' SHAHID ANWAR BAJWA, J. Petitioners are employed as Data Processing Assistants in Finance Department, Government of Sindh since 2001. They are placed in BS-12. Learned counsel for petitioners referred to an advertisement and submitted that the prescribed qualification is; (i)
Graduate Second Division with statistics as one of the subjects, (ii) Second Division Diploma in Computer Science from Board of Technical Education. On 8-11-2003 vide Notification No,SO(LR)S&GAD-II(65)/2003 posts of Data Processing Assistant BS-12 in Services, General Administration and Coordination Department were upgraded as Data Processing Officer BS-16 and incumbents were allowed BS-16 accordingly. Similarly, vide notification dated May 11, 2001 certain posts of Keypunch Verifying Operators BS-11 were upgraded as Data Entry Operators BS-16 in Computer Cell of Finance Department. Learned counsel for petitioners also referred to advertisement placed by the Federal Public Service Commission for posts of Data Processing Assistant in the Ministry of Religious Affairs and in the Statistic Division and it indicates that with similar qualifications of Data Processing Assistants are employed by the Federal Government in BS-16. Petitioners made representation for grant of upgradation to the post of BS-16 but that representation has not been decided.
2. Learned counsel for petitioners submitted that petitioners are being discriminated and are entitled to the same treatment which is given to persons having same qualification and same nature of job in other departments of Sindh government. Mr. Adnan Karim learned A.A.-O. Referred to comments filed by respondent No,3 where it is stated that under rules 50 percent of Data Entry Operators are to be promoted from amongst the Data Processing Assistant having at least 3 years experience as such and the balance 50 percent posts are to be filled on the basis of direct appointment. He submitted that there are rules of promotion to the posts of Data Entry Operators available to present petitioners.
3. When this petition came up for hearing on 14-12-2010 learned Assistant Advocate-General was asked to find out as to how many Data Processing Assistants during the last ten years have been promoted to post of Data Entry Operator and as to how many have been recruited directly. For almost one year no such statement was filed. Again on 2-11-2011 learned Assistant Advocate- General was once again directed to firstly submit statement as to how many posts of Data Entry Operator in BS-16 are existing in Finance Department. He was also allowed time to seek instruction with regard to the fact that whereas in all other department of Government of Sindh Data Processing Assistants have been upgraded to BS-16 why the petitioners in Finance Department are not given same treatment. Learned A.A.-G. Submitted that the Court does not have power to grant upgradation. He submitted that recruitment rules are available and, therefore, this petition cannot be allowed. Lastly, he contended that representation of petitioners is pending and petition be disposed of by directing the Chief Secretary, Sindh to decide the same within 30 days. Learned counsel for petitioner placed on record a copy of notification dated 12-7-2008 where Data Processing Assistants in Excise and Taxation Department have been placed in BS-14 and a copy of summary approved by the Chief Minister which summary was moved on 19-5-2011 and in that summary amongst other it was stated that posts of for Data Processing Assistant be upgraded from BS-11 to BS-16 and in future remaining Data Processing Assistants be allowed to be upgraded after completion of 10 years service. In pursuance of summary notification dated 16-12-2011 was issued for upgrading, amongst other, to 4 Dada Processing Assistants was allowed.
4. We have considered submissions made by learned counsel for the parties and have also gone through the record.
5. Learned counsel for petitioners referred to judgment passed in Javaid Hussain Qureshi v. Finance Department, Government of the Punjab through Secretary Finance and 2 others (2004 PLC [C.S.] 586) where a number of posts were abolished while a number of posts were created in 2009 including one of Statistical Assistant and one of Statistical Computer in the office of Director General Health, Punjab. One post was shown of BS-10 and other post was shown in BS-8. A Single Judge of Lahore High Court observed as under:--- "7. "The principle of 'equal pay for equal work' has not been mentioned either as a Fundamental Right or as a Principle of Policy in our Constitution. However, if the equality clause in Article 25 of the Constitution has to have some meanings, the said principle has to be read in Article 25 to give effect to it. Persons similarly placed have to be similarly treated except on the basis of reasonable classification. In this case it has not been explained that when qualification for both the posts was the same i,e, Graduation and both the official were performing the same duties, what was the basis to treat the petitioner differently. I specifically questioned the representative of Director- General Health as to the reason for appointment of the petitioner in BS.8 when the post as sanctioned was in BS.
10. He had no answer to it. The principle i,e, 'equal pay for equal work' although not specified in our Constitution as a Principle of Policy, yet it is built in Article 3 of the Constitution which is reproduced as under:- ' The State shall ensure the elimination of all forms of exploitation and the gradual fulfillment of the fundamental principle, from each according to his ability, to each according to his work.'
' Reference may also be usefully made to the following provision of the Objective Resolution.
(Article 2-A) of the Constitution:- ' Wherein shall be guaranteed fundamental rights including equality of status, of opportunity and before law, social economic and political justice, and freedom of thought, express, belief faith, worship and association, subject to law and public morality'. (Underlining is mine).
' Equality of opportunity contemplated by the Objective Resolution includes equal opportunity in the public employment. I may add there that public employment, before and after entry into public service, is not a bounty of the Crown to permit the State and its ornamental parts to differently treat two public servants identically placed in all respects in the matter to pay.
Reference may be made to clause (e) of Article 37 of the Constitution which enjoins the State to..- -- 'make provision for securing just and humane conditions of work ensuring that children and women are not employed in vocations unsuited to their age or sex, and for maternity benefits of women in employment.' (emphasis supplied).
' Although Articles 2-A, 3 and 37 of the Constitution are not declared as fundamental rights in our Constitution yet these are Constitutional goals, have to be kept in mind and given due regard while interpreting the Constitution and the law."
6. Thereafter on question of maintainability of petition it was observed as under:--- "11 The objection of the learned Assistant A.-G. With reference to the bar of Article 212 of the Constitution has no merit because 'pay' of the post is one of the terms of conditions of service of a civil servant but the pay, the petitioner claims on the basis that another official, identically placed, is getting in the same organization cannot be said to be a term and condition of his service. A dispute will relate to terms and conditions of service, if a civil servant is entitled to something under the Law or Rules which is denied to him. Thus, the petitioner is not before this Court with a complaint of violation of any of his terms and conditions of his service. His grievance is that he is being unfairly discriminated against."
7. Learned counsel referred to judgment of Supreme Court in the case of Abdul Shakoor v.
Government of Pakistan through Secretary, Establishment Division, Islamabad and 2 others (C.P.
No,40 of 1999). The petition related to employee of Customs, Central Excise and Sales Tax Department who sought removal of disparity and discrimination in pay scales in services of Pakistan as being violative of various Articles of the Constitution of the Islamic Republic of Pakistan.
After exhaustive analysis of case-law the Supreme Court observed as under:- "From the above quoted cases, it can be deduced that persons holding similar posts with similar duties should not be treated differently in their pay scales simply for the reason that they belong to different departments.
' Under Articles 37 and 38 of the Constitution of Pakistan, the State is bound to promote social justice, social, and economic well being of the people and particularly under clause (e) of Article 38 it is the obligation of the State to reduce disparity in the income and earnings of individuals, including persons in various classes of the service of Pakistan, thus, it is the duty of the State to remove disparity and discrimination in Pay Scales of similarly placed persons in various classes of service of Pakistan."
8. Similar question came up before Division Bench of this Court, (of which one of us, Shahid Anwar Bajwa, J, was member), in Javed Latif Memon v. Government of Sindh (C.P. No,D-213 of 2010). It was a case where Deputy District Attorney etc. Claimed payment on the same basis as is being paid to person in prosecution service. Petition was allowed on touchstone of equality as enshrined in Article 25 of the Constitution.
9. In the present case petitioners have successfully demonstrated that other persons in Finance Department, in Services, General Administration and Coordination Department and even in various departments of Federal Government including Ministry of Religious Affairs and Statistics Division with similar qualifications and similar nature of jobs are placed in BS-16. Learned A.A.-G. Has not been able to demonstrate as on what basis discrimination is being maintained between Data Processing Assistant in Finance Department on the one hand and other persons having same qualification and same job in other departments on the other hand. Learned A.A.-G. Contention that High Colin cannot allow upgradation is of no relevance at all because while deciding, this petition this Court has jurisdiction to order removal of discrimination without any reasonable basis; if such removal of discrimination involves upgradation, so be it. It is not a case where the Court ds ordering upgradation. It is a case where Court is ordering removal of discrimination which discrimination is clearly in violation of equality clause as enshrined in the Constitution. Similar position is of contention of learned A.A.-G. Is that there are recruitment rules. Firstly, for the last 10 years not a single Data Entry Operator has been promoted and secondly considering similar position in department, rule is clearly ex-facie discriminatory.
10. Lastly, learned A.A.-G. Submitted that time be given for representation to be decided. This petition has been pending since 2009. Representations have been pending since 2006. Therefore, everyone in the Sindh Government, at least those concerned with this petition, were fully aware of the existence of representation and they still chose not to take action accordingly. Those who remained in slumber for 6 long years, do not deserve a further opportunity.
11. Result of the above discussion is that this petition is allowed. Petitioners are ordered to be given same grade and treatment as was given to similar employees in Services, General Administration and Coordination. Department vide notification dated 8-11-2003