If any relief was omitted then civil servant was debarred from claiming

PLJ 2012 Tr.C. (Services) 68
[Federal Service Tribunal, Islamabad]

Present: Moazzam Hayat and Mushtaq Malik, Members.

NAEEM KHALID, STENOGRAPHER NATIONAL HIGHWAY AUTHORITY SHAHPUR and others--Appellants

versus

CHAIRMAN NATIONAL HIGHWAY AUTHORITY, ISLAMABAD
and another--Respondents

Appeal Nos. 246(R)CS to 276(R)CS and 403(R)CS to 436(R)CS of 2011, decided on 30.11.2011.

Service Tribunals Act, 1973 (LXX of 1973)--

----S. 5(2)--Civil Procedure Code, (V of 1908) O. 11, R. 2--Judgment recorded in the appeal would be applicable to all other appellants--Civil servant could not claim more than one relief in his appeal--Validity--Purpose of deciding any appeal--In a civil suit all the reliefs on one cause of action were to be prayed for in one suit--If any relief was omitted then civil servant was debarred from claiming--Every suit would include the whole of the claim which plaintiff was entitled to make in respect of a cause of action--Where plaintiff omitted to sue, or intentionally relinquished any portion of his claim, he would not afterward sue of the portion so omitted or relinquished--A person entitled to more than one reliefs of the same cause of action might sue for all--Thus in a civil suit all claims based on one cause of action were to be made in one suit--An appeal before tribunal was like a suit before Civil Court--In appeal also all reliefs and claims based on one cause of action, were to be prayed for in one suit--Civil servant had thus not committed any illegality in praying for more than one relief in his memo. of appeal.       [P. 71] A

Constitution of Pakistan, 1973--

----Art. 212(2)--Civil servant--Jurisdiction to make amendments in service rules of National Highway Authority--Objection of--Under Art. 212(2) of Constitution, Courts had been restrained from entertaining any proceedings in respect of any matter to which jurisdiction of FST extended judgment of tribunal appeal lies to Supreme Court that too when substantial question of law of public importance was involved--Tribunal though creation of Service Tribunal Act was in fact set up u/Art. 212 of Constitution, if it found that any term/condition of service was violative of basic rights of civil servant it would definitely assume jurisdiction and either set aside that rule or order the competent authority to repeal it or to suitably amend it--Powers of tribunal to issue a direction for such amendment were not fettered.        [P. 71] B

Constitution of Pakistan, 1973--

----Arts. 203-A to 203-J--Specific power to delete rules or make amendments had not been given to High Courts--Entitlement to personal pay--FST failed to understand as to why NHA had stopped such incentive to employee for filing appeal in Tribunal--Action tantamounted to life embargo and start paying personal pay to effected employees alongwith arrears--Other employees falling in slow moving cadre, would be entitled to special pay subject to their clearance by competent authority--Relief to that extent was allowed.  [P. 72] C

Constitution of Pakistan, 1973--

----Arts. 37(e) & 38(e)--Reduction of disparity in income and earning of individuals--Art. 37(e) of Constitution directs the state to make provisions for securing just and human condition of work--Art. 38(e) of Constitution provides for reduction of disparity in income and earning of individuals including persons in various classes of service of Pakistan--Under legal obligation of reduce disparity in income and earnings of appellants--Status had also to be consistent with various classes of the service of Pakistan--Departments were obliged to look into all genuine grievances of the appellant.         [P. 72] D

Mr. Mumtaz Ahmed, Associate of Mr. Abdul Rahim Bhatti, Advocate for Appellants.

Mr. Fiaz Ahmed Jandran, Mr. Zia-ul-Haq Kiyani and Ms. Sofia Iqbal, Advocates for Respondents.

Date of hearing: 30.11.2011.

Judgment

Moazzam Hayat, Member.--With this judgment we shall decide above titled appeals as their facts are identical and all the appellants have prayed for the same relief. However, the judgment shall be recorded in the appeal of Naeem Khalid which shall be applicable to all other appellants.

2.  Appellant Naeem Khalid joined NHA as Stenographer in 1995. His grievance is that only 33% seats were reserved for Stenographers for promotion to the posts of Personal Assistants whereas 67% of the seats were to be filled by direct recruitment. According to him other employees in different categories had been given upgradation whereas he was refused. With regard to upgradation he has referred to a judgment of the Tribunal dated 01.02.2011 passed in Appeal No. 1213(R)CS/2010. A departmental appeal was filed by him for upgradation of his post with a further request that the direct quota be abolished and all seats be filled by promotion. Another prayer was made that amendment be made in the rules for promotion and 375 posts created in BS-16. As regards slow moving allowance, presently admissible @ of Rs.3500/- and Rs.4000/- per month in two stages, be increased. The departmental appeal was not responded. Hence this appeal.

3.  In the appeal following reliefs have been claimed:--

(i)         Increase in personal pay from the present rate to 200%;

(ii)        Upgradation of in post as has been done in other cases;

(iii)       100% promotion quota for the post of Personal Assistants;

(iv)       Amendment in the rules;

(v)        Increase in number of seats; and

(vi)       Removal of disparity in different classes of service.

4.  Some of the employees of NHA were getting slow moving allowance but it was stopped vide Office Order dated 14th May, 2011 on the ground that appeals had been filed by the employees in the FST.

5.  The appeal is resisted by the respondents. It is stated that the Tribunal is not competent to change the rules, that the appellant could not claim more than one relief in his appeal and that he could not claim upgradation of his post, increase in number of seats and increase in personal pay as of right.

6.  We have heard the learned counsel for the parties and have also perused the record.

7.  It is clearly provided in Section 5(2) of the Service Tribunals Act, 1973 that a Tribunal shall, for the purpose of deciding any appeal, be deemed to be a Civil Court. In a civil suit all the reliefs on one cause of action are to be prayed for in one suit. If any relief is omitted then the plaintiff/appellant is debarred from claiming it. In this regard provisions of Order II, Rule 2 CPC are very clear. It is stated in Order II, Rule 2 that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of a cause of action. In sub-rule(2) it is further stated that where the plaintiff omits to sue in respect of, or intentionally relinquishes any portion of his claim, he shall not afterward sue in respect of the portion so omitted or relinquished. In sub-rule(3) also it is provided that a person entitled to more than one reliefs in respect of the same cause of action may sue for all. Thus in a civil suit all claims based on one cause of action are to be made in one suit. An appeal before the Tribunal is like a suit before the Civil Court. Hence in the appeal also all reliefs and claims, based on one cause of action, are to be prayed for in one suit. The appellant had thus not committed any illegality in praying for more than one relief in his memo. of appeal. His all reliefs are based on one cause of action. We, therefore, see no illegality in the memo. of appeal. The objection in this regard is repelled.

8.  The 2nd objection of the respondents is that this Tribunal is not competent to make amendments in the service rules of NHA. This Tribunal has been set up under Article 212 of the Constitution of Islamic Republic of Pakistan. It has been given jurisdiction in respect of matters relating to the terms and conditions of persons in service of Pakistan. Under sub-article (2) other courts have been restrained from entertaining any proceeding in respect of any matter to which the jurisdiction of this Tribunal extends. It has also to be noted that from the judgment of the Tribunal appeal lies to the Supreme Court of Pakistan, that too when a substantial question of law of public importance is involved. Thus the Tribunal, though the creation of Service Tribunal Act, 1973, is in fact setup under Article 212 of the Constitution, if it finds that any certain term/condition of service is violative of the basic rights of the civil servant it shall definitely assume jurisdiction and either set aside that rule or may order the competent authority to repeal it or to suitably amend it. In any event the powers of the Tribunal to issue a direction for such repeal/amendment are not fettered.

9.  The High Courts in the provinces and the Apex Court have also been established under the Constitution. Part-VII of the Constitution relates to the Judicature. Articles 176 to 191 are in respect of Supreme Court of Pakistan. As regards the High Courts, the relevant articles are from 192 to 2003. For Federal Shariat Court Articles 203A to 203J have been incorporated. The Federal Service Tribunal has also been constituted under Part-VII Chapter-4. It shall be appreciated that specific power to delete rules/laws or make amendments therein has not been given to the respective High Courts. It is only in the interpretation of the provisions of the Constitution that such power has been given to the Constitutional Courts of the Provinces. By the same analogy same power also vests in the Service Tribunal. We accordingly hold that the argument of the respondents relating to its jurisdiction is misconceived and is rejected.

10.  It has been admitted by the NHA itself in its Office Order dated 06.10.2010 that there are slow moving cadres in its service. It is for that reason that in Stage-I Rs.3500/- per month have been allowed as personal pay to the slow moving cadres. In the 2nd stage the rate of the personal pay is Rs.4000/- per month and is allowed to employees completing 25 years service. However, certain conditions have been prescribed for grant of this allowance. These conditions are lawful and are in line with the general rules of service. The appellants definitely belong to slow moving cadre. They are, therefore, entitled to personal pay subject to fulfillment of the conditions. We fail to understand as to why the NHA had stopped this incentive to the employees for filing appeals in the Tribunal. Their action tantamounted to violation to their own Office Order. We according direct the respondents to lift the embargo contained in the order dated 14.05.2011 and start paying the personal pay to the effected employees along with arrears. The other employees, falling in the slow moving cadre, shall also be entitled to special pay subject to their clearance by the competent authority. Relief to that extent is allowed.

11.  For other reliefs we shall refer to Articles 37(e) & 38(e) of the Constitution. Article 37(e) directs the State to make provisions for securing just and humane condition of work. Article 38(e) further provides for reduction of disparity in the income and earnings of individuals including persons in various classes of service of Pakistan. The respondents are, therefore, under a legal obligation to reduce, disparity in the income and earnings of the appellants. Their status has also to be consistent with various other classes of the service of Pakistan. In the circumstances, the respondents are obliged to look into all the genuine grievances of the appellant.

12.  In support of our above mentioned observations we shall refer  to  an  order  dated  15.03.2010  passed  by  the Apex Court in Civil Petitions No. 325 to 397 and 429 of 2010. The Bench of the Supreme Court comprised of My Lord the Chief Justice of Pakistan Mr. Justice Iftikhar Muhammad Ch., My Lord Mr. Justice Ch. Ejaz Ahmed and My Lord Mr. Justice Khalil-ur-Rehman Ramday. We shall reproduce the relevant findings of the Apex Court as under:--

"It is also important to note that this is not the first case of the respondents wherein the question of upgradation has been raised. There are so many other departments wherein the upgradation has already taken place and respondents approached the Tribunal on the ground of discrimination and violation of their fundamental rights under Article 25 of the Constitution of Islamic Republic of Pakistan."

The appellants are entitled to the benefit of the above observations of the Apex Court especially when Article 25 of Constitution guarantees equal treatment of law to all.

13.  In the above circumstances, while restoring the special pay of the appellants, we also direct the respondents to consider the claims made by the appellant and take appropriate stage for their redressal, even if it involves amendment in the, service rules. The process may be completed expeditiously, preferably within a period of four months from the date a copy of judgment is received in the office of respondents.

14.  There shall be no order as to costs. Parties shall be informed.

(R.A.)  Appeal allowed