' This judgment will dispose of Writ Petitions Nos.7744 and 7528 of 2000 as common questions of fact and law are involved therein.
2. The petitioners in both the writ petitions noted above primarily seek direction in the nature of mandamus thereby directing the Government of Punjab as also the Accountant-General Punjab, Lahore, to grant four advance increments to the petitioners for improving their qualifications during service with the further prayer that an entry to that effect be made in their respective service books in consonance with the judgment of the Honourable Supreme Court of Pakistan as also this Court with the ancillary prayer that respondents should also be proceeded against for committing contempt of this Court and the petitioners be paid compensatory costs for being driven to unnecessary litigation.
3. The relevant facts are that the petitioners are Private Secretaries in the Lahore High Court, Lahore, who were not so inducted in the High Court service for they were either employed as Junior Clerks or Stenotypists or Stenographers or Judgment Writer/Personal Assistants, but with the passage of time they earned promotions and are presently holding the posts of Private Secretaries in the Lahore High Court Establishment. The Government of Punjab Finance Department vide their Memorandum No,FD.PC-2-1/87, dated 27th July, 1987 promulgated policy, whereby advance increments were granted to the officials possessing/acquiring higher educational qualification. The advance increments were allowed to the officials in BS-1 to BS-15 for possessing or acquiring higher educational qualification (at least second division) over and above the minimum qualification prescribed in the relevant rules for recruitment to the posts held by them. The condition as to acqusition of higher qualification in second division was, however, withdrawn vide Notification, dated Ist August, 1991. As pointed out earlier, the petitioners were either employed in the High Court Establishment as Junior Clerks or J.W./P.As. And the prescribed qualification for the posts was only Matric for employees of High Court as governed by the High Court Establishment (Appointment and Condition of Service) Rules. Rule 14 of the said Rules prescribes a competitive test for recruitment for the post of judgment Writer/Personal Assistant and no qualification as such has been prescribed. It is submitted that in view of the above said Notifications, the petitioners applied for grant of four advance increments for they had acquired higher qualification during service and vide Notifications Nos.346- Gaz.1/V.Z.2(a) dated 10-6-1999 and 2034-Gaz. 1/V.Z.2(a) dated 11-2-1999 the Honourable Chief Justice was pleased to allow four advance increments to the petitioners for having acquired higher academic qualification. The advance increments were allowed w,e,f, 1-7- 1987 and 1-6-1991. Accordingly the entries were recorded in the service book of petitioner No,1 in Writ Petition No,7528 of 2000 and same were conveyed to the office of the Accountant-General, Punjab.
Strangely enough the Accountant General Punjab did not comply with the order of the Honourable Chief Justice and preferred to obtain opinion of the Section Officer, Government of Punjab, Finance Department, Lahore, whereafter the matter was lost in the archives of the office of the Finance Department and despite various reminders in this regard the petitioner could not elicit any response. It was then that the registrar of this Court spoke on the subject and wtote a detailed letter to respondent No,2 apprising him of the factual and legal aspects of the matter, but true to his metal the Accountant-General, Punjab did not respond and considering long silence on the part of respondent NO.2 as refusal, the petitioners have approached this Court. They very strongly relied on Abdur Rauf Khan v. Government of N.-W.F.P. Through Chief Secretary and 3 others (PLD 1991 SC 236), Muhammad Yaqub Butt, Additional Registrar, Lahore High Court v. Government of the Punjab through Chief -Secretary and another (PLD 1992 Lahore 527) and Muhammad Akram Bhatti and others v. Government of Punjab and others (1997 PLC (C.S.) 936) as also two unreported judgments rendered in Writ Petitions Nos.17490 of 1993 and 5803 of 1999 and above all the consent given by the then Accountant-General Punjab as also Secretary to Government of Punjab, Finance Department, as to the grant of advance increments to the employees of the High Court Establishment in Writ Petition No,13238 of 1997.
4. In the report and parawise comments an objection has been taken that since the matter pertains to the terms and conditions of civil servants, therefore, the jurisdiction of this Court is ousted under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. It was then submitted that as per Service Rules of Punjab Government, prescribed Qualification for the post of Senior Scale Stenographer/P.A. Being graduate, the petitioners could not be allowed advance increments on achieving higher qualification, however, Senior Scale Stenographers/P.As. Were granted advance increments for possessing and acquiring higher qualification than the basic qualification prescribed for the post i,e, B.A. Subject to the condition that the said officers had not availed the benefit of the advance increments for achieving higher qualification in their lower scale posts. The report submitted in that regard may be reproduced in extenso to understand the reasoning of the Finance Department, which is as follows:-- "The prescribed qualification for the post of Senior Scale Stenographer /P.A. As per Service Rules of Punjab Government at Annexure-A is B.A. They were not allowed advance increments on ' B.A. Being prescribed qualification for them. However, in pursuance of Judgments of Punjab Services Tribunal and Lahore High Court, Lahore, Senior Scale Stenographers/P.As. (BS-15) promoted amongst the Stenographers (BS-12) were granted advance increments for the qualification they possessed or acquired over and above the qualification prescribed in the relevant recruitment rules in vogue on 1-7-1987 for the post on which they were initially appointed subject to the condition that such officials have not availed the benefit of advance increments for these higher qualifications in their lower post/scale as per Annexure-B.
' M/s, Abdul Qayyum, Mushtaq Ahmed-II, Muhammad Hanif, Muhammad Asghar and Irshad Munawar were appointed as Judgment Writer/Personal Assistant (BS-15) on 28-7-1983, 8-3-1982, 28-5-1983, 7-11-1985 and 1982 respectively and promoted as Private Secretary en 28-9-1991, 28-9- 1991, 31-8-1992 and 31-8-1992 respectively. They were direct appointees rather than promotees.
Lahore High Court adopted the Service Rules of Punjab Government dated 5-12-1986 at Annexure- A vide Annexure-C wherein the Prescribed qualification for Stenographer (BS-12) is F.A. And for Senior Scale. Stenographer/P.A. Is B.A. Advance increments were granted since 1-7-1987 whereas Lahore High Court adopted Service Rules of Punjab Government since 5-12-1986. It means that service rules in vogue on 1-7-1987 in Lahore High Court were that of Punjab Government as per Annexure-A."
' It is obvious from the above that the pith and substance of the reasoning of the respondent is to the extent that the prescribed qualification for the post of Stenographer being F.A. And for Senior Scale Stenographer being B.A. As enumerated in the circular dated 1-1-2000 by the Government of the Punjab, therefore, they are not entitled to any advance increment for as a matter of fact they have not achieved any higher qualification during the service. In nutshell it is submitted that the prescribed qualification for the petitioners being B.A. And they have not possessed or acquired any higher qualification, therefore, they are not entitled to the benefits under the notifications afore- refered. The said theme is laid throughout in the parwarise comments submitted in that regard.
5. In the parawise comments filed on behalf of the Accountant-General Punjab, it was submitted:-- "The minimum Qualification for the recruitment of Senior Scale Stenographer/P.A. Was enhanced to graduation from any recognised University by Government of the Punjab, SGA&IDS, vide Notification No,SOR-III-1-21/85, dated 24-12-1985 (copy enclosed) which was also adopted by the Lahore High Court, Lahore. The concept of advance increments due to higher qualification was introduced w,e,f, 1-7-1987, and Government of the Punjab, Finance Department, further clarified vide his Notification No,TD/PR-2-18/ 94(Pt-I), dated 1-1-2000 that advance increments for higher qualification are admissible in accordance with recruitment rules in vogue on 1-7-1987. The minimum qualification for recruitment of P.A./Senior Scale Stenographer was graduation on 1-7-1987, hence petitioner is neither entitled to advance increments of lower qualification i,e, F.A. Nor for equivalent qualification i,e, B, A. The action of the respondent is, therefore, in accordance with the instructions issued by the Finance Department who is rule making authority in financial matters and respondent's job is only to implement them. If the petitioner had any grievance about these instructions he should have approached the Finance Department, Government of the Punjab for their redressal but petitioner filed petition against the respondent (A.-G. Punjab) without making the Finance Secretary a party.
It is, therefore, requested that Finance Secretary, Government of the Punjab may be made party to clarify his viewpoint about the letters referred to above."
' Needless to add that the total parawise comments revolved around the theme as incorporated in para. 5 of the comments afore-noted.
6. The petitioner in Writ Petition No,7744 of 2000 has also submitted rejoinder, wherein it is vociferously submitted that the petitioners are not civil servants, therefore, the rules are inapplicable to the Members of the Establishment of the High Court or officers and servants of this Court and are governed and regulated by their own rules. It was submitted in that regard that the terms and conditions of service of employees of the High Court are to be determined by the Honourable Chief Justice.
7. The learned A.A.-G. Has raised a preliminary objection that since the matter in issue pertaining to the terms and conditions of services of various employees of the High Court, therefore, the remedy of the petitioners lies before the appropriate Service Tribunal established under the mandate of Constitution of Islamic Republic of Pakistan, 1973, as the jurisdiction of this Court is ousted under Article 212 (ibid) to entertain and determine such an issue. This usual objection is raised in complete oblivion of the fact that the employees of the High Court Establishment are neither civil servants nor their terms and conditions are justiciable before the Service Tribunal. If any authority is needed, reference may be made to Muhammad Yaqub Butt, Additional Registrar, Lahore High Court v. Government of the Punjab through Chief Secretary and another (PLD 1992 Lahore 527), wherein it is observed thus:- "The officers and servants of the High Court cannot be equated with the civil servants, otherwise employed by the Government. While construing this provision, the mandate of Article 175 of the Constitution of the Islamic Republic of Pakistan, 1973 and the command in the Objective Resolution which is now a substantive part of the Constitution, regarding independence of judiciary, must be kept in mind."
' It is thus, clear that the terms and conditions of the employees of this Court are to be governed by the High Court Establishment (Appointment and Conditions of Service) Rules, 1974, wherein it is ordained that the Honourable Chief Justice of the High Court is the ultimate authority to determine and regulate the terms and conditions of the employees of the Establishent of High Court.
8. The main 'question being mooted has been brought to this Court even at an earlier point of time in Writ Petition No,13238 of 1997 wherein both the Accountant-General, Punjab as also the Secretary Finance, Government of the Punjab, appeared and stated that they have no objection to the grant of advance increments to the employees of the High Court, who were possessed of LL.B degrees or had acquired the same during the course of their employment. In view of the aforesaid statement made by the officers at the apex of their respective departments, the writ petition afore-noted was disposed of as fructified. Needless to add that still at an earlier point of time the matter was brought to this Court in the case Muhammad Akram Bhatti and others v. Government of Punjab and others (1997 PLC (C.S.) 936) when my learned brother Ihsan-ul-Haq Chaudhry, J, (as he then was) had shown remorse on the adment attitude of the Accountant-General Punjab as also the Secretary Finance for not granting the advance increments even in spite of the fact that the Hon'ble Chief Justice of this Court had passed positive order in that regard. The dictum may be quoted for future guidance of the executive authorities:- "Rule 17 of Rules of Business provides that the Law and Parliamentary Affairs be consulted by the other departments on legal questions arising out of any case and the matter of interpretation of any law etc., and the word 'law' would cover not only an Act and Ordinance but also Rules, Bye- laws, Regulations, Notifications and Circulars issued thereunder. This legal dispute having arisen respondent No,3 was under statutory obligation to refer the matter to law and Parliamentary Affairs Department and if they were still not satisfied the matter could have been agitated further as provided under this rule but they have no business or gift to interpret themselves and then stick to it. This tendency is increasing in the departments. This approach is illegal, irrational and cannot be countenanced because it 'does not help to solve the issues in accordance with law of the land but complicates the same."
' It would be needless to observe here that in the said case, the advance increments were granted to the petitioners. The powers of the Hon'ble Chief Justice of the High Court in regard to terms and conditions of the servants as also the rules governing the service of the establishment of the High Court came under discussion in the judgment in the case of Abdur Rauf Khan v. Government of N.- W.F.P. Through Chief Secretary and three others (PLD 1991 SC 236) as also Muhammad Yaqoob Butt, Additional Registrar, Lahore High Court v. Government of the Punjab through Chief Secretary and another (PLD 1992 Lahore-527) and it was finally held that the servants of the establishment of the High Court are not governed by the Punjab Civil Servants Act but by High Court Establishment (Appointment and Conditions of Service) Rules, 1974 and that the Hon'ble Chief Justice of the respective High 'Court has the absolute power to determine the terms and conditions as also the question of promotion and demotion of a High Court employee and that it needs no sanction nor it is to be approved by the Government nor the Government has anything to do with the same. The rule laid down in the case of Muhammad Yaqub Butt (noted supra) is instructive and may be reproduced hereunder:--
2. Article 208 of the Constitution of the Islamic Republic of Pakistan, 1973, which may be noted at the very outset reads as under:-- '208. Officers and servants of Courts.---The Supreme Court (and the Federal Shariat Court), with the approval of the President and a High Court, with the approval of the Governor concerned, may make rules providing for the appointment by the Court of officers and servants of the Court and for their terms and conditions of employment'
3. It is clear from the above that the officers and servants of the High Court cannot be equated with the civil servants, otherwise employed by the Government. While construing this provision, the mandate of Article 175 of the Constitution of the Islamic Republic of Pakistan, 1973 and the command in the Objectives Resolution which is now a substantive part of the Constitution, regarding independence of judiciary must be kept in mind. This aspect of the matter need not be dilated upon any further but reference may be made to a judgment of the Full Bench of the Sindh High Court in Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another (PLD 1989 Kar. 404).
4. The underlying object for provisions like i,e, Article 208 is that as far as possible the Judiciary should be free from interference in its affairs by the Executive. In. Mrs. Nusrat Elahi etc. v. Registrar, ' Lahore High Court, Lahore etc. (1991 MLD 2546) a Division Bench of this Court while construing the effect of Article 208 of the Constitution observed that:-- "The reason as to why the officers and servants of the superior Courts are to be treated differently than the Civil Servants employed by the Government is not far to see. The object in making special dispensation for the officers and servants of the Court as provided by Article 208 of the Constitution is to secure the independence of the superior Courts which is essential for the working of any democratic form of Government. The Constitution ensures that as far as possible, the High Court should remain independent and free from interference in its affairs by the Executive Authorities."
' Despite the fact that the aforesaid judgments are in the field and that every citizen is expected to abide by the law of the country as declared by the Hon'ble Supreme Court of Pakistan yet the Accountant-General, Punjab or the Secretary Finance are adamant to go by the recommendations made by the Hon'ble Chief Justice of the High Court. Needless to point out here that this adamant attitude called for comments from the High Court and the Registrar of this Court also spoke on the subject by writing a detailed letter that the employees of the High Court are not governed by the Civil Servant Rules and that the opinion of the Hon'ble Chief Justice of the High Court is final and need no approval by any authority including the Government of the Punjab.
9. As far the repeated comments by the Accountant-General, Punjab that the 4 increments could only be granted to the employees of the High Court on the basis of basic qualification and the reliance in that regard on the rules of the Government that the basic qualification for the Judgment Writer/P.A. Being graduate, the petitioners could not be said to have possessed or improved their education, suffice it to observe here that the argument suffers from an inbuilt fallacy for it is the contention of the petitioner, which is supported by the record as also rule-14 of the High Court Establishment (Appointment and. Conditions of Service) Rules, 1974, that the Judgment Writers of this Court were employed at a time when no basic qualification was prescribed. They had to undergo a competitive test thereby showing their efficiency in type writing and shorthand and on the basis thereof they were selected and excepting one of the petitioners, all the other were either Matric or F.A., when they were employed. They were not possessed of higher qualification at the relevant time while they did improve during the course of their service, hence the recommendations that they should be allowed benefit of 4 advance increments. It is also matter of record that the basic qualification being graduate was introduced much later than the original notification issued in that regard and that the increments which were granted pursuant to the original notification could not have been withdrawn for the Accountant-General, Punjab had no locus poenitentiae to retrace its steps as also to nullify the effect of recommendations made by the Hon'ble Chief Justice. Again, the change made in the notification could not be applied in the case of employees of the High Court for they are governed by entirely independent and distinct rules needing no approval or ratification. All said and done, the refusal on the part of the Accountant-General, Punjab and Secretary Finance, Government of the Punjab is absolutely uncalled for, illegal and unsustainable.
10. In result, these writ petitions are allowed. The petitioners are granted relief in terms of their prayer i,e, to say that they are entitled to 4 advance increments as recommended by the Hon'ble Chief Justice which shall be granted to them alongwith the arrears, if any, within a period of one month from today.
11. Before parting with this judgment, I may point out here that I have noted it with deep anguish that responsible functionaries of the Government of Punjab are time and again refusing the same relief while it has been granted to the employees of the High Court by laying down rule in regard thereto, therefore, copy of this judgment shall be sent to the Accountant-General,. Punjab, and Finance Department, Government of Punjab so that they should keep it on record and may not proceed to object to the orders passed by the Hon'ble Chief Justice in regard to the terms and conditions of service of the employees of the High Court.