1. Petitioner Khan Toti along with 17 others and proforma respondents No.8 and 9 have questioned the legality, propriety and legitimacy of the judgment of learned Single Judge of the Peshawar High Court, Mingora Bench, Swat in C.R. No.1141-P/07. Leave to appeal is sought against the impugned judgment dated 22.09.2014 by the petitioners on various grounds.
We have heard Syed Safdar Hussain, learned ASC for the petitioners, Mr. Waqar Ahmed Khan, learned Addl.A.G. KPK and Syed Nayyab Hussain Gardezi, learned ASC, Standing Counsel for the Federation and have carefully gone through the record as well as the law, rules and regulations, applicable to the subject matter.
2. The epitome of the controversy relates to the issuance of notification by respondents No.1 to 4, officials of Government of NWFP (KPK) dated 22.7.1987 to extend financial and other benefits of service to all the employees/civil servants in BPS-5, 6, 7 and 9. The employees of BPS-5 were given @33% Selection Grade in BPS-7 and employees of BPS-6 were allowed Selection Grade in BPS-7 and 33% posts were placed in Selection Grade BPS-9. Similarly, the notification thus issued, has extended further benefit of two advance increments to those employees who had passed FA examination while to those who had got Bachelor Degree were allowed three advance increments.
3. The Executive/Administrative authorities, not well conversant with the judicial branch of the District Judiciary, could not clarify the nomenclatures of the Readers, Moharars, Examiners and other alike, who in fact are Senior or Junior Clerks in the above grades. However, through a letter dated 27.07.1989, issued by the Finance Department, the petitioners and proforma respondents were extended the benefits, therefore, that controversy, although was put at rest but still agitated by the respondent government.
4. The learned ASC for the official respondents raised preliminary objection that the Civil Court was having no jurisdiction to entertain the subject matter as the petitioners and proforma respondents, being civil servants and the matter relates to the terms & conditions of their service thus, the impugned judgment of the Peshawar High Court is not open to any exception.
On the other hand, learned ASC for the petitioners vehemently contended that it is a classic case of discrimination, which is squarely prohibited by Article 25 of the Constitution and that, once such amount was paid to the petitioners and proforma respondents in light of the clarification of the Finance Department’s letter dated 27.07.1989 then, the official respondents were stopped to make a retrace or to turn volta-face and that, after separation of Judiciary from the Executive, right from the lower tier, the petitioners and proforma respondents were servants of the Province but keeping in view the scheme of the Constitution and the law on the subject after complete separation of Judiciary from the Executive limb of the State, the petitioners could not be termed in strict legal sense as civil servants in the affairs of the Provinces to make them amenable to the jurisdiction of the Provincial Services Tribunal. The learned Judge in the High Court committed legal and jurisdictional error, accepting such objection of the official respondents who were petitioners before the High Court because of the above legal and constitutional position, the learned ASC further added.
5. In view of the Objectives Resolution, which is now integral part of the Constitution by way of Article 2A thereof and the command contained in Sub-Article (3) of Article 175 of the Constitution clearly providing without any exception that the Judiciary shall be separated progressively from the Executive within a period of three years from the commencing day. However the same was extended to five years by the Constitution (Fifth Amendment) Act, 1976 and then to 14 years through ‘Presidential Order’.
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