' This judgment will dispose of Writ Petition No,2992/2003 titled "Muhammad Tariq v. Government Punjab etc." Writ Petition No,3608 of 2003 titled "Muhammad Sharif v. Government of Punjab etc." and Writ Petition No,5015/2002 titled "Muhammad Sharif etc. v. Secy: Government of Punjab etc." as all these involve the same point of law whether the petitioners were entitled to advance increments as perNotifications issued by the Government of Punjab on acquiring higher qualifications or not.
2. The brief facts in W.P. No,2992/2003 filed by Muhammad Tariq are that he was working as Rediographer "Cobal Unit, Radio Therapy Department", Nishtar Hospital Multan since 1983. He obtained permission from respondent No,3, the Medical Superintendent, Nishtar Hospital, Multan, for improving his qualification, got admission in LL.B. In Multan Law College, Multan, attended the regular classes and passed LL.B examination in the year 1990. As per notification of the Government of Punjab, Finance Department bearing No,FD-PC-2/99 dated 1-8-1991, officials possessing/attaining the higher educational qualification were entitled to two advance increments. The petitioner moved an application on 3-6-2003 to respondent No,2 for the grant of two advance increments w.e.f, 1990. Respondents Nos.2 and 3 did not grant the advance increments to the petitioner through the impugned order dated 13-6-2003.
3. The. Brief facts of W.P. No,3608/2003 filed by Muhammad Sharif are that he was appointed on 28- 2-1964 as Upper Division Clerk (UDC) in the Department of Audit and Account Works and got retirement while working as Divisional Accounts Officer from the Office of XEN Punjab Rural Supply and Sanitation Division, Bahawalpur in the yeas 2002. The petitioner during service passed LL.B examination in the year 1971. He also applied for the grant of two advance increments. The petitioner earlier filed W.P No,2298/2003 which was dismissed on 4-6-2003 on the ground that the same was not properly document and also did not approach the Department' for the grant two advance increments. The petitioner moved a written application to the respondents on 10-6-2003 praying for the grant of two advance increments for possessing his qualification of LL.B Degree.
Vide letters dated 26-6-2003 and 23-7-2003 the grant of two advance increments to the petitioner has been denied by the respondents.
4. In W.P. No,5015/2002 Muhammad Sharif etc. Petitioners have also prayed for the grant of two advance increments. Their case is that they acquired the higher qualification from Al-Khair University, which was established under Act No,XXVIII of 1984 of Azad Jammu and Kashmir Assembly and University Grants Commission of Pakistan also recognised it. On obtaining the qualification in Master of Education the petitioners who were SST Teachers in their respective Government High Schools District Vehari had applied for the grant of two advance increments and they were denied the same by the respondents.
5. Learned counsel for the petitioners Muhammad Tariq and Muhammad Sharif have contended that as per notifications issued by the Government of Punjab and the Federal Government, the petitioners areentitled to two advance increments as they have acquired higher qualification during their service and the refusal to grant advance increments to the petitioners was illegal and unlawful. It is further contended that it has repeatedly been held by this Court and the Supreme Court of Pakistan that the persons who have acquired higher qualification during service are entitled to advance increments and refusal to grant advance increments to the petitioners according to him is illegal and unlawful. Relies upon Muhammad Ashraf v. Government of Punjab through Secretary Finance Department and 2 others (2002 PLC (C.S.) page 873.
6. Learned counsel appearing on behalf of Muhammad Sharif petitioner contended that the petitioner joined service' on 28-2-1964 as U.D.C. In the Audit and Account Works' Department and was promoted as, Divisional Accounts Officer on 25-10-1976. He had passed B.A. In 1962 and LL.B in 1971. He acquired higher qualification and the respondents were bound to grant him two advance increments. Relies upon' Muhammad Nasrullah Khan v. Government of the Punjab etc. (2004 PLC (C.S.) page 32) and Federation of Pakistan etc. v. Qamar Hussain Bhatti and others (2004 P.L.0 (C.S.) page 34) and Province of Punjab etc. v. Pervaiz Iqbal (2004 SCMR page 309), in support of his contentions that the petitioner is entitled to two advance increments.
7. On the other hand learned Assistant Advocate-General has raised preliminary objection that the matter relates to the terms and conditions of service and due to the bar contained under Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973 the writ petitions are not maintainable. It is further contended that the Supreme Court of Pakistan has held that the Service Tribunal has the jurisdiction to grant advance increments and the High Court has no jurisdiction.
8. Ch. Saghir Ahmad, learned Standing Counsel for the Federal Government also contends that the petitioners in W.P. No,5015/2002 have obtained degrees from Al-Khair University and these degrees having not been obtained recognized University, the respondents are not bound to grant advance increments to the petitioners. It is further contended that a Committee was formed by the Lahore High Court under the Headship of Secretary Education to decide the issue relating to the higher qualification obtained by the candidates from Al-Khair University and it has been declared by the said Committee that the Degrees obtained from the said University are illegal and void hence the Government of Punjab is not entitled to grant advance increments. It is further contended that the petitioner who had obtained higher qualification from the same field is entitled to higher qualification and obtaining LL.B Degree by the petitioners Muhammad Tariq and Muhammad Sharif is not higher qualification in their field, who as per amendment made by theGovernment of Punjab through Circular No,FD.PC-2-2/91 dated 1-8-1991 are not entitled to advance increments. Learned Standing counsel has also raised a preliminary objection that the writ petitions are not maintainable as the matter relates to the terms and conditions of service. It is further contended that the Supreme. Court has entertained the appeals and held that the Service Tribunal has the jurisdiction relies upon (2003 SCMR page 309) and (1996 SCMR page 273). It is also contended that circular on the basis of which Muhammad Sharif petitioner claims advance increments has been amended and the petitioner is not entitled to any advance increments on the basis of acquiring higher qualification (LL.B) as it is not higher qualification in the same. Field in which he was working.
It is also contended that the petitioner had not applied for the advance increments during service and retired on 5-2-2002 and he applied only on 10-6-2003 after more. Than one year, hence the writ petition being hit by laches is liable to be dismissed.
9. I have heard the learned counsel for the parties and also perused the record with due care and caution. First of all I would like to take up the preliminary objections raised by the learned counsel for the respondents that the writ petitions are not maintainable. This Court in (2002 PLC (C.S.) page 873) (supra) has held that this Court has the jurisdiction to decide the issue if advance increments are not paid to the civil servants while relying upon the decision of the Peshawar High Court and the decisions of this Court passed in identical W.P. No,1118/94 and W.P. No,204/95 and Civil Petitions Nos.5/95 and 6/95 whereby the judgments on the subject were maintained. The Peshawar High Court in Zarif Khan v. Government of the N.-W.F.P. (1996 MLD page 833) in reply to objection raised by the Government that the matter relates to the terms and conditions of service and the writ petition was not maintainable held that if the petitioners were civil servants, even then the jurisdiction of Service Tribunal was ousted as their case was of advance increments which were not guaranteed and sanctioned by any service rules, but fell under breach of the privileges of a certain group which could not have been conferred by Service Tribunal. Constitutional .Petition filed by the petitioners against their grievances was thus declared competent. The said judgment was impugned in C.P. No,5/95 and the Supreme Court of Pakistan refused leave to appeal.
10. In the case-law cited by the learned counsel for the respondents although the August Supreme Court has held that the Service Tribunal is empowered to decide the matter if advance increments are refused to a civil servant but admittedly question was not raised there whether the High Court has the jurisdiction to entertain the writ petitions on the same subject or not hence it is thus held that this Court has the jurisdiction to entertain such type writ petition.
11. Now the question is whether the petitioners are entitled to the grant of advance increments on the basis of higher qualification. The petitioners namely, Muhammad Tariq and Muhammad Sharif are admitted not serving in any Department concerning dispensation of justice and acquiring higher qualification by way of Degree of Bachelor of Law cannot be held an additional qualification in the relevant field. In the original notification dated 27-7-1987 F.A, B.A. And M.A. Degree holders were entitled to one advance increment on attaining higher qualifications. There was no mention that LL.B was higher qualification. Another notification was issued on 1-8-1991 whereby civil servants/ernployees in BS-1 to 15 for possessing or acquiring higher educational qualifications over and above prescribed qualifications in the relevant Recruitment Rules were held entitled to two advance increments. It also did not contain that the qualification acquired by way of LL.B was also sufficient for advance increments.
12. However, later on through an amendment made by the Government of Pakistan, Finance Division through Circular No,F.3(6)IMP/97 dated 12-1-2000 it was clarified that the competent authority can allow two advance increments on acquiring LL.B Degree being equal to M.A/M.Sc. To all the officials with immediate effect, who were working in the organization which are either dispensing justice or directly connected with the work of dispensing justice. This amendment was made in view of the judgment passed by the Supreme Court of Pakistan while disposing of Civil Petitions Nos.5/95 and 6/96 filed by the Government of N.-W.F.P. The relevant portion of judgment dated 22-5-1996 is reproduced as under:-- "It is not denied that Bachelor of law degree has been recognised as additional qualification in case of PSIs, therefore, on the same analogy when the respondents. Are serving in the High Court and connected with the, agency dispensing justice in accordance with law the Bachelor of Law Degree can be held additional qualification improving efficiency of the respondents/employees.
Even under the principle of equal treatment the petitioner/Government was not justified to have refused grant of advance increments specially when such favour has been shown to the prosecuting Sub-Inspectors under the cover of the aforementioned Notifications. The learned High Court, however, consciously instead of granting 5 increments satisfied the respondents to accept 2 advance increments which they readily accepted."
' Similarly in the case-law relied upon by the learned counsel for the petitioners titled Muhammad Ashraf v. Government of Punjab etc. (2002 PLC (C.S.) 873), the petitioner was working in the Police DepartmentPunjab and posted in the Office of DIG/CID. He acquired LL.B Degree from the Punjab University. As the Supreme Court of Pakistan has duly held that the Degree of Bechalor of Law was an additional qualification in the case of PSI, on the same anology Stenographer working in the Police Department was also held entitled to grant of two advance increments. Here both the petitioners are serving in Nishtar Hospital, Multan and the Audit and Accounts Department which cannot be said to be forums of judiciary or the dispensing justice. Hence, they have been rightly refused increments by their departments. I do not find any illegality thus both the Writ Petitions Nos.2992-03 and 3608-03 are dismissed.
13. As far as W.P. No,5015-02 is concerned the Government of Punjab has raised an objection that the Degrees obtained from Al-Khair University have been declared illegal and void by a Committee headed by the Secretary Education formed under the orders of this Court while disposing of writ petition. Nobody has entered appearance on behalf of these petitioners to show that their degrees were valid being issued by some recognized University. Hence W.P. No,5015/2002 is dismissed for non-prosecution. However, the said petitioners can approach this Court by filing fresh writ petition if need be so as they were not represented by any counsel and their case has not been decided on merits.