' YAHYA AFRIDI, J.--- Gul Taimur Khan and six others, the petitioners, seek the constitutional jurisdiction of this Court praying that:--- "By accepting this writ petition the respondents may kindly be directed to allow the risk allowance with ration allowance to the employees of civil aviation authority with effect from 30- 6-2011 as per notification dated 18-1-2012 vide which already granted the same relief to the airport security force (ASF)
' Any other relief not specifically prayed but deems fit and proper may also be granted in favor of petitioners against the respondents."
2. The brief facts leading to the present petition are that the petitioners are the employees of Civil Aviation Authority ("CAA") and presently working at Bacha Khan International Airport' Peshawar ("Airport"); vide Notification No,4-23/2011-ASF dated 18-1-2012 ("Notification"), Ministry of Defence, Government of Pakistan, certain allowances were granted to uniformed personnel of the 'Airport Security Force' ("ASF"). The Notification provided that:--- "No, 4-23/2011-ASF Government of Pakistan Ministry of Defence (Defence Division)
Rawalpindi, the 18th Jan, 2012.
To
1. Accountant General of Pakistan Revenues, Islamabad, Lahore, Peshawar, Quetta,
2. Director General, Pakistan Revenues, Karachi,
3. District Accounts officers, Multan, Faisal Abad, Sialkot and other concerned locations. Subject: ENHANCEMENT OF VARIOUS ALLOWANCES OF THE PERSONNEL OF AIRPORTS SECURITY FORCE (ASF)
' Dear Sir, ' I am directed to convey the sanction of the President to the grant of following additional allowances and increase in other existing allowances to uniformed personnel of ASF w,e,f, 27th December, 2011:-
(a) Grant of risk allowance equal to one month basic pay on BPS-2008 as admissible on 30-6-2011 at frozen level to the uniformed personnel of ASF at par with the uniformed personnel of Armed/Civil Armed Forces. However, 50% ad hoc allowances presently admissible to them will be discontinued from the date of grant of risk allowance.
(b) Increase of ration allowance from Rs,900 per month to Rs,1500 per month to uniformed personnel.
(c) Enhancement of remote area allowances from Rs,750 P.M. For BPS-1 to 16 and Rs,1000 P.M. For BPS-17 and above (sanctioned to ASF w. e. 15-5-2008) to Rs,1500 P.M. For BPS-1 to 16 and Rs,1000 P.M for BPS-17 and above for selected smaller Airports i,e, Chitral, Parachinar, Swat, Sibbi, Sui, Dalbandin, Khudar, Zhob, Makran, Turbat, Gawadar, Pasni, Jiwani, Punjghor, Ormara, Gilgit and Skurdu.
2. The funds will be generated through enhancement of security charges from Rs,20 and Rs,40 on domestic and International Passengers respectively to Rs,60 and Rs,140 respectively per air ticket to meet the above extra expenditure. These funds will be collected through Federal Board of Revenue.
MOD/ASF will arrange to issue a revised SRO in this regard by FBR Islamabad immediately.
Furthermore, a sum of Rs,5, 000 each as yearly Airport Entry pass fee will be charged from private individuals with effect from 1-1-2012 by ASF. The fee will be deposited into Government Treasury. (i,e, Federal Consolidated Fund) by the individual concerned in the relevant head of account and; a copy challan thereof will be forwarded to HQ ASF Karachi for maintenance of accounts.
3. The expenditure involved will be met out of budget grant of Airports Security Force under major functions 03 public Order and Safety Affairs, minor functions 032 Police, Detailed functions 0321 Police, sub detailed function 032150 others (ASF) major object A01 employees related expenses, minor object-A012 allowances, detail object-A012-1 regular allowance, A012-2 other.
4. This issued with the approval of Finance Division (Reg Wing), Islamabad's U.O. No,F.11(5)/R- 1/2007/1330 dated 10th January, 2012." (Emphasis provided)
3. The General Secretary, CBA, of CAA at Airport, moved an application to the Chairman of CAA for the grant of the benefits and allowances under the Notification to the employees of CAA Peshawar.
But with no positive response. Hence, the instant writ petition.
4. The worthy counsel for the petitioners vehemently argued that the petitioners, who were 'similarly placed' as the personnel of ASF, who are being denied the benefit of allowances being allowed to the former and thus, discriminated. The worthy counsel sought reliance on unreported judgment of Sindh High Court dated 24-5-2011, rendered in Constitutional Petition No,1465 of 2009 in Amanullah Khan Yousafzai's case and Muhammad Akram's case (2013 PLC (C.S) Lahore 717).
5. In rebuttal, the worthy counsel representing the official respondents vehemently argued that the petitioners have no 'vested right' to claim benefits under a policy and that the Government had all the authority to formulate and restrict the benefits to a class of persons under its policy; and thus, the same was 'non justiciable' unless it violated a fundamental right, as provided under the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution"). The worthy counsel sought reliance upon Messrs ACT International's case (2013 YLR Peshawar 1396)
6. Valuable arguments of learned counsel for the parties heard and record perused.
7. All human being are 'equal' This cardinal principle was first adopted and practiced, as an essential policy of governance by Holy Prophet (P.B.U.H), after Hijrat' in Madina Munawwara' and, thereafter, followed by 'Khulafa-e-Rashideen'. Hence, this principle of `equality' become an integral policy of governance and a pillar of Islamic jurisprudence.
8. The source of this pioneering thought of 'equality' and its consequential abhorrence to its anti- face, 'discrimination', is the Holy Qur'an. Some of the verses in the Holy Book, enlightening this fundamental principle of 'equality' derive its geneses in Surah Al-HUJURAT Ayat No 13, wherein it is ordained:- "O people! We created you from one man and one woman and made you branches and tribes that you may recognize one another. Undoubtedly, the most respected amongst you in the sight of Allah is he who is more pious, verily, Allah is knowing, Aware."
' In Ayat No,22 of SURA Al-RUM, it is further ordained:- "And of His signs is the creation of heavens and earth, and the diversity of your tongues and colours. No doubt in it, are signs for those who hear"
' Further, in Ayat No,70 of SURA BANI ISRAEEL, it is ordained:- "And We have certainly honored the children of Adam and carried them on the land and sea and provided for them of the good things and preferred them over much of what We have created, with [definite] preference"
' Similarly, the declaration contained in Ayat No, 22 SURA AL-BAQARAH:--- "[He] who made for you the earth a bed [spread out] and the sky a ceiling and sent down from the sky, rain and brought forth thereby fruits as provision for you. So do not attribute to Allah equals while you know [that there is nothing similar to Him]".
' It is also noted that in Ayat No,29 SURA AL-BAQARAH, it is ordained: "It is He who created for you all of that which is on the earth. Then He directed Himself to the heaven, [His being above all creation], and made them seven heavens, and He is Knowing of all things'.
' These verses, amongst others, ordained in the Holy Qur'an, brings at 'par' all human beings, irrespective of sex, caste, colour, creed, community or country.
9. This core essential principle of 'equality' of all human beings, propagated by the Holy Prophet (P.B.U.H) in the 7th century, in the deserts of Arabia became an ideal, for which the Americans fought 'the war of independence and the French rose up in the 'French Revolution' in the late 18th century. Finally, this ideal of 'equality' found its place in the constitutions of civilized and democratic nations and International Treaties and Covenants on human rights.
10. The ideals of 'equality' and 'non-discrimination' was adopted in the Charter of United Nations, which provides, 'inter alia that:- "Article 1(3) "To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion."...
' Article 13(1) "The General Assembly shall initiate studies and make recommendations for the purpose of:---
(b) promoting international cooperation in the economic, social, cultural, educational, and health fields, and assisting in the realization of human rights and fundamental freedoms for all without distinction as to race, sex language, or religion and Article 55(c) "universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion."
' The Charter has been ratified by most of the members States of the United Nations and are thus, bound by its stipulations.
11. It is also noted that, Universal Declaration of Human Rights, which was adopted by the United Nations General Assembly in 1948, declared, 'inter alia that:-- ' Article (1) "All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood."
' Article (2) "Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the, political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty."
' Article (4) "No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms." ...
' Article (7) "All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination."
12. Similarly, provisions protecting 'equality' and rejecting `discrimination' have been provided in other International Covenant and Treatise, including International Convenant on Civil and Political Rights, 1966, European Convention on Human Rights, 1954 and the Treaty of Lisban, 1998.
13. When we review the Constitution of the United States of America, it is noted that it is concise written document, comprising of seven Articles and twenty-seven amendments. It is 14th amendment, which relates to 'equality' and 'non-discrimination' and reads:---- 'Section (1) states that: ' All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (Emphasis provided)
14. Interestingly, despite the high sounding principles of 'due process' and 'equal protection of law' embedded in the 14th Amendment, it took more than a century for the superior Courts in United States of America to actually enforce the same in Brown's case (1954), where the Supreme Court declared illegal racial discrimination and segregation in public schools. Strikingly, the army had to be called to enforce the said decision of the Supreme Court.
15. Earlier, attempts made in Dred Scott's case (1857), were repelled by the Supreme Court on the ground of jurisdiction, while in Plessey's case (1896), where the Supreme Court acknowledging racial segregation coined the terms `separate but equal', and this did not give full effect to the spirit of `equality' and 'non-discrimination' enshrined in the 14th Amendment.
16. England, on the other hand, has no written constitution. However, the two great historic documents, the 'Magna Carta' (1215) and the 'Bill of Rights' (1689), acknowledged the principle of 'equality' and `non-discrimination', envisaging the reduction in the power and authority of the Monarchy, and laid the seed for the 'rights' of the `subjects'. With time, Parliament in England legislated on matters, propagating 'equality' and protecting against discrimination. Some of the leading statutes, include Equal pay Act 1970, Sex discrimination Act, 1975, Race relations Act, 1976, Disability discrimination Act, 1996 and Equality Act 2010.
17. These ideals of 'equality' and 'non-discrimination' have a resounding impression on the constitutional history of our nation. In fact, Objectives Resolution passed by the Constituent Assembly in March, 1949, has remained the basis of constitutional development, enunciated the principles on which the future constitution of our nation was to be framed. The Objectives Resolution, proclaims that the sovereignty over the entire universe belongs to Allah Almighty.
Finally, the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution"), under Article 1 declares that:--- "Pakistan shall be a Federal Republic to be known as the Islamic Republic of Pakistan, hereinafter referred to as Pakistan."
' While, Article 2 'supra' propagates that: "Islam shall be the state religion of Pakistan."
' And, Article 2 (A) declares that the principles and provisions set out in. The Objectives Resolution are made substantive part of the Constitution.
18. Apart from other provisions relating to `equality' and `nondiscrimination' , provided in the Constitution, Article 25 appears to be the most powerful provision, protecting a 'citizen' against any action or inaction of `inequality' or 'discrimination' , by the State, in terms that:--- "Equality of citizens (1) All citizens are equal before law and are entitled to equal protection of - law.
(2) There shall be no discrimination on the basis of sex.
(3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children."
' This fundamental right of 'equality' and `non-discrimination' is, however, not an absolute right. In fact, it is more inclined towards the concept of `equals protection of law' provided in the 14th amendment of the Constitution of United States of America. Before we proceed further, it would be important to note that the concept of `due process' and 'equal protection' have separate and specific constitutional connotations, as explained by Justice Rehnquist in Ross v. Moffitt (417 US 600) and reported by Justice (R) Fazal Karim, in his treatise Judicial Review of Public Actions in terms:--- " 'Due process' and 'equal protection' are not to be confused one with the other. 'Due process' emphasizes fairness between the State and the individual dealing with the State, regardless of how other individuals in the same situation may be treated. 'Equal protection', on the other hand, emphasizes disparity in treatment by a State between classes of individuals whose situations are arguably indistinguishable."
' The apex Court highlighted this issue in a comprehensive manner, for the first time, in Jibendra Kishore v. Province of East Pakistan (PLD 1957 SC Pak 3), wherein it was held:--- "But notwithstanding the disinclination of the Court to given an all inclusive definition of the expression, some broad propositions as to its meaning have been enunciated. One of these propositions is that equal protection of the laws means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in like circumstances, in their lives, liberty and property and in pursuit of happiness." (Emphasis provided)
' Similarly, in Brig. F.B. Ali's case (PLD 1975 SC 506), Chief Justice Hamood-ur-Rehman, speaking for the apex Court, reiterated the principle of. 'equality' and 'non-discrimination' in terms:-- "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 to 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."
' His Lordship seeking reliance upon Willis' Treatise's case, further opined that:- "There is no rule for determining when classification for the police power is reasonable. It is a matter for judicial determination, but in determining the question of reasonableness the courts must find some economic, political or other social interest to be secured, and some relation of the classification to the objects sought to be accomplished. In doing this the courts may consider matter of common knowledge, matters of common report, the history of the times, and to sustain it they will assume every state of facts which can be conceived of as existing at the time of legislation. The fact that only one person or one object or one business or one locality is affected is not proof of denial of the equal protection of the laws. For such proof it must be shown that there is no reasonable basis for the classification."
19. It would also be pertinent to note that, the concept of `classification' has been commented to have its basis in Islamic Jurisprudence, in Muhammad Aslam Khakhi's case (PLD 2010 Federal Shariat Court 1), wherein it is stated that:--- "Islamic history is replete with instances which vividly illustrate that the principle of classification has a sanction based upon reasonable and material grounds. The above mentioned cases of Abdur Rashid and Waheed Akhtar were decided without reference to the Islamic Injunctions on the subject. Hence a detailed discussion has been undertaken in this judgment in the light of Islamic principles in resolving the question relating to legal justification of classification of prisoners into various categories notwithstanding the general principle of equality of human being is not only the prisoners alone but the prisons in Pakistan have also been divided in different categories as in evident from Chapter 2 of the Prison Rules. The fact of the matter is that the concept of reasonable classification is now a universally acknowledged phenomenon. The element of inhuman and vicious classification amounting to abject discrimination was an accepted reality in the erstwhile Arab Customary Code and contemporary societies elsewhere. With the advent of Islam a rational and a judicious basis was introduced whenever classification .Had to be resorted to. However the historically old, appalling' and crude mode of classifying human beings on false grounds of colour, caste, creed or nationality was strictly prohibited by Holy Qur'an and Sunnah of the Holy Prophet (P.B. U.H)."
20. The principle of 'Equality' and `non-discrimination' enunciated in the judgments, referred to hereinabove, have been consistently adhered to while deciding cases, some of the leading cases in this regard include Waris Mean's case (PLD 1957 SC 157), Shrin Munir's case (PLD 1990 SC 295), I.A.Sharwani's case (1991 SCM R 1041), Abdul Baqi's case (PLD 2003 SC 163), Arshad Mehmood's case (PLD 2005 I 3), Messrs Nafees Dry Cleaners's case (2001 PTD 2018), Pakistan Tabacco Co's case (2002 CLC 1910), Shafqatullah's case (2006 CLC 1555), Shehzad Riaz's case (2006 YLR 229) and Dr.Zahra Hassan's case (2013 M LD 1835).
21. Similarly, the Indian apex Court has also adhered to the basic principle of 'classification' in legally determining the constitutional legality of 'benefits' granted and 'burden' imposed upon its citizen in legislative and administrative actions of the State. Some of the leading cases decided in this regard, include, Charantit Lal Chownwdhury's case (AIR (3) 1951 SC 41), Sakhawant Ali's case (AIR 1955 SC 166), N.H. Bhagwati's case (AIR 1958 SC 578 (V.45.C.83) and Satwant Singh Sawhnev's case (AIR 1967 SC 1836).
22. Reviewing the genesis, the text and the opinion rendered on this fundamental right of 'equality' and 'non-discrimination' provided under Article 25 of the Constitution, by imminent Jurists and above all the superior Courts, it would be safe to state that:-
(I) The fundamental right of 'Equality' and Won-Discrimination', as ordained under Article 25 of the Constitution, can be invoked by a citizen against any violative action, inaction, order, policy, legislation or subordinate legislation of the State.
(II) The fundamental right of 'Equality' and 'non-discrimination' provided under Article 25 of the Constitution is not an absolute right, vesting in a citizen, unqualified right in all aspects to be equal to all other citizens.
(III) The State is, however, under a constitutional obligation to treat its citizens equally. However, in certain circumstances, it may treat them differently, as a class, on the fulfillment of the two condition precedents:
(i) the classification must not arbitrary but should reasonable and rational, and
(ii) The classification must be founded on an intelligible differentia, grouping the persons together, which distinguishes those who are grouped together from others, and the ' classification must have a rational relation to the object sought to be achieved by the State."
' The fulfillment of the aforementioned two condition precedents to legally validate an action or inaction of the State, on the touchstone of Article 25 of the Constitution, can safely be termed as the 'test of classification' .
23. Moving to the facts of the present case, it is noted that the Federal Government vide Notification dated 18-1-2012, granted 'risk allowance' equivalent to one month basic pay, to uniformed personnel of ASF, with effect from 27-12-2011. The grant of the said allowance was stated to be in order to bring armed personnel of ASF at 'par' with uniformed personnel of Armed/Civil Armed Forces. The funds for the said additional allowances were to be generated through enhanced 'security charges' on domestic and international passengers, and increase in the 'Airport Entry Pass Fee' chargeable from private individuals.
24. Keeping in view the facts leading to the present petition, this Court has to, now determine: ' Whether the grant of risk allowance to the uniformed personnel of ASF fulfils the test of classification and thereby does not offend the fundamental rights of the petitioners ordained under Article 25 of the Constitution.
' Test of Classification.
25. The first condition precedent of the 'test of classification' appears to have been fulfilled, as the grant of 'risk allowance' to the uniformed personnel of ASF is reasonable and rational, as it is alive to the state of alert and the 'risk to life' of the uniformed personnel of ASF protecting the Airport, which after the Karachi incident has become a prime target of terrorist attack. Furthermore, it was also stated in the Notification, to bring the uniformed personnel of ASF at 'par' with the uniformed personnel in Armed or Civil Forces. Thus, the classification of the two Forces cannot be, in any way, termed as arbitrary.
26. Moving to the second condition precedent of the 'test of classification', it is noted that the present petitioners are also performing their duties at the Airport and are, as exposed to terrorist attack, as any other uniformed personnel of ASF, performing their duties at the same work place.
Viewed in this perspective, it is noted that there does not appear any 'intelligent differentia' between the uniformed ASF personnel and the petitioners performing their duties at the same Airport. In fact, D the 'risk to life' from a terrorist attack is far greater to the employees of CAA, than the uniformed personnel of ASF, being un-armed.
27. In the circumstances, this Court finds that the second condition precedent for the creation of a distinct class, to be provided a 'benefit', to the exclusion of others, is not forthcoming in the circumstances of the present case. Both, uniformed ASF personnel and CAA employees, performing their duties at the. Airport, cannot be separated as a class only on the basis of `uniform' or their 'scope of work', as the essential aim of granting the 'risk allowance' is in fact the exposure to a terrorist attack and consequently, the 'risk to life', at their work place.
28. Hence, a case of discrimination is made out, offending the fundamental rights vested in the petitioners under Article 25 of the Constitution.
' Accordingly, for the reasons stated hereinabove, this Court holds that:--- I. The 'risk allowance' granted to the ASF personnel under the Notification is discriminatory, as it offends the fundamental rights of the petitioners, enshrined in Article 25 of the Constitution.
II. The respondents are directed to also grant 'risk allowance' to the petitioners, while they are posted at the Airport and also till the said allowance is being granted to the uniformed personnel of ASF.
III. The respondents are directed to do the needful within a period of three months.