' MUHAMMAD KHALID MEHMOOD KHAN, J.--- All the petitioners are the part of establishment of Federal Government Courts established by the Act of Parliament commonly known as Banking Courts, Environmental Protection Tribunal, Special (Offences-in-Banks), Special Court Customs Taxation and Anti-Smuggling, Special Court C.N.S Lahore, Drug Court, Special Judge (Central), these courts/tribunals are directly performing their duties in connection with the administration of justice. The petitioners' claim is that they are being discriminated qua the employees of District Judiciary and establishment of the High Courts, thus they claim declaration to the effect that recommendations of National Judicial (Policy Making) Committee (hereinafter referred to as NJPMC) dated 10-11-2007 issued by the respondent No,1 vide letter dated 30-4-2008 is binding on respondents Nos.2 and 3 and the respondents are thus bound to implement the recommendations dated 10-11-2007 for bringing the petitioners at par with the employees of Districts Judiciary and Establishment of the High Court, District judiciary of Islamabad and Islamabad High Court.
2. The petitioners assert that NJPMC was constituted through National Judicial (Policy Making)
Committee Ordinance, 2002 (hereinafter referred to as "NJPMC Ordinance, 2002"). The NJPMC submitted recommendations for the unif rmity of the terms and conditions of Judicial Officers and staff a tached to the judiciary i.e District Judiciary, High Courts and the Ape Court.
3. The petitioners assert that on the recommendations of NJPMC, the Hon'ble Chief Justice of all the Provinces of Federation have directed to pay the allowances to the establishment of High Courts as is evident from the Notifications issued from time to time.
4. Learned counsel for the petitioners submits that the petitioners are no doubt the Federal Government employees but their job description and the working hours are equal to the job description and working hours of the District Judiciary, establishment of the High Court of the Provinces as well as Islamabad High Court.
5. Learned counsel argued with vehemence that due to high inflationary cost even the increase allowed by the High Courts in terms of NJPMC is not sufficient to meet with the day to day expenses of a normal size of family, but the petitioners have been denied even the increase in the salary and allowance which the District Judiciary is receiving for the same job, Labour with same qualifications and as such the petitioners being the employees of Federal Government and attached with the Special courts are being meted out a discriminatory treatment.
6. Learned Deputy Attorney General for Pakistan contends that if the requested allowance and salary is allowed to the petitioners it will create disparity among the Civil Servants and the Federal Government will not be is position to pay the allowance and salary as claimed by the petitioners to all the civil servants. The terms and conditions of the employees of the District Judiciary and establishment of High Courts are different with the terms and conditions of the petitioners.
7. Learned Deputy Attorney General for Pakistan object the very maintainability of the petition on the ground that dispute pertains to the terms and conditions of the service and as such the petitioners if are aggrieved they may approach to an appropriate fora.
8. Learned counsel for the petitioners exercising the right of rebuttal submits that the Federal Government is already maintaining different categories among the Civil Servants, for example special allowances are payable to the employees of Civil Aviation, railways, armed forces as to aviation allowance, railway allowance, disturbance and hazardous allowance, shift allowance, Governor House staff allowance, the petitioners if will be allowed the requested benefit it will not create any special category as the petitioners are performing same duties like the employees of District Judiciary and the establishment of High Courts. Learned counsel adds that all special courts are under the superintendence and control of the High Court, the appellate court of all the special courts is the High Court and the appointment of Judges of the Special Court require the consent of the Honourable Chief Justice of the High Court and Senior Judge of the High Court is the Inspection Judge of the Special Courts.
9. Learned counsel has relied on Government of Balochistan v. Azizullah Memon and others (PLD 1993 SC 341 (370), Salman Adii Siddiqui v. Province of Sindh (2008 PLC (C.S.) 220), Abdur Rashid v.
Secretary Establishment Division (1991 SCMR 1288), Attiyya Bibi v. Federation of Pakistan (2001 SCMR 1161), Muhammad Akram v. Selection Committee (2003 CLC 18), Government of Punjab v. Mubarak Ali (PLD 1993 SC 375), Mian Mehmood Ahmad v. Hong Kong and Shahghai Banking Corporation Ltd.
Through Manager and 6 others (2010 CLD 293) and Federation of All India Customs and Central Excise Stenographers (Recognized) and others v. Union of India and others (AIR 1988 SC 1291).
10. Learned counsel relying on Articles 25, 27, 33 and 37 of the Constitution of the Islamic Republic of Pakistan, 1973 submits that it is the duty of State to promote social justice and eradicate the social evils, which is only possible if uniform terms are applied among the employees attached with the Courts and that all persons placed in same category classification have to be treated alike.
Learned counsel submits that the petitioners are being discriminated in terms and conditions of service including emoluments, the Federal Government has promulgated various laws, which confers jurisdiction on a provincial judicial officer to adjudicate and decide the matters relating to the federal law within the provincial domain, for instance Banking Court, Custom Court, Excise and Taxation Tribunal, Special Anti-Terrorist Court and numerous other Tribunals and Courts established under the Federal statue are presided over by the judicial officers of the Province.
11. Learned Counsel has relied on Northern Area of Supreme Court (2010 PLC (C.S.) 141) and Government of Punjab v. Mubarak Ali (PLD 1993 SC 375).
12. Heard, record perused.
13. The main controversy between the parties is of an equal treatment among the equally placed persons; the right of equal treatment is a fundamental right of every citizen of Pakistan and is guaranteed one. It is an admitted fact that All High Courts of Provinces have implemented the recommendations of the NJPMC but the Federal Government is denying the grant of all those allowances and benefits which the equally placed persons of the establishment of the High Court.; and the District Courts are receiving as per their job description and nature of duties. It is not denied by the respondents that Federal Government has implemented the NJPMC recommendations for District Judiciary of Islamabad as well the establishment of Islamabad High Court.
14. It is an admitted position between the parties that Banking Courts, Labour Courts and other Federal Courts are meant to administer justice between the parties and fall within the definition of Court either established under Federal or provincial Statue or under the mandate of Constitution of Islamic Republic of Pakistan, likewise the establishment of Special Court/Tribunal is equally necessary and important like the Judicial Officer who presides over the court, in the absence of establishment of the court the presiding officer could not perform his judicial duties, for example if the reader of the court refuses to perform his duties after the court time, the presiding officer cannot function and perform his judicial duties and if the reader is refusing to perform duty after the court hours that will not be in violation of his terms of service. It is also an admitted fact that the object of NJMPC is to provide speedy justice to public at large and to decide the voluminous litigation as early as possible.
15. The argument of learned counsel for the petitioners is that petitioners are performing duties with the courts and their case falls under Articles 25 and 27 of the Constitution of Islamic Republic of Pakistan, 1973 which guarantee equal treatment to similarly placed persons and that no citizen in the service of Pakistan or the other persons could be discriminated in any manner whatsoever.
16. The perusal of Articles 25 and 27 will show that, all equally placed persons are to be treated equally, no citizen in the service of Pakistan or the other person will be discriminated even at the time of admitting into service or after joining the service. Under Articles 37 and 38 of the Constitution the State is bound to promote social justice and eradicate the social evils among the citizens of Pakistan and it could only be possible if all the employees of judicial establishment are treated equally whether they are the creation of Federal. Government or provincial governments.
For performing same functions two different terms could not be made or implemented for the establishment of courts/tribunals.
17. To remove disparity and ensure wellbeing of the people is responsibility of the State, which in turn would eliminate inequality in the income and earning of individual including persons of various classes similarly placed.
18. Under the Constitution of the Islamic Republic of PakistandA Article 25 forbids class legislation but permits reasonable classification! For the purpose of legislation which classification must satisfy the twin tests of classification being founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group and that differentia must have a rational nexus to the object sought to be achieved by the statute in question.
19. The issue of creation of Federal Government courts came up for adjudication before honourable Supreme Court of Pakistan in Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445), the honourable Supreme Court of Pakistan ruled as under:--- "(a) That Articles 175, 202 and 203 of the Constitution provide a framework of Judiciary i,e, the Supreme Court, a High Court for each Province and such other Courts as may be established by law,
(b) That the words "such other Courts as may be established by law" employed in clause (1) of Article 175 of the Constitution are relatable to the subordinate Courts referred to in Article 203 thereof,
(c) That our Constitution recognizes only such specific Tribunal to share judicial powers with the above Courts, which have been specifically provided by the Constitution itself Federal Shariat Court (Chapter 3-A of the Constitution), Tribunals under Article 212, Election Tribunals (Article 225). It must follow as a corollary that any Court or Tribunal which is not founded on any of the Articles of the Constitution cannot lawfully share judicial power with the Court referred to in Articles 175 and 203 of the Constitution.
(d) That in view of Article 203 of the Constitution read with Article 175 thereof the supervision, and control over the subordinate judiciary vests in High Courts which is exclusive in nature, comprehensive in extent and effective in operation.
(f) That right of "access to justice to all" is a fundamental right, which right cannot be exercised in the absence of an independent judiciary providing impartial, fair and just adjudicatory framework i,e, judicial hierarchy. The Courts/ Tribunals which are manned and run by executive authorities without being under the control and supervision of the High Court in terms of Article 203 of the Constitution can hardly meet the mandatory requirement of the Constitution."
20. The above said rule laid down by the Honourable Supreme Court of Pakistan and the facts sated above will show that the Special Courts/Tribunals are under the supervision and control of High Court, their Presiding Officers' appointment under the statue require the recommendations of the honourable Chief Justice, the eligible person is either Retired Judge of High Court or retired or sitting District and Sessions Judge and as such the establishment of Special Courts and District Judiciary and establishment of High Courts could not be separated or distinguished with each other.
21. The learned Division Bench of the Sindh High Court in Amanullah Khan Yousafzai and others v.
Federation of Pakistan through Law Secretary and others (PLD 2011 Karachi 451) held as under:- "NJPMC is a highest statutory judicial policy making body, which consists of the honourable Chief Justices of all High Courts and Chief Justice of Pakistan as its Chairman. NJPMC attend all matters concerning with the judiciary' and in recent time has taken bold initiative to bring reform in justice delivery mechanism and for framing coherent policy to combat delays, promote automation, and bring out administrative reforms indeed an arduous responsibility that ensure free, fair, independent and conscious judiciary and, in shortest time achieved enviable results."
22. All the Provinces have implemented the decision of the NJPMC and the salary structure of the judicial officers and attached staff has been revised. The Federal Government has already implemented the recommendations of NJPMC in District Judiciary of Islamabad and Islamabad High Court.
23. The Letter dated 30-4-2008 from the Federal Secretary Law and Justice Division Government of Pakistan specifically finds mention that NJMPC in a meeting held on 10-11-2007 recommended the compensation package of judicial officers and recommended the enhancement in the allowance as follows:--- "3. The National Judicial Policy Making Committee (NJPMC), headed by the Chief Justice of Pakistan, in its meeting held on 10-11-2007, reviewed the compensation package of judicial officers and recommended the enhancement in the allowances as follows:---
(1) Judicial Allowance
(i) District and Sessions Judge/Addl. Rs,14000 District and Sessions Judge/Senior Civil Judge/Members Majlis-e-Shoora.
(4) The Provinces of Sindh, N.-W.F.P. And Balochistan have implemented the recommendations of NJPMC, whereas the same are required to be implemented by the Punjab. As Punjab judiciary would be the beneficiary of the above recommendations, therefore, intervention of and follow up by the Lahore High Court may be required in the matter.
(5) It would be highly appreciated if the Lahore High Court takes necessary steps for ensuring implementation of the recommendations of the NJPMC.
' With best regards.
' Yours sincerely, sd/- (JUSTICE BIN YAMIN)
Mr. Justice Sayed Zahid Hussain, Chief Justice, Lahore High Court, Lahore." ' and employees of District Judiciary and establishment of High Court are drawing the revised emoluments.
24. The other argument of learned Deputy Attorney General for Pakistan is that petition is not maintainable is concerned, the petitioners have approached -the Court on the touchstone of constitutional guarantee under Articles 25 and 27 of the Constitution of the Islamic Republic of Pakistan, 1973. The Hon'ble Supreme Court of Pakistan in Secretary Revenue v. Muhammad Saleem (2008 SCMR 948), Mrs. Manawa Sunni v. Director Army Education (1991 SCMR 135), Administrator District .Council Larkana and others v. Gulab Khan and 5 others (2001 SCMR 1320) has dilated upon the above said issue.
25. In the case of Mrs. Manawa Sunni (supra) it is held that despite her status of civil servant she approached the High Court for the redressal of grievance and the objection 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."
26. In view of the above the objection of maintainability of the petition raised is repelled.
27. The respondent is not denying that the establishment of High Court of Lahore, Sindh and Quetta are getting the allowances detailed in letter dated 30-4-2008. The petitioners are admittedly placed in the similar category in which the employees of District Judiciary and establishment of the High Courts of the Provinces are working and as such the petitioners are entitled for the same treatment. Reliance is placed on Hussain Badsha and another v. Akhtar Zaman and others (2007 PLC (C.S.) 157), the Hon'ble Supreme Court held as "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".
28. In Dr. Munir Ahmad and 37 others v. Government of Pakistan, Finance Division, Islamabad and 4 others (2007 PLC (C.S.) 285) the Honourable Chief Justice opined as under:- "Concept of equal protection and equality before law is hallmark of the constitutional scheme recognized by not only the Preamble, Objections Resolution, Articles 4, 25 and 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."
29. In case of 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 question of discrimination has been dilated upon and is opined as under:- "The point of discrimination calls for interference and exercise of powers of judicial review."
30. In case of Mehar Muhammad Nawaz v. M.D. Small Business Corporation (C.A.No,427 of 2005) decided on 9-10-2008, the honourable Supreme Court of Pakistan held as under:--- "Needless to emphasize that while dealing with the case whereas an aggrieved party alleges discrimination, the Court cannot overlook the implication thereof. Equal treatment of all similarly situated is the basic principle on which rests justice under the law. If even-handed justice is not administered, it can have many adverse and negative effects on the society. It can cause discontentment and frustration. In the social set up. There can be no denial that social justice is an objective and enshrined in our Constitution."
31. In view of the above it is established fact that the similarly placed employees of District Judiciary, establishment of High Courts are getting the benefits under the recommendations of NJMPC but the petitioners are being deprived of the same, the respondents denial thus is in violation of Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973 consequently it is declared without lawful authority. The petitioners are entitled to get the benefits under the NJMPC recommendations dated 10-11-2007 as confirmed by the respondent No,1 vide letter dated 30-4- 2008.
32. The petition is allowed in the above said terms.