FEDERATION OF PAKISTAN through Secretary Establishment Versus GHULAM SHABBIR JISKANI

1. ANWAR ZAHEER JAMALI, J.--- By leave of the Court, this appeal at the instance of Federation of Pakistan through Secretary Establishment Division and three others is directed against the judgment dated 19-10-2010 in C.P No.D-1859 of 2009, (Re: Ghulam Shabbir Jiskani and others v. Federation of Pakistan and others), passed by a learned Division Bench of the High Court of Sindh at Karachi, whereby the said constitutional petition instituted by respondents Nos.1-15, challenging therein vires of Rule-11(1) of the "Rules for Competitive Examination (CSS)", 2008 (in short the Rules), was allowed in the following terms:--

2. "9. For the foregoing reasons in our view the quota reserved for the citizens of backward and less developed area could not be allowed to be reduced, and the allocated seats for the candidates of particular area remain unfilled, which would create a sense of deprivation among the citizens of Pakistan belonging to Sindh Province. Consequently we hold that rule 11(1) of the Competitive Examination Rules, 2008 framed by Federal Public Service Commission of Pakistan regarding 50% aggregate marks qua the petitioners who belong to rural areas of Sindh is ultra vires the Constitution, 1973 and the same is struck down. The respondents are directed to allow the petitioners to appear for further examination for their final selection. In future suitable amendment be made and relaxation be provided in the rules of FPSE in order to achieve the purpose of the constitutional provisions and to strictly act in accordance with Articles 27 and 37(a) of the Constitution of Islamic Republic of Pakistan, 1973 and it be ensured that, not only the candidates of Sindh Province belonging to rural areas but from other provinces, regions and parts of Pakistan who are similarly placed could equally benefit in the civil service of Pakistan."

2. Briefly stated, relevant facts forming background of this litigation are that vide above referred constitutional petition, instituted on 31-8-2009, respondents Nos.1 to 15 invoked the jurisdiction of High Court of Sindh under Article 199 of the Constitution with their common grievance against the appellants, whereby due to non-meeting/fulfilment of 50% aggregate marks requirement prescribed in Rule 11(i) of the Rules, they were not found eligible for further participation in their CSS Examination for the year 2008, held under the supervision of appellants Nos.2 to 4. According to respondents, condition of 50% aggregate marks introduced through Rule 11(i) ibid, was prejudicial to the interest of candidates belonging to the rural areas of Sindh and also in flagrant violation of Articles 4, 25, 27, 37 of the Constitution, as on account of implementation and enforcement of this rule, respondents, who had otherwise cleared their written papers, could not further participate in their viva-voice examination.

3. On notice of this petition, appellants Nos.2 to 4 herein submitted their detailed reply to show that not only these respondents were estopped from agitating their grievance to the legality and propriety of the said Rule, having repeatedly appeared in the CSS examination under the same rule and failing to qualify, but also on the ground that the said rule is so framed in the larger public interest and aimed to ensure all appointments on the principle of best out of best on merit, without any discrimination and, in no manner violative of any fundamental right or any other Article of the Constitution. In para-1 of these comments, names of 10 out of 15 respondents were also disclosed in the form of a chart, who not only failed in aggregate marks, but also failed many times in the written test.

4. Besides, on behalf of respondents No.1, separate parawise comments were filed, challenging therein maintainability of petition on various legal grounds and also strongly refuting the claim of respondents on merits. It was also reiterated in the parawise comments that said Rule No.11(i) was framed in the larger public interest and it was in no manner violative of Article 27(1) or 37(a) of the Constitution of Islamic Republic of Pakistan, as alleged by the respondents.

5. The Constitutional petition instituted by the respondents was heard by a learned Division Bench of the High Court of Sindh and, vide its judgment dated 19-10-2010, allowed in the terms as reproduced above. Reason for granting such relief to the respondents was that due to unfilled/vacant seats from the quota allocated to the rural areas of Sindh, the learned Division Bench of High Court of Sindh had drawn conclusion that the impugned Rule 11(i) was ultra vires to Articles 27(1) and 37(a) of the Constitution, as its enforcement will create a sense of deprivation to the citizens of Pakistan, belonging to rural areas of Sindh Province, and other Provinces/regions of Pakistan.

6. Syed Mujtaba Haider Sherazi, learned Deputy Attorney-General for appellants, after reading the leave granting order dated 23-2-2011, contended that admittedly with reference to Order XXVII-A, Rule-1, CPC regarding notice to the Attorney General for Pakistan, rule laid down by this Court in the case of Federal Public Service Commission of Pakistan v. Syed Muhammad Afaq (PLD 2002 SC 167), was overlooked and violated therefore on this legal ground alone, impugned judgment is liable to be set aside as looking to the facts stated in the petition, wherein vires of Rule 11(i) of the Rules was challenged on the touchstone of various articles of the Constitution, such notice was mandatory. His next submission was that principle of estoppel was squarely applicable to this case as all the respondents, voluntarily accepting validity and applicability of impugned rule appeared in the CSS Exams of 2008, but it was only due to their failure on account of stipulation of aggregate marking of minimum 50% in the said rule that they took somersault and challenged its vires with reference to fundamental rights guaranteed to all citizens of the country qua Articles 27(1) and 37(a) of the Constitution. Dilating further upon the frivolous and ill-motivated claim of the respondents, learned counsel made detailed reference to the averments of respondents made in their memo. of Constitutional Petition to show that an impression was created before the Court that introduction of Rule 11(i) of the Rules was aimed at causing harm to the interest of the candidates belonging to rural areas of Sindh, who could not compete at par with the candidates of urban areas for want of proper facilities of education of same quality, which fact was required to be kept in mind in line with the spirit of these Articles of the Constitution while determining the criteria for the candidates of rural and urban areas of Sindh appearing in the CSS Exams 2008. According to the further submission of the learned Deputy Attorney-General, learned Division Bench of the High Court of Sindh not only misread, misinterpreted and misunderstood the correct legal position to this effect, but also misread the material placed on record, which was sufficient to show that due to introduction of this rule, for which the competency of rule framing authority was not disputed, the candidates from urban as well as rural areas of Sindh faced similar position as evident from the data of CSS competitive examination results for the years 1990 to 2008, showing therein number of unfilled vacancies of urban area of Sindh as well during different years due to non-availability of qualified candidates. Before proceeding further, for convenience sake, such statement/chart is reproduced as under:--

3. "STATEMENT SHOWING THE NUMBER OF VACANCIES ALLOCATED TO SINDH IN THE COMPETITIVE EXAMINATION (CSS) FROM 1999 TO 2008.

4. Year of Exam.

5. Total No. of Vacan-cies

6. No. of Vacancies allocated

7. No. of Candidates allocated

8. Vacancies remained unfilled due to non-availability of qualified candidates

9. Sindh (19%)

10. Sindh (R) 11.4%

11. Sindh (U) 7.6%

12. Sindh (R)

13. Sindh (U)

14. Sindh (R)

15. Sindh (U)

16. 1990

17. 145

18. 29

19. 17

20. 12

21. 27

22. 12

23. Nil

24. Nil

25. 1991

26. 152

27. 30

28. 23

29. 7

30. 23

31. 7

32. Nil

33. Nil

34. 1992

35. 137

36. 24

37. 13

38. 11

39. 13

40. 11

41. Nil

42. Nil

43. 1993

44. 169

45. 27

46. 15

47. 12

48. 13

49. 12

50. 02

51. Nil

52. 1994

53. 193

54. 35

55. 21

56. 14

57. 21

58. 14

59. Nil

60. Nil

61. 1995

62. 200

63. 33

64. 19

65. 14

66. 19

67. 14

68. Nil

69. Nil

70. 1996

71. 201

72. 38

73. 20

74. 18

75. 20

76. 15

77. Nil

78. 03

79. 1997

80. 214

81. 43

82. 25

83. 18

84. 25

85. 15

86. Nil

87. 03

88. 1998

89. 214

90. 44

91. 24

92. 20

93. 24

94. 16

95. Nil

96. 04

97. 1999

98. 238

99. 44

100. 28

101. 16

102. 28

103. 16

104. Nil

105. Nil

106. 2000

107. 213

108. 49

109. 22

110. 27

111. 22

112. 27

113. Nil

114. Nil

115. 2001

116. 159

117. 31

118. 18

119. 13

120. 18

121. 13

122. Nil

123. Nil

124. 2002

125. 160

126. 29

127. 18

128. 11

129. 18

130. 11

131. Nil

132. Nil

133. 2003

134. 208

135. 37

136. 24

137. 13

138. 24

139. 13

140. Nil

141. Nil

142. 2004

143. 182

144. 36

145. 22

146. 14

147. 16

148. 7

149. 06

150. 07

151. 2005

152. 185

153. 42

154. 25

155. 17

156. 18

157. 4

158. 07

159. 13

160. 2006

161. 227

162. 56* + 4 = 60

163. 27+3* = 30

164. 29+1* = 30

165. 13+0* = 13

166. 8+0* = 8

167. 14+3* = 17

168. 21+1* = 22

169. 2007

170. 299

171. 78 + 9* = 87

172. 40+6* = 46

173. 38+3* = 41

174. 10+0* = 10

175. 7+0* = 7

176. 30+6* = 36

177. 31+3* = 34

178. 2008

179. 445

180. 121+14* = 135

181. 66+9* = 75

182. 55+5* = 60

183. 26+3* = 29

184. 19+2* = 21

185. 40+6* = 46

186. 36+3* = 39

187. * 10% Women reserved Quota."

7. Conversely, Mr. Munir A. Malik, leaned Senior Advocate Supreme Court for the respondents strongly supported and defended the impugned judgment in favour of respondents and made reference of various documents available on record to show that Rule 11(i) of the Rules framed by the appellant No. 2 was discriminatory and prejudicial to the interest of the candidates from the rural areas of Sindh thus, violative of Articles 25, 27(1) and 37(a) of the Constitution of Islamic Republic of Pakistan 1973. However, when learned Senior Advocate Supreme Court was confronted with the above reproduced statement/chart showing the number of vacancies, which remained unfilled during different years due to non-availability of qualified candidates both from rural and urban areas of Sindh, he could not controvert that if during some years few vacancies of Rural Area remained vacant, then in the same manner due to the application of same rule, number of vacancies from urban areas also remained vacant. This fact cuts the very root of the grievance of the respondents that impugned rule was discriminatory in nature or violative of Articles 25, 27(1) and 37(a) of the Constitution or prejudicial to the interest of the candidates from the rural areas of Sindh Province. Dilating upon the question of legality of impugned judgment with reference to violation of Order XXVII-A, Rule-1, relating to notice to the Attorney-General for Pakistan, he made reference to the case of Federation of Pakistan v. Aftab Ahmed Khan Sherpao (PLD 1992 SC 723) and contended that on this legal point, twelve honourable Judges of the Bench of Supreme Court were equally divided, therefore, it cannot be said that for want of such notice, non service whereof is an admitted position, the impugned judgment was liable to be set aside on this legal/technical ground. Learned Senior Advocate Supreme Court, however, could not refer any other case-law negating the ratio of judgment in the other case of Federal Public Service Commission (supra), which lays down as under:--

188. "6. We are afraid, the mere hearing of the Deputy Attorney-General and affording full opportunity to the Federal Government or the Federal Public Service Commission does not constitute substantial compliance of the mandatory provisions of Order XXVII-A, rule 1, C.P.C. which provide in unequivocal terms that: "in any suit in which it appears to the Court that any substantial question as to the interpretation of Constitutional law is involved, the Court shall not proceed to determine the question until after notice has been given to the Attorney-General for Pakistan if the question of law concerns the Central Government and to the Advocate-General of the Province if the question of law concerns a Provincial Government". Refer Federation of Pakistan v. Aftab Ahmed Khan Sherpao PLD 1992 SC 723. Here, as stated above, no notice was given to the Attorney-General for Pakistan, therefore, the impugned judgments stand vitiated on this ground alone."

8. While concluding his submissions, Mr. Munir A. Malik, learned Senior Advocate Supreme Court for the respondent in between the lines also extended proposal that if rule laid down in the case of Federal Public Service Commission (supra) is pressed into service with reference to the requirement of Order XXVII-A, Rule-1, then impugned judgment passed by the learned Division Bench of the High Court of Sindh may be set aside on this score and case may be remanded for fresh decision of the petition in accordance with law on merits, after such notice to the Attorney General for Pakistan.

9. On the point of notice to the Attorney-General for Pakistan as contemplated in Order XXVII-A, Rule-1, we are in agreement with the ratio of judgment in the case of Federal Public Service Commission (supra), thus it could be taken as a valid ground for setting aside the impugned judgment and remanding the case to the High Court of Sindh for fresh disposal of petition in accordance with the law. However, as we have also heard the parties' counsel at length on the merits of this case, therefore, instead of passing an order of remand, we deemed it appropriate and are inclined to decide this petition on merits as well, so as to save them from further ordeal of litigation, which even otherwise seems to have, to some extent, lost its efficacy due to the lapse of time. For this purpose, in the first place it will be useful to reproduce hereunder the impugned Rule 11(i) of the Competitive Examination Rules, 2008 framed by the appellant No.2 in exercise of powers vested in him by virtue of section 7-A read with section 10 of Federal Public Service Commission Ordinance, 1977, which reads as under:--

189. "11(i) The Commission with prior approval of the Government may fix qualifying marks in any or all of the subjects of the examination but a candidate who fails to secure at least 40% marks in any compulsory subject, 33% marks in any of the optional subjects, 50% marks in the Aggregate and too marks at the Viva Voice Test, will be considered to have failed and will not be eligible for appointment."

10. Insofar as powers of Federal Public Service Commission, appellant No.2 regarding framing of these rules are concerned, same are not disputed, so also the fact that without exception above rule is applicable to the candidates from all over Pakistan. However, Rule-11(i) of the Rules is claimed to be ultra vires to the Articles 4, 25, 27(1) and 37(a) of the Constitution of Islamic Republic of Pakistan, 1973 on the premises that according to the respondents it is discriminatory and contrary to the spirit of these Articles of the Constitution.

11. In order to examine factual bases of these assertions, in the first place, a reference to the above reproduced chart will be useful, which shows that during the CSS Examinations for the years 1990 to 2003 (thirteen years), the purported effectees of this rule were only two in number from the rural areas as against ten from the urban areas of Sindh. Again in the years 2004 and 2005, the number of vacancies which remained unfilled due to non-availability of qualified candidates from the urban areas were much more than the rural areas of Sindh, while in the remaining three years i.e. 2006 to 2008, to some extent position tilted in favour of number of unfilled vacancies from the rural areas. Admittedly, the rule of aggregate marks introduced by the appellant No.2 is in vogue since the year 1990, thus on the basis of such admitted facts and figures, it cannot be said that the condition of such aggregate marks incorporated in Rule 11(i) of the Rules is either discriminatory or prejudicial to the interest of candidates from the rural area of Sindh. Moreover, if the number of unfilled vacancies during different years due to non-availability of qualified candidates is compared with the actual number of vacancies for each year, it is also palpably clear that its ratio is almost negligible. This factual assessment of case coupled with details of performance of some of the respondents depicted in para-1 of the parawise comments of appellants Nos.2 to 4, leaves us in no doubt to hold that if any body is to be blamed for the failure of these respondents in proceeding further to the next stage of their CSS Examination, they have to blame themselves for their inefficiency and incompetency rather than making baseless allegations of discrimination or violation of the spirit of Articles-27(1) and 37(a) of the Constitution.

12. To move further, here a reference to paragraphs 1 to 4, 7 and 8 of the Recruitment Policy for Competitive Examination 2008 (APPENDIX-III), being integral part of the whole scheme, will also be useful which read as under:--

1. 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 filled on all Pakistan basis in pursuance of Establishment Division O.M. No.4/10/2006-R-2, dated 12-2-2007:--

190. Merit

191. 7.5%

192. Punjab (including Federal Area of Islamabad)

193. 50%

194. Sindh 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%)

195. 19%

196. N.-W.F.P.

197. 11.5%

198. Balochistan

199. 6%

200. Northern Areas and Federally Administered Tribal Areas

201. 4%

AJK

202. 2%

203. Note: (i) 10% quota is reserved for women from the share of Provinces/Regions except Merit quota in terms of Establishment Division's OM No. 3/17/2005-R-2 dated 26-9-2006. Un-filled vacancies will be carried forward. (ii) Disabled candidates will compete in accordance with the Government recruitment policy, as there will be no separate quota for disabled candidates.

2. Sindh (Urban) refers only to the city areas of Karachi, Hyderabad and Sukkur. Cantonment areas are counted as part of the city. The areas under the Jurisdiction of the District Councils of these district are the rural areas.

3. "Federally administered Tribal Areas" include:--

204. (i)

205. Tribal Areas adjoining Peshawar District;

206. (vii)

207. Orakzai Agency;

208. (ii)

209. Tribal Areas adjoining Bannu District;

210. (viii)

211. Khyber Agency;

212. (iii)

213. Tribal Areas adjoining D.I. Khan District;

214. (ix)

215. Kurram Agency;

216. (iv)

217. Tribal Areas adjoining Kohat District;

218. (x)

219. North Waziristan Agency; and

220. (v)

221. Bajour Agency;

222. (xi)

223. South Waziristan Agency.

224. (vi)

225. Mohmand Agency;

4. Appointment to vacancies to be filled in by candidates belonging to a particular community or a province/region shall be made by Government in the order of Merit of the candidates belonging to a particular community or a province/region provided that they have qualified in the examination and are in all respects suitable for employment under Government.

226. 5-6. ........................................

7. If any vacancies reserved in terms of paragraphs 1-2 above cannot be filled by reason of failure of candidates to pass the qualifying standard or otherwise, such vacancies will be carried over and filled in on the result of the next year's examination from among the candidates in whose quota the vacancies are so reserved.

8. Provincial or regional quotas in respect of posts in a particular year shall be worked out to the 1000th fraction. A Province or region having larger fraction in accordance with the prescribed quotas shall be allocated the vacant post for recruitment whereas the Province or region not allocated the post due to smaller fraction shall get those fractions carried forward and added to its share in the subsequent year in accordance with procedure set out as below:--

227. Province/ Region

228. Quota (%)

229. No. of Vacan-cies

230. Share

231. Last Year's C/F Balance

232. Total

233. Vacan-cies to be allotted

234. Balance to be carried forward

235. 1st Year

236. Merit

237. 7.5%

238. 03

239. 0.225

240. 0.225

241. (+)0.225

242. Punjab

243. 50%

244. 03

245. 1.500

246. 1.500

247. 02

248. (-)0.500

249. *Sindh

250. 19%

251. 03

252. 0.570

253. 0.570

254. 01

255. (-)0.430

256. Sindh (U)

257. 7.6%

258. 03

259. 0.228

260. 0.228

261. (+)0.228

262. Sindh (R)

263. 11.4%

264. 03

265. 0.342

266. 0.342

267. 01

268. (-)0.658

269. N.-W.F.P.

270. 11.5%

271. 03

272. 0.345

273. 0.345

274. (+)0.345

275. Balochistan

276. 6%

277. 03

278. 0.180

279. 0.180

280. (+)0.180

FATA

281. 4%

282. 03

283. 0.120

284. 0.120

285. (+)0.120

AJK

286. 2%

287. 03

288. 0.060

289. 0.060

290. (+)0.060

291. 2nd Year

292. Merit

293. 7.5%

294. 05

295. 0.375

296. 0.600

297. 01

298. (-)0.400

299. Punjab

300. 50%

301. 05

302. 2.500

303. 2.000

304. 02

305. *Sindh

306. 19%

307. 05

308. 0.950

309. 0.520

310. 01

311. (-)0.480

312. Sindh (U)

313. 7.6%

314. 05

315. 0.380

316. 0.608

317. 01

318. (-)0.392

319. Sindh (R)

320. 11.4%

321. 05

322. 0.570

323. (-) 0.088

324. (-)0.088

325. N.-W.F.P.

326. 11.5%

327. 05

328. 0.575

329. 0.920

330. 01

331. (-)0.080

332. Balochistan

333. 6%

334. 05

335. 0.300

336. 0.480

337. (+)0.480

FATA

338. 4%

339. 05

340. 0.200

341. 0.320

342. (+)0.320

AJK

343. 2%

344. 05

345. 0.100

346. 0.160

347. (+)0.160

348. 3rd Year

349. Merit

350. 7.5%

351. 02

352. 0.150

353. (-)0.400

354. Punjab

355. 50%

356. 02

357. 1.000

358. 1.000

359. 01

360. *Sindh

361. 19%

362. 02

363. 0.380

364. (-)0.480

365. (-) 0.100

366. (-) 0.100

367. Sindh (U)

368. 7.6%

369. 02

370. 0.152

371. (-)0.392

372. (-) 0.240

373. (-) 0.240

374. Sindh (R)

375. 11.4%

376. 02

377. 0.228

378. (-)0.088

379. 0.140

380. (+) 0.140

381. N.-W.F.P.

382. 11.5%

383. 02

384. 0.230

385. (-)0.080

386. 0.150

387. (+) 0.150

388. Balochistan

389. 6%

390. 02

391. 0.120

392. (+)0.480

393. 0.600

394. 01

395. (+) 0.400

FATA

396. 4%

397. 02

398. 0.080

399. (+)0.320

400. 0.400

401. (-) 0.600

AJK

402. 2%

403. 02

404. 0.040

405. (+)0.160

406. 0.200

407. (+) 0.200

408. *Provided that Sindh shall be allowed quota of 19% first and then the posts fallen to its share shall be sub-divided between Sindh (U) and Sindh (R) at the ratio of 7.6% and 11.4% respectively."

409. From the plain reading of above reproduction it is abundantly clear that the rule/policy making authority had religiously followed Articles 4,25, 27(1) and 37(a) of the Constitution in order to safeguard the interest of every citizen of this country as per the spirit of these constitutional provisions, thus any grievance of respondents to the contrary is dishonest, baseless and made with ulterior motive.

13. Before parting with this judgment, we may further observe that merit is the only criteria which could lead our beloved country to prosperity in every walk of life and best out of best policy is yet another purposeful terminology to further boost the criteria of merit. We cannot loose site of the fact that now we are living in 21st Century with very advanced means of transport and communication, through various electronic devices, available all over Pakistan, except few remote areas, therefore, the distinction of rural and urban area and following up of quota policy on this account is bound to die its natural death in due course of time. It is in this background that under Article 27(1) of the Constitution, legislature has not given a blanket cover/indefinite protection to this concept, but as per its first proviso only for a limited period, which of course, looking to the exigencies, has been extended in the past, from time to time.

14. The upshot of above discussion is that this appeal is allowed and constitutional petition before the High Court of Sindh, filed by the respondents, being devoid of merits is dismissed.

410. M.A.K./F-11/SC Appeal allowed.