UMAR ATA BANDIAL, J.--- This petition is filed on behalf of three petitioners who were goods exit tax clerks in BS-5, another two petitioners who were serving as octroi clerks in BS-5 and one petitioner who was serving as octroi inspector in BS-9 in the octroi collection administration functioning under the West Pakistan Municipal Committees Octroi Rules, 1964 as amended by the Zila Council Octroi Tax Rules, 1990. In the year 1999, the collection of octroi tax and export tax by the local councils was discontinued as a result of which the petitioners' service cadre called TMA cadre was abolished and under executive instrument the services of the petitioners were transferred to different offices in the local government institutions established under the Punjab Local Government Ordinance, 2001 where they are employed ad hoc as members of a diminishing cadre.
No merger or absorption of their service in the regular department's general cadre has taken place.
2. On 10-9-2007 Finance Department of the Provincial Government and thereafter on 19-9-2007 and 16-2-2008 the Local Government Department issued notifications upgrading the posts of junior clerks, senior clerks and Assistant/head clerks from their existing pay scales to a higher level.
The nomenclature of the posts occupied by the petitioners are not covered by the afore noted notifications and for that reason they have been denied the benefit of upgradation from their present scales in BS-5 to the upgraded pay scale in BS-7. The learned counsel for the petitioners submits that the petitioners are doing full time clerical work in their current posts. Their work is of the same nature as work done by the clerks in the local government department who, having the same pay scale as the petitioners have been upgraded by the aforenoted notifications. The petitioners have, however, been denied the benefit of such upgradation purely on technical point of nomenclature. .
3. He adds further that although the petitioners' service cadre has been abolished, nevertheless, the petitioners are permanent government servants whose services are, like the officers that have been benefited by the aforenoted notifications, governed by the same Local Council Servants (Service) Rules, 1997. Consequently, in terms of legal status, nature of work, qualification for appointment and original pay scale, the petitioners are identically placed as the beneficiaries of the aforenoted notifications. Yet as a result of arbitrary and illegal classification by the respondents the petitioners have been denied benefit under the aforenoted notifications. The said differential treatment is contrary to the rule laid down in I.A. Sherwani and others v. Government of Pakistan through Secretary Finance Division, Islamabad and others (1991 SCM R 1041), and Dr. Mobashir Hassan and others v. Federation of Pakistan and others (PLD 2010 SC 265).
4. Learned Addl. A.-G. Submits that the services of the petitioners were upgraded from BS-5 to BS-7 vide notifications dated 19-4-1993 and 24-8-1991 therefore they cannot have any grievance on the ground of discrimination. Learned counsel for the Finance Department has objected to the prayer on the ground that the petitioners belong to a dying cadre which was abolished in 1999. Therefore, services of the petitioners have not been absorped into the general cadre of regular employees of the local government. That the petitioners are not occupying permanent posts in the department and their ad hoc status is the main ground for rejection of their cases for grant of upgradation and financial benefits extended to other clerks in local government department pursuant to the aforenoted notifications.
5. Learned counsel for the petitioners has rebutted the foregoing objections. He urges that the benefit of upgradation granted by the notifications dated 19-4-1993 and 24-8-1991 was limited to specific percentage of serving octroi clerks. The petitioners did not fall within the class of beneficiaries under the said notifications. On facts also, the submissions made by the learned counsel for the petitioners is to the effect that except for petitioner. No,5, the remaining petitioners occupy posts in BS-5, which is not disputed by the other side. Consequently, such petitioners were not upgraded pursuant to the notifications dated 24-8-1991 and 19-4-1993. Since petitioner No,5 was, however, upgraded as octroi inspector under the notification dated 24-8-1991 therefore, he cannot join the claim by the remaining petitioners whose services were never upgraded. On the present record and at the present stage the case of petitioner No,5 is distinguishable from the remaining petitioners and for that reason alone it is turned down. The petitioner No,5 may, if so inclined, separately, pursue his remedy for any legal rights that he is entitled to in the present context.
6. With respect to the remaining petitioners, it is undisputed that on the criterion of legal status as permanent government servants, there is no distinction between them and the beneficiaries under the notification dated 19-9-2007 and 16-2-2008. These petitioners are also discharging duties and services of the same type and nature as the beneficiary employees of the local government department. Such petitioners have, nevertheless, been excluded from the benefit of upgradation solely on the ground of the nomenclature of their posts and for belonging to the abolished TMA cadre.
7. It is a principle of law under Article 25 of the Constitution that similarly placed persons must be treated alike. Any criteria of distinction must be based on intelligible differentia having nexus with the object of 'the law. The criterion for differentiation adopted in the present case is merely the nomenclature of the petitioners' designation as octroi clerk or goods exit tax clerk. That criterion may have had relevance for present purpose if the petitioners were performing duties pertaining to their attributed designations. However, that is not the case: the petitioners are doing the type of work that is recognized by the said notifications but while holding fictional posts belonging to the abolished TMA cadre. The object of the notifications is to benefit clerical staff in government service; it is not meant to punish or exclude persons who do the same work as government servants but have been given a different nametag for purpose of administrative or accounting convenience. Their exclusion bears no reference to the object of the notification. It transpires from the parawise comments filed by the local government department in the connected Writ Petition No,5539 of 2008 that the department fully supports the case for regularization of services of the petitioners in the general cadre. However, learned counsel for the Finance Department informs that the said proposal was rejected on the ground of non-absorption of the petitioners in a regular service cadre of the local government department. It is the legal status of an employee as a permanent government servant and the nature of his work which can have any relevance, to classification of beneficiaries under the notification. The criteria adopted by the Finance Department for classification is totally superficial and formal lacking substantive relevance to satisfy the requirement of law.
8. As such, on the plea of discrimination there is no denial by the respondents. That plea is supported by law laid down in I.A Sherwani and others v. Government of Pakistan through Secretary Finance Division, Islamabad and others (1991 SCMk 1041), and Dr. Mobashir Hassan and others v.
Federation of Pakistan and others (PLD 2010 SC 265). The essence of the principle under Article 25 of the Constitution is encapsulated by the succinct formulation made in the latter case which is reproduced below:-- "In order to make a classification reasonable, it should be based:---
(a) on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out;
(b) that the differentia must have rational nexus to the object sought to be achieved by such classification.
' Any classification which is arbitrary and which is made without any basis is no classification and a proper classification must always rest upon some difference and must bear a reasonable and just relation to the things in respect of which it is proposed."
9. The petitioners, being similarly placed in terms of permanent nature of employment, same type of work, service grade and qualifications/have clearly been discriminated in treatment by the respondents vis-a-vis their counterparts in the same department. Accordingly, it is directed that the respondents Nos.1 and 2 shall forthwith remove the cause of such discrimination by notifying the petitioners TMA cadre as eligible and qualified for equal treatment as the beneficiaries nominated in the notification of 19-9-2007. The said action shall be taken within one month from the date of receipt of a certified copy of this order.
10. Petition disposed of.