JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

PESHAWAR.

JUDICIAL DEPARTMENT

W.P No. 676-P/2014.

JUDGMENT

Date of hearing_______________23-10-2014________

Petitioners, Gul Taimur Khan & others (by Mr.Barkatullah

Khan, Advocate).

Respondents, Federation of Pakistan etc: (by Mr.F.M.Sabir,

Advocate, Standing Counsel).

_________

YAHYA AFRIDI:-J:- Gul Taimur Khan and six

others, the petitioners, seek the constitutional

jurisdiction of this Court praying that:-

“By accepting this writ petition the

respondents may kindly be directed

to allow the risk allowance with

ration allowance to the employees

of civil aviation authority with effect

from 30.6.2011 as per notification

dated 18.1.2012 vide which already

granted the same relief to the

airport security force (ASF)

Any other relief not

specifically prayed but deems fit and

proper may also be granted in

favour of petitioners against the

respondents.”

2. The brief facts leading to the present

petition are that the petitioners are the employees

of Civil Aviation Authority (“CAA”) and

presently working at ‘Bacha Khan International

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Airport’ Peshawar (“Airport”); vide Notification

No.4-23/2011-ASF dated 18.1.2012

(“Notification”), Ministry of Defence,

Government of Pakistan, certain allowances were

granted to uniformed personnel of the ‘Airport

Security Force’ (“ASF”). The Notification

provided that:-

“No.4-23/2011-ASF

Government of Pakistan

Ministry of Defence

(Defence Division)

Rawalpindi, the 18th Jan,

2012.

To

1. Accountant General of Pakistan Revenues, Islamabad, Lahore,

Peshawar, Quetta,

2. Director General, Pakistan Revenues, Karachi,

3. District Accounts officers, Multan, Faisal Abad, Sialkot

and other concerned locations.

Subject: ENHANCEMENT OF VARIOUS

ALLOWANCES OF THE

PERSONNEL OF AIRPORTS

SECURITY FORCE (ASF)

Dear Sir,

I am directed to convey the sanction

of the President to the grant of following

additional allowances and increase in other

existing allowances to uniformed personnel

of ASF w.e.f 27th December, 2011.

(a) Grant of risk allowance equal to one

month basic pay on BPS-2008 as

admissible on 30.6.2011 at frozen level

to the uniformed personnel of ASF at

par with the uniformed personnel of

Armed/Civil Armed Forces. However,

50% adhoc allowances presently

admissible to them will be

discontinued from the date of grant of

risk allowance.

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(b) Increase of ration allowance from

Rs.900/- per month to Rs.1500/- per

month to uniformed personnel.

(c) Enhancement of remote area

allowances from Rs.750/- P.M for

BPS-1 to 16 and Rs.1000/- P.M for

BPS-17 and above (sanctioned to ASF

w.e.f 15.5.2008) to Rs. 1500/-P.M for

BPS-1 to 16 and Rs.1000/- P.M for

BPS-17 and above for selected smaller

Airports i.e Chitral, Parachinar, Swat,

Sibbi, Sui, Dalbandin, Khudar, Zhob,

Makran, Turbat, Gawadar, Pasni,

Jiwani, Punjghor, Ormara, Gilgit and

Skurdu.

2. The funds will be generated through

enhancement of security charges

from Rs.20/- and Rs.40/- on domestic

and International Passengers

respectively to Rs.60/- and Rs.140/-

respectively per air ticket to meet the

above extra expenditure. These funds

will be collected through Federal

Board of Revenue. MOD/ASF will

arrange to issue a revised SRO in this

regard by FBR Islamabad

immediately. Furthermore, a sum of

Rs.5,000/- each as yearly Airport

Entry pass fee will be charged from

private individuals with effect from

1.1.2012 by ASF. The fee will be

deposited

into Government Treasury. (i.e.

Federal Consolidated Fund) by the

individual concerned in the relevant

head of account and a copy challan

thereof will be forwarded to HQ ASF

Karachi for maintenance of accounts.

3. The expenditure involved will be met

out of budget grant of Airports

Security Force under major functions

03 public Order and Safety Affairs,

minor functions 032 Police, Detailed

functions-0321 Police, sub detailed

function-032150 others (ASF) major

object-AOI employees related

expenses, minor object-A012

allowances, detail object-A012-1

regular allowance, AO12-2 other.

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4. This issued with the approval of

Finance Division (Reg Wing),

Islamabad’s U.O.No.F.11(5) /R-

1/2007/1330 dated 10th January,

2012.”

(Emphasis provided)

3. The General Secretary, CBA, of

CAA at Airport, moved an application to the

Chairman of CAA for the grant of the benefits and

allowances under the Notification to the employees

of CAA Peshawar. But with no positive response.

Hence, the instant writ petition.

4. The worthy counsel for the petitioners

vehemently argued that the petitioners, who were

‘similarly placed’ as the personnel of ASF, who

are being denied the benefit of allowances being

allowed to the former and thus, discriminated. The

worthy counsel sought reliance on unreported

judgment of Sindh High Court dated 24.5.2011,

rendered in Constitutional Petition No.1465 of

2009 in Amanullah Khan Yousafzai’s case and

Muhammad Akram’s case (2013 P L C (C.S)

Lahore-717).

5. In rebuttal, the worthy counsel

representing the official respondents vehemently

argued that the petitioners have no ‘vested right’ to

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claim benefits under a policy and that the

Government had all the authority to formulate and

restrict the benefits to a class of persons under its

policy; and thus, the same was ‘non-justiciable’

unless it violated a fundamental right, as provided

under the Constitution of Islamic Republic of

Pakistan, 1973 (“Constitution”). The worthy

counsel sought reliance upon Messrs ACT

International’s case (2013 YLR Peshawar 1396).

6. Valuable arguments of learned

counsel for the parties heard and record perused.

7. All human being are ‘equal’. This

cardinal principle was first adopted and practiced,

as an essential policy of governance by Holy

Prophet (P.B.U.H), after ‘Hijrat’ in ‘Madina

Munawwara’ and, thereafter, followed by

‘Khulafa-e-Rashideen’. Hence, this principle of

‘equality’ become an integral policy of

governance and a pillar of Islamic jurisprudence.

8. The source of this pioneering

thought of ‘equality’ and its consequential

abhorrence to its anti-face, ‘discrimination’, is

the Holy Qur’an. Some of the verses in the

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Holy Book, enlightening this fundamental

principle of ‘equality’ derive its geneses in

Surah Al-HUJURAT Ayat No.13, wherein it is

ordained:-

“O people! We created you from one man

and one woman and made you branches

and tribes that you may recognize one

another. Undoubtedly, the most respected

amongst you in the sight of Allah is he

who is more pious, verily, Allah is

knowing, Aware.”

In Ayat No.22 of SURA Al-RUM, it is

further ordained:-

“And of His signs is the creation of

heavens and earth, and the diversity of

your tongues and colours. No doubt in it

are signs for those who hear”

Further, in Ayat No.70 of SURA

BANI ISRAEEL, it is ordained:-

“And We have certainly honored

the children of Adam and carried them

on the land and sea and provided for

them of the good things and preferred

them over much of what We have

created, with [definite] preference”

Similarly, the declaration contained in Ayat

No. 22 SURA AL-BAQARAH:

“[He] who made for you the earth a bed

[spread out] and the sky a ceiling and

sent down from the sky, rain and brought

forth thereby fruits as provision for you.

So do not attribute to Allah equals while

you know [that there is nothing similar to

Him]”.

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It is also noted that in Ayat No.29 SURA AL-

BAQARAH, it is ordained:

“It is He who created for you all of that

which is on the earth. Then He directed

Himself to the heaven, [His being above

all creation], and made them seven

heavens, and He is Knowing of all

things”.

These verses, amongst others, ordained in

the Holy Qur’an, brings at ‘par’ all human beings,

irrespective of sex, caste, colour, creed,

community or country.

9. This core essential principle of

‘equality’ of all human beings, propagated by the

Holy Prophet (P.B.U.H) in the 7th century, in the

deserts of Arabia became an ideal, for which the

Americans fought ‘the war of independence’ and

the French rose up in the ‘French Revolution’ in

the late 18th century. Finally, this ideal of

‘equality’ found its place in the constitutions of

civilized and democratic nations and International

Treaties and Covenants on human rights.

10. The ideals of ‘equality’ and ‘non-

discrimination’ was adopted in the Charter of

United Nations, which provides, ‘inter alia’, that:-

“Article 1(3) “To achieve international co-operation in solving international

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problems of an economic, social, cultural, or humanitarian character and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.”....................................... Article 13(1) “The General Assembly shall initiate studies and make recommendations for the purpose of: (b) promoting international cooperation in the economic, social, cultural, educational, and health fields, and assisting in the realization of human rights and fundamental freedoms for all without distinction as to race, sex language, or religion. and …….. Article 55(c) “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.”

The Charter has been ratified by most of the

members States of the United Nations and are thus,

bound by its stipulations.

11. It is also noted that, Universal

Declaration of Human Rights, which was

adopted by the United Nations General Assembly

in 1948, declared, ‘inter alia’, that:-

Article (1) “All human beings are born free

and equal in dignity and rights. They are

endowed with reason and conscience and

should act towards one another in a spirit

of brotherhood.”

Article (2) “Everyone is entitled to all the

rights and freedoms set forth in this

Declaration, without distinction of any

kind, such as race, color, sex, language,

religion, political or other opinion, national

or social origin, property, birth or other

status. Furthermore, no distinction shall be

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made on the basis of the political,

jurisdictional or international status of the

country or territory to which a person

belongs, whether it be independent, trust,

non-self-governing or under any other

limitation of sovereignty.”…………………

Article (4) “No one shall be held in slavery

or servitude; slavery and the slave trade

shall be prohibited in all their

forms.”……………………………………...

Article (7) “All are equal before the law

and are entitled without any discrimination

to equal protection of the law. All are

entitled to equal protection against any

discrimination in violation of this

Declaration and against any incitement to

such discrimination.”

12. Similarly, provisions protecting

‘equality’ and rejecting ‘discrimination’ have

been provided in other International Covenant and

Treatise, including International Convenant on

Civil and Political Rights, 1966, European

Convention on Human Rights, 1954 and the

Treaty of Lisban, 1998.

13. When we review the Constitution of

the United States of America, it is noted that it is

concise written document, comprising of seven

Articles and twenty seven amendments. It is 14th

amendment, which relates to ‘equality’ and ‘non-

discrimination’ and reads:-

Section (1) states that:

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All persons born or naturalized in the

United States, and subject to the

jurisdiction thereof, are citizens of the

United States and of the state wherein they

reside. No state shall make or enforce any

law which shall abridge the privileges or

immunities of citizens of the United States;

nor shall any state deprive any person of

life, liberty, or property, without due

process of law; nor deny to any person

within its jurisdiction the equal protection

of the laws.

(Emphasis provided)

14. Interestingly, despite the high

sounding principles of ‘due process’ and ‘equal

protection of law’ embedded in the 14th

Amendment, it took more than a century for the

superior Courts in United States of America to

actually enforce the same in Brown’s case (1954),

where the Supreme Court declared illegal racial

discrimination and segregation in public schools.

Strikingly, the army had to be called to enforce the

said decision of the Supreme Court.

15. Earlier, attempts made in Dred Scott’s

case (1857), were repelled by the Supreme Court

on the ground of jurisdiction, while in Plessey’s

case (1896), where the Supreme Court

acknowledging racial segregation coined the terms

‘separate but equal’, and this did not give full

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effect to the spirit of ‘equality’ and ‘non-

discrimination’ enshrined in the 14th Amendment.

16. England, on the other hand, has no

written constitution. However, the two great

historic documents, the ‘Magna Carta’ (1215) and

the ‘Bill of Rights’ (1689), acknowledged the

principle of ‘equality’ and ‘non-discrimination’,

envisaging the reduction in the power and

authority of the Monarchy, and laid the seed for

the ‘rights’ of the ‘subjects’. With time, Parliament

in England legislated on matters, propagating

‘equality’ and protecting against discrimination.

Some of the leading statutes, include Equal pay

Act 1970, Sex discrimination Act 1975, Race

relations Act 1976, Disability discrimination Act,

1996 and Equality Act 2010.

17. These ideals of ‘equality’ and ‘non-

discrimination’ have a resounding impression on

the constitutional history of our nation. In fact,

Objectives Resolution passed by the Constituent

Assembly in March 1949, has remained the basis

of constitutional development, enunciated the

principles on which the future constitution of our

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nation was to be framed. The Objectives

Resolution, proclaims that the sovereignty over the

entire universe belongs to Allah Almighty. Finally,

the Constitution of Islamic Republic of Pakistan,

1973 (“Constitution”), under Article 1 declares

that:

“Pakistan shall be a Federal

Republic to be known as the

Islamic Republic of Pakistan,

hereinafter referred to as

Pakistan.”

While, Article 2 ‘supra’ propagates that:

“Islam shall be the state religion of

Pakistan.”

And, Article 2 (A) declares that the principles and

provisions set out in the Objectives Resolution are

made substantive part of the Constitution.

18. Apart from other provisions relating

to ‘equality’ and ‘non-discrimination’, provided in

the Constitution, Article 25 appears to be the most

powerful provision, protecting a ‘citizen’ against

any action or inaction of ‘inequality’ or

‘discrimination’, by the State, in terms that:

“Equality of citizens (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.

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(3) Nothing in this Article shall prevent the

State from making any special provision

for the protection of women and children.”

This fundamental right of ‘equality’ and

‘non-discrimination’ is, however, not an absolute

right. In fact, it is more inclined towards the

concept of ‘equal protection of law’ provided in

the 14th amendment of the Constitution of United

States of America. Before we proceed further, it

would be important to note that the concept of ‘due

process’ and ‘equal protection’ have separate and

specific constitutional connotations, as explained

by Justice Rehnquist in Ross.v.Moffitt (417 US

600) and reported by Justice ® Fazal Karim, in

his treatise Judicial Review of Public Actions in

terms:

“ ‘Due process’ and ‘equal protection’ are

not to be confused one with the other. ‘Due

process’ emphasizes fairness between the

State and the individual dealing with the

State, regardless of how other individuals

in the same situation may be treated.

‘Equal protection’, on the other hand,

emphasizes disparity in treatment by a

State between classes of individuals whose

situations are arguably indistinguishable.”

The apex Court highlighted this issue in a

comprehensive manner, for the first time, in

Jibendra Kishore .v. Province of East Pakistan

(PLD 1957 SC Pak 3), wherein it was held:-

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“But nothwithstanding the disinclination

of the Court to given an all inclusive

definition of the expression, 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.”

(Emphasis provided)

Similarly, in Brig.F.B. Ali’s case (PLD

1975 SC 506), Chief Justice Hamood-ur-Rehman,

speaking for the apex Court, reiterated the

principle of ‘equality’ and ‘non-discrimination’ in

terms:

“Equal protection of the laws does not

mean that every citizen, no matter what his

condition, must be treated in the same

manner. The phrase ‘equal protection’ of

the laws means that no person or class of

persons shall be denied the same protection

of laws which is enjoyed by other persons

or other class of persons in like

circumstances in respect of their life,

liberty, property or pursuits of happiness.

This only means that persons, similarly

situated or in similar circumstances, will be

treated in the same manner. Besides this,

all law implies classification, for when it

applies to a set of circumstances, it creates

thereby a class and equal protection means

that this classification should be

reasonable. To justify the validity of a

classification, it must be shown that it is

based on reasonable distinctions or that it

is on reasonable basis and rests on a real

or substantial difference of distinction.

Thus different laws can validly be made for

different sexes, for persons in different age

groups, e.g. minors or very old people;

different taxes may be levied from different

classes of persons on the basis of their

ability to pay.”

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His Lordship seeking reliance upon Willis’

Treatise’s case, further opined that:

“There is no rule for determining when

classification for the police power is

reasonable. It is a matter for judicial

determination, but in determining the

question of reasonableness the courts must

find some economic, political or other

social interest to be secured, and some

relation of the classification to the objects

sought to be accomplished. In doing this

the courts may consider matter of common

knowledge, matters of common report, the

history of the times, and to sustain it they

will assume every state of facts which can

be conceived of as existing at the time of

legislation. The fact that only one person

or one object or one business or one

locality is affected is not proof of denial of

the equal protection of the laws. For such

proof it must be shown that there is no

reasonable basis for the classification.”

19. It would also be pertinent to note that,

the concept of ‘classification’ has been commented

to have its basis in Islamic Jurisprudence, in

Muhammad Aslam Khakhi’s case(PLD 2010

Federal Shariat Court 1), wherein it is stated that:

“Islamic history is replete with instances

which vividly illustrate that the principle of

classification has a sanction based upon

reasonable and material grounds. The

above mentioned cases of Abdur Rashid

and Waheed Akhtar were decided without

reference to the Islamic Injunctions on the

subject. Hence a detailed discussion has

been undertaken in this judgment in the

light of Islamic principles in resolving the

question relating to legal justification of

classification of prisoners into various

categories notwithstanding the general

principle of equality of human being is not

only the prisoners alone but the prisons in

Pakistan have also been divided in different

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categories as in evident from Chapter 2 of

the Prison Rules. The fact of the matter is

that the concept of reasonable

classification is now a universally

acknowledged phenomenon. The element

of inhuman and vicious classification

amounting to abject discrimination was an

accepted reality in the erstwhile Arab

Customary Code and contemporary

societies elsewhere. With the advent of

Islam a rational and a judicious basis was

introduced whenever classification had to

be resorted to. However the historically old,

appalling' and crude mode of classifying

human beings on false grounds of colour,

caste, creed or nationality was strictly

prohibited by Holy Qur'an and Sunnah of

the Holy prophet (P.B.U.H).”

20. The principle of ‘Equality’ and ‘non-

discrimination’ enunciated in the judgments,

referred to hereinabove, have been consistently

adhered to while deciding cases, some of the

leading cases in this regard include Waris Mean’s

case (PLD 1957 SC 157), Shrin Munir’s case

(PLD 1990 S.C.295), I.A.Sharwani’s case(1991

SCMR 1041), Abdul Baqi’s case (PLD 2003

S.C.163), Arshad Mehmood’s case (PLD 2005

S.C.193). Messrs Nafees Dry Cleaners’s

case(2001 PTD 2018), Pakistan Tobacco Co’s

case (2002 CLC 1910), Shafqatullah’s case

(2006 CLC 1555), Shehzad Riaz’s case(2006

YLR 229) and Dr.Zahra Hassan’s case (2013

MLD 1835).

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21. Similarly, the Indian apex Court has

also adhered to the basic principle of

‘classification’ in legally determining the

constitutional legality of ‘benefits’ granted and

‘burden’ imposed upon its citizen in legislative

and administrative actions of the State. Some of

the leading cases decided in this regard, include,

Charantit Lal Chownwdhury’s case (AIR(3)1951

S.C.41), Sakhawant Ali’s case (AIR 1955

S.C.166),N.H.Bhagwati’s case (AIR 1958

S.C.578(V.45.C.83),and Satwant Singh

Sawhney’s case (AIR 1967 S.C.1836).

22. Reviewing the genesis, the text and

the opinion rendered on this fundamental right of

‘equality’ and ‘non-discrimination’ provided under

Article 25 of the Constitution, by imminent Jurists

and above all the superior Courts, it would be safe

to state that:

(I) The fundamental right of ‘Equality’

and ‘Non-Discrimination’, as

ordained under Article 25 of he

Constitution, can be invoked by a

citizen against any violative action,

inaction, order, policy, legislation or

subordinate legislation of the State.

(II) The fundamental right of ‘Equality’

and ‘non-discrimination’ provided

under Article 25 of the Constitution

is not an absolute right, vesting in a

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citizen, unqualified right in all

aspects to be equal to all other

citizens.

(III) The State is, however, under a

constitutional obligation to treat its

citizens equally. However, in certain

circumstances, it may treat them

differently, as a class, on the

fulfillment of the two condition

precedents:

(i) the classification must not

arbitrary but should

reasonable and rational, and

(ii) The classification must be

founded on an intelligible

differentia, grouping the

persons together, which

distinguishes those who are

grouped together from

others, and the classification

must have a rational

relation to the object sought

to be achieved by the State.”

The fulfillment of the aforementioned two

condition precedents to legally validate an action

or inaction of the State, on the touchstone of

Article 25 of the Constitution, can safely be termed

as the ‘test of classification’.

23. Moving to the facts of the present

case, it is noted that the Federal Government vide

Notification dated 18.1.2012, granted ‘risk

allowance’ equivalent to one month basic pay, to

uniformed personnel of ASF, with effect from

27.12.2011. The grant of the said allowance was

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stated to be in order to bring armed personnel of

ASF at ‘par’ with uniformed personnel of

Armed/Civil Armed Forces. The funds for the said

additional allowances were to be generated

through enhanced ‘security charges’ on domestic

and international passengers, and increase in the

‘Airport Entry Pass Fee’ chargeable from private

individuals.

24. Keeping in view the facts leading to

the present petition, this Court has to, now

determine:

Whether the grant of risk allowance to

the uniformed personnel of ASF fulfils

the test of classification and thereby does

not offend the fundamental rights of the

petitioners ordained under Article 25 of

the Constitution.

Test of Classification.

25. The first condition precedent of the

‘test of classification’ appears to have been

fulfilled, as the grant of ‘risk allowance’ to the

uniformed personnel of ASF is reasonable and

rational, as it is alive to the state of alert and the

‘risk to life’ of the uniformed personnel of ASF

protecting the Airport, which after the Karachi

incident has become a prime target of terrorist

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attack. Furthermore, it was also stated in the

Notification, to bring the uniformed personnel of

ASF at ‘par’ with the uniformed personnel in

Armed or Civil Forces. Thus, the classification of

the two Forces cannot be, in any way, termed as

arbitrary.

26. Moving to the second condition

precedent of the ‘test of classification’, it is noted

that the present petitioners are also performing

their duties at the Airport and are, as exposed to

terrorist attack, as any other uniformed personnel

of ASF, performing their duties at the same work

place. Viewed in this perspective, it is noted that

there does not appear any ‘intelligent differentia’

between the uniformed ASF personnel and the

petitioners performing their duties at the same

Airport. In fact, the ‘risk to life’ from a terrorist

attack is far greater to the employees of CAA, than

the uniformed personnel of ASF, being un-armed.

27. In the circumstances, this Court finds

that the second condition precedent for the creation

of a distinct class, to be provided a ‘benefit’, to the

exclusion of others, is not forthcoming in the

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circumstances of the present case. Both, uniformed

ASF personnel and CAA employees, performing

their duties at the Airport, cannot be separated as a

class only on the basis of ‘uniform’ or their ‘scope

of work’, as the essential aim of granting the ‘risk

allowance’ is in fact the exposure to a terrorist

attack and consequently, the ‘risk to life’, at their

work place.

28. Hence, a case of discrimination is

made out, offending the fundamental rights vested

in the petitioners under Article 25 of the

Constitution.

Accordingly, for the reasons stated

hereinabove, this Court holds that:

I. The ‘risk allowance’ granted to the ASF

personnel under the Notification is

discriminatory, as it offends the

fundamental rights of the petitioners,

enshrined in Article 25 of the

Constitution.

II. The respondents are directed to also

grant ‘risk allowance’ to the petitioners,

while they are posted at the Airport and

also till the said allowance is being

granted to the uniformed personnel of

ASF.

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III. The respondents are directed to do the

needful within a period of three months.

Dt.23.10.2014.

JUDGE

JUDGE

*M.Gul*