This single order shall govern instant petition (Writ Petition No.7533 of 2020) as well as Writ Petition No.7535 of 2020 on account of involvement of similar questions of facts and law in both these petitions.
2. The petitioner namely Javed Iqbal in Writ Petition No.7533 was an employee of the Forest Department, who got retired as Range Forest Officer (BS-16) on attaining the age of superannuation on 14th September , 2016. He is now seeking an order for release of his outstanding pensionary benefits. In connected petition i.e. Writ Petition No.7535 of 2020, the petitioner Sarfraz Ahmed Khan was appointed as Sub-Engineer in the Irrigation and Power Department, Punjab and after rendering service for a considerable period, he was promoted as Sub-Divisional Canal Officer (BS-17) and later on respondent No.5 passed the order to recommend the name of petitioner in BS- 19 being eligible and finally he retired after serving more than fourty one years. He is seeking a direction to the respondents to disburse group insurance amount to him.
3. Leaving aside the question of entitlement of claim pensionary benefits or the group insurance amount, it is observed that the petitioners have remained civil servants and on attaining the age of superannuation, they were retired on the respective dates. Keeping in view the status of the petitioners a query was put to the learned counsel as to how these petitions are maintainable in view of bar contained in Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred as "Constitution"). In response thereto, learned counsel submitted that in terms of Section 2(1)(b) of the Punjab Civil Servants Act (VIII of 1974) (here inafter referred as "Act, 1974") a person who has retired from service cease to be a civil servant. In support thereof, reliance is placed on "EHSAN- UL-HAQUE versus EXECUTVE ENGINEER, AHMADPUR CANAL DIVISION AHMADPUR EAST and 2 others"
(2011 PLC (C.S.) 1523 ) and "Jamshaid Khan versus Division al Forest Officer and others" (K.L.R. 2013 Civil Cases 68 ).
4. After having heard learned counsel for the petitioners, I have perused the record.
5. There is no denial that the petitioners were inducted in the government service in the departments of Forest and Irrigation, respectively . They remained in service for a considerable period as civil servants and after attaining the age of superannuation, got retired accordingly .
6. Chapter II of "Act, 1974" provides the terms and conditions of service of civil servants. Pension/gratuity and group insurance are included in the terms and conditions of service of civil servants by virtue of Sections 18 & 20 of the "Act, 1974". The moot point which requires determination of the Court is as to "whether bar under Article 212 of "Constitution" is restricted only to the employees who are in service or it also covers the retired civil servants?"
7. In order to examine above aspect, Article 212 of "Constitution" is reproduced below for ready reference and convenience:- "212. Administrative Courts and Tribunals. (1) Notwithstanding anything hereinbefore contained the appropriate Legislature may by Act provide for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of--
(a) matters relating to the terms and conditions of persons who are or have been in the service of Pakistan, including disciplinary matters ;
(b) matters relating to claims arising from tortious acts of Government, or any person in the service of Pakistan, or of any local or other authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge of his duties as such servant; or
(c) matters relating to the acquisition, administration and disposal of any property which is deemed to be enemy property under any law .
(2) Notwithstanding anything hereinbefor e contained, where any Administrative Court or Tribunal is established under clause (1), no other court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends and all proceedings in respect of any such matter which may be pendin g before such other Court immediately before the establishment of the Administrative Court or Tribunal other than an appeal pending before the Supreme Court, shall abate on such establishment ; Provided that the provisi ons of this clause shall not apply to an Administrative Court or Tribunal established under an Act of a Provincial Assembly unless, at the request of that Assembly made in the form of a resolution, Majlis-e-Shoora (Parliament) by law extends the provisions to such a Court or Tribunal.
(3) An appeal to the Supreme Court from a judgment, decree, order or sentence of an Administrative Court or Tribunal shall lie only if the Supreme Court, being satisfied that the case involves a substantial question of law of public importance, grants leave to appeal."
From the bare perusal of the above referred provision of law it clearly evinces that whenever legislature by an Act provides for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of matters relating to the terms and conditions of a person(s) who is/are or have been in the service of Pakistan including disciplinary matters, jurisdiction of all other Courts in respect of matters for which such administrative Court or Tribunal is established is barred.
8. In furtherance of powers vested under Article 212 of "Constitution" the legislature through the Punjab Service Tribunals (Act IX of 1974) proceeded to establish Service Tribunals to exercise exclusive jurisdiction regarding matters relating to the terms and conditions of service in respect of services of the Province of the Punjab and for matters connected therewith or ancillary thereto. In terms of Section 2(1)(b) of "Act, 1974" "civil servant" has been defined as under :- "2. Definitions.--- (1) In this Act, unless there is anything repugnant in the subject or context.--
(a) -------
(b) "civil servant" means a person who is a member of a civil service of the Province or who holds a civil post in connection with the af fairs of the Province, but does not include--
(i) a person who is on deputation to the province from the Federation or any other Province or Authority;
(ii) a person who is employed on contract, or on work charged basis, or who is paid from contingencies; or
(iii) a person who is a 'worker ' or 'workman' as defined in the Factories Act, 1934 (XXV of 1934) or the Workmen' s Compensation Act, 1923 (VIII of 1923)"
9. Contrary to the definition of "civil servant" in terms of Section 2(1)(b) of "Act, 1974", "civil servant" has been defined by Section 2(b) of the Punjab Service Tribunals (Act IX of 1974) as under:- "2. Definitions.-- In this Act, unless there is anything repugnant in the subject or context,--
(a) --------
(b) "civil servant" means a person who is or who has been a member of a civil service of the Province or holds or has held a civil post in connection with the af fairs of the Province but does not include-
(i) a person who is or who has been on deputation to the Province from the Federation or any other Province or authority;
(ii) a person who is or has been employed on contract, or on work-charged basis, or who is or has been paid from contingencies; or
(iii) a person who is or has been a 'worker ' or 'workman' as defined in the Factories Act, 1934 (XXV of 1934) or the Workmen' s Compensation Act, 1923 (VIII of 1923);"
The comparative analysis of both the definitions of "civil servant" provided under two statutes clearly draws a distinction as in the former "civil servant" is restricted to a person, who is a member of civil service of the Province or who holds a civil post in connection with the affairs of the province but in the latter it is also extended to a person who has been a member of a civil service of the Province or holds or has held a civil post in connection with the affairs of the Province.
10. Bar under Article 212 of "Constitution" is directly and unequivocally relatable to the establishment and existence of Administrative Courts or Tribunals for the purpose of exercising jurisdiction in respect of matters relating to the terms and conditions of a person(s) who is/are or has/have been in the service of Pakistan, including the disciplinary matters. Since by virtue of Section 2(b) of the Punjab Service Tribunals (Act IX of 1974) the term "civil servant" includes a person who has been a member of civil service of the Province or holds or has held a civil post in connection with the affairs of the Provin ce and by virtue of Section 3 of the said Act a Tribunal has been vested with the jurisdiction in respect of matters relating to the terms and conditions of civil servant, including disciplinary matters, bar under Article 212 of "Constitution" cannot be eroded or softened on the ground that a person, who has resorted to the constitutional jurisdiction of this Court is a retired civil servant.
11. It is noted that though in the judgment of "Ehsan-ul-Haque" supra it was observed that a person who has retired from service does not fall within the ambit of expression of "civil servant" but such an opinion was formed only in the light of definition of "civil servant" provided under Section 2(1)(b) of "Act, 1974". The scope and impact of Section 2(b) of the Punjab Service Tribunals (Act IX of 1974) was neither brought in the notice of the Court nor it was considered for the said purpose whereas in the case of "Jamshaid Khan" supra only a passing reference was made to this aspect without any serious deliberation. It can thus safely be held that principles laid down in both the above cases are not applicable in view of definition of "civil servant" in the Punjab Service Tribunals (Act IX of 1974).
12. The nutshell of above discussion is that the petitioners cannot claim immunity of bar contained under Article 212 of the "Constitution" only on the ground that since they got retired on attaining the ages of superannuation, so they cease to be civil servants. Resultantly , these petitions fail and dismissed in limine .