Syed Shahid Bahar, J. Through the titled petition filed under Article 44 of Azad Jammu and Kashmir Interim Constitution, 1974, following relief has been solicited by the petitioners: "It is, therefore, prayed on behalf of petitioners that this Hon'ble Court may very graciously be pleased to issue high prerogative writ in the nature of mandamus directing the non-petitioners to award/extend the benefits of three time judicial allowance, utility and transport allowances to petitioners with effect from 20.11.2010."
1. Facts of the instant petition as per petitioners are that petitioners are 1st Class State Subjects of Azad Jammu and Kashmir and presently petitioners No. 1 to 30 are performing their services in the said department in different scales. The petitioners contended that Article 47(1) of Azad Jammu and Kashmir Interim Constitution, 1974, provides for the establishment of Tribunal to exercise exclusive jurisdiction in respect of matter relating to the terms and conditions of a service of civil servants who are or have been in the service of Azad Jammu and Kashmir including disciplinary matters vis--vis providing appeal before Supreme Court against the judgment/order of Service Tribunal. Petitioners averred that in pursuance of aforesaid provision of the Constitution, the Azad Jammu and Kashmir Service Tribunal was established through an enactment of Assembly vide Act XXII of Azad Jammu and Kashmir dated 30.12.1975. Petitioners further averred that the Service Tribunal is functioning as Court even exercising the powers of Civil Court, therefore, the employees of Tribunal are entitled to get all perks and privileges including allowances, similarly admissible to employees of judicial service of High Court .and Supreme Court. They vehemently contended that three time judicial allowance, utility and transport allowance have been extended in favour of employees of Federal Service Tribunal, Sindh, Baluchistan and Gilgit Baltastan Service Tribunals, whereas, the matter regarding the extension of benefit of aforesaid allowances for the employees of Punjab Service Tribunal is pending adjudication before Supreme Court of Pakistan. Petitioners submitted that they have taken the matter before Government, craving to extend the three time judicial allowance, utility and transport allowances treating the petitioners as employees of judicial service similar to the employees of Supreme Court of Azad Jammu and Kashmir, High Court and Shariat Appellate Bench of High Court vide facsimile dated 28.02.2011, but no any step was taken by the authority, therefore, the petitioners again placed reminder vide facsimile dated 03.05.2012 but unfortunately the proceeding could not be initiated, consequently, the petitioners again moved with detailed through proper channel vide letter dated 03.07.2015, ultimately the matter was taken up with Finance Department, whereupon Finance Department turned down the - request under pretext that three time judicial allowance, utility and transport allowances have not been awarded in favour of employees of Punjab Service Tribunal, vide letter dated 26.11.2015. Thereafter, the grievance was resubmitted vide letter dated 30.10.2019 before authority referring the judgment of Supreme Court of Pakistan titled "Sheikh Riaz-ul-Haq vs. Federation of Pakistan & others" reported in PLD 2013 SC 501, wherein Hon'ble Supreme Court of Pakistan declared the Service Tribunal as Court in view of function, duties and work vis-a-vis the powers of Civil Court, further elaborated that the judicial allowance in question have already been awarded to Federal Service Tribunal, Sindh, Baluchistan, Gilgit Baltistan Service Tribunals, as such the petitioners were advised to produce the notification for the awarding of said allowance to the employees of Service Tribunal of other provinces of Pakistan. The required notifications were submitted subsequently alongwith reminder. Petitioners averred that the authority finally kept the matter in abeyance till the final adjudication of the lis of three time judicial allowance, utility and transport allowances for the employee of Punjab and KPK Service Tribunals, which is subjudice in Supreme Court of Pakistan.
They maintained that the act, omission and commission of non-petitioners with respect to non- extending the benefits of three time judicial allowance, utility and transport allowances in favour of employees of Service Tribunal Azad Jammu and Kashmir at par with the employees of Supreme Court of Azad Jammu and Kashmir as well as High Court and Shariat Appellate Bench of High Court is quite against the facts, law, statutory provision and against the pronouncement of Apex Court, therefore, a high prerogative writ is liable to be issued in favour of petitioners.
2. Written statement has been filed on behalf of Respondent No. 3/Finance Department wherein the claim of the petitioners have been negated and respondent raised preliminary objections wherein the said respondent contended that the notification of judicial allowance, utility allowance and transport allowance have become final because the same has not been challenged, thus the claimed relief is not acceptable. The employees of Service Tribunal have been taking their salaries and other privileges in accordance with law and rules, thus, their claim regarding three time judicial allowance, utility allowance and transport allowances is not acceptable because all of these allowances have been granted only for the employees of High Court as well as for Supreme Court. The powers of Service Tribunal are not equivalent to High Court as well as Supreme Court, thus, the claim of the petitioners to grant the same privileges/allowances in favour of the petitioners is not justified.
3. Written arguments on behalf of the learned counsel for the petitioner and Respondent No. 3 as well as on behalf of Senior Advocates of AJ&K Supreme Court, Raja Muhammad Hanif Khan and Abdul Rashid Abbasi, Advocates (amici curiae) have been submitted.
4. Sardar M.R Khan, the learned counsel for the petitioners in written arguments reiterated the facts and grounds narrated in the petition and contended that the request was made and matter was taken up with the respondents craving therein that three time judicial allowance, utility and transport allowances may be extended in favour of petitioners by treating them as judicial employees in view of the functions and powers of Tribunal as the Tribunal under Section 5 of Service Tribunal Act, 1975 is deemed to be Civil Court, having all the powers vested to Civil Court as to issuance of notice to witness for attendance, issuance of temporary injunction, execution and implementation of judgments and orders while exercising in appeal under Section 4 of Tribunal, the Tribunal has exclusive jurisdiction to set aside, vary or modify the order whether original or appellate passed by authority despite no any positive step has been taken for extension of benefit of allowances in question. Counsel for the petitioners vehemently contended that three time judicial allowance, utility and transport allowances have already been awarded in favour of employees of Supreme Court and High Court of Azad Jammu and Kashmir vis a vis Subordinate Court, whereas, the nature of work, functions of Service Tribunal are quite similar who perform if not more, at least equally onerous duties, thus, non-extending of the allowances in question in favour of petitioners is not rational, whatsoever giving preferential treatment to the employees who are serving similar function, as such warranted the interference of this Court. He zealously contended that the facilities of three time judicial allowances, utility and transport allowances have also been attached with the perks of worthy Chairman of Service Tribunal equally treating as Judge of High Court thus, there is no reason not to extend the benefit of said allowances in favour of petitioners who are serving as subordinate and under the control and administration of worthy Chairman, as such needing the issuance of necessary direction to authority to do the needful even from this point of view. The learned counsel has taken stance that the aforementioned allowances have also extended in favour of Federal Service Tribunal, Sindh, Baluchistan, G.B Service Tribunal as well as in favour of employees of Azad Jammu and Kashmir Supreme Court and High Court, thus, by meting out discriminatory treatment with petitioners they have been deprived from the legitimate right of said allowances, thus, indulgence of this Court is warranted. The learned counsel forcefidly contended that the Hon'ble Supreme Court of Azad Jammu and Kashmir has already held in case titled "Azad Government & others vs. Syed Zahoor Hussain Shah Constable and others" that nature of job, duties and service of the employees of Azad Jammu and Kashmir are similar to their counterparts in federating units of Pakistan, and after the enforcement of 13th amendment pecuniary powers has also vested to Azad Jammu and Kashmir Government, thus, in view of major change, the employees of Azad Jammu and Kashmir are deserved to be treated as per to the civil servants of Government of Pakistan and its provinces. The counsel for the petitioners lastly prayed for acceptance of the writ petition and issuance of direction to respondents.
5.M/s. Amir AliAwan and Mir Sajid Ashraf, Advocates/Legal Advisors Finance department while controverting the arguments of the counsel for the petitioners contended that Government approved and sanctioned 03 time judicial allowance, utility allowance and transport allowance for the employees of High Court and Supreme Court, while the employees of Service Tribunal are getting pay and privileges as per prevailing rules, so, the jurisdiction and authority of this Court as well as Hon'ble Apex Court cannot be equated with the Service Tribunal and as per job description and load of work the allowances has been approved for the employees of Higher Judiciary and Service Tribunal; the petitioners who are not performing their duties in higher judiciary, thus, they are not deserving or can claim for equal treatment. Learned legal Advisor further contended that the Azad Government has no parity with the Federal Government and Provincial Governments and Apex Court has declared the same against the spirit of the Constitution. Legal Advisor strenuously contended that even the employees of Punjab Service Tribunal are not getting 03 times judicial allowance, transport and utility allowance whereas the salary and other emoluments of the employees of Service Tribunal of AJ&K determined by the Service Tribunal Act, 1975 due to which there remains no justification for grant of 03 time judicial allowance etc. in favour of the employees of Service Tribunal of AJ&K.
6. Mr. Abdul Rashid Abbasi, Senior Advocate Supreme Court of Azad Jammu and Kashmir submitted written arguments as amicus curiae, wherein he vehemently contended that the writ petition is liable to be accepted and writ prayed for merits to be issued in favour of the petitioners through a direction to the respondents to grant the petitioners judicial allowance, utility allowance transport allowance. The erudite counsel in support of stance of the petitioners gave seven (07) detailed reasons has been mentioned in their written arguments. The learned counsel finally submitted that in view of the reasons mentioned in his written arguments, the Service Tribunal and its employees, having the same status according to Constitution and Rules of Business and performing the same nature of duties as are being performed by the employees of the High Court, are entitled to all those allowances and privileges which are admissible to the employees of the High Court w.e.f the date from which employees of High Court have been allowed the same.
7. Raja Muhammad Hanif Khan, Senior Advocate of Azad Jammu and Kashmir Supreme Court, submitted his written arguments as amicus curiae, wherein the erudite counsel contended that Service Tribunal is the constitutional functionary as the Service Tribunal Act, 1975 has been enacted on the basis of Article 49(2) of the Interim Constitution of Azad Jammu and Kashmir. The erudite counsel vehemently contended that after perusal of the relevant law as well as the Constitution, the Azad Jammu and Kashmir Service Tribunal fell into the definition of "Court" and the proceedings conducted by the Service Tribunal shall be deemed to be the "Civil Proceedings" under the provisions of Code of Civil Procedure. He zealously contended that Apex Court of Pakistan in the case of "Riaz ul Haq".[PLD 2013 SC 501] at pages 501, 532, 534, 536, 550, 551, 553 held that the Service Tribunal is vested with the judicial power under law and is a forum which determine the question of fact and law, fell into the definition of "Court". He submitted that the aforesaid judgment was followed in letter and spirit by the Hon'ble Supreme Court of Azad Jammu and Kashmir in the case of "AJK Government vs. Syed Khalid Hussain Gillani"12016 SCR 228),the relevant caption is reproduced as under: "Thus it is almost settled according to the principle of law enunciated by the apex Court of Pakistan and this Court that the institution of Service Tribunal is a judicial one which requires the manner of appointment ensuring the independence of judiciary."
The learned counsel submitted that the Azad Jammu and Kashmir Service Tribunal is a "Court" exercising functions under law and appeal against the judgment and order of the AJK Service Tribunal lies before the Hon'ble Supreme Court, therefore, the proceedings before the Supreme Court are the civil proceedings conducted under the law and the petitioners are performing functions in connections with the civil proceedings conducted before the Azad Jammu and Kashmir Service Tribunal, therefore, are exercising the same functions as the same are being exercised by the Civil Courts in Azad Jammu and Kashmir including High Court and AJK Supreme Court, therefore, are entitled to be extended the benefit of 03 time Judicial Allowance, Utility and Transport Allowances to the petitioners w.e.f. 20.11.2010. He submitted that the golden principle of law is that all persons placed in similar positions shall be dealt equally and there should be no discrimination amongst them. Reliance is placed on 1991 SCMR 1041, PLD 2010 SC 265 and 2019 SCR 697.
8. We have taken stock of the written arguments submitted on behalf of the counsel for the parties as well as amicus curiae i.e. Raja Muhammad Hanif Khan and Abdul Rashed Abbasi, Senior Advocates of AJ&K Supreme Court and gone through the record of the case with due care.
9. Through this constitutional petition, the petitioners have prayed for issuance of writ (in the nature of mandamus), directing the respondents to award/extend the benefits of three time judicial allowance, utility allowance and transport allowance w.e.f. 20.11.2010. They claimed that the said allowances are being taken by the employees of Baluchistan Service Tribunal, Sindh Service Tribunal, Gilgit Service Tribunal as well as this Court/High Court and Supreme Court of Azad Jammu and Kashmir.
10. At the outset, Azad Jammu and Kashmir Service Tribunal for all its practical purpose is a special Tribunal meant for hearing and adjudication of service matters of the civil servants of the State of Azad Jammu and Kashmir and employees of establishment of the Service Tribunal are performing their duties in aid of the quasi-Judicial tribunal. Service Tribunal is a quasi-judicial tribunal which is functioning and performing quasi-judicial work, and same is not stricto sensu akin to the judicial work (performing by the Courts of law. Service Tribunal is a fora provided by law to entertain and adjudicate the service disputes of civil servants against the administrative orders passed by the departmental authorities and while hearing the service appeals, the tribunal step into shoes of departmental authority and adjudicate the regular appeals. Keeping in view the nature of work and performance, the relevant authority may grant the special allowances in favour of employees of Service Tribunal, keeping in view over all circumstances by any stretch of imagination, if merely on the strength of nature of job which is somehow akin and similar to the judicial work, plea of judicial allowance is entertained, then the employees of the hierarchy of Revenue fora's can also come forward with the same plea, thus mere similarity of the nature of work is not a yardstick to bring employees of tribunals and Revenue fora at par with the employees of District Judiciary or Establishment of High Court.
11. Service Tribunal is creation of Article 47(a) of the Constitution and in furtherance of the same legislation introduced the Service Tribunals Act. 1975.
12. It is useful to reproduce the verbatim of Article 47(1)(a) of the Interim Constitution, 1974 as infra:
47. Administrative Courts and Tribunals.--(1) Notwithstanding anything herein before contained, the Assembly in respect of matters to which the executive authority of the Government extends,] may be 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 [Azad Jammu and Kashmir] including disciplinary matters; (b)xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (c)xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (2)xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (3)xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
13. It is very clear from the bare language of the Article 47(1)(a) that a clear line of differences has already drawn by the Constitution itself between Tribunal & Courts, thus, for all its practical purposes. Service Tribunal cannot be termed and regarded as a Court in view of Article supra.
Scope of declaration of the word "Tribunal" cannot be enlarged or impliedly substituted with the word "Court".
14. Language employed in Section 5(2) of the AJK Service Tribunals Act. qua deeming the Service Tribunal to a Civil Court for certain given purposes are to be taken for limited purposes as these statutory powers cannot controlled the command of the Constitution envisaged in article 47. 1 (a).
15. Such powers are being given by the legislature to the Tribunal or quasi-judicial fora to maintain transparency and to administer Administrative Justice at least following the general modalities and roadmap of administration of justice. Revenue fora are also equipped with such like power, hence, it cannot be assumed or said that such fora's are Courts.
16. Although rhetoric, there is a lot of difference and distinction between legislative power and constitutional power, geometric variations or enlargement of powers and jurisdiction cannot be made or for that matter assume Constitutional powers through legislative power, neither the legislative powers can be allowed to abridge or minimize or control the Constitutional powers.
Doctrine of trichotomy of power is a balancing apparatus, transgression of powers by any organ from the Trioka frustrates the balance of said apparatus, which impliedly means contempt of the will of the people.
(Underlining is ours)
17. It is also pertinent to mention here that employees of tribunal are also getting secretariat allowance as well as other allowances according to their pay and privileges. Petitioners have failed to make out a case for indulgence by this Court.
18. Be that as it may, Service Tribunal is. neither a Court nor can be equated with the High Court for any practical purposes as the Service Tribunal is functioning as an appellate Tribunal against the orders of the departmental authorities. Functioning of the Service Tribunal somehow can be termed as quasi judicial capacity, claim of equal treatment with the employees of High Court Establishment or for that matter District Judiciary is misconception. No discriminatory treatment has been meted out to the petitioners.
19. Salary and other emoluments of the employees of Service Tribunal have been determined by the Service Tribunal Act, 1975 and rules made there under. It is worth mentioning here that even the employees of Punjab Service Tribunal are not getting 03 times judicial allowance, transport and utility allowance, whereas, the salary and other emoluments of the employees of Service Tribunal of Azad Kashmir are determined by the Service Tribunal Act, 1975, thus, there is no justification to claim the aforesaid allowances.
20. Furthermore, the Chairman and Member of the Service Tribunal are appointed for the period of 03 years whereas, petitioners are the permanent employees of Service Tribunal and Government has determined the pay and other emoluments of the Chairman and Members separately, while, the petitioners cannot claim same emoluments extended to the Chairman and Members of Service Tribunal..
21. As far as the claim of the petitioners that three time judicial allowance, utility and transport allowances have been extended in favour of Federal Service Tribunal, Sindh, Baluchistan and GB Service Tribunal, and they are also entitled for the same is concerned; It is worthwhile to mention here that the Government of State of Azad Jammu and Kashmir has no parity with the Federal as well as Provincial Government of Pakistan. The Hon'ble Apex Court of Azad Jammu and Kashmir in a case titled "Azad Govt. and others vs. Sardar Muhammad Mukhtar Khan and others" reported as 2016 SCR 206 resolved the point of principle of parity with the Punjab and held as under: "The phraseology of this notification clearly speaks that principle of parity with Punjab is no more having the force of law rather whenever there are anomalies or the laws made on the subject are silent in the matters enumerated in the notification, the concern may seek guidance."
Epitome of above discussion is that Instant writ petition is meritless, thus, same stands dismissed.