ORDER SHEET

HIGH COURT OF SINDH, KARACHI

C.P. NO. D-675/2011

Date Order with signature of Judge

__________________________________________________

For katcha peshi.

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08-04-2013

Mr. Abdul Razaq, Advocate for petitioner.

Mr. Kafeel Ahmed Abbasi, Advocate.

The case of the petitioner is that vide Notification dated 14.07.2007 he alongwith other employees of the Income Tax Group was entitled to the grant of special allowance which is equivalent to 100% of basic pay which has not been paid. Counsel for the petitioner contended that one of the colleagues of the petitioner had filed a petition bearing No. D-471/2009 in this High Court seeking special allowance which was allowed. The Department preferred appeal before the Supreme Court being Civil Appeal No. 206-K of 2009 which was dismissed vide judgment dated 30.03.2010, therefore, same treatment may also be given in the present case. He referred to the judgment of the Supreme Court in the case Hameed Akhtar Niazi vs. Secretary Establishment Division (1996 SCMR 1185) and contended that if a benefit is granted to a civil servant by a Court the other civil servants placed in similar situation also become entitled to the same relief even though they were not party in the case. He then referred to the judgment of the Supreme Court in the case of Tara Chand and others vs. Karachi Water & Sewerage Board and others (2005 SCMR 499), wherein the case of Hameed Akhtar Niazi (supra) was relied upon.

2. Counsel for the respondent, on the other hand, referred to a judgment of the Supreme Court delivered in the case of Chairman Federal Board of Revenue, Islamabad vs. Darvesh Khan and others ( C.P. Nos. 585 to 588 of 2011). In the said case employees of the Federal Board of Revenue filed a writ petition in the Peshawar High Court for the grant of special allowance in the light of the judgment of the Federal Service Tribunal dated 03.02.2009 which was duly upheld by the Supreme Court in Civil Appeals No. 362 to 410 of 2009. The Peshawar High Court allowed the petition and directed the Respondent of the said case to treat the petitioner alike with others who were party to the said proceedings after placing reliance of Hameed Akhtar Niazi’s case, wherein it was held that where the Supreme Court or the Federal Service Tribunal decides a point of law relating to the terms and conditions of service of a civil servant then other similarly placed civil servants who may not be involved in litigation also become entitled to the benefits of such adjudication. This judgment of the Peshawar High Court was then assailed in the above referred judgment of the Supreme Court and the Supreme Court held that special allowance relates to the terms and conditions of service and in view of the bar contained in Article 212 of the Constitution the Service Tribunal possesses exclusive jurisdiction to determine such question. The Supreme Court in holding so placed reliance on the case of Secretary Revenue Division, Islamabad and others vs. Muhammad Saleem and others which was decided by the Supreme Court on 17.06.2009. The operative part of the judgment of the Supreme Court in C.P. Nos. 585 to 588 of 2011 is as under:-

“The moot point already stands decided in the case of The Secretary, Revenue Division, Islamabad & another v. Muhammad Saleem & another U (ibid) by this Court where the direction given by the High Court on the principle laid down in the case of Hameed Akhtar Niazi v. Secretary, Establishment Division (ibid) was set aside on the ground that the matter fell within the exclusive jurisdiction of the Service Tribunal. In view of the said judgment, the learned counsel for the respondents submitted that the constitution petitions of the respondents filed before the High Court may be transmitted to the Service Tribunal to be decided as a service appeal. In view of clear position of the law regarding jurisdiction of the High Court in service matters, this prayer of the learned counsel cannot be granted as respondents had approached the wrong forum for redressal of their grievance. It may be noted that in the judgment The Secretary, Revenue Division, Islamabad & another v. Muhammad Saleem & another while setting aside the judgment of the High Court this Court had ordered that the constitution petition filed by the respondents before it shall be considered by the Chairman Federal Revenue Board as departmental representation. In the present case, the departmental representation of the respondents had already been rejected on the ground of time limitation and non entitlement of the respondents to the special allowance. The prayer made by the learned counsel for the respondents, therefore, cannot be granted. If advised, the respondents may file service appeals and all the questions relating to the entitlement of the respondents to the special allowance as well as time limitation shall also be considered by the Tribunal.

In view of the above, we hold that the High Court had no jurisdiction to entertain the constitution petitions filed by the respondents relating to the terms and conditions of their services. All these petitions are, therefore, converted into appeal and allowed. The impugned judgment of the High Court is set aside.”

3. Counsel for the petitioner, in rebuttal, argued that the judgment of the Supreme Court delivered in Civil Petitions No. 585 to 588 of 2011 dated 27.06.2012 did not take into consideration its earlier judgment delivered in Civil Appeal No. 206-K of 2009 decided on 30.03.2010, therefore, the judgment of the Supreme Court in C.P Nos. 585 to 588 of 2011 be treated as per incuriam.

4. We have noted that the judgment of the Supreme Court delivered in Civil Petitions No. 585 to 588 of 2011 is subsequent to the judgment of the Supreme Court delivered on 30.03.2010 in Civil Appeal No. 206/2009. The judgment reported in 2005 SCMR 499 relied upon by the petitioner’s counsel clearly mentions that the benefit of Hameed Akhtar Niazi’s case is to be extended but in case the same is denied the civil servant has to approach the Service Tribunal as is evident from paragraph 10 of the said judgment. For the High Court latest judgment of the Supreme Court is binding. Counsel for the petitioner has relied upon the earlier judgment of the Supreme Court dated 30.03.2010 delivered in C.A No. 200-K of 2009. The latest judgment i.e. judgment in Civil Petitions No. 585 to 588 of 2011 not only relies upon the earlier judgments of the Supreme Court decided in 2009 but also on the provisions of the Constitution i.e Article 212 which clearly states jurisdiction to decide disputes regarding terms and conditions of a civil servant lies exclusively with the Service Tribunal. In the present case it is not disputed that special allowance is a part of salary of a civil servant which obviously falls within the definition of terms and conditions of service and thus in view of the bar contained in Article 212 of the Constitution this Court has no jurisdiction. The petition is, therefore, dismissed as not maintainable.

JUDGE

sharif