ISLAMABAD - The Supreme Court of Pakistan Friday declared appointments without open advertisement, competition and merit, of the widow/widower, wife/ husband or child of civil servants in different grades, who die during service or become permanently disabled/invalidated/incapacitated for further service and take retirement from service discriminatory and ultra vires to the Constitution.
A three-member bench of the apex court headed by Chief Justice Qazi Faez Isa and comprising Justice Naeem Akhtar Afghan and Justice Shahid Bilal Hassan announced its reserved judgment wherein it set aside the Peshawar High Court judgment dated April 13, 2021 on job quota to the children of civil servants.
The judgement said that the federal and the provincial authorities are directed to withdraw the policies, office memorandums, employment under the Package of the Prime Minister, the Financial Assistance Package, Rule 11-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, Rule 10 (4) of the Khyber Pakhtunkhwa Civil servants (Appointment, Promotion and Transfer) Rules, 1989, Rule 12 of the Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009 or any other rule, policy, memorandum, etc. whereunder appointments have been made without open advertisement, competition and merit, of the widow/widower, wife/husband or child of civil servants in different grades, who die during service or become permanently disabled/invalidated/incapacitated for further service and take retirement from service.
The judgment, however, clarified that the instant judgment shall not affect the appointments already made of the widow/widower, wife/husband or child of deceased or retired civil servants.
It further clarified that this judgment shall not affect the policies, rules or compensation packages of the federal and provincial governments for the benefit of the legal heirs of martyred personnel of the law enforcement agencies and of civil servants who die on account of terrorist activities.
It noted that the rules, policies, OMs, etc. which secure or provide appointments in different grades, without open advertisements and competition, to the widow/widower, wife/husband or a child of a civil servant of the Federal and Provincial Governments, who dies during service or becomes permanently disabled/invalidated/incapacitated for further service and takes retirement from service, is ex facie discriminatory against the other or ordinary citizens of Pakistan and the same cannot be termed as a reasonable classification as their object is to give an advantage by excluding others, which is not permissible under Article 25 of the Constitution. Article 27 of the Constitution which specifically attends to the service of Pakistan prohibits discrimination in services.
The SC said that the government and public sector employment cannot be allowed to be parcelled out to the functionaries of the State. These jobs neither are nor can be made hereditary. The Constitution stipulates that equal employment and economic opportunities must be provided to all citizens. “Economic justice, if we may add, is a component of social justice which focuses on creating equal opportunities for all within a society in all aspects.”
The judgment noted that Article 4 of the Constitution embodies the concept of equality before law, equal protection of law, right of individuals to be dealt with in accordance with law and saving the citizens from arbitrary/discriminatory laws and actions. It is the duty and obligation of the public functionaries under Article 4 of the Constitution to act in accordance with law.
It said that Article 5(2) of the Constitution binds everybody to obey the command of the Constitution. Every public functionary has to act in good faith, honestly and within the precinct of its power so that the persons concerned should be treated in accordance with the law as guaranteed by Article 4 of the Constitution, which include principles of natural justice, procedural fairness and procedural propriety. While discharging official functions every effort should be made to ensure that none is prevented because of unfair and discriminatory treatment.
It continued that under Article 3 of the Constitution it is obligatory for the State to ensure elimination of all forms of exploitation and the gradual fulfilment of the fundamental principles, from each according to his ability to each according to his work. To achieve the object of good governance and to fulfil the obligation under Article 3 of the Constitution, transparency and merit in appointments in the service of Pakistan that includes government jobs must be adopted.
The judgment said that the appointment of a widow/widower, wife/husband or child of a civil servant in different grades on contract or regular basis, without open advertisement, competition and merit is also violative of Article 18 of the Constitution which provides that subject to such qualification, 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.
The appointments obstructing ordinary qualified citizens to compete for entering into the profession of the service of Pakistan in accordance with their ability and eligibility also violate this fundamental right, and if such appointments are made, they negate equality of opportunity, competition, merit and also defeat the object of good governance, it added.
The judgment said that the good governance cannot be achieved by exercising discretionary powers unreasonably or arbitrarily. This objective can be achieved by following the Constitution and the rules of justness, fairness and openness as enshrined in the above referred Articles of the Constitution.