GHAZI Versus M. ABDUL KHALIQ
This appeal arose from a dispute over the appointment to the post of Laboratory Attendant in a government school. The respondent was initially appointed based on the recommendation of a Member of the Provincial Assembly (M.P.A.). Subsequently, the appellant, claiming a preferential right as the nominee of a land donor, successfully challenged the respondent's appointment, leading to the respondent's termination and the appellant's appointment. The Service Tribunal reinstated the respondent. The core legal question was whether appointments to public office based on political recommendations (quotas for M.P.A.s/M.N.A.s) or private nominations are legally valid. The Supreme Court held that such appointments are illegal ab initio. The Court affirmed that public appointments must be made on merit through a transparent, fair process, as public office is a sacred trust. The Court set aside the Tribunal's judgment, ruling that neither party had a vested right to the post, and directed the department to fill the vacancy through open competition based strictly on merit, consistent with constitutional guarantees of equality and non-discrimination.
- Are appointments to public office based on the recommendation of political representatives like M.P.A.s or M.N.A.s legally valid?
- Does the allocation of quotas for public appointments to political figures violate the Constitution of Pakistan?
- Can a candidate claim a preferential right to a government post based on being a nominee of a land donor?
- Is the appointment of a public servant based on political influence void ab initio?
- Article 2A, Constitution of Pakistan 1973
- Article 18, Constitution of Pakistan 1973
- Article 25, Constitution of Pakistan 1973
- Article 27, Constitution of Pakistan 1973
- Article 38, Constitution of Pakistan 1973
1. AJMAL MIAN, C.J.‑‑‑ This is an appeal with the leave of this Court against the judgment, dated 28‑9‑1994, passed by the learned N.‑W.F.P: Service Tribunal, Peshawar (hereinafter referred to as the Tribunal), in Appeal No. 176 of 1993 filed by respondent No. l against termination of his service with effect from 23‑2‑1993, allowing the same and reinstating him in service.
2. The brief facts are that respondent No on the recommendations of an M.P.A., was appointed as Laboratory Attendant in BPS‑1 Government High School, Himat, Tehsil and District D.I. Khan by order dated 24‑12‑1992. The appellant claimed that one Allah Bakhsh, his uncle, had given six Kanals of land for the construction of the school building and nominated him for service. He, therefore, filed a representation against the appointment of respondent No. l claiming preferential right for appointment on the recommendation of the donor of the land. The above representation was allowed and in consequence respondent No. 1's services were terminated w.e.f. 23‑2‑1993 and the appellant was appointed in his place. Respondent No. l being aggrieved by the above order, after availing of the departmental remedy, approached the Tribunal by way of above appeal which was allowed. Thereupon, the appellant filed the petition for leave to appeal, which was granted to consider as to whether in view of the judgment of this Court in the case of Munawar khan v. Niaz Muhammad (1993 SCMR 1287 relevant at 1287), respondent No. l could have been reinstated as admittedly he was appointed on the recommendation of the M.P.A. Reliance was‑also placed on the case of Abdur Rashid v. Riazuddin (1995 SCMR 999).
3. None has appeared for respondent No.l though he has been served: Whereas Mr. Ijaz M. Khan, learned Additional Advocate General, N.‑W.F.P., represented official respondents 2 to 4.
4. Mr. Ijaz M. Khan's submission was that even the appellant has no preferential right to claim the appointment against the above post on the basis of being nominee of the donor of the land. In this regard he has invited our attention to para. 7 of the above judgment in the case of Munawar Khan v. Niaz Muhammad (supra). He has relied upon the following observation in the judgment of a learned Single Judge of the Peshawar High Court in the case of Said Badshah v. Government of N.W.F.P., (PLD 1995 Peshawar 164)‑‑
5. "8. Before parting with the judgment I may add that Government appointments should always be made on the basis of merits considering it as a sacred trust of the public. Any deviation from the rules of appointments can result in chaos and as such no discipline can be maintained. "
6. Qazi Muhammad Anwar, learned counsel for the appellant, in support of his submission, has referred to the following portion from the above judgment in the case of Munawar Khan v. Niaz Muhammad (supra): ‑‑
7. "8. As regards the allocation of quota of posts to the local M.P.As. or M.N.As. for recruitment to the post, we find it offensive to the Constitution and the law on the subject. The Ministers, the Members of National and Provincial Assemblies, all are under an oath to discharge their duties in accordance with the Constitution and the law. The service laws designate, in the case of all appointments, a departmental authority competent to make such appointments. His judgment and discretion is to be exercised honestly and objectively in the public interest and cannot be influenced or subordinated to the judgment of anyone else including his superior. In the circumstances, allocation of such quotas to the Ministers/M.N.As./M.P.As. and appointments made thereunder are all illegal ab initio and have to be held so by all. Courts, Tribunals and Authorities. "
8. He has also referred to the case of Abdur Rashid v. Riazuddin (supra) in which the law enunciated in the case of Munawar Khan v. Niaz Muhammad (supra) was reiterated.
9. The law enunciated by this Court in the case of Munawar Khan v. Niaz Muhammad (supra) seems to be in consonance with clause (1) of Article 27 of the Constitution read with Para. (b) of Article 38 of the Constitution. It may be observed that clause (1) of Article 27, inter alia, provides 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. Whereas para. (b) of Article 38 (which Article is a part of the chapter relating to the Principles of Policy) lays down that the State shall provide for all citizens, within the available resources of the country, facilities for work and adequate livelihood with reasonable rest and leisure. The above provisions are to be read in conjunction With Article 2A which, inter alia, provides that sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority which He has delegated to the State of Pakistan through its people for being exercised within the limits prescribed by Him, is a sacred trust. Viewing the above case in the above Constitutional background, it becomes apparent that the Ministers, the Members of National and Provincial Assemblies, all are under an oath to discharge their duties in accordance with the Constitution and law. The service laws provide the mechanism for appointments which should be transparent, fair and just, providing equal opportunity to all on the basis of merit. The allocation of quotas to the Ministers/M.N.As/M.P.As and appointments made thereunder are illegal ab initio and have to be held so by all Courts as was held by this Court in the case of Munawar Khan v. Niaz Muhammad (supra).
10. It will not be out of context to mention that the question as to how appointments are to be made by the State functionaries including Judiciary has been recently dilated upon with reference to Article 27 of he Constitution in the case of Mushtaq Ahmad Mohal v. Honourable Lahore, High Court (1997 SCMR 1043). It may be pertinent to reproduce paragraphs 20 and 26 of the above judgment, which read as follows:‑‑
11. "20. We may observe that Article 27 of the 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.
12. 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 (1) of Article 27 of the Constitution."
13. "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."
14. The appointment of respondent. No: l on the basis of the recommendation of an M.P.A. is also violative of the law enunciated in the case of Mushtaq Ahmad Mohal v. Honourable Lahore High Court (supra).
15. The upshot of the above discussion is that neither respondent No. l nor the appellant had any vested right to claim appointment against the above post of Laboratory Attendant. The judgment of the Tribunal is set aside and the department is directed to make appointment against the above post on merit in open competition.
16. H.B.T./G‑39/S Order accordingly.