This is a writ petition through which the petitioner wants to enforce a claim of two advance increments on the basis of qualifications as LL.B (Hon.).
2. Facts briefly are that petitioner is serving as Tehsildar in the Revenue Department under Azad Jammu and Kashmir Board of Revenue. He had qualified B.A. and thereafter, LL.B. (Hon.) from International University Islamabad. It is contended that the qualification for the post of Tehsildar has been prescribed through the Departmental Rules as B.A. The Pay Scale prescribed for this post is BPS.16 which he holds since the date of his appointment as such. The petitioner qualified LL.B.
(Hon.) and was awarded a degree accordingly. He applied to respondent No.2 who is competent Authority for grant of two advance increments on the basis of qualification, which, according to the petitioner was an addition to the minimum qualification required for the post of Tehsildar. The petitioner is basing his claim on a Notification issued by the Finance Department of Azad Jammu and Kashmir Government on July 30, 1997. It is stated that his claim was not accepted by the respondents and there was no other remedy available to him, as such he has invoked the writ jurisdiction of this Court.
3. In the written statement, the respondents repudiated the claim of the petitioner on the ground that he does not hold the Master's Degree, therefore, the aforesaid Notification does not apply in his case and that he was not entitled to any additional/advance increments.
4. The petitioner placed on file a number of documents with replication to show that the University Grants Commission has equated the LL.B. (Hon.) degree for the purpose of employment and also placed on record certain other documents.
5. During the arguments, the petitioner stated that the minimum qualification for the post of Tehsildar is B.A/B.Sc. degrees. He has qualified LL.B. (Hon.) and is performing many duties in the department which require legal knowledge, as such LL.B. (Hon.) degree is relevant for the activities of a Tehsildar. He has placed on file an order of Senior Member Board of Revenue whereby duties for looking after the legal matters were assigned to him. Even otherwise, he stated that a Tehsildar exercises the power of a Magistrate 2nd Class and even so the qualification is relevant to his duties while working in the field. A reference was made to the Notification, dated July 30, 1997 to indicate that post-graduate qualification like LL.B. (Hon.) entitles him to the grant of two advance increments. He bas again made reference to Departmental Service Rules applicable in Punjab as well as in Azad Kashmir. He has placed on record a note of acknowledgement by the Senior Member Board of Revenue on compilation of book whereby the laws relating to the Revenue and Rehabilitation Departments have been codified in one volume. Photostat copies of the letters from U.G.S. dated 1-8-1985, 6-4-1988 and 7-4-1990 have also been placed on record. Certain letter from International Islamic University Islamabad have been produced before the Court. It is further argued by the petitioner that University of Punjab has also made provisions for grant of two advance increments to the holders of LL.B. degrees through its statutes. An instance has been quoted from, the Pakistan Supreme Court where the Private Secretaries of the Court holding LL.B. degrees have been granted two advance increments. It is shown that Azad Jammu and Kashmir Revenue Board also granted two advance increments in favour of Muhammad Raqeeb Tehsildar who was holding M.Sc. degree. The petitioner further made reference to a decision of Peshawar High Court whereby two advance increments were allowed to Private Secretaries and Readers of the High Court holding BPS.16. It was held that minimum qualification was Matriculation. Four increments were already allowed to them for having passed F.A. and B.A. Two further increments were allowed for having qualified LL.B. This judgment of the Peshawar High Court titled "Muhammad Zareef Khan v. Government of N.--W.F.P. is reported as 1996 M LD 833. Making reference to 1997 PSC 1333, it was argued that the judgment of Peshawar High Court had been upheld by the Supreme Court of Pakistan.
6.The counsel for respondents argued that the law as well as Notification do not apply to the present case. According to him, the legal position in Azad Kashmir is somewhat different from Pakistan. It is also contended that case law is also distinguishable from the face of the instant case.
7. I have examined the Notification issued by the Government which reads as under;-- "No. FD/R/13448-13547 of 1997.
Azad Government of the State of Jammu and Kashmir Finance Department "MUZAFFARABAD"
Dated 30-7-1997.
To
1. The Additional Chief Secretary,
2. All Secretaries to the Government,
3. All Heads of Attached Departments, Azad Government of the State of Jammu and Kashmir Muzaffarabad.
Sub:- Grant of Advance Increments to the Employees Drawing in BPS--16.
Sir, I am directed to refer to the subject noted above and to state that in partial modification of this Department's Notification No. FD/R/9755-9855/91, dated 22-8-1991, the President of Azad Jammu and Kashmir has been pleased to allow the advance increments to the employees of Azad Government of the State of Jammu and Kashmir drawing Pay in BPS-16 for possessing or acquiring higher educational qualifications over and above the minimum qualification prescribed in the relevant rules for recruitment to the post held by them to the extent given below:--
(i) Where the prescribed Matric F.A./F.Sc.B.A./B.Sc.M.A./M.Sc. qualification is Matric.Nil246
(ii) Where the prescribedNilNil24 qualification is F.A./F.Sc.
(iii) Where the prescribedNilNil.Nil 2 qualification is B.A./B.Sc.
2. These increments will be allowed in accordance with the existing policy requiring fulfillment of the following conditions:--
(i) The higher qualification is in the relevant field.
(ii) The incumbent of the post (B-16) has not availed the benefit earlier, on any lower post/scale.
(iii) The qualification acquired is higher than the one prescribed in respect of the posts for direct recruitment under the service rules.
3. This order will take effect from 1-7-1996.
Yours obedient servant.
(Sd.) Iftikhar Naveed Deputy Secretary Finance (Regulation)
Ph. No. 0581-2837.
8. The contents of the aforementioned Notification prima facie show that only those persons will be entitled to the grant of two advance increments who possess M.A or M.Sc. degrees where the minimum qualification prescribed for the post is B.A/B.Sc. but practically other Masters Degrees have been also treated as equal to M.A/M.Sc. for this purpose. The letter issued by U.G.C. on 6-4- 1988 shows that LL.B. (Hon.) degree has been equatted with Masters degree for employment as a lecturer. The first letter shows that degree of LL.B (Hon.) by the U.G.C. is equatted with LL.B. degree of other Universities. It does not show that such degrees were equatted with Master Degrees. However, the letter dated 1-10-1988 shows that LL.B. (Hon.) degree was equatted with Masters Degree for the purpose of employment to the post of Superintendents (B-16) and the University granted two advance increments in favour of one Ali Akhtar Makhtoom. The Azad Jammu and Kashmir University granted four increments to Waqar Hussain Assistant (Audit) for possessing B.A and LL.B degrees. The Punjab University as per page 415 of its statutes allowed two increments in favour of the incumbents holding M.A./LL.B/M-Com/M.Ed. qualifications. The Supreme Court of Pakistan also allowed two advance increments to its Private Secretaries for possessing the qualification of LL.B which was treated as over and above the prescribed qualification for the posts held by the incumbents. The judgment of Peshawar High Court titled "Muhammad Zareef Khan v. Government of N.-W.F.P. and others (1996 M LD 833) and the judgment of the learned Supreme Court of Pakistan in the case titled "Government of N.-W.F.P. v. Muhammad Zareef Khan and others" (1997 PSC 1333) support the view that LL.B (Hon) degree is equal to the Masters Degree for the purpose of grant of two advance increments.
9.As against this, no case law or precedent has been cited by the learned counsel for the respondents. I am of this view that the case law as well as the aforementioned Notification justify the grant of two advance increments in favour of the petitioner. Even otherwise I know that the petitioner has made a valuable contribution by compilation of Revenue/Rehabilitation laws in the form of a book published by the Azad Jammu and Kashmir Board of Revenue. The petitioner, thus, deserves encouragement, I also feel that the qualification in law is relevant for the duties assigned to a Tehsildar especially when he is functioning in the field as well as during performance of the duties in the Board of Revenue. When a police inspector has been awarded five advance increments in Pakistan on the basis of this qualification then there is no legal justification to refuse the grant of two advance increments to a Tehsildar.
10. An objection as to the jurisdiction of this Court was also raised. It is not shown by the learned Counsel for the respondents that any order was passed by the respondents on any application/request of the petitioner made in this behalf before the departmental authority. In the case when no order is passed, invoking "of writ jurisdiction of this Court is the only adequate remedy available to the petitioner. The Service Tribunal cannot be issued a direction for passing an order on the application/claim of a civil servant. It is, therefore, held that the High Court has got the powers to issue the direction for enforcing such a claim in this case.
11. As upshot of the above discussion, the petition is allowed and a direction is issued to the effect that the petitioner may .be allowed two B advance increments on the basis of his LL.B. (Hons.) qualification.