2022 P L C (C.S.) 1369
[Balochistan High Court]
Before Jamal Khan Mandokhail, CJ and Muhammad Kamran Khan Mulakhail, J
ABDUL GHAFFAR KUDEZAI and 2 others
Versus
GOVERNMENT OF BALOCHISTAN through Chief Secretary, Civil Secretariat,
Quetta and 2 others
C.P. No.1173 of 2020, decided on 31st May, 2021.
Balochistan Civil Servants Act (IX of 1974) ---
----S.2(1)(b) ---Constitution of Pakistan, Arts. 199 & 212 ---Service Tribunals Act (LXX of
1973), S.2(a) ---Bar of jurisdiction ---Retired civil servant ---Scope ---Petitioners, retired civil
servants, were aggrieved of payment of benevolent fund on the lower side ---Validity ---
Definition of civil servant as provided in S.2(1)(b) of the Balochistan Civil Servants Act,
1974 when considered with Art. 212 of the Constitution and Service Tribunals Act, 1974,
included the person who had remained as civil servant ---Retired civil servants were not
ousted from agitating their claims regarding terms and conditions of their service before the
Service Tribunals ---Petitioners being civ il servants were barred from agitating their claim
before the High Court and such bar was created through Art.212 of the Constitution ---
Constitutional petition was dismissed.
Ali Azhar Khan Baloch and others v. Province of Sindh and others 2015 SCMR 456
rel.
Aminullah Gharsheen for Petitioners.
Date of hearing: 20th April, 2021.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ----Through this constitutional
petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, the
petitioner ha s prayed for the following relief:
"It is, accordingly most respectfully prayed that this honorable court may kindly be
pleased to direct the issuance of lump sum benevolent fund as per their basic scale
instead of scale from which 4% benevolent fund were deducted from their salaries, is
illegal unlawful and without lawful authority as such same may be declared as illegal
and void.
Furthermore, this Hon'ble Court may kindly be pleased to revise the notification for
issuance of lump sum benevolent fund and to issue the same by issuing lump sum
benevolent fund as per scale, from which the 4% benevolent fund were deducted from
their salaries.
Any other relief which this Hon'ble Court deems fit and proper may also be granted in
favour of petitioner.
2. The Facts relevant for disposal of the instant constitutional petition are that the
petitioners being officers of Education Department in different scales were granted time
scales and were retired from service on attaining the age of superannuation; that t he
Government of Balochistan ordered for payment of Benevolent Fund to the employees on
their retirement, but it was statedly learnt by the petitioners that they are being paid the
Benevolent Fund as per their original scale instead of their promoted scale s, despite the fact
that 4% benevolent fund was deducted from their home take salaries; that the petitioners
approached the respondents by filing a representation, but of no avail, hence this petition.
3. The learned counsel for the petitioner inter alia c ontended that the respondents being
officers of the Education Department were granted time scale, and the deduction was also
made from their salaries in the promoted scale, but the amount paid is for the original pay
scale, which is a clear example of disc rimination; he finally urged for acceptance of petition
with the direction to the respondents to pay the benevolent fund to the petitioners as per their
promoted scales.
4. We have heard learned counsel for the petitioner and perused the record of the case
minutely.
5. The petitioners are aggrieved of the payment of benevolent fund, which is being paid
to the petitioners as per their original scale, while they being granted time scale promotions
are deprived to be paid the benevolent fund in accordance with their respective
shares/contributions, whereas the deduction of 4% benevolent fund was made from their
salaries. During course of arguments a query was posed to the learned counsel for petitioners
that whether this court has jurisdiction to entertain the petition and pass any order thereon, as
the petitioners were (retired) civil servant and they were required to have approached the
Service Tribunal for redressal of their grievances. The learned counsel for the petitioners was
of the view that since the pe titioners have retired from their service, therefore, they are no
more civil servants, thus this court has jurisdiction to entertain and decide the petition on
merit.
6. To settle the said question of law that whether a retired employee for the purpose of
his terms and conditions of service and pensionery benefits is considered as civil servant or
otherwise, it is essential to examine relevant statutory as well as constitutional
provisions/Articles. The definition of civil servant as provided in the Balochi stan Civil
Servant Act, 1974 in Clause 2(1)(b) reads as under: -
(b) "civil servant" means a person who is a member of a civil Service of the Province
of Balochistan or who holds a civil post in connection with the affairs of the Province,
but does not inc lude-
(i) a person who is on deputation to the Province of Balochistan from the Federation or
from any Province or other authority; or
(ii) a person who is employed on contract, or on work charged basis, or who is paid from
contingencies; or
(iii) a person who is a 'worker' or 'workman' as defined in the Factories Act, 1934 (XXV
of 1934), or the Workmen6's Compensation Act, 1923 (VIII of 1923). "
7. The term civil servant has been defined in Section 2(a) of the Balochistan Service
Tribunals Act, 1974 in fol lowing terms: -
"[(a) "civil servants" means a person who is or has been a civil servant within the
meaning of Balochistan Civil Servants Act, 1974 (IX of 1974);], but does not include
a person who is or has been a member of the subordinate judiciary, for the purposes
of this Act.
Explanation. ……………………
[(a-i) ……………………
(b) ……………………
(b-i) ……………………
(c) ……………………
After establishment of the Tribunal(s) [supra] for adjudication of matters relating to
the terms and conditions of service of civil servants, jur isdiction of all courts is barred by
Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973. Article 212 of the
Constitution stipulates: -
"212. Administrative Courts and Tribunals. -(1) Notwithstanding anything
hereinbefore contained, th e appropriate Legislature may by Act 1[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 2[who are or have been] in the
service of Pakistan, including disciplinary matters;
(b) matters relating to claims arising from tortious 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 proceedings in respect of any matter to
which the jur isdiction of such Administrative Court or Tribunal extends 1[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
2[, other than an appea l pending before the Supreme Court,] shall abate on such
establishment]:
Provided that the provisions of this clause shall not apply to an Administrative Court
or Tribunal established under an Act of a Provincial Assembly unless, at the request
of that As sembly made in the form of a resolution, 3[Majlis -e-Shoora (Parliament)]
by law extends the provisions to such a Court or Tribunal.
(3) An appeal to the Supreme Court from a judgment, decree, order or sentence of an
Administrative Court or Tribunal shall lie only if the Supreme Court, being satisfied
that the case involves a substantial question of law of public importance, grants leave
to appeal. "
8. The definition of 'civil servant' provided in Clause 2(a) of the Service Tribunals Act,
1973 correlates w ith Article 212(1)(a) of the Constitution, which is the supreme law. The
Constitution is fundamental to a law, created under its authority and when we comprehend
the intent of legislature by considering the plain meanings of Article 212 of the Constitution ,
it provides words person(s) who is/are or has/have been in the service of Pakistan. There
remains no ambiguity that definition of civil servant as provided in Clause 2(1)(b) of the Act
of 1973, when considered in juxtaposition with that of provision of A rticle 212 of the
Constitution and Services Tribunal Act, 1973, then same includes the person who remained
as civil servant for enforcement of his terms and conditions of service, which obviously
includes a retired employee, being already declared to be th e subject of definition under
Clause 2(1)(b) of the Civil Servants Act, 1973. They are not ousted from agitating their
claims regarding terms and conditions of their service(s) before the Service Tribunals. In the
light of said explanation / construction, there is no force in the argument that retired civil
servant is not a subject of Service Tribunal for redressal of his grievance for the purpose of
terms and conditions of his service.
9. The petitioner(s) was (were) is a civil servant(s) and is/are barre d to agitate his (their)
claim before this Court. This bar has been created through Article 212 of the Constitution. In
respect whereof, we are fortified by a dictum laid in the case of "Ali Azhar Khan Baloch and
others v. Province of Sindh and others (Par agraph 238) (2015 SCMR 456) wherein it is held
that : -
"Article 212 of the Constitution places fetters on the jurisdiction of a Civil Court and
a High Court to entertain matters relating to terms and conditions of service of a Civil
Servant. We have alrea dy dealt with the scope of Article 212 of the Constitution
separately. The mode of correction in the date of birth of a Civil Servant is provided
under Rule 12A of the Civil Servants (Appointment, Promotion and Transfer) Rules,
1973, which is part of terms and conditions of service of a Civil Servant and cannot
be resorted to through the Civil Suit. It has also been well established by now that a
Civil Servant cannot seek alteration in his date of birth at the verge of his retirement
or otherwise in a suit and in this respect principles laid down in the case of Dr.
Muhammad Aslam Baloach v. Government of Balochistan (2014 SCMR 1723) are
fully attracted."
10. It has been held by the superior Courts in the above referred case law that Article 212
of the Consti tution bars the jurisdiction of all Courts including to entertain and adjudicate
upon any matter in which terms and conditions of service of an employee are involved.
In the light of above, the instant writ petition is not maintainable hence, dismissed.
However, petitioner is at liberty to seek remedy available to him under the law, if so,
advised, subject to all just exceptions.
SA/141/Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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