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Petitioner: MUHAMMAD MUNAWAR HUSSAIN VS Respondent: FEDERATION OF PAKISTAN through Secretary Establishment, Government of Pakistan, IslamabadHonorable Justice Riaz Ahmad KhanMuhammad Akhtar Anjum,Muhammad Abid Raja and Raja Muhammad Yaseen
2012 P L C (C.S.) 362
[Islamabad High Court]
Before Riaz Ahmad Khan, J
MUHAMMAD MUNAWAR HUSSAIN and 16 others
Versus
FEDERATION OF PAKISTAN through Secretary Establishment, Government of Pakistan, Islamabad and 4 others
Writ Petition No.2062 of 2010, decided on 23rd September, 2011.
Constitution of Pakistan---
----Arts. 4, 25 & 199---Constitutional petition---Civil service---Upgrading of post---Discrimination---Petitioners were working as Medical Assistants in BS-8 in Islamabad Capital Territory whereas employees working on the same posts in Punjab were in BS-16---Petitioners' contention that they were being discriminated as nature of duties and qualification for the post in Punjab and in Islamabad Capital Territory was the same but they had not been upgraded to bring them at par with similarly placed employees of Punjab Government---Validity---Qualification and nature of duty for the post of Medical Assistants in Punjab and in Islamabad Capital Territory was the same---Article 25 of the Constitution required that persons similarly placed had to be similarly treated, except on the basis of reasonable classification---Qualification and nature of duties of both posts being the same, petitioners could not be treated differently---Petitioners in light of Articles 4 and 25 of the Constitution had the inalienable right to be treated in accordance with law, as in law there should be no discrimination, as all citizens were equal before the law and were entitled to equal protection of law---Equality before law was subject to reasonable classification, but in the present case, there was no question of any classification---Contention of the authorities that petitioners had accepted the post in BS-8 and now they could not claim upgradation, was not correct, as upgradation was not part of the terms and conditions of service---Authorities were directed by High Court to upgrade the posts of petitioners and bring them at par with similarly placed employees of Punjab Government---Constitutional petition was accepted, in circumstances.
PLD 1957 SC 9; 2004 PLC (C.S.) 586; 2004 PLC (C.S.) 1089 and The Secretary, Establishment Division, Islamabad and another v. Zameer Ahmed Thaheem and others C.P. No.911 of 2011 fol.
Muhammad Akhtar Anjum for Petitioners.
Muhammad Abid Raja, D.A.-G. and Raja Muhammad Yaseen Standing Counsel for Respondents.
Date of decision: 23rd September, 2011.
JUDGMENT
RIAZ AHMAD KHAN, J.--- This judgment is directed to dispose of Writ Petition No. 2062 of 2010.
2. Brief facts of the case are that Punjab Government created posts of Medical Assistants in BPS-12, which were upgraded to BS-15 on 30-12-1990. Again these posts were upgraded to BS-16 in the year 1990. In the year 1993, 33% quota of the posts of Medical Assistants were allocated for selection grade in BS-17. The same posts of Medical Assistants were created in Islamabad Capital Territory in BS-8. The petitioners were appointed on the said posts on different dates, which were as follows:---
S. No.
Name
Designation/Grade
Date of Appointment
1.
M.M. Hussain
Medical Assistant (BS-8)
19-9-1990
2.
Hameedullah Farooq
Medical Assistant (BS-8)
1-11-1982
3.
Bashir Ahmed
Medical Assistant (BS-8)
28-7-1986
4.
Zafar Iqbal
Medical Assistant (BS-8)
6-4-1987
5.
Muhammad Latif Abid
Medical Assistant (BS-8)
17-12-1988
6.
Atta ur Rehman
Medical Assistant (BS-8)
29-12-1988
7.
Javed Iqbal
Medical Assistant (BS-8)
8-9-1990
8.
Ghulam Nabi
Medical Assistant (BS-8)
4-9-1990
9.
Afzal Abbas
Medical Assistant (BS-8)
1-11-1982
10.
Muhammad Afzal Khan
Medical Assistant (BS-8)
21-4-1995
11.
Latif Khan
Medical Assistant (BS-8)
11-8-1996
12.
Shoukat Iqbal
Medical Assistant (BS-8)
21-10-1999
13.
Muhammad Rauf
Medical Assistant (BS-8)
26-10-1999
14.
Khalid Mehmood Sabir
Medical Assistant (BS-8)
21-10-1999
15.
Muhammad Saleem
Medical Assistant (BS-8)
15-4-1995
16.
Shams-ur-Rehman
Medical Assistant (BS-8)
4-4-2008
17.
Muhammad Iqbal
Medical Assistant (BS-8)
28-9-1987
The petitioners are working on these posts since the time of their appointment. The instant writ petition has been filed with the grievance that the petitioners are in the same position, as those of other colleagues in Punjab Government and they are entitled to equal treatment, so their posts are required to be upgraded to BPS-16 with effect from the date the petitioners were appointed on the posts with all back benefits.
3. Learned counsel for the petitioner contended that petitioners have been discriminated as nature of duties of Medical Assistant in Punjab as well as in Islamabad Capital Territory are the same, similarly, the qualification is also the same, but even then the petitioners working in Islamabad have been placed in BS-8, whereas the employees working on the same posts in Punjab are in BS-16. According to learned counsel, it is clear violation of Articles 4 and 25 of the Constitution of Islamic Republic of Pakistan and liable to be struck down.
4. On the other hand, learned Deputy Attorney-General assisted by learned Standing counsel submitted that although, the qualification for the said posts is similar in Punjab as well as in Islamabad Capital Territory, however, petitioners had accepted the job in BS-8 and therefore, they cannot claim upgradation of the post. It was further submitted that the Punjab Government has got its own budget and the policies of the Punjab Government are not binding on the Islamabad Capital Territory. The petitioners are, therefore, not entitled to the relief claimed.
5. I have heard learned counsel for the parties and have also perused the record.
6. Admitted position in the present case is that qualification for the post of Medical Assistant is Matric, course of Medical Assistant from any medical faculty, and 3 years experience in the relevant field is also required. It is pertinent to mention that in the comments, respondents had written that qualification for the Medical Assistant in Punjab was F.Sc, but afterwards learned Standing counsel admitted that it was typographical mistake and the qualification was Matric. It was also admitted that qualification for the post of Medical Assistant in the Punjab and in Islamabad Capital Territory is the same. There is also no dispute regarding the fact that the nature of duty of Medical Assistant in Punjab as well as in Islamabad Capital Territory is the same. In addition to that Azad Kashmir Government has also upgraded the post of Medical Assistant and there too, Medical Assistants are in Grade 15/16.
7. Under Article 25 of the Constitution of Islamic Republic of Pakistan persons similarly placed have to be similarly treated, except on the basis of reasonable classification. When the qualification of both posts are the same and both officials are performing the same duties, the petitioners could not be treated differently. The argument that the petitioner had accepted the post in Grade-8 and now they cannot claim upgradation, is not correct, as upgradation is not part of terms and conditions of service. The claim of the petitioners is to be seen at the touchstone of Articles 4 and 25 of the Constitution. It is inalienable right of the petitioner to be treated in accordance with law, as in law there should be no discrimination, as all citizens are equal before law and are entitled to equal protection of law. There is no doubt that equality before law is subject to reasonable classification, but in the instant case there is no question of any classification. In this respect, I have sought guidance from PLD 1957 SC 9, 2004 PLC (C.S.) 586, 2004 PLC (C.S.) 1089 and C.P. No.911 of 2011 titled as "The Secretary, Establishment Division, Islamabad and another v. Zameer Ahmed Thaheem and others.
8. In the above circumstances, I accept this writ petition. The respondents are directed to upgrade the posts of petitioners and bring them at par with similarly placed employees of Punjab Government.
M.H./9/Isl. Petition accepted.