Ad hoc relief allowance to KP employees: SC explains what actually constitutes 'principle of equality'

ISLAMABAD: The Supreme Court has declared that the principle of equality does not mean that every law, policy matter, notification, administrative or executive order, etc, must have universal application to all the persons who by nature, attainment or circumstances are not in the same position.

A three-member bench, headed by Chief Justice Gulzar Ahmed, held this against the Peshawar High Court (PHC) judgment regarding ad hoc relief allowance to the Khyber Pakhtunkhwa (KP) employees.

The federal government in the annual 2019-20 budget had granted a 10 percent ad hoc relief allowance to the employees of the Federal Government from BPS-1 to BPS-16, while a five percent ad hoc relief allowance was granted to the employees of BPS-17 to BPS-20.

These allowances were given on running basic pay.

The KP government, while drawing an analogy from the said grant, announced an increase in salaries vide a notification dated 11.07.2019; however, it made a distinction that five percent ad hoc relief allowance will be provided to employees of BPS-17 to BPS-19 but the same was not made available to those employees of the provincial government who were already drawing special allowances, including Special Judicial Allowance, subject matter of issue in dispute.

According to the judgement, "As the respondents being employees of BPS-17 to BPS-19 of the PHC were already drawing Special Judicial Allowance, therefore, they were denied the said five percent ad-hoc relief allowance.

"Being aggrieved by the notification, they challenged the impugned notification before the PHC by filing a constitutional petition on the ground that the notification in question is discriminatory in nature, and is issued in "defiance" of Article 25 of the Constitution.

"The PHC through judgment dated 04.03.2020, mainly on the ground that the allowance in question has been extended to all similarly placed employees across the board, hence, refusal of the said allowance to the respondents cannot be said to have been made under reasonable classification based upon the principle of intelligible differentia, therefore, it is violative of Article 25 of the Constitution. The KP government then challenged the PHC judgment before the Supreme Court, which set it aside."

The judgment authored by Justice Sayyed Mazahar Ali Akbar Naqvi noted that the varying needs of different classes of persons require different treatment.

According to the judgement, "In order to pass the test for permissible classification two conditions must be fulfilled, i.e., (i) the classification must be founded on an intelligible differentia, which distinguishes persons or things those are grouped together from others left out of the group, (ii) the intelligible differentia must have a rational nexus with the object sought to be achieved.

"However, it must disclose that there must be a substantial basis for making the classification and there should be a nexus between the basis of classification and the object of action under consideration based upon justiciable reasonings.

"Through the impugned notification, the relief of five percent was denied to those employees of BPS-17 to BPS-19, who are already drawing special allowances in the name of Health Professional Allowance, Special Judicial Allowance, Scheduled Post Allowance, Technical Allowance, Prisons Allowance, and Prosecution Allowance. "The reason of this classification as furnished by the appellant was due to financial impediment as the employees from BPS-17 and above being officers are in receipt of more salary than those of the employees from BPS-1 to BPS-16, which in common parlance is called disproportionality in the salary of the employees."

The judgment said that "Articles 29 to 40 in Chapter 2 of the Constitution are the 'Principles of Policy'.

"These principles of policy are the directive principles to achieve the cherished goal of a welfare state.

"Article 38(e) makes it mandatory for the government that it shall "reduce disparity in the income and earnings of individuals, including persons in the various classes of the service of Pakistan;"

"In a way, it is the duty of the government to remove the disproportionality in the salaries of various classes of employees who are in service of Pakistan." It said the impugned notification was impliedly in consonance with the spirit of the Constitution, therefore, the PHC ought to have refrained from interfering in it.

Copyright Business Recorder, 2021