1990CLC136 (PLP)

4. At the request of learned counsel for the parties, the case has been adjourned from time to time to enable the Government of Punjab to amicably resolve the dispute outside the Court. This however, did not bear fruit, as is apparent from the statement made by Mr. Maqbool Elahi Malik, the learned Advocate‑General on 23‑10‑1989, which may be reproduced: "In view of the observations which this Honourable Court has made in various interim orders, a high level meeting was convened which was participated, besides the Chief Secretary, Government of Punjab, by the Secretary Finance, Secretary Regulations, Law Secretary and Secretary Development and Planning, Government of Punjab suggested that in view of the financial constraint which had been pointed out by the Finance Department, the Secretariat Allowance of 20% should be; divided equally between the Secretariat Employees and the Secretarial Staff of the High Court, to which the response was that having given 10% allowance to the Secretariat Staff of the High Court, the remaining 111% will have to be divided amongst the Secretariat Staff of all the attached Departments of the Government, which will be absolutely negligent. Apart from that, the Government functionaries were of the view that if the Secretariat Allowance is given to the Secretariat Staff of the High Court, then they will have to accommodate the Secretariat Staff of the other attached Departments as well, for which there ‑are no funds available with the Government." .5. Learned Advocate‑General has raised a preliminary objection as to the maintainability of the writ petition. He submitted that the grievance of the petitioners relates to terms and conditions of their service and, therefore, the appropriate service tribunal has the exclusive jurisdiction to deal with the matter, as envisaged by Article 212 of the Constitution read with Section 3 (2) of the Punjab Service Tribunals Act (IX of 1974).

6. The contention has no force. In Manroor4 Hussain and others v. Province of Punjab (1989 P L C (C.S.) 42), a learned Single Bench of this Court held that the officers and servants of the High Court do not fall within the ambit of expression "civil servants" occurring in section 2 (b) of the Punjab Civil Servants Act (VIII of 1974) and, therefore, the jurisdiction of the High Court is not excluded from examining their grievance relating to the terms and conditions of their service. Respectfully following the ratio laid down in the precedent case, the I preliminary objection is overruled. It may also be mentioned that the Supreme Court refused to grant leave to appeal against the said judgment of this Court. Refer unreported judgment in Province of Punjab v. Manzoor Hussain etc. (C.P. Nos. 10 & 11 of 1989). The review filed by the Punjab Government was also dismissed by the Supreme Court in C.R.Ps. No.6/R and 35/R of 1989 on 8‑10‑1989.

7. The learned Advocate‑General, relying on Article 208 of the Constitution raised another preliminary objection that the High Court with the approval of the Governor, is to make rules for the appointment of its officers and servants and for terms and conditions of their service. The submission is that no rule has been made by the High Court for the grant of impugned Secretariat allowance and it, therefore, does not form part of the terms and conditions of the petitioners. In this background,it is argued that the grievance of the petitioner is not justiciable.

8. It appears that the learned Advocate‑General has overlooked rule 22 of the High Court Establishment (Appointment and Conditions of Service) Rules, which provides that in respect of salaries, allowance, leave or pension, the members of the establishment shall be governed by the Civil Service Rules (Punjab), as amended from time to time. It is, therefore, apparent that no further rules are required to be framed under Article 208 of the Constitution in order to extend the benefit of the impugned memorandum to the employees of the High Court. This objection is also misconceived and is hereby overruled.

9. Dr A. Basit, learned counsel for the petitioners vehemently argued that there does not appear to be any rational basis for discriminating the employees of the Lahore High Court with those working in the Punjab Secretariat and the .Board of Revenue etc. for the purpose of eligibility of the Secretariat allowance:

10. Mr Maqbool Elahi Malik. learned Advocate‑General argued that the category of Secretariat employees and other employees mentioned in the impugned memorandum is the general category and the benefit of Secretariat allowance extends to all persons who come within the purview of that category, and, therefore, it is valid classification and had a rational basis. There is no discrimination at all. The learned Advocate‑General also argued that the Punjab Government merely adopted the course of action approved by the Federal Government in its policy decision referred to above. He argued that the Federal Government has not extended the Secretariat allowance to the employees working in the Supreme Court and Federal Shariat Court, Similarly, the employees working in the High Courts of the other Provinces have not been granted the allowance. The Punjab Government has not extended the benefit to the employees working in their special institutions or the attached departments. The submission of the learned Advocate‑General is misconceived. The mere fact that the employees of the Supreme Court, Federal Shariat Court or the servants and officers of the other High Courts have not allegedly made grievance of the refusal to grant the impugned allowance, would not constitute a bar on the C petitioners, who have competently invoked the constitutional jurisdiction of this Court for redress of their grievance which is to be adjudged on its own merits and in accordance with law.

11. The learned Advocate‑General strongly relied on Amarjit Singh v. State of Punjab (1975) 3 SCC 503), Jibendra Kishore Achharyya Chowdhury v. The Province of East Pakistan (P L D 1957 SC (Pak) 9), Zain Noorani v. Secretary of the National Assembly of Pakistan (P L D 1957 (WP) Karachi 1), The State of Bombay v. F.N. Balsara (A.I.R. (38) 1951 S.C. 318), Kedar Nath Bajoria v. The State of West Bengal (A.I.R. 1953 S.C. 404), Asgharali Nazarali Singaporewala v, State of Bombay (A I R 1957 SC 503), Ram Krishna Dalmia v. Justice Tendolkar (A I R 1958 S.C. 538) and F.B. Ail v. The State (P L D 1975 S.C. 506), to contend that the classification of citizens is permissible which should be reasonable and the equal protection of law does not mean that every citizen, no matter what his condition, must be treated in the same manner.

12. The learned Advocate‑General further argued that the Secretariat staff 'of the High Court has always been dealt with under separate set of rules and their remuneration and allowances have been regulated differently from the Secretariat staff of the Provincial Government Secretariat.

13. Having studied the case‑law, the phrase equal protection of law envisaged by Article 25 of the Constitution means that no person or class of persons shall be denied the same protection of laws which is enjoyed by persons or other class of persons in like circumstances in respect of their life, liberty or property, or pursuit of happiness. The persons similarly situated or in similar circumstances are to be treated in the same manner. The equality clause forbids class legislation, but does not forbid classification which rests upon reasonable classification. It does not mean that the laws must be general in character and universal in application and the State does not have the power to distinguish or classify persons or things for the purpose of legislation.

14. In the light of the ratio laid down in the precedent cases, the sole question which requires consideration is, whether petitioners employees of the High Court for the purpose of admissibility of Secretariat allowance are similarly situated and working in similar circumstances with those in the Secretariat of the Punjab Government and other institutions and the Board of Revenue. If the answer is in the affirmative, there is no rational basis for such differentiation merely because the employees of the High Court are not working in the Punjab Secretariat or that the employees of the Supreme Court and the Federal Shariat Court were not given the benefit of the impugned memorandum.

15. The Punjab Government had not undertaken the exercise to determine whether the employees of the High Court are similarly situated and working in similar circumstances as those to whom the disputed allowance has been granted, although numerous adjournments were taken by the learned Advocate‑General for this purpose. However, during the pendency of the writ petition, the Finance Secretary of the Punjab Government submitted a summary to the Chief Minister, Punjab, recommending therein that the secretariat allowance may not be granted to the employees of the High Court inter alia with the following observations:‑ "The rationale of granting Secretariat allowance is a policy matter and the considerations for such a decision may not only be the specified nature of the job but could also be to provide incentive to the officers/officials to work in the Secretariat."

16. When the writ petition came up for hearing on 13‑5‑1989, the learned Advocate‑General appeared along with the Finance Secretary and the Secretary & C and took the following stand:‑ "The Punjab Government is of the view that employees of the High Court are not equally placed nor is their work similar to those working in the Punjab Civil Secretariat, inasmuch as, the functions of the employees of the High Court are different from the functions of the employees of the Secretariat."

17. In the interest of justice, the case was adjourned to enable the Punjab Government and the petitioners to place material in support of their respective pleas.

18. The Punjab Government has placed on record an additional report dated 5‑7‑1989 showing the job description of the Chief Secretary, Additional Chief Secretary, Administrative Secretary, Additional Secretary, Deputy Secretary, Section Officer, Superintendent, Private Secretaries to Ministers, Advisers and Secretaries, Senior Scale Stenographers P.A. Section Stenographer, Section Assistant, Clerks, Daftri, Naib‑Qasid. Para 4 of the report reads:‑ "The difference in functions, duties and responsibilities of organizations .is necessarily reflected in functions, duties and responsibilities of their functionaries. Possession of similar academic qualifications, experience and skills by the employees cannot be considered the basis for comparison of their functions. Private Secretary to an Honourable Judge of the High Court and to a Secretary of Government, for instance, perform entirely different functions and duties because they partake the functions of their superiors who in turn partake the functions of the organizations in which they are placed. To quote the areas of distinction it may be pointed out that whereas the former do not have to do any public dealings, the latter are supposed to remain involved in these almost throughout their work hours. The latter's function in assisting the Secretaries in policy formulation is beyond the scope of duties of the former because the High Court is not a policy formulation organ. This difference permeates the working of all levels of the High Court and Punjab Secretariat."'

19. The Additional Registrar of the Court has also placed on record, the duty chart showing the job description of the Additional Registrar, Officer on Special Duty (Judicial), Deputy Registrar, Superintendent, Assistant, Senior Clerk, Junior Clerk, Private Secretaries/ Personal Assistants of this Court.

20. I have gone through the material placed on record, which would clearly show that the employees and servants of the High Court are similarly situated and working in similar circumstances with those working in the Secretariat of the Punjab Government and other institutions to which the impugned memorandum has been made applicable. The denial of the disputed allowance cannot be justified on the ground that the Private Secretaries to the learned Judges of the High Court have neither any public dealing nor any role in policy formation. Such factors are wholly extraneous in the context of the present controversy. The Private Secretaries, Personal Assistants and other staff of this Court are supposed to perform their duties not only throughout the working hours of the Court, but also at late hours and even on holidays. There is, therefore, no area of distinction in the matter of performance of their functions on the grounds stated in paragraph No.4 of the additional report submitted by the Punjab Government. Refer D.S. Nakara v. Union of India (A I R 1983 SC 130), wherein the Supreme Court of India examined the vices of classification in the matter of revised formula between the pensioners on the date of retirement specked in the memorandum issued by the Indian Government and those retired on an earlier date. It was held "the doctrine of classification was evolved to sustain a legislation or State action designed to help weaker sections of the society or some such segments of the society in need of succour. Legislative and executive action may accordingly be sustained if it satisfied the twin tests of reasonable classification '' and the rational principle correlated to the object sought to be achieved. The State, therefore, would have to affirmatively satisfy the Court that the twin tests of reasonable classification and the rational principle correlated to the object sought to be achieved. The State, therefore, would have to affirmatively satisfy the Court that the twin tests have been satisfied. It can only be satisfied if the State establishes not only the rational principle on which classification is founded but correlates it to the objects sought to be achieved. Where all relevant considerations are the same persons holding identical posts may not be treated differently in the matter of their pay merely because they belong to, different departments. If that cannot be done when they are in service, can that be done during their retirement? Expanding this principle, it can confidently be said that if pensioners form a class, their computation cannot be by different formulae affording unequal treatment solely on the ground that some retired earlier and some retired later."'

21. IL is true that the principle relating to the permissible classification for determining the validity of a statute with reference to Article 25 of the Constitution does not forbid reasonable classification for the purpose of legislation. The phrase "equal before law and are entitled to equal protection of F law" under Article 25 (1) of the Constitution does not mean that it secures to all persons the benefit of the same law. It only means that all persons similarly situated or circumstanced shall he treated alike, The petitioners arc found to he similarly placed and circumstanced with those working in the Secretariat, Board of Revenue etc. and, therefore, in the matter of admissibility of the disputed allowance, there can be no discrimination.

22. Under rule 22 of the High Court Establishment (Appointments and Conditions of Service) Rules, the officers and servants of the High Court establishment in the matter of allowances etc. are governed by the Civil Servants Rules Punjab, as amended from time to time and, therefore, they are entitled to the benefit available under the impugned memorandum.

23. There is no force in the stand taken by the Provincial Government a reflected in the statement dated 23‑10‑1989 of the learned Advocate‑General that they are unable to grant the impugned allowance to the petitioners in view of the financial constraints. Suffice it to say that protection of Article 121 of the, Constitution is available to the petitioners, which inter alia provides that the administrative expenses, including the remuneration payable to officers and servants of the High Court shall be expenditure charged upon the Provincial Consolidated Fund. This being so, the impugned allowance having been found admissible to the officers and servants of the High Court, it becomes a charge on the Provincial Consolidated Fund. In view of the above, the Government of Punjab is directed to make available all benefits under the impugned memorandum No.FD. PC‑2‑1/88 dated 8‑8‑1988 to the petitioners w.e.f. 1‑7‑1988. The arrears of the disputed allowances be paid to the petitioners within three weeks. The writ petition is accepted 1vith costs. A copy of this judgment be sent to the Accountant General Punjab, Lahore. A.A./M‑1681 /L Petition accepted.