2003 PLP (C (PLC(CS))

3. Hafiz S. A. Rehman, the learned counsel for the appellants, has argued that the High Court had no power to extend the amended Notification dated 1‑1‑1980 and the amended notification to the respondents for the triple reason that they were applicable only to those employees of the accounts Department who were posted at Islamabad and not to their counterparts serving in Azad Jammu and Kashmir. He has contended that the employees of the Accounts Department serving in Azad Jammu and Kashmir ere not awarded the medical allowance because the Hospitals located in lad Jammu and Kashmir territory provide free medical treatment to them title no such facility is available to their counterparts who were posted at Islamabad. He has referred to a letter of the Director of Health Services dated 14‑5‑1995 according to which, the employees of Accounts Department wing in Azad Jammu and Kashmir would be entitled to free medical treatment and in case if any medicine is not available in Azad Jammu and Kashmir, the Azad Jammu and Kahmir Council shall reimburse the Health department from its consolidated funds. Thus, according to the learned counsel for the appellants, the High Court has not appreciated the point that double benefit could not be given to the employees of Accounts Department serving in Azad Jammu and Kashmir territory in relation to the medical treatment. The learned counsel with all his emphasis argued that in any case the medical allowance relates to the terms and conditions of service of the respondents, thus the jurisdiction of High Court was totally ousted to issue a writ. In support of his contentions the learned counsel relied upon I.A. Sharwani and others v. Government of Pakistan and others (1991 SCMR 141) and Serial No. 15 of the ESTACODE.

4. Mr. Ghulam Mustafa Mughal, the learned counsel for the respondents, has controverted the arguments advanced on behalf of the appellants. He has argued that there was no bar to the High Court to issue medical allowance because it is not a 'term and condition' of the service of the respondents, as it is not part of their pay. According to the learned counsel, even otherwise the discriminatory treatment meted to respondents by the Council was rightly challenged under the Constitutional provisions by filing a writ petition. The learned counsel in support of his contentions relied upon Chapter 2, section 3 of the Civil Servants Act and a reported case titled Azad Government and another v. Abdul Kabir Qureshi and others (1995 PLC (C.S.) 46). The learned counsel also contended that the Service Tribunal had the jurisdiction in case of final orders passed under section 4 of the Service Tribunals Act, whereas the medical allowance being not a final order nor part of terms and conditions of service was not entertainable by the Service Tribunal, as such the High Court committed no illegality in accepting the writ petition filed by respondents.

5. After hearing the respective contentions of the learned counsel for the patties and perusing the record, without adverting to the other points the moot point to be resolved in the instant case is as to whether the medical allowance is one of the terms and conditions of service of respondents arid if the same falls within the terms and conditions of service of respondents then the jurisdiction of the High Court is totally ousted to exercise its powers in a writ jurisdiction as provided under section 47 subsection (2) of the AJ&K Interim Constitution Act, 1974. To have a correct perception of the matter, we may refer to Chapter 2, section 3 of the Civil Servants Act which reads as follows:‑‑ "Terms and Conditions:‑‑The terms and conditions of service of a civil servant shall be as provided in this Act and the rules." Therefore, the terms and conditions which are not provided either in the Act or in the rules shall not be included in the category of terms and conditions. In the instant case on 26th January, 1980 in exercise of powers conferred by subsection (1) of section 25 of the Civil Servants Act, 1973 (LXXI of 1973) and in supersession of the rules and orders on the subject applicable to the employees of the Azad Jammu and Kashmir Council Secretariat, the Azad Jammu and Kashmir Council was pleased to make the rules, regarding the grant of medical allowance to and treatment of employees of the Azad Jammu and Kashmir Council Secretariat, which are known as the Azad Jammu and Kashmir Council Secretariat Employees Medical Allowance and Treatment Rules, 1980, which were subsequently amended on 9th April, 1980, wherein the word "Secretariat" was deleted. The Full Bench case cited by Mr. Ghulam Mustafa Mughal, the learned counsel for respondents, reported as Azad Government and another v. Abdul Kabir Qureshi and others (1995 PLC (C.S.) 46) instead of supporting the case of respondents is squarely applicable to the contentions raised by the learned counsel for the appellant wherein it has been observed at page 408 of the report as allows:‑‑ "The next question which needs resolution is as to whether the matter of grant of Secretariat Allowance would fall within the ambit of expression 'terms and conditions' of service of the respondents within the meanings of section 3 of the Civil Servants Act. Under section 3 of. the Civil Servants Act, 1976, the terms and conditions of a civil servant would be as determined under the said Act or the rules framed thereunder Section 3 of the Civil Servants Act is reproduced below:‑‑ 'Terms and Conditions.‑‑The terms and conditions of service of a civil servant shall be as provided in this Act and the rules.' It is evident from the above provision that if a matter is not covered by the Act or rules framed thereunder, that cannot be regarded a term or condition of the service of a civil servant within the meaning of the Act" Thus, in the above authority it was observed that the perusal of the provisions contained in Civil Servants Act; 1976 and the rules framed whereunder are indicative of the fact that no such allowance as Secretariat Allowance has been envisaged as a term and condition of service of a civil servant. But in the instant case, as mentioned earlier, the rules framed under the Civil Servants Act clearly regulate a provision for medical allowance, therefore, the medical allowance is included within the expression 'terms and conditions' of service of respondents, with the result that the jurisdiction of High Court was totally ousted to issue a writ with regard to the terms and conditions of service of civil servants.

6. The matter in issue can further be elucidated by referring to the reported case titled I.A. Sharwani and others v. Government of Pakistan and others (1991 SCMR 1041), whereas the relevant observations were recorded in para. No. 10 at page 1063 which read as under:‑‑ "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." It was further observed in a following manner:‑‑ "However, we may clarify that a civil servant cannot byepass the jurisdiction of the Service Tribunal by adding a ground of violation of Fundamental Rights. The Service Tribunal will have jurisdiction in a case which is founded on the terms arid conditions of the service even if it involves the question of violation of the Fundamental Rights. " Therefore, following the dictum laid down in the case of I.A. Sharwani from Supreme Court of Pakistan jurisdiction and Abdul Kabir Qureshi by this Court, we are of the view that the Medical Allowance and Treatment Rules of 1980 and their subsequent amendment on 19‑4‑1980 would fall within the ambit of terms and conditions of service of a civil servant and a writ for their enforcement before the High Court was; not competent because of a clear bar provided in section 47, subsection (2) of the AJ&K Interim Constitution Act, 1974. The contention raised by Mr. Ghulam Mustafa Mughal, the learned counsel for the respondents, that a discriminatory treatment has been meted to the respondent by the Council because the medical allowance is allowed to the employees of the Council who were posted at Islamabad but those who were posted at Azad Jammu and Kashmir are being deprived of it, therefore, it contravenes the provisions of the Constitution, finds its reply from the case' of I.A. Sharwani cited by the learned counsel for the appellants. A civil servant cannot bye‑pass the jurisdiction of Service Tribunal by adding a ground of violation of Fundamental Rights. Any case which is founded on terms and conditions of service of a civil servant even if it involves the question of violation of Fundamental Rights, the same is triable by the Service Tribunal and not by the High Court in exercise of writ jurisdiction.

7. In view, of the fact that the High Court was not vested with any jurisdiction to issue a writ filed by respondents, we need not advert to the other points argued by the learned counsel for the parties.

8. In the light of what has been stated above, we accept the appeal and set aside the impugned judgment of the High Court. The writ petition thus filed by respondents stands dismissed in view of the ouster of jurisdiction of the High Court. In the circumstances of the case, we pass no order as to costs. H.B.T./232/SC(AJ & K) Appeal accepted.