ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

C.P. No.D-1958 of 2011

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DATE                 ORDER WITH SIGNATURE(S) OF JUDGE(S) 

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1)       For Katcha Peshi

2)       For hearing of Misc.No.9085/2011 (Stay)

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16.09.2013

            Mr. Ghazanfar Ali Jatoi, Advocate for Petitioner

            Mr. Muhammad Zahid, DAG alongwith SIP Ghulam Ali of P.S. Gulshan-e-Iqbal, Karachi.

            Mr. Shafqat Ali Shah Masoomi, Advocate for Respondents Nos.2 and 3

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NAIMATULLAH PHULPOTO, J.--- Through instant constitution petition filed by petitioner, namely, Ghulam Hussain Jatoi on 28.05.2011, the petitioner seeks following reliefs:

 

1.                  Declare that in view of judgment of Honourable Supreme Court of Pakistan in the case of Hameed Akhtar Niazi 1996 SCMR 1185, Tara Chand’s case 2005 SCMR 499 and Sameena Parveen 2009 SCMR 1 respondents were required to extend the benefit of the judgments of the Honourable Lahore High Court dated 13.10.1999 in W.P. No.352 of 1997 and the order of learned Tribunal dated 22.07.2008 to all officers including petitioner.

 

2.                  Direct the respondents to extend the benefit of judgment of Honourable Lahore High Court dated 13.10.1999 and the learned Tribunal dated 22.07.2008 and grant antedated retrospective promotion to petitioner w.e.f. 01.01.2000 along with all consequential benefits as done in the case of identical officers by means of notification dated 31.12.2008 and 31.03.2009.

 

3.                  Direct the respondents to grant petitioners further promotion as ACIR and DCIR on the basis of above said antedated retrospective promotion in accordance with their seniority.

 

4.                  Direct the respondents to grant all other benefits as allowed to other officers by means of notification dated 31.12.2008 and 31.03.2009.

 

5.                  Restrain the respondent from taking any action for filing the posts of which the petitioner is entitled as result of the order of the learned Tribunal.

 

6.                  Grant any other relief deemed just and appropriate in the circumstances of the case.

 

7.                  Cost of petition.

2.       Notices were issued to the respondents as well as Deputy Attorney General.

 

3.       During pendency of the petition Mr. Jatoi placed on record a copy of Notification dated 21.10.2011 and stated that his grievance is twofold, antedated promotion and consequential benefits. He stated that through notification dated 21.10.2011 he has been granted antedated promotion but consequential benefits have not been allowed to him.

 

4.       Respondents Nos.1, 2 and 3 filed comments in which it is stated that this is service matter and falls within the exclusive jurisdiction of Federal Service Tribunal. It is stated that petition is not maintainable before this Court.    

 

5.       Mr. Ghazanfar Ali Jatoi, learned advocate for the petitioner argued that Lahore High Court, Multan Bench has granted relief to some income tax officers, the petitioner has been discriminated. He has further submitted that seniority of the petitioner has not been determined by the respondents.

 

6.       Mr. Muhammad Zahid, learned D.A.G., assisted by Mr. Shafqat Ali Shah Masoomi, learned counsel for respondents Nos.2 and 3, argued that petitioner being a civil servant, governed under the Civil Servants Act 1973 cannot invoke jurisdiction of the High Court in terms of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. He has further submitted that the petitioner has not approached to the Department for determination of inter seniority. It is argued that the petition is not maintainable. In support of his contention learned D.A.G. has relied upon the case of Government of Pakistan through Establishment Division and 7 others versus Hameed Akhtar Niazi, reported in PLD 2003 SC 110.

 

7.       We have carefully heard the learned counsel for the parties and perused the relevant record.

 

8.       It is admitted by the learned counsel for the petitioner that petitioner has not approached the respondents for determination of his inter seniority.

 

9.       The Honourable Supreme Court of Pakistan in the case of Government of Sindh through Secretary Education and Literacy Department and others vs. Nizakat Ali and others in Civil Petition No.K-534 of 2010 dated 27.12.2010 observed that in future High Court may determine before entertaining such writ petitions as to whether the jurisdiction to decide such cases is barred under Article 212 of the Constitution, particularly, when the matter pertains to terms and conditions of the employees. In above case, Honourable Supreme Court has held as under:-

 

“Mr. Abdul Fattah Malik, learned Additional Advocate General Sindh, states that grievance of the petitioner only relates to the jurisdiction of High Court under article 199 of the Constitution in view the complete ouster contemplated under Article 212 of the Constitution. According to him non-payment of salary is one of the Terms and Conditions of service therefore respondents could have availed their remedy before the Tribunal and the High Court may have not entertained the writ petition. However, he stated that order of the High Court has been implemented and salaries of respondents are being paid to them regularly.

 

2.       As far as, objection raised by learned Additional Advocate General Sindh with regard to jurisdiction of the High Court to decide the case under article 199 of the Constitution pertaining to the Terms and Conditions is concerned, it seems to be valid prima facie, but in the instant case order has been implemented and it would create hardship for the respondents if any adverse order against them is passed. However, it is observed that in future the High Court may determine before entertaining such writ petitions as to whether the jurisdiction to decide such cases is barred under Article 212 of the Constitution, particularly, when the matter pertains to Terms and Conditions of the employees.

 

Thus with the above observations petition stands dismissed. Leave declined.”

 

10.     Grievance of the petitioner relates to the terms and conditions of service of employees and jurisdiction of High Court in this case is barred under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973.

 

11.     For the above stated facts and reasons, while relying upon the above cited authorities, we are clear in our mind that instant petition is not maintainable in law, it is accordingly dismissed. However, petitioner would be at liberty to approach proper forum in accordance with law.

 

                                                                                             JUDGE

 

                                                                       JUDGE

 

Gulsher/PA