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Official Citation: 2024 SHC 668
Court / Jurisdiction: Sindh High Court
Year of Decision: 2024
Decision Date: 2024-06-21
Parties: Muhammad Nusrat Ali & others vs Province of Sindh through Secretary, Finance Department, Government of Sindh & others
Ruling Summary: This decision was rendered by the Sindh High Court on 2024-06-21, officially reported as 2024 SHC 668. In this matter between Muhammad Nusrat Ali & others and Province of Sindh through Secretary, Finance Department, Government of Sindh & others, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024SHC668
Court Name: Sindh High Court Judge(s): Aqeel Ahmed Abbasi, Abdul Mobeen Lakho Title:Muhammad Nusrat Ali & others vs Province of Sindh through Secretary,
Finance Department, Government of Sindh & others Case No.: C.P. Nos.D-125 & 403 of 2018 a/w C.P. No.D-4711 of 2018 Date of Judgment:2024-06-21 Reported As: 2024 SHC 668 Result: Order Accordingly Judgment
ORDER ABDUL MOBEEN LAKHO, J : -- In the above Constitutional Petitions filed by the petitioners/judicial staff of this Court as well as of District Et Subordinate Courts have sought a common declaration to the following effect: - "a) That the Respondent No.2 and 3 may be directed to notify the directions of the then Hon'ble Chief Justice regarding de-freezing of Special Judicial Allowance for all the cadres of the officers & staff of Sindh High Court, Judicial Officers and staff of District & Civil Courts in Sindh with effect from 01st July. 2016 without any delay; b) Any other relief(s) as may be deemed appropriate, just and necessary in the given circumstances; c) Costs of the proceedings;" 2. Since the above matters were fixed in Court on several dates, when contention of the learned counsel for the parties was recorded in the various orders passed in these petitions, therefore, in order to avoid the repetition of the contention of the parties it will be advantageous to reproduce hereunder the relevant orders to encompass the proceedings and the instance of the petitioners as well as of the respondents, which reads as follows: - 25.05.2018: Syed Mehmood Alam Rizvi, Advocate for the Petitioners in C.P. No.D-125/2018 along with Petitioners No.1 to 3. Mr. K. A. Wahab, Advocate for Petitioners in C.P. No.D- 403/2018 along with Petitioners No.1 and 2.
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Mr. Miran Muhammad Shah, Additional Advocate General, Sindh along with Mr. Asadullah Lashari, State Counsel, Mr. Asif Jahangir, Finance Secretary, Mr. Shakeel Ahmed, Deputy Secretary Finance and Mr. M. Saleem Soomro, Focal Person, Law Department, Govt. of Sindh. Per direction of this Court passed on 10.05.2018, a meeting was held in the office of Director General Finance, High Court of Sindh, Karachi, along with all the stake holders on 19.05.2018. The meeting was attended by following Officers & stake holders:- 1. Mr. Kamran Ahmed Hamidi, Director General (Finance & Accounts) High Court of Sindh. 2. Mr. Mujeeb-ur-Rehman, Assistant Registrar, Budget, High Court of Sindh. 3. Mr. Nisar Ahmed Sheikh, Additional Secretary, Finance Department. 4. Mr. Shakeel Ahmed, Deputy Secretary (Legal) Finance Department. 5. Mr. Habibul Islam, Section Officer, Finance Department. 6. Mr. Nusrat Ali, Petitioner No.1 in C.P. No.D-125/2018. 7. Mr. Muhammad Sarfraz, Petitioner No.2 in C.P. No.D-125/2018. 8. Mr. Aneel Mehmood, Petitioner No.3 in C.P. No.D-125/2018. 9. Mr. Ali Raza, Petitioner No.1 in C.P. No.D-430/2018. 10. Mr. Khurram Faizan Ali, Petitioner No.2 in C.P. No.D-403/2018. In compliance of the above order, minutes of the meeting has been submitted on 22.5.2018, which are available on record. The Additional Secretary, Finance Department, presented formula for enhancement of Special Judicial Allowance in the following manner-"Special Judicial Allowance of one (01) initial basic pay of running/current pay scale) + 50% of running pay scale of current/running pay scale." In the meeting, it was unanimously decided by all the stake holders that the above formula for enhancement of Special Judicial Allowance of one (01) initial basic pay (of running/current pay scale) + 50% of running basic pay of current/running pay scale is accepted. The Additional Secretary Finance informed that the aforesaid Special Judicial Allowance will be implemented from 1 July, 2018 for all the cadres of Officers and staff of Sindh High Court and its Benches and Circuit Courts, Judicial Officer and Staff of District and Civil Courts of Sindh It was also assured t that the said Special Judicial Allowance has a cumulative/recurring effect and will not be frozen at any stage in future. With regard to the request of the petitioners for the payment of arrears, the Additional Secretary Finance did not agree at this stage due to financial constraints, however, it was unanimously decided by all the stake holders that decision of arrears may be deferred for the time being. It was further stated in the minutes of the meeting that the Additional Secretary Finance informed in the meeting that the summary for implementation of the Special Judicial Allowance according to the aforesaid formula will be submitted for approval before the Hon'ble Chief Minister Sindh. Report/Minutes of the meeting as agreed, settled and arrived at between all the stake holders are accepted and taken on record. It is expected that a summary should be placed by the Finance Department immediately before the Worthy Chief Minister, Sindh, who shall pass appropriate order on the same in accordance with law preferably within three (3) days from today and/or prior to completion of tenure of present Sindh Government and make compliance report. To come-up on 28.05.2018 at 11.00 a.m. Office to facsimile this order just now to the Principal Secretary to the Chief Minister, Sindh for his information and compliance. Copies of this order be delivered to Mr. Miran Muhammad Shah, Additional Advocate General, Sindh, Secretary Finance and Focal person of Law Department, Govt. of Sindh under cover-in-hand for their information and compliance. 07.06.2018. M/s. Mehmood Alam Rizvi Zakir Leghari, advocates for the Petitioners in C.P. No. 125 of 2018. Petitioners Ali Raza and Khurram Faizan in C. P. No. D-403 of 2018 are present in person.
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Mr. Sharyar Meher, AAG alongwith Faizullah Tunio, Section Officer, Finance Department, Government of Sindh. Pursuant to the order dated 25.05.2018 passed in this matter, learned AAG has filed a statement duly signed by the Additional Finance Secretary (SR/ADMN), Finance Department, Government of Sindh alongwith copy of Office Memorandum dated 01.06.2018, which is reproduced as under for the sake of brevity:- "REVISION OF SPECIAL JUDICIAL ALLOWANCE FROM THREE TIMES INITIAL OF RESPECTIVE BASIC PAY SCALE OF 2008 TO ONE INITIAL OF CURRENT BASIC PAY SCALE PLUS 50% OF RUNNING BASIC PAY OF CURRENT BASIC PAY SCALES TO THE EMPLOYEES AND OFFICERS OF JUDICIARY IN PROVINCE OF SINDH. With the approval of Competent Authority and in view of the orders of Honourable High Court of Sindh, in C. P. No. D-125 of 2018 dated 25.5.2018, Government of Sindh has been pleased to revise the Special Judicial Allowance from three times initial of respective Basic Pay Scale of 2008 to One initial of current Basic Pay Scale Plus 50% of running Basic pay of current Basic Pay Scales to the employees and Officers of Judiciary with effect from 1st July 2018. 2. Moreover, allowing above revision of Special Judicial Allowance in respect of employees/officers of Judiciary from three times initial of respective Basic Pay Scales of 2008 to One Initial of current Basic Pay Scale Plus 50% of running Basic pay of current Basic Pay Scales, shall not bar the Government of Sindh from taking actions as per order of the Apex Court on the subject matter, whenever, its pending appeal against the Special Judicial Allowance is decided by the Honourable Supreme Court of Pakistan." Learned AAG submits that needful has been done with regard to the Special Judicial Allowance in respect of the Petitioners/Employees and Officers of Judiciary from Three Times initial of respective Basic Pay Scale of 2008 to One Initial of Current Basic Pay Scale Plus 50% of Running Basic Pay of Current Basic Pay Scales to be implemented with effect from 01.07.2018. As regards the arrears, he submits that due to paucity of funds and completion of tenure of the present Government, such request of disbursement of arrears will be taken up soon after formation of new Government after forthcoming Elections. It is expected that needful will be done at an early date. Learned counsel for the Petitioners submits that the matter may be fixed soon after Summer Vacations, 2018 and the Respondents may be directed to ensure that the matter may be taken up on priority basis and further instructions shall be obtained for release of arrears towards such judicial allowance. By consent, to come up on 16.08.2018. The Registrar of this Court is directed to intimate all the concerned quarters to ensure compliance. C.P. No.D-403/2018: 23.09.2020 Mr. Faizan Hussain Memon, Advocate for the petitioners along with petitioners Ali Raza and Khurram Faizan. Kamran Ahmed Hamidi, Director General (Finance & Accounts), High Court of Sindh. Mr. Ali Safdar Depar, Assistant A.G. along with Sikandar Hassan, Deputy Secretary (Legal) Finance Department, Government of Sindh. In compliance of order dated 01.07.2020, a meeting was held which was attended by the Director General (Finance & Accounts) of this Court, Assistant Advocate General Sindh, Deputy Secretary (Legal) Finance Department. Government of Sindh, and petitioners 1 and 2. The report / minutes of the above meeting, duly signed by all the above participants, was filed on 21.08.2020. The above report / minutes show that all the stakeholders had agreed that arrears of Special Judicial Allowance for the period 01.07.2016 to 30.06.2018 shall be paid on monthly basis to the employees and officers of High Court of Sindh and the district and subordinate Courts in Sindh (BPS-1 to BPS- 22) within 24 months starting from July 2020 It was further agreed that the funds for the above
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purpose shall be arranged partially from the savings of the High Court of Sindh and the district judiciary budget provision for the year 2020-2021, and the remaining from the funds to be provided by the Finance Department, Government of Sindh. Kamran Ahmed Hamidi, Director General (Finance & Accounts) of this Court and Sikandar Hassan, Deputy Secretary (Legal) Finance Department, Government of Sindh, have filed their separate undertakings dated 23.09 2020, which are taken on record. According to the undertaking filed by the Director General (Finance & Accounts) of this Court, Finance Department of the Government of Sindh has allocated budget grant of Rs.605,277,000.00 to this Court during the current financial year i.e. 2020-2021, and after the expected expenditure of Rs.128,339,052.00 during the current year, an amount of Rs.476,937,948.00 will still be available in the relevant head of saving which will be sufficient to satisfy the payment in respect of employees of this Court during the current financial year. In his undertaking, the above named Deputy Secretary (Legal), Finance Department, Government of Sindh, has submitted that the Special Judicial Allowance for the subject period of two years is not reflected in the budget for the current financial year 2020-2021, and the Finance Department will have to seek permission from the Government for allocation of this amount. He, however, does not dispute any of the figures / amounts mentioned in the undertaking submitted today by Director General (Finance & Accounts) of this Court. As far as seeking permission of the Government for allocation of funds is concerned, we are of the view that no such permission is required in view of the orders passed by this Court and the order being passed today. Needless to say Government of Sindh is duty-bound to comply with the said orders and absence of departmental or other approvals / permissions cannot be made the basis of non-compliance of an order passed by this Court. In view of the above mentioned unanimous decision of all the stakeholders and with their consent, Finance Department of Government of Sindh is directed to pay / disburse the Special Judicial Allowance to all the employees and officers of this Court and the district and subordinate Courts in Sindh (BPS-1 to BPS-22) for the months of July, August and September 2020 latest by 30.09.2020, and to ensure the provision / payment / disbursement of the said allowance to them for the remaining twenty one (21) months / installments with effect from October 2020 strictly on monthly basis. Issue notice to the Secretary Finance, Government of Sindh, for compliance of this order in letter and spirit and to submit compliance report to this Court latest by 07.10.2020. C.P. No.D-403/2018: 29.10.2020: Mr. Faizan Hussain Memon, advocate for the petitioners. Mr. Ali Safdar Depar, Asstt. AG, Sindh, a/w Sikandar Hussain, Deputy Secretary Finance Department, Government of Sindh In compliance of order dated 23.09.2020, compliance report has been submitted by the Secretary Finance Government of Sindh. Director General (Finance & Accounts) of this Court has also filed a compliance report, according to which the Accountant General Sindh has complied with the aforesaid order to the extent of paying the arrears of Special Judicial Allowance for three (03) months i.e. July, August and September 2016, which was payable in July, August and September 2020, to all the employees and officers of this Court and those of the District and subordinate Courts in Sindh. This fact has been confirmed by learned counsel for the petitioners, who also confirms that the installment in respect of the subject allowance for the month of October 2016, payable in October 2020, has also been received by the said employees and officers. Regarding payment of the subject allowance to the said employees and officers for the remaining twenty one (21) months i.e. from October 2016 to June 2018, Sikandar Hussain, Deputy Secretary Finance
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Department, Government of Sindh, undertakes on behalf of respondents 1 and 2 that the same shall be paid to them on regular / monthly basis with effect from November 2020 in terms of order dated 23.09.2020. It has been pointed out on behalf of the petitioners that many employees and officers have retired after 30.06.2018 to whom the benefit of order dated 23.09.2020 is not being extended by respondents 1 to 3. The said respondents are directed to ensure that same treatment should be given to the said retired employees and officers as well. Issue notice to Chief Secretary Sindh, Secretary Finance and Accountant General Sindh for compliance. By consent, the petition and listed application stand disposed of in the above terms with no order as to costs. 14.12.2022 Mr. Ziaul Haq Makhdoom, Advocate for the petitioner. Mr. Ziauddin Ahmed Junejo, Assistant Advocate General Sindh. Pursuant to Court's Notice on the contempt application today learned Assistant Advocate General Sindh has filed a statement along with comments on behalf of respondent No.2 duly signed by the Finance Secretary, Government of Sindh along with annexures, same is taken on record and copy supplied to the learned counsel for the petitioner. From a tentative perusal of the comments filed on behalf of the respondent No.3 it prima facie appears that the orders passed by this Court on 25.05.2018 and 07.06.2018 keeping in view undertaking by the Additional Secretary, Finance Department, Government of Sindh, to the effect that special judicial allowance will not be freezed in future, has been totally ignored, whereas, the recent flood in the province of Sindh has been made basis and justification for issuance of impugned Office Memorandum dated 13th July, 2022, whereby the special judicial allowance of the petitioners has been frozen, when there was no flood situation in the province of Sindh. Let the Secretary, Finance Department, Government of Sindh shall be in attendance on the next date of hearing to explain as to how, the undertaking given in Court can be recalled without permission of the Court, whereas, nature of the special judicial allowance is as such which creates a valuable right and entitlement of the judicial staff/employees, who cannot be denied such right on flimsy grounds. To come up on 19.12.2022 at 11:00 a.m. Office is directed to fix C.P. No.D-403 of 2018 along with instant petition on the next date of hearing. 19.12.2022 Mr. Ziaul Haq Makhdoom, advocate for petitioners. Mr. Ali Safdar Deepar, AAG along with Sajid Jamal Abro, Secretary Finance Department and Nadeem Ahmed Qureshi, Law Officer, Law Department, Govt. of Sindh. Pursuant to this Court's directions, Sajid Jamal Abro, Secretary Finance Department and Nadeem Ahmed Qureshi, Law Officer, Law Department, Govt. of Sindh have shown appearance and have filed comments alongwith annexures and submits that the Special Judicial Allowance along with arrears has been paid to the Staff of Sindh High Court and its Benches and Circuit Court, Judicial Officers and Staff of Subordinate Judiciary of Sindh including the Employees of the Provincial Tribunals working under the administrative control of Sindh High Court as per orders of the Honourable Court on the basis of one initial basic pay (of running/current pay scale) 50% of running basic pay of current/running pay scale including the arrears and there has been no violation of Court's order. However, keeping in view the current flood situation and financial constraints being faced by the Province of Sindh, as an interim measure, the amount of Special Judicial Allowance to be calculated on the basis of enhanced basic pay scale for the current year 2022 2023 has been frozen as per decision of the Cabinet dated 11.10.2022, and there is no malafide on the part of respondents. It has been further contended that Cabinet after detailed
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discussion has been pleased to approve the sanction as per Item-7, vide its meeting held on 11.10.2022 in order to meet the huge expenses required to rehabilitate the large number of flood affectees and to build infrastructure. It has been further stated that this matter is already subjudiced before the Hon'ble Supreme Court, wherein the petitioners have given undertaking that the amount towards the Special Judicial Allowance will be refunded/returned in case the Hon'ble Supreme Court decides the issue involved. Such contention of the Secretary Finance is vehemently opposed by the learned counsel for the petitioners, who submits that in view of the orders already passed in the instant petition and in the other petitions, wherein, it has been held that the Staff of Sindh High Court and its Benches and Circuit Court, Judicial Officers and Staff of Subordinate Judiciary of Sindh including the Employees of the Provincial Tribunals working under the administrative control of Sindh High Court are entitled to the Special Judicial Allowance, whereas, there has been an undertaking given by the Government of Sindh before this Court in the instant petition that Special Judicial Allowance will not be de-freezed and the impugned Notification is totally illegal and has been issued in violation of the Court's orders. We are also not persuaded with the explanation given by the Secretary Finance, attempting to justify the impugned Notification. Contention of learned counsel for the petitioners appears to be correct, as the respondents are bound to follow the Court's orders and to abide by the undertaking given in Court which is part of the Court's order. However, keeping in view the fact that such decision has been approved by the Cabinet, the Advocate General Sindh is directed to place the matter before the worthy Chief Minister Sindh to call the meeting of the Cabinet to review its decision to the extent of Staff/employees of Sindh High Court and its Benches and Circuit Court, Judicial Officers and Staff of Subordinate Judiciary of Sindh including the Employees of the Provincial Tribunals working under the administrative control of Sindh High Court within thirty (30) days and to take a decision in view of Court's orders, and to submit compliance on the next date of hearing. To come up on 23.01.2023 at 11:00 a.m. along with C.P. No.D-403 of 2018. Let copy of this order be provided cover-in-hand to learned AAG and the Secretary Finance, who shall transmit the same to the concerned quarters to ensure compliance. 13.03.2023. Mr. Ziaul Haq Makhdoom advocate for petitioners a/w petitioners Ali Raza Memon and Khurram Faizan. Malik Naeem Iqbal, advocate for petitioner. Mr. Ali Safdar Depar, Assistant A.G. a/w Sikander Hassan, Law Officer, Finance Department, Govt. of Sindh, Liaqat Ali Abro, Consultant Law, Chief Secretary, Govt. of Sindh, Nadeem Ahmed Qureshi, Law Officer, Law Department, Govt. of Sindh. Learned AAG has submitted a copy of order dated 07.03.2023 passed by the Honourable Supreme Court in CA 343-L/2013 and others and submit that issue of allowances to the employees of Federal courts, Tribunals, subordinate judiciary i.e. Judges of Sindh, employees of subordinate judiciary is pending before Honoruable Supreme Court and vide order dated 07.03.2023 the Honourable Supreme Court has given one month's time to the authorities to sort the issue out and submit compliance report. He further submits that in the light of such directions of Supreme Court, a cabinet meeting of Sindh Government has been proposed to be held not only for discussing issue of allowances to the employees of judiciary as stated above but matter of de-freezing of spl. Judicial allowance will also be taken up for discussion and decided. To that effect he has filed undertaking as under, which is taken on record. "It is submitted that Finance Department has already submitted the matter of de-freezing of Special Judicial Allowance before the Provincial Cabinet and it is further submitted that same will
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again be submitted before Provincial Cabinet after next hearing of the case before the Honourable Supreme Court of Pakistan in the light of order dated 07.03.2023 passed by the Honourable Supreme Court of Pakistan In view of above are the facts and reasons of the matter, it is humbly prayed that the sufficient time may kindly be granted for compliance of the Court order" As a last chance one month's time is granted for submitting compliance of Court's order. Adjourned to 17.04.2023 at 11.00 a.m. 16.05.2023 Mr. Zia-ul-Haq Makhdoom, Advocate for the petitioners in C.P No.D125/2018 alongwith Ms. Hira Agha, Advocate alongwith Petitioner No.1 Ali Raza. Malik Naeem Iqbal, Advocate for the petitioners in C.P No. D-403/2018 Mr. Miran Muhammad Shah, Addl. Advocate General, Sindh alongwith Mr. Sikandar Hassan, Chief Law Officer, Govt. of Sindh. Dr. Liaquat Ali Abro, Law Officer, Law Department, Govt. of Sindh. Learned AAG submits that in view of the order dated 07.03.2023 passed by the Hon'ble Supreme Court in C.A No.343-L/2023 alongwith other connected matters, and directions as contained in Para-3 of the said order, the Federal Government has convened a meeting today, wherein, all Provinces will participate and try to resolve the matter regarding allowances, including Special Judicial Allowance to the employees of Federal Courts / Tribunals, subordinate judiciary i.e. Judges of Sindh and employees of subordinate judiciary, and thereafter, respondents will be in a better position to proceed further with regard to defreezing of such allowances of aforesaid category of persons. Learned counsel for the petitioners submits that order of the Hon'ble Supreme Court, as referred to hereinabove, is not relating to the subject controversy i.e. defreezing of special judicial allowance of the petitioners, whereas, such decision of freezing the special judicial allowance was taken by the Provincial Cabinet and, therefore, has to be reviewed / rectified accordingly as per Court's order, irrespective to the outcome of the aforesaid meeting, which fact, according to learned counsel for the petitioners, has already been noted by the learned Divisional Bench of this Court in its order dated 13.03.2023. While confronted with hereinabove submissions of learned counsel for the petitioners, learned AAG submits that meeting of the Federal Government with all the Provinces as per the directions of Hon'ble Supreme Court is in substance relatable to the allowances, including special judicial allowance, which is subject controversy of instant petitions, however, learned AAG seeks time to obtain instructions in this regard, and also to intimate outcome of the aforesaid meeting to the Court on the next date of hearing, therefore, requests that before passing any further order in the instant petitions, above factors may be taken into consideration. As an indulgence, we are adjourning these matters to 22.05.2023, however, with directions to the respondents to ensure that the undertaking already given by the Provincial Government relating to special judicial allowance and the order already passed in the instant matters, be complied with, unless there is some legal impediment or restraining order by the Hon'ble Supreme Court in this regard, failing which, appropriate orders will be passed on the next date of hearing. To come up on 22.05.2023 at 11:00 A.M. 22.05.2023 Mr. Zia-ul-Haq Makhdoom, advocate for the petitioners in C.P No.…
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