Stereo. H C J D A-38.

JUDGMENT SHEET
IN THE LAHORE HIGH COURT, MULTAN BENCH,
MULTAN
JUDICIAL DEPARTMENT
Writ Petition No.15368 of 2023

Munawar Hussain Toori

Versus
Government of Pakistan, Establishment Division, Cabinet
Secretariat, Islamabad through its Secretary & others

JUDGMENT
Date of hearing: 17.04.2024.
Petitioner by: Malik Muhammad Tariq Rajwana,
Advocate.
Respondents by: Rana Ghulam Hussain, Assistant Attorney
General along with Shahzad Ali, Assistant
and Malik Imdad Hussain, Assistant, NIRC.

MUHAMMAD SAJID MEHMOOD SETHI, J.:-

Through instant petition, petitioner has sought direction from this
Court for the respondents to pay the perks and privileges / pay and
allowances to petitioner as are being paid to the other Members of the
National Industrial Relations Commission (“NIRC”), especially the
District & Sessions Judges in other provinces.
2. Learned counsel for petitioner submits that petitioner, who is
performing his duties as Member NIRC, is being discriminated in
respect of perks and privileges given to the other Members of the
NIRC posted at other stations and in other provinces in violation of the
equality clause contained in Article 25 of the Constitution of the
Islamic Republic of Pakistan, 1973. He argues that the impugned
actions of respondents not allowing the perks and privileges to the
petitioner as per qualification of petitioner required for appointment for
the post in accordance with Rule 5(a), (d) of the Appointment of
Chairman and Members (Qualifications) Rules, 2022, are absolutely
illegal and without lawful justification. In support of his submissions,
he has referred to Government of the Punjab through Secretary,
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Finance Department, Lahore v. Mubarik Ali Khan and 8 others (PLD

1993 Supreme Court 375), Government of the Punjab through Chief
Secretary, Civil Secretariat, Lahore and 2 others v. Syed Riaz Ali Zaidi
[2016 PLC (C.S.) 1074], Abdul Haleem Siddiqui and others v.
Federation of Pakistan through the Law Secretary, Ministry of Law
and Justice, Pakistan Secretariat, Islamabad and others [2019 PLC
(C.S.) 238] and Muhammad Wassay Tareen v. Government of
Balochistan through Chief Secretary and 2 others [2023 PLC (C.S.)
457].
3. On the other hand, learned Law Officer has vehemently opposed
the above submissions by contending that petitioner is being provided
the perks and privileges of BS-21 (initial appointment) with the
approval of Finance Division, as he has not tendered any regular
service in the Government Establishment / offices as per available
record, therefore, he can only be allowed perks and privileges in terms
of the contract agreement.
4. Arguments heard. Available record perused.
5. Record shows that petitioner was appointed as Member (BS-21),
NIRC on contract basis for a period of three years or till attaining the
age of sixty-five years, whichever is earlier vide notification dated
30.04.2023, issued by the Government of Pakistan, Ministry of
Overseas Pakistanis and Human Resource Development, along with
others, namely Syed Noor-ul-Hussnain, Abdul Ghani, Muhammad
Siraj-ul-Islam Khan, Abdul Qayyum, Sohail Ikram, Muhammad Zubair
Khan and Shabbir Hussain Awan on same terms and conditions.
6. It is the stance of petitioner that he is being treated differently in
respect of perks and privileges given to the other Members of the
NIRC; and that at the time of appointment, it was agreed by
respondents No. 3 & 4 that they will make payment of pay &
allowances to the petitioner as per the pay & allowances of sitting
senior District & Sessions Judges of the respective provinces, however,
while issuing agreement, pay and allowances of non-judicial officers
have been introduced; that petitioner was appointed along with retired
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District & Sessions Judges and their pay and allowances have been
fixed as per the pay and allowances they were lastly receiving,
however, petitioner is being discriminated in the matter qua his perks
and privileges. In support, he has annexed salary slips of similarly
placed other persons, namely Muhammad Zubair Khan and Shabbir
Hussain along with his own, which prima facie establishes difference
between their pay and allowances.
7. The Constitution requires that public functionaries, deriving
authority from or under the law, are obliged to act justly, fairly,
equitably, reasonably, without any element of discrimination and
squarely within the parameters of law, as applicable in a given
situation. Any deviation therefrom can be corrected through
appropriate orders under Article 199 of the Constitution. Reliance is
placed upon Abdul Malik v. Director General (D.G.) Quetta
Development Authority (QDA) and another [2023 PLC (C.S.) Note
63] and Saleem Ahmad v. Government of Khyber Pakhtunkhwa
through Secretary Elementary and Secondary Education and others
[2023 PLC (C.S.) 1043].
8. Although Article 25 of the Constitution allows for differential
treatment of persons who are not similarly placed under a reasonable
classification, however, in order to justify this difference in
treatment the reasonable classification must be based on intelligible
differentia that has a rational nexus with the object being sought to
be achieved. The term “reasonable” was explained and elaborated by
the Supreme Court of Pakistan Muhammad Nasir Mahmood and
another v. Federation of Pakistan through Secretary Ministry of
Law, Justice and Human Rights Division, Islamabad (PLD 2009
Supreme Court 107) wherein the august Supreme Court while
elaborating the dictionary meaning of the term observed that the
dictionary meaning of the word `reasonable' is just, proper, fair,
equitable, and that which is acceptable to a man of common
prudence and that of the word `unreasonable' i.e. unjust, unfair and
that which is not acceptable to a man of ordinary prudence. This
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means that any distinct treatment meted out to a class of persons can
only be sustained under Article 25 if the aforesaid test is satisfied.
Reliance is also placed upon Hadayat Ullah and others v.
Federation of Pakistan and others (2022 SCMR 1691). Similarly, it
is well settled that in order to establish a reasonable classification
based on intelligible differentia, the differentiation must have been
understood logically and there should not be any artificial grouping
for specific purpose causing injustice to other similarly placed
individuals. In Syed Azam Shah v. Federation of Pakistan through
Secretary Cabinet Division, Cabinet Secretariat, Islamabad and
another (2022 SCMR 201), the Supreme Court of Pakistan further
held that the concept of reasonableness is rationally a fundamental
component of equality or non-arbitrariness. This very question was
earlier elaborated by the Supreme Court in the case of Dr. Mobashir
Hassan v. Federation of Pakistan (PLD 2010 Supreme Court 265),
wherein the Court held that intelligible differentia distinguishes
persons or things from the other persons or things, who have been
left out. The Court held that the definition of classification
"intelligible differentia" means differentiating between two sets of
the people or objects, all such differentiations should be easily
understood and should not be artificial. Similarly in the case of
Secretary Economic Affairs Division, Islamabad and others v.
Anwarul Haq Ahmed and others (2013 SCMR 1687), the Supreme
Court further held that by now it is well settled that equality clause
does not prohibit classification for those differently circumstanced
provided a rational standard is laid down. The Supreme Court
further held in the case of Muhammad Shabbir Ahmed Nasir v.
Secretary, Finance Division, Islamabad and another (1997 SCMR
1026), that a law applying to one person or one class of persons may
be Constitutionally valid if there is sufficient basis or reason for it
but a classification which is arbitrary and is not founded on any
rational basis is no classification as to warrant its exclusion from the
mischief of Article 25. It has been further elucidated in Government
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of Khyber Pakhtunkhwa through Chief Secretary and others v. Syed

Sadiq Shah and others (2021 SCMR 747) that it must always rest
upon some real and substantial distinction bearing a just and
reasonable relation to the object sought to be achieved by the
authority. The Court further held that Article 25 forbids class
legislation but it does not forbid classification or differentiation
which rests upon reasonable grounds of distinction. The
classification however must not be arbitrary, artificial or evasive but
must be based on some real and substantial bearing, a just and
reasonable relation to the object sought to be achieved by the
legislation. The Court also held that in order to pass the test of
reasonableness there must be a substantial basis for making the
classification and there should be a nexus between the basis of
classification and the object of action under consideration based
upon justiciable reasoning.
9. Petitioner had legitimate expectancy to receive the same perks
and privileges as were being granted to similarly placed other persons /
colleagues. In judgment dated 19.10.2016, passed by another learned
Bench of this Court in W.P. No. 15184 of 2013, it was settled that
there would be no discrimination regarding allowances paid to regular
judicial officers and advocates appointed on contracts against same
judicial posts. Even, the revised terms & conditions conveyed vide
letter dated 11.02.2022 clearly stipulated that the incumbents will draw
pay / allowances and emoluments at the last stage of BS-21 “alongwith
all admissible allowances including special judicial allowance under
the rules”. This term clearly means all admissible allowances to regular
judicial officers in same grade would be admissible to the petitioner.
Petitioner was appointed against the judicial post having requisite
qualification and practice as an advocate and as such, he could not
have been discriminated for the perks and privileges being paid to
other appointees / Members of NIRC, who were retired District &
Sessions Judges. It is manifestly clear from the pay slips annexed by
petitioner in this regard that petitioner is being treated differently as
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compared to his colleagues, which is absolutely unwarranted under the

equality clause contained in Article 25 of the Constitution of the
Islamic Republic of Pakistan, 1973.
10. At this stage, learned counsel for petitioner submits that the issue
raised through instant petition has already been resolved by learned
Division Bench of the Hon’ble High Court of Balochistan, Quetta vide
judgment dated 18.03.2022, passed in C.P. No.384 of 2020 titled
Muhammad Ishaque Notezai v. Government of Pakistan, Establishment
Division, Cabinet Secretariat, Islamabad through its Secretary &
others, therefore, petitioner, being a similarly placed person, is entitled
to the same relief.
For facility of reference, operative part of afore-referred
judgment is reproduced hereunder:-
“15. According to the detailed difference between the pay
and allowances of the petitioner and that of other members
of NIRC, the petitioner received Basic Pay of Rs. 81,720/-
while the member of NIRC Multan Bench who was appointed
on the same date received Basic Pay of Rs. 136,720/-. The
petitioner received Rs. 77,640/- as a special judicial
allowance while the member of NIRC Multan Bench received
Rs. 145,080/-. The petitioner received a Medical Allowance
of Rs. 4353/- but on the other hand, the member of NIRC
Multan Bench received Rs. 5087/-. The petitioner’s Adhoc
Relief Allowance of 2017 was Rs. 8172/- whereas the
member of NIRC Multan Bench received Rs. 13,672/- as
Adhoc Relief Allowance of 2017.
16. The above is sufficient to make it clear that the
petitioner is being discriminated against with a person
similarly placed in other provinces. It is a matter of record
that the petitioner was appointed on the same terms and
conditions of service as that of the members of NIRC of
other provinces. Thus, the learned AAG would not be legally
justified in opposing the instant relief.
Under such circumstances, the petitioner is also
entitled to the allowance equivalent to that paid to the
member at Multan Bench of the NIRC.
For the above reasons and to avoid disparity of the
pay and other allowances of the employees of the same
class, the instant petition is partly allowed. Consequently, the
petitioner is held entitled to receive Basic Pay of Rs.
136,720/- instead of Rs. 81,720/-, the allowances, i.e.
Special Judicial Allowance (Rs. 145,080/- instead of Rs.
77,640/-), Medical Allowance (Rs. 5087/- instead of Rs.
4353/-) and Adhoc Relief of 2017 (Rs. 13,672/- instead of
Rs. 8172/-) equal to that of Member of NIRC Multan Bench
as mentioned hereinabove. The respondents are directed to
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pay the arrears of the above allowances to the petitioner

accordingly.”

11. In the instant case, there is no reasonable distinction between

the petitioner and other similarly placed individuals mentioned
above and there is no justified reason to isolate the case of the
petitioner from the said other similarly placed individuals because
the discrimination met with the petitioner is not based on any rational
ground or reasonable classification rather it is tantamount to creating
artificial grouping. In view of the above, instant petition is allowed and
petitioner is held entitled to receive perks and privileges equal to the
similarly placed other Members of the NIRC. The respondents are
directed to pay the arrears of the above allowances to the petitioner
accordingly.

(Muhammad Sajid Mehmood Sethi)

Judge

APPROVED FOR REPORTING

Judge
*A.H.S.*