' IQBAL HAMEED-UR-RAHMAN, C.J.--- Through the instant constitutional petition, the petitioners have made the following 'prayer:---
(i) Declare the objection of respondent No,2 and rejection vide impugned order dated 30-10-2002 by respondent No,1, as illegal, corum-non-judice, void, mala fide, whimsical, unjust, arbitrary, in excess/colourable exercise and without lawful authority.
(ii) Direct respondents to allow four advance increments to the petitioners in recognition of their good work vide Office Order dated 12-1-2002 as sanctioned by the Hon'ble Chief Justice, Federal Shariat Court and direct respondent No,2 to verify fixation of pay accordingly.
2. The brief facts of the case are that the petitioners are serving as Driver and Qasid respectively in the Federal Shariat Court, Islamabad. In recognition of their good conduct and outstanding performance, the petitioners were granted four advance increments w.e.f, 1-1-2000 by the then Hon'ble Chief Justice, Federal Shariat Court in exercise of powers conferred under Rule 5 of the Federal Shariat Court (Terms and Conditions of Service of Staff), Rules, 1982. The Service Books of the petitioners were sent to respondent No,2 for verification of re-fixation of their pay, but the same was not done and the matter was referred to respondent No,1, who vide letter No,F.8(13)R-I/2000- 410!2002 dated 30-10-2002 turned down the request of petitioners, hence the present constitutional petition.
3. In response to notice issued to respondents Nos.1 and 2 they have filed report and para-wise comments.
4. Learned counsel for the petitioners has argued that the then Hon'ble Chief Justice, Federal Shariat Court was fully competent to grant increments to the petitioners under Rule-5 read with Rule 6 of the Federal Shariat Court (Terms and Conditions of Service of Staff), Rules, 1982, therefore, the objection raised by the respondents is unwarranted, illegal, void, capricious, whimsical and without jurisdiction; that the petitioners have been subjected to discrimination as one Mr. Naveed Anjum, Assistant, Federal Shariat Court under the similar circumstances has been granted four advance increments in recognition of his good work in 1991 and respondents also endorsed the same without any objection; that the petitioners have not been dealt with by the respondents in accordance with law, which is clear violation of Article 4 of the Constitution of Islamic Republic of Pakistan. Learned counsel for the petitioners while relying upon the cases of Zarif Khan v.
Government of N.-W.F.P. (1996 PLC (C.S) 778), Peshawar High Court, Government of Pakistan through Ministry of Finance v. M.I. Cheema, Deputy Registrar, Federal Shariat Court and others (1992 SCM R 1852) and-Registrar, Supreme Court of Pakistan, Islamabad v. Qazi Wali Muhammad (1997 SCM R 141) prays that this petition may be accepted.
5. Conversely, learned Deputy Attorney-General submits that the Hon'ble Chief Justice was not empowered to grant advance increments to the petitioners as they were civil servants; that the grant of advance increments in recognition of good conduct and performance is not admissible under the prevailing government rules/instructions, therefore, the constitutional petition be dismissed.
6. I have heard the arguments and perused the material made available on the file.
7. Undeniably, the questioned increments have been granted to the petitioners by the Hon'ble Chief Justice, Federal Shariat Court by exercising powers under Rule 5 of the Federal Shariat Court (Terms and Conditions of Service of Staff) Rules, 1982. Rule 5-ibid which reads as under:--- 5 Provided that the powers exercisable under the said rules and orders by the President, or by any authority subordinate to the President, shall be exercisable by the Chief Justice of the Federal Shariat Court or by such persons he may, by general or special order, direct.
' Rule 6 further provides that:--- Any question arising as to which rules or orders are applicable to the case of any person serving on the staff attached to the Federal Shariat Court shall be decided by the Chief Justice.
Keeping in view the above rule, it is very much clear that the Hon'ble Chief Justice Federal Shariat Court, who was exercising the power of the President validly granted advance increments to the petitioners, therefore, the respondents had absolutely no authority to raise any objection to the same.
8. Vide Notification dated 13-12-20.02, the Hon'ble Chief Justice, Federal Shariat Court granted Special Judicial Allowance to all the Officers and staff of Federal Shariat Court at the rate of 20% of their basic pay w.e.f, 1-12-2002. The matter went to Finance Division, and then the advise was sought from the Ministry of Law, Justice and Human Rights to the effect whether decision of the Hon'ble Chief Justice of the Federal Shariat Court to allow Special Judicial Allowance to the employees of the Court is binding on Finance Division. On 29-5-2003, the Joint Secretary-IV of Law, Justice and Human Rights Division held as under:--- "It is crystal clear that Hon'ble. Chief Justice has full financial and administrative powers under the rules and no concurrence of any other authority is required in this case."
' In view of above, it is apparent that Ministry of Law, Justice and Human Rights Division has already opined that the Hon'ble Chief Justice, Federal Shariat Court has full financial and administrative powers under the rules, therefore the act of grant of advance increments to the petitioners was quite lawful.
9. It would not be out of place to mention that one Naveed Anjum, Assistant of Federal Shariat Court was granted four advance increments. The matter went to respondent No,1, who vide letter No,F.2(9)/R.I/88- 1059 dated 5-10-1991 approved the grant of 4 advance increments to him. The respondent No,1 in written comments has admitted the same, but contended that the same does not require to be followed being a bad precedent. No sufficient explanation has been furnished in this regard. The case of the petitioners is at par with that of said Naveed Anjum. In view of this situation, the respondents cannot be allowed to raise such objection when they have already approved the grant of advance E increments to one of the employees of Federal Shariat Court.
10. Moreover, the matter of grant of Secretariat Allowance to the staff of Federal Shariat Court went up to the level of August Supreme Court of Pakistan and the apex court vide "Government of Pakistan through Ministry of Finance v. M.I. Cheema, Dy. Registrar, Federal Shariat Court and others (1992 SCM R 1852) held that the learned Chief Justice of the Federal Shariat Court who was exercising the power of the President granted the Secretariat Allowance to the respondents, therefore, appellant (Government of Pakistan, Ministry of Finance) could not have questioned the grant of the above benefit to the respondents or to have denied the payment of the same on the ground that the respondents were not entitled to it.
11. As regards the contention of learned Deputy Attorney-General, that the petitioners are civil servants, therefore, neither the advance increments in question could be granted to them nor the constitutional petition is maintainable. In the case of Registrar, Supreme Court of Pakistan, Islamabad v. Qazi Wali Muhammad (1997 SCM R 141), it was held by the apex Court that provisions of Civil Servants Act, 1973 and Service Tribunal Act, 1973, have no application to the servants and officers of the Supreme Court, the Federal Shariat Court and High Court and such employees are not civil servants. In view of the law laid down by the Hon'ble Supreme Court of Pakistan, the instant constitutional petition is quite maintainable.
12. In view of above perspective, the instant writ petition is accepted and consequently the objection raised by the respondents regarding grant of advance increments to the petitioners is declared to be illegal, unlawful and without jurisdiction. '