Zahoor Muhammad VS FOP

ORDER SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

W.P.No.3865 of 2018 Zahoor Muhammad Versus Federal Education & Professional Training Division and another S. No. of order Date of order/ Order with signature of Judge and that of parties or counsel / proceedings Proceedings where necessary. 02.03.2022 Mr. Matloob Hussain Malik, Advocate for the petitioner, Mr. Arshid Mehmood Kiani, learned Deputy Attorney-General, Raja Waqas Khan, Senior Auditor (Legal), AGPR, Mr. Zaheer Iqbal, Section Officer (Lit-II), Cabinet Division.

Through the instant writ petition, the petitioner, Zahoor Muhammad, seeks a direction to the respondents to grant him all his pensionary benefits along with payment of general provident fund and leave encashment.

2.The facts essential for the disposal of the instant petition are that on 31.10.1986, the petitioner was appointed as Stenographer (BPS-

15)in the erstwhile Ministry of Social Welfare and Special Education. On 26.07.2010, FIR No.3/2010 was registered against him under Sections 409, 420, 468, 471, 109 and 34 of the Pakistan Penal Code, 1860 and Sections 5(2) and 47 of the Prevention of Corruption Act, 1947. The petitioner was arrested on 28.07.2010 and was suspended from service on 30.07.2010.

3.After the enactment of the Constitution (Eighteenth Amendment) Act, 2010, some employees of the erstwhile Ministry of Social Welfare and Special Education, including the petitioner, stood transferred to the Capital Administration and Development Division (“C.A.&D.D.”). This transfer took place pursuant to the office order dated 03.04.2011 issued by the Establishment Division.

4.Reference No.10/2011 had been filed against the petitioner before Accountability Court No.II, Rawalpindi / Islamabad. The trial culminated in the judgment dated 30.06.2012 whereby the petitioner was convicted and sentenced to five years of rigorous imprisonment. A fine of Rs.5 million was also imposed on the petitioner by the learned Accountability Court.

5.The said judgment dated 30.06.2012 was assailed by the petitioner before the Hon'ble Lahore High Court, Rawalpindi Bench in writ petition No.1804/2012. Vide order dated 13.12.2012, the petitioner”s sentence was suspended and he was released on bail.

6.After the petitioner”s release on bail, he reported for duty on 17.03.2013. After obtaining advice from the Law Division and the National Accountability Bureau (“N.A.B.”), the C.A.&D.D. reinstated the petitioner vide office order dated 31.01.2017. On 13.11.2017, the petitioner”s post was re-designated as Assistant Private Sectary (BPS-16). On 04.05.2017, the petitioner applied for leave encashment with effect from 09.06.2017. The petitioner was due to retire on attaining the age of superannuation on 08.06.2018. Vide notification dated 24.11.2017 issued by the C.A.&D.D., the petitioner was allowed to avail leave encashment for 365 days in lieu of availing 365 days leave preparatory to retirement with effect from 09.06.2017 to 08.06.2018. On 29.06.2018, the last pay certificate was issued to the petitioner which sets out inter alia his retirement benefits. Since the petitioner”s retirement benefits were not released to him, he filed the instant petition on 10.10.2018 praying for a direction to the respondents to pay all his pensionary benefits along with the general provident fund and leave encashment.

7.Learned counsel for the petitioner, after narrating the facts leading to the filing of the instant petition, submitted that since the sentence awarded to the petitioner by the Accountability Court has been suspended by the Hon'ble Lahore High Court, he ought to be paid all his pensionary / retirement benefits in accordance with his last pay certificate; that after the petitioner was released on bail vide order dated 13.12.2012, he reported for duty but it was not until 31.01.2017 that he was reinstated in service; that the period during which the petitioner was suspended was to be treated as him being on duty; and that since the petitioner has served for more than three decades, a direction ought to be issued to the respondents to pay all his pensionary / retirement benefits. Learned counsel for the petitioner prayed for the writ petition to be allowed in terms of the relief sought therein.

8.On the other hand, learned Deputy Attorney- General submitted that since the petitioner is a retired civil servant and is seeking a relief pertaining to the terms and conditions of his service, the instant petition is not maintainable in view of the bar contained in Article 212 of the Constitution. He further submitted that till date, the petitioner”s conviction by the learned Accountability Court has not been set-aside by the Hon'ble High Court; that only the sentence awarded to the petitioner was suspended; that since the petitioner”s status is that of a convicted person, he cannot be paid any pensionary benefits; and that the Cabinet Division vide letter dated 05.07.2018 has advised that the process regarding the payment of the petitioner”s pensionary benefits be kept pending until the petitioner”s appeal against his conviction is decided by the Hon'ble

High Court. Learned Deputy Attorney-General prayed for the writ petition to be dismissed.

9.I have heard the contentions of the learned counsel for the petitioner and the learned Deputy Attorney-General and have perused the record with their able assistance. The facts leading to the filing of the instant petition have been set out in sufficient detail in paragraphs 2 to 6 above, and need not be recapitulated.

10.Vide judgment dated 30.06.2012 passed by learned Accountability Court No.II, Rawalpindi / Islamabad in reference No.10/2011, the petitioner was convicted and sentenced to five years rigorous imprisonment and payment of fine amounting to Rs.5 million. Major penalty of dismissal from service was imposed on the petitioner under the Government Servants (Efficiency and Discipline) Rules, 1973 with effect from the date of his conviction by the learned Accountability Court i.e., 30.06.2012. The petitioner has preferred an appeal against the said judgment before the Hon'ble Lahore High Court. However, vide order dated 13.12.2012, the sentence awarded to the petitioner was suspended and he was released on bail. It was not until 31.01.2017 that the petitioner was reinstated in service. He attained the age of superannuation on 08.06.2018. The petitioner wants to be paid his pensionary / retirement benefits. It ought to be borne in mind that till date the petitioner”s conviction has not been suspended or set-aside by the Hon'ble High Court.

11.Be that as it may, the learned Deputy Attorney-General raised an objection to the maintainability of the instant petition on the ground that the petitioner being a retired civil servant had the alterative remedy of invoking the jurisdiction of

the Federal Service Tribunal for the payment of his pensionary / retirement benefits. It is not disputed that under Article 212(1)(a) of the Constitution, the Service Tribunal has exclusive jurisdiction in respect of matters relating to the terms and conditions of persons “who are or have been” in the service of Pakistan. Admittedly, the petitioner had been in the service of Pakistan. He is a retired civil servant and through the instant petition, he is agitating a matter that purely pertains to the terms and conditions of his service. In the case of Inspector Muhammad Abbas Vs. Inspector General of Police, Islamabad (2020 PLC (C.S.) 964), this Court held as follows:- “8. The definition of “civil servant” provided in Clause 2(a) of the Service Tribunals Act, 1973 correlates with Article 212(1)(a) of the Constitution, which is the supreme law. The Constitution is fundamental to a law, created under its authority and when we comprehend the intent of legislature by considering the plain meanings of Article 212 of the Constitution it provides words persons who are or have been in the service of Pakistan. Rule of interpretation provides that in case of obscurity, the statute should be read in the light of the constitutional scheme. [State of H.P. v. Surinder Sing Banolta {2006} 12 SCC 418]. There remains no ambiguity that definition of civil servant as provided in Clause 2(1)(b) of the Act of 1973, when considered in juxtaposition of Article 212 of the Constitution and Services Tribunal Act, 1973, then same includes the person who remained as civil servant for enforcement of his terms and conditions of service, which obviously includes a retired employee, therefore, are declared to be the subject of definition under Clause 2(1)(b) of the Civil Servants Act, 1973. They are not ousted from agitating their claims regarding terms and conditions of their service before the Service Tribunals. In the light of said explanation/construction, there is no force in the argument that retired civil servant is not the subject of Service Tribunal for redressal of his grievance for the purpose of terms and conditions of his service.”

12.In the case of Ali Azhar Khan Baloch Vs. Province of Sindh (2015 SCMR 456), it was held as follows:-

“149. Article 212 of the Constitution ousts the jurisdiction of High Courts and civil Courts in respect of the matters pertaining to terms and conditions of civil servants. In other words, the provisions of Article 212 do not confer a concurrent jurisdiction to civil Courts, High Courts and Tribunals. The ouster contemplated under the said Article is a Constitutional command, and, therefore, of necessity restricts the jurisdiction of civil courts and High Courts on the subject, which squarely falls within the exclusive domain of Tribunals.”

13.Furthermore, it was held that the exercise of jurisdiction by way of suit and Constitution petition filed by a civil servant with regard to his terms and conditions of service is violative of Articles 175, 212 and 240 of the Constitution and the law. The Hon'ble Supreme Court also observed that the admission of such suits and petitions by the learned Judges concerned “obviously confront and defy Article 189, if not attract the provisions of Article 209 of the Constitution.”

14.In view of the above, the instant petition is dismissed as not maintainable due to the bar contained in Article 212 of the Constitution. The petitioner is at liberty to approach the appropriate forum for the redressal of his grievances. There shall be no order as to costs.

(MIANGUL HASSAN AURANGZEB)

JUDGE

Sultan*