Briefly, the facts giving rise to this Constitutional petition are that Muhammad Ghaffar and 37 others who had initially brought this petition were employees of the Municipal Committee, Rawalpindi (now raised to the status of Corporation), since before the 1st December, 1962, as Octroi Clerks in the Pay Scale of Rs.50--3--80. On coming into force of the West Pakistan Municipal Committees (Gradation of Pay) Rules, 1964, this pay scale was revised in the new consolidated Pay Scale of Rs.95--3--125 with effect from the 1st December, 1962. The Octroi Clerks, including the petitioners and those who had since been retired or transferred, made representations that they were entitled to the pay scale of Rs.115--5--175, as was admissible to Octroi Clerks of other first class Municipal Committees. Pursuant to these representations, Municipal Committee, Rawalpindi, recommended to the controlling authority (Commissioner Rawalpindi Division) for revising the pay scale of Octroi Clerks to Rs.105--5--150. Since the Octroi Clerks were trot satisfied with this recommendation, they continued with their demand of fixation of pay at the Scale of Rs.115--5- -175. In that context they also filed Writ Petition No.410-S-70 of 1969, which was withdrawn oil the 17th January, 1972, as the petitioners, ill the first instance, intended to move the Provincial Government for redress of their grievances.
2. It is said that in pursuance of their demand Government of the Punjab, by its Notification No.SO- IV (LG)-RWP-1(6)70, dated the 18th July, 1972, made amendment in the West Pakistan Municipal Committees (Grades of Pay) Rules, 1964, and revised the pay scale of Octroi Clerks (Moharrirs) to Rs.115--5--175. The petitioners although were satisfied with the scale of pay, but demanded that their salaries at this scale should be paid to them from the 1st December, 1962, as it was admissible to the Octroi Clerks of other Municipalities, like, Multan, Lyallpur, Sargodha and Lahore. In this regard, the petitioners again moved to the Commissioner, Rawalpindi Division, who by his order, dated the 24th October, 1972, directed that the enhanced pay should be given to the Octroi Clerks from the 18th July, 1972, and the Provincial Government may be moved for making the aforesaid pay scale admissible to them from the 1st December, 1962. It was alleged that the Municipal Committee, Rawalpindi, did not take any action on the directions of the Commissioner, Rawalpindi Division, or even if the Provincial Government was moved in this respect, no action had been taken by the Provincial Government to provide them relief which inaction necessitated bringing of the present Constitutional petition.
3. The writ petition was earlier dismissed by order of this Court, dated the 28th February, 1995, nor non-prosecution. Later, on an application moved by Muhammad Ghaffar, one of the petitioners, on the ground that since his counsel had died in the meanwhile, his absence oil the late of hearing was not intentional, by order of this Court, dated the 19th March, 1995, the dismissal order was set aside and the writ petition was restored to its original number but to the extent of Muhammad Ghaffar petitioner only.
4. Ms. Nahida Mehboob Elahi, Advocate, who represented the petitioner, contended that the Notification, dated the 18th July, 1972, whereby the pay scale of Octroi Clerks of Municipal Committee, Rawalpindi, was revised, was discriminatory and violative of Article 25 of the Constitution. It was explained that the Municipal Committee Rawalpindi (now Municipal Corporation) was a first class Municipality. In all other first class Municipalities, like Multan, Faisalabad and Sargodha, the pay scale of Rs.115--5--175 was made admissible to the Octroi Clerks from the 1st December, 1962 but in the case of Octroi Clerks of Municipal Committee, Rawalpindi, the said pay scale was made admissible from the 18th July, 1972. It was, therefore, urged that in order to have uniformity of pay scales in the whole of the Province, Octroi Clerks of Municipal Committee, Rawalpindi, should be paid the revised consolidated pay of Rs. 115--5--175 from the 1st December, 1962. She was also of the view that, since by virtue of Notification No. SO IV (LG)-RWP-1 (6)/70, dated the 18th July, 1972 which had amended the West Pakistan Municipal Committees (Grades of Pay) Rules, 1964, the enhanced pay automatically becomes admissible to the Octroi Clerks of Municipal Committee, Rawalpindi, from its inception. This contention is, however, without any force as it is a settled principle that unless the statute expressly so provides, no rule or notification issued under a statute can be enforced with retroactive operation (Faizullah Khan v. Government of Pakistan PLD 1974 SC 290). This rule has been reiterated by the Supreme Court in a recent decision in Hashwani Hotels v. Federation of Pakistan (PLD 1997 SC 315).
5. Opposing these contentions, learned counsel appearing on behalf of Municipal Committee, Rawalpindi and the learned Assistant Advocate-- General claimed that the writ petition had become infructuous as from the 7th July, 1996, the petitioner has already stands promoted as Inspector Octroi and is drawing salary in an enhanced scale. It is, however, clear that the present controversy relates to payment of revised consolidated pay scale to him as an octroi clerk from the 1st December, 1962, instead of from the 18th July, 1972. He is thus not claiming any enhancement in his present scale of pay but is demanding arrears for the period from the 1st December, 1962, to the 17th July, 1972, at the aforesaid revised consolidated scale. Accordingly, it does not the matter if the petitioner has been promoted to a post entailing higher pay scale.
6. In fact, the only question, which presently needs determination, is whether the petitioner is being treated with discrimination as compared to his counter-parts working in other municipal committees, which have also been given the status of first class municipalities. The system of local Government is based on the principle of self-rule in a specified area for managing the affairs of that area by the residents themselves or through their representatives. Municipal Committees and municipal corporations which are part of the same system provide representations to the people of the big cities and for providing, necessary facilities, like education, sanitation, roads, street-lights, recreation centres, etc. Such facilities are dependant upon resources of each city for which purpose the municipal committees and municipal corporations have been invested with the statutory powers to levy certain taxes and duties. The funds generated through these taxes and duties and expenditure thereof on the aforesaid facilities and the salaries of their employees vary from one municipality to another depending upon the population, size of a city, the number of business centres, factories located there and such other factors, including the quantity of goods brought in the city or taken out therefrom. For instance, a small city's municipal committee having a big industrial sector located within its municipal limits is likely to generate more funds through levy of octroi as compared to a municipal committee of a big city which have no such resources. In the case, of the former city, its municipal committee will be well within its rights to pay higher salaries and better fringe benefits to its employees than those, which are paid to the employees of a municipal committee of a big city having fewer sources of income. The employee of the latter municipal committee, therefore, cannot claim that they were being treated discriminatory in the matter of payment of salaries, which obviously have to commensurate with the availability of funds at the disposal of the municipal committee.
7. Each Municipal Committee or Municipal Corporation is a separate entity and its officials have to -be paid in accordance with its resources. No doubt the salaries of the employees of various corporations have been fixed under the West Pakistan Municipal Committee (Grades of Pay) Rules, 1964, issued by the Government of the Punjab by virtue of section 121 of the Municipal Administration Ordinance, 1960, but such scales are evidently issued in pursuance of the recommendations of the respective municipal committees or as the case may be, municipal corporations. From the scales as specified in the Rules for each municipal committee, it is clear that some of the smaller cities municipal committees such as Burewala and Bahawalnagar, are paying higher salaries to their octroi clerks while municipalities of big cities, like Bahawalpur and Montgomery (Now Sahiwal) are paying much less than the scale of Rs.115-5-175 to their employees performing similar duties. It is true that quite often the Provincial Governments provide financial assistance to the Local Governments from the to the, but because of such assistance the Provincial Governments are not under an obligation to enforce payment of enhanced salaries or give effect to the policy of uniform scales of salaries for all employees of the municipal committees or municipal corporations. : Primarily, it is the responsibility of the concerned municipal committees and municipal corporations to pay salaries to their employees from its own resources.
8. Even in I.A. Sherwani case, the Supreme Court has upheld the principle that the reasonable classification is permissible in payment of emoluments or other pensionary benefits. Such classification becomes all the more necessary where such emoluments are to be paid by each municipal committee or municipal corporation out of its own funds. Hence, when the Municipal Committee, Rawalpindi, had decided that it would pay to its octroi Moharrirs salary at enhanced consolidated scale of Rs. I 15-5-175 from the 18th July, 1972, and not from the 1st December, 1962, as was being paid by any other municipality to its octroi clerks, such action of Municipal Committee, Rawalpindi, cannot be regarded as discriminatory as the latter municipalities may have better financial resources than the Municipal Committee, Rawalpindi, In view thereof, interference of this Court would not be justified for enforcement of revised pay scale of octroi clerks from a previous date than the 18th July, 1997.
9. The present writ petition, therefore, being devoid of any force is dismissed with no orders as to costs.