Vide Govt. of the Punjab Health Department office order dated 2.8.1977, a number of posts were abolished while a number of posts were created including one post of Statistical Assistant and one post of Statistical Computer in the office of the Director General Health, Punjab. Both the aforesaid posts were shown in BS-10. These posts were continued from time to time and in the letter dated 1.7.1980, also the aforesaid two posts were shown in BS.10 of course with a difference of total annual cost of the said two posts which was Rs, 6676/- in case of Statistical Assistant and Rs, 5110/-in case of Statistical Computer. The petitioner was appointed as Statistical Computer in BS.8, vide order dated 27.5.1986.
2.The representative of the Health Department informed me that these posts are still continuing. On 21.1.1988, the Govt. of the Punjab in the Finance Department issued a letter whereby a number of technical posts in different Departments, including the post of Statistical. Assistant, for which the minimum qualification was Graduation, were placed in BS. 11 with 33% posts in selection grade, Bs.
15, with effect from 1.12.1987. Pursuant to the said policy decision, the Statistical Assistant in the office of Director General Health was granted BS.
11. On 1.3.1999, the petitioner made a representation to the Director General Health, who sought advice of the Secretary Health, the matter was referred to the Finance Department who declined the request of the petitioner. He was accordingly, informed vide letter dated 8.5.2000 of the Health Department.
3.The learned counsel for the petitioner submits that he holds a Masters degree and notwithstanding the fact that the post of Statistical Computer was never down graded to BS. 8, he was initially appointed in BS. 8 whereas he was entitled at least to BS.
10. The other grievance is that he is performing the same duties which are being performed by the Statistical Assistant and is, therefore, entitled to the same emoluments which are being paid to the Statistical Assistant. He has pressed his second grievance and relied on Article 25 of the Constitution to submit that the petitioner has unfairly, been, discriminated against and has prayed for a direction for the grant of BS-11 from 1.12.1987. According to him "equal pay for equal work" is an integral part of the aforesaid provision of the Constitution. Reliance is placed on Randhir Singh vs. Union of India (AIR 1982 SC 879).
4.The learned Assistant Advocate General has, however, opposed this petition and submits that the issue raised in this petition is germane to the terms and conditions of the service of the petitioner and, therefore, this petition in hit by the bar of Article 212 of the Constitution. The representative of the Finance Department has also opposed this petition. He submits that the petitioner accepted the appointment in BS. 8 and, therefore, he could not be permitted to repudiate his own act and claim emoluments of BS-10 or 11. He next contended that in the absence of Service Rules for the post of Statistical Computer, the prayer of the petitioner for being granted BS. 11 w,e,f, 1.12.1987, as contemplated by the circular letter dated 21.1.1988, cannot be granted. He also stated that the matter was referred to the Finance Department on which the Health Department was advised to frame service rules and provide for prospects of promotion to the Statistical Computer.
5. The submissions made by the learned counsel for the parties have been considered. In the report and parawise comments submitted by the Director General Health, in whose office the two posts in question exist, it has been conceded that the duties being performed by the Statistical Assistant and Statistical Computer are the same. It was further stated that a Committee had been constituted for framing Service Rules.
6. The submissions made by the learned counsel for the parties have been considered. The contention of the representative of the Finance Department that Service Rules are required to be framed first has no merit because if the Statistical Assistant could be paid salary of BS 11 without framing any Service Rules then the Statistical Computer was also entitled to the salary of BS. 11 as both are performing the same duties under one roof in the same office under the same employer i,e,, the Govt. of the Punjab. It has not only been conceded by the Director General, Health, a copy of the job description has also been enclosed with his comments which establishes this factual position.
7. The principle of "equal pay for equal work" has not been mentioned either as a Fundamental Right or as a Principle of Policy in our Constitution. However, if the equality clause in Article 25 of the Constitution has to have some meanings, the said principle has to be read in Article 25 to give effect to it. Persons similarly placed have to be similarly treated except on the basis of reasonable classification. In this case it has not been explained that when qualification for both the posts was the same i,e, Graduation and both the officials were performing the same duties, what was the basis to treat the petitioner differently. I specifically questioned the representative of Director General Health as to the reason for appointment of the petitioner in BS. 8 when the post as sanctioned was in BS.
10. He had no answer to it. The principle i,e, "equal pay for equal work" although not specified in our Constitution as a Principle of Policy, yet it is built in Article 3 of the Constitution which is reproduced as under:-- "The State shall ensure the elimination of all forms of exploitation and the gradual fulfillment of the fundamental principle, from each accordingly to his ability, to each according to his work."
Reference may also be usefully made to the following provision of the Objective Resolution, (Article 2-A) of the Constitution:- "Wherein shall be guaranteed fundamental rights including equality of status, of opportunity and before law, social economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality". (Underlining is mine).
Equality of opportunity contemplated by the Objective Resolution includes equal opportunity in the public employment. I may add there that public employment, before and after entry into public service, is not a bounty of the Crown to permit the State and its ornamental parts to differently treat two public servants identically placed in all respects in the matter of pay. Reference may be made to Clause (e) of Article 37 of the Constitution which enjoins the State to:-- "make provision for securing just and humane conditions of work ensuring that children and women are not employed in vocations unsuited to their age or sex, and for maternity benefits for women in employment." (emphasis supplied). Although Articles 2-A, 3 and 37 of the Constitution are not declared as fundamental rights in our Constitution yet these are Constitutional goals, have to be kept in mind and given due regard while interpreting the Constitution and the law in the light of the following observations of the Honourable Supreme Court in Miss Benazir Bhutto vs. Federation of Pakistan and others (PLD 1988 SC 416):-- "The intention of the framers of the Constitution is to implement the .principles of social and economic justice enshrined in the Principles of Policy within the framework of the Fundamental Rights. Chapters 1 and 11 of the Constitution which incorporate Fundamental Rights and directive principles of State policy, respectively occupy a place of pride in the scheme of the Constitution, and these are the conscience of the Constitution, as they constitute the main thrust of the commitment to socio economic justice. The directive principles of State Policy are to be regarded as fundamentals to the governance of the State but they are not enforceable by any Court.
Nonetheless, they are the basis of legislative and executive actions by the State for implementing the principles laid down therein.... Necessarily, therefore, the directive principle of State policy have to conform to and to operate subsidiary to the Fundamental Rights guaranteed in Chapter I, otherwise the protective provisions of the Chapter will be a rope of sand'... Articles 3, 37 and 38 of the Constitution juxtapose to advance the cause of socio economic principles and should be given a place of priority to mark the onward progress of democracy.
These provisions become in an indirect sense enforceable by law and thus, bring about a phenomenal change in the idea of co-relation of Fundamental Rights and directive principles of State Policy".
8. Before the judgment in the case of Randhir Singh (supra), relied upon by the learned counsel for the petitioner, is examined, reference may be made to the cases decided by the superior Courts by our country on the question of equal treatment to the persons in public service who are equally placed. In Saeed-ud-Din vs. Secretary to the Govt. of N.W.F.P., Finance Department (1990 CLC 8), the grievance of the petitioner before the learned Peshawar High Court was that the post of Agriculture Officer was in BPS. 16 abut on promotion to the said post, he was placed in BPS.
9. The learned.
Peshawar High Court noted that a person appointed to the post of Agriculture Officer by way of direct recruitment was entitled to NPS 16. However, on the basis of a note appearing in the relevant Rules, the petitioner was allowed BPS. 9 on his promotion as Agriculture Officer. The said learned Court interfered on the ground that the impugned action was discriminatory and arbitrary and it was held that the petitioner was entitled to BPS. 16 as long he held the post of Agriculture Officer or other equivalent post. The note in the relevant rule was found to be without any reasonable basis and was held to be arbitrary. In Mubarik Ali and 7 others vs. Govt. of the Punjab (1990 CLC 136), the grievance of the officials of this Court was that the Govt. of the Punjab had allowed secretariat allowance to the officials of the Civil Secretariat, Governor's Secretariat, the Chief Minister Secretariat and the Provincial Assembly which was denied to the officials of this Court. This Court interfered on the ground that the officials of this Court had been discriminated against inasmuch as they were similarly placed and were working in similar circumstances. In Province of the Punjab vs. Ramzan Ali Khan (PLD 1982 SC 349), the grievance of the Private Secretaries of this Court was that. while four advance increments were allowed to the Steno Typists, Junior Scale Stenographer Grade-I, Junior Scale Stenographer Grade-II, Stenographers, Senior Scale Stenographers and Personal Assistants, in the Secretariat as well as in the field office,.they were denied the same benefit although they were performing the same duties. The learned Punjab Service Tribunal, on their appeal found them entitled to four advance increments and the judgment of the learned Tribunal was affirmed by the honourable Supreme Court. In the Federation of Pakistan vs. Muhammad Yaqoob Khan (1987 SCM R 1914), the Record Distributors in the Pakistan Railways had complained of discrimination in the matter of pay scales. In the said case, prior to 1949, the Record Distributors, the Record Lifters and the Record Suppliers were in the same scale of pay. In 1949, the pay scales were revised and all the three categories of officials were placed in the same pay scales. In 1962, the pay scale were again revised. The Record Distributors were placed in the pay scale of Rs, 95-3-125, while the Record Lifters and Record Suppliers were placed in the pay scale of Rs, 100-4-140. They succeeded before the Service Tribunal and the judgment was upheld by the honourable Supreme Court, In Manzoor Hussain and 37 others vs. Province of the Punjab (1989 PLC CS 42), the grievance of the petitioner i,e,, the Private Secretaries of this Court was that vide memorandum dated 18.3.1986, the post of Private Secretary to the Secretaries, Additional Secretaries and other Officer in BPS. 21 and 22 in the Federal Govt. was upgraded from BS. 16 to 17 which was denied to them. This Court found that the petitioners has been discriminated against. In the case of Province of Punjab and another vs. Kamal-ud-Din (PLD 1983 SC 126), the grievance of the Readers of this Court was that they were in BS. 12, while the Readers to the learned Members Board of Revenue were in BS.
16. They succeeded before the learned Punjab Service Tribunal and the judgment of the learned Tribunal was maintained by the Honourable Supreme Court.
9. In State of Mysore vs. Basavalingappa (AIR 1987 SC 411), the grievance of the petitioner was that while an Instructor in the Technical Education Department with a diploma was getting better pay than the petitioner who was a certificate holder. The High Court interfered on, the ground that nothing was placed on the record to show that a diploma, as against a certificate, was a better qualification which was upheld by the Supreme Court. In N.P.Singh and others vs. Union of India (AIR 1987 SC 485), a petition directly moved before the Supreme Court, the grievance of the officials working in Central Bureau of Investigation was that they were directly recruited by the Central Bureau of Investigation but were getting less special pay than the deputatioinsts although both categories of officials were discharging the same functions, duties and responsibilities. The Supreme Court found that payment of less special pay to the direct recruits did not meat the test and reasonable classification, the petition was granted with a direction that all the officials whether recruited directly or otherwise should be paid special pay at the same rate. In Tele Communication Research Center Scientific Officers class-I Association. vs. Union of India (AIR 1987 SC 490), again a petition directly filed before the Supreme Court, the grievance of the petitioners was that the officers of Telecommunication Research Center similarly placed were in receipt of special pay which was denied to the petitioners although they were doing the same job and possessed the same qualification. The Supreme Court, relied on their earlier decisions in the case of Randhir Sindh (supra) and M.P.Singh and other (supra) and found that the petitioner had unfairly been discriminated against.
10.It may be noted that "equal pay for equal work" is one of the Principles of Policy in the .Indian Constitution (Article 39(d). In the case of Randhir Sindh supra, a Driver Constable of Dehli Police Force under the Dehli Administration, had approached the Supreme Court under Article 32 of the Indian Constitution with a grievance that the Drivers in the Railway Protection Force, the Secretariat and non-Secretariat Offices in Dehli, the Language Commission, Firebrigade and the Department of Light House were getting better pay than the Drivers of the Dehli Police Force. The Supreme Court noted that the Drivers in the Dehli Police Force perform the same functions and duties as other Drivers in other departments, the contention that the Drivers belonging to different department were involved , was not accepted and the writ petition was allowed with a direction that the Drivers constables of the Dehli Police Force should be brought at par with at least the Drivers of the Railway Protection Force. It was held that although the principles, i,e,, "equal pay for equal work' was not expressly declared as a fundamental right yet the Directive Principles have to be read in to the fundamental rights. The principle of "equal pay for equal work" was reiterated by the Indian Supreme Court in U.P. Rajya Sahakari Bhoom Vikas Bank Ltd. U.P., vs. Its Workmen (AIR 1990 SC 495).
11.The objection of the learned Assistant A.G. with reference to the bar of Article 212 of the Constitution has no merit because "pay" of the post is one of the terms and conditions of service of a civil servant but the pay, the petitioner claims on the basis that another official, identically placed, is getting in the same organization cannot be said to be a term and condition of his service. A dispute will relate to terms and conditions of service, if a civil servant is entitled to something under the Law or Rules which is denied to him. Thus, the petitioner is not before this Court with a complaint of violation of any of his terms and conditions of his service. His grievance is that he is being unfairly discriminated against.
12.The scope of bar of jurisdiction contemplated by Article 212 of the Constitution in a case in which there is no complaint of violation of any terms and conditions of service came up for consideration before the Honourable Supreme Court in I.A Sherwani and other vs. Govt. of Pakistan (1991 SCM R 1041) and the following observations were made:--
13. "However, in the present case, the petitioners' case is founded solely on the ground of discriminatory treatment in violation of Article 25 of the Constitution and not because of any breach of any provision of the Civil Servants Act or any service rule.. However, we may clarify that a civil servant cannot bye-pass the jurisdiction of the Service Tribunal by adding a ground of violation of the Fundamental Rights. The Service Tribunal will have jurisdiction in a case which is founded on the terms and conditions of the service even if it involves the question of violation of the Fundamental Rights."
The present case is fully covered by the rule laid down by the Hon'ble Supreme Court in the first mentioned observation. 13.As far as the objection based on the plea of acquiescence is concerned, it has no merit either.
Firstly for the reason that the petitioner is not pressing grant of BS. 10 on appointment as Statistical Computer and secondly such a plea is not available when a petitioner seeks enforcement of a fundamental right.
14. For what has been stated above, this writ petition is allowed. It was declared that the petitioner is entitled to the pay of BS. 11 from the date it was allowed to the Statistical Assistant in the office of the Director General, Health and Respondent No, 3 is directed to issue order accordingly. No order as to costs.