SHAUKA T AZIZ SIDDIQUI, J.--- Through this Single order Writ Petitions Nos.1648 and 2454 of 2015 are being disposed of together as in both the writ petitions common question of law and facts are involved and similar relief has been claimed.
The prayer made through W rit Petition No.1648 of 2015 is being reproduced hereunder:- "In view of above mentioned circumstances, it is, therefore, respectfully prayed that the instant writ petition may kindly be accepted and writ may kindly be issued, direction may kindly be issued to respondents for calling of the petitioner for interview by declaring him as a successful candidate of written examination and petitioner be awarded 10 grace marks (67 in total out of 100) which was reserved for the son of serving and retired police officials as per notification/ standing order dated 17.03.2015 It is further prayed that respondents may kindly be directed to maintain/reserve the separate quota for the people/citizens or persons having domicile of Islamabad, for the children of ex-police officials and the method/selection process for recruitment of Constables without reserving the quota for the people of Islamabad and for the children of ex-police officials be declared without lawful authority/discriminatory and respondents may also be directed to mention, introduce and announce the required passing marks in fair and transparent manners to secure the ends of justice."
It is also prayed that the respondents may kindly be restrained from issuing the final selection list for the post of Constables during the tendency of instant writ petition."
2. Brief facts, as per the bereavements of instant petition, are that, Respondents initiated the process for recruitment of ASIs and Constables in Islamabad Police and applications were invited through publication in Daily "Jang" dated 03.02.2015. The recruitment process was based upon three steps i.e. Physical test, written test and interview . Petitioners passed the initial physical fitness test as well as written test/examination against the posts of constable. It is the stance of petitioner , Muhammad Nafees in Writ Petition No.1648 of 2015 that his father served in the Islamabad Police and he was badly injured in a bomb blast as a result of which he was forced to retire on medical grounds vide order dated 27.02.2008 because he did not remain medically fit to perform his duties.
Therefore, under rules and policies followed throughout the country , it was required by the respondents to maintain separate quota for sons of police officials. It is also the contention of other Writ Petitioner in Writ Petition No.2454 of 2015 that his father is also serving in Islamabad Police and on the basis of standin g orders issued by Respondent No.2 dated 17.03.2015, he is entitled for the ten grace marks which have not been awarded to him. It is also the stance of petitioners that Islamabad Capit al Territory is a separate territory as a Capital of the Country but no quota has been reserved for the persons/citizens of Islamabad or having the domicile of Islamabad Capital Territory , Islamabad whereas the huge quota for all other provinces have been reserved including separate quota for minorities and women.
3. Learned counsel for petitioners argued that above the act of the Respondents, of not reserving the quota for the residents/citizens of Islamabad having domicile of the Capital Territory and non-granting of 10 grace marks to the sons of police employees of Islamabad is illegal, unlawful and in violation of Articles 4, 5, 25, 27, 37 and 38 of the Constitution of the Islamic Republic of Pakistan, 1973 and is ineffective upon the fundamental rights of petitioners.
That a genuine feeling of deprivation of Federating Units could adversely affect national unity. That Article 36 of the Constitution of Pakistan, 1973 had made obligatory on state, to safeguard the legitimate rights and interest of people including their due representation in Federal and Provincial Services, reliance in this regard is placed on case law 1998 MLD 1832 Lhr. That Article 1(2) of the Constitutio n of Pakistan, 1973 defines the territories of Pakistan and in its clause (b) Islamabad Capital Territories has been defined separately from all other territories of Pakistan including four other provinces but separate quota in recruitment in civil services has not been maintained.
Arguments heard. Record Perused.
4. On lifting of the ban on recruitment of vacant posts within various Departments of Federal Government vide Notification No.O.M No.4/1/93-R.I dated 25.09.2014 issued by Cabinet Secretariat Establishment Division, Islamabad, recruitment process was initiated under the Recruitment Policy for Federal Government vacancies by Federal Government Department issued by the Establishment Division vide Notification No.F.53/1/2008-SP dated 22.10.2014. However , as far as the Rules/Law regarding fixation of quota syste m and legal status of 10 extra marks granted to the candidates who are sons, grandsons, spouses, daughters and brothers of the employees/ex- employees of ICT Police are concerned, the ICT Police is making recruitment in various ranks under the "Recruitment Policy" for the Federal Services/ autonomous bodies/Corporations and Civil Servants (Appointments, Promotion and Transfer) Rules, 1973. The relevant Rule wherein, the quota for various provinces as well as Federal Capital has been prescribed is re-produced as under: SI. No.13-A "Provincial/Regional Quotas for Recruitment to the Civil Posts under the Federal Government: Provincial and Regional quotas prescribed in 1973 for direct recruitment in civil posts under the Federal Government vide Establishment Division' s 0.No.8/9/72-TR V, dated 31.8.1973 (Si. No.13) have been reviewed and it has been decided by the Federal Government that with immediate effect the following merit, and provincial/regional quotas shall be observed in filling vacancies reserved for direct recruitment to posts under the Federal Government which are filled on All-Pakistan basis:-- Merit quota 7.5% Punjab (including Federal Area of Islamabad)50% Sindh 19% The Share of Sindh will be further sub-allocated in the following ratio: Urban areas namely Karachi, Hyderabad and Sukkur,40% of 19% or 7.6% Rural areas i.e. rest of Sindh 60% of 19% Excluding Karachi, Hyderabad and Sukkur NWFP11.5% Balochistan 6% Northern Areas/FATA 4% Azad Kashmir 2% The present recruitment within ICT Polic e was entrusted to NTS under government policy while observing the quota for dif ferent Provinces including the Federal Capital, Islamabad.
5. Before dilating further on the issue, propriety demands that analysis of process being followed in other Provinces of Pakistan may be provided; RECRUITMENT OF CONST ABLE/DRIVER CONST ABLE WITHIN PUNJAB: As per the vacant vacancies of the concerned districts, only the candidates having the domicile of the concerned district can apply for recruitment and only the candidate resident of the said district can be inducted into police as constable/driver constable.
RECRUITMENT OF ASSIST ANT SUB INSPECT OR (ASD: As per Police Rules, 1934, 75% quota was fixed for serving head constable and 25% recruitment for the post of ASI was to be carried out through direct recruitment but after promulgation of Police Order , 2002 within Punjab, now, the Sub-Inspector and Assistant Sub-Inspector are directly inducted through Punjab Public Service Commission. As per the sanctioned strength of the concerned district, a quota for the recruitment/promotion in the rank of AS!, 25% quota has been fixed and 25% vacancies are being filled through direct recruitment as ASI by the Punjab Public Service Commission and a quota is fixed for each district/range as per its sanctioned strength and no extra marks are being granted to the sons/daughters of deceased/retired/servin g police officers/of ficials who are candidates for such recruitment.
For the above said recruitment, only the candidate resident/having domicile of the concerned district/range can apply so whereas, the candidates having the domicile of Islamabad cannot apply .
RECRUITMENT OF CONST ABLE/DRIVER .CONST ABLE WITHIN SINDH: The procedure for the selection of constable/driver constable within Sindh is same as in Punjab except that the selection committee is constituted under the supervision of Superintendent of Police of the concerned district.
RECRUITMENT OF ASSIST ANT SUB-INSPECT OR (ASI) IN SINDH: In Sindh Province, the recruitment quota for the post of ASI is 75% for the alread y serving head constables and 25% through direct recruitment by the concerned public service commission and no extra marks are being granted to the sons/daughters of deceased/retired/ serving police of ficers/of ficials who are candidates for such recruitment.
RECRUITMENT OF CONST ABLE/DRIVER CONST ABLE, WITHIN BALOCHIST AN: The procedure for the selection of constable/driver constable within Balochistan is same as in Punjab and Sindh.
The Selection committee is constituted under the supervision of Deputy Inspector General of Police of the concerned range.
RECRUITMENT OF ASSIST ANT SUB-INSPECT OR (ASI) IN BALOCHIST AN: In Balochistan Province, according to Police Order , 2002, 19% quota of sanctioned post of ASI is reserved for appointment of graduate head constable/constables but appointment is made through Balochistan Public Service Commission against these posts separately . Against general quota 25% ASIs are also appointed by the Balochistan Public Service Commission and no extra marks/quota for the police officials applying for the post is allowed. They are appointed through open merit system.
RECRUITMENT OF CONST ABLE/DRIVER CONST ABLE WITHIN K. P .K : The procedure for the selection of constable/driver constable within K.P.K is same as in Punjab, Sindh and Balochistan. The selection committee is constituted under the supervision of Depu ty Inspector General of Police of the concerned range.
RECRUITMENT OF ASSIST ANT SUB-INSPECT OR (AST) IN KPK: In KPK Province, 5% quota of sanctioned post of AM is reserved for appointment of graduate head constable/constables but appointment is made through KPK Public Service Commission against these posts separately whereas, remaining 65% is being fulfilled through departmental promotio ns of Head Constables. Against general quota 30% ASIs are also appointed by the KPK Public Service Commission and no extra marks/ quota for the police of ficials applying for the post is allowed. They are appointed through open system.
STATUS OF 10 EXTRA MARKS: After the establishment of Islamabad Police, the Police Rules, 1934 as well as E&D Rules, 1975 were adopted by ICT Police with the permission of Federal Government. Since then in ICT Police the same rules are being followed.
Whereas, there is no provision in Police Rules 1934/Police Act, 1861 to allow 10 extra marks to the 'children of serving, retired or deceased employees of ICT Police. However , in Punjab, rule has been framed in the light of Police Order , 2002 to allow 10 extra marks to the children of Police employees but same policy is held in abeyance within ICT. To accommodate the spouse, son, grandson, daughter and brother of the retired/ serving and deceased employees of ICT Police, the present Inspector General of Police, Islamabad issued a Standing Order for grant of 10 extra marks to the close relatives of the retired/in service/deceased employees, who shall secure passing marks in the written test. As the same was issued after the announcement of vacant posts and published in the print media for information of general public and the same was approved by the competent authority with prospective effect due to which the extra 10 marks were not given to the candidates who were close relatives of the employees of ICT Police secured passing marks. This is a delicate issue, I.G. Police, ICT cannot exercise the authority under the provisions of Police Order , 2002, therefore, any policy of the Punjab cannot be made precedent while exercising authority under the Police Rules, 1934. However , if competent Authority i.e. Secretary Ministry of Interior finds some disparity , and discrimination same can only be corrected by him.
6. This Court vide order dated 05.06.2015 directed Mr. Sajid Kayani, SSP/HQ, ICT Police to file a comparative statement that what is the practice/procedure of other provinces regarding fixation of quota. He filed the statement and also placed the copy of the office Memorandum dated 12.02.2007 issued by Cabinet Secretariat, Establishment Division regarding allocation of Provincial/Regional quotas for recruitment to the civil posts under the Federal Government. He admitted this fact before the court that no separate quota is fixed for citizens of Islamabad Capital Territory , whereas all four provinces including AJK are awarded particular quotas which are as under: Punjab (including Federal Area of Islamabad)50% Sindh 19% The share of Sindh will be further sub-allocated in the following ratio: Urban areas namely Karachi, Hyderabad and Sukkur7.6 % Rural areas i.e. rest of Sindh excluding Karachi, Hyderabad and Sukkur 11.4% KPK 11.5% Balochistan 6% Northern Areas/FATA 4% Azad Kashmir 2%
7. In view of above narrated position, this Court vide interim order dated 08.06.2015 directed the respondents to proceed with the ongoing process of recruitment to the extent of 80% of total seats and remaining 20% may be reserved which shall be filled in light of the final judgment to be passed in the instant matter .
8. . As far as prevalent policy or applicable method is concerned, this court has no reservation in declaring the same as discriminatory , offensive to the constitutionally guaranteed fundamental rights and unprecedented as well.
It is amazing to note that even for the ICT Police, residents of ICT with domicile of Capital are required to compete with the candidates of Punjab population wise the largest province of the country . It is also beyond the comprehension that even residents of AJK and FATA are granted with a specific quota in ICT police but locals are deprived from the same. Comparative analysis of recruitment process in the 04 provinces and AJK reveals this fact that candidates from respective districts are inducted and candidates from other Provinces including ICT are not eligible even to apply for the post. Article 1 of the Constitution of Islamic Republic of Pakistan defines the republic and its territories. The Article 25 reads as under:-- Equality of Citizens.-- (1) All citizens are equal before law and are entitled to equal protection of law.
Similarly , Article 27 provides safeguards regarding discrimination in services.
9. Another question arises that if employment in ICT police is not appointment in the service of Pakistan then how local residents of a specific area that too of Capital Territory can be ignored and denied constitutional rights through an exclusionary , deceptive and discriminatory process. The office memorandum dated 31st August 1973 on the face of it is motivated, discriminatory beside the organic law i.e. Constitution of Islamic Republic of Pakistan travelling on conjecture and surmises and beside the principle of equality , transparency , fairness and good governance.
10. In this view of the matter , both the Writ Petitions bearing Nos. 1648 and 2454 of 2015 are allowed. Reluctantly , office memorandum dated 31st August, 1973 and 12th Feb. 2007 are set aside to the extent of quota of Federal area of Islamabad included in Punjab as a consequence of which, the candidates from ICT are required to compete with the candidates of province of Punjab. It is directed that separate quota for the residents of ICT be reserved which shall not be less than 20% of the total posts. The residents of ICT shall include the persons who are either born or have domicile and living within ICT for last 10 years continuously . It is made clear that no person having domicile of any other territory of the country be appointed against quota reserved for residents of ICT. The Secretary Establishment Division and the Secretary Ministry of Interior are directed to issue fresh office memorandum in the light of the directions contained in this judgment.