MUHAMMAD SHAN GUL, J. Through this judgment, the titled constitutional petition as also constitutional petitions bearing No.2520 of 2022 and 1075 of 2022 are sought to be decided since common questions of law and facts pertaining to voluntary retirement of civil servants are involved in these petitions.
2. The facts of the case in W.P. No.464 of 2022 are that the petitioner (Date of birth 07.02.1970) was inducted in the service of the Revenue Department, Government of the Punjab on 15.06.1995. On 17.06.2020, while posted as Kanungu (BS-09) with the office of Deputy Commissioner, Rajanpur, the petitioner applied for the grant of Leave preparatory to Retirement (LPR) under Rule 3.5(i) of the Punjab Civil Services Pension Rules, 1963 ("the Rules, 1963"). At the time of filing the said application, the petitioner had completed 25 years and 2 days of continuous service with the Government of the Punjab. Deputy Commissioner, Rajanpur/respondent No.4, on 21.07.2020 sanctioned petitioner's LPR from 01.08.2020 to 31.07.2021. Order of respondent No.4 dated 21.07.2020 further stated that the petitioner "shall stand retired from Government service with all pensionary benefits on expiry of said leave w.e.f. 01.08.2020".
3. After expiration of the petitioner's LPR, documents for the release of his pension and gratuity were sent to District Accounts Officer, Rajanpur/respondent No.6 mentioning his date of retirement as 31.07.2021 and length of his qualifying service (including LPR) as 26 Years, 01 Month and 16 Days.
While forwarding the said documents, the Additional Deputy Commissioner (Revenue), Rajanpur accorded administrative and financial sanction for the grant of pension/commutation.
4. On 03.05.2021 i.e. during the petitioner's LPR and before the date of his retirement, Section 12 of the Punjab Civil Servants Act, 1974 was amended and reenacted and Sub-Clause(b) of Sub-section Section 12(1)(ii) was added.
12. Retirement from service.- (1) Civil Servant shall retire from service-
(i) on such date after he has completed twenty years of service qualifying for pension or other retirement benefits as the competent authority may, in public interest, direct; or
(ii) Where no direction is given under clause (i):
(a) on completion of the sixtieth year of his age; or
(b) voluntarily, on completion of twenty five years of service or on attaining fifty five years of age, whichever is later.
5. The case of the petitioner pending with Respondent No.6 was not processed for the reason that he had completed 25 years of his service but had not attained the age of 55 and hence, could not opt for voluntary retirement in light of the aforesaid amendment in Section 12. The petitioner's case, on the other hand, is that since his LPR and retirement had already been approved by respondent No.4 on 21.07.2020, his entitlement to opt for retirement and grant of pensionary benefits should not be affected by the statutory amendment effected on 03.05.2021. Lack of response from respondent No.6 forced the petitioner to file W.P No.20026/2021 (Muhammad Iqbal Mughal Vs. Government of the Punjab etc) before this Court and vide order dated 22.12.2021, respondent No.6 was directed to address the matter of the petitioner within 25 days.
6. On 07.01.2022, Respondent No.6 intimated the office of Additional Deputy Commissioner (Revenue)
Rajanpur that after the aforesaid amendment in Section 12 of the Act, 1974, the said Kanungo is required to join service again and the intervening period is to be treated as leave of the kind due. This correspondence has been brought under challenge in this petition.
7. The facts of the case in W.P. No.2520 of 2022 are that the petitioner applied for premature retirement after qualifying 25 years of service on 29.01.2020. The Secretary Higher Education Department vide order dated 07.06.2021 ordered for the petitioner to retire and according to retirement notification, the petitioner was relieved from his post on 20.7.2021.
8. After expiration of the petitioner's LPR, documents for the release of his pension and gratuity were sent to District Accounts Officer, Khanewal/respondent No.4 mentioning his date of retirement as 20.07.2021 and length of his qualifying service (including LPR) as 25 Years. While forwarding the said documents, the Secretary Higher Education Department accorded administrative and financial sanction for the grant of pension/commutation vide order dated 26.10.2021.
9. On 03.05.2021 i.e. during the petitioner's LPR and before the date of his retirement, Section 12 of the Punjab Civil Servants Act, 1974 was amended and reenacted and Sub-Clause(b) of Sub-section Section 12(1)(ii) was added.
10. The case of the petitioner pending with respondent No.4 was not processed for the reason that though he had completed 25 years of service he had not attained the age of 55 and hence, could not opt for voluntary retirement in light of the aforesaid amendment in Section 12. The petitioner's case, on the other hand, is that since his LPR and retirement had already been approved by respondent No.1 on 20.07.2021, his entitlement to opt for retirement and grant of pensionary benefits should not be affected by the statutory amendment effected on 03.05.2021. Lack of response from respondent No.4 forced the Petitioner to file W.P No.1553/2021 before this Court and vide order dated 08.10.2021, respondents were directed to decide the matter of the petitioner within 25 days but in vain. Feeling aggrieved, the petitioner filed a criminal original No.33-W/2022 before this Court. During the course of proceedings in the contempt petition, respondent No.4 placed on record a copy of an order dated 15.2.2022 whereby the retirement order of the petitioner was withdrawn. This withdrawal has been brought under challenge.
11. The facts of the case in W.P. No.1075 of 2022 are that the petitioner after completing 25 years of service applied for retirement on the basis of Leave preparatory to Retirement (LPR) under Rule 3.5(i) of the Punjab Civil Services Pension Rules, 1963 ("the Rules, 1963"). The District Education Officer, District Rajanpur/respondent No.4 vide order 02.06.2021 sanctioned petitioner's LPR. Order of respondent No.4 dated 02.06.2021 further stated that the petitioner "shall stand retired from Government service with all pensionary benefits on expiry of said leave w.e.f. 02.09.2021."
12. After expiration of the petitioner's LPR, documents for release of his pension and gratuity were sent to District Accounts Officer, Rajanpur/Respondent No.6.
13. On 03.05.2021 i.e. during the petitioner's LPR and before the date of his retirement, Section 12 of the Punjab Civil Servants Act, 1974 was amended and reenacted and Sub-Clause(b) of Sub-section Section 12(1)
(ii) was added.
14. The case of the petitioner pending with Respondent No.6 was not processed for the reason that though he had completed 25 years of his service he had not attained the age of 55 and hence, could not opt for voluntary retirement in light of the aforesaid amendment in Section 12. The petitioner's case, on the other hand, is that since his LPR and retirement had already been approved by respondent No.4 on 02.06.2021, his entitlement to opt for retirement and grant of pensionary benefits should not be affected by the statutory amendment effected on 03.05.2021.
This inaction has been brought under challenge.
VOLUNTARY RETIREMENT BEFORE AND AFTER THE AMENDMENT:
15. Prior to the aforesaid amendment, Section 12 of the Act, 1974 read as under: "12. Retirement from service.- (1) Civil Servant shall retire from service-
(i) on such date after he has completed twenty years of service qualifying for pension or other retirement benefits as the competent authority may, in public interest, direct; or
(ii) where no direction is given under clause (i), on completion of the sixtieth year of his age; or"
16. At that time (before the recent amendment in the Act, 1974), Civil Servants in Punjab could opt for voluntary retirement before the age of superannuation (60 years) and were eligible for the grant of retiring pension under Rule 3.5 of the Punjab Civil Services Pension Rules, 1963: "3.5 Retiring Pension A retiring pension is granted to a Government servant, who not being eligible for superannuation pension -
(i) Opts to retire after 25 years qualifying service or such less time as may for any special class of Government servant be prescribed; or (i-a)......
(ii).......
Note (1) Subject to the provisions of the Essential Services Maintenance Act, all Government servants shall have the right to retire on a retiring pension after completing 25 years qualifying service; provided that a Government servant, who intends to retire before attaining the age of superannuation, shall, at least three months before the date on which he intends to retire, submit a written intimation to the authority which appointed him, indicating the date on which he intends to retire. Such an intimation, once submitted, shall be final; provided that if a Government servant withdraws his application for voluntary retirement, or modifies the date of such retirement, before its acceptance by the competent authority, the application or the date of retirement shall be deemed to have been withdrawn or modified, as the case may be.
Note (2)
Note (3) A Government servant can ask for retirement only after completion of 25 years qualifying service. A Government servant proceeding on retiring pension shall, unless he has been retired under the Efficiency and Discipline Rules, has the right to avail of such leave preparatory to retirement as may be admissible to him.
However, the LPR shall not be allowed to him until he has completed 25 years service qualifying for pension. If a Government servant proceeds on LPR before actually completing 25 years of qualifying service, he may be deemed to have proceeded on retirement with effect from the date he completes 25 years of qualifying service, and the leave enjoyed by him before completing 25 years of service may be treated as leave of the kind due to him."
17. Hence, the amendment in Section 12 means that the option of voluntary retirement is now available to a Civil Servant who is aged 55 years or has completed 25 years of service, whichever is later. Petitioner in W.P.
No.464 of 2022 though has completed 25 years of Service but has not attained the age of 55 and his age at the time of his retirement (31.07.2021) was 51 years 5 months 24 days. However, the case of the petitioner is that since his LPR and retirement has been sanctioned on 21.07.2020 (prior to the amendment dated 03.05.2021), right to avail voluntary retirement and availing retiring pension has already accrued in his favour and the same has been acknowledged and sanctioned in his favour by the Competent Authority/Respondent No.4 and therefore the amendment in the Act, 1974 should not affect his right. In other words, the right of the petitioner to opt for retirement has already matured after grant of approval of his LPR and early retirement and there is nothing to be done by any of the respondents other than execute the order dated 21.02.2020. And that there is no retrospective effect given to the amended Section 12 and hence, the same will only apply to cases where early retirement has not been approved. The petitioners in connected petitions state their cases in identical terms.
18. While what the petitioners claim may be legally accurate but the question of jurisdiction raised vehemently by the amicus Malik Muhammad Tariq Rajwana and the learned Asstt. Advocate General has to be adverted to and taken up to the exclusion and ouster of all other issues. The question of this Court exercising judicial power shall only arise when once it is determined that this Court has jurisdiction in the matter. The Law Officer states on the strength of "Asadullah Rashid v. Haji Muhammad Muneer and others" (1998 SCMR 2129) and "Government of Sindh through Secretary Education and Literacy Department and others v. Nazakat Ali and others" (2011 SCMR 592) that the question of jurisdiction be determined at the outset before analyzing the merits of the case.
JURISDICTION OF HIGH COURT:
19. Article 212 of the Constitution while ousting jurisdiction of this Court or any another Court with respect to matters involving terms and conditions of a Civil Servant clearly mentions that such terms and conditions could equally be of, and with respect to, person(s) who have been in civil service.
"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)........
(c) .......
(2) Notwithstanding anything hereinbefore 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 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."
20. The Hon'ble Supreme Court of Pakistan, in numerous precedents, has settled the law. According to law laid down, while taking up matters relating to Civil Servants and their terms and conditions, the High Courts, must, first, determine the issue of jurisdiction before embarking upon an analysis of the merits in issue. Such caution, even otherwise prescribed for all courts, gains more significance for the reason that in cases touching terms and conditions of service of a civil servant, not only the availability of jurisdiction under Article 199 has to be established but the bar contained in Article 212 has to be applied.
21. In "Amjad Raza Khan and another v. Government of Punjab through Secretary, Local Government and Rural Development Department, Lahore and 4 others" (1998 PLC(C.S.) 891), it has been held as follows:- "3-A. It appears that in the High Court comments were filed by the Government of Punjab in which objection is raised with regard to the jurisdiction of the High Court and also to the effect that writ petitioners had not availed departmental remedy, hence resort to the Court was premature. ....... In such circumstances, question of jurisdiction is of paramount importance and the High Court should have decided this question in the first instance.
I............. In such circumstances, we are of the view that the High Court should decide the question of jurisdiction and since stay has been granted, it would be proper and in the fitness of the things that High Court should dispose of the main petition finally including finding on the question of jurisdiction within two weeks from today. "
22. In "Miss Rukhsana Ijaz v. Secretary, Education, Punjab and others" (1997 PLC(C.S.) 121), it has been held as follows: "2. ..........Both the petitioner and respondent No. 1 are admittedly civil servants. Dispute between them relates to their transfer/posting which is a matter relatable to the terms and conditions of their service. Disputes about these matters fall within the exclusive jurisdiction of the Service Tribunal and the jurisdiction of the High Court is excluded in such matters by virtue of the express provisions of Article 212(2) of the Constitution. It appears that the learned Judge in the High Court has not duly attended to this aspect of the matter before issuing the stay order. In the circumstances, we convert this petition into an appeal and allow it. The impugned stay order is set aside and it is directed that the High Court should first decide the question of its jurisdiction before passing any stay order."
23. In "Hafiz Khalid Irshad v. Ahmad Khan Wattoo and others (1997 SCMR 1124), it has been held as follows:- "3. .........As stated above, the dispute between the parties relates to their posting/transfer inter se which is a matter relatable to the terms and conditions of their service. Such disputes fall within the exclusive jurisdiction of the Service Tribunal and the jurisdiction of all other Courts including High Court is expressly barred by virtue of the provisions of Article 212(2) of the constitution. This aspect of the matter, it appears has not been looked into by the learned Judge in the High Court before passing the impugned order. This petition is, therefore, converted into an appeal which is allowed and the impugned stay order issued by the High Court is set aside with the observation that the High Court should first determine the question of its jurisdiction before passing any interim order. The High Court may preferably dispose of writ petition within two months."
24. In "Asadullah Rashid v. Haji Muhammad Muneer and others" (1998 SCMR 2129), it has been held as follows:- "2. Learned counsel for the petitioner contended that the writ petition filed by respondent No. l was barred by Article 212 of the Constitution .........
4. As a result, Civil Petition No.934-L of 1998 is converted into appeal and the same is allowed, order dated 15- 6-1998 of the Lahore High Court passed in Writ Petition No.4957 of 1998 is set aside and the matter is remanded to the High Court for fresh decision after hearing the parties. Before taking any decision regarding admission of the writ petition an or passing orders granting interim relief, the High Court will first decide the question of its jurisdiction in view of the provisions of Article 212 of the Constitution and in the light of the judgments of this Court on the point involved."
25. In "Ayyaz Anjum v. Government of Punjab, Housing and Physical Planning Department through Secretary and others" (1997 SCMR 169), it has been held as follows: "2. Clearly, the matters relating to the posting and transfer of a civil servant relate to the terms and conditions of his service. Disputes about these matters fall within the exclusive jurisdiction of the appropriate Service Tribunal.
The jurisdiction of High Court is barred in these matters by the express provisions of Article 212(2) of the Constitution. We are therefore unable to support the interim order made by it in this case. Accordingly, we convert this petition into appeal and set aside the said order. The High Court should first determine the question of its jurisdiction before making any interim order in this case."
26. In "Zamir Iqbal Khan and another v. Province of Sindh through Chief Secretary and 2 others" (2014 PLC (CS) 954), it has been held as follows: "8. The cumulative effect of the dictums laid down by the Hon'ble Supreme Court in the cases of Asadullah Rashid, Ayyaz Anjum, Muhammad Anis, Imam Bakhsh, Rana Muhammad Sarwar and Peer Muhammad (supra) made quite visible that the petition under Article 199 is not maintainable in relation to any matter connected with the terms and conditions of service and in respect whereof the Service Tribunal has exclusive jurisdiction, even it was held that the High Court before taking any decision regarding the admission of constitutional petition and or passing order granting interim relief will first decide the question of its jurisdiction in view of Article 212 of the Constitution. .......... The apex court has further held that the orders, even if mala fide, ultra vires or coram non judice, fell within the ambit of Service Tribunal and jurisdiction of Civil Courts including High Court is ipso facto ousted as result of bar contained under Article 212 of the Constitution. Recently, the Hon'ble Supreme Court has passed the similar order on 3-1-2014 in Civil Petition No.345-K of 2013. The crux of the order is that while exercising jurisdiction by this court under C.P.C. or even in the Constitutional petition, the provision of Article 212 of the Constitution cannot be overlooked which bars the jurisdiction."
27. The Hon'ble Supreme Court, rather than opining on the merits of the cases dealing with terms and conditions of a Civil Servant itself, has disapproved the practice of any decision making on merits by the High Courts without first passing a judicial order pertaining to availability of jurisdiction. What is noteworthy is that the Hon'ble Supreme Court, in such cases has not decided the question of jurisdiction but has remanded the cases back to the respective High Courts for the obvious reason that in such cases a two-fold threshold i.e. of jurisdiction under Article 199 being subject to the Constitution and Article 212 beginning with a non-obstante clause, has to be crossed. Hence, before proceeding any further, the crucial question pertaining to jurisdiction has to be decided. The answer to this question will determine if the bar imposed by Article 212 is triggered divesting this Court of the requisite jurisdiction to settle and adjudicate the controversy.
28. It may also be noted that Article 199 is subject to the Constitution while Article 212 of the Constitution begins with a non obstante clause, and therefore prevails over Article 199 of the Constitution. For the purpose of Article 199, Article 212 is the Constitution! Also, while most of the other ouster clauses contained in the Constitution of Islamic Republic of Pakistan, 1973 have been judicially pierced and read down with the recent most example being that of Article 211 of the Constitution in the case of "Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others" (PLD 2010 SC 61), the ouster contemplated by Article 212 of the Constitution has ordinarily never been read down by the Superior Judiciary so as to allow civil servants to have recourse to Constitutional jurisdiction in the matter of terms and conditions of their service. Stray incidents may have occurred such as the one reported as "Azhar Ahmad Khan and 8 others v. Chief Secretary Government of the Punjab, Lahore and 12 others" (2010 PLC (C.S.) 374) but the Hon'ble Supreme Court of Pakistan has never approved such a course of action and a perusal of the judgment reported as "Ali Azhar Khan Baloch and others v. Province of Sindh and others" (2015 SCMR 456), clearly reveals that the attempt by the Sind High Court to adjudicate matters involving terms and conditions of service of a civil servant was deprecated and not approved by the Hon'ble Supreme Court of Pakistan. In this case, the Sindh High Court entertained Constitutional petitions as also civil suits rooted in terms and conditions of a civil servant and Hon'ble Supreme Court of Pakistan conspicuously disapproved such an exercise.
29. Article 212 of the Constitution being a non obstante article prevails over Article 199 since no Court has jurisdiction to exercise judicial power to grant an injunction or make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Tribunal extends. It is, therefore, that this Court has no jurisdiction to even entertain a matter that stands barred under Article 212 of the Constitution. In fact, the remedy afforded by Article 199 cannot be triggered owing to this jurisdictional bar. The words 'jurisdiction to entertain' clearly mean that since there is no jurisdiction to even entertain no question of exercise of the consequent judicial power arises.
30. Article 212 of the Constitution beginning with a non obstante clause expressly bars all Courts including a High Court to entertain or take cognizance of matters that eminently fall within the jurisdiction of the Administrative Tribunal. The above principles have been very lucidly explained in judgments reported as "Abdul Bari v. Government of Pakistan and 2 others" (PLD 1981 Karachi 290) and "Mian Amanul Mulk v. N.W.F.P. through Chief Secretary" (PLD 1981 Peshawar 1). Moreover, in "Muhammad Aslam Bajwa v.
Federation of Pakistan" (PLD 1974 Lahore 545), it has been observed that exclusionary provisions of Article 212 take within their sweep all preceding provisions of the Constitution and which include Article 199 of the Constitution. In fact, the non obstante clause in Article 212 indicates clearly that its provisions are not subject to or conditioned upon those of Article 199 of the Constitution. The intention of the legislature in granting primacy to Article 212 is manifest.
31. In this view of the matter, it is clear that there is hardly any way that the impregnable ouster contemplated by Article 212 can be penetrated. The grounds that often find favour with the High Court and compel it to assume jurisdiction and exercise judicial power even in the face of a categorical ouster clause are not embraced when taken in the context of the ouster contemplated by Article 212 of the Constitution. The twin reasons of a constitutional ouster and the availability of a Court like forum are the dominant considerations for the development of such jurisprudence and, therefore, to this day, the law laid down in the nascent days of the introduction of Article 212 i.e. "Abdul Bari v. Government of Pakistan and 2 others" (PLD 1981 Karachi 290) and "Mian Amanul Mulk v. N.W.F.P. through Chief Secretary" (PLD 1981 Peshawar 1) still holds the field and is followed without any question.
Jurisdiction of Punjab Service Tribunal: (regarding person & subject matter) a. Jurisdiction regarding person (the Petitioners):
32. Although the definition of a civil servant in the Act, 1974 in Section 2(b) seems limited to "...a person who is a member of a civil service of the Province or who holds a civil post in connection with the affairs of the Province...", the definition of a Civil Servant, relevant to ascertain the jurisdiction of Punjab Service Tribunal is provided in Punjab Service Tribunals Act, 1974 ("PST Act, 1974") as: "2: (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 affairs of the Province ......."
Similar phrase ".....terms and conditions of persons who are or have been in service....." has been used in Article 212 (above).
33. In "Inspector Muhammad Abbas v. Inspector General of Police, Islamabad and 2 others" (2020 PLC(C.S.) 964), it has been held as follows: "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 meaning of Article 212 of the Constitution it provides words persons who are or 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 Article 212 of the Constitution and Service Tribunals 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, therefore, are 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 before the Service Tribunals. In the light of said explanation/construction, there is no force in the argument that retired civil servant is not the subject of Service Tribunal for redressal of his grievance for the purpose of terms and conditions of his service.
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 of this Court to entertain and adjudicate upon any matter in which terms and conditions of service of an employee are involved. Only jurisdiction is of the relevant Service Tribunal, created/established under Article 212 of the Constitution. Matter of date of birth is related to the terms and conditions of service as contained in Rule 12A of the Civil Servants (Appointment, Promotion and Transfer)
Rules, 1973. Be that as it may, the case of the petitioner may be on sound footings but as this Court lacks jurisdiction due to bar contained in Article 212 of the Constitution, could not adjudicate upon the matter."
34. In "Muhammad Younis v. Abbas Raza and 6 others" (2005 PLC (C.S.) 833), it has been held as follows: "5 The petitioner as mentioned above even after retirement, remained civil servant and he has to avail alternative remedy before the Service Tribunal
35. In "Abdul Aziz Virk v. Special Secretary, Education (Schools), Government of the Punjab, Lahore and 7 others" (2001 PLC(C.S.) 661), it has been held as follows: "4....... It is pertinent to mention that pension is part and parcel of terms and conditions as is evident from section 18 of the Punjab Civil Servants Act, 1974. The petitioner has alternate remedy before the Service Tribunal as is evident from section 2(b) of the Punjab Service Tribunals Act, 1974. The Legislature has, specifically mentioned the words 'has been which include the person who has been retired from the service who is well within his right to agitate the matter before the Service Tribunal."
36. The case of the petitioner is that he already stands retired from the Service of the Government of the Punjab in terms of order dated 21.07.2020 and hence, the law applicable on 21.07.2020 should be applied to his case and not the law which is in force at the time of his actual retirement i.e 31.07.2021. In other words that matter of his entitlement for voluntary retirement, having already been taken up and decided in his favour prior to 03.05.2021 (date of amendment in Section 12 of the Act, 1974) is a past and closed transaction and any subsequent amendment cannot affect an already accrued and vested right. The petitioners in connected petitions echo this argument.
37. The question which requires adjudication by this Court is what should be the date on which his right of voluntary retirement and in turn grant of retiring pension matured and that date would then determine the law applicable to the case of the petitioner. Does this Court have jurisdiction to do so?
38. The stance of the petitioner is that his right matured and was endorsed on 21.07.2020, hence, he already stands retired and if the view of respondent No.6 disallowing such retirement is accepted, he would be deemed to be still in service of the Government of the Punjab. In either case, therefore, jurisdiction (in service or retired civil servant) of the Punjab Service Tribunal is attracted. b. Jurisdiction regarding subject matter (terms and condition of service):
39. The subject matter jurisdiction of Punjab Service Tribunal is provided in Section 4 of Punjab Service Tribunals Act, 1974: "4. Appeal to Tribunals.- (1) Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is latter prefer an appeal to the Tribunal-"
40. Furthermore, the subject of retirement of a Civil Servant falls in Chapter II of the Act, 1974 which is titled as "Terms and Conditions of Service of Civil Servants." Section 12 falls in Chapter II of the Act, 1974 and hence, the ascertainment of date upon which the Petitioner's right to avail voluntary retirement matured and, was therefore, immune from being affected by any subsequent amendment in law, falls within his terms and conditions and can solely be determined by the Punjab Service Tribunal. The case of Ali Azhar Baloch (2015 SCMR 456) is relied upon with advantage.
41. Similarly, grant of pension and pensionary benefits also form part of terms and conditions of a Civil Servant and the same are governed under Section 18 of the Act, 1974, which again is a part of Chapter-II of the Act, 1974: "18. Pension and gratuity.- (1) On retirement from service, a civil servant shall be entitled to receive such pension or gratuity as may be prescribed."
42. Hence, both, determination of the date of accrued right of retirement and the Petitioner's right to avail pension, forming part of terms and conditions of his service under the Act, 1974 are to be adjudicated by the Punjab Service Tribunal since Section 2(a) read with Section 4 of Punjab Service Tribunals Act, 1974 and of course Article 212 confers exclusive jurisdiction on the said Tribunal to decide both interlinked controversies.
43. In "Federation of Pakistan through Establishment Division v. Brig. (Rtd.) Zulfiqar Ahmad Khan and others" (2007 SCMR 1313), it has been held as follows: "4. By looking at the very grievance of the respondent, as it has been agitated before the High Court and also before Wafaqi Ombudsman was with regard to the award and non-award of pensionary benefits depending on the conditions as to whether he has completed tenure of 10 years in the civil service which is purely relatable to the terms and conditions of service. By no stretch of imagination, this case could be brought out of the ambit of the terms and conditions of civil servant and in such view of the matter bar contained under Article 212 of the Constitution attracts and the High Court has wrongly assumed the jurisdiction despite the constitutional bar while accepting writ petition of the respondent...
44. In "Secretary, Government of Sindh v. Abdul Rahim and another" (1998 PLC(C. S.) 415), it has been held as follows: "Admittedly, the relief sought was to avoid retirement on 11th August, 1995. To be retired from service is one such term and condition of service which falls within the exclusive jurisdiction of Services Tribunal.
Article 212 of the Constitution bars jurisdiction of any other Court or Tribunal in relation to the terms and conditions of the service which would also include the jurisdiction of Civil Court which is conferred on Civil Court under section 9 of the Code of Civil Procedure. This is the consistent view of Honourable Supreme Court and all High Courts. The jurisdiction of Civil Court to entertain and grant relief in such suits was barred by law. For this additional reason suit filed by the respondent was not maintainable and the plaint ought to have been rejected in terms of Order VII, Rule 11, C.P.C."
45. In "Abdul Bari v. Government of Pakistan and 2 others" (PLD 1981 Karachi 290), it has been held by a five Members Bench as follows: "The two expressions placed by us into quotes are obviously expressions of different connotation and do not seem to cover the same field. It seems to us, therefore, that the Legislature could not have excluded an order of retirement under section 13(ii) from the purview of the Service Tribunal to examine and such an order would apparently fall within the main provisions of section 4 of the Service Tribunals Act, 1973 which provides for a right of appeal by an aggrieved civil servant against any final order made by a departmental authority in respect of any of the terms and conditions of his service. We are clearly, therefore, of the view that clause (b) of the proviso to subsection (1) of section 4 of the said Act does not contemplate an order of retirement under section 13(ii) of the Civil Servants Act, 1973. .... ...In Afzal Hussain Syed v. Govt. of Punjab a learned Single Judge of the Lahore High Court was required to consider the question of Constitutional Jurisdiction of the High Court in relation to an order of retirement simpliciter after completion of 25 years service, as in the present case, and he reiterated the view held in the aforesaid cases holding that the ouster of jurisdiction under Article 212 in such a case was absolute for the reason that such an order is not excepted from the jurisdiction of the Administrative Tribunal established under the enabling provisions of Article 212 of the Constitution.... ...In view of all the aforesaid judicial pronouncements it seems clear to us that an order of retirement in the public interest in respect of a civil servant after completion of 25 years service qualifying for pension or other retirement benefits being appealable under section 4 of the Service Tribunals Act, 1973, the jurisdiction of this Court stands ousted by virtue of the bar contained in Article 212 of the Constitution...... ......In view of the aforesaid, we are clearly of the opinion that the question of the competency of the authority which passed the order of retirement if it belongs to the hierarchy of the officers of the Department concerned will be subject to the decision and the jurisdiction of the Service Tribunal........
46. In "Khalilur Rehman and others v. Government of Pakistan and others" (PLD 1981 Karachi 750), it has been held by a five Members Bench as follows: "5........... The plain reading of clause (2) of Article 212 leaves no manner of doubt or ambiguity that the jurisdiction of the High Court would be ousted in regard to all such matters which fall within the ambit of the authority of the Tribunal to adjudicate, even though the Tribunal may be conferred with jurisdiction limited to some of the matters relating to the terms and conditions of service. The words ".in respect of any matter to which the jurisdiction of -such Administrative Court or Tribunal extends" clearly make the ouster of jurisdiction of the High Court to correspond with the matters placed within the ambit of the Jurisdiction conferred on the Tribunal. If the intention of the makers of the Constitution was as is canvassed by Mr. Khalid Ishaque, then instead of the words referred to, the provision would have been to the effect that upon establishment of an Administrative Court or Tribunal of exclusive jurisdiction no other Court shall be competent to entertain any proceeding in respect of any matter relating to terms and conditions of service. But the words pointed out clearly provide for the degree of the ouster of jurisdiction of the Courts in direct proportion to the scope of the jurisdiction of the Tribunal.
6......Thus it is clear that section 13 speaks of retirement from "service" of a civil servant, whereas clause (b) of section 4(1) of the Service Tribunals Act speaks of the fitness of a person to hold a particular "post...............It seems to us, therefore, that the Legislature could not have excluded an order of retirement under section 13(ii) from the purview of the Service Tribunal to examine and such an order would apparently fall within the main provisions of section 4 of the Service Tribunals Act, 1973, which provides for a right of appeal by an aggrieved civil servant against any final order made by a departmental authority in respect of any of the terms and, conditions of his service. We are clearly, therefore, of the view that clause
(b) of the proviso to subsection (1) of section 4 of the said Act does not contemplate an order of retirement under section 13(ii) of the Civil Servants Act, 1973. Such an. interpretation is in accord with the well-established principles of interpretation of statutes which lay down that a proviso has to be strictly construed and a remedial provision of an enactment to be construed so as to advance the remedy and suppress the mischief that was intended to be suppressed by the provision. There is no reason for holding that whereas all other orders in respect of any of the terms and conditions of service were made appealable, an order retiring a civil servant before he completes 60 years of his age should be excluded from the purview of appeal.
7... In view of all the aforesaid judicial pronouncements it seems clear to us that an order of retirement in he public interest in respect of a civil servant after completion of 25 years service qualifying for pension or other retirement benefits being appealable under section 4 of the Service Tribunals Act, 1973, the jurisdiction of this Court stands ousted by virtue of the bar contained in Article 212 of the Constitution."
47. In "Afzal Hussain Syed v. Government of Punjab and another" (PLD 1980 Lahore 697), it has been held as follows: "25. I am, therefore, of the view that the competent authority could act with jurisdiction to order retirement at any time after a civil servant has completed 25 years of service, qualifying him for pension or other retirement benefits. The bar in Article 212 of the Constitution is thus attracted to this case and so no relief under Article 199 of the Constitution can be dispensed to the petitioner. These petitions are accordingly dismissed with no order as to costs."
48. In "Agricultural Development Bank of Pakistan and another v. Imtiaz Ahmed Gill" (1999 SCMR 650): A Civil servant opted for his voluntary retirement under Golden Handshake Scheme and got partial financial benefits in cash. The Chairman of the Bank, allowed the civil servant to withdraw his option, but the Competent Authority did not allow him to withdraw the said irrevocable option. "6. We tend to agree with the contentions of Hafiz S.A. Rehman, learned Senior Advocate Supreme Court representing the Bank, that the withdrawal of the option was in essence an order of recall of voluntary retirement order of the respondent which did not fall within the Constitutional domain of the High Court. The objection raised by the learned counsel for the respondent that it did not fall within the terms and conditions of the service appear to be a mere technicality. Substantially the order of withdrawal of option and consequential reinstatement of the respondent was one of the terms and conditions of the service and obviously the dispute about such matters would fall within the exclusive jurisdiction of the appropriate Service Tribunal. In consequence, the jurisdiction of the High Court was barred in such matters under Article 212(2) of the Constitution of Islamic Republic of Pakistan (1973)
At the time, the Federal Service Tribunals Act contained the erstwhile Section 2-A!
49. In "Muhammad Shafeeq v. Government of the Punjab, Lahore, Finance Department through Secretary and 2 others" (1998 PLC(C.S.) 1225) the petitioner contended that his pension must be calculated as per the revised pay scale fixed by a circular issued after his date of retirement.
"6. The matter of pension is essentially a matter relating to the terms and conditions of a civil servant and the Constitutional jurisdiction of the High Court under Article 199 is barred under Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973,..."
50. In "Mst. Khalida Bari v. Government of Punjab and others" (1999 PLC(C.S.) 51), it has been held as follows: "7. The re-employment of a civil servant after his retirement is mentioned in Chapter II in section 13 of the Punjab Civil Servants Act, 1974. Chapter II relates to the terms and conditions of service. Hence, the Service Tribunal has the exclusive jurisdiction in such a matter. Therefore the objection as to jurisdiction is legally sound and factually correct.
ALL EXECUTIVE ACTS INCLUDING EVEN RULES AND NOTIFICATIONS AFFECTING TERMS AND CONDITIONS OF A CIVIL SERVANT ARE TO BE ADJUDICATED BY SERVICE TRIBUNALS
51. In "Khalil ur Rehman and others v. Government of Pakistan and others" (PLD 1981 Karachi 750) (above) the Sindh High Court deliberated that the words "in respect of matters relating to terms and conditions...." used in Article 212 have an expansive effect and hence, all matters arising out of or connected to the terms and conditions would fall within the ambit of the Service Tribunal to the exclusion of any Court including Hon'ble High Courts.
".......Such being the scope of the powers of the Service Tribunal we have no manner of doubt that all the grounds of attack urged before the Tribunal including the grounds of mala fide, ultra vires and coram non judice are within the jurisdiction of the Service Tribunal to determine and therefore, it follows that the High Court will have no jurisdiction to grant relief on these grounds in respect of orders appealable beforethe Service Tribunal "
This interpretation was later endorsed by the Hon'ble Supreme Court in various cases and it was settled that every form of executive order or act affecting terms and conditions of a civil servant shall fall within the exclusive jurisdiction of the Service Tribunal for the purpose of adjudication.
52. In "I.A. Sherwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others" (1991 SCMR 1041), it has been held as follows: "8. It has been urged by the learned Attorney-General that since pension is a term of service in view of section 19 of the Civil Servants Act, 1973, which provides that on retirement from service, a civil servant shall be entitled to receive such pension or gratuity as may be prescribed, the remedy, if any, of the petitioners was to file an appeal before the Service Tribunal and not a Constitution Petition directly under clause (3) of Article 184 of the Constitution, particularly keeping in view that above Article 212 contains non obstante clause. On the other hand, Mr. Samdani, learned Advocate Supreme Court appearing for the petitioners, has urged, firstly, that the petitioners are not aggrieved by any order passed in terms of subsection (1) of section 4 of the Act as the relevant enactments/notifications cannot be treated as an order, either original or appellate, made by a departmental authority and, secondly, that the petitioners' case is founded solely on the ground of discriminatory treatment in violation of Article 25 of the Constitution.
9. From the above-quoted Article 212 of the Constitution and section 4 of the Act, it is evident that the jurisdiction of the Courts is excluded only in respect of the cases in which the Service Tribunal under subsection
(1) of section 4 has the jurisdiction. It must, therefore, follow that if the Service Tribunal does not have jurisdiction to adjudicate upon a particular type of grievance, the jurisdiction of the Courts remains intact. It may again be pointed out that the Service Tribunal has jurisdiction against a final order, whether original or appellate, made by a departmental authority in respect of any terms and conditions of service. The question, therefore, arises, whether the relevant enactments/notifications containing the provision for payment of enhanced pension, which have been denied to the pensioners, can be treated as a final order, original or appellate, passed by a departmental authority in respect of any terms and conditions of service. Messrs Aziz A. Munshi and Ch. Ejaz Ahmed, have referred to the following cases in support of their above contention:--
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, falls within the compass of clause (3) of Article 184 of the Constitution. However, we may clarify that a civil servant cannot by-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."
53. In "Peer Muhammad v. Government of Balochistan through Chief Secretary and others" (2007 SCMR 54), it has been held as follows: "4.......We have also adverted to the question of mala fides which according to the learned Advocate Supreme Court could have been dilated upon in Constitutional jurisdiction which is not correct because the provisions as contained in Article 212 of the Constitution of Islamic Republic of Pakistan ousts jurisdiction of all other Courts and orders of the departmental authority even though without jurisdiction or mala fide can be challenged only before the Service Tribunal and jurisdiction of Civil Court including High Court is specifically ousted. The plea of mala fide does not confer upon High Court jurisdiction to act in the matter in view of the Constitutional ouster as contained in Article 212 of the Constitution of Islamic Republic of Pakistan and learned Service Tribunal has full jurisdiction to interfere in such-like matters..."
54. In "Iqan Ahmed Khurram v. Government of Pakistan and others" (PLD 1980 SC 153), it has been held as follows: "......As to the ground concerning the non-maintainability of the petition, the High Court has held, and it is also the case of the petitioner, that the effect of the Rules is that it has altered the terms and conditions of service. This being so, the bar of Article 212 of the Constitution would be applicable with full force as in that exercise the question of vires of the Rules vis-a-vis section 25 of the Act would necessarily be considered. In this behalf the High Court has relied on the statement of law enunciated in Muhammad Hashim Khan and others v. Province of Baluchistan and others (3) and Fazal Elahi Ejaz and others v.
Government of the Punjab and others with which I agree.
55. In "Government of the Punjab and others v. Muhammad Zafar Bhatti and others" (PLD 2004 SC 317), it has been held as follows: "5. It has been held in the case of Iqan Ahmad Khurram (supra) that, if an objection is raised qua the validity of amendment in the rules by a civil servant on the ground that the same had adversely affected his right in the service as to promotion, jurisdiction of the High Court was barred by virtue of Article 212 of the Constitution. The civil servant should approach the Service Tribunal for redressal of his grievance, which was vested with the jurisdiction not only to go into the question of validity or vires of the rules qua right of such a civil servant but also the question of mala fides, if raised in the appeal. This view has been affirmed latter by this Court in the judgment in case of Khalid Mahmood Wattoo v. Government of Punjab (supra). It appears that the law declared by this Court in the above cited reported judgments was not brought to the notice of learned Judge of the High Court, who decided the Constitutional petition wherein reliance was placed on the judgment of the High Court."
56. In "Hafiz Muhammad Ilyas and 6 others v. Government of Khyber Pakhtunkhwa through Chief Secretary and 3 others" (2018 PLC (CS) Note 40), it has been held as follows: "12. In essence, the principle laid down by the august Supreme Court of Pakistan with regard to jurisdiction of this Court and the service tribunal is that the service tribunals are fully competent to entertain and decide cases wherein vires of the service rules or notification are challenged on the touchstone of being violative of the fundamental rights of the civil servants and to direct the authority for framing such rules beneficial to the prospect of the promotion of civil servants.
57. From the above judgments and statutory provisions, it is clear that:-
(i) Matters relating to retirement and pensionary benefits, falling in Chapter II of the Act, 1974 form a part of terms and conditions of Civil Servants.
(ii) Such matters, in terms of Section 4 of Punjab Service Tribunals Act, 1974 can be and rather should be agitated before Punjab Service Tribunal which has exclusive jurisdiction to entertain claims and controversies regarding retirement and pension.
(iii) Since the jurisdiction of the Punjab Service Tribunal is attracted, ouster contained in Article 212 of the Constitution automatically springs into operation, barring this Court from assuming jurisdiction in matters relating to retirement and pension of any serving or retired Civil Servant.
(iv) Even otherwise, in terms of the law laid down in the case of `I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others" (1991 SCMR 1041) and `Iqan Ahmad Khurram v. Government of Pakistan" (PLD 1980 SC 153) the jurisdiction of the Administrative Tribunal constituted under Article 212 of the Constitution cannot be bypassed by adding a ground based on discrimination or violation of fundamental rights.
58. At the fag end of the hearing, Rana Asif Saeed, learned counsel for the petitioner brought a judgment passed by this Court in W.P. No.17603 of 2021 (Muhammad Faheem Zafar v. Government of Punjab) whereby identical notifications and orders as are under challenge before this Bench were set aside.
However, and of the essence, the question of jurisdiction was neither alluded to or considered nor adjudicated in the said judgment since it was perhaps not agitated. Also, this Bench is not opining on the merits of the matter and has confined itself to the question of jurisdiction!
59. These petitions are, therefore, dismissed on account of want of jurisdiction.
MUHAMMAD SHAN GUL, J. Through this judgment, the titled constitutional petition as also constitutional petitions bearing No.2520 of 2022 and 1075 of 2022 are sought to be decided since common questions of law and facts pertaining to voluntary retirement of civil servants are involved in these petitions.
2. The facts of the case in W.P. No.464 of 2022 are that the petitioner (Date of birth 07.02.1970) was inducted in the service of the Revenue Department, Government of the Punjab on 15.06.1995. On 17.06.2020, while posted as Kanungu (BS-09) with the office of Deputy Commissioner , Rajanpur , the petitioner applied for the grant of Leave preparatory to Retirement (LPR) under Rule 3.5(i) of the Punjab Civil Services Pension Rules, 1963 ("the Rules, 1963"). At the time of filing the said application, the petitioner had completed 25 years and 2 days of continuous service with the Government of the Punjab. Deputy Commissioner , Rajanpur/respondent No.4, on 21.07.2020 sanctioned petitioner 's LPR from 01.08.2020 to 31.07.2021. Order of respondent No.4 dated 21.07.2020 further stated that the petitioner "shall stand retired from Government service with all pensionary benefits on expiry of said leave w .e.f. 01.08.2020".
3. After expiration of the petitioner 's LPR, documents for the release of his pension and gratuity were sent to District Accounts Officer, Rajanpur/respondent No.6 mentioning his date of retirement as 31.07.2021 and length of his qualifying service (including LPR) as 26 Years, 01 Month and 16 Days. While forwarding the said documents, the Additional Deputy Commissioner (Revenue), Rajanpur accorded administrative and financial sanction for the grant of pension/commutation.
4. On 03.05.2021 i.e. during the petitioner 's LPR and before the date of his retirement, Section 12 of the Punjab Civil Servants Act, 1974 was amended and reenacted and Sub-Clau se(b) of Sub-section Section 12(1)(ii) was added.
12. Retirement from service.- (1) Civil Servant shall retire from service-
(i) on such date after he has completed twenty years of service qualifying for pension or other retirement benefits as the competent authority may , in public interest, direct; or
(ii) Where no direction is given under clause (i):
(a) on completion of the sixtieth year of his age; or
(b) voluntarily , on completion of twenty five years of service or on attaining fifty five years of age, whichever is later .
5. The case of the petitioner pending with Respondent No.6 was not processed for the reason that he had completed 25 years of his service but had not attained the age of 55 and hence, could not opt for voluntary retirement in light of the aforesaid amendment in Section 12. The petitioner's case, on the other hand, is that since his LPR and retirement had already been approved by respondent No.4 on 21.07.2020, his entitlement to opt for retirement and grant of pensionary benefits should not be affected by the statutory amendment effected on 03.05.2021. Lack of response from respondent No.6 forced the petitioner to file W.P No.20026/2021 (Muhammad Iqbal Mughal Vs. Government of the Punjab etc) before this Court and vide order dated 22.12.2021, respondent No.6 was directed to address the matter of the petitioner within 25 days.
6. On 07.01.2022, Respondent No.6 intim ated the office of Additional Deputy Commissioner (Revenue) Rajanpur that after the aforesaid amendment in Section 12 of the Act, 1974, the said Kanungo is required to join service again and the intervening period is to be treated as leave of the kind due. This correspondence has been brought under challenge in this petition.
7. The facts of the case in W.P. No.2520 of 2022 are that the petitioner applied for premature retirement after qualifying 25 years of service on 29.01.2020. The Secretary Higher Education Department vide order dated 07.06.2021 ordered for the petitioner to retire and according to retirement notification, the petitioner was relieved from his post on 20.7.2021.
8. After expiration of the petitioner 's LPR, documents for the release of his pension and gratuity were sent to District Accounts Officer , Khanewal/respo ndent No.4 mentioning his date of retirement as 20.07.2021 and length of his qualifying service (including LPR) as 25 Years. While forwarding the said documents, the Secretary Higher Education Department accorded adminis trative and financial sanction for the grant of pension/commutation vide order dated 26.10.2021.
9. On 03.05.2021 i.e. during the petitioner 's LPR and before the date of his retire ment, Section 12 of the Punjab Civil Servants Act, 1974 was amended and reenacted and Sub-Clause(b) of Sub-section Section 12(1)(ii) was added.
10. The case of the petitioner pending with respondent No.4 was not processed for the reason that though he had completed 25 years of service he had not attained the age of 55 and hence, could not opt for voluntary retirement in light of the aforesaid amendment in Section 12. The petitioner 's case, on the other hand, is that since his LPR and retirement had already been approved by respondent No.1 on 20.07.2021, his entitlement to opt for retirement and grant of pensionary benefits should not be affected by the statutory amendment effected on 03.05.2021. Lack of response from respondent No.4 forced the Petitioner to file W.P No.1553/2021 before this Court and vide order dated 08.10.2021, respondents were directed to decide the matter of the petitio ner within 25 days but in vain.
Feeling aggrieved, the petitioner filed a criminal original No.33-W/2022 before this Court . During the course of proceedings in the contempt petition, respondent No.4 placed on record a copy of an order dated 15.2.2022 whereby the retirement order of the petitioner was withdrawn. This withdra wal has been brought under challenge.
11. The facts of the case in W.P. No.1075 of 2022 are that the petitioner after completing 25 years of service applied for retirement on the basis of Leave preparatory to Retirement (LPR) under Rule 3.5(i) of the Punjab Civil Services Pension Rules, 1963 ("the Rules, 1963"). The District Education Officer , District Rajanpur/respondent No.4 vide order 02.06.2021 sanctioned petitioner 's LPR. Order of respondent No.4 dated 02.06.2021 further stated that the petitioner "shall stand retired from Government service with all pensionary benefits on expiry of said leave w.e.f. 02.09.2021."
12. After expiration of the petitioner 's LPR, documents for release of his pension and gratuity were sent to District Accounts Officer , Rajanpur/Respondent No.6.
13. On 03.05.2021 i.e. during the petitioner 's LPR and before the date of his retire ment, Section 12 of the Punjab Civil Servants Act, 1974 was amended and reenacted and Sub-Clause(b) of Sub-section Section 12(1)(ii) was added.
14. The case of the petitioner pending with Respondent No.6 was not processed for the reason that though he had completed 25 years of his service he had not attained the age of 55 and hence, could not opt for voluntary retirement in light of the aforesaid amendment in Section 12. The petitioner 's case, on the other hand, is that since his LPR and retirement had already been approved by respondent No.4 on 02.06.2021, his entitlement to opt for retirement and grant of pensionary benefits should not be affected by the statutory amendment effected on 03.05.2021.
This inaction has been brought under challenge.
VOLUNT ARY RETIREMENT BEFORE AND AFTER THE AMENDMENT :
15. Prior to the aforesaid amendment, Section 12 of the Act, 1974 read as under: "12. Retirement from service.- (1) Civil Servant shall retire from service-
(i) on such date after he has completed twenty years of service qualifying for pension or other retirement benefits as the competent authority may , in public interest, direct; or
(ii) where no direction is given under clause (i), on completion of the sixtieth year of his age; or"
16. At that time (before the recent amendment in the Act, 1974), Civil Servants in Punjab could opt for voluntary retirement before the age of superannuation (60 years) and were eligible for the grant of retiring pension under Rule 3.5 of the Punjab Civil Services Pension Rules, 1963: "3.5 Retiring Pension A retiring pension is granted to a Government servant, who not being eligible for superannuation pension -
(i) Opts to retire after 25 years qualifying service or such less time as may for any special class of Government servant be prescribed; or (i-a)......
(ii).......
Note (1) Subject to the provisions of the Essential Services Maintenance Act, all Government servants shall have the right to retire on a retiring pension after completing 25 years qualifying service; provided that a Government servant, who intends to retire before attaining the age of superannuation, shall, at least three months before the date on which he intends to retire, submit a written intimation to the authority which appointed him, indicating the date on which he intends to retire. Such an intimation, once submitted, shall be final; provided that if a Government servant withdraws his application for voluntary retirement, or modifies the date of such retirement, before its acceptance by the competent authority , the application or the date of retirement shall be deemed to have been withdrawn or modified, as the case may be.
Note (2)
Note (3) A Government servant can ask for retirement only after completion of 25 years qualifying service. A Government servant proceeding on retiring pension shall, unless he has been retired under the Efficiency and Discipline Rules, has the right to avail of such leave preparatory to retirement as may be admissible to him.
However , the LPR shall not be allowed to him until he has completed 25 years service qualifying for pension. If a Government servant proceeds on LPR before actually completing 25 years of qualifying service, he may be deemed to have proceeded on retirement with effect from the date he completes 25 years of qualifying service, and the leave enjoyed by him before completing 25 years of service may be treated as leave of the kind due to him."
17. Hence, the amendment in Section 12 means that the option of voluntary retire ment is now available to a Civil Servant who is aged 55 years or has completed 25 years of service, whichever is later . Petitioner in W.P. No.464 of 2022 though has completed 25 years of Service but has not attained the age of 55 and his age at the time of his retirement (31.07.2021) was 51 years 5 months 24 days. However , the case of the petitioner is that since his LPR and retirement has been sanctioned on 21.07.2020 (prior to the amendment dated 03.05.2021), right to avail voluntary retirement and availing retiring pension has already accrued in his favour and the same has been acknowledged and sanctioned in his favour by the Competent Authority/Respondent No.4 and therefore the amendment in the Act, 1974 should not affect his right. In other words, the right of the petitioner to opt for retirement has already matured after grant of approval of his LPR and early retirement and there is nothing to be done by any of the respondents other than execute the order dated 21.02.2020. And that there is no retrospective effect given to the amended Section 12 and hence, the same will only apply to cases where early retirement has not been approved. The petitioners in connected petitions state their cases in identical terms.
18. While what the petitioners claim may be legally accurate but the question of jurisdiction raised vehemently by the amicus Malik Muhammad Tariq Rajwana and the learned Asstt. Advocate General has to be adverted to and taken up to the exclusion and ouster of all other issues. The question of this Court exercising judicial power shall only arise when once it is determined that this Court has jurisdiction in the matter. The Law Officer states on the strength of "Asadullah Rashid v. Haji Muhammad Muneer and others" (1998 SCMR 2129) and "Government of Sindh through Secretary Education and Literacy Department and others v. Nazakat Ali and others" (2011 SCMR 592) that the question of jurisdiction be determined at the outset before analyzing the merits of the case.
JURISDICTION OF HIGH COURT :
19. Article 212 of the Constitution while ousting jurisdiction of this Court or any another Court with respect to matters involving terms and conditions of a Civil Servant clearly mentions that such terms and conditions could equally be of, and with respect to, person(s) who have been in civil service.
"212 Administrative Courts and T ribunals.
(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)........
(c)
(2) Notwithstanding anything hereinbefore 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 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."
20. The Hon'ble Supreme Court of Pakistan, in numerous precedents, has settled the law. According to law laid down, while taking up matters relating to Civil Servants and their terms and conditions, the High Courts, must, first, determine the issue of jurisdiction before embarking upon an analysis of the merits in issue. Such caution, even otherwise prescribed for all courts, gains more significance for the reason that in cases touching terms and conditions of service of a civil servant, not only the availability of jurisdi ction under Article 199 has to be established but the bar contained in Article 212 has to be applied.
21. In "Amjad Raza Khan and another v. Government of Punjab through Secretary , Local Government and Rural Development Department, Lahore and 4 others" (1998 PLC(C.S.) 891) , it has been held as follows:- "3-A. It appears that in the High Court comments were filed by the Government of Punjab in which objection is raised with regard to the jurisdiction of the High Court and also to the effect that writ petitioners had not availed departmental remedy , hence resort to the Court was premature. ....... In such circumstances, question of jurisdiction is of paramount importance and the High Court should have decided this question in the first instance.
I............. In such circumstances, we are of the view that the High Court should decide the question of jurisdiction and since stay has been granted, it would be proper and in the fitness of the things that High Court should dispose of the main petition finally including finding on the question of jurisdiction within two weeks from today. "
22. In "Miss Rukhsana Ijaz v. Secretary , Education, Punjab and others" (1997 PLC(C.S.) 121), it has been held as follows: "2. ..........Both the petitioner and respondent No. 1 are admittedly civil servants. Dispute between them relates to their transfer/posting which is a matter relatable to the terms and conditions of their service. Disputes about these matters fall within the exclusive jurisdiction of the Service Tribunal and the jurisdiction of the High Court is excluded in such matters by virtue of the express provisions of Article 212(2) of the Constitution. It appears that the learned Judge in the High Court has not duly attended to this aspect of the matter before issuing the stay order . In the circumstances, we convert this petition into an appeal and allow it. The impugned stay order is set aside and it is directed that the High Court should first decide the question of its jurisdiction before passing any stay order ."
23. In "Hafiz Khalid Irshad v . Ahmad Khan W attoo and others ( 1997 SCMR 1 124), it has been held as follows:- "3. .........As stated above, the dispute between the parties relates to their posting/transfer inter se which is a matter relatable to the terms and conditions of their service. Such disputes fall within the exclusive jurisdiction of the Service Tribunal and the jurisdiction of all other Courts including High Court is expressly barred by virtue of the provisions of Article 212(2) of the constitution. This aspect of the matter , it appears has not been looked into by the learned Judge in the High Court before passing the impugned order . This petition is, therefore, converted into an appeal which is allowed and the impugned stay order issued by the High Court is set aside with the observation that the High Court should first determine the question of its jurisdiction before passing any interim order . The High Court may preferably dispose of writ petition within two months."
24. In "Asadullah Rashid v. Haji Muhammad Muneer and others" (1998 SCMR 2129), it has been held as follows:- "2. Learned counsel for the petitioner contended that the writ petition filed by respondent No. l was barred by Article 212 of the Constitution .........
4. As a result, Civil Petition No.934-L of 1998 is converted into appeal and the same is allowed, order dated 15-6- 1998 of the Lahore High Court passed in Writ Petition No.4957 of 1998 is set aside and the matter is remanded to the High Court for fresh decision after hearing the parties. Before taking any decision regarding admission of the writ petition an or passing orders granting interim relief, the High Court will first decide the question of its jurisdiction in view of the provisions of Article 212 of the Constitution and in the light of the judgments of this Court on the point involved."
25. In "Ayyaz Anjum v. Government of Punjab, Housing and Physical Planning Department through Secretary and others" ( 1997 SCMR 169 ), it has been held as follows: "2. Clearly , the matters relating to the posting and transfer of a civil servant relate to the terms and conditions of his service. Disputes about these matters fall within the exclusive jurisdiction of the appropriate Service Tribunal. The jurisdiction of High Court is barred in these matters by the express provisions of Article 212(2) of the Constitution.
We are therefore unable to support the interim order made by it in this case. Accordingly , we convert this petition into appeal and set aside the said order . The High Court should first determine the question of its jurisdiction before making any interim order in this case."
26. In "Zamir Iqbal Khan and another v. Province of Sindh through Chief Secretary and 2 others" (2014 PLC (CS) 954), it has been held as follows: "8. The cumulative effect of the dictums laid down by the Hon'ble Supreme Court in the cases of Asadullah Rashid, Ayyaz Anjum, Muhammad Anis, Imam Bakhsh, Rana Muhammad Sarwar and Peer Muhammad (supra) made quite visible that the petition under Article 199 is not maintainable in relation to any matter connected with the terms and conditions of service and in respect whereof the Service Tribunal has exclusive jurisdiction, even it was held that the High Court before taking any decision regarding the admission of constitutional petition and or passing order granting interim relief will first decide the question of its jurisdiction in view of Article 212 of the Constitution . .......... The apex court has further held that the orders, even if mala fide, ultra vires or coram non judice, fell within the ambit of Service Tribunal and jurisdiction of Civil Courts including High Court is ipso facto ousted as result of bar contained under Article 212 of the Constitution . Recently , the Hon'ble Supreme Court has passed the similar order on 3-1-2014 in Civil Petition No.345-K of 2013. The crux of the order is that while exercising jurisdiction by this court under C.P.C. or even in the Constitutional petition, the provision of Article 212 of the Constitution cannot be overlooked which bars the jurisdiction."
27. The Hon'ble Supreme Court, rather than opining on the merits of the cases dealing with terms and conditions of a Civil Servant itself, has disapproved the practice of any decision making on merits by the High Courts without first passing a judicial order pertaining to availability of jurisdiction. What is noteworthy is that the Hon'ble Supreme Court, in such cases has not decided the question of jurisdiction but has remanded the cases back to the respective High Courts for the obvious reason that in such cases a two-fold threshold i.e. of jurisdiction under Article 199 being subject to the Constitution and Article 212 beginning with a non-obstante clause, has to be crossed . Hence, before proceeding any further , the crucial question pertaining to jurisdiction has to be decided. The answer to this question will determine if the bar imposed by Article 212 is triggered divesting this Court of the requisite jurisdiction to settle and adjudicate the controversy .
28. It may also be noted that Article 199 is subject to the Constitution while Article 212 of the Constitution begins with a non obstante clause, and therefore prevails over Article 199 of the Constitution. For the purpose of Article 199, Article 212 is the Constitution! Also, while most of the other ouster clauses contained in the Constitution of Islamic Republic of Pakistan, 1973 have been judicially pierced and read down with the recent most example being that of Article 211 of the Constitution in the case of "Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v.
President of Pakistan through Secretary and others" (PLD 2010 SC 61), the ouster contemplated by Article 212 of the Constitution has ordinarily never been read down by the Superior Judiciary so as to allow civil servants to have recourse to Constitutional jurisdiction in the matter of terms and conditions of their service. Stray incidents may have occurred such as the one reported as "Azhar Ahmad Khan and 8 others v. Chief Secretary Government of the Punjab, Lahore and 12 others" (2010 PLC (C.S.) 374) but the Hon'ble Supreme Court of Pakistan has never approved such a course of action and a perusal of the judgme nt reported as "Ali Azhar Khan Baloch and others v. Province of Sindh and others" (2015 SCMR 456), clearly reveals that the attempt by the Sind High Court to adjudicate matters involving terms and conditions of service of a civil servant was deprecated and not approved by the Hon'ble Supreme Court of Pakistan. In this case, the Sindh High Court entertained Constitutional petitions as also civil suits rooted in terms and conditions of a civil servant and Hon'ble Supreme Court of Pakistan conspicuously disapproved such an exercise.
29. Article 212 of the Constitution being a non obstante article prevails over Article 199 since no Court has jurisdiction to exercise judicial power to grant an injunction or make any order or entertain any proceedings in respect of any matter to which the jurisd iction of such Tribunal extends. It is, therefore, that this Court has no jurisdiction to even entertain a matter that stands barred under Article 212 of the Constitution. In fact, the remedy afforded by Article 199 cannot be triggered owing to this jurisdictional bar. The words 'jurisdiction to entertain' clearly mean that since there is no jurisdiction to even entertain no question of exercise of the consequent judicial power arises.
30. Article 212 of the Constitution beginning with a non obstante clause expressly bars all Courts including a High Court to entertain or take cognizance of matters that eminently fall within the jurisdiction of the Administrative Tribunal. The above principles have been very lucidly explained in judgment s reported as "Abdul Bari v.
Government of Pakistan and 2 others" (PLD 1981 Karachi 290) and "Mian Amanul Mulk v. N.W.F.P. through Chief Secretary" (PLD 1981 Peshawar 1). Moreover , in "Muhammad Aslam Bajwa v. Federation of Pakistan"
(PLD 1974 Lahore 545), it has been observed that exclusionary provisions of Article 212 take within their sweep all preceding provisions of the Constitution and which include Article 199 of the Constitution. In fact, the non obstante clause in Article 212 indicates clearly that its provisions are not subject to or condi tioned upon those of Article 199 of the Constitution. The intention of the legislature in granting primacy to Article 212 is manifest.
31. In this view of the matter , it is clear that there is hardly any way that the impre gnable ouster contemplated by Article 212 can be penetrated. The grounds that often find favour with the High Court and compel it to assume jurisdiction and exercise judicial power even in the face of a categorical ouster clause are not embraced when taken in the context of the ouster contemplated by Article 212 of the Constit ution. The twin reasons of a constitutional ouster and the availability of a Court like forum are the dominant considerations for the development of such jurisprudence and, therefore, to this day, the law laid down in the nascent days of the introduction of Article 212 i.e. "Abdul Bari v. Government of Pakistan and 2 others" (PLD 1981 Karachi 290) and "Mian Amanul Mulk v. N.W.F.P. through Chief Secretary" (PLD 1981 Peshawar 1) still holds the field and is followed without any question.
Jurisdiction of Punjab Service Tribunal: (regarding person & subject matter) a. Jurisdiction regarding person (the Petitioners):
32. Although the definition of a civil servant in the Act, 1974 in Section 2(b) seems limited to "...a person who is a member of a civil service of the Province or who holds a civil post in connection with the affairs of the Province...", the definition of a Civil Servant, relevant to ascertain the jurisdiction of Punjab Service Tribunal is provided in Punjab Service Tribunals Act, 1974 ("PST Act, 1974") as: "2: (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 affairs of the Province ......."
Similar phrase ".....terms and conditions of persons who are or have been in service....." has been used in Article 212 (above).
33. In "Inspector Muhammad Abbas v. Inspector General of Police, Islamabad and 2 others" (2020 PLC(C.S.) 964), it has been held as follows: "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 meaning of Article 212 of the Constitution it provides words persons who are or 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 Article 212 of the Constitution and Service Tribunals 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 , therefore, are 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 before the Service Tribunals. In the light of said explanation/construction, there is no force in the argument that retired civil servant is not the subject of Service Tribunal for redressal of his grievance for the purpose of terms and conditions of his service.
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 of this Court to entertain and adjudicate upon any matter in which terms and conditions of service of an employee are involved. Only jurisdiction is of the relevant Service Tribunal, created/established under Article 212 of the Constitution. Matter of date of birth is related to the terms and conditions of service as contained in Rule 12A of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. Be that as it may, the case of the petitioner may be on sound footings but as this Court lacks jurisdiction due to bar contained in Article 212 of the Constitution, could not adjudicate upon the matter ."
34. In "Muhammad Younis v . Abbas Raza and 6 others" ( 2005 PLC (C.S.) 833 ), it has been held as follows: "5 The petitioner as mentioned above even after retirement, remained civil servant and he has to avail alternative remedy before the Service T ribunal
35. In "Abdul Aziz Virk v. Special Secretary , Education (Schools), Government of the Punjab, Lahore and 7 others" (2001 PLC(C.S.) 661) , it has been held as follows: "4....... It is pertinent to mention that pens ion is part and parcel of terms and conditions as is evident from section 18 of the Punjab Civil Servants Act, 1974. The petitioner has alternate remedy before the Service Tribunal as is evident from section 2(b) of the Punjab Service Tribunals Act, 1974. The Legislature has, specifically menti oned the words 'has been which include the person who has been retired from the service who is well within his right to agitate the matter before the Service T ribunal."
36. The case of the petitioner is that he already stands retired from the Service of the Government of the Punjab in terms of order dated 21.07.2020 and hence, the law applicable on 21.07.2020 should be applied to his case and not the law which is in force at the time of his actual retirement i.e 31.07.2021. In other words that matter of his entitlement for voluntary retirement, having already been taken up and decided in his favour prior to 03.05.2021 (date of amendment in Section 12 of the Act, 1974) is a past and closed transaction and any subsequent amendment cannot affect an already accrued and vested right. The petitioners in connected petitions echo this argument.
37. The question which requires adjudication by this Court is what should be the date on which his right of voluntary retirement and in turn grant of retiring pension matured and that date would then determine the law applicable to the case of the petitioner . Does this Court have jurisdiction to do so?
38. The stance of the petitioner is that his right matured and was endorsed on 21.07.2020, hence, he already stands retired and if the view of respondent No.6 disallowing such retirement is accepted, he would be deemed to be still in service of the Government of the Punjab. In either case, therefore, jurisdiction (in service or retired civil servant) of the Punjab Service T ribunal is attracted. b. Jurisdiction regarding subject matter (terms and condition of service):
39. The subject matter jurisdiction of Punjab Service Tribunal is provided in Section 4 of Punjab Service Tribunals Act, 1974: "4. Appeal to Tribunals.- (1) Any civil servant aggrieved by any final order , whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is latter prefer an appeal to the T ribunal-"
40. Furthermore, the subject of retirement of a Civil Servant falls in Chapter II of the Act, 1974 which is titled as "Terms and Conditions of Service of Civil Servants." Section 12 falls in Chapter II of the Act, 1974 and hence, the ascertainment of date upon which the Petitioner's right to avail voluntary retirement matured and, was therefore, immune from being affected by any subsequent amendment in law, falls within his terms and conditions and can solely be determined by the Punjab Service Tribunal. The case of Ali Azhar Baloch (2015 SCMR 456) is relied upon with advantage.
41. Similarly , grant of pension and pensionary benefits also form part of terms and conditions of a Civil Servant and the same are governed under Section 18 of the Act, 1974, which again is a part of Chapter-II of the Act, 1974: "18. Pension and gratuity .- (1) On retirement from service, a civil servant shall be entitled to receive such pension or gratuity as may be prescribed."
42. Hence, both, determination of the date of accrued right of retirement and the Petitioner 's right to avail pension, forming part of terms and conditions of his service under the Act, 1974 are to be adjudicated by the Punjab Service Tribunal since Section 2(a) read with Section 4 of Punjab Service Tribunals Act, 1974 and of course Article 212 confers exclusive jurisdiction on the said Tribunal to decide both interlinked controversies.
43. In "Federation of Pakistan through Establishment Division v. Brig. (Rtd.) Zulfiqar Ahmad Khan and others" ( 2007 SCMR 1313 ), it has been held as follows: "4. By looking at the very grievance of the respondent, as it has been agitated before the High Court and also before Wafaqi Ombudsman was with regard to the award and non-award of pensionary benefits depending on the conditions as to whether he has completed tenure of 10 years in the civil service which is purely relatable to the terms and conditions of service. By no stretch of imagination, this case could be brought out of the ambit of the terms and conditions of civil servant and in such view of the matter bar contained under Article 212 of the Constitution attracts and the High Court has wrongly assumed the jurisdiction despite the constitutional bar while accepting writ petition of the respondent...
44. In "Secretary , Government of Sindh v. Abdul Rahim and another" (1998 PLC(C. S.) 415), it has been held as follows: "Admittedly , the relief sought was to avoid retirement on 11th August, 1995 . To be retired from service is one such term and condition of service which falls within the exclusive jurisdiction of Services Tribunal.
Article 212 of the Constitution bars jurisdiction of any other Court or Tribunal in relation to the terms and conditions of the service which would also include the jurisdiction of Civil Court which is conferred on Civil Court under section 9 of the Code of Civil Procedure. This is the consistent view of Honourable Supreme Court and all High Courts. The jurisdiction of Civil Court to entertain and grant relief in such suits was barred by law. For this additional reason suit filed by the respondent was not maintainable and the plaint ought to have been rejected in terms of Order VII, Rule 1 1, C.P .C."
45. In "Abdul Bari v. Government of Pakistan and 2 others" (PLD 1981 Karachi 290), it has been held by a five Members Bench as follows: "The two expressions placed by us into quotes are obviously expressions of different connotation and do not seem to cover the same field. It seems to us, therefore, that the Legislature could not have excluded an order of retirement under section 13(ii) from the purview of the Service Tribunal to examine and such an order would apparently fall within the main provisions of section 4 of the Service Tribunals Act, 1973 which provides for a right of appeal by an aggrieved civil servant against any final order made by a departmental authority in respect of any of the terms and conditions of his service. We are clearly , therefore, of the view that clause (b) of the proviso to subse ction (1) of section 4 of the said Act does not contemplate an order of retirement under section 13(ii) of the Civil Servants Act, 1973. .... ...In Afzal Hussain Syed v. Govt. of Punjab a learned Single Judge of the Laho re High Court was required to consider the question of Constitutional Jurisdiction of the High Court in relation to an order of retirement simpliciter after completion of 25 years service, as in the present case, and he reiterated the view held in the aforesaid cases holding that the ouster of jurisdiction under Article 212 in such a case was absolute for the reason that such an order is not excepted from the jurisdiction of the Administrative Tribunal established under the enabling provisions of Article 212 of the Constitution.... ...In view of all the aforesaid judicial pronouncements it seems clear to us that an order of retirement in the public interest in respect of a civil servant after completion of 25 years service qualifying for pension or other retirement benefits being appealable under section 4 of the Service Tribunals Act, 1973, the jurisdiction of this Court stands ousted by virtue of the bar contained in Article 212 of the Constitution...... ......In view of the aforesaid, we are clearly of the opinion that the question of the competency of the authority which passed the order of retirement if it belon gs to the hierarchy of the officers of the Department concerned will be subject to the decision and the jurisdiction of the Service T ribunal........
46. In "Khalilur Rehman and others v. Government of Pakistan and others" (PLD 1981 Karachi 750), it has been held by a five Members Bench as follows: "5........... The plain reading of clause (2) of Article 212 leaves no manner of doubt or ambiguity that the jurisdiction of the High Court would be ousted in regard to all such matters which fall within the ambit of the authority of the Tribunal to adjudicate, even though the Tribunal may be conferred with jurisdiction limited to some of the matters relating to the terms and conditions of service. The words ".in respect of any matter to which the jurisdiction of - such Administrative Court or Tribunal extends" clearly make the ouster of jurisdiction of the High Court to correspond with the matters placed within the ambit of the Jurisdiction conferred on the Tribunal. If the intention of the makers of the Constitution was as is canvassed by Mr. Khalid Ishaque, then instead of the words referred to, the provision would have been to the effect that upon establishment of an Administrative Court or Tribunal of exclusive jurisdiction no other Court shall be competent to entertain any proceeding in respect of any matter relating to terms and conditions of service . But the words pointed out clearly provide for the degree of the ouster of jurisdiction of the Courts in direct proportion to the scope of the jurisdiction of the T ribunal.
6......Thus it is clear that section 13 spea ks of retirement from "service" of a civil servant, whereas clause (b) of section 4(1) of the Service Tribunals Act speaks of the fitness of a person to hold a particular "post ...............It seems to us, therefore, that the Legislature could not have excluded an order of retirement under section 13(ii) from the purview of the Service Tribunal to examine and such an orde r would apparently fall within the main provisions of section 4 of the Service Tribunals Act, 1973, which provides for a right of appeal by an aggrieved civil servant against any final order made by a departmental authority in respect of any of the terms and, conditions of his service. We are clearly , therefore, of the view that clause (b) of the proviso to subsection (1) of section 4 of the said Act does not contemplate an order of retire ment under section 13(ii) of the Civil Servants Act, 1973. Such an. interpretation is in accord with the well-established principles of interpretation of statutes which lay down that a proviso has to be strictly construed and a remedial provision of an enactment to be construed so as to advance the remedy and suppress the mischief that was intended to be suppressed by the provision. There is no reason for holding that whereas all other orders in respect of any of the terms and conditions of service were made appealable, an order retiring a civil servant before he completes 60 years of his age should be excluded from the purview of appeal.
7... In view of all the aforesaid judicial pronouncements it seems clear to us that an order of retirement in he public interest in respect of a civil servant after completion of 25 years service qualifying for pension or other retirement benefits being appealable under section 4 of the Service Tribunals Act, 1973, the jurisdiction of this Court stands ousted by virtue of the bar contained in Article 212 of the Constitution."
47. In "Afzal Hussain Syed v. Government of Punjab and another" (PLD 1980 Lahore 697), it has been held as follows: "25. I am, therefore, of the view that the competent authority could act with jurisdiction to order retirement at any time after a civil servant has completed 25 years of service, qualifying him for pension or other retirement benefits. The bar in Article 212 of the Constitution is thus attracted to this case and so no relief under Article 199 of the Constitution can be dispensed to the petitioner . These petitions are accordingly dismissed with no order as to costs."
48. In "Agricultural Development Bank of Pakistan and another v. Imtiaz Ahmed Gill" (1999 SCMR 650): A Civil servant opted for his voluntary retirement under Golden Handshake Scheme and got partial financial benefits in cash. The Chairman of the Bank, allowe d the civil servant to withdraw his option, but the Competent Authority did not allow him to withdraw the said irrevocable option. "6. We tend to agree with the contentio ns of Hafiz S.A. Rehman, learned Senior Advocate Supreme Court representing the Bank, that the withdrawal of the option was in essence an order of recall of voluntary retirement order of the respondent which did not fall within the Constitutional domain of the High Court.
The objection raised by the learned counsel for the respondent that it did not fall within the terms and conditions of the service appear to be a mere technicality . Substantially the order of withdrawal of option and consequential reinstatement of the respondent was one of the terms and conditions of the service and obviously the dispute about such matters would fall within the exclusive jurisdiction of the appropriate Service Tribunal.
In consequence, the jurisdiction of the High Court was barred in such matters under Article 212(2) of the Constitution of Islamic Republic of Pakistan (1973)
At the time, the Federal Service Tribunals Act contained the erstwhile Section 2-A!
49. In "Muhammad Shafeeq v. Government of the Punjab, Lahore, Finance Department through Secretary and 2 others" (1998 PLC(C.S.) 1225) the petitioner contended that his pension must be calculated as per the revised pay scale fixed by a circular issued after his date of retirement.
"6. The matter of pension is essentially a matter relating to the terms and conditions of a civil servant and the Constitutional jurisdiction of the High Court under Article 199 is barred under Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973,..."
50. In "Mst. Khalida Bari v. Government of Punjab and others" (1999 PLC(C.S.) 51), it has been held as follows: "7. The re-employment of a civil servant after his retirement is mentioned in Chapter II in section 13 of the Punjab Civil Servants Act, 1974. Chapter II relates to the terms and conditions of service. Hence, the Service Tribunal has the exclusive jurisdiction in such a matter . Therefore the objection as to jurisdiction is legally sound and factually correct.
ALL EXECUTIVE ACTS INCLUDING EVEN RULES AND NOTIFICA TIONS AFFECTING TERMS AND CONDITIONS OF A CIVIL SER VANT ARE T O BE ADJUDICA TED BY SER VICE TRIBUNALS
51. In "Khalil ur Rehman and others v. Government of Pakistan and others" (PLD 1981 Karachi 750) (above) the Sindh High Court deliberated that the words "in respect of matters relating to terms and conditions...." used in Article 212 have an expansive effect and hence, all matters arising out of or connected to the terms and conditions would fall within the ambit of the Service Tribunal to the exclusion of any Court including Hon'ble High Courts.
".......Such being the scope of the powers of the Service Tribunal we have no manner of doubt that all the grounds of attack urged before the Tribunal including the grounds of mala fide, ultra vires and coram non judice are within the jurisdiction of the Service Tribunal to determine and therefore, it follows that the High Court will have no jurisdiction to grant relief on these grounds in respect of orders appealable beforethe Service T ribunal "
This interpretation was later endorsed by the Hon'ble Supreme Court in various cases and it was settled that every form of executive order or act affecting terms and conditions of a civil servant shall fall within the exclusive jurisdiction of the Service Tribunal for the purpose of adjudication.
52. In "I.A. Sherwani and others v. Government of Pakistan through Secretary , Finance Division, Islamabad and others" ( 1991 SCMR 1041 ), it has been held as follows: "8. It has been urged by the learned Attorney -General that since pension is a term of service in view of section 19 of the Civil Servants Act, 1973, which provides that on retirement from service, a civil servant shall be entitled to receive such pension or gratuity as may be prescribed, the remedy , if any, of the petitioners was to file an appeal before the Service Tribunal and not a Constitution Petition directly under clause (3) of Article 184 of the Constitution, particularly keeping in view that above Article 212 contains non obstante clause. On the other hand, Mr. Samdani, learned Advocate Supreme Court appearing for the petitioners, has urged, firstly , that the petitioners are not aggrieved by any order passed in terms of subsection (1) of section 4 of the Act as the relevant enactments/notifications cannot be treated as an order , either original or appellate, made by a departmental authority and, secondly , that the petitioners' case is founded solely on the ground of discriminatory treatment in violation of Article 25 of the Constitution.
9. From the above-quoted Article 212 of the Constitution and section 4 of the Act, it is evident that the jurisdiction of the Courts is excluded only in respect of the cases in which the Service Tribunal under subsection (1) of section 4 has the jurisdiction. It must, therefore, follow that if the Service Tribunal does not have jurisdiction to adjudicate upon a particular type of grievance, the jurisdiction of the Courts remains intact. It may again be pointed out that the Service Tribunal has jurisdiction against a final order , whether original or appellate, made by a departmental authority in respect of any terms and conditions of service. The question, therefore, arises, whether the relevant enactments/notifications containing the provision for payment of enhanced pension, which have been denied to the pensioners, can be treated as a final order , original or appellate, passed by a departmental authority in respect of any terms and conditions of service . Messrs Aziz A. Munshi and Ch. Ejaz Ahmed, have referred to the following cases in support of their above contention:--
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, falls within the compass of clause (3) of Article 184 of the Constitution. However , we may clarify that a civil servant cannot by-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."
53. In "Peer Muhammad v. Government of Balochistan through Chief Secretary and others" (2007 SCMR 54), it has been held as follows: "4.......W e have also adverted to the question of mala fides which according to the learned Advocate Supreme Court could have been dilated upon in Constitutional jurisdiction which is not correct because the provisions as contained in Article 212 of the Constitution of Islamic Republic of Pakistan ousts jurisdiction of all other Courts and orders of the departmental authority even though without jurisdiction or mala fide can be challenged only before the Service Tribunal and jurisdiction of Civil Court including High Court is specifically ousted. The plea of mala fide does not confer upon High Court jurisdiction to act in the matter in view of the Constitutional ouster as contained in Article 212 of the Constitution of Islamic Republic of Pakistan and learned Service Tribunal has full jurisdiction to interfere in such-like matters..."
54. In "Iqan Ahmed Khurram v. Government of Pakistan and others" (PLD 1980 SC 153), it has been held as follows: "......As to the ground concerning the non-maintainability of the petition, the High Court has held, and it is also the case of the petitioner , that the effect of the Rules is that it has altered the terms and conditions of service.
This being so, the bar of Article 212 of the Constitution would be applicable with full force as in that exercise the question of vires of the Rules vis-a-vis section 25 of the Act would necessarily be considered.
In this behalf the High Court has relied on the statement of law enunciated in Muhammad Hashim Khan and others v. Province of Baluchistan and others (3) and Fazal Elahi Ejaz and others v. Government of the Punjab and others with which I agree.
55. In "Government of the Punjab and others v. Muhammad Zafar Bhatti and other s" (PLD 2004 SC 317), it has been held as follows: "5. It has been held in the case of Iqan Ahmad Khurram (supra) that, if an objection is raised qua the validity of amendment in the rules by a civil servant on the ground that the same had adversely affected his right in the service as to promotion, jurisdiction of the High Court was barred by virtue of Article 212 of the Constitution. The civil servant should approach the Service Tribunal for redressal of his grievance, which was vested with the jurisdiction not only to go into the question of validity or vires of the rules qua right of such a civil servant but also the question of mala fides, if raised in the appeal. This view has been affirmed latter by this Court in the judgment in case of Khalid Mahmood Wattoo v. Government of Punjab (supra). It appears that the law declared by this Court in the above cited reported judgments was not brought to the notice of learned Judge of the High Court, who decided the Constitutional petition wherein reliance was placed on the judgment of the High Court."
56. In "Hafiz Muhammad Ilyas and 6 others v. Government of Khyber Pakhtunkhwa through Chief Secretary and 3 others" (2018 PLC (CS) Note 40), it has been held as follows: "12. In essence, the principle laid down by the august Supreme Court of Pakistan with regard to jurisdiction of this Court and the service tribunal is that the service tribunals are fully competent to entertain and decide cases wherein vires of the service rules or notification are challenged on the touchstone of being violative of the fundamental rights of the civil servants and to direct the authority for framing such rules beneficial to the prospect of the promotion of civil servants.
57. From the above judgments and statutory provisions, it is clear that:-
(i) Matters relating to retirement and pensionary benefits, falling in Chapter II of the Act, 1974 form a part of terms and conditions of Civil Servants.
(ii) Such matters, in terms of Section 4 of Punjab Service Tribunals Act, 1974 can be and rather should be agitated before Punjab Service Tribunal which has exclusive jurisdiction to entertain claims and controversies regarding retirement and pension.
(iii) Since the jurisdiction of the Punjab Service Tribunal is attracted, ouster contained in Article 212 of the Constitution automatically springs into operation, barring this Court from assuming jurisdiction in matters relating to retirement and pension of any serving or retired Civil Servant.
(iv) Even otherwise, in terms of the law laid down in the case of `I.A. Sharwani and others v. Government of Pakistan through Secretary , Finance Division, Islamabad and others" (1991 SCMR 1041 ) and `Iqan Ahmad Khurram v. Government of Pakistan" (PLD 1980 SC 153) the jurisdiction of the Administrative Tribunal constituted under Article 212 of the Constitution cannot be bypassed by adding a ground based on discrimination or violation of fundamental rights.
58. At the fag end of the hearing, Rana Asif Saeed, learned counsel for the petitioner brought a judgment passed by this Court in W.P. No.17603 of 2021 (Muhammad Faheem Zafar v. Government of Punjab) whereby identical notifications and orders as are under challenge before this Bench were set aside. However , and of the essence, the question of jurisdiction was neither alluded to or considered nor adjudicated in the said judgment since it was perhaps not agitated. Also, this Bench is not opining on the merits of the matte r and has confined itself to the question of jurisdiction!
59. These petitions are, therefore, dismissed on account of want of jurisdiction.