SYED ARSHAD ALI,------ The petitioners who are 85 in numbers are retired civil servants and who have invoked the constitutional jurisdiction of this Court with the following prayer:- "It is therefore most humbly prayed that on acceptance of this writ petition, the Honorable Court may please to declare that:- i. The pay revision scheme 2011 is discriminatory , unconstitutional, agains t the principles of equity and equality and is based on irrational classification hence is inef fective upon the rights of the petitioners. ii. To direct to respondents, include the five allowances mentioned in para-2 of the writ petition in the pensionary benefits and fixation of pension of the petitioners with all consequential relief. iii Any other remedy which deems appropriate that may also be granted in favour of petitioners.
2. It is averred in the petition that the petitioners have retired from government service on different dates between the years 1999 to June 2011. It is further averred that the government of Pakistan as well as the provincial government of the Khyber Pakhtunkhwa, on 04.07.201 1 introduced a new Revised Pay Scales, allowances and pension to the government employees. In the said pay revision, all the allowances which they claimed in this petition have been merged in the Basic Pay Scale but with effect from 01.07.201 1 and thus all the employees who will 'be retiring or had retired from service w.e.f. 01.07.201 1 will be granted higher pension as compared to those who had retired prior to 01.07.201 1.
3. The notice of this petition was issued to the respondents who have filed their para-wise comments. However , the relevant portion of the comments of fered by the Finance Department is reproduced as under:- "It is humbly submitted that since the Federal Government has introduced pay revision policy w.e.f 01/07/201 1 which has been followed by this Provincial Government vide Notification No. FD(PRC)1-1/201 1 dated 14.07.201 1.
According to this notification all allowance s mentioned in this writ petition were merged in the basic pay, hence new pay Revision 2011 was introduced. According to the Government's policy and rules, those employees, who retired before or on 30.06.201 1 were governed under the pay revision rules 2008. Therefore, they cannot claim to be dealt with as per pay revision 2011, hence not entitled. Whereas those government employees, who retired in the next financial year i.e. after 01.07.201 1 were granted pension, etc. according to the new pay revision 2011. This policy is prevailing in the Federal Government as well as in the four provinces. Hence question of discrimination does not arise.
It is further clarified that the statement given by petitioner No. 1 of W.P. No. 417-P/2012 as recorded in order sheet dated 18.6.2014 (Annex-1) that " grievances of petitioners has been redressed" is not based on fact as their pensions have not been revised under pay revision 201 1, being not entitled."
4. In support of his arguments, the learned counsel for the petitioners has relied upon the judgment of the august Supreme Court of Pakistan delivered in I.A. Sherwani's case reported as 1991 SCMR 1041 . Whereas the respondents have placed reliance on Maqsud Ahmad's case of the august Court reported as 1999 PLC (C.S.) 5.
However , the learned A.A.G. representing the government has also questioned the jurisdiction of this Court in view of the clear bar contained in Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973 ("the Constitution ").
5. Arguments heard and record of the case was perused.
6. Before addressing the essential question of jurisdiction, it would be appropriate to refer the precise grievances of the present petitioners.
In essence the claim of the petitioners is that they had retired from the governm ent service prior to 01.07.201 1, however , on their retirement which is prior to 01.07.201 1 they were granted pension on a particular criteria as then available. From the financial year 2011/2012 the Federal Government through Office Memorandum dated 04.07.201 1 which was later adopted by the provincial governments, whereby certain allowances were merged in the Basic Pay Scale and thus any government employee who had retired after 01.07.201 1 would obviously get pension on the new criteria and on higher ratio.
7. In context of the present case, reverting to the issue of jurisdiction. No doubt, jurisdiction of this Court is expressly barred under Article 212 of the Constitution relating to enforcement of the terms and conditions of the civil servants. For rederessal of the grievances of civil servants relating to their terms and conditions of service, Administrative Tribunals have been established i.e. Services Tribunals under the "Khyber Pakhtunkhwa Service Tribunal Act, 1973 " ("Act" ). However , it has now been settled by the august Supreme Court of Pakistan that the jurisdiction of the constitutional Court is barred only when the matter relating to the enforcement of terms and conditions of a civil servant falls within jurisdiction of the Administrative Tribunal established under section 4 of the Act.
In order to understand the jurisdictional contour of this Court, it would be appropriate to reproduce Article 212 of the Constitution and section 4 of the Act as under:- Article 212
(1) Notwithstanding anything hereinbe fore 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 hereinbefore contained, where any Administrative Court or Tribunal is established under clause (I), 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 pending 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: Section 4 of the Khyber Pakhtunkhwa Service T ribunal Act, 1973 :- "Any civil servant aggrieved by any final order upon presentation or departmental appeal, whether original or appellate, made by a departmental autho rity in respect of any of the terms and conditions of his/her service may, within thirty days of the communication of such order to his/her or within six months of the establishment of the appropriate T ribunal; whichever is later , prefer an appeal before the T ribunal."
It is evident from the above that for invoking jurisdiction of a Service Tribunal under section 4 of the Act, the civil servant must be aggrieved of an order original or final effecting his/her terms and conditions. Similarly , it is also settled law that any rules which offends the terms and conditions of a civil servant, the civil servant can well challenge the same before Service Tribunal. However , in context of the present case, the petitioners are neither aggrieved of any order or rules relating to their terms and conditions but indee d seek a writ of mandamus for issuing direction to the respondents that they be treated like a specified category of the civil servants who had retired on a particular date on the touchstone of the Article 25 of the Constitution. This view was elaborately expounded by the august Supreme Court of Pakistan in I.A. Sherwani as well as Maqsud Ahmad case. Both the judgments were authored by his Lordship Justice Ajmal Mian as then he was. Regarding the assumption of jurisdiction by a constitutional Court in a similar matter , the august Court in view of Article 212 of the Constitution has answered the said issue in Para-10 of its judgment in Maqsud Ahmad's case as following:- "10. From the above-cited cases, it is evident that it has been consistently held inter alia by this Court that a civil servant if is aggrieved by a final order , whether original or appellate, passed by a departmental authority in respect of his terms and conditions, his remedy , if any, is by way of an appeal before the Service Tribunal even where the. case involves vires of a particular Service Rule or a notification or the question, whether an accused civil servant can claim the right to be represented by a counsel before the Enquiry Officer . We are inclined to hold that if a statutory rule or a notification adversely affects the terms and conditions of a civil servant, the same can be treated as an order in terms of subsection (1) of section 4 of the Act in order to file an appeal before the Service Tribunal.
However , in the present case, the petitioners' case is founded solely on the ground of discriminatory treatment in violation of Article 25 of the Constitution and not because of any breach of any provision of the Civil Servants Act or any service rule. Furthermore, the question involved is of public importance as it affects all the present and future pensioners and, therefore, fails within the compass of clause (3) of Article 184 of the Constitution. However , we may clarify that a civil servant cannot bye pass the jurisdiction of the Service Tribunal by adding a ground of violation of the Fundamental Rights. The Service Tribunal will have jurisdiction in a case which is founded on the terms and conditions of the service even if it involves the question of violation of the Fundamental Rights."
Similarly , the relief asked by the present petitioners is in nature of issuance of a command to the authority to treat them at par with the other similarly placed persons. We have no doubt in our mind that such relief cannot be granted by the Service Tribunal having limited jurisdiction in view of the law laid down by the august Supreme Court of Pakistan in the case of "Executive District Officer Schools and Literacy , District Dir Lower and others v. Qamar Dost and others " reported as 2006 SCMR 1630 ", wherein it was held that:- " Relief claimed by civil servants through appeals was in the nature of a command to department authority to give them suitable mandamus which jurisdiction the Service T ribunal did not possess."
Similar view also reflects in case titled " Secretary Finance and others v . Ghulam Safdar " (2005 SCMR 534 )".
Therefore, the objection of the respondents/government regarding the jurisdiction is overruled.
8. Reverting to the merit of the present case, the close perusal of the grievance of the petitioners who had retired prior to 01.07.201 1 would show that they wanted to be treated at par with those government servants who had retired or will retire after 01.07.201 1. Indeed, it is evident from record that from the financial year of 2011/2012 the Federal Government as well as the provincial government had revised the Pay Scale of the civil servants who were in government service by 01.07.201 1. Thus on their retirement after 01.07.201 1 they will have an edge in their amount of pensions over the employees who had retired prior to 01.07.201 1. According to the petitioners this treatment will offends Article 25 of the Constitution. However , we are unable to agree with the learned counsel for the petitioners because the civil servants who were in the service of province or Federation by 01.07.201 1 will constitute a different category as compare d to those who had already retired from service prior to 01.07.201 1. This classification is permissible and will not hit at the core of Article 25 of the Constitution.
The law laid down by the august Supreme Court of Pakistan in I.A. Sherwani's case is not applicable to the present case because in the said case certain raise in pension was given to a particular class of pensioner , whereas the similar raise to another class of pensioner who had retired prior to certain date were withheld. Therefore, the august Supreme Court of Pakistan in such scenario has held in Para-14 of its judgment as under:- "I will now take up the case of legislation effecting increase in salaries and indexation on salaries. This cannot be treated as legislation creating a classification which is arbitr ary just because the retired pensioners have not been given higher pensions by figuratively treating diem as entitled to such higher salaries or indexation. The object of Article 25 is not to force Government to legislate over a matter which is silent, but to strike down a legislation or a legal instrument which creates classification which is unreasonable or arbitrary . The fact that salaries are increased or index ation is allowed thereon, is legislation pertaining to salary which specifically deals with serving Gove rnment servants and has no connection with pension which specifically deals with Government servants who have retired. Merely because the legal instruments are directly intended to augment salaries of serving government servants, the fact that indirectly they may tend to affect emoluments and thus augment pensionary benefits or affect other allowances which are allowed as a percentage of the wages and thus augment such allowances, cannot be treated as creating an unreasonable discrimination against recipients of pensions and allowances. The rule is that where a particular legislation tends to create an arbitrary distinction or unreasonable discrimination, the principle that all persons similarly circumstances or matters evenly placed should be treated or dealt with alike is enforced. But where a legislation dealing with one subject has the effect of indirectly affecting other persons or matters covered by another legislation dealing with another subject, the violation of the rule of equality cannot be blindly enforced, unless there is some strong ground which would make it almost mandatory for the Court to do so. Legislation also treats salary and pension separately . Just because one indirectly affects the other , it does not become a case of unreasonable discrimination. If such a rule were to be applied, it would open up a pandora's box of illusive and unintelligible classificption, havin g no rationale nor reason, and all forms of legislation would be thrown into utter confusion. In State Government Pensioners' Association v. State of Andhra Pradesh (AIR 1986 SC 1907) the Supreme Court of India was considering the question whether a provision providing for payment of enhanced gratuity with prospective effect from a specified date offended Article 14 of the Indian Constitution if it did not provide for payment under the revised basis to all those who had already retired, the Indian Supreme Court answered the question in the negative. In dealing with this question the Supreme Court held:-- "Improvements in pay scales by the very nature of things can be made prosp ectively so as to apply to only those who are in the employment on the date of the upward revision. Those who were in employment say in 1950; 1960 or 1970, lived, spent, and saved, on the basis of the then prevailing cost of living structure and pay scale structure, cannot invoke Article 14 in order to claim the higher pay-scale brought into force say, in 1980. If upward pay revision cannot be made prospectively on account of Article 14, perhaps no such revision would ever be made."
I do not therefore think that legal instrume nts augmenting salaries or indexation on salaries can be struck down as violating Article 25 of the Constitution if they indirectly happen to affect pension. Thus, every time increase in salary or indexation to salary takes place, a sub-class would be created, each sub-class being constituted by a group of pensioners who have retired on or after the date when some change in the legal instruments has taken effect till the date the next change in the salary or indexation takes place.
Therefore, in the said case the claim of the pensioner for a higher rate of a pension was within the category of pensioner .
This issue which is raised in this petition has been elaborately answered in Para 28 of the judgment in Maqsud Ahmad's case as follow:- "28. The question which requires consideration is, as to whether in the instant cases classification is founded on an intelligible differentia which distinguishes one group of pensioners from others and whether the above differentia has rational nexus to the object or raison d'etre sought to be achieved.
According to Mr. Samdam, civil servan ts who have already retired and who will retire in future should be treated as a class and that there cannot be any sub-classification within the above class on the basis of date of retirement, as it would not fall within permissible reasonable classification. On the other hand, Mr. Aziz A. Munshi learned Attorney-General, has urged that various groups of pensioners are to be classified on the basis of applicability of relevant pension rules. We are unable to subscribe to Mr. Samdani's above submission that civil servants who have already retired and who will retire in future, are to be treated as one class nor we are inclined to agree with the above submission of the learned Attorney-General. In our view , reasonable classification will be that all the pensioners as a group are to be treated as one class and all serving civil servants as a group are to be treated as a separate class. In this view of the matter , if the pay scales of serving civil servants are revised, the civil servants, who have by then already retired cannot have any legitimate grievance to agitate for notional revision of their pay scales for re-computing their pension amounts for any purpose as the pension amount is to be computed as above C.S.R. 4 on the basis of the pension rules in force on the date of retirement of a civil servant. The pension rules contain formula as to the method of computation of pension amount with reference to the salary drawn by him till the date of retirement and, therefore, there cannot be uniformity in the amounts of pension among the civil servants despite of having equal rank and equal length of service, if they retire not on one date but on different dates and in-between such dates pay scales are revised. However , a pensioner may have a legitimate grievance if he is not treated alike with the other pensioners, for example, if the Legislature/Government increases pension amount by 10%, say on 1-1-1991, but provides that this benefit will be available to those pensioners who have retired on or after 1-1-1989. In other words, the pensioners who had retired prior to 1- 1-1989 are deprived of the above benefit. This would be violative of Article 25 of the Constitution unless the Government can demonstrate that the above sub-classification within the class of pensioners is based on an intelligible differentia and that the latter has rational nexus to the object sought to be achieved by the relevant classification under the statute or statutory rule."
9. Thus, in view of the law laid down in Maqsud Ahmad's case Supra the petitioners could not satisfy this Court that they were discriminated. Indeed the employees who had retired prior to 01.07.201 1 cannot be equated with those employees who at the relevant time were in service and thus was a separate category .
10. In view of the above, this writ petition having no force is accordingly dismissed.