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Petitioner: PWD EMPLOYEES UNION, BALOCHISTAN VS Respondent: SECRETARY, COMMUNICATION AND WORKS DEPARTMENT, GOVERNMENT OF BALOCHISTAN QUETTAHonorable Justice Ghulam Mustafa Mengal and Muhammad Hashim Khan KakarMuhammad Riaz Ahmed,Baz Muhammad Kakar
2015 P L C (C.S.) 1182
[Balochistan High Court]
Before Ghulam Mustafa Mengal, C.J. and Muhammad Hashim Khan Kakar, J
PWD EMPLOYEES' UNION, BALOCHISTAN through Vice-President and others
versus
SECRETARY, COMMUNICATION AND WORKS DEPARTMENT, GOVERNMENT OF BALOCHISTAN QUETTA and others
Constitutional Petition No.370 of 2010, Contempt Application No.34 of 2010 in C.P. No.370 of 2010, C.Ps. Nos.357, 379, 402 of 2011, 117, 844, 912 of 2012, 448, 502, 662, 962 of 2013 and 89 of 2014, decided on 10th November, 2014.
(a) Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009---
----R. 12---Constitution of Pakistan, Arts.199, 2A, 3, 4, 9, 18, 25, & 27---Constitutional petition---Civil service---Reservation of posts for the widow or child of a civil servant died while in service---Discrimination and classification---Vires of R.12 of Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009, Arts.25 & 27 of the Constitution had forbidden discrimination---Classification which was not arbitrary, capricious or in violation of the doctrine of the equality could not be questioned---Classification had to be justified on the basis of nexus between the classification and the object to be achieved---Fact that classification by itself was reasonable was not enough to support the same unless there was nexus between the classification and the object to be achieved---Object to be achieved, in the present case, was be to get the best talent for appointment against posts in public employment---Reservation of seats for the widow or child of civil servant died while in service, had no reasonable relation with the object to be achieved---Classification of persons could not be termed reasonable and such class of persons could not be put in advantageous position vis-a-vis widow and children of ordinary citizens---Such classification would result in discrimination and better qualified candidates from amongst the ordinary citizens might be ignored while less qualified from other widows or children of civil servants died while in service might be appointed---Such state of position might also result in impression that appointments in public offices were hereditary in nature which might result in aggravation of agonies of unemployed youth---No justification had been made out in support of such classification---Said classification would offend against the doctrine of "equal protection of law"---'Intelligible differentia' would distinguish persons or things from the other persons or things which had been left out---Holy Quran had enjoined that there was no difference between the individuals of mankind and all human beings were equal in the eye of almighty Allah---Fittest person who was strong and trustworthy was to be employed in public employment---State was bound to ensure the elimination of all forms of exploitation and the gradual fulfillment of the fundamental principle from each according to his ability to each according to his work---State was responsible to establish a society which was free from exploitation wherein social and economic justice was guaranteed to its citizens---Right person should be engaged in the right job which could not be done unless there was an open competition for appointment against the posts in government departments---Posts could not be filled by the method of competition when arbitrary classification were made between different classes of citizens and preferential rights were extended towards privileged classes at the cost of ordinary citizens---Rule 12 of Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009 was a classic example of such arbitrariness where widows or children of civil servants had been put in advantageous position vis- -vis ordinary citizens---Every individual had right to enjoy the protection of law and to be dealt with in accordance with law---"Law" would imply such provisions of law which were in conformity with Fundamental Rights guaranteed by the Constitution---Every person and authorities were required to perform their duties and discharge their function within the limits prescribed by law, and respect and obey the Constitution and law in letter and spirit---Competent authority should consider the merit of all the eligible candidates for appointment against posts in government departments---By incorporation of R.12 of Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009 Fundamental Rights of the citizens had been infringed---Any law, custom or usage having the force of law which was inconsistent to the Fundamental Rights would be void---Constitution being a basic document was to be treated to be higher than other statutes---Whenever a document in the shape of law given by the Parliament or other competent authority was in conflict with the Constitution then to such extent same was liable to be declared unconstitutional---Every citizen should have the right subject to such qualification, if any, prescribed by law to enter upon any lawful profession or occupation and to conduct any lawful trade or business---Said Fundamental Rights would include the right of a citizen to compete and participate for appointment to a post in any Federal or Provincial Government department or an attached department or autonomous bodies/corporations---Right of open competition could not be exercised unless the process of appointment was transparent, fair, just and free from any complaint---Non-advertising the posts (reserved for widows or children of civil servants) was violative of Art.18 of the Constitution---Rule 12 of Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009 was also violative of Art.18 of the Constitution---Merit in any case had to be considered and eligible candidates could not be ignored only because widows and children of civil servants had been put in advantageous position vis- -vis widows and children of ordinary citizens---Rule 12 of Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009 was discriminatory and ultra vires of Arts.2-A, 3, 4, 9, 18, 25 & 27 of the Constitution---Provincial Government should consider of doing away all such kind of discriminatory provisions and reservation of seats in the government institutions---Constitutional petitions were accepted in circumstances.
PLD 1974 SC 31; AIR 1950 SC 107; PLD 1997 SC 11; (sic) PLC (C.S.) 442; PLD 2000 Lah. 509; PLD 1990 Pesh. 51; AIR 1950 SC 27, 107 and 2012 PLC (C.S.) 142 ref.
Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879; I.R. Coelho (dead) by L.Rs. v, State of Tamil Nadu AIR 2007 SC 861; I.A. Sharwani v. Government of Pakistan 1999 SCMR 1041; Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602; Pakcom Limited v. Federation of Pakistan PLD 2011 SC 44; Dr. Mobashir Hassan v. Federation of Pakistan PLD 2010 SC 265; Holy Qur'an; Nusrat Baig Mirza v. Government of Pakistan PLD 1992 FSC 412; Government of N.-W.F..P. v. Muhammad Tufail Khan PLD 2004 SC 313; 2004 PLC (C.S.) 892; Muhammad Kamran Mullahkhail v. Government of Balochistan PLD 2012 Bal. 57; Mushtaq Ahmed Mohal v. The Honourable Lahore High Court, Lahore 1997 SCMR 1043; 1996 SCMR 1349 and Mian Zia-ud-Din v. Secretary Local Government 2005 PLC (C.S.) 908 rel.
(b) Constitution of Pakistan---
----Arts. 25 & 27--- Discrimination and classification--- Scope---Articles 25 & 27 of the Constitution had forbidden discrimination and not classification---Classification which was not arbitrary, capricious or in violation of the doctrine of the equality could not be questioned---Classification had to be justified on the basis of nexus between the classification and the object to be achieved---Fact that classification by itself was reasonable was not enough to support the same unless there was nexus between the classification and the object to be achieved.
(c) Constitution of Pakistan---
----Arts. 199 & 184---Judicial review---Scope---Doctrine of judicial review had been recognized in every state particularly those having a written constitution---High Court in exercise of constitutional jurisdiction enjoyed enormous power of judicial review---Superior courts had constitutional duty and responsibility to find extent and limits of powers of executive as well as legislative organ of the State---Supreme Court and High Courts had jurisdiction to decide legality or otherwise of the action taken by State authorities either administrative or legislative and such power could not be taken away from judiciary---Judiciary had power to keep the different organs of the State within the limits of the power conferred upon them by the Constitution---High Court while examining the question of constitutionality of a piece of legislation principal or delegated was expected to explore every possibility of upholding the same before proceeding to strike down the same---No piece of legislation was immune from judicial scrutiny---High Court had power to test any piece of legislation on the touchstone of the Constitution even if the same was not repugnant to parent statute from which the executive had derived legislative power to make Rules or Regulations---High Court to take into consideration the expediency to enforce Fundamental Rights of ordinary citizens and privileged classes alike in order to sustain the presumption of constitutionality---High Court was bound to safeguard the Fundamental Rights of ordinary citizens in general and deprived classes in particular and to ensure elimination of all sorts of discrimination or exploitations---When there was any transgression of power, the abuse of power or colourable exercise of power then such exercise was open to correction under constitutional jurisdiction---High Court could examine the validity/constitutionality of any statutory provision itself when same came to its notice or had been brought into notice by the parties---Mere efflux of time did not ipso facto convert an unconstitutional provision of law into a valid and constitutional one---Mere passage of time was not a criterion of constitutionality of any provision of law.
(d) Jurisdiction---
----Order passed without jurisdiction could not be allowed to hold the field.
Muhammad Riaz Ahmed, Mujeeb Ahmed Hashmi, Abdul Maeed Kakar, Manzoor Ahmed Rehmani, Bashir Ahmed Qazi, Syed Zareef Shah, Ali Hassan Bugti and Saeed Ah med Langove for Petitioners (in C.P. No.370 of 2010).
Baz Muhammad Kakar for Respondent No.1 (in C.P. No.357 of 2011).
Tahir Ali Baloch for Intervenor/All Pakistan Clerk Association C&W Unit (in C.P. No.357 of 2011).
Shai Haq Baloch, Asst. A.-G. for Official Respondents (in C.P. No.357 of 2011).
Syed Zulfiqar Shah, Deputy Secretary C&W Department assisted by Iftikhar Ali, Section Officer C&W Department (in C.P. No.357 of 2011).
Aslam Pervaiz, Assistant Director (J) Education Department (in C.P. No.357 of 2011).
Shai Haq Baloch, Asstt. A.-G. for Official Respondents (in Contempt Application No.34 of 2010 in C.P. No.370 of 2010).
Syed Zulfiqar Shah, Deputy Secretary C&W Department assisted by Iftikhar Ali, Section Officer C&W Department (in Contempt Application No.34 of 2010 in C.P. No.370 of 2010).
Abdul Majeed Khan for Petitioner (in C.P. No.357 of 2011).
Baz Muhammad Kakar for Respondent No.1 (in C.P. No.357 of 2011).
Shai Haq Baloch, Asstt. A.-G. for Official Respondents (in C.P. No.357 of 2011).
Nemo for Petitioner (in C.P. No.379 of 2011).
Shai Haq Baloch, Asstt. A.-G. for Official Respondents (in C.P. No.379 of 2011).
Syed Zulfiqar Shah, Deputy Secretary C&W Department assisted by Iftikhar Ali, Section Officer C&W Department (in C.P. No.379 of 2011).
Nemo for Petitioner (in C.P. No.402 of 2011).
Shai Haq Baloch, Asstt. A.-G. for Official Respondents (in C.P. No.402 of 2011).
Syed Zulfiqar Shah, Deputy Secretary C&W Department assisted by Iftikhar Ali, Section Officer C&W Department (in C.P. No.402 of 2011).
Syed Zareef Shah for Petitioner (in C.P. No./117 of 2012).
Shai Haq Baloch, Asstt. A.-G. for Official Respondents (in C.P. No.117 of 2012).
Manzoor Ahmed Rehmani for Petitioner (in C.P. No.844 of 2012).
Shai Haq Baloch, Asstt. A.-G. for Official Respondents (in C.P. No.844 of 2012).
Manzoor Ahmed Rehmani for Petitioner (in C.P. No.912 of 2012).
Shai Haq Baloch, Asstt. A.-G. for Official Respondents (in C.P. No.912 of 2012).
Saeed Ahmed Langove for Petitioner (in C.P. No.448 of 2013).
Shai Haq Baloch, Asstt. A.-G. for Official Respondents (in C.P. No.448 of 2012).
Aslam Pervaiz, Assistant Director (Judicial) Education Department (in C.P. No.448 of 2012).
Mujeeb Ahmed Hashmi for Petitioner (in C.P. No.502 of 2013).
Shai Haq Baloch, Asstt. A.-G. for Official Respondents (in C.P. No.502 of 2013).
Bashir Ahmed Qazi for Petitioner (in C.P. No.662 of 2013).
Shai Haq Baloch, Asstt. A.-G. for Official Respondents (in C.P. No.662 of 2013).
Manzoor Ahmed Rehmani for Petitioner (in C.P. No.962 of 2013).
Shai Haq Baloch, Asstt. A.-G. for Official Respondents (in C.P. No.962 of 2013).
Ali Hassan Bugti for Petitioner (in C.P. No.89 of 2014).
Shai Haq Baloch, Asstt. A.-G. for Official Respondents (in C.P. No.89 of 2014).
Date of hearing: 13th October, 2014.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J.--- In Constitutional Petitions Nos.370 of 2010, 357, 379 and 402 of 2011, 117, 844 and 912 of 2012, 502, 662, 962 of 2013 and (S) 89 of 2014, the claims of the petitioners are based on the strength of Rules 12 and 12-A of the Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009, points for determination are interconnected in each of the petition and similarly Contempt Application No.34 of 2010 is arising out of Constitutional Petition No.370 of 2010, therefore, we intend to dispose of them jointly by this common judgment.
2. Briefly, the root cause of the edifice, is a notification bearing No.S.O.(R-I)5(13)S&GAD-2013/2057-2156 dated 31st July, 2013, issued by the Government of Balochistan, Services and General Administration Department (Regulation-I). For reference, the notification in extenso is reproduced herein below:---
"GOVERNMENT OF BALOCH1STAN SERVICES AND GENERAL ADMINISTRATION DEPARTMENT (REGULATION-I)
Dated Quetta, 31st July, 2013.
NOTIFICATION
No.SO(R-1)5(13)S&GAD-2013/2057-2156.--- In exercise of the powers conferred by Section 25 of the Balochistan Civil Servants Act, 1974 (Act No. IX of 1974), the Government of Balochistan is pleased to make the following amendments in the Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009, namely:---
In the aforesaid rules,---
(a) for rule 12, the following shall be substituted, namely:---
"Appointment of Spouce or child of Deceased Government Servant
12
Notwithstanding anything contained in any rule to the contrary whenever a Civil Servant dies while in service, his/her spouse or a child may be employed by the appointing authority against a post in BPS-1 to BPS-15 in the department in which the deceased Government servant was working, without observing the condition of open advertisement. Provided that--- (a) the spouse or child as the case may be, shall possess the qualification prescribed for the post; and (b) if the child of the deceased Government servant is under-age, his name shall be included in the waiting list from the date of death of his/her Father or Mother. However, he/she shall be considered for appointment after he/she attains the age prescribed far the post; and
(b) after rule 12, as so amended hereinabove, the fallowing new rule shall be inserted, namely:----
"Appointment of a child of retired/ invalidated Government Servant.
12-A
Notwithstanding anything contained in any rule to the contrary, whenever a Government Servant in BPS-1 and BPS-2 retired on superannuation or due to invalidation, one of his/her children may be employed by the appointing authority against a post in BPS-1 and BPS-2 in the Department in which the retired Government servant was working, without observing the condition of open advertisement; Provided that--- (a) the child possess the qualification prescribed for the post; and (b) If the child of the retired Government servant is under-age at the time of retirement, his name shall be included in the waiting list from the date of retirement/invalidation of his/her Father or Mother. However, he/she shall be considered for appointment after he/she attains the age prescribed for the past. BY ORDER OF GOVERNOR BALOCHISTAN CHIEF SECRETARY BALOCHISTAN"
3. It may be noted that the operation of the afore-quoted notification was suspended by this Court vide order dated 2lst August, 2013, which reads as under:---
"Learned A.A.-G. places on record Notification No.S.O.(R-I)5 (13)/S&GAD-2013/2057-2156 dated 31st July, 2013 and states that most of the grievances of the petitioner have been redressed by the said notification. Prima facie, the notification seeks to create a privileged class comprising of the children of the Government servants as it envisages appointments by passing the provision of open advertisement and merit, and may be construed as depriving the citizens from aspiring to Government service. As we have reservations about the legality and constitutionality on the said notification, notices are issued to the learned Advocate-General Balochistan, Chief Secretary and Secretary S&GAD
In view of the fact that notices in respect of notification have been issued and it is yet to be determined whether the notification is in compliance with the Constitution of Islamic Republic of Pakistan, it would not be appropriate to make appointments pursuant thereto, as it will create third party rights as well as depriving others to aspire to Government service. Consequently, we direct the Government of Balochistan not to make any appointment pursuant to the said notification."
4. Before proceeding further in the matter, it would be advantageous to trace out the legislative history of reservation of posts for the widow or child of civil servants died, while in service. It may be observed that provincial legislature i.e. Provincial Assembly of Balochistan promulgated an Act, namely, the Balochistan Civil Servants Act, 1974 (hereinafter referred to as ("the Act of 1974"). The Act of 1974 was promulgated in pursuance of command of Article 240 of the Constitution of Islamic Republic of Pakistan, 1973 ("the Constitution"). The Government of Balochistan, in exercise of powers conferred upon it by section 25 of the Act of 1974, made Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009 ("A.P.T. Rules, 2009"). In the instant petitions, this Court seized of the matter involving vires of aforesaid Rules 12 and 12-A of the A.P.T. Rules, 2009.
5. It may be noted that before coining into force the A.P.T. Rules, 2009, the Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 1979 ("the Rules of 1979") held the field. The Rules of 1979 initially did not provide for any preferential right of appointment of widow or child of the civil servants died, while in service. Later on, a new Rule 13-A was added in the Rules of 1979. The Rules of 1979 stood repealed after coming into force the A.P.T. Rules, 2009 by operation of Rule 23 thereof. Rule 12 of the A.P.T. Rules, 2009 is somehow identical to Rule 13-A of the Rules of 1979.
6. Messrs Muhammad Riaz Ahmed, Mujeeb Ahmed Hashmi, Abdul Majeed Kakar, Manzoor Ahmed Rehmani, Bashir Ahmed Qazi, Syed Zareef Shah, Ali Hassan Bugti and Saeed Ahmed Lango, Advocates, representing the petitioners, while supporting the incorporation of Rule 12 in the A.P.T. Rules, 2009, contended that neither the Rule in question suffers from any legal infirmity, nor is the same unreasonable. They, inter alia, contended that the Government of Balochistan has been empowered to make Rules under section 25 of the Act of 1974 and that in exercise of the said statutory powers, the A.P.T. Rules, 2009 have been competently made, therefore, the said Rules are not open to judicial scrutiny; the Courts have always learned more readily in favour of the presumption of constitutionality of the Rules, if made competently in exercise of powers conferred by a Statute until that presumption is rebutted; that Rule 12 of the A.P.T. Rules, 2009, being pari materia with Rule 13-A of the Rules of 1979, remained unchallenged and stood on Statute Book for a considerable long period and innumerable cases were decided thereunder and every effort should be made to save delegated or subordinate legislation instead of destroying it; that the Rules, being in the nature of delegated legislation, cannot be called into question on the grounds of unreasonableness or mala fide; that no one has challenged the vires of Rule 12 of the A.P.T. Rules, 2009, or prayed to examine the constitutionality of said Rules, therefore, this Court has no jurisdiction to examine the worth, verity and correctness or otherwise of the said statutory provision; that the guarantee of equal protection of laws forbids class legislation, but does not forbid reasonable classification for the purpose of legislation, principal or delegated in nature. Rule 12 of the A.P.T. Rules, 2009 is not arbitrary, artificial, capricious or in violation of the 'Doctrine of Equality'. Said Rule is not discriminatory and civil servants, who are in service or who attained the age of superannuation, are a class distinct from civil servants, who die in service. Classification so made is based on intelligible differentia and does not offend spirit of Article 25 or 27 of the Constitution and, while concluding their arguments, they further submitted that Rule 12 of the A.P.T. Rules, 2009, being beneficial legislation, is required to be construed liberally and beneficially, therefore, this Court should not adopt a doctrinaire approach, which might choke the said beneficial legislation. In support of their contentions, they relied upon the cases reported in "PLD 1974 SC 31, AIR 1950 SC 107, PLD 1997 SC 11, (sic) PLC (C.S.) 442 Lahore, PLD 2000 Lahore 509, PLD 1990 Peshawar 51, AIR 1950 SC 27, 107 and 2012 PLC (C.S.) 142 Balochistan".
7. On the contrary, Mr. Nazim-ud-Din, learned Advocate-General, appearing on behalf of the Provincial Government, while making reference to the footnotes made by the then Chief Secretary and Secretary Law at the time of incorporating Rule 12, contended that Rule 12 of the A.P.T. Rules, 2009 offends against the principle of equal protection of law, embodied in Article 25 read with Article 27 of the Constitution. He further submitted that Rule 12 of the A.P.T. Rules, 2009 is unreasonable and uncertain insofar as the legislative history makes it abundantly clear that the widow or child of the civil servants died, while in service, have been given preferential right to be appointed against a post BPS-1 to 10 or they were put in advantageous position vis-a-vis the ordinary citizens, while competing for appointment against a post in a Provincial Government department. He contended that Rule 12 is ultra vires to the Constitution as well as parent statute i.e. the Act of 1974, whereby the legislative power was delegated to the Government of Balochistan to make the Rules. He prayed for a declaration that Rule 12 of the A.P.T. Rules, 2009 is unconstitutional and to strike it down in the interest of justice, good governance, supremacy of law and merits.
8. We have heard learned counsel appearing on behalf of the parties at considerable length and examined their respective contentions thoroughly, while taking into consideration the law and the judgments cited at the bar on the subject. The moot questions of law, which cropped up for consideration can broadly be summarised as under:---
(a) Whether Rule 12 of the A.P.T. Rules, 2009 offends against the principle of "Equal Protection of Law" embodied in Articles 25 and 27 of the Constitution and is ultra vires to the Constitution?
(b) Whether aforesaid Rule is in conflict with parent statute i.e. the Act of 1974?
(e) Whether aforesaid Rule is unreasonable or uncertain?
(d) Whether this Court is vested with jurisdiction to strike down the said Rule on all or any of the aforesaid scores?
9. At the very outset, it is worth mentioning that a Court, prior to taking cognizance of a matter, is supposed to determine the question of its jurisdiction and any order passed without jurisdiction cannot be allowed to hold the field for a moment. In this behalf, it may be noted that this Court, in exercise of constitutional jurisdiction conferred upon it under Article 199 or the Constitution, enjoys enormous power of judicial review. Hon'ble Supreme Court of Pakistan had an opportunity to examine the scope of judicial review in the case of "Sindh High Court Bar Association v. Federation of Pakistan" (PLD 2009 SC 879). The ratio decidendi of the said judgment lays down following proposition:---
"The judiciary way the interpreter of the…
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