2/27/23, 9:34 PM ORDER SHEET

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

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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

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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

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contained in Article 212 of the Constitution this Court has no

jurisdiction. The petition is, therefore, dismissed as not maintainable.
 
 
JUDGE
           
 JUDGE
 
 
 
 
 
 
 
 
 
sharif

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