1. ' AFTAB HUSSAIN, C J.-The Civil Servants Act lays down the Law for appointment in the service of Pakistan and for terms and conditions of the employees including provisions about tenure of office (section 4), Appointments (section 5), Probation (section 6), Confirmation (section 7), Seniority (section 8), Promotion (section 9), Termination of Service (section 11), Reversion (section 12), Retirement (section 13), Disciplinary action and penalties (section 16), Provident fund (section 20), Benevolent Fund and Group Insurance (section 21), Right of appeal (section 22) etc. The following traditions lay down the principle of good treatment of one's servant as well as the conduct of the servant:- "They (your bond-men or servants) are your brothers. God has assigned them to your control. So, whoever has his brother under his control shall feed him from what he himself partakes and clothe him with what he himself wears and shall not impose on him a task harder than him (be can himself perform). If you impose such work on him, help him also in doing it. "Bukhari (Urdu translation) Volume I, page 98.
2. "Feed your bond-men with what you eat and clothe them with what you clothe yourself" (lbne Saad Seerat-ul-Nabi by Shibli Nomani, Vol. II, page 156).
3. Any protection in service afforded to Government servants in respect of their tenure and other terms and conditions would be valid and in accordance with the spirit of Sharia.
4. Generally speaking, the Law is not repugnant to the Qur'an and Sunnah except in section 13. An objection was raised by Hafiz Abdur Rashid Malik in regard to section 11 which is as follows:-
(1) The service of a Civil Servant may be terminated without notice-.
(i) during the initial or extended period of his probation; Provided that, where such civil servant is appointed by promotion on probation or' as the case may be is transferred from one grade, cadre or post to another grade, cadre or post, his service shall not be so terminated so long as he holds a lien against his former post in such grade, cadre o post, as the case may be;
(ii) on the expiry of the initial or extended period of his employment ; or
(iii) if the appointment is made ad hoc terminable on the appointment of a person on the recommendation of the selection authority, on the appointment of such person.
(2) Where, on the abolition of a post or reduction in the number of posts in a cadre or grade, the services of a civil servant are required to be terminated, the person whose services are terminated shall ordinarily be the one who is the most junior in such cadre or grade.
(3) Notwithstanding the provisions of subsection (1), but subject to the provisions of subsection (2), the service of a civil servant in temporary employment or appointed ad hoc shall be liable to termination on fourteen days' notice or pay in lieu thereof.
5. ' The objection is that subsection (3) is ultra vires of the principles of Sharia. We do not find any justification, since temporary Government servants, or persons appointed on ad hoc basis or on probations almost fall in the same category and by the very nature of their service they cannot be given protection available to a permanent employee. Such a person is still under surveillance whether in case of appointment he can prove to be efficient and satisfactory. The temporary appointment requires to be terminated on various grounds including that the service of such employee may not be required at all, so is the case of ad hoc appointment. The provision of notice protects and safeguards the interest of a Government servant and he has the opportunity to seek employment elsewhere during the period of notice. In case of the termination of his service due to any charge, the provisions about disciplinary action will apply to him, since it would not be a case of termination but o dismissal or removal as held by the Supreme Court in case of Noor-ulHassan .
6. Also see Muhammad Siddiq Javaid Ch. v. The Government of West Pakistan .
7. ' The other objection is about section 13 (1). The section is as follows:- "13. A Civil Servant shall retire from service:-
(i) in the case of a person holding the post of Additional Secretary to the Federal Government or any equivalent or higher post on such date as the competent authority may, in the public interest, direct."
8. A distinction has been made between persons holding post of Additional Secretary to the Federal Government or any equivalent or higher post on the one hand and person holding other post on the other band. Prior to the enforcement of this law all Government Officers including persons holding posts of Additional Secretaries or equivalent or higher posts enjoyed the same safeguards and protections (See Articles 240 and 241 of the Government of India Act, 1935, Articles 177 and 178 of the Constitution of 1962 and Articles 220 and 221 of the Interim Constitution of 1972).
9. ' One of the principles which distinguishes Islam is the principle of equality before Law and equal protection of Law inherent in it.
10. ' This principle is deducible in no uncertain terms from the Holy Qur'an and the Sunnah. In fact Islam has given the principle of {{URDU TEXT}}"4:401-4' to a world in which the class and group conflicts reigned supreme.
11. ' The test of equality lies in each Muslim individual being nominated in the Qur'an as Khalifat Ullah.
12. (Q. 6:165, 7:69, 7:74). It is interesting to note that the first Caliph, Hazrat Abu Bakr declined to accept the title of Khalifat Uullah presumably because each individual Muslim is the holder of that title. He adopted the title of Khalafit-i-Rasul Allah. Allah says "0 mankind, we have created you from a male and a female" which means that all human beings are brothers inter se irrespective of any distinction of colour, race or nationality. They are the progeny of the same parents. The outward differences of colour, race, tribes, and nationality are no more than references for mutual1 2 introduction and recognition. The sole criterion for superiority of one over the others is piety, nobility and the quality of being God-fearing. Q. 49:13 "0 mankind! Lo! We have created you from a male and a female, and have made you nations and tribes that you may know one another. Lol the noblest of you, in the sight of Allah, is the best in conduct. Lo! Allah is Knower, Aware."' This brotherhood between man and man is implied in the folio verse :- Q. 4:1 "O' mankind! Be careful of your duty to your Lord who treat you from a single soul and from it created its mate and from the twain bath spread abroad a multitude of men and women. In Q.
13. 49:10 it is specifically stated that "The believers are naught else than brothers. Therefore, make peace between your brethren and observe you duty to Allah that haply ye may obtain mercy."
14. There are several traditions of the Holy Prophet in support of this pr position. The Prophet said that /24.411critil{{URDU TEXT}} (people are like the teeth of a comb) (Address at the last Haj or Hajjatulwida'), ' This simile is very apt since if the teeth of the comb be of different size or be unequal the hair cannot be combed but the head shall be injured. The simile thus exemplifies the effect of inequality too. In the same address the Prophet said : {{URDU TEXT}} "No Arab has any superiority or excellence over a non-Arab and no red coloured man has any superiority or excellence over any black coloured man, save in respect of piety and fear of Allah."
15. ' In Sahih Muslim this Hadees is reported in the following words:- {{URDU TEXT} "No Arab has any superiority over a non-Arab, nor any non-Arab oven an Arab nor any white man over a black man. Nor a black man oven a white man, save in respect of piety and fear of Allah."
16. This fraternity and equality is not only a matter of form but is indeed a matter of substance. It goes to the extent of equality before law and equal protection of law. In respect of equality before law Sharia does not make any distinction between a citizen and a head of the State. The head of the State cannot claim any immunity from prosecution or from appearance in Court during the tenure of his office. There is no discrimination in the administration of justice. Between man and man.
17. Politically every Muslim being the member of the same Ummah he cannot be denied any right, nor an juridical right can be reserved for any particular group on consideration of wealth, purity of blood, caste or colour .The best example of equality before law and equal treatment and prot tion of law is furnished by the reaction of the Prophet to a recommendation made by a companion in favour of a woman thief against the imposition of the severe sentence of Hadd. The Prophet said:- {{URDU TEXT}} "By Allah if Fatima daughter of Muhammad' (p.b.u.h.) had committed theft, I would have certainly cut off her hand (agreed) . The verse, Q. 5:32, equates killing of a man with the killing of all mankind and saving of a man with the saving of all mankind. The laws of Hudood and Taazir are equally applicable to all and the Holy Prophet condemned in the above Hadees about recommendation in the theft case, the ways of the earlier people who had different criteria of punishment for those who were wealthy and influential among them and those who were not and were poor. The relevant words of the Hadees are {{URDU TEXT}} ' Fawaid by Muhammad bin Suleman Maghribi, Vol. I, page 499) : "The Holy Prophet ; then stood and addressed the congregation and said 'No doubt the earlier people were destroyed as they left unpunished those among them who committed theft but were influential, and imposed Hadd on those among them for commitment of theft who were weak."
18. ' Equality before law and equal protection of law is thus the main principia inherent in the Islamic law and policy. It is one of the fundamental principal of Islam which cannot be ignored.
19. ' We do not see any reason why any such distinction between two type of permanent Government servants be made particularly when such protection have been afforded to all Government servants in all the three Constitution referred to above. This only gives a handle to the President or the Prime Minister to force officers of higher ranks to act according to his will rathe than according to law. This gives the power to a competent authority to remove a Government servant merely on the basis of his personal likes of dislikes which is too arbitrary a test to deprive a person of the means of his livelihood and to deprive the nation of his talent and experience.
20. ' In this age, one of the duties of Government is to seek employment for tlat.0 citizens of the country.
21. In these circumstances arbitrary removal from service will also be repugnant to Sharia. One of the reasons for affording Protection and safeguard against premature retirement, removal or dismiss that all Government servants may act according to Law without any fear or favour. To withdraw this protection amounts to virtually withdrawin from them the duty to act according to law and conscience and to make the bend to the will of the Chief Executive. Section 13(i) is repugnant to the Qur'anic principle of equality before Law and equal protection before Law. I shall be repealed.
22. The other provision is subsection (ii) of section 13. Though similar provisions have been there in the Service Rules, but if figures are collected of persons whose services were terminated on this ground or similar ground before 1958 and after 1958, it will be found that cases of such premature retirement before 1958 are extremely rare. The provisions not only violas the principle of equality before Law and equal protection of Law but also give to the competent authority an arbitrary power over the employers as alread onsidered above. If after 25 years of service qualifying for pension or Rothe retirement benefits, the efficiency of a Government servant is affected, disci linary action can be taken against him under the Rules framed under section 16 of the Act, and he can be removed for inefficiency. This is sufficient safeguard for public interest. This provision shall also be repealed.
23. ' We order that sections 13(1) and 13 (ii) shall be repealed by the 29th of February, 1984. The amendment in section 13(111) will be consequential. PLD 1956 SC (Pak.) 331 PLD 1974 SC 393