IN THE SUPREME COURT OF PAKISTAN 
 
 
(APPELLATE JURISEICTION) 
 
 
 
PRESENT: 
 
 
Mr. Justice Gulzar Ahmed 
 
 
Mr. Justice Dost Muhammad Khan 
 
 
Mr. Justice Tariq Parvez 
 
Civil Petition No2167 of 2014 
(On appeal from the judgment dated 22.09.2014 
passed by the Peshawar High Court, Mingora 
Bench (Dar-ul-Qaza), Swat in CR No.141-P/2014) 
 
Khan Toti and others 
….Petitioners 
Versus 
Govt. of NWFP thr. Secretary Finance and others  
 
For the petitioners: 
 
Syed Safdar Hussain, ASC 
For Govt. of KPK:  
 
Mr. Waqar Ahmed Khan, Addl. A.G. KPK 
 
For the Federation: 
 
Syed Nayyab Hassan Gardezi, ASC 
 
 
 
 
 
Standing Counsel for Attorney General 
 
Date of hearing:  
 
16.03.2016  
 
 
 
 
 
JUDGEMENT 
 
Dost Muhammad Khan, J.— Petitioner Khan Toti along with 17 
others and proforma respondents No.8 and 9 have questioned the 
legality, propriety and legitimacy of the judgment of learned Single 
Judge of the Peshawar High Court, Mingora Bench, Swat in C.R. 
No.1141-P/07. Leave to appeal is sought against the impugned 
judgment dated 22.09.2014 by the petitioners on various grounds.  
 
We have heard Syed Safdar Hussain, learned ASC for the 
petitioners, Mr. Waqar Ahmed Khan, learned Addl.A.G. KPK and Syed 
Nayyab Hussain Gardezi, learned ASC, Standing Counsel for the 
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2 
Federation and have carefully gone through the record as well as the 
law, rules and regulations, applicable to the subject matter.  
2. 
  
The epitome of the controversy relates to the issuance of 
notification by respondents No.1 to 4, officials of Government of NWFP 
(KPK) dated 22.7.1987 to extend financial and other benefits of 
service to all the employees/civil servants in BPS-5, 6, 7 and 9. The 
employees of BPS-5 were given @33% Selection Grade in BPS-7 and 
employees of BPS-6 were allowed Selection Grade in BPS-7 and 33% 
posts were placed in Selection Grade BPS-9. Similarly, the notification 
thus issued, has extended further benefit of two advance increments 
to those employees who had passed FA examination while to those 
who had got Bachelor Degree were allowed three advance increments.  
3. 
  
The 
Executive/Administrative 
authorities, 
not 
well 
conversant with the judicial branch of the District Judiciary, could not 
clarify the nomenclatures of the Readers, Moharars, Examiners and 
other alike, who in fact are Senior or Junior Clerks in the above 
grades. However, through a letter dated 27.07.1989, issued by the 
Finance Department, the petitioners and proforma respondents were 
extended the benefits, therefore, that controversy, although was put 
at rest but still agitated by the respondent government.  
4. 
  
The learned ASC for the official respondents raised 
preliminary objection that the Civil Court was having no jurisdiction to 
entertain the subject matter as the petitioners and proforma 
respondents, being civil servants and the matter relates to the terms & 
conditions of their service thus, the impugned judgment of the 
Peshawar High Court is not open to any exception.  
  
On the other hand, learned ASC for the petitioners vehemently 
contended that it is a classic case of discrimination, which is squarely 
CP 2167/14 
3 
prohibited by Article 25 of the Constitution and that, once such amount 
was paid to the petitioners and proforma respondents in light of the 
clarification of the Finance Department’s letter dated 27.07.1989 then, 
the official respondents were stopped to make a retrace or to turn 
volta-face and that, after separation of Judiciary from the Executive, 
right from the lower tier, the petitioners and proforma respondents 
were servants of the Province but keeping in view the scheme of the 
Constitution and the law on the subject after complete separation of 
Judiciary from the Executive limb of the State, the petitioners could 
not be termed in strict legal sense as civil servants in the affairs of the 
Provinces to make them amenable to the jurisdiction of the Provincial 
Services Tribunal. The learned Judge in the High Court committed legal 
and jurisdictional error, accepting such objection of the official 
respondents who were petitioners before the High Court because of 
the above legal and constitutional position, the learned ASC further 
added.  
5. 
  
In view of the Objectives Resolution, which is now integral 
part of the Constitution by way of Article 2A thereof and the command 
contained in Sub-Article (3) of Article 175 of the Constitution clearly 
providing without any exception that the Judiciary shall be separated 
progressively from the Executive within a period of three years from 
the commencing day. However the same was extended to five years 
by the Constitution (Fifth Amendment) Act, 1976 and then to 14 years 
through ‘Presidential Order’.  
6. 
  
Although no successive government made any effort to 
comply with the commanding language of the above Article, 
completely separating or securing the independence of Judiciary at all 
levels and tiers, however, it was in Sharaf Faridi’s  case when the 
CP 2167/14 
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Sindh High Court gave an authoritative judgment which was then 
challenged by the Government of Sindh and others through Chief 
Secretary before the Supreme Court of Pakistan. A larger Bench of five 
Hon’ble Judges, including the then Hon’ble Chief Justice while dealing 
with the issue of separation of judiciary at all tiers and to secure its 
independence in all spheres including financial independence, after the 
Federal Government and all the four Provincial Governments conceded 
to the constitutional requirements, gave authoritative judgment in the 
case of Govt. of Sindh vs. Sharaf Faridi (PLD 1994 SC 105) by 
laying down exhaustive and comprehensive guidelines to that effect. 
The Court also elaborated on Law Reforms Ordinance 1972 (XII of 
1972) provided for the securing of complete separation of judiciary 
from the Executive.  
7. 
  
Necessary directions were issued to all the Governments to 
amend the Civil Servants Acts of the Provinces and the Federal one 
and the Appointment, Promotion/Transfer Rules and also E&D Rules 
framed thereunder to establish the authority of the Chief Justices of 
the High Courts and that of the Supreme Court of Pakistan with regard 
to the subordinate Judiciary of the High Courts and its para legal staff 
and also of the High Courts Ministerial Establishment to draw a clear 
demarcation line between the Executive and the Judiciary. The latter 
one was to fall within the exclusive domain of the Supreme Court and 
the High Courts. All those directions were given effect in due course.  
8. 
 
The Governors of the Provinces, particularly of NWFP (KPK) 
delegated all their powers to the Chief Justices of the High Courts to 
deal with the Judicial officers subordinate to the High Courts and the 
paralegal staff with further powers to further delegate their powers to 
any other authority within the High Courts or the District Judiciary.  
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9. 
  
For the redressal of grievance in the matter of Terms & 
Conditions of Service, Subordinate Judiciary Service Tribunal Act was 
enacted with the object that the Provincial Service Tribunal was ceased 
to exercise any jurisdiction with regard to the terms & conditions of 
the Judges of the Courts subordinate to the respective High Courts.  
10. 
  
On the other hand, the Finance Division of the Federal 
Government and the Finance Departments of all the Provincial 
Governments delegated extensive powers under the Financial Rules to 
the Chief Justice of Pakistan and Chief Justices of the High Courts as a 
competent authority to deal with all financial matters including the 
powers to create or abolish any post, upgrade or down grade or 
increase the number of posts in the establishment of the Supreme 
Court, High Courts and District Judiciary with the only exception that 
the expenditure is to be met within the budget, separately allocated to 
the Supreme Court and the Four High Courts. Keeping in view the 
above constitutional and legal position the Judiciary stood separated 
for all purposes and intents from the Executive.   
11. 
  
If the paralegal staff of the District Judiciary is construed 
to be a civil servant, amenable to the jurisdiction of the Provincial 
Service Tribunal, which is ordinarily presided over by a District & 
Sessions Judge, nominated by the Chief Justices of the respective High 
Court on the request of the provincial governments while rest of all the 
members belong to the executive limb of the State in the Provinces 
then, a serious inexplicable situation may be emerged because certain 
posts of the paralegal staff of the District Judiciary has now been up- 
graded to BPS-17 and above to take action for breach of discipline or 
to impose punishment, the Chief Justice of the High Court alone is the 
competent authority while in other cases the District & Sessions 
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Judges for the employees from grade 1 to 15 are the competent 
authorities and appeal against their decisions shall lie to the Chief 
Justice thus, the Chief Justice or to say the High Court and the District 
& Sessions Judges would be arrayed as respondents in appeal before 
the Provincial Service Tribunal, rendering them answerable to such 
Tribunals and to defend themselves before the different benches of the 
Service Tribunal headed by members from the Executive Authority, 
except the Chairman who too is subordinate to the Chief Justice and 
his nominee.  
12. 
  
Even otherwise under Article 175(3) of the Constitution the 
Chapter is prefaced with the nomenclature “the Judicator”. The 
scheme of the Constitution and the law on the subject clearly 
envisages that the Judiciary is the one and a single ladder where 
different rugs are working therein right from the District Judiciary, its 
ministerial staff or menial staff, the High Court establishment staff and 
the Supreme Court Establishment Staff. Therefore, throwing back the 
ministerial or menial staff of the District Judiciary at the mercy of the 
Provincial Service Tribunal, holding them civil servants would amount 
to reverse all the efforts made so far in securing independence and 
separation of the judiciary from the executive and the landmark 
judgment in Sharaf Faridi case would become of no judicial efficacy 
rather would be rendered ineffective.  
13. 
  
Even in the British era, rules were framed by the Judicial 
Commissioner U/s 27(3) of the North-West Frontier Province 
(KPK) Courts Regulation, 1 of 1931 for the subordinate services 
attached to the civil courts (District Judiciary) other than the Judicial 
commissioner’s Court. In clause (ix), although the NWFP Civil 
Services (Punishment and appeal) Rules, 1943 were made 
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applicable where against inflicting a penalty on any member of 
paralegal staff by the subordinate Judge under clause (1) of Rules (IX-
A) appeal shall lie to the senior subordinate Judge and in the case of 
order passed by the senior subordinate Judge under Rule A, the appeal 
shall lie to the District Judge. However, any penalty imposed by the 
District Judge in original jurisdiction under clauses (b) & (c) of rule 8, 
the appeal was to lie to the Judicial Commissioner and further appeal 
under rule 10 of the Punishment and Appeal Rules had to lie before the 
Governor of the Province.  
14. 
  
We 
have 
extensively 
studied 
the 
Civil 
Servants 
Appointment, Promotion and Transfer Rules of 1975 and the NWFP 
Civil Servants Appointment, Promotion and Transfer Rules 1981 but 
could not find any provision specifically or by necessary implication 
repealing the rules of 1937, framed by the Judicial Commissioner with 
the approval of the Governor of the NWFP.  
15. 
  
Leaving aside that aspect of the matter for a moment, a 
similar proposition came up before this Court in the case of I.A. 
Sharwani and others v. Government of Pakistan through 
Secretary Finance Division, Islamabad and others (1991 SCMR 
1041). The larger Bench of five Hon’ble Judges made exhaustive 
scrutiny of Article 212 of the Constitution and Ss. 4 & 3 of the Service 
Tribunals Act, (LXX) of 1973. In this case the controversy was with 
respect to granting of pensionary benefits to a class of retired 
employees of Executive Branch, who had retired within a particular 
period while the same was denied to another class of employees 
similarly placed, who had retired in another period. The then learned 
Attorney General raised preliminary objection that the Constitution 
Petitions before the High Court and then before this Court under Article 
CP 2167/14 
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212 thereof were clearly barred and the same were liable to be 
dismissed on that ground alone. The Hon’ble Larger Bench after 
construing the provisions of Article 212 of the Constitution and S. 4 of 
the Federal Service Tribunal Act, 1973 held that right of appeal is only 
accrued to a civil servant, if he is aggrieved by any final order, 
whether original or appellate, made by the departmental authority in 
respect of any of the terms & conditions of the services where the 
Service Tribunal has the jurisdiction to the exclusion of other courts 
under sub-section (1) thereof. It was further held that it must follow 
that the Service Tribunal does not have jurisdiction to adjudicate upon 
a particular type of grievance, thus, the jurisdiction of the Court 
remained intact.  It was further pointed out that the Tribunal was 
having jurisdiction against the final order whether original or appellate 
passed by the departmental authority relating to the terms & 
conditions of the service. This Court further held that the question, 
therefore, arises whether the notification containing the provisions for 
payment of enhanced pension to one class of retired employees which 
had been denied to the petitioners, can be treated as a final order, 
original or appellate, passed by the departmental authority in respect 
of any term & condition of service. Reliance was placed by the then 
Attorney General on the cases of M.A. Yamin Qureshi vs. Islamic 
Republic of Pakistan and others (PLD 1980 SC 22)(ii) Iqan 
Ahmed Khurram vs. Govt. of Pakistan and others (PLD 1980 SC 
153), (iii) The Controller, Central Excise and Land Customs and 
others vs. Aslam Ali Shah (PLD 1985 SC 82) (iv) The 
Superintendent of Police, Headquarters Lahore and two others 
vs. Muhammad Latif (PLD 1988 SC 387) and (v) Abdul Wahab 
Kan vs. Govt. of the Punjab and 3 others (PLD 1989 SC 508).  
CP 2167/14 
9 
The view taken therein was also not dissented from, rather followed 
however it was further held that the petitioners’ case is solely founded 
on the ground of discriminatory treatment in violation of Article 25 of 
the Constitution and not because of breach of any provision of Civil 
Servants Act or the rules framed thereunder. It was further held that 
the question involved is of public importance as it effects all the 
present and future pensioners and, therefore, falls within the compass 
of clause (3) of Article 184 of the Constitution however, it was clarified 
that a civil servant cannot by-pass the jurisdiction of the Service 
Tribunal by adding a ground of violation of the fundamental rights. The 
Service Tribunal will have jurisdiction in a case which is founded on the 
terms & conditions of the service even it involves the question of 
violation of the fundamental rights. The contention of the learned 
Attorney General, who then was, repelled and it was further held in 
para-12 of the judgment at page 1064, which reads as follows: 
"The plain language of Article 184(3) shows that it is 
open-ended. The Article does not say as to who shall 
have the right to move the Supreme Court nor does it say 
by what proceedings the Supreme Court may be so`" 
moved or whether it is confined to the enforcement of the 
Fundamental Rights of an individual which are infracted or 
extends to the enforcement of the rights of a group or a 
class of persons whose rights are violated. In this context 
the 
question 
arises 
whether 
apart 
from 
the 
non-incorporation of sub-Article 1(a) and 1(c) of Article 
199, the rigid notion of an "aggrieved person" is implicit 
in Article 184(3) as because of the traditional litigation 
which, of course, is of an adversary character where there 
is a lis between the two contending parties, one claiming 
relief against the other resisting the claim. This rule of 
standing is an essential outgrowth of Anglo-Saxon 
jurisprudence in which only the person wronged can 
initiate proceedings of a judicial nature for redress against 
the wrong-doer. However, in contrast to it, this procedure 
CP 2167/14 
10 
is not followed in the civil law system in vogue in some 
countries. The rationale of this procedure is to limit it to 
the parties concerned and to make the rule of law 
selective to give protection to the affluent or to serve in 
aid for maintaining the status quo of the vested interests. 
This is destructive of the rule of law which is so worded in 
Article 4 of the Constitution as to give protection to all 
citizens. The inquiry into law and life cannot, be confined 
to the narrow limits of the rule of law in the context of 
constitutionalism which makes a greater demand on 
judicial functions. Therefore, while construing Article 
184(3), the interpretative approach should not be 
ceremonious observance of the rules or usages of 
interpretation, but regard should be had to the object and 
the purpose for which this Article is enacted, that is, this 
interpretative approach must receive inspiration from the 
triad of provisions which saturate and invigorate the 
entire Constitution, namely, the Objectives Resolution 
(Article 2-A), the Fundamental Rights and the Directive 
Principles of State policy so as to achieve democracy, 
tolerance, equality and social justice according to Islam.” 
 
In para 13 of the judgment it was further held that even otherwise, the 
above proceedings are in the nature of public interest litigation and, 
therefore, in order to advance the cause of justice and public good, the 
power conferred on this Court under clause (3) of Article 184 of the 
Constitution is to be exercised liberally unfettered with technicalities. In this 
regard, reference may be made to the case of D.S. Nakara and others v. 
Union of India (A.I.R. 1983 SC 130), on which Mr. Samdani has heavily 
relied upon in support of his case on merits and in which inter alia the 
following observations have been made which read as follows:-- 
 
 "64. Locus standi of third petitioner was questioned. 
Petitioner No.3 is a Society registered under the Societies 
Registration Act of 1860. It is a non-political non-profit 
and voluntary organization. Its members consist of public 
spirited citizens who have taken up the cause of 
ventilating legitimate public problems. This Society 
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received a large number of representations from old 
pensioners, individually unable to undertake the journey 
through labyrinths of legal judicial proceeds, costly and 
protracted and, therefore, approached petitioner No.3 
which espoused their cause. Objects for which the third 
petitioner-Society was formed were not questioned. The 
majority decision of this Court in S.P. Gupta v. Union of 
India, 1981 (Supp) SCC 87 (A.I.R 1982 S C 149) at 
p.194), rules that any member of the public having 
sufficient interest can maintain an action for judicial 
redress for public injury arising from breach of public duty 
or from violation of some provisions of the Constitution or 
the law and seek enforcement of such public duty and 
observance of such constitutional or legal provision. Third 
petitioner seeks to enforce rights that may be available to 
a large number of old infirm retirees. Therefore, its locus 
standi is unquestionable." 
16. 
  
The learned Bench further held that the upward revision of 
pay and pension by the government was in recognition of rising costs 
of living and escalating inflationary tendency in the economy and also 
decrease in the economic value of rupee and, therefore, the same 
consideration should apply to all the pensioners irrespective of their 
dates of retirement.  
In the ultimate end the petition was allowed while invoking the 
jurisdiction of this Court under Article 184 (3) of the Constitution and 
the notification/enactment of the government denying increase of 
pension to a particular class of pensioners who had retired from a 
particular date and giving the same to the other class of pensioners 
who had retired from another particular date being discriminatory and 
violative of Article 25 of the Constitution and the prayed relief was 
thus, granted.  
17. 
  
In the present case too, the Moharars, Readers and 
Examiners are holding similar grades/BPS scales like Senior and Junior 
CP 2167/14 
12 
Clerks serving in the executive department. We deem it essential to 
clarify that post and grade are two different nomenclatures. Realizing 
the mistake committed by the Finance Department, the same was 
clarified vide letter dated 27.07.1989 holding the petitioners working 
as Readers, Moharars, Examiners etc. attached to the District Judiciary 
entitled to the same benefit like others therefore, the objection of the 
Accountant General or anybody else would be of no legal effect as it 
would be hit by the prohibition contained in Article 25 of the 
Constitution. Under Article 5 of the Constitution it is the imperative 
obligation of the functionaries of the State to abide by the Constitution 
and the law because it has been held inviolable obligation of every 
citizen wherever he may be and of every other person for the time 
being within Pakistan.  
18. 
  
Now we are confronted with another situation because 
while exercising limited revisional jurisdiction the learned Judge of the 
Peshawar High Court, Mingora Bench Swat after setting aside the 
judgment and decree of the Civil Court remanded the case to it with 
further directions to return the plaint to the petitioners-plaintiffs to 
approach the Provincial Service Tribunal. In this regard while placing 
reliance on the dicta laid down by this Court in the case of I.A. 
Sherwani (supra) it would be highly painful and tiring-some for the 
petitioners plaintiffs if the case is remanded to the High Court, to be 
re-decided in light of the above proposition of law and Constitution 
because they would again incur heavy expenses on the fresh litigation 
before the High Court, engaging services of lawyers besides it will be 
time consuming factor as well, while on the other hand they have been 
given highly discriminatory treatment for no plausible reason 
whatsoever and deduction is being made from their monthly salaries 
CP 2167/14 
13 
or the pensionary benefits, thus, they would suffer agony of a 
substantial nature.  
19. 
  
Accordingly, while following the principle of law enunciated 
in I.A. Sherwani’s case (ibid), and in view of the peculiar facts and 
circumstances of the present case while invoking the jurisdiction 
conferred upon this Court under Article 184(3) of the Constitution we 
hereby declare the impugned action/orders of the official respondents 
No.1 to 4 to be in violation of strict and prohibitory command 
contained in Article 25 of the Constitution because the petitioners and 
proforma 
respondents/plaintiffs 
have 
been 
treated 
with 
sheer 
discrimination which cannot be approved on any premises whatsoever, 
therefore, this petition is converted into appeal and the same is 
allowed.  
 
All 
the 
deductions 
so 
far 
made 
from 
the 
monthly 
salaries/pensionary 
benefits 
of 
the 
petitioners, 
proforma 
respondents/plaintiffs and other alike shall be paid to them back within 
a period of two months by the official respondents and they are further 
restrained from deducting the same from the monthly salary/pension 
of the petitioners/proforma respondents, plaintiffs and other alike and 
all benefits being accrued to them shall be returned by the official 
respondents in lump-sum within two months at the most.  
 
Judge  
 
 
Judge  
 
 
Judge  
Islamabad, the   
16th March, 2016 
Nisar /-‘  
 
 
 
‘Approved for reporting’ 
 
 
