MUHAMMAD KAMRAN KHAN MULAKHAIL, J. Through this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, the petitioner has prayed for the following relief: "It is, accordingly most respectfully prayed that this honorable court may kindly be pleased to direct the issuance of lump sum benevolent fund as per their basic scale instead of scale from which 4% benevolent fund were deducted from their salaries, is illegal unlawful and without lawful authority as such same may be declared as illegal and void.
Furthermore, this Hon'ble Court may kindly be pleased to revise the notification for issuance of lump sum benevolent fund and to issue the same by issuing lump sum benevolent fund as per scale, from which the 4% benevolent fund were deducted from their salaries.
Any other relief which this Hon'ble Court deems fit and proper may also be granted in favour of petitioner.
2. The Facts relevant for disposal of the instant constitutional petition are that the petitioners being officers of Education Department in different scales were granted time scales and were retired from service on attaining the age of superannuation; that the Government of Balochistan ordered for payment of Benevolent Fund to the employees on their retirement, but it was statedly learnt by the petitioners that they are being paid the Benevolent Fund as per their original scale instead of their promoted scales, despite the fact that 4% benevolent fund was deducted from their home take salaries; that the petitioners approached the respondents by filing a representation, but of no avail, hence this petition.
3. The learned counsel for the petitioner inter alia contended that the respondents being officers of the Education Department were granted time scale, and the deduction was also made from their salaries in the promoted scale, but the amount paid is for the original pay scale, which is a clear example of discrimination; he finally urged for acceptance of petition with the direction to the respondents to pay the benevolent fund to the petitioners as per their promoted scales.
4. We have heard learned counsel for the petitioner and perused the record of the case minutely.
5. The petitioners are aggrieved of the payment of benevolent fund, which is being paid to the petitioners as per their original scale, while they being granted time scale promotions are deprived to be paid the benevolent fund in accordance with their respective shares/contributions, whereas the deduction of 4% benevolent fund was made from their salaries. During course of arguments a query was posed to the learned counsel for petitioners that whether this court has jurisdiction to entertain the petition and pass any order thereon, as the petitioners were (retired) civil servant and they were required to have approached the Service Tribunal for redressal of their grievances. The learned counsel for the petitioners was of the view that since the petitioners have retired from their service, therefore, they are no more civil servants, thus this court has jurisdiction to entertain and decide the petition on merit.
6. To settle the said question of law that whether a retired employee for the purpose of his terms and conditions of service and pensionery benefits is considered as civil servant or otherwise, it is essential to examine relevant statutory as well as constitutional provisions/Articles. The definition of civil servant as provided in the Balochistan Civil Servant Act, 1974 in Clause 2(1)(b) reads as under:-
(b) "civil servant" means a person who is a member of a civil Service of the Province of Balochistan or who holds a civil post in connection with the affairs of the Province, but does not include-
(i) a person who is on deputation to the Province of Balochistan from the Federation or from any Province or other authority; or
(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 Workmen6's Compensation Act, 1923 (VIII of 1923). "
7. The term civil servant has been defined in Section 2(a) of the Balochistan Service Tribunals Act, 1974 in following terms:- "[(a) "civil servants" means a person who is or has been a civil servant within the meaning of Balochistan Civil Servants Act, 1974 (IX of 1974);], but does not include a person who is or has been a member of the subordinate judiciary, for the purposes of this Act.
Explanation. .................................
[(a-i) ...........................................
(b) ........................................
(b-i) .........................................
(c) ........................................
After establishment of the Tribunal(s) [supra] for adjudication of matters relating to the terms and conditions of service of civil servants, jurisdiction of all courts is barred by Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973. Article 212 of the Constitution stipulates:- "212. Administrative Courts and Tribunals.-(1) Notwithstanding anything hereinbefore contained, the appropriate Legislature may by Act 1 [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 2[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 1[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 2[, other than an appeal pending before the Supreme Court,] shall abate on such establishment]: Provided that the provisions 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, 3[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. "
8. The definition of 'civil servant' provided in Clause 2(a) of the Service Tribunals Act, 1973 correlates with Article 212(1)(a) of the Constitution, which is the supreme law. The Constitution is fundamental to a law, created under its authority and when we comprehend the intent of legislature by considering the plain meanings of Article 212 of the Constitution, it provides words person(s) who is/are or has/have been in the service of Pakistan. There remains no ambiguity that definition of civil servant as provided in Clause 2(1)(b) of the Act of 1973, when considered in juxtaposition with that of provision of Article 212 of the Constitution and Services Tribunal Act, 1973, then same includes the person who remained as civil servant for enforcement of his terms and conditions of service, which obviously includes a retired employee, being already declared to be the subject of definition under Clause 2(1)(b) of the Civil Servants Act, 1973. They are not ousted from agitating their claims regarding terms and conditions of their service(s) before the Service Tribunals. In the light of said explanation / construction, there is no force in the argument that retired civil servant is not a subject of Service Tribunal for redressal of his grievance for the purpose of terms and conditions of his service.
9. The petitioner(s) was (were) is a civil servant(s) and is/are barred to agitate his (their) claim before this Court. This bar has been created through Article 212 of the Constitution. In respect whereof, we are fortified by a dictum laid in the case of "Ali Azhar Khan Baloch and others v.
Province of Sindh and others (Paragraph 238) (2015 SCMR 456) wherein it is held that :- "Article 212 of the Constitution places fetters on the jurisdiction of a Civil Court and a High Court to entertain matters relating to terms and conditions of service of a Civil Servant. We have already dealt with the scope of Article 212 of the Constitution separately. The mode of correction in the date of birth of a Civil Servant is provided under Rule 12A of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, which is part of terms and conditions of service of a Civil Servant and cannot be resorted to through the Civil Suit. It has also been well established by now that a Civil Servant cannot seek alteration in his date of birth at the verge of his retirement or otherwise in a suit and in this respect principles laid down in the case of Dr. Muhammad Aslam Baloach v. Government of Balochistan (2014 SCMR 1723) are fully attracted."
10. It has been held by the superior Courts in the above referred case law that Article 212 of the Constitution bars the jurisdiction of all Courts including to entertain and adjudicate upon any matter in which terms and conditions of service of an employee are involved.
In the light of above, the instant writ petition is not maintainable hence, dismissed. However, petitioner is at liberty, to seek remedy available to him under the law, if so, advised, subject to all just exceptions.