IHSAN-UL-HAQ CHAUDHARY, J. - The relevant facts for the decision of this Constitutional petition are that respondent No. 2-Punjab Public Service Commission invited applications for the appointments of Assistant. Professor of Chemistry of Dental Materials and Dental Laboratory Procedures in the Health Department through publication of notice in the Daily 'The Nation' dated 10.3.1995. The post was reserved for Zone-II. The petitioner, who is a Dental Surgeon by profession and was working as Assistant Professor of Chemistry of Dental Materials and Dental Laboratory on current basis, took exception to this allocation of seat to Zone-II. It was claimed that the allocation of seat and appointment in disregard of the merit policy are violative of Article 27 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter to be referred as Constitution of 1973). The petition was admitted to hearing on 21.8.1995 and notices were issued to the respondents. Respondent No. 3, who was appointed in the meanwhile, was impleaded as party vide order dated 19.3.1996 passed in C.M. 658/96. The other relevant factor is that the petitioner moved C.M. 2/95 for issuance of temporary injunction and it was ordered that selection if made shall be subject to final decision of the main writ petition.
2. The learned counsel for the petitioner argued that proviso to Article 27 came to an end on 14.8.1993 after the expiry of period of 20 years from the commencement of the Constitution, which has been given in Article 265 (2) of the Constitution of 1973 as 14.8.1973. It was added that no allocation of quota in any form is violative of Articles 4, 15 and 27. It was submitted that 'service of Pakistan' has been defined in Article 260 (1) of the Constitution of 1973. It was argued that this was not for the first time but the provision was also in the Government of India Act, 1935 and same was made in the Constitutions of 1956 and 1962. It wus added that the allocation of quota on whatever basis may be is un-islamic as declared by the Federal Shariat Court in the judgment reported as Nusrat Baig Mirza Vs. Government of Pakistan and another (PLD 1992 FSC 412). The learned counsel also referred to Dr. Pradeep Jain. Etc. Vs. Union of ladin and others (AIR 1984 SC 1420) to contend that all citizens are equal in spite of having born at different places within the Federation.
3. On the other hand, Oh, Muhammad Hussain Chattha. AAG argued that Clause (2) is another proviso to Article 27 as far provincial service was concerned. It was added that it is the duty of the State to protect the interest of different areas, In this behalf, he referred to Article 37 (f> of the Constitution of 1973. It was, therefore, concluded that the action of respondents No. 1 and 2 in allocating seat to Zone-II was fully justified, It was argued that the Constitution remained suspended from 1977 to 1984. Therefore, this period has to be added and the protection would expire in the year 2000. It was added that the allocation has boon made in order to uplift backward areas. While the learned counsel for respondent No. 3 argued that expiry of period Is of no legal consequence in view of the Article 254. It was argued that the post was meant tor Zone-11, therefore, wus rightly reserved for the candidate haling from that area.
4. Mr. Muhammad Ismail Qureshi, learned counsel for the petitioner while summing up the arguments submitted that there cannot be discrimination because it is against Injunctions of Islam. In this behalf, he referred to Khutba Hajjat-ul-Widda ( ), Articles 2 and 2A.
5. Ch. Ijaz Ahmad, Advocate was asked to assist this Court as amicus curiae. The learned Advocate argued that provision .For protecting the quota system in service of Pakistan was there in the Constitutions of 1956 and 1962 as well as in the interim Constitution. He submitted that initially the protection was for 10 years but the same period was extended by another 10 years through P.O. No. XIV of 1985, which came into force on 2.3.1985. The learned counsel argued that all the organs of the State are under Constitutional obligation to work in the allocated sphere. The learned counsel in this behalf has referred to Mina '/.Afar Ah and 4 others Vs. Member (Revenue), Board of Revenue, Punjab and 2 others (1990 CLC 1772), The learned counsel added that the similar provisions were there in Article 51 (4) as to the women seats and in Article 175 (3.) as to the separation of judiciary from executive. In this behalf, he referred to Sharaf Faridi and 3 others Vs. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another (PLD 1989 Karachi 404), which was modified by the Hon'be Supreme Court in its judgment, reported as Government of Sindh through Chief Secretary to Government of Sindh, Karachi and others Vs. Sharaf Faridi (PLD 1994 S.C, 105) whereby 23.3.1994 was the date find for complete separation of judiciary from executive. He referred to The State Vs. Editor. Printer, Publisher and Proprietor of Daily 'Muslim', Islamabad (PLD 1995 Lahore 147), Messrs Chenab Cement Product (Pvt.) Ltd. And others Vs. Banking Tribunal, Lahore and others (PLD 1996 Lahore 672) and Imran Vs. Presiding Officer, Punjab Special Court No. VI, Multan and2 others (PLD 1996 Lahore 542).
6. Ch, Ijaz Ahmad, Advocate argued that the principles of policy as contained in Chapter 2 of the Constitution of 1973 cannot be enforced by Courts, The learned counsel in support of his argument referred to Zohra and 5 others Vs. The Government of Sindh, Health Department through its Secretary, Sindh Secretariat, Karachi and another (PLD 1996 Karachi 1) and Taj Din and 4 others Vs. Zilla Council, Kasur and 3 others (PLD, 1990 Lahore 269). It was added that the action or law ure to be examined with reference to the accrue! Of the right in favour of the citizens. He referred to judgment, in the case of Zohra and 5 others (Supra) and Miss Benazir Bhutto Co-chair Person, Pakistan Peoples Party (PPP) Vs. Federation of Pakistan and another (NLR 1988 CLJ 450), He argued that the instructions in conflict with the Article 27 are to be set aside, In this behalf, the learned counsel referred to Haji Nizam Khan Vs. Additional District Judge, Lyallpur and others (PLD 1976 Lahore 930) and Haitam Qureshi, President, District Bar Association, Lahore and 2 others Vs. The Judges of the Lahore High Court through the Registrar and another < PLD 1976 S.C, 713),
7. Thereafter Ch. Ijaz Aitmad, Advocate proceeded to deal with the argument that the period for which the Constitution remained suspended is to be excluded while computing period of 20 years in the proviso to Article 27 of the Constitution of 1973, The learned counsel argued that the time once started running cannot be stopped, arrested or freezed by subsequent events. The learned counsel in this behalf has referred to In re: Mrs. Mehmoona Sibghat (PLD 1991 Journal 76) and Mst.
Afroz Ihsan Haq Vs. Federal Government of Pakistan (PLD 1995 Karachi 56).
8. Ch. Ijaz Ahmad, Advocate argued that the executive has no power or jurisdiction to strike down provisions of Constitution. He added that the policy letters issued by the department making allocation of the seats on regional basis amounts to striking down the provisions of Article 27. This power is not available to the executive and cannot be conceded because it would result in completely demolishing the Constitution. The learned counsel in this behalf referred to Abdul Mujib Pirzada Vs. Federation Of Islamic Republic of Pakistan and 87 others (PLD 1990 Karachi 9) and case of Mst. Afroz Ihsan Haq. The learned counsel argued that the proposition can be looked from another angle namely, whether it is permissible under the Injunctions of Islam to allocate quota to different regions, districts etc. The learned counsel argued that such action has been declared against Injunctions of Islam by the Federal Shariat Court. In this behalf, he referred to Nusrat Baig Mirza Vs. Government of Pakistan and another (PLD 1992 FSC412).
9. I- have given my anxious consideration to the arguments advanced on behalf of the parties, gone through the record and precedent case. The main question for determination is scope of Article 27, therefore, it is deemed proper to refer the same before proceeding any further. It reads as under: - "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: Provided further that, in the interest of the said service, specified 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.
(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, as to residence in the Province, for a period not exceeding three years, prior to appointment under that Government or authority."
It is clear from the proviso that, it was to remain in force for 20 years from the date of commencement of the Constitution, which as given in the Article 265(21 was 14.8,1973. The learned AAG argued that Clause (2) is also of proviso to Clause (1) as far as provincial service was concerned. The argument is clearly misconceived. Clause (2) only empowers a Provincial Government or any local authority or* other authority in the province to prescribe conditions as to residence in the province and that too not exceeding three years prior to the appointment. It. Does not deal with the districts or zones in the province itself.
10. The next argument was that since the Constitution remained suspended from 1977 to 1984, therefore, while computing the period of 20 years, in the first proviso to Clause (1) of Article 27 this period has to be added. Ch. Ijaz Ahmad, Advocate rightly referred to the cases of Mrs. Mehmoona Sibghat and Mst. Afroz Ihsan Haq (Supra). The period has to be reckoned from the date of commencement, and once it started running the sarfce will not be stopped, interrupted or frozen.
11. The other argument of the learned AAG was that the instructions* allocating. The vacancies to different zones with reference to Article 37, which is included in Chapter 2 dealing with the 'principles of policy'. The provision in this chapter cannot, take precedent over the fundamental rights. Neither the same are enforceable by Courts of law nor validity of an action or law can be called in question with reference to the .Principles of policy Ch. Ijaz Ahmad, Advocate rightly referred to the cases of Zohra and 5 others and Taj Din and 4 others (Supra). Moreover, the action or law is to be examined with reference to the accrual of the right in favour of the citizens and not in vacuum. Ch. Ijaz Ahmad, Advocate rightly referred to the case of Miss Benazir Bhutto Co-chair Person, Pakistan Peoples Party (PPP) and Zohra and 5 others (Supra).
12. The concept of equality amongst the man-kind was introduced for the first time by Islam. The Holy Prophet (peace be upon him) preached and practice equality throughout the life and sermon delivered on the occasion of last Hajj performed by the Holy Prophet (peace be upon him) is the first land-mark in the history of man-kind. It was made clear for all times to come that there is no difference amongst the individuals on the basis of race, colour and territory. The relevant portion reads as under:- "16. The Holy Prophet (p.b.u.h.) said in his address at the Hajjat- al-Wida ( ), the last Hajj, performed by him, that:- "O! People, hear me, your Lord is c , e and your father is one. No Arab has any superiority over a no b nor any non-Arab over an Arab nor any white man over ack man, nor a black man over a white man, save in respect of piety and fear of Allah."
The Federal Shariat Court, examined the provisions in the Pakistan Civil Servants (Appointment, Promotion and Transfer) Rides, 1973 and the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 and declared provisions pertaining to quota, system in service repugnant to Injunctions of Islam. The judgment of the Federal Shariat Court in the case of Nusrat Baig Mirza (Supra) was rendered in a Shariat, petition, therefore, binding on this Court in view of -the Article 203GG of the Constitution of 1973.
13. The Enforcement of Shariah Act, 1991 shows that Injunctions of Islam are .Supreme and other laws have to give way to the principles of Shariah. The relevant, portion of section 3 reads as under:- "3. Supremacy of Shariah,1) The Shariah that .Is to say the Injunctions of Islam as laid in the Holy Qur'an and Sunnah, shall . Be the supreme law of Pakistan... "
14. The functionaries of State are to work strictly within the sphere allocated to them. The relevant- portion of judgment in (he case of Mirza Zafar Ali and 4 others (Supra), which reads as under:- "20.... It is only respondent No. 1 who illegally and without jurisdiction interfered in the matter sitting in his office. The days of royal decrees have gone now. The functionaries of the State are to function strictly in accordance with the sphere allocated to them and in accordance with law. .No Court or .Authority is entitled to exercise powers not vested in it. The learned counsel for the petitioners has rightly referred to the provision of Article 175 of the Constitution. The proposition can be approached from another angle that all citizens have an inalienable right to be treated in accordance with the law as per Article 4 of the Constitution of Islamic Republic of Pakistan. The action Of respondent Mo. L being derogatory to the law and the Constitution is liable to be struck down. I find it not possible to express myself better than done by this Court in case of Mr. AR. Azar, Deputy Chief Engineer, West North-Western Railway, . Lahore and others v. -The Federation of Pakistan etc. (PLD 1958 (W.P.) Lahore 185)."
15. The Constitution can only be amended in accordance with the - provisions of Articles 238 and 239 of the Constitution of 1973 while the Courts have no jurisdiction to strike down a provision of Constitution on any ground other than noted by\ the Hon'be Supreme Court, in the cases of Federation of. Pakistan Vs, Saeed Ahmad Khan (PLD 1974 SC 151), Fauji Foundation Vs: Shamingur- Rehman (PLD 1983 SC 457),,F.B. Ali Vs. State (PLD 1975 SC 506), Federation of Pakistan Vs. United Sugar -Mills Ltd., Karachi (PLD 1977 SC 397), Mian Jamal Shah Vs. The Member, Election Commission, Government of Pakistan, Lahore, PLD 1966.SC i) and Farzand Ali Vs'. .Province of West Pakistan (PLD 1970 SC 1995).
16. It;is a matter of great regret, that the executive instead of giving Effect to the provisions of the Constitution unreasonably to the position that it could still preserve the quota system; even after.
The expiry of the protection period available under proviso to Article 27, Ch. Ijaz Ahmad, learned'
Advocate rightly argued that this amounted to amend the Constitution by circular^ and policy letters. This cannot be countenanced. All acts, circulars, policy letters prescribing quota' in servicer of Pakistan are ultra vires,, illegal and against-Injunctions of Islam.
17. Before parting with the judgment 1 would record word of thanks for Ch. Ijaz Ahmad, learned Advocate who rendered valuable assistance in resolving this important issue besides Messrs Syed Jamshed Ali, Muhammad Ismail Qureshi and Muhammad Saeed Akhtar, Advocates.
18. The upshot of the above discussion is that this writ petition is allowed and the advertisement inviting applications for appointment on zohal basis is declared without. Lawful authority by issuance of this writ petition with costs.