Dr. TARIQ NAWAZ and anothers vs GOVERNMENT OF PAKISTAN through the Secretary, Ministry of Health, Government of Pakistan, Islamabad and anothers

ORDER

' JAVED IQBAL, J.--The petitioner seeks leave to appeal against order, dated 24-11-1999 passed by High Court of Sindh, Karachi, whereby Constitution Petition bearing No.D-645 of 1999 has been dismissed.

2. Briefly stated the facts of the case are that the petitioners were appointed as Medical Officers by the Ministry of Health, Government of Pakistan in 1989 on ad hoc basis and the period of ad hoc appointment has been extended from time to time. In 1992 .The Medical Officers (Regularization of Appointments) Act, 1992 (hereinafter referred to as the Act) was promulgated providing, inter alia, that all the ad hoc appointees who were appointed prior to 12-10-1988 shall be deemed to have been appointed on regular basis w.e.f. 30-7-1992 i.e. The date of commencement of the Act. The petitioners who were appointed in 1989 resultantly could not be regularized.

4. It is mainly contended by the petitioners that cut off date i.e. 12-10-1988 is highly discriminatory, unconstitutional and in violation of the provisions as enshrined in Articles 18 and 25 of the Constitution because once the Government decided to regularize the appointments of ad hoc Medical Officers by means of legislation it should have regularized the appointments of all ad hoc Medical Officers without any discrimination. He urged that there ought to be no cut-off date as stipulated in the Act which is without any lawful sanctity and incorporated with mala fide intentions.

5. We are not persuaded to agree with the contention that the Act is discriminatory or in violation onthe provisions as contained in Articles 18 and 25 of the Constitution of Islamic Republic of Pakistan. The pivotal question which needs determination is as to whether the provisions as contained in the Act are arbitrary and discriminatory which had been put in the operation in such a manner so as to violate guarantees contained in Article 25 of the Constitution and denied the equal protection of law. In our considered view the provisions of the Act area neither arbitrary nor discriminatory for the reason that the "the equality should not be in terms of mathematical calculation and exactness. It must be amongst the equals. The equality has to be between the persons who are placed in the same set of B circumstances. (1991 CLC 13 (DB)). The phrase 'equal protection of law' envisaged in Article 25 of the Constitution means that no person or class of persons would be denied the same protection of law which is enjoyed by persons or other class of persons in like circumstances in respect of their life, liberty, property or pursuit of happiness.

Persons similarly situated or in similar circumstances are to be treated in the same manner". (1990 CLC 136). It is well-settled by now that "the conception of equality before the law does not involve the idea of absolute equality among human beings which is a physical impossibility. (PLD 1980 Quetta 10 + PLJ 1979 Quetta 246 (DB) D + AIR 1951 Nag. 58 + ILR 1951 Nag. 646 (FB)). Article 25 of the Constitution of Islamic Republic of Pakistan guarantees a similarity of. Treatment and not identical treatment. The protection of equal laws does not mean that all laws must be uniform. (AIR 1955

(sic) 275). It means that E among equals the law should be equal and should be equally administered and that the like should be treated alike. (PLD 1991 Quetta 7 (DB) + PLD 1968 Kar. 73 + AIR 1953 SC 250 + AIR 1952 SC 235) and that there should be no denial of any special privilege by reason of birth, creed or the like and also equal subjection of all the individuals and classes to the ordinary law of the land". (AIR 1953 Hyd. 100 + ILR 1951 Nag. 58). Here at this juncture the question arises as to whether the petitioners can be placed in the same set of circumstances, vis-a-vis those who are confirmed pursuant to the Act? The answer would be certainly in negative for the simple reason that petitioners were appointed in the year 1989 and thus, could not avail the benefit as contained in the Act but it cannot be equated to that of discrimination which always involves an element of unfavourable bias which is lacking in this case.

5. There is no cavil to the proposition that "Law should be saved rather that destroyed and Court must lean in favour of upholding the constitutionality of a legislation--Rule of Constitutional interpretation was that there was a presumption in favour of the constitutionality of legislative enactment. Where, however, there was on the face of a statute no classification at all and no visible differentia, with reference to the object of the enactment as regards the person or persons subject to its provisions, then the presumption was displaced - Court could not be asked to presume that there must be some undisclosed or unknown reasons for subjecting certain individuals to discriminatory treatment, for in that case Court would be making a travesty of the Fundamental Right of equality before law enshrined in Article 25". (Inamur Rehman v. Federation of Pakistan, 1992 SCM R 563 + Mehreen Zaibun Nisa v. Land Commissioner, Multan PLD 1975 SC 397 + Jibendra Kishore v. Province of East Pakistan, PLD 1957 SC (Pak.) 9 + Waris Meah v. The State, PLD 1957 SC (Pak.) 157).

6. In the light of foregoing discussion we are of the considered opinion that the provisions as contained in the Act are neither arbitrary nor discriminatory and, accordingly, the petition being devoid of merit is dismissed.