MUHAMMAD SAJID MEHMOOD SETHI, J.:- This consolidated judgment shall dispose of instant writ petition along with following connected petition as common questions of law and facts are involved in these cases:- W.P. No.7609 of 2019 titled Ahmad Sher & another v. Punjab Public Service Commission through Secretary , Lahore & others
2. Through instant petition, petitioner has assailed notification dated 25.05.2018 , issued by Government of the Punjab, S&GAD (Regulations Wing), Lahore, whereby the area comprising Bahaw alpur Division, Dera Ghazi Khan Division, Multan Division, District Bhakkar and District Mianwali of Sargodha Division in the Punjab, has been declared as special zone? and 20% of the vacancies in BS-16 and above have been reser ved for bona fide residents of said zone. Petitioner has also sought direction for his appointment as Associate Professor ENT (BS- 19) on open merit, with the following relief:- "It is, therefore, most respectfully prayed that this writ petition may kindly be accepted, the impugned notification dated 25.05.2018 may kindly be declared to be illegal, unlawful, void ab-initio, having no legal effect upon the rights of the petitioner being issued in violation of provision of Constitution and law on the subject and in consequence thereof, the petitioner be declared qualified for the appointment as Associate Professor ENT (BS- 19) on open merit as 3 seats are available for appointment on merit / competition, in the interest of justice.
It is also prayed that till the final decision of this writ petition, the operation of the impugned notification dated 25.05.2018 may kindly be suspended and the respondents may kindly be restrained to fill the posts of the Associate Professor ENT (BS-19) on the basis of impugned quota reserved for Special Zone and Female, in any manner whatsoever ."
In the connected petition i.e. W.P. No.7609 of 2019 , petitioners have assailed advertisement for recruitment in Provincial Management Services to the extent of allocating nine seats under the category "special zone", declaring the same in conflict with Article 27 of the Constitution of the Islamic Republic of Pakistan, 1973 ("the Constitution" ), with the following prayer:- "In resuming, the foregoing actual, factual and legal submissions and in the light of superior Courts dictum, it is, therefore, respectfully prayed to declare the impugned advertisement allocating reserved nine seats under the category "special zone" a violation of Article 27 of the Constitution of Islamic Republic of Pakistan, 1973.
It is further prayed to declare any rule / policy / notification / regulation of respondent, which conflicts with Article 27 of the Constitution of Islamic Republic of Pakistan, 1973 as ultra vires and void ab initio.
It is also prayed to direct the respondent to issue new advertisement regarding recruitment strictly in accordance with open competition policy and Article 25 and 27 of the Constitution of Islamic Republic of Pakistan, 1973."
3. Brief facts of instant petition are that in response to a requisition sent by respondent No.2, Punjab Public Service Commission, Lahore ("PPSC" ) / Respondent No.1, vide advertisement No.27/2018, published on 09.09.2018 in Daily Jang, announced three posts of Associate Professor ENT (BS-19) on regular basis, which included: Open Merit = 01, Women Quota = 01 and 20% quota for special zone. Petitioner applied for the said post and after scrutiny of documents, qualified the interv iew as well, however , he was not recommended against 01 post of open merit. Petitioner has challenged the criteria adopted by respondent-PPSC on the basis of impugned notification dated 25.05.2018, issued by Government of the Punjab, S&GAD (Regulations Wing), Lahore.
4. Learned counsel for petitioners submit that impugned notification, purportedly issued under Rule 20 of the Punjab Civil Servants (Appointment & Conditions of Service) Rules, 1974, is against the spirit of said Rule, which provided that reservation of quota would be for a period not exceeding 20-years from the date of commencement of the Constitution and said period has elapsed. They add that Section 23 of the Punjab Civil Servants Act, 1974 ("the Act of 1974") does not empower the respondent-authorities to frame Rules regarding fixation of quota on the basis of sex or residence in the Province of Punjab. They further submit that such bifurcation of quota is against the fundamental rights of petitioners, guaranteed under Articles 4, 18, 25, 25A, 27 and 30 of the Constitution. They argue that initial period of quota was fixed for 40-years as per Article 27 of the Constitution, however, said period has been lapsed since long, therefore, impugned fixation of quota is not justifiable in the eye of law. They maintain that no quota / reserved seats can be allocated to any specific area under the category of "special zone", hence, impugned notification as well as advertisement are ultra vires the Article 27 ibid. In support of their submissions, they have relied upon Mushtaq Ahmad Mohal and others v. The Honourable Lahore High Court, Lahore and others (1997 SCMR 1043), Muhammad Sabir Khan and 13 others v. Rahim Bakhsh and 16 others (PLD 2002 Supreme Court 303), Moulana Atta-ur-Rehman v. Al-Hajj Sardar Umar Farooq and others (PLD 2008 Supreme Court 663), Baz Muhammad Kakar and others v. Federation of Pakistan through Ministry of Law and Justice and others (PLD 2012 Supreme Court 923) and K.B. Threads (Pvt.)
Limited through Chief Executive and others v. Zila Nazim, Lahore (Amir Mehmood) and others (PLD 2004 Lahore 376).
5. Conversely , learned Law Officer, along with learned counsel for respondent No.4, defends the impugned notification as well as advertisement and contends that the Government of Punjab has issued impugned notification thereby reserving 20% quota for bona fide residents of the "special zone" in order to facilitate the candidates of less developed areas. He adds that Articles 4, 5, 18, 25, 27, 37 & 38 of the Constitution permit the respondent- authorities to fix quota for the under-developed zones, hence, no illegality whatsoever has been committed while issuing the notification in question. He further contends that recruitment process for the post in question has already been completed, therefore, a right has been accrued in favour of respondent No.4. In the end, he submits that any order , passed by this Court at this stage, would have prospective effect, not retrospective effect. In support of his contentions, he has referred to Messrs Radaka Corporation and others v. Collector of Customs and another (1989 SCMR 353), Haji Muhammad Boota and others v. Member (Revenue), Board of Revenue, Punjab and others (PLD 2003 Supreme Court 979), Secretary Economic Affairs Division, Islamabad and others v. Anwarul Haq Ahmed and others (2013 SCMR 1687 ) and Ahmad Yar Chowhan v. Federal Public Service Commission through its Secretary , Islamabad & others (NLR 1999 Service 67) .
6. Arguments heard. Available record perused.
7. For facility of reference, impugned notification dated 25.05.2018 is reproduced hereunder:- NOTIFICA TION No.SORIII(S&GAD)1-23/2018. Pursuant to the powers conferred under rule 20 of the Punjab Civil Servants (Appointment & Conditions of Service) Rules, 1974 read with section 23 of the Punjab Civil Servants act, 1974, Governor of the Punjab is pleased to direct that
(a) the area comprising Bahawalpur Division, Dera Ghazi Khan Division, Multan Division and District Bhakkar and District Mianwali of Sargodha Division in the Punjab shall constitute the special zone ;
(b) eighty per cent of the vacancies in BS-16 and above shall be filled in accordance with merit on all Punjab basis from amongst the persons domiciled in the Punjab; and
(c) twenty per cent of such vacancies shall be reserved for bona fide residents of the special zone; Provided that if no suitable candidate is available from the special zone, the vacancies may be filled in the manner provided in clause (b).
8. Pursuant to the above notification, respondent-PPSC published three posts in advertisement No.27/2018 on 09.09.2018, with the following bifurcation:- Open Merit = 01 Women Quota = 01 20% Quota for Special Zone = 01 (Special Zone Quota comprising Bahawalpur Division, Dera Ghazi Khan Division, Multan Division and District Bhakkar and District Mianwali of Sargodha Division).
Needless to mention here that the bifurcation of three posts of Associate Professor ENT (BS-19) is itself against the notification in question, wherein respondents have offered one post on Open Merit and one post for Women Quota being 15% of total posts and with 20% Quota for Special Zone having one post. This bifurcation of posts does not justify simple calculation on the subject.
9. Section 23 of the Act of 1974, which confers the rule-making power to the Governor , does not give power of fixation of quota. For facility of reference, Section 23 is reproduced as under:- "23. Rules.-- (1) The Governor , or any person authorized in this behalf, may make such rules as appear to him to be necessary or expedient for carrying out the purposes of this Act.
(2) Any rules, orders or instructions in respect of any terms and conditions of service of civil servants duly made or issued by an authority competent to make them and in force immediately before the commencement of this Act shall, in so far as such rules, orders or instructions are not inconsistent with the provisions of this Act, be deemed to be rules made under this Act."
10. The impugned notification dated 25.05 .2018 is also in derogation to command of Rule 20 of the Rules of 1974, which provided that vacant posts were to be filled from persons domiciled in Province of Punjab on merit, however , discretion for reservation of quota for certain areas was allowed for a period not exceeding 20-years from commencement of the Constitution. The aforesaid Rule 20 is reproduced as under:- "20. Vacancies in various posts shall be filled from persons domiciled in the Province of the Punjab in accordance with merit; provided that for a period not exceeding 20 years from the commencing day of Constitution of the Islamic Republic of Pakistan, such posts may be reserved for persons domiciled in such areas as may be specified."
In the absence of extension of the period, given in the said Rule, implementation of the quota regime has already become unlawful.
11. It is settled that delegated power is controlled and regulated by the parent statute and rules which cannot be enhanced. It has to remain within the scope of delegated power given by the parent statute and rules. In the instant case, the impugned notification as well as advertisements are not at the same pedestal as their parent statute and rules. It is equally well-settled that rules can neither go beyond the scope of the parent statute nor can they, by themselves, enlarge the scope of statutory provisions. They cannot also militate against the provisions under which they were made. It is the duty of the Courts in appropriate proceedings to be satisfied that the rules so made are:
(a) by the authority mentioned in the Act and (b) within the scope of the power delegated therein.?
12. A rule-making body cannot frame rules in conflict with the substantive provisions of the law or statute under which the rules are framed. The Courts of law, as a general rule, do not give effect to the rules, etc. thus made, unless satisfied that all the conditions precedent to the validity of the rules are fulfilled. Reference can be made to Suo Motu Case No.13 of 2009 (PLD 2011 Supreme Court 619), Suo Motu Case No.11 of 2011 (PLD 2014 Supreme Court 389), Malik Naz v. University of Peshawar through Registrar , Peshawar and 3 others [2003 PLC (C.S.) 180] and Independent Newspapers Corporation (Pvt) Ltd and others v. Federation of Pakistan and others (PLD 2017 Lahore 289 ).
In the case of Malik Naz supra, the Hon'ble Division Bench of Peshawar High Court has observed as under:- "9.... It is well established proposition of law that by way of delegation of legislation, the provisions of the Principal legislation cannot be rendered ineffective. Similarly, delegated legislation must not be in conflict with the main Act. ..."
13. The Constitutional requirement enshrined in Article 18 of the Constitution, which 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" includes the right of a citizen to compete and participate for appointment to a post in any Federal or a Provincial Government Department or an attached department or autonomous bodies / corporations etc. on the basis of open competition, which right he / she cannot exercise unless the process of appointment is transparent, fair, just and free from any complaint as to its transparency and fairness. It has been made the duty of the State to protect, respect, safeguard, ensure and to facilitate the exercise of fundamental rights. In case of any violation and encroachment thereof, the judiciary, especially the superior Courts of the Country have been made responsible to provide remedy to those citizens, whose rights have been encroached by the State, or its functionaries. Reference can be made to the judgment passed by the Hon'ble Supreme Court of Pakistan in the case of Mushtaq Ahmad Mohal supra.
14. Needless to say that under Article 27 of the Constitution, reservation of quota for any class of persons or area to enter even in service of Pakistan was allowed for 40-years from the date of commencement of the Constitution, which has also ended in the year 2013. For ready reference, Article 27 of the Constitution is reproduced hereinbelow:- "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, specific 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 may be 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."
15. So far as the argument of the learned counsel for respondent No. 4 regard ing his appointment as per the applicable rules / notification is concerned, suffice it to say that 20-years period for regional quota stood lapsed without any further extension in accorda nce with law and Constitution, therefore , his appointment is not saved under any principle of law. However , the appointments already made under the impugned notification prior to the impugned advertisement which have not been assailed, shall remain protected under the doctrine of past and closed transactions.
16. In view of the above discussion, instant petition, along with connected petition, is allowed . The impugned notification as well as advertisements to the extent of allocating 20% quota for the post of Associate Professor ENT (BS-19) in instant petition and nine seats under the category "special zone" for Provincial Management Services in connected petition are declared to be illegal and without lawful authority , with the direction to the respondents to approach the concerned quarters to make necessary amendments in the relevant laws so as to accommodate the candidates from the underdeveloped regions in conformity with the constitutional scheme and provisions in order to enable candidates from such areas to seek employment in Government service. It is made clear that appointments made pursuant to the impugned advertisements other than quota reserved for "special zone" shall not be affected by this judgment.