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Petitioner: ABDUL HAMID KHAN VS Respondent: (1) GOVERNMENT OF PAKISTAN, AND (2) CENTRAL JUDGMENT
Court Name: Lahore High Court Judge(s): Nasim Hasan Shah Title:ABDUL HAMID KHAN vs (1) GOVERNMENT OF PAKISTAN, AND (2) CENTRAL
JUDGMENT
Reported As: PLD 1972 Lahore 336 Result: Petition dismissed Judgment JUDGMENT The petitioner, Abdul Hamid Khan, belongs to the Qaisrani tribe of Dera Ghazi Khan. He appeared in the Central Superior Services combined competitive Examination held by the Central Public Service Commission, in the year 1967, in pursuance of Notice No. F2/1/67-E-II, dated 2-8-1967. According to para. 4 (1) of the said notice candidates for admission to the examination "must have attained the age of 21 and must not have attained the age of 25 on 1st September 1967". However, in the afore-- said notice, certain concessions were allowed to certain categories and the maximum age-limit was relaxable in certain circumstances and on fulfilment of certain conditions. These may be reproduced hereunder with advantage:- "4(ii) The maximum age limit will be relaxed as follows:- (a) By three years in respect of the candidates belonging to- (i) the Scheduled Caste/and Buddhist community; (ii) the recognized tribes of the special tribal Areas of the North-West Frontier and former Baluchistan, the former Frontier and Baloch States and the former tribal areas of Dera Ghazi Khan District of West Pakistan, (iii)---------------------.. . (iv) ---------------------... (v) ---------------------. The following explanatory notes added to this para. Also need notice:- "Note I.-Candidates claiming to belong to a Scheduled Caste wilt be required to submit a certificate from the District Magistrate is support of their claim.
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Note 2. Note 3.-Only those candidates who are permanent residents of the areas mentioned at (a) (ii) to (v) above, and whose families have been living in those areas, will be eligible for the concession and, in each case, a certificate from the Political Agent or the Deputy Commissioner will be required in this behalf. Members of Tribes belonging to the Tribal Areas who have settled in the Settled Districts will not be eligible for this concession." 2. The main Notice contained thirteen paragraphs, parts of para. 4 whereof have been reproduced above, whereafter five Appendices were added. Appendix IV, dealing with Recruit--ment Policy, is relevant for our present purposes, especially paras. 3 and 4 thereof, which are to the following effect:- "(3) Reservation for the Scheduled Castes is made at the rate of 6 per cent. This reservation will count as part of the allotment of the province/area and will be reckoned against the quota of the province/area of origin of the Scheduled Caste candidates concerned. (4) Appointments to vacancies to be filled by candidates belonging to a particular community or a Province/area shall be made by Government in the order of merit of the candidates belonging to that community or Province/area, provided that they have qualified in the examination and are in all respects suitable for employment under Government." 3. On 1st September 1967, the petitioner was admittedly beyond 25 years of age. He, therefore, claimed relaxation of the maximum age limit on the basis of belonging to the Qaisrani Tribe of Dera Ghazi Khan and in support of his claim he submitted, along with the Application Form, a certificate from the Deputy Commissioner, Dera Ghazi Khan, dated 4-7-1956, which read as follows:- "Certified that Abdul Hamid Khan son of Muhammad Ramzan Khan, Caste Qaisrani Baloch is a bona fide resident of Village Kunja within Tribal Area adjacent to Dera Ghazi Khan. District." 4. The respondent, Public Service Commission, considering the above certificate to be unsatisfactory informed the petitioner that the certificate issued by the Deputy Commissioner did not mention that he belonged to a recognized Tribe of the Special (Tribal) Area of Dera Ghazi Khan District of West Pakistan. He was required to submit a fresh certificate in which it was clearly mentioned that he belonged to a recognized tribe of the Special (Tribal) Areas of Dera Ghazi Khan District of West Pakistan and that he was entitled for age concession etc. The petitioner thereupon forwarded a copy of Memorandum No. 5727/HC, dated 3-1-1966, from the Deputy Commissioner, Dera Ghazi Khan, to the Commissioner, Multan Division, on the subject of Relaxation of upper age limit for recruitment of Central Services for candidates belonging to tribal areas. In this Memorandum it was stated as follows:- "The following tribes of the Former Excluded Area of this District are recommended for inclusion in the Schedule of under privileged classes (1) --------------------------- (2) Qaisranis. (3) ------------------------.. (4) ------------------------.. It is pointed out that members of the above-mentioned tribes are scattered in the settled part of the district also. Hence the concession is recommended only for the bona fide residents of the De- excluded area of this District." 5. The petitioner was provisionally allowed to sit in the Examination and after written and viva-voce test his result was declared and he obtained, in the result so declared, the 219th .Position, vide result published in the newspaper on 13-7-1968. 6. On 2nd May 1968 a notification was issued in the Gazette of West Pakistan, dated 24-5-1968, vide Notification No. 58-H (GAII) TA identifying certain under privileged classes and entering them in a
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Schedule. Since the petitioner is relying on this notification, the relevant portion thereof may be reproduced, hereunder, as follows:- "Whereas in accordance with the principles of Policy enunciated in Chapter 2 under Article 8 of the Constitution of Islamic Republic of Pakistan it is incumbent upon the Government of a Province to take steps to bring on terms of equality with other persons the members of under privileged castes, races, tribes and groups; And whereas with a view to achieve the above purpose the under-privileged castes, races, tribes and groups have to be "identified and entered in a Schedule of under-privileged classes; Now, therefore, in pursuance of the provisions of paragraph 5 of the Principles of Policy set out in Article 8 of the Con--stitution of the Islamic Republic of Pakistan, the Government of West Pakistan is pleased to prescribe the following schedule as the schedule of under-privileged classes and identify the castes, races, tribes and groups mentioned therein as the under privileged castes, races, tribes and groups within West Pakistan for the purposes of the said paragraph:- SCHEDULE Name of DivisionDivision. Name of Tribe. Page 626. MULTAN DIVISION DERA GHAZI KHAN DISTRICT (1) Khitran. (2) Qaisranis. (3) ---------.. (4) ---------. 7. The petitioner's case is that as the Qaisranis tribe was Identified by the Government of the Province of West Pakistan and entered in the Schedule of under-privileged classes and he was the solitary successful and qualified candidate from the community of under-privileged classes, he was entitled to allocation against the quota reserved for that community, but that notwithstanding the above fact, in the allocation and appointments made to the Central Superior Services, published on 20-9-1968, the petitioner was not allocated any post. He, therefore, pressed his claim before the respondents that he was entitled to a post reserved for the community of under- privileged castes and, therefore, was entitled to be allocated a C. S. P. Post. The claim of the petitioner, in brief, was that as he belonged to the Qaisrani tribe of Dera Ghazi Khan District, which tribe was entered in the Schedule of under-privileged classes, prepared by the Government of West Pakistan, in pursuance of the provisions of paragraph 5 of Article 8 of the abrogated Constitution of 1962, he was entitled to the allocation of a C. S. P. Post against 6 per cent. Quota reserved for scheduled castes, in terms of paras. 3 and 4 of Appendix IV of Notice, dated 2-8-1967. 8. The respondents denied the above claim of the petitioner and the position taken in this respect by respondent No. 1 is contained in its reply, dated the 3rd of June 1969, which stated, "that his claim for belonging to Scheduled Castes as appearing under para. 3 of the Recruitment Policy in force has been thoroughly examined by this Division in consultation with the Law Division and it has been found that the Qaisrani tribe to which he belongs has not so far been included in the schedule of castes/tribes which have been brought under Scheduled Castes for the purposes of recruitment to the Central Superior Services Establishment Division, therefore, regrets its inability to consider him against the quota reserved for the Scheduled Castes and to allocate him to Class I service". 9. The case of the petitioner, therefore, is that Establish--ment Division of the Government of Pakistan (respondent No. 1) has failed to take note of the schedule issued by the Government of West Pakistan under Article 8 (5) of 1962-Constitution of Pakistan according to which the Oaisrani Tribe of Dera Ghazi Khan has been included in the schedule of Under-privileged Classes and whereby the petitioner comes within the purview of the concession granted by paragraph 3 of
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Appendix IV of the Notice issued by the Central Public Service Commission (res--pondent No 2) for recruitment to the Central Superior Services. On the other hand, the respondents' case is that the said schedule did not relate to Scheduled Castes but was merely a schedule of Under-privileged Classes, which is altogether a different matter and consequently the petitioner is not entitled to any appointment on its basis because there is no reservation for members appearing in the schedule of Under-privileged Classes. 10. Mr. Saeed-ur-Rehman Khan, the learned counsel for the petitioner, in his studied argument, has traced in detail the background of the phrase "Scheduled Castes". He pointed out that the phrase "Scheduled Castes" was defined in para. 26 of the First Schedule to the Government of India Act, 1935, for the first time, as follows:- "Scheduled castes" means such castes, races or tribes or parts of or groups within castes, races or tribes, being castes, races, tribes, parts or groups which appear to His Majesty-in-Council to correspond to the classes of persons formerly known as "the depressed classes", as His Majesty-in- Council may specify." 11. Another relevant provision contained in the said Act was made in para. 19 of the Fifth Schedule, whereby the terms, "backward areas" and "backward tribes" were defined to mean respectively such areas and tribes as His Majesty-m-Council may from time to time declare to be areas and tribes to which a special system of representation is more appropriate. 12. In pursuance of the provisions of the schedule to the Government of India Act, 1935, the Government of India (Scheduled Castes) Order, 1936, was promulgated wherein the castes, races or tribes or parts of or groups within castes and the races or tribes were specified. The Scheduled Castes, throughout the Province of West Punjab, and the castes, races or tribes specified therein are as follows:- 13. It is admitted, however, that reference to the various provisions of the Government of India Act, 1935, shows that the above Schedule, of 1936 Order, was only relevant in the shatters of Franchise and that no provision was made for giving any weightage In the matters of services to the Scheduled Castes. 14. Learned counsel then referred to the late Constitution of Islamic Republic of Pakistan (1956), and submitted that in this Constitutional instrument two phrases, namely, " Scheduled Castes" and "backward classes" were used. The word "Scheduled Castes" was defined in Article 218, to mean a Scheduled Caste determined in accordance with the provisions of Article 204. Article 204 defines "Scheduled Castes" as follows:- "204. The castes, races and tribes, and parts or groups within castes, races and tribes. Which immediately before the Constitution Day, constituted the Scheduled Castes within the meaning of the Fifth Schedule to the Government of India Act, 1935, shall, for the purposes of the Constitution, be deemed to be the Scheduled Castes until Parliament by law otherwise provides." 14. Attention was also drawn to the other provisions of the late Constitution dealing with 'Scheduled Castes" and "backward classes" and the provisions of Article 28, in which certain principles of special uplift are laid down, particularly its Clause (a) was particularly stressed. This Clause provides for promotion of the people of Special areas, the backward classes and the Scheduled Castes. From the terms of this provision it was argued that, backward classes and Scheduled Castes have been grouped together and should be considered as synonymous. The learned counsel for the petitioner then referred to the provisions of the abrogated Constitution Act of 1962 and sub--mitted that the phrase "Scheduled Castes" as such had altogether been eliminated therefrom and that in its stead the phrase "Under-privileged Castes" had been used. He has drawn attention to paragraphs 4 and 5 in Chapter 2 of the Constitution, under Article 8 thereof. Paragraph 4 provides for the promotion of interests of backward peoples, i.e. Peoples of backward
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classes or in backward areas. Paragraph 5 provides for the advancement of Under-privileged Castes and states:- "Steps should be taken to bring on terms of equality with other persons the members of under- privileged castes, races, tribes and groups and, to this end, the under-privileged castes, races, tribes and groups within a Province should be identified by the Government of the Province and entered in a schedule of under-privileged classes." 15. On the basis of the above references it was submitted that the Provincial Government of West Pakistan was required to identify the Under-privileged Classes and then enter them in a schedule of Under-privileged Classes and the said Govern--ment was acting in accordance with the aforesaid provisions when it identified the Under-privileged Castes etc., and entered them in the Schedule in the notification dated 2-5-1968. In this connection it is submitted that the perusal of the file of the Provincial Government pertaining to the processing of the schedule attached to the above notification, dated 2-5-1.968 shows that the same was made keeping in view the position of paragraphs 4 and 5 of Article 8; and that the schedule was meant for the purposes of recruitment to the services. It is conceded that so far as the Provincial Government was concerned, it dial not make any provision for the reservation of seats to their services, for members of the Under- privileged Castes etc. But catered for their interests by affording them concessions of relaxation of upper age-limit only. But it is contended that the Central Government went further and not only provided for concession of relaxation of age-limit, but also reserved a special quota of seats of 6 percent for the Scheduled Castes and since the schedule prepared by the West Pakistan Government in 1968 was the relevant schedule in this respect, it became bound to give the members of the races, tribes and castes specified in the said schedule the said benefit, according to the provisions of para. 3 of the Appendix IV of the notice. It is further contended that the certificate of the Deputy Commissioner, dated 4-7-1956, and the Memorandum dated 3-5-1966, having been accepted by the Commission and the petitioner having been declared successful by the Commission on 13-7-1968, i. e. After the date of the publication of the notification dated 2-5- 1968, the petitioner became entitled not only to relaxation of age-limit, but also to the grant of a post reserved for the Scheduled Castes. 16. It is finally argued that the policy laid down in the notice of the Public Service Commission is "law" in the generic sense, because the term "law" is not confined to Statute law alone but is used in its generic sense and includes the rules framed by the Government itself In support of this contention, attention has been invited to a number of judgments of the Supreme Court and the High Court, particularly Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14) and Mian Fazal Din v. Lahore Improvement Trust etc. (PLD 1969 SC 223). Counsel states that as the respondent-Government has failed in its duty to act in accordance with law, a writ should issue by this Court to declare that the action of the respondent-Government in not treating the petitioner as a member of the Scheduled Castes, is not in accordance with law; and that the Government should be directed to decide his case in accordance with law. 17. Mr. Ihsanul Haq, Advocate, the learned counsel for the Central Government, in reply has raised several preliminary objections to the maintainability of the writ petition. It is submitted, in the first place, that the petitioner claims an appointment in the Civil Services of Pakistan. If this claim I9 accepted then at least one person, who was appointed to the said service on the basis of the 1967 Examination, will have to be displaced and there will be consequent down gradation of several other appointees. Since none of those persons have been impleaded as a party the writ petition is liable to be dismissed on account of the failure to implead all necessary parties. 18. In the second place, the objection is raised, that the petitioner has no legal right to be appointed to any service. It is submitted that if a person, is once appointed as a Govern--ment servant he acquires a right to hold the post subject to certain terms and conditions, which are to be
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prescribed under Clause (2) of Article 178 of the 1962-Constitution, by the President However, under sub-clause (1) to Article 178, in the matter of making an appointment he has absolute discretion in the matter, subject to the Constitution and the law. The only limitation is that he must consult the Public Service Commission before making appointment vide Article 185 (2) (Ibid). But so far as the question of the suitability of appointee or the matter of fixation of quotas etc. For various categories is concerned, he has absolute discretion. It is urged that Courts do not have access to various factors which have to be taken into consideration for determining the Policy of State from time to time and, therefore, the matters regarding the principles on which appointments are to be made are immune from the scrutiny of Courts. It is, therefore, maintained that there is a marked distinction between the Clauses (1) and (2) of Article 178 of the Constitution. While there is no requirement of making any rules in Clause (1), it is necessary under Clause (2) thereof to frame rules. From this circumstance the inference is drawn that the intention of the constitution is to leave matters falling under Clause (1) of Article 178 to the subjective consi--deration of Policy of Government from time to time. 18. The third preliminary objection is that the petitioner cannot found his claim to be appointed on the basis of the Notice issued by the Public Service Commission, in which 6-- percent quota has been reserved for Scheduled Castes. It is submitted that the Public Service Commission, in performance of its obligation under Article 185, examines and interviews candidates and makes recommendations. The Notice simply means that in making recommendations it will be guided by certain policies, but nevertheless, the role of the Public Service Commission is purely advisory and it is for the President to accept or reject the recommendations, which, under Article 185, he is not bound to accept. 19. In the fourth place, learned counsel pointed out, that the Notice itself also shows that: (i) Reference to 6 percent quota for Scheduled Castes is made under the heading, "Recruitment Policy". (ii) Under the heading, "Appointments" in para. 13 of the Notice, it is categorically stated "success in examination confers no right to appointment". (iii) The Notice itself is liable to modification. In view of the above provisions of the Notice, the submission is that it cannot be treated as "law" within the meaning of Article 178 and the judgments relied upon by the petitioner in support of the contention that the Notice constitutes "law` are distinguishable, because in the instant case the question involved is one of appointment, which is an administrative or executive function. Whereas the questions falling for consideration in the Judgments cited by counsel for the petitioner involved the question, whether an action taken against any person was legal or not and it is argued that it is only in the latter category of cases that the Judgments relied upon by the petitioner would apply. 20. On the merits it is submitted, that the petitioner is not a member of the Scheduled Castes. Attention is drawn to the Government of India (Scheduled Castes) Order, 1936. And it is pointed out that in the list relating to the Province of Punjab, the Qaisrani Tribe of Dera Ghazi Khan has not been included. 21. Again under the Constitution of 1956, Ordinance XVI of 1957, called Scheduled Castes (Declaration) Ordinance, 1957, was enacted and a number of castes were declared as Scheduled Castes vide section 2 thereof. These were as follows:- Ad Dharmis Marija, or MarechaKhatik Bawaria Bangali Kori Chamar Barar Nat Chuhra, or Balmiki.Bazigar Pasi
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Dagi and Koli Bhanjra Perna Dumna Chanal Sapela Od Dhanak Sirkiband Sansi Gagra Meghs Sarera Gandhila Ramdasis. Here again the Qaisranis are not included. The learned counsel maintains that this Ordinance was kept alive by the Constitution of 1962 as an existing law. Learned counsel has, therefore, agued that when the 1967 Notice was issued by the Public Service Commission it was the "Scheduled Castes" referred to fn said section 2 of the Ordinance of 1957, that were in con--templation of the Public Service Commission. 22. On the question of the effect of the provisions of the 1962-Constitution, it is submitted that Chapter 2 of the Con--stitution, of 1962, dealing with the Principles of Policy, consists of two Articles, namely, Article 7 and Article 8. Under Article 8 the various Principles of Policy are set out in 21 paragraphs. Out of these paragraph 3 refers to safeguarding the interests of minorities and affording opportunity to them to enter into services of Pakistan. But there is no reference to services of Pakistan in paragraphs 4 and 5. In paragraph 5 it is desired simply that Under-privileged Classes "be brought on terms of equality with others". Counsel argues that if while issuing the notice of 1967 the Public Service Commission had desired the fixation of any quota for Under-privileged Classes, referred to paragraph 5, there is no reason why the Public Service Commission should not have used the expression "Under--privileged Castes" instead of the expression, "Scheduled Castes". He submits that the Notice itself keeps the distinction between "Scheduled Castes" and persons residing in certain tribal areas, quite clearly in view. The former, as a matter of policy were to be given 6 per cent. Province-wise appointments, while so far as residents of certain tribes were concerned, they were to be given relaxation of period of three years in age. 23. The learned counsel also submits that the petitioner in his application categorically stated that he was not a member of the Scheduled Castes, but only claimed the age relaxation and filed a certificate for that purpose. In this connection, attention was drawn to his application for appearing in the Central Superior Service Examination, 1967. It was pointed out that as against question No. 13- A, the petitioner had taken an unequivocal position, that he was not a member of the Scheduled Castes. The question and answer- are reproduced below:-- Q. 13-A. Are you a member of Scheduled Caste/Buddhist community, if so attach certificate In support of your claim vide para. 9 of the Instructions? A. No Sir. It is further pointed out that according to the Public Service Commission's Notice, it was incumbent upon a person claiming to belong to a scheduled Caste to submit a certificate from the District Magistrate in support of his claim. This certificate also was not filed at any stage by the petitioner. The petitioner, therefore, could not claim any appointment on the basis that he was a member of the Scheduled Caste. Counsel states that even according to the understanding of the petitioner, he was not a member of the Scheduled Castes. 24. So far as the Schedule prepared by the Provincial Government in the notification dated 2-5- 1968 is concerned, it is argued that this only deals with the question, "Under-privileged Castes" and that even in the noting on the file showed that the purpose was only to afford relaxation of age-…
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