2019 PLP (C (PLC(CS)N)

SYED ARSHAD ALI, J.

Petitioner Naveed Akhtar who is Senior Vernacular Teacher (S.V.T) in Prison Department KPK along with three others who are Junior Vernacular Teacher (J.V.T) in the Prison Department seek the constitutional jurisdiction of this Court prayed that:- "It is, therefore, humbly prayed that on acceptance of the instant Writ Petition, an appropriate Writ may please be issued declaring the petitioners at par with their counterpart working in the Education Department, by upgrading the Posts of JVT&SVT to BPS-15 and BPS-16 respectively in line with the Government of Khyber Pakhtunkhwa Education Department Letter No.2724/P-9/SNF/Conversion dated 27.09.1995, FD/SO(FR)10-22/2007 dated 26.01.2008 and No.SO (FR)/FC/10-22 (E)/201 0 dated 26.06.2012 with all consequential benefits accruing therefrom. Any other relief deems appropriate in the circumstances of the case and not specifically asked for may kindly be granted."

2. Brief but the essential facts of the case are that petitioner Muhammad Naveed was appointed as Senior Vernacular Teacher/S.V.T (BPS-08), vide appointment order dated 21.01.2006 by the Inspector General of Prisons. Similarly, petitioner Khalid Mehmood was appointed as J.V.T (BPS-6) vide appointment order dated 16.06.2007, Mr. Mushtaq Ahmed petitioner was appointed as J.V.T (BPS-6) vide appointment order dated 21.01.2006, whereas Awal Sher was appointed as J.V.T (BPS-6) vide appointment letter dated 21.10.1985 by the Inspector General of Prisons (then NWFP). All the petitioners are working in the same pay scale and in the same cadre in which they were appointed till today without any prospects of promotion or service structure for further promotion in their cadre. Against that the civil servants who were working in the education department Khyber Pakhtunkhwa against the post of S.V, their nomenclature/post was merged/converted into C.T. posts. Similarly, the posts of J.V were converted into P.T.C. Thereafter, the Government of Khyber Pakhtunkhwa had time and again upgraded the posts of P.T.C and C.T. number of times. Through notification dated 26.01.2008, the Government of Khyber Pakhtunkhwa had upgraded the post of Primary School Teacher from BPS-7 to BPS-9 and the post of C.T. from BPS-9 to BPS-15. Similarly, through notification dated 26.06.2012, the government of Khyber Pakhtunkhwa had further upgraded the posts of Primary School Teacher to BPS-15 and the post of C.T. to BS-16. The petitioner has also placed on record letter dated 17.07.2008, whereby various posts were created in the Borstal Institute Bannu including the posts of C.T. teacher in BPS-12 and PST Teacher BPS-9. In line with the policy of the Education Department of Provincial Government for conversion of posts, the then Superintendent, Central Prison Haripur through letter dated 27.06.2008, requested the Inspector General of Prisons, NWFP, Peshawar for conversion of S.V Post to C.T. Post, but till date no action has been taken on the same. Similarly, on 29.08.2009, the then Assistant Inspector General of Prisons forwarded the detailed working paper prepared by the Deputy Secretary Prisons, Home and Triable Affairs Department, Peshawar, regarding the upgradation of four S.V teachers, six JV teachers and nineteen Diniyat teachers who were working in various jails of the province for their upgradation. It was affirmed in the said working paper that the provincial government has allowed upgradation of certain posts in the then NWFP Education Department vide Finance Department (Regulation Wing) Notification dated 26.01.2008. However, the same upgradation has so far not been allowed to the incumbents of similar posts performing similarly duties with similar qualifications in Prisons Department. It was also urged that the disparity and discrimination may be removed with the following proposal:- S# Nomenclature of the post Present Pay Scale Proposed Nomenclature Proposed Pay Scale Additional Qualification Upgraded Scale (One time) i- S.V Teacher 8 CT 9 BA/BSC and trained teacher 15 ii- J.V Teacher 6 Primary School Teacher (PST) 7 i) FA/FSc and trained teacher ii) Having 10 years service 9 12 iii- Religious Teacher 6 Religious Teacher 7 Hafiz-e-Quran with SSC 12 However, the said working paper till date is lying in the cold storage of the respondent department. Feeling aggrieved of the discriminatory treatment, the present petitioners had earlier filed W.P. No. 431 of 2008 which came up for hearing before this Court on 11.11.2008. On the said date of hearing, the then learned A.A.G requested for one month time to redress the grievances of the petitioner, hence, in view of the statement and assurance given by the then learned A.A.G., the petitioner withdrew the said petition.

3. The respondents filed their comments wherein they have stated that in compliance of the order of this Court, a high level meeting of the officials of Home Department was held on 26.03.2013 wherein it was decided, "it was held that the case of upgradation of teachers of Prison Department was very week and not tenable to be presented before the upgradation committee".

4. Arguments heard and record perused.

5. It is evident from the working paper of the respondent wherein they have affirmed that the present petitioners are performing the same functions of C.T teacher and P.T.C Teacher having the same qualification and job description. The respondents in their comments have not denied this fact nor pleaded that the petitioners lacks the essential qualification for the post of PTC and C.T. When there exists no difference in the qualifications of the present petitioners for the posts of C.T./P.T.C, their duties, functions and responsibility, then denying to them similar treatment/perk and privileges, as available to other set of employees, who are working in education department, would obviously offend the principle of equality before law as envisaged by Article 4, Article 8(3)(b) and Article 25 (2) (3) of the Constitution of the Islamic Republic of Pakistan which guarantees in unequivocal terms equal treatment amongst equals and persons and things similarly situated and circumstanced. It is by now well settled principle of law that the equal treatment to its citizens is the onerous duty of the government imposed by the constitution being the supreme law of the land which otherwise is a hallmark of good governance.

6. The record shows that the petitioners have been striving and struggling for their rights not claim upgradation of their posts on their own whims and wishes but at par with the parameters set by the Government of Khyber Pakhtunkhwa for other set of employees who are similarly placed having the same qualification and performing the same duties. The record further shows that the respondents have even failed to give single reason for not providing them their due rights. In "Fayyaz Ali and 7 others v. Province of Sindh 2013 PLC (C.S) 592", it was held:- "Learned counsel referred to judgment of Supreme Court in the case of Abdul Shakoor v. Government of Pakistan through Secretary, Establishment Division, Islamabad and 2 others (C.P.No. 40 of 1999). The petition related to employee of Customs, Central Excise and Sales Tax Department who sought removal of disparity and discrimination in pay scales in services of Pakistan as being violative of various Articles of the Constitution of the Islamic Republic of Pakistan. After exhaustive analysis of case-law the Supreme Court observed as under:-- "From the above quoted cases, it can be deduced that persons holding similar posts with similar duties should not be treated differently in their pay scales simply for the reason that they belong to different departments. Under Articles 37 and 38 of the Constitution of Pakistan, the State is bound to promote social justice, social and economic well being of the people and particularly under clause (e) of Article 38 it is the obligation of the State to reduce disparity in the income and earnings of individuals, including persons in various classes of the service of Pakistan, thus, it is the duty of the State to remove disparity and discrimination in Pay Scales of similarly placed persons in various classes of service of Pakistan." The aforementioned view was also affirmed by the learned Lahore High Court in "Muhammad Idrees and 6 others v. Federation of Pakistan 2015 PLC (C.S.) 183"

7. In view of the above, this petition is allowed. The petitioners are ordered to be given the same grade and treatment as has been given to the similarly placed employees of the Provincial Government (Education Department) as reflected in the working paper of respondents mentioned in Para 2 above. ZC/6/P Petition allowed.