2013 P L C (C.S.) 717
[Lahore High Court]
Before Muhammad Khalid Mehmood Khan, J
MUHAMMAD AKRAM and 180 others
Versus
GOVERNMENT OF PAKISTAN through Secretary Ministryof Law and Justice, Islamabad and 4 others
Writ Petition No.20968 of 2009, decided on 31stOctober, 2012.
(a) Constitution of Pakistan—
—-Art. 25—Equality of citizens— Reasonable classification—Principle—Provisions ofArt.25 of the Constitution forbids class legislation but permits reasonableclassification for the purpose of legislation which classification must satisfytwin tests of classification being founded on intelligible differentia whichdistinguishes persons or things that are left out of the group and thatdifferentia must have a rational nexus to the object sought to be achieved bythe statute in question.
(b) Constitution of Pakistan—
—-Arts. 25 & 199—Constitutionalpetition—Equal treatment—National Judicial Policy Making Committee (NJPMC),recommendations of—Petitioners (employees) were working in different courtsestablished under Federal laws—Grievance of petitioners was that they had notbeen given benefits which similarly placed employees working under differentprovincial High Courts were getting on recommendations ofNJPMC—Validity—Authorities did not deny that establishment of High Courtsof Lahore, Sindh and Quetta were getting allowances detailed in recommendationsof NJPMC—Petitioners were admittedly placed in similar category in which employeesof district judiciary and establishment of High Courts of provinces wereworking and as such petitioners were entitled for the sametreatment—Similarly placed employees of District Judiciary, establishment ofHigh Courts were getting benefits under recommendations of NJPMC butpetitioners were being deprived of the same—Such denial of authorities was inviolation of Art.25 of the Constitution and the same was declared withoutlawful authority—Petitioners were entitled to get benefits under recommendationsof NJPMC as confirmed by authorities—Petition was allowed accordingly.
Governmentof Balochistan v. Azizullah Memon and others PLD 1993 SC 341 (370); Salman AdilSiddiqui v. Province of Sindh 2008 PLC (C.S.) 220; Abdur Rashid v. SecretaryEstablishment Division 1991 SCMR 1288; Attiyya Bibi v. Federation of Pakistan2001 SCMR 1161; Muhammad Akram v. Selection Committee 2003 CLC 18; Governmentof Punjab v. Mubarak Ali PLD 1993 SC 375; Mian Mehmood Ahmad v. Hong Kong andShahghai Banking Corporation Ltd. through Manager and 6 others 2010 CLD 293;Federation of All India Customs and Central Excise Stenographers (Recognized)and others v. Union of India and others AIR 1988 SC 1291; Northern Area ofSupreme Court’s case 2010 PLC (C.S.) 141; Mehram Ali and others v. Federationof Pakistan and others PLD 1998 SC 1445;Amanullah Khan Yousafzai and others v. Federation of Pakistan through LawSecretary and others PLD 2011 Kar. 451; Secretary Revenue v. Muhammad Saleem2008 SCMR 948; Mrs. Manawa Sunni v. Director Army Education 1991 SCMR 135;Administrator District Council Larkana and others v. Gulab Khan and 5 others2001 SCMR 1320; Hussain Badsha and another v. Akhtar Zaman and others 2007 PLC(C.S.) 157; Dr. Munir Ahmad and 37 others v. Government of Pakistan, FinanceDivision, Islamabad and 4 others 2007 PLC (C.S.) 285; Ibrahim Flour and GeneralMills, District Sheikhupura through Chief Executive v. Government of Punjabthrough Secretary to the Government of the Punjab, Food Department, Lahore andanother PLD 2008 Lah. 184 and Mehar Muhammad Nawaz v. M.D. Small BusinessCorporation C.A.No.427 of 2005 ref.
AftabAhmad Bajwa and Syed Ijaz Qutab for Petitioners.
M.Nasim Kashmiri, Dy. Attorney-General for Pakistan.
Ch.Muhammad Iqbal, Addl. A.-G., Punjab for Respondents.
Dateof hearing: 12th October, 2012.
JUDGMENT
MUHAMMADKHALID MEHMOOD KHAN, J.— All the petitioners are the part ofestablishment of Federal Government Courts established by the Act of Parliamentcommonly known as Banking Courts, Environmental Protection Tribunal, Special(Offences-in-Banks), Special Court Customs Taxation and Anti-Smuggling, SpecialCourt C.N.S Lahore, Drug Court, Special Judge (Central), these courts/tribunalsare directly performing their duties in connection with the administration ofjustice. The petitioners’ claim is that they are being discriminated qua theemployees of District Judiciary and establishment of the High Courts, thus theyclaim declaration to the effect that recommendations of National Judicial(Policy Making) Committee (hereinafter referred to as NJPMC) dated 10-11-2007issued by the respondent No.1 vide letter dated 30-4-2008 is binding onrespondents Nos.2 and 3 and the respondents are thus bound to implement therecommendations dated 10-11-2007 for bringing the petitioners at par with theemployees of Districts Judiciary and Establishment of the High Court, Districtjudiciary of Islamabad and Islamabad High Court.
2. Thepetitioners assert that NJPMC was constituted through National Judicial (PolicyMaking) Committee Ordinance, 2002 (hereinafter referred to as “NJPMCOrdinance, 2002”). The NJPMC submitted recommendations for the uniformityof the terms and conditions of Judicial Officers and staff attached to thejudiciary i.e. District Judiciary, High Courts and the Apex Court.
3. Thepetitioners assert that on the recommendations of NJPMC, the Hon’ble ChiefJustice of all the Provinces of Federation have directed to pay the allowancesto the establishment of High Courts as is evident from the Notifications issuedfrom time to time.
4. Learnedcounsel for the petitioners submits that the petitioners are no doubt theFederal Government employees but their job description and the working hoursare equal to the job description and working hours of the District Judiciary,establishment of the High Court of the Provinces as well as Islamabad HighCourt.
5. Learnedcounsel argued with vehemence that due to high inflationary cost even theincrease allowed by the High Courts in terms of NJPMC is not sufficient to meetwith the day to day expenses of a normal size of family, but the petitionershave been denied even the increase in the salary and allowance which theDistrict Judiciary is receiving for the same job, Labour with same qualifications and assuch the petitioners being the employees of Federal Government and attachedwith the Special courts are being meted out a discriminatory treatment.
6. LearnedDeputy Attorney General for Pakistan contends that if the requested allowanceand salary is allowed to the petitioners it will create disparity among theCivil Servants and the Federal Government will not be is position to pay theallowance and salary as claimed by the petitioners to all the civil servants.The terms and conditions of the employees of the District Judiciary andestablishment of High Courts are different with the terms and conditions of thepetitioners.
7. LearnedDeputy Attorney General for Pakistan object the very maintainability of thepetition on the ground that dispute pertains to the terms and conditions of theservice and as such the petitioners if are aggrieved they may approach to anappropriate fora.
8. Learnedcounsel for the petitioners exercising the right of rebuttal submits that theFederal Government is already maintaining different categories among the CivilServants, for example special allowances are payable to the employees of CivilAviation, railways, armed forces as to aviation allowance, railway allowance,disturbance and hazardous allowance, shift allowance, Governor House staffallowance, the petitioners if will be allowed the requested benefit it will notcreate any special category as the petitioners are performing same duties likethe employees of District Judiciary and the establishment of High Courts.Learned counsel adds that all special courts are under the superintendence andcontrol of the High Court, the appellate court of all the special courts is theHigh Court and the appointment of Judges of the Special Court require theconsent of the Honourable Chief Justice of the High Court and Senior Judge ofthe High Court is the Inspection Judge of the Special Courts.
9. Learnedcounsel has relied on Government of Balochistan v. Azizullah Memon and others(PLD 1993 SC 341 (370), Salman Adil Siddiqui v. Province of Sindh (2008 PLC(C.S.) 220), Abdur Rashid v. Secretary Establishment Division (1991 SCMR 1288),Attiyya Bibi v. Federation of Pakistan (2001 SCMR 1161), Muhammad Akram v.Selection Committee (2003 CLC 18), Government of Punjab v. Mubarak Ali (PLD1993 SC 375), Mian Mehmood Ahmad v. Hong Kong and Shahghai Banking CorporationLtd. through Manager and 6 others (2010 CLD 293) and Federation of All IndiaCustoms and Central Excise Stenographers (Recognized) and others v. Union ofIndia and others (AIR 1988 SC 1291).
10. Learnedcounsel relying on Articles 25, 27, 33 and 37 of the Constitution of theIslamic Republic of Pakistan, 1973 submits that it is the duty of State topromote social justice and eradicate the social evils, which is only possibleif uniform terms are applied among the employees attached with the Courts andthat all persons placed in same category classification have to be treatedalike. Learned counsel submits that the petitioners are being discriminated interms and conditions of service including emoluments, the Federal Governmenthas promulgated various laws, which confers jurisdiction on a provincialjudicial officer to adjudicate and decide the matters relating to the federallaw within the provincial domain, for instance Banking Court, Custom Court,Excise and Taxation Tribunal, Special Anti-Terrorist Court and numerous otherTribunals and Courts established under the Federal statue are presided over bythe judicial officers of the Province.
11. LearnedCounsel has relied on Northern Area of Supreme Court (2010 PLC (C.S.) 141) andGovernment of Punjab v. Mubarak Ali (PLD 1993 SC 375).
12. Heard,record perused.
13. Themain controversy between the parties is of an equal treatment among the equallyplaced persons, the right of equal treatment is a fundamental right of everycitizen of Pakistan and is guaranteed one. It is an admitted fact that All HighCourts of Provinces have implemented the recommendations of the NJPMC but theFederal Government is denying the grant of all those allowances and benefitswhich the equally placed persons of the establishment of the High Courts andthe District Courts are receiving as per their job description and nature ofduties. It is not denied by the respondents that Federal Government hasimplemented the NJPMC recommendations for District Judiciary of Islamabad aswell the establishment of Islamabad High Court.
14. It isan admitted position between the parties that Banking Courts, Labour Courts andother Federal Courts are meant to administer justice between the parties andfall within the definition of Court either established under Federal orprovincial Statue or under the mandate of Constitution of Islamic Republic of Pakistan,likewise the establishment of Special Court/Tribunal is equally necessary andimportant like the Judicial Officer who presides over the court, in the absenceof establishment of the court the presiding officer could not perform hisjudicial duties, for example if the reader of the court refuses to perform hisduties after the court time, the presiding officer cannot function and performhis judicial duties and if the reader is refusing to perform duty after thecourt hours that will not be in violation of his terms of service. It is alsoan admitted fact that the object of NJMPC is to provide speedy justice topublic at large and to decide the voluminous litigation as early as possible.
15. Theargument of learned counsel for the petitioners is that petitioners areperforming duties with the courts and their case falls under Articles 25 and 27of the Constitution of Islamic Republic of Pakistan, 1973 which guarantee equaltreatment to similarly placed persons and that no citizen in the service of Pakistanor the other persons could be discriminated in any manner whatsoever.
16. Theperusal of Articles 25 and 27 will show that, all equally placed persons are tobe treated equally, no citizen in the service of Pakistan or the other personwill be discriminated even at the time of admitting into service or afterjoining the service. Under Articles 37 and 38 of the Constitution the State isbound to promote social justice and eradicate the social evils among thecitizens of Pakistan and it could only be possible if all the employees ofjudicial establishment are treated equally whether they are the creation ofFederal Government or provincial governments. For performing same functions twodifferent terms could not be made or implemented for the establishment ofcourts/tribunals.
17. Toremove disparity and ensure well being of the people is responsibility of theState, which in turn would eliminate inequality in the income and earning ofindividual including persons of various classes similarly placed.
18. Underthe Constitution of the Islamic Republic of Pakistan, Article 25 forbids classlegislation but permits reasonable classification for the purpose oflegislation which classification must satisfy the twin tests of classificationbeing founded on an intelligible differentia which distinguishes persons orthings that are grouped together from those that are left out of the group andthat differentia must have a rational nexus to the object sought to be achievedby the statute in question.
19. Theissue of creation of Federal Government courts came up for adjudication beforehonourable Supreme Court of Pakistan in Mehram Ali and others v. Federation ofPakistan and others (PLD 1998 SC 1445),the honourable Supreme Court of Pakistan ruled as under:—
“(a) ThatArticles 175, 202 and 203 of the Constitution provide a framework of Judiciaryi.e. the Supreme Court, a High Court for each Province and such other Courts asmay be established by law,
(b) Thatthe words “such other Courts as may be established by law” employedin clause (1) of Article 175 of the Constitution are relatable to thesubordinate Courts referred to in Article 203 thereof,
(c) Thatour Constitution recognizes only such specific Tribunal to share judicialpowers with the above Courts, which have been specifically provided by theConstitution itself Federal Shariat Court (Chapter 3-A of the Constitution),Tribunals under Article 212, Election Tribunals (Article 225). It must followas a corollary that any Court or Tribunal which is not founded on any of theArticles of the Constitution cannot lawfully share judicial power with theCourt referred to in Articles 175 and 203 of the Constitution.
(d) Thatin view of Article 203 of the Constitution read with Article 175 thereof thesupervision, and control over the subordinate judiciary vests in High Courts,which is exclusive in nature, comprehensive in extent and effective inoperation.
(f) Thatright of “access to justice to all” is a fundamental right, whichright cannot be exercised in the absence of an independent judiciary providingimpartial, fair and just adjudicatory framework i.e. judicial hierarchy. TheCourts/ Tribunals which are manned and run by executive authorities withoutbeing under the control and supervision of the High Court in terms of Article203 of the Constitution can hardly meet the mandatory requirement of theConstitution.”
20. Theabove said rule laid down by the Honourable Supreme Court of Pakistan and thefacts sated above will show that the Special Courts/Tribunals are under thesupervision and control of High Court, their Presiding Officers’ appointmentunder the statue require the recommendations of the honourable Chief Justice,the eligible person is either Retired Judge of High Court or retired or sittingDistrict and Sessions Judge and as such the establishment of Special Courts andDistrict Judiciary and establishment of High Courts could not be separated ordistinguished with each other.
21. Thelearned Division Bench of the Sindh High Court in Amanullah Khan Yousafzai andothers v. Federation of Pakistan through Law Secretary and others (PLD 2011Karachi 451) held as under:—
“NJPMCis a highest statutory judicial policy making body, which consists of thehonourable Chief Justices of all High Courts and Chief Justice of Pakistan asits Chairman. NJPMC attend all matters concerning with the judiciary’ and inrecent time has taken bold initiative to bring reform in justice deliverymechanism and for framing coherent policy to combat delays, promote automation,and bring out administrative reforms indeed an arduous responsibility thatensure free, fair, independent and conscious judiciary and in shortest timeachieved enviable results.”
22. Allthe Provinces have implemented the decision of the NJPMC and the salarystructure of the judicial officers and attached staff has been revised. TheFederal Government has already implemented the recommendations of NJPMC inDistrict Judiciary of Islamabad and Islamabad High Court.
23. TheLetter dated 30-4-2008 from the Federal Secretary Law and Justice DivisionGovernment of Pakistan specifically finds mention that NJMPC in a meeting heldon 10-11-2007 recommended the compensation package of judicial officers andrecommended the enhancement in the allowance as follows:—
“3. TheNational Judicial Policy Making Committee (NJPMC), headed by the Chief Justiceof Pakistan, in its meeting held on 10-11-2007, reviewed the compensationpackage of judicial officers and recommended the enhancement in the allowancesas follows:—
(1) JudicialAllowance
(i) Districtand Sessions Judge/Addl. Rs.14000
Districtand Sessions Judge/Senior
CivilJudge/Members Majlis-e-Shoora
(ii) CivilJudge/Qazi Rs.12000/-
(iii) Subordinatecourts staff Rs.20%of
runningpay
(2) UtilityAllowance
(i) Officersin B-19 and above Rs.8000
(ii) Officersin B-17 and 18 Rs.5000
(iii) Staffin B-1 to B-16 Rs.10%of
runningpay but not
lessthan Rs.1000
(3) CarAllowance
(i) Addl.District and Sessions Judge Rs.7000
(ii) SeniorCivil Judges/Members Rs.6000
Majlis-e-Shoora
(iii) CivilJudge/Qazi Rs.5000
(4) ConveyanceAllowance
Allcourt staff At all stations
(4) TheProvinces of Sindh, N.-W.F.P. and Balochistan have implemented therecommendations of NJPMC, whereas the same are required to be implemented bythe Punjab. As Punjab judiciary would be the beneficiary of the aboverecommendations, therefore, intervention of and follow up by the Lahore HighCourt may be required in the matter.
(5) Itwould be highly appreciated if the Lahore High Court takes necessary steps forensuring implementation of the recommendations of the NJPMC.
With best regards.
Yourssincerely,
sd/-
(JUSTICE BIN YAMIN)
Mr.Justice Sayed Zahid Hussain,
ChiefJustice,
LahoreHigh Court,
Lahore.”
and employees of District Judiciary and establishmentof High Court are drawing the revised emoluments.
24. Theother argument of learned Deputy Attorney General for Pakistan is that petition is not maintainable is concerned, the petitioners have approached the Court on the touchstone of constitutional guarantee under Articles 25 and 27 of the Constitution of the Islamic Republic of Pakistan, 1973. The Hon’ble Supreme Court of Pakistan in Secretary Revenue v. MuhammadSaleem (2008 SCMR 948), Mrs. Manawa Sunni v. Director Army Education (1991 SCMR 135), Administrator District CouncilLarkana and others v. Gulab Khan and 5 others (2001 SCMR 1320) has dilated uponthe above said issue.
25. In thecase of Mrs. Manawa Sunni (supra) it is held that despite her status of civilservant she approached the High Court for the redressal of grievance and theobjection of jurisdiction was raised even up to the level of Hon’ble SupremeCourt of Pakistan and the same was resolved in the following terms:—
“Questionwhether she should approach the Civil Court or the Service Tribunal for this purposewas not very pertinent in the face of bound down obligation of the authoritiesto satisfy her claim themselves without the necessity of driving needylitigants a pillar to post.”
26. Inview of the above the objection of maintainability of the petition raised isrepelled.
27. Therespondent is not denying that the establishment of High Court of Lahore, Sindhand Quetta are getting the allowances detailed in letter dated 30-4-2008. Thepetitioners are admittedly placed in the similar category in which theemployees of District Judiciary and establishment of the High Courts of theProvinces are working and as such the petitioners are entitled for the sametreatment. Reliance is placed on Hussain Badsha and another v. Akhtar Zaman andothers (2007 PLC (C.S.) 157), the Hon’ble Supreme Court held as “Article25 of the Constitution of Islamic Republic of Pakistan, 1973 guarantees equaltreatment before law and equal protection of law to all citizens similarlyplaced”.
28. In Dr.Munir Ahmad and 37 others v. Government of Pakistan, Finance Division,Islamabad and 4 others (2007 PLC (C.S.) 285) the Honourable Chief Justiceopined as under:—
“Conceptof equal protection and equality before law is hallmark of the constitutionalscheme recognized by not only the Preamble, Objections Resolution, Articles 4,25 and 27 of the Constitution but also by the Principles of Policy contained inArticle 37 of the Constitution-Equal protection and equal treatment of citizenssimilarly placed is universally accepted and recognized principle, which hasbeen explained by many authors in textbooks and Judges in precedents-Statutoryfunctionaries in a democratic set up cannot make any individual distinction forany extraneous reasons and exercise of discretion must be free of arbitrarinessand caprice.”
29. Incase of Ibrahim Flour and General Mills, District Sheikhupura through ChiefExecutive v. Government of Punjab through Secretary to the Government of thePunjab, Food Department, Lahore and another (PLD 2008 Lahore 184), the questionof discrimination has been dilated upon and is opined as under:—
“Thepoint of discrimination calls for interference and exercise of powers ofjudicial review.”
30. Incase of Mehar Muhammad Nawaz v. M.D. Small Business Corporation (C.A.No.427 of2005) decided on 9-10-2008, the honourable Supreme Court of Pakistan held asunder:—
“Needlessto emphasize that while dealing with the case whereas an aggrieved party allegesdiscrimination, the Court cannot overlook the implication thereof. Equaltreatment of all similarly situated is the basic principle on which restsjustice under the law. If even-handed justice is not administered, it can havemany adverse and negative effects on the society. It can cause discontentmentand frustration. In the social set up. There can be no denial that socialjustice is an objective and enshrined in our Constitution.”
31. Inview of the above it is established fact that the similarly placed employees ofDistrict Judiciary, establishment of High Courts are getting the benefits underthe recommendations of NJMPC but the petitioners are being deprived of thesame, the respondents denial thus is in violation of Article 25 of the Constitutionof the Islamic Republic of Pakistan, 1973 consequently it is declared withoutlawful authority. The petitioners are entitled to get the benefits under theNJMPC recommendations dated 10-11-2007 as confirmed by the respondent No.1 videletter dated 30-4-2008.
32. Thepetition is allowed in the above said terms
MH/M-351/L Petitionallowed.