MUHAMMAD HASHIM KHAN KAKAR, J.--- In Constitutional Petitions Nos.370 of 2010, 357, 379 and 402 of 2011, 117, 844 and 912 of 2012, 502, 662, 962 of 2013 and (S) 89 of 2014, the claims of the petitioners are based on the strength of Rules 12 and 12-A of the Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009, points for determination are interconnected in each of the petition and similarly Contempt Application No,34 of 2010 is arising out of Constitutional Petition No,370 of 2010, therefore, we-intend to dispose of them jointly by this common judgment.
2. Briefly, the root cause of the edifice, is a notification bearing No, S.O.(R-I)5(13)S&GAD-2013/2057- 2156 dated 31st July, 2013, issued by the Government of Balochistan, Services and General Administration Department (Regulation-I). For reference, the notification in extenso is reproduced herein below:--- "GOVERNMENT OF BALOCHISTAN SERVICES AND GENERAL ADMINISTRATION DEPARTMENT (REGULATION-I)
Dated Quetta, 31st July, 2013.
NOTIFICATION No,SO(R-1)5(13)S&GAD-2013/2057-2156.--- In exercise of the powers conferred by Section 25 of the Balochistan Civil Servants Act, 1974 (Act No, 1X of 1974), the Government of Balochistan is pleased to make the following amendments in the Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009, namely:--- In the aforesaid
(a) for rule 12, the following shall be substituted, namely:--- "Appointment of spouse or child of Deceased Government Servant12. Notwithstanding anything contained in any rule to the contrary whenever a Civil Servant dies while in service, his/her spouse or ac child may be employed by the appointing authority against a post in BPS-1 to BPS-15 in the department in which the deceased Government servant was working without observing the condition of open advertisement. Provided that---- (a) the spouse or child as the case may be shall process the qualification prescribed for the post; and (b) if the child of the deceased Government servant is under-age his name shall be included in the waiting list from the date of death of his/her Father or Mother. However he/she shall be considered for appointment after he/she attains the age prescribed for the post; and
(b) after rule 12, as so amended hereinabove, the following new rule shall be inserted, namely:--- "Appointment of a child of retired/invalidated Government Servant.Notwithstanding anything contained in any rule to the contrary, whenever a Government servant in BPS-1 and BPS-2 retired on superannuation or due to invalidation, one of his/her children may be employed by the appointing authority against a post in BPS-1 and BPS-2 in the Department in which the retired Government servant was working without observing the condition of open advertisement; Provided that---- (a) the child possess the Qualification prescribed for the post; and (b) If the child of the retired Government servant is under-age at the time of retirement his name shall be included in the waiting list from the date of retirement/invalidation of his her Father or Mother. However he/she shall be considered for appointment after he/she attains the age prescribed for the post.
BY ORDER OF GOVERNOR BALOCHISTAN CHIEF SECRETARY BALOCHISTAN"
3. It may be noted that the operation of the afore-quoted notification was suspended by this Court vide order dated 21st August, 2013, which reads as under:--- "Learned A.A.-G. Places on record Notification No, S.O. (R-1)5 (13)/S&GAD-2013/2057-2156 dated 31st July, 2013 and states that most of the grievances of the petitioner have been redressed by the said notification. Prima facie, the notification seeks to create a privileged class comprising of the children of the. Government servants as it envisages appointments by passing the provision of open advertisement and merit, and may be construed as depriving the citizens from aspiring to Government service. As we have reservations about the legality and constitutionality on the said notification, notices are issued to the learned Advocate-General Balochistan, Chief Secretary and Secretary S&GAD In view of the fact that notices in respect of notification have been issued and it is yet to be determined whether the notification is in compliance with the Constitution of 1slamic Republic of Pakistan, it would not be appropriate to make appointments pursuant thereto, as it will create third party rights as well as depriving others to aspire to Government service.
Consequently, we direct the Government of Balochistan not to make any appointment pursuant to the said notification."
4. Before proceeding further in the matter, it would be advantageous to trace out the legislative history of reservation of posts for the widow or child of civil servants died, while in service. It may be observed that provincial legislature i,e, Provincial Assembly of Balochistan promulgated an Act, namely, the Balochistan Civil Servants Act, 1974 (hereinafter referred to as ("the Act of 1974"). The Act of 1974 was promulgated in pursuance of command of Article 240 of the Constitution of Islamic Republic of Pakistan, 1973 ("the Constitution"). The Government of Balochistan, in exercise of powers conferred upon it by section 25 of the Act of 1974, made Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009 ("A.P.T. Rules, 2009"). In the instant petitions, this Court seized of the matter involving vires of aforesaid Rules 12 and 12-A of the A.P.T. Rules, 2009.
5. It may be noted that before coming into force the A.P.T. Rules, 2009, the Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 1979 ("the Rules of 1979") held the field. The Rules of 1979 initially did not provide for any preferential right of appointment of widow or child of the civil servants died, while in service. Later on, a new Rule 13-A was added in the Rules of 1979. The Rules of 1979 stood repealed after coming into force the A.P.T. Rules, 2009 by operation of Rule 23 thereof.
Rule 12 of the A.P.T. Rules, 2009 is somehow identical to Rule 13-A of the Rules of 1979.
6. Messrs Muhammad Riaz Ahmed, Mujeeb Ahmed Hashmi, Abdul Majeed Kakar, Manzoor Ahmed Rehmani, Bashir Ahmed Qazi, Syed Zareef Shah, Ali Hassan Bugti and Saeed Ahmed Lango, Advocates, representing the petitioners, while supporting the incorporation of Rule 12 in the A.P.T.
Rules, 2009, contended that neither the Rule in question suffers from any legal infirmity, nor is the same unreasonable. They, inter alia, contended that the Government of Balochistan has been empowered to make Rules under section 25 of the Act of 1974 and that in exercise of the said statutory powers, the A.P.T. Rules, 2009 have been competently made, therefore, the said Rules are not open to judicial scrutiny; the Courts have always learned more readily in favour of the presumption of constitutionality of the Rules, if made competently in exercise of powers conferred by a Statute until that presumption is rebutted; that Rule 12 of the A.P.T. Rules, 2009, being pari materia with Rule 13-A of the Rules of 1979, remained unchallenged and stood on Statute Book for a considerable long period and innumerable cases were decided thereunder and every effort should be made to save delegated or subordinate legislation instead of destroying it; that the Rules, being in the nature of delegated legislation, cannot be called into question on the grounds of unreasonableness or mala fide; that no one has challenged the vires of Rule 12 of the A.P.T. Rules, 2009, or prayed to examine the constitutionality of said Rules, therefore, this Court has no jurisdiction to examine the worth, verity and correctness or otherwise of the said statutory provision; that the guarantee of equal protection of laws forbids class legislation, but does not forbid reasonable classification for the purpose of legislation, principal or delegated in nature. Rule 12 of the A.P.T. Rules, 2009 is not arbitrary, artificial, capricious or in violation of the 'Doctrine of Equality'. Said Rule is not discriminatory and civil servants, who are in service or who attained the age of superannuation, are a class distinct from civil servants, who die in service. Classification so made is based on intelligible differentia and does not offend spirit of Article 25 or 27 of the Constitution and, while concluding their arguments, they further submitted that Rule 12 of the A.P.T. Rules, 2009, being beneficial legislation, is required to be construed liberally and beneficially, therefore, this Court should not adopt a doctrinaire approach, which might choke the said beneficial legislation. In support of their contentions, they relied upon the cases reported in "PLD 1974 SC 31, AIR 1950 SC 107, PLD 1997 SC 11, (sic) PLC (C.S.) 442 Lahore, PLD 2000 Lahore 509, PLD 1990 Peshawar 51, AIR 1950 SC 27, 107 and 2012 PLC (C.S.) 142 Balochistan".
7. On the contrary, Mr. Nazim-ud-Din, learned Advocate-General, appearing on behalf of the Provincial Government, while making reference to the footnotes made by the then Chief Secretary and Secretary Law at the time of incorporating Rule 12, contended that Rule 12 of the A.P.T. Rules, 2009 offends against the principle of equal protection of law, embodied in Article 25 read with Article 27 of the Constitution. He further submitted that Rule 12 of the A.P.T. Rules, 2009 is unreasonable and uncertain insofar as the legislative history makes it abundantly clear that the widow or child of the civil servants died, while in service, have been given preferential right to be appointed against a post BPS-1 to 10 or they were put in advantageous position vis-a-vis the ordinary citizens, while competing for appointment against a post in a Provincial Government department. He contended that Rule 12 is ultra vires to the Constitution as well as parent statute i,e, the Act of 1974, whereby the legislative power was delegated to the Government of Balochistan to make the Rules. He prayed for a declaration that Rule 12 of the A.P.T. Rules, 2009 is unconstitutional and to strike it down in the interest of justice, good governance, supremacy of law and merits.
8. We have heard learned counsel appearing on behalf of the parties at considerable length and examined their respective contentions thoroughly, while taking into consideration the law and the judgments cited at the bar on the subject. The moot questions of law, which cropped up for consideration can broadly be summarised as under:---
(a) Whether Rule 12 of the A.P.T. Rules, 2009 offends against the principle of "Equal Protection of Law" embodied in Articles 25 and 27 of the Constitution and is ultra vires to the Constitution?
(b) Whether aforesaid Rule is in conflict with parent statute i,e, the Act of 1974?
(e) Whether aforesaid Rule is unreasonable or uncertain?
(d) Whether this Court is vested with jurisdiction to strike down the said Rule on all or any of the aforesaid scores?
9. At the very outset, it is worth mentioning that a Court, prior to taking cognizance of a matter, is supposed to determine the question of its jurisdiction and any order passed without jurisdiction cannot be allowed to hold the field for a moment. In this behalf, it may be noted that this Court, in exercise of constitutional jurisdiction conferred upon it A under Article 199 or the Constitution, enjoys enormous power of judicial review. Hon'ble Supreme Court of Pakistan had an opportunity to examine the scope of judicial review in the case of "Sindh High Court Bar Association v. Federation of Pakistan" (PLD 2009 SC 879). The ratio decidendi of the said judgment lays down following proposition:- "The judiciary way the interpreter of the Constitution and was assigned the delicate task of determining the extent of the power conferred on each branch of the government, its limits and whether any action of that branch transgressed such limits.
It was the solemn duty of the court to protect the fundamental rights guaranteed by the Constitution zealously and vigilantly.
The judicial review was a basic feature of the Constitution and that the power of judicial review was a constituent power which could not be abrogated by judicial process of interpretation. It was a cardinal principle of the Constitution that no one could claim to be the sole judge of the power given under the Constitution and that its actions were within the confines of the powers given by the Constitution.
The Judges, to keep the power of judicial review strictly judicial, in its exercise, do take care not to intrude upon the domain of the other branches of the Government. 1t is the duty of the judiciary to determine the legality of executive action and the validity of legislation passed by the Legislature.
It is a fundamental principle of jurisprudence that courts must always endeavour to exercise their jurisdiction so that the rights of the people are guarded against arbitrary violations by the executive. This expansion of jurisdiction is for securing and safeguarding the rights of the people against the violations of the law by the executive and not for personal aggrandizement of the courts and Judges."
10. Similarly, Hon'ble Supreme Court of India, while dealing with the Doctrine of Judicial Review in the case of "I.R. Coelho (dead) by L.Rs, v. State of Tamil Nadu", (AIR 2007 SC 861) observed as under:--- "It is cardinal principle of the Constitution that no one can claim to be the sole judge of the power given under the Constitution and that its actions were within the confines of the powers given by the Constitution."
11. On the above survey of the case-laws, it is clear that the Doctrine of Judicial Review is recognised in almost every state particularly those having a written constitution. The superior Courts have constitutional duty and responsibility to find extent and limits of powers of executive as well as legislative organs of the State, unless expressly excluded by a provision of the Constitution, availability of the power of such a judicial review is implicit in a written constitution.
We are of the view that if there is one feature of our Constitution which, more than any other, is basic and fundamental to the maintenance of rule of law, it is B the power of judicial review and it is unquestionably, to our mind, part of the basic structure of the Constitution. Supreme Court and High Courts have jurisdiction to decide legality or otherwise of the action taken by state authorities, be that administrative or legislative, and that power cannot be taken away from judiciary. It is the solemn duty of the judiciary under the Constitution to keep the different organs of the state such as the executive and the legislature within the limits of the power conferred upon them by the Constitution. This power of judicial review is conferred on the judiciary by Articles 199 and 184(3) of the Constitution.
12. It was also contended on behalf of the petitioners that there is always a presumption in favour of constitutionality of any piece of legislation and this Court is expected to explore every possibility to uphold the same before striking it down. There is no cavil with the proposition that this Court while examining the question of constitutionality of a piece of legislation principal or delegated, is expected to explore every possibility of upholding it before proceeding to strike it down, but the question arises whether any piece of legislation is immune from judicial scrutiny? The answer is obviously "No". In the well celebrated case of "LA. Sharwani v. Government of Pakistan". (1999 SCMR 1041), while approving the presumption of constitutionality in favour of legislation, Hon'ble Supreme Court observed as under:- "27. (a) ...............................................................................................................
(b) .... It is extremely hazardous to decide the question of the constitutional validity of a provision on the basis of the supposed existence of facts by raising a presumption. Presumptions are resorted to when the matter does not admit of direct proof or when there is some practical difficulty to produce evidence to prove a particular fact.
(c) ...............
(d) ................
(e) .................
(f) While good faith and knowledge of the existing conditions on the, part of the Legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the Court on which the classification may reasonably be regarded as based, the presumption of the constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation."
13. As discussed above, this Court has enormous power under Article 199 of the Constitution to test any piece of legislation on the touchstone of the Constitution and in the case of delegated legislation to satisfy itself that it is not repugnant to parent statute from which the executive derives legislative power to make Rules or Regulations. We are of the firm view that in order to sustain the presumption of constitutionality, the Court must take into consideration the expediency to enforce Fundamental Rights of ordinary citizens and privileged classes alike. It is the constitutional duty of this Court to safeguard the fundamental rights of ordinary citizens in general and deprived classes in particular and to ensure elimination of all sorts of discriminations or exploitations. It is almost a gospel now that wherever there is any transgression of power; the absence of power, or colourable exercise of power, the exercise is open to correction in the constitutional jurisdiction of the superior judiciary.
14. It has also been contended that no one has challenged the vires of Rule 12 of the A.P.T. Rules, 2009 or prayed to examine the constitutionality of the said rule. By advancing such contention, it has been argued that this Court cannot strike down any provision of law in collateral proceedings.
Such arguments have not impressed us and we hold that it is not necessary for the Court to wait for an occasion that someone must challenge the vires of the said rule. This Court can examine the validity/constitutionality of any statutory provision itself when it comes to its notice or it has been brought into notice by the parties. Similarly, the Court cannot be estopped to examine the constitutionality of a provision of law, at a belated stage, because mere efflux of time does not ipso facto convert an unconstitutional provision of law into a valid and constitutional one. Mere passage of time is not a criterion for the validation of constitutionality of any provision of law. We are fortified in our view by a celebrated judgment rendered by a larger bench of Hon'ble Supreme Court, comprising of 11 Hon'ble Judges in the case of "Muhammad Mubeen-us-Salam v. Federation of Pakistan", (PLD 2006 SC 602), wherein the Court seized with a matter involving vires of section 2 of the Service Tribunals Act, 1973. Said provision of law was declared ultra vires to the Constitution notwithstanding the fact that the same held the field for almost 9 years. It was held by Hon'ble Supreme Court that:--- "63. Thus, it is concluded that this Court cannot be refrained from examining the constitutionality of a law because of lapse of time. Therefore, notwithstanding any objection, if the constitutionality of a law is under challenge, its vires can be examined despite the fact that it had remained on the statute book for a considerable time."
15. Now reverting to the main controversy arising in these petitions as to whether classification made between the widow or child of the civil servants died while in service and children of ordinary citizens is reasonable and rational, to resolve the controversy and answer the proposition, it would be advantageous 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: Provided also that under-representation of any class or area in the service of Pakistan may be redressed in such manner as maybe determined by an Act of Majlis-e-Shoora (Parliament).
(2) Nothing in clause (1) shall prevent any Provincial Government, or any local or other authority in a Province, from prescribing, in relation to any post or class of service under that Government or authority, conditions as to residence in the Province, for a period not exceeding three years, prior to appointment under that Government or authority."
16. From perusal of first proviso appended with aforesaid Article 27 of the Constitution, we have observed that original Constitution (enforced on 14th August 1973) maximum 10 years' period was provided for reservation of certain posts for persons belonging to any class or area to secure their adequate representation in the service of Pakistan. Word "ten" occurring in the said proviso was substituted with the word "twenty" by Revival of the Constitution of 1973 Order, 1985 (President's Order No,14 of 1985), Art.2 Schedule Item 4 (w,e,f, 2nd March, 1985). Period of 20 years expired on 13th August, 1993, but Parliament did not bring any amendment to extend the said period. In the absence of any such amendment, all posts in the service of Pakistan were to be filled on merits, but quota system continued to prevail and numerous appointments were made on the basis of regional quota. However, such material defect was later on cured by the Parliament by promulgating the Constitution (Fifteenth Amendment) Act (VII of 1999). As provided in section 2 of the said Act, for the word "twenty" occurring in the aforesaid proviso was substituted with the word "forty" and deemed always to have been so substituted. Now position is, unfortunately, the same and period of 40 years has again expired on 13th August, 2013, but neither has any amendment been brought in the said Article of the Constitution, nor has the quota system been done away with. However, this Court, at this stage, would not like to express its opinion on this material defect and leave the same to be examined in some other appropriate case, if no amendment is brought by the Parliament.
17. Now coming back to the main controversy, we are not hesitant to subscribe to the submissions made by the learned counsel for the petitioners that Article 27 read with Article 25 of the Constitution forbids discrimination and not the classification. There is no cavil with the said proposition that classification, which is not arbitrary, capricious or in violation of the doctrine of the equality, cannot be questioned. But the classification has to be justified on the basis of nexus between the classification and the object to be achieved. The fact, however, that the classification by itself is reasonable is not enough to support it, unless there is nexus between the classification and the object to be achieved. Therefore, as the object to be achieved in the case of the kind with which we are concerned is to get the best talent for appointments against posts in public employment, the reservation of seats for the widow or child of civil servants died while in service has no reasonable relation with the object to be achieved. Classification of persons, finding no mention in the first proviso appended with Article 27 of the Constitution, cannot be termed reasonable and such class of persons cannot be put in advantageous position vis-a-vis widows and children of ordinary citizens. Such classification would result in discrimination, inasmuch as, better qualified candidates from amongst the ordinary citizens may be ignored while less qualified from other widows or children of civil servants died while in service may be appointed. This state of position may also result in impression that appointments in public offices are hereditary in nature which may result in aggravation of agonies of unemployed youth. The said fact, as pointed out by the learned Advocate-General during the course of argument, is also evident from the footnotes made by the then Chief Secretary, Government of Balochistan at the time of inserting Rule 12, which reads as under:--- "Why are we drifting away from the well acknowledged principle of merit? Government jobs are not hereditary. No law could be changed. If I had a way I will withdraw the letter at F/A because this might have been misused/abused to fill up the jobs with incompetent and dishonest people. If anything, a clarification should issue that the circular at F/A does not exempt a person from the application of rules for the particular post including possession of prescribed qualification and experience."
18. It is also pertinent to mention here that the incorporation of Rule 12 of A.P.T. Rules, 2009 was also opposed by the then Secretary law, Government of Balochistan, in the following terms:--- "The amendment proposed to be made in Rule 12(b) of the Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009 does not seem to be in line with the constitutional guarantees as enshrined in Articles 25 and 27 of the Constitution of Islamic Republic of Pakistan, 1973 but rather it offends the same, in as much as it provides a different treatment in terms of employment to the children of retired Government servant while prevents the other citizens from availing the said benefit. As such it is prima facie discriminatory and needs to be deleted."
19. In a recent case of "Pakcom Limited v. Federation of Pakistan", (PLD 2011 SC 44), Hon'ble Supreme Court, after extensive deliberations on the question of discrimination and reasonable classification laid down following principles:- "It would not be enough to say that a piece of legislation or a policy formulated thereunder is discriminatory but it is to be substantiated by applying certain well entrenched principles on the subject of discriminatory legislation which are as follows:---
(i) The expression 'equality before law' or the 'equal protection law' does not mean that it secures to all persons the benefit of the same laws and the same remedies. It only requires that all persons similarly situated or circumstanced shall be treated alike.
(ii) The guarantee of equal protection of law does not mean that all laws must be general in character and universal in application and the State has no power to distinguish and classify persons or things for the propose of legislation.
(iii) The guarantee of equal protection of laws forbids class legislation but does not forbid reasonable classification for the purpose of legislation. The guarantee does not prohibit discrimination with respect to things that are different. The State has the power to classify persons or things and to make laws applicable only to the persons or things within the class.
(iv) The classification, if it is not to offend against the Constitutional guarantee must be based upon some intelligible differential bearing a reasonable and just relation to the object sought to be achieved by the legislation.
(v) Reasonableness of classification is a matter for the Courts to determine and when determining this question, the Courts may take into consideration matters of common knowledge, matters of common report, the history of the times and to sustain the classification, they must assume the existence of any state of facts which can reasonably be conceived to exist at the time f the legislation.
(vi) The classification will not be held to be invalid merely because the law might have been extended to other persons who in some respect might resemble the class for which the law is made because the legislature is the best judge of the needs of particular classes and the degree of harm so as to adjust its legislation according to the exigencies found to exist.
(vii)One who assails the classification must show that it does not rest on any reasonable basis.
(viii) Where the legislature lays down the law and indicates the persons or things to whom its provisions are intended to apply and leaves the application of law to an administrative authority while indicating the policy and purpose of law and laying down the standards or norms for the guidance of the designated authority exercise of its powers, no question of violation of Article 25 arises. In case, however, the designated authority abuses its powers or transgresses the limits when exercising the power, the actual order of the authority and not the State would be condemned as unconstitutional. (Emphasis provided)
(ix) Where the State itself does not make any classification of persons or things and leaves it in the discretion of the Government to select and classify persons or things, without laying down any principle or policy to guide the Government in the exercise of discretion, the statute will be struck down on the ground of making excessive delegation of power to the Government so as to enable it to discriminate between the persons or the things similarly situated."
20. Likewise, we also find support from the case of "Dr. Mobashir Hassan v. Federation of Pakistan", (PLD 2010 SC 265), relevant part of the said judgment reads as under:- "Any classification which is arbitrary and which is made without any basis is no classification and a proper classification must always rest upon some difference and must bear a reasonable and just relation to the things in respect of which it is proposed."
21. In such view of the matter, no justification worth the name in support of the classification has been made out, therefore, we feel no hesitation in holding that such classification offends against the doctrine of equal protection of law guaranteed by the Constitution in Articles 25 and 27 of the Constitution.
22. As far as 'intelligible differentia' is concerned, it distinguishes persons or things from the other persons or things, who have been left out. The Hon'ble Supreme Court of Pakistan in the above referred case law (PLD 2010 SC 265) explained the definition of "intelligible differentia" in the following words:--- "59. Thus, keeping in view the above principles and the definition of classification "intelligible differentia" means, in the case of the law differentiating between two sets of the, people or objects, all such differentiations should be easily understood as logical and lucid and it should not be artificial or contrived."
23. It may be noted that it is the duty of superior judiciary to enforce fundamental rights of citizens.
While examining the question as to whether Rule 12 of the A.P.T. Rules, 2009 has resulted in infringement of any of the fundamental rights guaranteed by the Constitution or offends against any other provision of the Constitution. We have already discussed the scope of principle of "equality before law" embodied in Articles 25 and 27 of the Constitution. We may also make reference to the concept of equality amongst the mankind introduced by Islam. The Holy Prophet (peace be upon him) preached and practised equality throughout the life. The sermon delivered on the occasion of last Hajj performed by the Holy Prophet (peace be upon him) is the first landmark in the history of mankind. It was made clear for all times to come that there is no difference amongst individuals on the basis of race, colour and territory. The relevant portion reads as under:- "O' People! Listen to my words, for I do not know whether we shall ever meet again and perform Hajj after this year, O' Ye people! Allah says, O' people we created you from one male and one female and made you into tribes and nations, so as to be known to one another. Verily in the sight of Allah, the most honoured amongst you is the one who is most God-fearing. There is no superiority for an Arab over a non-Arab and for a non-Arab over an Arab, nor for the white over the black nor for the black over the white except in God-consciousness."
24. It is manifest that the Holy Qur'an also, inter alia, enjoins that there is no difference between the individuals of mankind and that all human beings are equal in the eyes of Almighty Allah. The fittest person, who is strong and trustworthy, is to be employed in public employment. It is evident that the concept of preferential right for appointments in public employment like the provision of law under I challenge runs counter not only to Article 2-A of the Constitution, but also to the commandment of Almighty Allah as ordained in the Holy Qur'an. In this respect, reference can be made to the case of "Nusrat Baig Mirza v. Government of Pakistan" (PLD 1992 Federal Shariat Court 412), wherein the then Hon'ble Chief Justice, speaking on behalf of the Court, observed as under:--- "The Holy Qur'an and Sunnah should form the basis of all our directions for all our spiritual as well as worthy endeavours as they provide us a guidance not only towards the good in the Hereafter but also to attain a good life in this world. Quota system in disregard of merit makes the place of domicile as the criteria and this has, unfortunately, been so woven and institutionalized in our socio-political fabric that unless we return to the original message of the Holy Qur'an we will be farther away from the righteous and straight path ( )."
25. It may be added that under Article 3 of the Constitution, it is the obligation of the State to ensure the elimination of tall forms of exploitation and the gradual fulfilment of the fundamental principle, from each according to his ability to each according to his work. It is the responsibility of the State to establish a society, which is free from exploitation, wherein social and economic justice is guaranteed to its citizens. To ensure fulfillment of said obligation, it is necessary that right person must to be engaged in the right job, which cannot be done, unless there is an open competition for appointments against the posts in government departments. Posts cannot be filled by the method of competition, when arbitrary classifications are made between different classes of citizens and preferential rights are extended towards privileged classes at the cost of ordinary citizens. Rule 12 of the A.P.T. Rules, 2009 is a classic example of such arbitrariness, where widows or children of civil servants have been put in advantageous position vis-a-vis ordinary citizens.
26. It is also aimed an alienable right of every individual to enjoy the protection of law and to be dealt with in accordance with law, as enshrined in Article 4 of the Constitution. Word "Law" employed in the said Article does not connote arbitrary and capricious provisions of law. It implies those provisions of law, which are in conformity with K fundamental rights guaranteed by the Constitution. As per command of Article 4 of the Constitution, all the citizens, without any discrimination, shall be dealt with in accordance with law, so enforcement of the law leaves no room for creating any distinction between the citizens, except a particular class, on the basis of intelligible differentia. Reference can be made to the case reported in PLD 2010 SC 265, referred to above.
27. Similarly, under Article 5 of the Constitution, every person and authorities are required to perform their duties and discharge their function within the limits prescribed by law, respect and obey the Constitution and law in letter and spirit. Articles 4 and 5 of the Constitution make it clear that deviation from law has not to be countenanced. It is the duty and obligation of the competent authority to consider the merit of all the eligible candidates for appointments against L posts in government departments, while putting them in juxtaposition to find out the meritorious amongst them otherwise one of the organs of the State i,e, Executive could not survive as an independent organ, which is the command of the Constitution. By incorporation of Rule 12 in the A.P.T. Rules, 2009, more than one fundamental rights of the citizens have been infringed, thus, State functionaries have failed to discharge their obligations of obedience to the Constitution. Reference in this regard may also be made to a case of "Government of N. -W.F.P. v. Muhammad Tufail Khan", reported in PLD 2004 SC 313 and 2004 PLC (C.S.) 892 (SC), wherein Hon'ble Supreme Court observed that:- "Such-like entries in the civil service cannot be countenanced as it generate frustration and despondency among all persons who were having excellent merit but every time they are bypassed through such-like back door entries on political interference. Everybody who matters in the functioning of the society has always propagated for the adoption of transparency and merit in appointments, which are cardinal principles of good governance. The Constitution of Islamic Republic of Pakistan has also mandated the same as is reflected from the Article 18 which is in the following terms:--- "18. 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."
6. However, when it comes to actual practice, these principles are blatantly ignored. The Courts are duty bound to uphold the Constitutional mandate and to keep up the salutary principle of rule of law. In order to uphold these principles it has been stated time and again by the superior Courts that all the appointments are to be made after due publicity in a transparent manner after inviting applications, through Press from all those who are eligible, deserving and desirous. Reference in this regard is made to Abdul Jabbar Memon (1996 SCMR 1349) where the learned Judges in a Human Rights case, directed the Federal Government, Provincial Governments, Statutory Bodies and the Public Authorities to avoid violation of fundamental rights (Article 18 of the Constitution) guaranteeing to every citizen's freedom of profession. This view was reiterated by a Bench of five learned Judges in a case reported in Munawar Khan v. Niaz Muhammad (1993 SCMR 1287) where it was observed as under:- "6. What we have noticed in all these cases which are under consideration before us is that appointments of both the parties contesting the appointments were made without such advertisements, publicity or information in the locality from which the recruitments were to be made. In view of the Constitutional requirement and the interim order already passed in Human Right Case 104 of 1992 it is expected that in future all appointments shall be made after due publicity in the area from which the recruitment had to take place. This will, however, not apply to short-term leave vacancies or to contingent employment."
Again in another case, reported in Mushtaq Ahmed Mohal v. Honourable Lahore High Court (1997 SCMR 1043), a Bench of five learned Judges reiterated this view after quoting in extenso the order passed in the aforementioned case titled as Abdul Jabbar Memon's case (1996 SCMR 1349) stated as under:- "17. We reiterate that the 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 certain 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."
Reference in this regard is also made to the case of Obaidullah v. Habibullah (PLD 1997 SC 835) where the learned Judges again reiterated the afore-quoted paragraph. Reference is also made to the case of Abdur Rashid v. Riazuddin (1995 SCMR 999).
7. However, in spite of all these directions, this salutary principle is being frustrated with impunity.
This malady which has plagued the whole society shall be arrested with iron hands and the principle of merits shall be safeguarded, otherwise, it would be too late to be corrected."
28. It may be relevant to point out here that as provided in Article 8 of the Constitution, any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void. Said Article also places the State under obligation not to make any law, which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void. We are of the considered view that Constitution, being a basic document, is always treated to be higher than other Statutes and whenever a document in the shape of law given by the Parliament or other competent authority is in conflict with the Constitution or is inconsistent, then to that extent the same is liable to be declared unconstitutional. In this regard reference can be made to the case of "Muhammad Kamran Mullahkhail v. Government of Balochistan", (PLD 2012 Balochistan 57), wherein this Court was of the view that:- "If a person files a petition alleging that a law contravenes any Fundamental Right conferred by the Constitution this court is obliged to examine the same in its constitutional jurisdiction. To contend otherwise would render Article 8 bereft of meaning and leave citizens denuded of their Fundamental Rights guaranteed by the Constitution."
29. Likewise, Article 18 of the Constitution enjoins that "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" said Fundamental Right includes the right of a citizen to compete and participate for appointment to a post in any Federal or 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. Reference can be made to the case of "Mushtaq Ahmed Mohal v. The Honourable Lahore High Court, Lahore", (1997 SCMR 1043). It may be observed that the posts reserved for widows or children of civil servants are not required to be advertised, which is also violative of Article 18 of the Constitution as held by Hon'ble Supreme Court in Human Rights Cases Nos.104(i), 104(ii), 104(iii) and 104(iv) of 1992 (1996 SCMR 1349). On the basis of what has been said above, we hold that Rule 12 of the A.P.T. Rules, 2009 is also violative of Article 18 of the Constitution in so far as it obstructs the way of ordinary qualified citizens to compete for entering into any profession in accordance with their ability and eligibility.
30. Now diverting to the submission made by the learned Advocate-General that Rule 12 of the A.P.T. Rules, 2009 is also in conflict with its parent statute i,e, the Act of 1974 from where government derived legislative power to make rules. We have already examined Rule 12 on the touchstone of various articles of the Constitution and arrived at the conclusion that said Rule offends against fundamental rights, guaranteed by the Constitution, therefore, we feel no need at this stage to dilate upon its repugnancy to the Act of 1974.
31. Before parting with the judgment, we are also of the view that good governance is the demand of the present day; and if transparency is overlooked, the candidates and the general public, would have a sense of deprivation which would lead to frustration, dejection, humiliation and depression.
Such bad governance can also create a chaos in the society. Merit, in any case, has to be considered and eligible candidates cannot be ignored only because widows and children of civil servants have been put in advantageous position vis-a-vis widows and children of ordinary citizens. Reference can be made the case of "Mian Zia-ud-Din v. Secretary Local Government", (2005 PLC (C.S.) 908) Lahore, wherein it was observed:--- "It may be noted that public employment is no more bounty of the State or its functionaries. Rules of law is a cherished goal of any civilized society and it will remain an illusion if abuse of administrative authority continues unabated."
32. In the light of what has been discussed hereinabove, we have no hesitation in our mind after having examined Rule 12 of the A.P.T. Rules, 2009 to hold that the same is discriminatory and ultra vires of Articles 2A, 3, 4, 9, 18, 25 and 27 of the Constitution. The Provincial Government should consider of doing away all such kind of discriminatory provisions and reservation of seats in the government institutions.
The Constitutional Petitions Nos.370 of 2010, 357 of 2011, 117, 844 and 912 of 2012, 448, 502, 662 and 962 of 2013 and (S) 89 of 2014, being without merits, are dismissed with no order as to costs. Since none appeared in Constitutional Petitions Nos.379 and 402 of 2011, therefore, the same are dismissed in default and for non-prosecution. Similarly, Contempt Application No,34 of 2010, being not pressed, is hereby dismissed.