2019 PLP (C (PLC(CS))

M. TABBASSUM AFTAB ALVI, C.J.

The above captioned writ petition has been addressed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974.

2. Precise facts of the case are that petitioners are permanent employees of the Azad Jammu and Kashmir Election Commission Secretariat. It is averred that Government-respondent vide Notification dated 31.01.1991, declared that all the employees of Election Commission Secretariat shall avail and enjoy the pay, allowances and all other benefits which are admissible or shall be available in future to their counter-parts, employees of Civil Secretariat of Azad Jammu and Kashmir. It is maintained that vide Notification dated 27.09.2010, the Government -respondent granted special allowance @20% of basic pay, in favour of the employees of Azad Jammu and Kashmir Civil Secretariat. However, respondents, illegally and unlawfully disallowed the benefit of the aforesaid special allowance of 20%, to petitioners, holding that the same was granted to the employees of Civil Secretariat, vide script dated 21.01.2011, hence, the instant constitution petition.

3. The writ petition has been resisted by respondents through written statement, wherein, it is stated that petitioners are not aggrieved persons who have got no locus standi to file the instant writ petition. It is alleged that no violation of any law, rule or fundamental right has been pointed out, therefore, the petition is not maintainable.

4. Raja Hamid Javed Khan, Advocate, appearing on behalf of petitioners submitted that vide Notification dated 31.01.1991, Government-respondent was pleased to allow all the perks and privileges, admissible to the employees of Civil Secretariat, in favour of employees of Election Commission Secretariat. He vehemently contended that vide Notification dated 27.09.2010, special allowance @ 20% of basic pay was granted in favour of employees of Civil Secretariat, however, the same was refused to be extended to employees of Election Commission Secretariat, which is glare discrimination. The learned counsel referred to and relied upon a judgment of the Hon'ble Supreme Court, in case titled Muhammad Akram Khan and others v. Finance Department and others, Civil Appeal No.354/2014, decided on 16.03.2016, and craved for issuance of a direction to respondents for grant of special allowance @20% of basic pay to petitioners as well.

5. Mr. Khursheed Anwar Mughal, the learned Assistant Advocate General, appearing on behalf of respondents, controverted the arguments of the learned counsel for petitioners and contended that petitioners are employees of a special institution, i.e. Election Commission Secretariat, while 20% allowance in question was granted to employees of Civil Secretariat vide Notification dated 27.09.2010, therefore, they are not entitled to the aforesaid special allowance and prayed for dismissal of writ petition.

6. I have perused the file and examined the appended documents, with utmost care.

7. The petitioners are employees of Azad Jammu and Kashmir Election Commissioner, serving in different grades. The Election Commission has been established under Article 50 of the Azad Jammu and Kashmir Interim Constitution, 1974. It is a special institution of Law, Justice, Parliamentary Affairs and Human Rights Department. Their Service is governed under the Azad Jammu and Kashmir Election Commission Department Service Rules, 1989, Government-respondent through Notification dated 31.01.1991, declared that employees of Election Commission Secretariat will be entitled to pay, allowances and other facilities, admissible to their counterparts in the Azad Jammu and Kashmir Civil Secretariat, or would be admissible in future. The said Notification is available on file as Annexure, 'A', and Paragraph No.2 of the same is usefully, reproduced, as under:-

8. It is an admitted fact that through the above reproduced Notification, petitioners, i.e. employees of Election Commission Secretariat were declared entitled to all the perks and allowances, admissible to their counterparts in the Civil Secretariat, at the time and also to be granted in future. Therefore, on the basis of Government Notification, supra, when employees of Civil Secretariat were benefited with special allowance @20% of basic pay, vide Notification dated 27.09.2010, hence, petitioners were equally entitled to the said allowance, as the employees of the Civil Secretariat were and non-payment of the same, in my considered opinion, is discrimination, which is not permissible under law. A similar proposition came under consideration before the Apex Court in case titled, Azad Government of the State of Jammu and Kashmir through Chief Secretary and another v. Abdul Kabeer Qureshi and 51 others 1995 PLC (C.S.)

46. At page 56 of the report, it was observed by the apex Court as under:- 'It is evident from the above paragraph of the Notification that it does not indicate as to why the employees of the Civil Secretariat, President Secretariat, Prime Minister's Secretariat and the Azad Jammu and Kashmir Legislative Assembly Secretariat have been given preference over the respondents, who, as has been held by the High Court, have to perform, if not more, at least, equally onerous duties as civil servants. There appears to be no rationale whatsoever to give a preferential treatment to the employees of Secretariats mentioned in the Notification and, thus, the classification made cannot be regarded as reasonable.' The same view was reiterated by the Hon'ble Supreme Court in another case, titled 'Muhammad Younis v. Azad Government and 3 others' [2010 SCR 271]. The ratio decidendi is reproduced as under:- " . Even by analogy we can safely hold that the appellant is entitled to the same pay and privileges which he was drawing as District and Sessions Judge in BPS-21. Coupled with the fact that the other civil servants re-employed in Azad Jammu and Kashmir have been awarded maximum pay on re-employment, which they were drawing at the time of retirement. The case of the appellant appears to be clearly one of discrimination, not acceptable at law. The time tested principle or a saying 'what is good for the goose is also good for the gender' and 'all state subjects enjoy equal protection of law' which in-fact, is a right recognized by the supreme law."

9. This Court in a similar case, titled Muhammad Akram Khan and others v Azad Government and others (Writ Petition No.786/2011) decided on 27.06.2014, refused 20% allowance to the employees of Muhtasib Secretariat, on the strength of Govt. Notification dated 27.09.2010. However, on appeal the allowance in question was extended to employees of Ombudsman Secretariat by the Apex Court through un-reported judgment, relied upon by the learned counsel for petitioners, titled Muhammad Akram Khan and others v. Finance Department and others, (Civil Appeal No.354/2014) decided on 16.03.2016. The petitioners are, therefore, entitled to equitable relief of writ jurisdiction accordingly.

10. The crux of above discussion is that benefits of Notification bearing No.FDR/ 12850-960/2010 dated 27.09.2010, shall be extended to the employees of the Election Commission Secretariat with effect from 01.07.2010, in similar manners as their counterparts of Civil Secretariat. The petition stands accepted in the manner, as indicated herein above. No order as to the costs. ZC/36/HC(AJ&K) Petition allowed.