2025 P L C (C.S.) 47
[Balochistan High Court]
Before Muhammad Hashim Khan Kakar, CJ and Shaukat Ali Rakhshani, J
GHULAM MURTAZA and 4 others
Versus
GOVERNMENT OF BALOCHISTAN through Chief Secretary and 3 others
C.P. No.313 of 2023, decided on 30th July, 2024.
(a) Constitution of Pakistan ---
----Arts. 27 & 199---Appointment ---Recruitment policy ---Quota allocation based on classes
and areas ---Legality ---Contention of the petitioner was that appointments in Government
services should be made on Provincial level without observing any area based quota ---
Validity ---Allocation of reserved seats at villages, union council, tehsil and municipal
committee or corporation on ascending order meets the objectives of the quota system as
enshrined in 3rd proviso of Art. 27 of the Constitution ---Representation of citizen of any
class or area in the service of Pakistan, squarely falls within the exclusive domain of the Executive based upon the trichotomy of the powers, i.e., legislature, which is vested with the function of law making, the executive with its enforcement; and the judiciary of interpreting
the law ---Thus, High Court can neither assume the role of policy maker nor that of law
maker unless the policies assailed are based on mala fide or mis -exercise of authority---
Recruitment policy ensured error free and transparent merit based recruitment of teachers, aiming to align the human resources and system in Secondary Education for the purposes of recruitment against the vacant posts to fill up the gap and reduce shortage of human resource--- Policy had also been carved to provide full opportunity to the competing
candidates on merits, based on transparency, fair competition and uniform recruitment procedure amongst aspirants of different union councils, districts and zones ---Constitution
petition was dismissed, in circumstances.
Punjab Public Service Commission v. Hassnain Abbass 2021 SCMR 1017 rel.
Dr. Shahbaz Mujtaba Ghauri v. Punjab Public Service Commission through its
Chairman Lahore and others (Writ Petition No.257665/2018) distinguished.
(b) Constitution of Pakistan ---
----Arts. 25 & 27--- Civil service ---Quota system ---Exception to general rule of equality---All
citizens are equal before law and are entitled to equal protection of law with the prevention of discrimination on the basis of sex, however, Art. 25 simultaneously mandates that nothing in this Article shall prevent the State from making any special provision for the protection of women and children ---Basically quota system is enshrined under Art.27 of the Constitution
but with an exception to the general rule of equality before law as enunciated under Art.25 and safeguard against discrimination in services provided for under Art. 27 of the Constitution.
(c) Constitution of Pakistan ---
----Art. 27 ---Civil service ---Quota system ---Adequate representation of people ---Legislative
rationale behind reservation of seats for specified classes and areas explained.
(d) Constitution of Pakistan ---
----Arts. 27 & 254--- Protection for a period of 40 years prescribed in Art.27 of the
Constitution ---Scope ---Period of 40 years mentioned in Art.27 of the Constitution is also
protected by Art.254 of the Constitution, which states that "if a thing or an act as ordained by the Constitution is not done within the stipulated period, it shall not become invalid or
ineffective by reason only that it has not been done within the period specified".
Pasban Pakistan v. Federation of Pakistan and others Constitutional Petition No.D -
1906/2020 rel.
(e) Words and phrases ---
----"Quota"--- Definition.
Manzoor Ahmed Rehmani for Petitioners.
Zahoor Ahmed Baloch, Additional Advocate General ("AAG") assisted by Najam -ud-
Din Mengal, Deputy Attorney General ("DAG") for Respondents.
Muhammad Akram Shah for Respondent No.4.
Date of hearing: 26th June, 2024.
JUDGMENT
SHAUKAT ALI RAKHSHANI, J. ----The instant constitutional petition has been
filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973
("Constitution") by the petitioners, which carries the following relief;
"It is, accordingly respectfully prayed that this Hon'ble Court may kindly be pleased
to declare the impugned advertisement dated 17.03.2023 published in daily 'Jang',
'Mashriq' Quetta as well as the impugned recruitment policy dated 03.05.2019 issued
by Secretary Education Department in contravention of Article 27 of the Constitution
as well as any shape of quota system i.e., Regional, Zonal, district or Union Council basis in the service of Government, after the date i.e., 13.08.2013, as illegal, unlawful, without lawful authority and of Government of Balochistan may be directed to make necessary amendments in the relevant Rules, in accordance with constitution.
Further, this Hon'ble Court may kindly be pleased to direct the Government of Balochistan to make appointments in the Government services on provincial level without observing any quota in the violation of constitution and by allowing all the people to complete for the same on open quota.
Any other relief, which this Hon'ble Court deems fit and proper may also be granted, in the interest of justice".
2. Facts necessary for disposal of the instant petition are that the petitioner seeks
annulment of the advertisement dated 17.03.2023 published in daily newspapers pursuant to the recruitment policy dated 03.05.2019 issued by Secretary Education Department, Government of Balochistan ("GoB") on the basis of quota system i.e., Regional, Zonal, District and Union Council in the Education Department being in violation of Article 27 of the Constitution.
3. In response to the notices issued by this Court, respondents Nos.2 and 3 filed para
wise comments, contesting the petition strenuously on numerous grounds and as such prayed for dismissal of the petition for being misconceived.
4. Heard. Record perused. Paramount question involved in the matter at hand is whether
the advertisement for various posts in the Education Department, the quota at Regional, Zonal, District and Union Council level on the basis of recruitment policy dated 03.05.2019 is in contravention with Article 27 of the Constitution or otherwise?
5. For ease of understanding, it would be just and appropriate to reproduce Article 27 of
the Constitution, which reads as under: -
"27. Safeguard against discrimination in services.---(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 [forty] 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".
6. Before adverting to Article 27 of the Constitution and proviso thereto, we would like
to dilate upon the goals of the recruitment policy dated 03.05.2019. The recruitment policy impugned herein manifests to ensure error free and transparent merit based recruitment of teachers, aiming to align the human resources and system in Secondary Education for the purposes of recruitment against the vacant posts to fill up the gap and reduce shortage of human resource. The policy has also been carved to provide full opportunity to the competing candidates on merits, based on transparency, fair competition and uniform recruitment procedure amongst aspirants of different union councils, districts and zones. In this regard under the policy ibid, suggestions offered by the Services and General Administration Department ("S&GAD") vide letter No.SO( -III)2 -22/2019- Edu/5270- 5364
dated 03.05.2019, duly approved by the Chief Minister Balochistan are reproduced herein below for ease of reference;
"V. The following suggestions offered by the Services and General Administration Department (S&GAD) vide letter No.SO(R -1)5(35)S&GAD -2018/1826 dated 2nd of
May 2019 and duly approved by the Hon'ble Chief Minister Balochistan.
a) Merit list of rural areas should be caused on Union Councils basis and urban areas
on Municipal Committee/Corporation basis, as boundaries of villages are not defined properly;
b) Quota for minorities and persons with disabilities (PWDs) should be allocated from
the concerned U.C and Municipal Committee/Corporation.
c) Upper age limit should include latest general relaxation announced by the
Government of Balochistan.
d) the District Recruitment Committee should include District Accounts Officer as directed by the Hon'ble Chief Minister and should be responsible to monitor the entire process of screening to ensure merit based selection by prevention of any illegal/corrupt practices such as cheating; impersonation etc. The Deputy Commissioner or District Education Officer should personally put their initials on all the answer sheets to preclude any chance of their replacement. The DRC should allow holding of screening test after making sure that appropriate arrangements are in place to do so.
e) The worthy Chief Secretary under his own signatures may write to all the Deputy Commissioners, being Chairman of the Recruitment committee, directing them in strict terms to ensure merit based selections at any cost. The must be present at their headquarters on the day screening test is organized by the Testing Service to personally monitor the process.
f) Administrative Secretaries may be assigned districts to monitor the process particularly the performance of the DRCs on the screening day".
Further, this Hon'ble Court may kindly be pleased to direct the Government of
Balochistan to make appointments in the Government services on provincial level without observing any quota in the violation of constitution and by allowing all the people to complete for the same on open quota.
7. The word "quota" is a universally accepted concept in various jurisdictions, which has
been defined in Black's Law Dictionary as "a proportional part or share, the proportional part of demand or liability, falling upon each of those who are collectively responsible for the whole". We are mindful of Article 27 of the Constitution which stipulates that all citizens are equal before law and are entitled to equal protection of law with the prevention of discrimination on the basis of sex. However, it simulta neously mandates that nothing in this
Article shall prevent the State from making any special provision for the protection of
women and children. Basically quota system is enshrined under Article 27 of the
Constitution but with an exception to the general rule of equality before law as enunciated under Article 25 and safeguard against discrimination in services provided for under Article ibid of the Constitution.
8. Article 27 of the Constitution states that no citizen otherwise qualified for
appointment in the service of Pakistan shall be discriminated against in respect of any such Article on the ground of race, religion, caste, sex, residents or place of birth with proviso that the period shall not exceed 40 years from the commencing day. It further stipulates that the posts may be reserved for persons belonging to a class or area in order to secure their adequate representation in the service of Pakistan in such a manner as may be declared by an Act of Majlis -e-Shoora (Parliament).
Bare reading of Article 27 of the Constitution makes it abundant clear that
appointment in the civil services of Pakistan must be made upon merits without any discrimination, however, it is not an absolute law, but subject to the law of adequate representation of the people of backward classes and areas of Pakistan. It appears that the legislative rationale behind reservation of seats for specified classes and areas are enacted to meet the very objectives of a true federation, while considering the factors of poverty, lack of education, opportunity and irony of feudal and patriarchal realities. The framers of the Constitution were very cognizant of past, present and future life standards of the citizens, by foreseeing the hardships and impediments, thus they have intentionally left a space by giving time for bringing equality in all spheres of life for each citizen for a prosperous and developed Pakistan for all on equal basis. The apex Court in the case of Punjab Public Service Commission v. Hassnain Abbass (2021 SCMR 1017) while dealing with the question
of appointments made on the basis of special zone category has set at rest the issue, wherein the question relating to Article 27 of the Constitution has been answered elaborately. Relevant para thereof is as intra;
"12. The argument of learned counsel for the Appellants that 40 years period provided in the Constitution has expired is misconceived and fallacious. It is evident from a plan reading of third proviso to Article 27 of the Constitution that necessary amendments have been made in the Rules of 1974 in accordance with the mandate provided by the Constitution and the same has been found by us to be in consonance with the provisions of Article 27(1) of the Constitution. This aspect of the matter was considered by a three member Bench of this Court in Constitution Petitions Nos.34 and 71 of 2007, 10 and 11 of 2018 and Civil Petition No.1750 of 2018. Vide judgment dated 06.12.2018, this Court came to the conclusion that legislation put in place by the competent legislature for redressal of under representation of an class or area in the service of Pakistan is neither ultra vires nor violates Article 27 (1) of the Constitution. Reference in this regard may also usefully be made to a judgment of this court reported as Mushtaq Ahmed Mohal v. Honourable Lahore High Court (1997 SCMR 1043)".
Further, this Hon'ble Court may kindly be pleased to direct the Government of Balochistan to make appointments in the Government services on provincial level without observing any quota in the violation of constitution and by allowing all the people to complete for the same on open quota".
9. The period of 40 years mentioned in Article 27 of the Constitution is also protected
by Article 254 of the Constitution, which states that "if a thing or an act as ordained by the Constitution is not done within the stipulated period, it shall not become invalid or ineffective by reason only that it has not been done within the period specified". The High Court of Sindh in case of "Pasban Pakistan v. Federation of Pakistan and others" in Constitutional Petition No.D -1906/2020 vide judgment dated 14.03.2022 held as under;
"23. The Constitution of Pakistan, 1973, introduced the first proviso of clause (1) of Article 27. It is related to the country's existing reserved posts/quota system. Its period was extended from time to time as well. It says that since the commencing day of the Constitution, its period shall not exceed forty years, it is deemed to expire in 2013. However, prior to expiry of said period, the parliament passed by the eighteenth amendment vide the Act No.X of 2020 to further amend the Constitution of Pakist an.
By such amendment, the legislature enacted the third proviso of clause (1) of Article 27 of the Constitution, and it was provided therein that 'under representation of any
class or area in the service of Pakistan may be redressed in such manner as may be
determined by an act of parliament'. Besides, the period of 'forty years' mentioned in clause (1) of Article 27 is also protected by Article 254, of the Constitution. It says "if a thing or an act as ordained by the Constitution is not done within the stipulated period it shall not become invalid or ineffective by reason only that it has not been
done within the period specified". Furthermore, 40 years period provided in the
Constitution has expired is misconceived and fallacious. As it is evident from a plain
reading of third proviso to Article 27 of the Constitution, that the "necessary amendments" have been made in the Rules of 1973 in accordance with the mandate provided by the Constitution".
10. Learned counsel for the petitioners mainly emphasized that Article 27 of the
Constitution categorically envisages that after lapse of 40 years continuing and proceeding with the quota system at any level at Regional, Zonal, District and Union Council is gross violation of Article 27 of the Constitution. In this regard, he also referred to the judgment
rendered in Writ Petition No.257665/2018 "Dr. Shahbaz Mujtaba Ghauri v. Punjab Public
Service Commission through its Chairman Lahore and others", which we believe has no
application and binding affect, more particularly in view of judgment of the apex Court of Hassnain Abbas's case supra (2021 SCMR 1017).
11. Reverting back to the instant policy, it is worthy to observe that the policy impugned
herein also has legal backing of rule 15 of the Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009, which stipulates as under;
"15. Zonal/District allocation of vacancies. Zonal/District allocation of the post for initial recruitment will be considered in the light of policy/procedure laid down by the
Government from time to time".
Provided that for the purposes of appointments in Primary and Middle Schools both for teaching and non- teaching posts, the merit shall be based on Village, Union
Council, Tehsil and District Level in ascending order".
12. Epitome upshot of above discussion is that under third proviso of Article 27 of the
Constitution, allocation of reserved seats at Villages, Union Council, Tehsil and Municipal Committee or Corporation on ascending order meets with the objectives of the quota system as enshrined under Article 27 of the Constitution, thus it can be concluded with no other view that the quota system has not lapsed, rather it has been extended while adhering to the third proviso of Article 27 of the Constitution by enactments and rules as well as policies framed thereunder and that representation of citizen of any class or area in the service of Pakistan, squarely fall within the exclusive domain of the executive based upon the tracheotomy of the powers, i.e., legislature, which is vested with the function of law making, the executive with its enforcement and the judiciary of interpreting the law, thus the Court can neither assume the role of policy maker nor that of law maker unless the policies assailed are based on mala fide or mis -exercise of authority.
13. For what has been discussed hereinabove, the petition being shorn of merits is
dismissed with no order as to cost.
SA/91/Bal. Petition dismissed.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,
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