2018 PLP (C (PLC(CS)N)

ROOH-UL-AMIN KHAN, J.

Hafiz Muhammad Ilyas (Junior Clerk) and six others have filed the instant constitutional petition in representative capacity on behalf of the employees on different posts in ministerial wing of Khyber Pakhtunkhwa police department who, according to the averments of the petition, are more-than Three Thousand (3000) in number serving in different categories.

2. In essence, grievance of the petitioners is that, they being employees of Khyber Pakhtunkhwa police department, have been kept deprived of certain emoluments/allowance, already granted to the similarly placed employees working in the police department. As per averments of the writ petition, in the year 1992, some of the colleagues of petitioners had approached this Court through Writ Petition No.362/1992 for grant of 20% Special/Secretariat allowance which was allowed vide consolidated judgment dated 02.10.1997, however the same could not be implemented for unknown reasons. Subsequently, the provincial government notified and allowed risk allowance @ one equivalent basic pay, which was enhanced further to 50% from January, 2011, but the benefit of the above said notified allowance was not extended to the petitioners, hence some employees serving in the ministerial wing of police department filed a Writ Petition No.8122-P/2012 which was dismissed vide order dated 30.5.2013. Again the government of Khyber Pakhtunkhwa finance department vide Notification FD (PRC)1-1/2014 dated 17.2.2014 allowed 30% special allowance on running pay to the employees of Civil Secretariat, Chief Minister's Secretariat, Governor's House/Secretariat w.e.f. 1st March, 2014, but the petitioners were not allowed the same allowance despite the fact that they are performing similar duties. So much so the petitioners were not treated at par with the other employees of police department as a fixed daily allowance of seven days was granted to all the uniformed police personnel viz from constable to Inspector General of Police Khyber Pakhtunkhwa, but the same was not extended to the petitioners despite approval of the summary by the Chief Executive of the Province in their favour. Hence this petition for the following relief:- a. The respondents may please be directed to allow and pay the petitioners 20% Special /Secretariat allowance in pursuance of consolidated judgment of this Hon'ble Court dated 02.10.1997. b. The respondents may further be directed to allow and pay the petitioners 30% Special Allowance sanctioned vide Notification No. FD (SOSR-II) 8-7/2011 dated 27.4.2011 by Finance Department, Government of Khyber Pakhtunkhwa to all the staff of Civil Secretariat, Chief Minister's Secretariat, Governor's House/Secretariat of Khyber Pakhtunkhwa w.e.f. 01.03.2014. c. The respondents may be directed to allow and pay the petitioners Fixed Daily Allowance of 7 days in each calendar month on the strength of notification No.FD (SOSR-II) 8-26/2013 vide which the same benefit has been allowed to all the uniformed police personnel i.e. constable to Inspector General Khyber Pakhtunkhwa. d. The respondents may please be directed to prepare service structure for petitioners so that the petitioners can get benefits of promotion as well as time scale up-gradation. e. The respondents be also directed to consider the petitioners as full time employees of police department and extend all the benefits including all allowances as given to uniformed police personnel of Khyber Pakhtunkhwa and other provinces. f. Any other relief though not specifically prayed for, but justified in the given facts and circumstances of the case may also be allowed."

3. Initially comments of respondents were called for, which were submitted accordingly wherein a preliminary objection with regard to maintainability of the petition before this Court was raised in the following manner: That the petitioners' case is with regard to terms and conditions of service and the learned High Court does not have the jurisdiction to entertain the same due to bar contained in Article 212 of the Constriction of Islamic Republic of Pakistan, 1973."

4. Learned counsel for petitioners vehemently argued that the nature of duties of ministerial staff of Punjab police and that of the ministerial staff of Khyber Pakhtunkhwa Police Department are the same and are exposed to same risk and dangers equally. That the petitioners are highly discriminated as the claim of allowance have been allowed to the other police personnel whereas the petitioners have been kept deprived arbitrarily. With regard to the maintainability of the writ petition, the learned counsel for petitioners emphasized that the writ petition is based on discrimination and the matter relates to allowances, thus the constitutional bar contained under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 is not applicable to the case in hand.

5. Learned Addl: A.G. refuted the arguments of the learned counsel for petitioners by stating that, the job description and duties of the police personnel are different from the duties of the petitioners, as the life of uniformed police personnel remains at risk all the time, whereas the ministerial staff of the department work in routine only hours in the offices. Duties of Naib Qasid, Mali and clerk are not to be equated with uniformed police personnel as the latter remains on call round the clock, the petitioners are not entitled for the risk allowance and seven days T.A. The uniformed police personnel perform risky duties day and night without cessation, whereas the ministerial staff attend routine office duty. He vividly attacked the maintainability of the writ petition before this Court on the ground that, allowances being part and parcel of the pay, fall in terms and conditions of the service, therefore, the matter falls in the exclusive jurisdiction of Service Tribunal and jurisdiction of this Court is barred.

6. The learned counsel for the parties were heard at length and record perused with their valuable assistance. We deem it appropriate, before focusing on the merits of the case, to first attend the objection with regard to the maintainability of the instant writ petition. In essence, the petitioners seek issuance of directions of this Court to the respondents for allowing payment of certain special allowances, daily allowance and also extending the all the benefits of allowances as are given to the uniformed police personnel of Khyber Pakhtunkhwa. The petitioners have made another prayer for issuance of direction to the respondents to prepare a proper service structure for them to get benefit of promotion and time scale up-gradation in future also.

7. To resolve the controversy as to whether payment of allowances to a civil servant falls in chapter-2 of Khyber Pakhtunkhwa Civil Servants Act, 1973 i.e. terms and conditions of service, it is necessary to reproduce the definition of "pay" provided in section 2(e) of the Khyber Pakhtunkhwa Civil Servants Act, 1973 which reads as under: " 2.(e)-"Pay" means the amount drawn monthly by a civil servant as pay, and includes special pay, personal pay and any other emoluments declared by the prescribed authority to be paid." (emphasis provided). The word "emolument" used in the above quoted definition clause of the Civil Servants Act, 1973, according to its dictionary meaning, denotes wages and benefits received as compensation for holding an office or having employment. The word emolument is basically derived from the Latin word emolumentum. It originally meant the sum paid to a miller for grinding a customer wheat". Today, the term exists mostly as a bit of archaic legalese, but it might be within the route of expression i.e. "grinding out a living". From the above it is manifest that emoluments are essentially the benefits that one gets from the working of being employed. Emolument is the profit from employment and is compensation in return of services, hence the emoluments are part and parcel of pay. Section 17 being part of chapter-2 i.e. terms and conditions of service of a civil servant provides that, a civil servant appointed to a post shall be entitled, in accordance with rules, to the pay sanctioned for the post. Likewise, Rule 9(21) of (FR/SR) provide, the definition of pay which means the amount drawn monthly by a government servant as:-- (i) the pay, other than special pay or pay granted in view of his personal qualification, which has been sanctioned for the post held by him substantively or in an officiating capacity, or to which he is entitled by reason of his position in a cadre, and (ii) overseas pay, technical pay, special pay and personal pay and (iii) any other emoluments which may be specially classed as pay by the governor general. The legislature in its wisdom has wisely used the word "pay" instead of salary in definition clause and section 17 of Khyber Pakhtunkhwa Civil Servants Act, 1973. The word `pay' connotes payment of wages including emolument in broader spectrum while the salary is used for amount that one receives in return for work and or service provided. which is paid periodically i.e. over a specified interval of time such as weekly or most commonly monthly. The term "salary" has been dealt with at page-553 of Corpus Juris Secundem Vol. 77 as under: "Salary". The word "Salary" is defined has meaning fixed compensation regularly paid by the year, quarter, month or week; fixed compensation for regular work, or for continuous services over a period of time; periodical compensation for services; compensation for services rendered; per annum compensation mean in official and in some other situation, or station; legal compensation. Salary is also defined as meaning stipulated periodical recompense; or consideration paid, or stipulated to be paid to a person on regular interval for services usually a fixed sum to be paid by the year or half year, quarter; reward or consideration paid or agreed to be paid to a person on a regular intervals by the year, month or week for services; reward of fixed or recompense for services rendered or performed; reward or compensation of services rendered or performed. From the above mentioned definition it is manifest that the "salary" of a civil servant is a fixed amount regularly paid as compensation to the employee, whereas the pay means an amount received by a civil servant including other emoluments i.e. allowances.

8. Undisputedly, the petitioners are civil servants claiming the grant of certain allowances already granted to employees of a different cadre/class of the province as well in police department. As discussed above, the allowances are part and parcel of the pay falling in terms and conditions of service, hence the service tribunal shall have exclusive jurisdiction in respect of the matters relating to terms and condition of civil servant. Section 4 of Khyber Pakhtunkhwa Service Tribunals Act, 1974 provides that, any civil servant aggrieved by any final order, whether original or appellate, made by departmental authority in respect 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 having jurisdiction in the matter. In such an eventuality, the jurisdiction of High Court, under Article 212 of the Constitution, 1973 to entertain matters relating to pay of civil servant is expressly barred. The controversy with regard to the jurisdiction to entertain the claim for arrears of pay of civil servant was raised before the august Supreme Court of Pakistan in case titled; Province of Punjab through Secretary, Education Department, Lahore and 2 others v. Mirza Ahmad Khan (1994 SCMR 1263) which was set-at-naught in the following terms:- "Jurisdiction to entertain claim for arrears of pay of civil servants. Exact amount of pay or arrears claimable are under section 16, Punjab Civil Servants Act, 1974 a matter of terms and conditions of service. Relief in the matter of enforcement of such terms and conditions is provided in Service Tribunals Act , 1974 . Such requirement being satisfied, jurisdiction of Civil Court under Article 212 of the Constitution stood completely excluded." The same view was reiterated by the apex Court in case titled Punjab Text Book Board, Lahore v. Muhammad Akhtar Sherani (PLD 2001 Supreme Court 1032) wherein it was held that, the matter in relation to salary of civil servants having a direct nexus with the terms and conditions of service of the employees, thus under the bar contained in Article 212 of the constitution, 1973, the High Court cannot entertain a constitutional petition as the service tribunal alone is the appropriate forum having jurisdiction to deal with matters relating to the terms and conditions of civil servants.

9. The issue relating to jurisdiction of this Court in matter of terms and conditions of civil servants came before the august Supreme Court of Pakistan in case titled National Assembly Secretariat v. Manzoor Ahmad (2015 SCMR 253) wherein it was elaborately discussed in the terms that "admittedly respondent No.1 is a civil servant and therefore, he could not have approached the High Court under Article-199 of the Constitution of Islamic Republic of Pakistan, 1973, for the redressal of his grievance which pertains to terms and conditions of servant in view of bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. The High Court, therefore, was not competent to adjudicate upon the issue raised in the writ petition. The High Court has fallen in error while proceeding on the erroneous assumption that respondent No.1 has raised the issue of violation of statutory Rules, therefore, it was competent to decide the issue. This was an incorrect approach of the High Court to entertain the constitutional petition of the civil servant on the ground of statutory violation. Such grievance of civil servant falls within the domain of Federal Services Tribunal as mandated by the constitution."

10. The claim of petitioners with regard to issuance of direction for preparing proper service structure providing promotion benefits to the petitioners on the touchstone of fundamental rights of the civil servants, also falls within the jurisdiction of Service Tribunal. The Supreme Court of Pakistan in Iqan Ahmad's case (PLD 1980 Supreme Court 153) was pleased to hold that: "As to the ground concerning the non-maintainability of the petition, the High Court has held, and it is also the case of the petitioner, that the effect of the Rules is that it has altered the terms and conditions of service. This being so, the bar of Article 212 of the Constitution would be applicable with full force as in that exercise the question of vires of the Rules vis-a-vis section 25 of the Act would necessarily be considered. In this behalf the High Court has relied on the statement of law enunciated in Muhammad Hashim Khan and others v. Province of Balochistan and others (3) and Fazal Elahi Ejaz and others v. Government of the Punjab and others with which I agree. This is a common grievance in the other two petitions and they would also be hit by the same bar. We may here point out that a distinction has to be drawn between a case where the eligibility of an officer as to his fitness to hold a particular post or to be promoted to a higher grade under the Rules applicable to him and the Rules which by themselves alter the method of recruitment and promotion. In the former case, proviso (b) to section 4 of the Service Tribunals Act, 1973, will be applicable and no appeal will lie to the Service Tribunal. However, this will not be so in the latter case as the Rules per force alter the method of recruitment and promotion in supersession of the existing Rules which provide a cause of action for the grievance qua the alteration of terms and conditions of service and hence an appeal will lie to the Service Tribunal. The same principle was reiterated by the august Supreme Court of Pakistan in case titled I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others (1991 SCMR 1041) in following terms:- (9) "From the above-quoted Article 212 of the Constitution and section 4 of the Act, it is evident that the jurisdiction of the Courts is excluded only in respect of the cases in which the Service Tribunal under subsection (1) of section 4 has the jurisdiction. It must, therefore, follow that if the Service Tribunal does not have jurisdiction to adjudicate upon a particular type of grievance, the jurisdiction of the Courts remains intact. It may again be pointed out that the Service Tribunal has jurisdiction against a final order, whether original or appellate, made by a departmental authority in respect of any terms and conditions of service. The question, therefore, arises, whether the relevant enactments/notifications containing the provision for payment of enhanced pension, which have been denied to the pensioners, can be treated as a final order, original or appellate, passed by a departmental authority in respect of any terms and conditions of service .." (10) From the above-cited cases, it is evident that it has been consistently held inter alia by this Court that a civil servant if is aggrieved by a final order, whether original or appellate, passed by a departmental authority in respect of his terms and conditions, his remedy, if any, is by way of an appeal before the Service Tribunal even where the case involves vires of a particular Service Rule or a notification or the question, whether an accused civil servant can claim the right to be represented by a counsel before the Enquiry Officer. We are inclined to hold that if a statutory rule or a notification adversely affects the terms and conditions of a civil servant, the same can be treated as an order in terms of subsection (1) of section 4 of the Act in order to file an appeal before the Service Tribunal. However, in the present case, the petitioners' case is founded solely on the ground of discriminatory treatment in violation of Article 25 of the Constitution and not because of any breach of any provision of the Civil Servants Act or any service rule. Furthermore, the question involved is of public importance as it affects all the present and future pensioners and, therefore, falls within the compass of clause (3) of Article 184 of the Constitution. However, we may clarify that civil servant cannot bypass the jurisdiction of the Service Tribunal by adding a ground of violation of the Fundamental Rights. The Service Tribunal will have jurisdiction in a case which is founded on the terms and conditions of the service even if it involves the question of violation of the Fundamental Rights."

11. The ratio decidendi of the principle mentioned above was consistently followed in case titled Khalid Mahmood Watto v. Government of Punjab and others (1998 SCMR 2280), Government of the Punjab and others v. Muhammad Zafar Bhatti and others (PLD 2004 SC 317) and Peer Muhammad v. Government of Balochistan through Chief Secretary and others (2007 SCMR 54). This Court has also recently followed the said principle in Mushraf Shah's case (2015 PLC (C.S.) 2015) in terms that the apex Court in some cases has clearly vested the tribunal with exclusive jurisdiction in matters with regard to terms and conditions of civil servants whether the impugned actions and inactions of the departmental authority did not have a formal " final order". It was further held that the services tribunals are competent to adjudicate upon the question of "vires of Rules framed by the department, even if the same were challenged on the basis of violating the fundamental rights of the civil servant."

12. In essence, the principle laid down by the august Supreme Court of Pakistan with regard to jurisdiction of this Court and the service tribunal is that the services tribunals are fully competent to entertain and decide the cases wherein vires of the service rules or notification even challenged on the touchstone of being violative of the fundamental rights of the civil servants and to direct the authority for framing such rules beneficial to the prospect of the promotion of civil servants.

13. For what has been discussed above, we have no hesitation to hold that the claim of petitioners falls in terms and conditions of service enumerated in Chapter-2 of the Khyber Pakhtunkhwa Civil Servants Act, 1973, wherein the jurisdiction of this Court is expressly barred by Article 212 of the Constitution of Islamic Republic of Pakistan, 1973.

14. In view of the constitutional bar as well as following the wisdom of the august Supreme Court of Pakistan, this Court has got no jurisdiction to entertain the instant petition. Resultantly, this petition is dismissed in limine for want of jurisdiction.

15. Needless to mention that the petitioners may raise their voice before the proper forum, if so advised. ZC/347/P Petition dismissed.