2021 PLP (C (PLC(CS))

ABID AZIZ SHEIKH, J.

This constitutional petition has been filed with the following prayer:- "In view of the above submissions, it is, therefore, most respectfully prayed that this petition may kindly be accepted and the impugned entry No.(ii) of the Note Clause-5 of the Recruitment Policy 2016-2017 for School Specific Educators and SSE (Assistance Education Officers), issued by the Government of Punjab School Education Department through Notification No.SO(SE-IV)2-50/205 dated September 09, 2016; in so far as it distinguishes the candidates into residents of Union Councils of District Councils and residents of Municipal Committees, Municipal Corporations and Metropolitan Corporations, may kindly be declared as discriminatory, un-constitutional, void ab-initio and of no legal effect, whatsoever. It is further prayed that the respondent No.2 may be directed to award all the candidates 12 additional marks for their local residence in their relevant area; in so far as their recruitment in the local schools is concerned. Any other relief which this Hon'ble Court deems fit in the circumstances of the case may also be awarded".

2. Relevant facts are that petitioners filed their respective applications forms for their recruitment as Educators in various schools of Gujranwala District under Recruitment Policy dated 09.9.2016 for year 2016-2017 (Policy) for School Specific Educators (SSE) and Assistant Education Officers (AEO). The petitioners who are resident of urban areas have challenged the vires of entry No.(ii) of the Note in clause 5 of the Policy, under which, 12 additional marks are granted to candidates who are residents of rural area in Union Councils of District Councils.

3. Learned counsel for the petitioners submits that 12 additional marks to local residents under the impugned Policy are only available to the candidates who are residents of Union Councils of District Councils, however, the same 12 marks are not available to candidates such like petitioners who are residents of Municipal Committees, Municipal Corporations and Metropolitan Corporations, therefore, the said impugned clause of the Policy, being discriminatory is liable to be struck down.

4. Learned Law Officer on the other hand submits that the award of 12 additional marks for residents of Union Councils of District Councils was introduced as a Policy to facilitate the residents of Union Councils which are less-developed situated in hard/rural areas and also to ensure availability of teachers in the schools of Union Councils. Submits that impugned policy being reasonable cannot be challenged in this Constitutional Petition.

5. Arguments heard. For convenience, the impugned entry No.(ii) of Note under clause 5 of the Policy is reproduced hereunder:- 5.(1) Ranking Criteria for Educators.

Note. (ii) 12 Marks for local residence Delimitation Officers have notified names of Union Councils and revenue estates of the Union Councils under the Punjab Local Government Act, 2013 and the Delimitation Rules, 2015. Additional marks for local residence shall apply on the Union Councils of District Councils only. In the light of this Notification and domicile of the candidates, the District Recruitment Committee shall determine/allocate residential marks to the candidates of Educators subject to the condition that a. If permanent address mentioned in domicile of the candidate or husband of a female candidate lies in revenue estate (same village) of the Union Council of School where vacancy is advertised then 12 additional marks shall be awarded to the candidate. b. If permanent address mentioned in domicile of the candidate or husband of female candidate lies in the Union Council of the School where vacancy is advertised then 08 additional marks shall be awarded to the candidate".

6. The perusal of above clause shows that as a policy 12 additional marks are being awarded for local residents of the Union Councils of District Councils. The said policy apparently has been framed by the Policy makers to give benefit to residents of Union Councils situated in the remote areas and to redress the grievances of the local community by ensuring the availability of teachers in the schools of said Union Councils. The framing of recruitment policy falls in the executive domain and this Court can neither assume the role of a policy maker nor that of law maker.

7. In similar situation, the Hon'ble Supreme Court in Government of Khyber Paktunkhwa and others v. Syed Sadiq Shah and others (2021 SCMR 747) while discussing the scope of judicial review in policy matters of the Government held as under:- "

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 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". Similarly the apex Court in Executive District Officer and others v. Ijaz Hussain and others (2012 PLC (C.S) 917) held as under:- "The framing of the recruitment policy and the rules thereunder, admittedly, fall in the executive domain. The Constitution of Islamic Republic of Pakistan is based on the well known principle of trichotomy of powers where legislature is vested with the function of law making, the executive with its enforcement and judiciary of interpreting the law. The Court can neither assume the role of a policy maker or that of a law maker. To the said extent the impugned judgment is not sustainable. Consequently, this appeal is allowed and the impugned judgment is set aside". The same view was also expressed by Hon'ble Supreme Court in Messrs Al-Raham Travels and others v. Ministry of Religious and others (2011 SCMR 1621) and held as under:- . "As regard the jurisdiction of the High Court is concerned, normally the Court cannot adjudicate on Government policy unless the policy, on the face of it, is outcome of mala fide on the part of Executive".

8. In view of law settled in above judgments, the policy being prerogative of concerned Authority cannot be challenged in the constitutional petition, unless same is found to be irrational, mala fide, perverse or arbitrary. However, no such defect has been highlighted in the impugned policy which is otherwise seems to be based on reasons, to redress the grievance of the residents of the under-developed localities, which is also the demand of Article 37 of the Constitution of Islamic Republic of Pakistan, 1973 (Constitution). It is also relevant to note that impugned policy was even otherwise for year 2016-2017 and is no more in the field. In this regard, reliance is also placed on Abdul Wahab and others v. Habib Bank Limited and others (2014 PLC (C.S) 393), Asaf Fasihuddin Khan v. Government of Pakistan and others (2014 SCMR 676), Cutting of Trees for Canal Widening Project, Lahore (2011 SCMR 1743), Messrs Alzair Travel and others v. Federation of Pakistan and others (2014 CLC 1766), Ministry of Inter Provincial Coordination v. Major R. Ahmad Nadeem and others (2014 CLC 600), Junaid and others v. Federation of Pakistan and others (2012 CLC 1962), Safdar Jamil and others v. Vice Chancellor and others (2011 CLC 116), Azad Government and others v. Dr. Syed Abadain Haider and others (2000 PLC (C.S) 9) and Government of Khyber Pakhtunkhwa and others v. Hayat Hussain and others (2016 SCMR 1021).

9. So far as the arguments of discrimination is concerned, admittedly, 8 to 12 additional marks are awarded to the residents of Union Councils of District Councils of the rural area which is a different class from residents of Municipal Committees, Municipal Corporations and Metropolitan Corporations, situated in urban area. The Hon'ble Supreme Court in Government of Khyber Pakhutunkhwa and others v. Syed Sadiq Shah and others (2021 SCMR 747) while defining the test of permissible classification held as under:- "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".

10. When the above test of permissible classification is applied to the impugned policy, it is noted that the classification of residents of rural area and urban area is based on intelligible differentia which has rational nexus with the object to be achieved. Therefore, it cannot be said that Article 25 of the Constitution has been violated.

11. In similar situation, the Hon'ble Supreme Court in Government of Pakistan and others v. Jamshed Hussain Cheema and others (2016 SCMR 442) did not strike down the recruitment policy on the ground of discrimination and held as under:- "We have considered the above submissions and with the assistance of learned ASCs, perused the material placed on record, which reveals that a policy decision has been taken by the competent authority with the approval of Federal Government for upgradation of pay scales of different categories of its employees in a conscious manner, looking to the nature of their jobs etc, therefore, such decision cannot be challenged in writ jurisdiction on the purported plea of discrimination. More so, when Article 25 of the Constitution itself provides a provision for such discrimination on the principle of reasonable classification. In the present case, respondents have also been granted upgradation by one step from BS-12 to BS-13 along with many others, who have been also given only one step upgradation in the scales and in many other cases upgradation is allowed by two steps. Thus, such classification/categorization by the competent authority cannot be struck down on the plea of discrimination, at the whims of respondents, who had approached the Islamabad High Court in this regard. In addition to it, learned ASC for the respondents has also failed to show that due to the impugned action of the appellants any fundamental rights of the respondents have been violated or they have any vested right for such upgradation as per their choice":- Same view was also expressed in National Bank of Pakistan through Chairman v. Nasim Arif Abbasi and others (2011 SCMR 446), Government of Punjab and others v. Sardar Zafar Iqbal Dogar (2011 SCMR 1239), Province of Punjab and others v. Samuel Bhatti and others (2009 SCMR 1034), Khawaja Saad Saleem v. Federation of Pakistan and others (2013 PTD 1895), Junid and others v. Federation of Pakistan and others (2012 CLC 1962) and Pakcom Limited and others v. Federation of Pakistan and others (PLD 2011 SC 44).

12. In view of above discussion, this petition being not maintainable and also merit-less is dismissed. ZH/A-61/L Petition dismissed.