1. ' SARDAR ABDUL HAMEED KHAN, J.--- The writ petition was accepted vide short order dated 20-6- 2013 in the following terms:--- "We are persuaded to accept the instant writ petition, hence, by accepting the same, this short order is passed. The detail judgment will follow.
2. ' That respondents are directed to upgrade the posts of petitioners and all other such staff of Judiciary of AJ&K who are employed as Reader, Nazir, Incharge Judicial Record Room, Junior Clerk, Copy Writer, Typist, Registration Clerk and Ahlmed according to office memorandum of respondent No,3 bearing No,FD/R/ (340)/2007 dated 8-9-2007 w,e,f, 1-7-2007.
3. ' The respondents are further directed to determine the terms and conditions of service of the petitioners and all other such staff of the Judiciary of AJK according to principle of parity with the Punjab Government and grant 20% Judicial Allowance, 10% Utility Allowance and Conveyance Allowance etc. on their running pay w,e,f, 1-1-2008. Order announced."
4. ' The detailed judgment is as under:--- ' Through this petition filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 following relief is solicited:--- "Under the circumstances mentioned above, it is, therefore, humbly prayed that this writ petition may very kindly be accepted and the non-petitioners may graciously be directed:
(a) to up-grade the posts of Reader and 'Nazar' and 'Reader' occupied by petitioners Nos.3, 10 and 11 from BPS-7 to BPS-9, Junior Clerks/Copy Writers, Typist, Registration Clerks and 'Ahlmad' occupied by petitioners Nos.4 to 9 respectively and all other such staff of the judiciary, according to Office Memorandum No,FD/R/(340)/2007 dated 8-9-2007 with effect from 1-7-2007;
(b) to direct the non-petitioners to determine the terms and conditions of services of the petitioners and other such staff of the judiciary according to the principle of parity with the Punjab Government and grant 20% Judicial Allowances, 10% Utility Allowances and Conveyance Allowances to the petitioners and all other such staff of the judiciary on their running pay with effect from 1-1-2008; and
(c) Any other relief which this Hon'ble Court deems fit, may also very kindly be granted to the petitioners.
5. ' Precise facts forming the background of the instant petition are that petitioners are permanent employees of the Judicial Department and are serving as Nazir, Reader, In-charge Judicial Room, Junior Clerk/Copy Writer, Registration Clerk and Typist in the Courts of District and Sessions Judge Mirpur/Muzaffarabad. It is submitted that vide office memorandum No,FD/R/(340)/2007 dated 8- 9-2007 the Government has upgraded the posts of Junior Clerks and Junior Auditors B-5 to B-7, Senior Clerks/Section Clerks B-7 to B-9 and. Assistants/Head Clerks and Senior Auditors B-11 to B-14 w,e,f, 1-7-2007.. It is further submitted that in light of the aforesaid memorandum the posts of the judicial department mentioned in the memorandum have also been upgraded but the petitioners and similarly placed other employees of the judicial department who were performing their duties as Nazir, Reader (Civil), In-charge Judicial Record Room and Reader (Criminal) have not been upgraded. The stand of the petitioners is that these posts also fall within the definition of the clerical staff and should have been upgraded. It is alleged that Registrar High Court wrote a letter to respondent No,2 for up-gradation of the said posts but no action has been taken. It is contended that Govt. of Punjab vide its Finance Department's letter dated 13-8-2008 had sanctioned 20% judicial allowance, 10% utility allowance of running pay which should not be less than Rs,1000 per month in favour of the employees of the subordinate judiciary B-1 to B 16 w,e,f, 1-1-2008 but the employees of the subordinate judiciary of Azad Jammu and Kashmir have not been allowed the said allowance while employees of all the departments and public office holders of the Azad Jammu and Kashmir are receiving perks and privileges on the basis of parity with Punjab. It is further alleged that Registrar High Court issued letter dated 13-8-2008 to respondent No,2 to remove the disparity but no action has been taken. The case of the petitioners is that they are entitled to receive pay and perks as are receiving their counterparts in Punjab and the action of the respondents not to upgrade the posts occupied by the petitioners and not to give them allowances on the basis of parity with Punjab is discriminatory.
6. ' Respondents have contested the petition by filing written statement. In the written statement filed on behalf of Finance Department it is stated that matter relates to the terms and conditions of the service of the petitioners, hence, the proper forum for the petitioners was the Service Tribunal and they cannot invoke the extraordinary jurisdiction of this Court. It is alleged that the matter is being proceeded and has not been finalized, therefore, the petition is premature. It is contended that as the Government of Azad Jammu and Kashmir has to run the business in accordance with his own budget, therefore, the principle of parity with Punjab has been withdrawn vide Notification dated 20-5-2004. The grounds of the petition were also denied. In the written statement filed on behalf of the Law Department it is submitted that in pursuance of the letter dated 25-4-2008 issued by the Registrar High Court the proceedings have been initiated and the matter is pending before the Finance Department and a reminder has also been issued to the Finance Department but the matter is still under process.
7. ' The learned counsel for the parties have filed written arguments. In the written arguments submitted on behalf of the petitioners it is stated that the posts of Nazir, Nagal Nawees, Registration Clerk, Record Keeper and Typist are counterpart of Assistant, Senior Clerk and Junior Clerk, hence, in light of the office memorandum dated 8-9-2007 the respondents are bound to upgrade these posts. It is further stated that respondents are bound to act upon the letter dated 25-4-2008 issued by the Registrar. It is contended that the petitioners are entitled to equal treatment of law and allowances granted to the similarly placed employees in Punjab because nature of their job is same and refusal of the respondents is contemptuous because the matter has already been resolved by the apex Court. The learned counsel placed reliance on the following case-law:---
(1) PLD 1986 AJ&K 239; (2) 2003 PLC (C.S.) 789; (3) 2003 SCR 155; and (4) 2009 SCR 415.
8. ' In the written arguments submitted on behalf of the respondents they have reiterated the grounds taken in their written statement and prayed for dismissal of the petition.
9. ' We have considered the arguments submitted on behalf of the learned counsel for the parties and gone through the record of the case.
10. Firstly, we would like to resolve the objection of the respondents that the matter relates to the terms and conditions of service, hence, the petition is not maintainable and the proper forum for the petitioners is the Service Tribunal. Through this petition the petitioners have sought a direction to the respondents for up-gradation of the posts and grant of allowances on the basis of parity with Punjab. Law is well settled that the Service Tribunal cannot issue a direction rather under section 4 of the Service Tribunals Act an appeal can be filed against the final order of the departmental authority pertaining to terms and conditions of service. This Court is the proper forum if any direction is required to be issued. In this regard we may refer case titled Azad Government and 3 others v. Farhat Shaheen (2007 SCR 62).
11. ' A perusal of the record reveals that the Government vide office memorandum dated 8-9-2007 has upgraded the posts of Junior Clerk, Junior Auditor, Senior Clerk/Section Clerk, Assistant/Head Clerk and Senior Auditor but the petitioners and such other employees of the subordinate judiciary, who are serving as Nazir, Reader, In-charge Judicial Record Room, Copy Writer, Typist, Registration Clerk and Ahmed, have not been given benefit of the memorandum. The registrar of this Court vide letter dated 25-4-2008 appraised the respondents that the posts of Nazir, Reader, Registration Clerk, Ahlmad, Copy Writer, Typist and Record Keeper are equivalent to the posts'of Assistant, Senior Clerk, Junior Clerk and the rules for their appointment are also the same. It was further reiterated that the posts of Nazir, Reader, Registration Clerk, Ahlmad, Copy Writer, Typist and Record Keeper could not be upgraded only due to different nomenclature of the posts. This fact has already been admitted by the Finance Department and the employees working as Ahlmad, Registration Clerk, Copy Writer B-5 were upgraded in B-7 vide Notification No,FD-R/1/342/87 dated 8-6-1988 who were not given benefit of the notification dated 2-8-1987. Moreover, the respondents have not denied the fact that the posts of Nazir, Reader, Registration Clerk, Ahlmad, Copy Writer, Typist and Record Keeper are equivalent to the posts of Junior Clerk, Senior Clerk and Assistant.
12. Moreover, the respondents have not specifically denied the claim of the petitioners. The stand of the respondents is that the matter is being processed but they cannot be allowed to sit on the files for pretty long time. The matter is pending before the respondents from 2008 which has already consumed a lot of time, therefore, the respondents are directed to upgrade the posts of Nazir, Reader, Registration Clerk, Ahlmad, Copy Writer, Typist and Record Keeper in light of the office memorandum dated 8-9-2007 w,e,f, 1-7-2007 forthwith.
13. ' So far as the principle of parity with Punjab is concerned the same has already been approved by the apex Court in case titled Finance Department of AJ&K and 2 others v. Mazhar Iqbal (2003 SCR 155). The relevant observation is recorded in para 6 of the report which is as under:--- "The principle of parity of employees of this Court to the employees of Supreme Court of Pakistan has been approved by the learned Judges of Supreme Court vide order dated 17-11-2000 and in pursuance to the aforesaid approval the Finance Department also agreed to grant special allowance to the employees of this Court vide notification dated 1-8-2001, but in the case of respondent, the same principle is denied by the petitioners. The refusal of petitioners is contrary to the judgment of the apex Court titled AJ&K Government and others v. Ch. Muhammad Saeed and others [Civil Appeal No,74 of 2002 decided on 12-8-2002."
14. It is also not denied by the respondents that the nature of job of the petitioners and similarly placed other employees is same with their counterpart in Punjab, therefore, we are of the view that the petitioners have been treated discriminatory and the action of the respondents is also against the principle of equality before law.
15. ' In view of above it is held that the Subordinate Courts Staff in B-1 to B-16 shall be entitled to 20% Judicial Allowance of their running pay, 10% Utility Allowance of their running pay but not less than Rs,1000 per month and facility of conveyance allowance, admissible to the employees in big cities, is extended as special dispensation to all subordinate court staff at all stations in the Azad Jammu and Kashmir w,e,f, 1-1-2008, as has been sanctioned in favour of Subordinate Court Staff in Punjab vide Notification No,FD-SR-1/-9-1/99 dated 13-8-2008. The Subordinate Court Staff in B-1 to B-16 shall also be entitled to the enhancement of Judicial and Utility Allowance as has been granted to the Subordinate Court Staff in Punjab vide Notification No, F.D.SR-1-9- 1/99 dated 7-9-2009 w,e,f, 1- 7-2009.
16. ' The aforesaid anomaly was also created in Punjab due to different nomenclature of the posts as Nazir, Reader, In-charge Judicial Room, Junior Clerk/Copy Writer, Registration Clerk and Typist etc. As they were similarly placed and were performing similar functions, therefore, the full bench of Hon'ble Lahore High Court in a case titled Muhammad Yousaf v. Government of Punjab, etc. dated 13-10-2011 has issued a direction to the concerned authorities to grant the petitioners therein the same perks and privileges which have been allowed to the Junior Clerks, Senior Clerks, Assistants.
17. The relevant observation is recorded in paras 9 and 10 of the judgment which is reproduced as under:--- "The argument of learned A.A.-G. is that petitioners are not Junior Clerks, Senior Clerks and Assistants/Head Clerks, they are Ahmads, Readers etc. which is not the part of notification of up- gradation and the posts held by the petitioners are not mentioned in the notification and as such the benefit of said notification could not be extended to petitioners. It is not denied by the learned A.A.-G. that Notification dated 30-6-1991 of Government of Punjab, Finance Department still hold the field. The Notification dated 30-6-1991 is the core document which clarified the so-called anomaly/objection raised by learned A.A.-G. The Notification provides that post of Reader will be at par with the post of Assistant/head Clerk, Post of Ahmad is at par with the Junior Clerk, the Assistants/Clerk of Court's post will be at par with the Assistant/Head Clerk. The said notification clinch the entire dispute. After coming into operation the Notification dated 30-6-1991 the petitioners who are Ahmads, Readers and Assistants become, Assistant/Head Clerk become the Junior and Senior Clerks even if they be treated holding the posts of specific nomenclature.
18. Notification dated 10-9-2007 provides that posts of Assistant/Head Clerk Senior Clerks and Junior Clerks have been upgraded. The notification dated 30-6-1991 read with notification dated 10-9 2007 shows that petitioners become entitled for the benefit of Notification of up-gradation of their posts.
19. The argument of learned A.A.-G. thus, has no force. The question of nomenclature is immaterial as this matter has already been resolved vide notification dated 30-6-1991.
20. ' As per admission of respondent No,4, it is the district Judiciary's internal arrangements that the Junior Clerks and Senior Clerks and Assistants/Head Clerks have been nominated as Ahmad, Readers and Assistants. In case the argument of learned A.A.-G. is accepted that petitioners are not covered under the notification dated 6-9-2007 as their nomenclature is different from the nomenclature provided in the notification, the effect will be that their original nomenclature will be deemed to be reviewed and they will be called Junior Clerks, Senior Clerks and Assistants/Head Clerks. It is the Court who has renamed the Junior Clerks, Senior Clerks and Assistants/Head Clerks for the convenience of litigants as Readers, Ahmad and Assistants etc and as such the objection raised by respondents is of no avail and is in violation of Notification dated 30-6-1991."
21. Therefore, for the aforesaid reasons, the instant writ petition stands admitted in the terms indicated in the supra quoted short order of this Court dated 20-6-2013.