Through this Constitutional petition, the petitioner seeks writ of mandamus against respondents to implement Notification No,P-3(4) dated 10-7-2001 w,e,f, 1-8-1989 on the principle of parity.
2. The petitioner has been serving in Police Department. He was promoted to the rank of on 10-10- 1990. He was retired from service on 24-6-1992. After attaining the age of superannuation. His grievance is that the Government of Azad Jammu and Kashmir has adopted rule of parity through a notification. According to the, aforesaid notification all the gazetted and non-gazetted employees of A.K. Government are equated with their counter-parts in Punjab (Pakistan) with respect to their pay and privileges etc. The post of D.I.-G. Was upgraded to B-20 in Punjab w,e,f, 8-1- 1989 and the principle of parity demanded, the Government of A.K. To upgrade this post to B-20 as and when it was upgraded in Punjab but despite efforts it could not be done till the notification dated 10-7-2001. The petitioner, therefore, was deprived of his substantive right for pay and other privileges from the date of his promotion to the post of D.I.-G. Till date. He therefore, requests to issue direction to the respondents to notify upgradation of all posts of D.I.-Gs. In A.K. To B-20 w,e,f, 1- 8-1989 on parity basis. He further seeks direction that all financial benefits during the service till retirement as D.I.-G. Including revision of raised pay and sanction of pension.
3. The respondents have raised two objections while submitting their written statement and same were debated at Bar by the learned counsel for the parties. According to the learned counsel for the petitioner, the rule of parity has been adopted by the Government of A.K. And it is an admitted fact. Therefore, according to him, the respondents were under legal obligation to upgrade the post of D.I.G. To B-20 as and when the same was upgraded in Punjab (Pakistan). The learned Additional Advocate-General pointed out that the matter in hand pertained to jurisdictional competence of Service Tribunal as it deals with terms and conditions of service, therefore, the present writ petition before the High Court was not maintainable. Secondly he laid much emphasis on the point that the petitioner could not be benefited under the notification No, P-3(4) dated 10-7-2001 for the reason that he has been retired from service and only those who are in active service of the Government of A.K. Could avail benefits in the light of above mentioned notification. He further submitted that above-referred notification could not be acted upon retrospectively.
4. As regards the maintainability of writ petition on the ground of jurisdiction, it may be observed that the petitioner seeks direction to the respondents to act upon their notification in accordance with law. He does not seek quashment of any Government action or any order affecting terms and conditions of his service but a direction to act in accordance with law and notification regarding rule of parity as enforced in Azad Kashmir. Therefore, powers to issue a direction to that fact is vested in the High Court under section 44 of Azad Jammu and Kashmir Interim Constitution Act, 1974.
5. The next point which requires resolution is whether notification dated 10-7-2001 can be acted upon retrospectively. Before arriving at some conclusion, it is felt proper to have survey of case-law available from Pakistan and A.K. Jurisdiction. The following cases are selected for the purpose wherein it is held that retrospectivity is the sole prerogative of Legislature and no notification, Government order or administrative order can be given effect retrospectively:--
(1) Islamic Republic of Pakistan v. Mazhar-ul-Haq and others (1977 SCM R 509);
(2) Muhammad Sideman and others v. Abdul Ghani (PLD 1978 SC 190);
(3) Fazal Ahmad v. Ziaullah Khan (PLD 1964 SC 494) and
(4) Justice (Rtd.) Qazi Abdul Ghafoor v. Azad Kashmir Government (1996 CLC 1556).
(1) In case titled Islamic Republic of Pakistan v. Mahar-ul-Haq and others, it was held as under:- "As pointed out by the learned Member No,1 of the Tribunal that a supernumerary post of Executive Officer was created for the period in question. It cannot, therefore, be denied that the respondent was holding an additional charge to his substantive post. In our opinion, he was performing duties of specially arduous nature with specific addition to the responsibility already held by him during 3-3-1953 to 14-9-1958, and therefore, he is clearly entitled to Special Pay as contemplated in the above rule. Mr. Shahid-ul-Haq the learned counsel for the petitioner contended that the Finance Ministry by O.M. No,4(6)R 1/71 dated 23-12-1971, held in abeyance all the provisions in various Rules or general orders w,e,f,, 14-12-1971, and therefore, the respondent is not entitled current charge Allowance. This contention has not impressed us. The period in dispute is from 1953 to 1958.
According to the law laid down by the Court, no rule, order or direction, could be made with retrospective effect. Therefore, this direction of the Ministry of Finance cannot be applied to the fact of the present case."
(2) In case titled, Muhammad Suleman and others v. Abdul Ghani (PLD 1978 SC 190) it was held as under:-- "Section 8(2) refers to curtailing the right of pre-emption and according to the principle laid down in section 20 of the West Pakistan General Clauses Act, if the curtailment was to be by a notification to be published in the official Gazette, the withdrawal of the aforesaid curtailment was also to be done in the same manner, namely by a declaration of withdrawal which, in its own turn should also be published in the form of a notification in the official Gazette, and will obviously be effective from the date of the publication of the Gazette and not any prior date.
(3) In case titled, Fazal Ahmad v. Ziaullah Khan (PLD 1964 SC 494), it was observed as under:-- "This amendment had come into force on 22-2-1963. An obvious objection to this amendment is that it is a notification by the Government in exercise of the power of subordinate legislation and such power does not include a power to give retrospective effect. The power of subordinate legislation which is exercised by the executive is a very limited power. Its exercise even to a limited extent had been objected to on the Ground that the fact that a Legislature had been empowered to legislate on a particular subject did not imply that it could delegate its power of legislation to any other person or body of persons. The power of delegation had, however, to be accepted to a limited extent because in many cases it is almost impossible for the Legislature to make provisions in details and in some cases the time or the occasion for applying a statute has to be left to the executive Government. It was considered that it was not possible for the Legislature to exercise its functions properly unless the grant of subordinate legislative power to the executive was permitted to this extent. However, the subordinate legislative power is to be permitted only to the extent to which it is necessary for the proper exercise of its function by the Legislature and a power to legislate with retrospective effect has never been accepted as included in a power of subordinate legislation. In Rahmat Ullah v. Deputy Settlement Commissioner PLD 1963 SC 633, this Court held that a notification by the Government under the Displaced Persons (Compensation and Rehabilitation) Act could not have retrospective effect.
4. In case titled, Justice (Rtd.) Qazi Abdul Ghafoor v. Azad Kashmir Government, it was held by the Hon'ble Judges of Azad Jammu and Kashmir Supreme Court, as under:- "However, the order of the President relieving the appellant from the post of Chairman Zakat, Council was issued on 23rd of April 1994 but was given effect from 27th of August, 1992. If the order is accepted on its face value, it means that The appellant ceased to be the Chairman on 27th of August, 1992 while he in fact kept on functioning till the 23rd of April, 1994 when the notification to relieve him was issued. In our considered view, it has been rightly advocated on behalf of the appellant that the order of the President could not be given retrospective effect. Law is now firmly settled that retrospectivity is the sole prerogative of the Legislature and a notification or administrative order cannot be given retrospective effect."
6. The above-referred Judge-made law suggests to say that when a substantive right has accrued to a person; it cannot be snatched by a Government notification or by any other executive order by giving it retrospective effect. However, to remove discrimination and to give a right to a person is a separate matter. Here in this case, the moment the post of D.I.-G. Was upgraded in Punjab, the petitioner stood vested with his right to be benefited by upgradation of the post by following Notification dealing with rule of parity. He was refused a right which, under law, could not be refused. Not only this, the petitioner has been discriminated through another Notification bearing No,P-3(4) dated 10-7-2001 through which posts of D.I.-Gs. Have been upgraded by following rule of parity. Therefore, the legal and logical consequence which follows is that it was enjoined upon the respondents to upgrade the post as and when it was upgraded in Punjab. However, the rule of parity was followed by the respondents but unfortunately with discrimination. To be brief, it may safely be observed that any Government notification or administrative order resulting into discrimination particularly with reference to service matter can be given effect retrospectively in order to allow a right to a person to whom it was refused without any legal justification. The post of D.I.-G. Was upgraded to B-20 in Punjab (Pakistan) on 1-8-1989 when the petitioner was in active service of Police Department of Azad Jammu and Kashmir Government as D.1.-G. He was retired from service on 24-6-1992 after attaining the age of superannuation. The notification through which Government of Azad Kashmir adopted the principle of parity was very much in existence with all its bearings when the post of D.I.-G. Was upgraded in Punjab. Therefore, when the counter- part of the petitioner was upgraded in Punjab, the up-gradation of post of D.I.-G. In AK to B-20 was the legal consequence and the Government of Azad Kashmir was legally obliged to act accordingly as the notification regarding rule of parity demanded so.
7. The second important aspect of the case is that Notification No,P-3 (4) dated 10-7-2001 dealing with the up-gradation of post of D.I.-G. In Azad Kashmir to B-20 in presence of another notification through which the rule of parity was adopted amounts, as stated earlier, to discrimination which is prohibited under the Interim Constitution Act, 1974. The Constitution provided equality of all State subjects before law and they are entitled to equal protection of law. Thus, when a notification, or a Government order or any administrative order which amounts to discrimination and is found to have been violative of basic rights of a citizen guaranteed under the Constitution need its correction so that it may be coached in such a way which do not offend the principle of equality before law and fundamental rights enshrined in the Interim Constitution Act, 1974. It may usefully be mentioned here that the superior Courts all over the world have never allowed a discriminatory treatment to a citizen of the State even through legislation what to talk of an administrative order.
8. The petitioner was refused all perks and privileges including pay and pension during the time when his counter-part in Punjab was availing the same. It was his legal right in presence of notification dealing with rule of parity. He was discriminated first when he was serving as D.I.-G. And the post was up-graded in Pakistan and subsequently through notification dated 10-7-2001 through which posts of D.I.-Gs. In AK were up-graded to B-20.
9. The position which emerges out from the above discussion is that any administrative order or Government notification which discriminates an employee regarding service benefits without any legal justification or in other words snatches his substantive right, it requires its amendment so as to make it in accordance with the spirit of Constitution. The respondents were legally obliged to bring the post of D.I.-G. At par with the post of D.I.-Gs. In Punjab by upgrading the same as and when the same was upgraded there.
10. The result is that the respondents are directed to amend the Notification No,P-3(4) dated 10-7- 2001 so as to give it retrospective effect from 1-8-1989 i,e, the date when the post of D.I.-G. Was upgraded in Punjab (Pakistan). The petitioner is entitled to all the benefits including pay, pension and other privileges as against BPS-20 right from the date when he was promoted as D.I.-G. The respondents are directed to make payment of the same at its earliest.