IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION) 
 
 
PRESENT: 
MR. JUSTICE GULZAR AHMED, CJ 
MR. JUSTICE IJAZ UL AHSAN 
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI 
 
CIVIL APPEAL NO. 827 OF 2020 
(On appeal against 
the judgment dated 
04.03.2020 passed by the Peshawar High 
Court, Peshawar in Writ Petition No. 5281-
P/2019) 
 
Government of KPK through Chief Secretary and others 
 
…Appellant(s) 
 
VERSUS 
 
Syed Sadiq Shah and others 
 
…Respondent(s) 
 
For the Appellant(s): 
Mr. Atif Ali Khan, Addl. A.G KP 
Mr. 
Amanatullah 
Qureshi, 
Deputy 
Secretary Finance, KPK 
 
 
For Respondents (1-10): 
Qazi Jawad Ehsanullah, ASC 
 
 
For the Respondent (11): 
Mr. Aftab Javed, Sr. Research Officer, 
PHC 
 
 
Date of Hearing: 
04.03.2021 
… 
JUDGMENT 
 
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through this appeal 
by leave of the Court under Article 185(3) of the Constitution of 
Islamic Republic of Pakistan, 1973, the appellant has called in 
question the vires of the impugned judgment dated 04.03.2020 
passed by the Peshawar High Court, Peshawar, whereby the Writ 
Petition filed by the respondents was allowed and they were held 
entitled to ad-hoc relief allowance at the rate of 5% of the running 
basic pay.  
2. 
 
Briefly stated the facts of the matter are that for the 
fiscal year 2019-20, the Federal Government in the annual budget 
had granted 10% ad-hoc relief allowance to the employees of 
Federal Government from BPS 1 to BPS 16, while 5% ad-hoc relief 
allowance was granted to the employees of BPS 17 to BPS 20. 
These allowances were given on running basic pay. The 
Government of Khyber Pakhtunkhwa while drawing analogy from 
Civil Appeal No. 827/2020 
-: 2 :-
the said grant announced increase in salaries vide notification 
dated 11.07.2019, however, it made a distinction that 5% 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. As the respondents being employees of BPS 17 to 
BPS 19 of Peshawar High Court were already drawing Special 
Judicial Allowance, therefore, they were denied the said 5% ad-hoc 
relief allowance. Being aggrieved by the notification, they 
challenged the impugned notification before the Peshawar High 
Court, Peshawar, 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 of Islamic 
Republic of Pakistan, 1973, hence, not sustainable in the eyes of 
law. During the proceedings before the High Court, it was hotly 
contested from both ends, however, the High Court accepted the 
Constitutional Petition vide impugned 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 Government of KPK challenged the 
impugned judgment by filing Civil Petition wherein leave to appeal 
was granted by this Court vide order dated 22.09.2020. Hence, the 
instant appeal by leave of this Court.  
3. 
 
Learned Additional Advocate General, KPK, inter alia, 
contended that the respondents are already getting special judicial 
allowance, which is already disproportionate to the employees of 
BPS 1 to 16 and when it is calculated along with basic salary, it 
becomes hefty; that the very purpose of the impugned notification 
was to compensate the other employees similarly placed in BPS 1-
16 to eliminate chances of disparity and as such there was 
reasonable classification based on intelligible differentia; that every 
Province has to grant financial benefits within their own financial 
resources, otherwise, if the impugned allowance is granted at 
random to each and every employee, it would create further 
Civil Appeal No. 827/2020 
-: 3 :-
discrimination resulting into financial burden upon the provincial 
government. He lastly contended that the impugned judgment is 
defective in law, hence, not sustainable in the eye of law and may 
be set at naught.  
4. 
 
On the other hand, learned counsel for the respondent 
Nos. 1 – 10 defended the impugned judgment. The crux of 
arguments advanced was that pursuant to the impugned 
notification, the Government of KPK has divided the employees of 
one category into sub-categories, which is against the intent of law. 
He added that this disparity by dividing the employees of the same 
department into sub-classes is violative of the law laid down by 
this Court in I.A. Sherwani Vs. Government of Pakistan (1991 
SCMR 1041) and Government of Punjab Vs. Mubarik Ali Khan (PLD 
1993 SC 375). 
5. 
 
We have heard learned counsel for the parties and 
have perused the record.  
6. 
 
The questions involved in this appeal are three fold, (i) 
whether the classification in question was based on intelligible 
differentia and contrary to Article 25 of the Constitution of Islamic 
Republic of Pakistan, (ii) whether the executive authority can 
classify and sub-classify the employees only to the extent to grant 
certain extra benefits, (iii) whether the High Court while exercising 
the power of judicial review has the authority to interfere in policy 
matters of government.  
7. 
 
Firstly, we will discuss first two questions as these 
two are interrelated and conjoined in a manner that these cannot 
be separated from each other. The crux of the issues also lies in 
understanding the term ‘intelligible differentia’, therefore, it would 
be in order to discuss as to what does the term “intelligible 
differentia” mean. The dictionary meaning of “intelligible” is well 
articulated or enunciated and loud enough to be heard, can be 
understood, whereas the word “differentia” means an attribute that 
distinguishes one entity from other, especially an attribute that 
distinguishes one species from others of the same genus. According 
to the book ‘Legal Terms & Phrases, 2013 Edition’, the word 
“intelligible differentia” means an attribute by which a species is 
distinguished from all other species of the same genus, or, a 
distinguishing mark. In literal words, the expression “intelligible 
Civil Appeal No. 827/2020 
-: 4 :-
differentia” means difference capable of being understood, a factor 
that distinguishes a class from another which is capable of being 
understood. In the case of Dr. Mobashir Hassan Vs. Federation of 
Pakistan (PLD 2010 SC 265), this Court defined “intelligible 
differentia” in the following terms:- 
“As far as `intelligible differentia' is concerned, it 
distinguishes persons or things from the other persons or 
things, who have been left out. The Indian Supreme Court, 
while relying upon the statement of Professor Willis in 
Charanjit Lal v. Union of India (AIR 1951 SC 41), observed 
that "any classification which is arbitrary and which is 
made without any basis is no classification and a proper 
classification must always rest u upon some difference 
and must bear a reasonable and just relation to the things 
in respect of which it is proposed". 
  
Same principle has been highlighted in Shazia Batool v. 
Government of Balochistan (2007 SCMR 410). 
  
59. Thus, keeping in view the above principles and the 
definition of classification "intelligible differentia" means, 
in the case of the law differentiating between two sets of 
the people or objects, all such differentiations should be 
easily understood as logical and lucid and it should not be 
artificial or contrived.” 
 
8. 
 
Undeniably 
equality 
is 
one 
of 
the 
magnificent 
cornerstones of a society, which has been followed in each and 
every system to run the state, however, a special emphasis has 
been laid down in a democratic state. Article 25 of the Constitution 
of Islamic Republic of Pakistan, 1973, guarantees to every person 
the right to equality before the law and the equal protection of the 
laws. The expression “equal before law” is a declaration of equality 
of all persons irrespective of gender, race, religion, colour, caste, 
creed, status and language etc, implying thereby the absence of 
any privilege in favour of any individual. The guiding principle of this 
Article is that all persons and things similarly circumstanced shall 
be treated alike both in respect of privileges conferred and liabilities 
imposed. Equality before law means that amongst equals should be 
equal and equally administered and that like should be treated 
alike. Hence what it forbids is discrimination between persons who 
are substantially in similar circumstances or conditions. However, 
this Article does not forbid different treatment of un-equals. The rule 
is rather that alike should be treated equally and that unlike should 
Civil Appeal No. 827/2020 
-: 5 :-
be treated differently. As a matter of fact all persons are not alike or 
equal in all respects. Application of the same laws or yardstick 
uniformly to all of them will, therefore, be inconsistent with the 
principal of equality. To avoid that situation laws must distinguish 
between those who are equals and to whom they must apply and 
those who are different and to whom they should not apply. In fact 
identical treatment in unequal circumstances would amount to 
inequality. So a reasonable classification or sub-classification is only 
not permitted but is necessary if society is to progress. It must 
always rest upon some real and substantial distinction bearing a 
just and reasonable relation to the object sought to be achieved by 
the authority. It is now well established law that persons may be 
classified or further sub-classified into entities and such entities 
may be treated differently if there is a reasonable basis for such 
difference. Article 25 forbids class legislation but it does not forbid 
classification or differentiation which rests upon reasonable grounds 
of distinction. The classification however must not be arbitrary, 
artificial or evasive but must be based on some real and substantial 
bearing, a just and reasonable relation to the object sought to be 
achieved by the legislation. 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. The varying needs of different classes of persons 
require different treatment. 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 5% 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. 
Civil Appeal No. 827/2020 
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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. As narrated 
above, 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, and (ii) the intelligible differentia must 
have a rational nexus with the object sought to be achieved. Articles 
29 to 40 in Chapter 2 of the Constitution of Islamic Republic of 
Pakistan 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. The impugned notification was 
impliedly in consonance with the spirit of the Constitution, therefore, 
the learned High Court ought to have refrained from interfering in it. 
To further strengthen what has been stated above, it would be in 
order to refer to the recent judgment of this Court in the case of 
House Building Finance Company Ltd. Vs. Muhammad Irfan Khan 
(2020 SCMR 98). In this case, the House Building Finance Company 
had granted financial relief to one group of employees while denied 
the relief to the other group of employees. The respondents in this 
case, who were deprived of the financial relief, went to High Court 
and succeeded in getting the relief. However, this Court while 
allowing the appeal of the department has held as under:- 
“To arrive at the conclusion as noted in para-12 as 
reproduced above, no rational basis has been identified as to 
how the 'Officers and Executive' cadre which does not enjoy 
a statutory protection of collective bargaining could be 
equated with the workmen cadre in service of HBFCL. We 
have also noted that Government of Pakistan in a recent 
fiscal year, 2019-2020 increased the salary from Grade-01 
to Grade-16 employees and revision was ordered to the 
extent of 10% whereas for the Gazetted Officers of Grade-17 
to Grade-20 the increase was only ordered to the extent of 
05% and salary of BPS-21 and above was not increased. 
Even we have noted that no increase was considered in 
respect of the armed personnel on account of the financial 
crunch faced by the State of Pakistan. As such, financial 
Civil Appeal No. 827/2020 
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exigency as has been expressed above, do empower the 
employer to consider different yardstick for revision in the 
salary of different categories of its employees. All employees 
cannot claim to be treated alike irrespective of their grades, 
domain and class. There is a clear distinction between the 
employees covered by the labour laws and other statutory 
dispensation vis-a-vis employees in 'Executive and Officers' 
cadre. This principle was so held in Sail Ex-Employees 
Association case (Supra). In a case reported Muhammad 
Shabbir Ahmed Nasir v. Secretary, Finance Division, 
Islamabad (1997 SCMR 1026) and Farman Ali v. State (1997 
SCMR 1026 = 1997 PLC (C.S.) 903) it was held by this Court 
that grouping for good governance by the employer of its 
employees serving in BPS-01 to BPS-16 into one category 
and those serving in BPS-17 to BPS-22 to another category 
for the purpose of granting greater monetary benefit, cannot 
be challenged on ground of arbitrariness or unreasonable 
classification and 
as violative of Article 25 of the 
Constitution.” 
(Underlined to lay emphasis) 
 
9. 
 
In Muhammad Shabbir Ahmed Nasir Vs. Secretary, 
Finance Division (1997 SCMR 1026), a five Member Bench of this 
Court has candidly held that classification on the basis of low paid 
or high paid employees placed in different grades, irrespective of 
functional similarity, is a reasonable classification and BPS 1-16 
and BPS 17-22 can be grouped into two different classes. It would 
be advantageous to reproduce the relevant portion of the judgment, 
which reads as under:- 
“12. In the light of the rationale laid down by this Court in 
I.A. Sherwani's case (supra) the grouping by the Government 
of its employees serving in BPS 1 to 16 into one category, 
distinct from the category of those serving in BPS 17 to 22 for 
the purposes of granting greater monetary benefit to the 
former category could not be challenged on the grounds of 
arbitrariness or unreasonable classification. A glance on the 
old pay scales of employees serving in BPS 1 to 22 will show 
that there was substantial difference between the minimum 
and maximum amount of pay drawn by the employees 
serving in BPS 1 to 16 as compared to those serving in BPS 
17 to 22. Therefore, if the Government, decided, while 
revising upward the pay scales of its employees in BPS 1 to 
22, to extend more monetary benefit to the low-paid 
employees by putting them in a separate category, the 
classification did not suffer from any infirmity. In our view 
the categorization of the employees on the basis of low-paid 
and high-paid employees was a reasonable classification 
and did not suffer from any arbitrariness.” 
 
10. 
 
With the passage of time, the scope of interpretation of 
statutes has been broadened especially 
with reference to 
interpretation of certain expressions of law while keeping in view the 
Civil Appeal No. 827/2020 
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attributes of modern society in juxta position. Intelligible differentia 
is an exception to the basic principle of equality based upon the 
principle of natural justice in more refined manner to provide 
equality amongst the subjects of the society and while introducing 
certain legal expressions with an intent to bring the society close to 
equality eliminating the chances to face the atrocities of economical 
pressure which has squarely affected the society at large around the 
globe. Our country is not an exception rather is facing more financial 
constraints, therefore, the applicability of the said legal term seems 
to be in the interest of safe dispensation of justice. The said object 
has been achieved by the Government of KPK through impugned 
notification. Hence, the intelligible differentia existed between the 
two sets of employees and such differentia was logical and lucid 
and cannot be termed as artificial or arbitrary.  
11. 
 
Now, we will advert to the third question i.e. whether 
the High Court under the garb of judicial review has the power to 
interfere in policy matters of government. The process of judicial 
scrutiny of the legislative acts on the touchstone of the Constitution 
is called "Judicial Review". The doctrine of judicial review is the 
enforcement of the rights assured and guaranteed under the 
Constitution through Constitutional remedies. It is one of the great 
assets of federalism, and is the protector of the fundamental rights. 
The fundamental object of judicial review is to exert a great moral 
force upon the legislature to keep it within the limits of the 
Constitution and the law and to save the people from the 
unreasonable executive actions. This Court in a number of cases has 
held that the Constitutional courts being guardian of the Constitution 
have the power to judicially review the executive actions and the 
conduct of the public authorities but the same should be on the 
touchstone of fairness, reasonableness and proportionality. It is a 
matter of fact that our constitution is based upon principle of 
trichotomy of powers. However, the power of judicial review is an 
added attribute of the judiciary. The Courts while exercising power 
of judicial review must not violate the right of any other organ of the 
state and remain within the prescribed limits as disclosed in the 
Constitution of Islamic Republic of Pakistan, 1973. Though the 
Constitution is based upon federal system of government but the 
Provinces are autonomous in many respects rather after 18th 
Civil Appeal No. 827/2020 
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Amendment, the horizon of autonomy of the Provinces has been 
widened especially with reference to financial matters by way of 
abolishing the concurrent list to some extent. As each Province has 
its limited quota under the National Finance Commission Award and 
the Provinces are supposed to run its affairs within the prescribed 
financial limits, hence, the impugned notification can be safely 
termed as subject of the policy to compensate the employees getting 
disproportionate salary as compared to the respondents. In view of 
the facts and circumstances narrated above, we are of the 
considered view that the learned High Court has passed the 
judgment in disregard of the powers and the law, hence, the 
impugned notification is declared to be legal and rightly issued in 
accordance with law.  
12. 
 
For what has been discussed above, this appeal is 
allowed and the impugned judgment of the Peshawar High Court, 
Peshawar, dated 04.03.2020 is set aside.  
   
 
CHIEF JUSTICE 
 
 
 
JUDGE 
 
 
 
JUDGE 
Islamabad, the 
4th of March, 2021 
Approved For Reporting 
Khurram 
