' SYED ZAHID HUSSAIN, J.--- The petitioners herein and in the connected petitions (Writ petition No,5097 of 2006 and Writ Petition No,6528 of 2006) are Professors/Lecturers in different colleges in the Province of Punjab teaching respective subjects of Science/Social Science. They hold Ph.D.
Degrees. It is their grievance that they were being paid special allowance Science and Technology (S&T) @ Rs,5,000 per month, which has been discontinued in view of the circular dated 24-3-2005 by the Accountant-General, Punjab and proceedings for recovery have been initiated for the period they were paid the allowance. They seek a direction "to pay Special Science and Technology Allowance @ Rs,5,000 to Ph.D. Degree-holders working in colleges from the date of stoppage of the said allowance", and that "recovery proceedings being initiated by the respondent No,5, may be stopped till the final decision of the instant petition."
' Report and parawise comments were called from the respondents which have been filed.
2. An objection as to the maintainability of the present petitions has been taken with reference to provisions of Article 21 of the Constitution of Islamic Republic of Pakistan, 1973. The learned Additional Advocate-General Punjab has strenuously contended that since the matter relates to the conditions of service of the petitioners their remedy lies before the Punjab Service Tribunal and jurisdiction of this Court stand excluded by virtue of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973.
' The learned counsel for the petitioners, however, contends that since the payment of the allowance has been stopped by order of respondent No,5 who is not the "Departmental Authority" of the petitioners, the petitioners cannot have resort to the Punjab Service Tribunal under section 4 of the Punjab Service Tribunals Act, 1974 and that objection as to the exclusion of jurisdiction of this Court being raised is misconceived. It is further contended that in view of the abridgement of fundamental rights and violation of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 the jurisdiction of this Court has rightly been invoked by the petitioners.
3. Since the objection goes to the very root i,e, assumption of jurisdiction by this Court in the matter, it has, therefore, engaged my attention to deal with the same at the outset. It may be mentioned here that the provisions of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 provide for the establishment of Tribunals to exercise exclusive jurisdiction in respect of the matters relating to the terms and conditions of persons in the service of Pakistan including the disciplinary matters and exclude the jurisdiction of all other Courts in matters to which the jurisdiction of the Tribunal, extends section 4 of the Punjab Service Tribunals Act, 1974 (Act IX of 1974) provides the remedy of appeal to "Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service".
Explanation, to this section defines the "departmental' authority" as "any authority other than a Tribunal which is competent to make an order in respect of any of the terms and conditions of the civil servant". The term "departmental authority" thus assumes substantial significance in order to determine whether a particular matter falls within the jurisdiction of the Service Tribunal or not. The provisions of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 as also of the Laws relating to the establishment of Service Tribunals (Federal/Provincial) have time and again been the subject to scrutiny by the Courts. In the well-known case of LA. Sharwani and others v.
Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041 and elaborate discussion on this issue appears and it was observed that "from the above-quoted Article 212 of the Constitution and section 4 of the Act, it is evident that the jurisdiction of the Courts is excluded only in respect of the cases in which the Service Tribunal under subsection (1) of section 4 has the jurisdiction. It must, therefore, follow that if the Service Tribunal does not have jurisdiction to adjudicate upon a particular type of grievance. The jurisdiction of the Courts remains intact. It may again be pointed out that the Service Tribunal has jurisdiction against the final order, whether original or appellate, made by a departmental authority in respect of any terms and conditions of service. The question, therefore, arises, whether the relevant enactments/notifications containing the provision for payment of enhanced pension, which have been denied to the pensioners, can be treated as a final order, original or appellate, passed by a departmental authority in respect of any terms and conditions of service." The jurisdiction under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973 was thus, assumed by the apex Court. In Mian Muhammad Aslam v. The Auditor-General of Pakistan, Islamabad and 2 others 1995 PLC (C.S.) 1178 by placing reliance upon observations in I.A. Sharwani case (supra) the view taken by this Court was that "the jurisdiction of this Court to entertain a constitutional petition at the behest of a civil servant is not ousted in respect of all matters but the ouster is limited to only to those cases which can be taken up by the Service Tribunal. Under section 4 of the Punjab Service Tribunals Act, 1974 appeal lies before the Service Tribunal against an order passed by the Departmental Authority. However, in the present case; there is no such order of the Departmental Authority, Instead, the Accountant-General, Punjab has raised an objection that the petitioner had been paid emoluments of which he was not entitled to receive and as such the same be deducted out of the pension payable to the petitioner."
Reference may also be made to Dr. Aasia Mengal Principal, Regional Training Institute, Government of Pakistan Quetta and others v. Government of Pakistan through, Ministry of Population Welfare Division, Islamabad and others 2006 PLC (C.S.) 529 wherein a learned Division Bench of Balochistan High Court issued writ regarding entitlement qua Instructional Allowance in view of ramifications of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973. Likewise in the instant case the stoppage of payment of allowance has been assailed (alleging violation of Article 25 of the Constitution of Islamic Republic of Pakistan (1973) as ordered by the Accountant-General, Punjab whose action is not appealable before the Punjab Service Tribunal, in terms of section 4 of Punjab Service Tribunals Act. The exclusion of jurisdiction of this Court as adumbrated by the learned Additional Advocate-General Punjab in the peculiar circumstances would not be attracted.
4. Adverting to the claim of the petitioners that they were and are entitled to the payment of Science and Technology Allowance, (S&T) which has been stopped by order, dated 24-3-2005, the background of the grant of such an allowance need to be taken note of. It was in the year 1988 when grant of Ph.D./D.Sc Allowance of Rs,1,500 per month was made payable w,e,f, 1-7-1988 to all Ph.D./D.Sc. Degree-holder Civil Servants, employees of autonomous bodies/semi-autonomous organization/corporations. In the year 2002 the Governor of the Punjab decided to "grant Special Science and Technology Allowance (S&T) to Ph.D. Degree-holders working in R&D Organizations.
Universities and Science and Technology Institutions/Centres" in the subjects mentioned in letter, dated 9-8-2002. Such allowance was @ Rs,5,000 per month. Its paragraph 2 has got the some relevance which is as follows:-- "The rate of Special S&T Allowance would be Rs,5,000 and all those who shall receive this allowance on account of Ph.D. Degree in specified subjects, shall cease to receive Ph.D. Allowance i,e, Rs,1,500 p.m. Drawn by them presently."
' The scope of this allowance was extended later on vide letter dated 1-11-2003 "to those faculty members who hold Ph.D. Degree in Social Science as well". A clarification was issued on 8-5-2004 by the Government of the Punjab Finance Division to the effect that "the benefit of Special Science and Technology Allowance cannot be allowed to the Lecturer/Professor of a College". Despite this the Government of the Punjab continued to pay the allowance to the petitioners and similarly situated Ph.D. Degree-holders until it was stopped by the Accountant-General Punjab on 24-3- 2005. After having stopped the payment of the said allowance the Accountant-General Punjab sought a clarification from the Finance Department as to "whether college professors are also entitled to the Special Science and Technology Allowance @ Rs,5,000 p.m." On 17-8-2005 the Government of the Punjab Finance Department issued a clarification that "Science and Technology Allowance (S&T) at Rs,5,000 per month is admissible to the Ph.D. Degree-holders in specific subjects and are working in R&D Organization, Universities and Science and Technology Institutions/Centres only". Another clarification was issued on 17-10-2005 that "Lecturers/Professors holding Ph.D. Degree and working in the Degree/Post Graduate Colleges affiliated with the Universities are not entitled to Special Science and Technology Allowance". With reference to the above mentioned letters/circulars issued by the Government of the Punjab from time to time the learned counsel for the petitioners has mainly contended that denial of such allowance to the petitioners who were Lecturers/Professors in Colleges is violative of Article 25 and Article 4 of the Constitution of Islamic Republic of Pakistan, 1973, inasmuch as that the petitioners having acquired higher qualification and degree of Ph.D. Are entitled to similar treatment and Lecturers/Professors in the Universities and other Institutions. According to him, there exists no real distinction between the petitioners and those who are being paid this allowance. Irrationality and unreasonableness is thus, being attributed to the respondents in creating differentiation, which according to him is also illogical and unfair approach towards similarly placed persons. Reference has been made to I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041; Government of N.-W.F.P. Through Secretary and 3 others v. Mejee Flour and General Mills (Pvt.) Ltd., Mardan and others 1997 SCMR 1804; Federation of Pakistan through Secretary, Ministry of Education Government of Pakistan. Islamabad' and others v. Qamar Hussain Bhatti and others PLD 2004 SC 77, Pakistan International Airlines Corporation through Chairman and others v. Samina Masood and others 2005 PLC (C.S.) 1335 and Dr. Aasia Mengal Principal, Regional Training Institute, Government of Pakistan, Quetta and others v. Government of Pakistan through Ministry of Population Welfare Division, Islamabad and others 2006 PLC (C.S.) 529. It is further contended that the petitioners who were lawfully entitled to such allowance could not be deprived of the same by applying the circulars/letters with retrospective effect. Reference in this context has been made to page 162 of Judicial Review of Publit Actions by Justice (R) Fazal Karim.
' The learned Additional Advocate-General Punjab has produced the various circulars/Notifications issued by the Government of the Punjab from time to time and contends that a policy decision of the nature cannot be interfered by this Court and that the Government is entitled to make classification as to the grant or otherwise of such allowance. The learned Deputy Attorney-General for Pakistan as also the learned Additional Advocate-General Punjab bas laid great emphasis, that for the grant of such an allowance, the Government itself is the best Judge whose decision should hold the field.
5. It needs no emphasis that the concept of equal protection and equality before law is the hallmark of our Constitutional Scheme recognized by not only the Preamble, Objectives Resolution, Article 4, Article 25 and Article 27 of the Constitution of Islamic Republic of Pakistan, 1973 but also the Principles of Policy contained in Article 37 of the Constitution of Islamic Republic of Pakistan, 1973. Equal protection and equal treatment of citizens similarly placed is universally accepted and recognized principle which has been explained by many authors in the text books and Judges in the precedents that statutory functionaries in a democratic set up could not make any individual distinction for any extraneous reasons and the exercise of discretion must be free of arbitrariness and caprice. Lord Denning in his. Work on "Due process of Law" stated that "Equality is the order of the day. In both directions. For both sexes. What is sauce for the goose is sauce for the gander".
Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 which ordains this doctrine was elaborately considered in Pakistan Petroleum Workers Union through its General Secretary v.
Ministry of Interior through its Secretary, Islamabad and another 1991 CLC 13. A passage whereof I feel tempted to reproduce here, reads as follows:-- "This Article guarantees to all citizens of Pakistan equality before law and equal protection of law.
These rights guaranteed by the Constitution are now universally applied and practiced in all the civilized world. It find recognition in Universal Declaration of Human Rights and the Covenant on Human Rights, 1950. An examination of Constitutions of various countries will show that the written Constitutions have invariably used the expression "equality before law" but "equal protection of law" has not so commonly been used. According to the jurists term "equal protection of law" finds its origin in the 14th Amendment of the American Constitution. In my humble view the concept of both terms "equality before law and "equal protection of law" is not of so recent origin in jurisprudence as described by various authors and jurists. From a comparative study of the legal history and jurisprudence we find that the concept of equality before law and principle of "equal protection of law" were for the first time given and firmly practised by the Holy Prophet (peace be on him)
Therefore, it can be traced as far back as 1400 years i,e, much before the Magna Carta, 14th Amendment of American Constitution, Declaration of Human Rights and the theory of Rule of Law as enunciated by the Western Jurists. The Last Sermon of the Holy Prophet (peace be on him) is a landmark in the history of mankind which recognizes the inalienable Rights of a man conferred by Islam which are known as Fundamental Rights. The following extracts from the farewell Sermon can be reproduced for reference:-- ".... 0 ye people, Allah says: 0 people We created you from one male and one female and made you into tribes and nations, so, as to be known to one another. Verilly in the sight of Allah, the most honoured amongst you is the one who is most God-fearing. There is no superiority for an Arab over a non-Arab and for a non-Arab Over an Arab, neither for the white over the black nor for the black over the white except in God-consciousness."
"All mankind is the progeny of Adam and Adam was fashioned out of clay. Behold! Every claim of privilege whether that of blood or property, is under my heels except that of the custody of the Ka'ba and supplying of water to the pilgrims..."
' Behold! All practices of the days of ignorance are now under my feet. The blood revenges of the days of ignorance are remitted... All interest and usurious dues accruing from the times of ignorance stand wiped out...."
"0 people, verily your blood, your property and your honour are sacred and inviolable of this day of yours, this month of yours and this very town (of yours). Verily you will soon meet your Lord and you will be held answerable for your actions." (Translated by Hamdard National Foundation).
' In "Law, Justice and Islam" Justice Dr. Nasim Hasan Shah while referring to the farewell Sermon at page 7 has observed:- "The farewell Sermon of the Holy Prophet (p.b.u.h.) was a comprehensive charter founded on the basic, fundamental, inalienable and residual rights of Man guaranteed in written form, under the Holy Qur'an which constitute the Spoken Word of Allah. These rights according to the belief of Muslims, cannot be obscured or eradicated by any mortal power".
' The following pages in the book contain illuminating discussion and reference to the Holy Qur'an and Sunnah.
The same concept of equality before law and equal protection of law has been embodied in Article 25 of the Constitution.
"The terms "equality before law and "equal protection of law" seem to convey the same meaning. In practice and while pressing them in service there may hardly be much difference because they aim at providing full protection of law to each and every citizen irrespective to his caste, creed, class, status or sex. In order to create a just society, justice has to be done at all level and this objective can be achieved only if all citizens are treated equally before law and are entitled to equal protection of law. The effect of this phraseology is felt more when the law is administered. It is possible that certain law may not be ex facie discriminatory but once it is put in practice by virtue of discretion given to the functionaries it becomes discriminatory and violative of Article 25."
(Emphasis supplied by underlying the portions).
' Such is the import, extent and significance of the principles embodied in Article 25 of the Constitution of Islamic Republic of Pakistan, 1973. It received due attention of the apex Court as well in number of cases. In I.A. Sharwani case (supra) on consideration of number of precedents, the principles deducible were stated inasmuch as that "a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25; and that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed." These precedents and principles laid down by the Courts provide valuable guidelines for all times to come. Deviation wherefrom taints the action with illegality. Thus, any policy decision which may be violative of the principles embodies in Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 cannot have any legal sanctity and efficacy.
6. It may be noted that the petitioners were being paid the Ph.D./D.Sc. Allowance @ of Rs,1,500 as per the decision of the Government of the Punjab dated 20-7-1988. The Science and Technology Allowance to Ph.D. Degree-holders pursuant to the decision of Governor of the Punjab dated 9-8- 2002 was also being paid to them. It was later sometimes in the year 2004 that issue about the entitlement of the petitioners (Ph.D. Degree-holders) cropped up that only Ph.D. Degree-holders working in R&D Organization, Universities and Science and Technology Institutions/Centres were entitled to such allowance. It needs no reiteration that Ph.D. Degree-holders Lecturers/Professors in Universities and Science and Technology/Institutions/Centres perform almost the same function and duty i,e, teaching and impartation of educational instructions in the respective subjects in the Institutions. According to Encyclopedia Americana Vol. 7, (1997) page 238 "College is a general term used to designate several kinds of educational institutions above the high school level. In the United States, the terms "college" and "university" are frequently used interchangeably... In England, as in the United States, the term "college" may mean a division of a university. Oxford and Cambridge universities, for example, are composed of an affiliation of independent corporate colleges furnishing under-graduate and graduate study". An "Institution" as per the Corpus Juris Secundum Vol. 44 pages 412-413 is described as having various meanings "which may carry anyone of several significations according to the context"... "According to the context, "institution" may be synonymous with "university", or it may be used as meaning no more than a department or college of a university located apart therefrom, and in its working organization distinct from it". The possible difference in a college or university may be of status but the object and purpose remains the same. However, in the context of the controversy the rationale behind the grant of such allowance is to be discovered and kept in view.
' From the perusal of the above mentioned circulars it is manifestly clear that it is the higher qualification and holding of degree of Ph.D. Which was the object of grant of such allowance. It was indeed an incentive/benefit for those who acquire higher qualification and attain a distinct position of Ph.D. In the respective subject/field. Initially the University Ph.D. Professors/Lecturers and of all other colleges were considered entitled to the grant of such allowance and were paid. The petitioners who were similarly holding Ph.D. Degree could not be excluded from the grant of such allowance. At this juncture reference may be made to Dr. Aasia Mengal Principal, Regional Training Institute, Government of Pakistan, Quetta and others v. Government of Pakistan through Ministry of Population. Welfare Division, Islamabad and others 2006 PLC (C.S.) 529; wherein a Division Bench of Balochistan High Court took the view that "No doubt reasonable and rational classification of a particular category of class of employees to be entitled to receive an additional benefit can be made keeping in view a particular or specialized or skilled nature of duties to be discharged by such employees by virtue of their assignment or holding of office, but further classification within the category of class of employees to avail certain benefits would amount to discrimination within the purview of Article-25 read with Article-4 of the Constitution of Islamic Republic of Pakistan which is not permissible unless it is shown that to deprive the employees of the other organizations of the government similarly placed and situated in discharging similar nature of functions and duties for a particular purpose are not entitled to receive the benefit already accrued and made available to them except the employees of one of such organizations, but in the instant case no such distinction has been made, nor could be pointed out during the course of arguments by the learned Standing Counsel. Earlier to the objected decision made by the Establishment Division, the officers/staff members of the organizations of the Federal Government since July, 1986 were receiving Instructional Allowance at the specified rates deployed on instructional duties in imparting training to the government servants including the employees of the Directorate of Clinical Training Karachi, but subsequently vide impugned order of the Establishment Division as contained in his letter dated 24-1-1997 the officers/staff of the other organizations have been found to be not entitled for the Instructional Allowance except the employees of the Directorate of Clinical Training, Karachi, although; the officers/staff of the other organizations of the government deployed on instructional duties and imparting training to the government servants were equally entitled to receive the Instructional Allowance. Undoubtedly, per se a classification does not offend the constitutional guarantee, but it must be based upon some intelligible differentia, bear reasonable and just nexus to the object sought to be achieved by an executive act and in case the designated authority transgresses the limits while exercising the powers the actual order of the authority would be treated as unconstitutional. In the instant case the exercise of discretion in isolating the similar class of officers/staff of the organizations of the government discharging similar nature of functions and duties, imparting training to the government servants and deployed on instructional duties have been singled out and segregated to be not entitled to receive the Instructional Allowance, obviously, is an act of discriminatory nature/offends the provisions of the above said Article of the Constitution and thus; cannot be allowed to hold the fields." (Underlined by me for emphasis).
7. It is also a settled principle that for making distinction and classification there should exist a reasonable and just basis and not D merely arbitrariness. In Union of India and another v. R.G.
Kashikar and another AIR 1986 SC 431, it was observed that "In order to pass the test of permissible classification, two conditions must be fulfilled, namely: (1) That the classification, must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others who are left out of the group, and (2) That difference must have a rationale relation sought to be achieved by the Act. That test is clearly not fulfilled in the case of Instructors under the Scheme. The distinction sought to be drawn by the learned Judges between the two classes of Central Government employees i,e, those who work on Central Government activities and those who work on State Government activities, is without any rational basis and the Instructors under the Scheme could not be treated as a class distinct and separate. Such classification or differentiation of the Instructors under the Scheme as a class of Central Government employees for depriving them of the benefits in "matters relating to employment" which expression includes matters relating to salary, periodical increments, leave, gratuity, pension, age of superannuation etc., although they continued to remain Central Government employees till the date of absorption, was per se discriminatory and violative of Articles 14 and 16 of the Constitution." In State of Maharashtra v. Manubhai Pragaji Vashi and others AIR 1996 SC 1, non-extending of grant in aid to non-Government Law Colleges and at the same time extending such. Benefit to non-Government Colleges was found to be patently discriminatory.
8. Even the views expressed and conveyed by the Higher Education Commission in the matter cannot be overlooked inasmuch as that through various letters its Chairman has been persuading the Government that Ph.D. Level faculty members/Colleges Institutions were also entitled to the benefit of Science and Technology Allowance. This was for the reason that the word "Institution" mentioned in order dated 9-8-2002 included within its ambit the Colleges. Such an approach seems to be consistent with the rationale and logic behind the grant of such allowance i,e, higher qualification i,e, Ph.D. Degrees as an incentive to those wh o acquire higher qualification and excellence in the respective subjects. The stoppage of the allowance to the petitioners thus, is based on an incorrect approach to the matter contrary to the objectives of the grant of such allowance, which cannot be sustained.
' In such view of the matter by accepting the petition, Circular dated 24-3-2005 whereby the allowance was stopped to the petitioners is declared as of no legal effect. No order as to costs.