit copy regarding identification of posts, on receipt of requisite audit copy, authenticated and returned the same vide letter No.FD.PC.2-6/77-P-II-(Prov)(619/18), dated 11.03.2020 (Annex-HH).
f) Finance Department, vide letter No.FD.PC.40-80/2015(174/20) dated 11.08.2021 (Annex-II), has already requested Chief Inspector of Treasuries & Accounts Punjab to issue instructions to all District Accounts Officers that only those orders may be implemented which are issued after conducting Departmental Promotion Committee meeting in accordance with notified 4-Tier Service Structure, Service Rules amended thereafter and identification of posts duly authenticated by Finance Department vide Notification No.SO(AHP-I)15-51/2016 (749) dated 17.03.2020.
g) The DG Health Services vide order bearing No.1715-21/1069/JC dated 06.06.2022 (Annex-E of writ) has also issued instructions to all CEOs, DHAs for withdrawal of all illegal up-gradations (beyond one time) of in service and retired Allied Health Professionals. In case of non-compliance, matter will be forwarded to Competent Authority for disciplinary under PEEDA Act, 2006. After withdrawal of illegal up-gradations of in Service employees their cases for promotion be placed before DPC. Cases of Senior Technicians (BS-14) to Chief Technicians be forwarded to DG Health Services being Competent Authority.
h) Hence, letters dated 17.10.2023 (Annex-G of writ) issued by the Chief Executive Officer, DHA, Muzaffargarh (not impleaded as Respondent) and dated 10.10.2023 (Annex-F of writ) issued by the District Accounts Officer, Muzaffargarh (Not impleaded as Respondent) are in accordance with law & policy of the Government.
PARAWISE COMMENTS:
- That it is a matter of record.
2-8) That according to the Notification No.SO(NDY)-7-1/2010-(Paramedics), dated 24.11.2011, re-organization of Paramedical Cadre under 4-Tier Allied Health Service Structure was allowed with the ratio of 50:34:15:1 (i.e. BS-9,12,14 & 16) and all the existing categories of Allied Health Professional (Paramedics) falling in BS-05 to BS-08 were placed / up-graded with its re-designation as Junior Technician (BS-09) as one time dispensation. Service Rules were required to be amended accordingly. After amendment in the Service Rules, further promotions to the next tiers were to be made through DPC on seniority-cum-fitness basis. This structure was to be allowed keeping in view district/institution-wise seniority instead of up-grading all present incumbents to next level without observing ratio and seniority. (Annex-EE):
It is pointed out that Service Rules were amended accordingly vide Notification dated 14.04.2012 (Annex-FF). After amendment in the service rules, further promotions to the next tiers were to be made through DPC on seniority-cum-fitness basis. This structure was to be allowed keeping in view district/institution-wise seniority instead of up-grading all present incumbents to next level without observing ratio and seniority. But the field formation of Health Department started upgrading the incumbents without taking into account district/institution-wise seniority, which was in violation to the rules & policy.
That in terms of Para 3 (viii) of said notification, Health Department, in consultation with Finance Department and Regulations Wing of S&GAD, shall provide an operational mechanism to monitor and facilitate the implementation process and resolve the anomalies/difficulties. Accordingly, Health Department, with the approval of of Chief Secretary, constituted an Inter Departmental Committee to address the anomalies and re-design an implementation mechanism regarding paramedics. Terms of reference of the Committee were as under:
i. To devise implementation mechanism for Allied Health Service Structure of Paramedics.
ii. To address any anomalies/difficulties with regards to its implementation.
That the said Committee finalized its recommendations which were duly approved by the Chief Minister. Health Department, in consultation with Finance Department, developed implementation mechanism for up-gradation of Allied Health Professionals vide letter No.SO(G-II)38-3/2012(P) dated 02.01.2014 (Annex-GG).
According to the said Notification, the existing incumbents were to be upgraded/adjusted to next level, within their respective categories of the posts, in order of seniority. However, the up-gradation/service structure was to be implemented subject to the following conditions:
- Implementation of service structure of Allied Health Professionals for the post from BS-05 to BS-16 as well as for the posts from BS-17 to BS-20 will be in accordance with ratio of 50:34:15:1 keeping in view district/institution-wise seniority instead of upgrading all present incumbents to next level without observing ratio and seniority. Health Department must also observe ratio prescribed for initial recruitment and promotion in the Punjab Health Department Allied Health Professional (Service) Rules, 2012.
- In case the posts available in the proposed upper tier are less than the number of employees to be upgraded, the left-over employees will be placed against upgraded posts on availability of vacant posts.
- Implementation will be in accordance with decision of Inter Departmental Committee.
- Implementation will be subject to Note-I below scheduled of the Punjab Health Department Allied Health Professionals (Service) Rules, 2012, where all the existing incumbents whose posts have been upgraded upto BS-16 (vide notification dated 24.11.2011) shall undergo a short course to be designed in consultation with the University of Health Sciences or any other relevant institution and would be conducted at District Health Development Centers. This short course shall be in addition to the courses prescribed under rules ibid.
In-spite of above said development, Service Structure could not be implemented in its true perspective due to want of identification of posts. Hence, Finance Department time and again requested the Administrative Department for authentication of audit copy regarding identification of posts. Finance Department, on receipt of requisite audit copy, authenticated and returned the same vide letter No.FD.PC.2-6/77-P-I-(Prov)(619/18), dated 11.03.2020 (Annex-HII).
Finance Department, vide letter No.FD.PC.40-80/2015(1174/20) dated 11.08.2021 (Annex-II), has already requested Chief Inspector of Treasuries & Accounts Punjab to issue instructions to all District Accounts Officers that only those orders may be implemented which are issued after conducting Departmental Promotion Committee meeting in accordance with notified 4-Tier Service Structure, Service Rules amended thereafter and identification of posts duly authenticated by Finance Department vide Notification No.SO(AHP-I)15-51/2016 (749) dated 17.03.2020.
The DG Health Services vide order bearing No.1715-21/1069/LC dated 06.06.2022 (Annex-E of writ) has also issued instructions to all CEOs, DHAs for withdrawal of all illegal up-gradations (beyond one time) of in service and retired Allied Health Professionals. In case of non-compliance, matter will be forwarded to Competent Authority for disciplinary under PEEDA Act, 2006. After withdrawal of illegal up-gradations of in Service employees, their cases for promotion be placed before DPC. Cases of Senior Technicians (BS-14) to Chief Technicians be forwarded to DG Health Services being Competent Authority.
Hence, letters dated 17.10.2023 (Annex-G of writ) issued by the Chief Executive Officer, DHA, Muzaffargarh (not impleaded as Respondent) and dated 10.10.2023 (Annex-F of writ) issued by the District Accounts Officer, Muzaffargarh (not impleaded as Respondent) are in accordance with law & policy of the Government.
GROUNDS:
i-viii) Factual position has been explained in Report / Parawise Comments supra. It is added that under Section 21 of General Clauses Act, 1956 an authority which can pass an order is entitled to vary, amend, add to or rescind that order. Locus Poenitentiae is the power of receding till a decisive step is taken. But it is not a principle of law that order once passed becomes irrevocable and it is past and closed transaction. If the order is illegal, then perpetual rights cannot be gained on the basis of an illegal order as held by the Hon’ble Supreme Court of Pakistan in judgement dated 12.08.1999 in CPLA No.383-L/99. Moreover, issuance of a legal order by the competent authority is an integral part of the principle of Locus Poenitentiae as held by the Hon’ble Supreme Court of Pakistan in judgement reported as 2021. SCMR 2174.
9-10) That the instant Writ Petition is not maintainable in the light of preliminary objections.
PRAYER:
It is, therefore, respectfully prayed that the instant writ petition may kindly be dismissed having no merits and being barred by jurisdiction.
