2004 PLP (C (PLC(CS))

KHAWAJA MUHAMMAD SAEED, J‑‑‑This appeal with leave of the Court, has been filed against the judgment of the High Court passed on 15‑2‑2002, whereby while allowing the writ petition of the respondent the appellants were directed to pass T.A. bill submitted by him in the light of Chapter IV of section I, subsection (4.3) proviso (i) of the Azad Jammu and Kashmir Travelling Allowance Rules, 1971, (hereinafter to be referred as the Rules of 1971).

2. The facts relevant for the disposal of this appeal, briefly stated, are that respondent was serving in the High Court of Azad Jammu and Kashmir, as Personal Assistant. He retired from service vide notification dated 15‑9‑2000. After his retirement he submitted his T.A. bill to appellant No. 1 who raised certain technical objections and returned the same to the High Court. After removing those technical faults the T.A. bill submitted by the present respondent was anain transmitted to appellant No.1 who after seeking opinion from respondent No.2 turned down the request of the respondent for travelling allowance in the light of the letter of Finance Department dated 8‑5‑1996. The respondent feeling aggrieved filed a writ petition in the High Court on 22‑6‑2001. On the demand of the High Court the present appellants submitted their comments which later on, on their request, were treated as written statement on their behalf.

3. The case of the respondent before the High Court was that in the light of Chapter IV, section 1, subsection (4.3) proviso' (i) of the Rules of 1971, he was entitled to draw the T.A. as admissible to a civil servant on transfer. According to him, the appellants were not justified in law to refuse him T.A. of the bill submitted by him. He claimed in the High Court that the action of the appellants was derogatory to the relevant rules, as such, without lawful authority. The High Court after taking necessary proceedings finally allowed the following relief to the respondent vide judgment under challenge dated 15‑2‑2002:‑‑ "In view of the above discussion; I am of the considered view that the petitioner has been illegally refused his T.A. by the non- petitioners. Therefore; by accepting this writ petition, a direction is issued to non‑petitioner No.1 to pass the TA bill submitted by the petitioner in the light of Chapter IV, section 1, subsection (4.3) of the relevant Rules. The letter dated May 8, 1996 issued by non‑petitioner ‑No.2 is also declared to be ineffective and inoperative on the rights of the petitioner."

4. Sardar Abdul Raziq Khan, the learned Additional Advocate- General, argued that the judgment of the High Court is erroneous, misconceived and based on the wrong interpretation of law and rules, as such, is liable to .be dismissed. According to him, the Azad Jammu and Kashmir Government was not made answering party by the respondent in the writ petition, therefore, the writ petition was not maintainable. The, High Court fell in error while allowing the writ petition without hearing the necessary party. He further argued that the matter related to the terms and conditions of service of the respondent, therefore, the High Court was not a proper forum for the redressal of his grievance. He should have approached the Service Tribunal.

5. On the other hand Ch. Sakhi Walayat, the learned counsel for the respondent, argued that the Government has framed the rules which are favourable to his client, therefore, he had no complaint against the Government. He further argued that the Government in these circumstances was not a necessary party. The present appellants without lawful justification refused the T.A. and Transfer Allowance bill of his client against the spirit of rules framed by the Government, therefore, only these were the necessary parties. He further argued that in the light of Chapter IV section 1, subsection. (4.3), proviso (i) of the Rules of 1971, his client was entitled do draw the T. A. and transfer allowance which were refused to him by the appellant without any lawful excuse rather contrary to the spirit of rules, therefore, his client was justified in law in invoking the Constitutional jurisdiction of the High Court against the order of the appellants, whereby they had refused to pay him T.A. and Transfer Allowance in accordance with the spirit of law on the subject.

6. We have considered the respective arguments of the learned counsel for the parties and gone through the record of the case. In this case no action or order of the Government was challenged in the writ petition by the respondent, therefore, Government was not a necessary party. The learned Judge in the High Court has placed reliance upon the judgment of this Court wherein a similar objection was raised on behalf of tire respondents which was turned down on the ground that as no action of Public Service Commission was under challenge, therefore, the Public Service Commission as body was not a necessary party, as such, the writ petition was not suffering from any legal defect.

7. The second objection of the learned counsel for the appellants is also without any substance that the respondent should have invoked the appellate jurisdiction of the Service Tribunal for the redressal of his grievance which was caused to him by the act of the appellants, whereby they had refused to sanction his bills relating to T.A. and transfer grant. The employees of the Supreme Court and the High Court are not Government servants within the meaning of the Azad Jammu and Kashmir Civil Servants Act, 1976 or the Azad Jammu and Kashmir Service Tribunals Act, 1975. Both the Supreme Court and the High Court under the authority of law have got prerogative to make rules for their employees working in their establishment. Section 47‑A of the Interim Constitution Act, 1974, being relevant is reproduced below for the sake of reference:‑‑ "Employee of Court.‑‑‑The Supreme Court and the High Court, with the approval of the President, may make rules providing for the appointment of employees of the Court and for their terms ‑and conditions of employment."

8. The learned Additional Advocate‑General's, grievance is that the respondent is not entitled to transfer grant. So far the T. A. is concerned, according to him, the respondent is entitled to receive the same and to this extent the appellants have got no objection, as the provisions contained in the Rules of 1971 are clear.

9. We have noticed with regret that both the parties have not read the judgment of the High Court. In the preceding part of this judgment we have reproduced the relevant part of the judgment of the High Court whereby, while allowing the writ petition of the respondent, the relief to the extent of T.A. bill was granted to him. The High Court has issued a direction to the present appellants to pass the T.A. bill submitted by the respondent in the light of subsection (4.3), proviso (i) of section 1 of Chapter 4 of the Rules of 1971. In view of above, this appeal having no merit is dismissed with costs. The learned counsel for the respondent craved that his client in the light of the Rules of 1971 is entitled to receive the Transfer Allowance also alongwith the T.A. bill. The High Court has held him entitled to receive T.A. only. As has been mentioned by us in the earlier part of this judgment, the respondent has not filed any appeal against the said judgment of the High Court rather he has requested in his concise statement that the judgment of the High Court be maintained and the appeal filed by the appellants be dismissed. We at the time of arguments cannot consider his request because law never helps those who are negligent in pursuing the remedies available under the relevant law. The request of the respondent for the Transfer Allowance, is therefore, turned down. H.B.T./25/SC(AJ&K) Appeal dismissed.