2005 PLP 564 (CLC)

0.849 0.849 4.246

7. Driver B‑4 15 31224 0.468 0.468 0.468 0.468 0.468 2.340

8. Peon B‑1 26 660816 0.660 0.660 0.660 0.660 0.660 3.300 Total 4.763 4.763 4.763 4.763 4.763 23.81 Rs.23.815 million. Year 97/98 98/99 99/00 00/01 01/02 Total Salary 4.763 4.763 4.763 4.763 4.763 % Share Amount AJK IDA AJK IDA AJK IDA AJK IDA AJK IDA AJK ‑‑‑ 100% ‑‑ 80% 20% 60% 40% 40% 60% 20% 80% ‑‑‑ 4.763 ‑‑ 3.810 0.953 2.858 1.905 1.905 2.858 0.953 3.810 Total annual salary at the end of the project 8.4.763 million

11. A perusal of above table reveals that it was agreed with the sponsoring agency that the salary to the employees shitted vide notification dated 1‑7‑1999 would be paid mutually by the Government and the sponsoring agency (World Bank). Initially the share of the Government was 030, however, in the year 98/99 started from 20% and at the end of the scheme it came to 80%, therefore, the petitioners are right in claiming that at the end of the scheme they would be deemed automatically shifted on the normal budget and the Government now cannot take an inconsistent position by terminating their services after a such pretty long period. The action is mala fide even from another angle that the schemes in which the petitioners were serving before issuance of the Notification dated 1‑7‑1999, are still ongoing and the second development scheme is still to be launched. In this perspective of the matter, the action of the department is arbitrary, capricious and perverse, besides being inconsistent with their own recommendation submitted to the Finance Department in a summary moved on behalf of Additional Secretary, Education which is placed at page 81 of the file, the afore -stated position has been admitted. It is pertinent to reproduce relevant para. of the summary which is as follows:‑‑ Again at the end of the summary on page 84 it is observed as under:‑‑

12. The Secretary, Education has also endorsed in his summary under the heading of Engineering Cell Northern Education Project in the following words:‑‑ Again the Secretary, Education on 30‑5‑2003 referred a proposal t Finance Secretary in the following words:‑‑ It further transpired from the record that in high level meeting chaired by the Chief Secretary it was also agreed that these employees of the Engineering Cell would be brought on the normal budget, it pursuance of which direction was also issued fro, Secretary, which is as under:‑‑

13. Thus, in view of the conditions of tile PC‑I, prepared for NEP Scheme and conduct of the Government and the summary submitted on behalf of Additional Secretary as well as Secretary, Education, reproduced hereinabove, and in light of the decision taken in the meeting chaired by the Chief Secretary on 30-5-2003, it is held that the rule of promissory estoppel is attracted in the case and the respondents cannot resile from their commitment and the assurance which has been given to the petitioners by their conduct as well as through the written recommendations and now they are estopped even otherwise.

14. It is next argued by Mr. Ashfaque Hussain Kiani, the learned Advocate appearing for the petitioners, that similarly situated and appointed employees in the other projects under the Government have been shifted on normal budget despite the fact that the schemes/projects were started after the present schemes. The petitioners, according to the learned Advocate, are entitled to the same treatment and refusal on the part of the Government is direct invasion on the fundamental right No.4(15 and 17) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, which postulates that all the State subjects are equal before law and are entitled to equal protection of law. Similarly clause 17 of section 4 provides a safeguard against the discrimination in service. The scope of equality of citizen and equal protection of law has received the attention of the superior judiciary of the sub-Continent. The consensus is that Equality of citizens does not mean that all laws must apply to all the subjects or that all subjects must have the same rights and liabilities, that a citizen s rights as a human being are not affected by reason of his descent, religion, social or official status, economic condition or place of birth or residence; and further that all citizens are equally subject to the general law of the land. This clause permits classification. The scope of which is not relevant here for the purpose of the decision of the case in hand. Similarly the word equal protection of law means that no person or class of persons shall be denied the same protection of laws which are enjoyed by other person or persons or class or classes in same circumstances. This Constitutional guarantee in fact requires that all persons shall be treated alike under like and similar conditions. The equal protection of law connotes that in similar circumstances, the same law will apply to the same class of people.

15. Viewing the controversy in light of the aforesaid rule, it is necessary to appreciate the proof of discrimination which the petitioners herein have brought on the record. The petitioners have placed on the record a Government Notification issued on 18-7-2000 (Annexure M ) whereby the posts created in a development scheme, in the Local Government Department were shifted on the normal budget. Similarly through another Notification issued on 18-7-2000, 101 posts of development schemes were shifted to the normal budget. Another notification has been placed on the record which has been issued on 28-11-2002, through which the posts of some officers of the Community Development Scheme known as Neelum and Jhelum Valley Community Project are brought on the normal budget. On 16-9-2002, 11 posts of the similarly inducted persons of the Forests Department have been shifted on the named budget. A further Government Notification has been issued on June 26, 2002, through which some other posts mentioned therein relating to the Environmental Scheme have been shifted on the normal budget. The last notification which has been relied upon through an application by the petitioners relates to the Agricultural Department. This Notification has been issued on May 20, 2003 through which the persons inducted against IFAD Neelum and Jhelum Valley Community Development Project have been brought on the normal budget in light of their nominal roll. For proper appreciation of the matter and comparative assessment of the facts of the case as well as for determination of the similarly, it would be in the interest of justice to reproduce only three Notifications, which are as follows:--

16. Judging the nature of appointments of the petitioners in light of the rule of law narrated in the foregoing paras. of the notifications reproduced hereinabove, it can safely be concluded that the petitioners have meted out a discriminatory treatment on one hand and have been denied the right of equality before law on the other. Similarly safeguard provided to them under clause (17) of section 4 has also been violated. The apex Court of Pakistan has extended the relief to the similarly situated employees of the Provincial Government even on the basis of a policy adopted by the Federal Government. I would like to reproduce the relevant observation of the apex Court recorded in Dr. Naveeda Tafail s case 2003 SCMR

291. The apex Court at page 307 of the report explained the importance of right to life in the following manner:-- The concept of regularization of ad hoc employees is evident from the above-referred policies of the Federal Government and in the light of these precedents, the petitioners would be justified to ask for regularization. We have been informed that the petitioners have serviced on ad hoc basis for a number of years without break and some of them were in service as ad hoc employees since long. The employment for a common person is the source of livelihood and right of livelihood is an undeniable right to a person. If the work is the sole source of livelihood of a person, the right to work shall not be less than a fundamental right which should be given protection accordingly. Therefore, the petitioners who have served the education department for such a long period, would deserve to be given fair chance of regularization in the given situation.

17. Similarly the right of equality of the citizen was also discussed in the report and it was opined that though the Federal and Provincial Governments under the scheme of the Constitution are entitled to make different laws and policies for induction of their employees but as Federal Government has regularized the ad hoc appointments by forming the policy, therefore, the Provincial Government was also directed to regularize the ad hoc appointments on the basis of same policy, the relevant observation of the apex Court is to the following effect:-- We having examined the above scheme find that in the similar circumstances, the Federal Government while giving fair treatment to its employees appointed on ad hoc basis successively framed policies for regularization through the process of selection by the Public Service Commission. It is stated that all Provincial Government except Government of Punjab, following the Federal Government also adopted the policy of regularization and gave their employees the equal treatment. The petitioners, being ad hoc employees of Provincial Government, cannot claim regularization and as of right in the light of policy of Federal Government but the principle of equality as embodied in Article 25 of the Constitution of Islamic Republic of Pakistan, 1973, would demand that they while facing the similar circumstances, should be treated in the same manner. The principle of equality would impliedly be attracted in favour of the petitioners as they being ad hoc lecturers in the Provincial Government, would stand at par to that of the ad hoc employees of the Federal Government and therefore, it would be fair, just and proper to consider their cases for regularization . the authorities in the Education Department, Government of Punjab while adopting the method of ad hoc appointments as a continuous policy, created legitimate expectancy in the mind of petitioners for their retention on regular basis and therefore, we deem it proper to direct that the respondents while seeking guidance from the scheme of regularization of ad hoc employees of Federal Government referred above, will initiate the process of regularization of the petitioners through Punjab Public Service Commission giving the concession as mentioned in the reply filed by the respondents in the Punjab Service Tribunal within a period of one month and meanwhile without prejudice to the right of the selectees of the Public Service Commission for appointment on regular basis, the posts which were being held by the petitioners shall not be filled. It is clarified that the cases of the petitioners shall be sent separately to the Public Service Commission and shall not be tagged with the direct recruits. In case any of the petitioners is not found suitable, by the Public Service Commission, he shall not be entitled to be retained in service. (underlining is mine)

18. The question of discrimination as well as equal treatment before the law has also been explained by a Division Bench of this Court from Islamic point of view. In a case titled Ch. Abdul Majeed and others v. Azad Jammu and Kashmir Government through its Chief Secretary and others PLD 2001 (AJ&K) 24, it was opined that right of equality before law is anchor sheet of the Constitution and cannot be violated on the basis of pick and choose and personal liking and disliking. Facts of the case were that Ch. Abdul Majeed, MLA (as he then was) submitted a proposal regarding the development scheme for his constituency. Similar proposals were also submitted by the other MLA s against the fund allocated to them for the development of their respective constituencies. The proposals of the other members of the Legislative Assembly were accepted by the Prime Minister whereas for some personal reasons, the proposal of Ch. Abdul Majeed was turned down. The Division Bench of this Court, consisting of Mr. Justice Kh. Muhammad Saeed, C.J. (as his Lordship then was) and Mr. Justice Muhammad Reaz Akhter Chaudhry, J., explained the concept of equality before law with reference to the various Constitutions of the world as well as in light of the Islamic Injunctions. At page 27 of the report it was opined as under:-- The meticulous and comprehensive study of legal history of jurisprudence reveals that it was primarily introduced, firmly adopted and practised by the Holy Prophet (May Allah peace be upon him) much before Magna Carta and, fourteenth Amendment of American Constitution, declared the human rights and the supremacy of law as enunciated by the Western Jurists. The last Sermon of the Holy Prophet (peace be upon him) is the land mark in the history of the world and the mankind which recognized inalienable rights of man conferred by Islam which are known as fundamental rights. I would like to reproduce the important points of the last Sermon of the Holy Prophet (peach be upon him):

urdu 585,586 The above quoted last Sermon of the Holy Prophet (peace be upon him), clearly conveys that no preference could be given to an Arbi on Ajmi and vice versa. Islam cherished the concept of equality. It is greatest exponent of the equality before law. It criticized the distinction on the basis of colour, creed, wealth and power. The theory of Equality before Law is anchor sheet of the Constitution. It postulates that all State subjects should be treated equally. In this regard a reference may be made to a case titled Abdul Sattar v. The State 1989 PCr.LJ

77. The relevant observations of the report is at page 80, which is to the following effect:-- however, regarding observations of the learned Judge that one of accused is a Councillor and Vice-Chairman, Union Council, I cannot say anything better than cite from verse 135 of Surah Al-Nisa of the Holy Qur an it reads:-- be rich or poor, for Allah is closer to them, both; therefore, follow not your inclination, lest ye deviate and if yes were or turn aside, verily Allah is All-aware of what ye do. I also recollect an incident at Madina during the days of the Holy Prophet, which has been stated in Sahih Al-Bukhari that a woman belonging to the respectable Muzniyah Tribe was involved in a theft case. People of the tribe who were hesitant in approaching the Holy Prophet entreated Usman Bin Zaid the emancipated slave of the Holy Prophet to recommend her case to the Prophet (May Allah Almighty peace be upon him). When Usman recommended her case to the Prophet, he said that:-- If Fatima, the daughter of Muhammad (May Allah Almighty peace be upon him) commits the offence of theft, she would surely be subjected to the punishment of amputation of hand. It is further recorded in the Sahih that the Prophet said: The previous communities perished because they used to punish the poor and weak and let their rich and powerful go scot-free. According to the Islamic concept of justice and fair play people are not treated differently on the basis of their being high ranking personalities or belonging to the poorer class of the society. Even a king and an ordinary person have equal position in the eye of the Qazi. Nobody is allowed to influence or pressurize the Courts. And same thing is provided in the Constitution of Islamic Republic of Pakistan (Article 4) that every person is equal before law.

19. In light of the circumstances, record and rule of law laid down in the cases referred to and relied upon, I have no hesitation in holding that the petitioners are entitled to be brought on the normal budget in the same manner and through the same process according to their nominal roll by which the other employees and posts had been brought on the normal budget through the fore-stated Notifications. This brings me to the next arguments of the learned Advocate regarding the implementation of the order of the Chief Executive which has been made on 17-6-1997. The Secretary, Education on 3-6-1997 submitted a summary to the Chief Executive through Minister, Education for bringing the technical staff on the normal budget. This proposal was even accepted by the Finance Department and ultimately by the Chief Executive on 17-6-1997. The approval of the Prime Minister remained unimplemented up till now. This is an fortunate state of affairs which tells upon the working of the bureaucracy.

20. It appears from the departmental file that a duly processed summary was submitted by the Secretary, Education on 3-6-1997 with concurrence of the Finance Department and is approved by the Prime Minister on 17-6-1997. The petitioners have also placed on the record a copy of the summary/order. The file was summoned. The order sought to be implemented has been issued on a duly processed file and is still holding the field. The order has not been denied by the respondents nor any other record has been placed on the record, from which it can be believed otherwise. Under the interim Constitution Act, 1974, the Prime Minister is Chief Executive of the State and the Executive Authority of the State vests in him who exercises the authority either directly or through the Ministers. The business of the Government, is regulated by the rules known as Azad Jammu and Kashmir Government Rules of Business, 1985. Since 1997, no further proceedings were taken as per record made available in the Court, which is a clear proof that subordinate bureaucracy has subverted and undermined the authority of Chief Executive as the order sought to be implemented has neither been carried out nor referred back as visualized by Rule 8(G) and Rule 9(4) of the Rules of Business. Therefore, the petitioners are also entitled to this relief. However, at that time the other petitioners were not inducted in service who were inducted subsequently and their rights have been protected in view of notification dated 1-7-1999. Therefore, apart from implementing the order of the Prime Minister issued on 17-6-1997, other petitioners herein are also entitled to the relief of adjustment. E Before parting with the case, it may be mentioned that the petitioners were ordered to be issued notice by the Secretary, Education on 2-9-2003 and the order was issued under dispatch No.1616/2003 ( ). The petitioners approached the Court and obtained the stay order but it appears that on coming to know the respondents on the same date issued another order whereby they have terminated the petitioners forthwith under the same dispatch number. I have never come across that two letters could have been issued under the single dispatch number. The bureaucracy or public functionaries discharged their duties as a delegatee of the State and for that matter they are bound to discharge the function of their respective offices as a trust. In the present case, there is another fact which strengthens the case of the petitioners that is on 2-9-2003 the petitioners have been terminated on the ground that scheme is going to be finalized but one Syed Faisal Gillani has been appointed in the NEP Scheme on 2-9-2003. similarly one Talhat Nazir, S.D.O. is requested to be posted in the Education Cell and in this regard the NOC of the Government has been placed on the record. The respondents have also taken a stand in the comments that they are in position to appoint better persons by regarding to petitioners. This stand of the respondents is inconsistent to their earlier proposal and decision returned on 30-5-2003. Moreover, the appointments have been terminated of the officers who are serving in grades 16, 17 and 18, by the Secretary, Education. The appointing authority of these officers is either the Chief Executive or the concerned Minister, in view of Rules of Business, therefore, the orders are even otherwise without jurisdiction. E The upshot of the above discussion is that the writ petition is accepted with costs. The notice/order of termination issued by the respondents on 29-8-2003 and 2-9-2003, respectively are hereby declared to have been issued without lawful authority and are of no legal effect. The respondents are directed to bring the petitioners on the normal budget forthwith, in light of Notification dated 1-7-1999, according to their nominal roll, in the same manner and through the same process by which the employees of the other development projects mentioned hereinabove have been brought. The order of the Prime Minister dated 17-6-1997 shall also be implemented forthwith. H.B.T./24/AJK Petition accepted.