MUHAMMAD ALI MAZHAR, J.--- This petition is brought to seek the directions against the respondents to act upon 5% reserved quota in the government services for the minorities in terms of Notification issued on 28-5-2010 by the Services, General Administration and Coordination Department (Regulation Wing) Government of Sindh.
1. The epigrammatic facts as narrated in the memo. Of petition are that the petitioners belong to the Minorities and being the citizens of this country they have equal rights, privileges and protection as envisaged under the Constitution of Pakistan. The respondent No,1 in order to fill the vacant posts under the control of respondent No,2 and 3 invited applications through advertisement published in the newspapers on 4-9-2012. Besides other posts, the vacancies for the post of Lecturer (English) BPS-17 were also announced with rational distribution of vacancies amongst Rural and Urban areas. The petitioners applied for the posts of Lecturer (English) BPS-17 and they were called upon to appear in the Written. Test and after qualifying the written tests, they were also called for interviews. However on 15-2-2013, the respondent No,1 announced the result but the names of the petitioners were not found in the successful candidates' either on merits or on reserved 5% quota fixed for minorities.
2. The learned counsel for the petitioners argued that non-acting upon 05% reserved quota by the respondents has severely affected and invaded the fundamental rights of the petitioners. The petitioners are entitled to be selected/recommended for the posts of Lecturer English BPS-17 in Education and Literacy Department (Government of Sindh) on the basis of Quota reserved for Minorities. The act of respondent No,1 in particular and respondents Nos.2 and 3 in general has put the petitioners into disappointment which is blatant violation of their fundamental rights. Despite qualifying the written test, the petitioners were not afforded opportunity to serve in the education department.
3. The learned A.A.-G. Referred to the comments filed by. Sindh Public Service Commission (respondent No,1) in which they admitted that applications were invited for various posts through advertisement and they conducted written test for the post of Lecturer English (Male and Female).
Total 259 candidates (Male) appeared in the test including the petitioners out of which 74 were declared qualified in the written test including the petitioners who appeared in the viva-voce also with other candidates before the Interview Committee appointed by the Commission, but the petitioners were declared failed in the interview so their names were not recommended for the appointment. So far as the main controversy involved in this case regarding 5% quota for the minorities is concerned, it is stated in the comments that the Commission received requisition for recruitment without reserving 5% quota. Simultaneously, the learned A.A.-G. Also referred to the comments filed by respondent No,3 (Secretary, Education and Literacy Department) in which a position was taken that 5% quota was reserved for minorities as circulated by the Federal Government of Pakistan and the Government of Sindh and the respondent No,3 in its requisition form advised the Sindh Public Service Commission to mention ratio but the present petitioners applied on open merits and not on the basis of reserved quota. It is further stated in the comments that the respondent No,3 never created any barrier for the recruitment on open merits but in the case in hand the petitioners themselves not applied on the basis of 5% quota reserved for the minorities and they opted to appear in test on open merit. The learned A.A.-G. Further argued that in terms of notification referred to above, it was obligatory to reserve the quota in the advertisement but no such indication was given by the respondent No,1 in the advertisement though all the respondents are bound to act in terms of the notification reserving 5% quota for minorities in the jobs. The learned A.A.-G. Also confirmed that the notification is in field and the respondents are bound to act accordingly in future also.
4. The bone of contention in the case is 5% quota reserved for minorities and its due implementation in letter and spirit while the respondents took the plea that the petitioners did not apply on the quota basis but participated in the process on open merits. Now for us it is to be seen what sincere efforts were ma0e by the respondents including Sindh Public Service Commission for putting into practice the notification of reserved quota issued for the minorities in order to accommodate them a range of job prospects. With a view to lighten up the controversy, it would be expedient and constructive to reproduce the Notification in question:--- "No, SORI(S&GAD)2-17/1994 GOVERNMENT OF SINDH SERVICES, GENERAL ADMINISTRATION AND COORDINATION DEPARTMENT (REGULATION WING)
Karachi dated the 28th May, 2010 To,
1. Addl. Chief Secretary to Government of Sindh, Planning and Development Department, Karachi.
2. Senior Member Board of Revenue, Karachi
3. All Administrative Secretaries to Government of Sindh, Karachi Subject:--- RESERVATION OF 5% QUOTA FOR EMPLOYMENT OF MINORITIES (NON MUSLIM ACROSS THE BOARD IN SINDH GOVERNMENT SERVICES/JOBS).
In pursuance of the Federal Govt. Office memorandum, dated 26-5-2009 Government of Sindh is pleased to reserve with immediate effect 5% quota for employment of Minorities (Non Muslim) as defined in Article 260(3)(b) of the Constitution of Islamic Republic of Pakistan, 1973, to all posts across the board in the Sindh Government Services/jobs to be filled by direct recruitment including the Combined Competitive Examination in addition to the participation in the open merit.
The above reservation will not apply to;
(i) Appointment made against the Project related posts.
(ii) Recruitment made by promotion or transfer in accordance with the relevant rule.
(iii) Short term vacancies likely to last for less than six months and
(iv) Isolated post in which vacancies occur only occasionally.
3. These orders shall also apply to initial appointments in all attached departments/autonomous semi-autonomous bodies/ corporations/public and corporations etc. Administratively controlled by the Sindh Government.
4. All Administrative Departments are requested to kindly bring the above instructions to the notice of all concerned for information and compliance while making future recruitment. CHIEF SECRETARY GOVERNMENT OF SINDH NO. SORI (S&GAD) 2-1/94 Karachi dated 28th May 2010 A copy is forwarded to the Superintendent, Sindh Government Printing Press, Karachi, with a request to publish the same in the next issue of the Sindh Government Gazette and supply 300 copies thereof to this Department. SECTION OFFICER (REG-I)"
No, SORI (S&GAD) 2-1/94 A copy is forwarded for information to: 1...........
5. The above Notification was issued with reference to the Article 260(3)(b) of the Constitution and Chief Secretary, Government of Sindh had reserved with immediate effect 5% quota for employment of minorities to all posts across the board in the Government Services, which may be filled by direct recruitment including the combined competitive examination in addition to the participation in the open merit. In the same notification all the administrative departments were advised to bring the instructions contained in the notification to the notice of all concerned for information and compliance while making further recruitment. The notification further states that this will also apply to initial appointment in all attached departments, autonomous, semi- autonomous bodies and corporations etc. Administratively controlled by the Sindh Government. It is discernible from the notification that copy of it was endorsed to various Sindh Government departments and Sindh Public Service Commission also to put into effect but neither the Sindh Government took care of the reserved quota nor the commission acted aptly to ensure its due implementation. On the contrary, the Sindh Government and Sindh Public Service Commission both are shifting burden and blaming each other for the non-compliance. The fact remains that advertisement attached with the memo. Of petition does not show that any reserved quota was mentioned for its consumption which is sheer violation and contravention of the directives issued under the notification so in our view the Sindh Government and Sindh Public Service Commission both are found at fault and equally responsible for non-compliance. Nevertheless, it is noticeable from their standpoint that they have not denied the existence of quota and in this regard, Syed Zakir Ali Shah, Special Secretary, Education Department, Government of Sindh clearly admitted that the quota reserved for minorities should have been followed and mentioned in the advertisement and due to some oversight it could not be pointed out in the advertisement. Had the respondents mentioned the reserved quota in the public advertisements, the petitioners would have applied on the basis of quota reserved for the minorities but due to non-mentioning the quota specifically they applied on open merits but found failed in the interviews.
6. The public functionaries are required to function in good faith, honestly and within precinct of their powers so that the concerned person should be treated in accordance with law without any discrimination. They are obliged to act fairly, equitably and without any element of personal bias or discrimination, as they are like public trust therefore, they should regulate their affairs of duties in a fair and transparent manner to promote the sense of public service. It is also well settled that nobody should be penalized by inaction of the public functionaries. The preamble of our Constitution clearly envisions that adequate provision Shall be made for the minorities to freely profess and practice their religion and develop their cultures and legitimate interests of minorities and backward and deprived classes shall also be safeguarded. Article 36 of the Constitution provides that the State shall safeguard the legitimate rights and interest of minorities including their due representation in the federal and provincial services. Similar provisions are postulated and alluded to under the Objective Resolution (Article 2-A), which is a sheet-anchor and substantive part of our Constitution and reflects aspirations of the people of Pakistan so as to what they want and how they want to be governed. Since the notification refers to Article 260(3)(b), therefore we also visited the said article in which non-Muslim means a person who is not a Muslim and including a person belonging to the Christian, Hindu, Sikh, Buddhist or Parsi Community. A person of the Qadiani Group or the Lahori Group called themselves Ahmed is or a Bahai and a person to any of scheduled castes.
7. The founder of Pakistan, Quaid-i-Azam, Muhammad Ali Jinnah had also assured that the minorities will have their protection with regard to their religion, faith, their life, their culture. They will be in all respects, the citizens of Pakistan without any distinction of caste or creed. Replying to a deputation of the Hindu members of the East Bengal Legislative Assembly on March 22, 1948, Quaid-i-Azam Muhammad Ali Jinnah said:--- "We stand by our declarations that members of every community will be treated as citizens of Pakistan with equal rights and privileges and obligations and that the minorities will be safeguarded and protected."
Reference: Speeches and Statements of the Quaid-i-Azam Muhammad An Jinnah. (Dr. Rafique Afzal). Research Society of Pakistan.
8.In our Constitution, not only the rights of minorities are fully protected and safeguarded but to more than a sizeable magnitude their rights are being provided and it is not the case that they are not being treated alike rather they are enjoying all fundamental rights being citizens of this country.
Nonetheless, what we have noticed in our astute that the petitioners before us became sufferer due to callous and reckless conduct which unjustly gave cause of grievance to the petitioners.
Under Article 3 of the Constitution, it is incumbent upon the State to ensure elimination of all forms of exploitation and the gradual fulfillment of fundamental principles from each according to his ability, to each according to his work. Under Article 38, (Principle of policy), it is provided that the state shall secure the wellbeing of the people, irrespective of sex, caste, creed, or race by raising their standard of living by preventing concentration of the wealth and means of production and distribution in the hands of a few to the detriment of general interest and by ensuring equitable adjustment of right between employer and employee and landlord and tenant. It is also well settled that object of good governance cannot be achieved by exercising powers unreasonably or without application of mind.
9.As a result of this discussion, this Constitutional Petition is disposed of along with pending application in the following terms:---
(a) In future the respondents shall ensure that the quota reserved for minorities in the provincial services shall be strictly followed in terms of Notification No, SORI(S&GAD)2-17/1994, issued by the Government of Sindh, Services, General Administration and Coordination Department (Regulation Wing), dated 28th May, 2010.
(b) The respondents shall also make sure that reserve quota is mentioned in all advertisements released for inviting job applications through newspapers and concerned web-sites and continue this till such time the above Notification remains in field.
(c) The petitioner shall be allowed to participate in the forthcoming recruitment process on 5% reserve quota and the respondent No,1 is directed to process the applications in accordance with law and if their credentials and antecedents are found compatible with the job descriptions they shall be considered for the appointment after fulfilling prerequisites.