2005 PLP (C (PLC(CS))

MOAZZAM HAYAT (MEMBER).

With this judgment we shall decide ' the above titled appeals. The appellants are officers/officials of the Federal Service Tribunal. They have prayed for grant of Special Judicial Allowance which is being paid to the officers/officials of the Supreme Court of Pakistan, Federal Shariat Court and the High Courts of the provinces but has been denied to them. In this regard their representations were rejected by the Federal Ministry of Law vide its order dated 20-12-2003 on the ground that since they were civil servants, therefore, they were not entitled to this allowance. The validity and legality of this order has been challenged in the present appeals.

2. The contention of the appellants is that since they are performing the same duties as are being performed by the employees of the Supreme Court of Pakistan, Federal Shariat Court and the respective High Courts, therefore, under Article 25 of Constitution of the Islamic Republic of Pakistan they are also entitled to the Special Judicial Allowance being- paid to the said employees. They have pleaded discrimination. Reference has also been made to Articles 37 and 38 of the Constitution of the Islamic Republic of Pakistan under which the State is bound to promote social justice, social and economic well-being of the people and to reduce disparity in the income and earnings of all individuals including persons in its service in various departments.

3. All the appeals are resisted by the Ministry of Law and Justice and Ministry of Finance, hereinafter called the respondents. Their contention is that the employees of the Supreme Court, Federal Shariat Court and the High Courts are not civil servants, whereas the appellants are civil servants, therefore, they are not entitled to the Special Judicial Allowance.

4. We have heard the learned counsel for the parties and have also perused the record.

5. The first question of prime importance is as to whether the employees of the Supreme Court of Pakistan, Federal Shariat Court and the High Court are civil servants, at par with the appellants and other employees of the Federal Service Tribunal. The definition of civil servants is given in the Service Tribunals Act, 1973. It says that civil servant means a person who is member of all Pakistan service or of a civil service of a Federation, or who holds a civil post in connection with affairs of the Federation. The employees of the above-mentioned Constitutional Courts do not fall within the ambit of this definition of civil servant. The reason is that such employees are not in any manner connected with the affairs of the Federation. Judiciary is definitely an organ of the State but its main function is to dispense justice and to resolve disputes not only between the citizens but also between the citizens and the State, between the Provincial Governments and between the Provincial Government(s) and the Federal Government. The disputes arising out of the affairs of the Government are resolved by the Constitutional Courts. Thus a special status has been given to these Courts by the Constitution. To preserve the dignity and status of the apex Court and the High Courts Article 208 is provided in the Constitution. It says that the Supreme Court of Pakistan, with the approval of the President" and a High Court, with the approval of the Governor concerned, may make rules providing for the appointment by the Courts of officers and service of the Courts and for their terms and conditions of employment. This Article of the Constitution takes the employees of the apex Court and the High Court out of the orbit of civil servants, So the employees appointed by these Courts are the employees only of these Courts and are not civil servants. It is correct that in some cases even civil servants are posted in these Courts but they retain their status as civil servants till such time they are absorbed in the service of these Courts. This factual position is not controverted. The civil servants appointed in the Courts can go back to their respective departments or they can be merged into the cadre of the Court employees by the orders of the Chief Justices of the respective Courts. If they are not merged they remain civil servants governed by the Civil Servants Act, 1973. In exercise of powers conferred upon the apex Court and the Federal Shariat Court both these Courts have framed rules of service for their employees. Judicial Allowance was given to the employees of the Supreme Court by the Honourable Chief Justice of Pakistan in exercise of powers conferred upon him under rule 3 of the Supreme Court (Appointment of Officers and Servants and terms and conditions of service) Rules, 1982 and the employees of the Federal Shariat Court were given this allowance by the Chief Justice of that Court in exercise of powers conferred upon him under rule 5 of the Federal Shariat Court (Terms and Conditions of Service of Staff) Rules, 1982. It may be noted that no such power has been given to the Federal Service Tribunal to settle terms and conditions of its employees. These facts clearly prove that the employees of the apex Court, Federal Shariat Court and the High Court are not civil servants whereas the employees of this Tribunal are civil servants. It is an admitted fact that most of the employees of the Tribunal belong to various other departments of the Government. They were neither recruited nor appointed by the Tribunal. Since rules of service for employees of the Tribunal have not been framed, therefore, their appointments are made subject to the approval of the Government. The appellants, in the absence of rules of their appointment, terms and conditions of their appointments etc. cannot claim any special status which has been bestowed upon the employees of .the apex Court, Federal Shariat Court and the High Courts.

6. The employees of the Tribunal being civil servants, can file appeals in this Tribunal. and this is what the appellants have done. But the employees of the Supreme Court of Pakistan, Federal Shariat Court and the High Courts cannot take their service related grievances in this Tribunal or in the Provincial Services Tribunals. This difference in selection of judicial forum for redressal of grievances is a litmus test for determining the status of the appellants when compared with the employees of the apex Court, Federal Shariat Court and the High Court. It proves that the appellants are civil servants whereas the employees of the said Court do not fall in the category of civil servants. We are, therefore, constrained to hold that the appellants are civil servants as maintained by the respondents.

7. The officers and servants of the Supreme Court were allowed Judicial Allowance vide Notification No. F.6/118/99-220/C/S.C.A.N dated October 9, 2000. The officers and servants of the Federal Shariat Court were granted this allowance vide Notification No.F.11(46)/2000-Admn., Federal Shariat Court; dated 13th December, 2002. It was made clear in both these notifications that expenditure (on Special Judicial Allowance) will be made from within the sanctioned budget grant of the respective Courts. Thus the employees of these Courts were granted allowance from within the budgetary allocations. The appellants have not to-date calculated the budgetary requirement to meet their demand. Extra budget would definitely be required to meet the demand and the only authority to meet that demand is the Government. Even otherwise the apex Court, Federal Shariat Court and the High Courts have been granted financial independence. These Courts can spend budget allocated to them in the manner which they themselves prescribe. But this is not true for this Tribunal. Even for the allocated budget prior permission of the respondents is required for conversion of amounts from one head to another head. Financial autonomy has not been given to the Tribunal. So even from available budget it cannot order grant of allowance to its employees.

8. The employees of the apex Court, Federal Shariat Court and the High Courts cannot file claims/appeals against the Government for matters relating to the terms and conditions of their service. This aspect of the case gives further strength to our findings that the appellants are civil servants whereas the employees of the said Courts are not.

9. But notwithstanding the differences of status between the appellants on the one hand and the employees of the apex Court, Federal Service Tribunal or the High Courts on the other, the fact remains that the nature of duties performed by the employees of all the Courts is the same. The officers of the Tribunal are performing the same duties as are performed by their contemporaries in apex Court, Federal Shariat Court and the High Court. In the same manner" the servants of the Tribunal are also placed in the same position in which the servants of the apex Court, Federal Shariat Court and the High Court are placed. The contention of the appellants with regard to the nature of their duties is not seriously controverted. It is, however, argued that the Tribunal is not a Constitutional Court, being a creation of Federal Service Tribunals Act, 1973, whereas the other Courts referred by the appellants are Constitutional Courts, therefore, the employees of the Tribunal cannot demand the Special Judicial Allowance. We are not convinced by the argument. It is correct that this Tribunal is constituted under the Federal Service Tribunals Act, 1973 but at the same time it must be appreciated that it is Article 212 of the Constitution which provides for setting up of this Tribunal. Part VII of Constitution pertains to "The Judicature". It is in this part that Articles relating to Supreme Court, Federal Shariat Court, the High Court and this Tribunal are incorporated. Not only this Tribunal is mentioned in Article 212 of Part-VII but it is also stated therein that the Tribunal shall have exclusive jurisdiction in respect of matters relating to the same and conditions of civil servants and matters relating to claims arising from tortuous acts of the Government. Appeals against the judgments of the Tribunal can be filed only in the Supreme Court in cases involving substantial questions of law of public importance. Thus for all intents and purposes this Tribunal is also a product of the Constitution and its status as constitutional Tribunal cannot be challenged.

10. The appellants, though they are civil servants, are presently serving the Tribunal, which is, as held above, a constitutional Tribunal. They are performing almost the same duties as are being performed by their contemporaries in the Honourable Supreme Court and in the Honourable Federal Shariat Court. Their appeals are thus not without merit. On the contrary their claim requires sympathetic consideration of the respondents on the principle `same duty, same pay'. The principle of equal pay for equal work' has been enunciated in AIR 1982 SC

879. It is not only this principle on which the appellants are entitled to Special Judicial Allowance but it is also the requirement of Articles 25, 37 and 38 of our Constitution that they are paid Special Judicial Allowance.

11. The appellants are performing the same duties as are performed by the employees of the apex Court and the Federal Shariat Court but they feel the punch of discrimination when they see that their counterparts are more happily placed since they are getting 20% of their pay as Special Judicial Allowance. It is for that obvious reasons that are taking shelter behind Article 25 of Constitution which clearly says that all citizens are equal before law and are entitled to equal protection of law. This Article does not guarantee equality in the abstract but equality before law. It is argued on behalf of respondents that `equal protection of law' permits classification and equality in literal sense is not possible in any society. This argument is not without force but it is also to be remembered that guarantee of equal protection of laws means that no person or class of persons shall be denied the same protection of law which is enjoyed by other persons or other classes in like circumstances in their lives, liberty, property and pursuit of happiness. The apex Court has laid down certain principles in this regard. The main principle is that the Constitutional guarantee, provided in Article 25, requires that under like circumstances and conditions, both in the privileges conferred and also in the liabilities imposed, all the persons shall be treated alike. So under his Article of the Constitution the appellants have a good cause for agitating their grievance relating to grant of Special Judicial Allowance.

12. But the question is as to which Authority shall resolve the genuine' grievance and demand of the appellants. This Tribunal has no authority in that regard. The appellants have claimed an allowance. Whereas pay is a substantial right of a civil servant an allowance is not his right. Allowances are allowed by the employer particularly when the employer is benevolent and is aware of the difficulties and financial hardships faced by its employees. There can never be a better employer than a benevolent Government. It is thus for the respondents to accede to the request of the appellants for grant of Judicial Allowance. Since Judicial Allowance is not a part and parcel of the pay of the appellants nor any term and condition of their service has been violated by the impugned order, therefore, the present appeals, though having every merit in them, are not competent. The only remedy available to the appellants is to get their case recommended by the Honourable Chairman of the Tribunal and forwarded to the respondents for decision in the light of our observations recorded above.

13. In this context it will not only be expedient but also in the interest of justice to refer to Articles 37 and 38 of the Constitution. Under Article 37(D)&(E) the State shall ensure inexpensive and expeditious justice and make provision for securing just and humane conditions of work. Expeditions justice demands efficient and happily placed officers and employees. It is for the Government to make provision for securing just and humane working conditions for these officers and employees. Article 38 (D) provides not only for facilities for working but also for adequate livelihood with reasonable rest and leisure. These facilities can be provided to the appellants and other employees of the Tribunal who have not filed appeals by the respondents and only by the respondents. We have before us 1994 SCMR 1548. It was observed by the apex Court that "while further dilating upon the provisions of the Constitution, particularly Articles 3,37 and 38 of the Constitution, which enshrine socio-economic principles, it was observed that "these provisions become in an indirect sense enforceable by law and thus, bring about a phenomenal change in the idea of co-relation of Fundamental Rights and directive principles of State Policy". On the strength of this ruling of the apex Court we hold that the appellants have made a just claim for Judicial Allowance to make their lives slightly more comfortable.

14. Judicial Allowance was allowed to all the Judicial Officers in the country notwithstanding their status as civil servants. This concession was not extended to other civil servants because they were not members of judicial service. The judicial officers serving in the Federal Courts are also getting this allowance. On the same analogy this allowance can be given to the employees of the Tribunal for such time they remain in. the service of the Tribunal. We are confident that grant of Judicial Allowance to the employees of the Tribunal on the same pattern on which it has been granted to the employees of the Supreme Court and Federal Shariat Court shall not give any cause of action to other civil servants, the nature of duties of other civil servants being totally different.

15. We accordingly hold that no, direction can be given, to the respondents on the judicial side to grant Special Judicial Allowance to the appellants. However, their claim can be processed on the F administrative side. The Registrar of the Tribunal shall work out the budgetary requirement for grant of Special Judicial Allowance to all the employees. The file shall then be placed before the Honourable Chairman who shall send it to the respondents for a fresh decision in the light of observations made in this judgment along with his own recommendations. The respondents, in reaching a final decision, shall also keep in view this judgment. The entire process may be completed within a period of six months.

16. There shall no order as to costs. Parties be informed. H.B.T./86/FST Appeal dismissed.