' AFTAB AHMED GORAR, J.--- Through this constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has sought following reliefs:---
(a) That this honourable Court may be pleased to direct the respondents to treat the petitioner equally and on the same line as have treated other officers named in paras Nos.5 and 6 of this petition and seniority or the petitioner be determined accordingly.
(b) To declare that action of the respondents awarding seniority to the officers mentioned in para No,4 of this petition and different treatment to the petitioner is discriminatory unjustified and derogatory thus is illegal and unconstitutional.
(c) To direct the respondents to decide the matter of seniority of the petitioner within specified time and consider him for his further emoluments/benefits accordingly.
2. The petitioner's case is that he was appointed as PSI by the DIG Police Sukkur vide order dated 17- 9-1980 and he continued to work as such till the Home Department changed his cadre from Prosecution Side to Executive Side and he was posted as Sub-Inspector in Sindh Police on regular establishment vide order dated 24-7-1991. Likewise, various other prosecuting Sub-Inspectors were transferred from prosecution side to executive side. Grievance of the petitioner is that after absorption of the prosecuting Sub-Inspectors in Sindh Range Police seniority to others was allowed from the date of their initial appointment but the petitioner has been discriminated and has been treated differently and he has been awarded seniority from the date of his absorption. In support of his plea, the petitioner has annexed to the petition copies of various notifications whereby other officials/officers were allowed seniority from the date of their substantive appointment. The petitioner has also annexed copies of three other Notifications in support of his assertion that even certain DSPs of prosecution side, who were transferred to Sindh from other provinces on their own request, were also assigned seniority and all other service benefits from the date of their initial appointment/ promotion. It is further averred that the petitioner made representation to respondent No,4 in this behalf mainly on the ground of discrimination. Having received no reply, the petitioner moved application to Chief Minister Sindh who directed respondent No,4 to submit his views. Ultimately, respondent No,4 vide his letter dated 23-1-2010 observed that if original seniority is assigned to the petitioner from the date of his initial appointment, it would cause heart burning to the officers originally belonging to executive cadre and would also open Pandora Box in similar cases. The petitioner then invoked constitutional jurisdiction of this Court by way of filing instant constitutional petition.
3. On service of notice, respondent No,4, Inspector-General of Police, filed comments wherein he mainly stressed on the fact that the cadre of the petitioner was changed from "Prosecution" to "execution" in July, 1991 with the condition that he will have to accept lower-post/grade and lowest seniority in the rank of Sub-Inspector. Thereafter the petitioner kept on working without claiming the seniority and after lapse of about 18 years, he claimed his original seniority which cannot be granted to him as it will cause hear-burning to the officers who originally belonged to executive cadre and it will also open Pandora Box in similar cases.
4. We have heard learned counsel for the petitioner as well as learned A.A.-G. Appearing for the State and with their assistance have gone through the material available on the record.
5. Learned counsel for the petitioner contended that in the instant case the petitioner has been treated discriminately and differently as he has been awarded seniority from the date of his absorption instead of the date of his initial appointment as was done in the cases of other officials/officers. Elaborating his argument, he submitted that after absorption of the prosecuting Sub-Inspectors in Sindh Range Police various officials/officers of police department, were awarded seniority from the date of their initial appointment but the petitioner has been discriminated and has been treated differently and has been assigned seniority from the date of his absorption instead of the date of his initial appointment. He further contended that not only this, but even the police officers of prosecution side, who were transferred to Sindh from other provinces on their own request, were also assigned seniority and all other service benefits from the date of their initial appointment/ promotion. According to him, such treatment meted out to the petitioner, is in contravention of the fundamental rights guaranteed under Articles 25, 4 and 2A of the Constitution.
He further contended that even respondent No,4, I.G.P. In his letter dated 23-1-2010 admitted that the petitioner was entitled to be assigned original seniority i.e, from the date of his initial appointment but resisted the same only on the ground that it would cause heart burning to the officers originally belonging to executive cadre and that it would also open Pandora Box in similar cases. According to the learned counsel for the petitioner, this is no ground for not awarding the petitioner his legal and due right. He prayed for allowing the petition.
6. Conversely, learned A.A.-G. Appearing for the State opposed the prayers made in the petition contending that the petitioner was estopped from claiming seniority from the date of his initial appointment as the cadre of the petitioner was changed from "Prosecution" to "Execution" in July, 1991 with the condition that he will have to accept lower post/grade and lowest seniority in the rank of Sub-Inspector. According to him, the petitioner kept mum for about 18 years and did not claim seniority from the date of his initial appointment, as such after lapse of such a long time he cannot claim such right. According to him, by awarding him seniority from the date of his initial appointment, it would cause heart burning to the officers who belonged to executive cadre. He prayed for dismissal of the petition.
7. Article 25 of the Constitution of Islamic Republic of Pakistan provides:--- "25. 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 alone.
(3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children."
' By virtue of Article 25 as well as Article 4 of the Constitution, equal protection of law to all the citizens and equal treatment to the citizens similarly placed has been guaranteed. Needless to emphasize that A all the statutory functionaries in a democratic set-up are bound to act in public matters justly, fairly and in accordance with rules and instructions on the subject and individual distinction for extraneous reasons is not permissible. In the case of Engineer Naraindas and another v. Federation of Pakistan and others reported in 2002 SCM R 82 it was held by a Full Bench of honourable Supreme Court that the employer could not mete out different treatment to two groups of its employees, as dictates of law, justice and equity required exercise of power by all concerned to advance the cause of justice and not to thwart it. Similar view was also taken by the Apex Court in the case of Abdul Samad and others v. Federation of Pakistan and others reported in 2002 SCM R 71.
8. There is no cavil to the concept of 'reasonable classification' and we are mindful of the fact that "Equality before Law" means that like should be treated alike and it forbids discrimination between persons who are substantially in similar circumstances or conditions, however it does not forbid different treatment of unequals and classification could be made between two groups which are substantially not placed in similar circumstances or conditions. However, in the instant case the respondents could_ not succeed in establishing that the case of the officials/officers who were awarded seniority from the date of their initial appointment and that of the petitioner is on different footings. The only defence put forward by the respondents was that if original seniority is assigned to the petitioner from the date of his initial appointment, it would cause heart burning to the officers originally belonging to executive cadre and would also open Pandora. Box in similar cases.
However, the respondents could not justify as to why other persons having similar case like the petitioner were awarded such benefit and as to why such objection/reservation, as stated above, was not raised in their cases.
9. Adverting to the plea of the respondents that the cadre of the petitioner was changed from "Prosecution" to "Execution" in July, 1991 with the condition that he will have to accept lower post/grade and lowest seniority in the rank of Sub-Inspector and that the petitioner did not claim the seniority from the date of his initial appointment despite lapse of a long period of 18 years, therefore now he is estopped to raise claim, it may be observed that it is well settled principle of law that there is no estoppel against statute/law. If a person has been bestowed some legal right by law/statute, and he omits to claim such legal right for a considerable time, it does not mean that he has waived his legal right and subsequently he cannot claim such right. For this view we are fortified by the decision reported as Muhammad Saleh v. Muhammad Shafi (NLR 1981 Civil 467
(SC) wherein Honourable Supreme Court held as under:-- "It has been held that even gratuitous indulgence shown by one of the parties does not constitute estoppel or waiver. Omission to enforce one's legal right strictly cannot give rise to an inference that the right has been abandoned."
10. In this connection, learned counsel for the petitioner has invited our attention to the case of Inspector Shamsuddin Magsi whose cadre, like the petitioner, was changed from Prosecuting to the Executive Side and he was absorbed as Inspector in Sindh Police Department on regular basis, inter alia, on the conditions, "His seniority will be reckoned from the date of his absorption in Sindh Police department. He will be placed at the bottom of the seniority list of Inspector on the date of his absorption." However, subsequently he was assigned seniority from the date of his initial appointment vide Notification No,2085-2133 F.I. Dated 31-3-2007. The learned A.A.-G. Could not controvert such factual and legal aspect of the case.
11. In the foregoing circumstances, we are constrained to observe that the petitioner was subjected to hostile discrimination forbidden by Article 25 of the Constitution. Resultantly, we allow the petition and direct the respondents to treat the petitioner equally and on the same line as other officers named in paras. Nos.5 and 6 of the petition have been treated and assign seniority to the petitioner from the date of his substantive appointment in the rank of PSI with all service benefits.
The needful be done within a period of 30 days.