1. IFTIKHAR MUHAMMAD CHAUDHARY, J.---In Constitutional Petitions Nos. 106, 123, 143, 175, 176 and 267 of 1998, points for determination are interconnected, therefore, we intend to dispose of them jointly by this common judgment.
2. Succinctly, the root cause of the edifice, is a Notification, bearing No, FD (R) 1-8/98/420-520, dated the 22nd April, 1998 issued by the Government of Balochistan, Finance Department. For reference the Notification in extensor, is reproduced herein below:-- GOVERNMENT OF BALOCHISTAN FINANCE DEPARTMENT Dated Quetta, the 22nd April, 1998 No, FD (R) 1-/8/98/420-520.--In supersession of this Department's Notifications No, FD (R) 1- 8/97/2857-2982, dated 10th December, 1997 and No, FD(R)1-8/97/3101-3220, dated 31st December, 1997 the Government of Baluchistan is pleased to sanction Agency Allowance 40% of running pay to all employees in B-1 to 17 posted/working in Zhob, Killa Saifullah, Musakhel, Barkhan, Loralai ( except Dukki Tehsil), Kohlu, Dera Bugti, Chagai (except Nushki Town) Districts and Compensatory Allowance @ 40% of running pay to all employees in B-1 to B-17 posted/working in Turbat (KECH), Punjgoor, Gawadar, Kharan, Kalat, Khuzdar, Mastung, Lasbella Awaran, Sibi, Ziarat, Pishin, Jhalmagsi, Bolan, Jaffarabad, Killa Abdullah, Dera Murad Jamali Districts, Dukki Tehsil and Nushki Town. The above allowances would be admissible w,e,f, 1st December, 1997, in lieu of following allowances only:--
(1) AGENCY ALLOWANCE sanmend vide No, FD(R)1-1-/70, dated 13-12-1974 and FD (R) 1-70/1972- 2072, dated 22nd July, 1992.
(2) COMPENSATORY (MEKRAN/KHARAN) ALLOWANCE sanctioned vide No, FD (R) 1-1/78, dated 18-6- 1978 FD (R)1-1/92-201-235, dated 28-1-1992.
(3) ADDITIONAL AGENCY/ADDITIONAL COMPENSATORY (MEKRAN/KHARAN/KALAT) ALLOWANCE sanctioned vide No, FD (R) 1-1-191, dated 12-1-1995 and No FD (R) 1-8-17101840, dated 16-10-1996. (Sd.) ATA MUHAMMAD JAFAR, SECRETARY, FINANCE."
3. As in accordance with the above Notification, Compensatory Allowance, at the rate of 40 % of running pay to the Employees of Quetta District in B-1 to B-17, was not granted, therefore, it generated dissatisfaction amongst the employees working in Quetta District, both civil servants as well as workers/workmen, thus, at a large scale, majority of the employees, including the members of Civil Secretariat, its attached Departments as well the Education Department (School Teachers) etc. started physical demonstration to launch a protest against the Provincial Government, by holding Public Meeting, as well as resorting to a strike, to impress upon the Provincial Government, that they be not discriminated by not allowing them Compensatory Allowance, which has been allowed to all other employees of different Districts, who are also working under same circumstances and conditions. In this regard, the employees constituted a Body, known as Baluchistan Mushtarka-Mulazmec. 'auction Committee, which consists of various Associations of civil servants, like Teachers, Associations, Clerks' Associations, Secretariat Staff Association and Unions, re interred under the Industrial Relations Ordinance, 1969. As such, through this body, they successfully got closed the Schools and Educational Institutions in Quetta District, due to which, innocent students could not attend their classes, as Teacher were on strike. Similarly, during strike the civil servants closed their offices, including the Provincial Civil Secretariat and mainly all other Attached Departments, as well as Para-medical Staff of Health Department, posted in different Medical Hospitals, situated in Quetta District. In fact, in other words, due to strike, general functioning of the Government Institutions, particularly the Institutions, referred to hereinabove, came to standstill. Although it was the duty of Government to have adopted adequate effective measures, for declaring the strike, uncalled for on resorting to relevant provisions of law, namely, Baluchistan Civil Servants (Efficiency and Discipline) Rules, 1992, as well as under the Industrial Relations Ordinance, 1969, but no timely action was taken, except reportedly registering cases against the demonstrators and causing their arrest. Under these circumstances, on 31st March, 1998, a citizen Abdul Nasir Baloch,invoked the jurisdiction of thing Court, by filinga Miscellaneous Application, requesting therein, that notice of illegal strike of the School Teachers be taken, to save the valuable time of the poor children, who have been prevented from attending their classes, as teachers have proceeded on strike. The application was treated as Constitutional petition and was registered as C.P. No, 106/1998. Accordingly notices were issued to the prominent Teachers Associations, on obtaining details from the Director Education. Simultaneously, Chief Secretary,--, Secretary, Education and Director, Education were asked through Advocate-General, to convene a meeting, so as to find out the ways and means, for prohibition of the strike and agitation, going on at present, in order to get opened the schools at the earliest. In pursuance of such directions, the Representatives of the Teachers' Associations made a commitment that there would be no hurdle, in any manner in the education of children in the schools throughout the province and every teacher, irrespective of his concern with any Union/Association, will perform his duty and in case of failure on the part of anyone of them, his services will be liable to be terminated, in accordance with law. The commitment Memorandum duly signed by all of them, was also placed on record. At this stage, it may be noted, that as per the information collected by Secretary, Education, the Teaching Staff in B-7 to B-16 Grades, was partially on strike, but the schools were opened, as staff of B-17 and above, were on duty. Thus, orders were issued to the teachers to call-off the rike/agitation/protest/demonstration, which they have launched against the Government, for pressing their demand and to positively join their duty with effect from 17th April, 1998. The Headmasters/Incharges of all Schools, functioning throughout the Province, particularly in Quetta District, were also directed to ensure the opening of schools and to monitor; whether all the teachers have attended their duty respectively and have taken the classes regularly? They were also directed that if any one of them fails to do so, it will be their duty to report the matter to the next immediate officer in writing, who in term would bring such matter in the notice of competent Authority, for initiating action under the relevant provisions of Balochistan Civil Servants (Efficiency and Discipline) Rules, 1992. The District Magistrates were also directed to extend full cooperation to the Headmasters of the Schools in opening and running of schools smoothly, with further directions that if any hurdle is caused by any of the members of the Association/Union of Teachers or their Office-Bearer, they will report the matter to the Registrar of this Court, etc. To monitor the functioning of the schools, a Committee, comprising of Additional Chief Secretary, Secretary Home, Secretary Education and Inspector-General of Police, was also constituted, Ara consequence of this order, the teachers called off the strike and the schools started functioning. In order to examine the legal character of the Teachers Associations, their Constitutions, Bye-laws, and details of members etc. were also collected.
4. As soon as the order passed in C.P. No, 106 of 1998, against the School Teachers to call-off the strike and assume their duties was implemented, another citizen namely Muhammead Afzal, instituted a petition, which was registered as C.P. No, 123 of 1998, wherein, he pointed out the difficulties and problems of the general public, being faced by them, on account of illegal strike in the Civil Secretariat, particularly mentioning the fact that Mushtarka-Mulazmeen Action Committee had given a call of shutter-down, in Quetta on 29th April, 1998 and stated that if they will succeed in doing so, it would cause multiple problems for the general public. Accordingly, office-bearers of Mushtarka-Mulazmeen Action Committee, along with office-bearers of other Employees Unions including President, QDA Employees Union, President, Baluchistan Labour Federal, President, All Pakistan Secretariat Employees Co-ordination Union, President, Secretariat Staff Association etc. were summoned besides the Officers of Local Administration and after providing hearing to all concern. The employees of the Civil Secretariat and its Attached Departments, were directed to call off the strike immediately and assume their respective duties with effect from 29th April, 1998.
5. Simultaneously prohibition order for general strike in the city i,e, shutter down of the Trade Business Centers was also issued. It was also observed that the Government may take a decision for releasing salaries of the employees, who have not attended their duties, for one or the other reason for the month of April, 1998, subject to implementation/obedience of the Court order, as well as any action, if Government decided to take against them under the relevant provisions of Baluchistan Civil Servants (Efficiency and Discipline) Rules, 1992. This order was accordingly implemented and the employees called off the strike and joined their duties. Simultaneously the Provincial Government also released their salaries respectively.
6. Later on, Abdul Sattar Baloch, General Secretary, Agriculture Workers Union, Baluchistan, Muhammad Sadiq Khamosh and Muhammad Hassan, General Secretary, All Pakistan Clerks'
7. Association, Pakistan Tourism Department, Culture Unit, Quetta, Khair Muhammad Sumalani President, Quetta Municipal Corporation, Mehantkash Union and Khair Muhammad Shaheen, President, Balochistan School Teachers Union, Quetta, submitted Miscellaneous applications, which were registered as Constitutional Petitions 143, 175, 176 and 267 of 1998 (Last named petitioner has filed a Constitutional Petition within the meaning of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973). In all the petitions, they prayed that the employees, working in Quetta District are also entitled for 40% Special Consolidated Allowance of running pay with effect from 1st December, 1997 respectively. As the claim set out in these petitions was related to the strike by the employees in Quetta District, therefore, these matters were also ordered to be heard alongwith C.Ps. Nos.106 and 123 of 1998.
8. There is yet another petition being C.P. No, 185 of 1998, the facts of which are not relevant nor the relief claimed therein is identical with above petitions, therefore, we intend to dispose it of separately, by passing appropriate orders.
9. As in instant matter. important questions of public interest litigation, were involved, therefore, we asked Messrs Tahir Muhammad Khan, M. Riaz Ahmad, Tariq Mehmood, H. Shakeel Ahmad, Mrs. Ashraf Abbas, Salahuddin Mengal, Sarwar Javed, Ayaz Sawati and Mumtaz Yoiisaf Chaudhry, Advocates, to assist the Court.
10. In view of the controversy involved in these petitions, following points emerge for determination:--
(i) Whether under Article 17 of the Constitution of Islamic Republic of Pakistan 1973, a right of strike, go slow/lock-out has been conceded to Provincial Civil Servants under any Statutory Provision, and if not, what would be the effect of strike, which they observed, to press the Government for acceding to their demand of paying 40 % Compensatory Allowance to them in terms of under- consideration Notification, dated 22nd April, 1998?
(ii) Whether the workers/workmen defined under Factoriei Act and Workmen's Compensation Act. working in Quetta District, being employees of Provincial Government, have resorted to strike, for pressing the demand of payment of 40% Compensatory Allowance, in accordance with the Industrial Relations Ordinance, 1969? and (iii)Whether the Provincial Employees (both civil servants as well as workers/workmen) discharging duties in Quetta District, have been discriminated, in not allowing them 40% Compensatory Allowance, in terms of Notification, dated 22nd April, 1998?
11. Learned counsel appearing as amicus curiae as well as Malik Sikandar Khan, learned Advocate- General, conceded that the civil servants, functioning in Civil Secretariat and its attached Departments,. including the Teachers and Para-medical Staff, working either in Quetta District or anywhere else in the Province, have no right to resort to strike, go slow/lock-out for impressing upon the Government, to accept their any demand. In this behalf all of them have placed reliance on the judgment reported in PLD 1997 SC 781 (Civil Aviation Authority, Islamabad and others v. Union of Civil Employees and another).
12. Mr. K.N. Kohli, learned counsel for Government Teachers' Association, argued that relief in this behalf, cannot be granted to the Citizens Abdul Nasir Baloch and Muhammad Afzal, in C.Ps. 106 and 123 of 1998 respectively in exercise of Constitutional Jurisdiction under Article 199 of the Constitution; because in such-like situation, it was the duty of the Government, to have taken action against the employees, who were on strike, to press their demand, in view of Rule 9(d) of Balochistan Civil Servants (Efficiency and Discipline) Rules, 1983 and under I.R.O., 1969.
13. We have carefully examined the respective contentions of parties counsel. Although in view of unanimity amongst them, on the point, that the civil servants, defined under section 2(b) of the Balochistan Civil Servants Act, 1974 have no right, guaranteed, to go for strike, lock-out or go slow, for pressing their demands, in view of the judgment delivered in the case of Civil Aviation Authority, Islamabad, by Hon'ble Supreme Court, but simultaneously. Yet there is another question. which crops up for consideration, namely; with reference to the status of Provincial Civil Servants. Is there any statutory law, which restricts them to observe strike or launch agitation etc. and whether such employees on formation of association, can protest against the Government. in support of their demand and if the Government for one or the other reason, did not agree to redress their grievance, then in such situation, what remedy would be available to them? In this context it may be observed that Hon'ble Supreme Court, in the cited judgment (Civil Aviation Authority, Islamabad) examined in detail, the provisions of Article 17 (1) of the Constitution, besides undertaking a detailed survey of corresponding provisions different Laws including Industrial Relations Ordinance, 1969, as well as precedents/reported judgments, pronounced by superior Courts functioning in the country and few judgments from the jurisdiction across the border, including the report in the case of O.K. Ghosh and another v. Ex-Joseph (AIR 1963 SC 812). It may be noted that in the case of Civil Aviation Authority, the principal questions for consideration were; whether the Civil Aviation Authority had a right to form a Trade Union and restriction placed upon by Regulations 6.22 and 6.26 were ultra vires of Article 17 of the Constitution, as well as the Unions of the Employees of Television Corporation and Pakistan Broadcasting Corporation, can function as Union by virtue of Article 17 (1) of the Constitution and whether can act as Collective Bargaining Agent, which might inhere in a Union? The Honorable Supreme Court to attend these two questions interpreted the provisions of Article 17 of the Constitution, in the light of judgment, which were available on the subject, particularly from the Indian jurisdiction, because Article 19 of their Constitution is corresponding to Article 17 of our Constitution. The Hon'ble Supreme Court pointed out that clause (1) of Article 17 of the Constitution, gives a right to every citizen to form an Association or Union, subject to any reasonable restriction imposed by law in the interest of sovereignty or integrity of Pakistan or public order or morality, and after perusing the definition of the orders restrict and restriction held that the predominant meaning of said words do not admit total prohibition. They connote the imposition of limitations or the boundaries within which, one can act and there cannot be total prohibition, but the right can be regulated and restricted by law if any of the above four ingredients is present. Thus, from the observations of Humble Supreme Court, this can be deduced that as for the Provincial Civil Servants are concerned in exercise of their right, guaranteed by Article 17 (1) of the Constitution, they can form Association or Union, subject to any reasonable restriction, imposed by law in the interest of A sovereignty, or integrity of Pakistan or public order or morality. At this juncture, reference to the judgments in the case of Ghameshwar Prasad and others v. The State of Behar and another (AIR 1962 SC 1166) and O.K. Ghosh and another, Ex-Joseph (AIR 1963 SC 812) would not be out of context, as in both the judgments, the Hon'ble Supreme Court of India, declared that Government servants are prohibited from participation in strikes. It may be seen that in Article 17(1) of the Constitution, freedom of forming an Association or Union, is subject to reasonable restriction imposed by law, in the interest of sovereignty or integrity of Pakistan Public Order or morality. In this context, reference to the definition of word 'misconduct' as given in Rule 2(f) of Balochistan Civil Servants (Efficiency and Discipline) Rules, 1992 would be beneficial, according to which, 'misconduct' means conduct prejudicial to good order or service discipline or contrary to the Balochistan Government Servants (Conduct) Rules, 1979, or unbecoming of an officer and a gentleman and includes and act on the part of a civil servant to bring or attempt to bring political or other outside influence directly or indirectly to bear on the Government or the Minister or any Government Officer in respect of any matter relating to the appointment, promotion, transfer, punishment, retirement or ether conditions of service of a civil servant. Thus, a plain definition of the word 'misconduct' suggests that the civil servant is not authorized to indulge in such activities, which are prejudicial to good order or service discipline.
14. Obviously, resorting to a strike by the civil servants would be prejudicial to good order or service discipline, because on having decided to resort to strike, go slow or lock-out, they would not be obeying the good orders of their superiors and while denying to perform his/their duty, they would be absenting themselves from the duty and their such conduct, would be unbecoming of an officer and a gentleman. Therefore, on account of such restriction civil servants cannot be allowed to resort to strike, go slog or lock-out for pressing their demands nor they can be allowed to do agitation, in such a manner, which is not accepted from a good officer or a gentleman, because if such activities are, allowed in Government Officers, there would be no discipline in service structure, amongst the seniors and subordinates, as in the instant case, admittedly majority of the civil servants of Secretariat and its attached departments as well as the School Teacher from Grades 7 to 16. C Working at different places in Government Departments, were on strike and on account of their such activity, they have not been performing their duties, essentially in utter disregard of their responsibilities and in complete disobedience of the good order of service as well as public order and even being a Government servant, it was against morality to resort to strike, at the cost of public, as due to their such act, the functioning of the Officers as well as schools, and other institutions, had totally paralyzed. Thus, we are inclined to conclude that though the civil servants have freedom to form an Association or Union, under Article 17(1) of the Constitution of Islamic Republic of Pakistan but they have no legitimate right to resort to strike, go slow or lock-out, in view of the restriction imposed by Baluchistan Civil Servants (Efficiency and Discipline) Rules, 1992, to press the Provincial Government for acceding to their demands. However, they can agitate their claims or grievances before legal competent forums.
15. There is yet another question of consideration in view of the objection raised by Mr. K.N. Kohli, learned counsel for Government Teachers' Association that no relief of declaring the strike of the civil servants of the Provincial Government, as illegal, can be passed in exercise of Constitutional jurisdiction, because according to him under Rules 9(d) of Balochistan Civil Servants (Efficiency and Discipline) Rules, 1983, it was the duty of the Government or the Authority, to have initiated action against the employees, who were on strike and as the Government has not taken any such action, therefore, indirectly this responsibility cannot be fulfilled by this Court.
16. It is to be seen that instant petitions have been instituted, on behalf of the public, who were directly being affected on account of the strike by the school teachers and in the Civil Secretariat, as the future of their children was at stake, and they were also facing difficulties due to non-functioning of the Government Offices, thus, the fundamental rights of the public, guaranteed under the Constitution, were being denied, as such, for the enforcement of such rights, jurisdiction under Article 199(1)(c) of the Constitution can be exercised, as in the instant case, the Government servants, being functionary, responsible to run the affairs of Provincial Government, have denied to perform their duties, therefore, the petitioners have rightly approached this Court by availing a speedy remedy. In addition to it relief in the given circumstances of case, cannot be denied to petitioners for any technical reason, in view of the observations of Horeble Supreme Court in the case of I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others (1991 SCMR 1041). Relevant paras. are reproduced as under:-- "12. Adverting to Ch. Ejaz Ahmed's contention that the above two petitions filed by the two Associations are not competent, it may be observed that in furtherance of his above submission he has urged that since the proceedings under clause .(3) of Article 184 of the Constitution are similar to that of under Article 199 before a High Court, the same being civil proceedings, are subject to the application of C.P.C. and hence the above two associations could not have filed the above two petitions without complying with the provisions of Order 1, Rule 8, C.P.C. Reliance was placed by him on the case of Hussain Baldish v. Settlement Commissioner, Rawalpindi and others (PLD 1970 SC 1), in which this Court, while dealing with the question, whether the C.P.C. was applicable to Constitution petition under Article 98 of late Constitution of Pakistan, 1962, held that they were civil proceedings and as such were governed by the provisions of the C.P.C. except those provisions which have been specially excluded. It may be observed that Order 1, rule 8, C.P.C. deals with filing of a representative suit and contemplates obtaining of permission from the Court for filing of such a suit and service of the notice by a public advertisement etc. It also provides that any person desiring to become a party to such a suit, may apply for being impleaded as a party. In our view the provisions of Order 1, Rule 8, C.P.C. have no application to the instant cases as we are inclined to hold that this Court can take cognizance of any matter under clause (3) of Article 184 of the Constitution if it involves a question of public importance with reference to the enforcement of any Fundamental Rights conferred by Chapter 1 of Part II at the behest of an individual person or a group of persons represented through an association or a political party. The above question has been the subject-matter of discussion in the case of Miss Benazir Bhutto v. Federation of Pakistan and another (PLD 1988 SC .416), in which Muhammad Haleem, CJ, made the following observation on the above aspect:-- 'The plain language of Article 184(3) shows that it is open ended. The Article does not say as to who shall have the right to move the Supreme Court nor does it say by what proceedings the Supreme Court may be so moved or whether it is confined to the enforcement of the Fundamental Rights of an individual which are infracted or extends to the enforcement of the -rights of a group or a class of persons whose rights are violated. In this context the question arises whether apart from the non-incorporation of sub-Articles 1(a) 1(c) of Article 199, the rigid notion of an 'aggrieved person' is implicit in Article 184(3) as because of the additional litigation which of course, is of any adversary character where there is a lis between two contesting parties, one claiming relief against the other resisting the claim. This rule of standing is an essential outgrowth of Anglo-Saxon Jurisprudence in which only the person wronged can initiate proceedings of a judicial nature for redress against the wrongdoer. However. in contrast to it, this procedure is not followed in the civil law system in vogue in some countries. The rationale for this procedure is to limit it to the parties concerned and to make the rule of law selective to give protection to the affluent or to serve in aid for maintaining the status quo of the vested interests. This is destructive of the rule of law which is so worded in Article 4 of the Constitution as to give protection to all citizens. The inquiry into law and life cannot be confined to the narrow limits of the rule of. law in the context of constitutionalism which makes a greater demand on judicial functions. Therefore, while construing Article 184(3), the interpretative approach should not be ceremonious observance of the rules or usage of interpretation, but regard should be had to the object and the purpose for which this Article is enacted, that is, this interpretative approach must receive inspiration from the triad of provisions which saturate and invigorate the entire Constitution namely, the Objectives Resolution (Article 2A), the Fundamental Rights and the Directive Principles of State Policy so as to achieve democracy, tolerance, equality and social justice according to Islam.'
13. Even otherwise, the above proceedings are in the nature of public interest litigation and, therefore, in order to advance the cause of justice and public good, the power conferred on this Court under clause (3) of Article 184 of the Constitution is to be exercised liberally unfettered with technicalities. In this regard, reference may be made to the case of D.S. Nakara and others v. Union of India (AIR 1983 SC 130), on which Mr. Samdani has heavily relied upon in support of his case on merits and in which- inter alia the following observations have been made in para. 64 of the judgment on the point in issue, which read as follows:-- '64. Locus standi of third petitioner was questioned. Petitioner No,3 is a Society registered under the Societies Registration Act of 1860. It is a non-political, non prota and voluntary organization. Its members consist of public spirited citizens who have taken up the cause of ventilating legitimate public problems. The Society received a large number of representations from old pensioners, individually unable to undertake the journey through labyrinths of legal judicial process, costly and protected and therefore, approached petitioner No,3 which espoused their cause. Objects for which the third petitioner-Society was formed were not questioned. The majority decision of this Court in S.P. Gupta v. Union of India, 1981 (Supp) SSC 87): (AIR 1982 SC 149 at p.194), rules that any member of the public having sufficient interest can maintain an action for judicial redress for public injury arising from breach of public duty or for violation of some provision of the Constitution or the law and seek enforcement of such public duty and observance of such Constitutional or legal provision. Third petitioner seeks to enforce rights that may be available to a large number of old infirm retirees. Therefore, its locus standi is unquestionable. But it is a point of academic importance because locus standi of petitioners Nos. 1 and 2 was never questioned' ."
17. It is to be seen that under Article 184 (3) and Article 199 of the Constitution, the Humble Supreme Court and the High Court, respectively, are competent to enforce fundamental rights conferred by Chapter-II, Part-I of Constitution, therefore, on same analogy, apart from any technicality, the High Court under Article 199 of the Constitution, is equally competent to pass appropriate direction to Functionaries of the Provincial Government, for the enforcement of fundamental rights.
18. Undoubtedly, a strike on behalf of the workers7workmen, is only permissible, subject to following the procedure laid down in Industrial Relations Ordinance, 1969. At the time of hearing, nothing was brought on record on behalf of the workers/workmen other than the civil servants, working in various Organizations of the Provincial Government, that before restoring to a strike, they adhered to the procedure laid down under sections 26 to 33 of the I.R.O. Therefore, in such view of the matter, strike on their behalf as well, was illegal.
19. Mr. Tariq Mehmood, learned amicus curiae contended that the Provincial Government by denying 40% Compensatory Allowance to the employees, working in Quetta District, has violated Article 25 of the Constitution, because they have been discriminated, without rational classification, comparing to the employees of Provincial Government working under same set of circumstances in other twenty-five Districts of the Province. Therefore, in absence of any reasonableness, the employees of Quetta District, deserve for equal treatment and protection of law. Reliance was placed by him on AIR 1998 SC 1291, 1995 CLC 1047 and 1995 SCMR 879.
20. Mr. K.N. Kohli, learned counsel for Government Teachers Association, also canvassed that employees of Quetta District have been discriminated by the Government. in denying them 40% Compensatory Allowance and such act is in violation of Articles 4 and 25 of the Constitution. To support his contention he relied on 1990 CLC 136, 1991 CLC 13, 1991 SCMR 1041, 1992 CLC 219; PLD 1993 SC 375; 1993 SCMR 833 and unreported cases in Civil Appeal No, 947 of 1994 decided by Hon'ble Supreme Court on 25th March, 1998. C.P No,43 of 1994, decided by this Court on 14th December, 1994 and Civil Petition for Leave to Appeal No,32-Q of 1995, against the judgment of this Court, decided by Hon'ble Supreme Court on 26th June, 1995.
21. Mr. Azam Jan Zargoon, learned counsel in C.P. No, 267 of 1998, adopted the arguments, put forth by Messrs Tariq Mehmood and K.N. Kohli, Advocates. However, he further added that definition of word pay in section 2(d) of. the Balochistan Civil Servants Act. 1974, also includes the Allowances, therefore, according to him the employees of petitioners' Association and other employees of the Provincial Government, working in Quetta District are entitled for the compensatory allowance and there should not be any discrimination with them, comparing to the employees, who are of equal status, but discharging their duties in the District, other than Quetta. To support his view-point, he relied on PLD 1987 SC 304.
22. Mr. Ayaz Swati, learned amicus curiae, stated that his arguments are same, which have been addressed by other learned Advocates, with an addition, that under Article 38(c) of the Constitution, it is the duty of State/Government to equitable adjustment of rights between the employer and the employees, therefore, in view of such provision, the Government has no lawful authority to discriminate with the employees, who are working in Quetta District. He placed reliance on 1993 SCMR 1533.
23. Mr. Salahuddin Mengal, learned Advocate, who appeared as amicus curiae, made reference to Al Qur'an LV:7-9) and to the Last Sermon delivered by the Holy Prophet (peace be upon him). and stated that principle of equality amongst all citizens enshrined in Article 25 of the Constitution, has been recognized by the Islam, as the Holy Prophet (peace by upon him), has declared that there is no superiority for an Arab over non-Arab and for a non-Arab over an Arab nor for the white over the black nor for the black over the white, except in God consciousness. Therefore, according to learned counsel, in view of the teachings of our Religion employees of Quetta District are entitled for equal treatment as is being given to the employees of other twenty-five Districts of the Province by allowing them 40% Compensatory Allowance.
24. Malik Sikandar Khan, learned Advocate-General contended that the petitioners in C.Ps. 143, 167, 175 and 267 are not aggrieved persons. therefore, petitions filed by them, are not maintainable. He further submitted that no sooner any one of the Provincial employees, presently working in Quetta DiStrict is transferred to any other District, he would be entitled automatically to 40% Compensatory Allowance, therefore, for such reasons as well, the petitioners are not maintainable.
25. On our query, he under instructions, from the Representative of the Finance Department, informed that presently in Quetta District there are good number of employees and from the date of promulgation of Notification, dated 22nd April, 1998, uptil now, no one amongst them, has been transferred and he frankly conceded at bar that the Government employees are so influential that it is not possible to transfer them. outside Quetta District.
26. In our opinion, the objection so raised by learned A.-G. is not entertain able, because the petitioners have not instituted these petitions in their personal capacity, but being the Representatives of the Associations or Workers, detailed herein below:-- S. No.Number of petition Name of petitioner Name of Association/Union
1. 143 of 1998 Abdul Sattar Baloch General Secretary, Agriculture Workers Union, Balochistan
2. 175 of 1998 (i) Muhammad Sadiq Khamosh.
(ii) Muhammad Hassan.President Unit Culture Tourism, Quetta.
27. General Secretary, All Pakistan Clerks Association, Pakistan Tourism Department, Culture Unit, Quetta.
3. 176 of 1998 Khair Muhammad Sumalani President, Quetta Municipal Corporation, Mehnatkash Union, Quetta.
4. 267 of 1998 Khair Muhammad Shaheen President, Balochistan School Teacher's Union Quetta. As it has already been held hereinabove that the Provincial Employees being citizens have freedom to form an Association and Union, therefore, in representative capacity, they have instituted these petitions for enforcement of fundamental rights of the Provincial Government employees, working in Quetta District, guaranteed by Article 25 of the Constitution, as such, in view of the dictum laid down in this behalf, by Hon'ble Supreme Court, in the case of I.A. Sharwani (1991 SCMR 1041), relevant paras. wherefrom have been reproduced hereinabove, we are inclined to hold that petitioners are aggrieved persons and they have also locuk standi, being the Representative of their respective Unions and Associations, to institute present petitions for claiming relief in terms of Article 25 of the Constitution, therefore, the objection raised in this behalf by the learned Advocate- General, is overruled.
28. On merits, learned Advocate-General, contended that the employees of the Provincial Government. posted in Provincial Headquarter, have built-up of permanent habit to avoid their transfers outside Quetta District, therefore, an incentive in shape of 40% Compensatory Allowance was given to the Employees, who are discharging their duty in the other Districts. Therefore, on basis of such reasons, a rational classification amongst the employees was done and in doing so, there was no mala fide on the part of Government nor any discrimination has been done with the employees, working in. Quetta District, because, the set of circumstances in which they are working is different, from the set of circumstances of employees, who are working outside the District, as the facilities available to the employees working in Quetta District, are not available to the employees, working in other backward Districts in far-flung areas, like Pasni, Gawadar, Dera Bugti, Kohlu, Zhob, Musakhel etc. Therefore, keeping in view these facts, in the Notification, dated 22nd April, 1998, the Provincial Government employees, working in Quetta District were not included for 40% Allowance.
29. He contended that reasonable classification amongst the citizens is not forbidden, in view of Article 25 of the Constitution. He further argued that Government in fact is inclined to accommodate the employees of Quetta District as well, by granting them 40% Compensatory Allowance, but on account of financial constraints, for the time being, it is not possible, but no sooner the financial position of the Government improves, they will be accommodated. In continuation of this argument he stated that as per instructions of the Finance Department, on allowing 40% Compensatory Allowance, to the Provincial Government employees working in the Districts, other than Quetta, the Provincial Government is incurring additional expenditure of 320.00 million per annum, and if this Allowance at this stage, is granted to the employees, working in Quetta District, then the Government has to incur further addition expenditure of Rs,370 million per annum. As such, for the time being, the Provincial Government has kept their demand pending on the last Cabinet meeting. In support of his arguments, learned A.-G. relied on AIR 1998 SC 1291 (This judgment has also been referred to by Mr. Tariq Mehmood, Advocate), AIR 1989 SC 29, 1996 SCMR 818 and PLD 1998 SC 1445.
30. On careful consideration of the contentions, put forth by all the concern parties, their counsel as well as learned amicus curiae, it is evident that the principal question in this behalf would be; whether employees of the Provincial Government working in Quetta District, are entitled for equal treatment, in payment of 40% Compensatory Allowance, which has been allowed by Balochistan Provincial Government, to its employees, working outside the Quetta District, in view of the Article 25 of the Constitution, which has guaranteed rights to all citizens of Pakistan of equality before law and equal protection of laws? It would be appropriate to reproduce herein-below Article 25 of the Constitution:-- "25. Equality of citizens.--(1) All citizens are equal before law and are entitled to equal protection of law.
(2) There shall be no discrimination on basis of sex alone.
(3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children."
31. It is noteworthy that research work, on the subject of equality of all citizens before law and equal protection of law, reveals that this principle contains its origin, in the Holy Our'an as well as in Last Sermon delivered by Holy Prophet (peace be upon him). In this context, in the case of Government of Pakistan through Secretary, Ministry of Religious Affairs, Islamabad and 3 others v. Zafar Iqbal and 3 others (1992 CLC 219) (Lahore) authored by Mr. Justice Mian Allah Nawaz, his lordship noted few Verses of Holy Qur'an (Al-Qur'an IV: 135) and (Al-Qur'an LV: 7-9) as well as Last Sermon delivered by Holy Prophet (peace be upon him) and on basis thereof, concluded as under:-- 'From the foregoing examination, it is crystal clear that Islam fosters the concept of ,equality and condemns distinction on the basis of power, wealth and worldly acquisition. The Holy Qur'an teaches the human beings to seek Divine assistance in repentance and awe, asks for allegiance to God Almighty without any distinction of colour, creed, race and poverty.
32. 'These concepts filtered into Europe through Spain during the period of Renaissance and become foundation of their Constitutional evaluation in those countries in form of Magna Carta, the declaration of human rights by U.N.O. and fundamental right in the Constitution of the United States."
33. Prior to this judgment, Mr. Justice Saleem Akhtar, as then he was, being Senior Member of a Division Bench, in the case of Pakistan Petroleum Workers' Union through its General Secretary v. Ministry of Interior through its Secretary. Islamabad and another (1991 CLC 13) had also referred the extracts from the Farewell Sermon, delivered by Holy Prophet (peace be upon him) and concluded that this Islamic Principle of equality before law and equal protection of law has been embodied in Article 25 of the Constitution. It is also advantageous to note, that Golden Principle of equality was later on adopted in the United States of America in its Fourteenth Amendment to the Constitution of the United States which was intended to secure to the emancipated negroes equal rights to the employment of life, liberty and property and so was the position in the Constitutional Documents of other Western Countries, including reference of this principle in Magna Carta, as well as in the United States Human Rights Charter.
34. Judicially the principle of equality before law and equal protection of law has been largely interpreted, both by the Indian superior Courts as well as the Hon'ble Supreme Court of our Country, holding; that Law-givers are prohibited to do legislation for a class, but there is no prohibition for rational classification. In this behalf, reference can be made to AIR 1951 SC 41 (Charanjit Lal Chaudhry v. The Union of India and others), AIR 1951 SC 318 (The State of Bombay and another v. F.N.
35. Balsara), AIR 1952 SC 235 (Lachamandas Kewalram and another v. The State of Bombay), PLD 1957 SC (Pak.) 9 (Jibendra Kishore, etc. v. The Province of East Pakistan etc.), AIR 1957 SC 157 ( Waris Meah v. The Estate and another), AIR 1957 SC 503 (Asgharali Nasarali Singaporewalla v. State of Bombay), PLD 1957 Karachi 1 (Zain Noorani v. Secretary of the National Assembly of Pakistan), PLD 1957 Peshawar 100 (Khan Abdul Akber Khan v. The Deputy Commissioner of Peshawar and others), PLD 1957 Quetta 1 (Toti Khan v. District Magistrate, Sibi and Ziarat; AIR 1958 SC 538 (Ram Krishna Dalmia v. Justice Tendolkar), PLD 1965 Lahore 229 (Malik Muhammad Usman v. The State and another), PLD 1975 SC 506 (F.B. Ali v. The State), 1990 CLC 136 (Mubarak Ali Khan and 7 others v. Government of Punjab through Secretary Finance) and 1991 SCMR 1041 (I.A. Sherwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others). From the last-mentioned judgment, broad principles concerning equal protection of law and reasonableness of classification are reprodueed herein below:-- "26. From the above-cited cases the following principles of law are deducible:--
(i) That equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike;
(ii) that reasonable classification if permissible but it must be founded on reasonable distinction or reasonable basis;
(iii) that different laws can validly be enacted for different sexes, persons in different age groups, persons having different financial standings, and persons accused of heinous crimes; (iv)that no standard of universal application to test reasonableness of classification can be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances;
(v) that a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25; (vi)that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed;
(vii) that in order to make a classification reasonable, it should be based--
(a) on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out; (b)that, the differentia must have rational nexus to the object sought to be achieved by such classification."
36. The above judgment is being followed consistently, inasmuch as, the same was also relied upon in the case of Muhammad Shabbir Ahmed Nasir v. Secretary, Finance Division, Islamabad and another (1997 SCMR 1026 and in the latest judgment of Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1445). While making reference to the various judicial pronouncements on the subject, it would equally be important to make reference in this behalf, to a renowned Book on 'Fundamental Law of Pakistan by Mr. A.K. (1958 Edition), pages 354, 355, which reads as under:-- "The guarantee of the equal protection of the Laws means the protection of equal laws. It forbids class legislation, but does not forbid classification which rests upon reasonable grounds of distinction. It does not prohibit legislation, which is limited either in the objects to which it is directed or by the territory within which it is to operate. 'It merely requires that all persons subjected to such legislation shall be treated alike under like circumstances and conditions both in the privileges conferred and in the liabilities imposed. The inhibition of the Amendment was designed to prevent any person or class of persons from being singled out as a special subject for discriminating and hostile legislation. It does not take from the State the power to classify either in the adoption of the police laws or tax laws, or eminent domain laws, but permits to them the exercise of a wide scope of discretion, and nullifies that they do only when it is without any reasonable basis, Mathematical nicety and perfect equality are not required. Similarity, not identity of treatment, is enough. If any state of facts can reasonably be conceived to sustain a classification, the existence of that state of -facts must be assumed. One who assails a classification must carry the burden of showing that it does not rest upon any reasonable basis ...Many different classifications of persons have been upheld as constitutional. A law applying only to one person or one class of persons is Constitutional if there is sufficient basis or reason for it."
37. It is also important to note that Hon'ble Supreme Court in the case of Jibendra Kishore, etc. (PLD 1957 SC 9), has laid down followiqg principles of equal protection of law:--
(i) Equal protection of the laws means that no person or class of persons shall be denied that same protection of the law which is enjoyed by other persons or other classes in like circumstances, in their lives, liberty and property and in pursuit of happiness;
(ii) the guarantee of equal protection of the laws requires that all persons shall be treated alike circumstances and conditions, both in the privileges conferred and in the liabilities imposed;
(iii) classification of persons or things is in no way repugnant to the equality Doctrine provided the classification is not arbitrary or capricious, is natural and reasonable and bears a fair and substantial relation to the object of the legislation; and (iv)Legislature is not supposed to be scientifically accurate in the classification and if the classification is relevant to the object of the Act it must be upheld unless the relevancy is too remote or fanciful.
38. As we have observed that Humble Supreme Court in the case of I.A. Sharwani, while laying down the broad principles of equal protection of law has also declared that to make a classification reasonable, it should be based on an intelligible differentia, which distinguishes persons or things that are grouped together from those who have been left out and the differentia must have rational nexus to the object sought to be achieved by such classification. In more simple words; the reasonable classification can be the same, which will be favored rationally by an intelligent and just minded civilian person.
39. This discussion takes us to determine; whether the Government of Baluchistan, had omitted to grant 40% Compensatory Allowance to the Provincial Government employees of Quetta District, on following any of the above-quoted principles?
40. In this behalf, it may be seen that no detailed counter-affidavit has been filed on behalf of the Finance Department, Government of Baluchistan, to justify that denial of this Allowance to the subject Employees, is based on reasonable classification, comparing to employees of other Districts, except filing comments in C.P. No, 267 of 1998, but there too, no specific stand in this behalf was taken, and it has only been stated that the Agency/Compensatory Allowance was being drawn by the Employees of the area at different rates ranging from 10% to 40% of running pay, without any limit, with effect from 1st February, 1997. In this context, it may be noted that prior to issuance of impugned Notification, the Government of Baluchistan vide Notification No,FD(R) 1- 8/97/2857-2982, dated 10th December, 1997, decided to allow Special (Consolidated) ) Allowance at the rate of 40% of running pay to all the Employees in B.P.S. (1 to 17) throughout Baluchistan, except Quetta District, in lieu of the compensatory Allowance, sanctioned from time to time w,e,f, 30th February, 1970. to onward, in respect of the employees of different areas and the Departments.
41. A perusal of said Notification also indicates that no reason was assigned, as to why. the Employees of Quetta District have been singled out, denying them the Compensatory Allowance, In absence of any material available on record, it is not understandable, as to why the earlier Notification, referred to hereinabove was rescinded, by the Notification under discussion i,e, of 22nd April, 1998, but from its perusal, one can gather that the special (Consolidated) Allowance was bifurcated into two Allowances, namely Agency Allowance, which was permissible to the employees, who are working in the Provincially Administered Tribal Areas, whereas the Compensatory Allowance was made permissible to the Provincial Government Employees of other Districts, except Quetta District and in this Notification, all earlier Notifications were cancelled, including the Notification of 10th December, 1997. As far as the Provincial Government Employees, working in Quetta District, are concerned, they cannot claim Agency Allowance, because Quetta is not a Provincially Administered Tribal Area. Howevel, they can put forth their claim for Compensatory Allowance. To deny this Allowance to the employees, working in Quetta District, it was incumbent upon the Provincial Government to have shown plausible reasons, by submitting a counter-affidavit to any of these petitions, indicating, that the employees of other Districts have been grouped together, because their service conditions or circumstances are alike, on account of which, their entitlement is distinguishable and the reasons so prevailed upon the Government, favours to a just-minded person rationally. As regards the oral submission of learned Advocate-General that in order to give an incentive to the employees to work outside Quetta District. They have been given 40% Compensatory Allowance, it is not acceptable for the reasons that Provincial Government Employees having corresponding grades/status, comparing to the employees of Quetta District, are performing same duty, therefore, in view of the fundamental principle of equal pay for equal work the Employees of Quetta District are also entitled for the same emoluments, including pay and salary. To elaborate this principle, reference may be made to the case of Randhir Singh v.
42. Union of India and others (AIR 1982 SC 879), herein, it was held as under:-- "The counter-affidavit does not explain how the case of drivers in the police force is different from that of the drivers in other departments and what special factors weighed in fixing a lower scale of pay for them. Apparently in the view of the respondents, the circumstances that persons belong to different departments of the Government is itself a sufficient circumstance to justify different scales of pay irrespective of the identity of their power, duties and responsibilities. We cannot accept his view. If this view is to be stretched to its logical conclusion, the scales of pay of officers of the same rank in the Government of India may vary from department to department notwithstanding that their power, duties an responsibilities are identical. We concede that equation of posts and equation of pay are matters primarily for the Executive Government and expert bodies like the Pay Commission and not for Courts but we must hasten to say that where all things are equal that is, where all relevant considerations are the same, persons holding identical posts may not be treated differentially in the matter of their pay merely because they belong to different departments. Of course, if officers of the same rank perform similar functions and the powers, duties and responsibilities of the posts, held by them vary, such officers may not be heard to complain of dissimilar pay merely because the posts are of the same rank and the nomenclature is the same."
43. The above judgment was re-affirmed by the Indian Supreme Court in the case of P. Savita and others v. Union of India and others (AIR 1985 SC 1124) wherein, it was held that where all relevant considerations are the same, persons holding identical posts and discharging similar duties should not be treated differently.
44. Mr. Tariq Mehmood, learned Advocate and Malik Sikandar Khan, learned Advocate-General, heavily relied on the judgment of Federation of All Indian Custon and Central Excise Stenographers (Recognized) and others V. Union of India and others (AIR 1998 SC 1291). In this Report as well, the principle of equal pay for equal work was discussed with an exception; i,e, equal pay must depend upon the nature of work done. It was further stated therein that it-cannot be judged by mere volume of work, there may be qualitative difference as regards reliability and responsibility, Functions may be the same but the responsibilities make a difference. As per the facts of this case, there were two categories of Stenographers, amongst them, those stenographers, who were attached with the Joint Secretaries and Officers above that rank, they were getting pay scale of Rs,650--1,040 whereas the petitioner Stenographers were attached with the Head of the Department, functioning outside the Secretariat and were getting pay scale of Rs,550--990. The petitioners' claim was that in view of the principle of equality, enshrined in Article 14 of the Indian Constitution, they are also entitled for the higher scale and in this background, the Supreme Court laid down following principle for adjudging that how a person doing equal work is entitled for post:- - "Equal pay for equal work is a fundamental right. But equal pay must depend upon the nature of the work done, it cannot be judged by the mere volume of work, there may be qualitative difference as regards reliability and responsibility. Functions may be the same, but the responsibilities make a difference. One cannot deny that often the difference is a matter of degree and that there is an element of value judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service. So long as such value judgment is made bona fide, reasonably on an intelligible criterion which has a rational nexus with. the object of differentiation, such differentiation will not amount to discrimination. It is important to emphasise that equal pay for equal work is a concomitant of Article 14 of the Constitution. But it follows naturally that equal pay for unequal work will be a negation of that right."
45. We failed to understand as to how the principle laid down in this case is helpful to learned Advocate-General. Perhaps, he has relied upon this judgment for the reason that ultimately the petition was dismissed by Supreme Court, because petitioners were not found entitled for the higher pay scale, but at the same time, he lost sight of the important aspect, that as per the facts of said case, the stenographers attached with the joint Secretaries, etc, were found to be charged with higher responsibilities and liabilities, comparing to the petitioner Stenographers, attached with the Heads of the Departments. In this behalf, it was obligatory upon the Government to have produced material before us, to emphasise that the classification is reasonable, because Provincial Government Employees working outside Quetta District have more responsibilities or liabilities, although the volume of work is same, therefore, they were found entitled for 40% Compensatory Allowance. In this behalf, with regard to the higher responsibilities and liabilities, judicial notice can be taken of the fact, that those employees who are working in the Provincial Capital in any department, including the Teachers etc. have more responsibilities, for the reason that being posted in Quetta District, they have to discharge their duty in a most accurate and perfect manner, because their performance is being monitored immediately by the Executive Heads, comparing to the employees, who are posted outside Quetta District, where they have to perform their work at the standard of Tehsil, District or Divisional level, both in the attached Administrative departments as well as in the Schools, etc. Therefore, we are of the opinion that this citation, instead of helping the Government respondent, has advanced the case of employees of Provincial Government, working in Quetta District.
46. It would also be appropriate at this stage to have a glance on the comparative statement of Allowances in Quetta and other 25 Districts. Initially in the areas, other than Quetta District, there was no Compensatory Allowance, but now for the first time, it has been enhanced in the pay scales BPS-1 to 17, ranging from Rs,610 to 2,248 p.m. besides unattractive Area Allowance, which was being paid to employees of B.P.S. 1 to 15 at the rate of 150 p.m. and the employees of B.P.S. 16 and 17, this Allowance was Rs,210 p.m. This statement also indicates that Compensatory Allowance was never allowed to the Provincial Government employees, working in Quetta District. Therefore, if it was being made admissible for the first time to the employees of other Districts, for the considerations, known to the Government, it should have also been extended to the employees of Quetta District, to avoid discrimination. We would like to mention here, that employees of Quetta District are getting higher house rent ranging from Rs,414 to 1,292 p.m. for the employees in B.P.S. 1 to 17 whereas employees of similar category, outside Quetta District are getting the house rent, ranging from Rs,276 to 861 p.m. In addition to this Allowance, the employees of Quetta District from B.P.S. 1 to 11 are getting Conveyance Allowance of Rs,96 p.m. whereas employees of B.P.S. 15 to 17 are getting Conveyance Allowance of Rs,193 p.m. We understand that disparity in the House Rent Allowance for the employees working in Quetta District qua the employees of other Districts, is not of much significance, keeping in view the fact that as Quetta is a Provincial Capital, therefore, comparing to other Districts, the houses are available there on higher rent and same is the position of Conveyance Allowance, because outside Quetta District, offices etc. are not situated at a far flung area. Therefore, due to such reasons, we are of the opinion, that the Government of Baluchistan, has denied 40% Compensatory Allowance to the Provincial Government Employees, working in Quetta District, on basis of unreasonable classification.
47. However, as regards the question; to what extent of Compensatory Allowance, the employees of Quetta District are entitled, it will be considered in the concluding portion of this judgment. It is equally important to note that the Government itself is conscious of the fact, that the employees of Quetta District are entitled for the Compensatory Allowance, because prior to institution of instant proceedings, the Government itself had constituted a Committee to consider their claims, but for the reasons, known to the Members of the Committee, matter was not decided.
48. Inasmuch as during hearing of petition, on 22nd October, 1998, learned Advocate-General, made a categorical statement at bar that the Government is deciding to accommodate the Government servants of Quetta District, by giving them Allowance and to redress their grievance and for this, he sought adjournment of two weeks. In the meanwhile, a Cabinet meeting was held, in which, this issue was also taken up. Copy of the extract of meeting has been placed on record by the learned Advocate-General. Relevant para. therefrom for convenience reproduced herein below:-- "After a good deal of discussion in the meeting and keeping in view the financial position of the Province as discussed above, the Cabinet came to the conclusion that:
(i) Due to less receipts from the Federal transfers the Provincial Government in these hard time of financial stringency cannot afford to bear the extra burden of granting the allowance to the employees of Quetta District at present.
(ii) The Government presently is facing much difficultly even to pay the monthly salaries of employees due to financial constraints.
(iii) In case the Provincial Government gets full budgeted amount from the Federal Government and the shortfall is also fully met, the Government could consider sympathetically the grant of allowance to the employees working in Quetta District as well."
49. The above stand of the Government was contradicted by [(hair Muhammad Shaheen (Petitioner in C.P. No 267/98) as according to him on account of the financial constraints, after passing of Budget on 1st July, 1998, the Government of Balochistan, in supersession of previous orders, imposed financial sanction, to curtail the expenditure of P.O.L., Gas, Electricity, Telephone, admissible to Ministers, Advisors, Secretaries, Head of Attached Departments, etc. But surprisingly during pendency of these petitions on 1st November, 1998, another order was issued, in which the expenditure being incurred on P.O.L., Telephone, G.As., Electricity etc. for the facility of Ministers, Chief Secretary, etc. was increased highly, Be that as it may, we are not concerned with the privileges etc. of the public Representatives, or higher officers of the Provincial Government because we have to examine this case in view of Article 25 of the Constitution.
50. At this juncture reference to the judgments reported in 1992 SCMR 1847 and 1852 and PLD 1993 SC 375, would not be out of context to emphasize that in all these cases, 20% Secretariat Allowance was made admissble to the employees, who were not working in the Secretariat, on the analogy, that the classification is unreasonable in denying this Allowance to the employees of other departments. Similarly in the case of Ghulam Haider Badin and 520 others v. Government of Pakistan through Ministry of Information and Broadcasting, Islamabad and another (1995 CLC 1027), a Division Bench of this Court examined whether employees of PTV Centre, Quetta are entitled for 20% Secretariat Allowance, which was allowed to the Secretariat employees of P.T.V., Islamabad? Accordingly, the petition was allowed declaring that the classification is unreasonable, therefore, the employees of P.T.V. Centre, Quetta are also entitled for 20% Secretariat Allowance.
51. This judgment was challenged before Hon'ble Supreme Court in Civil Appeal No,947 of 1994 which was dismissed on 25th March, 1998. Similarly in another judgment, delivered by this Court in C.P. No 43/94, (Messrs Hafiz Chaudhry v. Pakistan Broadcasting Corporation Headquarter, through its Director-General, Islamabad and others) on the same subject, the Secretariat Allowance was allowed and the Hon'ble Supreme Court in C.P.L.A. No, 32-Q of 1995, refused to grant leave.
52. As far as the judgment relied upon by learned Advocate-General, reported in AIR 1989 SC 29, is concerned, it is distinguishable from facts of instant case, therefore, need not to be discussed.
53. In view of the above discussion, we are inclined to hold that the Provincial Government Employees, both civil servants and workers/workmen, are discharging their duties in Quetta District, in similar and alike circumstances, qua Provincial Government employees, working outside Quetta District.
54. Therefore, the Provincial Government, has discriminated them, in not allowing 40% Compensatory Allowance, on basis of unreasonable classification. Of course, reasons for the classification putforth on behalf of the Government respondent, by the learned Advocate-General are unfounded being not based on an intelligible differentia. Thus, such act of the respondent-Government is in violation of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973.
55. In result, the instant petitions are disposed of in the following terms:-- (a)The Provincial Government Civil Servants, have a right to form an Association/Union under Article 17(1) of the Constitution of Islamic Republic of Pakistan, 1973. But in view of the restriction imposed by Balochistan Civil Servants (Efficiency and Discipline) Rules, 1992, they have no right to resort to a strike, go slow or lock-out against the Government for enforcement of their any demand.
56. However, they will be free to agitate their legitimate grievance before competent forums i,e, Departmental or Judicial. Thus, their action of resorting to a strike, in order to press their demand of 40% Compensatory Allowance, in terms of Notification, dated 22nd April, 1998, was unconstitutional and contrary to Baluchistan Civil Servants (Efficiency and Discipline) Rules, 1992;
(b) the workers/workmen, functioning in the Organizations, being run/controlled by the Provincial Government, without adhering to the provisions of Industrial Relations Ordinance, 1969, had no right to resort to a strike, go slow or lock-out for pressing the Government to accept the demand of 40% Compensatory Allowance. Thus, their such action as well, was unconstitutional, illegal and contrary to the provisions of Industrial Relations Ordinance, 1969
(c) the Provincial Government of Baluchistan, or its competent Authority, shall be free to take disciplinary action against the civil servants and the workers/workmen, in accordance with law for their act of resorting to an illegal strike due to which public-at-large has suffered badly;
(d) the Provincial Government Employees, both civil servants in BPS-1 to 17 as well as the workers/workmen, discharging their duties in Quetta District, have been discriminated, in not granting them Compensatory Allowance, on basis of irrational classification, in violation of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973. Therefore, they are entitled to the Compensatory Allowance to the extent; so running pay being drawn by the Provincial Government Employees in B.P. S,-1 to 17 working in Districts other than Quetta, may come at par with their pay, because already the employees of Quetta District in BPS-1 to 17 are getting increased House Rent and Conveyance Allowances, thus there should not be disparity, in running pay amongst employees of Provincial Government;
(e) the Provincial Government of Baluchistan through Secretary Finance, may suitably amend the Notification No,FD(R)1-8/98/420- 520, dated 22nd April, 1998, or may issue fresh Notification, to the extent of Provincial Government Employees namely civil servants and workers working in Quetta District, keeping in view conclusion drawn hereinabove.
57. Before parting with the judgment, we would like to place our thanks on record for learned Advocates, who assisted the Court as amicus curiae to the best of their abilities in deciding this case.
58. There shall be no order as to casts.