By this single judgment both the captioned writ petitions are being decided as common questions of law and facts are involved in both these writ petitions.
2. In Writ Petition No, 719 of 2012, the petitioner has made the following prayers:-- "It is respectfully prayed that the impugned letter dated 28.07.2010 issued by Respondent No, 2 (in violation of the Notification dated 12th March, 2010 issued by the Hon'ble Chief Justice, Federal Shariat Court), may graciously be ordered to the respondents to modify or re-issue in accordance with Notification dated 12th March, 2010, sanctioning/implementing the allowances contained therein, w.e.f, 01-07-2009 instead of 01-07-2010.
It is further prayed that Notification dated 14-02-2011 issued by the Hon'ble Chief Justice, Federal Shariat Court and letter dated 11-02-2011 issued by Respondent No, 2, may kindly be ordered to the respondents to implement in letter and spirit.
3. In Writ Petition No, 843 of 2012, petitioner Muhammad Rehan Khan has made the following prayers:-- It is respectfully prayed that writ petition may kindly be accepted and respondents be directed:--
(i) To fully implement Notification No, F.II(47)2009-admn; FSC dated 12-3-2010 issued by the Honourable Chief Justice of the Federal Shariat Court, for petitioner and all employees/members of the Federal Shariat Court (BS-1 to 22) w,e,f, 01-07-2009 and modify Notification dated 28.07.2010 accordingly and re-issue the same in accordance with Notification dated 12-3-2010, sanctioning/ implementing the allowances contained in the Notification dated 12-03-2010 w,e,f, 01-07-2009 instead of 01-07-2010 for petitioner and all members of the Establishment of the Federal Shariat Court and make payment of arrears accordingly.
(ii) to fully implement Notification No, F.II(47)2009-Admn-FSC dated 14-02-2011 issued by the Honourable Chief justice of the Federal Shariat Court sanctioning/ implementing allowances contained in Notification dated 14-02-2011 w,e,f, 01-07-2009 for all staff of (BS-01 to 16) and BS-22 of the members/employees Federal Shariat Court and make payment of arrears and issue notification accordingly.
(iii) Directions be issued to the respondents to make payment of arrears accordingly to all the staff/members of the Federal Shariat Court.
4. In both the captioned writ petitions, the petitioners have impugned the letter dated 28th July, 2010 issued by Respondent No, 2, whereby, sanction of Prime Minister of Pakistan, regarding enhanced allowances and perks for the members of Establishment of the Federal Shariat Court w,e,f, 1st July, 2010, was conveyed. The petitioners have further prayed for implementation of the Notification dated 14-02-2011, issued by the Chief Justice, Federal Shariat Court, Islamabad.
5. The petitioners in both the captioned writ petitions have mentioned that when the National Judicial Policy Making Committee was in final session, the Judicial Officers of the subordinate judiciary in the province of Punjab were drawing additional judicial allowances equal to three times of their salaries, therefore, vide Para 13 of the policy ibid, it was decided and approved by the Hon'ble Committee headed by the Hon'ble Chief Justice of Pakistan being its Chairman, that the judicial officers of all the provinces be treated alike and disparity in their salaries and allowances be removed. Vide letter dated 22-11-2008 the Government of Punjab enhanced the Judicial Allowance and Utility Allowance of the employees (BS-1 to 16) of the Lahore High Court and vide letter dated 04-08-2009 the Government of Punjab further accorded approval of Special Judicial Allowance equal to three times of the initial substantive pay scale of the employees (BS-1 to 22) of the Lahore High Court w.e.f 01-07-2009. Vide letter dated 03-03-2010 Government of Pakistan sanctioned/enhanced perks and allowances of the employees (BS-1 to BS-22) of the August Supreme Court of Pakistan w:e.f. 01.07.2009. In addition to that, Special Judicial Allowance equal to three times of the initial of the substantive pay scale to all the employees of the Supreme Court was also allowed w,e,f, 01-07-2009. Thereafter, vide letter dated 03-04-2010 issued by Respondent No, 2, Government of Pakistan further sanctioned/enhanced judicial Allowance of the employees (BS-7 to 16) of the Supreme Court of Pakistan w,e,f, 01.07.2009 and fixed the same at Rs, 6000/- per month which was enhanced to Rs, 9000/- per month w,e,f, 01-07-2010 vide notification dated 11-02- 2011. Vide notification dated 12-03-2010 the Chief Justice, Federal Shariat Court in pursuance of the decision of Hon'ble National Judicial Policy Making Committee and in exercise of powers conferred upon him under Rule-5 of the Federal Shariat Court (Terms and Conditions of Service of Staff)
Rules, 1982 was pleased to sanction/enhance all the perks and allowances of all the employees of the Federal Shariat Court w,e,f, 01-07-2009. However, in violation of the said notification, Respondent No, 2, vide impugned letter dated 28.07.2010 sanctioned enhanced perks & allowance in favour of employees of Federal Shariat Court w,e,f, 01-07-2010. The petitioners in the writ petitions have further mentioned that the Hon'ble Chief Justice Federal Shariat Court, Islamabad vide notification dated 14-02-2011 granted Judicial Allowance to the employees of Federal Shariat Court from BPS-1 to 6 @ of Rs, 4000/- per month, to the employees from BPS 7 to 16 @ Rs, 6000/- per month and also granted Judicial allowance @ 30 of basic pay per month and Utility Allowance at the rate of Rs, 10,000/- per month to BPS-22 Officer, however, instead of implementing the said notification, respondents have granted 50% increase at uniform rate of basic pay and judicial allowance to the staff of Federal Shariat Court w,e,f, 01-07-2010, hence, both these petitions.
6. Petitioner, Amjad Ali has argued that the employees of Federal Shariat Court are parallel to the employees of High Courts, hence, they are entitled for the relief prayed in the writ petitions.
Petitioner has further argued that he and other employees of the Federal Shariat Court have the fundamental right to get the allowances with effect from the date when such allowances were granted to the employees of superior judiciary. Petitioner Muhammad Rehan Khan has adopted the arguments of petitioner Amjad Ali.
7. Conversely, learned Deputy Attorney-General has argued that the writ petitions are not maintainable and as a matter of principle, the financial benefits to the employees are always granted by the Finance Division, keeping in view the resource position of the country; that in terms of Government Policy under Para-58 of General Financial Rules. Volume I and with the approval of.
Honourable Prime Minister the incentives were granted to the employees of Federal Shariat Court w,e,f, 01-07-2010.
8. I have heard the petitioners as well as learned Deputy Attorney-General and pondered and mulled over the issue from diverse angles.
9. In essence, the petitioners, through the instant writ petitions have prayed for implementation of the Notifications dated 12-3-2010 and 14-02-2011, issued by the Federal Shariat Court, Islamabad in true letter and spirit, whereby, the sanction of Hon'ble Chief Justice of Federal shariat Court, Islamabad regarding grant/enhancement of certain perks and allowances was conveyed. Ministry of Finance has taken the stance that financial benefits to the employees are always granted by the Finance Division, keeping in view the resource position of the country.
10. In order to reach at a just and fair conclusion, I have perused both the notifications dated 12-03- 2010 and 14-02-2011 of the Federal Shariat Court, Islamabad. In both these notifications, Rule-5 of the Federal Shariat Court (Terms & Condition of Service of Staff) Rules, 1982 has been referred which is re-produced hereunder for ready reference:-- Provided that the powers exercisable under the said rules and orders by the President, or by any authority subordinate to the President, shall be exercisable by the Chief Justice of the Federal Shariat Court or by such person as he may, by general or special order, direct.
Whereas, Rule 6 of the Federal Shariat- Court (Terms & Condition of Service of Staff) Rules, 1982 reads as under:-- Any question arising as to which rules or orders are applicable to the case of any person serving on the staff attached to the Federal Shariat Court shall be decided by the Chief Justice.
From the bare perusal of the above reproduced Rules-5 & 6 of the Federal Shariat Court (Terms & Condition of Service of Staff) Rules, 1982, it becomes crystal clear that the Hon'ble Chief justice Federal Shariat Court, who was exercising the power of the President is fully authorized to sanction/enhance allowances in favour of the employees/officers of Federal Shariat Court. On the other hand, Ministry of Finance, has taken the stance that financial benefits to the employees are always granted by the Finance Division, Keeping in view the resource position of the country. As such Ministry of Finance, in other words has painted itself to be the sole authority in granting benefits to the employees and has attempted to upgrade itself as a supreme authority in this regard. I am astonished to see such a stand taken by a public functionary.
11. Certainly, the public functionaries are bound to act in accordance with the rules and the law on the subject and could not be allowed to approbate and reprobate. The Ministry of Finance, in its comments, has tried to pose itself to be sole authority in granting financial benefits to the employees and as such, has given an impression that only the Ministry in this regard is authority and all the other authorities are subordinate to it. Such a stance, taken by a public functionary amounts to' flouting the very spirit of the Constitution because public functionaries are bound to act in accordance with law and could not be allowed to jump over the circle of rule and law. It is the primary duty of the Courts' to keep up the salutary principle of rule' of that law this court while exercising extra-ordinary constitutional jurisdiction under Article-199 of the Constitution of the Islamic Republic of Pakistan, 1973 is very much conscious about the upholding of the rule of law and also to direct the public functionaries to act in accordance with law. Furthermore, by any stretch of imagination, no one can be allowed to twist the law according to his own whims. In the instant case, Ministry of Finance has also taken the plea that with the approval of Prime Minister, it was decided to sanction the incentives to the employees of Federal Shariat Court w,e,f, 1st July, 2010. However, one should keep in his mind that Prime Minister under clause (2) of Article-5 of the Constitution is also bound to obey the constitution and law as that is the basic obligation of every citizens of this country. It is the duty of each and every organ of the State as well as the citizens of this country to work within the framework of the Constitution and law. Provisions of 1 Article 4 of the Constitution ordain that every person has a right to insist that he be dealt, with in accordance with law. In the instant case, Ministry of Finance has not come forward with any law, on the basis of which an order passed by the Hon'ble Chief Justice of Federal Shariat Court, Islamabad while exercising his powers under Rule 5 of the Federal Shariat Court (Terms and Conditions of Service of Staff) Rules, 1982 could be varied or struck down. It is also pertinent to mention.here that on one hand, Finance Division, in the light of Federal Shariat Court's Notification No, F.11(47)/2009- Admn:FSC: dated 12th March, 2010 approved for grant of allowance and perks for the Members of Establishment, of the Federal Shariat Court w,e,f, 1st July, 2010 (though not w,e,f, 01-07-2009) but at this juncture has come forward with altogether different stance and has taken U-turn that it is the Ministry who grants benefits to the employees keeping in view the resource position of the country.
Ministry of Finance, is blowing hot and cold in the same breath and in other words, is trying to give an impression that all the rules including Federal Shariat Court (Terms and Conditions of Service of Staff) Rules, 1982 are subject to the scrutiny, consent and approval of the said Ministry. The legal position is altogether different. The Ministry of Finance is bound to obey the orders passed by the authorities, prescribed by rules, without taking any exception to the same and could not be allowed to act in defiance of the rules and law on the subject. If such a practice on the part of public functionaries is allowed to flourish it would certainly create restlessness among the departments and is, therefore, required to be curbed at the gross root level. It is also pertinent to mention here that previously matter of grant of Secretariat Allowance to the staff of Federal Shariat Court went upto the level of August Supreme Court of Pakistan and the apex Court vide its judgment titled "Government of Pakistan through Ministry of Finance Vs. M.I. Cheema, Dy. Registrar, Federal Shariat Court and others" (1992 SCM R 1852) held that the learned Chief Justice of the Federal Shariat Court who was exercising the power of the President granted the Secretariat Allowance to the respondents, therefore, appellant (Govt. of Pakistan, Ministry of Finance) could not have questioned the grant of the above benefit to the respondents or to have denied the payment of the same on the ground that the respondents were not entitled to the same.
12. It would also not be out of context to mention here that through the writ petitions in hand, issue regarding implementation of sanctions accorded by the Hon'ble Chief Justice of Federal Shariat Court is agitated, however, this Court while dealing with W.P. No, 1613/2003 has already held that Ministry of Finance is under obligation to obey the sanction accorded by the Hon'ble Chief Justice of Federal Shariat Court in the light of Rules-5 & 6 of the Federal Shariat Court (Terms and Conditions of Staff) Rules, 1982.
13.In view of the above perspective, I am constrained to accept both the Writ Petitions No, 719/2012 and 843/2012. The respondents are directed to implement the Notifications dated 12th March, 2010 and 14th February, 2011 of the Federal Shariat Court in true letter and spirit forthwith and also make the payment of arrears to the entitled employees of the said Court in accordance with the above mentioned Notifications.