Nabi Bakhsh Junejo (Petitioner) VS Province of Sindh and others (Respondent)

ORDER S]-IE u1' \1

IN THE HICH COURT OF SINDH,

KARACHI

C.P.No.D-2052/2007 ,at ?

Datc Order with signatuc of J

Mr. Muhammad Nawaz Shaikh, Advocate for fie petitiooers.

Mr. Miran Muhammad Shah, AAG Sindh.

MUHAMMAD KARIM KHAN AGHA J. -

The peritioneN a.e holders of a Diploma of Associate Engineers, who have been working as Water Maragemenr Officem in BpS-16 in the Ministry of Agicultue, Govemmenl of Sindh, aod have in essence moved this Constjtutional Petition againsl an order issued by &e Respondert No.4 (Finance Depadmenr, Govemment of Sindh) dated 26.2.1997 0he Order).

2.According to the Orde. the Water Management Officen possessing a degee in Agricultu.aUciaiyMechanical Engineering in at lcast 2nd

Division or M.S.C. (Ag.iculturc) at least 2nd Division from a r€cognized University in the Agricultural ard Wildlife Deparrment were qllowed h th€

pay scale ofBPS-17, to the exclusion of those Water Management Officers (including the petitioners) who did not hold such qualifications.

The Ordcr is reproduccd below:

.ORDER

Ihc Cor.ernmcnr of Sindh is pleased to allow pgs_t7 ro T"..li.,h.q_.ilgyrbcnr Officeru possessing, a degEe in Agricultural,CivilA4cchanical Enginiering ln ar l;st 2"d Division or M.S.c. (Agricuhure, ar lctrst 2id Division from a recognizcd Universig- in the Agricultural and Wildlife Department, \yith immediate effect.

2.Those Warer Maragement Otlcers not in possession of the above qualifications shall continue to work in BpS-16.,' va

3.The,p€titioners' mairl cotrtention is thar the Order is discriminatory i[ nature as it discriminates against Diploma Holders who are rror*ing alongside graduates in the Water Management Officers Depanmint at BpS 16, whilst pedorming lhe samc funclions and in some cases "nj.lig S ,1 greater seniority.

4.Pursua[t. to the Order the omce of Respondenr No.3 issued a Notification dated 12.3.1997, promoting 93 Water Ma.oageme Officct!

Graduates) to grade I 7 to ths exclusion of the diplona holders.

a 5. In suppod of their coltcntiorB, leamed colns€l for the petitiotsrs submittcd that even tlle Administrative Dspartrnenl ofthe Respood€nt No.3 (Secretary, Agricultue Department) took exception to lhe Ord€r by wtrioh

the gaduate Water ManagemeDt Ollicers were allowed to gps-t7 and ftc Diploma Engineers Water Management Offictn were deprived tom thc said pay scale and as such pur the peritioncrs' cose beforc rhe RespoodEot No,4 (Secretary. Finance Department) through a letter dated 16.05,1997.

6.The Respondent No.3 in the aforesaid letter came to the conclusion that the request of thg petitionerc Deed consideration and recommended thcir case inter-alia on lhe follo\a.ing grounds:

'i) The terms and conditions for appointment/promotion for the above F)st are same i.e. B.UThree year Diploma of Associate Enginccr , Z years expericnce.

ii)The Senioritl, list ofall the Water MaDagemcnt Officer's is same irrespective oftheir qualification.

iii)the duties aad responsibilities are same for B.E./Diploma holders.',

7.Thc boltom line, however $as ftat Respotdent No 4 (rhe Finance Department) tvas not ready to accept such recomtuendations of Respondent No.3 made on behall of the petilioncrs. Repcated correspondfice between the concemcd dcpartrnents are on the Court's record to show that this

matter was pe5sing back and foflh brtwce[ the various depafime[ts without any definitive decision on RespoDdent No.3's rEcornrnendation since 1997.

8.As a last reson, the petitioners thcmselves serfi detailed appeals!

individually as well as jointly on 30.8.2004, and 10.9.2004 !o Respg$ent ' { No.4 requesting it to set a6ide the Order. \,r'hich discriminated against th!m.

9.According to lhe pelitioncrs. despile therc best efforts, Rcspondent No 4 gavc no definitive response to their request to be lreatcd equally with their graduatc colleagues and as such were left with no altemative but to file this petition against lhe Order in order to prevent them from being discriminated againsl.

10.They have pmyed this Court as under:

"a) to direct the Respondent no.4 to accepi the Ecommendations of the Administrative Depanmcnt of lhe Petitioncrs. viz. Respondeot No.3 and a*'ard BPS-17 to the Petitioners Diploma Engineers from the due date.

b) Any other relief(s), which the Honourable Coun may deem fil and appropriate looking 10 the cirrumstances ofthe case."

I l. The counter-affidavils liled on behalf of the Respondents Nos.l, 2 and 3 do oot controven the l'actual contentions ofihe petilioncrs.

12.Leamed counsel on behalf of Respondent no.4, however, reitgrated Respomlent No.4's countcr-affidavit aftl rejected lhc p€tition€rs' contentions that the Order was discriminatory. According to him the Order was not discriminatory because it was bas€d on a dillerence in the qualificatioDs of the Offices .ud had just not divided lhe categories of employees ol thc Water Mzuagcment Ollicers inlo two groups itr alr arhitrary or whimsical fashion. lhe fact that some of the petitioners had more seniority fian some of the gmdustes, $ho benefited from the Order $as nol relevanl.

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13.Lezrmcd Counsel for Rcspondenl No 4 concedcs that on lhe basis of the various coaresporldence and reprcsentations passing b€tween the parties.

as noted earlier and as per the courts record, thc final resolution of this mattcr had remained undcr examination lbr a considerable amount of time. a. U

According to hinr this delay had been caused since in order to properly examine the rccommendations made by Respondent No.l. infomaliol had to be called for and assessed from the concemcd Administsative Dcpartmenls by Respondent No.4.

14.Finally howev€! in order to bring a closure 10 this malier a note for Respondent No 4 was moved by the Agricultural Depaftnent, GovcrDmotrt of Siodh on I l.l1.2004, recornmending ttlat the p€tition€rs be telted in the same way as the degree holders.

15.l,eamed couns€l pointed out that the l-inance Ministe! finally rejected thc r€commendation of Rcspondent No 3 lhat Diploma holders and degee holders b€ tlEated on an equal footing for fie pwpos€ ofpromotion from BP 16 to 17 by a manuscript notation dated 16.11.2004 on the aforcsaid note on the basis that:

"There is a difference between Diploma Holder & Degee. I c€n't tseat both on the said glid. Regret."

16.Based on the above-mentioned statement fiom *re Finance Minister leamed counsel for Respondent No.4, claims that therc was no discrimination in the matment of the pctitioners and that the Order was issued on reasoned grounds.

17.We have closely reviewcd the documents on thc fil€ and carcfully considered the arguments advancad by leamed couns€I,

18.Article 4 of the Constitution prolides a righl for individuals to be dealt uith in accordance with law and to be trcated in accordance with law t&

is the itrali€nable right of every citizen, wherever he may be, and of evcry Pakistan: q.Y other person for the time being within I

19.Articlc 25 provides that all citizens iuc equal betbre the law and are cntitled lo equal protection oflaw.

20.There cem bc no cavil with the proposilion that under Anicles 4 and 25 oflhe Cons(itution Pakistani citizens cannot be discriminated agaiGt.

2l- Discrimination can fall into various categori€s such as iacial, sexual, on account of c&ste, color, or crced etc. These are the obvious fotlls of discrimination. Disc mination however arises in many oth€r.iryays, Itr tb€ ioEtant cas€ the alleged discdminqtion rEvolves around the quEstio[ of classification, naflely, whether it is fair to enable one c]ass of eEployees performiry the same duties as anolhsr class ofeBpto,yecs to b€ prcmotcd to a higher pay sca.le to the exclwion ofthe o&er class ofantploy€€s fulflling the san]e firnclions . Ifthis were to happen, prima"facie, it would lpp€ar to be discriminatory. The matter, however. is Itot as simple as thst rad each case will tum on its own panicular facts and circumstances.

22.h dealing with lhe determination of the question of discrimin8tiotr in cases of classification the Cout cites with approval the case of GOVERNMENT OF BALOCHTS'I'AN through Additiooal Chief Socrctary V/s AZIZULLAH MEMON and 16 others (PLD 1993 S.C. pags 341) with regard to Article 25, where the Suprcme Court laid down principlB for the application ofthe equaliry claus€ (Anicle 25) ofthc Constitution:

(D that equal protection oflaw docs not envisage that evsry citizen is to be treated alike in all circumstances, but it cootcmplates that persons similarly situated or similarly placed are to be treated alikci

(iD that reasonablc classification is permissible bul it must be lbunded on reasonable distinction or leasonable basis:

(iiD that different laws can validly be cuacted for difielent sexcs, persons in different age groups, persotrs having w

rl different financial statrdings, and p€rsons ac{used of heinous crirnes:

(iv)that no standard of universol application to lest rc&ionableness of a cla.ssification can be laid down as "p 9 what may b€ reasolable classification in a panicular set of circumstances. may be unrcasonable in the other s€t .6 of circumstaocesl \

(v)drat a la\r apply-ing to one pcrson or one class of peruons may be constirutionally valid if therc is sufficieot basis or reason for it, but a classificatio[ which is aftitrary and is not founded on any ntional basis is no classitication as to warrant its exclusion from the mischief of Article 25:

(vi)that equal protection of law means that all p€rsons equally placed be treated alike both in privileg€s confened and liabilities imposed;

(vii)that in order to make a classifiution reasonable it should be based--

(a)on arr intelligible differentia q'hich distinguished persons or things that are grouped together froo those rvho have been left outl

(b)that the differcntia must have rational nexus to thc objecl sought b be achieved by zuch classificafion."

23.Reliancc wlls also placed on the above principles in the case of MEHRAM ALI v. FEDERATION OF PAKISTAN (PLD 1998 S.C. At PAgC 1455) and MITUAMMAD ASGHAR ZARDARI and others v. C.D.A and others (PLC 2008 C.S. l2l9).

24.According to the above principles in order to determioe whether a classification is reasonable it should be baued on an intelligible differentia which distinguished persons or things that are grouped together from those who have been left oul; that the differentia must have rational nexus to the object sought to b€ achievcd by such classification.

25.It is also to be noied that a law appl)ing to one p€rson or one class of persols may be constitutionall]- valid if there is sufficient basis or reason fot it, bul .t classilicatiofi v'hich is urhirrury and is not founded on any r. ionul haris is I1o classillcation as to waritlnt its exclusion ftom the mischie[of Articlc 25. (italics addcd)

26.The Supreme Coun io Water anrl power Dcvelopment Aulhority v.

Muhammad Jehargir (SCMR 2007 pagc 1900) which is a similar casc.

rcvolving around discriminarion based on ,.qrirya "Aucutionafi.-.1 .t qualifications found that therc had becn no discriminalion in "ur", ,rh*Ii t graduate and diploma holdcrs had applicd ,.. ,r" ";" r";"-;";;'

thejob rcquired ftc applicant to be gra{_luare.

" Consequently the respondelt oannot bc govemed urder the rules meant for porver Wing Engi[ccrs $ten u[der the Ru]es of Warer Wing only graduatcd Engineers are allowcd timc scale promotion where&\ the responderl rvas diploma holder.

therelbre, he could not be placed in tinre scalc BS_lg and subsequent movc-o\er BS-l 9.

10.Article 25 of the Constitutio! is not alkacted in th€ inslant cas€ considering that discrimimtion stipulsted under sub-Article (2) of Arricle 25 relates to making of distinction and difference between siolilar things. The case of discrimination *ould be u,herc recourse had been Eade to different standard qua equally placed persons atrd parties. In &e insta case there is.easooable classification with rcg8rd to cadre ard different discipline of jobs of the employees doing or performing diferenvdistinc( funotions th9r€fore different qualifications l},ith regard ro the sppoiltmelt a.nd promotion have been laid down..'

27.This position in respect ol. disc.imination on the basis of ,| classification in resped ofeducational quali6cations for particular posts has t most recentl) been offinncd b!.the Islamabad Iligh Court in the c€se ol.

Muhammad Asghar Zardari v. C.D.A. (2008 pf.C C.S. l2l9)

"An) .af,poinlrnent ol' nonlualilierJ engincers into the prolessiunal enginuer r.rork is a cleu violation of thc above law and the violators can be punished under the same law. T[rc rcsfmnJcnt No.l cannot promulc non_professional, noo- reglstcred and non-graJuares $ho have l)iplomas and B_Tech ccrlificates. \ahich are nrrt equiralent in any way proltssional eng;neering degrecs against the posrs to the sp€cilied for protessional enginccrs. It is rery clear th;r B-T;ch (Hons) Difl.: Diploma oI Associatc Engineering are rol at p; ld (Civil Engineering), \arth U.Sc. hrnce rhe;i could not be

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flU appointed against the posts specified for protessiom.l enginee$ duly reBistered with the P.E,(:".

28.Based on the above authorities and the panicula! facts rdq circumstanccs in this case regarding thd alleged discrimirEtion in

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classificatiorl of thc pelitioners. it seems clear to the Cowt that the classification of BPS-16 to Diploma Holdcrs and tlPS-I7 to Graduares i5 neithcr arbit.ary nor fou[ded on any umeasonablc or irational basis. ln this case as cxplained by the l-iiance Ministry its decision was based on the t)!e of educational qualification, which each Water Management Officer held. a Accordingly, thc court finds that thc petitioners' ha!'e not becn

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discriminaled against.

29.These are thc reaso s for our short order dalcd 26.3.2009. dismissing this petirion in limine.

F

ChiefJustice

Judgc

Filc namc 2052 07 s.mi fiml.doc

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