1997 PLP (C (PLC(CS))

BASHARAT AHMAD SHAIKH, J.‑‑‑The High Court has accepted a writ petition filed by 217 officers and employees (other than the academic staff) of the Azad Jammu and Kashmir University and has issued a direction to the present appellants to extend the benefit of the Secretariat Allowance, as was applicable to the employees of the Secretariat in light of a Government Notification to the respondents. This order has been challenged by the Azad Jammu and Kashmir University and others by filing an appeal by the leave of the court.

2. After hearing the learned counsel for the parties we have reached the conclusion that the judgment under appeal cannot be upheld. The Notification of 30th of August, 1988, by which the Secretariat Allowance was granted, was issued by the Azad Government of the State of Azad Jammu and Kashmir and Secretariat Allowance was granted to the employees of the Government working in the Secretariat. Sh. Abdul Aziz, the learned counsel for the University, as well as Raja Shiraz Kayani, the learned Advocate‑General who appeared for the Government, have contended that officers and employees of the University are not civil servants because they are not employed by the Government. The learned counsel for the University has taken us through the University Act which shows that employees of the University are recruited by the University and they are paid out of the University funds which consist of fees, donations and grants. They are governed by the Efficiency and Discipline Statute framed by the University. In this view of the matter it seems clear to us that the notification issued by the Government on 30th of August, 1988 has no connection whatsoever with the respondents. They are entitled to pay and allowances sanctioned by the University and not by the Government.

3. An argument was also raised that Allama Iqbal Open University had sanctioned Secretariat Allowance for its employees. This argument does not help the respondents because there is nothing to stop the Azad Jammu and Kashmir University from doing so, if it decides.

4. We also find force in the contention of the learned counsel for the appellants that the writ petition filed in the High Court was hit by the doctrine of laches. The Secretariat Allowance was granted to the Government servants on 30th of August, 1988 and was withdrawn on 19th of December, 1994. The writ petition was filed on 1st of November, 1995 when the allowance had already been withdrawn about a year back. When this submission was made before the High Court it was repelled on the ground that the employees of the University have been making representations before the concerned authorities. In our view it is not a legal ground for brushing aside the delay of more than seven years during which period the situation has undergone a material change and the allowance has been withdrawn even from those to whom it was granted. Another material change is that huge amount of arrears has piled up during the period when the respondents failed to move the Court.

5. The learned Judge in the High Court has also observed that the employees of the University are entitled to equal protection of law. We are unable to subscribe to this view because the respondents before us are employed by the University which has its own structure of pay and allowances and are not similarly placed as the Government servants. We consequently accept the appeal and set aside the order passed by the High Court. However, parties will bear their costs themselves. A.A./164/SC(AJ&K) Appeal accepted.