1998 PLP (C (PLC(CS))

This view was further approved and confirmed by the Hon'ble Supreme Court of Pakistan in Munawar Khan's case (1993 SCMR 1287). The relevant observation at page 1294 is reproduced hereunder: -- "What we have noticed in all these cases which are under consideration before us is that appointments of both the parties contesting the appointments were made without such a advertisement, publicity or information in the locality from which the recruitments were to be made. In view of the Constitutional requirement and the interim order already passed in Human Rights Case 104 of 1992 it is expected that in future all appointments shall be made after due publicity in the area from which the recruitments had to take place

This will, however, not apply to short-term leave vacancies or to contingent employment." Indian Supreme Court also considered aspects of appointments in Channabasavih's case AIR 1965 SC 1293 and relevant observation at page 1296 is reproduced hereunder: - "It is very unfortunate that these persons should be uprooted after they had been appointed but if equality and equal protection before the law have any meaning and if our public institutions are to inspire that confidence which is expected of them we would be failing in our duty if we did not, even at the cost of considerable inconvenience to Government and the selected candidates do the right thing. " The Supreme Court of Pakistan also considered this aspect in (1995 SCMR 999) and the relevant observation is as follows: "The petitioner has challenged the judgment of the learned Judge in Chamber. Whereby revision petition of respondent No. l was accepted and the appointment of the petitioner against the regular post of Chowkidar in the Government Primary School. Kot Attal Sharif, Tehsil Kulachi, was declared to be void, ab initio and illegal. (2) In the year 1983, respondent No. 1 was appointed as a part-time Bahishti-cum-Chowkidar, however, in the year 1988 at the time of regularisation of the post, his service was terminated on 15-3-1988 while on the recommendation of a M.P.A., the petitioner was appointed in his place. Respondent No. 1 challenged the action of respondents Nos. 2 and 3 but did not succeed. However, by the impugned judgment, relief was granted to him. (3) Similar question as involved in the present petition came up for consideration in Munawar Khan v. Niaz Muhammad and others (1993 SCMR 1287) where it was held that "allocation of such quotas to the Ministers/M.N.As./M.P.As. and appointments made thereunder are all illegal, ab initio and have to be held so by all Courts, Tribunals and authorities". The appointment made on the recommendation of M.P.A. was held to be void ab initio and illegal and while allowing appeal the order of appointment of the appellant was restored. In the facts and circumstances of the case, for doing complete justice, we refuse to grant leave." The Supreme Court of Pakistan also considered this aspect in 1996 SCMR 1349 and relevant observation is as follows: "While inquiring into various complaints of violation of Fundamental/Human Rights, it has been found that the Federal Government, Provincial Governments, Statutory Bodies and the Public Authorities have been making initial recruitments both ad hoc and regular, to posts and offices without publicity and properly advertising the vacancies and at times by converting ad hoc appointments into regular appointments. This practice is prima facie violative of Fundamental Right (Article 18 of the Constitution) guaranteeing to every citizen freedom of profession. Subject to notice to all concerned, and subject to final orders after full hearing in the matter, it is ordered as an interim measure that the violation of this Fundamental/Human Right shall be discontinued forthwith. Steps shall immediately be taken to rectify so as to bring the practice I in accord with the Constitutional requirement. " The relevant Articles of Constitution are as under: -- "

18. Freedom of trade, business or profession--Subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business: Provided that nothing in this Article shall prevent

(a) the regulation of any trade or profession by licensing system, or (b) the regulation of trade, commerce or industry in the interest of free competition therein, or (c) the carrying on, by the Federal Government or a Provincial Government, or by a corporation controlled by any such Government, or any trade, business, industry or service to the exclusion, complete or partial, or other persons.

19. The Constitution of a country is a kind of "social contract" which binds a people, society and a State. The terms of the contract foster feeling of interdependence, of belonging to an entity and of adherence to law. An honest commitment to the goals set out in the Constitution ensures promotion of nationhood and stability of a system. Feelings of patriotism do not sprout out of a big arsenal. Those are not borne in the battlefields where warring camps shed colossal human blood in the name of narrow nationalism, not, in the "Chambers of Politics" where high sounding cliches are spun out to inflate one's ego and innuendos are hurled to humble the opponents. These are borne in schools which impart good education, in the fields where tiller gets wages for his blood and sweat, in factories where the labourer gets a fair deal, in the hospitals which provide medical care to the sick, in the Courts, which dispense justice and in a socio-political system where merit reigns supreme .If we want a system to be stable and if we want the people to defend the system we will have to create conditions where they feel that the system protects their fundamental rights which were recognised in the social contract. A people fight for something, which is worth fighting for, worth living for and worth dying for Contemporary history is testimony to the fact that systems have collapsed less on account of foreign invasion and more on account of interns: mismanagement and on account of betrayal to the social contract " Indian Supreme Court again like Hon'ble Supreme Court of Pakistan has reiterated in AIR 1992 SC 80 Similar view was taken by AJK High Court in "Javed Iqbal Khawaja v. Azad Government of the State Jammu and Kashmir" (PLD 1994 Azad J&K 26). The judgment of the High Court of AJK was confirmed and approved in 1994 CLC 2339. Similar controversy was considered in Aziz Ahmad's case (1997 PLC (C.S.) 356). The relevant observation at page 375 is reproduced as under: -- "

19. The Constitution of a country is a kind of social contract which binds a people, society and a State. The terms of the contract foster feelings of interdependence, of belonging to an entity and of adherence to law an honest commitment to the goals set out in the Constitution ensures promotion of nationhood and stability of the system. Feelings of patriotism do not sprout out of a big arsenal. These are not borne in the battlefields where warring camps shed, colossal human blood in the name of narrow nationalism not in the Chambers of Politics' where high sounding cliches are spun out to inflate one's ego and innuendos are hurled to humble the opponents. These are borne in schools which impart good education, in the fields where tiller gets wages for his blood and sweat, in factories where the labourer gets a fair deal, in the hospitals which provide medical care to the sick, in the Courts which dispense justice and in a socio-political system where merit reigns supreme. If we want a system to be stable and if we want the people to defend the system we will have to create conditions where they feel that the system protects their fundamental rights, which were recognised in the social contract. A people fight for something which is worth fighting for, worth living for and worth dying for contemporary history is testimony to the fact that systems have collapsed less on account of foreign invasion and more on account of internal mismanagement and on account of betrayal to the social contract. " The Scheme of our Constitution has set up the role of each and every organ. The superior Courts of Pakistan have also laid down a principle, as mentioned above, that each and every organ has to function independently, freely without interference by any other organ of the State. The abovementioned principles coupled with Articles 4, 5(2), 2A, 37 and 38 of the Constitution of Pakistan lead us to irresistible conclusion that each organ should have, to remain within its own sphere. The superior Courts consistently observed/ considered and set aside the actions, which are not within the domain of the Authority or usurping the functions of other organs In spite of this principle, off and on, one organ usurps the power of the other organ. This is not a healthy sign. Our social and economic conditions compel us for the purpose of stability; that each and every organ should remain in its own sphere. All the surrounding circumstances reveal that we must obey the law and command of the Constitution. By doing this, basic structures of the Constitution will not be impaired which must remain in 'its original position to promote the cause of freedom, independence and mutual co-operation. In other words, all the organs should work as complement of each other to bring harmony, mutual understanding and respect instead of creating hindrances hatred and usurping the rights of others. Consequently, people of Pakistan will be benefited and thereby Islam shall spread in the country; because only Islam gives us a lesson of tolerance, fraternity and equality. If the above principles are maintained, then there will be no need of any punishment but every body will act from the core of his heart in accordance with the Injunctions of Islam and mandate of Constitution. It is essential for the existence of the country and the nation to act and remain within the ambit of its own sphere.

8. I am fortified by the observations of my learned brother Ihsan-ul- Haq Chaudhry, J, which he made in Dr. Shahina's case (1997 CLC 308) in the following words: -- 12 The concept of equality amongst the mankind was introduced for the first time by Islam. The Holy Prophet (peace be upon him) preached and practised equality throughout the life and sermon delivered on the occasion of last Hajj performed by the Holy Prophet (peace be upon him) is 4he first landmark in the history of mankind. It was made clear for all times to come that there is no difference amongst the individuals on the basis of race, dolour and territory. The relevant portion reads as under: -- 16 The Holy Prophet (peace be upon him) said in his address at the Hajjat-ul-Wida the last Hajj, performed by him, that

O! People, hear me, your Lord is one and your father is one. No Arab has any superiority over a non-Arab, nor any non-Arab over an Arab nor any white man over a black man, nor a black man over a white man save in respect of piety and fear of Allah'." The Federal Shariat Court examined the provisions in the Pakistan Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 and the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 and declared provisions pertaining to quota system in service repugnant to Injunctions of Islam. The judgment of the Federal Shariat Court in the case of Nusrat Baig Mirza (supra) was rendered in a Shariat petition, therefore, is binding on this Court in view of the Article 203-GG of the Constitution of 1973.

14. The functionaries of State are to work strictly within the sphere allocated to them. The relevant portion of judgment in the case of Mirza Zafar 'and 4 others (supra), reads as under: -- "20 It is only respondent No. 1 who illegally and without jurisdiction interfered in the matter sitting in his office. The days of royal decrees have one now. The functionaries of the state are to function strictly in accordance with the sphere allocated to them and in accordance with law. No Court or authority is entitled to exercise powers not vested in it. The learned counsel for the petitioners has rightly referred to the provision of Article 175 of the Constitution. The proposition can be approached from another angle that all citizens have an inalienable right to be treated in accordance with the law as per Article 4 of the Constitution of Islamic Republic of Pakistan. The action of respondent No. 1 being derogatory to the law and the Constitution is liable to be struck down. I find it not possible to express myself better than done by this Court in case of Mr. A.R. Azar, Deputy Chief Engineer, West, North-Western Railway, Lahore and others v. The Federation of Pakistan etc. PLD 1258 (W.P.) Lahore 185. 16 It is a matter of great regret that the executive instead of giving effect to the provisions of the Constitution unreasonably to position that it could still preserve the quota system even after the expiry of the protection period available under proviso to Article

27. Ch. Ijaz Ahmad, learned Advocate rightly argued that this amounted to amend the Constitution by circulars and policy letters. He cannot be countenanced. All acts, circulars, policy letters prescribing quota in service of Pakistan are ultra vires, and against Injunctions of Islam."

9. It is observed with regrets that respondents allowed their authority to be misused by the M.N.A./M.P.A. who had no such powers. The Punjab Civil Servants Act or the Rules made thereunder did not authorise the M.N.A./M.P.A. to pass such-like orders for appointment of respondent No.3. Respondents Nos. 1 and 2 while appointing respondents No. 3 in accordance with the wishes of M.N.A./M.P.A. acted without lawful authority as it was a case of dictatorial exercise of powers and not independent discharge of function. Such an exercise of powers under the dictate of public representatives has been held to be invalid in a number of judgments decided by the superior Courts of Pakistan and outside. In this regard reliance can be placed on the following judgments: -- "Ghulam Mohy-ud-Din's case (PLD 1964 SC 829); 'Syed Fayyaz Hussain Qadri's case (PLD 1972 Lah. 316); Aman Ullah Khan's case (PLD 1990 SC 1092); Abaidullah's case (1993 SCMR 1195); Gardhandas Bhanji's case (AIR 1952 SC 100): Orion Paper Mill's case (AIR 1970 SC 1498) and Sacm Labour Union's case (1946) 2 All ER 201).

10. The dictum of Supreme Court of Pakistan is binding on every organ of the State by virtue of Article 189 of the Constitution of Pakistan. The abovementioned series of judgments reveal that the Hon'ble Supreme Court has on each occasion, declared the actions of the Authorities, which are passed in violation of the law, Constitution, and amounts total of authority of other functionaries. Non-observance by the functionaries of the dictum aid down by the Supreme Court of Pakistan is violation of Article 189 of the Constitution. If all the prevailing circumstances i.e. judgments of the Supreme Court, action of the authorities and attitude of the public representatives put in juxtaposition, then it becomes crystal clear that the legislators and executive have refused to give due respect to the dictum of Supreme Court of Pakistan; which is non-congenial and conducive for the existence of the country, to run the State smoothly, mutual cooperation, respect and understanding. This situation will create chaos. So, in a word, it can be safely concluded that each organ must work within its limits prescribed by the Constitution and law.

11. In view of the foregoing facts, I am of the considered opinion that the interviews conducted by respondents Nos. 1 and 2 for appointment of respondent No. 3 and the merit list prepared in pursuant thereto has no sanctity in the law as appointment of respondent No. 3 was made by the competent Authority on the direction of the M.N.A.; vide Notification dated 20-3-1993. This aspect is also admitted by the Headmaster in his report and parawise comments.

12. Resultantly, the post is declared vacant and the respondents are directed to fill the same after considering all those applicants who have already applied pursuant to the advertisement given in "Daily Pakistan", dated 3-5-1992. A fresh merit list shall be prepared and appointment shall be made strictly in accordance with law.. This exercise shall redress the grievance of those applicants who had applied before the target date. Respondents Nos. l and 2 are directed to ensure compliance of this order within a period of two months from the date of announcement of this judgment.

13. A copy of this judgment shall be sent to the Secretary Education for information and necessary compliance. With the above observations this writ petition is accepted with no order as to costs. A.A./G-67/1 Petition accepted.