This writ petition is filed with the following prayers :-- "It is therefore, most respectfully prayed that by allowing the instant writ petition Respondents Nos, 1 and 2 may kindly be directed to allow/sanction the judicial allowance being admissible equal to the members of the staff of the Honourable Lahore High Court and the Punjab Bar Council under various Notifications issued from time to time at the rate of 10% w.e.f 12.09.2002 and 20% w,e,f, 01.7.2003 and 30% of the running basic pay w,e,f, 22.01.2008 as allowed vide Notification No, FD.
SR.1/91-1/2002 to all the staff members of the Office of the Advocate-General, Punjab.
Any other relief which this Honourable Court may deem fit and proper may also be awarded."
2. The learned counsel for the petitioner submits that the petitioner and his similarly placed colleagues are being discriminated without any cogent reason particularly keeping aside the strong recommendations of the administrative department, extending the same benefit in the office of Attorney General for Pakistan, High Courts Lahore, Sindh, Quetta and Peshawar and this very action of the respondents virtually offends the specific provisions of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 which calls for interference of this Court.
3. The learned Assistant Advocate General Punjab Lahore assisted by the Deputy Secretary, Finance Department; Government of the Punjab strongly opposed the contentions raised by the learned counsel for the petitioner and submits that the matter relating to the terms and conditions of civil servants cannot be amenable to the writ jurisdiction. Further submits that the recommendations made by the departmental Head are not binding on the Government and only on this ground that some recommendations were made by the departmental Head, the petitioner and his colleagues cannot be held entitled for the relief claimed for.
4. Arguments heard; record perused.
5. First of all I will advert to the point of jurisdiction.
6. The prayer of the petitioner clearly reveals, that neither any final nor appellate order of the departmental authorities is under challenge before this Court rather a direction is sought which can be issued in exercise of powers under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 particularly on the strength of law laid down in a recent case reported as Secretary Revenue v. Muhammad Saleem (2008 SCMR 948).
7. It is further observed that principle object behind all legal formalities is to safeguard the paramount interest of justice--legal precepts were devised in order to view to impart certainty, consistency and uniformity, administration of justice--to secure same against arbitrariness, errors of individual judgments and malafides In support of this observation, I can rely on a judgment reported as Mrs. Munawczr Sanni v. Director Army Education (1991 SCMR 135), Administrator District Council Larkana and others v. Gulab Khan and 5 others (2001 SCMR 1320). In the case of Mrs. Munawar Sanni (supra) despite her status of civil servant she approached the High Court for the redressal of grievance and the point of jurisdiction was raised even up to the level of Hon'ble Supreme Court of Pakistan and the same was resolved in the following terms:-- "Question whether she should approach the Civil Court or the Service Tribunal for this purpose was not very pertinent in the face of bound down obligation of the authorities to satisfy her claim themselves without the necessity of driving needy litigants a pillar to post."
8. In the light of judgments of the Hon'ble Supreme Court of Pakistan referred above, the objection of maintainability of the writ petition raised by the learned Assistant Advocate General Punjab Lahore is repelled.
9. So far the merits of the case is concerned, it is not denied by the departmental representative that in case of employees of High Court of Lahore, Sindh and Quetta they are getting the said allowances for which the petitioner is agitating however, it is contended on behalf of the respondents that they are unaware of the position in respect of the staff of Attorney General for Pakistan, however, when confronted with the summary, dated 12.12.2007 submitted by the Attorney General for Pakistan the departmental representative could not advance her case further. To resolve the present controversy the said summary is reproduced as under :-- "Office of the Attorney General for Pakistan Supreme Court Building, Islamabad.
SUMMARY FOR THE PRIME MINISTER.
Subject : GRANT OF INCENTIVE ALLOWANCE AT THE RATE, OF 20% OF BASIC PAY TO THE OFFICERS/STAFF OF THE OFFICE OF THE ATTORNEY GENERAL FOR PAKISTAN.
In Clause (3) of Article 100 of the Constitution of Islamic Republic of Pakistan it shall be the duty of the Attorney General to give advice to the Federal Government upon such legal matters, and to perform such other duties of a legal character, as may be referred or assigned to him by the Federal Government, and the performance of his duties he shall have the right of audience in all Courts and tribunals in Pakistan.
2. Under the rules privileges and benefits of the Attorney General for Pakistan are equal to that of a Judge of the Supreme Court. The rules, benefits and other privileges and the staff of the Attorney General are applicable to that of the Federal Government employees. On the other hand, the nature of duties, official timing of the staff are applicable to that of the Supreme Court and High Courts, because in the morning to 1.00 p.m. the staff remains busy in Courts proceedings alongwith the Attorney General and thereafter 1.00 p.m. to late hours. prepare the cases for the next day. It is an admitted fact that the nature of duties of the staff of the Attorney General's Office is identical to that of employees of the Supreme Court of Pakistan and High Courts.
3. The Hon'ble Chief Justice of Pakistan has been pleased to grant 20% on their basic pay as Special Judicial Allowance to the employees of the Supreme Court of Pakistan. Copy of the notification is attached as ANNEX-`A'.
4. The Hon'ble Chief Justice of the High Court of Lahore, Sindh, Quetta and Peshawar have also been pleased to grant Judicial Allowance to the staff of their respective High Courts at Principal seat as well as its benches. Copy of the notification is attached as ANNEX-'B'.
5. It is also pertinent to mention here that the Hon'ble Prime Minister of Pakistan has also granted incentive allowance at the rate of 20% of basic pay to the employees of the Federal Tax Ombudsman and Wafaqi Mohtasib. Copy of the notification is attached as ANNEX-'C'.
6. It is submitted that an amount of Rs,47,986/- per month is involved for the grant of 20% Special Incentive Allowance to the employees of the Office of the Attorney General for Pakistan. The amount can be met within the allocated budget and therefore, no budgetary implication is involved in grant of 20% incentive allowance.
7. The approval of the Hon'ble Prime Minister of the Islamic Republic of Pakistan is solicited.
MALIK MUHAIVIMAD QAYYUM Attorney General for Pakistan Dated: 12.12.2007.
Mr. Khalid Saeed, Principal Secretary to the Prime Minister of Pakistan, Prime Minister Secretariat, Islamabad. "
10. The worthy Prime Minister after examining all aspects of the matter as well as recommendations of the Attorney General for Pakistan decided the matter in favour of the staff of the Office of Attorney General for Pakistan and in pursuance to that Finance Division. Government of Pakistan issued a letter dated 29.1.2008 in the following terms:- "Government of Pakistan Finance Division (Regulations Wing).
Subject : GRANT OF INCENTIVE ALLOWANCE (a) 20% OF THE BASIC PAY TO THE OFFICERS/STAFF OF THE OFFICE OF ATTORNEY GENERAL FOR PAKISTAN, ISLAMABAD.
Reference Office of the Attorney General for Pakistan, Islamabad's letter No, 1(1) 2007/AGP, dated 28.1.2008 on the subject noted above.
2. In pursuance of a decision of the Prime Minister received vide Prime Minister's Secretariat U.O. No, 4465/PSPM/2007, dated 16th January, 2008, it has been decided to grant Special Incentive Allowance @ 20% of basic pay to the employees of the Office of the Attorney General for Pakistan with immediate effect to be regulated as under:--
1. It will be admissible during leave as well as preparatory to retirement.
2. It will not be admissible during extra-ordinary leave.
3. It will not be treated as part of pension.
4. It will cease to be admissible on transfer, posting and deputation outside the Office of the Attorney General for Pakistan, Islamabad.
5. It will not be admissible during the period of suspension.
(Muhammad Shafi Awan) Section Officer (R-III) Tele; 9262718.
Secretary/Controlling Officer, Office of the Attorney General for Pakistan, Islamabad.
U.O. No, F.14 (5) R.3/2007-060/2008, dated 29th January, 2008."
11. After hearing the learned counsel for the parties as well as the perusal of the record it is held that the petitioner and his colleagues are being made the subject of discrimination because the similarly placed employees are enjoying the said benefit which the petitioner and his colleagues are claiming but they are being deprived without any cogent reasons and justification. In such like situation the Hon'ble Supreme Court of Pakistan always came for the rescue of aggrieved persons and in that respect the reliance can be placed on a judgment reported as Hussain Badshah and another v. Akhtar Zaman and others (2007 PLC (C.S) 157) wherein the Hon'ble Supreme Court of Pakistan held that "Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 guarantees equal treatment before law and equal protection of law to all citizens similarly placed."
12.In a reported case titled Dr. Munir Ahmad and 37 others v. Government of Pakistan, Finance Division, Islamabad and 4 others (2007 PLC (C.S.) 285), the present Hon'ble Chief Justice held that "concept of equal protection and equality before law is hallmark of the Constitutional scheme recognized by not only the Preamble, Objectives Resolution, Articles 4, 25 & 27 of the Constitution but also by the Principles of Policy contained in Article 37 of the Constitution--Equal protection and equal treatment of citizens similarly placed is universally accepted and recognized principle, which has been explained by many authors in textbooks and Judges in precedents--Statutory functionaries in a democratic set up cannot make any individual distinction for any extraneous reasons and exercise of discretion must be free of arbitrariness and caprice."
13.In a recent reported case titled Ibrahim Flour and General Mills, District Sheikhupura through Chief Executive v. Government of Punjab through Secretary to the Government of the Punjab, Food Department, Lahore and another (PLD 2008 Lahore 184), the point of discrimination was thoroughly examined, dilated upon and held the point of discrimination calls for interference and exercise of powers of judicial review."
14.When it is admitted on record that the similarly placed employees of High Courts, Office of the Punjab Bar Councils, Office of Attorney General for Pakistan, Federal Tax Ombudsman, and Wafaqi Mohtasib are getting the benefits but the petitioner and his colleagues are being deprived of the same, the Respondents' action being a violative of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 cannot remain in field.
15.The Deputy Secretary, Finance Department, Government of the Punjab (departmental representative) candidly submits that the precedents of employees of Office of Attorney General for Pakistan etc. cannot be made the basis of petitioner's claim because the Office of Attorney General for Pakistan belongs to Federal Government and the petitioner and his colleagues are employees of Provincial Government's attached department.
16.Suffice it to refer a judgment reported as Dr. Naveeda Tufail and 72 others v. Government of Punjab and others (2003 SCMR 291) which is a sufficient answer to the department's contentions.
17.Viewing from all angles it is held that the petitioner and his colleagues working in the Office of Advocate General Punjab are entitled for the relief claimed in the prayer clause of the writ petition.
The writ petition is allowed. The respondents are directed to extend the said benefit to the petitioner and his colleagues within a period of two months positively from the date when the employees of office of Attorney general for Pakistan were granted the said benefit i,e, w,e,f, 29.1.2008.