2001 PLP (C (PLC(CS))

MUHAMMAD YUNUS SURAKHVI, J.

This appeal, by way of leave of the Court, is directed against the judgment of the High Court passed on 5-10-1998, whereby accepting the writ petition filed by respondents the order passed by appellant No. l was declared as without any lawful authority and of no legal effect.

2. The necessary facts, giving rise to the present appeal, are that respondents were serving in the Mirpur Development Authority when they were proceeded against under the Mirpur Development Authority Employees (Efficiency and Discipline) Rules, 1991. The Chairman of the Mirpur Development Authority suspended the respondents and ordered that till finalisation of the disciplinary proceedings, they shall not be paid salary. They were subsequently dismissed on 15-4-1998 after which the respondents filed a writ petition in the High Court which has been accepted and it has been ordered that respondents be paid salary and allowances for the suspension period, vide the impugned order, dated 5-10-1998. It is the aforesaid order which is the subject of present appeal.

3. Arguing the case on behalf of appellants a preliminary objection was raised by Ch. Lal Hussain, the learned counsel, that the High Court fell in a grave error by entertaining and disposing of the writ petition because employees of M.D.A. are civil servants who cannot file a writ petition in respect of terms and conditions of their services. It was argued that the Mirpur Development Authority employees enjoy the status of civil servants in view of provisions contained in section 2(b) of Civil Servants Act, section 2(b) of Service Tribunals Act and section 2 of the Interim Constitution Act read with rule 15 of the Mirpur Development Authority Establishment Service Rules, 1991. The learned counsel pressed into service the submission that in rule 15 of the Mirpur Development Authority Establishment Service Rules, 1991, it has been clearly incorporated that in all matters not expressly provided for in these rules, numbers of service shall be governed by appropriate rules/orders of the Government. According to the learned counsel stoppage of pay directly falls within the ambit of terms and conditions of service. Therefore, the only course open for the respondents was to file appeal before the Service Tribunal as the respondents being in service the exercise of writ jurisdiction by the High Court was not permissible under law. The learned counsel also contended that though this plea was specifically taken in the written statement and was argued too in the High Court but the High Court failed to resolve this important legal issue. The learned counsel further argued that respondents over-drew their pay to the tune of Rs.101,016 and Rs.259,808 respectively but the same was not denied by respondents in the replication filed by them. This non-denial of the allegation made in the written statement amounts to an admission, as such the writ petition filed by the respondents merited dismissal.

4. By controverting the arguments raised by the learned counsel for the appellants. Ch. Muhammad Sharif Tariq, the learned counsel for respondent, contended that the appellants were entitled to the salary and allowance from 30-7-1997 to 15-4-1998. The learned counsel submitted that on 30-7-1997 the Chairman of Mirpur Development Authority without any legal justification stopped the payment of salary to the respondent. He further submitted that the respondents remained in the service of Mirpur Development Authority up to 15-4-1998. Therefore, they were entitled to the salary and allowances of the aforesaid period. While meeting the preliminary objection raised by the learned counsel for the appellant. Ch. Muhammad Sharif Tariq argued that the writ petition filed by the respondents before the High Court was fully competent and they were not precluded from seeking their remedy by filing a writ petition in the High Court. His case precisely is that as the services of the respondents were terminated as such they ceased to be the civil servant at the time of filing the writ petition, as such the bar provided was no more in the field.

5. After hearing the respective contentions of the learned counsel for the parties and perusing the record, it may be stated that the preliminary objection raised by the learned counsel for the appellant, on careful consideration is found to have no substance. The learned counsel lost sight of the important aspect that section 2 of Azad Jammu and Kashmir Service Tribunals Act, 1975 was amended by the Act 1 of 1993. In accordance with the amendment the definition of 'civil servant' is now as follows:

"(b) "Civil Servant" means a person who is appointed to any service or holds a civil post in the service of Azad Jammu and Kashmir, employed in connection with the affairs of the State, but does not include:-- (i) xxx xxx xxx xxx xxx (ii) xxx xxx xxx xxx xxx (iii) xxx xxx xxx xxx xxx" On coming into force of this section a civil servant who ceases to be a civil servant is no more entitled to go to the Service Tribunal for the redressal of his grievance. The only course open for him is to get his grievance redressed by filing a writ petition in the High Court and the High Court is not precluded from exercising the jurisdiction if the same is justified according to law. Therefore, the preliminary objection raised by the learned counsel for the appellants is hereby repelled. Since the respondents after the termination of their services were no more civil servants therefore, the only course open for them was to go in the High Court for the redressal of their grievances. Thus the preliminary objection raised by the learned counsel for the appellants as said earlier stands repelled. In view of the law settled in this regard and because of our decisions in various cases, we need not venture on this aspect of the case any more.

6. As far as the merits of the case are concerned neither the learned counsel for the appellants nor the counsel for the respondents controverted the application of rule applied by the High Court. The High Court on merits dealt with the stoppage of pay and other allowances to the respondents in a following manner:-- "Government Notification dated 5th April 1994 reads as under--, Government servant under suspension shall remain entitled to the pay and allowances that he is drawing immediately before his suspension." It was further observed by the High Court that: "The aforesaid provision is very clear that every Government servant under suspension, shall be entitled to the pay and allowances drawing immediately before the suspension, therefore, the petitioners were entitled to the salary and allowances available to them before the suspension." This view is correct and we uphold it.

7. Ch. Muhammad Sharif Tariq, the learned counsel for respondents, also argued vehemently that his clients have been dealt with in a mala fide manner by the chairman M.D.A. as according to the audit report various other employees of the Authority were also guilty of obtaining the excess amount as arrears of their salary but they have not been proceeded against by the Chairman M.D.A. This suggests that respondents were meted out a discriminatory treatment. At the present moment we are not concerned with the present allegations and counter-allegations as the writ petition filed by respondents has been accepted by the High Court and they have been held? entitled to get the salary and allowances during the period they, remained suspended as such we do not deem it proper to dilate upon these extraneous matters. If the persons who are said to have overdrawn some amounts are proceeded against, the M.D.A may also proceed against the present answering respondents for recovery.

8. In the light of what has been stated above, finding no force in this appeal, it is hereby dismissed, with no order as to costs. H.B.T./53/SC (AJ&K)?????????????????????????????????????????????????????????????????????? Appeal dismissed.