Pay Upgradation Does Not Change Cadre or Seniority: FCC in KP Textbook Board Case

Independently written and published by Shahbaz Shah Legal Journal.

The Federal Constitutional Court of Pakistan has held that pay upgradation does not, by itself, place an employee in a different cadre or give seniority there. It allowed the Khyber Pakhtunkhwa Textbook Board’s appeal in the case concerning Musadiq Ali Bangash, while leaving intact his earlier benefit of upgradation to BS-14. The dispute concerned cadre membership and seniority, rather than withdrawal of that pay benefit. (Paragraphs 8–15 and 19.)

The bench comprised Justice Syed Hasan Azhar Rizvi, who authored the reasons, and Justice Aamer Farooq. The reasons explain the short order dated 9 July 2026. The FCC’s official register lists their upload on 19 October 2026 and marks the judgment approved for reporting. The date of upload should not be confused with the date of the Court’s order.

Relevant part of the judgment: equal pay scales do not merge cadres

The following is the relevant extract from paragraph 11, on page 8. This is part of the judgment, not the full judgment:

As a general rule, an employee appointed to a particular cadre cannot claim, as a matter of right, induction into or transfer to another cadre. Any such change must have a lawful basis in the governing service rules or regulations and cannot be permitted merely because the two posts carry the same pay scale, particularly where it is likely to affect the seniority or promotional rights of employees already borne on the other cadre.

Read or download the full 14-page judgment (PDF). The official FCC judgment PDF is also available.

Appointment, upgradation and the earlier High Court order

Bangash entered service following an advertisement dated 21 May 2006 for an Assistant/Storekeeper post in BS-11. He was appointed on 7 September 2006 on a three-year contract and regularised on 7 May 2009. A provincial notification dated 28 July 2007 had upgraded Assistants from BS-11 to BS-14. He sought that benefit through Writ Petition No. 2481-P of 2013. (Paragraph 3.)

The Peshawar High Court’s judgment of 19 February 2014 extended the notification’s upgradation benefit to him. But its operative direction expressly left his exact seniority to the departmental authorities for determination in accordance with law. It did not decide that he belonged to the Assistants’ cadre for every service purpose. That distinction became central to the FCC’s decision. (Paragraphs 3 and 8.)

The Board initially inducted him into the Assistants’ cadre by an order dated 29 September 2014 and included him in a provisional seniority list dated 14 October 2014. A departmental committee then examined the service structure on 28 January 2015. It concluded that the upgradation direction had been complied with but that Assistants and Storekeepers belonged to separate cadres. (Paragraph 4.)

The Board approved separate seniority lists in its meeting of 29 April 2015. It issued the relevant direction on 19 May 2015 and communicated the final Storekeepers’ list on 9 June 2015. Those were the departmental orders later challenged. (Paragraph 4.)

Why the 2020 High Court judgment could not stand

The High Court dismissed a contempt petition on 15 May 2019 after finding that the earlier judgment had been implemented in its letter and spirit. A departmental appeal was also dismissed by the Board on 7 February 2020. In the later writ proceedings, however, the High Court’s judgment of 4 December 2020 set aside the 2015 orders. (Paragraphs 1 and 5.)

The later judgment treated the 2014 decision as having upgraded Bangash as an Assistant and relied on his provisional inclusion in the Assistants’ list. The FCC held that this read a change of cadre into an order which had not granted one. The earlier judgment protected the pay benefit actually awarded; it expressly left seniority to lawful departmental determination. (Paragraphs 8–10 and 15.)

In paragraph 15, on page 12, the FCC explained the limit on interpreting an earlier decision:

A judgment must be understood in the context of the issue actually determined and the relief actually granted; an incidental or consequential administrative act taken in its implementation cannot enlarge its operative command.

The same paragraph discusses constructive res judicata, referring to SME Bank Limited v. Izhar Ul Haq, 2019 SCMR 939. A party cannot use later proceedings to seek relief arising from the same cause which could and ought to have been claimed earlier. This discussion must be read with the Court’s express recognition that the original order had left the seniority question open for lawful determination.

Cadre depends on the sanctioned service structure

The Court examined the Khyber Pakhtunkhwa Text Book Board Employees Regulations, 1972, framed under section 24 of the Board’s 1971 Ordinance. Through Regulation 12, it drew guidance from Fundamental Rule 9(4), which relates cadre to the sanctioned strength of a service or a separately sanctioned part of it. The relevant question was therefore the post and service unit to which the employee was appointed, rather than pay scale alone. (Paragraph 10.)

The Assistant post appeared as a separate cadre in the Regulations’ Appendix. The Storekeeper post had been created and separately sanctioned by the competent authority. Sharing a basic pay scale did not turn these into one cadre. The FCC also found no mechanism in the applicable Regulations authorising the claimed cross-cadre induction. (Paragraphs 10–11.)

The appointment’s composite designation needed examination

The Board argued that the word Assistant in the appointment order was inadvertent. The FCC did not accept that an employer could simply avoid the effect of its own order by calling its wording a mistake. Equally, the composite description Assistant/Storekeeper could not be read in isolation from the recruitment record and governing service structure. (Paragraph 12.)

Regulation 3 allowed the Board’s service to include both the Appendix posts and additional posts determined subsequently. The Storekeeper post had been created with approval communicated on 2 September 2005. Its absence from the original Appendix did not make it an Assistant post. (Paragraph 12.)

The Court also referred to an amendment dated 25 May 2026 expressly incorporating Storekeeper BS-14 as a promotional post for Assistant Storekeepers BS-11. It expressly cautioned that the later amendment could not retrospectively determine Bangash’s original cadre status. It was consistent with the distinct service line otherwise shown by the record. (Paragraph 12.)

A provisional seniority list cannot override the rules

The 2014 provisional inclusion could not change the nature of the employee’s substantive appointment, enlarge the earlier judgment or create seniority contrary to the governing structure. The later committee and Board decisions represented the determination the original High Court order had left to the department. (Paragraph 13.)

The dismissal of contempt proceedings also mattered when construing what the original order required. The FCC carefully distinguished that relevance from a final adjudication of substantive service rights: a contempt order was not itself such an adjudication. (Paragraph 14.)

Colleagues whose seniority is affected must be heard

Nineteen Board employees separately challenged the High Court judgment through CPLA No. 6615 of 2021. The relief granted to Bangash directly affected their seniority and promotional prospects, yet they had not been joined or given a hearing in the High Court. (Paragraphs 17–18.)

Paragraph 18, on page 14, states:

The participation of the Board could not substitute for the representation of their individual and potentially competing interests.

Although non-joinder could have been cured by adding the employees, the case had been decided without doing so. The FCC held that this offended the right to be heard and independently vitiated the impugned judgment. It did not treat the employer’s representation as sufficient protection of employees with competing personal claims. (Paragraph 18.)

Delay was relevant, but was not the sole basis of decision

The challenged administrative orders dated from May and June 2015, while the fresh writ petition was instituted in 2019. Paragraph 16 says the effect of delay on settled seniority arrangements required attention. However, the intervening proceedings and the employee’s explanation would need assessment before delay alone could decide the matter. The FCC expressly rested its decision on the substantive and procedural grounds discussed, rather than exclusively on laches.

Final order and practical effect

Paragraph 19 allows Civil Appeal No. 537 of 2021 and sets aside the PHC judgment dated 4 December 2020 in WP No. 7461-P/2019. Because that appeal succeeded, Civil Appeal No. 538 of 2021 and CPLA No. 6615 of 2021 were disposed of as infructuous.

For employees and departments, the practical distinction is between the pay benefit awarded, the sanctioned cadre of appointment, and the seniority rights claimed. Each needs its own lawful basis. An order granting the first cannot automatically be treated as awarding the other two. Any litigation affecting existing colleagues must also give them an opportunity to be heard. (Paragraphs 10–15 and 18.)

For related reading, see our service-law articles and the judgment library.

Source identification note

The title page and operative order identify CA Nos. 537 and 538 of 2021 and CPLA 6615/2021. Running headers instead print CPLA No. 810 of 2026; this article uses the title and operative order and does not alter the supplied PDF.

Sources and full judgment

• Full supplied 14-page judgment PDF.
• Official FCC judgment PDF.
• Official FCC judgments register, which lists upload on 19 October 2026.

Case: Chairman, Khyber Pakhtunkhwa Text Book Board, Peshawar and another v. Musadiq Ali Bangash and others. C.A. Nos. 537 & 538 of 2021; C.M.A. 108-P/2021; C.P.L.A. 6615/2021. Date: 9 July 2026. Bench: Justice Syed Hasan Azhar Rizvi and Justice Aamer Farooq. Author: Justice Syed Hasan Azhar Rizvi. Approved for reporting. No reporter or neutral citation is printed in the supplied copy.

Frequently asked questions

Does an increase in pay scale automatically change an employee’s cadre?

No. Paragraphs 10–13 distinguish pay upgradation from membership of a separately sanctioned cadre. A lawful basis in the governing service rules is necessary for induction or transfer.

Did Musadiq Ali Bangash lose the BS-14 benefit?

No. The FCC treated the earlier upgradation as settled. It rejected the claim that this benefit also established membership and seniority in the Assistants’ cadre. (Paragraphs 8 and 15.)

Can provisional inclusion in a seniority list create a permanent right?

On this record it could not. The 2014 provisional list could neither change the substantive appointment nor enlarge the earlier judgment contrary to the service structure. (Paragraph 13.)

Must affected colleagues be heard in a seniority dispute?

Where the relief directly affects their seniority and promotional interests, the affected employees must be joined and heard. The Board’s participation did not replace their individual representation. (Paragraphs 17–18.)

Was the appeal allowed only because the employee filed late?

No. Paragraph 16 says delay required examination, including the intervening proceedings and explanation. The FCC expressly did not rest its decision exclusively on laches.

What did the FCC finally order?

It allowed CA 537/2021, set aside the PHC judgment of 4 December 2020, and disposed of CA 538/2021 and CPLA 6615/2021 as infructuous. (Paragraph 19.)

What is the judgment date and reporting status?

The reasons explain the short order dated 9 July 2026 and are approved for reporting. The FCC register lists upload on 19 October 2026. No reporter or neutral citation is printed in the supplied copy.