2012 PLP (C (PLC(CS))

MUHAMMAD FARRUKH IRFAN KHAN, J.

Grievance of the petitioners is that despite issuance of notification dated 29-6-2007 by the President of Pakistan for upgradation of post of Assistant from BS-11 to BS-14 the respondents have deprived the petitioners from enjoying this benefit.

2. Learned counsel for the petitioners submits that the petitioners were appointed as Field Health Assistant BPS-11 in the year 1987; that President of Pakistan vide notification dated 29-6-2007 upgraded the posts of Assistant from BS-11 to BS-14 and in this regard the Finance Division has also issued a circular dated 25-8-2010; that pursuant to these notifications the petitioners moved their representations before respondent No.1 for uprgradation of their posts but no action is taken thereon; that the respondent No.1 also upgraded Statistical Assistant from BPS-11 to BPS-14 but the case of the petitioners was ignored. Alleges discrimination.

3. I have heard the arguments advanced by the learned counsel for the petitioner and gone through the record.

4. The petitioner's claim based on the Notification No.F.6(4)R.I/ 2006 dated 29-6-2007 which is reproduced as under:

"GOVERNMENT OF PAKISTAN FINANCE DIVISION (Regulation Wing) No.F.6(4)R.I/2006 Islamabad, the 29th June,2007 OFFICE MEMORANDUM Subject: UPGRADATION OF CLERICAL/AUDITORS POSTS. The President has been pleased to approve the up-gradation of the following clerical/ Auditors posts as detailed below w.e.f. 1-7-2011:

Sr. No. Name of the post Existing BPS Upgraded BPS

1. Lower Division Clerk(LDC/ Junior Clerk) BPS-5 BPS-7

2. Junior Auditor BPS-5 BPS-7

3. Upper Division Clerk (UDC/Senior Clerk) BPS-7 BPS-9 4 Assistant/Head Clerk BPS-11 BPS-14

5. Senior Auditor BPS-11 BPS-14 The incumbents of the up-graded posts will also stand upgraded and their pay will be fixed at the stage next above their basic pay in their lower pay scales.

2. The President has also been pleased to approve that employees from BPS-1 to 4 would move one scale up in the pay scales w.e.f. 1st July, 2007.

3. The Establishment Division will amend the recruitment rules of other posts listed at Para I shall be made by the concerned Ministries/ Divisions/Departments in consultation with the Establishment Division.

4. As a special dispensation, the annual increment falling due on 1st December, 2007 shall be admissible to the above mentioned employees in the upgraded pay scales. (S.M. Usman) Deputy Secretary (R.I) 9262704"

5. Bare perusal of the said notification shows that the upgradation is meant for the clerical/Auditors posts. The letter dated 25th August, 2010 of the Finance Department also accords the benefit upgradation to Statistical Assistants. The present petitioners are admittedly Field Health Assistants who are classified differently due to the performance of different duties and educational qualification from the Assistants/Head Clerks and Statistical Assistant as such are different and distinguishable consequently they cannot claim upgradation of their posts on the basis of the said notification.

6. So far as the contention of the learned counsel that respondent No.1 later on included the posts of Statistical Assistants for upgradation vide letter dated 25-8-2010 this was perhaps so as the Presidential Order dated 29-6-2007 was meant for the clerical staff of the Auditors department and Statistical Assistants perform certain functions in the said department.

7. In case reported as I.A. Sherwani and others v. Government of Pakistan through Secretary Finance Division, Islamabad and others (1991 SCMR 1041) the Hon'ble Supreme Court of Pakistan has laid down the following criteria vis-a-vis reasonable classification:

"(a) A law may be constitutional even though it relates to a single individual if, on account of some special circumstances, or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself. (b) There is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles. The person, therefore, who pleads that Article 14 (corresponding to Article 25 of Pakistan Constitution) has been violated, must make out that not only has he been treated differently from others but he has been so treated from persons similarly circumstanced without any reasonable basis and such differential treatment has been unjustifiably made. However, it is extremely hazardous to decide the question of the constitutional validity of a provision on the basis of the supposed existence of facts by raising a presumption. Presumptions are resorted to when the matter does not admit of direct proof or when there is some practical difficulty to produce evidence to prove a particular fact. (c) It must be presumed that the Legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience, and that its discrimination are based on adequate grounds. (d) The legislature is free to recognize the degrees of harm and may confine its restriction to those cases where the need is deemed to be the clearest. (e) In order to sustain the presumption of constitutionality, the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation. (f) While good faith and knowledge of the existing conditions on the part of the Legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the Court on which the classification may reasonably by regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals and corporations to hostile or discriminating legislation. (g) A classification need not be scientifically perfect or logically complete. (h) The validity of a rule has to be judged by assessing its overall effect and not by picking up exceptions cases. What the Court has to see is whether the classification made is just one taking all aspects into consideration."

7. The learned counsel when confronted with the question as to whether the Presidential Notification applies to the Assistants of all the Ministries working under the Federal Government or as to whether this benefit has been accorded to any other Assistants except the Statistical Assistants of the Audit Department, had no explanation to offer. Therefore, it would be safe to infer that the Presidential Notification does not apply to Field Health Assistants working under the Federal Government.

8. The upshot of the above discussion is that the instant petition is not maintainable and the same stands dismissed in limine. M.H./M-86/L Petition dismissed.