2017 PLP (C (PLC(CS)N)

AZIZ-UR-REHMAN, J.

By means of this Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner inter-alia is seeking direction to respondents for appointment of his son viz. Abdul Haque on 'son quota' in Irrigation and Power Department. The prayers sought by the petitioner read as follows:-- a. Direct the respondents to appoint the son of the petitioner namely Abdul Haque on son quota in Irrigation and Power Department. b. Direct the respondents to act according to law and ensure that the petitioner will not be deprived from his legal and lawful right of appointment of his son on son quota. c. Any other relief(s) which this Honourable Court deems fit, just and proper in favour of the petitioner."

2. The brief relevant facts of the case are as follows:--

3. Per assertions made in the Memo. of Petition [in short MOP], the petitioner is a retired employee of Irrigation Department, Government of Sindh and before reaching the age of superannuation he was working as 'Daroga' in SCARP and finally stood retired on 12.01.2011.

4. The son of the petitioner viz. Abdul Haque, as stated, upon retirement of his father on reaching the age of superannuation, moved an application to respondent No.2 for his appointment on 'son, quota' which application, as averred, was duly recommended by Minister of Irrigation and Power Department/Chairman SIDA Government of Sindh. The respondent No.2, thereafter, it appears had forwarded the application of the petitioner's son to respondent No.3, however, with direction to take legal action in the matter as per 'Standing Policy' of Government. Likewise, respondent No.3, in turn, also directed respondent No.4 for taking legal action however, as per 'Standing Policy' of Government of Sindh.

5. Notwithstanding the above, per assertions of the petitioner, respondents in their 'own wisdom' rather to say, malafidely ignored the appointment of the son of the petitioner on 'son quota' though other persons were/are being appointed on 'son quota' which as alleged, is an act of 'gross discrimination' having being done to the petitioner and his Matric passed son viz. Abdul Haque.

6. According to the petitioner's version, the petitioner and his son, thereafter, are continuously approaching the respondents but they have either failed and/or avoided to give any positive/proper response. This in-action, per petitioner's stand besides, illegal and improper is against the law and equity. Moreover, it is also a clear violation of the Constitution of Islamic Republic of Pakistan, 1973. For and in view of the above, the petitioner upon feeling aggrieved himself has filed the instant petition on 31.10.2011 with the prayers reproduced hereinabove.

7. Upon service comments have been filed on behalf of respondents Nos.1 and

4. In the comments of official respondents, the receipt of application from the petitioner's son has not been denied. Being relevant, the application of the petitioner's son viz. Abdul Hague addressed to the Chief Engineer Development Tube-well SCARP Irrigation for ready reference is reproduced herein-below:-- "To, The Honourable Chief Engineer Sahib, Development Tube Well Scarp Irrigation, Sindh. Subject: REQUEST FOR THE POST OF DAROGHA FROM SON QUOTA. R/Sir, It is submitted that my father's namely Muhammad Ibrahim Jokhio was working Darogha and Retired from service 11.01.2011. He was guardian and pertains of our family consists 20 members. After his retirement no any our family member is in service to support us. I am elder son of my father and passed Matriculation in Grade "C". It is therefore requested honour to kindly appoint me on my father's post as Son Quota post and oblige, so that I support my large family. Your's obediently Sd/- (ABDUL HAQUE JOKHIO) Son of Muhammad Ibrahim Jokhio

8. In the comments of official respondents Nos.1 and 4, it was however, categorically stated that there is no any 'son-quota' reserved for the appointment of sons of Government Servants who have retired upon attaining the age of superannuation i.e. 60 years, as the case of the petitioner in hand is. To this extent and, effect, the petitioner besides, being well aware, has also been informed by the official respondents. The petitioner, nevertheless, is illegally insisting for appointment of his son. Nevertheless, to the knowledge of the petitioner his son, as alleged, is not eligible for appointment against any 'deceased'/'son-quota'. In the comments, it was further asserted that neither any right of the petitioner, as alleged, has been violated and/or otherwise, the petitioner, as claimed himself, is an aggrieved person in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. As such, the petition in hand, besides, being not maintainable is liable to be dismissed with cost.

9. On 21.01.2015, when the above Constitution Petition came-up before the Division Bench of 'Circuit Court', Hyderabad, then the following order was passed:-- "All the petitions pertaining to terms and conditions of service including present petition may be fixed for scrutiny before the Special Bench constituted as per directions of the Hourable Chief Justice of Sindh High Court in the light of judgment dated, 05.01.2015 passed by the Honourable Supreme Court of Pakistan in C.R.P No.193/2013 etc."

10. Accordingly, when again, the above petition came-up before Special Bench on 04.02.2015, for 'scrutiny' purpose then, it was ordered/observed that this petition needs not be transferred to the Service Tribunal. Rather, the same be placed before the Division Bench of this Court. Order dated 04.02 2015 reads as follows:-- . "This Bench has scrutinized this petition in the light of the principle enunciated by the Hon'ble Supreme Court of Pakistan in its judgment dated 05.01.2015 passed in Civil Review Petition No.193 of 2013 etc. (Ali Azhar v. Province of Sindh and others). It reveals that the Petitioner is seeking his appointment on the basis of son quota. Apparently, this petition needs not to be transferred to the Service Tribunal, let this matter be placed before the Division Bench of this Court." [Underlining is ours] 11 Lastly, on 01.09.2016, when the above petition came-up before us then, we heard Mr. Farhad Ali Abro, learned counsel for the petitioner and Mr. Ashfaque Nabi Kazi, learned Assistant A.G. and also gone through the available record with their valuable assistance.

12. Mr. Farhad Ali Abro, learned counsel for the Petitioner vehemently contended that the instant Petition 'as framed' and 'filed' under Article 199 of Constitution of Islamic Republic of Pakistan, 1973, is not only maintainable but also well deserves to be allowed as the petitioner and his son apart from being discriminated, a 'lawful right'/ 'vested right' of the petitioner has also been taken away/infringed by the official respondents that is to say the petitioner's son was wrongfully 'refused' and/or 'avoided' to be appointed on the son quota, which act on the part of the official respondents is not only illegal but also against the principle of equity. Besides, this act is in a clear violation of law and Constitution of Islamic Republic of Pakistan, 1973.

13. Mr. Farhad Ali Abro, learned counsel for the petitioner next contended that the petitioner's son also deserved to be appointed in view of Notification No. SOR/(SGA and CD)2-3-02.02, dated 11.03.2008. In this regard Mr. Farhad Ali Abro, learned counsel for the petitioner focused the attention of this Court towards, 'Para No.11 of the Memo. of Petition [in short MoP]', wherein, a reference has been made to the aforesaid Notification dated 11.03.2008, issued by Province of Sindh, Services and General Administration and Coordination Department (Regulation Wing Karachi). Being relevant, the said 'Notification' No. SOR/SGA&CD)2-3/02, dated 11.03.2008 reads is reproduced herein below:-- "Where a Civil Servant dies while in service or is declared invalidated or incapacitated for further service, one of his children shall be provided job, on any of the basic scales 1 to 15, in the department, where the deceased, declared invalidated or incapacitated civil servant was working; without observing the prescribed formalities, if such child is otherwise eligible for the post in accordance with the recruitment rules." [Underlining is ours].

14. In contra, Mr. Ashfaque Nabi Kazi, learned A.A.G. extraneously contended that the petitioner's son, as alleged, in no event is entitled to be appointed on his father's post muchless, on the basis of so-called 'son quota'. Obviously, for the reason that the petitioner's case inter alia does not fall within the scope of Notification No. SOR/SGA&CD)2- 3/02, dated 11.03.2008.

15. Per learned A.A.G, since, the petitioner has neither died while, he was in service nor otherwise, was declared as invalidated or 'incapacitated' for further service. Per learned A.A.G, admittedly, the petitioner stood retired on reaching the age of sixty [60] years. As such, his son under no circumstances is entitled/eligible for appointment on 'son quota'/' deceased quota' as being alleged and claimed by the petitioner. In view of this position, per learned A.A.G, respondents have neither committed any illegality and/or any violation of Constitution of Islamic Republic of Pakistan, 1973, as alleged by the Petitioner. Besides, learned A.A.G. forcefully denied/controverted any sort of 'discrimination' allegedly caused to the petitioner and/or his son. While, concluding his arguments, Mr. Ashfaqaue Nabi Kazi, learned Assistant A.G. forcefully prayed for dismissal of the instant petition as the same according to him besides being devoid of any, merits, is without any substance as well.

16. Heard.

17. No doubt, Annexure 'A-1' and 'A-2' of the MoP, which are 'office orders' issued by Executing Engineer Tube-well Division-I, Hala, in the month of August 2001, speak about the appointments of one Azizullah son of Muhammad Hakim and Hafiz Mumtaz son of Haji Ahsan, as Tube Well Chowkedars but against a 'clear vacancy' in Tube-Wells Sub-Division. Nowhere, in the aforesaid 'office orders' it has been mentioned that the appointments of the persons named therein, is against 'son-quota' as claimed by the petitioner. Moreover, in the letter dated 11.07.2011 [Annuexure 'D' to the MoP] of the Chief Minister Irrigation Department, Government of Sindh, Hyderabad, addressed to the Project Director SCARP Shaheed Benazirabad alias Nawabshah and letter dated 13.07.2011 [Annexured 'E' to the MoP] of Project Director SCAR [NR] Shaheed Benazirabad, addressed to the Executive Engineer Tube Well Division, inter-alia it has been specifically directed therein viz-a-viz the request of the petitioner regarding the appointment of his son viz. Abdul Haque on 'son quotas' as follows:-- "You are directed to please take legal action in the matter as per Standing Policy of the Government...." [Underlining is ours].

18. Even, the recommendation on the part of the official respondents, if any, was seemingly subject to adherence of the 'Standing Policy' of Government of Sindh. In view of this position as well, the petitioner's son, as alleged, in no event can be appointed on 'son quota' much-less in violation of the aforesaid 'Notification' No. SOR/SGA&CD)2-3/02, dated 11.03.2008 referred to and reproduced hereinabove and/or 'Notification' dated 17.07.2009 issued by Government of Sindh amending Rule 11-A of Sindh Civil Servants [Appointment, Promotion and Transfer] Rules, 1974, wherein the 'cut-off' date for the appointment under 'deceased quota' for the posts of BPS-1 to BPS-15, was mentioned as 17th July 2007.

19. It is significant to mention herein that the 'object' of proceedings initiated under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, is the 'enforcement and 'protection' of a 'vested right' and not as presumed by the petitioner is the establishment of any right. Such right, if any for the purpose a Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, must be an existing and an infringed right. On this aspect of the matter, we would like to refer the case of Dr. Sher Afghan Niazi v. Habib and others [2011 SCMR 1813]. Being relevant Paras 10 and 11 therefrom, are reproduced herein below:-- "

10. Besides that what has been discussed herein above there are certain disputed questions of facts which cannot be investigated while exercising Constitutional jurisdiction. "It is incumbent upon party seeking constitutional remedy to show that such party has a clear legal right and that such right is so clear as not to admit of a reasonable doubt or controversy. High Court will not go into disputed questions of fact in Constitutional jurisdiction. This is more so when it is supported by attending circumstances and relevant record. Constitutional jurisdiction of High Court, cannot be converted into that of an appellate Court. Disputed questions of fact cannot be entertained or allowed to be reagitated in writ jurisdiction. When the relevant law provides other forums for the purpose. It follows that finding of fact recorded by appellate Court below an appraisal of evidence cannot be disturbed in writ jurisdiction. In constitutional jurisdiction Court does not go into a question involving minute details nor it decide facts of which no foundation is laid, unless, it is shown that such controversy is devoid of supporting record, or perverse. "(M.H. Abidi v. State Life Insurance Corporation (PLD 1990 (sic) 563), Muhammad Nazim v. Rehana Parveen Begum, 1990 MLD 344). [Underlining is ours].

11. It is well settled by now that "the superior Courts should not involve themselves, into investigation of disputed question of fact which necessitate taking of evidence. This can more appropriately be done, in the ordinary civil procedure for litigation, by a suit. This extraordinary jurisdiction is intended primarily, for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority can be established without any elaborate enquiry into complicated or disputed facts. Controversial questions of fact, adjudication on which is possible only after obtaining all types of evidence in power and possession of parties can be determined only by Courts having plenary jurisdiction in matter and on such ground constitutional petition was incompetent. "(State Life Insurance Corporation of Pakistan v. Pakistan Tobacco Co. Ltd. PLD 1983 SC 280) " [Underlining is ours].

20. As far as, the reliance of learned counsel for the petitioner on Notification No. SOR/SGA&CD)2-3/02, dated 11.03.2008 is concerned, in our view the same besides being misconceived is irrelevant. The petitioner in case in hand is 'still alive' and admittedly stood retired from service on reaching the superannuation age of 60 years. Needless to say that the petitioner has never been declared as 'invalidated' or 'incapacitated' for further service. The contents of the said 'Notifications' itselves belie the petitioner in his stand.

21. Even, under the amended Rule 11-A of the Sindh Civil Servants (Appointment, Promotion and Transfer Rules, 1974), where under a Civil Servant, who dies/passes away during service or otherwise, declared as 'invalidated' or 'incapacitated' for further service then one of his/her children shall be provided job within specified period therein, as per his qualification, manifestly is not attracted and/or otherwise, brings the case of the petitioner in its 'ambit'. In view of this position as well, the filing of the instant petition by the petitioner under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, is misconceived.

22. Needless to say, a 'Notification' always operates prospectively as a 'Notification' is outcome of a 'subordinate legislation'. A 'vested right', indeed, can be taken away retrospectively but 'through an enactment only to be passed by the Parliament. By means of a subordinate legislation' that is to say through issuance of a 'Notification' by Executive Authority, a 'vested right' cannot be taken away retrospectively and adversely.

23. It is worth to note, that the instant petition instead of filing it by the son of the petitioner viz. Abdul Haque, it has been filed by his father [the petitioner herein] who, in actual fact, is not an 'aggrieved person' as admittedly the petitioner stood retired on reaching the superannuation age of 60 years. Besides, it is well known to him that there is no any 'son quota' much-less reserved for appointment of the sons of Government Servants who retired on reaching the requisite age of superannuation and that too without being 'declared' as 'invalidated' or 'incapacitated'.

24. The petitioner herein since is claiming 'discrimination' on the touchstone of equality before law i.e. in terms or Article 25 of the Constitution of Islamic Republic of Pakistan, 1973, we, therefore, would like of-course, with a view to properly understand the petitioner's contention, to refer to and reproduce herein, Article 25 of the Constitution of Islamic Republic of Pakistan, 1973, which reads as follows:-- "

25. Equality of citizens. (1) All citizens are equal before law and are entitled to equal protection of law. (2) There shall be no discrimination on the basis of sex alone. (3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children."

25. The equal protection of law, it is worth to note, does not envisage that in all circumstances, all citizens are to be treated as equal. Rather, it contemplates that only those persons having been placed similarly in one class are to be treated alike. Moreover, one who is seeking relief on the basis of 'discrimination', in the first place has to establish similarity in the nature of work as is being performed. On this aspect of the matter, we would like, to refer the case of Jibendra Kishore Achharayya Chowdhury and 58 others v. The Province of East Pakistan [PLD 1957 (Pak) 9], wherein it was observed as followed:-- "(ix) Whatever else the expression 'equal protection of law may means, it certainly does not mean equality of operation of Legislation upon all citizens of the State. The expression has been borrowed from the Fourteenth Amendment to the Constitution of the United States which was intended to secure to the emancipated negroes, equal rights to the enjoyment of life, liberty and property no rule has yet been formulated by the Supreme Court as to what may be regarded as a denial of the 'equal protection of the laws' that will embrace every case and the application of the principle has always depended on the facts of each case some broad proposition as to its meaning have been enunciated. One of these propositions is that equal protection of the laws means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in like circumstances, in their lives, liberty and property and in pursuit of happiness. Another generalization more frequently stated is that the guarantee of equal protection of the laws requires that all persons shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed. In the application of these, principles, however, it has always been recognized that classification of persons or things is in no way repugnant to the equality doctrine provided the classification is not arbitrary or capricious, is natural and reasonable and bears a fair and substantial relation to the object of the legislation. It is not for the Courts in such cases, it is said, to demand from the Legislature scientific accuracy in the classification adopted. If the classification is relevant to the object of the Act it must be upheld unless the relevancy is too remote or fanciful. A classification that proceeds on irrelevant considerations, such as differences in race, colour or religion will certainly be rejected by the Courts." [Underlining is ours].

26. Since, in the present case neither the petitioner has died nor otherwise, he has been declared as 'invalidated' or 'incapacitated' as such the petitioner could not claim job for one of his children viz. Abdul Haque inter-alia on the basis and strength 'Notification' No. SOR/ SGA&CD)2-3/02, dated 11.03.2008 or 'Notification' dated 17.07.2009. Evidently, the petitioner herein stood retired from service with 'sound health' and condition and that too upon reaching the age of superannuation of 60 years. In view of this position, the petitioner's case is beyond the scope of Notifications and/or Rule referred to hereinabove.

27. For all the above, we have reached to the conclusion that the instant petition besides, being meritless has no substance, as such, stands dismissed at 'Katcha Peshi stage, however, with no order as to cost. ZC/M-155/Sindh Petition dismissed.