2014 PLP (C (PLC(CS))

ABDUS SATTAR ASGHAR, J.

Petitioners have invoked the Constitutional jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 alleging that the petitioners possessing degrees of M.Sc. (Chemical Engineering) and M.Sc. (Chemical Technology) are entitled to the grant of Special WAPDA Allowance at the rate of Rs.10,000 per month with effect from 1-1-2009 which has been extended by the WAPDA and its relating Companies/respondents almost to all categories of their employees in BS-17 and above who possess B.Sc. Engineering and Masters Degrees; that the petitioners were constrained to send legal notice dated 24-10-2011 to the respondents seeking grant of special allowance which has been declined through the impugned order dated 3-11-2011; that the impugned order is illegal, arbitrary, discriminatory, violative to the petitioners' right guaranteed under the Constitution, untenable and liable to set aside. Petitioners have also sought for a direction to the respondents to grant the special allowance at the rate of Rs.10,000 per month to the petitioners with effect from 1-9-2009.

2. Learned counsel for the respondents with reference to their reports/parawise comments contends that PEPCO is a Managing Company for all the DISCOs, GENCOs and NTDC; that special allowance of Rs.10,000 per month was allowed to cater for a special situation to attract and harness the best engineering professionals in the respondents' Companies being predominantly engineering and technological organizations; that the allowance is restricted to engineering cadres having bona fide registrations from the Pakistan Engineering Council (PEC), a Regulatory Body for engineering professionals; that the motive behind extending the special allowance is to streamline the compensations proportionate to the value of work performance by the Engineering and Finance/Accounts professionals, composite of skills, efforts and responsibility required in the performance of work and the recruitment and retention needs, taking into account the qualification required to perform the work and market force in respect of employees with those qualifications; that the cadres which do not face any peculiar challenges warranting some remedial actions are not allowed any special allowance. He has further argued that no discrimination or comparison is drawn amongst the various qualifications; that engineering qualification has its own significance and importance but things have to be seen from the angle of its relevance, relative utility and convenience of availability of professionals to the organization; that the petitioners cannot be compared with the cadres of Engineers and Accounts/Audit, as every cadre has its peculiar utility and has to be seen or examined on case-to-case basis for relevance and importance to the organization; that PEPCO and Corporatized Entities are primarily engineering organizations having 90% personnel belonging to engineering cadre; that the respondents have allowed special allowance to Doctors serving in the respondent organizations, however petitioners have no match with the said cadre either by profession or by organization therefore they are not entitled to claim merit equal to the above said cadres; that the petitioners are not discriminated rather declined for special allowance in accordance with operative rules and regulations; that the impugned order dated 3-11-2011 is in accordance with law, rules, standing regulations and thus do not call for any interference.

3. Arguments heard. Record perused.

4. At the out-set it may be expedient to reproduce the relevant letters in chronological order issued by the WAPDA and PEPCO Authorities on the subject, which read below:

1. "PAKISTAN WATER AND POWER DEVELOPMENT AUTHORITY Telephone No.9202482 FINANCE DIVISION (ADMN. 9202211/2225 AND REG) 225-WAPDA House, Lahore No.FO(B&F)3-78/Vol-I/3498-3597 Date 20-2-2009 OFFICE ORDER Subject:- SPECIAL WAPDA ALLOWANCE In supersession of this Division's O.M. No.FO(B&F)/10- 66(b)/ Vol-22/824-923 dated 30-8-2008, the Authority has been pleased to accord approval for restoration of "Special Engineering Allowance" as "Special WAPDA Allowance" at uniform rate of Rs.10,000 (Rupees ten thousand only) per month, with immediate effect, for Graduation Engineers in BPS-17 and above, working in all engineering cadres of WAPDA. Sd/- (Muhammad Farooq Memon)

2. Pakistan Electric Power Company (Pvt.) Limited Office of the General Manager (Human Resources) 159 WAPDA House, Shahrah-i-Quaid-i-Azam, Lahore Tel. (042-9201989 & 9202211/2189 Fax (042) 9202402 Ref. No.GM(HR)/HRD/A-587/2196-2234 Date: March 21, 2009 OFFICE ORDER Subject: SPECIAL ALLOWANCE PEPCO BOD has been pleased to accord approval for grant of "Special Allowance" at a uniform rate of Rs.10,000 (Rupees ten thousand only) per month for Graduate Engineers in all Engineering Cadres of BPS-17 and above working in Corporatized Entities and allied Power Wing Head Office under PEPCO with effect from 20-2-2009. Sd/- (Abdur Rahman) General Manager (HR) PEPCO

3. PAKISTAN WATER AND POWER DEVELOPMENT Telephone No.9202482 FINANCE DIVISION (ADMN. 9202211/2225 AND REG) 225-WAPDA House, Lahore No.FO(B &F)/3-78/Vol-2/887-986 Date 1-9-2009 OFFICE ORDER Subject:

SPECIAL WAPDA ALLOWANCE FOR OFFICERS OF FINANCE, ACCOUNTS, COSTING AND AUDIT CADRES In order to attend and retain qualified persons, the Authority has been pleased to accord approval to the grant of "Special WAPDA Allowance" at uniform rate of Rs.10,000 (Rupees Ten Thousand only) per month to officers in Grade-17 and above working in Finance, Accounts, Costing and Audit Cadres, with immediate effect. This is subject to condition that the allowance shall be admissible only to those officers who possess the minimum qualification of M.B.A/M.P.A/M.Com/M.A. (Economics)/C.A.(Inter)/I.C.M.A (Inter). Sd/- (Muhammad Farooq Memon) Director Finance (Admn. and Regulations)

4. Pakistan Electric Power Company (Pvt.) Limited Office of the General Manager (Human Resources) 189-WAPDA House Shahrah-i-Quaid-i-Azam, Lahore Tel: (042)9201989 and 9202211/2189 Fax: (042)9202402 Ref No.(GM)/HRD/A-332/6823-53 Dated 5-12-2009 OFFICE ORDER Subject:- GRANT OF SPECIAL ALLOWANCE FOR OFFICERS OF FINANCE, ASCCOUNTS, COSTING AND AUDIT CADRERS. PEPCO management has been pleased to accord approval for grant of a Special Allowance at Uniform rate of Rs.10,000 per month to the Officers in BPS-17 and above working in Finance, Accounts, Costing and Audit Cadres w.e.f. 1-9-2009. This is subject to the condition that allowance in question shall be admissible only to those Officers who possess the minimum qualification required for initial appointment in BPS-17 of the respective Cadre i.e. MBA/MPA/M.Com/M.A (Economics)/ C.A.(Inter)/ICMA (Inter)/Master of Administration Science (MAS) Degrees from Higher Education Commission (HEC) recognized Universities. Sd/- Ghaffar Ahmad) Assistant Manager(Admn)

5. PAKISAN WATER AND POWER DEVELOPMENT AUTHORITY Telephone No.9202482 FINANCE DIVISION (ADMN. 9202211/2225 AND REG) 225-WAPDA House, Lahore No. FO(B&F)10-103/Vol.IV/5338-46 Dated 3-8-2011. OFFICE ORDER SUBJECT:-- INCENTIVE TO ATTRACT AND RETAIN DOCTORS IN WAPDA MEDICAL SERVICES. In order to attract and retain Doctors in WAPDA Medical Services, the Authority has been pleased to accord approval for following incentives, w.e.f. 1-7-2011:

(i) Professional Allowance. Grant of Professional Allowance and Rs.10,000 per month for all Specialists, General Duty Medical Officers, Dental Surgeons and allied medical professional officers including qualified Physiotherapists and Pharmacists in WAPDA Medical Services. (ii) Specialist Additional Incentive Specialist in Radiology, Anesthesiology, Oncology and Reconstructive Surgery shall be allowed Specialist Additional Allowance as under:

For lower diploma holders. Rs.15000 per month; For Higher Diploma Holders: Rs.20,000 per month; (iii) Non-practicing Allowance. The existing rates of non-practicing Allowance are revised as under:

BPS-17 and 18 Rs.4000 per month. BPS-17 and 18 Rs.4000 per month, BPS-19 and above: Rs.6000 per month (vi) Critical Patient Care Allowance: Medical Officer working in established Intensive Care Unit(ICU)/Coronary Care Unit (CCU) will be allowed Critical Patient Care Allowance @ Rs.4000 per month. Sd/- (Muhammad Farooq Memon) Director Finance (Admn and Regulations)"

5. Bare appraisal of the above referred orders makes it crystal clear that the benefit of special allowance of Rs.10,000 per month has been extended to all the officers of BS-17 and above working in Engineering, Finance, Accounts, Costing and Audit, Administration and Human Resources Cadres of WAPDA and related Companies. There is no cavil to the proposition that the petitioners also possess equivalent educational qualification which was made basis for grant of special allowance to the above said cadres. Petitioners serving as Chemical Managers possess degrees of M.Sc. (Chemical Engineering) and M.Sc. (Chemical Technology). Nature of their job and responsibilities are not less valuable from other cadres to which benefit of special allowance has already been extended. Extending an additional allowance to the officers of i' one cadre and denying to the other cadre in the same level of skill and responsibilities having equal educational qualification amount to nothing else but discrimination violative to Articles 25 and 27 of the Constitution of Islamic Republic of Pakistan, 1973. On the same principle High Court of Sindh (Circuit Court) Hyderabad in Constitutional Petition No.D-22 of 2012 vide their order dated 1-8-2012 has granted special allowance of Rs.10,000 to the officers in BS-17 and above working in Administration and Human Resource Cadres of WAPDA and this Court in Writ Petition No.19044 of 2009 vide order dated 16-2-2012 has granted Special WAPDA Allowance to the officers in BS-17 and above holding requisite qualifications and working as Assistant Research Officers in WAPDA. Petitioners possessing equal educational qualification, level of skill and responsibilities cannot be discriminated. Petitioners therefore are also entitled to the benefit of Special WAPDA Allowance at the rate of Rs.10,000 per month with effect from 1-9-2009.

6. For the above reasons, this petition is allowed and the respondents are directed to extend the benefit of Special WAPDA Allowance to the petitioners in the above terms. Arrears towards special allowance in terms of this order shall be paid to the petitioners within a period of 90 days. JJK/R-6/L Petition accepted.