2023 P L C (C.S.) 457
[Balochistan High Court]
Before Naeem Akhtar Afghan, CJ and Abdul Hameed Baloch, J
MUHAMMAD WASSAY TAREEN
Versus
GOVERNMENT OF BALOCHISTAN through Chief Secretary and 2 others
C.P. No.523 of 2021, decided on 21st September, 2021.
Constitution of Pakistan ---
----Arts.25 & 199 ---Constitutional petition ---Discrimination ---Superior Judicial Allowance,
grant of ---Petitioner was Provincial Mohtasib (Ombudsman) and was aggrieved of non -
payment of Superior Judicial Allowance to him which was approved by Governor in his
favour and previous Ombudsmen had also been receiving the allowance ---Validity ---
Discrimination met with petitioner was not based on any rational ground or reasonable
classification and was devoid of intelligible diffe rentia ---In order to avoid discrimination,
order passed by Governor for paying Superior Judicial Allowance to petitioner was not
suffering from any illegality or irregularity ---Chief Minister erred in facts as well as law
while rejecting summary for approv al of payment of Superior Judicial Allowance ---High
Court directed Provincial Government to make payment of Superior Judicial Allowance to
petitioner in pursuance to the order passed by Governor of the Province ---Constitutional
petition was allowed in circ umstances.
Pakcom Limited v. Federation of Pakistan PLD 2011 SC 44 and N.W.F.P Public
Service Commission v. Muhammad Arif 2011 SCMR 848 rel.
Naseebullah Tareen, Tahir Ali Baloch, Nadir Ali Chalgari and Behram Khan Tareen
for Petitioners.
Zahoor Ahmed B aloch, Assistant Advocate General for Respondents.
Date of hearing: 24th August, 2021.
JUDGMENT
NAEEM AKHTAR AFGHAN, CJ. ----In the instant constitution petition, the
petitioner (Ex -Provincial Ombudsman/Mohtasib Balochistan) has claimed the following
relief:
"It is therefore, respectfully prayed that keeping in to consideration the above facts
and circumstances, petition may kindly be allowed by declaring that:
A. Since the Honorable Governor has granted Superior Judicial Allowance in favour of
petitioner which is under his mandate, as such, the respondents have no authority to
interfere in the same hence liable to release the amount in favour of the petitioner;
B. To direct the respondents to release the amount demanded by Ombudsman Secretariat
through letter dated 28.09.2020 forthwith and its rejection dated 16.03.2021 made by
respondents may kindly be set aside.
C. Cost of the proceedings may also be awarded;
D. Any other relief may kindly be granted in favour of the petitioner which this
Honourable Court deems fit and proper in the circumstances of the case".
2. The petition has been contested by respondent No.3 by filing parawise comments with
the contention that the petitioner accepted all the terms and conditions of his appointment
and he was entitled only for those benefits which were accepted by him; the "Superior
Judicial Allowance" was not allowed to him at that time, therefore he is not entitled for the
subject benefit after expiry of contractual period.
3. On 10.08.2021, learned AAG stated that respondents Nos.1 and 2 are not filing
separate para -wise comments and they are relying upon para -wise comments filed by
respondent No.3.
4. After hearing learned co unsel for petitioner and learned Assistant Advocate General,
we have perused the available record which reveals that the petitioner was appointed as
Provincial Ombudsmen for the Province of Balochistan by the then Governor Balochistan
vide order dated 03.0 6.2013 without specifying therein the terms and conditions of service of
the petitioner with stipulation that same will be issued on joining the office by the petitioner.
5. The petitioner was administered oath as Provincial Ombudsmen Balochistan on
09.06. 2013. The petitioner assumed the charge of Provincial Ombudsmen Balochistan on
11.6.2013 and same was also confirmed by Principal Secretary to Governor Balochistan vide
letter dated 12.06.2013.
6. The petitioner was not paid monthly salary and terms and co nditions of his service
were also not settled/issued due to which the petitioner invoked constitutional jurisdiction of
this Court by filing C.P. No.570 of 2014.
7. During pendency of C.P. No.570/2014, the then Governor Balochistan issued
Notification date d 07.01.2015 with regard to terms and conditions of service of the petitioner
as Provincial Ombudsmen Balochistan w.e.f. 11.06.2013 which was not including "Superior
Judicial Allowance".
8. Being partly satisfied with the terms and conditions of his servic e and being
aggrieved of non -granting "Superior Judicial Allowance" by the then Governor Balochistan,
the petitioner solicited permission of this Court in C.P. No.570/2014 to take up the matter
with the Government.
9. Constitutional Petition No.570 of 2013 was disposed of by this Court vide order
07.01.2015 in the following terms:
"In view of above, the petition to the extent of the pay and allowances excluding
Superior Judicial Allowance has borne fruit, consequently the same is disposed of.
The petitione r would be at liberty to agitate his grievance if any before the proper
forum, subject to all just exceptions".
10. Subsequent to the above, the petitioner submitted application dated 21.01.2015 to the
Governor Balochistan for grant of "Superior Judicial A llowance" as terms and conditions of
his service.
11. The above application remained pending without any decision due to which the
petitioner submitted reminder dated 01.09.2015 to the Governor Balochistan, but the
grievance of the petitioner was not redre ssed due to which the petitioner again invoked
constitutional jurisdiction of this Court by filing C.P. No.973 of 2015.
12. Constitutional Petition No.973 of 2015 was dismissed by this Court vide judgment
dated 31.8.2018, operating portion whereof reads as follows:
"4. We have heard the learned counsel for the parties and have gone through the
record. It is true that the qualification for the appointment of an Ombudsman is
equivalent to the qualification for the elevation of a Judge of a High Court, howeve r
the terms and conditions of the service is governed by Section 6(1) of the Ordinance,
according to which, the Governor concerned has power to determine the same.
Section 6(1) of the Ordinance is reproduced as under for ready reference.
6. Terms and cond itions of service and remuneration of Ombudsman. ---
(1) The Ombudsman shall be entitled to such salary, allowances and privileges and
other terms and conditions of service as the Governor may determine and these terms
shall not be varied during the term of office of an Ombudsman.
5. According to the above provision of law, fixation of the terms and conditions of the
Ombudsman is the discretion of the Appointing Authority, therefore, because of
having a qualification of a judge of a High Court does n ot entitles the petitioner to
receive the Superior Judicial Allowance. No doubt that previously, the Ombudsman
were granted Superior Judicial Allowance, but after the above referred judgment of
the Hon'ble Supreme Court, it was held that the office of the Ombudsman does not
fall within the category of Court or the Tribunal, whereas, the Superior Judicial
Allowance has been allowed only to the Hon 'ble Judges of High Court, the Hon 'ble
Supreme Court and Chairman of same Tribunals. Because the Ombudsman is n ot a
Judicial Officer, therefore, it was not granted the said allowance by the Governor. It is
a fact that the sitting Ombudsman has also not been granted the Superior Judicial
Allowance, for the same reason, therefore the plea of a discrimination raised b y the
petitioner has no force in it. Besides, as per the Ordinance, settlement of the terms and
conditions is since the discretion of the appointing authority, therefore, whatever term
and condition is settled, by the authority, it is for the person, desig nated as an
Ombudsman, either to accept or refuse it. Admittedly, the notification containing the
terms and conditions of the service was issued on 7th January 2015, but the petitioner
continued his office and completed his tenure on the same term and cond itions, which
amounts to acceptance of the same.
6. Without prejudice to the above, it prima facie appears that the petitioner wants us
to interfere in the discretion of the appointing authority, but he has failed to point out
violation of any provision o f the Ordinance or any other law by the Governor
Balochistan, by not allowing the Superior Judicial Allowance to the petitioner. The
discretion of the appointing authority is not unfettered; therefore, the Governor did
not grant the Superior Judicial Allow ance to a Non -Judicial Officer. Learned counsel
for the petitioner has failed to point out any illegality, irregularity, jurisdictional
defect or any reason warranting us to interfere in the notification impugned.
Thus, in view of above, the petition is d ismissed".
13. The petitioner challenged the above judgment before the Hon'ble Supreme Court of
Pakistan by filing CPLA No.284 -Q of 2018 which has been disposed of by the Hon'ble
Supreme Court of Pakistan vide order dated 24.05.2021 in the following terms:
"The learned ASC for the petitioner submits that grievance of the petitioner has been
redressed to the extent that the Governor of Balochistan, vide order dated 16.09.2020
has allowed the allowance, which is the subject matter of this petition to the
petitioner. However, he has filed another petition seeking implementation of the order
and other reliefs.
2. In this view of the matter, this petition is disposed of. However, the petition filed
by the petitioner shall be decided on its own merits, in accordance with law and
without being prejudiced by the order of the High Court".
14. The order dated 16.09.2020 passed in favour of petitioner by the incumbent Governor
Balochistan, implementation whereof has been sought by the petitioner by filing the instant
constitution petition reads as follows:
"Mr. Muhammad Wassay Tareen, Ex -Provin cial Ombudsman on the subject has
submitted an appeal/application (F/A). The decision of the High Court was also
presented in the matter vide (F/B) while the terms and conditions issued in favour of
the applicant is at (F/C).
2. Mr. Muhammad Wasay Tareen pleaded that all the three Ex -Provincial
Ombudsmen before him had been allowed Superior Judicial Allowance by the
Honorable Governor Balochistan, including the current Provincial Ombudsman Mr.
Abdul Ghani Khilji who is also recently granted SJ Allowance fr om date of his
appointment.
3. Keeping in view the precedence and practice Mr. Muhammad Wasay Tareen
Advocate, may also be sanctioned/allowed to get Superior Judicial Allowance w. e.f.
June 2013.
4. This order be shared with the current Provincial Ombuds man to process his case
under the law".
15. In pursuance of above, the office of Provincial Ombudsman (Mohatsib Secretariat
Balochistan ) calculated Superior Judicial Allowance for the tenure of the petitioner w.e.f.
11.06.2013 to 10.06.2017 amounting to Rs.1,13,42,093/ -.
16. Request was made by Provincial Ombudsman (Mohatsib Secretariat Balochistan) to
Secretary Finance Department Governm ent of Balochistan vide letter dated 28.09.2020 to
release the above amount for the petitioner under the Head of Superior Judicial Allowance.
Summary was forwarded to Chief Minister Balochistan by Chief Secretary Balochistan and
following decision was made by Chief Minister Balochistan:
"Case already stands disposed off, and as such be consigned to record".
17. Perusal of record reveals that in the year 2001 Malik Sikandar Advocate appointed as
Provincial Ombudsman (Mohtasib) Balochistan was paid "Superior Judicial Allowance" @
Rs. 6000/ - per month in pursuance of Notification dated 13.06.2001 issued by the then
Governor Balochistan.
Justice (R.) Fazal -ur-Rehman appointed as Provincial Ombudsman (Mohtasib)
Balochistan in the year 2005 was also granted "Supe rior Judicial Allowance" as admissible to
a Judge of High Court vide Notification dated 21.12.2005.
Mr. Akbar Ali Baloch Advocate appointed as Provincial Ombudsman (Mohtasib)
Balochistan was also granted "Superior Judicial Allowance" as admissible to a Ju dge of High
Court vide Notification dated 26.05.2009.
18. Mr. Abdul Ghani Khilji Advocate was appointed as Provincial Ombudsman
(Mohtasib) Balochistan in July 2017 but he was not paid "Superior Judicial Allowance" till
June 2020. However by the order of Go vernor Secretariat he was paid "Superior Judicial
Allowance" as admissible to a Judge of High Court w.e.f. 01.07.2020.
19. In view of all the above, we have no hesitation to conclude that the petitioner has met
with discrimination which is unwarranted unde r Article 25 of the Islamic Republic of
Pakistan, 1973 which reads as follows:
"25. (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."
20. According to settled principles of law, all persons similarly situated or circumstanced
shall be treated alike. Reliance in this regard is plac ed on the case of Pakcom Limited v.
Federation of Pakistan, PLD 2011 Supreme Court 44.
21. In view of dictum laid down by the Hon'ble Supreme Court in the case of N.W.F.P
Public Service Commission v. Muhammad Arif, PLD 2011 SCMR 848, all persons subjected
to a law should be treated alike under all circumstances and conditions both in privileges
conferred and in the liabilities imposed. The equality should not be in terms of mathematical
calculation and exactness. It must be amongst the equals. The equality has to be between
persons who are placed in the same set of circumstances.
22. The discrimination met with by the petitioner is not based on any rational ground or
reasonable classification and is devoid of intelligible differentia.
23. Keeping in view of principle of equality and in order to avoid discrimination, the
order dated 16.09.2020 passed by the incumbent Governor Balochistan for paying "Superior
Judicial Allowance" to the petitioner w.e.f. 11.06.2013 to 10.06.2017 amounting to
Rs.1,13,42,093/ - is held not suffering from any illegality or irregularity.
24. While rejecting the Summary for approval of payment of "Superior Judicial
Allowance" to the petitioner w.e.f. 11.06.2013 to 10.06.2017 amounting to Rs.1,13,42,093/ -,
the Chief Minister Balochistan has badly erred in facts as well as law.
25. In view of the order dated 24.05.2021 passed by the Hon'ble Supreme Court in Civil
Petition No.284 -Q of 2018 (reproduced in para -13 supra), rejection of Summary by Chief
Minister Balochistan for payment of "Sup erior Judicial Allowance" to the petitioner w.e.f.
11.06.2013 to 10.06.2017 amounting to Rs.1,13,42,093/ - is not sustainable.
For the above reasons, the constitution petition is accepted. The respondents are
directed to make payment of "Superior Judicial Allowance" to the petitioner w.e.f.
11.06.2013 to 10.06.2017 amounting to Rs.1,13,42,093/ - in pursuance of order dated
16.09.2020 passed by the incumbent Governor Balochistan.
MH/167/Bal. Petition allowed.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,
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