' Muhammad Shafeeq through this Constitutional petition prayed for a direction to the respondents to award him pensionary benefit etc. According to the revised pay scales dated 18-7-1994 in view of the Notifications dated 5-2-1987 and 2-4-1987. He also prayed that the clarification by the respondents in his pension/commutation case be declared as violate of law and ineffective against his rights.
2. The brief facts of the matter are that the petitioner retired from the post of Project Manager in the Local Government, Rural Development, Punjab on 1-6-1993 (F.N.). He claimed to be entitled to the benefit of revised pay scales enforced on 1-6-1994 as provided in para. No, 9 of the Circular Letter No, FD-PC-2-2/94, dated 18-7-1994. However, he was not considered entitled to the benefit of the revised pay scales for pension purpose as his last working day was 31-5-1993. This decision was taken in view of the clarification issued by the Finance Division vide Letter No .F .4 (10)-Reg .6/94, dated 23-10-1994.
3. The learned counsel for the petitioner referred to the pension payment order and submitted that as the date of retirement of the petitioner was 1-6-1993 (F.N.), he was entitled to the pensioner benefit admissible under para. 9 of the Circular Letter dated 18-7-1994. He referred to the Letter No, 105-23/Reg.II/C/86, dated 5-2-1987 and Letter No, FD.SR.III-4- 18/87, dated 2-4-1987 to show that in similar cases where the Government servant drew leave salary up to 30-6-1987 was held entitled to the pensioner benefit admissible up to 1-7-1986. He maintained that on the same analogy the petitioner was also entitled to the benefit of the revised pay scales enforced on 1-6-1994. The learned counsel maintained that the clarification issued on 23-10-1994 was ineffective against the rights of the petitioner.
4. This petition is not maintainable in law as the matter of pension relates to terms' and conditions of a Government servant. The relevant provision in this regard is contained in section 18 of the Punjab Civil Servants Act, 1974, which is reproduced as under:-- "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.
(2) In event of death of a civil servant, whether before or 'after retirement, his family shall be entitled to receive such pension, or gratuity, or both, as may be prescribed.
(3)
(4)
5. A civil servant aggrieved by any final order etc. Made by a 0 departmental authority in respect of any of the terms and conditions of the service can file an appeal before the Service Tribunal as provided in section 4(1)(a) and (b) which is as follows:-- "4. Appeals 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 later, prefer an appeal to the Tribunal: ' Provided that---
(a) where an appeal, review or representation to a departmental authority is provided under the Civil Servants Act, 1973 (LXXI of 1973), or any rules against any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was not preferred;
(b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade;
(c) ...............................................................................................
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, which is reproduced below:-- "212.---(1) Notwithstanding anything hereinbefore contained, the appropriate Legislature may by Act (provided 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)
7. In the case of I.A. Sherwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others (1991 SCM R 1041), the apex Court in para. No,7 of the judgment held as follows:-- "It may also be pointed out that subsection (1) of section 4 of the ' Act provides right of an appeal before the Service Tribunal to a civil servant if he is aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of his terms and conditions of the service within 30 days of communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is later, subject to sub-clause (a) which provides a precondition for filing of a service appeal by providing that an aggrieved civil servant before approaching the Service Tribunal should file an appeal, review or representation as may be provided for under the relevant Rules before the departmental authority and should wait for the expiry of 90 days from the date on which such appeal, review or representation was preferred, if the same is not decided before the expiry of the above period.
Whereas sub-clauses (b) and (c) provide the cases in which no appeal shall lie to the Service Tribunal, namely, (i) against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade, and (ii) against an order or decision of a departmental authority made at any time before the 1st July, 1969. It may further be noticed that under clause (a) of subsection (2) in case of a penalty of dismissal from service, removal from service, compulsory retirement or reduction to a lower post or time-scale or to a lower stage in a time-scale, the appeal shall lie to a Tribunal referred to in subsection (3) of section 3 of the Act, and in any other case under clause (b) to a Tribunal referred to in subsection (7) of section 3 of the Act. It may also be noticed that the explanation to subsection (2) of section 4 defines the term ' departmental authority' as means an authority other than a Tribunal which is competent to make an order in respect of any of the terms and conditions of the civil servant."
' Again in para. 10 it was held:-- "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 presented by a counsel before the Enquiry Officer."
8. The Supreme Court entertained the Constitutional petition under Article 184(3) of the Constitution as the question of public importance was involved and to advance the cause of justice and for public good. No such question of public importance is involved in the instant petition, which is liable to dismissal on this short ground.
9. The petitioner did not avail the departmental remedy in the first instance before invoking the Constitutional jurisdiction of this Court. As equally efficacious and adequate remedy is provided by law through departmental representations/appeals and then by way of an appeal to the Service Tribunal, this petition under Article 199 of the Constitution is not maintainable.
10. It has been observed in the preceding para. That the writ petition is not maintainable in law, but I would like to examine it on Merits as well.
11. The contentions of the learned counsel for the petitioner are highly misconceived. A perusal of para. No,9 of the Circular letter dated 18-7-1994 shows that only those Government servants who retired on or after 1-6-1993 were allowed pension/commutation on the basis of revised pay scales.
In the instant case, the petitioner having born on 1-6-1933 in fact stood retired on attaining the superannuation age of 60 years on 31-5-1993 (A.N.). The date of retirement mentioned in the pension payment order as 1-6-1993 (F.N.) amounts to retirement on 31-5-1993 as 1-6-1993 was not a working day of the petitioner. The letters dated 5-2-1987 and 2-4-1987 are not applicable to the petitioner's case inasmuch as in those letters clarification was issued regarding the Government servant who drew leave salary up to 30-6-1986 and was considered to be retired on 1-7-1986. The petitioner, as observed above, stood retired on 31-5-1993. Obviously, he is not entitled to the benefit of revised pay scales for pension purpose. In other words, he was a pensioner on 1-6-1993 and not a civil servant, thus, not entitled to the benefit available to the civil servants who retired on 1-6-1993 or thereafter.
12In view of the above, the writ petition is dismissed in limited having no merits.