MUHAMMAD QASIM KHAN, C.J.---Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. (John Marshall).
This constitutional petition challenges Notice No. U.0 No.8/2/2020-TK, dated 26th October , 2020 (Impugned Notice) of Cabinet Division issued for auction of different articles available in Tosha Khana through which only the Officers of Federal Government and Armed Forces were held entitled to join auction proceedings. According to the petitioner , impugned notification and the procedure adopted by the public funct ionaries, while dealing with the disposal of the public assets, has not cared to maintain fairness, equity , impartiality and expectations of the public at large attached with the auction proceedings; hence being against the fundamental rights of the citizens of Pakistan and law is liable to be declared illegal, unlawful and discriminatory .
2. For acceptance and disposal of gifts received by Government/ Public functionaries the Government of Pakistan has devised a procedure. In suppression of earlier O.M.No.9/8/2004-TK dated 13th October , 2017 and the instructions, the Government of Pakistan through office memorandum (the memorandum) laid procedure for acceptance and disposal of gifts through notification No.8/5/2017-TK dated 18th December , 2018 and under clause 10 of the memorandum, the impugned notification was issued. Feeling aggrieved by the memorandum and the impugned notification, the petitioner preferred to file this constitutional petition as pro bono publico for enforcement of fundamental rights to equality of citizens and protection against discrimination and exploitation.
3. The petitioner , while alleging about element of discrimination, exploitation contended that the act of the public functionaries and the impugned auction proceedings through sealed bids of speci fic class of Government Officers is utter violation of law as well as constitutional rights as per esteemed Judgment of august Supreme Court of Pakistan in the case of Naimatullah Khan Advocate v. Federation of Pakistan (2020 SCMR 513). Further contended that the disposal/transfer of public assets, behind the curtain, to some selectees without public participation is abuse of trust and offensive to the spirit of public administration. In this regard learned counsel for the petitioner placed reliance on the dictum of law handed down in the case of Habibullah Energy Limited and another v. WAPDA through Chairman and others (PLD 2014 SC 47). He next argued that the stoppage of public at large to participate in auction of public assets at Tosha Khana and the attitude of public officials towards disposal of gifts at Tosha Khana is patently an illegal act, arbitrary exercise of authority , fanciful and whimsical. Inviting or allowing a specific class of persons is against the trust and competition laws as held by the apex Court. Petitioner further stated that public functionaries are bound to do as the constitution requires them to do. Finally , the petitioner contended that auction proceedings in question were not approved from Federal Government but were based on the decision of Deputy Secretary (Co-ord ination) Cabinet Division, which is again st the principles laid by august Supreme Court in Mustafa Impex Case reported as PLD 2016 SC 808. Putting reliance upon a celebrated judgment from Indian jurisdiction reported as AIR 1988 SC 157 "Haji T. M. Hassan Rawther v. Kerala Financial Corporation" learned counsel for the petitioner urged that public property should be sold out through public auction by inviting tenders and nothing should be discriminatory . He further contends that transparency should be key component of every Public action, which is squarely lacking in the process of the case in hand, hence prayed for an appropriate direction in the circumstances.
4. Vide order dated 17.11.2020, notice was issued to the learned Attorney General for Pakistan under Order XXVII- A, Rule 1 of the C.P.C. Learned Deputy Attorney General while appearing before the Court specifically stated that he was duly authorized by learned Attorney General for Pakistan to represent Federation in this case on his behalf.
According to learned Deputy Attorney General the subject of Tosha Khana was transferred to the Cabinet Division from Ministry of Foreign Affairs in 1973. The memorandum is duly approved by the Prime Minister of Pakistan and even the auction, proceedings in question were also approved by the Prime Minister .
5. Arguments heard. Record perused,
6. For so many centuries, the exchange of gifts has held different States together and has made it possible to bridge the gulf where the language struggles. Such gifts reflect esteem welcome and respect from both sides.
According to Encyclopaedia Britannica Gift exchange, also called 'ceremonial exchange', may be distinguished from other types of exchange in several respects: the first offering is made in a generous manner and there is no haggling between donor and recipient; the exchange is an expression of an existing social relationship or of the establishment of a new one that differs from impersonal market relationships; and the profit in gift exchange may be in the sphere of social relationships and prestige rather than in material advantage.
7. The business of Federal Government is distributed amongst the Divisions in the manner indicated in Schedule-II of the Rules of Business, 1973 and item No. 23 of this schedule provides that subject of `Tosha Khana' is assigned to Cabinet Division. Though no specific definition is given in the Rules of Business, 1973 or any other legal document of the country , yet it is well-known that "Tosha Khana" is a place where gifts received to the Government/Public functionaries from foreign dignitaries/Head of the State are to be placed/deposited. Procedure for the acceptance and disposal of gifts is provided by the Federal Government vide Memorandum No.8/5/2017- TK, dated 18th December , 2018 ("Memorandum "). According to clause 10 of the Memorandum, Gifts which are not fit to be retained or displayed shall be disposed off by periodical sales once or twice a year to be arranged by the Cabinet Division. The list of gifts to be sold shall be circulated to all Officers of Federal Government and Armed Forces. The articles not purchased in two consecutive auctions by the Government servants should be disposed of to the public through sealed bids. Per clause 10 of the Memorandum, Cabinet Division through letter/U.O.
No.8/2/2020- TK, dated 26th October , 2020 announced auction of few articles available in Tosha Khana and invited Bids by the Officers of Federal Government and Armed Forces. The petitioner is aggrieved about the specification of bidders limited only to the extent of Federal Government Of ficers and the Of ficers of Armed Forces.
8. As far as 'auction' is concerned according to the Concise Oxford Dictionary it means "public sale in which articles are sold to maker of highest bid". In Black's Law Dictionary (5th Edition), the meaning of the word has been described as under: "An auction is a public sale of property to the highest bidder by one licensed and authorized for that purpose.............."
When asked from learned Deputy Attorney General that why only the Officers of Federal Government and Armed Forces have been allowed to participate in bidding process for auction of items available at Tosha Khana, the learned counsel replied that in case of open auction, the privacy of highest foreign dignitaries could be compromised and bilateral relations would be affected. When asked that clause 10 of the Memorandum itself mandates that articles not purchased in two consecutive auctions by the Government servants should be disposed of to the public through sealed bids, the learned counsel for the respondents could not reply satisfactorily .
9. Prima facie the criteria to participate in auction proceedings set by Cabinet Division is not only, hypothetical but also against the fundamental rights guara nteed by the constitution of Islamic Republic of Pakistan. There appears no nexus between the criteria and the object sought to be achieved through the auction, hence, it is a case of "suspect classification". It is so because no reason or justification has been furnished in support of the bidders classified by the Cabinet Division. To this Court 'auction' means only a public sale as distinguished from sale by private negotiation. Transparency and fairness always be an essence of governance. But in this case, the Federal Government has not only deprived the general public to participate in auction proceedings, but even as compared to Federal Officers and the Officers of Armed forces, has also excluded other Public functionaries and the members of civil society; i.e. Officers of Provincial Administrative Service, Officers of Semi Government Departments and Local Governments, lawyers, doctors, engineers, persons from academia and literature etc. This discrimination amongst the Public Servants and viz-a-viz other segments of society is sheer violation of constitutional guarantees provided in terms of rule of law (Article 4), dignity of man (Article 14), freedom of business (Article 18), right to information (Article 19-A), equality of citizens and protection against discrimination and exploitation (Article 25).
10. Federal Government, as stated by the learned Law Officer, has excluded the general public from auction proceedings merely for the reasons that prestige and honor of the dignitaries may not be compromised in an open announcement. This very argument or contention of the Federal Government officials is nothing but a classic example of ignorance of law. More so, Memorandum on the basis of which impugned auction notice was issued is also self-contradictory for the reasons discussed ensuing. Government Servants (Conduct) Rule s, 1964 are applicable to every person, whether on duty or on leave, within or without Pakistan, serving in a civil capacity in connection with the affairs of the Centre and to the members of an All-Pakistan Service during their employment under the Provincial Governments or while on deputation with any other Government, agency , institution or authority . Rule 5 of the Rules, 1964 requires that all gifts receiv ed by a Government servant, irrespective of their prices, must be reported to the `Tosha Khana' set office in the Cabinet Division. The value of gifts shall be assessed by the Cabinet Division and the monetary limits up to which and the condition subject to which, the gifts may be allowed to be retained by the recipient, shall be as follows: -
(a) Gifts valued up to Rs. 1,000 may be allowed to be retained by the recipient;
(b) Gifts valued between Rs. 1,000 and 5,000 may be allowed to be retained by a recipient on his paying 25% of the value of the gift in excess of Rs. 1,000; and
(c) Gifts of value exceeding Rs. 5,000 may be allowed to be retained by a recipien t on his paying 25% of so much of the value as exceeds Rs. 1,000 but does not exceed Rs. 5,000 and 15% of so much of the value as exceeds Rs.
5,001.
11. On the other hand, Punjab Government Servants (Conduct) Rules, 1966 applicable to all persons, serving in connection with the affairs of the Province of Punjab also provide the same procedure about acceptance, retention and disposal of gifts. Both these legislations and the Memorandum as well, are very much clear to the extent that if auction bids do not get successful, then the items under auction will be put for public auction. Amazingly the supra mentioned rules and the procedure mentioned in Memorandum are equally applicable to federal and provincial employees and they are equally entitled to purchase the gifted items up to certain amount, but in addition to first option of direct purchase, the federal Officers have also been prioritized to participate in auction proceedings. The Government Officers, during their foreign visit represent the State and Governme nt. During such visits, not only they get travelling and other allowances, but some times, if dignitaries of foreign countries give them any gift, then again they are held entitled to retain it while paying discounted amount. However , if the recipients do not opt to purchase such gifts on discounted rates, then in second round the recipients or their fellows/collagenous only from the Federal Government or Armed Forces may have a right to participate in auction proceedings and purchase the gift items under auction. During the second round Government Officers from other cadres are explicitly prohibited to participate in auction proceedings. Even in second round if something may be left to be auctioned, then comes before the public at large for purchase through open auction. .
12. The principle of all fairness and equal ity demands that even the Officers/recipients of gifts at first attempt solely must not be eligible to purchase on discounted rates, but I am restrained to discuss more as at the moment it is not the matter before this Court.
13. While arguing the case, learned counsel has referred to Tosha Khana (Maintenance and Administration)
Rules, 1974 of Bangladesh, which mandates the relevant Committe e to put such articles for Public Auction , which are likely to suffer depreciation in value if kept for a longer period or kept unused. Learned counsel for the petitioner has also referred to online auction procedure in India qua items of Tosha Khana. Both the neighboring countries are following procedure of disposing of such gifts through public auction , but amazingly , they do not have the fear of compromising of honor or dignity of those who gave such gifts, as we at Pakistan have.
14. In view of the position discussed abov e, the classification of bidders in this case is the classic example of bias, as well as against PPRA Rules. It is also notable that the Government of Pakistan has also given the option of public auction but it is subject to the condition that the articles not purchased in two consecutive auctions by the Government servants should be disposed of to the public through sealed bids. One must ask to the Government, whether at the time of newspaper proclamation, public at large and the diplomatic community in Pakistan and the dignitaries outside Pakistan through their envoys did not come to know about auction of gifts. Another aspect worth consideration is that there is no bar for the successful bidder to further sell the items purchased through auction.
Contrary to above mentioned standpoint of the Government, this Court considers that exchange of gifts at state level is always made to extend love and affec tion for people of each country and if through auction such gifted items come to the hands of public, then it is not compromise of dignity or honor , rather it is extension of love and affection attached with the gift. However , it will be discretion of the Government not to disclose the identity of the gifts (from which country it belonged and the personality who presented it)
15. It is an inalienable right of every citizen to be treated in accordance with law and no action detrimental to his life, liberty; reputation or property shall be taken except as per law but the impugned auction notice/advertisement infringed Petitioner's fundamental rights. Courts are custodian of fundamental rights of citizens and protector of civil liberties and the Constitution makes it imperative upon the Courts to pass orders and issue directions in case of A breach. The basic human rights of life, liberty and enjoyment of one's property have been recognized nationally as well as internationally . The word 'life' in the Constitution has not been used in a limited manner and as per judicial precedents, now the right to life under Article 9 of the Constitution includes all such amenities and facilities which a person born in a free country is entitled to enjoy legally and constitutionally with dignity . Respectful reliance is placed on the ratio decidendi of august Supreme Court of Pakistan in the cases of Ms. Shehla Zia and others v.
WAPDA (PLD 1994 SC 693), Arshad Mehmood and others v. Government of Punjab through Secretary , Transport Civil Secretariat, Lahore and others (PLD 2005 SC 193) and Watan Party and another v.
Federation of Pakistan and others (PLD 2011 Supreme Court 997). In the case of Habibullah, Energy Limited and another v. WAPDA through Chairman and others (PLD 2014 SC 47), august Court was pleased to hold that " all public functionaries must exercise public authority , especially while dealing with the public property , public funds or assets in a fair, just, transparent and reasonable manner , untainted by mala fide, without discrimination and in accordance with law , keeping in view the Constitutional Rights of the Citizens."
16. In sequel to what has been discussed above, the notification 1o.8/5/2017-TK dated 18th December , 2018 and the policy formulated by the Cabinet Division vide impugned Notice No. U.0 No.8/2/2020- 1K, dated 26th October , 2020, are declared ultra vires of the Constitution of Islamic Republic of Pakistan and are set-aside being against Articles 4, 9, 14 and 25 of the Constitution and principles of fairness and equity . The Government of Pakistan is directed to formulate a new policy or lay down an enactment to regulate the auction proceedings of articles of Tosha Khana and ensure that new policy or enactment must be within the parameters of law and the Constitution of Islamic Republic of Pakistan, 1973.
17. The instant constitutional petition stands disposed of in the above terms.