' GUL MUHAMMAD KHAN, C.J.--The petitioner assails section 3 of the Corporation Employees (Special Powers) Ordinance XIII of 1978, as repugnant to the Injunctions of Islam and therefore, prays that the same may be declared so. The relevant section reads as under:-- "Section 3.--Certain persons to be liable to removal or reversion.--Notwithstanding anything contained in any law for the time being in force, or in the terms and conditions of service a person in Corporation service appointed or promoted during the period from the first day of January 1972, to the fifth day of July, 1977, may be removed from service, or reverted to his lower post or grade, as the case may be, without notice by the President or a person authorised by him in this behalf, on such date as the President, or as the case may be, the person so authorised may, in the public interest, direct."
' The objection raised is that firstly it creates a disparity between the employees inasmuch as it constitutes a distinct class of employees appointed or promoted during the period of 1st day of January, 1972 and 5th day of July, 1977 and then vests in it powers of the removal or reversion power to the lower post or grade. Secondly in none of the cases the employee is to be informed of the reasons and neither is the competent authority obliged to serve him with a show-cause notice nor has he the opportunity of defending himself.
2. This Court in the case of Muhammad Ramzan Qureshi v. Federal Government and others (PLD 1986 FSC 200) had held as under:- "Islam also allows classification but such classification made in legislation must stand the test of reasonableness and intelligibility. Only the class legislation is forbidden but not reasonable classification. The classification, however, cannot be arbitrary but must rest upon some real and substantial distinction bearing a reasonable and just relation to the things in respect of which the classification is made. In other words the classification must have a resonable relation to the object or the purpose sought to be achieved by the impugned legislation. (para 85)(Page 228).
' The Court further held as under:- "Two tests were laid down for permissible classification in Shri Ram Krishna Dalmia etc. v. Shri Justice S.R.Tendolkar and others AIR. 1958 SC 538. One is that the classfication mist be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and that the differentia must have a rational relation to the object sought 'to be achieved by the statute in question. The classification may be founded on different basis, namely geographical, or according to objects or occupations or the like. There must be a nexus between the basis of classification and the object of the Act under consideration." (para 86)
(page 228).
' In para 95 the Court observed as under:-- "Even a statute which is not ex-facie discriminatory, can be challenged under the equality clause if it is capable of being administered in a discriminatory manner. It was held in East & West Steamship Company v. Pakistan PLD 19.58 Lah. 41 and Jibendra Kishore Achharyya Chowdhury v.
Province of East Pakistan PLD 1957 SC 9 that where a statute is not ex-facie discriminatory, but capable of being administered in a discriminatory manner, the party challenging the constitutionality of that statute must show that it has actually been administered to the detriment of a particular class and in a partial, unjust and oppressive manner." (page 231)..
' The view taken by the Court was that "we may enter a caveat here that as will be shown later, the powers of the legislature should be exercised in a manner that chances of oppression and discrimination may be reduced as far as possible, because it is difficult to find out persons holding high offices who possess qualities and qualifications required of Ulul Amr (those having authority).
The principles based on the constitutional provision of equality as interpreted on the basis of English and American law cannot be applied in all their details in a matter in which the legislature is required to enforce legislation based on Quranic 'Musawat' (equality) because the object of legislation should be to reduce as much as possible the chances of its implementation in an unjust and oppressive manner. The idea may appear to be idealistic but an attempt should be made to remove the chances of mischief as 'far as possible. Where the modern law requires guidelines to be provided for exercise of discretion the object of law enforced on the. Basis of the Qur'an and the Sunnah is to make it as immune as possible from being misused if the person, in authority is not possessed of the required scruples."
' It was further held in para 153 that "where the dismissal or removal cannot be ordered except for cause it would be necessary to give the person affected an opportunity of being heard, because cause cannot be decided by a competent authority in the secrecy of his office because the object is to minimise-Lrather to eliminate--mischief or possibility of corruption and arbitrariness."
3. The judgment of the Court was upheld by the Shariat Appellate Bench of the Supreme Court in Pakistan and others v. Public-at-large (PLD 1987 SC 304). Some of the relevant observations of. Mr. Justice Muhammad Afzal Zullah are as under:- "The foregoing narration of some of the Injunctions of the Qur'an and the Sunnah do establish beyond any shadow of doubt the right to honour and reputation is one of the inviolable rights of man in addition to other valuable rights. Can this be taken away without due process as enjoined by the Qur'an and Sunnah?" (page 328).
"Right to property and honour, in addition to life, were also declared sacred which means: not only that their violation is to be punished and/or compensated but also that it is to be prevented. In this behalf while the victim needs to be protected against the violation, the one who violates is made accountable. All this cannot be possible without a notice and opportunity of hearing. The denial of these safeguards for doing justice would amount to Zulm and Ziaditi against oneself as also the victim." (page 331).
"The retirement is admittedly premature. Thus, it is deprivation of right to continue up to age of sixty which the other civil servants even placed in the same categories, not to talk of the civil servants in general, do not suffer. Right to work in this context is very valuable, which is denied. This denial is more significant when it is visualised that in both categories, nature, experience and those placed in higer strata are normally hit by these provisions. It becomes more harsh when looked at from the angle that at the relevant stage of one's life and service, he needs the job to show his ultimate worth on the one hand and settle his affairs including family and children on the other. The application of this law also involves element of compulsion. The civil servant is forced to retire.
Although no fault need be attributed and none is in fact attributed; however, the rules and practice relating thereto assume that it is not without fault or deficiency. Thus, it carries the stigma and disgrace in the public eye. This inference gets confirmed from the fact that the law itself is explicit in informing the enquirer, whosoever may be, that the retirement is in public interest. In other words, the continuance any further in the service of the affected officer is not in the public interest. This cannot be without a fault, deficiency etc. Thus this type of retirement adversely affects his reputation also. And as the curtailment of service is summary and sudden, the injury to reputation is also pronounced and acts as severe blow to the self-respect and dignity of man." (pages 326- 327).
' Mr. Justice Shafiur Rahman concluded as under:- "Such a provision requires application of mind, verification of the material and associating the individual concerned before striking him and the record so prepared will at once be available to the reviewing authorities, be it in the heirarchy or outside it, of the fairness of the action both in substance and in form. The provision as it stands at present permits not in words but in practice hurried action on extraneous or unverified material and a leisurely and usually half-hearted defence in protracted litigation, throwing avoidable burdens on Courts and Tribunals." (page 365).
4. As shown above the similar provisions challenged before this Court and the Supreme Court were declared repugnant to the Injunctions of Islam as contained in the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.). It was also found that the exercise of the authority thereunder will result in injustice "zulm" and "ziaditi". The result was that the impugned section was found to be repugnant to the Injunctions of Islam in so far as it was discriminatory and did not provide for due notice of the action proposed to be taken coupled with the absence of reasons and opportunity of showing cause against such action.
5. It appears from the provisions challenged before this Court, firstly, the classification is absolutely arbitrary as no reason or justification for it is given. It is not denied that the authorities competent to appoint were validly appointed and the Government for the period in question was a Constitutional Government. Consequently, the appointment orders as such did not suffer from any defect. The employees so appointed, therefore, had acquired vested interest in their posts and consequently, they could be removed only in accordance with the general law applicable to all the employees of the same cadre or position. Further, apart from the discrimination and the disparity the law could not deprive them of the opportunity to show cause as discussed above.
6. The result is that section 3 is declared repugnant to the Injunctions of Islam as contained in the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.). It is further urged that the President shall take steps to amend the law to bring it in conformity with the Injunctions of Islam up to 31st August, 1989, failing which section 3 shall cease to have effect.