2015 P L C (C.S.) 346
[Balochistan High Court]
Before Ghulam Mustafa Mengal, C.J. and Muhammad Hashim Khan Kakar, J
MUHAMMAD AYAZ KHAN JOGEZAI and 2 others
Versus
GOVERNMENT OF PAKISTAN STATES AND FRONTIER REGIONS DIVISION,
ISLAMABAD and 31 others
Constitutional Petition No.320 of 2013, decided on 15th October, 2014.
Constitution of Pakistan ---
----Arts. 199, 25, 27, 33 & 247(1), (6) ---Instructions by Federal Government (1954) ---
Constitutional petition --- Civil service ---Appointments i n Federal Levies Force---Powers of the
President and Provincial Governor for making law for the area, which was different from
prevailing in the rest of the country ---Scope--- Petitioners had challenged the advertisement
inviting application for recruitment whereby appointments of Federal Levies Force were being
made by the Provincial Government ---Grievance of the petitioners was that appointments were
being made on the basis of Instructions of 1954 issued by the Federal Government in conflict
with the const itutional guarantees enshrined in Arts.25, 27 & 33 of the Constitution---Non -
availability of service rules of the Federal Levies Force ---Effect ---Federal and Provincial
governments could not rebut the contention of the petitioners and sought disposal of the matter
on the basis of 'Proposed Recruitment Criteria for Federal Levies'---Validity ---Law enforcement
agencies in Balochistan were faced with the acute shortage of manpower in a time when the
whole Province was being faced with the menace of terrorism ---Province of Balochistan was the
largest Province of the country and was presently engulfed by a severe level of militancy ---
Militants and terrorist groups' continuous murderous attempts, bomb blasts, target killings and
threats published in various prominent newspapers and through electronic media, including
pamphlets had created severe panic and a sense of insecurity in the whole Province and said facts
had led to an extra -ordinary situation which demanded extra -ordinary measures to be taken---
Pumping of fresh blood in the shape of recruiting youth in Federal Levies Force could be a very
productive step, which on the one hand would ameliorate the worse law and order situation in the
province and on the other hand would provide bread and butter to the joble ss youth of
Balochistan ---No relevant rules and regulations being in existence in the Province of
Balochistan, as a stop -gap arrangement, the Provincial Government was allowed by High Court
to make the recruitment on the basis of proposed formula ---High Co urt, however, formulated
certain terms for the said appointments ---Order accordingly.
Government of N. -W.F.P. v. Muhammad Irshad PLD 1995 SC 281; PLD 2010
(Supplement) Federal Statutes 644 and PLD 2013 Federal Statute Supplement 244 rel.
H. Shakil A hmed and Mujeeb Ahmed Hashmi for Petitioners.
Sher Shah Kasi, Dy. Attorney -General, Nizam -ud-Din Mengal, A.- G., assisted by Shai
Haq Baloch, Asstt. A.- G., Muhammad Akbar Durrani, Secretary, Government of Balochistan,
Home and Tribal Affairs Department, Waqar Hasnain, Director Operation, Balochistan Levies
Force and Naveed Akram, Section Officer (Judicial), Home and Tribal Affairs Department for
Respondents.
Date of hearing: 2nd October, 2014.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. --- The instant constitutional petition
carries the following prayer: ---
"It is accordingly respectfully prayed that it may be declared:
(a) That the advertisement dated 11th April, 2013 appeared in daily "Jang", Quetta, whereby
3000 appointments of Fede ral Levies Force are being made by the Provincial Government is
unconstitutional, unlawful and in excess of authority.
(b) That the Instructions of 1954 issued by the Federal Government are in conflict with the
constitutional provisions and of no legal e ffect, and on the basis thereof no appointments can be
made in the Federal Levies Force.
(c) Pending disposal of the petition, the operation of impugned advertisement dated 11th
April, 2013 may be suspended and the respondents may be restrained from maki ng any
appointments etc. in the Federal Levies Force.
(d) Any other order, as may be deemed fit and appropriate in the circumstances of the case
may also be passed along with the cost of the petition in the interest of justice."
2. The facts to be note d are that the Home and Tribal Affairs Department on behalf of
Government of Balochistan has published an advertisement in daily "Jang", Quetta of 11th April,
2013, inviting applications for filling up about 3000 various vacancies of Federal Levies Force
("FLF") through District Selection Committees in 28 districts of the Province of Balochistan. As
per the petitioners, the advertisement has been placed pursuant to a letter dated 27th February,
2013 of respondent No.1, calling upon the Government of Balochi stan to fill in the posts in
question for FLF in accordance with prevailing 1954 Instructions, policy and rules in vogue,
subject to the exemption granted by Election Commission of Pakistan ("ECP").
3. Mr. H. Shakil Ahmed, learned counsel for the petitioners, while making reference to
Article 246 of the Constitution of Islamic Republic of Pakistan, 1973 ("the Constitution"), stated
that there is no Federally Administered Tribal Area ("FATA") in Balochistan and, presently, the
FLF exists in 16 districts on ly, as such, the proposed recruitment is required to be made only in
the said districts. He further submitted that the proposed recruitment cannot be made in
accordance with the Instructions of 1954 dated 13th March, 1954 ("the Instructions"), purported
to have been issued by the order of Agent to the Governor General ("AGG") and Chief
Commissioner in Balochistan, which contained anomalies and are in conflict with the
constitutional provisions i.e. Articles 25, 27 and Article 33 of the principles of policy. While
concluding his arguments, he further submitted that, as per the Instructions, the appointments are
to be made in consultation with the sardars and tribal chiefs, whereas the tribal system in
Balochistan was abolished pursuant to the Sardari (Aboliti on) Act, 1976 ("the Act").
4. Mr. Nazim -ud-Din, learned Advocate -General ("AG"), duly assisted by Mr. Akbar
Durrani, Secretary, Home and Tribal Affairs Department, Government of Balochistan, was when
confronted with the contentions raised by the learned counsel for the petitioners, frankly
conceded that, due to the changed situation, it is not possible to make the required recruitment in
accordance with the Instructions. He also conceded that due to lack of required service rules of
the FLF, it will not b e possible to keep transparency in the appointment process.
5. Mr. Sher Shah Kasi, learned Deputy Attorney -General ("D.A. -G.") for Pakistan, while
giving reference to sub -Article (1) of Article 247 of the Constitution, submitted that the
executive author ity lies with the provincial government in the Provincially Administered Tribal
Areas ("PATA") and the directions of the Federal Government to fill up the vacancies in
question in accordance with the provisions of the Instructions are of directory in natur e and these
do not bound the provincial government to adopt the same.
6. At the very outset, it may be stated that the instant petition was instituted on 25th April,
2013 and on 29th April, 2013, the following order was passed: ---
"Till next date of h earing no further applications will be entertained and no examination
or interview in respect of the said posts may take place and no further appointments to be made.
Copy of this order passed today be sent to the respondents and respondents Nos.1, 2 and 3 are
directed to submit their respective comments; such comments to include the applicable law
whereunder appointments are sought to be made. Explanation with regard to
continuance/applicability of the Federal Levies Rules in Balochistan and whether the sa me are in
accordance with the said constitutional provision and the System of Sardari (Abolition) Act,
1976."
7. We have heard the learned counsel for the parties and after having gone through the
available record, are in agreement with Mr. Akbar Durrani , Secretary, Home and Tribal Affairs
Department that the law enforcement agencies in Balochistan are faced with the acute shortage
of manpower in a time when the whole province is being faced with the menace of terrorism.
Admittedly, Balochistan is the lar gest province of the country and is presently engulfed by a
severe level of militancy. Most of the roads often remain blocked on account of shutter down and
wheel jam strikes, observed by the militants, insurgents and separatists. It is worth mentioning
that due to continuous murderous attempts, bomb blasts, target killings, threats advanced by the
militants and terrorist groups, published in various prominent newspapers as well as through
electronic media, including pamphlets, severe panic and a sense of i nsecurity prevails in the
whole province.
8. All these facts have led to an extraordinary situation and every extraordinary situation
demands extraordinary measures to be taken. Pumping of the fresh blood in the shape of
recruiting of 3000 youth in FLF c an be a very productive step in this regard. It definitely will on
one hand ameliorate the worse law and order situation in the province and will on the other hand,
simultaneously, provide bread and butter to the jobless youth of Balochistan. It is also a proven
and unchallengeable fact that in Balochistan, like every disturbed area of the world, the
insurgents and troublemakers lure in the jobless youth for affecting their nefarious designs.
These perpetrators mainly remain at the back scene as catalyst an d utilize the immature fresh
youth for meeting their ill targets.
9. In this backdrop, reverting to the Instructions of 1954, we are of the considered view that
the same are not based on any reasonable ground. The members of Federal Levies, presently
working in 16 districts of PATA, stood deprived of the well -recognized safeguards that governed
the other civil servants of the province. The Instructions are extremely discriminatory and it do
not spell out the reasons why a separate service system is being set up in the areas. The
Instructions are replete of anomalies, which are in direct conflict with the constitutional
provisions.
10. Moving further, we are in agreement with the learned counsel for the petitioners that the
proposed recruitments cannot be made in accordance with the Instructions, which is, admittedly,
nothing but redundant and non- functional piece of paper and the same cannot be endorsed, being
in violation of the Constitution. The Instructions postulate two types of levies i.e. Tribal Ser vice
Levies, which denotes the collective service rendered by a tribe as a whole through its Sardars
and an Agency Levies, which are those that are employed directly under Government on all the
administrative work and paid individually every month. The Ins tructions contained a number of
anomalies, which are in conflict with the constitutional provisions including Articles 25 and 27
of the Constitution. It is also worth mentioning that as per clause 16 of the Instructions, the
appointments are to be made wit h consultation of the Sardars, which is also in direct conflict
with the provisions of the Act of 1976. Similarly, the publication in question is also silent
regarding the types of levies i.e. Tribal Service Levies and Agency Levies.
11. We are conscious of the fact that the Federal Government, the Parliament, the Provincial
Government and the Provincial Assembly have been precluded by Article 247 from exercising
their respective functions in the tribal areas and the same have been entrusted to the Presid ent
and Governor, but that does not necessarily imply that the President and the Governor have a
free will or will have a free hand for all time to come in making laws of their own choice for
these areas. The combine study of objectives resolution and clau se (6) of Article 247 of the
Constitution places a special responsibility on the President and Governor in respect of these
areas. The extraordinary power vested in them must be exercised in a manner that would
facilitate the introduction of representative administration in those areas and, thus, bring them at
par with the other parts of the country. Any legislative and administrative measure, which
obstructs or delays this ultimate goal must be held to be beyond the bounds of this power. It is
necessary th at when the President or the Governor makes a law for the areas, which is different
from that prevailing in the rest of the country, it must be accompanied by good reasons, because
omission in this regard would possibly lay the President or the Governor open to the charge of
arbitrariness. The Hon'ble Supreme Court of Pakistan, while dealing with the proposition in
question in the case of "Government of N. -W.F.P. v. Muhammad Irshad (PLD 1995 SC 281),
observed as under: ---
"There is no doubt whatsoever that the President and the Governor are high functionaries
of the State and one can normally assume that in exercising their power under Article 247 they
are and will be motivated by a high sense of responsibility but then it has also to be kept in mind
that they are not the chosen representatives of the people for exercising legislative and executive
powers in the areas. The theme throughout the Constitution is of responsible Government which
is answerable to the people. It is therefore necessary that when t he President or the Governor
make a law for the Areas which is different from the prevailing in the rest of the country it must
be accompanied by good reasons. The omission in this regard would possibly lay the President or
the Governor open to the charge of arbitrariness."
12. At this juncture, learned D.A.- G. and A.- G., while feeling not themselves in a position to
rebut the contentions of the learned counsel for the petitioners, extended a proposal for the just,
fair and equitable redress of the grievances of the petitioners. According to them, this petition
can be disposed of, if the provincial government is allowed to make the required recruitments on
the basis of written proposal submitted in the Court, describing it as the "Proposed Recruitment
Criteria for Federal Levies", which reads as under:
PROPOSED RECRUITMENT CRITERIA FOR
FEDERAL LEVIES
BASIC RECRUITMENT
Age 18-30 years No relaxation
Height 5.4 inches (minimum) 5 marks
Chest 31x32.5 inch (minimum) 5 marks
Running 2 KM in 12 minutes 15 marks
First in running will be
awarded 10 extra marks.
Second will get extra in
running 9 nine marks
Third will get in running
extra 8 marks.
Interview 10 marks
Qualification Matric (minimum) 10 Marks B.A./F.Sc. 5 marks
B.A./B.Sc. 5 marks
M.A./MSc. 5 marks
Sports Professional player 10 marks International distinction
10 marks
Distinction at national
level 5 marks
Written test Urdu/English/General Knowledge 30 marks.
Grand Total: 100
13. It may be noted that the learned D.A.- G., while making a reference the Federal Levies
Force Regulation, 2010, printed in PLD 2010 [Supplement] Federal Statutes 644, and Federal
Levies Force (Service) Rules, 2012, published in PLD 2013 Federal Statutes Supplement 244,
promulgated in the sister Province of Khyber Pakhtunkhwa, submitted that the Draft Provincially
Administered Tribal Areas Levies Force, Balochistan Regulation, 2014 and Draft Provincially
Administered Tribal Areas Levies Force, Balochistan (Ser vice) Rules, 2014, are under process
and will soon be enforced in the tribal areas. He further submitted that the directions, purported
in letter dated 27th February, 2012 for filling up the posts in question in accordance with the
Instructions of 1954 and rules in vogue, are directory in nature and not mandatory, as under
Article 247 of the Constitution, the executive Authority lies with the Provincial Government in
the PATA. As per his contention, the concerned of the Federal Government is only up to the
extent of keeping transparency in the process of appointment.
14. Be that as it may, the learned counsel for the petitioners and the learned A. -G. are in
agreement, and the proposal of Secretary, Home and Tribal Affairs Department, which is
consented by all the stakeholders, we find it just, fair and practical to allow the Provincial
Government to make the recruitment in question through the Selection Committee, comprising
of Director -General Levies, Deputy Commissioner and Assistant Commissioner concerne d as
well as the representative of the Home and Tribal Affairs Department in accordance with the
afore -quoted Formula.
15. The only live and controversial issue, which requires to be answered, is as to whether the
appointments in question are to be made throughout 28 districts or only in 16 districts, where the
FLF already exists. In this regard, it would be relevant to mention that Mr. Akbar Durrani,
Secretary, Government of Balochistan, Home and Tribal Affairs Department, stated that the new
posts are i n addition to the existing levies force and no new force is being created. As is evident
from the record that the structure of FLF exists only in 16 districts of the Province, hence,
recruitment against the vacancies of FLF in the other 15 districts would be an exercise, leading to
the wastage of these vary vacancies, for, in absence of any structure, the recruitment process
would be nothing, but throwing of the resources into a well.
16. In such view of the matter, as neither regulations nor any rules ma de thereunder are in
existence in the Province of Balochistan, as such, as a stopgap arrangement, the Provincial
Government is allowed to make the recruitments in question on the basis of afore -quoted
Formula and the instant petition is disposed of in the following terms:---
(i) the appointment of levies personnel in the FLF shall be made by the Selection Committee
strictly in accordance with the afore- quoted recruitment criteria;
(ii) the posts in question, created by the Federal Interior Ministry SAFR ON should be equally
distributed among the 16 districts i.e. Quetta, Pishin, Chagai, Noshki, Zhob, Sherani, Loralai,
Barkhan, Musakhail, Killa Saifullah, Sibi, Harnai, Ziarat, Kohlu, Dera Bugti and Killa Abdullah;
(iii) Secretary, Home and Tribal Affairs Department (respondent No.3) and Secretary Law
and Parliamentary Affairs Department, Government of Balochistan, are directed to approach the
worthy Governor of Balochistan and the Ministry of SAFRON for necessary legislation in
respect of FLF;
(iv) the candidates to be selected on district level basis;
(v) before issuance of appointment letters, the degrees and other particulars of the candidates
shall be verified, and
(vi) in case of any complaint in the process of selection, the Appellate Authorit y, consisting
upon Secretary, Home and Tribal Affairs Department and the Commissioner of the concerned
Division initially will be the competent forum to redress the issue.
Before parting with the judgment in hand, the members of the selection committees , who
have been entrusted with the responsibility of selecting suitable candidates, exercise an important
trust. They must acquit themselves honestly, to the best of their ability and without any fear or
favour. They must not tolerate interference from any source including from members of
Parliament or the ministers. In case of any malpractice or breach of applicable rules or violation
of prescribed criteria, the members of the committees will be exposed to departmental as well as
criminal liability. The ap pointments in question should be made purely on merit in a transparent
manner. Office is directed to send the copy of this judgment to the Secretary, Home and Tribal
Affairs Department, Director General, Levies Force Balochistan as well as to the Commissio ners
and Deputy Commissioners of the concerned districts.
SA/74/Bal. Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.