2011 PLC (C (PLP)

HAFIZ ABDUL REHMAN ANSARI, J.

This order will dispose of this writ petition (W.P. No.4712 of 2008 Qazi Nazim-ud-Din vs. Secretary Finance and others) as well as Writ Petition No.5329 of 2002 (Shahid Waseem v. Secretary Finance and, others) as common questions of law and facts are involved in both of them.

2. In both the writ petitions, petitioners Qazi Nazam-ud-Din and Shahid Waseem, are respectively Junior Instructor and Instructor at Government Institute of Technology, D.G. Khan. Brief facts are that on the basis of Notification dated 21st of March, 1992 issued by the Government the petitioners were allowed Big City Allowance from April, 1992 but in July, 1992 the respondent No.2 refused to give the said allowance on the ground that the Institution is situated outside the Municipal Limits of D.G. Khan. Respondent No.2 also deducted in instalments the allowance already paid to the petitioners. The petitioners agitated the matter before different forums for grant of said allowance but in vain.

3. Respondents Nos.1 and 2 have filed parawise comments, wherein preliminary objection has been taken that the petitioners being civil servants are required to invoke the jurisdiction of the Punjab Services Tribunal as the matter relates to terms and conditions of service and as such in view of Article 212 of the Constitution the writ petitions are not maintainable. It is further alleged in the report that Government of the Punjab allowed. 45 per cent House Rent Allowance at the minimum of pay scale of Government employees and conveyance allowance with certain rate at all the Divisional Headquarters and Sialkot City within the Municipal Limits at per policy of the Punjab Government vide circular letter dated 21-7-1977. According to the comments of respondent No.2, the office of the petitioner, i.e. Government Institute of Technology, D.G. Khan, is situated at a distance of 11 Kms from the Municipal Limits of D.G. Khan City; that the petitioners are serving beyond the Municipal Limits of D.G. Khan city therefore in accordance with Government of the Punjab Finance Department Circular No.1107-90(SR)1V/77 dated 1-7-1977 they are not entitled to the Big City Allowance; that as per policy of the Punjab Government, house rent Allowance at the rate of 45 per cent and conveyance allowance at certain rates have been allowed to Government Servants posted at Divisional Headquarters and civil servants working outside the Municipal Limits of D.G. Khan Divisional Headquarter, are not entitled to Big City Allowance.

4. Learned counsel for the petitioners contended that the action of respondent No.2 of not giving Big City Allowance to the petitioners and others is unjustified and against law; that the financial benefits once granted to the employees cannot be withdrawn in any way; that the deduction of the Big City Allowance by respondent No.2 from the monthly salary and also withholding of the said allowance is unwarranted under the law; that respondent No.2 and others have illegally ignored the verdict of superior courts, which were shown to him as per orders dated 8-12-2000, 18-7-2001 and 15-1-1999 wherein it has been held that the employees of the Institution situated outside the limits of municipality arc entitled to Big City Allowance.

5. On the other hand, the learned Assistant Advocate-General vehemently controverted the contentions of the learned counsel for the petitioners.

6. I have heard the learned counsel for the parties and perused the record. In the similar case Writ Petition No.20237 of 1997, decided on 15-1-1999, this Court held as under:

"The stand point of the respondents as can be gathered from the averments contained therein is to the effect that the employees of the Lahore High Court, Rawalpindi Bench were allowed house rent allowance at the rate of 45 per cent and conveyance allowance at a certain rate because their work place were since located within the Municipal Limits Rawalpindi but thereafter the courts were shifted to a place beyond the Municipal Limits, therefore, the instant petition is not identical to that of the case of staff of Lahore High Court Rawalpindi Bench. As far the specific plea contained in para-3 of the writ petition that certain officer were granted Big City Allowance which were located beyond the Municipal Limits, the reply rendered was that the office now located at Niaz Baig Thokar were within the Municipal Limits and the case of Income Tax Department, Gujranwala, since the administrative control was that of the Federal Government, therefore, the Provincial Government has no concern but as regards the case of Potato Botanist Sialkot, it was submitted that it was one time decision and such relaxation cannot be allowed by the Government from time to time. As a matter of fact, it was admitted in so many words that the office of the Potato' Botanist was located beyond the limits of Municipal Corporation Sialkot, yet Big City Allowance was granted to them. Confronted therewith, learned Advocate General could not make a plausible answer except that it was argued that it was one time decision and that such relation cannot he allowed to the petitioners. Needless to add, that it was conceded that the office of Potato Botanist was located at a place farther than the office of the petitioners. In these circumstances, the learned counsel for the petitioners strenuously argued that the case of the petitioner cannot be discriminated for it is not allowed that the Big City Allowance is granted to one department of the government and denied to the others while both of them were similarly placed. There is much force in the argument of the learned counsel for the petitioners. It is not only well accepted but also well established that all the citizens are equal before law and are entitled to equal protection of law and to enjoy the protection of law as also to be treated in accordance with law is inalienable right of every citizen. The decision of the Government in granting Big City Allowance to one department (office of the Potato Botanist, Sialkot) and declining the same to the petitioners, whose office is similarly placed is obviously discriminatory and against the equality clause of the constitution as also guarantees provided under Article 4 of the Constitution of Islamic Republic of Pakistan, 1973, therefore, I would grant the mandamus as prayed for."

7. Earlier the petitioners were granted Big City Allowance with effect from April, 1992, which they received upto June, 1992 and later on it was refused on the ground that the Institution of the petitioner is situated outside the Municipal Limits of D.G. Khan and started deduction of the allowance already paid to the petitioners. It is held that the F Institution of the petitioners is not beyond the limits of the Municipality of D.G. Khan. Further, it is established law that the benefit once granted to the civil servants cannot be withdrawn. The petitioners are entitled to receive the Big City Allowance, and its payment to the petitioners have illegally been stopped. Relying on the authoritative judgment of this Court passed in Writ Petition No.20237 of 1997 on 15-1-1999, both these writ petitions are allowed with costs of Rs.50,

000. The petitioners are granted Big City Allowance to be paid to them from July, 1992 when it was discontinued to be paid to them. The cost will be deposited in the Account of the Dispensary of High Court Bar Association, Multan. The petitioners or their counsel has not disagreed with it. M.H./N-80/L Petition allowed.