2019 P L C (C.S.) 238

[Sindh High Court]

Before Syed Hassan Azhar Rizvi and Khadim Hussain Tunio, JJ

ABDUL HALEEM SIDDIQUI and others

Versus

FEDERATION OF PAKISTAN through the Law Secretary, Ministry of Law andJustice, Pakistan Secretariat, Islamabad and others

C.Ps. Nos. D-3460, D-3366 of 2011, D-1053, D-1524, D-1657, D-3644 of 2013and D-1268 of 2016, decided on 4th September, 2018.

(a) Constitution of Pakistan—

—-Arts. 212 & 199—-Constitutional jurisdiction of HighCourt—Civil Service—Constitutional petition seeking relief for framing ofservice rules and seniority list—-Relief seeking framing of rules andseniority list, prima facie, cannot be legally entertained by High Court beinga matter relating to service structure and applicable rules.

(b) Constitution of Pakistan—

—-Arts. 25 & 4—-Fundamental rights of equality of citizens andright to be dealt in accordance with law—-Scope—-Expression “equalitybefore law” or “equal protection of law” did not secure to allpersons the benefit of Art. 25 of the Constitution, which required thatpersons, similarly situated or circumstanced shall be treated alike and if oneintended to seek exception to the application of Art. 25 of the Constitution,then such person would be required to establish that things were different andonly then discrimination could be made which too much be based on someintelligible differential, bearing a reasonable and just relation to theobject, sought to be achieved.

PakcomLimited v. Federation of Pakistan PLD 2011 SC 44 rel.

(c) Constitution of Pakistan—

—-Arts. 25, 4, 38(e) & 37(d)—Interpretation of theConstitution—Fundamental Rights—Principles of Policy—Equality ofcitizens—Right to be dealt in accordance with law—Obligation of state toensure inexpensive and expeditious justice—Application of such rights topublic servants/civil servants—Terms and conditions of PublicService—Scope—Constitution was a living and organic document, and whileinterpreting the same, expensive and dynamic approach was to beadopted—Fundamental Rights included equality in terms and conditions ofservice and Arts. 25, 37(d) & 38(e) of the Constitution were to be readwith Arts. 4 & 25 of the Constitution.

(d) Constitution of Pakistan—

—-Arts. 25, 4, 37(d), 38(e) & 199—Sindh Criminal ProsecutionService (Constitution, Functions and Powers) Act (IX of 2009),S.9(1)—Judicial Officers—Remuneration and benefits of judicialofficers—Special Judicial Allowance—Entitlement of Offices of StateRepresentation to Special Judicial Allowance—Roles and Functions of the SindhCriminal Prosecution Service—Employees of Provincial Criminal ProsecutionService entitled to same benefit(s) as employees of the Offices of theAdvocate-General and Attorney-General—Scope—Question before the High Courtwas whether petitioners, who were working for the Provincial CriminalProsecution Service, were entitled to grant of Special Judicial Allowance, aswas being provided to offices of the Advocate-General andAttorney-General—Contention of petitioners, inter alia, was that functionsand duties of the office of the petitioners was similar to that of the officesof the Advocate-General and Attorney-General, and thus they were beingdiscriminated against—Validity—Barriers of names and classification ofoffice(s)/court(s) were of no significance when question of Special JudicialAllowance was involved—Judiciary, anywhere in the country, was to be as aclass in itself and barriers of names, classification and Provinces could nottherefore stand—Special Judicial Allowance was not limited to the Judiciaryalone, but also to its counterpart, which was “StateRepresentation”—Prima facie, purpose and object of both Advocate-GeneralOffice and the Provincial Criminal Prosecution Service was one and the same,which was representation of the Government and mere difference of “civilmatters”, which was dealt with by Advocate General Office and”criminal prosecution”, dealt with by Provincial Criminal ProsecutionService, could not be a factor in the present case—High Court observed thatOffice of Advocate-General performed the same functions in the Province as theProvincial Criminal Prosecution Service, and therefore petitioners wereentitled for equal treatment under Art. 25 of the Constitution, and thus wereentitled to avail the same benefits as employees of the Advocate-GeneralOffice—High Court declared refusal of grant of Special Judicial Allowance topetitioners being violative of Art. 25 of the Constitution and directed paymentof the same to the petitioners—High Court further directed the Staterespondents to take steps and initiate legislative measures as may be necessaryto frame service structure of employees/non-gazetted staff of the ProvincialCriminal Prosecution Service—Constitutional petitions were allowed,accordingly.

Governmentof Punjab v. Mubarak Ali Khan PLD 1993 SC 375; Pakcom Limited v. Federation ofPakistan PLD 2011 SC 44; Secretary, Ministry of Finance v. Masdar Hossain(1999) DLR (AD) 82; Pir Imran Sajid and others v. Managing Director/GeneralManager and others 2015 SCMR 1257; WP Sadaqat Ali v. Government of Punjab andMuhammad Akram v. Selection Committee 2003 CLC 18 rel.

Dateof hearing: 11th August, 2018.

JUDGMENT

KHADIMHUSSAIN TUNIO, J.—By this commonjudgment, we intend to dispose of captioned petitions as the same have beenfiled by different persons, from which all are associated directly orindirectly with the administration of justice, which includes judicial officersof the District Judiciary, employees and servants attached to the DistrictJudiciary and employees/staff attached to Special Courts under the FederalGovernments. The sole purpose behind all the petitions is enhancement of payand judicial allowance at par with the judicial officer and officers andemployees of District Judiciary Establishment.

2. Thepetitioners, in the respective petitions have sought for the following relief:-

C.P No.D-3460 of 2011

i. Directthe Respondents Nos. 1 and 2 to frame appropriate rules/legislation to ensurethe financial and budgetary independence of the Sindh Criminal ProsecutionService.

ii. Directthe Respondent No. 2 to frame appropriate rules to ensure that the prosecutor’ssupervisory role over the police investigation as contemplated under sections 9and 10 of the Sindh Criminal Prosecution Service (Constitution Functions andPowers) Act 2009 is truly effective and meaningful.

iii. Directthe Respondents Nos. 1 and 2 to ensure that all prosecutors within the SindhCriminal Prosecution Service are provided equal salaries, allowances,privileges and facilities as their similarly placed counterparts in theAttorney General Officer and – at any rate – to ensure that the former areconferred the same remunerative enhancements as have been conferred on thelatter;

iv. Grantsuch further or additional relief as this Hon’ble Court may deem appropriate inthe circumstances.

C.P.No. D-3366 of 2011

i. Tohold/declare that the Judicial allowance as well as utility allowance ofPetitioners/Prosecutors and their sub-ordinate staff of Sindh CriminalProsecution Service Department working under the supervision of ProsecutorGeneral Sindh (Respondent No. 5) i.e. Prosecutor General Sindh, AdditionalProsecutor Generals, Deputy Prosecutor Generals, Assistant Prosecutor Generals,District Public Prosecutors, Deputy District Public Prosecutors and Assistant DeputyPublic Prosecutors and their sub-ordinate staff is discriminatory especially inview of the Attorney General Office, Advocate General Office, sub-ordinateJudiciary and their lower staff.

ii. Toallow the petition of the Petitioners by directing the Respondents that thePetitioners/Prosecutors of Sindh Criminal Prosecution Service Department mayalso be treated as provided to the Attorney General Office, Advocate GeneralOffice, their sub-ordinate employees, Sub-Ordinate Judiciary and their lowerstaff as directed by the Hon’ble High Court in its order dated 24th May 2011and further direct the Respondents that at worst the Petitioners/Prosecutors ofSindh Criminal Prosecution Service Department may be given Medical facilityequal to the employees of Sindh Secretariat.

iii. Thatthe remuneration and other allowances may be awarded to thePetitioners/Prosecutors of Sindh Criminal Prosecution Service Department andtheir employees/sub-ordinate staff since 2008.

iv. Or maypass any order(s) in favour of the Petitioners/Prosecutors of Sindh CriminalProsecution Service Department against the Respondents which this Hon’ble Courtmay deem fit and proper under the circumstances of the case.

C.P.No. D-3644 of 2013

i. Declarethat the petitioners along with other subordinate staff of office of theDistrict Attorney, District Prosecutor, Deputy District Attorneys and DeputyDistrict Prosecutors, are entitled to the grant of special Judicial Allowance(3 basic) and Utility Allowance at the enhance rate as being availed by theOffice of the Attorney General and the Office of the Advocate General and theOffice of the Advocate General Sindh and their subordinate staff.

ii. Directthe respondents to grant and provide/ allowance and utility allowance at therate already availed by the office of the Attorney General and office ofAdvocate General Sindh, to be paid to the petitioners.

iii. Grantthe costs of this petition.

iv. Grantany other relief as may be deemed fit and proper under the circumstance of thepetition.

C.P.No. D-1657 of 2013

i. Declarethat the petitioners along with other sub-ordinate staff of office of theDistrict Attorneys, District Prosecutors, Deputy District Attorneys and DeputyDistrict Prosecutors are entitled to the grant of Special Judicial Allowance 3basic and Utility Allowance at the enhance rate as being availed by the officeof the Attorney General and the Office of the Advocate General Sindh, and theirsub-ordinate staff.

ii. Directthe respondents to grant and provide/allocate the require funds for judicialallowance and utility allowance at the rate already availed by the office ofAttorney General and office of Advocate General Sindh, to be paid to thepetitioners.

iii. Grantthe costs of this petition.

iv. Grantany other relief as may be deemed fit and proper under the circumstances of thepetition.

C.P.No. D-1053 of 2013

i. Declarethat the petitioners along with other sub-ordinate staff of office of theDistrict Attorneys, District Prosecutors, Deputy District Attorneys and DeputyDistrict Prosecutors are entitled to the grant of special Judicial Allowance (3basic) and Utility Allowance at the enhance rate as being availed by the officeof the Attorney General and the Office of the Advocate General Sindh, and theirsub-ordinate staff.

ii. Directthe respondents to grant and provide/allocate the require funds for judicialallowance and utility allowance at the rate already availed by the office ofAttorney General and office of Advocate General Sindh, to be paid to thepetitioners.

iii. Grantthe costs of this petition.

iv. Grantany other relief as may be deemed fit and proper under the circumstances of thepetition.

C.P.No. D-1524 of 2013

i. Directthe respondents Nos. 1 and 2 frame service structure of the employees/nongazetted staff of the Criminal Prosecution Services Department.

ii. Directthe respondents to ensure that all employees/non gazetted staff of the CriminalProsecution Services Departments are provided equal salaries, allowances,privilege and facilities as their similarly, placed, counterparts in theAttorney General’s Office, Advocate General of Sindh office, special court’sand District Courts of Sindh, which have recently been enhanced.

iii. Directthe respondents to continue paying salary along with benefits/ allowancesaccording to the law regularly without fail.

iv. Anyother relief(s) deem fit and proper by this Hon’ble Court may be awarded to thepetitioner under Article 199 of the Constitution of Pakistan.

C.P.No. D-1268 of 2016

i. Todirect the respondents to grant the allowances, perks and emoluments to thepetitioner as well as to the other prosecutors working as D.P.Ps, D.D.P.Ps,Deputy Director Monitoring, A.D.P.Ps and Assistant Director Monitoring as equalto the prosecutors working as Addl. P.Gs, D.P.Gs and A.P.Gs to their categoriesrespectively, as envisaged in concerned rules and Act, with effect from theperiod since granted in favour of Addl. P.Gs, D.P.Gs and A.P.Gs.

ii. Todirect the respondents to prepare joint seniority list of D.P.Gs with D.D.P.Psdirectly recruited through Sindh Public Service Commission (BPS-18) forpromotion to the post of Addl.P.Gs and D.P.Gs (BPS-19), also direct therespondents to prepare joint seniority list of the prosecutors serving in BPS-17directly recruited through SPSC in different categories qualified together fortheir promotion to the post of D.P.Gs, D.D.P.Ps and Deputy Director Monitoringin order to equal treatment and to avoid discrimination.

iii. Toaward any other relief to the Petitioner and other prosecutors found to beentitled thereto, in the best interest of justice.

3. Learnedcounsel for the petitioners argued that the advocates working for the SindhCriminal Prosecution Service perform, by and large, similar functions to thoseperformed by the advocates working for the Attorney General Office; that theirduties of prosecution and supervision over the investigative process are notconfined solely to offences under provincial law but also offences underfederal law; that Respondents Nos. 1 and 2 are under legal obligation to ensurethe elimination of disparity in remuneration of prosecutors; that the judicialofficers/employees in all categories and so also the staff and the employeesattached to the District Judiciary or Federal/ Provincial Courts/Tribunals area separate class burden with onerous responsibility; that they perform theirduties diligently and whole-heartedly; that special allowances are allowed tovarious categories of service which are not admissible to other categories.Learned counsel has further urged that it is not the case that the Province ofSindh has scarce resources because it is otherwise responsibility of the stateto ensure elimination of all forms of exploitation and the State as a guardianof all must act fairly, justly, equitably and the judiciary and staff orservant attached thereto are to be extended similar treatment throughoutdifferent departments in Pakistan; that it is the duty of the state to promotesocial justice and eradicate social evils, which is only possibly if uniformterms are applied and that all persons placed in same classification aretreated alike; that low pay-grade can also encourage corruption andmalpractice; that by withholding the right of petitioners to the said allowances,they will undermine the judicial independence, promised to every citizen ofPakistan; that when other staff of the same ranking and performing similarduties though working under different heads then it would not be justified towith-hold same treatment merely for difference of name; that judiciary is not aprovincial subject and the Federation of Pakistan is equally responsible toshoulder the duty to provide all the resources to the provinces; that in termsof Articles 3, 37(d) and 38(e) read with Article 25 of the Constitution 1973,the staffed attached to the judiciary perform one in the same function in allfour provinces and it is not that the judicial officers in a certain office,province or place perform any different functions; therefore, the judiciary asa whole is a class in itself and must be treated alike, without any bias; thatthe function being performed by the Attorney General and the officers attachedthereto is similar. Learned counsel for the petitioner has further urged that thepower to revise the benefits and emoluments of the judicial officers and theother staff attached to the judiciary whether it be district judiciary orsuperior judiciary should vest with the judiciary not with the executivefunctionaries; that this court may strike down the terms and conditionsprescribed by the Government of Sindh and frame appropriate legislation toprovide for Independent Judicial Service Board vesting power in the judicialhierarchy to determine the terms and conditions including emoluments.

4. Learnedcounsel for the state urged that there is no disparity in the serviceemoluments of different category of civil servants, including the petitionerswhether judicial officers or servants and employees of District Judiciary orother courts and tribunals working in the province of Sindh, includingemployees of the Advocate General, Sindh are civil servant and pay scale of allthe civil servants in the province of Sindh are being treated equally and thereis no discrimination; that as for the three fold salary increases, thefinancial position of the Province of Sindh is far from weak and the same arenot going to be in an improved position any sooner, once that is done so, thesalaries would be revised; that Judicial Officers of the District Judiciary orstaff of a body governed by the Provincial or Federal Government are all civilservants, their terms and conditions are governed under the Sindh CivilServants Act, therefore, the petitioners cannot form a separate class and claimdifferent or for that matter better treatment compared to other civil servants;that the petitioners are the employees of offices of Prosecutors and theycannot be categorized with the judicial employees nor the secretariatemployees.

5. Atthe very outset, it may be said that through instant petition (s) number ofrelief(s) have been sought which includes direction for framing rules as welljoint seniority list however main relief seems to be that of discriminationwith reference to office (s) of Attorney General and Advocate General. Asregard the relief (s) for framing of rules and seniority list, it would sufficeto say that same prima facie legally cannot be entertained by this court beinga matter relating to service structure and applicable rules. However, thequestion of discrimination (violation of Article 25 of Constitution) can wellbe examined particularly when the same has been pressed while referring toparticular office (s) with a claim that functions and duties of office (s) ofpetitioners is one and same.

6. Theissue, involved in the instant petitions, was never with regard to status ofthe petitioners to be civil servant or otherwise but whether functions andduties of the office of petitioners is similar to that of offices of AdvocateGeneral and Attorney General?. If so, whether they are justified in seekinggrant of Special Judicial Allowance equal to three times of the initial of thesubstantive pay scale as is being provided to offices of Advocate General andAttorney General or otherwise?.

7. Beforeexamining merits, it would be appropriate to say that Special JudicialAllowance is not an ordinary allowance but the use of the word ‘specialjudicial’ is self-sufficient to make it quite obvious that it has nogeneral/ordinary application which every civil servant could claim under statusof his being a civil servant. It was always aimed for specific class of personsthough falling within meaning of civil servants. Thus, legally the plea of thelearned counsel for State with reference to status of petitioners and that ofoffice of Advocate General and Additional Attorney General as ‘civil servant’is entirely misconceived unless and until the learned State Counsel prima facieestablishes that functions and duty, being performed by such offices, is notsimilar to that of office of petitioners. The barriers of names andclassification of office (s)/court (s) are of no significance when a questionof special judicial allowance is involved. In the case of Government of Punjabv. Mubarak Ali Khan (PLD 1993 SC 375), the Honourable Supreme Court has heldthat since employees of High Courts perform almost identical functions as dothe employees of Hon’ble Supreme Court and Federal Shariat Court, as such; theycannot be discriminated against in respect of an allowance which has beenallowed to the employees of these two Courts. Relevant observations there fromare reproduced here-in-below:–

“Theemployees of the Federal Shariat Court and the Supreme Court of Pakistan havebeen allowed such an Allowance. The High Court employees perform almostidentical functions as do the employees of these two other Courts perform. Theemployees of all the three Courts have been dealt with constitutionally by thesame provision reproduced above. In the circumstances, the High Courtsemployees cannot be discriminated against. The necessary provision ofSecretariat/Personal Allowance had to be made in respect of such employees aswas made in the case of the Federal Shariat Court and the Supreme Court employees.”

(underlining is for emphasis)

8. Wemay further add that Article 25 of the Constitution of Islamic Republic ofPakistan, 1973 guarantees equal treatment to all persons similarly placed. Wemay safely add here that expression (s) i.e. ‘equality before law’ or ‘equalprotection of law’ do not secure to all persons the benefit of a law butrequires that persons, similar situated or circumstanced, shall be treatedalike. If one intends to seek any exception to application of such article, heshall always be required to establish that things are different and only thendiscrimination could be made which too must be based upon some intelligibledifferential, bearing a reasonable and just relation to the object, sought tobe achieved. Reference may well be made to the case of Pakcom Limited v.Federation of Pakistan PLD 2011 SC 44 wherein it is observed as:

“Itwould not be enough to say that a piece of legislation or a policy formulatedthereunder is discriminatory but it is to be substantiated by applying certainwell entrenched principles on the subject of discriminatory legislation whichare as follows:–

(i) Theexpression ‘equality before law’ or the ‘equal protection of law’ does not meanthat it secures to all persons the benefit of the same laws and the sameremedies. It only requires that if persons similarly situated or circumstancesshall be treated alike’

(ii) Theguarantee of equal protection of law does not mean that all laws must begeneral in character and universal in application and the State has no power todistinguish and classify persons or things for the purpose of legislation;

(iii) Theguarantee of equal protection of laws forbids class legislation but does notforbid reasonable classification for the purpose of legislation. The guaranteedoes not prohibit discrimination with respect to things that are different. TheState has the power to classify persons or things and to make laws applicableonly to the persons or things within the class;

(iv) Theclassification, if it is not to offend against the Constitutional guaranteemust be based upon some intelligible differential bearing a reasonable and justrelation to the object sought to be achieved by the legislation.

9. Wewould also add that constitution is living and organic document, whileinterpreting the Constitution expensive and dynamic approach and interpretationis to be adopted. Fundamental rights include equality in terms and conditionsof the service Articles 27, 37(d) and 38(e) are to be read with Articles 4 and25 of the Constitution 1973. Judicial Officers in District Judiciary and Courtsand Tribunal and the staff attached thereto perform one in the same function inall four provinces and it is not that the Judiciary in Punjab performs anydifferent functions; therefore, the judiciary anywhere in Pakistan as a wholeis a class in itself, this was also ruled by the apex court in Bangladesh in aland mark judgment reported as Secretary, Ministry of Finance v. Masdar Hossain(1999) DLR (AD) 82. The ‘special judicial allowance’ though earlier was grantedto the judiciary alone and barriers of provinces and name (s) classification ofcourt (s) even could not stand in such benefit. That, being an undeniableposition, needs not be discussed any more.

10. Itis also a matter of record that the office of ‘Advocate General Sindh’ alsoclaimed same relief by resorting to constitutional jurisdiction of this Court.Such claim, prima facie, was based on nothing but that judicial system alwaysrequire a proper assistance from State (representative) and an effective andspeedy trial is not possible if a complete assistance is not provided by suchend. At this juncture, a direct referral to letter of Advocate General Sindhbearing No.AG-738/ 2012 Karachi dated 27.03.2012 and office memorandum, issuedby Finance Department vide No.FD(SR-III)5/ 4 2009(A) Karachi dated the 1stFebruary, 2013 shall make situation more easier to conclude the discussion. Theletter of Advocate General Sindh reads as:-

“To

TheSecretary,

FinanceDepartment, Government of Sindh, Karachi

Subject:- C.P.NO.D-2318/2009 FILED BY MUHAMMAD ALI ANSARI AND OTHERS VERSUS PROVINCE OF SINDH ANDOTHERS .

Pleasefind herewith copy of judgment dated 24.05.2011 and order dated 13.3.2012 forimmediate compliance, however, without prejudice the stand of the Government inthe Hon’ble Supreme Court of Pakistan, the Employees of the Advocate GeneralSindh is on the same footing and are entitled for equal treatment. As such thetreatment meted out by your Department vide Letter dated 16.3.2012 for grant ofSpecial Judicial Allowance equal to three times the intial of respective basicpay scale of 2008 to the office / employees of establishment of subordinate /district judiciary may be given accordingly.

Encl. As above. Sd/-

ABDULFATTAH AMLIK (T.I)

Advocate General Sindh

The letter of finance department, referred above, reads as:–

OFFICE MEMORANDUM

Subject:- GRANTOF SPECIAL JUDICIAL ALLOWANCE EQUAL TO THREE TIMES THE INITIAL OF RESPECTIVEBASIC PAYSCALE OF 2008 TO THE OFFICERS/EMPLOYEES OF THE OFFICE OF ADVOCATEGENERAL SINDH .

Incompliance with the order dated 10.01.2013, passed by the Honourable Sindh HighCourt, Karachi in Constitution Petition No.D-2318/ 2008 read in conjunctionwith the common judgment dated 24.05.2011 passed by the Honourable High Courtof Sindh in Constitutional Petitions Nos.D-1930/2009, D-1465/2009, D-2318/2009and D-2433/2009, Finance Department allows Special Judicial Allowance at therate of three times the initial of the respect Basic Pay Scale, 2008 to theofficers/officials in BPS-1 and above of the office of Advocate General ofSindh, Karachi, with effect from 1st February, 2013.

TENTATIVELY

In caseof the said order of the Honourable High Court is set aside by the HonourableSupreme Court of Pakistan, then all payments made will be recovered ininstallments.

SECRETARY TO GOVERNMENT OF SINDH

FINANCE DEPARTMENT

Karachi dated the 1st February, 2013

The above are sufficient to make it clear that ‘special judicialallowance’ is not limited/confined to judiciary alone but to its counter-parti.e. ‘state-representation’. Thus, the learned State counsel would not belegally justified in opposing the instant relief, sought through said petition(s) merely by uttering word of ‘civil servant’ while not denying the fact thatsuch benefit is also being taken by office (s), representing the State thoughin civil matter (s). In the case of Pir Imran Sajid and others v. ManagingDirector/General Manager and others 2015 SCMR 1257 it is held as:-

“1.It hardly needs to be emphasized that the whole edifice of government of thesociety has it genesis in the Constitution and laws aimed at to establish anorder, inter alia, ensuring the provisions of socio-economic justice, so thatthe people may have guarantee and sense of being treated in accordance with lawthat they are not being deprived of their due rights.

In the said case, it was further observed as:-

“Provisionof Article 4 embodies the concept of equality before law and equal protectionof law and save citizens from arbitrary/discriminatory law and actions by thegovernmental authorities. Article 5(2) commands that every body is bound toobey the command of the constitution’. Every public functionary is supposed tofunction in goods faith, honestly and within the precincts of its power so thatperson concerned should be treated in accordance with law as guaranteed byArticle 4 of the Constitution. It would include principles of natural justice,procedural fairness and procedural propriety. The action which is mala fide orcolourable is not regarded as action in accordance with law. While dischargingofficials functions, efforts should be made to ensure that no one is preventedfrom earning his livelihood because of unfair and discriminatory act on theirpart.

“12.It is now well laid down that the object of good governance cannot be achievedby exercising discretionary powers unreasonably or arbitrarily and withoutapplication of mind but objective can be achieved by following the rules ofjustness, fairness, and openness in consonance with the command of theConstitution enshrined in different Articles including Articles 4 and 25. Theobligation to act fairly on the part of the administrative authority has beenevolved to ensure the rule of law and to prevent failure of the justice.

We would insist that obligation to act fairly would always require theState Counsel to make a fair statement or least give reasonable justificationto the effect that functions and duties of the office of petitioners isdifferent from that of their (s).

11. Though,no such classification/justification has been attempted, however, as an abandoncaution the functions and duties of the office (s) of these two be examined.Office of the Advocate General Sindh’, prima facie, is assigned the work todefend the interest of provincial and local functionaries of Government inConstitutional Petitions and Civil matters before the High Court and SupremeCourt. On the other hand, the function of the office of the CriminalProsecution Services, per section 9 of the Sindh Criminal Prosecution Service(Constitution, Functions and Powers) Act, 2009 is:

“9(1)The Prosecution shall be responsible for the conduct of prosecution on behalfof Government.’

Prima facie, the purpose and object of both offices is one and same i.e.representation of the Government and mere difference of ‘civil matters’ and’criminal prosecution’ cannot be said to be a deciding different (factor). Inshort, both office (s) are meant to protect the government interest inspecified fields i.e. civil and criminal. We would also add that the Governmentwas / is not only required to protect its civil rights (matters) but is alsorequired to ensure peace and tranquility in the society which cannot beachieved unless and until the prosecution services is not provided effectively.We would say that a civil right / interest of government may cause prejudice tosuch right alone but a failure in prosecution would surely affect thegovernance which may even result in ‘failure of government’ therefore, the dutyand obligation of the prosecution, in our view, is more serious. Office ofAdvocate General perform same function in the Province as is performed by theoffice of the Sindh Criminal Prosecution Service, therefore are entitled forequal treatment else there shall be a failure of Article 25 of theConstitution. In an unreported judgment in WP Sadaqat Ali v. Government ofPunjab, where the Advocate General Office was directed to be placed equallywith the Attorney General Office on the ground that the officers attached tothe Principal Law Officer performs similar function as is being performed bythe Attorney General and the officers attached thereto. Therefore plea ofdiscrimination by employees of Sindh Criminal Prosecution Service carriessubstance. The petitioners are entitled to avail the benefit, being availed bythe office of the Advocate General Sindh.

12. Inthe last, we would say that to provide inexpensive and expeditious justice interms of Article 37(d) of the Constitution, 1973 it is the responsibility ofthe State; the Federation cannot shed its responsibility on the premise that itis responsibility of the Province of Sindh. Inexpensive and expedient justicecould only be achieved by efficient, competent and independent judicialapparatus, which all attributes have direct nexus with better reward in termsand condition of service and financial independence of the Judiciary. To removedisparity and ensure wellbeing of the people is responsibility of the State,which in turn would eliminate inequality in the income and earning ofindividual including persons of various classes similarly placed. (See AttiyyaBibi v. Federation of Pakistan 2001 SCMR 1161 and Muhammad Akram v. SelectionCommittee (2003 CLC 18). Be that as it may, it is a matter of record theGovernment of Sindh (Finance Department) did allow special judicial allowanceto office of the Advocate General Sindh therefore, the same cannot seek anexception to provide similar relief/treatment on account of any financialissue.

13. Inview of what has been discussed hereinabove we are of the view that thepetitioners have made out a case for grant of Special Judicial Allowance equalto three times of the initial of the substantive pay scale with effect from01.07.2017, as such, the instant petitions are allowed declaring that thedeferment/refusal of the arrears of the Special Judicial Allowance to themembers of Sindh Criminal Prosecutors Service, their subordinate staff as wellas petitioners in C.P. No. 3644 of 2013 and C.P. No. 1657 of 2013 and C.P. No.1053 of 2013 and other subordinate staff of office of District Attorneys andDeputy District Attorneys with effect from 01.07.2017 on the ground offinancial constraints being discriminatory is violative of Articles 25 of theConstitution of Islamic Republic of Pakistan, 1973. The members of SindhCriminal Prosecutors Service, their subordinate staff as well as petitioners inC.P. No. 3644 of 2013 and C.P. No.1657 of 2013 and C.P. No. 1053 of 2013 andother subordinate staff of office of District Attorneys and Deputy DistrictAttorneys are entitled to the Special Judicial Allowance equal to three timesof the initial substantive pay scale with effect from 01.07.2017. Consequentlythe respondents are directed to pay Special Judicial Allowance equal to threetimes of the initial of the substantive pay scale to the members of SindhCriminal Prosecutors Service, their subordinate staff as well as petitioners inC.P.No. 3644 of 2013 and C.P. No.1657 of 2013 and C.P. No.1053 of 2013 andother subordinate staff of office of District Attorneys and Deputy DistrictAttorneys with effect from 01.07.2017 and notification be issued accordingly,such increase to be paid with effect from 1st January 2019 and arrears witheffect from 1st of July 2017 be paid in monthly instalments along with monthlysalary till entire arrears are paid with monthly salary for the month same isdue. However, they are not entitled for utility allowance as same had not beenallowed by the provincial and federal governments to the Advocate GeneralSindh, Attorney General of Pakistan and their subordinate staff.

14. InC.P. No. D-3460 of 2011, the respondents are directed to take steps andinitiate such legislative measures as may be necessary to empower the SindhCriminal Prosecutors Service’s supervisory role over the performance ofinvestigation officers of the criminal cases. The respondents are further directedto take steps and initiate such legislative measures as may be necessary toframe appropriate rules relating to the financial and budgetary independence ofthe Sindh Criminal Prosecutors Service.

15. InC.P. No. D-1524 of 2013 and C.P. No. 1268 of 2016, the respondents are directedto take measures and initiate such legislative measures as may be necessary toframe the service structure of the employees/non gazetted staff of the CriminalProsecution Services Department and prepare seniority list as per rules.

KMZ/A-103/Sindh Orderaccordingly.