FAISAL NISAR Versus PROVINCE OF SINDH through Chief Secretary
ORDER
MUNIB AKHTAR, J.--- The petitioners, who are employed in the Excise and Taxation Department ("Department") of the Government of Sindh, raise a grievance and seek relief under Article 25 of the Constitution in the following circumstances.
2. The petitioners were appointed as computer programmers in BPS-16 in the Department in 2009 or thereabouts by direct recruitment. They have since then been serving therein in the said post and at the said grade. The petitioners submit, on the basis shortly to be stated, that their post of computer programmer ought to be upgraded to BPS-17. They made a departmental representation in this regard but to no avail. Hence, the present petition seeking relief under Article 25 of the Constitution.
3. Learned counsel for the petitioners, relying on certain case law to be considered later, submitted that the petitioners' post ought to be upgraded on the principle of "similar pay for similar post". Explaining his submission, learned counsel submitted that there were other departments in the Government of Sindh in which the post of computer programmer was placed in BPS-17, although the nature of the work being performed was essentially the same. Thus, although the petitioners were similarly placed in all material respects with their counterparts in the other departments, they were, by being placed in a lower grade, denied a benefit enjoyed by the latter. This was discriminatory and violative of Article 25 of the Constitution and hence the petitioners were entitled that their post should be upgraded to BPS-17.
4. Elaborating his submissions, learned counsel submitted that in the Criminal Prosecution Service and the Wildlife Department of the Government of Sindh, computer programmers had been placed in BPS-17. Referring to the relevant notifications, learned counsel submitted that the qualifications for the post, as well as the work to be done, was the same. However, in the Department the post was in BPS-16, while it was one grade higher in the other departments. Learned counsel contended that this was not a reasonable classification: there was no intelligible differentia between the petitioners on the one hand and the computer programmers in the other departments on the other, nor did the impugned differentiation have any rational nexus with the object sought to be achieved by such classification. The difference was thus nothing but discrimination within the meaning of, and as prohibited by, Article 25. Learned counsel submitted that in the para-wise comments/reply filed by the respondents no worthwhile reason or cause had been shown or disclosed as to why there was this discrimination between the petitioners on the one hand and other similarly placed persons on the other. As already noted above, learned counsel relied on a number of cases in support of his submissions. This case law is considered below. Reference was also made to the relevant statutory provisions. Learned counsel prayed accordingly.
5. Learned AAG opposed the grant of any relief. It was submitted that there was no discrimination, whether within the meaning of Article 25 or otherwise. Learned AAG submitted that the petitioners on the one hand and the other persons on the other were in different departments, albeit in the Government of Sindh. It was submitted that each department had its own requirements and needs, and its structure was established accordingly, in consultation the Services and General Administration Department and as provided for under the relevant rules. The needs and requirements of one department could not be equated with that of another, even though superficially the work required and being done may be similar. Learned AAG submitted that whenever a post was needed to be created in a department or an existing post upgraded, full justification had to be provided by the department concerned. It was not therefore simply a matter of one department following another, or the structure of one being imposed on the other. Learned AAG also referred to certain case law and sought to distinguish some of the cases relied upon by learned counsel for the petitioners. The cases relied upon are considered below. It was submitted that the petition merited being dismissed.
6. We have heard learned counsel as above, examined the record and considered the case law relied upon. The principles relating to Article 25 are well established and need no elaborate rehearsal. Reference may be made to the leading and well known case of I. A. Sherwani and others v. Government of Pakistan and others 1991 SCMR 1041, 1086 (para 26) (herein after "I. A. Sherwani"). In sub-para (vii) of the said para 26, the parameters which could make a classification reasonable have been set out. In the present context, three judgments relied upon by learned counsel for the petitioners are of particular relevance. One is an unreported judgment of the Supreme Court dated 29.01.2002 (C.P. No.40/1999, titled Abdul Shakoor and others v. Government of Pakistan and others; herein after "Abdul Shakoor"). The other two are judgments of learned Division Benches of this Court. One is unreported, being judgment dated 25.01.2010 in C.P. No.D-2448/2008 (titled Gulzar Ali Khuskh and others v. Province of Sindh and others; herein after "Gulzar Ali Khuskh"). The other is reported as Fayyaz Ali and others v. Province of Sindh and others 2013 PLC (CS) 592 (herein after "Fayyaz Ali"). In the last mentioned case, reliance has been placed on Abdul Shakoor. It will be appropriate to consider these decisions first.
7. In Abdul Shakoor, the petitioners were employed in the Customs, Central Excise and Sales Tax Department in the Government of Pakistan. They petitioned the Supreme Court under Article 184(3) of the Constitution. The petitioners, who were in different posts in the department, sought upgradation of their respective posts. One post was of sepoy (or sepahi): the existing grade was BPS-2 and it was sought to have it upgraded to BPS-5. Another post was of hawaldar/jamadar. The existing grade was also BPS-2 and this was sought to be upgraded to BPS-7. The last post involved was of officer/inspector, which was in BPS-11. It was sought to be upgraded to BPS-16. It was contended for the petitioners that similar posts in other departments of the Federal Government (such as FIA, ASF, Railways and Islamabad Police) and also in certain departments of the Government of Sindh (including the Department) had been upgraded but the same relief had been denied the petitioners. It was submitted that this was discriminatory within the meaning of Article 25. Relying, inter alia, on I.A. Sherwani, the Supreme Court held that the petitioners had been discriminated against. It was observed as follows: "From the above quoted cases, it can be deduced that persons holding similar posts with similar duties should not be treated differently in their pay scales simply for the reason that they belong to different departments" (para 8). The petition was accordingly allowed in terms as stated in para 9.
8. In Gulzar Ali Khuskh the concerned department was the Rural Development, Local Government, Katchi Abadis and Spatial Development Department in the Government of Sindh. The petitioners, who were assistant engineers in the department, contended that the Chief Minister had, on the representation of one of their colleagues, upgraded the post of assistant engineer from BPS-17 to BPS-18 and re-designated it as "District Officer (Technical)/Town Officer (Technical)", but the benefit of this exercise was restricted to those who had completed 15 years as assistant engineers. The petitioners asked for similar treatment, although they had not completed 15 years as aforesaid. The learned Division Bench, after considering certain case law, held that the condition imposed was, inter alia, "uneven and unjust" and directed that the petitioners also be upgraded.
9. In Fayyaz Ali the petitioners were employed as data processing assistants in the Finance Department of the Government of Sindh. They were placed in BPS-12. It was contended that a similar post in another department (the SGAD), and even within the Computer Cell of the Finance Department (which was placed in BPS-11) had been upgraded to BPS-16 while this benefit was being denied the petitioners. Reliance was also placed on similar posts in the Federal Government. It appears that in fact in a substantial number of other departments in the Government of Sindh, the post of data processing assistant (or its equivalent) had been upgraded to BPS-16. Relying in part on Abdul Shakoor, the learned Division Bench held that the petitioners had been discriminated against (see at pg. 597, para 9) and directed that the petitioners' post also be upgraded to BPS-16.
10. Learned AAG relied on Muhammad Farid Khattak and others v. Chief Secretary, Government of NWFP and others 2009 PLC (CS) 712 (SC) (herein after "Muhammad Farid Khattak") and Saiful Hanan v. Chairman WAPDA and others 1994 SCMR 1804 to contend that, as observed in the first cited decision, "it is for the Government to place a particular post in any grade or prescribe certain terms and conditions therefor, as per its policy, and incumbents of a particular post cannot claim as of right for settlement of prescription or provisions of certain terms and conditions according to their own choice" (pg. 716), and that "[i]t is always open for a candidate to accept or not the terms and conditions prescribed for a particular post" (ibid). However, it is pertinent to note that in this decision, the Supreme Court also observed, at pg. 717, that "[i]t may be possible that persons discharging similar duties appointed in different departments may claim that they may be given the same status and benefits". Learned AAG also relied on Suo Motu action regarding regularization of the contract employees of Zakat Department as well as appointment of Chairman of Central Zakat Council 2013 SCMR 304 to contend that the position in respect of a post in one Province could not serve as the basis for seeking relief against alleged discrimination in respect thereof even though a similar post, in another Province, was being treated differently (pg. 313). It is pertinent to note that a similar observation was also made in Muhammad Farid Khattak (at pg. 717).
11. Reference may now be made to the statutory framework. The relevant statute is of course the Sindh Civil Servants Act, 1973. More immediately pertinent are the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 ("APT Rules"), framed under section 26 of the Act. Rule 3(2) provides as follows:--
"(2) The method of appointment and the qualifications and other conditions applicable to a post shall be as laid down by the Department concerned in consultation with the Services and General Administration Department."
12. The first point to note is that the APT Rules do not impose departmental uniformity across the Government. Each department is allowed, subject to consultation with the Services and General Administration Department, to decide for itself the methods of appointment to, and qualifications and other conditions for, the various posts in the said department. This is only to be expected. The work of the different departments varies and can differ considerably one from the other. Thus, the Wildlife Department performs functions quite different from the Education Department, which is different from the Excise and Taxation Department, and so on. This differentiation is but natural. However, it is also the case that there will be posts that fulfill essentially the same function in two or more (or perhaps even all) departments. Thus, a private secretary or a personal assistant performs essentially the same tasks regardless of the department. The posts at hand, those of computer programmers, may well fall in this category. As is clear from the observation in Abdul Shakoor cited above (see para 7) what is of relevance is the nature of the duties being performed and not, e.g., the qualifications as such laid down in a particular department for appointment (or promotion) to the said post.
13. At the same time, the facts and circumstances of the cited decisions need also to be kept in mind. Gulzar Ali Khuskh is, with respect, clearly distinguishable because what was found discriminatory there was the condition of length of service that had been imposed. No such issue arises, or condition applies, in the present case. When Abdul Shakoor and Fayyaz Ali are considered, it will be noticed that there was a relatively wide "gap" between the grade (or basic scale) in which the petitioners there were placed, and the grade of other employees in other departments (although in Fayyaz Ali discrimination was found even within the department itself). A somewhat similar position obtained in two other cases cited by learned counsel for the petitioners, Javaid Hussain Qureshi v. Finance Department, Government of the Punjab and others 2004 PLC (CS) (LHC) (sic) and Saeed-ud-Din v. Secretary to Government of N.W.F.P. and others 1990 CLC 8 (PHC). In the Lahore High Court decision, the difference was of three grades (from BPS-8 to BPS-11) whereas in the case before the Peshawar High Court, the difference was from BPS-9 to BPS-16.
14. From the foregoing decisions it is clear that if the posts involve the performance of similar duties or functions and the difference is of three grades or more, then unless something to the contrary can be shown, the differentiated placement will be regarded as discriminatory, and the posts in the lower grade will be directed to be upgraded to the higher one. This would be so even if the posts are in different departments. (Of course, the degree of similarity required for this purpose may itself be in issue in a particular case, and to that extent each case may turn on its own facts and circumstances. However, that is not the situation at hand, since it was not contested by learned AAG (properly, in our view) that the duties performed by the present petitioners as computer programmers were so different from those of computer programmers in the other departments that they became dissimilar.) Thus, there is an outer limit, as it were, beyond which the difference will be clearly discriminatory. However, the crucial question is whether it follows from this that any difference at all will be discriminatory. The reason why this question arises is of course that in the present case, the difference is only of one grade: the petitioners are in BPS-16 while their counterparts are in BPS-17. It is also to be noted that, as already indicated above, the petitioners have only been able to show two departments, the Criminal Prosecution Service and the Wildlife Department, in which computer programmers have been placed in BPS-17.
15. In our respectful view, the position that emerges from a consideration of the cited case law and the statutory framework within which each department operates (in terms of the APT Rules) can be stated as follows. If there are similar posts in the same or different departments (i.e., similar duties are being performed by similarly placed employees) and there is a difference in grade or pay scale of three or more then, unless something exceptional to the contrary can be shown as could bring the matter within the parameters laid down in para 26(vii) of I. A. Sherwani, this differential will be regarded as discriminatory and the employees in the lower grade will be entitled to have the post upgraded to the higher one. Secondly, if there are such employees as aforesaid and in substantially all of the departments the similarly placed employees are in the higher grade, then (again, unless something exceptional to the contrary can be shown as could bring the matter within the parameters laid down in para 26(vii) of I. A. Sherwani) the employees in the lower grade will be entitled to have the post upgraded to the higher one. This would be so regardless of the difference in the grade, i.e., even a differential of one grade will be discriminatory. However, if neither of these situations obtains, then the matter will have to be considered on its own merits.
16. As noted above, in the present case, the differential is of only one grade (BPS-16 v BPS-17) and the record as made available shows that only in two departments have computer programmers been placed in the higher grade. Thus, neither of the two situations noted above obtains. Having considered the matter, in our view the differential in the present case cannot be regarded as discriminatory within the meaning of Article 25. From the record as available it appears that in each of the departments concerned, i.e., the Excise and Taxation Department, the Criminal Prosecution Service and the Wildlife Department the posts were placed in the relevant grade from the beginning. In other words, it appears not to be the case that in the latter two departments, the post of computer programmer was originally in BPS-16 and was then upgraded to BPS-17. Now, the scheme of the APT Rules indicates that each department is to have some flexibility in determining its own needs and establishing the criteria for the various posts therein. The requirement of consultation with the Services and General Administration Department ensures that on an overall basis the structure of Government in each department is broadly the same. However, this does not, in our view, negate the variation made permissible, in particular, by Rule 3(2) of the APT Rules. It is pertinent to note that if any (and every) difference, even in respect of similarly placed employees/posts, were to be regarded as discriminatory within the meaning of Article 25, then a rigid uniformity will be imposed on the departmental structure of Government. In such a situation, if even one department were to make any adjustment or change, it would then have to ripple immediately through the entire departmental structure and become automatically applicable to and in all other departments. In our respectful view, such a result would not be in consonance with the law. Article 25 and the case law noted above do not, in our respectful view, prohibit or preclude all variation or difference. Certain outer limits have been established or can be deduced (i.e., the two situations noted in the last preceding para). But that does not, in our respectful view, amount to a conclusion that there can be no variation at all.
17. In our view, the variation as presently in issue, i.e., of the computer programmers in the Excise and Taxation Department being placed in BPS-16 on the one hand and in BPS-17 in the Criminal Prosecution Service and Wildlife Department on the other, is such that it is non-discriminatory and permissible. It does not cross the outer limit. It is a variation within the departmental structure of Government envisaged and made permissible by the APT Rules. Therefore, in our view the petitioners have been unable to make out a case for the upgradation of their posts to BPS-17 on the basis of discrimination under Article 25 of the Constitution. This petition fails and is hereby dismissed.
ZC/F-13/Sindh Petition dismissed.