2023 PLP (C (PLC(CS)N)

RAJA SAEED AKRAM KHAN, ACJ.

The captioned appeal by leave of the Court has been directed against the Judgment dated 25.02.2019 passed by the Azad Jammu and Kashmir High Court in Writ Petition No.1917 of 2018.

2. The facts forming the background of the captioned appeal are that the appellants, herein, the employees of different departments of Azad Jammu and Kashmir, are posted in a Foreign Aided Development Project named as Support to Basic Education Development Project. The Finance Department of the Government of Azad Jammu and Kashmir issued a notification on 21.12.2017, whereby, the employees deputed to foreign aided development projects were granted Project Allowance at different rates mentioned in the notification. The appellants, herein, filed a writ petition before the Azad Jammu and Kashmir High Court on 09.11.2018, claiming therein, that they were deputed to the Foreign Aided Project in the year 2015 and entitled to the Project Allowance from the date of commencement of the project. It was prayed that the notification dated 21.12.2017 may be amended accordingly and the appellants may be declared entitled to the grant of project allowance from the date of commencement of the project. The writ petition was contested by the other side by filing comments/written statement, wherein, it was submitted that under notification dated 21.12.2017 issued by the Finance Department, only such employees have been held entitled to the Project Allowance who have been deputed to the foreign aided projects costing more than Rs.1000 million and have been inducted through a competitive process. It was further submitted that project allowance can only be given if the same has been provided in PC 1 of the said project. It was also submitted that no precedent regarding grant of project allowance with retrospective effect is holding the field, therefore, the same cannot be granted to the appellants. The learned High Court through the impugned judgment dated 25.02.2019 has dismissed the writ petition in limine.

3. Ch. Ghulam Nabi, Advocate, has filed written arguments wherein it is stated that the impugned order of the High Court is nullity in the eye of law. The learned High Court has wrongly declared the impugned notification dated 21.12.2017 as a valid piece of legislation and in this context it has also been wrongly observed that a piece of legislation cannot be modified by the High Court in its constitutional jurisdiction. It has been further alleged that in the similar circumstances this Court in the case reported as Muhammad Bashir Khan and others v. Azad Government others [2019 SCR 697] has directed the respondents to amend the notification dated 21.12.2017 and make payment to appellants therein. It is alleged that the impugned notification has been issued in clear violation of fundamental rights i.e., equality before law. The appellants are entitled to the grant of Project Allowance from the date of commencement of the Project. The learned High Court has wrongly dismissed the writ petition in limine.

4. Raja Akhlaq, Hussain Kiani, Additional Advocate-General while arguing submitted that the impugned order has been passed in accordance with law. He further submitted that in view of the disputed notification only such employees are entitled to the Project Allowance who have been deputed to the Foreign Aided Projects costing more than Rs.1000 million. Furthermore, the Project Allowance can only be given to the employees if the same has been provided in PC-I of the project. No precedent of the similar kind in this regard exists, therefore, the appellants are not entitled to the prayed relief. This appeal is liable to be dismissed.

5. We have heard the learned counsel for the parties and gone through the record. According to the record, through notification dated 21.12.2017 the employees deputed to Foreign Aided Development Projects were granted Project Allowance at different rates. It is the stance of the appellants that they were deputed to the Project in the year 2015 and entitled to the Project Allowance from the date of commencement of the Project. The learned High Court has dismissed the writ petition in limine on the sole ground that a piece of legislation cannot be modified by the High Court in its constitutional jurisdiction. Furthermore, in some previous case, in the similar circumstances, it was held that the pensionary benefits cannot be granted by giving retrospective effect to the relevant notification.

6. It is suffice to refer here the case reported as Muhammad Bashir Khan and others v. Azad Government and others [2019 SCR 697], wherein, in the similar circumstances, this Court has held that:- "

5. We have heard the learned Advocates representing the parties and have gone through the record of the case. A perusal of the record reveals that a foreign aided project sponsored by Asian Development Bank known as "Flood Emergency Re-Construction and Resilience Project (FERRP)" was approved and notified by the Government of the Azad Jammu and Kashmir vide notification dated 28.8.2015. It further reveals that the appellants and proforma respondents, herein, were transferred and posted on deputation during the year 2015-16 through different notifications annexed as "PD/1 to PD/9". A. perusal of annexure PC, reveals that a considerable amount has been reserved for payment of T.A./D.A and project allowance to the employees serving in the project. Annexure "PJ". appended with the appeal reveals that sufficient amount has been reserved and allocated for the payment of project allowance from the date of commencement of the project i.e. 28.8.2015. On refund of payment, a Committee was constituted for consideration of the demand of the appellants and proforma respondents, herein, by the Government of Azad Jammu and Kashmir. The Committee held a meeting on 6.6.2018 and deferred the case of their appellants, herein, without deciding the fate of notification dated 21.12.2017. The claim of the appellants and proforma respondents herein, that date given in the notification dated 21.12.2017 is violative of PC/1 as well as rule of equality before law has a substance. As stated above that the record reveals that a sufficient amount has been allocated for non-payment of T.A. D.A. and project allowance from the date of commencement of the project i.e. 28.8.2015 and this fact has been admitted by the Government while issuing the notification dated 21.12.2017, however the date has not been assigned properly and no reason has been listed for payment of project allowance from the said date. The learned Advocate has heavily relied upon the case reported as I.A Sharwani and others v. Government of Pakistan through Secretary Finance Division, Islamabad and others (1991 SCMR 1041), wherein at page 1089 of the report it was observed as under:- '

30. It may be stated that as a general proposition it cannot be laid down that in no case a specified date cart be made basis for classification. It will depend on the facts of each case and if the specification of a particular date is based on an intelligible differentia, which in turn has nexus to the object for which the relevant statute has been enacted, such classification will be legal and valid but if the specification of a date is arbitrary or whimsical, it cannot be made basis for classification as has been held in the above case of D.S. Nakara and others v. Union of India (supra) by the Indian Supreme Court, Furthermore, a distinction is to be drawn between a case in which a date is specified for the purpose of qualifying for certain benefit under certain enactment/scheme and a date which may be specified for the enforcement of a particular Taxing Statue or a notification granting certain concession from payment of taxes and excise duty. In our view, the former category should pass the test of reasonable classification whereas for the latter category, there is no such requirement as the Legislature or the Government has the discretion/power to fix a date for the enforcement of a particular statute or for granting certain concession in respect of tax or exercise duty, and for that purpose, there cannot be any mathematical or logical way of fixing a date except that the Legislature or the Government may fix the same according to its own need and convenience.' As no reason has been listed by the Committee for not giving the project allowance to the appellants from the date of commencement of the project despite availability of funds, therefore, we are of the view that the date mentioned in the notification is discriminatory. As stated in the earlier part of the judgment that the learned High Court has dismissed the writ petition mainly on the ground of laches and non-availability of funds, which was not justified because the appellants-petitioners filed writ petition within a period of one month and five days after gaining knowledge of the decision of the Committee, therefore, the question of principle of ladies does not arise. Similarly, the record reveals that sufficient funds are available for payment of the claimed allowance from the date of commencement of the project and this fact escaped the notice of the High Court while deciding the writ petition otherwise conclusion might have been different. The upshot of the above discussion is that the appeal is accepted, the impugned judgment of the High Court is set aside and the writ petition filed by the petitioners before the High Court is hereby accepted. The respondents are directed to amend notification dated 21.12.2017 and make payment of the project allowance to the appellants and proforma respondents, herein, froth the allocated funds of the project for the period they remained posted and served in the project. No order as to costs." In view of overall all facts and circumstances, the claim of the appellants in the instant case is at par with the claim of the appellants in the aforesaid referred judgment. Although, through the impugned judgment the learned High Court has dismissed the writ petition in limine, however, the learned counsel for the appellants stated that in the referred judgment the Project Allowance was granted to the appellants (therein) on the basis of same notification, thus, in the given circumstances remand of the case will not serve any useful purpose.

7. According to Article 42-B of the Azad Jammu and Kashmir Interim Constitution, 1974 the judgment of the Supreme Court is binding on all the Courts of Azad Jammu and Kashmir. In view of the aforesaid judgment of this Court, the appellants are also entitled to the Project Allowance from the date of commencement of the Project. In this state of affairs, while accepting this appeal and admitting the writ petition for regular hearing the prayed writ is issued in the manner that the respondents are directed to amend the notification dated 21.12.2017 and make payment of the Project Allowance to the appellants for the period they remained posted and served in the project. This appeal is accepted in the above terms with no order as to costs. SA/13/SC (AJ&K) Appeal accepted.