1998 PLP 1832 (MLD)

FAQIR MUHAMMAD KHOKHAR, J.

The appellant (from Sindh Province) and the respondent No.3 (from Punjab Province) are among 577 candidates who qualified the C.S.S. Competitive Examination, 1996, held by the respondent No.l to fill in the vacancies of various occupational groups. As per recruitment policy of the Federal Government, the vacancies up to 10% are reserved for open merit and remaining posts are shared among candidates of various Provinces/Areas of Pakistan and Azad Jammu and Kashmir in accordance with prescribed quota. The break-up of 195 posts as a result of the examination calculated both on open merit, and on 10% merit plus Provincial quota but subject to number of successful candidates is as follows: OPEN MERIT Punjab Sindh Urban/Rural N-W.F.P. Balochistan FATA AJ&K 148 2 10 27 2 3 3 ON MERIT PLUS QUOTA SYSTEM 10% Open merit Punjab Sindh Urban/Rural N.-W.F.P. Balochistan FATA AJ&K 19 96 20 18 24 9 7 2

2. The respondent No.3 filed a Writ Petition No.25093 of 1997 calling in question the validity of quota system for the C.S.S. being violative of the Constitution. During the course of hearing of the petition the learned Deputy Attorney-General made a statement before the learned Single Judge that although the recommendations had been made by respondent No. 1 on the basis of regional quota yet appointments would be made strictly in accordance with law at the time of appointments and the decisions of the superior Courts. The writ petition was disposed of, by impugned order dated 3-3-1998, as having borne fruit. The appellant, who was not a party to the earlier proceedings, felt aggrieved and filed the present Intra-Court Appeal.

3. The learned counsel for the appellant argued that the appellant had appeared in C.S.S. Examination for the second time on the basis of Provincial quota of Sindh to improve his existing position as a Member of Railways (Commercial and Transportation) Group. He had not been impleaded as a party to the writ petition and was condemned unheard. He had a vested right having qualified the C.S.S. Examination. The judgment of the Hon'ble Supreme Court in the case of Mushtaq Ahmad Mohal and others v. The Hon'ble Lahore High Court, Lahore and others (1997 $CMR~ 1043) did not cover the present case nor it could be applied retrospectively.

4. The learned Attorney-General for Pakistan argued that C.S.S. Examinations, 1994 and 1995 had also been held on regional/Provincial quota system and appointments were made accordingly. He submitted that it would be prejudicial to our Federal System if adequate representation in C.S.S. was not given to various regions/Provinces. The case of Mushtaq Ahmad Mohal (supra) had not application as it did not involve the question of Federalism. In any case, it was prospective in operation. Reference was made to the cases of Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan of Pakistan through Prime Minister of Pakistan and another (PLD 1989 Karachi 404) as affirmed by the Supreme Court of Pakistan in Government of Sindh v. Sharaf Faridi (PLD 1994 SC 105). Respondent No.3 having appeared in the examination' on Provincial/Regional quota basis was disentitled to the discretionary relief in writ as held in the case of Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and others (PLD 1973 SC 236). Lastly, it was contended that on account of Proclamation of Emergency and another Presidential Order under Article 233(2) of the Constitution issued in pursuance thereof, the enforcement of fundamental rights including Articles 18, 25 and 27 of the Constitution stood suspended. The Federal Government was competent to make the appointments in the national. interest on merits plus Provincial/Regional quota.

5. The learned counsel for respondent No.3 argued that the name of the respondent No.3 and the appellant appeared at Serial Nos. 166 and 307 of the merit list. In the presence of judgment in the case of Mushtaq Ahmad Mohal (supra), the appointments to the C.S.S. could not be made or Provincial/Regional basis. He also relied on the cases of Nusrat Baig Mirza v. Government of Pakistan and another (PLD 1991 SC 509), Government of Baluchistan through Additional Chief Secretary v. Azizullah Memon and 16 others (PLD 1993 SC 341), Dr. Habib-ur-Rehman v. The West Pakistan Public Service Commission, Lahore and 4 others (PLD 1973 SC 144) and Government of Sindh through Chief Secretary v. Sharaf Faridi and others (PLD 1994 SC 105).

6. We have considered the arguments of the learned Attorney-General for Pakistan and the learned counsel for the parties. Since 1915 onward there remained constituted an All India/Pakistan Civil Service in the Sub-Continent. Listed posts both in the Centre and the Provinces were held by the Members of the Service. After the creation of Pakistan, an All Pakistan Service commonly known as Civil Service of Pakistan and Police Service of Pakistan was constituted by an agreement between the Governor-General and the Provincial Governors. A number of cadre posts in the Provincial set-up were reserved for the Members of the Service. However, the cadre posts up to 25 % could be filled in by the Members of the Provincial Civil Service (Executive and Judicial Branch) by order of the Governor-General on the recommendation of the Provincial Government. The C.S.P. and P.S.P. (Composition and Cadre) Rules were made to regulate both the services. However, in 1973, the C.S.P. and P.S.P. were abolished and changed to All Pakistan Unified Grade by virtue of the All Pakistan (Change in Nomenclature) Rules, 1973. It was during 1975-76 that the Central Superior Service (C.S.S.) comprising various occupational Group was constituted. Appointments to C.S.S. are made through Competitive Examination based on merit, as also on Regional quota system, through lateral entry and induction from the Armed Forces etc. A special care is taken to ensure that none of the Provinces being Federating Units .is under represented. Article 240 of the Constitution defines All Pakistan Service as the Service Common to the Federation and the Provinces.

7. Article 27 of the Constitution occurs in the Chapter of Fundamental Rights. It provides that no citizen otherwise qualified for appointment in the service of Pakistan shall be discriminated against in respect of any such appointment on the ground only of race, religion, caste, sex, residence or place of birth. Proviso to the Article lays down that for a period not exceeding 20 years from the commencing days, posts may be reserved for persons belonging to any class or area to secure their adequate presentation in the Service of Pakistan. The period of 20 years has already run out.

8. The proclamation 'of Emergency and a Presidential Order under clause (2) of Article 233 of the Constitution issued by the President have been approved by the Parliament in a joint sitting. The enforcement of fundamental rights by a judicial process is in a state of suspended animation as doctrine of eclipse would apply for the tithe being. We were not called upon to examine the a validity of the proclamation and the Presidential Order. The provisions of Articles 18, 25 and 27 of the Constitution which were taken into consideration in the judgment in the case of Mushtaq Ahmad Mohal (supra) are no longer enforceable. Moreover, a compensatory or protective discrimination may not offend Articles 18, 25 and 27 of the Constitution in appropriate cases.

9. Article 1 of the Constitution clearly states that Pakistan shall be a Federal Republic. One of the salient features of the Constitution is the Federal structure as recognised in the case of Mahmood Khan Achakzai and others v. Federation of Pakistan and other (PLD 1997 SC 426). The provisions of the Constitution are to be so interpreted that the legitimate rights and interests of the Federating Units are safeguarded in juxtaposition with the Federation as far as possible. The structure of Federalism can be preserved by taking practical steps. A genuine feeling of deprivation of the Federating Units may adversely affect the national unity. The figures/break-up of the posts of C.S.S. would clearly point to startling consequences if the allocation of the seats on the basis of provincial quota is not adhered to while appointing duly qualified candidates. All out efforts should be made to remove the disparities and inequalities in the society.

10. It would be against the concept of equality if the un-equals are treated as equals. The equality can be enforced only among the citizens who are similarly placed. Equality is for equals. Equality of opportunity may be absolute or relative. Absolute equality of opportunity exists where all the contestants are required to overcome the same difficulties, as for example, in a high jump contest the bar is placed at the same height for all the competitors. Relative equality takes into account the varying capacities and situations of the contestants and the difficulty of the task is varied so that the same effort is required of each of the contestants to take benefit of the opportunity: for example, in a handicap race the faster man has to run a longer distance. The circle of inequality cannot be broken by shifting the inequities from one man to his neighbour. The white collared jobs for which the reservations exist are concentrated in intellectual spots. Their availability is meagre and even if adequate do not reach the vulnerable sections of the society. Reservations, after all, seek to mitigate effects of social disadvantage, not to eliminate its causes.

11. The administration of social, economic and political justice is one of the objectives of the Constitution as envisaged by Articles 2A and 37 of the Constitution. The appointments to the All Pakistan Service have always been made having regard to the representation of the Provinces/Regions. Article 36 of the Constitution makes it obligatory on the state to safeguard the legitimate rights and interest of minorities including their due representation in the Federal I and Provincial Services, Similarly by Article 37 of the Constitution the State is required to promote with special care, the educational and economic interests of the backward classes or areas. The National Assembly of Pakistan has passed resolution on 30-6-1998 that the quota system in the country should be extended for another 20 years on a fair and equitable basis and rights of under-developed areas and minorities may be protected. Similar provisions are made in the Objectives Resolution which is now a substantive part of the Constitution. The provisions of Article 27 are to be construed in the context of the scheme of the Constitution. It is now well-settled that the personal fundamental and other rights of individuals have to yield to the national interest, collective right and welfare of the society. Reference may be made to the cases of Karachi Building Control Authority and another v. Saleem Akhtar and 2 others (1993 SCMR 1451) and Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary Ministry of Finance, Islamabad and 6 others (PLD 1997 SC 582 at page 694).

12. We do not consider it necessary to decide another question as to whether the judgment in the case of Mushtaq Ahmad Mohal (supra) would operate retrospectively or not. We may, however, refer the case of Muhammad Akram Sheikh v. Federation of Pakistan (PLD 1989 SC 229). The Hon'ble Supreme Court of Pakistan took the view that notwithstanding the declaration of law by it, the appointments already made in the superior judiciary without advice of the Prime Minister would hold good and its judgment was intended for the future guidance.

13. For the foregoing reasons, we set aside the impugned order dated 3-3-1998 passed by a learned Single Judge of this Court and dismiss the Writ Petition No.25093/1997 filed by the respondent No.3. Consequently, the Federal Government may proceed to make appointments of C.S.S. in accordance with land and recruitment policy. This Intra-Court Appeal is accepted. There shall, however, be no order as to costs. H.B.T./A-281/L Appeal accepted.