2011 P L C (C.S.) 1387
[Quetta High Court]
Before Muhammad Noor Meskanzai and Naeem Akhtar Afghan, JJ
QAISAR KHAN and 4 others
Versus
CHIEF SECRETARY, GOVERNMENT OF BALOCHISTAN, CIVIL
SECRETARIAT, QUETTA and another
Constitutional Petition No.519 of 201 0, decided on 21st June, 2011.
(a) Constitution of Pakistan ---
----Arts. 25, 121(b) & 199 ---Constitutional petition ---Discrimination ---Provincial
Consolidated Fund ---Petitioners were members of establishment of Balochistan High
Court and their grievanc e was that they should also be granted Special Judicial Allowance
with effect from 1 -7-2009 ---Validity ---All members of establishment of Supreme Court,
Federal Shariat Court and High Courts of other provinces had been granted Special
Judicial Allowance wit h effect from 1 -7-2009 and refusal of same to members of
establishment of High Court of Balochistan with effect from 1 -7-2009, would amount to
discriminatory treatment in violation of Art.25 of the Constitution ---Different treatment
for persons similarly c ircumstanced would be unjustified and such discrimination was
unjustified, without rational and reasonable classification ---Such unreasonable or
arbitrary classification was contrary to the spirit of Art.25 of the Constitution ---High
Court directed the aut horities to pay Special Judicial Allowance equal to three times of
initial of the substantive pay scale to the members of High Court of Balochistan with
effect from 1 -7-2009 and notification should be issued ---Petition was allowed
accordingly.
PLD 1957 SC 9; AIR 1985 SC 1124; AIR 1979 SC 478; Government of Punjab v.
Mubarak Ali Khan PLD 1993 SC 375 and Mubarak Ali Khan v. Government of Punjab
1990 CLC 136 ref.
(b) Constitution of Pakistan ---
----Art. 25 ---Equal protection of law ---Principle ---Equal protection of law does not
envisage that every citizen is to be treated alike in all circumstances but it contemplates
that persons similarly situated or similarly placed are to be treated alike ---Though
reasonable classification is permissible but it mus t be founded on reasonable distinction
or reasonable basis.
Brig. (Retd.) F.B. Ali and another v. The State PLD 1975 SC 506 and I.A.
Sharwani v. Government of Pakistan 1991 SCMR 1041 rel.
(c) Constitution of Pakistan ---
----Part II, Chapter 1 ---Fundamental rights ---Financial constraints and inconvenience ---
Question of financial constraints is irrelevant when High Court adjudicates on the effects
of fundamental rights guaranteed by the Constitution, nor inconvenience can be allowed
to override the Co nstitutional provisions guaranteeing fundamental rights to all citizens of
Pakistan.
PLD 1957 Quetta 1 and Accountant -General Punjab and another v. Ch. Qadir
Bakhsh and another PLD 1983 Lah. 246 rel.
Syed Athar Aftab, Syed Ayaz Zahoor, Ali Ahmed Kurd and Nadir Ali Chhalgari
for Petitioners.
Naseer Ahmed Bangulzai, Asstt. A. -G. for Respondents.
JUDGMENT
NAEEM AKHTAR AFGHAN, J .--- Petitioners who are working as Private
Secretaries and Readers in this Court have filed instant petition on behalf of Me mbers of
Establishment of this Court seeking the following relief: ---
(a) That the action of respondents in refusing Special Judicial Allowance Equal to
three times of initial of the substantive Pay Scale w.e.f. lst July, 2009, is illegal
and discriminator y.
(b) By issuing Writ the respondents may be directed to grant Special Judicial
Allowance Equal to three times of initial of the substantive Pay Scale w.e.f. 1st
July, 2009, to the Establishment of High Court.
(c) Any other relief, deemed fit and proper i n the circumstances of the case may also
be awarded in the interest of justice."
2. Facts of the case are that the Members of Establishment of Hon'ble Supreme Court
and Lahore High Court were granted Special Judicial Allowance equal to three times of
the i nitial of the substantive pay scale with effect from 1st July, 2009 where -after
Government of Sindh vide Office Memorandum No.FD(SR -III)5/4 -209(A) dated 20th
May, 2010 allowed said allowance with immediate effect, but the Sindh High Court vide
order dated 21st May, 2010 allowed said allowance to the Members of Establishment of
Sindh High Court with effect from 3rd August, 2009. The Judicial Officers and
employees of Peshawar High Court also filed Writ Petition No.1098, wherein the matter
was amicably settle d resulting in issuing directions to Government of Khyber
Pakhtunkhwa to pay Special Judicial Allowance on the basis of one initial basic pay plus
50 percent of running basic pay with arrears of one initial pay but from 1st July, 2009.
In view of above si tuation, to keep harmony and equality in the pay and
allowances of the Establishment of the High Court of Balochistan, the respondent No.2
was approached by the Registrar High Court of Balochistan, Quetta vide letter dated 22 -
4-2010 mentioning therein that it has become imperative that employees of the High
Court Establishment are extended the benefit of the Special Judicial Allowance and in
this regard request was made to accord approval/allocate funds for the grant of Special
Judicial Allowance equal to t hree times of the initial substantive pay scale in favour of
the staff of the Establishment of High Court of Balochistan by issuing necessary
Notification. The respondent No.2 vide letter dated 11 -5-2010 stated that the department
has already conveyed the financial position of the province and decision of the
government on the subject vide its letter dated 15 -4-2009 wherein it was stated that
Balochistan Provincial Government has been facing financial crises for the last many
years and its account with the State Bank of Pakistan is running under debit, therefore,
financial position does not allow to raise the non -development expenditures. It was
further mentioned in the referred letter dated 15 -4-2009 that in view of the circumstances
explained above, the co mpetent authority has not agreed with the proposal for grant of
three times basic pay in the form of allowance, however, the subject proposal shall be
considered as and when financial position of the province is improved.
Subsequently on 10 -6-2010 again a letter was addressed by the Registrar High
Court of Balochistan to respondent No.2 with reference to earlier correspondence for
allocation of funds for the grant of Special Judicial Allowance to the Establishment of the
High Court of Balochistan w.e.f. 1 -7-2009 and it was again requested to allocate the
required funds for the next year budget of this court so that the disparity in allowances
amongst the High Court Establishment is removed . No response was made by the
respondents to the request/letter date d 10 -6-2010, however; on 2 -8-2010 a summary was
moved by respondent No.2 to worthy Chief Minister Balochistan to " pend the
proposal/request till the Provincial Government is financially stable ". The worthy
Chief Minister Balochistan passed following remark s on the summary: ---
"We may pend the matter till we get information from other federating
units."
The record reveals that in light of worthy Chief Minister's remarks respondent
No.2 addressed letters to Secretary, Government of Pakistan, Finance Divisio n, Islamabad
and Secretaries Finance of the other provinces seeking information about prevailing
position of the subject allowance. Subsequently despite getting information from all the
federating units about grant of Special Judicial Allowance to the Memb ers of
Establishment of Hon'ble Supreme Court of Pakistan, Federal Shariat Court and High
Courts of other provinces, the respondents did not grant the said allowance to the
Members of Establishment of High Court of Balochistan and in the circumstances the
instant petition was filed seeking above relief for the Members of Establishment of High
Court of Balochistan.
No counter -affidavit was filed to the petition by respondents Nos.1 and 2,
however, respondent No.2 filed para wise comments on 2nd September 20 10, which were
adopted/relied upon by respondent No.l. On merits entitlement of the Members of
Establishment of High Court for grant of Special Judicial Allowance with effect from 1st
July, 2009 was not denied/contested, however, it was pleaded that the Pr ovincial
Government is financially hard pressed and the present rains and flood have collapsed the
Agriculture infrastructure and has badly affected the economical and financial position of
the Province and it was prayed that since the financial position o f the Province of
Balochistan is not good, as such, the proposal for grant of Special Judicial Allowance
may be kept pending till better time.
3. During pendency of petition vide order dated 3rd January, 2011 a Committee
comprising of Mr. Dostain Jamaldini , Secretary Finance, Mr. Nasrullah Achakzai,
Additional Advocate -General, Registrar of this Court and Mr. Ali Ahmed Kurd counsel
for petitioners was constituted to consider the modality and also to take into consideration
the steps taken by the Hon'ble Sup reme Court of Pakistan and other Provinces in this
behalf. The Committee held its meeting on 7th and 10th January, 2011. The issue with
regard to payment of Special Judicial Allowance to the Members of Establishment of
High Court and Judicial Officers was unanimously resolved and mode of payment with
effect from 1st January, 2011 was agreed as follows: ---
(i) 1st Instalment at the rate of one initial basic with effect from 1st January, 2011.
(ii) 2nd Instalment at the rate of one initial basic with effect f rom 1st July, 2011, with
six months arrears of one basic pay commencing from 1st January to 30th June,
2011.
(iii) 3rd Instalment at the rate of one initial basic with effect from 1st January, 2012,
with six months arrears one basic pay commencing from 1st July, 2011 to 31st
December, 2011.
(iv) Ad hoc Allowance 2010 may be discontinued from the salaries of the Members of
District Judiciary/Establishment of High Court of Balochistan from the date of 2nd
Instalment i.e. w.e.f. 1st July, 2011.
However, issue with regard to arrears of 18 months i.e. the payment of the said
allowance with effect from 1st July, 2009 up to 31st December, 2010 could not be
decided due to deadlock created in view of the stand taken by Secretary Finance, that the
Government is not i n a financial position to pay the same. Report with regard to the
minutes of meeting was submitted to this Court, in pursuance whereof this Court passed
order on 20th January, 2011 and the petition to the extent of above agreed terms stood
decided, however ; with regard to the arrears w.e.f. 1st July, 2009, since there was no
consensus, therefore, to such extent the petition was deemed pending.
4. Syed Ayaz Zahoor, Advocate for petitioners argued that as per Article 25 of the
Constitution of Islamic Republic of Pakistan, 1973 all citizens are to be treated equally
without any discrimination and are entitled to claim equal protection of law without any
distinction. He further argued that the above Article though permits reasonable
classification but prohibits discrimination. He stressed that the Members of Establishment
of High Court of Balochistan are in similarly situated circumstances with that of the
Members of Establishment of Hon'ble Supreme Court of Pakistan, Hon'ble Federal
Shariat Court as well as High Courts of other Provinces who have been granted the said
allowance with effect from 1st July, 2009, thus; Members of Establishment of this Court
are also entitled to be treated alike without any discrimination with regard to the payment
of the arrears wit h effect from 1st July, 2009. He emphasized that the respondents cannot
refuse payment of arrears of the Special Judicial Allowance to the Members of the
Establishment of High Court of Balochistan on the ground of financial constraint in view
of Article 12 1 of the Constitution of Islamic Republic of Pakistan, 1973 which inter -alia
provides that the administrative expenses, including the remuneration payable to the
officers and servants of the High Court shall be expenditure charged upon the Provincial
Conso lidated Fund. He further argued that the contest of the respondents rests only on
financial constraint but they have failed to file a single document in support of their such
plea. Learned counsel placed reliance on Budget Speech by Minister Finance on Ann ual
Budget, 2010 -2011, revealing that the Federal Government has waived off the liability
worth Rs.17 billion of the Province of Balochistan and further according to new formula
of NFC Award, 2009 resources of the Balochistan Province have been enhanced fr om 30
billion to 83 billion. The Federal Government has agreed to provide arrears of Gas
Development Surcharge since 1954 worth Rs.120 billion and to provide Rs.10 billion
under Aghaz -e- Haqooq -e-Balochistan Package.
On the other hand, learned Assistant A dvocate -General appearing on behalf of
respondents did not contest/oppose the petition on merits rather with vehemence pleaded
the financial constraint of the Province of Balochistan in making the payment of arrears
of Special Judicial Allowance for 18 mon ths with effect from 1st July, 2009 up to 31st
December, 2010.
5. We have considered the arguments put forth by the learned counsel for the parties
and have gone through the record as well.
Perusal of record reveals that vide letter dated 3rd March, 2010 the Prime Minster
of Pakistan was pleased to sanction/enhance allowances and perks for the Members of
Establishment of Supreme Court of Pakistan with effect from 1st July, 2009 including
Special Judicial Allowance equal to three times of initial of the Sub stantive Pay Scale.
Similarly the said allowance was sanctioned in favour of Members of Establishment of
Federal Shariat Court of Pakistan. For the Members of Establishment of Lahore High
Court, the said allowance was sanctioned with effect from 1st July, 2009 vide letter dated
4th August, 2009. As far as Members of Establishment of Sindh High Court is concerned
they too were allowed said allowance with effect from 3rd August, 2009 vide office
memorandum dated 24th May, 2010. The Members of Establishment of Peshawar High
Court were also allowed Special Judicial Allowance with effect from 1st July, 2009 vide
Notification dated 27th July, 2010 issued pursuant to judgment passed by Peshawar High
Court in Writ Petition No.1098 of 2010 decided on 6th July, 2010.
6. Since the Members of Establishment of High Court of Balochistan compared to
the employees of the Establishment of Hon'ble Supreme Court of Pakistan, Federal
Shariat Court and the High Courts of the other Provinces are working under the same set
of circu mstances and according to principle of equality all persons similarly
circumstanced shall be treated alike both in privileges conferred and liabilities imposed,
hence they too deserve for equal treatment and protection of law. In this regard Article 25
of the Constitution of Islamic Republic of Pakistan, 1973 is very clear which lays down
that:---
25. Equality of citizens .--- (1) All citizens are equal before law and are entitled to
equal protection of law.
(2) There shall be no discrimination on the basis of sex.
(3) Nothing in this Article shall prevent the State from making any special provision
for the protection of women and children."
In view of the principle embodied in Article 25 of the Constitution when all
relevant considerations are the same, the persons who are holding identical posts and are
discharging similar duties, shall not be treated differently. In this regard reliance is placed
on the judgments reported in PLD 1957 SC 9, AIR 1985 SC 1124 and AIR 1979 SC 478.
The Hon'ble Supreme Court in case of Govt. of Punjab v. Mubarak Ali Khan PLD
1993 SC 375 has already held that since employees of High Courts perform almost
identical functions as do the employees of Hon'ble Supreme Court and Federal Shariat
Court, as such; they cannot be discriminat ed against in respect of an allowance which has
been allowed to the employees of these two Courts. Relevant observations there from are
reproduced hereinbelow: --
"The employees of the Federal Shariat Court and the Supreme Court of Pakistan
have been allow ed such an Allowance. The High Court employees perform almost
identical functions as do the employees of these two other Courts perform. The
employees of all the three Courts have been dealt with constitutionally by the
same provision reproduced above. In the circumstances, the High Courts
employees cannot be discriminated against. The necessary provision of
Secretariat/Personal Allowance had to be made in respect of such employees as
was made in the case of the Federal Shariat Court and the Supreme Court
employees."
The petitioners are claiming grant of Special Judicial Allowance with effect from
1st July, 2009 to the Members of the Establishment of High Court of Balochistan. No
counter -affidavit was filed by the respondents and the entitlement and locus s tandi of
Establishment of High Court of Balochistan was not denied on merits. The grounds for
refusal to grant Special Judicial Allowance equal to three times of initial substantive pay
scale appears to be (i) lack of prior approval of Chief Justice and (i i) financial constraints.
Though in para wise comments respondents did not assert the first ground but
minutes of meeting dated 7 -1-2011 reflect that prior approval by the Chief Justice was
treated a condition precedent for the allocation of funds. Releva nt contents from
minutes of meeting dated 7 -1-2011 reads as under: ---
"At the onset, Mr. Dostain Jamaldini, emphatically stated that in view of the
Notification dated 16th October, 1995, the Hon'ble Chief Justice has full powers in
financial matter , thus, without first approval of the Hon'ble Chief Justice, the
Finance Department cannot consider the request of petitioners and Judicial
Officers, to grant then(them) three times initial basic pay as Special Judicial
allowance. Earlier to this also, the Hon'ble Chief Justice had been granting the
Judicial Allowance, Utility Allowance etc. by exercising such powers"….
Now it has to be seen as to whether the Chief Justice has granted approval for
grant of said allowance to the Establishment of High Court of Balochistan or otherwise?
In this regard Letter No.359/ACCOUNT, 2010 dated 22 -4-2010 addressed by Registrar,
High Court of Balochistan to Secretary, Government of Balochistan, Finance Department
is very much relevant and would unearth the position: ---
Subject: - GRANT OF SPECIAL JUDICIAL ALLOWANCE EQUAL TO THREE
TIMES OF THE INITIAL OF SUBSTANTIVE PAY SCALE TO THE
MEMBERS OF ESTABLISHMENT OF HIGH COURT OF
BALOCHISTAN, QUETTA.
I am directed to refer to letter No.F.4(1)/2008 -A-II dated 3 -3-2010 o f
Government of Pakistan, Ministry of Law, Justice and Parliamentary Affairs,
Islamabad and Letter No.F.D.SR -1-9-1/99 dated 4 -8-2009 of Government of the
Punjab, Finance Department (Copy enclosed) on the subject noted above and to
say that the Hon'ble Supreme Court and Lahore High Court were
sanctioned/enhanced/ approved the Special Judicial Allowance equal to three
times of the initial of the substantive pay w.e.f. 1st July, 2009. In order to keep
harmony and equality in the pay and allowances of the Establishment of the
Supreme Court of Pakistan and Establishment of Lahore High Court, Lahore, it
has become imperative that the employees of the High Court Establishment are
extended the same benefit of this Special allowance. Detail of Staff working in t he
High Court of Balochistan along with the expenditure involved, is as under: ---
Particulars of posts No.
of
Post 3 times of
Initial of
Substantive
Pay Scale Total
Involvement
of Budget
Registrar 1 27,680 996,480
District and
Sessions Judge,
Inspection 1 25,880 931,680
Director -General
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