SHC dismisses constitutional petition against quota system due to political interest

KARACHI – A division bench of Sindh High Court (SHC) comprising Justice Salahuddin Panhwar and Justice Adnan-ul-Karim Memon dismissed a constitutional petition against quota system.
According to details on Saturday, the constitutional petition, D-1906/2020, was filed by Pasban Democratic Party (PDP) Chairman Altaf Shakoor through his lawyer Irfan Aziz Advocate, making respondents Federation of Pakistan and others.
Petitioner had prayed to declare the quota system as null and void, illegal and unconstitutional after its expiry date as per the constitution of Pakistan; to direct the respondents to cancel all the appointments made on the basis of quota system after the date of its constitutional expiry in 2013 and refill all these vacant slots on the basis of pure merit through open competition. The petitioner also prayed to restrain the respondents from using the abolished, expired quota system for the allocation of jobs/ services in the Federal/Provincials civil services and to direct the respondents to make appointments on merit basis irrespective of the quota-system, which has since expired in 2013.
The counsel for petitioner while reiterating the pleadings further contended that quota system is seriously affecting the merits of the deserving candidates as the Federal and Provincial Authorities are misusing the same to accommodate their favorite candidates on the basis of quota system; he further argued that the quota system in the service of Pakistan is discriminatory and after lapse of Proviso with regard to the period of 40 years has become redundant. It was urged that the recruitments are to be made on the basis of Article 27(1), of the Constitution. It was further urged that all the appointments made on the basis of quota system after 2013 are liable to be declared null and void.
Muhammad Nishat Warsi, DAG and Ali Safdar Depar, AAG have argued that in compliance with the directions of Prime Minister, dated 19.04.2019 a summary was forwarded to the Cabinet Division on 07.05.2019 for placement of the matter before the Cabinet Committee for Disposal of Legislative Cases (CCLC) for consideration and recommendations to be considered by the Cabinet. They have also challenged the maintainability of the petition on the plea that the matter regarding continuity of observance of regional/provincial quota.

in the absence of constitutional amendment in Article 27(1) of the Constitution also remained under adjudication before the Hon?ble Supreme Court of Pakistan in CP No.34/2017 and CP No. 71/2017 in which the apex court had held that after the change brought into the relevant Law/Rules pursuant to Eighteenth Amendment, the court found that all the questions noted and raised in the orders dated 13.09.2018 have become irrelevant. It was further urged that the law presently in force is absolutely in consonance with the provisions of Article 27(1) of the Constitution, as well Rules of 1973 have been amended and existing quota is being followed on the strength of Article 37(f) and 38(g) of the Constitution and on strength of Rule 14 of Rules of 1973.

The honorable court in its verdict said the constitution of the Pakistan says the participation of the people of Pakistan from all parts of the country can only be made on the basis of Quota of the Provinces set out by the concern authority as ensured Under Articles 37 & 38 of the Constitution of the Pakistan which prescribe the promotion of the social and economic well-being of the people as follows: Article 37: Promotion of social justice and eradication of social evils The State shall

Promote, with special care, the educational and economic interests of backward classes or areas;

Remove illiteracy and provide free and compulsory secondary education within minimum possible period;

Enable the people of different areas, through education, training, agricultural and industrial development and other methods, to participate fully in all forms of national activities, including employment in the service of Pakistan.

Whereas Article 38 provides as follows: 38. Promotion of social and economic well-being of the people The State shall a. secure the well-being of the people, irrespective of sex, caste, creed or race, by raising their standard of living, by preventing the concentration of wealth and means of production and distribution in the hands of a few to the detriment of general interest and by ensuring equitable adjustment of rights between employers and employees, and landlords and tenants; b. provide for all citizens, within the available resources of the country, facilities for work and adequate livelihood with reasonable rest and leisure; c. provide for all persons employed in the service of Pakistan or otherwise, social security by compulsory social insurance or other means; d. provide basic necessities of life, such as food, clothing, housing, education and medical relief, for all such citizens, irrespective of sex, caste, creed or race, as are permanently or temporarily unable to earn their livelihood on account of infirmity, sickness or unemployment; e. reduce disparity in the income and earnings of individuals, including persons in the various classes of the service of Pakistan; f. eliminate riba as early as possible and g. ensure that the shares of the Provinces in all Federal services, including autonomous bodies and corporations established by, or under the control of, the Federal Government, shall be secured and any omission in the allocation of the shares of the Provinces in the past shall be rectified. [Emphasis Provided] 34.

 

The verdict said: Further, it would be pertinent to see whether with this litigation the petitioner’s object to achieve political mileage or ambition and/or purely other individual interest and whether the Petition styled as a Public Interest Litigation is essentially a Political Interest Litigation and hence the same is liable to be dismissed on this ground? To answer this, we have examined the pleadings and admittedly the petitioner belongs to a political party and holding an office of same political party.

We are also mindful that just because the petitioner is a political party, it does not ipso facto mean that he is debarred all the time from invoking the Court’s process as public interest litigation. However, political interest cannot be enforced through the process of this Court under Article 199 of the Constitution under the garb of a Public Interest Litigation. It is the duty of this Court to discourage such petitions and to ensure that the course of justice is not obstructed or polluted by unscrupulous litigants by invoking the extraordinary jurisdiction of this Court for personal matters under the garb of the public interest litigation.

There is material to show that a petition styled as a Public Interest Litigation is nothing but a camouflage to foster political interest. Public Interest Litigation which has now come to occupy an important field in the administration of law should not be “Publicity Interest Litigation” or “Private Interest Litigation” or “Politics Interest Litigation” as held by the Hon?ble apex Court Akhtar Hussain Khan?s20 case which reads as under:- “Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity seeking is not lurking. It is to be used as an effective weapon in the armory of law for delivering social justice to the citizens.

The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity oriented or founded on personal vendetta.

As indicated above, Court must be careful to see that a body of persons or member of public, who approaches the court is acting bona fide and not for personal gain or private motive or political motivation or other oblique consideration. The Court must not allow is process to be abused for oblique considerations. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives. Often, they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busy bodies deserve to be thrown out by rejection at the threshold, and in appropriate cases with exemplary costs.”

It may be added that „Public Interest Litigation? is an instrument of the administration of justice to be used properly in proper cases. The present petition is not a “bona fide” public interest litigation, but should be more appropriately termed as a political interest litigation; hence, petition fails.

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