' SYED HAMID ALI SHAH, J.--- Briefly stated the facts of the case in hand are that the petitioner was granted BPS-20 from 31-5-1994 and BPS-21 with effect from 10-12-1999. The Orderly Allowance was it included in his pay slip, against which the petitioner, moved an application to the Registrar of this Court on 20-11-2002 and having received no response, the request was repeated on 29-5-2004.
The plication was subsequently forwarded to Accounts Officer in the establishment of respondent No,3, requesting therein to issue revised L.P.C. By including the Orderly Allowance. The Deputy Accountant-General, through letter, dated 29-10-2004, declined the request, on the plea that Notification No,F.1(2)Reg.(6)/91, dated 28-9-1991, pertains to the Federal Government employees only, besides that the Orderly Allowance is admissible to those officers who are working in the Punjab Civil Secretariat. The petitioner has voiced his grievance through the instant writ petition, calling in question the refusal of Orderly Allowance to him.
2. Learned counsel for the petitioner has argued that the report submitted by the respondents reveals that Orderly Allowance was extended to only the civil servants in BPS-20 and 21 working in Punjab Civil Secretariat. He has added further that the Honourable Supreme Court has declared in its decision, in the case of Government of the Punjab through Secretary, Finance Department, Lahore v. Mubarik Ali Khan and 8 others PLD 1993 SC 375 that after the enforcement of the unified Pay scales to all categories of employees, reversion to old categories would be discriminatory and in the matter of "pension and pay" no such discrimination can take place. The petitioner being in the civil service of Pakistan, within the contemplation of Article 240 of the Constitution of Islamic Republic of Pakistan, was entitled to the Orderly Allowance in the same manner as it was admissible to the officers working in Punjab Civil Secretariat. Learned counsel has submitted that it has been held in the case of Abdul Aziz Malik v. Chief Secretary, Government of the Punjab, Lahore and 2 others 1994 PLC (C.S.) 1134 that provisions of Punjab Civil Servants (Change of Nomenclature of Services and Abolition of Classes) Rules, 1974, do not permit favouring one class of civil servants and disfavouring another, without any logical basis. Such act tantamounts to unequal treatment, offending Article 25 of the Constitution of Islamic Republic of Pakistan. Honourable Court allowed the Secretariat Allowance to a retired employee of Punjab Service Tribunal. Learned counsel while referring to the case of Shireen Dil Khan Niazi and others v. Secretary, Ministry of Defence and others 1993 PSC 87 has argued that the pension is a right acquired by the Government servant under the Civil Servants Act, 1973. A reference was made to an unreported case i,e, Syed Aal-e- Ahmad v. Chief Secretary to Government of Punjab and others (Appeal No,3032 of 2000), wherein Punjab Service Tribunal, Lahore allowed Orderly Allowance to an ex-Member, B.O.R., who was working in Punjab Subordinate Judiciary and decision was affirmed by apex Court. Attending to the question of maintainability of this petition due to bar of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, learned counsel submitted that according to provisions of section 5 of Punjab Subordinate Judiciary Service Tribunal Act, 1991, petitioner cannot approach Service Tribunal and as such the only remedy available to the petitioner is to invoke extraordinary constitutional jurisdiction of this Court.
3. On the other hand, learned Law Officer has fully supported the impugned action. He has submitted that the petitioner cannot take advantage of letter No,F-1(2)/Reg.(6)91, dated 28-9-1991, as it is applicable to the employees of Federal Government. He referred to policy of Government, conveyed through S&GAD's letter No,C.I.I-2/77, dated 17-5-1977, wherein Orderly Allowance is extended to officers holding posts in Scale 20 or above, working in Punjab Civil Secretariat. Such officer had the option of residence orderly from sanctioned strength or residence orderly allowance at the rate of 800 per month.
4. I have heard the learned counsel for the petitioner and perused the material available on the record.
5. The petitioner was granted BPS-20 on 31-5-1994 and BPS-21 from 10-12-1999. He discharged his duties in the said pay scale till 2-3-2002, when he retired on superannuation, as Senior Special Judge, Anti-Corruption. Orderly Allowance was declined to the petitioner, as according to the respondents, it is admissible to those officers who had been drawing the same in their regular salary prior to retirement; and secondly that it is permissible to the officers working in Punjab Secretariat.
6. Refusal of the Orderly Allowance to the petitioner and allowing the same to the Secretariat Employees has been assailed by the petitioner on the premises that the impugned act is discriminatory and amounts to negation of equal treatment. The identical questions came up for consideration before the superior Courts and were dealt in the following manner:--
(i) It has been held in the case of I.A. And others v. Government of Pakistan through Secretary SherwaniFinance Division and others 1991 SCMR 1041 that right to receive pension by Government servant is property so as to attract Articles 23 and 24(1) of the Constitution and any illegal denial to Government servant to receive the same would affect his fundamental right guaranteed under the said provision of the Constitution. It was also held that State has an obligation to treat equally persons, evenly placed by virtue of equal length of faithful and royal service in the same or equivalent pay grade, post or rank.
(ii) The apex Court in the case of Government of the Punjab through Secretary, Finance Department, Lahore v. Mubarik Ali Khan and 8 others PLD 1993 SC 375 has held:-- "In spite of the direction given no material has been placed before this Court or was placed before any of the High Courts showing any reason whatsoever, for the re-emergence of categories of Secretariat and non-Secretariat employees and for assimilating certain non-Secretariat offices as Secretariat Offices for the purpose of this allowance. In the absence of any reason forthcoming on the record after the enforcement of the Unified Pay Scales to all categories of employees, such a reversion to old categories would appear to be discriminatory."
(iii) Federal Shariat Court in the case of Shireen Dil Khan Niazi and others v. Secretary, Ministry of Defence and others 1993 PSC 87 has laid that division of pensioners into new and old pensioners, is discriminatory. Actually pensioner is pensioner, irrespective of the date on which he retired and whenever there is revision in pension, each one of pensioner is entitled to get pension equal to other in the same grade and category.
(iv) Javaid Hussain Qureshi v. Finance Department, Government of Punjab through Secretary 2004 PLC (C.S.) 586. In this case it was held that persons similarly placed had to be similarly treated.
When qualification for both the posts was same and both the officials were performing duties of same value; the petitioner could not be treated differently. Court also observed that principle "equal pay for equal work though not special in our Constitution as principle of policy as it so in the Indian Constitution.
(v) It was held in the case of Dr. Munir Ahmad and 37 others v. Government of Pakistan, Finance Division and 4 others 2007 PLC (C.S.) 285 that concept of equal protection and equality before law is hallmark of constitutional scheme, recognized by not only preamble but also principles of policy contained in Article 37 of the Constitution. The Court held further that lecturers, professors holding Phd. Degree, working in Colleges are also entitled to Science and Technology allowance, allowed by Government of Punjab to professors and lecturers working in Universities, Research and Development Organizations and Science and Technology Institutions.
(vi) Punjab Service Tribunal in the case of Syed Aal-e-Ahmad v. Chief Secretary to Government of Punjab and another (Appeal No,3032 of 2000), has held that the appellant therein, having been transferred, from the post of Secretary to Government of Punjab, Auqaf Department drawing Orderly Allowance, to Punjab Service Tribunal as it's Chairman, was entitled to the Orderly Allowance. Honourable Supreme Court of Pakistan upheld this judgment and review petition against leave refusing order, was also dismissed.
(vii) Instructional allowance was granted to employees performing instructional duties in various institutions including NIPA, Pak Administrative Staff College, Civil Service Academy, National Police Academy etc. Petitioners who are working in Regional Training_Institute under Directorate of Clerical Training of Population Welfare Department and their job responsibilities include instructional duties were being paid the allowance but under an instruction of establishment division, the same allowance was stopped. It was held in the case of 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 that "----No doubt reasonable and rational classification of a particular category or class of employees to be entitled to receive an additional benefit could be made, keeping in view a particular or specialized or skilled nature of duties to be performed by such employees by virtue of their assignment or holding of office, but further classification within the category or class of employees to avail certain benefits, would amount to discrimination within the purview of Articles 4 and 25 of the Constitution..."
(viii) Employees of Television Corporation working outside headquarter were denied Secretariat Allowance, which is being paid to employees of the Headquarter though the employees both at headquarter and outside headquarter have identical qualification for appointment, given similar training and are equally skilled. It was held in the case of Ghulam Haider Badini and 520 others v.
The Government of Pakistan through Ministry of Information and Broadcasting, Islamabad and another 1995 CLC 1027 that no justification existed for preferential treatment to one set of employees.
(ix) In the case of Government of N.-W.F.P. Through Chief Secretary and 2 others v. Rizwanullah, Registrar, Labour Appellate Tribunal and others 1999 SCMR 2475, Secretariat Allowance at a rate of 20% of the basic pay was allowed to Government Servants working in N.-W.F.P. Secretariat, Chief Minister's Secretariat and Governor's Secretariat. It was denied to employees of attached departments or Civil Servants working in other offices. The apex Court upholding the judgment of the High Court enunciated that in the absence of any reason forthcoming on record, after enforcement of unified pay scale to all categories of employees, a reversion to old categories would be discriminatory. It was held that High Court rightly found Civil Servants working outside Civil Secretariat entitled to Secretariat Allowance @ 20% of the basic pay according to circular/letter No, F. D .(S.A . -11)2-43 .
7. The principle "equal pay for equal work" was followed by the Courts in Indian jurisdiction. The Courts dealt with this principle in the following cases as under:-
(i) Randhir Singh v. Union of India and others AIR 1982 SC 879. In this case constables/drivers of Delhi Police force, approached Supreme Court with their grievance that drivers in other administrative departments, Railway Protection Force, Fire Brigade and Language Commission etc. Are drawing more pay, though they perform same kind of work and auty. The Court observed that the principle of "Equal Pay for Equal Work" is not expressly declared by out Constitution to be a fundamental right. But it is certainly a constitutional goal. Learned Court observed further that in the light of Articles 14, 16 and 39(d) read with preamble of the Constitution the principle "Equal Pay for Equal Work" is deducible from those articles and may be applied to the case of unequal scales of pay based on no classification or irrational clarification. The writ was allowed and the Government was directed to fix pay of drivers of Police at par with the pay of Railway Police Force.
(ii) Supreme Court Employees Welfare Association v. Union of India and another AIR 1990 SC 334.
' In this case, employees of Supreme Court filed a petition, seeking therein the relief which Delhi High Court granted to private Secretaries, Readers and Stenographers etc. On their petition, according to their pay scales equal to Punjab Government Employees Central Dearness Allowance.
It was laid down that although the doctrine of "Equal Pay for Equal Work" does not come within Article 14 as an abstract doctrine, but if any classification is made relating to pay scales and such classification is unreasonable and/or if unequal pay is fixed based on no classification, then Article 14 will at once be attracted and such classification should be set at naught.
(iii) R.D. Gupta and others v. Lt.-Governor Delhi and others 1987 SC 2086.
' In this case, Ministerial staff in New Delhi Municipal Committee (MDMC) constitute a 'unified cadre, selection and common recruitment by common agency, common seniority list, ministerial part is divided into three wings, i,e, general wing, electricity wing, waterworks wing, the employees are interchangeable, their posting to three wings from common pool is according to administrative convenience and not on the basis of any distinct policy or special qualification. Grant of higher pay scale to ministerial staff in electricity wing and denying the same to general wing and waterworks came up for consideration before the Supreme Court and it was held that all ministerial staff working in N.D.M.C. Are entitled to get pay scales as per S.S.C. Committee Report and likewise all of them are entitled to be given ex gracia payment. The grant of S.S.C. Committee Pay Scale only to the staff working in electricity wing and the waterworks wing, cannot be legally sustained as it suffer from the vice of discrimination.
(iv) Y.K. Mehta and others v. Union of India and another AIR 1988 SC 1970.
' In this case, it was observed that as two posts under two different wings of same ministry are not only identical but also involve performance of same kind of duties, it will be unreasonable and unjust to discriminate between them in monthly pay---Artists of Doordarshan were held entitled to same pay scale as their counterpart in the film division.
8. The above resume of the case-law brings me to conclude that:--
(a) No discrimination can take place in the matter of pension and pay.
(b) All classes, nomenclature and distinctions between various services stood abolished on introduction and enforcement of "Unified Pay Scale" to all categories of employees. The employees working in different categories are entitled to be treated alike qua their pay, emoluments and privileges.
(c) The abolition of old relic of classification of civil servant through enforcement of unified scale, there is no room or justification for re-emergence of old system in the names of Secretariat and non-Secretariat employees, to create a distinction to favour one and ignore other.
(d) Reasonable and rational classification can be made df a particular category or class of employees, to be entitled to receive an additional benefit keeping in view particular or skilled or specialized nature of duties to be discharged by such employees, by virtue of their assignment or holding of office.
(e) Further classification within the category of class of employees to avail certain benefit amounts to discrimination within the review of Article 4 read with Article 25 of the Constitution of Islamic Republic of Pakistan.
(f) "Equal Pay for Equal Work" is deducible from Articles 4 and 25 of the Constitution of Islamic Republic of Pakistan. Although the principle "Equal Pay for Equal Work" is not expressly declared by the Constitution to be fundamental, it is certainly a constitutional goal.
(g) Employees of the same rank, performing dissimilar functions, powers, duties and responsibilities of the same post or the officer/employees possessed of higher qualification which may be either academic qualification or experience based on length of service, can sustain reasonable classification.
(h) Officer performing duties of same value cannot be treated differently.
(i) Orderly Allowance is not of the nature that it is made admissible to employees working in the Civil Secretariat in Grade-20, on the basis of academic ability, specific qualification or skill of employees. Nor it is accorded to Secretariat employee in recognition of performance of special duties, or is accorded to compensate expenses required to be incurred by the employee.
9. Orderly Allowance is admissible to the officers holding posts in pay scale 20 or above, working in Punjab Secretariat. The only criteria to claim the allowance, is to be in Grade-20 or above.
Honourable Supreme Court of Pakistan in the case of Mubarik Ali Khan (supra) has settled that no distinction between Secretariat and non-Secretariat employees can legally be made. The apex Court observed as under:-- "In spite of the direction given no material has been placed before this Court or was placed before any of the High Courts showing any reason whatsoever for the re-emergence of categories of Secretariat and non-Secretariat employees and for assimilating certain non-Secretariat Offices as Secretariat Offices for the purpose of this allowance. In the absence of any reason forthcoming on the record after the enforcement of the Unified Pay Scales to all categories of employees such a reversion to old categories would appear to be discriminatory."
10. The petitioner has performed the duties in pay Scale 20 and employees in the Punjab Civil Secretariat drawing Orderly Allowance are performing their duties in the same grade. No distinction is legally permissible between the Secretariat employees and non-Secretariat employees, after enforcement of unified pay scales. Grant of Orderly Allowance to an officer in BPS- 20 working in Punjab Civil Secretariat and refusal of drawing the same to the non-Secretariat officer in the same pay scale, offends Articles 4 and 25 of the Constitution. It, is, therefore, declared discriminatory and the classification as irrational.
11. For the foregoing, the impugned decisions of the respondents Nos.2 and 3 contained in letters dated 29-10-2004 and 13-12-2004, are declared to be illegal, void and of no legal effect. This writ petition is accordingly accepted, declaring the petitioner to be entitled to the Orderly Allowance with effect from 2-3-2002.