1994 PLP 1263 (SCMR)

SHAFIUR RAHMAN, J.‑‑‑Leave to appeal was granted to the Province of the Punjab and its functionaries to examine whether in view of bar of Article 212 of the Constitution the Civil Courts could entertain a claim with regard to the arrears of pay of the civil servants and grant the same.

2. The respondent was the Headmaster of Government High School, Shahpur when he instituted a civil suit against his Department and the Province. His claim was that on account of the option exercised by him within time, he was entitled to pay in NPS‑

18. He claimed the arrears of pay in that scale and also the damages for the refused pay in the sum of Rs.5,

000. This suit was instituted on 23‑6‑1985. An objection to its competence was taken in all the Courts. The trial Court disposed it of by holding as hereunder:‑ "The matter in dispute is neither a service matter nor ancillary to that. The defendants have awarded NPS‑18, through notification to the plaintiff and others on 28‑1‑1984. There is no question of service or conditions of service needed to be resolved in this case. The plaintiff has prayed for arrears of pay and fixation of date according to the Government notification. In the circumstances discussed above, the objection of jurisdiction is repelled and it is held that this Court has got the jurisdiction to entertain and decide the matter in issue."

3. The appellate Court disposed it of by holding as hereunder:‑‑ "I have gone through section 3, subsection (2) of the Punjab Service Law. The words used in subsection (2) are "condition of service of civil servant", whereas the matter in dispute is not condition of service, but the respondent/plaintiff has claimed arrears of salary, therefore, the Civil Court had jurisdiction to adjudicate upon the matter and there was no need to frame separate issue. Objection of the learned counsel for the appellants is not tenable:'

4. The High Court in the reversional order held as hereunder:‑‑ "I have gone through the above‑cited authorities but could not find if any one, of them was in point to the present case. Rather in some of those cases claim for higher scale was allowed as the incumbents had been working against post; placed in those scales. The facts of the present case are entirely different. The two Courts found that the option was exercised in time but the arrears were not being paid. Essentially therefore the present suit was for recovery of arrears which relief can be granted by the Civil Courts alone:" The plaintiff/respondent was granted the arrears of pay as claimed by him but not the damages.

5. The questions which should have been answered by the Courts while considering the question of jurisdiction were whether the plaintiff/respondent was a civil servant; if so, whether the claim made by him was relatable to the terms and conditions of his service; and finally, whether in enforcing such terms and conditions a remedy before the Tribunal had been provided or not. By not answering these questions directly, a jurisdictional error has been committed in entertaining and deciding the claim. The fact that the appellant is a civil servant is not disputed on the facts disclosed by him. The fray scale which he is claiming and the notification under which the claim has been advanced both relate to the civil servants. The post that he held was in the service of the province. He was, therefore, admittedly a civil servant.

6. The Punjab Civil Servants Act, 1974 (Act VIII of 1974) by its section 16 provides as hereunder:‑‑ "

16. Pay.‑‑A civil servant appointed to a post or grade shall be entitled, in accordance with the rules, to the pay sanctioned for such post or grade: Provided that, when the appointment is made on a current charge or acting charge basis in the manner prescribed by way of additional charge, his pay shall be fixed in the prescribed manner: Provided further that where a civil servant has been dismissed or removed from service or reduced in rank, he shall, in the event of the order of dismissal, removal from service or reduction in rank being set aside, be entitled to such arrears of pay as the authority setting aside the order may determine."

7. 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 Acct. 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.

8. The appeal is, therefore, allowed. The judgments of all the Courts are set aside and the plaint is rejected as incompetent. The plaintiff can refer to the Service Tribunal for the enforcement of his claim. AA./P‑230/S Appeal accepted.