2005 PLP 1053 (MLD)

The petitioner who is an Ahmadi was promoted as Superintendent (BS‑16) in the Auqaf Organization. The said order of promotion was re‑called on 6‑8‑1996 on the ground that proviso to section 5(1) of the Punjab Waqf Properties Ordinance, 1979 (IV of 1979) as inserted therein by Punjab Ordinance No.XIII of 1984, did not permit promotion of a non‑Muslim as an officer. The petitioner approached this Court in Writ Petition No.13894 of 1996.which was allowed vide order dated 18‑9‑2000 after finding that the petitioner was condemned unheard. After disposal of the said writ petition the order dated 6‑8‑1996 was re called.

2. The case of the petitioner is that vide order dated 21‑5‑2001, he was allowed move‑over from BS‑16 to BS‑17 and was also granted selection grade on the same date. Again, on 10‑10‑2001 the petitioner was put to notice that his promotion as Superintendent was illegal and vide order dated 29‑1‑2002, the order of promotion of the petitioner was re‑called. This petition is directed against the said order.

3. The learned counsel for the petitioner has made two submissions. Firstly that discrimination on the ground of religion alone is prohibited by Article 27 of the Constitution and, therefore, the proviso to section 5(1) of the Punjab Waqf Properties Ordinance is ultra vires. Secondly that a Superintendent is not an "officer" within the scope of the Punjab Auqaf Organization (Appointment and Conditions of Service) Rules, 1994.

4. The learned counsel for the respondent has defended the impugned order. In fact he had nothing much to say about the guarantee of Article 27 of the Constitution except that the proviso to section 5(1) prohibits appointment of a non‑Muslim in the Auqaf Organization as an officer. He relied on the Manual of Secretariat Instructions to contend that Superintendent in the Secretariat is an officer and normally heads a branch under the control of a Section Officer.

5. The submissions made by the learned counsel for the parties have been considered. It will be appropriated to reproduce the relevant extract from Article 27 of the Constitution:‑‑‑ "27. (1) 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". The guarantee against discrimination on the ground of religion is absolute and not subject to reasonable qualification or restriction. The exceptions to that said guarantee have been provided by the Article itself. Therefore, the proviso to section 5(1) added to the Punjab Waqf Properties Ordinance, 1979, (IV of 1979) by the Punjab Ordinance No.XIII of 1984 is repugnant to the Article 27 and is thus void by virtue of operation of Article 8 of the Constitution.

6. As far as the second contention of the learned counsel for the petitioner that a Superintendent is not an officer is concerned, it is not required to be determined in this case. Otherwise also the job description of the Superintendent has not been placed on the record. As far as the Punjab Auqaf Organization, (Appointment and Conditions of Service) Rules, 1994 are concerned, a Schedule is appended thereto. Part‑I, thereof describes the Functional Unit, Administration and Management. A number of posts in Grades 16, 17, 18 and 19 have been included therein along with their method of recruitment while Part‑II of the Schedule describes the Ministerial Establishment and other Miscellaneous Posts. There are Grades 16 and 17 posts in Part‑II of the Schedule which includes the post of Superintendent. This part even includes the posts of Assistant Director and Public Relations Officer. Therefore, on the basis of Part‑II of the Schedule, in the absence of job description of the post of the Superintendent, it is not possible to say whether he is or is not an officer for the purpose of, the proviso to section 5(1) of the Punjab Ordinance No.IV of 1979.

7. For what has been stated above, this petition is allowed with costs which are fixed at Rs.5,

000. H.B.T./S-345/L Petition allowed