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Petitioner: ABDUL KHALIQUE VS Respondent: FEDERATION OF PAKISTAN through Secretary, Board of InvestmentHonorable Justice Aziz-Ur-Rehman,Ms. Nasreen Ali
2016 P L C (C.S.) 530
[Sindh High Court]
Before Munib Akhtar and Aziz-ur-Rehman, JJ
ABDUL KHALIQUE
Versus
FEDERATION OF PAKISTAN through Secretary, Board of Investment and 4 others
Constitutional Petition No.D-1016 of 2015, decided on 1st October, 2015.
(a) Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---
----R. 3(2)---Constitution of Pakistan, Arts.25 & 199---Upgradation of post on the basis of other officials of similarly placed in other departments/organizations---Terms and conditions of service---Discrimination---Vested right---Scope---Petitioner being Public Relation Officer (BS-16) in Board of Investment had sought upgradation of post in BS-17---Contention of petitioner-employee was that Public Relation Officers/Information Officers/Protocol Officers were being inducted in Federal/Provincial Government in BS-17 whereas in Board of Investment the Public Relation Officers were inducted through Federal Public Service Commission in BS-16 and said method of induction was discriminatory---Validity---Petitioner-employee had been claiming upgradation from BS-16 to BS-17 on the basis that other officials similarly placed in some other departments/organizations of Federal/Provincial Government were being inducted in BS-17 instead of BS-16 which could not be said to be a terms and conditions of service---One had to establish that the nature of work being performed was essentially the same for seeking relief on the basis of discrimination---Equal protection of law without any distinction had been guaranteed by the Constitution---Equality clause in the Constitution did not prohibit the framing of different laws in different circumstances---Only 'irrational' or 'arbitrary discrimination' would amount to 'legislative despotism' and same would offend Art. 25 of the Constitution---When 'statutory functionary' had acted with mala fide or in a partial, unjust, oppressive and/or 'discriminatory manner' then its' action could be challenged for violation of equality clause of the Constitution but not otherwise---Petitioner-employee had not pinpointed out violation of any specific provision of law/Rules which could be challenged/questioned on the touchstone of Art.25 of the Constitution---Petitioner-employee had failed to establish any 'vested right' violated by the authorities---Posts of Public Relation Officers advertised by the Federal Public Service Commission were in grade 16---Petitioner-employee being aware of such grade had applied for the same---Question of any discrimination did not arise under the facts and circumstances of present case---Petitioner-employee without questioning/challenging the authority of concerned 'Ministry' or 'Division' viz-a-viz the method to be laid down with consultation of Establishment Division was not within its domain could not claim discrimination or upgradation of the post---Petitioner-employee could not claim to be treated equivalent to 'Information Officer' (BS-17) and `Protocol Officer' (BS-17) having different nomenclatures and performing different duties---Case of petitioner-employee did not fall within the ambit of Art. 25 of the Constitution and he was not entitled to be upgraded from BS-16 to BS-17---Petitioner-employee was being fairly treated and he was never discriminated---'Equal pay' for 'equal work' was an 'integral part' of the Constitution but said principle was not applicable in the present case---Constitutional petition was dismissed in circumstances.
Jibendra Kishore Achharyya Chowdhury and 58 others v. The Province of East Pakistan PLD 1957 SC (Pak.) 9; I.A. Sherwani's case 1991 SCMR 1041; F.B. Ali's case PLD 1975 SC 506; Abdul Wali Khan's case PLD 1976 SC 57; Aziz Begum's case PLD 1990 SC 899; Shirin Munir and others v. Government of Punjab PLD 1990 SC 295 and Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813 rel.
(b) Constitution of Pakistan---
----Art. 25---Equality before law---Scope---Equal protection of law did not envisage that all citizens should be treated in all circumstances as equal rather it would contemplate that person similarly placed were to be treated alike---Equality of persons did not mean that all laws/rules must apply to all the subjects or that all the subjects must have same rights and liabilities---No discrimination could be made on the basis of sex but State might make any special provision of law for the protection of women and children.
(c) Constitution of Pakistan---
----Art. 199---Constitutional jurisdiction of High Court---Object---Object of constitutional jurisdiction was to enforce and protect a 'vested right' and same was not for establishment of a right---Right to be enforced under Art. 199 of the Constitution must not only be an existing right but for seeking remedy under the said Article the infringement of such vested right must be there.
Petitioner in person.
Shaikh Liaquat Hussain Standing Counsel along with Ms. Nasreen Ali, Director General Bol for Respondents.
Dates of hearing: 10th and 16th September, 2015.
JUDGMENT
AZIZ-UR-REHMAN, J.- By means of this Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, filed on 24th February, 2015, the Petitioner viz. Abdul Khalique has sought the following reliefs:-
"(a). The selection Notification of PRO in BS-16 in Board of Investment may please be reviewed.
(b) To direct the Respondent to upgrade the post of PRO from BS-16 to BS-17 w.e.f. 20.02.1999 and included in the seniority list of Assistant Director in BS-17 for next promotion of Deputy Director BS-18 as already Mr. Riaz-ul-Hassan and Mr. Adil Karim have been promoted through same Channel.
(c) To direct the Respondent No.1 to issue Notification for up gradation the post of PROs in BS-17 in Board of Investment.
(d) To grant any relief/reliefs which this Honourable Court may deems fit and proper looking to the circumstances of the case."
2. The brief relevant facts in the background are as follows:-
3. The Petitioner it appears, was appointed as a Public Relations Officer [BS-16] initially on temporary basis in Board of Investment [In short BoI] through Federal Public Service Commission in 2009 and in his such capacity, the Petitioner since then i.e. 9th September, 2009, is performing his duties on the post of PRO in grade 16 and presently he is posted as a Public Relations Officer at Board of Investment Karachi Office at Karachi.
4. Per assertions, the Petitioner is claiming discrimination meted out to him mainly on the plea that the PRO's/Information Officers/ Protocol Officers are being inducted in Federal Government/Provincial Governments in 'BS-17' whereas, in Board of Investment [In short BoI], the PRO's are inducted through FPSC in 'BS-16' which act according to the Petitioner's stand is against the- recruitment rules of Federal Government of Pakistan. Besides, all Assistant PRO's/Assistant Information Officers/Assistant Protocol Officers are also being inducted in Federal Government/Provincial Governments in 'BS-17' whereas, only in Bol, the Public Relation Officers are inducted through Federal Public Service Commission [In short FPSC] in 'BS-16' instead of being inducted in 'BS-17'. The aforesaid method of induction is not only discriminatory but also violative of Article 25 of Constitution of Islamic Republic of Pakistan, 1973.
5. With a view to establish the act of discrimination, it has been averred that in the year, 2004, one Mr. Riaz ul Hassan, Ex PRO/Information Officer 'BS-17' from Sindh Government was absorbed and promoted in BoI as a Deputy Director 'BS-18' who as asserted by the Petitioner is now a Director in BoI Karachi office, in 'BS-19'. Like-wise, one Mr. Adil Karim Statistical Officer 'BS-17' has also been promoted as a Deputy Director 'BS-18' in 2014. In view of this position, the Petitioner claims as being deserved to be upgraded to the post of PRO in 'BS-17' otherwise, as stated the Petitioner shall be seriously prejudiced and victimized if, the post of PRO in 'BS-16' is not upgraded to a post of PRO in 'BS-17'. Hence the instant Petition inter alia with a prayer for directing the Respondent No.1 to issue Notification for up-gradation the post of PRO's from 'BS-16' to 'BS-17' in Board of Investment.
6. On 02.03.2015 when the above petition came-up before the Court then in view of office objection regarding bar of the petition as contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, it was ordered as follows:
"2. Office has taken objection with regard to bar of Article-212 of the Constitution. Petitioner appears in person. Let this matter be placed before Honorable Division Bench-I, for the purpose of scrutiny in light of Supreme Court judgment."
7. Thereafter, on 26.03.2015, when the above petition came- up before DB-I for 'scrutiny purposes' in the light of judgment passed by the Hon'ble Supreme Court of Pakistan dated 5th January, 2015 [Ali Azhar Baloch v. Province of Sindh and others], then the following order was passed:-
"The Petitioner is a civil servant. He is not seeking enforcement of any existing terms and conditions of his service but only seeks that the post of PRO which has been upgraded in other departments may also be upgraded in the Board of Investment. In the light of the judgment of Hon'ble Supreme Court dated 05.01.2015 in Civil Review Petition No.193/2013 and others [Ali Azhar Baloch v. Province of Sindh and others] this petition need not be transferred to the Service Tribunal. Let the matter be placed before the Service Bench of this Court on 07.04.2015 for its decision on merits."
8. Upon service, comments on behalf of the main contesting Respondents were filed. In the comments inter alia it was asserted that posts of 'Public Relations Officers', 'Information Officers' and 'Protocol Officers' are 'distinct' and of 'separate designations' that is to say with different duties, as such, these posts cannot be considered at par with each other. Moreover, the qualification required for filling the post of a Protocol Officer in 'BS-17' and regarding promotion of Information Officers in 'BS-17' is 2nd Class Master's Degree in Information Relations /Journalism/Public Relations/Mass Communication whilst the necessary basic qualification to fill in the post of 'Public Relation Officers' [BS-16] in the BoI is 2nd Class Bachelor's Degree. In view of this position, the Petitioner as being 'Public Relations Officer' [BS-16] and not a 'Protocol Officer' or 'Information Officer' [BS-17], cannot stand qualified/or otherwise, fulfills the requisite criteria much-less for up-gradation of the post of PRO from 'BS-16' to' BS-17'. In the end, the contesting Respondents have asked for dismissal of the above petition as being meritless.
9. Heard the Petitioner in person and learned standing counsel and with their assistance we have also gone through the available record.
10. As far as the objection of the contesting Respondents regarding bar of the petition under Article 212 of the Constitution is conceived, it is worth to note that the 'pay' of the Petitioner though is one of the terms and conditions of service of a civil servant but in the instant case the Petitioner is claiming up-gradation from 'BS-16' to 'BS-17' on the basis that other officials similarly placed in some other Departments/ organizations of Federal and Provincial Governments have been inducted/are being inducted since long in 'BS-17' instead of 'BS-16' which in no event can be said to be a term and condition of the service of Petitioner because in the case in hand the grievance of the Petitioner is that he is being unfairly discriminated by the Respondents. Moreover, as per order of DB-I dated 26.03.2015, the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has already been ordered as not to be transferred to the Service Tribunal [In the case in hand FST].
11. Since, the Petitioner is claiming 'discrimination' on the ground of equality before law as guaranteed by Article 25 of the Constitution of Islamic Republic of Pakistan, 1973, it would, therefore, be appropriate to reproduce herein Article 25 of the Constitution, 1973 which reads as follows:-
"25. Equality of Citizen--(1) All citizens are equal before law and are entitled to equal protection of law.
(2) There shall be no discrimination on the basis of sex alone.
(3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children."
12. The aforesaid Article, it is needless to say, finds place in 'Part II' of the Constitution which contains provisions relating to fundamental rights and principles of policy. The equal protection of law however, does not envisage that all citizen are to be treated in all circumstances as equal rather it contemplates that person similarly placed are to be treated alike. Likewise, it may be noted that equality of citizens does not mean that all laws/rules must apply to all the subjects or that all the subjects must have same rights and liabilities. Moreover, for seeking relief on the basis of 'discrimination' one has to establish that the nature of work being performed is essentially the same.
13. The aforesaid Article, no doubt, not only guarantees an important right of all citizens to be treated equally before law without any discrimination but also it enables them to claim equal protection of law without any distinction. Manifestly, this Article prohibits 'discrimination' on the basis of sex, but at the same time, it also permits the State to make any special provision of law for the protection of women and children. The Constitution, it is significant to note, un-like other enactments is a living document which portrays the aspirations and genius of the people and aims at creating progress, peace and welfare among the citizens and all other nations. The provision of equality before law and equal protection of law since long has been subject-matter of discussion by the jurists, commentators and of several judgments of various Courts including our superior Courts. In Jibendra Kishore Achharyya Chowdhury and 58 others v. The Province of East Pakistan [PLD 1957 SC (Pak.) 9], the clause of equal protection of law came-up for consideration and after dilating upon in details, it was observed as follows:-
"Whatever else the expression 'equal protection of law may mean, it certainly does not mean equality of operation of Legislation upon all citizens of the State. The expression has been borrowed from the Fourteenth Amendment to the Constitution of the United States which was intended to secure to the emancipated negroes, equal rights to the enjoyment of life, liberty and property .... no rule has yet been formulated by the Supreme Court as to what may be regarded as a denial of the 'equal protection of the laws' that will embrace every case and the application of the principle has always depended on the facts of each case some broad propositions as to its meaning have been enunciated. One of these propositions is that equal protection of the laws means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in like circumstances, in their lives, liberty and property and in pursuit of happiness. Another generalization more frequently stated is that the guarantee of equal protection of the laws requires that all persons shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed. In the application of these, principles, however, it has always been recognized that classification of persons or things is in no way repugnant to the equality doctrine provided the classification is not arbitrary or capricious, is natural and reasonable and bears a fair and substantial relation to the object of the legislation. It is not for the Courts in such cases, it is said, to demand from the Legislature a scientific accuracy in the classification adopted. If the classification is relevant to the object of the Act it must be upheld unless the relevancy is too remote or fanciful. A classification that proceeds on irrelevant considerations, such as differences in race, colour or religion will certainly be rejected by the Courts."
14. Significantly, the 'equality clause' in the Constitution of Islamic Republic of Pakistan, 1973, does not prohibit the framing of different laws in different circumstances provided a rational standard is laid down for to guide the discretion of the relevant authority to choose the appropriate law. Only 'irrational' or 'arbitrary discrimination' would amount to 'legislative despotism' and indeed it would offend Article 25 of the Constitution of 1973. Being this so, it is quite clear that wherever the 'statutory functionary[ies]' acts with mala fide or in a partial, unjust, oppressive and/or 'discriminatory manner', then it's action can be challenged for violation of 'equality clause' of the Constitution, however, if the case is otherwise, then, of course, it cannot be questioned.
15. In I.A. Sherwani's case [1991 SCMR 1041] after considering the judgments in F.B. Ali's case [PLD 1975 SC 506], Abdul Wali Khan's case [PLD 1976 SC 57], Aziz Begum's case [PLD 1990 SC 899], Shirin Munir and others v. Government of Punjab [PLD 1990 SC 295] and several other judgments of the Supreme Court of India, the following principles were deduced in the light thereof.
"(i) that equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike;
(ii) that reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis;
(iii) that different laws can validly be enacted for different sexes, persons in different age group, persons having different financial standings, and persons accused of heinous crimes;
(iv) that no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances;
(v) 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
(vi) that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed,
(vii) that in order to make a classification reasonable, it should be based---
(a) on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out;
(b) that the differentia must have rational nexus to the object sought to be achieved by such classification."
16. In the case in hand, it is important to note that the Petitioner is alleging 'discrimination' but without pin-pointing violation of any specific provision of law/Rules which can be challenged/questioned on the touch stone of Article 25 of the Constitution of 1973. The Petitioner in the present case has also failed to establish any 'vested right' as being violated by the Respondents. Needless to say, for seeking a relief much-less under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, there must be an established and a bona fide right which may be 'statutory right' or otherwise, but indeed it ought to have been recognized by law. Moreover, such right must be clear and, of course, free from any sort of controversy that is to say, where recording of evidence is not required. The object of proceedings to be initiated under Article 199 of the Constitution is the enforcement and protection of a 'vested right' and by no means it is meant for the establishment of a right. The right of which a redressal is being sought under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 must not only be an existing right but for seeking remedy under the Constitutional jurisdiction, the infringement of such vested right must be there. From the case of Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others [2011 SCMR 1813] on the aforesaid aspect of the matter, the relevant observations read as follows:-
10. ..."It is incumbent upon party seeking constitutional remedy to show that such party has a clear legal right and that such right is so clear as not to admit of a reasonable doubt or controversy. High Court will not go into disputed questions of fact in Constitutional jurisdiction. This is more so when it is supported by attending circumstances and relevant record. Constitutional jurisdiction of High Court, cannot be converted into that of an appellate Court. Disputed questions of fact cannot be entertained or allowed to be reagitated in writ jurisdiction. When the relevant law provides other forums for the purpose. It follows that finding of fact recorded by appellate Court below on appraisal of evidence cannot be disturbed in writ jurisdiction. In constitutional jurisdiction Court does not go into a question involving minute details nor can it decide facts of which no foundation is laid, unless it is shown that such controversy is devoid of supporting record, or perverse." (M.H. Abidi v. State Life Insurance Corporation 1990 MLD 563, Muhammad Nazim v. Rehana Parveen Begum 1990 MLD 344).
11. It is well settled by now that "the superior Courts should not involve themselves into investigations of disputed question of fact which necessitate taking of evidence. This can more appropriately be done in the ordinary civil procedure for litigation, by a suit. This extraordinary jurisdiction is intended primarily, for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority can be established without any elaborate enquiry into complicated or disputed facts. Controverted questions of fact, adjudication on which is possible only after obtaining all types of evidence in power and possession of parties can be determined only by courts having plenary jurisdiction in matter and on such ground constitutional petition was incompetent." (State Life Insurance Corporation of Pakistan v. Pakistan Tobacco Co. Ltd. PLD 1983 SC 280).
17. In the present case, the Petitioner is holding the post of the PRO in Board of Investment [BoI] for which Posts recruitment rules have already been framed by FPSC in consultation with the Establishment Division. All the posts of PRO's thus advertised by the FPSC are in 'grade 16' and the Petitioner as being well aware of such grade had applied for the same with open eyes and as per his sweet will. In view this position, the question of any 'discrimination' as being alleged by the Petitioner under the facts and circumstances of the case in hand does not arise particularly when the Petitioner was also in knowledge of the posts of Assistant PROs/Assistant Information Officers and Assistant Protocol Officers in other Departments of Federal Government and Provincial Governments in grade 17. Being relevant, the Memorandum dated 07th August, 2009 regarding Petitioner's appointment is reproduced as under:-
"By Courier Service No. 1(5)-HR/2004 Government of Pakistan Board of Investment (Ministry of Investment) Attaturk Avenue, G-5/1
Islamabad, the 7th August, 2009
MEMORANDUM
Consequent upon the recommendation of Federal Public Service Commission, Mr. Abdul Khalique has been selected for appointment as Public Relations Officer (BS-16) on temporary basis in the Board of Investment, Islamabad on the following terms and conditions:-
(i) He will draw pay in the BS-16(6,060-470-20,160) and allowances as admissible under rules and revised from time to time.
(ii) He will be on probation for a period of one year with effect from the date of his joining in this office. The period of probation can be extended for a further period of one year if the conduct will not be according to the mark.
(iii) During the period of his temporary employment, his services may be terminated at any time without assigning any reason by giving 14 days notice. In case he wants to terminate his appointment, he has to submit resignation in writing and shall have to continue in Government Service till his resignation is accepted by the competent authority. In case he absents himself without acceptance of resignation he shall render liable to disqualification for future Government Service.
(iv) His appointment will be provisional subject to verification of character antecedent.
(v) He will count seniority in his grade in accordance with rules.
(vi) He will be required to produce Medical Fitness Certificate from Authorized Medical Officer…
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