' M. SOHAIL IQBAL BHATTI, J. --- Through this Constitutional petition, the petitioners have sought the indulgence of this Court in its extra Constitutional jurisdiction while making the following prayer:- "In view of above submissions, it is humbly prayed that by accepting this writ petition, the order/office memorandum dated 24.01.2011 issued by respondent No, 1, to the extent of granting the enhanced House Rent Allowance and Conveyance Allowance with immediate effect, may kindly be declared without lawful authority, based on mala fide and against the Equality Clause of the Constitution.
' It is further prayed that the enhanced House Rent Allowance at the rate of 45% and Conveyance Allowance may kindly ordered to be grant to the humble petitioners w.e.f 01.12.1991."
2. The facts of the case are that the petitioners being employees of the Federal Government rendering services at D.G. Khan as Senior Auditors filed writ petition No, 3570/2002 claiming the grant of enhanced House Rent Allowance @ 45% and Conveyance Allowance w,e,f, 01.12.1991; as according to the petitioners, the employees of the Provincial Government were allowed this benefit w,e,f, 21.03.1992. The writ petition was disposed of by this Court on 23.11.2010 with the direction to the petitioners to file a representation with:the Federal Government with a further direction to the Federal Government to decide the representation of the petitioners within a period of one month.
3. In pursuance to the representation filed by the petitioners with Secretary Finance, Government of Pakistan, office memorandum was issued on 24.01.2011 which is reproduced as under:--- "Government of Pakistan Finance Division (Regulations Wing)
No, F.2(3)-R.5/2002- Islamabad, the 24th January, 2011 OFFICE MEMORANDUM SUBJECT:- DECLARATION OF 'DERA GHAZI KHAN AS BIG CITY FOR THE PURPOSE OF HOUSE RENT ALLOWANCE AND CONVEYANCE ALLOWANCE.
' The undersigned is directed to state that in pursuance of the orders of Lahore High Court, Multan Bench, Mu!Tan dated 23.11.2010 in writ petition No, 3570/2009, it has been decided to declare Dera Ghazi Khan as big city with immediate effect for the purpose of House Rent allowance @ 45% of the minimum of pay scale and conveyance allowance at prescribed rates for the Government employees posted within municipal limits of Dera Ghazi Khan.
(M. S. Saleemi)
' Deputy Secretary (R-Ill)
All Ministries/Divisions."
4. Aggrieved by the said office memorandum, the petitioners have filed the present writ petition.
5. The learned counsel for the petitioners while advancing his arguments submitted that the office memorandum dated 24.01.2011 is tainted with mala fide, has been issued without lawful authority and is violative of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973. It has been submitted that the benefit of house rent allowance & conveyance allowance be granted to the petitioner w,e,f, 1.12.1991 as was allowed to the employees of the Provincial Government.
6. The learned counsel for the petitioners has further relied upon 2011 PLC (C.S.) 49 titled "Qazi- Nazamud-Din v. Secretary Finance and others."
7. Conversely, the learned Deputy Attorney General has vehemently argued that the writ petition was not maintainable as Government of Pakistan has not been impleaded as a party; it has been further argued that impugned office memorandum dated 24.01.2011 cannot be given retrospective effect and is not violative of the fundamental rights of the petitioners as enshrined in Article 25 of the Constitution of Islamic Republic of Pakistan, 1973. Learned Deputy Attorney General has also drawn my attention to General Financial Rules 57 and 58 and argued that no financial benefit can be allowed by Federal Government retrospectively.
8. I have considered the arguments advanced by the learned counsel for the parties and have gone through the record.
9. The impugned office memorandum dated 24.01.2011 has been given "immediate effect". The term "immediate" and the term "effect" have been defined in Black's Law Dictionary 6th Edition as under:- immediate Present; at once, without delay, not deferred by way interval of time. In this sense, the word, without any very precise signification, denoted that action is or must be taken either instantly or without any considerable loss of time. A reasonable time in view of particular facts and circumstances of case under consideration ------------ ".
"Effect. To do; to produce; to make; to bring; to pass; to execute; enforce; accomplish."
10. When both these terms are read in conjunction, it becomes clear that the term immediate effect means that the policy would take effect from the date when it has been formulated/issued.
11. This would now take me to resolve two questions (i) as to whether the policy introduced by the Federal Government can be interfered with by the High Court in its Constitutional jurisdiction; and
(ii) whether the policy by the Federal Government which has given immediate effect can be interfered with and given a retrospective effect by High Court in its Constitutional jurisdiction.
12. It is an established proposition of law that the High Court should not travel in the domain of policy' matters and should not sit as a Court of appeal over the policy decision made by the Executive and substitute the decision of the Executive with its own decision. Reliance is placed on 1998 SCMR 2679 (Institute of Chartered Accountants of Pakistan. Karachi and others v. Federation of Pakistan and others).
13. It has been held by the august Supreme Court of Pakistan as well as by this Court that any policy, executive notification, administrative decision cannot be given a retrospective effect. Even a legislative instrument cannot be given retrospectively unless the legislature itself gives it a retrospective effect. The Honourable Supreme Court of Pakistan in a judgment reported in 2003 SCMR 271 titled Zakariya H.A. Sattar Bilwani and another v. Inspecting Additional Commissioner of Wealth Tax Range-II, Karachi has held that even a statute would operate prospectively unless by express enactment retrospective operation has been given to it.
14. I am also fortified in my view by a judgment reported in 2003 PLC (CS) 87 titled Muhammad Anwar Khan v. A.K. Government through Chief Secretary having its office at Muzaffarabad and 2 others wherein it has been observed that no notification, government order or administrative order could be given retrospective effect. General Financial Rules No,.57 and 58 are reproduced as under:- ' Ride 57.
Unless otherwise indicated specificant in the order conveying the sanction, a sanction issued by a competent authority has effect from the date of orders conveying the sanction Rule 58.
(I) All authorities which are competent to sanction revision of pay or the grant of concessions.
To the Government Servant should bear in min that retrospective effect should not be given to financial sanctions --
15. The perusal of these two rules make its abundantly clear that any sanction given by the Federal Government granting the financial benefits cannot be given a retrospective effect. There is no denial to the fact that Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 provides equal protection of law to the citizen but for application of equality clause of the Constitution, the principle is that equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike.
17. The case of the petitioners is hinged upon the arguments that since the employees of the Provincial Government are getting house rent allowance @ 45% and conveyance allowance, the petitioners have been meted out with discriminatory treatment and are entitled to get those benefits from the date when the employees of the Provincial Government are drawing the same.
18. The Honourable Supreme Court of Pakistan in a judgment reported in 2003 SCMR 291 titled Dr. Naveeda Tufail and 72 others v. Government of Punjab and others has discussed this issue. It was the argument of the petitioners that despite having been appointed for many years, the Provincial Government declined to regularized the posts of the petitioners whereas the similar appointees by the Federal Government had already been regularized and thus non-regularizing of the posts was against the principles of equality as contained in Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973.
19. The Honourable Supreme Court of Pakistan observed that the petitioners being employees of Provincial Government could not claim regularization as of right in the light of policy of the Federal Government.
20. This principle laid down by the august Supreme Court of Pakistan is fully applicable upon the case of the present petitioners as the petitioners being the employees of the Federal Government cannot claim the benefit of house rent allowance and conveyance allowance in light of the policy of the Provincial Government.
21. It would be appropriate to refer to the criteria for big city approved by the Prime Minister which is as under:
(i) The city should have at least five lac urban population.
(ii) The city which has less than five lac urban populations should have the status of Divisional Head Quarter as well as Municipal Corporation apart from high cost of living with special reference to rental level."
22. I must observe that the learned counsel for the petitioners has failed to point out as to whether the criteria set out by the Federal Government was met with in the year 1991.
23. As far the judgment referred to by the learned counsel for the petitioners 2011 PLC (C.S.) (Lahore High Court) 49 "Qazi-Nazam-ud-Din v. Secretary Finance and others, it is suffice to observe that this judgment is not applicable upon the case of the present petitioners. In the case referred to by the learned counsel, the big city allowance was allowed to the employees of the Provincial Government which was subsequently stopped and the Government started deduction of the allowance already paid.
' It was held by this Court that the benefit once granted to the civil servant cannot be withdrawn and the employees of the Provincial Government were found entitled to the grant of big city allowance from the date when it was discontinued to be paid to them.
24. I must observe that the petitioners in the writ petition have not impleaded the Federation of Pakistan in the array of respondents and the present writ petition is not maintainable due to non compliance of the mandatory provision of Section 79 of CPC read with Article 174 of the Constitution of Islamic Republic of Pakistan, 1973. The question might arise that the word used in Section 79 of CPC is "suit". Honourable Supreme Court of Pakistan in a judgment reported in PLD 1996 SC 543 while following the dictum laid down in Hussain Bakhsh v. Settlement Commissioner PLD 1970 SC 01 observed that the "proceeding which deals with a right of civil nature does not seize to be so merely because the right is sought to be enforced by having recourse to writ jurisdiction.
Judged from these aspects, a proceeding under Article 98 of the Constitution of Islamic Republic of Pakistan, 1973 relating to a civil matter is a civil proceeding although the High Court's jurisdiction in such a proceeding is constitutional jurisdiction of an original kind. Hence, the exercise of what is commonly termed as the writ jurisdiction, was considered to be a special original jurisdiction of the High Court and not ordinary original civil jurisdiction. There is no cavil to the established law that CPC is applicable in totality in writ jurisdiction. Section 79 of CPC is reproduced herein below: - "79". Suits by or against the Government--- in suits by or against the Government, the authority to be named as plaintiff or defendant, as the case may be, shall ----
(a) In the case of a suit by or against the Federal Government, Pakistan;
(b) In the case of a suit by or against a Provincial Government, Pakistan;
(c) In the case of a suit by or against a Provincial Government, the Province."
25. The above Section has been couched in a simple and plain language and there is hardly any need for its scholarly interpretation and it simply provides that a suit instituted against the Government, the authority to be named as defendant would be the Federal Government of Pakistan or the Province concerned as the case may be. The provision as enumerated in Section 79 CPC was discussed in case titled "Province of Punjab v. Muhammad Hussain" (PLD 1993 SC 147), relevant portion is reproduced herein below for ready reference.- "Section 79 of CPC requires and so does Article 174 of the Constitution that all suits against the Central Government have to be filed in the name of Pakistan and against a Provincial Government in the name of Province."
' Similarly Article 174 of the Constitution reads as under:- "The Federation may sue or be sued in the name of Pakistan and the Province may sue or be sued in the name of the Province."
26. A suit against the functionary only is not maintainable in case of non-compliance of the mandatory provisions enumerated in Section 79, CPC and Article 174 of the Constitution of Islamic Republic of Pakistan, 1973 as has been done in this case.
27. In view of what has been discussed hereinabove, this writ petition is dismissed.