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1997 SCMR 1043

Per Ajmal Mian, J.

(a) Constitution of Pakistan (1973), Articles 18, 27, 25 & 2A

—Articles 18, 27, 25 & 2A of the Constitution of Pakistan (1973) are designed, intended and directed to bring about an egalitarian society based on Islamic concept of social justice—Zonal or quota system in matter of services—Validity–Freedom of trade, business or profession—Safeguard against discrimination in service—Equality of citizens—Expression “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” in Art. 18 of the Constitution of Pakistan (1973), includes the right of a citizen to compete and participate for appointment to a pst in any Federal or a Provincial Government Department or an attached department or autonomous bodies/corporation etc., on the basis of open competition which right he cannot exercise unless the process of appointment is transparent, fair, just and free from any complaint as to its transparency and fairness—Such an objective enshrined in the Constitution cannot be achieved unless the publicity is made through public notice for inviting applications with the aid of leading newspapers having wide circulations—Appointments to various posts by the Federal Government, Provincial Governments, statutory bodies and other Authorities, either initial or ad hoc or regular, without inviting applications from the public through the press is violative of Art. 18 read with Art. 2A of the Constitution of Pakistan—Fact that in spite of expiry of the period of twenty years, some of the departments in violation of Art. 27 of the Constitution have been inviting applications on the zonal basis was deprecated by Supreme Court—Concept of zone of quota system runs counter not only to Art. 27(1) read with Arts. 2A & 25 of the Constitution but also to the Holy Qur’an.

Clause(1) of Article 27 of the Constitution (which relates to one of the Fundamental Rights guaranteed by the Constitution), enjoins that no citizens 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 original first proviso to the above clause provided that for a period not exceeding ten 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. The above period of ten years was substituted by twenty years through President’s Order No. 14 of 1985. The said period of twenty years had expired on 13-801993 as the Constitution was enforced on 14-8-1973. Proviso 2 to above clause lays down that in the interest of the service of Pakistan, 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. By virtue of clause (2) of the Article any Provincial Government, or any local authority in a Province has been empowered to prescribe the requirement of residence in the Province for a period not exceeding three years in relation to any post or class of service.

Clause (1) of Article 27 of the Constitution guarantees that every citizen will have equal opportunity for appointment in the service of Pakistan if otherwise qualified. Whereas clause (2) thereof also guarantees equal opportunity to all the citizens with the condition that any Province or local authority may prescribe the requirement of three years residence in the Province concerned in order to ensure that the locals of that Province should have preferential right to have a job as compared to an outsider, who has no domicile and has not been residing for a period of three years in that Province. This condition has been provided apparently in order to ensure that Provincial autonomy which the Constitution guarantees to the Federating Units. [p. 1054] E

Article 27 of the Constitution is to be read in conjunction with inter alia Articles 2A, 18 and 25 of the Constitution. Article 25 of the Constitution guarantees that all citizens are equal before law and are entitled to equal protection and that shall not be discriminated on the basis of sex alone. Inter alia the above Articles of the Constitution are designed, intended and directed to bring about an egalitarian society based on Islamic concept of social justice. [p. 1055] F

Appointments to various posts by the Federal Government, Provincial Governments, Statutory Bodies and other Public Authorities, either initial or ad hoc or regular, without inviting applications from the public through the press, is violative of Article 18 read with Article 2A of the Constitution, which has incorporated the Preamble to the Constitution as part of the same and which inter alia enjoins equality of opportunity and guarantees for creation of an egalitarian society through a new order, which objective cannot be achieved unless every citizen equally placed or situated is treated alike and is provided equal opportunity to compete inter alia for the posts in aforesaid Government set-ups/institutions. [p. 1053] D

The Constitutional requirement, inter alia, enshrined in Article 18 of the Constitution which enjoins that “Subject to such qualifications, if any, as may be prescribed by law, ever citizens shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business” includes the right of a citizen to compete and participate for appointment to a post in any Federal or a Provincial Government department or an attached department or autonomous bodies/corporations etc. on the basis of open competition, which right he cannot exercise unless the process of appointment is transparent, fair, just and free from any complaint as to its transparency and fairness. Such an objective enshrined in the Constitution cannot be achieved unless due publicity is made through public notice for inviting applications with the aid of the leading newspapers having wide circulation. [p. 1052] C

The fact that in spite of expiry of the period of twenty years some of the departments in violation of Article 27 of the Constitution, have been inviting applications on the zonal basis was deprecated by Supreme Court. Clause (1) of Article 27 of the Constitution in fact enshrines what has been commanded by Allah and his Holy Prophet (p.b.u.h.). [p. 1057] J

The period of 20 years contained in first proviso to clause (1) of Article 27 of the Constitution has already expired and, therefore, there cannot be any justification to violate the express mandate of clause (1) of Article 27 of the Constitution that 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. [p. 1061] Q

There is no difference between the individuals of mankind on the basis of race, colour and territory. All human beings are equal in eyes of Allah as He created man from a quintessence of clay. [p. 1057] K

It is manifest that the Holy Qur’an inter alia enjoins that there is no difference between the individuals of mankind on the basis of race, colour and territory and that all human beings are equal in the eyes of Allah. The fittest person who is strong and trustworthy is to be employed. It is evident that the concept of zone of quota system runs counter not only to the above clause (1) of Article 27 read with Article 2A and Article 25 of the Constitution, but also to the Commandment of Allah as ordained in the Holy Qur’an. The quota system has not served Pakistan interest but on the contrary, it has generated parochial and class feelings resulting into disunity. [p. 1058] L

The religion of Islam is founded on the principle that there is no difference between the individuals of mankind on basis of race, colour and territory. From its advent, it abolished all class and caste system which was obtaining at that time in the world. [p. 1060] M

Petition dismissed.

Advocate for the Petitioners :
Asif Saeed Khan Khosa, Advocate SC

Advocates for the Respondents :
Mumtaz Ali Mirza, Deputy Attorney-General and
Shabbar Raza Rizvi, Additional Advocate-General, Punjab

Dates of hearing : 25th, 27th and 31st March, 1997.

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