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 -: 6 :-

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 -: 7 :-

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 -: 8 :-

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 -: 9 :-

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