Muneeb Tariq etc Vs Chairman Punjab Public Service Commission etc

Form No.HC.JD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

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Muneeb Tariq and another Versus Punjab Public Service Commission and 2 others

Sr. No. Date of Order with Signature of Judge, and that of parties or of Order/ Order/ counsel, where necessary Proceeding Proceeding

10.08.2020 Mian Asif Mehmood, Advocate with the Petitioner No.1/ Muneeb Tariq.

Mr. Ishtiaq Ahmad Khan, Additional Attorney General for Pakistan.

Ms. Saida Malik, Assistant Attorney General for Pakistan. Barrister Muhammad Umair Khan Niazi, Additional Advocate-General on Court”s call.

Assisted by: Shafqat Abbas Mighiana Civil Judge/Research Officer, LHCRC

“This is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning." Winston Churchill

The Petitioners through this writ Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the “Constitution”) have impugned the Notification dated 06.08.2020 (the “Impugned Notification”) issued by the Respondent No.1/Punjab Public

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Service Commission, Lahore (the “PPSC”), whereby the date of Punjab Management Services (the “PMS”) competitive examinations has been announced as 22.08.2020 instead of December, 2020.

2.The Petitioner No.1, who is an Advocate has filed this writ Petition by relying on the judgments of this Court cited as “Shiekh Asim Farooq v. Federation of Pakistan and others” (PLD 2019 Lahore 664) and “Muhammad Ahmad Pansota and others v. Federation of Pakistan and others”(PLD 2020 Lahore 229), wherein it has been held that public interest litigation was a powerful tool for individuals and groups to combat illegalities, injustice and social ills; it promoted and protected the larger public interest in case of violation of any Fundamental Right.

3.Learned counsel for the Petitioners contends that the Petitioners were enrolled to appear in written examination of PMS (5-A/2020) to be held by the Respondent No.1/PPSC. Further states that the aforesaid exams are always held in December of every year but the Respondent No.1/PPSC vide impugned notification wrongly announced the date of examination as 22.08.2020 and onward. Adds that all the Educational/Academic Institutions and Book depots remained closed due to pandemic Coronavirus disease (COVID-19) under the National Action Plan

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launched by the Government of Pakistan, therefore, the Petitioners could not prepare themselves for such exams.

Further states that the COVID-19 is still increasing and affecting the lives in Lahore and due to not observing the Standard Operating Procedures (the “SOPs”) issued by the National Command and Operation Centre (NCOC) there is danger to the lives of the Petitioners, therefore, the issuance of impugned notification is clear violation of SOPs. Further states that the Petitioners approached the Respondents to conduct the exams as per routine but Respondent No.1 is not postponing the exams, which infringes the fundamental rights of the Petitioners guaranteed under the Constitution.

Lastly submitted, that the impugned notification may be suspended and examination date be also extended.

4.When confronted to the maintainability of this writ Petition because all the State Functionaries, Bodies, Authorities, Courts and other State Departments remained functioning during the entire situation of COVID-19 by adopting the SOPs and nothing was suspended or halted, learned counsel could not satisfy the Court but requested that the date of exams be extended and the Respondent- Department be directed to follow the SOPs during the exams.

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5.Learned Law Officers also objected to the maintainability of this Petition and submitted that Corona virus cases have witnessed massive decline in Pakistan in recent days after which the Government of Pakistan on recommendations of the NCOC has decided to end the lockdown from today (i.e. 10.8.2020-Monday) reopen the country i.e. Public Transport, Trains, Air Travel, Restaurants, Theatres, Cinemas, Playgrounds, Shrines, Metro, Gyms, Parks, Tourist Attractions, Market and Malls, etc.

6.Arguments Heard. Record Perused.

7.Nub of the matter in this case is to set aside the impugned notification regarding the conduct of exams on 22.08.2020 due to prevailing COVID-19. But it is also important that lives of citizens of Pakistan are to be protected by the Government which is the Fundamental Right guaranteed under the Constitution.

8.Brief facts are that an outbreak of corona virus disease (COVID-19) caused by the 2019 novel corona virus (SARS-CoV2) rapidly spread across the world since December 2019, from Wuhan, Hubei Province, China to 165 countries and territories. The World Health Organization (WHO) officially declared it as a public health

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emergency of international concern on 30.01.2020, and ultimately as a global pandemic on 11.03.2020.

9.Pakistan was unprepared for a massive pandemic of COVID-19. After declaration of COVID-19 as a pandemic, the Government of Pakistan accorded it highest priority and a meeting of the National Security Committee (NSC) was held to deal with the threat of COVID-19. A detailed Action Plan was issued by the Government of Pakistan. It provided for the background, the steps to be taken and the short-term, medium-term and long-term measures to be undertaken.

Detailed SOPs for check-up at all points of entry into the country were also issued. The matter was treated as that of national security issue.

10.Meanwhile, the Federal Government established a National Coordination Committee (NCC), to formulate and implement a comprehensive strategy to stop the transmission of the COVID-19 and mitigate its consequences. Decision to form National Coordination Committee was taken during the NSC meeting. NCC comprised of Federal Ministers concerned, Chief Ministers, Surgeon General of Pakistan Army, and representatives of DG ISI, DG ISPR as well as DG military operations. The NCC designated the National Disaster Management Agency (NDMA) as the leading operational agency. In each

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province the Chief Ministers convened task forces to coordinate the response, with the Provincial Disaster Management Agencies (PDMA) as the leading provincial operational agency.

11.COVID-19 Pandemic obligated the Government to come up with a new controlling institution namely “National Command & Operations Center” (NCOC), which later on emerged as an example of representative governance. NCOC was established on 31.03.2020 and functioning as the “nerve center for timely decision- making” on COVID-19. NCOC acts as the implementation arm of the NCC, the government's lead agency in the anti- COVID-19 campaign. One of NCOC's key functions is to ensure effective coordination between Federal and Provincial Governments to deal with the pandemic. Now, NCOC is working as one-window operation to collaborate and articulate the national efforts against COVID-19, enhance informed decision-making and ensure implementation of decisions of the NSC and NCC.

12.All the government departments continued to perform their duties and functions even in the lockdown situations, but with strict observance of SOPs, chalked out by NCOC in this regard. Moreover, the Courts being the judicial organ of the State also continued functioning for

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safeguarding the rights of the citizens. Meaning thereby during turmoil spell of COVID-19 the Government tried its level best to work for the betterment and safety of general public.

13.Learned Full Bench of Hon”ble Supreme Court of Pakistan in the recent judgment cited as “Suo Motu Action Regarding Combating the Pandemic of Corona Virus (COVID-19)” (2020 SCMR 987) has observed that “looking at the past history of country, where business activities of private entrepreneurs were interfered with by the government, such entrepreneurs lost faith in the system and packed up and moved to some other destinations in the world, where they considered their investment to be more safe and profitable; that if the business and industries remained closed for a long time, their revival became more and more doubtful, and in case they were not revived, millions of workers would be on streets and the Government may be faced with a human disasters and calamity of such a magnitude that to overcome it, may become next to impossible.”

14.It is worth noticing that life of every citizen of Pakistan has to be protected under the Article 9 of the Constitution which clearly states that “no person shall be deprived of life or liberty save in accordance with law.”

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Therefore, the argument of learned counsel for the Petitioner to this extent is adequate.

15.Undoubtedly under Article 4 of the Constitution, the Petitioners have inalienable right to be treated in accordance with law but this Article has to be read with Article 5 of the Constitution, which mentions that it is inviolable obligation of every citizen to obey command of the Constitution, the Law and the Policies made by the Government. The Article 5(2) of the Constitution states that:

“Obedience to the Constitution and law is the inviolable obligation of every citizen wherever he may be and of every other person for the time being within Pakistan.”

16.The word “inviolable” used in Article 5(2) of the Constitution means that it is never to be broken and infringed. In the case of President Balochistan High Court Bar Association and others versus Federation of Pakistan and others (2012 SCMR 1784), august Supreme Court of Pakistan has held that “to be loyal to the State is the basic duty of all citizens and they have to be obedient to the Constitution and the law, wherever they may be. Thus, adherence to the Constitution and the Law by the citizens is mandatory. Non-compliance of the Constitution and the Law makes a citizen liable for action, in accordance with

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law”. It would also include principles of natural justice, procedural fairness and procedural propriety. Laws are always made not to be violated but to be obeyed. In Suo Motu Case No.15 of 2009 (P L D 2012 SC 610) august Supreme Court of Pakistan held that it is expected from every citizen of Pakistan that he shall be loyal to the State and the basic duty of every citizen is to be obedient to the Constitution and law as ordained under Article 5 of the Constitution. Respect for law is never maintained by force but by the appreciation of the reasons, appreciating its veracity and through obedience.

Unfortunately, sometimes, the law falls in crisis due to misunderstanding or lack of vision.

17.In order to secure fundamental rights, every citizen has to adhere to the SOPs issued from time to time by the Government which are binding on them under the Doctrine of Sovereignty. This Court in the recent judgment titled, Mst. Fatima Faryad etc. v. Government of Punjab etc.

(2020 CLC 836) held that:

“under the Doctrine of Sovereignty they are bound to adhere to their commitment in the light of dictum laid down in the case of Dewan Salman Fibber Ltd. and others v. Federation of Pakistan, through Secretary, M/o Finance and others (2015 PTD 2304) whereby

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this Court while laying emphasis on the impotence of the Government adhering to severing commitments made by it, whether in the form of the statutory orders or notification issued by it or in the shape of policies announced by it held that "the commitments made on behalf of the Government of the Islamic Republic of Pakistan should neither be lightly disregarded nor deliberately ignored. The orderly development of a civilized society requires that citizens should be entitled to place implicit faith and confidence on representations which are made by or on behalf of the duty constituted governmental authorities. The importance of this underlies the sustained thrust towards the industrialization of the country in which both the nationals of Pakistan as well as nationals of foreign countries should have complete confidence that official commitments will be duly honored and acted upon in letter and spirit."

This view has further been fortified by a learned Division Bench of this Court in the judgment reported as National Bank of Pakistan v. Iftikhar Rasool Anjum and others (2017 PLC (C.S.) 453), which has been upheld by the Hon'ble Supreme Court of Pakistan in the case of “Bahadur Khan

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and others v. Federation of Pakistan through Secretary M/o Finance, Islamabad and others” (2017 SCMR 2066).

18.As all the State Functionaries, Bodies, Authorities, Courts and other State Departments remained functioning during the situation of COVID-19 and nothing was suspended or halted, therefore, mere holding of exams on 22.08.2020 by the Respondent-PPSC will not violate the fundamental rights of the Petitioners. However, for the protection of lives of the candidates, the Respondent No.1/PPSC is directed to ensure strict observance of SOPs laid down by NCOC and the Punjab Government, during the examinations. Even otherwise all the candidates appearing in competitive PMS exam are also bound to follow the internal SOPs for the written examination in PPSC. These guidelines comprehensively provide precautions to be taken by the candidates and invigilators before and after the examination and during the conduct of examination as well. Anxiety in people–loneliness and the fear of death were the prominent problems at initial outbreak of COVID-19, but by the grace of Almighty Allah, now the situation is altogether different. Presently sharp decline or interruption in Covid-19 has been observed.

Government has yet not claimed the absolute ending of Covid-19. National and International experts, closely

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observing all about the Covid-19 are unable to give any deadline about complete vanish of turmoil pandemic from the earth. For the sake of arguments, if exams may be conducted in the month of December, again all the concerned will have to strictly follow the advisories/ guidelines of Government regarding Social-Distance and Sanitization etc. at the exam centres. According to PPSC, exams are being held with all safety measures. Clearly, there are no cogent reasons to postpone the PMS examination as is sought by the petitioners.

19.Consequently the writ Petition is disposed of with the direction to the Respondent/PPSC to conduct the exams as per schedule by strictly following the restrictions guided in the SOPs and the candidates shall also be bound to obey the SOPs.

(JAWAD HASSAN)

JUDGE

Zi@-ur-Rehman