P L D 1983 Supreme Court 126 (PLP)

NASIM HASAN SHAH, J. This petition for leave to appeal is directed against the judgment of the Punjab Service Tribunal dated 17-5-1982 accepting the appeal of the respondents. The facts of the case briefly are that the respondents are Readers to the Judges of the Lahore High Court, Lahore. The abovesaid Readers, prior to the introduction of the National Pay Scales 1972, were in N. P. S. 275-600, whereas the Judgment Writers were placed in Pay Scale 225-500 i. e. in a scale considerably lower to theirs. On the introduction of the National Pay Scales in the year 1972, however, both the above categories, namely, Readers and Judgment Writers were, placed in NPS

11. Sometimes later, the Judgment Writers were upgraded to N. P. S. 14 and some of them, who were selected as Private Secretaries, were further upgraded to N.P.S.

16. No change, however, was brought in the Pay Scale of the Readers, resulting in the anomalous situation that a category of staff, which until recently, was in a scale lower to them not only came at level with them but was placed in a scale far higher than theirs. Consequently, the respondents represented to the Government that they should also be placed in the same scale and allowed National Pay Scale No.

16. They additionally pointed out that the Readers to the Members, Board of Revenue, who were performing less onerous, duties were also placed in N. P. S.

16. The said representation was strongly supported by the Chief Justice and Judges of the Lahore High Court and ultimately also by the Services and General Administration Department of the Government of the Punjab and the matter was forwarded to the Finance Department for final decision. . The Secretary of the Finance Department, however, was not pleased to accept to any significant extent these -recommendations, considering that the grant of N. P. S. 12 to the respondents was sufficient. A notification dated 27-6-1981 was, accordingly, issued by the Finance Department, Government of the Punjab, under the signatures of the Finance Secretary, to the effect that the respondents were being brought on National Pay Scale No. 12 with effect from 22-6-1981. The respondents feeling dissatisfied with the above . decision, preferred an appeal against it before the Punjab Service Tribunal. The appeal was accepted by it vide judgment and order dated 17-5-1982 and the notification dated 27-6-1981, issued by the Finance Department, was set aside and it was held? that the respondents were, indeed, entitled to N. P. S. 16 and, therefore, a direction was issued that the posts of Readers in the High Court be upgraded to N. P. S.

16. This petition for leave to appeal is directed against the aforesaid judgment and order passed by the Punjab Service Tribunal. Mr. M. M. Saeed Beg, in support of this petition, has submitted that the decision contained in the impugned notification dated 27-6-1981 is a policy decision and that the Service Tribunal has no jurisdiction acting under section 4 of the Punjab Service Tribunals Act, 1974, to interfere with or to modify a policy decision of the Government. He has further submitted that the Service Tribunal has no jurisdiction to prescribe a particular pay scale to any class of the civil servants. Section 4 of the Punjab Service Tribunals Act, 1974, on which reliance is placed, lays down that "Any civil servant aggrieved by any final order whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him prefer an appeal to the Tribunal." The argument appears to be that since the order of the Finance Secretary allowing to the respondents N. P. S. 12 instead of N. P. S. 16 did not violate any of the terms. and conditions of their service the Tribunal had no jurisdiction to interfere with the impugned order passed by him. The said order was in the nature of a policy decision deciding the question as to that scale of pay should be allowed to Readers on the representation submitted by them and it did not contravene any term and condition of their service, Apart from the question whether the placement, in a far higher scale of pay of a category of staff (Judgment Writers) of the High Court, which formerly was placed in a lower scale of pay than another category of staff (Readers) in the same Organisation, amounts to their reduction in rank, which entitled them to appeal to the Service Tribunal; the fact is that the point now being raised before this Court was not raised before the Service Tribunal. The first question, therefore, is whether the appellant can be allowed to agitate for the first time in this Court this new point, which was not raised before the Service Tribunal? This Court has expressed its opinion on this question in several decisions but it will suffice to refer to some of the recent pronouncements of this Court in this point. In Khushi Muhammad v. Muhammad Din (1982SCMR362), the question was raised about lack of the jurisdiction of the Courts below to examine a certain question for the first time in support of a petition for leave to appeal. This Court, however, despite the refusal to grant leave to examine this question and the observations made by Mr. Justice Dorab Patel (as he then was), who wrote the judgment of the Court, are instructive and may usefully be reproduced below: "Learned counsel did not attempt to show that there was any error of law in the concurrent findings of the three Courts that the ihata had never been transferred to Kattar Singh as claimed by the petitioner. He, however, submitted that as the question was of the status of the property, the Civil Judge should have referred this question to the Custodian under section 41 of the Administration of Evacuee Property Act, 1957, and, therefore, the Civil Judge had no jurisdiction to decide this question. But, this question about the jurisdiction of the Courts is being raised for the first time in support of a petition for leave, and we cannot in accordance with our practice grant leave to examine a question which could have been but was not raised in the three Courts below. " The same view was taken in Noor Muhammad and another v. Extra Assistant Colonization Officer-Collector, Jauharabad and others (1982SCMR431). Again in Abdul Hamid Janjua v. Chief Engineer and another (1982SCMR159), leave to appeal was refused against the order of the Punjab Administrative Tribunal and Mr. Justice Karam Elahee Chauhan delivering the judgment of the Court held that a point not argued before the Tribunal could not be raised for the first time before this Court. The same view was taken in A. M. Wahidi v. Secretary, Establishment Division, Government of Pakistan (1981SCMR310), by a Bench consisting of Mr. Justice Anwarul Haque, C. J. and Mr. Justice Muhammad Afzal Zullah, wherein the question of the competency of the authority passing the order of reversion was urged before the Service Tribunal but leave to appeal was not granted because the ground sought to be raised before this Court was not urged before the Service Tribunal. Mr. M. M. Saeed Beg attempted to argue that the petitioner in the present case could raise the point now being urged despite the fact that it was not urged before the Service Tribunal because he was appearing before the Service Tribunal as a respondent and as such was not debarred from urging this point, even if he had failed to do so earlier. He probably had in mind the judgment of this-Court in Muhammad Afzal v. Board of Revenue, West Pakistan and another (PLD 1967SC314), wherein it was observed that: "By mere submission, in the capacity of a respondent, to the authority of the Member the petitioner could not be thought to leave conferred a jurisdiction on the Member which he did not possess, or to .have waived his right to challenge the Member's power to interfere with the order of Commissioner." The above view was at variance with the view taken by a Full Court judgment of this Court in Ghulam Mohi-ud-Din v. Chief Settlement Commissioner (Pakistan), Lahore and others PLD14648C829 wherein it was held that failure to raise an objection as to the usurpation of jurisdiction before the Settlement authority concerned at the earliest opportunity disentitled that party to relief on the ground that the discretionary relief of a writ of certiorari could not be granted in favour of a party failing to object to such usurpation of jurisdiction before the Tribunal concerned. These views, we may observe, have been expressed in decisions rendered while considering whether the orders of statutory authorities should or should not be quashed on the ground of lack of jurisdiction in the statutory tribunal to decide the matter, when the parties arrayed before it, took no objection to its jurisdiction when the matter was heard by it. In these decisions some distinction has been made between the party which approached the said Tribunal, but when it failed before it, attempted to challenge the validity of the order on the ground of the lack of jurisdiction of the said Tribunal to entertain the dispute and the party which was only a respondent albeit as "passive spectator" before it. However, the position of the proceedings before the Service Tribunal is altogether different. A perusal oaf the rules, namely, the Punjab Service Tribunal (Procedure) Rules 1975, shows that on the admission of the appeal preferred by the appellant before it notices are issued to the respondent and the respondent, on whom a notice of appeal has been served, can submit his objections to the appeal in writing. Thus, the appellant and the respondent are placed completely at .par in the matter of the pleas that they can take before the Service Tribunal, because the respondent, even before the appeal comes up for arguments, is provided with an opportunity to submit in writing his objections, tamely, his written statement, in which all the relevant pleas can be raised. In the present case, written objections were, indeed, put in on behalf of the appellant herein but no objection, as to the competency of the Tribunal to entertain the appeal on the ground that the order challenged was a policy decision, which did not contravene any term and condition of service of the respondents, was taken herein. Nor was this objection raised during the hearing of the appeal before the Service Tribunal, which might have enabled the Tribunal to express its views on the question and' it is only for the first time before this (Court that an attempt is being made to agitate this question. However, in view of the nature of the proceeding before the Service Tribunal the normal rule followed by this Court that where a party fails to urge a point, which it could have urged before the form concerned, it cannot be allow0d to do so for the first time before this Court will apply. Even otherwise, the impugned decision of the Service Tribunal appears to be just, fair and equitable. It brings out in sharp relief the anomaly E that whereas the Readers to Members of the Board of Revenue, who are performing less onerous duties and are serving in an institution which is lower in status than the High Court are placed in N. P. S. 16, but for reasons best known only to the learned Finance Secretary it is considered that for their counterparts in the High Court N. P. S. 12 will do. We are, therefore, of the opinion that this is not a fit case for interference. This petition must, accordingly, fail and is dismissed hereby. S. Q.??? Petition dismissed.