2002 PLP (C (PLC(CS))

4. In the case of Salina Mughal the appellant's application for admission against a seat reserved for candidates "belonging to District Lasbella" was rejected on the ground that her father had originally obtained Domicile Certificate from Sindh though subsequently he also obtained one from District Lasbella. Following the principal of law decided in Sumaeea Zarren's case their Lordships after noticing that the appellant was born in Lasbella and obtained her education upto Matriculation from that place found her to belong to District Lasbella and reversed the judgment of the High Court.

5. From the above pronouncement of the Honourable Supreme Court it appears quite clear that for purposes of recruitment into the service of Pakistan in terms of the proviso to Article 27(1) "a person belonging to an area could only mean a resident or an inhabitant of a particular area which he treats or intends to treat as his permanent abode". Mr. Munib Ahmed Khan 8 learned counsel for the petitioners appearing in most of the petitions emphatically argued that if a candidate's right to enter public service was to be inevitably tied down‑ to his father's place of birth or origin, the fundamental right guaranteed to every citizen to reside or settle in any part of Pakistan would be completely nullified. We find a great deal of force in the arguments as it has indeed been held in the above-quoted case of sumaeea Zareen that such right cannot be impaired or defeated directly or indirectly least of all through mere statutory rules made by the executive.

6. It is also interesting to note that rule 6(c) stipulates that emigrant candidate will be admitted against a quota of a Province/area from where his parents have obtained Domicile Certificate and have resided for three years (though as such condition of residence will be deemed to be fulfilled if they had to reside elsewhere owing to exigencies of service). Similarly, a candidate whose parents have not migrated to Pakistan will be admitted against a quota of the Province/area where he himself is domiciled and has resided for a period of three years. In other words a person who is a migrant from a foreign country and applied for citizenship of Pakistan can choose the place where he intends to reside and will be admitted against the quota reserved for that area. On the other hand a person who is born citizen and has guaranteed fundamental right to reside or settle anywhere in Pakistan must inevitably be tied down to the place of birth or origin of his father though he may not have any connection with that place or area.

7. The next question that has engaged our attention is whether the impugned rule could be sustained on the basis of Articles 25, 27 and 37 of the Constitution. In the first place as noted above, a migrant is entitled to be appointed against the quota of the area in respect of which he obtained certificate of domicile. Indeed a person having acquired a certificate of domicile from one area can always surrender the same and obtain one in respect of another area in terms of rule 28‑A of the Citizenship Rules. This has been acknowledged in the office memorandum dated 20‑9‑1971 issued by the Establishment Division (appearing in ESTACODE 1999 Edition) and acknowledged by Justice (R) Zafar Hussain Mirza in his note record as Chairman of the Federal Public Service Commission which was placed for our consideration by the learned Dy. A.‑G. and from which we have been greatly benefited. The child of a person who had migrated to Pakistan may be entitled to be admitted into Government service as a candidate from an area in respect whereof his father has obtained a certificate of domicile. On the other hand such facility will not be available to the child of a person whose father happened to be born or originated from one of the Province in Pakistan and such child would inevitably be tied down to the area of birth or origin of his father. Such qualification in our humble view is not premised upon any rational basis and is, therefore, liable to be struck down as being violative of Article 25 of the Constitution.

8. We may now examine the validity of the impugned rule against the touchstone of Article 27 of the Constitution and the permissible limits of quota reservations. Indeed rationale for reservation in Federal Services of seats against Provincial/Regional quotas is not far to seek. The uneven state of economic development and educational opportunities in different parts of the country/sub‑continent was recognised right from the formation of Pakistan, and therefore, the need for affirmative action in aid of the people from less developed areas, was recognized. It is with this object that quota system was introduced in the Federal Services even before the separation of E East Pakistan. The 1973 Constitution apart from guaranteeing equal protection of laws to all citizens through Article 27 expressly guaranteed that no citizen qualified for appointment in the service of Pakistan shall be discriminated against on the ground of Race, Religion, Caste, residence or place of birth. However, apart from making out the obligation of the state to enable the people of different areas to participate in all forms on National activities including employments in Services in terms of Article 37‑F, it acknowledged the necessity to maintain the quota system for a limited duration in the form of the Site proviso to Article 27(1). This was done ostensibly in the hope that by the time of expiry of this duration regional disparities would be over come and residents of less developed areas would cease to remain at a disadvantaged position in comparison to their more fortunate compatriots in other areas. This duration which was fixed at 10 years from the commencing day in the original Constitution was extended to 20 years through P.O‑1 of 1985 and to 40 years through the Constitution (16th Amendment. Act 1999).

9. At this stage it may be appropriate to reproduce Article 27 which reads as under:‑‑ "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: Provided that, for a period not exceeding (twenty) years from the commencing day, posts may be reserved for persons belonging to any class or area to secure their adequate representation in the service of Pakistan: Provided further that, in the interest of the said service, specified posts or services may be reserved for members of either sex if such posts or services entail the performance of duties and functions which cannot be adequately performed by members of the other sex. (2) Nothing in clause (1) shall prevent any Provincial Government or any local or other authority in a Province, from prescribing, in relation to any post or class of service under that Government or authority, conditions as to residence in the Province, for a period not exceeding three years, prior to appointment under that Government of authority.

10. Evidently the mere fact that quota reservation for persons belonging the country/sub‑continent was recognised right from the formation of Pakistan, and therefore, the need for affirmative action in aid of the people from less developed areas, was recognized. It is with this object that quota system was introduced in the Federal Services even before the separation of E East Pakistan. The 1973 Constitution apart from guaranteeing equal protection of laws to all citizens through Article 27 expressly guaranteed that no citizen qualified for appointment in the service of Pakistan shall be discriminated against on the ground of Race, Religion, Caste, residence or place of birth. However, apart from making out the obligation of the state to enable the people of different areas to participate in all forms on National activities including employments in Services in terms of Article 37‑F, it acknowledged the necessity to maintain the quota system for a limited duration in the form of the Site proviso to Article 27(1). This was done ostensibly in the hope that by the time of expiry of this duration regional disparities would be over come and residents of less developed areas would cease to remain at a disadvantaged position in comparison to their more fortunate compatriots in other areas. This duration which was fixed at 10 years from the commencing day in the original Constitution was extended to 20 years through P.O‑1 of 1985 and to 40 years through the Constitution (16th Amendment. Act 1999).

9. At this stage it may be appropriate to reproduce Article 27 which reads as under:‑‑ "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: Provided that, for a period not exceeding (twenty) years from the commencing day, posts may be reserved for persons belonging to any class or area to secure their adequate representation in the service of Pakistan: Provided further that, in the interest of the said service, specified posts or services may be reserved for members of either sex if such posts or services entail the performance of duties and functions which cannot be adequately performed by members of the other sex. (2) Nothing in clause (1) shall prevent any Provincial Government or any local or other authority in a Province, from prescribing, in relation to any post or class of service under that Government or authority, conditions as to residence in the Province, for a period not exceeding three years, prior to appointment under that Government of authority.

10. Evidently the mere fact that quota reservation for persons belonging to a particular area or class in terms of the 1st proviso (which is an exception to the general rule) shows that such reservation is not otherwise permissible under the main clause (1) of Article

27. In fact in the case of Mushtaque Ahmed Muhal v. The Honourable Lahore High Court (1997 SCMR 1043) which was decided after the expiry of the 20 years duration and before the enactment of the 16th Amendment Act, the Honourable Supreme Court found quota reservation to be constitutionally invalid and one had the occasion to respectfully follow the same view in Itefaque Hussain v. Chairman Federal Public Service Commission (C.P. 3 of 1998, dated 11‑5‑1999). Indeed the validity of such reservation is no longer an issue. However, the proviso in question being an exception to the general rule needs to be strictly construed according to well‑settled principles. When the above proviso only stipulates that 'reservation of posts could be made for persons belonging to a class or area ostensibly with the object of wiping out the disadvantage that they have suffered on account of residing in less developed areas leading to unavailability of equal opportunities; we. failed to see how the Public Service Commission by their own interpretation of the expression "belonging" (which is inconsistent with the law declared by the Honourable Supreme Court) could extend that privilege to persons who have enjoyed the best educational facilities in developed areas merely on the ground of their ancestry. We, therefore, find the impugned rule to be ultra vires the first proviso to Article 27(1) of the Constitution.

11. Moreover, it is equally important to keep in view that Article 271 cannot be read in isolation and the Constitution must be read and construed as an organic whole. Indeed the Honourable Supreme Court in Mushtaque Mohal's case examined the Constitutional validity of quota reservation by I reading Article 27 in conjunction with Articles 2A, 18 and 25 of the Constitution. In Shireen Munir v. Province of Punjab (PLD 1990 SC 292) the arguments that the right to admission in educational institutions must be considered strictly according to Article 22 without reference to Article 25 was expressly repelled. Against the above ethos considering Articles 25 and 37‑F perhaps quota reservation for a limited duration for the purpose of enforcing real equality of opportunities can indeed be justified on the yardstick of Article

25. Indeed the affirmative action for the benefit of disadvantaged sections of the people can always be sustained on the test of reasonable classification. The United States Supreme Court in Griswold v. Connecticut (1965) 381 US 479) was able to uphold affirmative action remedies for African Americans holding that a policy which promotes change to alter the substantive conditions of the segment of a population with the object of bringing them at par with others could not be struck down on the ground of violating equal protection. The same view appears to have been taken by the Supreme Court of India in Paradeepjain v. Union of India (AIR 1984 SC 1428). We have also taken a similar view in the case of Itefaq Hussain mentioned above. In our humble opinion, therefore, though quota system may be justified it tends to provide weight to residence of certain areas on the basis of disadvantages and lack of opportunities that they have faced because of inadequacy or inequality of education opportunities. There is no principle upon which it can be sustained on the ground of ancestry of a particular candidate for this reason too we find the dispensation ultra vires the Constitution.

12. It may also be interesting to note that clause (2) of Article 27 which is also in the nature of an exception to, the general rule provides that a Provincial Government may impose conditions as to maximum of three years residence in that Province for the purpose of seeking employment under the Government or a local authority of the Province. It is indeed anomalous that a person dray be entitled as of right to appointment under a Provincial Government, the moment he completes three years residence in that Province but would be debarred from seeking employment against the quota of that Province in a Federal Service though he might have been born and lived in that province all his life merely because his father hailed from a different Province.

13. For the foregoing reasons, we would allow all these petitions and direct the respondents Federal Public Service Commission to allocate seats to different candidates on the basis of their permanent residence or the areas in which they have lived and acquired a substantial part of their education irrespective of the area to which their respective fathers belonged. H.B.T./Z‑29/K Petition allowed.