1995 PLP 1027 (CLC)

4. Mr. Mumtaz Ali Mirza, Deputy Attorney‑General appeared on behalf of the respondents and also filed parawise comments and the relevant portion whereof is reproduced hereunder for ready reference:‑‑ "That at one point of time, the Government of Pakistan did permit the payment of the Secretariat Allowance to the employees of Corporation at Headquarter Office, T.V. Centre, Islamabad and the P.T.V. Academy. However, according to the latest Office Memorandum issued by the Government of Pakistan in the Ministry of Finance (Regulation Wing) under the order5yof the President of Pakistan,, the allowance in question cannot be paid to any employee except that of a Secretariat as defined in the Rules of Business, 1973. The said Office Memorandum further directs that the allowance in question shall continue to be paid to those employees who are already in receipt of it but that they shall be treated as a special case." A preliminary objection has also been raised that the matter does not fall within the jurisdiction ambit of this Court and no writ can be issued against P.T.V. Corporation being located beyond the territorial jurisdiction of this Court. It is argued with vehemence that the impugned. order is no more inforce and 20% Personal Allowance is also no more admissible as per direction of the President of Pakistan except to those who are Secretariat employees. The attention of the Court has been drawn to the huge extra burden on the ex?chequor in case of acceptance of this petition.

5. We have carefully examined. the respective contentions as adduced on behalf of the parties in the light of relevant Provisions of law and record made available. Let we make it clear at the very out set that the objection regarding jurisdiction of this Court as conferred upon it under Article 199 of the Constitution seems to be devoid of merits for the simple reason that the Constitutional jurisdiction of this Court cannot be ousted merely on the ground that Pakistan Television Corporation is located at Islamabad and does not fall within the territorial limits of this Court. The relevant portion of Article 199 of the Constitution is reproduced hereunder for ready reference:‑‑ "Jurisdiction of High Court.‑‑199(l) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,‑‑ (a) On the application of any aggrieved party, make on order‑ (i) directing a person performing, within the territorial jurisdiction of the Court, functions, in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do. anything he is required bylaw to do; or (ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect; or ....... The language as used is simple, plain and free from any ambiguity hence does not require any academic exercise for a scholarly interpretation. The above reproduced portion of Article 199 of the Constitution would make it abundant clear that writ can be issued against any person, who is performing in the Province any function irrespective of its nature relating to the affairs of the Federation, a Province or a Local Authority within the territorial jurisdiction of a High Court. Pakistan Television Corporation is also performing its functions in Balochistan which is an integral part of its Net Work and licence fee is also being collected from` Balochistan in pursuance of the Television Receiving Apparatus (Possession and Licensing) Rules, 1970. The Officers of Pakistan Television Corporation are being posted and transferred inside and outside of Balochistan by the Corporation in exercise of authority vested in it under the relevant rules, the Programmes which are being televised from Quetta Television Centre are subject to the scrutiny and approval of Pakistan Television Corporation at Islamabad, as such by no stretch of imagination it can be imagined that since the Head Quarter of Pakistan Television Corporation is located at Islamabad, therefore, it does not come within the purview of Constitutional jurisdiction of this Court. We would be reluctant to persume such an intention as expressed by Mr. Mumtaz Ali Mirza, Deputy Attorney‑General on the part of the legislature unless the conclusion be inevitable or irresistable on the construction employed, which is not the case here. The jurisdiction being Constitutional cannot be taken away even by any law or enactment and where the law purports to usurp such jurisdiction then it would certainly be ineffective to that extent and subject to interpretation and scrutiny of High Court. In this regard, we are, fortified by the dictum laid down in the following authorities:‑‑ ??????????? .?????????? I

1. Federation of Pakistan v. Saeed Ahmed (PLD 1974 SC 151).

2. Mehardad v. Settlement and Rehabilitation Commissioner (PLD 1974 SC 193). Another important aspect of the matter is that the provisions as contemplated under Article 199 of the Constitution are read together and as such the words "without lawful authority" as used in clause (ii)(a)(1) of Article 199 of the Constitution are suggestive of the fact that Article 199 of the Constitution is applicable to all persons/authorities, Tribunals, Corporations and Autonomous and Semi‑Autonomous bodies subject to Constitution and thus the Constitutional jurisdiction cannot be limited within the boundaries of a Province. The verdict given by the Hon'ble Supreme Court in case titled Abu Ala Maudoodi v. Government of West Pakistan (PLD 1964 SC 673) can be relied upon. An identical matter was dealt with by the Hon'ble Supreme Court of Pakistan in case Asghar Hussain v. Election Commission of Pakistan (PLD 1968 (SC) 387) wherein Election Commission was declared as `A PERSON' performing public functions in the Province of East Pakistan having its Regional Office there, while their Head Office was outside the territorial limits of East Pakistan. It was observed as under:‑‑ "The "The Election Commission is `a person' or `authority' which exercises in the Province of East Pakistan functions in connection with the affairs of the Centre, namely, elections to the office of the President, National Assembly and the Provincial Assemblies and for holding a referendum as provided for in the Constitution. In that the Commission is subject to the jurisdiction of the High Court under Article 98(2)(a)(i) notwithstanding that its main office and Secretariat are located in the Province of West Pakistan. The plain meaning of the words `a person performing in the Province functions in connection with the affairs of the Centre' exclude territorial limitations such as, that the person or authority to whom the High Court is empowered to issue writs must be amenable to its jurisdiction either by residence or location within those territories." Similarly in another case titled Muhammad Aslam Khan v. Federal Land Commission (PLD 1976 Peshawar 66) it was held as under:‑‑ "It is true that the Federal Land Commission is located at Islamabad, but mere reference to its order dated 28‑1‑1975 as in Annexure `A' and the advertisement as in copy Annexure AD‑B would show that it wants to perform some functions in the area of Upper Tanawal which is within the territorial jurisdiction of this Court. The fact that this function is being performed in correction with the affairs of the Federation or the Province is immaterial, for in either case it will be amenable to the jurisdiction of this Court. In this view we are reinforced by the weighty pronouncement of their Lordships of the Supreme Court in Asghar Hussain v. The Election Commission, Pakistan and 2 others PLD 1968 SC 387 and a recent authority of this Court as in Khaista Gul v. Akbar Khan and 7 others PLD 1975 Pesh. 146."

6. The upshot of the above discussion would be that this Court has full jurisdiction to adjudicate upon the matter and accordingly the objection regarding its jurisdiction and maintainability of petition is repelled.

7. It is an admitted position that 20% Special Allowance was given to the employees of Islamabad Television Corporation, but no cogent justification was put forth for this preferential treatment and blessing to only those working at Islamabad. It is also an admitted reality that the employees of Pakistan Television Corporation irrespective of their station of duty are performing similar nature of duties and having identical qualification for their appointment and they are subjected to similar training and rules equal talents, expertise and skills are required for better performance at Islamabad, Lahore, Peshawar and Quetta. In such view of the matter there was entirely no justification for such a preferential treatment to a `particular group' posted at Islamabad and in our view it amounts to discrimination on the one hand and violation of the universally acknowledged and recognized principle of equity, fair play and justice. We may mention here at this juncture that to enjoy the protection of law and to be treated in accordance with law is the inalienable right of a citizen wherever he may be and this right has been embodied in Article 4 of the Constitution. No adverse action detrimental to the interest of any person can be taken except in accordance with law. It has been held time and again that any order or direction passed by any public functionary, person and executive authority, which violates the fundamental rights would certainly be invalid if it does not have the sanctity of a valid contemporaneous law. In this regard following authorities can be I referred:‑‑

1. PLD 1965 Dacca 156.

2. PLD 1965 Lahore 135.

3. PLD 1965 Lahore

112. It was held by Hon'ble Supreme Court that all persons exercising authority in Pakistan must do so only in accordance with law (PLD 1966 SC 1) and as such no direction irrespective of the fact whether issued by the Ministry of Finance or Information can be held lawful till it is based on some valid law and in accordance with the dictates of justice. If there is no sanctity of law behind a directive/notification its validity is always questionable. The learned Deputy Attorney‑General could not show any valid law on the basis of which the employees of Pakistan Television at Islamabad could be entitled for preferential treatment in getting 20% Special Allowance, while the rest of employees at Quetta doing the similar duties be deprived of it without any rhyme or reason or without rational basis. Irrational exercise of discretion irrespective of the fact by whom it was exercised deserves a little consideration. Even otherwise it is well‑settled by now that "all persons shall be treated alike under like circumstances and conditions, both in the privileges and in the liabilities imposed" (12‑Am.Jur, Constitutional Law, Articles 468 and 469 + West Bungal v. Anwar Ali AIR 1952 SC 75 + Sadasib v. State of Orissa AIR 1956 SC 432) ?

8. It is a misconceived notion that classification irrespective of its nature is permissible being a prerogative of the legislature or any authority to whom such functions are delegated under any law, statute or enactment. Every classification must be reasonable, rational and in accordance with the principles of natural justice as far as possible. It hardly needs any elaboration that unjustified, irrational and discriminatory classification is neither permissible nor can be declared valid or lawful. This aspect of t the matter has been discussed elaborately by quoting various judicial '?pronouncement by former Chief Justice of Pakistan in the following words:‑‑ "The equal protection clause does not forbid discrimination with respect to things that are different. All legislation involves classification; and from the earliest days classification has been made by legislatures whereby some people have rights or civil burdens which others do not. The rule is well‑settled that a State ma classify persons or objects for the purpose of legislation and pass laws applicable only to persons and objects within the designated class, according. to the public object it has in view. What is prohibited is class legislation against some and favouring others. But to be valid, classification just be reasonable for the purpose of legislation, should be based on proper and justifiable distinction, should not be clearly arbitrary, nor should it be a subterfuge to shield one class or unduly to burden another. The generally accepted rule on the subject is that the prohibition against denial of equal protection does not preclude the Legislature from confining the legislation to a class or classes, prescribing different sets of rules for different classes, discriminating in favour of or against a certain class; but the rule is subject to the conditions: (1) that classification or discrimination is not arbitrary but reasonable and rests on a real and substantial difference or distinction which bears just and reasonable relation to the legislation or the subject or subject thereof; and (2) that the legislation operates equally uniformly, and impartially on all? persons or property within the same class. This rule has been consistently followed by the Pakistan and Indian Courts ........ The following authorities can also be referred:‑‑ Naseem Mehmood v. Principal, King Edward Medical College, PLD 1965 Lah. 272; State of U.P. v. Kaushaliya. AIR 1964 SC 416; Jialal v. Delhi Administration, AIR 1964 SC 1781; Zain Noorani v, The Secretary of National Assembly PLD 1957 Kar. 1; Progress of Pakistan Company Ltd. v. Registrar, Joint Stock Companies, Karachi, PLD 1958 Lah. 887; State of West Bengal v. Anwar Ali, AIR 1952 SC 75; Baburao v. City of Bombay Housing Board, AIR 1954 SC 153; Surajmal v. Biswanath, AIR 1954 SC 545; State of Bombay v. Balsara, AIR 1951 SC 318; Dhirendra v. Superintendent and Remembrance of Legal Affairs AIR 1954 SC 424." (see. A commentary on the Constitution of Islamic Republic of Pakistan, by Muhammad Munir).

9. The upshot of the above discussion would be that every citizen has to be treated with equality under the law and it is inconceivable that different rules of pay and privileges should be applied to a particular class of people specially in an Islamic country where the law of Shariah which treats all people alike without any distinction of class, cast or status, prevails such discrimination would in fact be hard to find in any legal system. We may reiterate here that the authorities should be most careful in issuance of such directions which may effect the valuable rights of citizens irrespective of the fact whether such authority acted as a regular Court of law or a Special Tribunal, because principle of natural justice are common to all the forums and all kind of cases. The Pakistan Television Corporation could not act capriciously or whimsically. Pakistan Television Corporation is as such bound by law as any other person and if their actions were not warranted by law such actions could be declared as taken without lawful authority. The learned Deputy Attorney‑General has drawn our attention that now onward 20% Special Allowance would be admissible to Secretariat Employees and referred Letter No. F‑8(12)B.13/92 (Part‑48), dated 18th September, 1993. We have carefully examined its contents and reproduce para. `D' of the said letter hereinbelow for ready reference:‑‑ "(d) Where existing personnel in some organizations outside the purview of sub‑para. (a) above are in fact drawing the allowance already will continue to draw the 'same as Personal Allowance as a Special Case. They will cease to draw it on their transfer from the said organization. It will not be admissible to any fresh employee in such organizations." It transpires from the above reproduced para that privilege, protection and preferential treatment already extended shall remain intact to the same class on the basis of respective area of duty and the other employees posted at Quetta will be deprived of the 20% Special Allowance for which their is neither any legal nor moral justification. The said letter itself is discriminatory which provides shelter to a particular group stationed at Islamabad against the genuine protest launched countrywide. In case of merger of Special Allowance in new scales as informed by learned Deputy Attorney‑General any policy may be formulated by the Pakistan Television Corporation as may be deemed fit and proper and in accordance with law and as discussed above. But whatever may be the position equal and uniform treatment is the basic right of all those persons similarly situated and performing the duties in likewise circumstances. There should be no unreasonable and arbitrary distinction and discrimination in the privileges allowances and other benefits to a similar class of person performing the identical duties.

10. In the light of what has been stated above the petition is hereby accepted with the direction that 20% Secretariat/Personal Allowance as granted vide Letter No. H.P./103/10683, dated 11th August, 1988 with the retrospective effect i.e.1‑7‑1988 shall also be applicable to the petitioners. The payment of arrears be made to the petitioners within two months of this order. No order as to costs. AA./530/Q?????????????????????????????????????????????????????????????????? ??????????? Petition accepted.