P L D 1972 Lahore 336 (PLP)

(i) Reference to 6 percent quota for Scheduled Castes is made under the heading, "Recruitment Policy". (ii) Under the heading, "Appointments" in para. 13 of the Notice, it is categorically stated "success in examination confers no right to appointment". (iii) The Notice itself is liable to modification. In view of the above provisions of the Notice, the submission is that it cannot be treated as "law" within the meaning of Article 178 and the judgments relied upon by the petitioner in support of the contention that the Notice constitutes "law` are distinguishable, because in the instant case the question involved is one of appointment, which is an administrative or executive function. Whereas the questions falling for consideration in the Judgments cited by counsel for the petitioner involved the question, whether an action taken against any person was legal or not and it is argued that it is only in the latter category of cases that the Judgments relied upon by the petitioner would apply.

20. On the merits it is submitted, that the petitioner is not a member of the Scheduled Castes. Attention is drawn to the Government of India (Scheduled Castes) Order, 1936. and it is pointed out that in the list relating to the Province of Punjab, the Qaisrani Tribe of Dera Ghazi Khan has not been included.

21. Again under the Constitution of 1956, Ordinance XVI of 1957, called Scheduled Castes (Declaration) Ordinance, 1957, was enacted and a number of castes were declared as Scheduled Castes vide section 2 thereof. These were as follows:‑ Ad Dharmi Dhed Nat Bangali Dumna Od Barar Gagra Pasi Bawaria Gandhila Perna Bazigar Halal‑Khore Ramdasi Bhangi Jatia Sansi Bhanjra Kalal Spela Bhil Khatik Sarera Chamar Kolhi Shikari Chanal Kori Sirkiband Charan Kuchria Sochi Chuhra, or Balmiki Marija, or Marecha Wagri Degi and Koli Megh Dhanak Menghwar Here again the Qaisranis are not included. The learned counsel maintains that this Ordinance was kept alive by the Constitution of 1962 as an existing law. Learned counsel has, therefore, agued that when the 1967 Notice was issued by the Public Service Commission it was the "Scheduled Castes" referred to fn said section 2 of the Ordinance of 1957, that were in con templation of the Public Service Commission.

22. On the question of the effect of the provisions of the 1962‑Constitution, it is submitted that Chapter 2 of the Con stitution, of 1962, dealing with the Principles of Policy, consists of two Articles, namely, Article 7 and Article

8. Under Article 8 the various Principles of Policy are set out in 21 paragraphs. Out of these paragraph 3 refers to safeguarding the interests of minorities and affording opportunity to them to enter into services of Pakistan. But there is no reference to services of Pakistan in paragraphs 4 and

5. In paragraph 5 it is desired simply that Under‑privileged Classes "be brought on terms of equality with others". Counsel argues that if while issuing the notice of 1967 the Public Service Commission had desired the fixation of any quota for Under‑privileged Classes, referred to paragraph 5, there is no reason why the Public Service Commission should not have used the expression "Under privileged Castes" instead of the expression, "Scheduled Castes". He submits that the Notice itself keeps the distinction between "Scheduled Castes" and persons residing in certain tribal areas, quite clearly in view. The former, as a matter of policy were to be given 6 per cent. Province‑wise appointments, while so far as residents of certain tribes were concerned, they were to be given relaxation of period of three years in age.

23. The learned counsel also submits that the petitioner in his application categorically stated that he was not a member of the Scheduled Castes, but only claimed the age relaxation and filed a certificate for that purpose. In this connection, attention was drawn to his application for appearing in the Central Superior Service Examination, 1967. It was pointed out that as against question No. 13‑A, the petitioner had taken an unequivocal position, that he was not a member of the Scheduled Castes. The question and answer‑ are reproduced below:-- Q. 13‑A. Are you a member of Scheduled Caste/Buddhist community, if so attach certificate In support of your claim vide para. 9 of the Instructions? A. No Sir. It is further pointed out that according to the Public Service Commission's Notice, it was incumbent upon a person claiming to belong to a scheduled Caste to submit a certificate from the District Magistrate in support of his claim. This certificate also was not filed at any stage by the petitioner. The petitioner, therefore, could not claim any appointment on the basis that he was a member of the Scheduled Caste. Counsel states that even according to the understanding of the petitioner, he was not a member of the Scheduled Castes.

24. So far as the Schedule prepared by the Provincial Government in the notification dated 2‑5‑1968 is concerned, it is argued that this only deals with the question, "Under‑privileged Castes" and that even in the noting on the file showed that the purpose was only to afford relaxation of age‑limit to the persons included to the Under privileged Castes" and, therefore, reliance on the said schedule for the purposes of claiming appointment as a member of the Scheduled Castes was not well founded.

25. It is lastly submitted that the petitioner has obtained a very low position in the Examination, namely, the 219th position, on the merit list. He was, therefore, not fit for the award of any post. It is, therefore, stated in conclusion, that there is no merit in the claim of the petitioner either in law or in equity.

26. I am inclined to agree with the submissions of the learned counsel for the respondents that the Schedule attached to the notification of the West Pakistan Government dated 2‑5‑1968, is not referable to the "Scheduled Castes" mentioned in the Notice of the Public Service Commission, but is merely a schedule of "Under‑privileged Classes " and, therefore, no advantage of it can be taken by the petitioner.

27. A careful scrutiny of the Notice, dated 2‑8‑1967, of the Public Service Commission, shows that two kinds of conces sions were allowed to candidates appearing in the Competitive Examination. The first type of concession was allowed to five different categories, namely, (i) the Scheduled Castes and Buddhist Community; (ii) the recognised tribes of the Special (Tribal) Areas of the North‑West Frontier and former Baluchistan, the former Frontier and Baloch States and the former tribal areas of Dera Ghazi Khan District of West Pakistan; (iii) the tribes in the Excluded Area of East Pakistan (Chittagong Hill tracts); (iv) the tribes residing in the district of Mymen singh; and (v) the aboriginal tribes residing in the districts of Rajshahi and Dinajpur irrespective of the religion they profess. The second kind of concession was by way of reservation of seats for candidates belonging to the different provinces/areas of Pakistan. In brief 20 % seats were to be allocated on merit basis while the remaining 80 % seats were to be shared among candidates of different provinces/areas, as follows:‑ East Pakistan . . . . . . . . 40% Areas comprising former Punjab and Bahawalpur State. . . . . . . . . 23% Karachi. . . . . . . . . . . . 2% Areas comprising former Sind, Khairpur, N. W. F. P. and Frontier State, and Tribal areas Baluchistan and Baluchistan State and Tribal areas, Azad Kashmir, Gilgit and Baltistan and Kashmir Refugees . . . . . . . . . . 15 %. Out of these seats, a quota for Scheduled Castes up to 6 %, against the quota of the provinces/areas of origin of the Scheduled Caste candidates concerned, was reserved for members of the Scheduled Castes vide para. 3, Appendix IV of the Notice. The contention raised is that the petitioner, who was only claiming the first type of concession when he sat for the Examination, namely, relaxation of the maximum age‑limit, under para. 4 (ii) (a) (it) of the Notice, also became entitled to the second concession, conferred to the category of "Scheduled Castes", referred to in para. 4 (ii) (a) (i), during the period between the taking of the examination and the declaration of his result, on account of the issuance of the West Pakistan Government Notification, dated 2‑5‑1968, during this period, whereby his tribe was included in the Schedule attached to the said notification. This contention, however, cannot be accepted.

28. The term "Scheduled Castes" has acquired a particular significance and special meaning in the sub‑continent of India and Pakistan. It refers to those tribes and races of Hindus who were previously very backward and depressed, to sections of the Hindu Community, who were extremely down trodden. These persons were, nevertheless, claimed by the High Caste Hindus, to be Hindus fir the purpose of counting their numbers, but were refused social and political rights by them. The Govern ment of India Act, 1935, took cognizance of the pitiable condition of the Hindus Community and after specifying them, provided a number of seats in the Legislature of each province for them. The noteworthy fact is that under the Constitution Act of 1935, r it was the castes, tribes and races of backward Hindus, who were to constitute the Scheduled Castes. After Independence, the Constitution of Islamic Republic of Pakistan, 1956 continued in force the above provisions of the Government of India Act, 1935, until the Parliament by law, provided otherwise (vide Article 204 thereof). A law on the subject was promulgated on 12th November 1957, entitled the "Scheduled Castes (Declara tion) Ordinance, 1957". The preamble whereof recited that it was "expedient to declare certain castes of non‑Muslims to be Scheduled Castes for the purposes of the Constitution . . . . . " and accordingly certain castes of non‑Muslims were declared to be Scheduled Castes for the purposes of the Ordinance and specified in the schedule to the said Law (which is reproduced in para. 21 above). This law was kept in force by the provisions of the 1962 Constitution (vide Article 225 (1)) and it is still in force. In the face of the above law, which is still in force, wherein certain castes of non‑Muslims were declared as Scheduled Castes, it is difficult to appreciate, how a Muslim resident of the former Tribal Areas of Dera Ghazi Khan District can lay claim to a seat reserved for the backward classes of non‑Muslims, called the Scheduled Castes.

29. The argument that the persons included in the Schedule of "Under‑privileged Classes" attached to the West Pakistan Government Notification dated 2‑5‑1968, prepared in pursuance of the directive of para. 5 of Article 8 (relating to the Principles of Policy of the 1962‑Constitution) should be treated as "Scheduled Castes" because in the present context the "Under‑privileged Classes" are synonymous with the "Scheduled Castes", cannot possibly be accepted. The "Scheduled Castes" are castes of non‑Muslims specified in the Schedule to the Scheduled Castes (Declaration) Ordinance, 1957, whereas the "Under‑privileged Classes" are the castes, races and tribes belonging to the Tribal areas of the former West Pakistan and, therefore, a totally different category. A reference to the Schedule of the "Under privileged Classes", attached to the West Pakistan Government Notification of 2nd May 1968, moreover reveals that none of the castes, tribes and races included in the Scheduled Castes (Declaration) Ordinance, 1957, are included therein, whereas Muslim Castes like Syeds, Pathans, Legharis and Mazaris etc. are included in it. In the said Schedule, in fact, the "Under privileged Classes" belonging to tribal areas alone are specified and the " Under‑privileged Castes" identified. This becomes apparent from the scrutiny of the Schedule because in it the Under‑privileged Classes belonging to the following areas only are specified:‑ (a) Swat State (b) Chitral State (c) Malakand Agency (d) Dir State (e) Mohmand Agency (f) Khyber Agency (g) Kurram Agency (h) Hazara Frontier Region (i) Peshawar Frontier Region (j) Amb State (k) Kohat Frontier Region (l) Tribes residing in the merged Area of Hazara District. (m) Tribes residing in the merged area of Mardan District. The persons residing in:-- (a) Bannu Frontier Region. (b) South Waziristan Agency. The tribes of:-- (a) Zhob District; (b) Tribal (Special) Areas of Sibi District; (c) Marri Tribal Area; (d) Bugti Tribal Area; (e) Chaghl District; and (f) Loralai District are specified. Thereafter specification of the Under‑privileged Classes belonging to Kalat Division is given. So far as the Karachi Division is concerned, the Under‑privileged Classes of Lasbela District only are mentioned. So far as the Sargodha Division is concerned, only four castes of Mianwali District are included. Under the Multan Division only 9 castes of persons belonging to Dera Ghazi Khan District are included. Lastly reference is made to Bahawalpur Division whereunder 24 castes of persons resident of Cholistan Area are included. The Schedule further shows that no races, castes and tribes from Lahore Division and, indeed, of several other Divisions of West Pakistan are, at all, mentioned in the said Schedule. It is, therefore, obvious that the Schedule of "Under‑privileged Classes" wherein the under‑privileged castes and tribes have been identified by the West Pakistan Government bas nothing to do with the Scheduled Castes" of the late West Pakistan Province. Firstly, because none of the castes, races and tribes recognized by the "Scheduled Castes (Declaration) Ordinance, 1957, are included in the above Schedule, secondly, the Scheduled Castes were resident throughout the former Province of West Pakistan, whereas the 1968‑Schedule specified some castes existing in some tribal areas of the said Province. Thirdly, the notification of the West Pakistan Government, dated 2‑5‑1968 neither covers the same field as the Scheduled Castes (Declaration) Ordinance, 1957, nor can it, in law, repeal the Schedule to the said Scheduled Castes (Declara tion) Ordinance, 1957 a Central Law already in force. These circumstances show clearly that the "Scheduled Castes" and "Under‑privileged Classes" arc completely separate and distinct categories. Therefore, the persons belonging to the races, tribes and castes mentioned in the Schedule attached to the notification dated 2‑5‑1968, issued by the West Pakistan Government cannot be construed to be members of the "Scheduled Castes" referred to in the Notice of the Public Service Commission, dated 2‑8‑1967 and for whom reservation of 6 seats was made.

30. It may be mentioned in passing that if the interpretation contended for by the petitioner, that after the issuance of the notification of the West Pakistan Government, dated 2‑5‑1968, the 'Scheduled Castes' are the castes, tribes and races specified in the Schedule to the said notification, is accepted, one possible consequence would be that although the Central Public Service Commission, when it issued the Notice for the 1967 Competitive Examination, on 2‑8‑1967, it was giving two concessions to members of the "Scheduled Castes" namely, the races, tribes and castes referred to in the Scheduled Castes (Declaration) Ordinance, 1957, but before it could announce the final result, on account of the issuance of a notification by the West Pakistan Government (on 2‑5‑1968), the second concession stood withdrawn from the erstwhile "Scheduled Castes" for whom it was intended, and stood transferred to another category, namely, some sections of the Under‑privileged Classes belonging to tribal areas. The said interpretation cannot obviously be accepted.

31. The upshot is that there is no force in this writ petition. In this view of the matter it is not necessary to decide the preliminary objection raised to the maintainability of the writ petition, weighty though some of them are. In conclusion, this writ petition is dismissed, but without any order as to costs. Petition dismissed.