CH. MUHAMMAD IBRAHIM ZIA, J.---- The captioned appeal by leave of the Court arises out of the judgment of the High Court dated 27-4-2018, whereby the writ petition filed by the respondents, herein, has been accepted.
2. The facts forming the background of the captioned appeal are that the respondents, herein, filed a writ petition before the Azad Jammu and Kashmir High Court alleging therein that they are serving in the Directorate of Malaria
(CDC) in the Azad Jammu and Kashmir Health Department. It was stated that all the staff is working in the field area and the staff which is deputed in the office is also working in relevant laboratories for prevention of dengue fever etc. It was provided that the -Government of the Azad Jammu and Kashmir vide notification dated 14.09.2015 granted the facility of the health allowance to the employees serving in the health department. It was stated in the notification that all the employees serving in the health department would be eligible to health allowance, but the respondents, herein, have arbitrarily been ignored. It was stated that they have been discriminated because the similarly placed other employees serving in D.H.O. office and ADHO (CDC) are being paid health allowance. It was stated that even in the directorate of CDC , health allowance is being partly paid to some of the employees while the others are discriminated. It was alleged that the matter was taken up with the health secretariat and ultimately with the Government but no action has been taken. A direction was sought for grant of health allowance to the respondents. The appellants, herein, contested the writ petition by filing written statement. It was pleaded that the respondents, herein, have got no locus-standi to file the writ petition as they are not aggrieved. It was further pleaded that the respondents are not entitled to receive the health allowance because they are not rendering services in the hospitals. It was stated that only the employees serving in the hospitals are only entitled to health allowance. After hearing the learned advocates for the parties, the learned High Court through the impugned judgment dated 27.4.2018 has accepted the writ petition while directing the appellants, herein, to pay health allowance to the respondents, herein, as well.
3. Mr. Asghar Ali Mallik, Advocate, the learned counsel for the appellants after narration of necessary facts submitted that the learned High Court has fell in error of law while passing the impugned judgment. The respondents do not fall within the definition of health personnel. They are not working in hospitals, clinics etc., therefore, they are not entitled for health allowance. The law, policy and notification on the subject is very much clear that only the health personnel are entitled for such allowance. He referred to the office memoranda dated 04.02.201 1, 06.02.2012 and 27.10.2014 and submitted that according to these office memorandums the contesting respondents, who are not serving in hospitals rather serving in Secretariat, are not entitled for health allowance.
The learned High Court also misconstrue d the judgment of the apex Court of Pakistan which is not supporting the version of the respondents, therefore, while accepting this appeal the impugned judgment be set-aside.
4. Conversely , Mr. Nasir Masood Mughal, Advocate, the learned counsel for the respondents forcefully defended the impugned judgment on the ground that the arguments advanced on behalf of the appellants are misconceived.
The policy and office memorandums are clear and apex Court of Pakistan has already decided this proposition in the appeal titled Federation of Pakistan v. Nusrat Tahir and others (Civil Appeals Nos.1631 to 2112 of 2017 decided on 17.01.2018) thus, the High Court has rightly accepted the writ petition. He further argued that the appellants are working in the Health Secretariat and their nature of service is not only relating to health but very risky too, therefore, this appeal has no substance.
5. We have heard the learned counsel for the parties and examined the impug ned judgment, pleadings of the parties and the record. Respondents Nos.1 to 24 filed a writ petition before the High Court claiming that they are first class state subjects and permanent employees of the health department serving in the Directorate of Malaria Control and according to the nature of job they have to work in field, laboratories and hospitals. These averments have not been denied by the appellants, herein, rather admitted. The only defence taken is that the health allowance is only admissible to the persons serving in the hospitals. According to the record, the Azad Jammu and Kashmir Government has granted the health allowance to the health personne l in health Department of Azad Jammu and Kashmir vide notification dated 14.09.2015. The condition No.2 of this notification speaks that the health personnel in the Health Department of Azad Jammu and Kashmir shall be entitled to health allowance as admissible to health personnel in Federal Government. The basic relevant document in this context is decision of the Federal Government dated 27.03.2012. The paragraph 4 of this decision is the relevant which is reproduced as under:- "4. While extending the above benefit to all health personnel, the beneficiaries comprised all doctors/dentists/nurses (belonging to Administrative and General cadre, Clinical cadre and teaching cadre), allied professionals (pharmacist, Health Education experts, Special Education experts (holding at least M.Phil special education degree), physiotherapists, paramedics, health secretariat/support staff serving in the Federal Government."
In this context it is clear that this allowance has been granted to health personnel serving in health department. The contesting respondents are admittedly serving in health department, however , the question arises is whether they are health personnel or not? The "health personnel" has been described under the Career Structure for Health Personnel Scheme Ordinance, 201 1 which speaks that:- "health personnel" means a person who holds a post in any institute or organization delivering services in the health sector and included in Schedule-I, but does not include:
(i) a person who is on deputation to the Federal Government from any Province or other authority;
(ii) a person who is employed on contract, or on work charged basis or who is paid from contingencies."
According to this definition all the persons who hold posts in any institute or organization delivering services in health sector are included in the definition of health personnel. The respondents are serving in health department and they are delivering the services in health sector , thus, they are health personnel. The proposition came under consideration before the apex Court of Pakistan in Civil Appeals Nos.1631 to 2112 of 2017 titled Federation of Pakistan v . Nusrat T ahir and others (decided on 17.01.2018) wherein, it has been held that: "8. It is noted that the foregoing definition of health personnel covers persons holding posts in any institute or organization who are delivering services in the health sector that are included in Schedule-I to the Ordinance.
Learned Deputy Attorney General was unable to distinguish the respondents, who are employees of the GSE and allied institutions/centers, NCRDP and NTD, from the paramedic and support staff positions that qualify as health personnel according to Schedule-I to the Ordinance. It is not denied by the appellant that education, training and rehabilitation of disabled persons are services provided in the health sector . These services fall within the terms of Schedule-I to the Ordinance and therefore the providers thereof qualify as health personnel."
In view of above legal and factual proposi tion, the respondents fall within the definition of health personnel and they are entitled for health allowance as health personnel are entitled in Federal Government. The impugned judgment does not suffer from any illegality or infirmity and the same is quite in accordance with the spirit of law calling for no interference.
For the above stated reasons, finding no force, this appeal stands dismissed with no order as to costs.