KHADIM HUSSAIN TUNIO, J.---By this common judgment, we intend to dispose of captioned petitions as the same have been filed by different persons, from which all are associated directly or indirectly with the administration of justice, which includes judicial officers of the District Judiciary, employees and servants attached to the District Judiciary and employees/staff attached to Special Courts under the Federal Governments. The sole purpose behind all the petitions is enhancement of pay and judicial allowance at par with the judicial officer and officers and employees of District Judiciary Establishment.
2. The petitioners, in the respective petitions have sought for the following relief:- C.P No, D-3460 of 2011 i. Direct the Respondents Nos, 1 and 2 to frame appropriate rules/legislation to ensure the financial and budgetary independence of the Sindh Criminal Prosecution Service. ii. Direct the Respondent No, 2 to frame appropriate rules to ensure that the prosecutor's supervisory role over the police investigation as contemplated under sections 9 and 10 of the Sindh Criminal Prosecution Service (Constitution Functions and Powers) Act 2009 is truly effective and meaningful. iii. Direct the Respondents Nos, 1 and 2 to ensure that all prosecutors within the Sindh Criminal Prosecution Service are provided equal salaries, allowances, privileges and facilities as their similarly placed counterparts in the Attorney General Officer and - at any rate - to ensure that the former are conferred the same remunerative enhancements as have been conferred on the latter; iv. Grant such further or additional relief as this Hon'ble Court may deem appropriate in the circumstances.
C.P. No, D-3366 of 2011 i. To hold/declare that the Judicial allowance as well as utility allowance of Petitioners/Prosecutors and their sub-ordinate staff of Sindh Criminal Prosecution Service Department working under the supervision of Prosecutor General Sindh (Respondent No, 5) i,e, Prosecutor General Sindh, Additional Prosecutor Generals, Deputy Prosecutor Generals, Assistant Prosecutor Generals, District Public Prosecutors, Deputy District Public Prosecutors and Assistant Deputy Public Prosecutors and their sub-ordinate staff is discriminatory especially in view of the Attorney General Office, Advocate General Office, sub-ordinate Judiciary and their lower staff. ii. To allow the petition of the Petitioners by directing the Respondents that the Petitioners/Prosecutors of Sindh Criminal Prosecution Service Department may also be treated as provided to the Attorney General Office, Advocate General Office, their sub-ordinate employees, Sub-Ordinate Judiciary and their lower staff as directed by the Hon'ble High Court in its order dated 24th May 2011 and further direct the Respondents that at worst the Petitioners/Prosecutors of Sindh Criminal Prosecution Service Department may be given Medical facility equal to the employees of Sindh Secretariat. iii. That the remuneration and other allowances may be awarded to the Petitioners/Prosecutors of Sindh Criminal Prosecution Service Department and their employees/sub-ordinate staff since 2008_ iv. Or may pass any order(s) in favour of the Petitioners/Prosecutors of Sindh Criminal Prosecution Service Department against the Respondents which this Hon'ble Court may deem fit and proper under the circumstances of the case.
C.P. No, D-3644 of 2013 i. Declare that the petitioners along with other subordinate staff of office of the District Attorney, District Prosecutor, Deputy District Attorneys and Deputy District Prosecutors, are entitled to the grant of special Judicial Allowance (3 basic) and Utility Allowance at the enhance rate as being availed by the Office of the Attorney General and the Office of the Advocate General and the Office of the Advocate General Sindh and their subordinate staff. ii. Direct the respondents to grant and provide/ allowance and utility allowance at the rate already availed by the office of the Attorney General and office of Advocate General Sindh, to be paid to the petitioners. iii. Grant the costs of this petition. iv. Grant any other relief as may be deemed fit and proper under the circumstance of the petition.
C.P. No D-1657 of 2013 i. Declare that the petitioners along with other sub-ordinate staff of office of the District Attorneys, District Prosecutors, Deputy District Attorneys and Deputy District Prosecutors are entitled to the grant of Special Judicial Allowance 3 basic and Utility Allowance at the enhance rate as being availed by the office of the Attorney General and the Office of the Advocate General Sindh, and their sub-ordinate staff. ii. Direct the respondents to grant and provide/allocate the require funds for judicial allowance and utility allowance at the rate already availed by the office of Attorney General and office of Advocate General Sindh, to be paid to the petitioners. iii. Grant the costs of this petition. iv. Grant any other relief as may be deemed fit and proper under the circumstances of the petition.
C.P. No, D-1053 of 2013 i. Declare that the petitioners along with other sub-ordinate staff of office of the District Attorneys, District Prosecutors, Deputy District Attorneys and Deputy District Prosecutors are entitled to the grant of special Judicial Allowance (3 basic) and Utility Allowance at the enhance rate as being availed by the office of the Attorney General and the Office of the Advocate General Sindh, and their sub-ordinate staff. ii. Direct the respondents to grant and provide/allocate the require funds for judicial allowance and utility allowance at the rate already availed by the office of Attorney General and office of Advocate General Sindh, to be paid to the petitioners. iii. Grant the costs of this petition. iv. Grant any other relief as may be deemed fit and proper under the circumstances of the petition.
C.P. No, D-1524 of 2013 i. Direct the respondents Nos, 1 and 2 frame service structure of the employees/non gazetted staff of the Criminal Prosecution Services Department. ii. Direct the respondents to ensure that all employees/non gazetted staff of the Criminal Prosecution Services Departments are provided equal salaries, allowances, privilege and facilities as their similarly, placed, counterparts in the Attorney General's Office, Advocate General of Sindh office, special court's and District Courts of Sindh, which have recently been enhanced. iii. Direct the respondents to continue paying salary along with benefits/ allowances according to the law regularly without fail. iv. Any other relief(s) deem fit and proper by this Hon'ble Court may be awarded to the petitioner under Article 199 of the Constitution of Pakistan.
C.P. No, D-1268 of 2016 i. To direct the respondents to grant the allowances, perks and emoluments to the petitioner as well as to the other prosecutors working as D.P.Ps, D.D.P.Ps, Deputy Director Monitoring, A.D.P.Ps and Assistant Director Monitoring as equal to the prosecutors working as Addl. P.Gs, D.P.Gs and A.P.Gs to their categories respectively, as envisaged in concerned rules and Act, with effect from the period since granted in favour of Addl. P.Gs, D.P.Gs and A.P.Gs. ii. To direct the respondents to prepare joint seniority list of D.P.Gs with D.D.P.Ps directly recruited through Sindh Public Service Commission (BPS-18) for promotion to the post of Addl.P.Gs and D.P.Gs (BPS-19), also direct the respondents to prepare joint seniority list of the prosecutors serving in BPS- 17 directly recruited through SPSC in different categories qualified together for their promotion to the post of D.P.Gs, D.D.P.Ps and Deputy Director Monitoring in order to equal treatment and to avoid discrimination. iii. To award any other relief to the Petitioner and other prosecutors found to be entitled thereto, in the best interest of justice.
3. Learned counsel for the petitioners argued that the advocates working for the Sindh Criminal Prosecution Service perform, by and large, similar functions to those performed by the advocates working for the Attorney General Office; that their duties of prosecution and supervision over the investigative process are not confined solely to offences under provincial law but also offences under federal law; that Respondents Nos, 1 and 2 are under legal obligation to ensure the elimination of disparity in remuneration of prosecutors; that the judicial officers/employees in all categories and so also the staff and the employees attached to the District Judiciary or Federal/ Provincial Courts/Tribunals are a separate class burden with onerous responsibility; that they perform their duties diligently and whole-heartedly; that special allowances are allowed to various categories of service which are not admissible to other categories. Learned counsel has further urged that it is not the case that the Province of Sindh has scarce resources because it is otherwise responsibility of the state to ensure elimination of all forms of exploitation and the State as a guardian of all must act fairly, justly, equitably and the judiciary and staff or servant attached thereto are to be extended similar treatment throughout different departments in Pakistan; that it is the duty of the state to promote social justice and eradicate social evils, which is only possibly if uniform terms are applied and that all persons placed in same classification are treated alike; that low pay-grade can also encourage corruption and malpractice; that by withholding the right of petitioners to the said allowances, they will undermine the judicial independence, promised to every citizen of Pakistan; that when other staff of the same ranking and performing similar duties though working under different heads then it would not be justified to with-hold same treatment merely for difference of name; that judiciary is not a provincial subject and the Federation of Pakistan is equally responsible to shoulder the duty to provide all the resources to the provinces; that in terms of Articles 3, 37(d) and 38(e) read with Article 25 of the Constitution 1973, the staffed attached to the judiciary perform one in the same function in all four provinces and it is not that the judicial officers in a certain office, province or place perform any different functions; therefore, the judiciary as a whole is a class in itself and must be treated alike, without any bias; that the function being performed by the Attorney General and the officers attached thereto is similar.
Learned counsel for the petitioner has further urged that the power to revise the benefits and emoluments of the judicial officers and the other staff attached to the judiciary whether it be district judiciary or superior judiciary should vest with the judiciary not with the executive functionaries; that this court may strike down the terms and conditions prescribed by the Government of Sindh and frame appropriate legislation to provide for Independent Judicial Service Board vesting power in the judicial hierarchy to determine the terms and conditions including emoluments.
4. Learned counsel for the state urged that there is no disparity in the service emoluments of different category of civil servants, including the petitioners whether judicial officers or servants and employees of District Judiciary or other courts and tribunals working in the province of Sindh, including employees of the Advocate General, Sindh are civil servant and pay scale of all the civil servants in the province of Sindh are being treated equally and there is no discrimination; that as for the three fold salary increases, the financial position of the Province of Sindh is far from weak and the same are not going to be in an improved position any sooner, once that is done so, the salaries would be revised; that Judicial Officers of the District Judiciary or staff of a body governed by the Provincial or Federal Government are all civil servants, their terms and conditions are governed under the Sindh Civil Servants Act, therefore, the petitioners cannot form a separate class and claim different or for that matter better treatment compared to other civil servants; that the petitioners are the employees of offices of Prosecutors and they cannot be categorized with the judicial employees nor the secretariat employees.
5. At the very outset, it may be said that through instant petition (s) number of relief(s) have been sought which includes direction for framing rules as well joint seniority list however main relief seems to be that of discrimination with reference to office (s) of Attorney General and Advocate General. As regard the relief (s) for framing of rules and seniority list, it would suffice to say that same prima facie legally cannot be entertained by this court being a matter relating to service structure and applicable rules. However, the question of discrimination (violation of Article 25 of Constitution) can well be examined particularly when the same has been pressed while referring to particular office (s) with a claim that functions and duties of office (s) of petitioners is one and same.
6. The issue, involved in the instant petitions, was never with regard to status of the petitioners to be civil servant or otherwise but whether functions and duties of the office of petitioners is similar to that of offices of Advocate General and Attorney General?. If so, whether they are justified in seeking grant of Special Judicial Allowance equal to three times of the initial of the substantive pay scale as is being provided to offices of Advocate General and Attorney General or otherwise?.
7. Before examining merits, it would be appropriate to say that Special Judicial Allowance is not an ordinary allowance but the use of the word 'special judicial' is self-sufficient to make it quite obvious that it has no general/ordinary application which every civil servant could claim under status of his being a civil servant. It was always aimed for specific class of persons though falling within meaning of civil servants. Thus, legally the plea of the learned counsel for State with reference to status of petitioners and that of office of Advocate General and Additional Attorney General as 'civil servant' is entirely misconceived unless and until the learned State Counsel prima facie establishes that functions and duty, being performed by such offices, is not similar to that of office of petitioners. The barriers of names and classification of office (s)/court (s) are of no significance when a question of special judicial allowance is involved. In the case of Government of Punjab v. Mubarak Ali Khan (PLD 1993 SC 375), the Honourable Suprelhe Court has held that since employees of High Courts perform almost identical functions as do the employees of Hon'ble Supreme Court and Federal Shariat Court, as such; they cannot be discriminated against in respect of an allowance which has been allowed to the employees of these two Courts. Relevant observations there from are reproduced here-in-below:-- "The employees of the Federal Shariat Court and the Supreme Court of Pakistan have been allowed such an Allowance. The High Court employees perform almost identical functions as do the employees of these two other Courts perform. The employees of all the three Courts have been dealt with constitutionally by the same provision reproduced above. In the circumstances, the High Courts employees cannot be discriminated against. The necessary provision of Secretariat/Personal Allowance had to be made in respect of such employees as was made in the case of the Federal Shariat Court and the Supreme Court employees."
(underlining is for emphasis)
8. We may further add that Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 guarantees equal treatment to all persons similarly placed. We may safely add here that expression (s) i,e, 'equality before law' or 'equal protection of law' do not secure to all persons the benefit of a law but requires that persons, similar situated or circumstanced, shall be treated alike.
If one intends to seek any exception to application of such article, he shall always be required to establish that things are different and only then discrimination could be made which too must be based upon some intelligible differential, bearing a reasonable and just relation to the object, sought to be achieved. Reference may well be made to the case of Pakcom Limited v. Federation of Pakistan PLD 2011 SC 44 wherein it is observed as: "It would not be enough to say that a piece of legislation or a policy formulated thereunder is discriminatory but it is to be substantiated by applying certain well entrenched principles on the subject of discriminatory legislation which are as follows:--
(i) The expression 'equality before law' or the 'equal protection of law' does not mean that it secures to all persons the benefit of the same laws and the same remedies. It only requires that if persons similarly situated or circumstances shall be treated alike'
(ii) The guarantee of equal protection of law does not mean that all laws must be general in character and universal in application and the State has no power to distinguish and classify persons or things for the purpose of legislation;
(iii) The guarantee of equal protection of laws forbids class legislation but does not forbid reasonable classification for the purpose of legislation. The guarantee does not prohibit discrimination with respect to things that are different. The State has the power to classify persons or things and to make laws applicable only to the persons or things within the class;
(iv) The classification, if it is not to offend against the Constitutional guarantee must be based upon some intelligible differential bearing a reasonable and just relation to the object sought to be achieved by the legislation.
9. We would also add that constitution is living and organic document, while interpreting the Constitution expensive and dynamic approach and interpretation is to be adopted. Fundamental rights include equality in terms and conditions of the service Articles 27, 37(d) and 38(e) are to be read with Articles 4 and 25 of the Constitution 1973. Judicial Officers in District Judiciary and Courts and Tribunal and the staff attached thereto perform one in the same function in all four provinces and it is not that the Judiciary in Punjab performs any different functions; therefore, the judiciary anywhere in Pakistan as a whole is a class in itself, this was also ruled by the apex court in Bangladesh in a land mark judgment reported as Secretary, Ministry of Finance v. Masdar Hossain (1999) DLR (AD)
82. The 'special judicial allowance' though earlier was granted to the judiciary alone and barriers of provinces and name (s) classification of court (s) even could not stand in such benefit. That, being an undeniable position, needs not be discussed any more.
10. It is also a matter of record that the office of 'Advocate General Sindh' also claimed same relief by resorting to constitutional jurisdiction of this Court. Such claim, prima facie, was based on nothing but that judicial system always require a proper assistance from State (representative) and an effective and speedy trial is not possible if a complete assistance is not provided by such end. At this juncture, a direct referral to letter of Advocate General Sindh bearing No,AG-738/ 2012 Karachi dated 27.03.2012 and office memorandum, issued by Finance Department vide No,FD(SR- III)5/ 4 2009(A) Karachi dated the 1st February, 2013 shall make situation more easier to conclude the discussion. The letter of Advocate General Sindh reads as:- "To The Secretary, Finance Department, Government of Sindh, Karachi Subject:- C.P.NO.D-2318/ 2009 FILED BY MUHAMMAD ALI ANSARI AND OTHERS VERSUS PROVINCE OF SINDH AND OTHERS Please find herewith copy of judgment dated 24.05.2011 and order dated 13.3.2012 for immediate compliance, however, without prejudice the stand of the Government in the Hon'ble Supreme Court of Pakistan, the Employees of the Advocate General Sindh is on the same footing and are entitled for equal treatment. As such the treatment meted out by your Department vide Letter dated 16.3.2012 for grant of Special Judicial Allowance equal to three times the intial of respective basic pay scale of 2008 to the office / employees of establishment of subordinate / district judiciary may be given accordingly.
Encl. As above. Sd/- ABDUL FATTAH AMLIK (T.I)
Advocate General Sindh The letter of finance department, referred above, reads as:-- OFFICE MEMORANDUM Subject:- GRANT OF SPECIAL JUDICIAL ALLOWANCE EQUAL TO THREE TIMES THE INITIAL OF RESPECTIVE BASIC PAYSCALE OF 2008 TO THE OFFICERS/EMPLOYEES OF THE OFFICE OF ADVOCATE GENERAL SINDH In compliance with the order dated 10.01.2013, passed by the Honourable Sindh High Court, Karachi in Constitution Petition No,D-2318/ 2008 read in conjunction with the common judgment dated 24.05.2011 passed by the Honourable High Court of Sindh in Constitutional Petitions Nos,D- 1930/2009, D-1465/2009, D-2318/2009 and D-2433/2009, Finance Department allows Special Judicial Allowance at the rate of three times the initial of the respect Basic Pay Scale, 2008 to the officers/officials in BPS -1 and above of the office of Advocate General of Sindh, Karachi, with effect from 1st February, 2013.
TENTATIVELY In case of the said order of the Honourable High Court is set aside by the Honourable Supreme Court of Pakistan, then all payments made will be recovered in installments.
SECRETARY TO GOVERNMENT OF SINDH FINANCE DEPARTMENT Karachi dated the 1st February, 2013 The above are sufficient to make it clear that 'special judicial allowance' is not limited/confined to judiciary alone but to its counter-part i,e, 'state-representation'. Thus, the learned State counsel would not be legally justified in opposing the instant relief, sought through said petition (s) merely by uttering word of 'civil servant' while not denying the fact that such benefit is also being taken by office (s), representing the State though in civil matter (s). In the case of Pir Imran Sajid and others v. Managing Director/General Manager and others 2015 SCM R 1257 it is held as:- "1. It hardly needs to be emphasized that the whole edifice of government of the society has it genesis in the Constitution and laws aimed at to establish an order, inter alia, ensuring the provisions of socio-economic justice, so that the people may have guarantee and sense of being treated in accordance with law that they are not being deprived of their due rights.
In the said case, it was further observed as:- "Provision of Article 4 embodies the concept of equality before law and equal protection of law and save citizens from arbitrary/discriminatory law and actions by the governmental authorities. Article 5(2) commands that every body is bound to obey the command of the constitution'. Every public functionary is supposed to function in goods faith, honestly and within the precincts of its power so that person concerned should be treated in accordance with law as guaranteed by Article 4 of the Constitution. It would include principles of natural justice, procedural fairness and procedural propriety. The action which is mala fide or colourable is not regarded as action in accordance with law. While discharging officials functions, efforts should be made to ensure that no one is prevented from earning his livelihood because of unfair and discriminatory act on their part.
"12. It is now well laid down that the object of good governance cannot be achieved by exercising discretionary powers unreasonably or arbitrarily and without application of mind but objective can be achieved by following the rules of justness, fairness, and openness in consonance with the command of the Constitution enshrined in different Articles including Articles 4 and 25. The obligation to act fairly on the part of the administrative authority has been evolved to ensure the rule of law and to prevent failure of the justice.
We would insist that obligation to act fairly would always requite the State Counsel to make a fair statement or least give reasonable justification to the effect that functions and duties of the office of petitioners is different from that of their (s).
11. Though, no such classification/justification has been attempted, however, as an abandon caution the functions and duties of the office (s) of these two be examined. Office of the Advocate General Sindh', prima facie, is assigned the work to defend the interest of provincial and local functionaries of Government in Constitutional Petitions and Civil matters before the High Court and Supreme Court. On the other hand, the function of the office of the Criminal Prosecution Services, per section 9 of the Sindh Criminal Prosecution Service (Constitution, Functions and Powers)
Act, 2009 is: "9(1) The Prosecution shall be responsible for the conduct of prosecution on behalf of Government.
Prima facie, the purpose and object of both offices is one and same i,e, representation of the Government and mere difference of 'civil matters' and 'criminal prosecution' cannot be said to be a deciding different (factor). In short, both office (s) are meant to protect the government interest in specified fields i,e, civil and criminal. We would also add that the Government was / is not only required to protect its civil rights (matters) but is also required to ensure peace and tranquility in the society which cannot be achieved unless and until the prosecution services is not provided effectively. We would say that a civil right / interest of government may cause prejudice to such right alone but a failure in prosecution would surely affect the governance which may even result in 'failure of government' therefore, the duty and obligation of the prosecution, in our view, is more serious. Office of Advocate General perform same function in the Province as is performed by the office of the Sindh Criminal Prosecution Service, therefore are entitled for equal treatment else there shall be a failure of Article 25 of the Constitution. In an unreported judgment in WP Sadaqat Ali v. Government of Punjab, where the Advocate General Office was directed to be placed equally with the Attorney General Office on the ground that the officers attached to the Principal Law Officer performs similar function as is being performed by the Attorney General and the officers attached thereto. Therefore plea of discrimination by employees of Sindh Criminal Prosecution Service carries substance. The petitioners are entitled to avail the benefit, being availed by the office of the Advocate General Sindh.
12. In the last, we would say that to provide inexpensive and expeditious justice in terms of Article 37(d) of the Constitution, 1973 it is the responsibility of the State; the Federation cannot shed its responsibility on the premise that it is responsibility of the Province of Sindh. Inexpensive and expedient justice could only be achieved by efficient, competent and independent judicial apparatus, which all attributes have direct nexus with better reward in terms and condition of service and financial independence of the Judiciary. To remove disparity and ensure wellbeing of the people is responsibility of the State, which in turn would eliminate inequality in the income and earning of individual including persons of various classes similarly placed. (See Attiyya Bibi v.
Federation of Pakistan 2001 SCM R 1161 and Muhammad Akram v. Selection Committee (2003 CLC 18): Be that as it may, it is a matter of record the Government of Sindh (Finance Department) did allow special judicial allowance to office of the Advocate General Sindh therefore, the same cannot seek an exception to provide similar relief/treatment on account of any financial issue.
13. In view of what has been discussed hereinabove we are of the I view that the petitioners have made out a case for grant of Special Judicial Allowance equal to three times of the initial of the substantive pay scale with effect from 01.07.2017, as such, the instant petitions are allowed declaring that the deferment/refusal of the arrears of the Special Judicial Allowance to the members of Sindh Criminal Prosecutors Service, their subordinate staff as well as petitioners in C.P.
No, 3644 of 2013 and C.P. No, 1657 of 2013 and C.P. No, 1053 of 2013 and other subordinate staff of office of District Attorneys and Deputy District Attorneys with effect from 01.07.2017 on the ground of financial constraints being discriminatory is violative of Articles 25 of the Constitution of Islamic Republic of Pakistan, 1973. The members of Sindh Criminal Prosecutors Service, their subordinate staff as well as petitioners in C.P. No, 3644 of 2013 and C.P. No,1657 of 2013 and C.P. No, 1053 of 2013 and other subordinate staff of office of District Attorneys and Deputy District Attorneys are entitled to the Special Judicial Allowance equal to three times of the initial substantive pay scale with effect from 01.07.2017. Consequently the respondents are directed to pay Special Judicial Allowance equal to three times of the initial of the substantive pay scale to the members of Sindh Criminal Prosecutors Service, their subordinate staff as well as petitioners in C.P.No, 3644 of 2013 and C.P.
No,1657 of 2013 and C.P. No,1053 of 2013 and other subordinate staff of office of District Attorneys and Deputy District Attorneys with effect from 01.07.2017 and notification be issued accordingly, such increase to be paid with effect from 1st January 2019 and arrears with effect from 1st of July 2017 be paid in monthly instalments along with monthly salary till entire arrears are paid with monthly salary for the month same is due. However, they are not entitled for utility allowance as same had not been allowed by the provincial and federal governments to the Advocate General Sindh, Attorney General of Pakistan and their subordinate staff.
14. In C.P. No, D-3460 of 2011, the respondents are directed to take steps and initiate such legislative measures as may be necessary to empower the Sindh Criminal Prosecutors Service's supervisory role over the performance of investigation officers of the criminal cases. The respondents are further directed to take steps and initiate such legislative measures as may be necessary to frame appropriate rules relating to the financial and budgetary independence of the Sindh Criminal Prosecutors Service.
15. In C.P. No, D-1524 of 2013 and C.P. No, 1268 of 2016, the respondents are directed to take measures and initiate such legislative measures as may be necessary to frame the service structure of the employees/non gazetted staff of the Criminal Prosecution Services Department and prepare seniority list as per rules.