MUSHTAQ AHMAD MOHAL Versus HONOURABLE LAHORE HIGH COURT, LAHORE

AJMAL MIAN, J.‑‑‑ This is a Constitution petition filed under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973, hereinafter referred to as the Constitution, by the ten petitioners who had appeared in the competitive examination for the posts of Civil Judges‑cum -Judicial Magistrates in response to the public advertisement appeared in the leading national newspapers on 8‑1‑1993 on behalf of the Punjab Public Service Commission, hereinafter referred to as the Commission, and who were not appointed on regular basis. They have prayed for the following reliefs:‑‑

"It is, therefore, respectfully prayed that the decision/order of the Administration Committee of the honourable Lahore High Court, Lahore taken/passed on 28‑11‑1995 may kindly be declared to be without lawful authority and of no legal effect.

It is further prayed that the honourable Lahore High Court, Lahore (in its capacity as the Appointing Authority of Civil Judges‑cum‑Judicial Magistrates) may graciously be directed to appoint the petitioners, whose names have already been recommended for appointment by the, Punjab Public Service Commission, as Civil Judges‑cum‑Judicial Magistrates in the Province of the Punjab against available vacancies."

2. The brief facts are that pursuant to the request of the Lahore High Court, hereinafter referred to as the High Court, the Service and General Administration Department of the Government of the Punjab, hereinafter referred to as the S&GAD, had sent a requisition to the Commission for holding of examination and making recommendations for filling 25 posts of Civil Judges‑cum‑Judicial Magistrates, the break‑up of which was as under: ‑‑

(i) 13 seats for Zone I (comprising Lahore, Gujranwala and Multan Divisions, and the Districts of Rawalpindi, Islamabad, Sargodha, Khushab, Faisalabad and Toba Tek Singh);

(ii) 6 seats for Zone 11 (comprising Bahawalpur and Dera Ghazi Khan Divisions and the Districts of Attock, Jhelum, Chakwal, Mianwali, Bhakkar and Jhang);

(iii) 5 seats for the whole of Punjab on open merit; and

(iv) I seat for disabled persons.

3. Pursuant to the above requisition the Commission got issued the aforesaid advertisement in the leading national newspapers. In response to the above advertisement, the Commission received 1196 applications; out of which 989 were found in order. The competitive examination was held in August, 1993, in which only 339 candidates actually appeared in the written examination. Out of them, only 58 candidates secured 33 % marks in individual papers and 50% in the aggregate of the written examination. The aforesaid candidates were summoned for Psychological/Viva Voce test. Out of them, the Commission recommended 24 candidates against the above requisition for the aforesaid posts of Civil Judges‑cum‑Judicial Magistrates. It appears that before the abovementioned posts could be filled in, the High Court requested for the recommendation of 14 additional candidates out of the above candidates who had qualified.

4. In this regard the Section Officer of the S&GAD addressed inter alia letter dated 3‑1‑1994 to the Secretary of the Commission in continuation of their aforesaid earlier letter dated 16‑12‑1992 stating therein that the Registrar of the High Court had increased the number of vacancies from 25 to 39 through his letter dated 13‑12‑1993. It was also stated that the Zonal allocation would be as under:‑

"All Punjab Basis

Zone‑II

Zone‑I

7

8

23 (one post less than quota which will be brought forward next cycle)

It was also pointed out that out of 39 vacancies, one was meant for disabled, quota.

5. In response to the above letter the Secretary of the Commission addtessed a letter dated 17‑1‑1994 to the Additional Chief Secretary, S&GAD pointing out therein that according to the policy of the Commission the posts of Civil Judges‑cum‑Judicial Magistrates then increased could not be clubbed with the posts being filled in through the present selection because written examination and psychological test had already been held and interviews were scheduled to be held from 2‑2‑1994.

6. It may be stated that petitioner No.1, Mushtaq Ahmad Mohal,. filed Writ Petition No.3922 of 1994 in the High Court alongwith an application for an ad‑interim injunction for restraining the Commission from issuing any fresh advertisement for the aforementioned additional posts. The above matter was placed on 4‑5‑1994 before a learned Single Judge of the High Court, who ordered for issuance of notice to the Secretary of the Commission and the Acting, Registrar of the High Court. He also passed the following interlocutory order restraining‑the Commission from issuing any fresh advertisement for the above 14 additional posts:‑‑

"2. Meanwhile the Punjab Public Service Commission is restrained from issuing any fresh advertisement for the additional posts of fourteen Civil Judges‑cum‑Judicial Magistrates. The Commission is further directed to make recommendations for filling in the fourteen additional posts from among the qualified candidates whose applications have already been received but the recommendations shall not be acted upon by the competent authority till final disposal of this writ petition, which may be listed for hearing on 5‑6‑1994."

7. It seems that some other petitioners also filed writ petitions in the High Court, namely, Writ Petitions Nos.5177 of 1994, 5330 of 1994, 6283 of 1994,

7219 of 1994 and 7234 of 1994. In the aforesaid writ petitions also applications for interlocutory orders were filed. It appears that an application for vacation of the stay order was also filed. The same were taken up by the same learned Single Judge on 14‑7‑1994, who disposed of the above applications as under:‑‑

"6. Meanwhile, the interim order dated 4‑5‑1994 passed in Writ Petition No.3922/94 shall also be applicable to the connected Writ Petitions Nos.5177/94, 5330/94, 6283/94, 7219/94 and 7234/94. The interim order dated 4‑5‑1994 is modified to the extent that provisional appointments of the Civil Judges‑cum‑Judicial Magistrates shall be made and the same shall be in accordance with the recommendations made by the Committee to the Registrar of this Court, subject to final decision in these petitions. This stop‑gap arrangement is in the public interest."

8. Pursuant to the above order, the Deputy Registrar of the High Court issued the following letter dated 24‑7‑1994 inter alia to the petitioner:‑‑

"Subject: Sub mission of Affidavit R egarding No Marriage with any Foreign National :

I am directed to say that pursuant to recommendations of the Punjab Public Service Commission and order dated 14‑7‑1994 passed in W.P. No.3922‑94 and other connected petitions;‑you are to be appointed as Civil Judge‑cum‑Judicial Magistrate, provisionally subject to your furnishing of affidavit regarding 'Not Marriage' with any foreign national.

2. Kindly submit the requisite affidavit in this Court, within three days, positively. "

After that the Deputy Registrar of the High Court addressed a letter to the Medical Superintendent, Services, Hospital, Lahore, for constituting a medical board for medical examination of inter alia the petitioners.

9. Thereafter the aforementioned writ petitions came up for hearing before a larger Bench of the High Court comprising three learned Judges inter alia on 12‑7‑1995, when the same were disposed of in the following terms:‑‑

"Learned Advocate‑General states that by virtue of the Punjab judicial Service Rules, 1994 the Appointing Authority of the Civil Judges is the High Court and the Provincial Government has no say in the matter and it would have no objection to any decision that the High Court would like to take in relation thereto.

2. The above legal position is not controverted by learned counsel for the petitioner. They also concede that no writ can be issued to the High Court. They maintain that they would be satisfied by whatever decision is taken by the High Court on administrative side in the matter.

The writ petition is disposed of in the above terms. The C.M. is also disposed of accordingly."

10. It appears that the Administration Committee of the High Court in its meeting held on 17‑10‑1995 constituted a Sub‑Committee for examining the petitioners' case, which after detailed examination, submitted its report dated 22‑11‑1995 and which recommended as under:‑‑

"10. We have discussed the matter in detail in the light of the provisions of the Constitution of the Islamic Republic of Pakistan, 1973, in particular, Article 27 thereof. The additional 14 vacancies became available in January, 1994. The Constitution came into force in April, 1973. Under Article 27, as substituted by President's Order No. 14 of 1985, allocation of posts to different zones (quota system) was permissible for twenty years which expired in April, 1993. In our view, therefore, prima facie, no appointment can be made against these 14 vacancies on the basis of quota system which stood abolished on the expiry of period of twenty years in April, 1993.

11. Let, therefore, the Punjab Public Service Commission be asked to invite applications by making fresh advertisement to fill in the available vacancies of Civil Judge‑cum‑Judicial Magistrates on merit, on all Punjab basis."

11. The above Sub‑Committee's report was considered by the Administration Committee of the High Court on 28‑11‑1995 and the following decision was taken:‑‑

"The report of the Sub‑Committee is approved. The Punjab Public Service Commission be asked to invite applications by making fresh advertisement to fill in the available vacancies of Civil Judges‑cum- Judicial Magistrates on merit on all Punjab basis."

The Registrar of the High Court addressed letters inter alia to the petitioners informing them about the above decision of the Administration Committee. After that the petitioners filed aforesaid Constitution petitions. .

12. It appears that pursuant to the above decision of the Administration Committee of the High Court, the High Court requested the Commission to invite applications for appointment of Civil Judges‑cum‑Judicial Magistrates. Pursuant to that the examination was held for the same. According to Mr. Asif Saeed Khan Khosa, learned counsel for the petitioners, petitioners Nos. l, 6 and LO also appeared in the aforesaid examination. Petitioner No. l failed in the said examination, whereas petitioners Nos.6 and 10 were successful on all Punjab basis. Consequently, they were appointed as Civil Judges‑cum‑Judicial Magistrates. It will not be out of context to mention here that 24 candidates who were recommended by the Commission out of the 25 candidates in February, 1994, were appointed on zonal basis while the matter of 14 additional vacancies was in controversy/litigation.

13. Mr. Asif Saeed Khan Khosa in support of the above petition has urged that since the High Court had treated the increase of 14 seats as art amendment in the original requisition for 25 seats, the petitioners were to be treated alike with the aforesaid 24 candidates who were appointed on zonal basis on the basis of above original requisition.

14. The above contention is unfounded. It is an admitted position that the petitioners were below in the merit list from the above 24 candidates who were selected on zonal basis. Secondly, the stand of the Commission that under its policy a fresh advertisement was to be issued for the aforesaid 14 additional seats and that the same could not be clubbed with the original requisition of 25 seats, was in accord with Regulation No.20 of the Punjab Public Service Commission Regulations, 1992, hereinafter referred to as the Regulations, as pointed out by Mr. Shabbar Raza Rizvi, learned Additional Advocate‑General, Punjab. The above Regulation provides as follows:‑‑

"20.‑‑‑(1) If the requisitioning Authority intimates additional vacancies to the Commission before the date of test/examination or interview has been fixed a fresh advertisement/amendment to the previous advertisement shall be issued inviting fresh applications. The candidates who had already applied in response to the original advertisement, will not be required to apply again.

(2) In case the additional vacancies are not more than 10 per cent. of the vacancies already advertised, such increase in vacancies will be notified in the press but this will not involve inviting fresh applications."

15. However, it was urged by Mr. Khosa that clause (1) of the aforesaid Regulation is applicable when the Commission receives intimation for the additional vacancies before the date of test/examination/interview and not to a case like the one in hand in which examination and interviews had already taken place.

16. The above contention does not stand to logic or reason. If the requirement to issue a fresh advertisement for additional vacancies in case in which date of test/examination or interview has not been fixed is mandatory in view of the above regulation, the same is attracted with more vehemence in a case in which the test/examination and interviews have already taken place.

It may be observed that even otherwise, the Constitutional requirement, inter alia, enshrined in Article 18 of the Constitution which enjoins that "Subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business" includes the right of a citizen to compete and participate for appointment to a post in any Federal or a Provincial Government department or an attached department or autonomous bodies/corporations etc. on the basis of open competition, which right he cannot exercise unless the process of appointment is transparent, fair, just and free from any complaint as to its transparency and fairness. The above objective enshrined in our Constitution cannot be achieved unless due publicity is made through public notice for inviting applications with the aid of the leading newspapers having wide circulation.

It may be pointed out that the above question came up for consideration before this Court In re: Abdul Jabbar Memon and others 1996 SCMR 1349), wherein it concluded as under:‑‑

"The matter has come up for consideration in the presence of the Deputy Attorney‑General. Provincial Law Officers and Mr. Anwar Kamal, Advocate/counsel for PIA. The interim order proposed to be made is hereby confirmed and the case adjourned to enable the Provincial Governments, the Federal Government and the counsel for PIA to seek appropriate instructions from their respective Governments/Departments and to ensure compliance with the order. The interim order is reproduced hereunder in extenso:‑‑

'While inquiring into various complaints of violation of Fundamental Human Rights, it has been found that the Federal Government, Provincial Governments, Statutory Bodies and the public authorities have been making initial recruitments, both ad hoc and regular, to posts and offices without publicly and properly advertising the vacancies and at times by converting ad hoc appointments into regular appointments. This practice is prima facie violative of Fundamental Right Article 18 of the Constitution) guaranteeing to every citizen freedom of profession. Subject to notice to all concerned, and subject to final orders after full hearing in the matter, it is ordered as an interim measure that the violation of this Fundamental Human Right shall be discontinued forthwith. Steps shall immediately be taken to rectify, so as to bring the practice in accord with the Constitutional requirement."

17. We reiterate that the appointments to various posts by the Federal Government, Provincial Governments, Statutory Bodies and other Public Authorities, either initial or ad hoc or regular, without inviting applications from the public through the press, is violative of Article 18 read with Article 2A of the Constitution, which has incorporated the Preamble to the Constitution as part of the same and which inter alia enjoins equality of opportunity and guarantees for creation of an egalitarian society through a new order, which objective cannot be achieved unless every citizen equally placed or situated is treated alike and is provided equal opportunity to compete inter alia for the posts in aforesaid Government set‑ups/institutions.

18. Then it was contended by Mr. Asif Saeed Khan Khosa that as the selection process for the appointment of Civil Judges‑cum‑Judicial Magistrates had commenced on 8‑1‑1993 and as the additional requirement of 14 vacancies of the above posts was in fact an amendment of the original requisition, the aforesaid selection process was to be concluded on the basis of the law obtaining on 8‑1‑1993. According to him since the period of 20 years mentioned in proviso 1 to clause (1) of Article 27 of the Constitution had expired on 14‑8‑1993, the High Court was not justified in pressing into service Article 27 of the Constitution against the petitioners. To reinforce the above submission, he has relied upon the case of Governor, N.‑W.F.P. and another v. Gul Naras Khan (1987 SCMR 1709).

On the other hand, Mr. Shabbar Raza Rizvi, learned Additional Advocate‑General Punjab, has referred to the case of Government of N.‑W.F.P., Health and Social Welfare Department v. Dr. Sheikh Muzaffar Iqbal and others (1990 SCMR 1524) to contend that the rules obtaining at the time of the appointment were applicable to the petitioners.

19. In order to appreciate the above submissions of the learned counsel for the parties, it may be advantageous to reproduce Article 27 of the Constitution, which 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 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."

A perusal of the above‑quoted clause (1) of Article 27 of the Constitution (which relates to one of the Fundamental Rights guaranteed by the Constitution), enjoins that 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. It may further be pointed out that the original first proviso to the above clause provided that for a period not exceeding ten 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. The above period of ten years was substituted by twenty years through President's Order No. 14 of 1985. The said period of twenty years had expired on 13‑8‑1993 as the Constitution was enforced on ‑14‑8‑1973. It may also be observed that proviso 2 to above clause lays down that in the interest of the service of Pakistan, specified posts or services may be reserved for members of either sex if such posts or 4ervices entail the performance of duties and functions which cannot be adequately performed by members of the other sex.

It may be pertinent to point out that by virtue of clause (2) of above Article any Provincial Government, or any local authority in a Province has been empowered to prescribe the requirement of residence in the Province for a period not exceeding three years in relation to any post or class of service.

It may be highlighted that Clause (1) of Article 27 of the Constitution guarantees that every citizen will have equal opportunity for appointment in the service of Pakistan if otherwise qualified. Whereas clause (2) thereof also guarantees equal opportunity to all the citizens with the condition that any Province or local authority may prescribe the requirement of three years residence in the Province concerned in order to ensure that the locals of that Province should have preferential right to have a job as compared to an outsider, who has no domicile and has not been residing for a period of three years in that Province. This condition has been provided apparently in order to ensure the Provincial autonomy which the Constitution guarantees to the Federating Units.

20. We may observe that Article 27 of toe Constitution is to be read in conjunction with inter alia Articles 2A, 18 and 25 of the Constitution. Aforesaid Articles 2A and 18 of the Constitution have already been referred to hereinabove. Whereas above Article 25 of the Constitution guarantees that all citizens are equal before law and are entitled to equal protection and that they shall not be discriminated on the basis of sex alone. Inter alia the above Articles of the Constitution are designed, intended and directed to bring about an egalitarian society based on Islamic concept of social justice.

We may state that in view of the above factual position, namely, that the period of twenty years mentioned in proviso 1 to clause (1) of Article 27 had expired on 13‑8‑1993, the High Court could not have invited applications for the above 14 additional vacancies for the posts of Civil Judges‑cum‑Judicial Magistrates on zonal basis as it would have been violative of aforesaid clause (10 of Article 27 of the Constitution.

21. The contention of Mr. Asif Saeed Khan Khosa that since the process of recruitment had commenced on 8‑1‑1993 when the applications for appointment to the above 25 posts of Civil Judges‑cum‑Judicial Magistrates were invited through the press by the Commission and as the additional requirement of 14 vacancies was part of the above process, the appointments were to be made on the basis of law obtaining in January, 1993, is untenable. The judgment of this Court in the case of Governor of N.‑W.F.P. and another v Gul Naras Khan (supra), relied upon by Mr. Khosa has no relevance. On the contrary, it is against the proposition urged by him. In the above case it was held that the right of appeal is a substantive right which could not be taken away by amendment unless the law expressly so provides. It was further held that since new subsection (6) of section 13 incorporated by ordinance XIX of 1961, in section 13 of Act XII of 1976 which contains non Obstinate provision, the same was entitled to override all the provisions of the Ordinance, Regulations and Rules which were enforced at the time when the above subsection came into froce.

22. On the other hand, the judgment of this Court in the case of Government of N.‑W.F.P., Health and Social Welfare Department (supra) is directly applicable to the instant case, in which also somewhat similar contention was advanced. In the above report reliance was placed on an earlier judgment of this Court in the case of Dr. Habibur Rahman v. The West Pakistan Public Service Commission, Lahore and 4 others (PLD 1973 SC 144) and the relevant extract from the judgment of the above case was quoted with approval as under:‑‑

"In the case of Dr. Habibur Rahman v. The West Pakistan Public Service Commission, Lahore and 4 others (PLD 1973 SC 144) recruitment to the post of Professors of Surgery for Medical Colleges in West Pakistan was taking place through an interview by the Public Service Commission. After the advertisement and before the interview, the qualifications were changed. A vested right was claimed in the qualification advertised and the conditions current at the time of interview were sought to be avoided. The matter was dealt with by this Court in the following words at page 156 of the report:‑‑

'While considering the question whether relevant rules/instructions have been infringed in any manner in the matter of assessing the respective merit of the competing candidates, it has to be borne in mind that the reference must be to instructions current at the time the interviews are held by the Public Service Commission. An attempt was made during the course of arguments at the Bar to assert that the instructions applicable should be those which were in force at the time the posts were advertised. This position cannot be accepted as it is difficult to hold that candidates applying for recruitment by interview have any vested right in the method of assessing their merit. Accordingly, we intend to examine this aspect of the case with reference to the instructions which were in force at the time the two interviews were held.'

The law has since been well-established that the rules applicable and the conditions required to be satisfied on the date of appointment are to be taken into consideration and not what were the requirements at an earlier date."

23. It is evident from the above‑quoted extract that by now it is a well -established principle of law that the rules applicable and the conditions required to be specified are those which are in force on the date of appointment and not which were obtaining earlier i.e. at the time of inviting applications etc.

24. Then it was lastly contended that even nowadays the Government Departments in the Federal as well as the Provincial Governments and other corporate bodies have been inviting applications for appointment on zonal or area basis. To reinforce the above submission he wanted to show certain advertisements which appeared in the daily newspapers for inviting applications. The fact that in spite of expiry of the period of twenty years some of the departments in violation of Article 27 of the Constitution, have been inviting applications on the zonal basis is not sufficient to justify the petitioner's claim on the above basis.

25. We deprecate the above conduct on the part of the defaulting departments. It may be observed that Clause (1) of Article 27 of the Constitution in fact enshrines what has been commanded by Allah and his Holy Prophet (p.b.u.h.). In this regard it may be pertinent to quote paras. 11, 12, 22 and 36 from the judgment of the Federal Shariat Court in the case of Nusrat Baig Mirza v. Government of Pakistan and another (PLD 1992 FSC 412) rendered by Tanzil‑ur‑Rehman, C.J. sitting with Fida Muhammad Khan and Nazir Ahmad Bhatti, JJ:‑‑

"11. The following verse of the Holy Qur'an is very much apt to the issue before us that there is no difference between the individuals of mankind on the basis of race, colour and territory. All human beings are equal in eyes of Allah as He created man from a quinteinssence of clay. The Holy Qur'an says:

(O mankind! We created you from a single (pair) of male and a female, and made you into nations and tribes that ye may know each other (Not ye may despise each other). Verily the most honoured of you in the sight of Allah is (He) who is the most righteous of you (Al‑Hujrac 49:13).

12. By this verse the entire humanity is addressed i.e. all mankind without any distinction as to caste, creed and colour, and the territory, origin or place of residence. Let us here note this fundamental message of Islam that all humanity belongs to one human family, without any inherent superiority of one over the other. Consequently all racial, national or tribal prejudices stand condemned. The Prophet said. "Behold, Allah has removed from you the arrogance of pagan ignorance (Jahiliyyah) with its boast of ancestral glories. Man is but a Allah- conscious believer or an unfortunate sinner. All people are children of Adam, and Adam was created out of dust." (Fragment of a hadith quoted by Tirmidhi and Abu Daud, on the authority of Abu Hurairah). The Holy Qur'an further says:

(Give not unto the abolish your wealth which Allah has given you) (Al- Nisa 4:5)."

22. The Holy Qur'an has fixed a parameter of the selection of eligible person for getting appointments. The Holy Qur'an says:‑‑

(Truly the best of men for thee to employ is the man who is strong and trustworthy). (Al‑Qasas 28:36)."

36. The Holy Qur'an and Sunnah should form the basis of all our directions for all our spiritual as well as worldly endeavours as they provide us a guidance not only towards the good in the Hereafter but also to attain a good life in this world. Quota system in disregard of merit makes the place of domicile as the criteria and this has, unfortunately, been so woven and institutionalised in our socio‑political fabric that unless we return to the original message of the Holy Qur'an we will be farther away from the righteous and straight path.

26. The above‑quoted paras. of the aforesaid judgment of the Federal Shariat Court are apt to the controversy in issue. It is manifest that the Holy Qur'an inter alia enjoins that there is no difference between the individuals of mankind on the basis of race, colour and territory and that all human beings are equal in the eyes of Allah. The fittest person who is strong and trustworthy is to be employed. It is evident that the concept of zone or quota system runs counter not only to the above clause (1) of Article 27 read with Article 2A and Article 25 of the Constitution, but also to the Commandment of Allah as ordained in the Holy Qur'an. We may observe that the quota system has not served Pakistan interest but on the contrary, it has generated parochial and class feelings resulting into disunity.

27. It will not be Gut of context to mention that in India also there are Article 15(4) and Article 16(4) in the Indian Constitution. The former guarantees that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them, but clause (4) thereof provides exception to the above rule by laying down that nothing in the aforesaid Article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes and the scheduled tribes. The latter Article (i.e. Article 16) guarantees equality of opportunity of public employment by providing inter alia that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. However, clause (4) thereof provides exception by laying down that 'Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State". The reasons for providing the aforementioned provisions have been succinctly stated by B.P. ' Jeevan Reddy, J. in his opinion for himself and on behalf of M.H. Kania, C.J. and M.N. Venkatachaliah, and A.M. Ahmadi, JJ. representing the majority view in the case of Indra Sawhney etc. etc., Petitioners v. Union of India and others, etc. etc., Respondents. (AIR 1993 SC 477) in the following words:‑‑

"2. The Constituent Assembly, though elected on the basis of a limited franchise, was yet representative of all section., of society. Above all, it was composed of men of vision, conscious of the historic but difficult task of carving an egalitarian society from out of a bewildering mass of religions, communities, castes, races, languages, beliefs and practices. They knew their country well. They understood their society perfectly. They were aware of the historic injustices and inequities afflicting the society. They realised the imperative of redressing them by Constitutional means, as early as possible for the alternative was frightening. Ignorance, illiteracy and above all, mass poverty, they took note of. They were conscious of the fact that the Hindu religion ‑the religion of the overwhelming majority ‑ as it was being practised, was not known for its egalitarian ethos. It divided its adherents into four watertight compartments. Those outside this fourtier system (Chaturvarnya) were the outcastes (Panchamas), the lowliest. They did not even belong to the caste system ‑ ugly as its face was. The fourth, Shudras, were no better, though certainly better than the Panchamas. The lowliness attached to them (Shudras and Panchamas) by virtue of their birth in these castes, unconnected with their deeds. There was to be no deliverance for them from this social stigma, except perhaps death. They were condemned to be inferior. All lowly, menial and unsavory occupations were assigned to them. In the rural life, they had no alternative 'gut to ' follow these occupations, generation after generation, century after century. It was their 'Karma , they were told, the penalty for the sins they allegedly committed in their previous birth. Pity is they believed all this. They were conditioned to believe it. This mental blindfold had to be removed first. This was a phenomenon peculiar to this country. Poverty there has been and there is in every country. But none had the misfortune of having this social division or as some call it, degradation ‑ superimposed on poverty. Poverty, low social status in Hindu caste system and the lowly occupation constituted‑‑and do still constitute a vicious circle.

The founding fathers were aware of all this and more. "

28. Fortunately for Pakistan, which has Islam as its religion, there is no caste or class system of the nature referred to hereinabove by Reddy, J. in the above Indian report. The religion of Islam is founded on the principle that there is no difference between the individuals of mankind on basis of race, colour and territory. From its advent, it abolished all class and caste system which was obtaining at that time in the world.

29. It may be pertinent to point out that even in India, the above exceptions to the fundamental rights contained in Articles 15 and 16 of the Indian Constitution have been construed strictly. In this regard, it will suffice to refer to the case of A. V. S. Narasimha Rao and others, Appellants v. The State of Andhra Pradesh and another, Respondents (AIR 1970 SC 422), in which Hidayatullah, C.J. while dilating upon clause (3) of Article 16 of the Indian Constitution (which corresponds to clause (2) of Article 27 of the Pakistani Constitution and which permits the requirement of three years residence in the Province concerned for employment), held that aforesaid clause (3) of Article 16 is an exemption and came as an amendment, narrow construction should be placed. It is a well‑settled proposition that an exception to the general rule particularly relating to the general rights of the citizens is to be construed strictly. In this behalf reference may be made to para. 246 from Statutory Construction by Crawford and a passage from Corpus Juris Secundum, Vol. 14, which read as follows:‑‑

Para. 246 from the Statutory Construction by Crawford:

"246. Statutes in deroga t ion of common right. ‑‑Statutes of this type or those which impose special restrictions or burdens or confer special privileges upon certain individuals or groups of individuals separate and apart from the rest of the community. Such statutes are to be strictly construed; and as a result, they must not be extended beyond their literal meaning. They can be applied only to cases clearly falling within the statutory provisions.

Statutes pertaining to the exercise of a trade or profession, to eminent domain, to the restraint of personal liberty, or freedom of contract, and the like, are statutes in derogation of common right and subject to strict construction."

Passage from the Corpus Juris Secundum, Vol. 14, pages 1163‑1164:

" Construction) .‑‑In applying a civil rights statute, a Court will effectuate the legislative purpose and design as, through legitimate rules of interpretation, the Court finds them expressed by the language and spirit of the statute. Civil rights acts are in derogation of the common Jaw and should be strictly construed, and the necessity of applying the rule of strict construction has been recognized because the statute is penal and imposes restrictions on the control or management of private property by the owner. The effect of the statute will not be extended by implication or analogy, nor will the statute be enforced beyond the clear intention of the Legislature.

According to some cases if general words in a statute of this character follow an enumeration of particular cases, such general words are held to apply only to cases of the same kind as those which are expressly mentioned, unless there is something to show that a wider sense was intended; but it has been held that the doctrine of ejusdem generis does not apply where the enumeration of particular cases includes those which are not of the same general class."

30. The above rule of construction highlighted in the above‑quoted extracts from the aforesaid celebrated treatises is applicable with more rigour to an exception provided in an article of a Constitution relating to a fundamental right. It has been consistently held inter alia by, this Court that an article relating to a fundamental right should be 'construed liberally so that its benefit/protective umbrella may be extended rather to restrict it. It will suffice to refer to the judgment in the case of Mian Muhammad Nawaz Sharif v. President of Pakistan (PLD 1993 SC 473), Wherein very liberal and wide construction was placed on Article 17(2) of the Constitution by this Court and it was inter alia held that the right to form or to be a member of a political party comprises the right to participate in and contest an election.

31. The case in hand stands on much weaker wicket inasmuch as the period of 20 years contained in first proviso to clause (1) of Article 27 of the Constitution has already expired and, therefore, there cannot be any justification to violate the express mandate of clause (1) of Article 27 of the Constitution that 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.

32. The upshot of the above discussion is that the petition has no merits. It is dismissed with no order as to costs.

M.B.A./M‑3362/S Petition dismissed.