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 Federal 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 effect, 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 making 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 noted 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 Balochistan 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 only, 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 (Abolition) 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 be 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 (I) of Article 247 of the Constitution, submitted that the executive authority 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 nature 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 hearing 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 same 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 largest 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 insecurity 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 can 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 and 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 Service 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 Instructions 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 with 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 President 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 clause (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 that 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 lrshad (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 the 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 QualificationMatric (minimum) 10 MarksB.A./F.Sc. 5 marks B.A./B.Sc. 5 marks M.A./MSc. 5 marks Sports Professional player 10 marksInternational distinction 10 marks Distinction at national level 5 marks Written testUrdu/English/General Knowledge30 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 (Service) 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 concerned 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 in 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 made 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 SAFRON 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 Authority, 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 appointments 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 Commissioners and Deputy Commissioners of the concerned districts.