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Petitioner: Muhammad Iqbal Mughal VS Respondent: Govt. of Punjab, etc
Court Name: Lahore High Court Judge(s): Muhammad Shan Gul Title: Muhammad Iqbal Mughal vs Govt. of Punjab, etc Case No.: W.P. No.464 of 2022 Date of Judgment:2022-04-01 Reported As: 2022 LHC 2425 Result: Petition Dismissed
JUDGMENT
JUDGMENT MUHAMMAD SHAN GUL, J. Through this judgment, the titled constitutional petition as also constitutional petitions bearing No.2520 of 2022 and 1075 of 2022 are sought to be decided since common questions of law and facts pertaining to voluntary retirement of civil servants are involved in these petitions. 2. The facts of the case in W.P. No.464 of 2022 are that the petitioner (Date of birth 07.02.1970) was inducted in the service of the Revenue Department, Government of the Punjab on 15.06.1995. On 17.06.2020, while posted as Kanungu (BS-09) with the office of Deputy Commissioner, Rajanpur, the petitioner applied for the grant of Leave preparatory to Retirement (LPR) under Rule 3.5(i) of the Punjab Civil Services Pension Rules, 1963 ("the Rules, 1963"). At the time of filing the said application, the petitioner had completed 25 years and 2 days of continuous service with the Government of the Punjab. Deputy Commissioner, Rajanpur/respondent No.4, on 21.07.2020 sanctioned petitioner's LPR from 01.08.2020 to 31.07.2021. Order of respondent No.4 dated 21.07.2020 further stated that the petitioner "shall stand retired from Government service with all pensionary benefits on expiry of said leave w.e.f. 01.08.2020". 3. After expiration of the petitioner's LPR, documents for the release of his pension and gratuity were sent to District Accounts Officer, Rajanpur/respondent No.6 mentioning his date of retirement as 31.07.2021 and length of his qualifying service (including LPR) as 26 Years, 01 Month and 16 Days. While forwarding the said documents, the Additional Deputy Commissioner (Revenue), Rajanpur accorded administrative and financial sanction for the grant of pension/commutation. 4. On 03.05.2021 i.e. during the petitioner's LPR and before the date of his retirement, Section 12 of the Punjab Civil Servants Act, 1974 was amended and reenacted and Sub-Clause(b) of Sub-section Section 12(1)(ii) was added. 12. Retirement from service.- (1) Civil Servant shall retire from service-
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(i) on such date after he has completed twenty years of service qualifying for pension or other retirement benefits as the competent authority may, in public interest, direct; or (ii) Where no direction is given under clause (i): (a) on completion of the sixtieth year of his age; or (b) voluntarily, on completion of twenty five years of service or on attaining fifty five years of age, whichever is later. 5. The case of the petitioner pending with Respondent No.6 was not processed for the reason that he had completed 25 years of his service but had not attained the age of 55 and hence, could not opt for voluntary retirement in light of the aforesaid amendment in Section 12. The petitioner's case, on the other hand, is that since his LPR and retirement had already been approved by respondent No.4 on 21.07.2020, his entitlement to opt for retirement and grant of pensionary benefits should not be affected by the statutory amendment effected on 03.05.2021. Lack of response from respondent No.6 forced the petitioner to file W.P No.20026/2021 (Muhammad Iqbal Mughal Vs. Government of the Punjab etc) before this Court and vide order dated 22.12.2021, respondent No.6 was directed to address the matter of the petitioner within 25 days. 6. On 07.01.2022, Respondent No.6 intimated the office of Additional Deputy Commissioner (Revenue) Rajanpur that after the aforesaid amendment in Section 12 of the Act, 1974, the said Kanungo is required to join service again and the intervening period is to be treated as leave of the kind due. This correspondence has been brought under challenge in this petition. 7. The facts of the case in W.P. No.2520 of 2022 are that the petitioner applied for premature retirement after qualifying 25 years of service on 29.01.2020. The Secretary Higher Education Department vide order dated 07.06.2021 ordered for the petitioner to retire and according to retirement notification, the petitioner was relieved from his post on 20.7.2021. 8. After expiration of the petitioner's LPR, documents for the release of his pension and gratuity were sent to District Accounts Officer, Khanewal/respondent No.4 mentioning his date of retirement as 20.07.2021 and length of his qualifying service (including LPR) as 25 Years. While forwarding the said documents, the Secretary Higher Education Department accorded administrative and financial sanction for the grant of pension/commutation vide order dated 26.10.2021. 9. On 03.05.2021 i.e. during the petitioner's LPR and before the date of his retirement, Section 12 of the Punjab Civil Servants Act, 1974 was amended and reenacted and Sub-Clause(b) of Sub-section Section 12(1)(ii) was added. 10. The case of the petitioner pending with respondent No.4 was not processed for the reason that though he had completed 25 years of service he had not attained the age of 55 and hence, could not opt for voluntary retirement in light of the aforesaid amendment in Section 12. The petitioner's case, on the other hand, is that since his LPR and retirement had already been approved by respondent No.1 on 20.07.2021, his entitlement to opt for retirement and grant of pensionary benefits should not be affected by the statutory amendment effected on 03.05.2021. Lack of response from respondent No.4 forced the Petitioner to file W.P No.1553/2021 before this Court and vide order dated 08.10.2021, respondents were directed to decide the matter of the petitioner within 25 days but in vain. Feeling aggrieved, the petitioner filed a criminal original No.33-W/2022 before this Court. During the course of proceedings in the contempt petition, respondent No.4 placed on record a copy of an order dated 15.2.2022 whereby the retirement order of the petitioner was withdrawn. This withdrawal has been brought under challenge. 11. The facts of the case in W.P. No.1075 of 2022 are that the petitioner after completing 25 years of service applied for retirement on the basis of Leave preparatory to Retirement (LPR) under Rule 3.5(i) of the Punjab Civil Services Pension Rules, 1963 ("the Rules, 1963"). The District Education Officer, District Rajanpur/respondent No.4 vide order 02.06.2021 sanctioned petitioner's LPR. Order of respondent No.4 dated 02.06.2021 further stated that the petitioner "shall stand retired from Government service with all pensionary benefits on expiry of said leave w.e.f. 02.09.2021."
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12. After expiration of the petitioner's LPR, documents for release of his pension and gratuity were sent to District Accounts Officer, Rajanpur/Respondent No.6. 13. On 03.05.2021 i.e. during the petitioner's LPR and before the date of his retirement, Section 12 of the Punjab Civil Servants Act, 1974 was amended and reenacted and Sub-Clause(b) of Sub-section Section 12(1) (ii) was added. 14. The case of the petitioner pending with Respondent No.6 was not processed for the reason that though he had completed 25 years of his service he had not attained the age of 55 and hence, could not opt for voluntary retirement in light of the aforesaid amendment in Section 12. The petitioner's case, on the other hand, is that since his LPR and retirement had already been approved by respondent No.4 on 02.06.2021, his entitlement to opt for retirement and grant of pensionary benefits should not be affected by the statutory amendment effected on 03.05.2021. This inaction has been brought under challenge. VOLUNTARY RETIREMENT BEFORE AND AFTER THE AMENDMENT: 15. Prior to the aforesaid amendment, Section 12 of the Act, 1974 read as under: "12. Retirement from service.- (1) Civil Servant shall retire from service- (i) on such date after he has completed twenty years of service qualifying for pension or other retirement benefits as the competent authority may, in public interest, direct; or (ii) where no direction is given under clause (i), on completion of the sixtieth year of his age; or" 16. At that time (before the recent amendment in the Act, 1974), Civil Servants in Punjab could opt for voluntary retirement before the age of superannuation (60 years) and were eligible for the grant of retiring pension under Rule 3.5 of the Punjab Civil Services Pension Rules, 1963: "3.5 Retiring Pension A retiring pension is granted to a Government servant, who not being eligible for superannuation pension - (i) Opts to retire after 25 years qualifying service or such less time as may for any special class of Government servant be prescribed; or (i-a)...... (ii)....... Note (1) Subject to the provisions of the Essential Services Maintenance Act, all Government servants shall have the right to retire on a retiring pension after completing 25 years qualifying service; provided that a Government servant, who intends to retire before attaining the age of superannuation, shall, at least three months before the date on which he intends to retire, submit a written intimation to the authority which appointed him, indicating the date on which he intends to retire. Such an intimation, once submitted, shall be final; provided that if a Government servant withdraws his application for voluntary retirement, or modifies the date of such retirement, before its acceptance by the competent authority, the application or the date of retirement shall be deemed to have been withdrawn or modified, as the case may be. Note (2) Note (3) A Government servant can ask for retirement only after completion of 25 years qualifying service. A Government servant proceeding on retiring pension shall, unless he has been retired under the Efficiency and Discipline Rules, has the right to avail of such leave preparatory to retirement as may be admissible to him. However, the LPR shall not be allowed to him until he has completed 25 years service qualifying for pension. If a Government servant proceeds on LPR before actually completing 25 years of qualifying service, he may be deemed to have proceeded on retirement with effect from the date he completes 25 years of qualifying service, and the leave enjoyed by him before completing 25 years of service may be treated as leave of the kind due to him." 17. Hence, the amendment in Section 12 means that the option of voluntary retirement is now available to a Civil Servant who is aged 55 years or has completed 25 years of service, whichever is later. Petitioner in W.P. No.464 of 2022 though has completed 25 years of Service but has not attained the age of 55 and his age at the time of his retirement (31.07.2021) was 51 years 5 months 24 days. However, the case of the petitioner is that
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since his LPR and retirement has been sanctioned on 21.07.2020 (prior to the amendment dated 03.05.2021), right to avail voluntary retirement and availing retiring pension has already accrued in his favour and the same has been acknowledged and sanctioned in his favour by the Competent Authority/Respondent No.4 and therefore the amendment in the Act, 1974 should not affect his right. In other words, the right of the petitioner to opt for retirement has already matured after grant of approval of his LPR and early retirement and there is nothing to be done by any of the respondents other than execute the order dated 21.02.2020. And that there is no retrospective effect given to the amended Section 12 and hence, the same will only apply to cases where early retirement has not been approved. The petitioners in connected petitions state their cases in identical terms. 18. While what the petitioners claim may be legally accurate but the question of jurisdiction raised vehemently by the amicus Malik Muhammad Tariq Rajwana and the learned Asstt. Advocate General has to be adverted to and taken up to the exclusion and ouster of all other issues. The question of this Court exercising judicial power shall only arise when once it is determined that this Court has jurisdiction in the matter. The Law Officer states on the strength of "Asadullah Rashid v. Haji Muhammad Muneer and others" (1998 SCMR 2129) and "Government of Sindh through Secretary Education and Literacy Department and others v. Nazakat Ali and others" (2011 SCMR 592) that the question of jurisdiction be determined at the outset before analyzing the merits of the case. JURISDICTION OF HIGH COURT: 19. Article 212 of the Constitution while ousting jurisdiction of this Court or any another Court with respect to matters involving terms and conditions of a Civil Servant clearly mentions that such terms and conditions could equally be of, and with respect to, person(s) who have been in civil service. "212 Administrative Courts and Tribunals. (1) Notwithstanding anything hereinbefore contained, the appropriate Legislature may by 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 Pakistan, including disciplinary matters; (b)........ (c) ....... (2) Notwithstanding anything hereinbefore contained, where any Administrative Court or Tribunal is established under clause (1), no other court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends and all proceedings in respect of any such matter which may be pending before such other court immediately before the establishment of the Administrative Court or Tribunal other than an appeal pending before the Supreme Court, shall abate on such establishment." 20. The Hon'ble Supreme Court of Pakistan, in numerous precedents, has settled the law. According to law laid down, while taking up matters relating to Civil Servants and their terms and conditions, the High Courts, must, first, determine the issue of jurisdiction before embarking upon an analysis of the merits in issue. Such caution, even otherwise prescribed for all courts, gains more significance for the reason that in cases touching terms and conditions of service of a civil servant, not only the availability of jurisdiction under Article 199 has to be established but the bar contained in Article 212 has to be applied. 21. In "Amjad Raza Khan and another v. Government of Punjab through Secretary, Local Government and Rural Development Department, Lahore and 4 others" (1998 PLC(C.S.) 891), it has been held as follows:- "3-A. It appears that in the High Court comments were filed by the Government of Punjab in which objection is raised with regard to the jurisdiction of the High Court and also to the effect that writ petitioners had not availed departmental remedy, hence resort to the Court was premature. ....... In such circumstances, question of jurisdiction is of paramount importance and the High Court should have decided this question in the first instance.
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I............. In such circumstances, we are of the view that the High Court should decide the question of jurisdiction and since stay has been granted, it would be proper and in the fitness of the things that High Court should dispose of the main petition finally including finding on the question of jurisdiction within two weeks from today. " 22. In "Miss Rukhsana Ijaz v. Secretary, Education, Punjab and others" (1997 PLC(C.S.) 121), it has been held as follows: "2. ..........Both the petitioner and respondent No. 1 are admittedly civil servants. Dispute between them relates to their transfer/posting which is a matter relatable to the terms and conditions of their service. Disputes about these matters fall within the exclusive jurisdiction of the Service Tribunal and the jurisdiction of the High Court is excluded in such matters by virtue of the express provisions of Article 212(2) of the Constitution. It appears that the learned Judge in the High Court has not duly attended to this aspect of the matter before issuing the stay order. In the circumstances, we convert this petition into an appeal and allow it. The impugned stay order is set aside and it is directed that the High Court should first decide the question of its jurisdiction before passing any stay order." 23. In "Hafiz Khalid Irshad v. Ahmad Khan Wattoo and others (1997 SCMR 1124), it has been held as follows:- "3. .........As stated above, the dispute between the parties relates to their posting/transfer inter se which is a matter relatable to the terms and conditions of their service. Such disputes fall within the exclusive jurisdiction of the Service Tribunal and the jurisdiction of all other Courts including High Court is expressly barred by virtue of the provisions of Article 212(2) of the constitution. This aspect of the matter, it appears has not been looked into by the learned Judge in the High Court before passing the impugned order. This petition is, therefore, converted into an appeal which is allowed and the impugned stay order issued by the High Court is set aside with the observation that the High Court should first determine the question of its jurisdiction before passing any interim order. The High Court may preferably dispose of writ petition within two months." 24. In "Asadullah Rashid v. Haji Muhammad Muneer and others" (1998 SCMR 2129), it has been held as follows:- "2. Learned counsel for the petitioner contended that the writ petition filed by respondent No. l was barred by Article 212 of the Constitution ......... 4. As a result, Civil Petition No.934-L of 1998 is converted into appeal and the same is allowed, order dated 15- 6-1998 of the Lahore High Court passed in Writ Petition No.4957 of 1998 is set aside and the matter is remanded to the High Court for fresh decision after hearing the parties. Before taking any decision regarding admission of the writ petition an or passing orders granting interim relief, the High Court will first decide the question of its jurisdiction in view of the provisions of Article 212 of the Constitution and in the light of the judgments of this Court on the point involved." 25. In "Ayyaz Anjum v. Government of Punjab, Housing and Physical Planning Department through Secretary and others" (1997 SCMR 169), it has been held as follows: "2. Clearly, the matters relating to the posting and transfer of a civil servant relate to the terms and conditions of his service. Disputes about these matters fall within the exclusive jurisdiction of the appropriate Service Tribunal. The jurisdiction of High Court is barred in these matters by the express provisions of Article 212(2) of the Constitution. We are therefore unable to support the interim order made by it in this case. Accordingly, we convert this petition into appeal and set aside the said order. The High Court should first determine the question of its jurisdiction before making any interim order in this case." 26. In "Zamir Iqbal Khan and another v. Province of Sindh through Chief Secretary and 2 others" (2014 PLC (CS) 954), it has been held as follows: "8. The cumulative effect of the dictums laid down by the Hon'ble Supreme Court in the cases of Asadullah Rashid, Ayyaz Anjum, Muhammad Anis, Imam Bakhsh, Rana Muhammad Sarwar and Peer Muhammad (supra) made quite visible that the petition under Article 199 is not maintainable in relation to any matter connected with
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the terms and conditions of service and in respect whereof the Service Tribunal has exclusive jurisdiction, even it was held that the High Court before taking any decision regarding the admission of constitutional petition and or passing order granting interim relief will first decide the question of its jurisdiction in view of Article 212 of the Constitution. .......... The apex court has further held that the orders, even if mala fide, ultra vires or coram non judice, fell within the ambit of Service Tribunal and jurisdiction of Civil Courts including High Court is ipso facto ousted as result of bar contained under Article 212 of the Constitution. Recently, the Hon'ble Supreme Court has passed the similar order on 3-1-2014 in Civil Petition No.345-K of 2013. The crux of the order is that while exercising jurisdiction by this court under C.P.C. or even in the Constitutional petition, the provision of Article 212 of the Constitution cannot be overlooked which bars the jurisdiction." 27. The Hon'ble Supreme Court, rather than opining on the merits of the cases dealing with terms and conditions of a Civil Servant itself, has disapproved the practice of any decision making on merits by the High Courts without first passing a judicial order pertaining to availability of jurisdiction. What is noteworthy is that the Hon'ble Supreme Court, in such cases has not decided the question of jurisdiction but has remanded the cases back to the respective High Courts for the obvious reason that in such cases a two-fold threshold i.e. of jurisdiction under Article 199 being subject to the Constitution and Article 212 beginning with a non-obstante clause, has to be crossed. Hence, before proceeding any further, the crucial question pertaining to jurisdiction has to be decided. The answer to this question will determine if the bar imposed by Article 212 is triggered divesting this Court of the requisite jurisdiction to settle and adjudicate the controversy. 28. It may also be noted that Article 199 is subject to the Constitution while Article 212 of the Constitution begins with a non obstante clause, and therefore prevails over Article 199 of the Constitution. For the purpose of Article 199, Article 212 is the Constitution! Also, while most of the other ouster clauses contained in the Constitution of Islamic Republic of Pakistan, 1973 have been judicially pierced and read down with the recent most example being that of Article 211 of the Constitution in the case of "Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others" (PLD 2010 SC 61), the ouster contemplated by Article 212 of the Constitution has ordinarily never been read down by the Superior Judiciary so as to allow civil servants to have recourse to Constitutional jurisdiction in the matter of terms and conditions of their service. Stray incidents may have occurred such as the one reported as "Azhar Ahmad Khan and 8 others v. Chief Secretary Government of the Punjab, Lahore and 12 others" (2010 PLC (C.S.) 374) but the Hon'ble Supreme Court of Pakistan has never approved such a course of action and a perusal of the judgment reported as "Ali Azhar Khan Baloch and others v. Province of Sindh and others" (2015 SCMR 456), clearly reveals that the attempt by the Sind High Court to adjudicate matters involving terms and conditions of service of a civil servant was deprecated and not approved by the Hon'ble Supreme Court of Pakistan. In this case, the Sindh High Court entertained Constitutional petitions as also civil suits rooted in terms and conditions of a civil servant and Hon'ble Supreme Court of Pakistan conspicuously disapproved such an exercise. 29. Article 212 of the Constitution being a non obstante article prevails over Article 199 since no Court has jurisdiction to exercise judicial power to grant an injunction or make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Tribunal extends. It is, therefore, that this Court has no jurisdiction to even entertain a matter that stands barred under Article 212 of the Constitution. In fact, the remedy afforded by Article 199 cannot be triggered owing to this jurisdictional bar. The words 'jurisdiction to entertain' clearly mean that since there is no jurisdiction to even entertain no question of exercise of the consequent judicial power arises. 30. Article 212 of the Constitution beginning with a non obstante clause expressly bars all Courts including a High Court to entertain or take cognizance of matters that eminently fall within the jurisdiction of the Administrative Tribunal. The above principles have been very lucidly explained in judgments reported as "Abdul Bari v. Government of Pakistan and 2 others" (PLD 1981 Karachi 290) and "Mian Amanul Mulk
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v. N.W.F.P. through Chief Secretary" (PLD 1981 Peshawar 1). Moreover, in "Muhammad Aslam Bajwa v. Federation of Pakistan" (PLD 1974 Lahore 545), it has been observed that exclusionary provisions of Article 212 take within their sweep all preceding provisions of the Constitution and which include Article 199 of the Constitution. In fact, the non obstante clause in Article 212 indicates clearly that its provisions are not subject to or conditioned upon those of Article 199 of the Constitution. The intention of the legislature in granting primacy to Article 212 is manifest. 31. In this view of the matter, it is…
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