P L D 1984 Federal Shariat Court 34 (PLP)

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13. A Civil Servant shall retire from service:‑ (i) in the case of a person holding the post of Additional Secretary to the Federal Government or any equivalent or higher post on such date as the competent authority may, in the public interest, direct." A distinction has been made between persons holding post of Additional Secretary to the Federal Government or any equivalent or higher post on the one hand and person holding other post on the other hand. Prior to the enforcement of this law all Government Officers including persons hol0ing posts of Additional Secretaries or equivalent or higher posts enjoyed the came safeguards and protections (See Articles 240 and 241 of the Government of India Act, 1935, Articles 177 anti 178 of the Constitution of 1962 and Articles 220 and 221 of the Interim Constitution of 1972). One of the principles which distinguishes Islam is the principle of equality before Law and equal protection of Law inherent in it. This principle is deducible in no uncertain terms from the Holy Qur'an and the Sunnah. In fact Islam has given the principle of to a world in which the class and group conflicts reigned supreme. The test of equality lies in each Muslim individual being nominated in the O Qur'an as Khalifat Ullah. (Q. 6:165, 7:69, 7:74). It is interesting to note that the first Caliph, Hazrat Abu Bakr declined to accept the title of Khalifat Ullah presumably because each individual Muslim is the holder of that title. He adopted the title of Khalafit‑i‑Rasul Allah. Allah says "O mankind, we have created you from a male and a female" which means that all human beings are brothers inter se irrespective of any distinction of colour, race or nationality. They are the progeny of the same parents. The outward differences of colour, race, tribes, and nationality are no more than references for mutual introduction and recognition. The sole criterion for superiority of one over the others is piety, nobility and the quality of being God‑fearing. Q. 49:13 "O mankind! Lo! We have created you from a male and a female, and have made you nations and tribes that you may know one mother. Lo! the noblest of you, in the sight of Allah, is the best in conduct. Lo! Allah is Knower, Aware." This brotherhood between man and man is implied in the follow verse :‑ Q. 4:1 "O' mankind! be careful of your duty to your Lord who create you from a single soul and from it created its mate and from the twain bath spread abroad a multitude of men and women .." In Q. 49:10 it is specifically stated that "The believers are naught else than brothers. Therefore, make peace between your brethren and observe you .J duty to Allah that haply ye may obtain mercy." There are several traditions of the Holy Prophet in support of this pro position. The Prophet said that (people are like the teeth of a comb) (Address at the last Haj or Hajjatulwida'), This simile is very apt since if the teeth of the comb be of different size or be unequal the hair cannot be combed but the head shall be injured. The simile thus exemplifies the effect of inequality too. In the same address the Prophet said : I "No Arab has any superiority or excellence over a. non‑Arab and no red coloured man has any superiority or excellence over any black coloured man, save in respect of piety and fear of Allah." In Sahib Muslim this Hadees is reported in the following words: "No Arab has any superiority over a non‑Arab, nor any non‑Arab eve an Arab nor any white man over a black man nor a black man eve a white man, save in respect of piety and fear of Allah." This fraternity and equality is not only a matter of form but is indeed a matter of substance. It goes to the extent of equality before law and equal, protection of law. In respect of equality before law Sharia does not make any distinction between a citizen and a head of the State. The head of the State cannot claim any immunity from prosecution or from appearance in Court during the tenure of his office. There is no discrimination in the administration of justice. between man and man. Politically every Muslin being the member of the same Ummah he cannot be denied any right, nor an juridical right can be reserved for any particular group on consideration of wealth, purity of blood, caste or colour: The best example of equality before law and equal treatment and protec tion of law is furnished by the reaction of the Prophet to a recommendation made by a companion in favour of a woman thief against the imposition of the severe sentence of Hadd. The Prophet said‑.‑ "By Allah if Fatima daughter of Muhammad, (p.b.u.h.) had commit theft, I would have certainly cut off' her hand (,agreed): The verse, Q. 5:32, equates killing of a man with Abe killing of all mankind and saving of a man with the saving of all mankind. The laws of Hudood and Taazir are equally applicable to all and the Holy Prophet condemned in the above Hadees about recommendation in the theft case, the was of the earlier people who had different criteria of punishment for those who were wealthy and influential among them and those who were not and were poor. The relevant words of the Hadees are (Jamiul Fawaid by Muhammad bin Suleman Maghribi, Vol. l, page 499) "The Holy Prophet ; then stood and addressed the congregation and said 'No doubt the earlier people were destroyed as they left unpunished those among them who committed theft but were influential, and imposed Hadd on those among them for commitment of theft who were weak." Equality before law and equal protection of law is thus the main principle inherent in the Islamic law and polity. It is one of the fundamental principle of Islam which cannot be ignored. We do not see any reason why any such distinction between two type of permanent Government servants be made particularly when such protection have been afforded to all Government servants in all the three Constitution referred to above. This only gives a handle to the President or the Prime Minister to force officers of higher ranks to act according to his will rather than according to law. This gives the power to a competent authority to remove a Government servant merely on the basis of his personal likes o dislikes which is too arbitrary a test to deprive a person of the means of hi livelihood and to deprive the nation of his talent and experience. In this age, one of the duties of Government is to seek employment for the citizens of the country. In these circumstances arbitrary removal from to service will also be repugnant to Sharia. One of the reasons for affording protection and safeguard against premature retirement, removal or dismissal C: that all Government servants may act according to Law without any fear a favour. To withdraw this protection amounts to virtually withdrawing from them the duty to act according to law and conscience and to make them bend to the will of the Chief Executive. Section 13(i) is repugnant to the Quranic principle of equality before Law and equal protection before Law. It shall be repealed. The other provision is subsection (ii) of section

13. Though similar provisions have been there in the Service Rules, but if figures are collected o persons whose services were terminated on this ground or similar ground before 1958 and after 1958, it will be found that cases of such premature retirement before 1958 are extremely rare. The provisions not only violate the, principle of equality before Law and equal protection of Law but also gives to the competent authority an arbitrary power over the employers as already considered above. If after 25 years of service qualifying for pension or other retirement benefits, the efficiency of a Government servant is affected, disciplinary action can be taken against him under the Rules framed under section 16 of the Act, and he can be removed for inefficiency. This is sufficient safeguard for public interest. This provision shall also be repealed. We order that sections 13(i) and 13, (ii) shall be repealed by the 29th of February, 1984. The amendment in section 13(iii) will be consequential. M.Z.M.