' LEHRASAP KHAN, J.--Manzoor Hussain and 37 others, the petitioners herein, are serving as Private Secretaries in the Lahore High Court, Lahore Through the present Constitutional Petition, they have prayed that by issuing writ of mandamus, the respondent viz. The Province of the Punjab (through th Secretary to the Government of Punjab, Finance Department, Lahore) directed to implement the Office Memorandum No, 9/2/74.F.II (R.6), dated 18-3-1986, and upgrade their posts from BPS-16 to BPS-17 with effect from 1-71983, of course, without payment of arrears due to retrospective up gradation of the posts, prior to the date of issuance of the Office Memorandum i,e, 18-3-1986.
2. Through the aforementioned Office Memorandum, all the posts of the Private Secretaries to the Secretaries/Additional Secretaries and other Officers in BPS-21 and 22 provided with the services of Private Secretary, in the Federal Government, along with their incumbents, who have been appointed to these posts on regular basis, have been upgraded from BPS-16 to BPS-17 with effect from 1-7-1983. It has also been provided in the said Office Memorandum that the special pay admissible to the Private Secretary (BPS-16) to the Secretary/Additional Secretary and other Officers in BPS-21 and 22 at the rate of Rs,200 and Rs,150 p.m. Respectively will continue to be admissible in BPS-17 or 18 to which such Private Secretary will be eligible after putting in 10 years satisfactory service in BPS-17, unless move-over takes place to BPS-18 from an earlier date. Clause
(d) of the Office Memorandum provided that no arrears due to retrospective up gradation of the post from BPS-16 to BPS-17 and on account of accrual of increments would be admissible prior to the date of issue of the office memorandum.
3. It has been alleged in the under consideration Constitutional Petition that the posts of the Judges of the High Court are Constitutional posts but they have been equated with that of a Federal Secretary. The scales of pay of all the Government servants were revised throughout the country with effect from 1-7-1983 through Federal Government's Notification No, F.1(1)-Imp/83, dated 18-8- 1983. The Government of the Punjab has adopted the said scheme of the Federal Government through its notification No, FDPC.2-1/83, dated 25-8-1983, with effect from 1-7-1983 and allowed all benefits available under the said scheme to all categories of its employees, including the Private Secretaries. It has been averred that office memorandum dated 18-3-1986 providing for the upgradation of the post of Private Secretary from BPS-16 to BPS-17, has been notified as part of and in continuation of Pay Scheme of 1983 and therefore, the respondent-Government was duty bound to implement this Memorandum in its entirety qua the ners. The examples of the Private Secretaries serving in the Federal Shariat Court and that of the Private Secretary serving with the Presiding Officer, Special Court (Offences in Banks), Lahore, have been cited. The posts of these incumbents have been upgraded from BPS-16 to BPS-17 in accordance with office memorandum dated 18-3- 1986. It has also been canvassed that the Lahore High Court asked the Provincial Government to upgrade the posts of the Private Secretaries to BPS-17 as back as 1978. The proposal of the High Court was agreed to in principle by the Provincial Government but on account of source constraint it was regretted that the proposal could not be implemented. It has further been averred that the Board of Revenue, Punjab, took up the case of their Private Secretaries for up gradation of the posts from BPS-16 to BPS-17 and the Finance Department expressed willingness to allow BPS-17 to their Private secretaries provided they forego the right of their promotion as Assistant secretaries to which they are currently entitled.
4. Vide order dated 4-4-1987, report and comments were called from the provincial Government.
The requisite report and comments were received prior to 27-4-1987 and it was reported that the matter was under consideration of the government. After allowing a few adjournments for taking the decision, the case was admitted to regular hearing, as no action in the matter was taken by the Provincial Government. At the time of hearing of final arguments, the learned Additional Advocate- General, who represented the respondent-Government produced letter No, FD.PC-0-1/87, dated 8- 2-1988, addressed to him by Section Officer (P.C.) of the Government of Punjab, Finance Department. In this letter, it has been stated that the Punjab Government did not adopt the policy of the Federal Government of 1983 in toto. Certain instances have been quoted to contend that the policy of the Federal Government was not adopted by the Punjab Government in its entirety. These instances are to the effect that: (a) vide para. 22 of the Finance Divisions's letter No, F.1(1)IMP/83, dated 18-8-1983, Federal Government allowed House Building Advance equal to 36 months' pay of the employees in B.3 and above but in Punjab Government it is still equal to 24 months pay with a maximum of Rs,50,000; (b) Vide para.18 performance evaluation allowance was allowed to the.,posts in 8.17 and 18 @ Rs,300 p.m. And B. 19 and 20 @ Rs,400 p.m. No such allowance has been allowed in Punjab Government; (c) vide para. 20 deputations' allowance has been revised, this has not been adopted by the Provincial Government; (d) in Annex: II of the same letter at serial No, 6, P.T.Is. Were allowed BPS.15 with selection grade equal to 1/3 posts in B.17 while in Punjab the post of P.T.I. Carries BPS-9 with 1/3 posts in selection grade B. 12; (e) the pay scale of the post of Librarian was revised from B.14 to 13.15 with 1/3 posts in B. 17 as selection grade while in Punjab Government this post carries different pay scale; (f) the pay scale of the post of Library Assistant was revised from B.8 to B. 9 whereas in Punjab Government it carries scale No, 6.
5. In the paradises comments, which were already received, it has been maintained that the proper forum to redress the petitioners' grievance was the Punjab Service Tribunal and that the Constitutional Petition before the High Court was thus not legally competent. On merits, it has been maintained that the Provincial Government follows the Federal Government as far as possible and according to its circumstances and that it is free to take its decision. It has been pleaded that the sources of the Punjab Government were not unlimited and that no discrimination has been done in case of the petitioners.
6. Regarding the maintainability of the present Writ Petition, it may be observed that by virtue of the provisions of section 3(2) of the Punjab Service Tribunals Act (IX of 1974), the Service Tribunal has the exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants, including disciplinary matters. The expression "civil servant" has been defined in section 2(b) of the Punjab Civil Servants Act (VIII of 1974). According to this definition, a civil servant means a person who is a member of a civil service of the Province or who holds a civil post in connection with the affairs of the Province. The Punjab Civil Servants Act (VIII of 1974) has been enacted to regulate the appointment to, and the terms and conditions of service in respect of the services of the Province of the Punjab. This law has been enacted pursuant to Article 240 of the Constitution of Islamic Republic of Pakistan, which empowers the Provincial Legislature to make law to determine the conditions regarding appointment and other terms and conditions of service in case of services of the province. It is, however, noteworthy that the law thus to be made by the Provincial Legislature is subject to the constitution as provided in the opening words of Article 240 supra.
Article 208 ibid speaks of officers and servants of the Supreme Court and of a High Court. This Article empowers a High Court to make rules providing for the appointment by the Court of officers and servants of the Court and for their terms and conditions of employment. Such rules are, of course, to be made with the approval of the Governor concerned. In case of this High Court, such rules have already been framed in the form of the High Court Establishment (Appointment and Conditions of Service) Rules.
' Prospects of promotion and up gradation of a post has never been considered a term and condition of service for which the Service Tribunal has exclusive jurisdiction. In this behalf reference may be made to the case of Dr. Ehsan-ui-Haq v. The Province of Punjab and others 1980 SCMR 972.
' In the light of the above discussion, it is concluded that the petitioners, being officers and servants of the High Court, do not fall within the ambit of expression "civil servant" as occurring in section 2(b) of the Punjab Civil Servants Act (VIII of 1974) and, therefore, according to their terms and conditions of service, the jurisdiction of the High CcJrt is not excluded.
7. So far as the merits of the case are concerned, generally, the Scheme of 1983 of the Federal Government was adopted in case of all categories of employe es of the Provincial Government by the respondent-Government. Even in case of Private Secretaries, in 1983 Scheme, the special pay was enhanced from Rs,150 to Rs,200 p.m. This was adopted by the Provincial Government for all Private Secretaries, including the petitioners. Even prior to 1983 all the pay revision schemes of the Federal Government have been adopted by the Provincial Government in regard to all categories of its employees, including the category of Private Secretaries. The learned Law Officer of the Provincial Government could not deny the contention raised on behalf of the petitioners that during the course of hearing of Writ Petition No, 2061 of 1984, pertaining to the grant of move-over, a learned Additional Advocate-General, who represented the Provincial Government made a categorical statement to the effect that as a matter of policy the Provincial Government follows the decisions of the Central Government in such like matters. The Scheme of 1983 was intended to benefit all employees of Federal Government as also those of the Provincial Governments. As already observed, the Office Memorandum dated 18-3-1986 has been notified in continuation of Scheme 1983 and has to take effect from 1-7-1983, the date from which the decision taken in the scheme for revision of pay has to be enforced. It has not been denied that the Provincial Government adopted the Pay Scheme of 1983 through its Notification No, FD.PC.2-1/83, dated 25-8- 1983. The few departures pointed out in the letter addressed by the Finance Department to the Additional Advocate-General mostly relate to allowances and not to scales of pay except in case of post of Librarian for which it has been said that the Punjab Government was already allowing a better pay scale. In case of other categories, such as Steno typists, Stenographers, Personal Assistants etc. Scheme of 1983 has been adopted in its entirety by the Provincial Government. In case of Private Secretaries also, for the purpose of Special Pay, the scheme of 1983 has been adopted, as already pointed out. When the pay scheme of 1983, promulgated by the Federal Government, has been adopted by the Government of the Punjab to benefit all categories of its employees, it cannot and should not leave one category of its employees as it is ex facie unjust and discriminatory. In the case of Purshottam lal and others v. Union of India and another AIR 1973 SC 1088, it was held: "Implementation of the revised pay scales in particular category of servants from a date later than that recommended by the Pay Commission and thus non: implementation of its report only in respect of these persons amounts to violation of Articles 14 and 16". As already pointed out, pursuant to Office Memorandum dated 18-3-1986 Private Secretary serving with the Presiding Officer, Special Court (Offences in Banks), Lahore, has been placed in BPS-it 7 with effect from 12-7-1984, i,e, the date of his appointment as Private Secretary. The Presiding Officer, Special Court (Offences in Banks), Lahore, is not higher in status than the Judges of the High Court. Appeals against his judgments and orders lie before the High Court. Duties being performed by the petitions .s are in no manner less onerous than those being performed by the Private Secretary working with the Presiding Officer, Special Court (Offences in Banks), Lahore. In the case of the Province of the Punjab and another v. Kamaluddin and 30 others PLD 1983 SC 126, it was observed: "Even otherwise, the impugned decision of the Service Tribunal appears to be just, fair and equitable. It brings out in sharp relief the anomaly that whereas the Readers to Members of the Board of Revenue who are performing less onerous duties and are serving in an institution which is lower in status than the High Court are placed in NPS-16, but for reasons best known only to the learned Finance Secretary it is considered that for their counterparts in the High Court NPS-12 will do. We are, therefore, of the opinion that this is not fit case for interference."
8. In the light of above discussion, it is concluded that the failure on the part of the respondent- Government to upgrade the posts of the petitioners to BPS-17 in implementation of Pay Scheme 1983, as modified by Office Memorandum of Federal Government dated 18-3-1986, is unjust and discriminatory inasmuch as the said scheme has been implemented in respect of all other categories of its employees. The respondent-Government is under the constitutional and legal obligation to act justly and fairly in case of all categories of employees. In order to adhere to these principles and the rule of consistency, the respondent-Government should implement the policy of 1983 as modified by Office Memorandum dated 18-3-1986 and upgrade the posts of the petitioners to BPS-17 in accordance with terms of the said Office Memorandum.
9. This writ petition is accordingly allowed and the respondent-Government is directed to implement the Office Memorandum dated 18-3-1986 in case of the petitioners. There shall, however, be no order as to costs.