2002 PLP (C (PLC(CS))

EJAZ AFZAL KHAN, J.‑‑‑Petitioner Banial Murad irr Writ Petition No.986 of 1995 and petitioner Muhammad Khalid Khan in Writ Petition I No. 974 of 1996, who are working as Accountant in BP‑8 and Clerk of Court in BPS‑11. in the Court of Special Judge Anti‑Corruption, N.‑W.F.P., respectively have filed these Constitutional petitions claiming therein a grade at par with that of their counterparts working in the establishment of the District and Sessions Judges and other Civil Courts under the supervisory control of the Peshawar High Court whose posts have been redesignated and upgraded Vide: Notification No.FD (SD‑1) 6‑17/88, dated 1‑7‑1994 but its benefit has not been extended to the petitioners in spite of the fact that they are holding the same posts and performing similar functions.

2. The only point canvassed at the bar by the learned counsel for the petitioner was that by virtue of section 3(1) of the Pakistan Criminal Law Amendment, 1958, the Court of Special Judge, Anti‑Corruption is of equal status to the Court of the District and Sessions Judge as it is presided over by a Senior District and Sessions Judge qualified for appointment as Judge of High Court, therefore, the grade, perks and privileges allowed to the officials of the District and Sessions Courts should also be extended to the petitioners in view of he equivalence of their duties and responsibilities.

3. As against this the learned A.A.‑G., argued that the upgradation of posts and consequent increase in emoluments is a question relating to the terms and conditions of service which is amenable to the jurisdiction of the Service Tribunal and, therefore, not a fit subject for adjudication by the High Court in the exercise of its Constitutional jurisdiction.

4. The points which require our consideration are whether the petitioners are similarly placed and positioned vis‑a‑vis their counter‑parts inasmuch as their duties, functions and responsibilities are concerned and whether the classification as alleged is based on intelligible differentia. The argument of the teamed counsel for the petitioners that there is absolutely no difference between the duties, functions and responsibilities of the petitioners and those of their counterparts working with District and Sessions Judges and other Civil Courts has .not been convincingly resisted and refuted by the learned A.A.‑G. as he could not highlight any difference between them. Even otherwise it is fact too known and well beyond the reach of denial that the Accountant and the Clerk of Court working in the Court of learned Judge Special Court Anti‑Corruption, N.‑W.F.P. perform identical duties, functions and responsibilities as are performed by their counter‑parts in the Courts of District and Sessions Judges and other Civil Courts. When clearly the petitioners are at par with the Accountants and Clerks of Court working in the Courts of District and Sessions Judge and other Civil Courts and there is no difference between their duties etc., then the denial of similar grade to the petitioners is not understandable and cannot be said to have been based on rational and reasonable classification.

5. It is well‑established principles of law that equal treatment of unequals is as condemnable as unequal treatment of equals. If one set of Accountants and Clerks of Court has been grouped together for granting of a higher grade and another set of Accountants and Clerks of Court has been left out notwithstanding the fact that they perform the same and similar duties etc., it cannot be said that this classification is based on intelligible differentia. The principle of equality before law as envisaged by Articles 8(3)(b) and 25(2)(3) guarantees equal treatment amongst equals and persons or things similarly situated and circumstanced. In the case oil Government of the Punjab through Secretary, Finance Department, Lahore v. Mubarik Ali Khan and 8 others (PLD 1993 Supreme Court 375) it was laid down that if the employees of the Federal Shariat Court and the Supreme Court were allowed Secretariat allowance, the employees of the High Court performing almost identical functions could not be denied the same and thus discriminated against. The relevant paragraph merits verbatim reproduction which runs as under:‑‑ "The employees of the Federal Shariat Court and the Supreme Court of Pakistan have been allowed such an allowance. The High Court employees perform almost identical functions as do the employees of these two other Courts perform. The employees of all the three Courts have been dealt with Constitutionally by the same provisions reproduced above. In the circumstances, the High Court's employees cannot be discriminated against. The necessary provision of Secretariat/Personal Allowance had to be made in. respect of such employees as was made in the case of the Federal Shariat Court and the Supreme Court employees. "

6. The argument that the question of upgradation of post being a question of terms and conditions of service is amenable to Service Tribunal and as such not a fit subject for adjudication of the High Court in the exercise of its Constitutional jurisdiction, is not correct as this controversy has been set at rest in the case of Abdul Matin Khan and 2 others v. N.‑W.F.P. through Chief Secretary and 2 others (PLD 1993 Supreme Court 187) wherein it was held that change of grade to a higher pay scale amounts to promotion and, therefore, it is not amenable to the jurisdiction of the Service Tribunal. The relevant paragraph is reproduced as under:‑‑ "The learned counsel for the appellant in Appeal No. 183‑P of .1990 tried to argue that the change of grade to a higher pay scale does not amount to promotion. He wanted to rely on some circular in this behalf. However, when a recent judgment of this Court contrary to his submission was pointed out to him he could not pursue the point any further. It is Government of the Punjab v. Muhammad Awais Shahid 1991 SCMR

696. On this ground alone the Appeal of the Government No.184‑P of 1990 merits to be allowed and it is ordered accordingly. The other Appeal No.183‑P of 1990 is dismissed. There shall be no order as to costs." 6‑A. For the foregoing reasons there is absolutely no doubt in our mind that the case of the petitioners is, by no means, different and distinguishable from that of, their 'counterparts in terms of duties etc., and as such denial of similar grade, thereto, cannot be held to have been based on intelligible differentia. We, therefore, allow these petitions and direct the Provincial Government to allow the petitioners similar grade as is allowed to the Accountants and that Clerks of Court serving' in the Courts of District and Sessions Judges and other Civil Courts under the supervisory control of Peshawar High Court, vide Notification mentioned above H.B.T./405/P? ???????????????????????????????????????????????????????????? Appeals allowed/Order accordingly.