2024 P L C 1079
[Balochistan High Court]
Before Naeem Akhtar Afghan, CJ and Rozi Khan Barrech, J
MUHAMMAD ISHAQUE NOTEZAI
Versus
GOVERNMENT OF PAKISTAN, ESTABLISHMENT DIVISION, CABINET
SECRETARIAT, ISLAMABAD through Secretary and 3 others
C.P. No.384 of 2020, decided on 18th March, 2022.
Constitution of Pakistan ---
----Art. 25---Member National Industrial Relation Commission ---Perks and privileges ---
Discrimination ---Petitioner was Member National Industrial Relation Commission and
aggrieved of his perks and privileges fixed by authorities, which were less than that of Member National Industrial Relation Commission officiating in Multan Bench ---Validity ---
Petitioner was discriminated against with a person similarly placed in another province ---
Petitioner was appointed on same terms and conditions of service as that of Members of National Industrial Relation Commission of other provinces ---High Court directed the
authorities to pay to petitioner pay and allowance equivalent to that paid to the Member of
Multan Bench of National Industrial Relation Commission--- Constitutional petition was
allowed accordingly.
Tahir Humayun and others v. High Court of Balochistan through Registrar and others
PLD 2016 Bal. 56 rel.
Tahir Ali Baloch for Petitioner.
Sanaullah Ababaki, A.A.G. for Respondent/State.
Date of hearing: 7th March, 2022.
JUDGMENT
ROZI KHAN BARRECH, J. ---This order disposes of Constitution Petition No. 384
of 2020 wherein following reliefs have been claimed by the petitioner being Member of the National Industrial Relations Commission (in short "NIRC") Quetta Bench:
"i) That the act of respondents, not allowing the perks and privileges to the petitioner as per his qualification required for appointment for the post in accordance with Rule 5(d) of "The Chairman and Members (Qualifications) Rules, 2016" to be illegal, as such, not maintainable.
ii) Direct the respondents to make payment of petitioner's pay and allowances in accordance with his qualification required for appointment on the post i.e. Rule 5 (d) of "The Chairman and Members (Qualifications) Rules, 2016" i.e. equivalent to Judge of the High Court as a consequential relief.
iii) Any other relief which this Hon'ble Court may deem fit and proper in the circumstances of the case may also be awarded."
2. While filing separate para wise comments, the respondents contested the petition on
the ground that the petitioner was appointed by the Ministry of Overseas Pakistanis and Human Resources Department as a Member of NIRC with the approval of the Federal Cabinet on a contract basis for a period of two years, prepared the contract agreement in respect of the petitioner as Member NIRC in BPS -21 which the incumbent duly signed for its
settlement/approval. The Establishment Division forwarded the same to the Finance Division for its concurrence, whereafter the Finance Division conveyed its concurrence to the draft
contract agreement with fixation of pay equal to BPS -21.
3. After hearing the arguments of learned counsel for the parties, we have perused the
available record.
4. Perusal of the record reveals that the petitioner was appointed as Member NIRC
Quetta Bench vide Notification No.1(12)/2014- NIRC dated 15.11.2017 issued by respondent
No.3, who assumed the charge on 17.11.2017. The respondent prepared a contract agreement
in respect of the petitioner as Member NIRC in BPS -21 duly signed by the petitioner for its
settlement. According to clause 4 of the terms and conditions of the agreement, the pay and allowances of the petitioner have been fixed as that of BPS -21.
5. In view of the above circumstances and agreement signed by the petitioner regarding
his pay and allowances as Member NIRC, the petitioner is not entitled for the pay and
allowances equivalent to the pay and allowances of a Judge of the High Court.
6. Clause 4 of the agreement with respect to pay and allowances of the petitioner as
member NIRC reads as follows:
"He will draw pay allowances and perquisites sanctioned for the post including the
annual increments, his pay and other allied allowances (including three time basic, judicial and utility allowance) will be fixed as per the pay and allowances of Members (B-21) working in the other Benches (Provinces) of N.I.R.C. "
7. In the above clause, it was clearly mentioned that his pay and other allowances were
to be fixed equivalent to pay and allowances of members of NIRC in BPS -21 working in
other benches of NIRC.
The pay -slips of the petitioner and members of the other benches of NIRC are also
available on record. The comparison of pay and allowances of the petitioner with one Ex-Member of Multan Bench who was appointed with the petitioner is as follows:
Ser. Description / Head Muhammad Ishaque
Notezai, Ex - Member,
N.I.R.C, Quetta
Bench Muhammad Zubair
Aziz Cheema, Ex-
Member, N.I.R.C,
Multan Bench
1. Basic Pay 81,720 136,720
2. Personal Pay, Maximum
Grade - 0
3. Senior Post Allowance 0 1,350
4. Entertainment Allowance 700 700
5. House Rent Allowance 17,469 17,469
6. Judicial Allowance 14,000 14,000
7. Special Judicial Allowance 77,640 145,080
8. Utility Allowance 8,000 8,000
9. Medical Allowance 4,353 5,087
10. Mobile Phone Charges 0 0
11. Ad hoc Relief Allowance,
2016 0 13,672
12. Ad hoc Relief Allowance,
2017 8,172 13,672
13. Moneti of Resid teleph Ch 0 0
14. Ad hoc Relief, 2018 8,172 6,836
15. Ad hoc Relief, 2019 4,086 0
Total 224,812 362,586
8. According to the above table, there is a clear difference between the pay and
allowances of the petitioner and other members of NIRC. The petitioner has drawn pay of Rs.224,812/ - per month, but on the other hand, Mr. Zubair Aziz Cheema, Ex- Member NIRC
Multan Bench, drew a salary of Rs.362,86/ -.
9. The petitioner performs one and the same function as members of NIRC in all the
other provinces, and it is not that the members of NIRC in the other provinces perform any
different functions.
10. It is a matter of record that the petitioner was appointed on the same terms and
conditions of service as that of other members of the NIRC. The petitioner has been discriminated with the person similarly placed in the other provinces. It is worthwhile to mention here that the petitioner has also sent a letter dated 21st February 2020 to the Accounts Officer (GAD), AGPR (Sub -Office), Quetta, stating therein that "the pay,
allowances and other prerequisites are not fixed as per the entitlement of the petitioner in pursuance of clause -4 of the terms and conditions of contract, however, the undersigned is
receiving the same under protest subject to challenge and decision of the competent court of law".
11. The question involved in this petition is whether the above classification in question
is contrary to Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution").
12. While dealing with the Constitution, it would be appropriate to examine the different
Articles of the Constitution relevant for the present purposes.
Chapter -2 of the Constitution sets out the principles known as Principles of Policy,
and it is the responsibility of each organ and authority of the State, and of each person
performing functions on behalf of an organ or authority of the State, to act in accordance
with such principles in so far as they relate to the functions of the organ or authority.
In view of Article 30 of the Constitution, the responsibility of deciding whether any
action of an organ or authority of the State or of any person performing functions on behalf
of an organ or authority of the State is in accordance with the Principle of Policy is that of the organ or authority of the State, or the person concerned.
In view of Article 37 of the Constitution, the State is again responsible for promoting
social justice and eradicating social evils. In view of Article 38 of the Constitution, the promotion of the social and economic well -being of the people is again the duty of the State.
Article 25 of the Constitution guarantees to every person the right to equality before
the law and the equal protection of the laws. The expression "equal before the law" is a declaration of equality of all persons irrespective of gender, race, religion, colour, caste, creed, status and language etc., implying thereby the absence of any privilege in favour of any individual.
The guiding principle of Article 25 is that all persons and things similarly
circumstanced shall be treated alike both in respect of privileges conferred and liabilities imposed. Equality before the law means that amongst equals should be equal and equally administered and that like should be treated alike.
13. The public functionaries were required to treat all persons placed in similar
circumstances alike under equal doctrine as held by this court in PLD 2016 Balochistan 56 (Tahir Humayun and others v. High Court of Balochistan through Registrar and others).
In such circumstances, High Court has to exercise its constitutional jurisdiction in
terms of Article 199 of the Constitution of Pakistan to examine any Act, notification, the Act of parliament for delegated legislation, including the notification, which violates any provision of the Constitution, including fundamental rights and same can be struck down as no unfettered powers/discretion are available to the Authorities, which can be applied in a discriminatory manner.
14. It may also be added here that the Constitution is a living and organic document while
interpreting the Constitution's expensive and dynamic approach and interpretation is to be adopted. Fundamental rights include equality in terms and conditions of the service Articles 27, 37(d) and 38(e) are to be read with Articles 4 and 25 of the Constitution 1973.
15. According to the detailed difference between the pay and allowances of the petitioner
and that of other members of NIRC, the petitioner received Basic Pay of Rs.81,720/ - while
the member of NIRC Multan Bench who was appointed on the same date received Basic Pay
of Rs.136,720/ -. The petitioner received Rs.77,640/ - as a special judicial allowance while the
member of NIRC Multan Bench received Rs.145,080/ -. The petitioner received a Medical
Allowance of Rs.4353/ - but on the other hand, the member of NIRC Multan Bench received
Rs.5087/ -. The petitioner's Adhoc Relief Allowance of 2017 was Rs.8172/ - whereas the
member of NIRC Multan Bench received Rs.13,672/ - as Adhoc Relief Allowance of 2017.
16. The above is sufficient to make it clear that the petitioner is being discriminated
against with a person similarly placed in other provinces. It is a matter of record that the petitioner was appointed on the same terms and conditions of service as that of the members of NIRC of other provinces. Thus, the learned AAG would not be legally justified in opposing the instant relief.
Under such circumstances, the petitioner is also entitled to the allowance equivalent
to that paid to the member at Multan Bench of the NIRC.
For the above reasons and to avoid disparity of the pay and other allowances of the
employees of the same class, the instant petition is partly allowed. Consequently, the petitioner is held entitled to receive Basic Pay of Rs. 136,720/ - instead of Rs.81,720/ -, the
allowances, i.e. Special Judicial Allowance (Rs.145,080/ - instead of Rs.77,640/ -), Medical
Allowance (Rs.5087/ - instead of Rs.4353/ -) and Ad hoc Relief of 2017 (Rs.13,672,/ - instead
of Rs.8172/ -) equal to that of Member of NIRC Multan Bench as mentioned hereinabove.
The respondents are directed to pay the arrears of the above allowances to the petitioner accordingly.
MH/22/Bal.
Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.