ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
C.P.No.D-374 of 2016
|
Date of hearing |
Order with signature of Judge |
Before:
Mr.Justice Khadim Hussain Tunio,
Mr.Justice Irshad Ali Shah,
· For orders of maintainability of main case.
Date of hearing : 28.11.2018
Date of decision: 15 .01.2019
Mr.Asif Hussain M.Nawaz Chandio, Advocate for the petitioners.
Mr.Abdul Hamid Bhurgri, Additional Advocate General a/w
Mr.Abid Hussain Qadri, State Counsel & Mr. Munawar Ali Abbasi, A.A.G
~.~.~.~.~.~.~.~.~.~.~
1. The petitioners by way of instant constitutional petition have prayed for the following relief;
A) That this Honourable Court may graciously be pleased to issue “WRIT OF MADAMUS” restrains the respondents not to act of discriminator in the same group of employees, who are initially appointed as Primary School Teachers in BPS-06/07 in the years 1977 to 2008 and allowed time Scale Vide Notification dated 21.07.2014, who is appointed in BPS-09 in the year 2011 as Primary School Teachers.
B) That this Honourable Court may graciously be pleased to tag this petition with other identical nature C.P No.D-2273/2010, Re. Zahid Hulio Vs. P.O Sindh and others is noticed and pending before this Honourable Court.
C) That this Honourable Court may further be pleased to declare that the stoppage of Time Scale of petitioners/Primary School Teachers and its recovery of huge amount from the monthly salary is illegal, ultra-vires and direct the respondents to allow the petitioners/PST’s to draw the amount as admissible under the rules, and direct the District Accounts Officers to refund the amount deducted from the salary of Employees.
D) That this Honourable Court may further be pleased to direct the District Accounts Officers not to deduct the amount from the salary till the petition be finally decided.
E) Cost of the petition be awarded.
F) Any other relief which this Honourable Court may deems fit and proper.
2. The facts in brief necessary for disposal of
instant constitutional petition are that as per petitioners, as per
promotion/up-gradation policy of Government for Primary School Teachers,
commonly known as “Move-over/Selection Grade”, the eligible employees were
promoted in next higher grade. Subsequently, the Finance Department Government
of Sindh vide Notification No.FD(SR-1)1(52)/2010, dated 21 July 2014, and in continuation
of Department’s Circular of even number, dated 07.06.2010, and with approval of
the Competent Authority granted incentive of Higher Grade on the basis of Time
Scale to Primary
School Teachers, who were appointed in BS-09 with effect from 28.11.2011. The
petitioners as such were awarded BS-16 by way of Time Scale in month of August,
2014 by Director Education Region Larkana. It is further submitted by the
petitioners that the Accountant General Sindh without providing chance of hearing
to the Primary School Teachers started to deduct arrears from their monthly
salaries. It was in these circumstances, the petitioners have maintained the
instant constitutional petition.
3. The respondents in their objections/written statements and Para-wise comments have sought for dismissal of the instant constitutional petition by inter-alia submitting that it is barred by Article 212 of the Constitution of Islamic Republic of Pakistan, 1973.
4. The reply furnished by Accountant General Sindh was to the following effect;
“The disbursement in r/o Time Scale Promotions were examined in this office. AG’s letter dated 2.2.2016 is on record (Ann-B). However, another clarification on the issue was sought from FD Sindh vide No.DAG-Edu/2015-16/Vol-11/675 dated 10.11.2015 (Ann-C). The reply of FD Sindh is at (Ann-A). Overpayments in the light of FD Sindh got recovered from the respective beneficiaries”.
5. It is contended by learned counsel for the petitioners that the petitioners were awarded Time Scale benefits in accordance with law and it has been stopped without lawful justification or providing chance of hearing to them, as such this Court by invoking its jurisdiction under Article 199 of the Constitution could order for restoration of such benefit in favour of the petitioners from the date when it was stopped.
6. Learned Additional Advocate General sought for dismissal of the instant constitutional petition by contending that it is barred by Article 212 of the Constitution of Islamic Republic of Pakistan, 1973.
7. We have considered the above arguments and perused the record.
8. Prima facie, jurisdiction of this Court has been challenged, therefore, before going into merits of the case, it would be appropriate to attend the same. The sub-Section (2) to Section (3) of the Sindh Service Tribunal Acts, is relevant, as such it is referred which reads as under;
“A Tribunal shall have exclusive jurisdiction in respect of matters relating to the terms and conditions of service of Civil Servants including disciplinary matters”.
9. Pre-amble to Sindh Service Tribunal Act, 1973 (Act XV of 1973) further clarifies the situation, which reads as under;
“Whereas it is expedient to provide for the establishment of Administrative Tribunals, to be called Service Tribunals, to exercise exclusive jurisdiction, in respect of matters relating to the terms and conditions of service of civil servants and for matters connected therewith or a ancillary thereto”.
10. The use of word “ancillary thereto” expressly suggest that not only the Terms of Service of Civil Servant but all the ancillary disputes relating thereto are falling within the exclusive jurisdiction of the Sindh Services Tribunal. In that situation, it would be hard for this Court to make an interference with the service matter, under any circumstances, including the pretext of being not heard. Such exclusivity of the Tribunal is also affirmed by the Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, which reads as under;
“212. Administrative Courts and Tribunals. (1) Notwithstanding anything hereinbefore contained, the appropriate Legislature may by Act [provide for the establishment of] one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of__
(a) matters relating to the terms and conditions of persons [who are or have been] in the service of Pakistan, including disciplinary matters;
(b) matters relating to claims arising from tortuous acts of Government, or any person in the service of Pakistan, or of any local or other authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge of his duties as such servant; or
(c) matters relating to the acquisition, administration and disposal of any property which is deemed to be enemy property under any law.
(2) Notwithstanding anything hereinbefore contained, where any Administrative Court or Tribunal is established under clause (1), no other Court shall grant an injunction, make any order or entertain any proceeding in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends [and all proceedings in respect of any such matter which may be pending before such other Court immediately before the establishment of the Administrative Court or Tribunal [other than an appeal pending before the Supreme Court] shall abate on such establishment]”.
11. A joint reading of the relevant provisions of Sindh Service Tribunal Act, 1973 and Article 212 of the Constitution would show that it does not confer a concurrent jurisdiction upon Civil Court, High Court and Tribunals. The ouster contemplated under the said Article is a constitutional command and it restricts the jurisdiction of Civil Court and High Court over the matters which squarely are falling within the exclusive jurisdiction of Tribunal.
12. In case of Ali Azhar Khan Baloch and others Vs. Province of Sindh and others (2015 SCMR-456), it has been held by the Honourable Apex Court that;
“---S. 3(2) & 9-A---Constitution of Pakistan, Art. 188---Review petition---Civil servant rendered surplus---Appointment to any post in any department or office of Government---Scope---Rule 9-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, had been introduced with the object to accommodate the persons who were rendered surplus by abolition of their posts or the organization in which they were working had been taken over by the Provincial Government---Said Rule could not be used as a tool to accommodate a person by abolishing his post with an object to appoint him by transfer to a cadre or service or post in deviation of R. 3(2) of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, which was a condition precedent for appointment to such post---In order to exercise powers under R.9-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, there had to be some justification for abolition of the post against which such person was working---Such justification should come from the Department and/or organization which shall be in consultation with the Services and General Administration Department and approved by the competent authority---Rule 9-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, did not permit appointment by transfer of a non-civil servant to any other Department and/or organization controlled by the Government to a post which restricted the transfer under R. 3(2) of the said Rules---Person could only be appointed by transfer under R. 9-A of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, if he had the eligibility, matching qualifications, expertise coupled with the conditions laid down under R. 3(2) of the said Rules for appointment to such post---Rule 9-A did not permit transfer of a non-civil servant to a cadre, service or post meant for a civil servant, recruited in the cadre or service or post after competitive process---Such an appointment by transfer in the nature of absorption would only be permissible, if the pre-conditions laid under R. 9-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, were met---Review petition was dismissed accordingly”.
13. Prima facie, this Court cannot entertain the dispute which is falling within the domain of Service Tribunal. The exercise of jurisdiction by this Court is conferred under Article 175 (2) of the Constitution, which reads as under;
“175 (2) No court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law”.
14. The above discussion makes it quite obvious that once the matter is one falling or relating to the ‘Terms & Conditions’ of the Civil Servant, no other Court, including this Court, except the Tribunal shall have jurisdiction to adjudicate upon the matter. It is added further that the constitutional jurisdiction by a Civil Servant could only be exercised, if the grievance is established to be not falling or relating to ‘Terms & Conditions’ of his service but some legislative instrument, on ground of its being violative of the Constitution or otherwise of fundamental rights having for reaching effects on service structure, is challenged. The reference in that context can be made upon case of Ali Azhar Khan Baloch (supra) wherein line of difference was categorically clarified as under;
“101. The perception that a Civil Servant can only seek redressal of his grievance from the Tribunal or from any other forum provided by the Civil Servants Act, is not correct. A Civil Servant, being a citizen of this country, equally enjoys the fundamental rights conferred by Chapter 1 of Part II of the Constitution. We, while examining the contentions made during the hearing of the Constitution Petitions, have dealt in detail with the issue as to whether any rights of the Civil Servants were offended by the impugned legislative instruments in the Constitution Petitions. We, after hearing the parties, concluded that the impugned legislative instruments were violative of Articles 240(b), 242(1B), 4, 8, 9 and 25 of the Constitution. We have also observed in the judgment under review that the issues raised in the Constitution Petitions were of public importance and had far reaching effects on service structure of the Province, therefore, the Petitions under Article 184(3) of the Constitution, were maintainable before this Court and hence the same were entertained”.
15. It is observed without hesitation that ‘promotion and up-gradation’ are not synonyms to each other but there is considerable difference between these two. This was so viewed in case of Ali Azhar Khan Baloch (supra) by the Honourable Apex Court with the following observation;
“138. During the hearing of the review petitions, we have noticed that the Sindh Government has upgraded certain posts of individuals without any mechanism of upgradation to benefit them. The expression 'upgradation' is distinct from the expression 'promotion' which has not been defined either in the Act or the Rules framed thereunder, and is restricted to the post and not with the person occupying it. The upgradation cannot be made to benefit a particular individual in terms of promoting him to a higher post or further providing him with the avenues of lateral appointment or transfer or posting. In order to justify the upgradation, the Government is required to establish that the department needs restructuring, reform or to meet the exigency of service in public interest. In the absence of these pre-conditions, upgradation is not permissible. We have noticed that some of the civil servants have been promoted to higher posts against the tenural limitations, without qualifying the requisite departmental examinations/trainings under the garb of upgradation. Such civil servants having not been promoted in accordance with law need to be reverted to their substantive ranks/posts which they were holding immediately before their upgradation and their seniority shall be determined along with their batchmates. The Sindh Government shall undertake this exercise and report compliance within 4 weeks through the Chief Secretary, Sindh”.
16. In the case of Ali Zhar Khan Baloch (supra) the expression ‘Terms and Conditions’ were commented as below;
“150. The High Court of Sindh has completely overlooked the intent and spirit of the Constitutional provisions relating to the terms and conditions of service, while entertaining Civil Suits and constitution petitions filed by the civil servants, which are explicitly barred by Article 212. The expression 'Terms and Conditions' includes transfer, posting, absorption, seniority and eligibility to promotion but excludes fitness or otherwise of a person, to be appointed to or hold a particular post or to be promoted to a higher post or grade as provided under section 4(b) of the Sindh Service Tribunals Act, 1973. Surprisingly, it has been ignored that it is, by now, a settled principle of law that the civil and writ jurisdictions would not lie in respect of the suits or petitions filed with regard to the terms and conditions of Civil Servants, and yet some of the learned Judges of High Court of Sindh have erroneously exercised both civil and writ jurisdictions with regard to the terms and conditions of civil servants”.
17. Though, being conscious of such legal position, we would not go in details as the question of maintainability of constitutional petition with reference to ‘Time Scale/Up-gradation’ rather would leave it open to be attended at proper time.
18. On merits, it is stated that the issue, involved, in the instant matter relates to ‘Time Scale/Up-gradation Policy’ which, however, has not been challenged by the petitioners though it was so pleaded in the constitutional petition by submitting as below;
“10. The act of respondents for granting the Time Scale to those Employees who are intermediate and started deduction from those employee, who are matriculation in the same department is against the law and equity and act is discriminated”.
19. Since, it is also, by now, a well settled principle of law that framing of policy(ies), is otherwise, absolute right of the Executive/Government and normally the Constitutional jurisdiction would not be available to disturb the same unless it is, prima facie, established that same is either malafide or in violation of the fundamental rights. The reliance in that context can be placed upon case of Wattan Party and another Vs. Federation of Pakistan and others (PLD 2013 SC-167), wherein it is observed by Honourable Apex Court as under;
“8. From the bare reading of the Constitution, particularly, Articles 29 and 38 of Chapter 2, Part-II, relating to principles of policy, it is evident that policies are to be made by the respective Federal and Provincial Governments and all decisions regarding their implementation are also to be taken by them on the basis of determined priorities of different projects and availability of financial resources at their disposal. Obviously, this exercise cannot be ordinarily interfered with by this Court by invoking its jurisdiction under Article 184(3) of the Constitution, unless shown to be malafide or in violation of the fundamental rights guaranteed under the Constitution to every citizen of this Country, thereby affecting the interest of public at large”.
20. Since, undeniably the policy of Time Scale/up-gradation has not been challenged and in absence thereof the legality whereof cannot be examined, particularly when the protection, provided by Article 25 of the Constitution, is subject to law and the Executives/Government can make reasonable classification. The reference in that context can be placed upon case of Pakcom Ltd. and others Vs. Federation of Pakistan and others (PLD 2011 SC-44) wherein the Hon’ble Apex Court has held as under;
“It would not be enough to say that a piece of legislation or a policy formulated thereunder is discriminatory but it is to be substantiated by applying certain well entrenched principles on the subject of discriminatory legislation which are as follows:--
(i) The expression ‘equality before law’ or the ‘equal protection of law’ does not mean that it secures to all persons the benefit of the same laws and the same remedies. It only requires that all persons similarly situated or circumstanced shall be treated alike;
(ii) The guarantee of equal protection of law does not mean that all laws must be general in character and universal in application and the State has no power to distinguish and classify persons or things for the purpose of legislation;
(iii) The guarantee of equal protection of laws forbids class legislation but does not forbid reasonable classification for the purpose of legislation. The guarantee does not prohibit discrimination with respect to things that are different. The State has the power to classify persons or things and to make laws applicable only to the persons or things within the class;
(iv) The classification, if it is not to offend against the Constitutional guarantee must be based upon some intelligible differential bearing a reasonable and just relation to the object sought to be achieved by the legislation.
21. In absence of such challenge, it would not be appropriate to discuss the legality or otherwise thereof. Further, it has also come on record that Accountant General Sindh has claimed his action to be under clarification, issued by the Finance Department Sindh, which too, is not challenged by the petitioners. Without specific challenge to Time Scale Policy as well referred clarifications of Finance Department Sindh, it would not be legally justified to make any comments thereon.
22. In consequence of discussion made, here-in-above, we find no merits in the instant constitutional petition and same is dismissed being without substance, with no order as to costs.
JUDGE
JUDGE
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