SABIHUDDIN AHMAD, J. -- All these petitions involve a common question of law i.e. The validity of Rule 6(a)(iii) of the Federal Public Service Rules of competitive examination, 1997 (hereinafter mentioned as competitive examination rules) which require that a candidate whose father belongs, by birth or by origin to a Pakistan province/area will be considered for appointment - against a quota of vacancies reserved for the province/area to which his father belongs/belonged irrespective of the question where the candidate has resided or received his education. The petitioner acquired 509th position in the over all merit list and 13th in the candidates of Sindh Urban area eligible for appointment in the Trade and Commerce Group. According to him, the respondent No. 3 who was placed at serial No. 462 was required to be treated as a candidate from Sindh Rural on account of birth of his father in such areas and had no right to claim a seat reserved for those from the urban area of the province. However, he was subsequently appointed as a candidate from Sindh Urban in violation of the aforesaid rules, whereby the petitioner was deprived of a seat. The respondent No. 3 on the other hand. Contended that, he was entitled to be appointed against Sindh Urban seats in view of a Domicile Certificate and factum of residence in the Urban areas notwithstanding the fact that his father was born in rural areas. In C.P. 1894/99 the petitioner's father was born and resided in Lahore (Punjab) before he took up employment in the PIA and settled down in Karachi where the petitioner was born, lived and received her entire education. She also obtained certificates of Permanent residence and Domicile from the concerned District Magistrate in Karachi and applied against the seat reserved for Sindh Urban areas. This however, was declined and she was informed that she would be treated as a candidate from Punjab on account of her father's birth and Domicile. Aggrieved whereby she moved this Court. The petitioner in C.P. 2072/99 was similarly placed and despite having been born in Hyderabad and having obtained appropriated certificates of Domicile and Permanent Residence was not treated as a candidate from Sindh Urban, but was held eligible against a seat for Sindh Rural on account of her father's birth and Domicile in District Ghotki. The grievance of the petitioner in C.P. 461/2000 is that he could not be offered appointment against a seat reserved for candidates for Rural of the Sindh on account of fact that respondents Nos. 3 and 4, who had applied against Urban seats were treated as eligible against seats for Rural areas on account of their respective father's birth place in such areas. The petitioner in C.P. 1938/99 is aggrieved by the fact that while both he and his father had obtained Domicile Certificate from Sindh Urban (Karachi) he was being treated as a candidate from the Rural areas because his father was born in a Rural area. The petitioner in C.P. 837/2000 was placed at serial No. 31 in the merit list of candidates from Rural,Sindh. His grievance appears to be that he was not inducted into service/assigned any group owing to the fact that the respondents Nos. 3, 4 and 5 (who were placed above, him) were treated as candidates from Rural areas merely on account of the birth of their respective fathers in such areas despite the fact that they had applied against the Urban quota.
2. It may be pertinent to mention that under the recruitment policy of the Federal Public Service Commission approved by the Federal Government only 10% of vacancies for direct recruitment are to be filled on over all merit basis and the remaining posts are allocated to different provinces/areas. Out of 19% seats to be filled from the candidates from Sindh, 11.4% are allocated from those of Rural areas and 7.6% from Urban areas i.e. Karachi, Hyderabad and Sukkur. Such allocation appears to be valid in terms of Article 27 of the Constitution which while guaranteeing that no person otherwise qualified for appointment in the service of Pakistan shall be discriminated against on the ground of race, religion, cast, residence or place of birth contains an important proviso to the effect that post may be reserved upto 40 years from commencing date for persons belonging to any class or area to secure their adequate representation in the service of Pakistan.
Rule 6(a)(iii) of the competitive examination Rules, apparently designed to give effect to the recruitment policy reads as under:- "In the case of candidate whose father belongs by birth or origin to a Pakistan Province/area it is immaterial where he/she has received his/her education or has resided. Such a candidate will be considered for appointment against the quota of vacancies reserved for the province/area to which his/her father belonged."
3. It is evident from a consideration of the facts of case of the above petitions that each of the petitioner is aggrieved by the application of the above Rule either directly upon them or upon their competitors which have indirectly affected their interests. In other words it is contended that either the petitioners or their competitors (respondents) actually belonged to one area/province but were treated as belonging to another province/area on account of the birth or origin of their respective fathers. In C.P. 1894/99, the petitioner who was born in Karachi and had resided there ever since received her education from educational institutions in Karachi had requested for appointment against a post failing in the Sindh Urban quota. However, the respondent Federal Public Service Commission (hereinafter mentioned as Commission) held that she could only be considered as a candidate belonging to Punjab on account of her father's birth place. At the time of hearing of an application for interim relief before a Bench in which one of us (Sabihuddin Ahmed, J.) was a member, an order of the Honourable Supreme Court in Tafakhur All Asadi v. Federal Public Service Commission (C.P. 1276/99) was brought to our notice. In that case a direction was given to admit a candidate born and educated in Baluchistan against a post in the Baluchistan quota notwithstanding his father's birth place being Punjab by way of interim relief. Respectfully following the precedent this Court passed interim orders and thereafter a number of such orders were passed in others cases as well. In some cases the Commission attempted to assail the interim orders before the Honourable Supreme Court but leave to appeal was declined. Considering the matter to be of substantial public importance and likely to arise in large number of cases. We decided with the consent of the counsel to hear all these petitions and dispose them of.
3-A. In the first place it may be mentioned that the quota allocation in the recruitment policy has been made in respect of candidates "belonging" to a particular province/area and indeed the same expression has been used in the proviso to Article 27(1) of the Constitution enabling such allocation. The first question to be considered therefore, is as to what could be exact connotation of the expression "belong" in the contest of the policy and the Rules as well as enabling constitutional provisions. The dictionary meaning of the expression "belong" has several different connotations, it is unnecessary to dwell upon the same. In the relevant context, however, Mr. Muhammad Nawaz learned counsel for the petitioner in C.P. 1894 and 2072 of 1999 drew our attention to two judgments of the Honourable Supreme Court in the cases of Miss Sumaeea Zareen v. Selection Committee Bolan Medical College, Quetta (1991 SCM R 2099) and Miss Salma Mughal v. Selection Committee Bolan Medical College, Quetta (1993 SCM R 2083). It may be recalled that specific number of seats are allocated\ for candidates belonging "to different districts/agencies in the Province of Baluchistan". The appellant's application for admission as a candidate belonging to District Lasbella was rejected on the ground that the service book of her father showed his place of domicile as Karachi which was subsequently forged by substituting Lasbela. While holding that the appellant belonged to District Lasbella and after quoting different dictionary meanings of the expression "belong", Ajmal Mian, J. (as his Lordship' then was) speaking for the, Bench observed:- "From the above-quoted definition, it is evident that the above word has very wide connotation as it inter alia includes a resident, a native and an inhabitant. In the absence of any special definition in the prospectus there seems to be no justifiable reason to place narrow or strict construction. We may point out that Article 15 of the Constitution confers right on every citizen subject to reasonable restriction imposed by law in public interest to enter and move freely throughout Pakistan and to reside and settle in any part thereof. The above Constitutional Fundamental Right cannot be in any manner impaired or defeated directly or indirectly. Above para 34 of the prospectus is to be construed as to advance the objective envisaged by the above Article.
On the basis of the above uncontroverted facts that the appellant was born in Lasbella in 1970, was brought up there, got her entire education there except her Intermediate Examination for want of a Girls College, it cannot be held that she does not belong to Lasbella. The mere fact that the appellant's father came to the Province of Balochistah after joining service as a teacher in 1969, would not negate the above status of the appellant. It has not been brought on record that the appellant in fact has been residing at any other place than Lasbella or Quetta for her college education. The alleged Karachi address in the service book of the appellant's father and its alleged alteration by committing alleged forgery by the appellant's father, were considerations alien to the jurisdiction of the Committee. It is the status of a candidate which is to be determined and not of the family as pointed out hereinabove."
4. In the case of Salma Mughal the appellant's application for admission against a seat reserved for candidates "belonging to District Lasbella" was rejected on the ground that her father had originally obtained Domicile Certificate from Sindh though subsequently he also obtained one from District Lasbella. Following the principle of law decided in Sameea Zareen's case their Lordships after noticing that the appellant was born in Lasbella and obtained her education upto Matriculation from that place found her to belong to District Lasbella and reversed the judgment of the High Court.
5. From the above pronouncement of the Honourable Supreme Court it appears quite clearly that for purposes of recruitment into the service of Pakistan in terms of the proviso to Article 27(1) "a person belonging to an area could only mean a resident or an inhabitant of a particular area which he treats or intends to treat as his permanent abode." Mr. Munib Ahmed Khan learned counsel for the petitioners appearing in most of the petitions emphatically argued that if a candidate's right to enter public service was to be inevitably tied down to his father's place of birth or origin, the Fundamental Right guaranteed to every citizen to reside or settle in any part of Pakistan would be completely nullified. We find a great deal of force in the arguments as it has indeed been held in the above-quoted case of Sumaeea Zareen that such right cannot be impaired or defeated directly or indirectly, least of all through mere statutory rules made by the executive.
6. It is also interesting to note that Rule 6(c) stipulates that emigrant candidate will be admitted against a quota of a province/area from where his parents have obtained Domicile Certificate and have decided for three years (though as such condition of evidence will be deemed to be fulfilled if they had to reside elsewhere owing to exigencies of service). Similarly, a candidate whose parents have not migrated to Pakistan will be admitted against a quota of the province/area where he himself is domiciled and has resided for a period of three years. In other words, a person who is a migrant from a foreign country and applied for citizenship of Pakistan can chose the please where he intends to reside and will be admitted against the quota reserved for that area. On the other hand of person who is born citizen and has guaranteed Fundamental Right to reside or settle anywhere in Pakistan must inevitably be tied down to the place of birth or origin of his father though he may not have any connection with that place or area
7. The next question that has, engaged our attention is whether the impugned rule could be sustained on the basis of Articles 25, 27 and 37 of the Constitution. In the first place as noted above, a. Migrant is entitled to be appointed against the quota of the area in respect of which he obtained certificate of domicile An deed a person having acquired a certificate of domicile from one area can always surrender the same and obtain one in respect of another area in terms of Rule 28-A of the Citizenship Rules. This has been acknowledged in the office memorandum dated 20.9.1971 issued by the Establishment Division (appearing in Esta Code 1999 Edition) and acknowledged by Justice (R) Zafar Hussain Mirza in his note recorded as Chairman of the Federal Public Service Commission which was placed for our consideration by the learned D.A.G. And from which we have been greatly benefited. The child of a person who had migrated to Pakistan may be entitled to be admitted into Government service as a candidate from an area in respect whereof, his father has obtained a certificate of domicile. On the other hand such facility will not be available to the child of a person whose father happened to be , born or originated from one of the province in Pakistan and such child would inevitably be tied down to the area of birth or origin his father. Such qualification in our humble view is not premised upon any rational basis and is therefore liable to be struck down as being violative of Article 25 of the Constitution.
8. We may now examine the validity of the impugned rule against the touchstone of Article 27 of the Constitution and the permissible limits of quota reservations. Indeed rationale for reservation in Federal Services of seats against Provincial/Regional quotas is not far to seek. The uneven state of economic development and educational opportunities in different parts of the country/sub- continent was recognized right from the formation of Pakistan and therefore the need for affirmative action in aid of the people from less developed areas was recognized. It is with this object that quota system was introduced in the Federal Services even before the separation of East Pakistan. The 1973 Constitution apart from guaranteeing equal protection of laws to all citizens through Article 27 expressly guaranteed that no citizen qualified for appointment in the service of Pakistan shall be discriminated against on the ground of Race, Religion, Cast, residence of place of birth. However, apart from making out the obligation of the state to enable the people of different areas to participate in all forms of National activities including employments in Services in terms of Article 37-F, it acknowledged the necessity to maintain the quota system for a limited duration in the form of the proviso to Article 27(1). This was done ostensibly in the hope that by the time of expiry of this duration regional disparities would be overcome and residents of less developed areas would cease to remain at a disadvantaged position in comparison to their more fortunate compatriots in other areas. This duration which was fixed at 10 years from the commencing day in the original Constitution was extended to 20 years through P.O. 1 of 1985 and to 40 years through the Constitution(16th Amendment Act, 1999).
9. At this stage it may be appropriate to reproduce Article 27 which reads 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, case, 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, conditions as to residence in the Province, for a period not exceeding three years, prior to appointment under that Government or authority.
10. Evidently the mere fact that quota reservation for persons belonging to a particular area or class in terms of the 1st proviso (which is an exception to the general rule) shows that such reservation is not otherwise permissible under the main clause 1 of Article 27. In fact in the case of Mushtaque Ahmed Muhal v. The Honourable Lahore High Court (1997 SCM R 1043) which was decided after the expiry of the 20 years duration and before the enactment of the 16th Amendment Act, the Honourable Supreme Court found quota reservation to be constitutionally invalid and one had the occasion to respectfully follow the same view in ltefaque Hussain v. Chairman Federal Public Service Commission (C.P. 3/98, dated 11.5.1999). Indeed the validity of such reservation is no longer an issue. However, the proviso in question being an exception to the general rule needs to be strictly construed according to well-settled principles. When the above proviso only stipulates that reservation of posts could be made for persons belonging to a class or area ostensibly with the object of wiping out the disadvantage that they have suffered on account of residing in less developed areas leading to unavailability of equal opportunities, we failed to see how the Public Service Commission, by their own interpretation of the expression "belonging" (which is inconsistent with the law declared by the Honourable Supreme Court) could extend that privilege to persons who have enjoyed the best educational facilities in developed areas merely on the ground of their ancestry. We therefore, find the impugned rule to be ultra vires the first proviso to Article 27(1) of the Constitution.
11. Moreover, it is equally important to keep in view that Article 27 cannot be read in isolation and the Constitution must be read and construed as an organic whole. Indeed the Honourable Supreme Court in Mushtaque Mohal's case examined the Constitutional validity of quota reservation by reading Article 27 in conjunction with Articles 2-A, 18 and 25 of the Constitution. In Shireen Munir v. Province of Punjab (PLD 1990 SC 292), the arguments that right to admission in educational institutions must be considered strictly according to Article 22 without reference to Article 25 was expressly repelled. Against the above those considering Article 25 and 37-F perhaps quota reservation for a limited duration for the purpose of enforcing real equality of opportunities can indeed by justified, on the yardstick of Article 25. Indeed the affirmative action for the benefit of disadvantaged sections of the people can always be sustained on the test of reasonable classification. The United States Supreme Court in Grisworld v. Connecticut (1965 381 US 479) was able to uphold affirmative action remedies for African Americans holding that a policy which promotes change to alter the substantive conditions of the segment of a population with the object of bringing them at par with others could not be struck down on the ground of violating equal protection. The same view appears to have been taken by the Supreme Court of India in Pardeepjain v. Union of India (AIR 1984 SC 1428). We have also taken a similar view in the case of Itefaq Hussain mentioned above. In our humble opinion therefore, though quota system may be justified it tends to provide weightage to residence of certain areas on the basis of disadvantages and lack of opportunities that they have faced because of inadequacy or inequality of education or cultural opportunities. There is no principle upon which it can be sustained on the ground of ancestry of a particular candidate for this reason too we find the dispensation ultra vires the Constitution.
12. It may also be interesting to note that Clause 2 of Article 27 which is also in the nature of an exception to the general rule provided that a Provincial Government may impose conditions as to maximum of three years residence in that province for the purpose of seeking employment under the Government or a local authority of the province. It is indeed anomalous that a person may be entitled as of right to appointment under a Provincial Government, the moment he completes the years residence in that province but wold be debarred from seeking employment against the quota of that province in a Federal Services though he might have been born and lived in that province all his life merely because his father hailed from a different province.
13. For the foregoing reasons, we would allow all these petitions and direct the respondents Federal Public Service Commission to allocate seats to different candidates on the basis of their permanent residence or the areas in which they have lived and acquired a substantial part of their education irrespective of the area to which their respective fathers belonged.