' SABIHUDDIN AHMED, J.---The petitioners are members of the High Court establishment and had appeared in the written test held, on 17-3-2001 and subsequent viva voce examination for the selection of Civil Judges/Judicial Magistrates conducted by the Provincial Selection Board comprising of three Honourable Judges of this Court under rule 2(e) of the Sindh Judicial Service Rules, 1994. The aforesaid Board had notified a list of 48 candidates selected through the competitive examination recommending them for appointment as Civil Judges/Judicial Magistrates. The petitioners appear to be aggrieved by the observance of the prescribed quota of candidates .From urban and rural areas of the Province and while contending that they were likely to be selected in case such selections were made on open merit have assailed the validity of the quotas in judicial appointments.
2. By way of relevant background it may be mentioned that through an advertisement appearing in the press on 6-10-1999 applications were invited for appointment of Civil Judges and Judicial Magistrates from amongst citizen, of Pakistan "domiciled" in the Province of Sindh who fulfilled the requisite qualifications. Though the advertisement did not expressly mention the number of vacancies or the fact that a certain percentages of the posts were to be filled from residents of rural/urban areas. Candidates were required to, inter alia to furnish copies of their Permanent Residence Certificates (issued under the P.R.C. Rules (1971) alongwith their applications. Apparently a written test was conducted by Committee/Selection Board comprising of two honourable Judges of this Court. However, in view of adjustment of this Court in C.P.D. No,1615 of 1998 wherein an earlier selection of Civil Judges was declared to be unlawful on the ground that the selection had not been effected on the recommendations of a proper Selection Board in terms of rule 2(e) of the Sindh Judicial Service Rules which defines such Board to mean the Administrative Committee of the High Court or a Committee of at least three Judges constituted by the full Court, no further proceedings were taken pursuant to the result announced by the two members Committee constituted by the Honourable Chief Justice. Instead a Committee/Selection Board comprising of three Honourable Judges was constituted in a full Court meeting, which proceeded to commence the selection process denovo.
All the candidates who had applied pursuant to the advertisement were called upon to undertake a fresh written test on 17-3-2001. We were informed that about 502 candidates appeared in the test.
3. We have been informed by the respondent No,3 (the Registrar of this Court) that the Selection Board laid down a minimum merit ratio and thereafter announced a list of 117 candidates who were declared to have successfully passed the written test. This has not been controverted by the petitioners who have themselves filed the list of those candidates as Annexure "C" to the petition.
From the record, which the Honourable Members of the Selection Board had made available to us, it is evident that the lowest marks obtained by a candidate declared successful in the written test were 34 out of 75 and it is quite clear that those securing 45% or less marks were not declared successful in the written test. The successful candidates were thereafter called upon to appear for viva voce examinations/interview, which were held on different dates from 7-6-2001 to 12-6-2001.
Finally the list of 48 candidates recommended for appointment was announced. It may be pertient to mention that the list containing the marks obtained by each of the 117 candidates in the written and viva voce examinations as well as a list indicating the permanent residence of the selected candidates were placed before us.
4. There is no dispute as to the factual position and we would like to clarify at the very outset that even if the bar of Article 199(5) of the Constitution is not attracted, we would consider it highly improper for this Bench to sit in judgment over the assessment made by a duly constituted Selection Board comprising of three Honourable Judges of this Court. However, Mr. Hasseebur Rehman learned counsel for the petitioners argued that we were only being called upon to pronounce upon the legal validity of the application of the prescribed quotas to appointments in the service of the Province of Sindh. We, therefore decide to entertain this petition for resolution of a purely legal controversy. Notice was issued to learned A.-G., Sindh to assist the Court and the assistance of Mr. Manzoor Ali Khan Advocate was also sought as amicus curiae.
5. The fact that the prescribed quotas 40% for the urban areas i,e, residents of the cities of Karachi, Hyderabad and Sukkur and 60% from the remaining parts of the Province were followed in the recommendations made has been admitted. In this context reliance is placed upon Notification dated 16th January, 1971 spelling out the recruitment policy in public services, which reads as under: "I am directed to say that with a view to given fair representation in public services to persons residing in big cities as well as those residing in small towns and rural areas of the Province it would be advisable to keep the following guide line in view while filling up vacancies reserved for direct recruitment.
(1) 40% of the vacancies from candidates residing in the cities of Karachi, Hyderabad and Sukkur.
(2) The remaining 60% from candidates residing in other cities and rural areas of the Province.
While filling up the vacancies in the manner indicated above, the requirements of public service should be fully kept in view and in conforming with these guide lines, any lowering of the standard of selection should be avoided."
6. Mr. Haseebur Rehman learned counsel for the petitioners in the first place argued that the prescription of regional quotas in public services was repugnant to the Injunctions of Islam and any law, rule or policy decision having the force of law was liable to be struck down under Article 2A of the Constitution. In support of his contention learned counsel relied upon the pronouncement of the Federal Shariat Court in Nusrat Baig Mirza v. Government of Pakistan (PLD 1992 .F.S.C. 412) and certain observations of the Honourable Supreme Court in Mushtaque Ahmed Mohal v. The Honourable Lahore High Court (1997 SCM R 1043). Moreover, alternatively learned counsel contended, that even if appointments in other areas of public service could be validly made on the basis of quotas, the same could not be extended to the judiciary inasmuch as the judiciary enjoyed a special status in an Islamic society. In support of this contention learned counsel placed strong reliance on certain observations of the Honourable Supreme. Court in the famous case of Al-Jihad Trust v. Federation of Pakistan (PLD 1996 SC 324), which we propose to discuss in some detail a little later.
7. Mr. Manzoor Ali Khan learned Amicus curiae, however, conceded that the notification reproduced in Para. (5) above had the force of law and its validity in general could not be questioned. He nevertheless, argued that since the advertisement appearing in the press on 6-10-1999 did not mention that appointments would be made according to the prescribed quotas in terms of the notification, dated 16th January, 1971, the same was liable to be ignored for the purpose of selection pursuant to the same. The respondent No,3 and the learned A.-G., however, argued that once the notification was acknowledged to have the force of law appointments were required to be made in terms thereof and the mere omission to mention in the advertisement was inconsequential. The latter added that when candidates were required to enclose copies of their Permanent Residence Certificates/Domicile Certificates alongwith their applications and were required to bring such certificates at the time of interview, it was clear that the notification was to be given effect.
8. Before going into the larger question raised by Mr. Haseebur Rehnran it might be pertinent to deal with the contention of Mr. Manzoor Ali Khan. Learned counsel argued that in the absence of a clear stipulation in the advertisement the petitioners were entitled to assume that selection could be male on the basis of open merit and thereafter there was no justification for applying the terms of the notification. With profound respects to the learning and experience of the learned counsel, we regret our inability to accept the contention. As rightly pointed out by the respondent No,3 once it is conceded that the terms of the notification are part of the law, selections could only be made according to law and ignorance of law on the part of the petitioners could not give rise to any legal right or even legitimate expectation. There is also force in the contention of the learned A.-G. That the direction to submit parmanent residence certificates itself indicated that will be followed. In any event once the law required that selections have to be made according to a method laid down in the notification it could not be assumed under any circumstances that any authority, howsoever, high or low could be possessed of an implied power to exclude the application of the mandate of law by omitting to mention the fact that such law will be followed in effecting appointments. Indeed there could be no estoppel against law. We, therefore, find the contention entirely untenable and would hold that the omission in question in the advertisement is inconsequential.
9. Coming to the main contention of Mr. Haseebur Rehman it is indeed correct that the Federal Shariat Court did in the abovementioned case of Nusrat Baig Mirza hold that rule 14 of the Pakistan Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 and the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 in so far as the required vacancies to be filled in accordance with regional or district quota determined by the Government from time to time as repugnant to the Injunctions of Islam. Nevertheless, upon our enquiry the Registrar of the Honourable Supreme Court has informed us that appeals against the aforesaid judgment being Shariat Appeals Nos.80-84 of 1992 was preferred against the aforesaid judgment which is still pending. By virtue of proviso to Article 203-D(2) the judgment of the Shariat Court is yet to take effect.
10. Article 27(1) of the Constitution guarantees a fundamental right to the effect that no citizen otherwise qualified for appointment in the service of Pakistan shall be discriminated against in respect of such appointment on the ground only of race, religion, cast, residence or place of birth.
The first proviso to this Article, however, initially stipulated that for a period of not exceeding 1[0 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. Through P.O. 14 of 1985 this period of 10 years was extended and substituted to read 20 years. In the case of Mushtaque Ahmed Mahal v. Lahore High Court (1997 SCM R 1043), the Honourable Supreme Court held that the period of 20 years having expired on 14-8-1993 selection sought to be made on Zonal basis after the expiry of the said period were unconstitutional. Nevertheless, though the 17th Amendment Act passed in August, 1999 the period of 20 years was extended to 40 years which means that reservation of seats for persons belonging to specific classes or areas is Constitutionally permissible upto 14-8-2013.
11. At this stage it may be pertinent to examine the rationale for reservation of seats contemplated by the first proviso to Article 27(1) and consider whether it causes any substantive discrimination violating the scheme of the Constitution or the Islamic principles of equality. What needs to be kept in view is the fact that because of uneven economic development and lack of appropriate educational facilities in certain parts of the country the residents of those areas came to be so handicapped that they were unable to compete with their more fortunate counterparts in the developed areas on the basis of straight open competition. Their relatively poorer performance in examination did not reflect any inherent lack of intelligence or capabilities but only reflected the absence of facilities available to them, which could, harness their talent. To attain the objective of genuine equality of opportunities rather than mere nominal equality in accordance with the true spirit of Islam, the Constitution makers stipulated enabling provisions to undertake affirmative action for the benefit of the under-privileged. For instance while Article 22(3)(b) forbids discrimination in admission to State aided educational institutions on grounds of race, religion, or place of birth, Article 22(4) enable the public authority for making provisions for the advancement of any socially or educationally backward clause of citizens. Similarly while clauses (1) and (2) to Article 25 guarantee equality and equal protection of law to all citizens and forbid sex discrimination, clause (3) of the said Article enables to state to make special provisions for protection of women and children. Likewise in the principles of policy clause (a) of Article 37 enjoins the state to promote with special care the educational and economic interests of backward classes or areas and clause (1) requires it to enable the people of different areas through education training and other methods to participate fully in all forms of national activities including employment in the service of Pakistan. The first proviso to Article 27(1) in our humble opinion needs to be read in the same context. Apparently at the time of the enforcement of the Constitution it was considered that the socioeconomic disparties between the different areas, would be substantially overcome within 10 years. However, since such object could not be achieved for some reasons the period was extended to 20 years and subsequently to 40 years.
12. Since more or less similar socio-economic conditions operate in India it might be worthwhile to quote the following observations of the then Chief Justice Bhagwati in Pardeep Jain v. Union of India (AIR 1984 SC 1420) in upholding certain reservations of seats for residents of particular areas:- "Now the concept of equality under the Constitution is a dynamic concept. It takes within its sweep every process of equalisation and protective discrimination. Equality must not remain mere idle incantation but it must become a living reality for the large masses of people. In a hierarchical society with an indelible feudal stamp and incurable actual inequality, it is absurd to suggest that progressive measures to eliminate group disabilities and promote collective equality are antagonistic to equality on the ground that every individual is entitled to equality of opportunity based purely on merit judged by the marks obtained by him. We cannot countenance such a suggestion, for to do so would make the quality clause sterile and perpetuate existing inequalities.
Equality of opportunity is not simply a matter of legal equality. Its existence depends not merely on the absence of disabilities but on the presence of abilities. Where, therefore, there is inequality, in fact, legal equality always tends to accentuate it. What the famous poet William Blake said graphically is very true, namely One law for the Lion and the Ox is oppression'. Those who are unequal, in fact, cannot be treated by identical stands; that may be equality in law but it would certainly not be real equality. It is, therefore, necessary to take into account de facto inequalities which exist in the society and to take affirmative action by way of giving preference to the socially and economically disadvantaged persons or inflicting handicaps on those more advantageously placed in order to bring about real equality. Such affirmative action though apparently discriminatory is calculated to produce equality on a broader basis by eliminating de facto inequalities and placing the weaker sections of the community on a footing of equality with the stronger and more powerful sections so that each member of the community, whatever is his birth, occupation or social position may enjoy equal opportunity of using to the full his natural endowments of physique, of character and of intelligence."
13. It may be pertinent to mention that the above judgment was cited with approval by the Supreme Court in the recent case of Attiyya Bibi Khan v. Federation of Pakistan (2001 SCM R 1161) and while striking down reservations of seats for different categories their Lordships, by majority upheld reservation for students domiciled in FATA, under developed districts, Azad Kashmir and Northern areas s well as disabled persons. In Miss Gul Rookh Sarfaraz v. Government of N.-W.F.P.
(2001 SCM R 1729) their Lordships approved an admission policy which allowed reservation of seats for candidates who had actually studied in the FATA region and rejected the claim of one who acquired education in urban areas merely on the basis of her domicile of the FATA region.
14. With respect to an alternate contention Mr. Hassebur Rehman emphatically argued that in an Islamic society the judiciary had to perform an extremely delicate function and utmost care needed to be taken in effecting judicial appointments. Learned counsel extensively relied upon the observations of Ajmal Mian, J. (as his Lordship then was) relating to .Position of judiciary in an Islamic society which were enumerated in Para. 22 of the judgment and may be reproduced as follows-- "From the above-quoted Verses from Holy Qur'an and other literature on the subject, inter alia the following is deducible:
(i) that the Holy Qur'an repeatedly enjoins that one who believes in Allah, His Prophet Muhammad (p.b.u.h), Qur'an and Sunnah, should stand out firmly for justice, as witnesses to Allah, even as against himself or his parents, his kin, rich and poor;
(ii) that the hatred of others should not make you severe to wrong and depart from justice;
(iii) that the Judges are not to be led by personal likes or dislikes, love or hate
(iv) that the Judges should . Maintain strict impartiality and even treatment in the Court inter se between the litigant parties notwithstanding that one of the parties might be very powerful and influential;
(v) to a Judge, all are equal in the eye of the law. As God dispenses justice among his subjects, so a Judge should judge without any distinction whatsoever;
(vi) that a judge must exhibit patience and perseverance in scanning the details, in testing the points presented as true and sifting facts from fiction and when truth presented itself to them, he must pass judgments without fear, favour or prejudice;
(vii) that the power to appoint inter alia Judges is a sacred trust; the same should be exercised in utmost good faith. Any extraneous consideration other than the merit is a great sin entailing severe punishment;
(viii) that while selecting Judges the Authority concerned should be very careful. It should select people of excellent character, superior caliber and meritorious record. Abundance of litigations and complexity of cases should not make them lose their temper;
(ix) that a Judge should not be corrupt, convetous or greedy;
(x) that a Judge should be paid handsomely so that his needs are fully satisfied and he is not required to beg or borrow or resort to corruption;
(xi) that a Judge must be a man of having deep insight, profound knowledge of Shariah, God- fearing, forth right, honest, sincere man of integrity;
(xii) that a Judge must be upright, sober, calm and cool. Nothing should ruffle his mind from the part of rectitude;
(xiii) that Judges should be given such a prestige and position in the State that none of the Government functionaries can over lord them or bring them harm.
15. Learned counsel particularly referred to the observations in subpara. (vii) above to contend that merit and merit alone ought to be the only criterion in the appointment of Judges. Indeed there could no cavil with the above weighty observations of the Honourble Supreme Court, but the important question to be considered is whether mere number of marks secured by a candidate in a written test and an interview can be treated as the sole criterion of his merit and the attributes that a person possess for being able to perform the onerous duties of a Judge. Indeed mere knowledge of law or ability to answer questions put to a particular person with a reasonable amount of confidence cannot reflect the several qualities, which a Judge ought to pass in terms of the above formulation. At the same time it is important to keep in view the fact that a candidate, at the threshold of his career who does not perform as well as his other colleagues in an examination owing to insufficiency of proper educational facilities cannot be dubbed as less meritorious. Once again it may be proper to quote the following observations in Paradeep Jain's case:-- "It is axiomatic that talent is not the monopoly of the residents of any particular State; it is more or less evenly distributed and given proper opportunity and environment, every one has a prospect of rising to the peak. What is necessary is equality of opportunity...."
16. From the above, we are of the opinion that mere grant of some weightage to persons who have not held the availability of opportunities to demonstrate their true talent cannot be treated as something repugnant to the concept of merit visualized in the aforesaid judgment. Indeed there could be no cavil with the weighty observations of the Honourable Supreme Court in the celebrated cases of Al-Jihad Trust (PLD 1996 SC 324) and Mushtaque Ahmed Mohal (1997 SCM R 1043) relating to the standards for appointments in the service of Pakistan and the judicial services in particular in Islamic society. At the same time, however,, terms of the proviso to Article 27(1) and several other provisions casting an obligation upon the State to take affirmative action for the benefit of residents of less developed areas and other under privileged groups cannot be overlooked. We may mention that into recent cases decided by the Honourable Supreme Court in namely Attiyya Bibi Khan v. Federation of Pakistan (2001 SCM R 1161) and Miss Gui Rookh Sarfaraz v.
Government of N.-W.F.P. (2001 SCM R 1729) reservation of seats in medical colleges for residents of less developed and socially backword areas was upheld in the larger public interest. Fortunately, the rule applicable in the instant case in the form of the notification dated 16-1-1971 seeks to preserve a delicate balance by attempting to ensure that some measure of weightage is granted to the residents of rural areas who may not have had the same facilities to harness their true talent and potential as compared to their more fortunate colleagues in the urban areas but without sacrificing the basic criterion of merit.
17. As is evident from the terms of the notification reproduced in Para. 5 above, the 40% of the vacancies for direct recruitment are to be filled from candidates residing in the cities of Karachi, Hyderabad and Sukkur and the remaining 60% from those residing in smaller towns and rural areas. What is important to keep in view, however, is that such reservations are not stipulated in absolute or mandatory terms, but merely as guidelines which are declared to be "advisable" to be followed. Again para. 2 of the aforesaid notification expressly stipulates that while filling vacancies in the above manner the requirements of public service should be fully kept in view and in conforming with these guidelines lowering standards of selections ought to be avoided. As against the above, the office memorandum dated 31-8-1973 with respect to employments in the Federal Government reads as under:-- "It has been decided that with immediate effect the following merit and provincial/regional quotas shall be observed in filling vacancies reserved for direct recruitment to posts under the Federal Government which are filed on all-Pakistan basis:-- ' Merit quota.................................................................. 10% ' Punjab (including Federal area of Islamabad)................... 50% ' Sindh (including Karachi) ............................................. 19% ' The share of Sindh will be further sub-allocated in the following ratio: ' Urban areas namely Karachi, Hyderabad And Sukkur...40% of 19% ' Or 7.6% ' Rural areas i,e, rest of Sindh excluding Karachi, Hyderabad and Sukkur...................................................................... 60% of 19% Or 11.4% ' N.W.F.P...........................................................................................
11.5% ' Baluchistan..........................................................................................
3.5% ' Northern Areas and Federally Administered Tribal Areas.............. 4% ' Azad Kashmir......................................................................................... 2%
18. A comparison of the two stipulations would manifestly demonstrate that while the rules of the Federal Government provides for a rigid reservation of quotas on Provincial/regional basis, those operating in this province confer a reasonable amount of discretion upon the selection authority in departing from the guidelines if the exigencies of public service or the need to maintain high standards are required. Indeed the Registrar of this Court as well as the learned A.-G. Attempted to argue that under all circumstances the 60:40 ratio ought to be maintained, but we regret we are not impressed by this contention. It was argued that the rule creates two distinct categories of candidates from the urban and rural areas and Para.2 only stipulates that there should be no lowering of standards from within each group and candidates from each of the two groups should be selected on the basis of merit from within that group. In our view apart from the question whether such rigid classification would meet the test of constitutionality such an interpretation would render Para.2 of the notification altogether meaningless because it is undisputable that even in the case of rigid categorization only the more meritorious candidate from within a particular group could be selected. We are, therefore, of the view that though normally the 60:40 ratio is to be maintained a departure may be justified in case the requisite number of candidates from particular group are unable to meet a minimum threshold of qualifying marks which may be determined by a selection authority or if the disparity between the marks obtained by a candidate not qualifying for selection from one group and another selected from the other group is too high.
19. In view of the above interpretation of the rule in question we decided to examine the marks sheet of the 117 candidates, who were called for interview and the list of the candidates recommended for appointment made available to us. We noticed that candidate securing less than 45% marks in the written test were not called for interview and it is evidence that minimum standards were laid down by the Selection Board. Upon going through the list of the marks obtained by the candidates recommended for appointments, which transpired that 20 candidates (about 42%) from the urban areas and 28 (about 58%) from the rural areas were selected. The last candidate from the first category had obtained 47 marks and the last from the second category secured 42 marks. It is, therefore, evident that a mere difference of 5% marks could not be treated as lowering of standards by any stretch of imagination. We are, therefore, of the clear opinion that the recommendations were made entirely in consonance with the letter and spirit of the rules and the applicable Constitutional principles. For these reasons we find no force in this petition. We may add that the petitioners Nos.1 and 3 could only obtain 41 and 42 consolidated marks, and therefore, even if the quota system had not been followed there was no possibility of their selection.