' The brief facts out of which the present writ petition arises are that the petitioner passed the examination of Patwari and his name was registered on 10-11-1987 at Serial No,153 whereas the names of respondents Nos,8, 10 and 12 were registered at Serial Nos, 154, 166 and 179 respectively.
Respondents Nos,8, 10 and 12 were appointed as Patwari under the direction of the Revenue Minister on 10-10-1990, 25-6-1990 and 23-7-1988 respectively. The remaining respondents were enrolled in the year 1995 on the following Serial Nos, respectively:- ' Respondent No,3 Serial No,156 Respondent No .4 Serial No .163 Respondent No .5 Serial No .178 Respondent No,6 Serial No,182 Respondent No .7 Serial N.o .184 Respondent No .9 Serial No,157 Respondent No,10 Serial No,170 ' The learned counsel of the petitioner stated that appointments of respondents Nos,8, 10 and 12 are without lawful authority as the appointments were made by the competent Authority under the direction of Minister Revenue. He further stated that all of them belong to other tehsils, therefore, their appointments are in violation of para. 3.11(3) of Land Manual Record. He further stated that the. Collector is the competent Authority, therefore, appointments made by the respondents on the basis of the recommendation of the Recruitment Committee is also invalid. He further stated that Recruitment Committee was constituted for a fixed period up to 27th March, 1995 whereas the respondents Nos,1 and 2 appointed remaining respondents as Patwaris in May and June, 1995. He further stated that respondents Nos, 4, 5, 9, 10 belong to Tehsil Kamoke and respondents Nos,6, 7, 8 and 11 belong to Tehsil Naushera Virkan, therefore, their appointments are in violation of the mandatory provision of Land Manual Record as is envisaged by para.3.11 (2)(3). He further urged that Naushera Virkan Tehsil was established on Ist June, 1989 and Teshil Kamoke was established on 1st July, 1996.
2. The learned counsel of the respondent No,10 stated that writ petition is not maintainable by virtue of Article 212 of the Constitution read with section 4 of the Service Tribunals Act. He further stated that the petitioner has alternate remedy to agitate the matter before the Collector, Commissioner and Member, Board of Revenue, therefore, writ petition is not maintainable. He further urged that mere registration and entry in register of. The Patwar of the District Collector does not create any vested right that petitioner must be appointed. It is the prerogative of the Collector to appoint any person among the candidates mentioned in the register in accordance with law. He further stated that the petitioner was entered in the register in the year 1987 and the petitioner did not agitate the matter till the year 1997, therefore, writ petition is liable to he dismissed on the ground of laches as well as on account of the conduct of the petitioner that he did not approach the competent Authority within the stipulated period. He further stated that the orders of appointments were issued by the Collector, therefore, writ petition is not maintainable as the Minister has not issued the appointment letters to the respondents. He further stated that Assistant Collector has issued appointment letters to the respondents in accordance with law. He summed up his arguments that originally there was only one Teshil Gujranwala, out of which subsequently two more Tehsils are established, therefore, the contention of the learned counsel of the petitioner that the respondents do not belong to the Tehsil Gujranwala has no force.
3. Learned counsel of respondents Nos, 8 and 12 stated that Muhammad Aslam has filed Writ Petition No,2665 of 1990 against respondent No,12 and others in which the respondents Government Functionaries have submitted different parawise comments whereas in the present writ petition respondents have taken a different stand. He further stated that the case of the petitioner was scrutinized by this Court and the writ petition was disposed of in terms that Muhammad Aslam may be accommodated on the basis of the parawise comments submitted by the respondents. He further stated that respondent No,8 was appointed on 10th of October, 1990 and respondent No,12 was appointed on 23rd July, 1988. The principle of locus poenitentiae attracted in all respects, therefore, writ petition is liable to be dismissed.
4. Learned Addl. A.-G. Contended that there is no contradiction in the parawise comments filed by the respondents in Writ Petition No,2665 of 1990 (Muhammad Aslam v. Assistant Commissioner) and the parawise comments filed in the present writ petition. He pointed out in the earlier writ petition in reply of paras. 7 and 8. Respondents have taken the following stand that all these appointments were made under the Chief Minister's directive or Minister for Revenue after relaxation of ban and the same reply is given by the respondent in . Reply of ground-A, appointments of respondents Nos,8, 10 and 12 were made on the recommendation of Revenue Minister, under the Government policy conveyed through Notification dated 28-2-1989. He further states that respondents Nos,3 to 7, 9, 11 are not served. Therefore, case cannot be decided in absence of the aforesaid respondents. He further stated that action of the respondent is in accordance with the policy and the respondents Nos,8, 10 and 12 were appointed op 10-10-1990, 25- 6-1990 and 23-7-1988 and the orders were implemented and acted upon. Petitioner did not agitate the matter till 24-2-1997. Therefore, writ petition is liable to be dismissed on the ground of laches.
He further stated under instructions that there is no vacancy available in Gujranwala Sub-Division whereas 14 vacancies are available in Naushera Virkan but the petitioner cannot be appointed due to ban.
5. Learned counsel for the petitioner in rebuttal stated that he did not press his writ petition against the appointment of respondents Nos,3 to 7, 9 and 11. He further stated that question of laches does not arise as the basic order is without lawful authority as the appointments were made in violation of the rules. He further stated that petitioner does not press the writ petition even against the respondents Nos,8, 10 and 12 in case the petitioner is accommodated against the vacant posts lying under the control of the District Collector, Gujranwala.
6. I have given my anxious consideration to the contention of the learned counsel for the parties and perused the record myself. Parawise comments filed by the respondent clearly reveals that the appointments of respondents Nos, 8, 10 and 12 were made on the recommendation of Revenue Minister under the Government Policy dated 28-2-1989. Net result of parawise comments of respondent No,1 is that appointments of respondents Nos,8 10 and 12 were issued under the directive of Revenue Minister. Therefore, the competent authority did not apply his mind and merely acted under the directive of the Minister who is alien, so far as the Punjab Civil Servants Act is concerned read with Land Manual Record, para. 11(2)(3). Therefore appointments of respondents Nos,8, 10 and 12 are against rules and regulations as is held in Ghulam Mohy-ud-Din's case (PLD 1964 SC 829) in which the Hon'ble Supreme Court has held that if an order is illegal then cannot be perpetuated. The scheme of our Constitution is based on trichotomy as held by the Supreme Court in Zia-ur-Rehman's case (PLD 1973 SC 49) and this judgment was approved by the Full Bench of the Supreme Court in Mian Muhammad Nawaz Sharif's case (PLD 1993 SC 473). In the system of trichotomy, judiciary has the right to interpret the law and the legislator has right only to legislate and the Executive has to implement. The trichotomy of power which is already delicately balanced in the Constitution, cannot be disturbed as it grants powers to each organ to decide the matters in its allotted sphere. The subject of "appointment to services of Province" is specifically mentioned in Part XII of the Constitution and Article 240(b).
' The competent body under the Constitution has framed the Punjab Civil Servants Act, 1974. The relevant provisions of Civil Servants Act section 2 (d)(g)(i) and (j) and section 4 envisaged that the appointment shall be made in the prescribed manner by the Governor or by the person authorised by him in that behalf. From the above provision of Constitution act and rules, it is crystal clear that Minister has no authority whatsoever to give direction to the competent Authority to appoint respondents Nos,8, 10 C and 12. The Hon'ble Supreme Court has held in Jalal-ud-Din's case PIA)
1992 SC 207 that if an order is illegal then it cannot be perpetuated; the appointment orders of respondents Nos,8, 10 and 12, therefore, cannot be protected to remain in the field as the action of the respondent is repugnant to Articles 4 and 18 of the Constitution of Islamic Republic of Pakistan.
The Supreme Court of Pakistan has taken a serious note of such type of appointments in Human Rights Case No,104 of 1992 (1996 SCM R 1349) and in the following judgments:
(i) 1993 SCM R 1287 (Munawar Khan's case).
(ii) 1995 SCM R 999.
(iii) 1996 SCM R 1349.
' The ratio of the aforesaid judgments is that appointment made on the recommendation of M.P.As.
And M.N.As., was held to be void, ab initio and have to be held so by all the Courts, Tribunals and Authorities. Indian Supreme Court also considered this proposition of law in AIR 1965 SC 1293 and observed as under:-- "It is very unfortunate that these persons should be uprooted after they had been appointed but if equality and equal protection before the law have any meaning and if our public institutions are to inspire that confidence which is expected of them we would be failing in our duty if we did not, even at the cost of considerable inconvenience to Government and the selected candidates do the right thing."
The Constitution of a country is a kind of "social contract" which binds a people, society and a State.
The terms of the contract foster feeling of interdependence, of belonging to an entity and of adherence to law. An honest commitment to the goals set out in the Constitution ensures promotion of nationhood and stability of a system. Feelings of partriotism do not sprout but of a big arsenal. Those are not borne in the battlefields where warring camps shed colossal human blood in the name of narrow nationalism, not in the "Chambers, of Politics" where high sounding cliches are spun out to inclate one's ego and innuendos are hurled to humble the opponents. These are borne in schools which impart good education, in the fields where tiller gets wages for his blood and sweat, in factories where the labourer gets a fair deal, in the hospitals which provide medical care to the sick, in the Courts which dispense justice and in a socio-political system where merit reigns are supreme. If we want a system to be stable and if we' want the people to defend the system we will have to create conditions where they feel that the system protects their fundamental rights which were recognised in the social contract. A people fight for something which is worth fighting for, worth living for and worth dying for. Contemporary history is testimony to the fact that systems have collapsed less on account of foreign invasion and more on account of internal mismanagement and on account of betrayal to the social contract.
The Scheme of our Constitution has set up the role of each and every organ. The superior Courts of Pakistan have also laid down a principle, as mentioned above, that each and every organ has to function independently, freely without interference by any other organ of the State. The abovementioned principles coupled with Articles 4, 5(2), 2A, 37 and 38 of the Constitution of Pakistan lead us to irresistible conclusion that each organ should have to remain within its own sphere. The superior_ Courts consistently observed/considered and set aside the actions which are not within the domain of the Authority or usurping the functions of other organs. In spite of this principle off and on, one organ usurps the power of the other organ. This is not a healthy sign. Our social and economic conditions compel us for the purpose of stability; that each and every organ should remain in its own sphere. All the surrounding circumstances reveal that we must obey the law and command of the Constitution. By doing this, basic structures of the Constitution will not be impaired which must remain in its original position to promote the cause of freedom, independence and mutual cooperation. In other words, all the organs should work as complement of each other to bring harmony, mutual understanding and respect instead of creating hindrances, hatred and usurping the rights of others. Consequently, people of Pakistan will be benefited and thereby Islam shall spread in the country; because only Islam gives us a lesson of tolerance, fraternity and equality. If the above principles are maintained, then there will be no need of any punishment but everybody will act from the core of his heart in accordance with the Injunctions of Islam and mandate of Constitution. It is essential for the existence of the country and the nation to act and remain within the ambit of its own sphere.
' I am fortified by the observations of my learned brother Ihsan-ulHaq Chaudhry, J. Which he made in Dr. Shahina's case (1997 CLC '308) in the following words:-- "The concept of equality amongst the making was introduced for the first time by Islam. The Holy Prophet (peace by upon him) preached and practised 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 landmark in the history of mankind. 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: ' The Holy Prophet (peace be upon him) said in his address at the Hajjat-ul-Wida the last Hajj, performed by him, that...0/people, hear me, your Lord is one and your father is one. No Arab has any superiority over a non-Arab, nor any non-Arab over an Arab nor any white man over a black man, nor a black man over a white man save in respect of piety and fear of Allah."
' If all the prevailing circumstances i,e,. Judgments of the Supreme Court, action of the authorities and attitude of the public representatives put in juxtaposition, then it becomes crystal clear that the legislators and executive have refused to give due respect to the dictum of Supreme Court of Pakistan; which is not congenial and conductive for the existence of the country, to run the State smoothly, mutual cooperation, respect and understanding. This situation will create chaos. So, in a word, it can be safely concluded that each organ must work within its limits prescribed by the Constitution and law. It is admitted fact that respondents Nos,8,10 and 12 were appointed in the year 1990 and the petitioner has filed writ petition on 144-1997. Petitioner did not challenge the same immediately. It is settled principle of law that the Constitutional jurisdiction is equitable jurisdiction which cannot be exercised in favour of a person who has come to Court with gross negligence. I am fortified by the judgment of the Hon'ble Supreme Court in Mohsin Khan's case (1969 SCM R 306) and Suleman's case (1970 SCM R 574). The Hon'ble Supreme Court has also considered this proposition of law in PLD 1997 SC 304 (Khiali Khan's case) and PLD 1997 SC 304 and the relevant observation is as under:--- "Another principle in the realm of writ jurisdiction well-entrenched in our system as elsewhere is that a void order is not always to be struck down regardless of the consequences of such a decision, but that a void order shall be struck down provided there is no statute or principle of law which would make it unjust or inequitable to strike it down. In S. Sharif Ahmed Hashmi v. Chairman, Screening Committee, Lahore and another (1978 SCM R 367), this clarification was termed as very important and that is why, for example, a writ may. Be refused against a void order if this would enable the petitioner to circumvent the provisions of a statute. Similarly in Ghulam Mohi-ud-Din v.
Chief Settlement Commissioner and others (PLD 1964 SC 829) a writ petition had been filed against an order which this Court held was void. Nonetheless the writ petition was dismissed on the ground that it was barred by acquiescence on the part of the petitioner. There is also ample authority for the proposition, that a writ against a void order may be dismissed if the petitioner is estopped by his conduct from challenging it of if he has been guilty of laches."
' There is another aspect of the case that the respondent has given undertaking in Writ Petition No,2665 of 1990 which was filed by Muhammad Aslam against Zafar Iqbal and 8 -others which was disposed of by this Court on 25-6-1990 in the following terms:- "The learned Additional Advocate-General states that as and when a vacancy arises, the petitioner who is eligible otherwise for appointment as Patwari shall be given that post. Asghar Ali Shah, Stenographer, office of the Assistant Commissioner, Gujranwala has informed the Court that the posts of Patwari are lying vacant in the department. In these circumstances there appears to be no reason as to why the petitioner cannot be appointed. It is directed that the respondents shall positively implement the order of the Board of Revenue, dated 16th August, 1988 and appoint the petitioner against one of the posts which are lying vacant."
' In the present case respondent No,1 stated that there are 14 vacancies available but he is not ready to give concession as his predecessor has given concession in the aforesaid judgment. This fact brings the case of the petitioner in the area of malice which is hit by Article 25 of the Constitution and law laid down by the Hon'ble Supreme Court in 1.A. Sherwani's case (1991 SCM R 1041). Respondents are directed to consider him for appointment as Patwari if he is eligible otherwise in terms of the order passed by the Court in Writ Petition No,2665 of 1990.
' In view of what has been discussed above, the writ petition is disposed of in the aforesaid terms.