Ch. Muhammad Ibrahim Zia, C.J.- This appeal by leave of the Court has arisen out of the judgment of the High Court dated 29.12.2016 whereby the writ petitions filed by the appellant, herein, have been dismissed.
2. The precise facts of the case are that the appellant, herein, served in the High Court of Azad Jammu and Kashmir as Personal Assistant in BPS-15. He was granted selection grade BPS-16, move over BPS-17 and finally move over BPS-18. writ petition No.322/2008 claiming therein that according to the office memorandum dated 03.02.2007 the Adhoc Relief of Rs.300/- and Rs.100/- shall be treated reckonable towards pension for those retired employees in BPS 1-16 (including those in BPS-17) by virtue of move over) who were in receipt of the said Adhoc Relief at the time of retirement. He claimed that he was also receiving the Adhoc Relief at the time of his retirement. He moved an application before the proforma-respondent praying therein that necessary Revised Last Pay Certificate may be issued and forwarded for the inclusion of the said Adhoc Relief of Rs.300/-, Rs.100/- plus Rs.200/- as Personal Allowance and Rs.150/- as Special Pay towards P.P.O No.9509/Civil but the respondents vide letter dated 13.12.2007 declined to reckon the same. He claimed that the letter dated 13.12.2007 is illegal and he is entitled to above-mentioned Adhoc Relief.
3. During the pendency of said writ petition the appellant filed another writ petition No.179/2012 claiming therein that after retirement, he filed an application for payment of Secretariat Allowance along with the bill amounting to Rs.47,228/- The same was rejected through letter dated 31.08.2012 on the ground that the appellant did not receive the Secretariat Allowance during the period of 01.06.1994 to 30.11.2001 as required by office memorandum dated 03.05.2011, thus, he is not entitled of same. After necessary proceedings, the learned High Court through the impugned consolidated judgment dismissed both the petitions on the ground of laches, non- furnishing of certified copies and bar of jurisdiction.
4. The appellant himself argued the case at length. He explained the grounds of appeal and the writ petition and submitted that according to the office memorandum dated 03.02.2007, he is entitled for inclusion of Adhoc Relief in his pension but the learned High Court failed to properly appreciate the propositions involved in the case, thus, the impugned judgment is against law. He further argued that the move over is neither a promotion nor higher scale. It is granted just for the purpose of providing monetary benefit to the civil servant keeping in view the length of service. The learned High Court has fell in error of law while dismissing the writ petitions on baseless grounds. The learned High Court dismissed the writ petitions on the ground of bar of jurisdiction under section 47 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 but ignored section 47-A which clearly speaks that the employees of the Courts are not civil servants and they are governed by different rules.
Same like, the writ petitions have been dismissed on the ground of laches as well as non-furnishing the certified copies. In view of peculiar facts of this case, neither the principle of laches is attracted nor the writ petitions were liable to be dismissed on the ground of non-furnishing of certified copies as the impugned office memorandum is part of record of the High Court and an admitted document. The learned High Court has even not considered the Last Pay drawn Certificate, thus, while accepting this appeal the prayed relief may be granted.
5. Conversely, Raja Saadat Ali Kiani, Additional Advocate-General, the learned counsel for the respondents forcefully defended the impugned judgment and submitted that the learned High Court has dismissed the writ petitions which were filed after a long delay, thus, the principle of laches was fully attracted. He further submitted that the appellant has not complied with the mandatory statutory requirement and failed to furnish the certified copy of the impugned order and documents, thus, the writ petitions were not maintainable. Leaving aside all these aspects, even otherwise the writ petitions were not maintainable as the matter agitated in the writ petitions involves the terms and conditions of service, thus, the jurisdiction of the High Court is barred under the provisions of section 47 of the Interim Constitution Act, 1974. Same like, the appellant has got no case on merit.
He himself furnished the copy of the Last Pay drawn Certificate according to which he retired in grade BPS-18 granted by virtue of move over, whereas, according to the office memorandum the benefit of inclusion of Adhoc Relief can only be extended to the civil servants retired in grade 1-16 and move over BPS-17. The concerned authority has rightly objected that until and unless office memorandum does not include move over BPS-18 the monetary benefit cannot be extended. The impugned judgment is quite legal one calling for no interference.
6. We have heard the learned counsel for the parties and examined the record made available. The learned High Court has dismissed the writ petitions on the grounds of laches and non-furnishing the certified copies.
Keeping in view the overall facts and circumstances, leaving aside the fact whether the writ petitions could have been dismissed on the grounds of laches or non-furnishing of certified copies, in our opinion, even on merit the appellant has got no case. The appellant has himself brought on record his Last Pay Certificate according to which he was retired in move over BPS-18, whereas, the office memorandum on the strength of which he claims inclusion of Adhoc Relief only speaks that this benefit can be extended to the civil servants who retired in BPS-1 to 16 including BPS-17 by virtue of move over. It will be useful to reproduce here the office memorandum dated 03.02.2007 which reads as follows:- "NO.FD/R/280/06 Azad Govt. of the State of Jammu and Kashmir (Finance Department) "Muzaffarabad" February, 03, 2007 Office Memorandum Subject: Issuance of Adhoc Relief of s.300/- and Rs.100/- as part of emoluments and reckonable towards calculation of pension.
Sir, I am directed to refer to the subject noted above and to convey that Govt. of AJ&K has accorded the approval that Adhoc Relief @ Rs.300/- sanctioned in favour of Civil Servants Govt. of AJ&K vide policy No.FD/R/464/94/97 dated 29.05.1997 shall be treated reckonable towards pension for those retired employees in BPS 1-16 (including those in BPS-17 by virtue of move-over) who were in receipt of the said Adhoc Relief at the time of retirement.
It has also been decided that Adhoc Relief of Rs.100/- P.M granted through policy No.FD/R/464/94 part-I dated 18.04.2000 P.M to the Civil Servants shall also be treated as part of emoluments for the purpose of calculation of pension in favour of those retired employees in BPS-1 to 16 (including those in BPS-17 by virtue of move over) who were in receipt of the said Adhoc Relief at the time of their retirement. The Condition No.(iii)of the said Adhoc Relief of notification No.FD/R/464/94 Part-I dated 18.04.2000 is modified to this extent. (Muhammad Younas Mir) Section Officer Finance (Regulations)"
The concerned departmental authority has rightly observed in the letter dated 13.02.2007 as follows:- {{ URDU TEXT}} The opinion of the departmental authority appears to be consistent with the office memorandum and does not offend the law.
7. Even otherwise, the departmental authority in respect of this matter has passed specific final order relating to pension which falls within the definition of terms and conditions of service. According to the statutory provisions of law, the 'terms and conditions' include from appointment till pension and all the related matters. The propositions raised in the writ petition i.e. determination of the pension etc. clearly relate to terms and conditions of service. According to the constitutional provisions relating to the matters of terms and conditions of service the jurisdiction exclusively vests in the Service Tribunal and the writ petition is not competent. Even on this score the writ petitions are not competent.
8. So far as the argument of learned counsel for the appellant that under section 47-A of the Interim Constitution Act, 1974 the employees of the Courts are not civil servants thus the provisions of section 47 are not attracted, is concerned, it appears to be misconceived. No doubt under the provisions of section 47-A the High Court and Supreme Court are empowered to make rules regarding the terms and conditions of employees but at the same time according to law for determination of issues relating to the terms and conditions of employees of the Court a tribunal has been established under the provisions of Azad Jammu and Kashmir Subordinate Judiciary Service Tribunal Act, 2016. In this special law 'Member of the Subordinate Judiciary' has been defined which includes the employees of subordinate judiciary. According t the provisions of section 8 of this special law the appeals pending before the Tribunal established under the Azad Jammu and Kashmir Service Tribunals Act, 1975 relating to the members of subordinate judiciary shall stand transferred to the Tribunal established under this Act. It clearly connotes that before establishment of Subordinate Judiciary Service Tribunal the appeals of the members of the subordinate judiciary were heard by the Tribunal established under the Service Tribunals Act, 1975. Under the provisions of section 47-A of the AJ&K Interim Constitution Act, 1974 the AJ&K High Court Establishment (Appointment & Conditions of Service) Rules, 2011 have been enforced. In these rules some of the terms and conditions of service are expressly provided, whereas, rest of the terms and conditions have to be regulated according to the provisions for the time being enforced and applicable to the employees holding posts in Civil Secretariat of the Azad Kashmir as clearly mentioned in Rule 16. According to this rule the other terms and conditions of service include pay, allowances, leave, retirement, superannuation, pension, gratuity, provident fund etc. Same like, it is further clarified in Rule 19 that the provisions of AJ&K Civil Servants Act, 1976, AJ&K Civil Servants (Efficiency and Discipline) Rules, 1977 and the AJ&K Civil Servants (Appointments and Conditions of Service) Rules, 1977 shall apply to all the matters not specifically mentioned in these rules. In view of this clear statutory position there remains no ambiguity that the subject-matter of the writ petition relates to the terms and conditions of service and the remedy was not available in writ jurisdiction, thus, on this score the writ petitions filed by the appellant were not competent.
For the above stated reasons as the writ petitions filed by the appellant were not competent, therefore, leaving aside all other aspects on this sole ground this appeal has no merit. Consequently, while upholding the impugned judgment of the High Court this appeal stands dismissed. No order as to costs.