' TASSADUQ HUSSAIN JILLANI, ACJ.---This judgment shall dispose of Civil Petitions Nos,494-P to 497- P of 2011 as the issue raised has nexus and vide the impugned consolidated judgment all the appeals filed by the respondents were allowed.
2. Facts giving rise to these petitions briefly stated are that the respondents are functioning as drivers attached with Members of the Khyber Pakhtunkhwa Service Tribunal. The Khyber Pakhtunkhwa Finance Department initially allowed overtime allowance to the drivers of the Judges of the High Court and staff car drivers of the Secretariat vide the order dated 16-1-1982, which was increased to Rs,500 per month on 11-3-1989. The said allowance was increased to Rs,600 per month on 24-9-1993 and to Rs,700 on 24-4-1995 and ultimately to Rs,1,500 per month vide the order dated 22-12-2006. Respondents claimed a similar allowance which was refused; they approached the Service Tribunal in the earlier round of litigation; their appeals were allowed and the matter was remanded to the Finance Department to decide the issue within three months. The said Department vide the order dated 29-10-2009, turned down the request; their departmental appeals failed which obliged them to file appeals before the Service Tribunal. The learned Service Tribunal allowed the appeals vide the impugned judgment and held that all the respondents were entitled to overtime allowance of Rs,1,500 per month. Their claim for arrears, however, was declined.
3.Through these petitions leave is sought against the impugned judgment inter alia on the ground that the learned Service Tribunal had no jurisdiction to grant overtime allowance to the drivers of the Service Tribunal; that the appeals filed by the respondents before the Service Tribunal were not even maintainable as the prayer for grant of overtime allowance was not part of the terms and conditions of service of the respondents; that the petitioner Government had given overtime allowance to the drivers attached with the Judges of the Peshawar High Court and Provincial Secretariat because they work late and deserved overtime allowance which is not the case with the respondents; that the learned Service Tribunal did not decide the question of its jurisdiction in terms of the law laid down by this Court in the following cases:-
(1) Naimat Ullah Butt v. Government of the Punjab (1988 SCM R 1453 at 1457)
(2) Muhammad Farid Khattak v. Chief Secretary, Government of N.-W.F.P. (2009 SCM R 980 at 984)
(3) Pakcom Limited v. Federation of Pakistan (PLD 2011 SC 44 at 105 & 109) and
(4) Zafar Iqbal and another v. Director, Secondary Education, Multan (2006 SCM R 1427 at 1431)
4 Mr. Abdur Rahim Bhatti, learned Advocate Supreme Court assisted the Court as amicus curiae since respondents could not afford a counsel and supported the impugned judgment by submitting that the refusal of petitioner to grant overtime allowance to the respondents was not based on reasonable classification and therefore, was violative of Article 25 of the Constitution. He added that this discriminatory treatment is also violative of Article 3 of the Constitution, which mandates the State to eliminate exploitation. He further added that the drivers perform the same duty as other drivers in the High Court and Secretariat and that there is no denial by the petitioner Government that the duties of the respondents are not limited to office hours only.
5. We have considered the submissions made, have gone through the precedent case-law and material placed before this Court.
6. In the instant case respondent's claim was based on the principle of "equal pay for equal work" and equality clause of the Constitution enshrined in Article 25 of the Constitution. There is no specific denial either .In the body of the Civil Petitions for Leave to Appeal or during arguments that the respondents are working overtime. There is no cavil to the proposition that the jurisdiction of the Service Tribunal extends to matters relatable to the terms and conditions of service. The refusal of respondents' claim for overtime was a final order and was appealable provided it pertained to the terms and conditions of their service. In I.A. Sherwani v. Government of Pakistan (1991 SCM R 1041), this Court while explaining the ambit of Service Tribunal's jurisdiction held that it will have jurisdiction in a case which is founded on the terms and conditions of service even if it involved the question of violation of fundamental rights. The Court held as follows:--- "10. From the above-cited cases, it is evident that it has been consistently held inter alia by this Court that a civil servant if is aggrieved by a final order, whether original or appellate, passed by a departmental authority in respect of his terms and conditions, his remedy, if any, is by way of an appeal before the Service Tribunal even where the case involves vires of a particular Service Rule or a notification or the question, whether an accused civil servant can claim the right to be represented by a counsel before the Enquiry Officer. We are inclined to hold that if a statutory rule or a notification adversely affects the terms and conditions of a civil servant, the same can be treated as an order in terms of subsection (1) of section 4 of the Act in order to file an appeal before the Service Tribunal. However, in the present case, the 'petitioners' case is founded solely on the ground of discriminatory treatment in violation of Article 25 of the Constitution and not because of any breach of any provision of the Civil Servants Act or any service rule. Furthermore, the question involved is of public importance as it affects all the present and future pensioners and, therefore, falls within the compass of clause (3) of Article 184 of the Constitution. However, we may clarify that a civil servant cannot bye pass the jurisdiction of the Service Tribunal by adding a ground of violation of the Fundamental Rights. The Service Tribunal will have jurisdiction in a case which is founded on the terms and conditions of the service even if it involves the question of violation of the Fundamental Rights."
7. Coming to the facts of this case, admittedly in the earlier round of litigation the appeal of Shamsher Khan respondent driver was remanded to the Finance Department to be considered as representation which dismissed the claim without disputing the fact that respondents were working overtime and their nature of job was not dissimilar to those drivers who had been granted overtime allowance in the province of Khyber Pakhtunkhwa. The tenor of the afore-quoted order indicates that the Finance Department dismissed their claim for overtime B allowance merely on the basis of the position prevailing in the other Provinces not with reference to -the working candidates which entailed working beyond the office houRs, Neither in the comments submitted before the Service Tribunal nor in the body of these petitions the petitioner Government has specifically pleaded denial of overtime allowance on the basis of reasonable classification.
Respondents' claim for equal protection before law founded on Article 25 of the Constitution could be dislodged if the petitioner Department had pleaded reasonable classification which is permissible under the law. In Brig (Retd.) F.B. Ali and another v. The State (PLD 1975 SC 506.), this Court spelt out the merit of reasonable classification by holding as follows:-- "Equal protection of the laws does not mean that every citizen, no matter what his condition must be treated in the same manner. The phrase 'equal protection' of the laws means that no person or class of persons shall be denied the same protection of laws which is enjoyed by other persons or other class of persons in like circumstances in respect of their life, liberty, property, or pursuits of happiness. This only means that persons, similarly situated or in similar circumstances, will be treated in the same manner. Besides this, all law implies classification, for, when it applies for a set of circumstances, it creates thereby a class and equal protection means that this classification should be reasonable. To justify the validity of a classification, it must be shown that it is based on reasonable distinctions or that it is on reasonable basis and rests on a real or substantial difference of distinction. Thus different laws can validly be made for different sexes, for persons in different age groups e.g. Minors or very old people; different taxes may be levied from different classes of persons on the basis of their ability to pay. Similarly, compensation for properties acquired may be paid at different rates to different categories of owneRs, Such differentiation may also be made on the basis of occupations or privileges or the special needs of a particular locality or a particular community. Indeed the bulk of the special laws made to meet special situations come within this category. Thus, in the field of criminal justice, a classification may well be made on the basis of the heinousness of the crime committed or the necessity of preventing certain anti-social effects of a particular crime. Changes in procedure may equally well be effected on the ground of the security of the State, maintenance of public order, removal of corruption from amongst public servants or for meeting an emergency."
8. The precedent case-law to which reference has been made by learned Law Officer is distinguishable as in the instant petitions the factual premise of respondents' claim has never been disputed by the petitioner. If they had contended that respondents do not work overtime, it could be a case warranting interference in the impugned judgment.
9. For what has been discussed above, the impugned judgment of the learned Service Tribunal is unexceptionable and no question of law of public importance has been raised by learned Law Officer within the meaning of Article 212(3) of the Constitution to warrant interference. The petitions lacking in merit are accordingly dismissed and leave refused.