2010 PLP (C (PLC(CS))

MALIK MUHAMMAD AQIL AWAN, J.

In this petition petitioner has prayed for issuance of mandamus directing the respondents to allow him benefits of premature increment on account of his move-over from BS-19 to BS-20 in the year, 1988. He may be granted additional pension and gratuity on the basis of addition of premature increment as prayed earlier.

2. The respondents in their comments have submitted that Education Department to which the petitioner belongs and wherefrom he has retired had submitted proposal for seeking approval of the competent authority through a summary dated 4-7-2005 but the competent authority did not agree with the said proposal. Since the petitioner was appearing in person, we had asked him to show or cite any judgment wherein it is held that grant of premature increment or subsequent addition on such basis in the pension is not the terms and conditions of the service of a civil servant.

3. According to us this is a moot question as it is a settled law that where the jurisdiction of the Court is disputed, it has to be decided first before proceeding further an inch in the matter. The next proposition is that in case Court comes to conclusion that it has no jurisdiction, in such eventuality no findings on merit are to be recorded for the obvious reason that the case of litigant may not be prejudiced before a competent forum where he may resort for redressal of his outstanding grievance.

4. Without going much into detail, we are of the view that grant or refusal of the premature increment or advance increment, being regulated under the relevant rules framed in pursuance of section 26 of the Sindh Civil Servants Act, is one of the terms and conditions of service. Similarly although entitlement of the civil servant to a pension is the fundamental right of such civil servant but the calculation of such pension again being regulated under the relevant rules, falls within the purview of terms and conditions of service. The petitioner has relied upon the following case-law:

(1) Government of Punjab and 4 others v. Muhammad Awais Shahid and 4 others 1991 SCMR 696; (2) Syed Muhammad Rafique Shah v. Government of Punjab 2008 PLC (C.S.) 880; (3) Government of N.W.F.-P. through Chief Secretary and 2 others v. Rizwanullah, Registrar, Labour Appellate Tribunal and others 1999 SCMR 2475 The petitioner has not cited a single judgment before us to show that the relevant claim in this petition do, not fall within a purview of terms and conditions of the service.

5. We place reliance upon the case of Province of Punjab v. Mirza Ahmad Khan reported in 1994 SCMR 1263. In this case against the judgment/order of the Lahore High Court appeal was allowed by the Honourable Supreme Court of Pakistan' and relevant findings are recorded in para.7 of the judgment:-- "The exact amount of pay or the arrears claimable are under section 16 of the Punjab Civil Servants Act, a matter of terms and conditions of service. The relief in the matter of enforcement of such terms and conditions is provided in the Service Tribunals Act. These requirements being satisfied, the jurisdiction of the Civil Court under Article 212 of the Constitution stood completely excluded. The judgments have been rendered in the matter without being possessed of the jurisdiction." The next case we would like to rely upon is that of the Province of Sindh v. Malik Ghulam Hussain reported in 2002 SCMR 911 which was decided by the Sindh Service Tribunal and leave was refused against the same. On behalf of the department it was contended that after retirement from Government service civil servant was not entitled to any relief and the dues of such civil servant could not be settled by the Service Tribunal. The contention was repelled and it was held that the order passed by the Service Tribunal was just and proper. In view of this judgment, if the petitioner is entitled to any increase in the pension amount if he is granted the increment he claims, the jurisdiction lies with the Sindh Service Tribunal as we have already taken the view that in case the jurisdiction of the Court is disputed its incumbent upon the Court to decide such question in the first instance and for such proposition we may place reliance on case of Maqsood Ali Khan v. National Bank of Pakistan reported in 2003 PLC (C.S.)

226. In this case the single Bench of this Court has held "it is settled proposition in law, that once challenge is thrown on Court, as to its jurisdiction then it is incumbent on the Court to decide such question in the first instance before proceeding further on merits and once Court comes to a conclusion that it has no jurisdiction then it must abstain from proceeding any further or to embark on merits of the case.. We may also place reliance on the case of Mst. Samra Ashfaq v. Government of N.-W.F.P. reported in 1996 SCMR

273. This is a case pertaining to grant of advance increments. The Full Bench of Honourable Supreme Court of Pakistan in Para 10 of the judgment has held "it has thus become term and condition of service granting specified increment at the time of induction in service in B-17. It is not a gratuitous or honorarium based on compassionate grounds. The Tribunal had the jurisdiction to proceed in the matter. In the same paragraph the principle is reiterated that if a Court or Tribunal is of the opinion that it has no jurisdiction it should stop then and there and should preferably not venture on expressing opinion on the merits of the case.

6. In this view of the matter, we dismiss this petition in limine for want of jurisdiction under Article 212 of the Constitution. Since we have reached the conclusion that this Court has no jurisdiction, therefore, case-law cited by the petitioner purportedly to support his contention on merit, being absolutely irrelevant on the above point of jurisdiction, have not been taken into consideration. In the above terms, the petition stands disposed of. H.B.T./G-22/K Petition dismissed.