SYED SHAHID BAHAR, J. All the captioned writ petitions have been addressed under Article 44 of Azad Jammu and Kashmir Interim Constitution 1974, whereby, the petitioners have sought direction against the respondents that while declaring the Memorandums of Finance Department dated 09.08.2019 and 20.09.2019, the notification dated 21.12.2017, may kindly be declared as effective from the date of administrative approval of the projects namely "Disaster and Climate Resilience Improvement Project (DCRIP) and "Basic Education for all (BEA)/Support to Basic Education Development (STBED) i.e. the date from which the petitioners held the posts in the projects.
2. As the common questions of facts and law are involved in the supra cases, therefore, the same are being disposed of 'through this single judgment.
3. FACTS NARRATED IN A TERSE MANNER:'--The projects namely "Disaster and Climate Resilience Improvement (DCRIP) and "Basic Education for All (BEA)/Support to Basic Development (STBED) were started by, the Azad Jammu and Kashmir Government duly funded by International Development Association (IDA) and Islamic Development Bank (IDB) and the salaries of the Government employees in the supra projects who were posted/appointed through a competitive process were paid by a development scheme namely "PC-II" . As per contents of writ petitions, the Government through notification dated 21.12.2017, sanctioned project allowance in favor of the employees of the projects who were appointed/posted by transfer through a competitive process since their appointments i.e. 2014-15, however, the employees/petitioners were granted project allowance vide order dated 29.12.2017 w.e.f. 21.12.2017, whereas, all the petitioners are entitled to the project allowance from the date of commencement of the projects and the date from which they held the posts in the projects. It has been stated that the respondents launched a project namely "Flood Emergency Reconstruction and Resilience Project (FERRP) and the employees of the aforesaid project namely "Mohammad Bashir Khan and others" filed .a writ petition before this Court with the version that on the basis of notification dated 21.12.2017 "Project Allowance" may be sanctioned in their favor from the date of commencement of the project and the said writ petition was dismissed by this Court, however, on appeal, the Hon'ble Supreme Court in Civil Appeal No.195/2019, titled "Mohammad Bashir and others v. Azad Government and others" while accepting the appeal declared that the employees of the projects are entitled to "Project Allowance" from the date of commencement of the project vide judgment dated 01.07.2019, and in compliance of the judgment of the Apex Court, the Government vide notification dated 09.08.2019, declared that the notification dated 21.12.2017, shall be effective from the date of administrative approval of project namely (FERRP) i.e. from 28.08.2015. It has further been averred that on the basis of judgment of Apex Court, the petitioners submitted a representation to the P&D Department for sanction of the project allowance from the date of commencement which was accepted and the summary was prepared by P&D Department which was sent to the Finance Department for concurrence but the Finance Department vide Memorandum dated 20.09.2019 disagreed with the summary of P&D Department, hence, the captioned writ petitions for declaring the notification dated 21.12.2017, to be effective from the date of commencement and administrative approval of the supra projects.
4. The writ petitions were admitted for regular hearing on 17.09.2019 and the respondents filed written statement, wherein, it has been stated that through notification dated 21.12.2017 all those employees who were appointed/posted in their basic pay scale after competitive process are entitled for project allowance, whereas, the petitioners were appointed on deputation basis, therefore, they are not entitled for project allowance. It has further been alleged that the judgment referred by the petitioners, herein, titled "Mohammad Bashir and others v. Azad Government and others" is applicable only to the extent of petitioners/ appellants in that appeal whereas, the petitioner's matter is of different nature as there was no concept of project allowance in the State since 14.06.2012 to 20.12.2017 and after pronouncement of the office Memorandum/notification dated 21.12.2017, the project allowance will be given to those employees who will be appointed as per conditibns laid down in the notification and the petitioners were appointed/transferred on deputation basis, before the commencement of the notification, therefore, they are not entitled for any such allowance. Lastly, it has been stated that in the light of written statement, the petitions may very graciously be dismissed.
5. PETITIONER'S SUBMISSION:--Mr. Raja Mohammad Hanif Khan advocate, the learned counsel for the petitioners while reiterating the grounds taken in the memo of writ petitions vehemently argued that the judgment of the Hon'ble Supreme Court in that particular matter is applicable to all the employees of the State, whereas, the excuse of the respondent, Finance Department that the supra judgment had been pronounced only to the extent of petitioners/appellants in that case has no any substance and the said pretext is without any legal backing. The learned counsel further argued that the petitioners after competitive process were duly appointed/transferred in the projects, therefore, they have fulfilled all the prerequisites, so, they are entitled to get the project allowance from the date of commencement of the projects as well as from the date of joining of their duties.
6. SUBMISSION OFFERED BY RESPONDENTS:- Mr. Raja Mohammad Nawaz Khan, the learned Legal Advisor on behalf of the Finance Department while controverting the arguments of the learned counsel for petitioners stated that the referred judgment is only to the extent of appellants in that particular case and the petitioners have not been appointed/ transferred in due course of law i.e. after competitive process but they have been posted on ,deputation basis and as per notification dated 21.12.2017, the project allowance will be given to those employees who will be appointed after due course of law i.e. fulfilling all the prerequisites in the notification and lastly he submitted for dismissal of all the writ petitions.
7. I have heard' the learned counsel for the parties and gone through the record of the case.
8. DETERMINATION BY THE COURT:--The main grievance of the petitioners is that the date given in the notification dated 21.12.2017 is violative of PC/1 and no solid reason for not giving the project allowance to the employees of the supra projects has been mentioned by the Finance Department.
On same nature a project namely "Flood Emergency Reconstruction and Resilience Project" (FERRP) was launched by the Government and when the employees of that project were not given the project allowance, they challenged the notification dated 21.12.2017 on the ground that the same was declared to be effective from the date of commencement of the project as well as from the date of holding the posts in the project. On appeal, the Hon'ble Supreme Court in Civil Appeal No.195/2019 decided on 01.07.2019 held as under:- "The claim of the appellants and Proforma respondents, herein that the date given in the notification dated 21.12.2017 is violative of PC/1 as well as rule of equality before law, has a substance. As stated above, the record reveals that a sufficient amount has been allocated for payment of T.A. D.A and project allowance from the date of commencement of the project i.e. 28.08.2015 and this fact has been admitted by the Government while issuing the notification dated 21.12.2017, however, the date has not been assigned properly and no reason has been listed for non-payment of the project allowance from the said date."
It has further been held that:- "As no reason has been listed by the Committee for not giving the project allowance to the appellants from the date of commencement of the project despite availability of funds, therefore, we are of the view that the date mentioned in the notification is discriminatory. As stated in the earlier part of the judgment that the learned High Court has dismissed the writ petition mainly on the ground of laches and non-availability of funds, whidh was not justified because the appellants/petitioners filed writ petition within a period of one month and five days after gaining knowledge of the decision of the Committee, therefore, the question of principle of laches does not arise. Similarly, the record reveals that sufficient funds are available for payment of the claimed allowance from the date of commencement of the project and this fact escaped the notice of the High Court while deciding the writ petition otherwise conclusion might have been different.
The upshot of the above discussion is that the appeal is accepted, the impugned judgment of the High Court is set aside and the writ petition filed by the petitioners before the High Court is hereby accepted. The respondents are directed to amend the notification dated 21.12.2017 and make payment of the project allowance to the appellants and Proforma respondents', herein, from the allocated funds of the project for the period they remained posted and served in the project."
In another case titled "Tariq Mehmood Mirza and others v. Azad Government and others" decided by the Hon'ble Supreme Court on 09.07.2020, the Apex Court has also directed the respondents to amend the notification dated 21.12.2017 and make payment of the Project Allowance to the appellants for the period they remained posted and served in the project.
9. Be that as it may, Govt. functionaries cannot exercise any discretion to become selective, discriminatory and distinctive in applying its discretion with reference to the persons within one class and where conditions for extending benefits of such decisions are the same for all that particular class of persons. Ready reference in this regard is 2002 CLC 113. The doctrine of equality before the law and, equal protection is the anchor sheet of the constitution, it prescribes that every citizen of the State is to be equally treated and is to enjoy equal protection, theory prevents discriminatory B treatment of individual or a group of individuals at the expenses of other individuals or classes of the people similarly situated. Even handed, fair treatment to every citizen is ordained by the Interim Constitution 1974 in clear terms.
10. The State is not fiefdom of any person howsoever high he may be, everybody is under the law, nobody is above it. In fact, all public power is a trust and has to be exercised fairly, honestly and in the interest of public. The petitioners are entitled for project allowance from the date of commencement of the project and the date from which they held the posts in the project.
Objections, reluctance and procrastination on part of the official quarters offend the doctrine of Administrative Justice, that too a cloud upon constitutional fundamental guaranteed right 1 and 15 enshrined in the Interim Constitution 1974. It is pertinent to mention that discretion in such like matters is not absolute, it is always deemed to be coached by the settled principles of law in a fair and proper manner leaving no room for any sort of arbitrariness.
11. Dicta of the Hon'ble Supreme Court in the similar matter is providing guidelines in an unequivocal terms ordering that project allowance is liable to be paid from the date of commencement of the said project and the direction in fact is a settled principle in this regard which requires to be respected and implemented in its pros and cons by extending its benefits to all the affectees equally instead of dragging and pushing them to litigation. Dispensation of justice is not only to be administered by the Courts of law but every organ and functionary of the State in whichever capacity he is performing any duty. It is obligatory upon him to do justice in performance of his assigned liabilities. The Hon'ble Supreme Court of Azad Jammu and Kashmir in a case of similar facts and identical nature [2020 SCR 538] titled "Tariq Mehmood Mirza and others v. Azad Government and others" laid down as under:-- AJ&K Interim Constitution, 1974.
"Art.4(4) fundamental rights equality before law writ claim of project allowance entitlement of claim of appellants is at par with the appellants who were granted project allowance by the Supreme Court....thus they also entitled for the allowance.
Operative part of the above judgment is as under:- According to Article 42-B of the Azad Jammu and Kashmir Interim Constitution, 1974, the judgment of the Supreme Court is binding on all the Courts of Azad Jammu and Kashmir. In view of the aforesaid judgment of this Court, the appellants are also entitled to the Project Allowance from the date of commencement of the Project. In this state of affairs, while accepting this appeal and admitting the writ petition for regular hearing and prayed writ is issued in the manner that the respondents are directed to amend the notification dated 21.12.2017 and make payment of the Project Allowance to the appellants for the period they remained posted and served in the project."
12. So in both the supra mentioned cases the Hon'ble Supreme Court has directed the respondents to amend the notification dated 21.12.2017 and pay the "Project Allowance" to the appellants/ petitioners for the period they remained posted and served in the project and the instant cases are also of the same nature and the notification dated 21.12.2017 has been challenged to the extent that the same may be declared as effective from the date of commencement of the projects, i.e. from the date of holding of the posts by the employees in the projects. The judgment/decision of the Hon'ble Supreme Court is binding upon all the state functionaries, as well as upon every Court in view of Article 42-B of the Azad Jammu and Kashmir Interim Constitution, 1974. So, keeping in view judgments of the Hon'ble Supreme Court and the rule of equality, all the writ petitions are accepted and the respondents are directed to amend the notification dated 21.12.2017 and pay the "Project Allowance" to the petitioners for the period they remained posted and served in the project. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.