No law or policy can be described as discriminatory without substantiation: SC

ISLAMABAD: The Supreme Court held that it would not be enough to say that a piece of legislation or a policy formulated thereunder is discriminatory, but it is to be substantiated by applying certain well entrenched principles.

The judgment authored by Justice Muhammad Ali Mazhar said that in the case of Pakcom Limited Vs Federation of Pakistan (PLD 2011 SC 44) this Court laid down certain principles on the subject of discriminatory legislation, such as (i) the expression “equality before law” or the “equal protection of law” does not mean that it secures for all persons the benefit of the same laws and the same remedies. It only requires that all persons similarly situated or circumstanced shall be treated alike; (ii) the guarantee of equal protection of law does not mean that all laws must be general in character and universal in application and the State has no power to distinguish and classify persons or things for the purpose of legislation.

(iii) the guarantee of equal protection of laws forbids class legislation but does not forbid reasonable classification for the purpose of legislation. The guarantee does not prohibit discrimination with respect to things that are different. The State has the power to classify persons or things and to make laws applicable only to the persons or things within the class; (iv) the classification, if it is not offending a constitutional guarantee, must be based upon some intelligible differentia bearing a reasonable and just relation to the object sought to be achieved by the legislation; (v) reasonableness of classification is a matter for the courts to determine and when determining this question, the courts may take into consideration matters of common knowledge, matters of common report, the history of the times, and to sustain the classification, they must assume the existence of any state of facts which can reasonably be conceived to exist at the time of the legislation; (vi) the classification will not be held to be invalid merely because the law might have been extended to other persons who in some respect might resemble the class for which the law is made because the legislature is the best judge of the needs of particular classes and the degree of harm so as to adjust its legislation according to the exigencies found to exist.

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The judgment did not not find any case of discrimination between the two different categories of employees; those devolved and absorbed by the province under the command of 18th Amendment and those who were provincial employees from the very first day of their employment and were never extended any such allowance provincially that had been extended to the federal government employees under the Ordinance.

This allowance subsequently extended by the Government of KPK pursuant to the judgment of this Court, with the rider that the same shall apply only to the employees of the Special Education Institutions of KPK devolved under the 18th Constitutional Amendment.

According to the case, the petitioners are performing duties in Special Education Centers under the administrative control of the Social Welfare, Special Education and Women Empowerment Department, Government of Khyber Pakhtunkhwa.

Their contemporaries were working in the Federal Government under the administrative control of the Directorate General of Special Education, Government of Pakistan, Islamabad, but after 18th Constitutional Amendment their services were devolved to the province of KPK, and presently, such persons are working under the administrative control of the KPK Department.

The Ministry of Social Welfare and Special Education through a notification 21-04-2011 had approved the payment of Health Allowance to the institutions providing Health Services equal to one basic pay of salary. However, when this payment was stopped for certain reasons, litigation ensued, which was ultimately resolved vide Supreme Court judgment dated 17.01.2018.

In compliance of the judgment, the Health Allowance was also allowed to the devolved employees vide notification dated 25.11.2019. The present petitioners considered themselves to be at par with the devolved employees and filed departmental appeals for the same allowance but their departmental appeals remained un-responded. Hence, they approached the Khyber Pakhtunkhwa Service Tribunal, Peshawar for redressal of their grievance, but the Service Appeals were dismissed on 12.02.2024.

Therefore, the petitioners approached the apex court.

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