Tag: Judgment

  • Supreme Court Judgment Deceased Son Quota

    Naeem Akhtar Afghan, J. The respondent (herein) filed a Writ Petition in
    the Peshawar High Court for issuing directions to the petitioners (herein)
    to consider him for appointment against the quota reserved for the
    children of class-IV employees who retired on medical grounds. The
    respondent relied upon the Office Memorandum (‘OM’) dated 13 April
    20051 of the Establishment Division, Government of Pakistan (‘the
    Establishment Division’) whereby the following paras were added to the
    Establishment division’s OM dated 21 March 20002 which provided
    guidelines for contract appointments for a period of two years to civil posts
    under the Federal Government:
    ‘The condition of open advertisement may also be
    relaxed by the Prime Minister for the purpose of
    appointment on contract basis of widow/widower of one
    child of a deceased civil servant who dies during service
    and wife/husband or one child of a serving civil servant
    who becomes ‘permanently disabled during service’ and

    1 OM No.4/1/2005-CP.1 dated 13 April 2005
    2 OM No.8/10/2000-CP.1 dated 21 March 2000
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    he/she takes retirement from service provided that such
    special dispensation may be allowed only for
    appointment to posts in BS-10 and below.
    Provided further that the widow/widower or a child of a
    civil servant who dies during service and wife/husband
    or a child of a serving civil servant who becomes
    ‘permanently disabled during service’ and he/she takes
    retirement from service will have to apply for contract
    appointment within one year after the death of a civil
    servant or retirement of a permanently disabled civil
    servant. In case of a minor child of a civil servant, the
    one year period will start from the date he/she attains
    the age of 18 years.’

    1. The Writ Petition was contested by the petitioners on the ground
      that the father of the respondent on 7 August 1996 availed of his
      retirement as Postman (BPS-4) on medical grounds, therefore, the OM
      dated 13 April 2005 cannot be applied retrospectively to appoint the
      respondent, who was the son of a retired civil servant.
    2. The Writ Petition was disposed of by a Division Bench of the
      Peshawar High Court vide impugned order dated 13 April 2021 by issuing
      directions to the petitioners to appoint the respondent on contract basis in
      terms of OM dated 13 April 2005 (wrongly mentioned as notification in the
      impugned order) in accordance with the policy, notwithstanding that the
      OM dated 13 April 2005 could not be applied retrospectively to appoint
      the respondent as his father had retired from service on 7 August 1996,
      when at that time there was no policy for appointment of a child of a civil
      servant who dies during service or becomes permanently disabled during
      service and on this ground takes retirement from service.
    3. The notice of this case issued to the respondent was received by his
      cousin who stated that the respondent has shifted abroad, but he did not
      disclose his address. Learned Additional Attorney-General (‘AAG’) stated
      that the respondent was not appointed by the petitioners as directed by
      the impugned order because he had shifted abroad.
    4. During the hearing of this matter the following questions arose,
      which were noted in our order of 4 January 2024 as under:
      ‘(1) Whether the policy conforms with Article 25 and 27
      of the Constitution of Islamic Republic of Pakistan
      insofar as it creates separate categories of persons who
      are to be given preference in employment; and
      (2) Whether the Prime Minister of Pakistan has the power
      to relax rules and/or to issue the Policy.’
    5. To ascertain as to whether the policy accords with the Constitution
      of the Islamic Republic of Pakistan, 1973 (‘the Constitution’), notices
      CP No.3390 of 2021 3
      were issued to the learned Attorney-General for Pakistan as well as to the
      learned Advocate-Generals of the Provinces under Order XXVII-A of the
      Code of Civil Procedure, 1908 (‘CPC’).
    6. Sub-section (1) of section 25 of the Civil Servants Act, 1973 (‘the
      Civil Servants Act’) empowers the President of Pakistan (‘the President’)
      or any person authorized by him in this behalf, to make necessary rules
      for carrying out the purposes of the Civil Servants Act. The President
      authorized the Prime Minister of Pakistan (‘PM’) vide SRO
      No.S.R.O.120(1/98) dated 27 February 1998 to make necessary rules.
      There are similar provisions in the provincial laws. Sub-section (1) of
      section 23 of the Punjab Civil Servants Act, 1974 (‘the Punjab Civil
      Servants Act’) empowers the Governor of Punjab or any person
      authorized by him in this behalf, to make necessary rules for carrying out
      the purposes of the Punjab Civil Servants Act. Sub-section (1) of section
      26 of the Sindh Civil Servants Act, 1973 (‘the Sindh Civil Servants Act’)
      empowers the Government of Sindh or any person authorized by it in this
      behalf, to make necessary rules for carrying out the purposes of the Sindh
      Civil Servants Act. Sub-rule (1) of rule 26 of the Khyber Pakhtunkhwa
      Civil Servants Act, 1973 (‘the Khyber Pakhtunkhwa Civil Servants Act’)
      empowers the Governor of the Province or any person authorized by him
      in this behalf, to make necessary rules for carrying out the purposes of
      the Khyber Pakhtunkhwa Civil Servants Act. The Governor had authorized
      the Chief Minister (‘CM’) Khyber Pakhtunkhwa to make necessary rules.
      Sub-rule (1) of Section 25 of the Balochistan Civil Servants Act, 1974 (‘the
      Balochistan Civil Servants Act’) empowers the Government of
      Balochistan or any person authorized by it in this behalf, to make
      necessary rules for carrying out the purposes of the Balochistan Civil
      Servants Act.
    7. The rules for carrying out the purposes of the relevant Civil Servants
      Acts have to be respectively made by the PM, the Governor of Punjab, the
      Government of Sindh, the CM Khyber Pakhtunkhwa and the Government
      of Balochistan. However, the laws and the rules made thereunder must
      conform with Article 25 of the Constitution, which guarantees equality of
      citizens and their entitlement to equal protection of law, and with Article
      27 of the Constitution, which safeguards against discrimination in the
      service of Pakistan.
      CP No.3390 of 2021 4
    8. The Civil Servants (Appointment, Promotion and Transfer) Rules,
      1973 does not provide for nor envisages what OM dated 13 August 20013
      issued by the Establishment Division had sought to do, that is, the
      appointment, without open advertisement, of a widow or one child of a
      civil servant of the Federal Government who dies during service, to a post
      in BPS-5 and on lower grade on contract basis. Through OM dated 5
      January 20024 issued by the Establishment Division, the same benefit
      was extended up to those in BPS-10. Thereafter, vide OM dated 13 April
      20055 issued by the Establishment Division the widow/widower/child of a
      civil servant who dies during service or who becomes permanently
      disabled during service and takes retirement from service, were made
      entitled for appointment on contract basis to any position up to BPS-10
      without the same being advertised.
    9. The Establishment Division introduced the Prime Minister’s
      Assistance Package (‘the Package’) vide OM dated 13 June 20066 for the
      families of Federal Government employees who die in service grants for
      different grades which covered pensionary benefits, accommodation, free
      education, free health, allotment of plot, house building advance and
      employment to the posts in BPS-1 to 15 for two years on contract without
      the post being advertised. The Package was amended vide OM dated 20
      October 20147 and additional benefits were granted with effect from 15
      June 2013 to the families of Government employees who die in service
      including employment of widow/widower/one son or daughter to the posts
      in BPS-1 to 15 on regular basis without advertising the post provided the
      applicant fulfils the criteria of the said post.
    10. The Package was further amended vide OM dated 22 October 20148
      with effect from 15 June 2013 and included the retention of official
      accommodation by the family of a Government employee who dies in
      service or payment of rent for five years or till the age of superannuation,
      whichever is later. The Package was again revised by the Establishment
      Division vide OM dated 4 December 20159 with effect from 9 February
      2015 with the grant of a three hundred percent increase in lump sum
      grant in the package earlier issued in 2006 and provided for other
      benefits, including employment to posts in BPS-1 to 15 on two years
      contract without the post being advertised. The Package was again revised

    3 OM No. F.No.8/10/2000-CP.1 dated 13 August 2001
    4 OM No. F.No.8/10/2000-CP.1 dated 5 January 2002
    5 OM No.4/1/2005-CP. 1 dated 13 April 2005
    6 OM No. 7/40/2005-E.2 dated 13 June 2006
    7 OM No. 8/10/2013-E.2 dated 20 October 2014
    8 OM No. 8/10/2013-E.2 dated 22 October 2014
    9 OM No. 8/10/2013-E-2(Pt) dated 4 December 2015
    CP No.3390 of 2021 5
    by the Establishment Division vide OM dated 23 December 202210 with
    effect from 4 December 2015 whereby the provision of contract
    employment under the Package of 2015 was replaced with regular
    appointments with immediate effect and the services of all the contract
    employees appointed under the Package of 2006 and the Package of 2015,
    who were contractual employees were regularized with immediate effect.

    1. The learned AAG conceded that appointments of a
      widow/widower/child of a civil servant who dies in service and those who
      become permanently disabled during service and takes retirement from
      service, either on contract or on regular basis, in different grades and
      without open advertisement was in violation of Articles 25 and 27 of the
      Constitution.
    2. Rule 17-A of the Punjab Civil Servants (Appointment and Conditions
      of Service) Rules, 1974 existed in the Province to provide Government job
      to the widow/wife/child of a civil servant in BPS-1 to 11 who dies in
      service or is declared invalidated/incapacitated for further service; it is
      reproduced hereinbelow:
      ‘17.A. Notwithstanding anything contained in any rule to
      the contrary, whenever a civil servant dies while in service
      or is declared invalidated/incapacitated for further
      service, one of his unemployed children or his widow/wife
      may be employed by the Appointing Authority against a
      post to be filled under rules 16 and 17 for which he/she
      possesses the prescribed qualification and experience and
      such child or the widow/wife may be given 10 additional
      marks in the aggregate by the Public Service Commission
      or by the appropriate Selection Board or Committee
      provided he/she otherwise qualifies in the
      test/examination and/or interview for posts in BS-6 and
      above;
      Provided further that one child or widow/wife of a
      Government servant who dies while in service or is
      declared invalidated/incapacitated for further service
      shall be provided a job against posts in BS-1 to 5 and the
      posts of Junior Clerks (BS-7) in the department in which
      the deceased Government servant was working, without
      observance of formalities prescribed under the
      rules/procedure. Provided such child or the widow/wife is
      otherwise eligible for the post.
      Provided further that only one child or widow or wife of an
      employee who dies during service or is declared
      invalidated or incapacitated for further service, if
      otherwise eligible for the post, shall be appointed to a
      post in BS-1 to BS-11 in the department where the
      Government servant was serving at the time of the death
      or the declaration, without observance of the procedural
      requirements prescribed for such appointment.’

    10 OM No. F. No.8/23/2021-E-2 (pt) dated 23 December 2022
    CP No.3390 of 2021 6

    1. Learned Advocate-General, Punjab informed that the policy for
      appointing one child/wife/widow in BPS-1 to BPS-11 (including the post
      of Patwari and Junior Clerk) of a civil servant who dies in service or is
      declared invalidated/incapacitated for further service in pursuance of the
      provisos to the above rule 17-A was discontinued with effect from 21
      November 2023 vide notification dated 7 December 2023. Thereafter, vide
      notification dated 26 July 2024 rule 17-A was omitted. He further stated
      that the Government of Punjab has approved a Financial Assistance
      Package with effect from 22 February 2017 for the families of the civil
      servants who die while in service, with different rates of compensation for
      different pay scales and the rate of compensation has been revised from
      time to time. The Financial Assistance Package in the Province of Punjab
      does not contain any provision to provide a Government job, either on
      contract or regular basis, in any grade, to a child/wife/widow of a civil
      servant who dies in service or is declared invalidated/incapacitated for
      further service.
    2. Rule 11-A of the Sindh Civil Servants (Appointment, Promotion and
      Transfer) Rules, 1974 provided Government jobs in BPS-1 to 11 to a
      child/spouse of a civil servant who dies in service or is declared
      invalidated/incapacitated for further service; it is reproduced hereinbelow:
      ‘Where a civil servant dies while in service or is declared
      invalidated or incapacitated for further service, one of
      his/her children or, as the case may be, [spouse] (when
      all the children of the deceased employee are minor) shall
      be provided job who applies within a period of two years
      of death or declaration of invalidity or incapacity of civil
      servant on any of the [Basic Pay Scale 1 to 11] in the
      Department where such civil servant was working:
      Provided that such appointment shall be made after
      fulfillment of formalities as required in the recruitment
      rules and holding interview, for the post applied for:
      Provided further that the cut of date shall be within two
      years of the death of the officer or official.
      [Provided further that if a right of employment has
      already accrued to any of the children of deceased or
      invalidated or incapacitated civil servant then the former
      shall not be deprived of the benefit accrued to him under
      Notifications dated 11.03.2008 and 17.07.2009 of these
      rules.]’
      While conceding that the above rule is discriminatory and violates
      Articles 25 and 27 of the Constitution, learned Additional AdvocateGeneral, Sindh stated that the above rule has not been omitted by the
      Government of Sindh.
      CP No.3390 of 2021 7
    3. Rule 10 (4) of the Khyber Pakhtunkhwa Civil Servants
      (Appointment, Promotion and Transfer) Rules, 1989 provided for the
      appointment of one child or spouse to a post in BPS 1 to 10 of a civil
      servant who dies in service or is rendered incapacitated/invalidated
      permanently during service; it is reproduced hereinbelow:
      ‘Where a civil servant dies or is rendered
      incapacitated/invalidated permanently during service
      then notwithstanding the procedure provided for in subrule (2), the appointing authority may appoint one of the
      children of such civil servant, or if the child has not
      attained the age prescribed for appointment in
      Government Service, the widow/wife of such civil
      servant, to a post in any of the Basic Pay Scales 1-10:
      Provided that the child or the widow/wife as the case
      may be, possesses the minimum qualification prescribed
      for appointment to the post:
      Provided further that if there are two widows/wives of
      the deceased civil servant, preference shall be given to
      the elder widow/wife.
      Provided also that the appointment under this sub rule
      is subject to availability of a vacancy and if more than
      one vacancies in different pay scales are available at a
      time, and the child or the widow/wife, as the case may
      be, possesses the qualifications making him or her
      eligible for appointment in more than one post, he /she
      shall ordinarily be appointed to the post carrying higher
      pay scale.’
      While conceding that the above rule is discriminatory and violates
      Articles 25 and 27 of the Constitution, the learned Additional Advocate
      General of the Province stated that the same has not been omitted as yet.
    4. Rule 12 of the Balochistan Civil Servants (Appointment, Promotion
      and Transfer) Rules, 2009 provided for the appointment of a child or
      spouse of a civil servant in BPS-1 to 15 who dies in service without
      observing the condition of open advertisement; it is reproduced
      hereinbelow:
      ‘Notwithstanding anything contained in any rule to the
      contrary, whenever a Civil Servant dies while in service,
      his/her spouse or a child may be employed by the
      appointing authority against a post in BPS-1 to 15 in the
      department in which deceased Government Servant was
      working, without observing the condition of open
      advertisement;
      Provided that –
      (a) the spouse or child as the case may be, shall
      possess the qualification prescribed for the post;
      and
      (b) If the child of the deceased Government Servant is
      under-age, his name shall be included in the
      CP No.3390 of 2021 8
      waiting list from the date of death of his/her
      Father or Mother. However he/shall be considered
      for appointment after he/she attains the age
      prescribed for the post.’
      Rule 12-A of the above Rules of 2009 provided for the appointment,
      without open advertisement, one child in BPS-1 and BPS-2 of a civil
      servant who, while serving in BPS-1 and 2, retires on superannuation or
      due to invalidation; it is reproduced hereinbelow:
      ‘Notwithstanding anything contained in any rule to the
      contrary, whenever a Government Servant in BPS-1 and
      BPS-2 retired on superannuation or due to invalidation,
      one of his/her children may be employed by the
      appointing authority against a post in BPS-1 and BPS-2
      in the Department in which the retired Government
      Servant was working, without observing the condition of
      open advertisement;
      Provided that –
      (a) the child possesses the qualification prescribed for
      the post; and
      (b) If the child of the retired Government Servant is
      under-age at the time of retirement, his name shall
      be included in the waiting list from the date of
      retirement/invalidation of his/her Father or
      Mother. However he/shall be considered for
      appointment after he/she attains the age
      prescribed for the post.’
      The learned Additional Advocate-General, Balochistan informed that
      vide notification dated 9 May 2023 rule 12-A had been omitted but that
      rule 12 still exists. He further stated that in the case of PWD Employees
      Union Balochistan v. Secretary Communication and Works11 a Division
      Bench of the Balochistan High Court declared the said rule 12 to be
      discriminatory and ultra vires Articles 2A, 3, 4, 9, 18, 25 and 27 of the
      Constitution, but the judgment passed by the Balochistan High Court was
      held not sustainable by a three member Bench of this Court vide order
      dated 19 September 2022 passed in Civil Appeal Nos. 691 and others on
      the ground that the question of vires of rule 12 was not before the High
      Court and that it could not take suo moto notice of the same since it did
      not have suo-moto jurisdiction to take up the matters on its own accord as
      was held in the case of Dr. Imran Khattak v. Ms. Sofia Waqar Khattak12.
    5. The widow/widower, the wife/husband and the dependent children
      of a civil servant who dies during service or becomes permanently
      disabled/invalidated/incapacitated for further service and takes

    11 2015 PLC (C.S.) 1182
    12 2014 SCMR 122
    CP No.3390 of 2021 9
    retirement from service get pensionary and other benefits from the public
    exchequer, to which they are entitled. However, the above mentioned
    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.

    1. The Government and public sector employment cannot be allowed to
      be parceled 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.
    2. 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.
    3. Article 5(2) of the Constitution bounds 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.
    4. 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
      CP No.3390 of 2021 10
      merit in appointments in the service of Pakistan that includes government
      jobs must be adopted.
    5. 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. 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.
    6. 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.
    7. Any law, policy or rule which is manifestly inconsistent with the
      Constitutional commands, retrogressive in nature and discriminatory inter
      se the citizens is subject to judicial review. In the case of Government of
      Khyber Pakhtunkhwa through Secretary Agriculture v. Tahir Mushtaq and
      others13, while dismissing the claim of the son of a retired civil servant of
      the Agriculture Department of Khyber Pakhtunkhwa who sought
      appointment in BPS-5 on the basis of employee’s son quota policy, it was
      held by a four member Bench of this Court that:
      ‘The Constitution of the Islamic Republic of Pakistan
      prohibits discrimination as stated in Article 25 and
      further stipulates and entrenches the principle in respect
      of service of Pakistan in Article 27. In preferring the
      children of a government servant or reserving seats for
      them offends the Constitution. The same also detracts
      from a merit based system of employment. The taxpayers
      hard earned monies pay for the salaries, benefits and
      pensions of government servants. The people’s interest
      lies in having the best person for the job, and not to suffer
      those who secure employment on the basis of a filial
      relationship. The stated instructions undermine
      transparency and good governance, therefore, the
      government of Khyber Pakhtunkhwa will be advised to
      withdraw all such instructions/notifications.’
      For the above reasons, while granting leave, Civil Petition No. 3390
      of 2021 is converted into an appeal and is allowed. The impugned order

    13 Civil Petition No.288-P of 2015 decided on 12 September 2024
    CP No.3390 of 2021 11
    dated 13 April 2021 passed by the Peshawar High Court in favour of the
    respondent is set aside. 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 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, are declared to be discriminatory and ultra vires Articles 3, 4,
    5(2), 18, 25(1) and 27 of the Constitution. The prescribed Federal and
    Provincial authorities are directed to withdraw the same. However, it is
    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 is 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.
    Chief Justice