Abdul Aziz etc. vs Secretary Finance etc.

2017 P L C (C.S.) 304

[Lahore High Court]

Before Jawad Hassan, J

ABDUL AZIZ and others

Versus

SECRETARY FINANCE and others

Writ Petition No.37250 of 2016, decided on 28th November, 2016.

(a)Constitution of Pakistan----

----Arts. 199 & 212---Constitutional petition---Maintainability---Civil service----Claim for allowance---Matter with regard to "terms and condition of service"---Service Tribunal, jurisdiction of---Scope---Contention of employees was that they were entitled for project program allowance which was being granted to other employees doing the similar nature of job-- -Validity---Project program allowance was part of terms and conditions of civil servant---Service Tribunal had exclusive jurisdiction in the matter to look into and decide the question relating to terms and conditions of service minus question of his/her fitness for promotion---Employees could approach appropriate forum for redressal of their grievance---Constitutional petition was dismissed in limine.

Ali Azhar Khan Baloch and others v. Province of Sindh and others 2015 SCMR 456; National Assembly Secretariat v. Manzoor Ahmed and another 2015 SCMR 253; Peer Muhammad v. Government of Balochistan through Chief Secretary and others 2007 SCMR 54; Asadullah Rashid v. Haji Muhammad Muneer and others 1998 SCMR 2129; Khalid Mahmood Wattoo v. Government of Punjab and others 1998 SCMR 2280; Khalil ur Rehman and others v. Government of Pakistan and others PLD 1981 Kar. 750 and Dr. Ghazanffarullah and 2 others v. Secretary Health, Government of Punjab, Lahore and 6 others 2010 PLC (CS) 51 rel.

(b)Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Jurisdiction of High Court could not be invoked where an alternate efficacious remedy was available.

Indus Trading and Contracting Company v. Collector of Customs (Preventive) Karachi and others 2016 SCMR 842; Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813 and Muhammad Abbasi v. S.H.O. Bhara Kahu and 7 others PLD 2010 SC 969 rel.

Muhammad Shuja Baba for Petitioners.

Iftikhar ur Rasheed, AAG for Respondents.

ORDER

JAWAD HASSAN, J.--- Learned counsel for the Petitioners submits that the only grievance of Petitioners is that they are entitled for project program allowance @ Rs.40,000/- in the light of letter No.FD.SR-1/9-20/2006 dated 21.11.2014 which has not been given so far despite the fact that same is being granted to other employees doing similar nature of job.

2.At the outset of the hearing, learned Law Officer has raised a preliminary objection qua maintainability of the present petition. He submits that project programs allowance relates to terms and conditions of service of a civil servant, therefore, jurisdiction of this Court cannot be invoked in view of bar contained in Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973 (Constitution). He further submits that Petitioners have alternate efficacious remedy available to them under the law, therefore, this petition, even otherwise, is not maintainable.

3.In rebuttal, learned counsel for the Petitioners submits that Petitioners had already filed Writ Petition No.21310 of 2016 in this Court in which the direction was given to Respondent No.3 to decide the grievance of Petitioners in accordance with law, through a speaking order, after hearing all the necessary parties. However, Respondent No.3 disposed of Representation of Petitioners on 31.08.2011 with following observation:---

"Now therefore, having gone through the relevant record and listening view point of the petitioners as well as Departmental Representative, I Secretary, School Education, do hereby dispose of the representation of the petitioners with the direction to PD, PMIU- PESRP to process their case in accordance with circular of Finance Department Dated 21.11.2014 after observance of all codal formalities i.e. clearance/advice from Finance Department be solicited about admissibility of the programme allowance to those employees who were not recruited against the advertised posts of PMIU but selected from PPSC in EMIS and then became part of PMIU by absorption."

4.Arguments heard. Record perused.

5.Admittedly project programs allowance is part of terms and conditions of a civil servant which in the case in hand is. For enforcement of the same Tribunals have been constituted under Article 212 of the Constitution which has exclusive jurisdiction in the matter to look into and decide the questions relating to terms and conditions of service of a civil servant minus the question of his/her fitness for promotion. The afore-noted bar has been sufficiently dilated upon by the Hon'ble Supreme Court of Pakistan in its various pronouncements and has held in unequivocal and clear terms that the bar is absolute. Reliance can be placed on the judgments reported as "Ali Azhar Khan Baloch and others v. Province of Sindh and others" (2015 SCMR 456), "National Assembly Secretariat v. Manzoor Ahmed and another" (2015 SCMR 253), "Peer Muhammad v. Government of Balochistan through Chief Secretary and others" (2007 SCMR 54), "Asadullah Rashid v. Haji Muhammad Muneer and others" (1998 SCMR 2129), "Khalid Mahmood Wattoo v. Government of Punjab and others" (1998 SCMR 2280), "Khalil ur Rehman and others v. Government of Pakistan and others" (PLD 1981 Karachi 750) and "Dr. Ghazanffarullah and 2 others v. Secretary Health, Government of Punjab, Lahore and 6 others"

(2010 PLC (CS) 51).

6.In view of the fact that Petitioners have already availed their remedy by approaching the Respondent No.3 hence, the Petitioners may approach appropriate forum for redressal of their grievances therefore, jurisdiction of this Court is barred. While dealing with the question of maintainability of a petition before this Court in the wake of an alternate efficacious remedy available to a litigant, the Hon'ble Supreme Court of Pakistan in judgments reported as "Indus Trading and Contracting Company v. Collector of Customs (Preventive) Karachi and others" (2016 SCMR 842), "Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others" (2011 SCMR 1813) and "Muhammad Abbasi v. S.H.O. Bhara Kahu and 7 others" (PLD 2010 SC 969) has held that in the wake of availability of an alternate efficacious remedy, jurisdiction of this Court under Article 199 of the Constitution cannot be invoked.

7.In view of above, this petition being not maintainable is dismissed in limine.

ZC/A-106/L Petition dismissed.