2019 PLP (C (PLC(CS)N)

GHULAM MUSTAFA MUGHAL, J.

The captioned appeal by leave of the Court arises out of the consolidated judgment dated 20.10.2017, passed by the Azad Jammu and Kashmir High Court in Writ Petitions Nos. 602 of 2014 and 1587 of 2015.

2. Precise facts giving rise to the captioned appeal are that the respondents, herein, filed two writ petitions before the Azad Jammu and Kashmir High Court claiming therein, that the Government of Azad Jammu and Kashmir vide notification dated 10.11.2014, amended rule 19, of the Revised Leave Rules, 1983, whereby, entitlement of leave encashment for 180 days has been substituted by 365 days. The notification further shows that the amendment shall take effect from 01 09.2013. It was averred that the Government of Pakistan vide notification dated 01.09.2012, has inserted the same amendment in the Leave Rules with effect from 01.07.2012. It was stated that the Azad Jammu and Kashmir Council adopted the same amendment on 31.10.2013 with effect from 01.07.2012. It was further stated that the petitioners are retired employees of different departments of the Government of Azad Jammu and Kashmir who have retired between the period of 01.07.2012 to 01.09.2013. It was claimed that the petitioners have been discriminated by issuance of impugned notification, whereby, the retired employees have been given benefit of leave encashment of 365 days, w.e.f, 01.09.2013. After necessary proceedings, the learned High Court through the impugned consolidated judgment dated 20.10.2017, while accepting the writ petitions set aside the notification dated 10.11.2014, to the extent of taking effect from 01.09.2013 and declared that the petitioners/respondents, herein, shall be entitled to leave encashment not exceeding 365 days, provided such leave is available at their credit and subject to other conditions under rules.

3. Mr. Raza Ali Khan, the learned Advocate-General appearing for the appellants, herein, argued with vehemence that the impugned judgment of the learned High Court is contrary to the spirit of section 4(15) of the Azad Jammu and Kashmir Interim Constriction Act, 1974, and has been handed down on the wrong assumption of interpretation of law. The learned Advocate-General further argued that the respondents, herein, cannot be placed similar to the employees of the Azad Jammu and Kashmir Council because they are governed under the different set of rules and their pay and privileges are also slightly different. He submitted that these pay and privileges have been granted to the employees of the Azad Jammu and Kashmir Council vide notification dated 31.10 2013, under the executive authority of the Council whereas, the service of the employees of the Azad Government is regulated by the Civil Servants Act, 1976 and their pays and privileges are regulated by different set of rules. The executive authority is exercised by the Government of Azad Jammu and Kashmir in light of the scheme of the Azad Jammu and Kashmir Interim Constriction Act, 1974. He argued that by no stretch of iniagination, it can be said that the employees of the Azad Jammu and Kashmir Government are similarly placed to the employees of the Council.

4. Raja Gul Majeed Khan, the learned Advocate appearing for the respondents argued that the both the Council and the Government are the creation of the Azad Jammu and Kashmir interim Constriction Act, 1974 and the rights granted by the Constitution to all the state subjects are equal. The learned Advocate argued that the employees of Azad Jammu and Kashmir Government are enjoying same pay and privileges as has been given to the employees of the Punjab Province. He submitted that in some of the cases, the Government has given pay and privileges admissible to the employees of the other provinces. The learned Advocate further argued that in Punjab the notification dated 31.10.2013 has been given effect from 01.09.2012 and almost the same date has been given in all other provinces of Pakistan, therefore, the learned HighC ourt has committed no illegality while extending the benefit of the notification from same date as has been given to the Council employees.

5. We have heard the learned Advocates for the parties and have gone through the record of the case. No doubt that under scheme of the Azad Jammu and Kashmir Interim Constriction Act, 1974, all the State Subject are equal before law and are entitled to equal protection of law, however, the aforesaid clause cannot be attracted in every case especially where the persons are claiming the right of equality before law as is enshrined in the Constitution, if they are not similarly placed to other employees. Under section 12 of the Azad Jammu and Kashmir Interim Constriction Act, 1974, the executive authority of the Government is to be exercised by the Government consisting upon the Prime Minister and the Ministers in the name of the President, whereas, under section 21(7) of the same Act, the Counsel has been given executive authority in the matter it has power to make laws and the authority is exercisable in the name of the Chairman. It means that different set of laws are applicable to the employees of the Council as well as the Azad Government. Their pay and privileges are also surely different. The Federal Government Rules of Business, 1973, have been adopted by the Council for running its business, whereas, The Azad Jammu and Kahmir Civil Servants Act, 1976 and rules made thereunder, has been adopted by the Azad Jammu and Kashmir Government for regulation, induction and promotion of its employees. Therefore, it cannot be said that the employees of the Council as well as the Azad Government are similarly placed. The Azad Government has its own sources of payments of salaries whereas, the Council employees receive pay and privileges form the, Council budget. The rule of equality of the citizens before law is not of general implication has to be considered in light of the circumstances of each case. It has been considered by the Apex Court of Pakistan in various cases. In the case reported as Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others [PLD 1993 Supreme Court 341], after survey of the earlier case law on the subject, following principles were formulated specifying the application of rule of equality before law: - "(i) that equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike; (ii) that reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis; (iii) that different laws can validly be enacted for different sexes, person in different age groups, person having different financial standings, and persons accused of heinous crimes; (iv) that no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances; (v) that a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25; (vi) that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed; (vii) that in order to make a classification reasonable, it should be based

(a) on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out; (b) that the differentia must have rational nexus to the object sought to be achieved by such classification." Judging the present controversy in light of the above settled principles of law, we are convinced that right of equality before law on the basis of which the impugned notification has been declared violative of section 4(15), was not attracted case in the case in hand. We have also noticed that the learned High Court in the impugned judgment has simply declared that the employees of the Azad Kashmir Government are entitled to leave encashment from the same date as has been given to the employees of the Council or Punjab Government. This direction tentamounts to amend the rules by the Court itself. At the most, if a proper case is made out, then the Court can direct the Government to amend the rules in accordance with law. The impugned judgment is, therefore, not maintainable on this score too. In view of the above, while accepting this appeal the impugned judgment passed by the learned High Court dated 20.10.2017 is hereby vacated and the petitions filed by the respondents, herein, stand dismissed with no order as to costs. ZC/43/SC(AJ&K) Appeal allowed.