1996 M L D 833

[Peshawar]

Before Qazi Hamiduddin and Mrs. Khalida Rachid, JJ

ZARIF KHAN---Petitioner

versus

GOVERNMENT OF N.-W. F. P. ---Respondent

Writ Petition No. 1118 of 1994, decided on 5th November, 1995.

(a) Constitution of Pakistan (1973)---

----Arts.199, 208 & 212---Employees of High Court, whether civil servants-Constitutional
petition---Competence---Petitioners who were serving as Private Secretary and Readers in High
Court, were not 'civil servants' as terms and conditions of service of High Court employees were
not laid down by the Parliament or the Provincial Assembly under Art.212 of the Constitution of
Pakistan (1973)---On the strength of Art.208 of Constitution of Pakistan (1973), High Court with
the approval of Governor, had made rules known as "The High Court Ministerial Establishment
(Terms of Appointment and Conditions of Service) Rules" regulating the terms and conditions of
service of persons serving in High Court whereas Service Tribunal under S.4 of Service
Tribunals Act, 1973 had exclusive jurisdiction to adjudicate on matters relating to the terms and
conditions of service of civil servants---Petitioners being not civil servants, considering their
terms and conditions of service, High Court would have jurisdiction to entertain the matters
arising there-from---If petitioners were civil servants, even then jurisdiction of Service Tribunal
was ousted as their case was of advance increments which were not guaranteed and sanctioned
by any service rules, but fell under breach of the privileges of a certain group which could not
have been conferred by Service Tribunal---Constitutional petition filed by petitioners against
their grievances was competent, in circumstances.--[Civil service].

(b) High Court Ministerial Establishment (Terms of Appointment and Conditions of Service)
Rules---

---Advance increments---Entitlement---Petitioners who were working as Private Secretary and
Readers in High Court in B.P.S. 16 though were not entitled to any advance increments on the
ground of educational up-gradation, but as their basic qualification was matric with ten years'
experience, and having already been allowed four advance increments, two on doing F.A. and
two on doing B.A. two advance increments on basis of their doing LL.B., would meet ends of
justice---Petitioners, thus, were allowed two increments on ground of passing LL.B. degree.

PLC 1986 (C.S.) 807 ref.

Abdul Samad Khan for Petitioner.

Saifur Rehman Kiyani, A.-G. (N.W.F.P,) for Respondent.

Date of hearing: 20th July, 1995.


JUDGMENT

KHALIDA RACHID, J.---The relief sought in W.P. No.204 of 1995 filed by Muhammad
Hafiz-and one other and in W. P. No. 1118 of 1994 filed by Zarif Khan under Article 199 of the
Constitution is identical, therefore, we intend to dispose of both the petitions by this common
judgment.


2. Previously all the petitioners were posted as Senior Scale Stenographers in Sessions Courts.
Currently Muhammad Hafiz is serving as Private Secretary while remaining two petitioners are
posted as Readers of this Court. While posted as Senior Scale Stenographers in the Courts of
Sessions they were awarded advance increments in light of instructions contained in Finance
Department Circular No.FD (PRC)1-1 87-VIII dated 27-7-1987, after completing F.A. and B.A.
degrees. But they were denied 5 advance increments after completion of LL.B. degrees by
respondent No.2, Secretary Finance Department, Government of N.W.F.P. through Letter No.FD
(SR.II)2-145/87 dated 15-12-1987 by giving reference to Circular Letter NO.FD(PRC)I-1 87-
VIII, dated 27-7-1987. Representation to respondent No.2 filed by Zarif Khan, petitioner (in
W.P. No-1118 of 1995) through proper channel, i.e., Registrar, Peshawar High Court, Peshawar,
was returned vide letter dated 15-12-1987. Aggrieved, petitioner Zarif Khan filed W.P. No.-2153
of 1991 in this Court which was admitted to full hearing. During the course of proceedings on
12-4-1993 the learned Advocate-General sought adjournment in order to take up the matter with
the Provincial Government for the consideration of additional increments on the basis of LL.B.
degree as additional qualification. Thus on 14-9-1993 the Writ Petition was dismissed as
withdrawn, on the understanding by the Advocate-General that Finance Department would
support the petitioner's case before the Pay and Pension Committee, 1993 if and when moved.
The petitioner accordingly submitted reference to the Pay and Pension Committee. After giving
personal hearing to the petitioner, the Finance Division in Letter No.F6(3)Imp./91-1029 dated
August 25, 1994, addressed to Finance Department, Government of N.-W.F.P., held the
petitioner to be entitled for the grant of advance increments on the rates of increments mentioned
against the Bachelor degree. Therefore, respondent No.2, Finance Department, in its Letter
No.F.D. (SR-V)2-132/93, dated 28-9-1994 expressed its inability to allow five advance
increments on the basis of LL.B. degree. Dissatisfied with the impugned letter the petitioners
have invoked the jurisdiction of this Court under Article 199 of the Constitution for the redress
of their grievance.

3. We have heard learned counsel for the petitioners as well as learned Advocate-General for the
respondents and have perused the record of the case carefully with their assistance.

The learned counsel for the petitioners at the very outset, pre-empting the objection regarding the
jurisdiction of this Court from the opposite side, submitted that the High Court employees are
not-the civil servants as the terms and conditions of their service are determined by the rules
framed by the High Court with the approval of the Governor under Article 208 of the
Constitution, therefore, it is this Court and not the Service Tribunal who has jurisdiction to hear
the petitions. He further maintained that if it is assured that the petitioners are civil servants even
then the jurisdiction vests with this Court as the petitioners' case is based on discriminatory
treatment on the ground that LL.B. degree has been considered as an additional qualification in
case of P.S.Is. but the same is not treated as such when acquired by the petitioners-Readers etc.
and hence this is against the right of equal treatment enshrined in Article 25 of the Constitution.
Arguing the case on merits the learned counsel for the petitioners submitted that LL.B. degree
has been considered as an additional qualification in the case of P.S.Is. who have been granted
five advance increments but in the case of Readers etc. petitioners the same is not being
considered to be an additional qualification. He insisted that the petitioners having acquired
LL.B. degrees are entitled to advance increments on the same pattern as awarded to P.S.Is after
completing LL.B. degree. They asserted that they have been discriminated vis-a-vis P.S.Is. who
work in the Courts subordinate to the Court where they are employed. The learned counsel
further agitated that admission of LL.B. course is possible only after the graduation in
Arts/Science etc. and that degree of LL.B. is awarded after studying for two years as required for
Master degree. He insisted that the petitioners should have been allowed advance increments as
awarded to P.S.Is.

As against this the learned Advocate-General raising the objection of maintainability of the writ
petitions, as rightly pre-empted by the learned counsel for the petitioners, submitted that
increments in pay etc. are covered by terms and conditions of service which can only be
entertained by the Service Tribunal under Article 212 of the Constitution. He further contended
that if the petitioners claim to be the employees of the High Court and not the civil servants then
the fundamental rights of equal treatment cannot be enforced against the High Court because
such rights can only be enforced against the State whereas the High Court is not covered by the
definition of State as described in Article 7 of the Constitution. Repelling the arguments on
merits the learned Advocate-General submitted that the grant of advance increments was never a
vested right granted by any law or statutory rule but was a mere privilege which cannot be
enforced through writs.

4. We have given our anxious consideration to the points raised by the parties in support of their
claims.

5. As regards the preliminary objection regarding the competence of writ petitions, we believe
that it has rightly been contended that the petitioners are not the civil servants as terms and
conditions of service of High Court employees are not laid down by the Parliament or the
Provincial Assembly under Article 212 of the Constitution. It is on the strength of Article 208 of
the Constitution that the High Court, with the approval of Governor, is empowered to make rules
known as 'The High Court Ministerial Establishment (Terms of Appointment and Conditions of
Service) Rules' regulating the terms and conditions of service of persons serving in the High
Court. Under section 4 of the Service Tribunals Act, 1973, the Service Tribunal has the exclusive
jurisdiction to adjudicate on matters relating to the terms and conditions of service of the civil
servant. The relevant portion of section 4 reads as under:---

"Appeal to Tribunals.---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 having jurisdiction in the matter:"

As such the petitioners being not the civil servants and considering their terms and conditions of
service, the High Court shall have the jurisdiction to entertain the matter arising thereof. If the
petitioners were civil servants, even then the jurisdiction of Service Tribunal was ousted as case
being of advance increments which are not guaranteed and sanctioned by any service law but fell
under the breach of the privileges of a certain group which could not have been conferred by the
Service Tribunal.

6. Reverting to the merits of the case we may observe that Readers etc. who are in BPS-16 are
not entitled to any advance increments on the ground of educational up-gradation. By virtue of
instructions contained in Finance Department Circular No.FD (PRC)1-1/89 dated 11-8-1991,
fringe benefits are allowed only to civil employees who are in BPS 1--15. However, we may
proceed to determine the question that the Readers etc. of this Court who on acquiring LL.B.
were meted out with discriminatory treatment in so far as compared to P.S.Is. who were allowed
five advance increments on possessing the said qualification. The reason allowing five
increments on acquiring LL.B. is to give incentive to the P.S.Is. so as to encourage them to
prosecute their cases in more professional manner. Looking into the jobs of the petitioners we
believe that acquiring of LL.B. is also relevant, useful and practical. The job of the Readers etc.
of the High Court is to prepare the case files, to locate/collect cause law and the Text Books for
the Judges. The more appropriate job description is given in 1986 PLC (C.S.) 807, relevant at
page 810 reads as under:---

"(1) To collect Peshi and arrange the same; find out if the case is otherwise complete in so far as
the service of process of the Court on the parties is concerned;

(2) to study the cases and find out under the enactment/status the case hinges;

(3) to arrange and collect law reports and textbooks like to be cited, discussed and referred to
during the course of arguments;

(4) to assist the Court during hearing with attentive vigilance and also prepare a brief resume of
facts so as to compare orders/judgments and law reports to obviate the possibility of any factual
mistake occurring and also to verify the judgments with references to the law reports referred to
therein; and

(5) to assist the Honourable Judges during the course of inspection of subordinate Courts;
besides being present in Court 15/20 minutes earlier than the arrival of the Hon'ble Judge and
leave late till in the evening."

7. In view of above job description, graduation in law assists them in performing their fictions
more effectively, efficiently and diligently. The knowledge of Civil Law, Criminal Law, Law of
Evidence, Pakistan Penal Code etc. can develop them into better Court Officers. On the contrary
P.S.Is. are entrusted to conduct criminal cases in the Courts of Magistrates on the prosecution
side. The comparison of two jobs description is meant to analyse both positions in their right
perspective. Fro P.S.Is. with basic qualification of B.A. will entitle them with no increment. On
the other hand the petitioners, after completing B.A. degrees, have already acquired four
increments. As per rule of appointment it was made known to P.S.Is. that they will be entitled to
receive five increments after completion of graduation in law while no such indication was made
to Readers/Private Secretaries. Now getting back to the 'dispute in question which is recognition
of LL.B. as higher qualification for Readers etc. it has already been established that LL.B. can
only be acquired after successful completion of two years after simple graduation and hence it
cannot be considered equal to simple graduation. We, therefore, see every justification to allow
advance increments to the petitioners. As stated above the Readers and Private Secretaries
Whose basic qualification is Matric with 10 years' experience have already been allowed 4
advance increments, i.e. two on F.A. and two on B.A. qualification, we hold that two advance
increments on basis of LL.B. degree will meet the ends of justice.

In view of above, we allow two advance increments to the petitioners on the ground of
possessing LL.B. degrees. Both the Writ Petitions are disposed of accordingly. Parties are left to
bear their own costs.

H.B.T./1902/P Order accordingly.