' Through this constitutional petition, the petitioners who are serving Cantonment Board, Multan as Assistants in different categories have invoked the jurisdiction of this Court to implement office Memorandum No, F.6(4)R.I/2006 dated 29.06.2007 issued by the Government of Pakistan, Finance Division, (Regulation Wing).
2. Facts of the case are that the petitioners are serving Cantonment Board, Multan as ALS (Assistant Land Superintendents) and ARS etc. The grievance of the petitioners voiced through this writ petition is that the Finance. Division through office memorandum dated 29.06.2007 approved the up-gradation of clerical/Auditors posts w.e.f 01.07.2007. The respondents in compliance with the above referred office memorandum up-graded the posts mentioned at Serial Nos. 1 to 3 of the office memorandum dated 29.06.2007 but without any lawful justification, the posts of the Assistants/Head Clerks mentioned at Serial No, 4 and Senior Auditors mentioned at Serial No, 5 have not been up-graded and thus the petitioners have been deprived of their fundamental rights.
3. Learned Counsel for the petitioners argued that the petitioners have been denied the fundamental constitutional rights guaranteed under Article 4 and Article 9 of the Constitution of Islamic Republic of Pakistan and the respondents have failed to perform their statutory /legal obligations. It has been further argued that the respondents cannot implement the office memorandum dated 29.06.2007 issued by Finance Division, Government of Pakistan according to their own whims and it is mandatory for the respondents to implement the office memorandum in its totality.
4. On the other hand, the learned counsel for the respondents has raised objections to the maintainability of this writ petition while relying upon Section 11 of the Cantonment Act, 1924. It has been further argued that under Rule 4 of the Cantonment Servant Rules, 1954, it is the sole prerogative of the Cantonment Board with the sanction of the director (Director General, Military Lands and Cantonments) to determine the number, designations and the scale of pay of the employees of the Cantonment Boards.
5. I have considered the arguments advanced by the learned counsels for the parties and have also perused the record carefully.
6. As regards the maintainability of this writ petition, the Honourable Supreme Court of Pakistan in a judgment reported in PLD 1975 SC 244 (Salahuddin and 3 others versus Taj Muhammad Khanzada) has elaborately dilated upon the question of maintainability of the writ petition against the statutory bodies and has also resolved the dispute as to whether these bodies fall within the meanings of a "person" as contemplated in Article 199(1)(a)(ii) read with Article 199(5) of the Constitution of Islamic Republic of Pakistan. The Honourable Supreme Court of Pakistan has observed that an important dimension of the Modern Welfare State is that the role of the state and its various institutions has increased manifold. The Government is regulator and dispenser of special services. It has the power to create jobs, issue licenses, fix quotas, grant mining rights or lease of estate, sign contracts and provide variety of utility services to the people. Such entrepreneurial activities at time are carried out through companies created under the Statute or under the Companies Ordinance. The Courts have generally applied What has been classified as a "function test" to consider whether a statutory body is a person within the meaning of Article 199 of the Constitution of Islamic Republic of Pakistan. In the case referred above, the Honourable Supreme Court of Pakistan laid down a test to access whether a body or authority is a person within the meaning of Article 199 of the Constitution and observed:-- "The primary test must always be whether the functions entrusted to the organization or person concerned are indeed functions of the state involving some exercise of sovereign or public power; whether the control of the organization vests in a substantial manner in the hands of the Government; and whether the bulk of the funds is provided by the state. If these conditions are fulfilled, then the person, including a body politic or body corporate may indeed be regarded as person performing functions in connection with the affairs of the federation or a province; otherwise not."
7. The word "Control" appearing in Article 199(5) of the Constitution of Islamic Republic of Pakistan and it is not restricted to the financial control of the Government over a body, but the executive control as well; it does not necessarily mean the financial control over the bodies that are under the dominative control of the Federal or provincial governments which are amenable to the jurisdiction of the High Court under Article 199 of the Constitution. Absolute control over the management of a body an organization by the federation etc., is a condition most important for declaring it to be a "person" performing its functions in connection with the affairs of the federation etc. The federation etc. Should have a complete domination to do and undo whatever it decides in running the affairs of such a body and should have exclusive, complete and final authority to take the vital policy decisions.
8. The similar view has been expressed by the Honourable Supreme Court of Pakistan in a judgment reported in 2000 SCM R 928 (Maqsood Ahmed Toor and 4 others versus Federation of Pakistan through the Secretary to the Government of Pakistan, Ministry of Housing and Works, Islamabad and others), 1994 SCM R 958 (Tanvir lqbal Siddiqui versus The Principal, Overseas Pakistanis' Foundation (OPF), Girls College, Islamabad), PLD 2002 SC 326 (Aitchison College, Lahore through Principal versus Muhammad Zubair and another) and recently in 2013 SCM R 1707 (Pakistan Defence Officers' Housing Authority and others versus Lt. Col. Syed Jawaid Ahmed). The case law discussed above leaves no room for doubt that writ petition against the present respondents is maintainable.
9. For resolution of the controversy as to whether the respondent functionaries are under an obligation to, implement the directions given by the Federal Government; this Court would refer to Section 280 of the Cantonment Act, 1924; The perusal of Section 280(1) of the Cantonment Act, 1924 makes it abundantly clear that the Federal Government after previous publication makes rules to carry out the purposes and objects of the Act, 1924.
10. It would be expedient to refer to Notification No, 225/54, dated 10.03.1954 through which the Pakistan Cantonment Servants Rules, 1954 have been promulgated. The opening Para of the notification reads as under:-- ' Noti.No, 225/54, dated 10th March, 1954:- ' In exercise of power conferred by clause (c) of sub-clause (2) of Section 280 of the Cantonment Act, 1924 (II of 1924), the Federal Government is pleased to make the following rules............
' This Court would refer to relevant provisions given in definition clause of the Pakistan Cantonment Servants Rules, 1954:- Definition...................................................
(g) "Government" means the Federal Government;
(h) "Pay" means pay as defined in Rule 9(21)(a)(i) & (ii) of the Fundamental Rules; ' Annexure-1 of Pakistan Cantonment Servants Rules, 1954 which relates to the composition and cadre of the Cantonment Servants and service policy of Pakistan Cantonment Servants is reproduced below:-- ' Annexure-1.
' Composition and cadre.
' Service Policy in respect of Pakistan Cantonment Servants.
' In pursuance of DD.ML and C conference decision, the following service policy is introduced for adoption by Cantonment Boards with immediate effect; Composition and Cadre.
' Pay Scale and Allowances (i) National Scales of Pay both for Gazetted and Non-Gazetted posts and other allowances and fringe benefits, as admissible to federal Government employees, may be made applicable to the members of this service (other than teaching staff). There should be no departure from this policy in any case........................................................
' Para 2 of Annexure-HI to Pakistan Cantonment Servants Rules, 1954 is reproduced as under:- Since all the categories in the regional cadres have been allowed the National Pay Scales, the incumbents will continue to draw their salaries in the respective pay scales till they are promoted to the next higher scale in pursuance of Government policy, and the existing grouping among the Cantonment servants shall cease forthwith.......................
11. The accumulative effect of these provisions leaves no doubt to hold that the Cantonment Servants are entitled to national pay scales in accordance with the Government policy as provided in Annexure-1 to the Cantonment Servants Rules, 1954. The analysis of the above policies/Annexures leads this Court to an irresistible conclusion that the Cantonment Boards are under mandatory obligation to follow the Government Policies introduced /circulated from time to time.
12. The factum that Cantonment Boards are under mandatory ligation to follow the Government policies from time to time gathers credence from the fact that in pursuance to office memorandum dated 29.06.2007 Cantonment Board, Multan has up-graded the posts of the Cantonment Servants mentioned at Serial No, 1 to 3 of the office memorandum dated 29.06.2007.
13. The respondent authorities have no discretion to sway away from the policy circulated by the Finance Division (Regulation Wing) as the discretion of the respondents has already been structured through Annexure-1 and Annexure-III of the Cantonment Servant Rules, 1954. Since, the posts, of Assistants against which the petitioners have been working, have been up-graded by the Finance Division in BPS-14, the respondents in view of Anneuxre-1 of Pakistan Cantonment Servants Rules, 1954 are bound to implement the decision made by the Finance Division. Even otherwise, as mentioned above the decision has been implemented to the extent of posts mentioned at Serial No, 1 to Serial No, 3.
14. This inaction on part of the respondents comes within the mischief of Article 25 of the Constitution of Islamic Republic of Pakistan which envisages that equal protection of law shall be provided to the persons equally placed and they are entitled to be treated alike in privileges conferred. This principle symbolizes, that the persons similarly placed cannot be distinguished or discriminated and is case of any deviation then the Act of the authority/statutory functionary can be challenged before this Court under Article 199 of the Constitution of Islamic Republic of Pakistan.
15. The public corporations/statutory bodies in essence perform functions which fall within the executive authority of the state itself. Indisputably, the Government, which represents the executive authority of the state acts through the instrumentality or agency of either natural or juridical persons to carry out its functions. It is of common knowledge that as incidental to or in aid of governmental functions, need was felt to forge a new administrative device, consequently the government exercised its powers to charter public corporations as its third arm. Such, corporations, whether established by statute or incorporated under the law by it controlled by the government and bound, in policy matters by directions of the government. If government, acting through its officers, is subject to certain constitutional and public law limitations, it must follow that government, when it acts through the agency of a corporation, the later should equally be subject to the same limitations in exercise of its power or discretion. The Rule inhibiting arbitrary action by the government applies equally to these corporations as the present respondent; the present respondent cannot act at its sweet will and pleasure, but its action must be in conformity with the principles which meet the test of justice, reason, fairness, equality of treatment and must qualify standards and norms that are not arbitrary, irrational, whimsical and discriminatory. Every act of the present respondent must not be unreasoned or unprincipled. The principle of reasonableness and rationality which is an essential element of equality or non-arbitrariness is projected by Article 25 of the Constitution and it must characterize every state action whether it be under authority of law or in exercise of executive power. Article 25 of the Constitution speaks of equality before law and equal protection of law. Public corporation /present respondent as an instrumentality of the government has to observe equality and cannot exclude a person by discrimination.
16. It is established in the present case that the petitioners, have been discriminated as the respondents without their being any reasonable differentia have denied the right of up-gradation of posts to the present petitioners.
17. It is an established principle that the functionaries of the state; statutory bodies and statutory corporation were required to act strictly in accordance with law. In case of transgression of powers, abuse of powers or colourful exercise of powers by such functionaries, the exercise was open to correction in constitutional jurisdiction of superior judiciary.
18. This Court in exercise of its powers under Article 199 of the Constitution of Islamic Republic of Pakistan can direct a person performing functions within its territorial jurisdiction in connection with the affairs of a federation to do anything; he is required by law to do. Although it is true that grant of relief under Article 199 of the Constitution of Islamic Republic of Pakistan is in discretion of the Court but where it is shown that the impugned act is unconstitutional or is violative of the fundamental/constitutional right; then having taken oath to preserve and defend the constitution, it become bounded duty of this Court to enforce the constitution with its full might and majesty.
19. For what has been discussed above, it is declared that the petitioners being the Cantonment Servants cannot be deprived of the benefits accrued to them regarding up-gradation of their posts through Finance Division office memorandum dated 29.06.2007. Resultantly, this writ petition is allowed, the respondents are directed to extend the benefits of up-gradation of posts to the petitioners in pursuance to office memorandum dated 29.06.2007 w,e,f, 01.07.2007 as provided in the above mentioned office memorandum.