2024 P L C (C.S.) 1125
[Balochistan High Court]
Before Naeem Akhtar Afghan, CJ and Gul Hassan Tareen, J
MUHAMMAD ARIF and 4 others
Versus
GOVERNMENT OF BALOCHISTAN through Chief Secretary and 3 others
C.P. No.1052 OF 2023, decided on 26th July, 2023.
Balochistan Civil Servants Act (IX of 1974) ---
----Ss. 2(1)(b), 4 & 17--- Constitution of Pakistan, Arts. 212 & 199--- Civil servant ---Release
of pay--- Constitutional petition ---Maintainability ---Terms and conditions of service---
Balochistan Service Tribunal, powers of ---Petitioners (having been recruited against different
positions lying vacant in the Health Department/respondents) sought a writ of mandamus
directing the respondents for release and payment of their due salaries for last three years or so---Validity ---Petitioners, admittedly, were initially recruited against different positions
lying vacant in the respondents /Health Department; they submitted their respective joining reports and started performing official duties ---Petitioners were, thus, members of civil
service of the Province (of Balochistan) and held civil posts in connection with the affairs of
the Province and therefore, for all intents and purposes, were civil servants within the meaning of S. 2 subsection (1), clause (b) of the Balochistan Civil Servants Act, 1974 ('the Act 1974') ---Petitioners claimed payment of monthly pays ---Like any other term and
condition of service of a civil servant, pay is likewise a term and condition of service of a person in the service of the Province of Balochistan ---According to Preamble of the Act,
1974, said piece of legislation was enacted to regulate by law the appointment of persons to and the terms and conditions of service of persons in the service of Balochistan and to provide for matters connected therewith or ancillary thereto ---Terms and conditions of
service of a civil servant in the service of the Province of Balochistan are contained in Chapter II of the Act, 1974 and the Rules framed thereunder ---As S.17 of the Act, 1974,
relates to the term 'pay', therefore, a civil servant in the service of the Province of Balochistan, aggrieved by any final order, whether original or appellate made by Departmental Authority in respect of any of the terms and conditions of his service, may prefer an appeal to the Balochistan Service Tribunal established under Art.212(1) of the Constitution read with S. 4 of the Balochistan Service Tribunals Act, 1974--- Article 212(2)
of the Constitution imposes a complete clog on the jurisdiction of the High Court under Art. 199 of the Constitution where a matter relates to the terms and conditions of service of a civil servant in the service of the Province of Balochistan---Article 199 of the Constitution starts with an expression i.e. 'subject to the Constitution' whereas, Art. 212(1) thereof with an obstante clause i.e. 'notwithstanding anything hereinbefore contained'---Therefore, Art.212(1) of the Constitution supersedes Art. 199(1) of Constitution in respect of a matter relating to the terms and conditions of a civil servant ---Since 'pay' is a term and condition of
the service of the petitioners therefore, they should have preferred service appeal before the Balochistan Service Tribunal after exhausting the remedy of a department appeal ---High
Court under Art. 199 of the Constitution could not exercise jurisdiction in respect of the grievance of petitioners in relation to their monthly pay--- Petitioners were civil servants and
their alleged grievance related to the terms and conditions of their service, therefore, the jurisdiction to entertain the present petition was barred by Art.175(2) read with Art. 212(2) of the Constitution--- Balochistan Service Tribunal had exclusive jurisdiction to entertain the
alleged grievance of the petitioners ---Constitutional petition was dismissed in limine, in
circumstances.
Punjab Textbook Board Lahore and others v. Muhammad Akhtar Sherani and others
PLD 2001 SC 1032 and National Assembly Secretariat through Secretary v. Manzoor Ahmed and others 2015 SCMR 253 ref.
Naimatullah Achakzai for Petitioners.
Date of hearing: 24th July, 2023.
ORDER
GUL HASSAN TAREEN, J. ---Through this Constitution Petition, filed under
Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 ('the Constitution'),
the petitioners have sought a writ of mandamus, to direct the respondents for release and payment of their due salaries since September, 2020.
2. Facts of the case, briefly stated, are that the District Health Officer, Loralai, on the
recommendations of the District Recruitment Committee and, with the prior approval of the Secretary, Health Department, Government of Balochistan, issued appointment orders to the petitioners whereby, they were initially recruited against different positions lying vacant in
the Health Department, Government of Balochistan. The petitioners had submitted their
joining reports to their respective offices of posting and started performing functions in
connection with the affairs of their respective offices. They were however, deprived from receipt of their monthly pays. They approached to the respondents Nos. 2 to 4, however, they were placed on lame excuses and failed to do the needful.
3. Mr. Naimatullah Achakzai Advocate, representing the petitioners contends that
petitioners were initially recruited against different advertised posts in the Health
Department, Government of Balochistan and after submission of joining report; the
petitioners started performing their official duties. However, the respondents, even then
failed to pay the monthly pays of the petitioners in violation of their Fundamental Rights.
4. We have heard learned counsel for the petitioners at length and perused the available
record.
5. According to petitioners' own contention, they were initially recruited against
different positions lying vacant in the Health Department, Government of Balochistan. They
submitted their respective joining reports and started performing official duties. The petitioners are admittedly members of a civil service of the Province of Balochistan and hold civil posts in connection with the affairs of the Province and therefore, for all intents and purposes, are civil servants within the meaning of section 2 subsection (1) clause (b), the Balochistan Civil Servants Act, 1974 ('Act, 1974'). In the instant petition, the petitioners have claimed payment of monthly pays. Like any other term and condition of service of a civil servant, pay is likewise a term and condition of service of a person in the service of the Province of Balochistan. According to preamble of the Act, 1974, this subordinate piece of legislation was enacted to regulate by law, the appointment of persons to, and the terms and conditions of service of persons in, the service of Balochistan and to provide for matters connected therewith or ancillary thereto. The terms and conditions of service of a civil servant in the service of the Province of Balochistan are contained in Chapter II of the Act, 1974 and the Rules framed thereunder.
Chapter -II:
Terms and Condition of Service of Balochistan Civil Servants:
S. 17: - Pay.
The Chapter -II of the Act, 1974 comprises upon sections 3 to 22 under the heading
'Terms and Conditions of service of Balochistan Civil Servants.' Section 17 pertains to 'pay', which is therefore, term and condition of service of a civil servant.
6. As section 17 of the Act, 1974 relates to the term 'pay', therefore, a civil servant in the
service of the Province of Balochistan, aggrieved by any final order, whether original or appellate made by departmental authority in respect of any of the terms and conditions of his service may prefer an appeal to the Balochistan Service Tribunal established under Article 212 (1) of the Constitution read with section 4, the Balochistan Service Tribunals Act, 1974. Article 212(2) of the Constitution imposes a com plete clog on the jurisdiction of this Court
under Article 199 of the Constitution where a matter relates to the terms and conditions of service of a civil servant in the service of the Province of Balochistan. The Article 199 of the
Constitution starts with an expression i.e. 'subject to the Constitution' whereas, Article 212(1)
thereof with an obstante clause i.e. 'notwithstanding anything hereinbefore contained'.
Therefore, Article 212(1) of the Constitution supersedes Article 199(1) of the Constitution in respect of a matter relating to the terms and conditions of service of a civil servant. Since 'pay' is a term and condition of the service of the petitioners therefore, they should have preferred service appeal before the Balochistan Service Tribunal after exhausting the remedy
of a department appeal. This Court under Article 199 of the Constitution cannot exercise
jurisdiction in respect of the grievance of petitioners in relation to their monthly pay.
Reliance is placed on the case reported as Punjab Textbook Board Lahore and others v. Muhammad Akhtar Sherani and others, (PLD 2001 SC 1032) wherein, the Supreme Court of Pakistan has enunciated as under:
"8. Even the case reported as Administrator, District Council, Larkana and another v. Ghulam Khan and 5 others (2001 SCMR 1320) is also not attracted herein that in the said precedent the question of withholding of salaries of the employees was involved as their appointments were allegedly made in violation of the rules. We respectfully disagree with the dictum that the objection raised on behalf of the petitioners therein to the effect that the High Court has no jurisdiction to entertain the matter in relation to salary of the employees as it has a direct nexus with the terms and conditions of service of the employees in view of the bar imposed under Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973 was a technical objection. In our considered view the objection to the jurisdiction of the High Court to entertain a writ petition raised on behalf of the petitioners therein, was not technical in nature but
going to the very root of the case. This Court has repeatedly held that the Service
Tribunal alone is the appropriate forum having jurisdiction to deal with matters
relating to the terms and conditions of service of civil servants in view of the bar contained in Article 212 of the Constitution. To this extent we respectfully overrule
the above dictum."
7. The petitioners are civil servants and their alleged grievance relates to the terms and
conditions of their service, therefore, the jurisdiction to entertain this petition is barred by Article 175(2) read with Article 212(2) of the Constitution. The Balochistan Service Tribunal has exclusive jurisdiction to entertain the alleged grievance of the petitioners. In the case of National Assembly Secretariat through Secretary v. Manzoor Ahmed and others (2015 SCMR 253), the Supreme court of Pakistan has enunciated as under:
"8. We have heard the learned counsel for the parties and have perused the record. Admittedly, respondent No.1 is a Civil Servant and, therefore, he could not have approached the High Court under Article 199 of the Constitution for redressal of his grievance, which pertained to the terms and conditions of his Service in view of the Bar created under Article 212(2) of the Constitution. The High Court, therefore, was not competent to adjudicate the issue raised in the Writ Petition. The High Court has fallen in error while proceeding on the erroneous assumption that respondent No.1 had raised the issue of violation of the statutory Rules, therefore, it was competent to decide the issues. This was an incorrect approach of the learned High Court to entertain a Constitution Petition of a Civil Servant on the ground of the statutory violation. Such grievances of a Civil Servant fall within the domain of the Federal Service Tribunal as mandated by the Constitution."
For afore discussion, the petition is dismissed in limine.
MQ/23/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,
let us know.