' SHAFIUR RAHMAN, J.---This judgment will dispose of one appeal (No, 78 of 1991) filed by the Government of the Punjab and two petitions for leave to appeal (Nos.52 of 1992 and 26-P of 1992) filed by the Provinces of Balochistan and N.-W.F.P. Respectively.
Leave to appeal was granted to the Government of the Punjab to examine whether the question of grant of 20% of the Pay as Secretariat Allowance to the employees of the Lahore High Court establishment in a Constitution Petition was in accord with law notwithstanding the provisions of Article 212 (3) of the Constitution excluding the jurisdiction of the High Court in such matters and there being proper classification available for distinguishing the case of the High Court establishment from those of the Secretariat employees.
2. From 1-7-1988, the Government of Pakistan granted vide Office Memorandum No, F. 1 (32)-IMP- II/88, dated 1st July, 19&S) 20% of basic pay to the employees serving in the Federal Secretariat, President's Secretariat, Prime Minister's Secretariat, National Assembly Secretariat, Senate Secretariat and the Central Board of Revenue, known as 'Secretariat Allowance'. The Government of the Punjab issued an Office Memorandum (No,FD.PC-2-1/88) on the 8th August, 1988 in the following terms, granting/allowing the Secretariat Allowance to its own employees in terms as hereunder:-- "I am directed to refer to the subject noted above and to say that the Governor of the Punjab has been pleased to decide that Secretariat Allowance @ 20% of basic pay to all employees in Punjab Government Secretariat, Governor's Secretariat, Chief Minister's Secretariat and Punjab Provincial Assembly Secretariat shall be granted with effect from 1-7-1988.
(2) All officers/officials working in the Secretariat, as described in para. 1, who are already in receipt of any Special Pay/Allowance (except the categories of Private Secretaries/Personal Assistants to Governor, Chief Minister, Ministers, Chief Secretary, Chairman, R&D Board, Additional Chief Secretary, Secretaries and Additional Secretaries will also be allowed to exercise their option to draw Secretariat Allowance mentioned above or to continue drawing their existing Special Pay/Allowance.
(3) All Officers/officials deputed from other services/departments to work in the Secretariat, as described in para. 1 and who are getting Special Pay/Allowance will be similarly allowed to exercise their option to draw Secretariat Allowance @ 20% of their basic pay or to continue to draw their existing Special Pay/Allowance, if any.
(4) As mentioned in paras. 2 and 3 above, option either to retain Special Pay/Allowance, Governor's Secrtariat Allowance/Chief Minister's Secretariat Allowance or to receive the Secretariat Allowance may be exercised by employees in writing and communicated to the Audit Office through administrative department on the form at Annex. A by September 8, 1988. A Government servant who fails to exercise option within the prescribed period shall be deemed to have opted for the Secretariat Allowance."
3. The Federal Government as well as the Provincial Government made additions to the category of employees who were treated as Secretariat employees for the purposes of this Allowance. The Federal Government included amongst the beneficiaries the employees of the Pakistan Television and the employees of the Pakistan Broadcasting Corporation besides Central Board of Revenue.
The Provincial Government enlarged the category of the recipients of this allowance by including the employees of the Provincial Board of Revenue.
4. The grant of this allowance to the Secretariat employees to the exclusion of others generated a lot of dissatisfaction and claims both from amongst the Federal Government employees and the Provincial Government employees who were denied such an Allowance. Such dissatisfaction and claims had three visible effects.
' Firstly, the Federal Government itself revised the policy of grant of Secretariat Allowance and made the Allowance already granted a part of the pay as 'Personal Allowance' of the officers/officials in receipt of it and only limited it to the actual service in the Secretariat or in the other departments treated as Secretariat. This will be clear from the Finance Division's Office Memorandum No, F.7(15)-R.13/88(Pt) dated 1-2-1990, as hereunder:-- "Subject: DISCONTINUANCE OF SECRTARIAT ALLOWANCE FOR THE NEW INCUMBENTS ' In supersession of this Division's Office Memoranda of even number, dated the 18th December and 26th December, 1989 the undersigned is directed to say that the Federal Government has decided that 20% Secretariat Allowance admissible under this Division's O.M. No,F.1 (32)-Imp. 11/88, dated the 1st July, 1988 and subsequent amendments made thereto will not be admissible to the new incumbents to the Secretariat, CBR, PTV and PBC etc. With effect from 11-12-1989. However, the existing recipients of the Secretariat Allowance have been allowed to retain it as 'personal Allowance' subject to the following conditions:--
(i) The amount of Secretariat Allowance being drawn by the existing recipients as on 10-12-1989 would be frozen.
(ii) It will be subject to income-tax and House Rent recovery.
(iii) It will be admissible during leave and entire period of leave preparatory to retirement except during extraordinary leave.
(iv) It would not be admissible during the period of suspension, and
(v) It will not remain admissible to the recipients on their transfer from the Secretariat, CBR, PTV and PBC etc."
' It was modified by another Office Memorandum dated 21-8-1991, as hereunder:- "Subject: GRANT OF SECRETARIAT/PERSONAL ALLOWANCE ' In partial modification of this Division's Circular O.M. No,F. 7 (15) R.13/88 (Pt), dated the 1st February, 1990, the undersigned is directed to state that the Federal Government has decided that with effect from 1st June, 1991 the Personal Allowance (in lieu of formerly allowed Secretariat Allowance) will be admissible at the rate of 20% of pay to the following:--
(i) Officials already drawing this allowance as a Personal Allowance in accordance with this Division O.M. No,F.7(15) R.13/88(Pt), dated 1st February, 1990.
(ii) Officials who have already drawn Secretariat or Personal Allowance in lieu and have been/ are reposted to Secretariat.
(iii) Officers transferred from Provincial Government who would have been eligible for this allowance in the Provincial Secretariats."
' These two hold the field today.
' This action of the Federal Government of allowing/granting, of extending and of discontinuing the Secretariat Allowance attracted at one stage the attention of the Wafaqi Mohtasib (Ombudsman) also as reported in the Frontier Post dated 1-11-1992, as hereunder_ "The Ombudsman further said that he had 70 complaints involving 84 persons who have protested about the discrimination and have sought his intervention.
' The Mohtasib while tracing the history of the Secretariat allowance opined that an element of injustice was created righty at the time when the Secretariat allowance was sanctioned on the July 1, 1988. The Mohtasib said that discriminatroy nature of the allowance is apparent from the fact that right in 1988 the allowance was also given to the employees of the Central Board of Revenue, which is clearly an attached department and employees of Pakistan Television Corporation and Pakistan Broadcasting Corporation, which are autonomous Corporations and have nothing to do with the Secretariat.
' A further discriminatory element was introduced when at the time of stopping the allowance with effect from December 11, 1989, the Government servants who were getting the allowance under the provincial governments were allowed to draw it again in the Federal Government, the Mohtasib observed."
' The second feature of the grant of such an allowance was that a large number of employees, Provincial and Federal, belonging to Departments not treated as Secretariat approached the Courts or the Service Tribunals for grant of similar relief for one reason or the other. Apart from the case before us of the employees of the High Courts of Punjab, N.-W.F.P. And Balochistan, the employees of the Punjab Public Service Commission (1992 SCMR 1847), Federal Shariat Court (1992 SCMR 1852), Attorney-General's office (CPLA 1118-L/91), Advocate-General's office (W.P. No, 9111/91) and Central Board of Film Censors (1991 SCMR 1288) also approached either the Service Tribunal or the High Court for grant of such an allowance.
' The third consequence of the grant of this allowance and the denial of it to others was that the other authorities competent to grant it, for example, the Chief Justice of the Federal Shariat Court vide order dated 13-7-1988 and the Chief Justice of Supreme Court of Pakistan vide Notification dated 17-2-1993 granted it in respect of their employees w,e,f, 1-7-1988.
' CA. 78/91:
5. In this background of events, eight employees of the Lahore High Court filed a Constitution Petition (Writ Petition No, 1624 of 1989) claiming that they be treated as Secretariat employees and granted the Secretariat Allowance made available to the employees of the Provincial Secretariat.
This petition was seriously contested. At first, the High Court allowed a number of opportunities to the parties to amicably settle the matter. It did not succeed. A second attempt thereafter was made in the light of exercise undertaken for amicably settling the matter by demonstrating the equivalence of the duties and the responsibilities of the two categories of employees.
' Preliminary objection to the competence of the Constitution Petition in view of Article 212 of the Constitution was brushed aside by reference to the decision of the same Court in Manzoor Hussain and 37 others v. Province of the Punjab (1989 PLC (CS) 42) followed by refusal to grant leave in the same vide Civil Petition for Leave to Appeal No, 1027 of 1988 and dismissal of the Civil Review Petition No, 6-R of 1989 arising out of it on 8-10-1989.
' It was held on the strength of Article 208 of the Constitution that the employees of the High Court were not civil servants. It was further held that employees and servants of the High Court were similarly situated and working in similar circumstances as those working in the Secretariat of the Punjab Government and other institutions to which the notification allowing Secretariat Allowance has been made applicable. The Court placed reliance on D.S. Nakara and others v. Union of India (AIR 1983 SC 130), considered the discrimination established and directed the Government of the Punjab to make available all the benefits under the Memorandum dated 8-8-1988 to the employees of the High Court w,e,f, 1-7-1988. The arrears were ordered to be paid within three weeks.
6. An Intra-Court appeal was filed by the Government of the Punjab which did not succeed. It was held that the disputed allowance was not confined to the Secretariat employees but had also been made available to the Provincial Assembly Secretariat and the Board of Revenue.
7. Rule 22 of the High Court Establishment (Appointment and Conditions of Service) Rules invoked by the learned Judges while seized of the matter was held to provide the basis for grant of such an allowance to the High Court employees as well on the reasoning as hereunder:- "Under this rule the allowances admissible to all the civil servants generally under the relevant rules are admissible to the employees of the Establishment of the High Court though there are no rules with the nomenclature 'Civil Service Rules (Punjab)' as used in Rule 22. The intention is, however, implicit that whatever allowances etc. Are admissible to the civil servants would automatically be allowed to the members of Establishment of High Court. The question arises whether the members of the High Court Estalishment could claim any allowance which has not been granted to all the civil servants generally but to some of them as a class working in the Secretariat. In our view the respondents would be justified in claiming such an allowance as a matter of right as per force of said Rule 22 if the class of employees in the Government Secretariat to whom such an allowance was allowed was similarly placed as regards the nature of duties and the functions which they perform."
' The appeal Bench undertook detailed scrutiny of the charts of the duties and affirmed the finding of the learned Judge in chambers with regard to the equivalence. The appeal Bench concluded as hereunder:- "For this additional reason we are constrained to hold that the denial to the respondents of the allowance in question is not only highly arbitrary but the denial of their right to get the allowance under Rule 22 of the High Court Establishment (Appointment and Conditions of Service) Rules, is also violative of Article 25 of the Constitution which guarantees equal protection of law to all the citizens and we uphold the view taken by the learned Single Judge."
' C.A. 26-P/92:
8. Ten employees of the High Court of Peshawar by a Constitution Petition (No, 2029 of 1991) claimed the Secretariat Allowance at the rate of 20% which had been granted by the Government of North-West Frontier Province (N.-W.F.P.) from an earlier date i,e,, from July, 1987. Heavy reliance was placed for making out a claim for the grant of such an Allowance on the judgment of the Lahore High Court in Writ Petition referred to. An application for interim order claiming such an Allowance came up for consideration of the Peshawar High Court on 23-12-1991 in the presence of the Additional Advocate-General and was disposed of with the following order:- "The respondents are directed to pay the 20% allowance to the employees of the Peshawar High Court regularly with the monthly pay from the 1st January 1992 till the final disposal of the writ petition. The question of arrears will be considered on the next date of hearing."
' This order was modified on 12-11-1992, as hereunder:- "The order dated 23-12-1991 passed by this Court is modified to the extent that the employees of the Peshawar High Court are .Entitled to receive 20% allowance with their monthly pay from 1st of January, 1992 payable on 1st of February, 1992, regularly, till the final disposal of the writ petition. So far as the question of arrears is concerned, the learned counsel for the petitioners is not pressing it at the moment, therefore, it will be decided at the time of final disposal of the writ petition. .
' On the request of the learned Advocate-General let the main writ petition be fixed for final hearing within two months."
' The proceedings were at this stage in the High Court when this petition for leave to appeal was filed and was ordered to come up with Civil Appeal No, 78 of 1991.
' C.P. 52 of 1992:
9. Seventeen employees of the establishment of the High Court of Balochistan filed a Constitution Petition (No, 148 of 1990) claiming in circumstances similar to those pointed out in the above two matters. The grant of the Secretariat Allowance which had been made available to the employees in the Balochistan Secretariat; Governor's Secretariat, Chief Minister's Secretariat and Balochistan.
Provincial Assembly Secretariat vide Notification, dated 4th of September, 1988.
' There was another Constitution Petition filed by the drivers who claimed the enhanced overtime Allowance made available to the Governor's and Chief Minister's establishment drivers.
10. The High Court of Balochistan examined the claim of the employees of the High Court for the Secretariat Allowance in the light of the decision given by the Lahore High Court and decided the matter as hereunder:-- "Indeed the refusal of Government of Balochistan to extend the benefits of Notification C. P. 148/90 Notification F. No, 1(32)-IMP. 11/88, dated 1st July, 1988 and Notification No,FD(R) 11-28/88. 3454-3484 dated 4th September, 1988. C.P. 105/90, Notification No,SGA (SC B&A) 2-14/87, dated 4th February, 1989 to the employees of High Court of Balochistan infringes the provisions of Article 25 of the Constitution of Pakistan.
' In such view of the fact we accept the petition and direct the Government of Balochistan to make available all benefits of Notification F. No, 1(32)-IMP. 11/88 dated 1st July 1988 and Notification FD (R)
11-28/88/3454-3484, dated 4th September, 1988 to the employees of High Court of Balochistan; in C.P. No, 148 of 1990 with effect from 1st July 1988 and benefits of Notification No,SGA (SC B&A) 2- 14/87, dated the 4th February, 1989 to the petitioners-drivers in C.P. No, 105/90 with effect from 23rd January, 1989. The arrears of the allowances be also paid to the petitioners within a period of one month. A copy of this judgment be sent to the Accountant-General Balochistan at Quetta."
' Petition for leave to appeal was filed against this decision. It has also come up for hearing alongwith the other matters.
11. This petition is shown to be barred by 93 days. The explanation given for the condo nation of delay is as hereunder and it does not appear to us to be satisfactory:-- "The judgment was drawn later on and announced on 12-9-1991. The copy of this judgment was received by the Finance Department.
(2) That the deponent sent the case to Law Department for advice as to whether the case should be taken to Supreme Court or not. The advice was received back on 12-12-1991.
(3) That immediately the deponent under the orders of Finance Secretary contacted all the 12 Advocates-on-Record of Quetta, one after the other to file the civil petition for special leave to appeal in Supreme Court. Each of the Advocates-on-Record kept the case for two or three days and ultimately refused to file the case in the matter related to High Court employees. The Additional Advocate-General was also reluctant to draw the case and advised verbally against the filing of civil petition for special leave to appeal.
(4) That ultimately the Finance Secretary through deponent has to request the Finance Secretary, Government of Punjab in order to file present petition through their counsel. Hence this petition is being filed within few days."
' However, as the question is being dealt with on its own merits also, the decision will follow the other matters properly initiated in this Court.
12. The view taken by the Lahore High Court that the employees of the High Court are not civil servants is based on the decision given by a Division Bench in the case of Manzoor Hussain and 37 others (supra) who were serving as Private Secretaries in the Lahore High Court and had by a Constitution Petition claimed upgradation of their post from BPS-16 to 17 w,e,f, 1-7-1983 on the basis of a Memoradum of the Government of the Punjab, dated 18th of March, 1986. A similar objection with regard to the jurisdiction was taken. It was indeed rejected and the employees of the High Court Establishment were held to be not civil servants. The reasoning given appears as hereunder:- - "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 service 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 upgradation of a post have 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-ul-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 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 Court is not excluded."
' This judgment did come up to this Court, twice; once by means of a petition for leave to appeal and next by way of Civil Review Petition No, 6-R/1989 alongwith other connected matters (C.R.P. 34- R and 35-R of 1989 and C.P.L.As. Nos.10 and 11 of 1989) but at no stage this question was attended to directly or indirectly. The petitions for leave to appeal as well as the review petitions arising out of them were disposed of on the question of limitation, and not considered on merits at all. The view taken by the High Court that the employees of the Provincial High Courts are not civil servants for the purpose of Civil Servants Act and the Service Tribunals Act is correct.
13. In the Constitution of Pakistan, 1973 "service of Pakistan" has been defined in Article 260, as hereunder:-- " 'Service of Pakistan' means any service, post or office in connection with the affairs of the Federation or of a Province, and includes an All-Pakistan Service, service in the Armed Forces and any other service declared to be a service of Pakistan by or under Act of Majlis-e-Shoora (Parliament) or of a Provincial Assembly, but does not include service as Speaker, Deputy Speaker, Chairman, Deputy Chairman, Prime Minister, Federal Minister, Minister of State, Chief Minister, Provincial Minister, Attornery-General, Advocate-General, Parliamentary Secretary or Chairman or member of a Law Commission, Chairman or member of the Council of Islamic Ideology, Special Assistant to the Prime Minsiter, Advisor to the Prime Minister, Special Assistant to a Chief Minister, Advisor to a Chief. Minister or member of a House or a Provincial Assembly."
This definition of "service of Pakistan" itself divides those included into it into two broad categories i,e,, one of those employed in connection with the affairs of the Federation and the other of those employed in connection with the affairs of a Province. Applying this definition, the employees of the High Court establishment would fall within the definition of service of Pakistan and have been taken to be employed in connection with the affairs of a province.
' Article 240 of the 1973 Constitution reads as hereunder:- "240.Appointments to service of Pakistan and conditions of service.---Subject to the Constitution, the appointments to and the conditions of service of persons in the service of Pakistan shall be determined---
(a) in the case of the services of the Federation, posts in connection with the affairs of the Federation and All-Pakistan Services, by or under Act of Majlis-e-Shoora (Parliament); and
(b) in the case of the services of a Province and posts in connection with the affairs of a Province, by or under Act of the Provincial Assembly.
' Explanation.--In this Article, 'All-Pakistan Service' means a service common to the Federation and the Provinces, which was in existence immediately before the commencing day or which may be created by Act of Majlis-e-Shoora (Parliament)."
' Article 208 of the 1973 Constitution provides as hereunder:-- "208. Officers and servants of Courts.--The Supreme Court and the Federal Shariat Court, with the approval of the President and a High Court, with the approval of the Governor concerned, may make rules providing for the appointment by the Court of officers and servants of the Court and for their terms and conditions of employment."
14. In the 1962 Constitution, Article 127 dealt similarly with the same subject, as hereunder:-- "127. Officers and servants of Courts.--(1) In this Article, 'Court' means the Supreme Court or a High Court.
(2) A Court may (with the approval of the President in the case of the Supreme Court, and of the Governor in the case of a High Court) make Rules providing for the appointment by the Court of officers and servants of the Court, and for their terms and conditions of employment."
' The comparable provision in the Indian Constitution is Article 146 and it reads as hereunder:-- "146. Officers and servants and the expenses of the Supreme Court.--(1) Appointments of officers and servants of the Supreme Court shall be made by the Chief Justice of India or such other Judge or officer of the Court as he may direct: ' Provided that the President may by rule require that in such cases as may be specified in the rule, no person not already attached to the Court shall be appointed to any office connected with the Court, save after consultation with the Union Public Service Commission.
(2) Subject to the provisions of any law made by Parliament, the conditions of service of officers and servants of Supreme Court shall be such' as may be prescribed by rules made by the Chief Justice of India or by some other Judge or Officer of the Court authorised by the Chief Justice of India to make rules for the purpose: ' Provided that the rules made under this clause shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the President.
(3) The administrative expenses of the Supreme Court, including all salaries, allowances and pensions payable to or in respect of the officers and servants of the Court, shall be charged upon the Consolidated Fund of India, and any fees or other moneys taken by the Court shall form part of that Fund."
15. In the context of the Constitutional provisions reproduced above, it is clear that in the matter of the officers and servants employed in the establishment of the Supreme Court of Pakistan and the High Courts the legislature had not been given any role to determine the terms and conditions of the employees which of course would include their remuneration also. Such an exclusionary role was attributed to the requirement of maintaining the independence of judiciary in the case of Supreme Court Employees' Welfare Association v. Union of India and others (AIR 1990 SC 334). In exercise of this or its predecessor provision both the Supreme Court and the High Courts have framed Rules. Rules 17 and 22 of these Rules in respect of the High Court are as hereunder:-- "17. Members of the High Court Establishment shall be entitled to pay (including Special pay) and allowances as fixed by the Chief Justice, from time to time, with the approval of the Governor to these rules.
22. In respect of salaries, allowances, leave or pension; the members of the establishment shall be governed by the Civil Service Rules (Punjab) as amended from time to time."
16. It is admitted that under Rule 17, no separate dispensation with the approval of the Governor has taken place in respect of pay and allowances. For this reason the residuary Rule 22 gets attracted.
17. A survey of the Pay Scales for the last fifty years on the sub-continent establishes for certain that for a long time in the past the Secretariat staff had preferential pay scales over other departments and offices of the Government. In India this practice still continues as would be apparent from the following decisions of the Indian Supreme Court:--
(1) Umesh Chandra Gupta and others v. Oil and Natural Gas Commission and others AIR 1989 SC 29;
(2) V. Markendeya and others v. State of Andhra Pradesh and others AIR 1989 SC 1308; and
(3) Federation of All India Customs and Central Excise Stenographers (Recognised) and others v.
Union of India and others AIR 1988 SC 1291.
18. In Pakistan, however, the admitted position is that this distinction between the Secretariate staff en bloc and others was abolished when National Pay Scales were introduced in 1972. From 1977 classification was made and established criteria for allowances notified as hereunder:-- "(i) Geographical Allowances.--Compensation according to the geographical hardship of the employees e.g. Kashmir Compensatory Allowance, Northern Area Allowance, Hill Allowance, Hard Area Allowance, Special Area Compensatory Allowance and Agency Allowance.
(ii) Qualification Allowances.--Granted in recognition to academic ability specific qualifications and skill of the employees e.g. Ph. D. Allowance, Computer Allowance, N.D.C. Allowance and Language Allowance.
(iii) Service Allowances.--These are attached with the specific services in recognition to the type and colour of service and requirements of their assignment e.g. Allowances attached to the Army personnel like disturbance allowance, Kit allowance etc. Superior Judiciary Office Allowance, admissible to ,the Judiciary, Railways Running Allowance, admissible only in Railways Services, Non-Practice Allowance allowed to the Doctors only, Aviation Allowance meant for Aviation services, Secretariat Allowance payable to Secretariat employees.
(iv) Hazard Allowances.--These are meant to compensate for the hazards of the job encountered by the employees e.g. Nuclear Power Generation Allowance, Danger Money Allowance, Bomb Disposal Allowance, Heat Allowance, Spray Allowance, etc.'
(v) Allowances according to the nature of job.--Shift Allowance, Research Allowance, Design Allowance, Project Allowance, Technical Allowance, Instructional Allowance, Night Duty Allowance and Anasthesia Allowance.
(vi) Compensatory Allowances.-To compensate the expenses required to be incurred by the employees e.g. House Rent Allowance, Conveyance Allowance, Washing Allowance, Uniform Allowance, Entertainment Allowance, Education Allowance, etc.
(vii) Costs of Living Allowances.--Foreign Allowance paid in Foreign Missions, which varies from Mission to Mission according to the costs of living prevailing at those places.
(viii)Allowances specific to the Houses of Head of the State and the Governments.--Prime Minister's House Allowance, President's House Allowance, Governor's House Allowance etc., where special allowance is admissible in addition to the subsidies provided in the utilities like water, fuel, electricity and furnishings, etc."
' There were certain posts and certain officers who were compensated separately. Non-Secretariat officers appointed Deputy Secretary were allowed Special Pay of Rs,400 w,e,f, 1-7-1983. It was extended in 1985 to make it 20% to Deputy Secretaries and equivalent in Federal Secretariat including. President/Prime Minister/National Assembly and Senate Secretariats with effect from 1- 11-1985. In 1987, recommendations were made by the National Pay Commission but the Government did not accept it and froze 20% Special Allowance of existing Deputy Secretaries and equivalent in secretariats and for future this allowance was allowed at a fixed rate of Rs,300 p.m.
With effect from 1-7-1987. All this is culled out from the material provided by the Government of Pakistan in Government of Pakistan through Secretary, Ministry of Finance, Islamabad v. M.I.
Cheema and others (Civil Appeal No,16 of 1992, decided on 29-6-1992) 1992 SCMR 1852, where a specific direction was given to the following effect on the day leave was granted in the case:-- "The Advocate-General, Punjab and the Deputy Attorney-General for Pakistan should be called upon to file a self-contained exhaustive note supported by all the official instructions that have issued during the last fifty years, if not more, with regard to the Secretariat and non-Secretariat Scales of Pay from time to time, within one month, to be available to the parties before hearing of the appeals."
19. In spite of the direction given no material has been placed before this Court or was placed before any of the High Court's showing any reason whatsoever for the re-emergence of categories of Secretariat and non-Secretariat employees and for assimilating certain non-Secretariat Offices as Secretariat Offices for the purpose .Of this Allowance. In the absence of any reason forthcoming on the record after the enforcement of the Unified Pay Scales to all categories of employees, such a reversion to old categories would appear to be discriminatory.
20. The legal question that in the matter of pension and pay no such discrimination can take place has been answered by this Court in LA. Sharwani and others v. Government of Pakistan through Secretary, Finance Division and others (1991 SCMR 1041). The factual question of equivalence of the duties, responsibilities, confidentialities etc. Is ordinarily not a fit subject for adjudication by the High Court but has to be determined initially by a full-fledged exercise to be undertaken by the National Pay Commission, as such. For the employees of the High Court the position is far better. 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 Court's 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.
21. In the circumstances, no case is made out for our interference in the impugned judgments/orders of the High Courts. Hence, the appeal is dismissed with no order as to costs and leave to appeal is refused in the two other petitions.
…and 3 more citing cases