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Petitioner: AMANULLAH KHAN YOUSUFZAI and others VS Respondent: FEDERATION OF PAKISTAN JUDGMENT
Court Name: Sindh High Court Judge(s): Mushir Alam, Tufail H. Ibrahim Title:AMANULLAH KHAN YOUSUFZAI and others vs FEDERATION OF PAKISTAN
JUDGMENT
Reported As: PLD 2011 Karachi 451 Result: Order accordingly Judgment JUDGMENT ' MUSHIR ALAM, C J.---All the above four petitions have been filed by different by and for categories of persons all associated directly or indirectly with the administration of justice, which includes judicial officers of the Districts Judiciary, employees and servants attached to the Districts Judiciary and employees/staff attached to Special Courts under the Federal Government. In all the petitions in essence enhancement of pay and judicial allowance at par with the judicial officer and officers and employees of Districts Judiciary Establishment and employees of Attorney General and Advocate-General in the Provinces of Punjab, Khyber Pakhtunkhwa (KPK) [formerly N. -W.F.P.] and Balochistan is claimed. 2. Petitioners have sought following relief(s) in their respective petition which read as follows:-- C.P. No,D-1465 of 2009: (i) Direct the respondents Nos.1 and 2 to ensure that all District Judges, Additional District Judges, Senior Civil Judges and Civil Judge in the Province of Sindh are provided equal salaries, allowances, privileges and facilities as their counterparts in the Province of Punjab; (ii) Grant such further or additional relief as this Hon'ble Court may deem appropriate in the circumstances. C.P. No,D-1930 of 2009: (1) To declare that the petitioner and other employees of subordinate Courts in BPS-1 to BPS-16 are entitled to the facility of Judicial Allowance and Utility Allowance at enhanced rates as being availed by the employees of Honourable Lahore High Court, honourable Peshawar High Court, Honourable Balouchistan High Court and the failure of the respondents to provide/allocate funds to the subordinate Courts to meet the required expenses.
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(2) To direct the respondents to grant and provide/allocate the required funds for the Judicial and Utility Allowances at the enhanced rates as mentioned in letter No,F.15(12)/03/LJCP/NJPMC dated 18th December, 2007 (Annexure "A") to be paid to employees BPS-1 to BPS-16 w,e,f, January, 2008. (3) To grant any other/further relief(s) as deemed fit and proper in the circumstances of the case. (4) To direct/implement the Term No,13 of National Judicial Policy, 2009 "in the Province of Punjab, the judicial officers of the subordinate judiciary are drawing additional judicial allowances equal to three times of their salaries, therefore, it is desirable that the judicial officers of all the Provinces be treated alike and disparity in their salaries and allowances be removed. ' Term No,14 of National Judicial Policy 2009: The salary/allowances of court staff should also be suitably increased, so that the corruption will minimize and Insaf Zaindabad. C.P. No,D-2318 of 2009: (1) Declare that the petitioners and the Staff of the Advocate-General's Office are liable to be granted 20% Judicial Allowance including 10% Utility Allowance w,e,f, 1-1-2008 as granted by the Government of Punjab, Finance Department, Karachi (sic.) by implementing the orders/judgment and consequently direct the respondents Nos.1 and 2 to act and grant the above Allowances. (2) Declare that the petitioners and the Staff of the Office of the Advocate-General are liable to be granted Medical Facility as granted to the employees of respondent No,2 as well as Secretariat Staff by the Government of Sindh and consequently direct the respondent Nos.1 and 2 to act accordingly. (3) To declare that the petitioners and the Staff of the Office of the Advocate-General are liable to be granted three Advance Basic Salaries as granted to the staff of honourable High Court of Sindh and direct the respondent No,1 and 2 to act accordingly. (4) Declare that the posts of Sr. Scale Stenographers and Jr. Scale Stenographers as well as Assistants and Assistant Librarians are liable to be upgraded and re-designated in view the Annexure - 'G' , "Gil" and "G/2" and direct the respondent Nos.1 and 2 to issue order regarding upgradation of the said posts. (5) Any other relief(s), which this honourable Court may deem fit and proper under the circumstances of the case. C.P. No,D-2433 of 2009: ' Order that the petitioner and the employees/staff of all the Federal Courts may be granted 20% Judicial Allowance and 10% Utility Allowance w. e. f. 01/01/2008 with arrears. 3. In a nutshell, the cases of the petitioners Judicial Officers of District Judiciary, Courts/Tribunal established under Provincial and Federal legislation working under the supervision and control of Sindh High Court including employees and servants of establishment of District Judiciary and Courts/Tribunal working in the subordination of the High Court in terms of Article 203 of the Constitution of Islamic Republic of Pakistan, 1973 is that they are being discriminated with persons similarly placed in other Provinces. 4. It is the case of the petitioners that in order to bring the uniformity in practice, National Judicial. Policy Making Committee was constituted through National Judicial (Policy Making) Committee Ordinance 2002 (hereinafter abbreviated as NJPMC). The NJPMC in terms of its mandate under the Ordinance, 2002 made recommendations for the uniformity of the terms and conditions of Judicial Officers and staff attached to the judiciary right from the District Judiciary to the apex Court. 5. It is the case of the petitioners that NJPMC in HR Case No,2122 of 2006 on 18-12-2007 recommended that High Courts of Sindh, Balochistan and the Peshawar may pay 30% of the pay to the staff of Judges and 50% of the pay to the staff of a Senior Judge transferred along with the Judge to a Bench out of Principal Seat of the High Court and under National Judicial Policy 2009 directed all the honourable High Courts to remove the disparity in salary and bring the salary of judicial service at par with that prevailing in the Province of Punjab.
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6. According to the learned counsel for the petitioners, on the recommendation of NJPMC, the honourable Chief Justice of the respective Provinces have sanctioned the allowances to the officers and staff attached to the respective High Court establishment and such order of this Court dated 13-2-2008 is available at page 37 of the court file in C.P. No,D-1756 of 2009 and similarly with the approval of honourable Chief Justice of Punjab it was complied with on 22-11-2008 and the Peshawar High Court vide Notification dated 4-5-2009 respectively. 7. Learned counsel for the petitioners contend that the judicial officers in all categories and so also the staff and the employees attached to the District Judiciary or Federal/Provincial Courts/Tribunals are a separate class burdened with onerous responsibility, perform their duties untiringly from 8-00 a.m. To 5-00 p.m. Officially and invariably they sit till late night to discharge their arduous duty. In essence it was contended that since Province of Punjab was first amongst other High Courts to act swiftly to implement the recommendation of NJPMC to revise the salaries. It is urged that on account of high inflationary cost even the increase made by the Punjab High Court has become meaningless, nevertheless the judiciary in Sindh is being meted out a discriminatory treatment. 8. It was urged that the then Advocate-General Sindh, had conceded such revision. Learned counsel for the petitioners have drawn our attention to letter dated 21-12-2009 addressed by Principal Law Officer of the Province of Sindh; namely, Advocate-General Sindh to the Chief Secretary and the Secretary Finance Department, Government of Sindh. In the letter while referring to revision made by the other Provinces, it was opined as follows:-- "This disparity in payment is discriminatory amounting to violation offiudamental rights guaranteed under the Constitution of 1973 as such challenged before the honourable High Court of Sindh through the above subject petitions and being heard together. Upon notice the undersigned appeared before the honourable Court on 4-11-2009, 11-11-2009 and 26-11-2009 and undertaken that the petitioner's matter of claim at par with the employees of courts of other Provinces to be resolved without any controversy very soon." 9. It was, therefore, urged that since Principal Law Officer also supports the case of the petitioners. Contrary to the opinion of the Principal Law Officer, Secretary Fipance Government of Sindh expressed apprehension that if such utility allowance and judicial allowance or any other allowances are extended to judicial services who are civil servants working in subordinate courts then the Government will be faced with many such other claims from other civil servants. On 24-3- 2010 Chief Secretary of the Province of Sindh appeared in Court and expressed concern of the Secretary Finance that other government servants will also claim similar benefits. It was observed by the Court that such apprehensions are ill-founded as the establishment of the High Court and that of the District Judiciary formed altogether different categories of civil servants. 10. It was argued by the learned counsel for the petitioners that various special allowances are allowed to the various categories of service which are not admissible to other categories. To illustrate such arguments, it was contended that aviation service allowance, railway allowance, disturbance allowance to the armed force and hazardous allowance, shift allowance, Governor House staff allowance but are few categories of the allowances provided to the different categories of the servants and certainly one category cannot claim benefit extended to a category that perform special functions and duties having nexus to the respective job. 11. Learned counsel have drawn our attention to various authoritative pronouncement of the superior Courts reported as Government of Balochistan v. Azizullah Memon and others PLD 1993 SC 341 (370), Salman Adil Siddiqui v. Province of Sindh (2008 PLC (C.S.) 220) and Abdur Rashid v. Secretary Establishment Division (1991 SCMR 1288). 12. All the learned counsel for the petitioners contended that honourable Chief Justice of the respective High Courts have power and authority to fix the terms and conditions and remuneration
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of the servants and staff of the High Court establishment which powers have been exercised by the honourable Chief Justice of the respective High Courts and as such the petition filed by the staff of the High Court of Sindh establishment being No,D-1756 of 2009 in respect of the employees of the High Court of Sindh was disposed of and the same was filed by the petitioners working in BPS 1 to 16 and another Petition being No, D-1912 of 2009 filed by the employees serving in BPS-17 in the Sindh High Court establishment in view of the Notification dated 2-4-2010 whereby the honourable Chief Justice in exercise of powers conferred under Clause-15, Part-I of the Sindh 'High Court Establishment Rules-2006 has been pleased to enhance utility and judicial allowances to the staff/officials of the Sindh High Court and its Bench at Sukkur, Circuit Courts at Hyderabad and Larkana w,e,f, 1-3-2010 and through another notification of the same date judicial and car allowances were also enhanced and both petitions were disposed of in terms thereof. 13. Mr. Salahuddin Ahmed, learned counsel pleading case for the judicial Officers (C. P. No, D-1465 of 2009) also made elaborate arguments and has taken serious exceptions to the reservation expressed by the Province of Sindh that resources of Sindh are not as compared to the Province of Punjab. Mr. Salahuddin has taken us to the various provisions of the Constitution to bring home his contention that discretion is being meted out by the Government of Sindh and Government of Pakistan and this Court should take judicial notice of the fact that it is the responsibility of the State to ensure elimination of all forms of exploitation and the State as a Guardian of all must act fairly, justly, equitably and the judiciary and staff Honourable or servant attached thereto are to be extended similar treatment throughout Pakistan. If emoluments and salaries of judicial officers and other staff attached to the judiciary are increased leaving other Province of Sindh would certainly create a feeling of deprivation and disparity and would fan the feeling of exploitation. 14. Learned counsel has taken us to Article 25, Article 27, Article 33 and Article 37 of the Constitution of Islamic Republic of Pakistan, 1973 to urge that it is the duty of State to promote social justice and eradicate the social evils, which is only possible if uniform terms are applied and that all persons placed in same classification are treated alike. It was urged that District Judiciary of Sindh is being discriminated in terms of employment and terms and conditions of service including emoluments. According to him, low pay is one of the main reasons of corruption and malpractice. He urged that to avoid parochial, racial, tribal, sectarian and provincial prejudices among the citizens, State it is obligated to treat all persons similarly placed in like manner. To buttress his arguments he referred to the case of Government of Balochistan v. Azizullah Memon 1993 SCMR 1533; Attiyya Bibi v. Federation of Pakistan 2001 SCMR 1161 and Muhammad Akram v. Selection Committee 2003 CLC 18 to highlight such arguments. 15. Mr. Salahuddin Ahmed, learned counsel, also made a very interesting argument that failure of the respondents, including Province of Sindh, to extend equal remuneration in Sindh qualitatively undermines the judicial independence to the citizens of Pakistan residing in the Province of Sindh. To elaborate such arguments, it was contended that access to justice and speedy justice is undeniable right of every citizen and in case the judicial officers and other staff of judiciary in the Province of Punjab are paid better emoluments their efficiency and performance is increased, whereas due to disparity in terms of employment of District Judiciary in Sindh the performance of the officer and the quality of justice would not be at par with that of the Provinces who are being offered better service benefits and this is how the resident and citizen of Pakistan availing judicial dispensation are being deprived of impartial, independent and qualitative justice thus citizen of Sindh are also not treated alike as mandated in terms of Article 4 of the Constitution of Pakistan. 16. Mr. Salahuddin Ahmed, learned counsel, further contends that judiciary is not a provincial subject and the Federation of Pakistan is equally responsible to shoulder its duty to provide all resources to the Province to share the burden as the judiciary an important pillar of State and must
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be looked after well. According to him, High Court and District Judiciary are given to the Province as a matter of convenience. 17. To a specific query by the Court whether this Court can direct executive to allocate the budgetary grant to meet the challenge of increase in the emoluments and benefits, it was argued that while interpreting the Constitution expensive and dynamic interpretation to apply fundamental rights includes terms and conditions of the service and in terms of Articles 3, 37(d) and 38(e) are to be read with Article 25 of the Constitution 1973. It was urged that the judicial officers and the staff attached to the judiciary perform one and the same function in all four Provinces and it is not that the judicial officer in Punjab and other Provinces performs any different functions; therefore, the judiciary as a whole is a class in itself and must be treated alike. 18. Mr. Salahuddin Ahmed, learned counsel, has vehemently argued that the judicial officers in any Province do not discharge or perform any function that is relatable to the Province alone. Elaborating his contention, it was urged that the duty of a judicial officer is to interpret, execute and apply provincial as well as federal laws. It was urged that appointment in the province and post in connection with the affairs of the Province is to be determined under the Act of the Parliament or the Provincial Assembly, as the case may be Judicial Service is separate and distinct class separate and distinct from executive. 19. Our attention was drawn to Item No,55 of the Federal Legislative List Part-1, which gives/empowers the Federation, confer jurisdiction and power to courts except Supreme Court, with respect to any matter in the List. It was urged that Federation has promulgated various laws, which confers jurisdiction on a provincial judicial officer to adjudicate and decide the matters relating to the federal law within the provincial domain. Like for instance Banking Court, Custom Court, Excise and Taxation Tribunal, Special Anti-Terrorist Court and numerous other Tribunals and Courts established under the law are presided over by the judicial officers of the Province. He has also relied upon the case-law of Northern Area of Supreme Court reported in PLC 2010 (C.S.) 141. In the case reported as Government of Punjab v. Mubarak Ali, PLD 1993 SC 375, secretariat allowance to the employees of the Federal Shariat Court or Supreme Court was claimed by the establishment of the Punjab High Court on the ground of equality, same was allowed. He has also drawn our attention to the unreported judgments, where the Advocate-General Office was directed to be placed equally with the Attorney-General Office on the ground that the officers attached to the Principal Law Officer performs similar function as is being performed by the Attorney-General and the officers attached thereto. 20. It was urged that there is no justification to treat the citizen of Pakistan residing in the Sindh to be treated differently and, if that be the case; inevitable outcome will be fanning provincialism. While placing' reliance on the case of Azizuullah Memon PLD 1993 SC 341 at page 374 it was urged that the Court may direct enforcement of the appropriate legislation and likewise the Court may issue appropriate directions to treat judicial officers and staff attached to the Court in equal fashion. 21. Learned counsel for the petitioners further contended that the power to revise the benefits and emoluments of the judicial officers and the other staff attached to the judiciary whether it be district judiciary or superior judiciary should vest with the judiciary and not with the executive functionaries. According to learned counsel trichotomy; in our constitutional dispensation is acknowledged. Object of Judiciary as an independent organ cannot be achieved unless financial autonomy is given. Our attention was drawn to the case of Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others, PLD 1993 SC 341 which reaffirms the principles laid down in the case of Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan, PLD 1989 Karachi 404.
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22. It was urged that this Court under Article 187(2) of the Constitution of Pakistan could order implementation of the directions issued by the honourable Supreme Court in the cases referred to above whereby categorical directions for separation of judiciary and giving financial independence have already been passed by the apex court. Almost 20 years have passed but the neither the Provincial nor the Federal Government has taken any step to separate the judiciary from the executive and to provide financial independence. It was, therefore, sought in the first instance this Court may pass directions to the Government of Sindh to immediately enhance the allowances and salaries structure at par with the Province of Punjab. It was urged that this Court may strike down the terms and conditions prescribed by the Government of Sindh and frame appropriate legislation to provide for Independent Judicial Service Board vesting power in the judicial hierarchy to determine terms and conditions including emoluments. It was urged that reasonable timeframe may be given to the Province of Sindh to frame and take above legislative measures. 23. Mr. Umer Hayat Sindhu and Mr. Ashraf Mughal learned D.A.-Gs, have drawn our attention to the comments filed on behalf of the (sic.) through Mumtaz Ahmed, Section Officer, Law and Justice Division, Federation of Pakistan, in C.P. 1465 of 2009, stand taken by the respondent No,1 is "grant of allowances and benefit Federation of Pakistan, to Subordinate Judiciary is solely the concern of the Finance Department of Provincial Government." It was by the learned D.A.-G. That the matter pertains to Province of Sindh and the Province of Sindh should bear the expenditure within its resources and Federation of Pakistan has nothing to do. It was further stated that in view of the NFC award, Province of Sindh has been allocated sufficient funds to meet the financial challenge. 24. Mr. Miran Muhammad Shah, learned Additional Advocate-General Sindh, contends' that there is no disparity in the service emoluments of different category of civil servants, according to him all the category of persons including the petitioners whether judicial officers or servants and employees of District Judiciary or other Courts and Tribunals working in the Province of Sindh, including employees of the Advocate-General, Sindh are Civil Servant and pay scale of all the civil servant in Province of Sindh are being treated equally and there is no discrimination or disparity according to him judiciary, in Sindh is better placed as compared to other Civil servants in Sindh, as they are paid reasonable Judicial allowance which is not' admissible to other Civil Servants. 25. As regard three fold increases in the salary of Judiciary in the Province of Punjab, it was contended that the salary in Punjab is being paid through overdraft and is artificial increase cannot be made yardstick. It was urged that the financial position of. Province of Sindh is far from weak, according to him, no sooner financial position is improved salaries and emoluments throughout Sindh would be revised and the judicial officers and other staff of judicial establishment would also benefit. 26. Mr. Miran Muhammad Shah, learned A.A.-G. Contends that Judicial Officers of the District Judiciary and staff attached thereto are all Civil Servants, their terms and conditions are governed under the Sindh Civil Servants Act, according to him they do not form a separate class therefore cannot claim different or for that matter better treatment from other Civil Servant governed under Sindh Civil Servant Act, 1973 and emolument and salary of all Civil Servants under Sindh Civil Servants are at par on the contrary, judicial officers and employees of judiciary are being paid judicial allowance, which other Civil Servants in the Province of Sindh are not being paid. 27. Mr. Miran. Muhammad Shah, learned A.A.-G. Referring to the employees of Advocate-General Office submits that they are civil servants and cannot be categorized with the judicial employees nor the secretariat employees. According to him, they may be considered for the grant of judicial allowance and nothing more. 28. Mr. Miran Muhammad Shah, learned A.A.-G., has seriously objected to the claim of financial independence to the judiciary as vehemently argued by Mr. Salahuddin Ahmed, learned counsel
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appearing for some of the petitioners. According to him, this aspect of the matter is not in issue in the instant petition, as it is not the case of financial independence of the judiciary, if at all petitioners are desirous to seek such declaration or enforcement, separate petition may be filed. 29. Mr. Anwer Mansoor Khan, learned counsel for petitioners in C.P. No,D-2318 of 2009 while adopting the arguments of Mr. Muhammad Ali Hakro and Mr. Salahuddin Ahmed, contends that the Advocate-General Offices in Lahore available at page 35, N.-W.F.P. At page 47 and Balochistan at page 49 revision has been made, therefore, they are entitled for equal treatment as are payable to the employees of the Advocate-General Offices in other parts of the country. 30. Exercising the right of rebuttal, Messrs Muhammad Ali Halal) and Salahuddin Ahmed, learned counsel for the petitioners, contend that issue of financial independence of the judiciary has been raised in the petition and it is germane to overall independence of judiciary. It was further contended that this is the relief, which this Court can grant under the facts and circumstances of the case and such relief is not beyond the purview of the petitions. It was further urged that the claim of petitioners was accepted by the Principal Law Officer which is reflected in the various orders including dated 4-11-2009, 21-12-2009 recorded in C.P. No,D-1756 of 2009 and such…
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