2003 PLP (C (PLC(CS))

11. At this stage it may be pertinent to examine the rationale for reservation of seats contemplated by the first proviso to Article 27(1) and consider whether it causes any substantive discrimination violating the scheme of the Constitution or the Islamic principles of equality. What needs to be kept in view is the fact that because of uneven economic development and lack of appropriate educational facilities in certain parts of the country the residents of those areas came to be so handicapped that they were unable to compete with their more fortunate counterparts in the developed areas on the basis of straight open competition. Their relatively poorer performance in examination did not reflect any inherent lack of intelligence or capabilities but only reflected the absence of facilities available to them, which could, harness their talent. To attain the objective of genuine equality of opportunities rather than mere nominal equality in accordance with the true spirit of Islam, the Constitution makers stipulated enabling provisions to under the affirmative action, for the benefit of the under‑privileged. For instance while Article 22(3)(b) forbids discrimination in admission to State aided educational institutions on grounds of race, religion, or place of birth, Article 22(4) enable the public authority for making provisions for the advancement of any socially or educationally backward clause of citizens. Similarly while clauses (1) and (2) to Article 25 guarantee equality and equal protection of law to all citizens and forbid sex discrimination, clause (3) of the said Article enables to state to make special provisions for protection of women and children. Likewise in the principles of policy clause (a) of Article 37 enjoins the state to promote with special care the educational and economic interests of backward classes or areas and clause (t) requires it to enable the people of different areas through education training and other methods to participate fully in all forms of national activities including employment in the service of Pakistan. The first proviso to Article 27(1) in our humble opinion needs to be read in the same context. Apparently at the time of the enforcement of the Constitution it was considered that the socio economic disparties between the different areas would be substantially over come within 10 years. However, since such object could not be achieved for some reasons the period was extended to 20 years and subsequently to 40 years.

12. Since more or less similar socio‑economic conditions operate in India it might be worthwhile to quote the following observations of the then Chief Justice Bhagwati in Pardeep Jain v. Union of India (AIR 1.984 SC 1420) in upholding certain reservations of seats for residents of particular areas:‑ "Now the concept of equality under the Constitution is a dynamic concept. It takes within its sweep every process of equalisation and protective discrimination. Equality must not remain mere idle incantation but it must become a living reality for the large masses of people. In a hierarchical society with an indelible feudal stamp and incurable actual inequality, it is absurd to suggest that progressive measures to eliminate group disabilities and promote collective equality are antagonistic to equality on the ground that every individual is entitled to equality of opportunity based purely on merit judged by the marks obtained by him. We cannot countenance such a suggestion, for to do so would make the quality clause sterile and perpetuate existing inequalities. Equality of opportunity is not simply a matter of legal equality. Its existence depends not merely on the absence of disabilities but on the presence of abilities. Where, therefore, there is inequality, in fact, legal equality always tends to accentuate it. What the famous poet William Blake said graphically is very true, namely 'One law for the Lion and the. On is oppression'. Those who are unequal, in fact, cannot be treated by identical stands; that may be equality in law but it would certainly not be real equality. It is, therefore, necessary to take into account de facto inequalities which exist in the society and to take affirmative action by way of giving preference to the socially and economically disadvantaged persons or inflicting handicaps on those more advantageously placed in order to bring about real equality. Such affirmative action though apparently discriminatory is calculated to produce equality on a broader basis by eliminating de facto inequalities and placing the weaker sections of the community on a footing of equality with the stronger and more powerful sections so that each member of the community, whatever is his birth, occupation or social position may enjoy equal opportunity of using to the full his natural endowments of physique, of character and of intelligence."

13. It may be pertinent to mention that the above judgment was cited with approval by the Supreme Court in the recent case of Attiyya Bibi Khan v. Federation of Pakistan (2001 SCMR 1161) and while striking down reservations of seats for different categories their Lordships, by majority upheld reservation for students domiciled in FATA, under developed districts, Azad Kashmir and Northern areas s well as disabled persons. In Miss Gul Rookh Sarfaraz v. Government of N.‑W.F.P. (2001 SCMR 1729) their Lordships approved an admission policy which allowed reservation of seats for candidates who had actually studied in the FATA region and rejected the claim of one who acquired education in urban areas merely on the basis of her domicile of the FATA region.

14. With respect to an alternate contention Mr. Hassebur Rehman emphatically argued that in an Islamic society the judiciary had to perform an extremely delicate function and utmost care needed to be taken in effecting judicial appointments. Learned counsel extensively relied upon the observations of Ajmal Mian, J. (as his Lordship then was) relating to position of judiciary in an Islamic society which were enumerated in Para. 22 of the judgment and may be reproduced as follows‑‑ "From the above‑quoted Verses from Holy Qur'an and other literature on the subject, inter alia the following is deducible: (i) that the Holy Qur'an repeatedly enjoins that one who believes in Allah, His Prophet Muhammad (p.b.u.h), Qur'an and Sunnah, should stand out firmly for justice, as witnesses to Allah, even as against himself or his parents, his kin, rich and poor; (ii) that the hatred of others should not make you severe to wrong and depart from justice; (iii) that the Judges are not to be led by personal likes or dislikes, love or hate; (iv) that the Judges should maintain strict impartiality and even treatment in the Court inter se between the litigant parties notwithstanding that one of the parties might be very powerful and influential; (v) to a Judge, all are equal in the eye of the law. As God dispenses justice among his subjects, so a Judge should judge without any distinction whatsoever; (vi) that a judge must exhibit patience and perseverance in scanning the details, in testing the points presented as true and sifting facts from fiction and when truth presented itself to them, he must pass judgments without fear, favour or prejudice; (vii) that the power to appoint inter alia Judges is a sacred trust; the same should be exercised in utmost good faith. Any extraneous consideration other than the merit is a great sin entailing severe punishment; (viii) that while selecting Judges the Authority concerned should be very careful. It should select people of excellent character, superior caliber and meritorious record. Abundance of litigations and complexity of cases should not make them lose their temper; (ix) that a Judge should not be corrupt, convetous or greedy; (x) that a Judge should be paid handsomely so that his needs are fully satisfied and he is not required to beg or borrow or resort to corruption; (xi) that a Judge must be a man of having deep insight, profound knowledge of Shariah, God‑fearing, forth right, honest, sincere man of integrity; (xii) that a Judge must be upright, sober, calm and cool. Nothing should ruffle his mind from the part of rectitude; (xiii) that Judges should be given such a prestige and position in the State that none of the Government functionaries can over lord them or bring them harm.

15. Learned counsel particularly referred to the observations in sub -para. (vii) above to contend that merit and merit alone ought to be the only criterion in the appointment of Judges. Indeed there could no cavil with the above weighty observations of the Honourble Supreme Court, but the important question to be considered is whether mere number of marks secured by a candidate in a written test and an interview can be treated as the sole criterion of his merit and the attributes that a person possess for being able to perform the onerous duties of a Judge. Indeed mere knowledge of law or ability to answer questions put to a particular person with a reasonable amount of confidence cannot reflect the several qualities, which a Judge ought to pass in terms of the above formulation. At the same time it is important to keep in view the fact that a candidate, at the threshold of his career who does not perform as well as his other colleagues in an examination owing to insufficiency of proper educational facilities cannot be dubbed as less meritorious. Once again it may be proper to quote the following observations in Paradeep Jain's case:‑‑ "It is axiomatic that talent is not the monopoly of the residents of any particular State; it is more or less evenly distributed and given proper opportunity and environment, every one has a prospect of rising to the peak. What is necessary is equality of opportunity ...."

16. From the above, we are of the opinion that mere grant of some weightage to persons who have not held the availability of opportunities to demonstrate their true talent cannot be treated as something repugnant to the concept of merit visualized in the aforesaid judgment. Indeed there could be no cavil with the weighty observations of the Honourable Supreme Court in the celebrated cases of Al‑Jihad Trust (PLU 1996 SC 324) and Mushtaque Ahmed Mohal (1997 SCMR 1043) relating to the standards for appointments in the service of Pakistan and the judicial services in particular in Islamic society. At the same time, however,, terms of the proviso to Article 27(1) and several other provisions casting an obligation upon the State to take affirmative action for the benefit of residents of less developed areas and other under privileged groups cannot be overlooked. We may mention that into recent cases decided by the Honourable Supreme Court in namely Attiyya Bibi Khan v. Federation of Pakistan (2001 SCMR 1161) and Miss Gul Rookh Sarfaraz v. Government of N.‑W.F.P. (2001 SCMR 1729) reservation of seats in medical colleges for residents of less developed and socially backword areas was upheld in the larger public interest. Fortunately, the rule applicable in the instant case in the form of the notification dated 16‑1‑1971 seeks to preserve a delicate balance by attempting to ensure that some measure of weightage is granted to the residents of rural areas who may not have had the same facilities to harness their true talent and potential as compared to their more fortunate colleagues in the urban areas but without sacrificing the basic criterion of merit.

17. As is evident from the ,terms of the notification reproduced in Para. 5 above, the 40% of the vacancies for direct recruitment are to be filled from candidates residing in the cities. of Karachi, Hyderabad and Sukkur and the remaining 60% from those residing in smaller towns and rural areas. What is important to keep in view, however, is that such reservations are not stipulated in absolute or mandatory terms, but merely as guidelines which are declared to be "advisable" to be followed. Again para. 2 of the aforesaid notification expressly stipulates that while filling vacancies in the above manner the requirements of public service should be fully kept in view and in conforming with these guidelines lowering standards of selections ought to be avoided. As against the above, the office memorandum dated 31‑8‑1973 with respect to employments in the Federal Government reads as under:‑‑ "It has been decided that with immediate effect the following merit and provincial/regional quotas shall be observed in filling vacancies reserved for direct recruitment to posts under the Federal Government which are filed on all‑Pakistan basis:‑‑ Merit quota 10% Punjab (including Federal area of Islamabad) . 50% Sindh (including Karachi) .. 19% The share of Sindh will be further sub‑allocated in the following ratio: Urban areas namely Karachi, Hyderabad And Sukkur. . 40% of 19% Or 7.6% Rural areas i.e. rest of Sindh excluding Karachi, Hyderabad and Sukkur. 60% of 19% Or 11.4 % N.‑W . F.P .............................................. 11.5 % Baluchistan 3.5 % Northern Areas and Federally Administered Tribal Areas .. 4% Azad Kashmir . 2%

18. A comparison of the two stipulations would manifestly demonstrate that while the rules of the Federal Government provides for a rigid reservation of quotas on Provincial/regional basis, those operating in this province confer a reasonable amount of discretion upon the selection authority in departing from the guidelines if the exigencies of public service or the need to maintain high standards are required. Indeed the Registrar of this Court as well as the learned A.‑G. attempted to argue that under all circumstances the 60:40 ratio ought to be maintained, but we regret we are not impressed by this contention. It was argued that the rule creates two distinct categories of candidates from the urban and rural areas and Para.2 only stipulates that there should be no lowering of standards from within each group and candidates from each of the two groups should be selected on the basis of merit' from within that group. In our view apart from the question whether such rigid classification would meet the test of constitutionality such an interpretation would render Para.2 of tile notification altogether meaningless because it is undisputable that even in tile case of rigid categorization only the more meritorious candidate from within a particular group could be selected. We are, therefore, of the view that though normally the 60:40 ratio is to be maintained a departure may be justified in case the requisite number of candidates from particular group are unable to meet a minimum threshold of qualifying marks which may be determined by a selection authority or if the disparity between the marks obtained by a candidate not qualifying for selection from one group and another selected from the other group is too high.

19. In view of the above interpretation of the rule in question we decided to examine the marks sheet of the 117 candidates who were called for interview and the list of the candidates recommended for appointment made available to us. We noticed that candidate securing less than 45% marks in the written test were not called for interview and it is evidence that minimum standards were laid down by the Selection Board. Upon going through the list of the marks obtained by the candidates recommended for appointments, which transpired that 20 candidates (about 42%) from the urban areas arid 28 (about 58%) from the rural areas were selected. The last candidate from the first category had obtained 47 marks and the last from the second category secured 42 marks. It is, therefore, evident that a mere difference of 5% marks could not be, treated as lowering of standards by any stretch of imagination. We are, therefore, of the clear opinion that the recommendations were made entirely in consonance with the letter and spirit of the rules and the applicable Constitutional principles. For these reasons we find no force in this petition. We tray add that the petitioners Nos.1 and 3 could only obtain 41 and 42 consolidated marks and therefore, even if the quota system had not been followed there was no possibility of their selection. H.B.T./A‑286/K Petition dismissed.