 1

THE COURT OF ADDITIONAL DISTRICT JUDGE/JUDGE REFERENCE COURT

MUZAFFARABAD.

Civil Suit No. 20

Date of Institution: 31.10.2018/23.09.2016

Date of Decision: 20.05.2019

Muhammad Zulf Khan S / O Wali Sher Khan, R / O Village Sundgran.

Tehsil and District Muzaffarabad Azad Kashmir (Ex-Office Superintendent

EEAP). (Plaintiff)

VERSUS

1. Seretary / Director Geneal, State Earthquake Reconstruction and

Rehabilitation Agency (SERRA) AJ&K, Opposite Block No. 5, New

Secretariat Chattar, Muzaffarabad,

2.Chief Engineer, Earthquake Emergency Assistance Project (EEAP), Block

No. 5, New Secretariat, Chattar Muzaffarabad,

3. Azad Government of the State of Jammu and Kashmir, through its

Chief Secretary, having his office at New Secretariat, Chattar,

Muzaffarabad,

4.Director Legal, SERRA, SERRA office, New Secretariat, Muzaffarabad.

(Real Defendants)

Earthquake Reconstructive Rehabilitation Authority (ERRA), though its

Deputy Chairman, Prime Minister's Secretariat (Public) islamabad

(Proforma Defendant)

SUIT FOR RECORVERY OF RS. 20,59,166.00

Present: Akhlaq Husain Mughal Advocate for the Plaintiff

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agencies for rehabilitation and reconstruction in earthquake affected

areas, to achieve the aim and objective of the programme, a project

known as Earthquake emergency assitance project (EEAP) was Launched

in Azad Kashmir. For the purpose of the project, number of vacancies on

contract basis were advertised and the plaintifff was appointed against

the post of office superintendent in Road and Bridge Sector EEAP vide

Govt order No. SERRA/Admin/1619-43/2007 dated 17.03.2007. He joined

his duty on 22.03.2007 against selary package fixed at the rate of Rs.

20,000/- per month, as per rate provided in PC-1. The original PC-1

exhausted on 30.06.2009. However revised PC-1 was prepared in which

pay for office superintendent was provided as Rs.59.500/-per month. The

anticipartory approval to the revised PC-1 (relating to the period

01.07.2009 to 30.09.2011) was accorded by the chairman ERRA vide

ERRA,s Letter No. 103(2) ERRA/PEC/09(Volv) dated 17.11.2011.

It was futher contended by the plaintiff that the project

Director/Chief Engineer reffered the matter of plaintiff to the

Secretary/Director General SERRA vide letter dated 11.07.2012 for

approval of revised salary package of the plaintiff in the light of the

anticapatory approval of the PC-1. Reminder was also issued to the

Secretary/D.G SRRA by the project co-ordinator on 25.12.2012. The

Secretary/Director General SERRA did not decide the matter for a long

time ultimately the plaintiff filed a writ petition before the Hon, able High

Court on 13.04.2013. The Hon, able Hight Court directed the

Secretary/D.G SERRA to decide the controvery with regard to payment

of salary of the petitioner as submitted by Chief Engineer project

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respondents went to the Supreme Court in leave to appeal but their

petition for leave to appeal was dismissed by the honourable supreme

court. The defendant No.1 failed to comply with the order of the

Hon,ble High Court within the stipalated period.

The plaintiff therefore, filed a petition for initiating contempt

proceedings against the defendant No.1.During contempt proceedings

representative of the defendant submitted a copy of decision dated

5.6.2014 before the court on 01.10.2014, according to which the

defendant decided that the petitioner was not entitled to the benefits

proposed by the CE/PC.EEAP vide his proposal under Finance Department

dated 12.8.2008.

That after receipt of copy of decision of the defendant the plaintiff

submitted his claim of payment to defendents. The defendant neither

paid the claim nor made any reply as to why payment of dues has not

been made for such a long time. On 21.5.2016 the plaintiff through his

counsel issued notice to the defendant that during all this period since

before filing of the writ petititon, the petitioner had to suffer mental

tortures, for which he would claim compensation. The defendant was

asked to make payment of arrear dues according to approved PC-I

amounting to Rs.8,59166/- besides damages for mental tortures

immediately and without delay, otherwise the plaintiff will file suit for

recovery of the amount of arrear of salary and damages for mental

torture and the defendant will be responsible to pay all legal expenses in

this regard. The plaintiff has been put to mental torture constantly, all
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He further contended that the defendant deliberately put the

plaintiff to immense mental torture during all this long period without any

reason. Compensation for such mental torture can not be measured in

terms of money. However, plaintiff puts nominal compensation for

mental torture in the amount of Rs 12 lacs.He prayed that decree for

recovery of an amount of Rs 2059,166 00 may kindly be passed in favour

of the plaintiff and against the defendants as per following detail;.

1. Amount due in the light of approved revised

PC-1 coupled with the commitment of the

defendant that the plaintiff was entitled to salary

as per approved PC-1 from time to time.

Rs.859,166.00
2.Compensation for mental torture for a period
at least from date of preferring claim to the
defendant for payment as per revised PC-1 and
there own commitment i.e. from 18.11.2014 to
date (nearly 22 months)=

Rs.12,00,000.00,

Total= Rs.20,59,166.00.

B. Cost of litigation may also kindly by awarded.

C. Separate proceedings may kindly be directed to be taken against

the defendant Secretary/D.G SERRA for false statement as pointed out in

paras 21& 22 above.

  5

statement wherein it was stated that the above title suit has been filed by

the plaintiff against law, procedure and decisions of the Apex Court. That

amount claimed by the plaintiff in above titled suit was denied in a

decision taken by defendant No. 1 under the direction of Hon,ble High

Court through judgment dated: 19.02-2014. That plaintiff has no fresh

cause of action for filing above titled suit. The proposed amount claimed

by the plaintiff was objected by the then Senior Accounts Officer and

regarding objection Hon'ble High Court has concluded in its judgment

dated: 19-02-2014 in a writ petition titled Muhammad Zulf Khan Vs

Secretary / DG , SERRA at page 9 (last line of its page)

  As therefore we have reached to the conclusion that objections

raised by the senior accounts officer were not frivolous as alleged by the

petitioner  .

That under the Administrative & Financial Rules as enforced in

SERRA, the Secretary / DG, SERRA is competent to give approval for the

appointment and change in salary from Grade 11 to 17 but the

Administrative & Financial approval was not taken in favour of plaintiff

while proposing salary claimed by the plaintiff, hence the Claims of the

plaintiff were liable to be dismissed. Copies of the Financial and

Administrative Powers Rules are attached as annexure- "PRC" . That

plaintiff failed to impleade the senior accounts officer as party being

necessary party, also stated that plaintiff failed to submit the affidavit in

support of his plaint which is a mandatory requirement hence, suit is

liable to be dismissed. 13 is correct and it is explained that the PLA was

withdrawn on 05-05-2014 due to the observation of Supreme Court that

  6

written statement filed by the defendant before the Hon,ble High Court

can not be re-agitated before this court under law. The amount of

proposed salary mentioned by the plaintiff on the one hand not

approved by competent authority on the other hand hit by the

Notification dated:12-08-2008. Matter already been decided by the

Honble High Court and by defendant No.1 and therefore, the claim

submitted by the plaintiff hit by res-judicata. It is humbly prayed that by

accepting this written statement, the suit filed by the plaintiff may kindly

be dismissed with cost.

3. From the divergant pleading of the parties following issued were

framed.

ISSUES:

1: Whether the plaintiff has cause of action to file the present suit?

(OPP)

2: Whether the controversy in the suit has also been resolved by the

High Court? If yes what is its effect on suit? (OPP)

3: Whether the plaintiff is entitled to recovery of Rs. 859166/- as arrears

of his salary according to sanctioned PC-1 along with compensation of

mental and physical torture to the tune of 200000/- total amount

2059166/- from defendant? (OPP)

4.Relief.

4. The plaintiff recorded his court statement and during his deposition

he produced order dated 17.03.2007 as Exh.PA, copy of PC-1 as Exh.PB,

  7

Exh.PO, as documentary evidence.

Whereas, on behalf of defendant witnessess Muhammad Iqbal

awan and Imtiaz Ahmed recorded their court statements. Moreover, the

defendants also produced documentary evidence Exh. DA, Exh.DB, Exh.

DC in support of their version. All the evidence produced by the parties

are carefully and minutely observed.

5. Argument heard and record perused.

The plaintiff alongwith his counsel appeared in person and argued that

he was employed on contract basis aginst the post of office

superintendent in a project known as Road and Bridge Sector EEAP. That

project was launched by Government with aid of donor agencies for

rehabilitation and re-construction in earthquake effected areas. He joined

his duty in pursuance of Govt order No. SERRA/Admin/1619-43/2007

dated 17.03.2007. His salary package fixed at the rate of Rs. 20,000/- per

month, as per rate provided in PC-1. However the original PC-1 exhausted

on 30.06.2009 and revised PC-1 was prepared in which pay for office

superintendent was provided as Rs. 59.500/- per month. Inspite of that

the Director/Chief Engineer referred the matter of plaintiff to the

Secretary /D.G SERRA vide letter dated 11.07.2012 and 25.12.2012

respectively for approval of revised salary package of the plaintiff in the

light of the anticipatory approval of the PC-1, the defendant neither paid

salary to plaintiff in accordance with para 1 nor para 2 part iii of the

notification issued by Finance Division Government of Pakistan dated

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appended.

Whereas, Raja Mazhar Waheed, legal advisor for the defendants

submitted written argument which are also appendent. He also contended

that no such order for the extention of contract are produced by the

plaintiff. Therefore, he is not entitled for any relief. He further argued that

the plaintiff failed to implead the necessary party to suit. Therefore, his

suit is liable to be dismissed. Matter has already been decided by

apex-court hence liable to be dismissed.

06. we have persued the record and evidence provided by the parites

with great care and caution and decide the controversy between the

parties. Issuewise finding are as under.

Issue No.1.

Whether the plaintiff has cause of action to file the present suit?

Onus to prove this issue was on plaintiff. From perusal of the

pleading its reveals that the Plaintiff prayed for decree for recovery of an

amount against the defendant as per following details;

I.Amount due in the light of approved revised

PC-1 coupled with the commitment of the
defendant that the plaintiff was entitled to Salary
as per approved PC-1 from time to time=

RS. 8,59,1666.00.
II.Compensation for mental torture for a period
at least from the dated of preferring claim to the
  9

Total= Rs.20,59166.00.

In the legal system, a   cause of action  is a set of facts or legal

theory that gives an individual or entity the right to seek a legal remedy

against another.

From perusal of the record it reveals that after earthquake 8th

October,2005 the Government launched a programme with aid of doner

agencies for rehabilitation and reconstruction in earthquake affected

areas. To achieve the aims and objectives of the programme, a project

known as Earthquake Emergency Assistance project ( EEAP) was

launched in Azad Kashmir . For the purpose of this project number of

vacancies on contract basis were advertised and plaintiff was appointed

against the post of office superintendent in road and Bridges sector EEAP

vide Government order No. SERRA /Admin/1619-43/2007 dated

17.03.2007. ExP.PA. He joined his duty on 22.03.2007 against salary

package fixed at the rate of Rs. 20,000/- per month as per rate provided

in PC-1 ExP.PB.

The record also shows that the original PC-1 ExP.PB was

exhausted on 30.06.2009 . Later on revised PC-1 ExP.PC was prepared

and pay for office superintendent was provided as Rs. 59.500/- per

month. The Project Director, Chief Engineer on the basis of anticipatory

approval by the chairman ERRA, referred the matter of the plaintiff to the

Secretary / D.G SERRA vide letters, dated 11.07.2012,25.10.2012 for

  10

High court on 13.04.2013 regarding the same matter as he prayed

before this forum.

In the writ peititon the Hon,ble High Court vide its judgment dated

19.02.2014 ordered as under;

  The crux of above discussion is that by accepting
the instant writ petition Secretary/D.G SERRA
re s p on d e n t N o. 1 i s d ir e c te d t o d e ci d e t he
controversy with regard to the payment of salary to
petitioner as submitted by Chief Engineer- project
Co-ordinator by latter dated 11.07.2012 and
25.10.2012 respectively within one month from the
receipt of the instant order  .

The judgment dated 19.02.2014 of Hon,ble High Court was

challenged by defendants in supreme Court which was later on withdrawn

by defendants vide order dated 05.05.2014.

Meanwhile the plaintiff filed contempt application before Hon,ble

High court. The defendant in compliance with order of the Hon,ble High

Court resolve the controversy vide order dated 05.06.2014 and sumbitted

it before court during contempt proceeding. As paragraph 5 of the

aforesaid letter Secretary SERRA is relevant which is reproduced as

under;
"Therefore, in light of the direction of Hon,ble
High Court it is decided that petitioner Mr. Zulf
Khan is not entitled to the benefits proposed
CE/PC Earthquake emergency assistance project
vide his proposal Annex.G under the Finance
Division GoP's OMNO.F.4(9) R-111/2008 dated
12.08.2008 and hence the proposal of
CE/PC-Earthquake emergency assistant project is
  11
and court order dated 19.02.2014. A glance
perusal of order supra reveals that this Court
never directed to respondents to pay salary to
the applicant on the basis of Finance Division
Notification dated 12.08.2008.The direction was
to the extent to decided the controversy with
regards to payment of salary to petitioner which
was decided by respondent vide order dated
05.06.2014. The applicant if considerd order of
respondent as unlawful, then he may challenge
the same if so advised as per law, however, we
are of the considered view that the instant
contempt application is not maintainable  .

Despite challenging the order of Secretary/D.G SERRA dated

05.06.2014 the plaintiff filed the instant suit for recovery of money which

had already been discussed before the Hon,ble High Court. Legally he

cannot be allowed to re-agitate the same facts which he had already

narrated before the Hon,ble High Court, and for which gravience of

plaintiff had already been discussed by the Hon, ble High court. The

plaintiff has not challenged the order of the Secretary SERRA dated

05.06.2014, and without challenging the order he cannot calim the same

relief before this forum on which the Hon,ble High Court has given its

verdict.

By appraisement of evidence it appears that during his statement

the plaintiff admitted that he has accepted the order of Secretary SERRA.

During cross examination he responded as under;

+
 &   
        
   ,
12.08.2008
  12

H   
      -  
$  
,
   + 12.08.2008

 
 
Furthermore, it is pertinant to mention here that initially the

plaintiff was appointed against the post of office superintendent in Road

and Bridge sector EEAP on contract basis through an advertisement/

proclamation in newspaper, vide Government order No. SERRA/

admin/1619-43/2009 dated 17.03.2007 as Exh.PPA. That appointment

order of plaintiff was subject to condition. Condition No.1 and 2 are

relevant which are produced as under;

+
  , 
C 
-l   1
 


 
  c  2

Although the period of contract was extendable vide appointment

order Ex.PPA dated 17.03.2007 but the plaintiff has failed to produce any

record which shows that his contract was extended. Admittedly the

original PC-1 was exhausted on 30.06.2009. The plaintiff during Cross

examination admitted as under;

- l   
    &  
- 
 & * +
   ,C

      *       
+     
 k     H Exhibit
& *
 k     
    k    *

  13

cause of action for filling the above titled suit. Hence, this issue is decided

negatively.

Issue No. 2: Whether the controversy in the suit has also been

resolved by the High Court? If yes what is its effect on suit? (OPP)

The Onus to prove this issue was on defendant. The plaintiff filed

the writ petition before the Hon,ble High Court wherein he prayed that:,

"1.The respondent be directed to pay to the

petitioner arears of salary form 01.07.2009 to
30.09.2011, and after 7/2012, calculated according
to the Finance Division notification No.
F.(9)R-III/2008 dated 12.08.2008 (Annexure-E/1)
adapted by the ERRA W.e.f. 01.07.2009 as directed
in the anticipatory approval of the PC-1 "Capacity
Building of public works Department (transport and
communication sector, Health sector and education
sectors) Establishment of PIU for Extension of the
residual works of earthquake emergency assistance
project (GOP funded)" accorded by the chairman
ERRA as per ERRA's letter No. 103(2)/ERRA/PEC/09
(Vol-V) dated 17.11.2011(Annexure-F) and decision
of State Steering committee with regard to pay scale
of the post of superintendent in EEAP as
B-17(Annexure-H/2 & H/3).
2. The respondent be burdened with heavy
exemplary costs keeping in view the fact that they
have been responsible for putting the petitioner to
immense mental tortures by depriving him of his
due rights accruing to him under law for a long time
without any lawful reason;
3. Any other relief to which the petitioner may
  14
i.Decree for recovery of an amount of Rs 2059,166
.00 may kindly be passed in favour of the plaintiff
and against the defendants as per following detail.
ii.Amount due in the light of approved revised PC-1
coupled with the commitment of the defendant that
the plaintiff was entitled to salary as per approved
PC-1 from time to time.
iii.Compensation for mental torture for a period at
least from date of preferring claim to the defendant
for payment as per revised PC-1 and there own
commitment i.e. from 18.11.2014 to date (nearly 22
months)=Rs.12,00,000.00, Total= Rs20,59,166.00.
Cost of litigation may also kindly by awarded.
Separate proceedings may kindly be directed to be
taken against the defendant Secretary/D.G SERRA
for false statement as pointed out in paras 21& 22
above. Any other alternative or further relief to
which the plaintiff may be found titled or which may
be found appropriate by the Hon,ble court may also
kindly be granted.

From the minute analysis of the plea made by the plaintiff in the

present suit as well as taken in the writ petition decided on

19-02-2014 are same regarding the matter Hon,ble High Court directed

the Secretary /DG SERRA to decide the controversy of payment of

salary of petioner as submitted by Chief Engineer Project Co-ordinator

vide letter dated 11-07-2012 and 25-10-2012 respectively within one

month from the receipt of the instant order i.e19.02.2014.

Secretary/D.G SERRA By following the directions of the Hon,ble High

Court decided the controversy vide order dated 05-06-2014.DG.SERRA

submitted that order before Hon,ble High Court in contempt application

  15

OM No. F.4(9) R-111/2008 Dated 12.08.2008 and also mentioned that

the proposed letter of CE/PE -EEAP is not maintainable.

While examining the record and court order dated 19.02.2014 the

Hon,ble High court finally decided the contempt application. However, the

Hon,ble High court while deciding contempt proceeding has given the

plaintiff an opportunity that if he considered order of the respondent as

unlawful, then he may challenge the same if so advised as per law. As we

have already held that the plaintiff despite challenging that order dated

05.06.2014 as unlawful, filed the instant suit which is not maintable. The

defendant proved this issued by producing documentary as well as oral

evidance. The record produced by the plaintiff also support the defendant

version. Hence this issue is decided affirmatively.

Issue No. 3:

Onus to prove this issue was on plaintiff. As held before that the

applicant / plaintiff made the same plea as has already been

decided by Hon,ble High Court vide its Judgement EXPPH. In

Compliance of Judgment of Hon,ble High Court Secretary /DG SERRA

decided the controversy vide letter dated 05-06-2014 . On Compliance

of Judgement EXPPH the Hon,ble High Court dismissed the contempt

proceeding.

The nub of the above discussion is that once matter has

already been decided by apex Courts it cannot be re-agitated

before Sub-ordinate courts. Furthermore, the plaintiff was appointed

  16

was extended. He has also not challenged the order of the secrtary /DG

SERRA Dated 05.06.2014.Therefore he is not entitled to relief as prayed

for Hence, this issue is decided against the plaintiff.

Relief :- The plaintiff has no cause of action as well as he

failed to prove his case. Hence the suit is dismissed. No order as to costs.

File be consigned to the record room after its due completion.

Announced

Dated___________

(NAZIA ASHRAF)

ADDITIONAL DISTRICT JUDGE

JUDGE REFERENCE COURT

MUZAFFARABAD.

This judgment consists of 16 pages. It is dictated corrected

and signed by me.

ADDITIONAL DISTRICT JUDGE

JUDGE REFERENCE COURT

MUZAFFARABAD.
 17