JUSTICE MUHAMMAD TAQI USMANI (MEMBER).---The appellant had moved the Federal Shariat Court under Article 203-D of the Constitution to challenge the Office Memorandum No,8/9/72 T.R.V., dated 31-8-1973 and Rule 14 of the Sindh Civil aServants (Appointment, Promotion and Transfer) Rules, 1973, prescribing the quota system in filling the vacancies under the Federal Government and Provincial Government of Sindh, on the ground that they are repugnant to the Injunctions of Islam as laid down in the Holy Quran and Sunnah.
2. The grievance of the appellant was that the introduction and fixation of the above-cited quota system in general and its further sub-division in the Province of Sindh in particular has caused serious prejudice to most of the citizens of Pakistan and has deprived them of their rights protected by the Injunctions of Islam.
3. The learned Federal Shariat Court by means of order dated 14-6-1989 dismissed the petition on the ground that the above-noted memorandum and the rules stand protected under Art. 27(1) of the Constitution and the Federal Shariat Court had no jurisdiction to examine the vires of the Constitution or the laws made thereunder. The relevant portion of the judgment is contained in Paras 8 and 9 and is re-produced below:-- "8. Be that as it may, as the Memorandum pertains to allocation of seats for areas and classes we find no doubt that it is covered by Article 27 of the Constitution which reads as under:-- "Art.27(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 twenty 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.
9. It is thus quite clear that the Memorandum does fall under the Ist Proviso to Article 27(1) and it is, therefore, beyond the jurisdiction of this Court in view of Article 203-B of the Constitution. The result is that we have no jurisdiction to entertain this petition before the year 1993, which is the period provided in the Constitution itself to protect the quota or the allocation of posts for persons belonging to any class or area to secure their adequate representation in the service of Pakistan."
4. This appeal is directed against the aforesaid order of the learned Federal Shariat Court.
5. After hearing the learned counsel for the respondent No,1, we feel that the question of jurisdiction of the Federal Shariat Court and that of the Shariat Appellate Bench of this Court in connection with the laws made on the authority of a particular provision of the Constitution was thoroughly examined by the Shariat Appellate Bench of this Court in the case of Government of N.-W.F.P. v.
Said Kamal Shah (PLD 1986 SC 360). The question in that case was whether or not Martial Law Regulation No,115 protected under Art. 8(3)(b) of the Constitution and under certain other Articles of the Constitution could be examined by the Federal Shariat Court under Art. 203-D. The Federal Shariat Court held that the laws protected under the Constitution enjoy the same protection as is given to the Constitution itself in Art. 203-B(c) and, since the Federal Shariat Court had no jurisdiction to examine any provision of the Constitution, those laws are also immune from its scrutiny. But this view was not upheld by the Shariat Appellate Bench of this Court and it was held that it is the provisions of the Constitution itself that are immune from the scrutiny of the Federal Shariat Start and not the laws made on the authority of any provision of the Constitution. The relevant portion of the judgment in Said Kamal's case reads as follows:-- "We do not think that any such bar in fact exists so far as the new Constitutional dispensation is concerned. An entirely new power was conferred on the Specified Courts or Benches thereof. A test of repugnancy i,e, Injunctions of Islam was prescribed. This empowerment had its own inhibitions and limitations, and, but for these, it transcended all constitutional protections and safeguards. For example all laws, but not the Constitution, Muslim Personal Law, and law relating to the procedure of any Court or Tribunal or," any fiscal law or law relating to the levy and collection of taxes and fee or banking or insurance practice and procedure could be tested on this standard 'notwithstanding anything contained in the Constitution'.
' To apply this test of repugnancy to the Constitution or a provision thereof is one thing and to apply this test to any other law, validated, continued or protected under the Constitution is another. The first is I prohibited, the second is not.
' Article 269 of the Constitution declares inter alia all Martial Law Regulations "to have been validly made by competent authority and shall not be called in question in any Court on any ground whatsoever". In spite of such a comprehensive and complete bestowing of competency, validity and immunity they had to be protected by express provisions of Article 8(2)(b) against their inconsistency with Fundamental Rights. On the same reasoning if such laws were to be protected against the normative test of Injunctions of Islam, there had to be express provision in similar words for them in Chapter 3-A of the Constitution. With such a categorical conferment of power, none of the inhibitions being attracted or applicable, it cannot be said that the Court was precluded from examining such laws directly or indirectly. The case of Meheen Zainbunissa, in the absence of a similar provision in Chapter 3-A as is to be found in Article 8(2)(b) of the Constitution cannot be brought in aid for implying restrictions and limitations in the constitutional power."
5. The same question was again discussed in the case of Qazilbash Waqf v. Chief Land Commissioner, Punjab (PLD 1990 SC 99) and it was again found that in view of the non obstante clause appearing in the Art.203-A the laws promulgated under or protected by any provision of the Constitution cannot be given the status of the "Constitution" itself as contemplated in Art. 203-C.
Hence they are not immune from their examination on the touchstone of the Holy Quran and Sunnah':,
6. We notice that the Federal Shariat Court in the judgment under appeal has clearly held that "the impugned memorandum fell in the category of usage having the force of law and therefore it could be considered by this Court under Article 203-D" but the main reason given by the learned Federal Shariat Court for rejecting the petition of the appellant was that the impugnd rules and memorandum were protected under Art.27(1) of the Constitution. This view of the Federal Shariat Court, as mentioned earlier, cannot be upheld in view of the judgment of this Court quoted above.
Even if it is proved that the Rules and Memorandum under consideration were framed under the aut:iority of Article 27(1) of the Constitution, they cannot be held to be the provisions of the Constitution itself and their examination in the light of the Injunctions of Islam does not amount to examining a provision of the Constitution. We, therefore, hold that the Federal Shariat Court has the jurisdiction to entertain the petition of the appellant under Article 203-D of the Constitution and has the jurisdiction to decide whether or not the impugned laws are repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah.
6 For the foregoing reasons, we allow this appeal, set aside the judgment of the Federal Shariat Court and remand the case for adjudication on merits.