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TheHon’ble Chief Justice while agreeing to the grant of this Special Judicialallowance equal to three times of the initial substantive pay to theEstablishment of High Court of Balochistan, Quetta, has desired that sincefinancial implications are involved, therefore the Government may be approachedto provide above required fund in the current financial year i.e. 2009-2010 andalso to include the same in the next budget, 2010-2011.
Iam, therefore, directed to request you to kindly accord approval/allocate fundsfor the grant of Special Judicial allowance equal to three times of the initialsubstantive pay in favour of the above categories of Staff members of theEstablishment of High Court of Balochistan, Quetta by issuing necessaryNotification.
Anearly action shall be highly appreciated.
With reference to above letter anotherletter No.560/Accounts/2010 dated 10th June, 2010 was addressed by Registrar,High Court of Balochistan to Secretary, Government of Balochistan, FinanceDepartment, which is quite relevant wherein request for allocation of funds forgrant of Special Judicial Allowance w.e.f. 1-7-2007 and inclusion of saidallowance in the next years budget was made. The letter in extenso isreproduced herein below:—
“Subject:- GRANT OF SPECIALJUDICIAL ALLOWANCE EQUAL TO THREE TIMES OF THE INITIAL OF SUBSTANTIVE PAY SCALETO THE MEMBERS OF ESTABLISHMENT OF HIGH COURT OF BALOCHISTAN.
Iam directed to refer to the subject cited above and to say that consequentupon, sanction of subject allowance to the Establishment of the Hon’ble SupremeCourt of Pakistan and Establishment of Lahore High Court vide Government ofPakistan, Ministry of Law, Justice and Parliamentary Affairs, Islamabad letterNo.F.4( 1)/2008-A. II dated 3-3-2010, and Government of the Punjab, FinanceDepartment Lahore letter No.F.D.SR-1-9-1/99 dated 4-8-2009 (copies attached);to keep harmony and equality in pay and allowances, this Court also moved reference vide Letter No.354/Account-2010 dated 22-4-2010 (copy enclosed) for allocation of funds for the grant ofSpecial Judicial Allowance equal to three times of the initial substantive payin favour of the establishment of High Court of Balochistan with effect from 1-7-2009, but unfortunately the same have been refusedon the ground of financial crises, with further assurance to consider theproposal as and when the financial position is improved.
Itis highly imperative to point out that by the time the Government of Sindh,Finance Department, Karachi vide office Memo No.FD (SR-III)5/4-2009(A ), hasalso allowed Special Judicial Allowance equal to three times (copy enclosed).
Iam, therefore, once again requesting you to allocate the required funds i.e.Rs.91,072,800 and also include the said allowance in the next years budget ofthis Court, so that the disparity in allowances amongst the High CourtEstablishment is removed.
TheSecretary, National Judicial (Policy Making) Committee, Supreme Court Building,Islamabad.
The above reproduced letter makes itcrystal clear that the Chief Justice has granted approval for Special JudicialAllowance equal to three times of the initial substantive pay scale to theMembers of Establishment of High Court of Balochistan w.e.f. 1st July, 2009, assuch; objection with regard to lack of approval by the Chief Justice has noforce.
It may be noted that payment of SpecialJudicial Allowance was made to the Members of Establishment of High Court ofBalochistan with effect from 1st January, 2011 instead of 1st July, 2009 on thesole ground of financial constraint. In such circumstances instant petitionremained pending for grant of arrears of the Special Judicial Allowance witheffect from 1st July, 2009 as granted to the Members of Establishment ofSupreme Court of Pakistan, Federal Shariat Court and High Courts of otherProvinces.
7. In spite of the fact that all the Members ofEstablishment of Hon’ble Supreme Court, Federal Shariat and High Courts ofother Provinces have been granted the said allowance with effect from 1st July,2009 refusal of same to Members of Establishment of High Court of Balochistanw.e.f. 1st July, 2009 will amount to a discriminatory treatment in violation ofArticle 25 of the Constitution as different treatment for persons similarlycircumstanced would be unjustified and such discrimination will be withoutrational and reasonable classification. Such unreasonable or arbitraryclassification is contrary to the spirit of Article 25 of the Constitution.
8. We are conscious of the fact that equalprotection of law does not envisage that every citizen is to be treated alikein all circumstances but it contemplates that persons similarly situated orsimilarly placed are to be treated alike. Though reasonable classification ispermissible but it must be founded on reasonable distinction or reasonablebasis. In this regard reliance is placed on the judgment Brig. (Retd.) F.B. Ali and another v. The State reported in PLD 1975SC 506 wherein it was held:
“Equalprotection of the laws does not mean that every citizen, no matter what hiscondition, must be treated in the same manner. The phrase ‘equal protection’ ofthe laws means that no person or class of persons shall be denied the sameprotection of laws which is enjoyed by other persons or other class of personsin like circumstances in respect of their life, liberty, property, or pursuitsof happiness. This only means that persons, similarly situated or in similarcircumstances, will be treated in the same manner. Besides this, all lawimplies classification, for, when it applies to a set of circumstances, itcreates thereby a class and equal protection means that thisclassification should be reasonable. To justify the validity of a classification,it must be shown that it is based on reasonable distinctions or that it is on reasonable basis and rests on a real or substantial difference of distinction.”
In another case I.A. Sharwani v.Government of Pakistan reported in 1991 SCMR 1041 following principles werededuced:—
(i) thatequal protection of law does not envisage that every citizen is to be treatedalike in all circumstances, but it contemplates that persons similarly situatedor similarly placed are to be treated alike;
(ii) thatreasonable classification is permissible but it must be founded on reasonabledistinction or reasonable basis;
(iii) thatdifferent laws can validly be enacted for different sexes, persons in differentage groups, persons having different financial standings, and persons accusedof heinous crimes;
(iv) that nostandard of universal application to test reasonableness of the classificationcan be laid down as what may be reasonable classification in a particular setof circumstances, may be unreasonable in the other set of circumstances;
(v) thata law applying to one person or one class of persons may be constitutionally validif there is sufficient basis or reason for it, but the classification which isarbitrary and is not founded on any rational basis is no classification as towarrant its exclusion from the mischief of Articles 25;
(vi) thatequal protection of law means that all persons equally placed be treated alikeboth in privileges conferred and liabilities imposed;
(vii) thatin order to make a classification reasonable, it should be based—
(a) onan intelligible differentia which distinguishes persons or things that aregrouped together from those who have been left out;
(b) thatthe differentia must have rational nexus to the object sought to be achieved bysuch classification.
Nothing has been brought on record by therespondents/ Government of Balochistan to justify that refusal of SpecialJudicial Allowance to the Members of Establishment of High Court of Balochistanwith effect from 1st July, 2009 is based on reasonable classification. The onlycontest put forth by the respondents in refusing payment of said allowance tothe Members of Establishment of High Court of Balochistan with effect from 1stJuly, 2009 was the financial constraint which, in our view has no force asprotection of Article 121 of the Constitution of Islamic Republic of Pakistan,1973 is available to the Members of Establishment of High Court of Balochistanwhich inter alia provides that the administrative expenses, includingremuneration payable to the officers and servants of the High Court shall beexpenditure charged upon the Provincial Consolidated Fund. The Special JudicialAllowance having been found admissible to the Members of Establishment of HighCourt of Balochistan becomes a charge on the Provincial Consolidated Fund. Inthis regard we are fortified by the dictum laid down in case of “MubarakAli Khan v. Government of Punjabreported in 1990 CLC 136 (Lahore)”. The said judgment was challengedbefore the Hon’ble Supreme Court. The Hon’ble Apex Court upheld the judgment inPLD 1993 SC 375. Relevant observations from former judgment read as under:—
“Thereis no force in the stand taken by the Provincial Government as reflected in thestatement dated 23-10-1989 of the learned Advocate-General that they are unableto grant the impugned allowance to the petitioners in view of the financialconstraints. Suffice it to say that protection of Article 121 of theConstitution is available to the petitioners, which inter-alia provides thatthe administrative expenses, including the remuneration payable to officers andservants of the High Court shall be expenditure charged upon the ProvincialConsolidated Fund. This being so, the impugned allowance having been foundadmissible to the officers and servants of the High Court, it becomes a chargeon the Provincial Consolidated Fund.”
9. With regard to the contention of respondentsregarding financial constraints, it may further be observed that such aquestion is irrelevant when we are adjudicating on the effects of thefundamental rights guaranteed by the Constitution nor inconvenience can be allowedto override the Constitutional provisions guaranteeing fundamental rights toall citizens of Pakistan. Reliance is placed on the judgment reported in PLD1957 Quetta page 1. Relevant observations there from are reproducedhereinbelow:—
“Irecognize that this decision may cause difficulties to the administration inBalochistan area where I understand that a sufficient number of judicialtribunals does not exist nor is adequate machinery for police investigation ofcriminal cases in existence. Such consideration, however would be irrelevantwhen we are adjudicating on the effects of the fundamental rights guaranteed bythe Constitution. The remedy lies obviously with the legislature or with theexecutive authorities who can make good the deficiencies of the administration.The argument of inconvenience, cannot be allowed to override the Constitutionalprovisions guaranteeing fundamental rights to all citizens of Pakistan.”
Similar in case of Accountant-GeneralPunjab and another v. Ch. Qadir Bakhsh and another PLD 1983 Lahore page 246 itwas held as follows:—
“Decisionof the Government cannot be varied or modified by interpretation by an officerin one of the departments of the Government, even if it be Finance. If it werepossible that the decision of the Government can be so construed by anyofficial of any of the departments of the Government, contrary to the expressand explicit language of the decision of the Government, the Government wouldobviously then not be relied upon by citizens and they will have to look to theofficials who are designated as civil servants. Then servants will be mastersand not the Government of the day. The whole thing will go topsy-turvy. Suchconstruction as advanced by the learned counsel for the appellants will playhavoc. It is without merit altogether.
In view of what has been discussedhereinabove we are of the view that the petitioners have made out a case forgrant of Special Judicial Allowance equal to three times of the initial of thesubstantive pay scale with effect from 1st July, 2009 instead of 1st January,2011, as such, the instant petition is allowed declaring that thedeferment/refusal of the arrears of the Special Judicial Allowance to theMembers of Establishment of High Court of Balochistan w.e.f. 1st July, 2009 onthe ground of financial constraints being discriminatory is violative ofArticles 25 of the Constitution of Islamic Republic of Pakistan, 1973. TheMembers of Establishment of High Court of Balochistan are entitled to theSpecial Judicial Allowance equal to three times of the initial substantive payscale with effect from 1st July, 2009. Consequently Writ is issued in favour ofpetitioners against the respondents and the respondents are directed to paySpecial Judicial Allowance equal to three times of the initial of thesubstantive pay scale to the Members of Establishment of High Court ofBalochistan with effect from 1st July, 2009 and notification be issuedaccordingly.
Petition stands allowed.
This willconstitute the reasoning of our short order dated 8th June, 2011.