2020 PLP (C (PLC(CS))

GHULAM MUSTAFA MUGHAL, J.

The captioned appeal by leave of the Court has been filed against the judgment of the High Court dated 11.06.2018, passed in Writ Petitions Nos. 1315 of 2012, 534, 1361, 1378, 1417, 1459, 1468, 1579, 1691, 1895, 1904 of 2013, 146, 166, 470, 707, 917, 1018, 1210, 1427, 1451, 1589, 1844, 1899, 2044, 93, 2252 of 2014, 370, 1322, 1468, 1519, 2089, 2091, 2456, 2673 of 2015, 267, 1208, 2082, 2331 of 2016 and 594 of 2010.

2. The brief facts forming the background of the captioned appeal are that the respondents, herein, filed different writ petitions in the High Court against the appellants, herein, claiming therein that they are employees of Education Department and serving as Naib Qasids, Junior Clerks, Lab Assistants, Teachers, Lectureres, Professors, Associate Professors and Professors in different cadres. It was averred that during extreme hot weather in the summer/winter vacations spreading over 2- months' period are observed in schools/colleges and teachers are also allowed to observe the vacations for the aforesaid period. It was maintained that the respondents, herein, are entitled to the Conveyance Allowance during vacations under the Revised Pay Scale Scheme, 2001. It was contended that the said allowance was deducted from the monthly emoluments of the petitioners/respondents, herein, under the pretext that the allowance is not admissible during vacations. It was further claimed that certain audit objections were also raised by the Director General Audit regarding payment of conveyance allowance, however, the same was even deducted from the monthly emoluments of petitioners / respondents, herein. It was maintained that the petitioner/respondents, herein, and other teachers of Education Department protested against the said deduction of the conveyance allowance from their monthly salary package on the ground that summer/winter vacations do not amount to leave and these vacations are not availed by them and other teaching staff as per their own free will. It was stated that Secretary Education (Schools) and Director Public Instructions (Schools) asked the Accountant General not to make deduction of conveyance allowance but the needful has not been done. It was contended that under the Azad Jammu and Kashmir Civil Servants Revised Leave Rules, 1983, the period of vacation counts as duty and not as leave. It was further contended that in accordance with statutory Rules, supra, the deduction of Conveyance Allowance cannot be made from the emoluments of the respondents, thus, the act of the petitioners is illegal, arbitrary and against the Azad Jammu and Kashmir Civil Servants Revised Leave Rules, 1983.

3. The writ petition was contested by the respondents/appellants, herein, by filing separate written statements. It was averred that payment or deduction of the Conveyance Allowance relates to the terms and conditions of the service of the petitioners, therein, hence, the Azad Jammu and Kashmir Service Tribunal having exclusive jurisdiction in this regard is the proper forum wherein the petitioners may seek remedy and writ petitions are not maintainable. It was further stated that according to the Finance Department's letter dated 25.05.1977, the Conveyance Allowance is allowed only to those civil servants who are not residing within the working premises and have to travel to their work-place from their residence. It was further stated that during summer/winter vacations, the petitioners/respondents, herein, did not travel from their residence to work-place in relation to performance of their duties, therefore, they are not entitled to receive conveyance allowance. It was prayed that the writ petitions may be dismissed. The learned High Court after necessary proceedings has decided the writ petitions in the following manner:- "The crux of the above discussion is that respondents jointly and severally are hereby restrained to deduct the conveyance allowance of summer/winter vacations of petitioners. The respondents are further directed to refund the conveyance allowance of those teachers which have been deducted from their salaries. The Accountant General, Azad Jammu and Kashmir, is hereby, directed to circulate copies of the instant judgment to all District Accounts Officers to comply with and implement the instant judgment forthwith. The writ petitions are accepted in the manner as indicated hereinabove with no order as to the costs".

4. Sardar Karam Dad Khan, the learned Advocate-General appearing for the appellants argued with vehemence that the respondents, herein, are not entitled to the conveyance allowance during summer/winter vacations in view of the restriction imposed by the Finance Department and conveyed to the Accountant General of Azad Jammu and Kashmir, hence, their writ petitions were not maintainable before the High Court. He further argued that as the Conveyance Allowance is part and parcel of pay and falls within the ambit of terms and conditions of service of the respondents, herein, therefore, the jurisdiction of the learned High Court is ousted in view of Article 47 of The Azad Jammu and Kashmir Interim Constitution, 1974, read with the section 4 of the Azad Jammu and Kashmir Service Tribunals Act, 1975. He added that in presence of this Constitutional bar, no any direction could be issued in vaccum by the learned High Court and proper froum for resressal of the grievance of the respondents, herein, was the Service Tribunal. The learned Advocate-General further submitted that the letter of the Finance Department Government of Azad Jammu and Kashmir dated 25.05.1977, letters of Finance Department Govt. of Punjab dated 07.06.1987 and 18.11.2009 and the letter of Finance Division regulation wing Government of Pakistan Dated 05.04.2010, clearly postulate that the respondents, herein, are not entitled to the conveyance allowance and these letters can be treated as final order for the purpose of invoking jurisdiction of the Service Tribunal. He further argued that the impugned consolidated judgment of the High Court dated 11.06.2018, has been passed without jurisdictional competence and is coram-non-judice.

5. Conversely, Mr. Abdul Rashid Abbasi, the learned Advocate appearing for the other side vehemently argued that the Conveyence Allowance can only be deducted from the pay of a civil servant when he/she avails leave. While referring to the relevant provisions of Rules, the learned Advocate submitted that vacation and leave are two different terms having different connotations which cannot be interchanged and interpreted in a manner to deprive a civil servant from the conveyance allowance. The learned Advocate further argued that under Rule 25-A of the Azad Jammu and Kashmir Civil Servants Revised Leave Rules, 1983, it has been provided that 'Vacation counts as duty and not as leave', therefore, by no stretch of imagination it can be said that the Conveyence Allowance is deductible during the period of vacation. The learned Advocate submitted that as the teaching staff does not avail summer/winter vacations at their own and remains on call, therefore, the deduction of the Conveyence Allowance without any proper amendment in the Rules and order of the authority mere on the directions of the Finance Department, is not lawful. He further submitted that the Conveyence Allowance is not included in the terms and conditions of service of the civil servants as it has not been mentioned in Chapter II of the AJ&K Civil Servants Act, 1976 and the Rules made thereunder, therefore, the jurisdiction of the High Court is not barred. He added that the jurisdiction of the High Court is ousted only in respect of the matters which are expressly made appealable before the Service Tribunal. In support of his submissions, the learned Advocate placed reliance on the cases reported as Azad Jammu and Kashmir Government through Chief Secretary, Muzaffarabad and another v. Syed Zaman Ali Shah and 3 others [PLD 1991 SC(AJ&K) 57], The Accountant General and others v. Zaman Hussain Khan [1998 PLC (C.S.) 431], Azad Government and others v. Abdul Kabir Qureshi and others [1995 PLC (C.S.) 46], an unreported judgment of the Federal Service Tribunal Islamabad rendered in Civil Appeal No.1888(R)CS/2016, decided on 03.12.2018 and the Order of the Apex Court of Pakistan dated 13.07.2018 in the same matter, whereby, leave was refused.

6. Messrs Sherzaman Awan, Syed Saroosh Gillani and Mr. Amjad Hameed Siddiqui, Advocates, adopted the arguments advanced by Mr. Abdul Rashid Abbasi, Advocate.

7. We have heard the learned counsel for the parties and have given our due thought to the proposition involved in the case. Before proceeding further, we may refer the relevant provision of The Azad Jammu and Kashmir Civil Servants Revised Leave Rules, 1983 (hereinafter to be referred as Rules, 1983). Rule 25-A of these rules is relevant which reads as under:- "25-A. Combination of Vacations with Leave:

In case of Government servants serving in vacation departments, vacation may be prefixed or affixed to leave, or both prefixed and affixed or allowed to intervene between two periods of leave, subject to the conditions mentioned in Rules 101, 102, 103, 105, 106, 110, 112, (a, b & c), 114, 123, 124, 125, 126, 133-A, 133-B, 141, 142, 143, 153, 153-A, 153-B, (a,b), 153-C, 154, 155, 156, 157, (b,c) of K.S.R Volume-1. Previous approval of the Finance Department should be obtained in cases where such combinations of vacation with the leave involve extra expense to Government. Note: Unless contrary appears from the context vacation counts as a duty and not as leave.]" The controversy involved in the matter is, as to whether, during the summer/winter vacations, the respondents, herein, who are admittedly serving in different Government schools/colleges, where these vacations are observed, are entitled to Conveyance Allowance during these vacations? A perusal of the above reproduced Rule and the Note appended therewith sufficiently suggest that vacation cannot be treated as leave rather the same would be considered as on duty. As it is clearly observed that vacation cannot be treated as leave and teaching staff would be deemed as on duty, therefore, Conveyence Allowance cannot be refused/deducted from their amoluments without amendment in the Rules through some executive order. The impugned judgment passed by the learned High Court, therefore, does not suffer from any legal infirmity.

8. The contention of Sardar Karam Dad Khan, the learned Advocate-General that the matter falls within the terms and conditions of service of the respondents, herein, hence, the jurisdiction of the High Court was barred, is devoid of any force for the reason that; firstly, no basic order has been passed by the competent/departmental authority for deduction of the Conveyence Allowance; and secondly, any letter of the Finance Department cannot be treated as order of the departmental authority for the purpose of appeal before the Azad Jammu and Kashmir Service Tribunal. Mr. Abdul Rashid Abbasi, Advocate, has contended that the terms and conditions of service of a civil servant are covered under Chapter II of the Azad Jammu and Kashmir Civil Servants Act, 1976, and the Conveyance Allowance is not included therein, is devoid of any force. It cannot be held that if a matter relating to the terms of conditions of service of a civil servant is not listed in Chapter II of the said Act, then the same cannot be treated as such. In Zaman Ali's case, referred to hereinabove, this Court has observed that the terms and conditions of service of a civil servant are large in number and only some of them are listed in Chapter II of the Azad Jammu and Kashmir Civil Servants Act, 1976. At page 62, para 8 of the report, it was observed as under:- "

8. Under Section 4 of the Azad Jammu and Kashmir Service Tribunals Act the Service Tribunal has been vested with exclusive jurisdiction to hear appeals against final orders in respect of terms and conditions of service. Terms and conditions of civil servants are large in number and so scattered that it is not easy to summarise them but the plain fact is that some of them can be easily found in the Civil Servants Act in Chapter II. The title of Chapter II is 'Terms and conditions of service of civil servants'. Section 3 which is the first section in the Chapter lays down as follows:- 'The terms and conditions of service of a civil servant shall be as provided in this Act and the rules'" As stated above, no any final order has been passed regarding deduction of the Conveyence Allowance by the departmental authority, therefore, there was no occasion for the respondents, herein, to approach the Service Tribunal. The writ of mandamus can be issued where a public functionary fails to act in accordance with law and rules. Abdul Kabir Qureshi's case, referred to by the learned High Court in the impugned judgment and relied upon by Mr. Abdul Rashid Abbasi, Advocate, fully supports our aforesaid view. We have also considered the judgment passed by the learned Federal Service Tribunal which is appended with the concise statement filed by Mr. Abdul Rashid Abbasi, Advocate, wherein, the matter has sufficiently been dealt with and the teaching staff is declared entitled to the Conveyence Allowance during vacations. One of the factors, which has been noticed by the learned Federal Service Tribunal is that summer/winter vacations are not observed by the teaching staff at their own free will rather they are on call of the Government and can join duty at any time, that is why, these vacations cannot be treated as leave. The Apex Court of Pakistan refused to grant leave against the said judgment of the Federal Service Tribunal. Thus, in these circumstances, we have reached the conclusion that this appeal has no substance. The same is, hereby, dismissed with no order as to costs. ZC/58/SC(AJ&K) Appeal dismissed.