Muhammad Ramzan Qureshi Vs. Federal Government and others.

IN THE FEDERAL' SHARIAT COURT

Original Jurisdiction )

PRESENT:

MR.JUSTICE AFTAB HUSSAIN CHIEF

MR.JUSTICE ALI HUSSAIN QAZILBASH

MR.JUSTICE B.G/N.KAZI

MR.JUSTICE C H .MUHAMMAD SIDDIQUE

MR.JUSTICE MAULANA MALIK GHULAM ALI

MR.JUSTICE MAULANA ABDUL QUDDUS QASMI

MR.JUSTICE MUFTI SYED SHUJAAT ALI QADRI

1. SHARIAT PETITION N0.2/L OF 1983

Muhammad Ramzan Qureshi Vs.

2 . SHARIAT PETITION l/I '-OF 3)984.

Muhammad Banishmand Vs.

61 Pakistan, efi

3 . SHARIAT PETITION N0.3/L OF 198 3 .

Raja Muhammad.-.'Fazi!! Vs. Federal Government Pakistan a n d . ,1 another.

4.SHARIAT PETITION NO.l/L OF 1983.

Hassan All OureShi Vs. Government of the Punjab.. -

AND

SUO MOTO EXAMINATION OF:-

SSM NO.5/WP/84 1. THE PAKISTAN WATER AND POWER DEVELOPMENT

AUTHORITY ACT XXXI OF 1958

C West Pakistan Act XXXI of 1958 ) SSM NO.186/P/83 2. THE UNIVERSITY OF THE PUNJAB ACT IX OF 1973 ( Punjab Act IX of 1973 ) SSM N0..187/P/83 . 3. THE UNIVERSITY OF- AGRICULTURE FAISALABAD ACT. XII OF 1973. < Punjab Act XII of 1973 ).

SSM NO.196/P/83 4. THE UNIVERSITY OF ENGINEERING AND TECHNOLOGY LAHORE ACT V OF 1974 ( Punjab Act V of 1974) SSM N O .2G4/.P/83 5. THE PUNJAB CIVIL SERVANTS ACT VIII O F 1974. c Punjab Act VIII of 1974 )

SSM N O .84/8/84 6. THE SIND CIVIL SERVANTS ACT XIV OF 1973

( Sind Act XIV of 1973 ) SSM N0.71/B/84 7. THE BALUCHISTAN CIVIL SERVANTS ACT IX OF 1974.

SSM N0.71/NWFP/84 8 NORTH WEST FRONTIER PROVINCE CIVIL SERVANTS- ACT XVIII OF 1973 (NWFP Act XVIII of 1973).

SSM N0.205/P/83- 9. THE PUNJAB SERVICE TRIBUNALS ACT IX OF 1974 ( Punjab Act IX of 1974 ) SSM N O .72/B/84 10. Tlffi BALUCHISTAN. SERVICE TRIBUNALS ACT V OF 1974 ( Baluchistan Act V of 1974 )-.

'SSM NO? 72/NWFP /84 11. NORTH WEST FRONTIER PROVINCE SERVICE TRIBUNAJsS- •( ACT I OF 1974 C NWFP Act I of 1974). P SSM ^ N 0 . 8 5 / S / 8 4 1 2 .: SIND SERVICE TRIBUNALS ACT XV O F 1973 -Sind Act, XV of 1973 ) "• -

PRESENT:

For Petitioner in S.P.3/L Mr.Irshad Ahmad Qureshi. of 1983. Advocate.

For Petitioner in S.P.l/L Mr.Muhammad Iqbal Cbaudhry- of 1983 Advocate.

For Petitioner in S.P.2/L Mr.S.M.K.Lodhi, of 1983 & S .P .N o .1/1 of Advocate For WAPPA Maulvi Siraj-ul-Haq, and Mr.Muhammad Afzal Siddiqui, Advocates.

Lt.Colonel Raunaq Ali, Director Legal

WAPDA

For Federal Government: Mr.Munir Ahmad Shaikh-, Deputy Attorney General - of Pakistan.

Dr.Syed Riaz-ul-Hassan Gillani, Hafiz S.A.

Rehman and Mr.Iftekhar' Hussain Ch. Advocates.

For Government of Mr.Qaisar Ahmad Baluchistan Hamidi, Secretary Law Department, Baluchistan.

Mirza Munawar Ahmad, Advocate-General of Baluchistan.

For Government of the Mr.Khalil Ramday, Punjab Assistant Advocate- General, Punjab, Mr.

Muhammad A&lam Uns, Advocate. Mian Muhansnad Arshad. Secretary Law Department, Punjab, Shazada Kabir Ahmad Deputy Secretary, Law Department, Punjab Mr.Shaukat Ali, Additional Secretary (Regulation)

S.G.A.& I.D.

For Government of NWPP: Mian Muhammad Ajmal, Assistant Advocate- General, NWFP.

For Government of Sind: Mr.Saeed A.Shaikh, Advocate-General, Sind.

Others: M r .Israr-ul-Haq, OSD/Joint Secretary, Establishment Division.

Date of Hearing: 7.1.1984 21.1.1984 to 24.1.1984 .

. JUDGEMENT: ‘ • ,

V*L AiTAB HUSSAIN, CHIEF JUSTICE:- This

order will dispose of Shariat Petition N 0-.2/L of 1983, Shariat Petition No.l/I of 1984, Shariat Petition No.3/L of 1983 and Shariat Petition No.l/L of 19-83, and the following provisions of law:-

SSM NO.5/WP/84 1 . Section 17 Sr. 18 of the Pakistan Water and Power Development Authority Act XXXI of 1958. ✓ C West Pakistan Act XXXI of 1958 ) SSM NO.186/P/83 2 . Section 42 of The University of the Punjab Act IX of 1973 (Punjab Act IX of 1973) SSM NO.187/P/83 3. Section 41 of The University of Agriculture Faisalabad Act XII of J973 ( Punjab Act XII of 1973) SSM N O .196/P/83 4. Section 40-A of The University of Engineering and Technology Lahore Act V of 1974 C Punjab Act V of 1974) SSM NO.204/P/83 5. The Punjab Civil Servants Act VIII of 1974 ( Punjab Act VIII of 1974) SSM NO.84/S/84 6 . The Sind Civil Servants Act XIV of 1973 C Sind Act XIV of 1973).

SSM N0.71/B/84 7. The Baluchistan Civil Servants Act IX of 1974 SSM N O .71/NVSP/84 8 : North West Frontier Province Civil Servants Act XVIII of 1973 CNWFP Act XVIII of 1973) SSM NO.205/P/83 9. The Punjab Service Tribunals Act IX of 1974 ( Punjab Act IX of 1974 ).

SSM N0.72/B/84 10 The Baluchistan Service Tribunals Act V of 1974 ( Baluchistan Act V of 1974).

SSM N0.72/NWFP/84 11 The North West Frontier Province Service Tribunals Act I of 1974.

C NWFP Act I of 1974 ).

SSM NO.85/S/84 12 The Sind Service Tribunals.Act XV of 1973“ ( Sind Act XV of 1973 )

•2. The petitioners in the first two petitions have challenged Rule 44(3) of the Cantonment Servants Rules 1954 which was added by S.R.Q. 909(I)/82 published in the Pakistan Gazette Extra-Ordinary, dated 20th of September, 1982. It is as follow^- **The Director may, in the public interest compxilsorily retire a

cantonment servant on any date

after he has completed 25 years of service qualifying for pension or other retirement benefits”.

3.Shariat Petition No.1/L of 1983 has beer- filed to challenge Section 12 of the Punjab Civil Servants Act 157 4 which provides as follo\$t- 4, S.,12.Retirement from service. A civil servant shall retire from service,

(i)in the case of a person holding a post equivalent to the post of Additional Secretary to Govt, of Pakistan or a higher post, on such date, as the competent authority may, in the public interest, direct;

(ii)in any other case, on such date, after he has completed twenty-five years of service, qualifying for pension or othe r retirement benefits, as the competent authority may, in the public interest.

direct;or'

(iii)where no direction is given under clause {i) or clause (ill on’the

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completion -of the sixtieth year of ^ his age,

ftExplanation: In this Section "Competent authority" means the appointing authority or a person duly authorised by the appointing authority in that behalf, not being a person lower in rank to the Civil Servant concerned^’ s Section 13 of the Baluchistan Civil Servant ActK1974 is similarly worded as Section 12 of the Punjab Act.

However, Section 13 of Sind Civil Serants Act 1973 and Section 13 of N.W.F.P Civil Servants Act • 1973 do not provide for retirement of a person holding a post of an Additional Secretary or equivalent or higher post as provided in the Punjab and Baluchistan Acts.

5.Section 42 of the University of the Punjab Act, 197$, Section 40-A of the University of Engineering Lahore and Technology/Act, 1974 and Section 41 of the University of Agriculture, Faisalabad Act XII of ,1973 provide similarly for the retirement of an officer, teacher or other employee of the University on such date after he has completed 25 years of service qualifying for pension or other retirement benefits, as the competent authority may in the public interest direct, or when no such direction is given, on the completion of 60th year of his age.

6.Section 17 of the Pakistan Water and Power Development Authority Act 1958 is,however, couched in much more drastic terras. WAPDA employees are of . two types ‘i.e. those who are government servants and ■*’ who have been transferred to WAPDA to serve ther^ aiid those who have been employed or appointed by the «5Ks5

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WAPDA itself. On removal or retirment from service by'the Authority, a government servant stands reverted to the Provincial Service. Section 17(1) authorises the Authority to employ inter alia officers and servants on such terms and conditions as it may deem fit.- Sub-Section (1-A) of Section 17 however, provides that notwithstanding anything in the terms and conditions referred to above, the Authority may retire or remove from its service any person without assigning any reason, after- giving him not less than 30 days’ notice or pay for the period by which sucji notice falls short of 30 days.

- Subsection (I-B) of the Section declares service in the Authority to be service of Pakistan and except for a person on deputation with the Authority from any province every person holding post in the Authority is deemed to be a civil servant for the purposes of the Service Tribunals Act, 1973 (Act LXX of 1973).

8.Sub-Section (I-C) provides that any order of removal or termination passed under Section (I—A) shall not be called in question in any proceedings taken under the Industrial Relations Ordinance XXIII of 1969^ Essential Services (Maintenance)Act LIII of 1952 or under any law irr the time being in force before any Court, Tribunal or Commission after the thirteenth day of September, 1975 and before coming into force of the West Pakistan Water and Power Development Authority (Amendment) Ordinancey and any order of a Court:

or Tribunal setting aside or modyfying or declari

any order of -the Authority passed between these dates would be void and of no effect.

9.Sub-Section (I—D> of Section 17 provides that nothing in the Industrial Relations Ordinance, 1969 shall apply to or in relation to any person appointed as a member of the security staff of the Authority for the protection of the. installations and establishments of the Authority.

10.Section 18 authorises the Authority to prescribe the procedure for appointment, and terns and conditions of service of its officers and servants and provides that the Authority shall be competent to take disciplinary action against its officers and servants.

1T. The four provincial Service Tribunals Acts provide for setting up of administrative tribunals to be cal led Service Tribunals having exclusive jurisdiction in respect of matters relating to the tents and conditions of service of Civil Servants including disciplinary natters. The jurisdiction of the Tribunal can be invoked by appeals. These tribunals have been set up in each province under the power vested by Article 212 of the Constitution and an appeal against the order of the Tribunal lies only to the Supreme Court if the case involves a substantial question of law of public importance and the Supreme Court grants leave to appeal on that ground.

12.The following points arise in these cases:

No.1. Whether the power to retire a person holding post of Additional Secretary or equivalent post or higher post is repugnant to the Quran and the Sunnah No.2. Whether the power to retire a person after 25 years of qualifying service

for pension is so repugnant.

3.Whether the power vested in the WAPDA by Sub-Section 1-A of Section 17 which takes away with the other hand whatever benef it$ are given^I^y^u^s trained under Section 18 thereof are repugnant as mentioned above.

13.The first two question came up for consideration before this Court during the examination of the Civil Servant Act LXXI of 1973 which is applicable to officers or employees of the Federal Government.

Sub-Section (1) and (2) of Section 13 in that Act which are similarly worded as Sub-Section (1) and (2) of Section 12 of the Punjab Civil Servant Act were held to be repugnant to the Quran and Sunnah. In the JiidgeaAfft of that Act, the principle of Masawat (equality before law) and equal protection of law as given in the Quran and the Sunnah of the Holy Prophet was considered and was then applied to Sub-Section (1) of Section 13 which was directed to be repealed. The grounc^on which Sub—Section (l) of Section 13 was held to be invalid are reproduced below: - "Equality before law and equal protection of law is thus the main principle inherent in the Islamic law and polity. It is one of the fundamental principles of Islam which cannot be ignored.

We do not see any reason why any such distinction between two types of permanent Government servants be made particularly when such protection have been afforded to ail Government servants in all the three Constitutions referred to above. This only gives a handle to the President or the Prime Minister to force officers of higher ranks to act according to his will rather than ';

according to law. This gives the power

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to a competent authority to remove a 1 :*j<£ Government servant merely on the basis ’of his personal likes or dislikes which is too arbitrary a test to deprive a ■ym person of the means of his livelihood and to deprive the nation of his talent and •.jrk

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In this age, one of the duties of Government is to seek employjsment for the citizens of the country. In these circumstances arbitrary removal from service will also be repugnant to sharia. One of the reasons for affording protection and safeguard against premature retirement, removal or dismissal is that all Government servants may act according to law without any fear or favour. To withdraw this protection amounts to virtually withdrawing from them the duty to act according to law c ana conscience and to make them bend to the will of the Chief Executive. Section 13(1} is repugnant to the Quranic principle of equality before law and equal protection before law. It shall be repealed." xl

14.Sub-Section^ 5of Section 13 was likewise held to be contrary to sharia and was directed to be struck

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down on the following grounds:- “The other provision is sub-section (ii) of Section 13. Though similar provisions have been there in the Service Rules, but if figures are collected of persons where services were terminated on this ground or similar ground before 1953 and after 1958, it will be found that cases of such premature retirement before 1958 are extremely rare. The provisions not only violate the principle of equality before law and equal protection of--law but also gives to the competent authority an arbitrary pdwex over the." •-

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VVI. ,. If after 25 years of service qualifying e.

for pension or other retirinent benerits, wiy-y- ■ . the efficiency of a Government servant is affected, disciplinary action can be taken against him under the Rules framed under Section 16 of the Act and he can y be removed for inefficiency. This is 'k- sufficient safeguard for public interest. This provision shall also be repealed."

15.The first question does not arise in relation f.''. to the Sind Civil Servant Act and the N.W.F.P Civil Servant Act but the second question is common to all the Provincial Acts, Rule 44(3) of the Cantonment Servants Rules 1954 and the relevant provisions of the Universities Acts.

It may be stated that by Baluchistan Civil Servant (Amendment) Ordinance XIV of 1978, N.W.F.P Civil (Amendment) / Servant Ordinance IX of 1978j Section J2-A was addec 4to the Civil Servants Act of each province. Similarly >y the Punjab Civil Servants (Amendment) Ordinance IX of 1978, Section 11(A) was added to the Punjab Civil Servant Act-. Iu Sind the relevant provision was i|ade by Martial Law Order,55 of 197S issued by Maf-tiai Law Administrator Zone C.

17.This amendment empowered the Govern©^ or a person authorised by him in this behalf to remove from service or revert to his lower post or grade, a Civil Servant appointed or promoted during the period from the first day of January, 1972 to 5th day of July, 1977 in public interest without notice notwithstanding anything contained in his terms and conditions of his service.

rules which means that the power of removal is given as regard to persons who were .arbitrarily or whimsically appointed or promoted by way of patronization. This is a matter which is now past and closed and it is not necessary to consider the vires of these amendments in the above mentioned provincial statutes,

19.The petitioners who filed the Shariat Petitions based their arguments only on the ✓ f

judgment of this Court on the Civil Servants Act of 1973 particularly the portion referred to above.

Moulvi Sirajul Haq aho appeared on behalf of WAPDA and Advocate General of Baluchistan, Advocate General of Sind, Assistant Advocate General of Punjab and Assistant Advocate General of N.W.F.P submitted thatja question arises in some Shariat Petition as well as suo-moto examination of statutes whether principle regarding protection of tenure to the government servant can be applied to employees who are not government servants but are employees of statutory corporations like the Universities, WAPDA, Cantonment Boards or for the matter of that the Municipal Committee or Corporations, This question is of paramount importance and requires to be considered as a preliminar objection.

20.There are a number of cases in which the High Court and the Supreme Court distinguished between employees of the government and other employees including employees of the statutory corporations.

It'is necessary to make a review of these authorities.

21.The cases cited by Moulvi Siraj-ul-Baq in support of this proposition are as follows:

Mohammad Shaft-Vs. Muncipal Committee, MurreejPLD 1953 .

Lahore 163, M/S Malik and Hag & another Vs. Mohammad i Shamsul Islam Chaudhry, PLD 1961, Supreme Court 531y A.George Vs. Pakistan International Air Lines Corporation,PLD 1971 Lahore 748,, Gulf Steamship Company Ltd. Vs. Dilwash Balooch,PLD 1962 Karachi 899yR«T .H Janjua Vs. National Shipping Corporation, PLD 1974 Supreme Court 146; Abdul Salam Mehta Vs. Chairman WAPDA and another, 1970 Supreme Court Monthly Review 40. PLJ 1981 Supreme Court 648 Abdul Hameed Khan Vs. WAPDA and another, 1981 Supreme Court Monthly Review 325; Agricultural Development Corporation of Pakistan Vs. Anwar Hussain, 1982 Karachi 313.

22.Some other cases were cited by Mr. S.M.K Lodhi. They are Shahid Khalil Vs. Pakistan Intenational Airlines Corporation 1971 S.C.M.R. 569, Lt. Col. Shujauddin Ahmad Vs. Oil and Gas Development Corporation, 1971 S.C.M.R. 566.

23.In Mohammad Shafi Vs. Muncip3l Committee, Murree, PLD 1953 Lahore 163, It was held that the Muncipal servants hold office during the pleasure of the Municipal Committee and a suit for wrongful dismissal of such an employee- is not competent in a court of law. The remedy of the dismissed employee is by way of appeal and revision.

24.In M/S Malik & Haq and another Vs.

Muhammad Shamsul Islam Chaudhry, PLD 1961 Supreme Court 531, the question was whether the relationship between a company and its employees was governed by the ordinary law of master and servant. It was held that in the absence of any statutory provision protecting the servant, it is not possible

in law to grant to him a decree against an unwilling master when he isx« still his servant. A servant cannot he forced upon his master. The master is always entitled to say that he is prepared to pay damages for breach of contract of service but will not accept the services of the servant. A contract for personal service, as will appear from Section 2 1 (b> of the Specific Relief Act, 1887, cannot be enforced. A breach of contract can give rise only to the relief of damage

25.This authority was relied upon in Gulf Steamship Company Ltd. Versus Dilwash Balooch PLD 1962 (W.P) Karachi 899.

26.There are certain cases in which the discussion revolves round the question whether a writ of mandamus an can be issued in respect of /Employee directing the employer to reinstate the employee. In Lahore Central Cooperative Bank Ltd. Vs. Pir Saif-ullah Shah,PLD 1559 S.C.(Pak) 210, this question was answered in the negative on the ground that mandamus is a discretionary writ. It is not an order granted as of right and it is not issued as a matter of course so that the court may refuse the order not only upon the merits, but also by reasons of the special circumstance of the case.

27.Pir Saifullah was an employee of Lahore Central Cooperative Bank and was removed on account of being guilty of misconduct and having been proved unworthy to occupy an important position of trust. It was held that a writ was not a proper remedy in case of dismissal of a Cooperative Bank employee. The relationship was that of master and servant in which the master could terminate services of his servant

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■ m without notice. Mandamus was refused inter alia on the ground that the law on the subject in Pakistan had followed in all essential respects the practice of the English Courts. The Superior Courts in England have not found it possible to extend the scope of mandamus to restoration to office in private corporations which are posts of contractual nature falling within the category of employment and having nothing of the true character of a statutory or corporate office. Public offices on the other hand .r--*\ have a security which is entirely foreign to that belonging to-the post of a Commercial Manager in a Cooperative Bank or a private Corporation.

28.It may be stated that the Civil Service Rules were made applicable to the Bank Employees by a resolution of the Managing Committee of the Bank.

It w’ as held that these rules were not applicable to them of their own force but were applied merely by reference and though the rule embody safeguard provided for public servants they could not be availed of by the Bank Employees as a matter of legal rights.

29.An interesting discussion in the case of Pir Saifullah Shah is of the definition of a:?ublic Officer or a holder of a Public Office as distinguish­ able from posts in a private corporation^. The question arose because of the American precedents.lt was stateds

"Syed Muhammad Zafar appearing on behalf of the respondent has referred us to a statement in Perris' book on page 328, v..-,-.1.1 in support of his plea that although - the office in question was an office'-in. a private corporation, yet a mandamus could issue for the purpose of restoration ■■ to such office. The words on which he

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relied are as follows?-

"Mandamus is the proper remedy to prevent further illegal exclusion from office in a private corporation when the right thereto is clear, although under such circumstances there be an incumbent. The same principles applicable to public officers in such cases are generally applicable here".

fA number of authorities of the State Courts in the United States are cited in support of this dicta- None of these cases is available here for examination, but we find on reference to the treatment of the writ of quo warranto in the same book, at page 1?4 , material which shows plainly that in this respect, the American Courts have drawn the scope of mandamus in the relevant respect, fur beyond the limits set by the English jurisdiction to which the writ originally belongs. The following passages in paragraph 154 will make this perfectly clear:

’The English rule is, that to justify quo warranto to try title to an office, it is essential that the offji.ee be such as the law deems of a public nature, and quo warranto, will not lie, although the charter is derived from the sovereign, if the sovereign neither aids nor reserves any control over it.’

'All American Courts, with one exception, Massachusetts, agree and that an action of quo warranto, or in the nature thereof, is the proper remedy to test the right of office in a private corporation, on the theory that any corporation chartered or organised under the laws of a state is public in character and , any abuse or usurpation.thereof is an- abuse of usurpation of the State's privilege.

offices in private corporations are created so that the design of the grant may be effectuated and the existence of the corporation perpetuated by the due and regular election of officers in accordance with the rules and laws of their governance. And there is no difference in principle between an office created by special actt as director of a bank and one created by general provisions of law, as a director in a manufacturing corporation. The public character of a corporation and of its offices, when the question arises in quo-warranto proceedings; and as distinguished from corporations and offices that are public in a political sense, is not tc be determined by the nature or purpose of its business but by the character of its origin and the policy of the law. Corporations for private gain differ in no essential that affects the public character of the grant, from corporation created for purely public purposes. Their corporate powers spring alike from the same source, their organization is directed by the same hand, their regulations and restraints are controlled by the same authority, and they are answerable alike to the same sovereign" The reference to a 'sovereign' needs same explanation, and this may perhaps be found by reference to paragraph !45 on page 166 of the same beck in the following observation "A public office is the right, authority and duty created and conferred by law, by which an individual is vested with some portion of the soveiagn functions of the government to be exercised by him for the benefit of the public, for the term and by the tenure prescribed by law. It implies a delegation of a portion of the sovereign power. It is a trust conferred by public authority for a public purpose, embracing the ideas of, tenure, duration, emolument and duties"

Apparently, by the expression ’sovereign* in relation to private corporations, is meant the sphere withi«i which, under law, such corporations have freedom to act, in the discharge of their functions.

30.Thus distinction was drawn on the basis of the decisions of the American Courts between a public or statutory office and other posts or offices in companies or private corporations.

31.In Pakistan Versus Mehraj Peenj^LD 1959 S.C 147^)it was held that in the absence of proof that any statutory duty was involved or that any legal right was required to be enforced or that the performance of a public duty was being claimed, a mandamus or an order of mandamus cannot issue consistent with the relevant practice and precedent.

32.An other similar case is of Zain-ul-Abidin Versus Multan Central Cooperative Bank Ltd.,\?LD

Writ of mandamus was denied to itain-ul Abdin, an employee of the Multan Central Cooperative Bank on the ground given in the case inter alia of Pir Saifullah Shah. (Also see Pakistan Vs. Naseem Ahmad,PLD 1961 S.C.445). It was stressed that a writ of mandamus will lie to compel the restoration of a person to an office or franchise whether spiritual or temporal of which he has been wrongfully dispossessed provided such office or franchise is of a public'nature and not

for restoration to any or every Jcind of public office. The Civil Service Rule had been adopted by the Multan Cooperative Bank too. It was held that this gives no advantage since the rules were applied by reference only.

33.An other case in the same Volume is that of Chairman/ East Pakistan Industrial Development Corporation, Dacca, and another Versus Rustam Ali g and another, PLD 1966 S.C. 848. In this case too the relationship between the appellant statutory corporation and its employees was held to be that of master and servant. The High Court had taken a different view but the Supreme Court disagreed with it and recalled the writ issued by the High Court.

34.In A Georgs Versus Pakistan International Airlines Corporation, FLD 1971 Lahore 748 a question arose before a Division Bench of the High Court of Lahore whether the employees of the PIA which was a statutory body and amenable to various controls by Central Government were entitled to guarantees and safeguards provided for state servants in the Constitution of Pakistan. It was held that the relationship between Corporation and its employees was purely that of master and servant under the general law.

35.In Syed Ghulam Mohiuddin Versus The Board of Trustees of the Karachi Port Trust and others, PLD 1957 Karachi 482, it was held by the Karachi Bench of the West Pakistan High Court that an employee of the Board of the Trustee of the Port of Karachi under law cannot be regarded as

holding a civil post under the Crown in Pakistan.

36.In Abdul Ghafoor Versus Thai Development Authority Juaharabad, PLD 1958-. Lahore 169, it was held that an employee of the Thai Development Authority was not -a Civil Servant...

37.In Abdul Salain Mehta Versus Chairman.

WAPDA and another, 1970 SCMP. 40 it was observed that it was not disputed that an employee of the WAPDA was not entitled to the protection of Article 177 of the Constitution of 1962 meaning thereby that he was not a Civil Servant. Same was held by the Supreme Court in connection with ..employees of Oil and Gas Development Corporation, 1971 S.C.M.R.

38.The employees of. National Shipping Corporation were held not to be entitled to any protection.R.T.H Janjua Versus National Shipping Corporation, PLD 1974 S.C 146.

39.In a recent case Mohammad Yousuf Shah Versus Pakistan International Airlines, PLJ 1981 Supreme Court 648, it was held that the relationship of master and servant governed the relationship, of employees of the Pakistan International Airlines Corporation. 'Also see Hari Kishan Das Vs. Chairman WAPDA, PLD 1983 Quetta 61.

40.In the Agricultural Development Bank of Pakistan Versus Anwar Hu-sain JatoifPLD 1982 Karachi 313.it was held that employment of the Statutory Corporation were governed by the law of master and servant. Same was held in Mohammad Afzal Versus House Building Finance Corporation^PLD 1966 Karachi 1121.

41.In Dr. Abdul Hafeez Versus Chairman Municipal Corporation Lahore etc,1967 Lahore 1251 it was held that except a person holding a public office, no other employee of a local body can be said to 3ta enjoy any safeguard ir* respect of his service. He may be deemed to be a public servant for specified purpose only but that does not mean that he is a government servant in the real sense.

42.Abdul Kafeez petitioner before the High Court was an Assistant Medical Officer of Health and was retired compulsorily by the Lahore Muncipal Corporation after 25 years of service qualifying him for pension several years before he was to attain the age of 60 years. Relief was granted against the compulsory retirement by the High Court on the ground that his case was covered by the exception made in the cases of Pir Saifullah, Zain-ul-Abdin, and the case of Khawaja Mohammad Iqbal Vs. Managing Committee of Co-operative Model Town Society Ltd., VXD 1963 S.C 179. Thus some statutory servants even of a local Authority may be entitled to protection.

43.As stated above in the case of the Managing Committee of Co-operative Model Town Society Ltd. Versus Khawaja Mohammad Iqbal the Secretary of the Committee was held to hold the statutory office of a Co-operative Society performing public duties by exercising administrative functions in a considerable township.

44.In Mohammad Ahsan Khan Versus Government of Pakistan,PLD 1D65 Peshawar 214 the Trafic Manager 3f the West Pakistan Road Transport Board was held 'a ;o be/government servant on the ground that,both

his appointment and his conditions of service required the prior approval of the government.

While commenting upon, this judgment in the case of Abdul Hafeez Versus Chairman Muncipal Corporation Lahore, their lordships of the Division Bench observed that it was evident that the attention of the learned judges deciding that case was not drawn to Mohammad All Versus Commissioner Lahore Division , Lahore and others, 1962 PSCR, 173 in which their Lordship of the Supreme Court cited with approval ax the following passage from Sharif Hussain Versus Deputy Commissioner, Lahore, PLD 1S57 Lahore, 1060.'

"After considering the relevant provisions of the Act it seems to us that the Executive Officer is an employee of the Committee, although in certain contingencies he may be appointed by the Provincial Government or suspended or removed from his office by them and is subject to their supervisory jurisdiction like the Committee itself. But this does not destroy the relationship of employer or employee, that obviously subsists between the Committee and the Executive Officer. Apparently the position is that even when Government appoints Executive Officers they do so for the benefit of the Committee who is to be the paymaster".

Their L-ordship also cited from Taalin Versus Hannaford,1950 1 K.B.D. IS in which the question under consideration was whether the employees of the British Transport Commission which was a Corporation of a public nature and was established under the Transport Act, 1947 and in which the Minister of Transport • invested P°rt ls ^ with great power

to exercise supervision and control over the affairs of the Commission were civil servant.

The following observations of Denning, L.J'are relevant:

"He (the Minister of Transport) is given powers over this corporation which are as great as those possessed by a man who holds all the shares in a private company, subject, however, as such a man is not, to a duty to account to Parliament for his stewardship. It is the Minister who appoints the directors, the members of the Commission, and fixes their remunera­ tion. They must give him any information he wants? and, lest they should not prove amenable to his suggestions as to the policy they should adopt, he is given power to give them directions of a general nature, in matters which appear to him to affect the national interest, as to which he is the sole Judge, and they are then bound to obey. These are great powers but still we cannot regard the corporation as being his agent, any more than a company is the agent, of the share holders or even a sole share-holder. In the eye of the law, the corporation is its own master and is answerable as fully as any other person or corporation. It is not the Crown and has none of the immunities or privileges of the Crown. Its servants are not civil servants and its property is not Crown Property. It is as much bound by Acts of Parliament as any other subject of the King.- It is, of course, a public authority and its purposes, no doubt, are public purposes, but it is not a Government Department nor do its powers fall within the province of Government".

45.The distinction between statutory or a public office and other posts of statutory Corporation or Joint Stock Companies was brought into bold relief in a judgment of the Supreme Court in Maqbool Elahi Versus Khan Abdul Kehman Khan and others PLD,1960 S,C. 266. Mandamus was issued in this case to restore a duly qualified Director to his office who was wrongfully exclude*:

from the Board of Directors of a Joint Stock Company. But it was refused to the Secretary Of the Company on the short ground that he merely performed secretarial duties although the Articles of Association of the Company expressly provided for his appointment.

46.A recent case is that of Anwar Hussain.H filed a petitaonfor special leave to appeal to the Supreme Court in his service matter against a statutory corporation but the Supreme Court dismised the petition.(Anwar Hussain Versus Agricultural Development Bank of Pakistan,PLD 198 S.C,194). It was held that the relationship betwe the employees and the Agricultural Development Bank of Pakistan was contractual and in the absence of statutory safeguard governing this relationship and placing restriction on the freedom of the parties to act, the general law of master and servant will apply. Since the principles have been summed up about such a relationship it would be apt to cite paragraphs 3 and 4 of the Judgment.

"According to Kalsbury’s Laws of

England Vol.XXV, P.466 para 872 'The

relationship of master and servant is expressed by a contract of service/ express or implied, between the master and servant. A contract of service is :>ne in which a person undertakes to serve another and to obey his reasonable orders within the scope of the duty undertaken, Whether or not a particular oontract is a contract of service, is_a question of fact depending upon the terms of the engagement,.the method of remuneration, and the power of' controlling and dismissing the worker although none af these factors is by itself conclusive. . In the same question it has been commented in American Jurisprudence (Vol.35 at pages 445 and 446) as follows: In law the term ‘master and servant' indicates the relationship which exists vhen one person who employs another to 3o certain work exercises the right of control over the performance of the rfork to the extent of prescribing the Banner in which it is to be executed' Shile it is said that at common law there are four-elements which are considered upon the question whether, the relationship of master and servant sxists, namely the selection and engagement of the servant, the payment of wages, the power of dismissal and power of the control of the servantrs conduct, the really essential element of the relationship is the right of control-the right of one person, the master to order and control SHHStksx the servant in the performance of work by the latter, and the right to direct the manner in which the work shall be done. It is,moreover,essential that the master shall have control and direction . not only of the employment to which the contract relates, but also of all of its details and if these 'elements of control and direction are lacking.*no'

relationship of master ,and servant exists. The test of the employer/employee relation is the right of the employer to exercise control of the details and method" of performing the work*. It follows that if the relationship is the result of a contract freely entered into' by the contracting parties then the principle of master and servant will apply. The principle, however, will not apply if some law or statutory rule intervenes and places fetters upon the freedom of the parties in the matter of the terms of the contract. It is on this principle that a civil . servant Scar whom there are constitutional safeguards is not governed by the principle of master and servant, for he is possessed of a legal character for the enforcement of which he can bring an action. Even where the employee is not a civil servant but there are statutory safeguards governing his relationship with the employer and placing restrictions on the freedom of the parties to act, the general law of master and servant will not apply.In such cases the employer would be bound to follow the procedure provided for in the- statute or the statutory rules before terminating the service of the employee and in the absence of conformity to such procedure the termination of service would not be clothed with validity and the employee will be entitled to an action for his reinstatement.

4.Dealing with the principle, in Akbar All Bokhari Vs. State Bank of Pakistan etc. (PLD 1977 Lah. 234} it had been explainedt ’Fox relationship of master and servant as I understand it, there should be a freedom of contract both for master, as well as the servant so as to act freely unfettered by any legal

disability,'but if for instance the servant is not free to leave service due to certain intervening or conversely if master's pleasure to terminate service of his employee is similarly curtailed, than the case is no longer of a contract of service or of simple master and servant concept * Where a corporation is set up by a statute but the Government does not reserve to itself the power to regulate the condition of service of the employees under the corporation and the statute itself also does not prescribe any condition but leaves the matter entirely in the discretion of the corporation who is given the power to frame rules and regulations in that regard so that the .employee is left with no protection under the statute itself, then the corporation must be held to be the sole arbiter in the matter of prescribing the terms and conditions of its employees and competent to deal with them in accordance with the terms and conditions so prescribed by it. In such situation the employee cannot claim to be a person possessedvof any legal character within the meaning of Section 42 of the .Specific Relief Act and in case of his wrongful dismissal from or termination of service, the principle of master and servant will fully apply and he can only claim damages but not reinstatement to his post."

47.It would be manifest from the study of these various authorities of the High Courts and Supreme Court of Pakistan that a. distinction is drawn between Civil Service and contractual service. The reason is that the Civil Servant has been provided constitutional safeguards in respect of the conditions of his service either by constitutional

rules;or Constitutional provision from the Government of India Act 1913 to the time till the Interim Constitution of 1372 remained inforce. Under the Constitution of 1973 such safeguards have been provided and regulated by the Civil Servants Act LXXI of 1973 regarding the officers and employees of the Federal Government and different recording atployeeyds of 'Prcvincia Provincial Statute after the same naiae^Govjr but the law has been unexceptionable in respect of employees of the local government, the statutory corporations or companies. It has been held throughout that the relationship between such Local Government, corporation or companies and their employees is contractual as that of master and servant, the only exception being where statutory safeguards either by law or by statutory rules framed by the government have been provided. A person who is an employee of a statutory corporation which is under the supervision and control of the government is also governed law of master and servant in his relation with the employer even though it be necessary for the latter to seek the approval of the government regarding the employeraent of such an employee because ultimately he is an employee of that employer and not of the government.

48.The Quran and the Sunnah as suchdo not direct.!^ provide for such protection for the employees nor the judgment of this court on Section I3(i) and

(ii)of the Civil Servant Act, 1S73 was based upon such direct protection. The reasoning in support of the directions issued under that Act was entirely different. It shall be considered in

details in an other context in chid Judgment.. It was for this reason that Ip the. ' . .

case of M. Darvyab yousuf Qureshi Vs. Chairman WAPDA ?PLD 1983 FSC 17) it was held while considering the vires of Section 17 of West Pakistan Water and Power Development Authority Act XXXI of 1958 that sharia has given much flexibility to the relationship of employer and employee which is a contractual relationship and in that relationship the main guarantees given b y .sharia to an employee are:

ti) The immediate payment of his wages.

Ui) Strict adherence to the terms of contract.

(iii)Abstinence from making his work hard and unbearable.

49.Section 17 was not therefore, held to be repugnant to the Holy Quran and the Sunnah of the Holy Prophet, of

50.One./the grounds of safeguard of Civil Servants rights is that the government is under a duty to provide employment to people. Consequently it cannot throw out its servants except for cause. As will be seen later there is ample justification in sharia for this *

51.This principle cannot apply to private servants or servants other than civil servants unless aiiy law is made for safeguard of their interest or service tenure.

52.Applying this principle it would be clear that the service of Cantonment Board -fcs constituted under the authority of Cantonments

< . ^ ' •• ; v . .■ ■ • .

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Act II of 1924 which is a local authority or of the WAPDA and Universities which are Statutory Corporations cannot be. held to be entitled in sharia to any other safeguard except safeguards pointed out in the above judgment of n^ryab Yousuf Qureshi V. Chairman

WAPDA, FLD 19S3 FSC 17.

53.We are in agreement with the argument of the learned counsel of the Provincial Governments, Deputy Attorney General and Mouivi Sirajul Haq, learned counsel for the WAP D A , that in some cases particularly in respect of statutory corporations dealing with commercial business it may not be in public interest to provide such safeguards, 'shariat Petition itc.lvI cf 35^ 4,Shariat Petition >.:o.3r-b ©£ :19S8 h S&srmt. Petition of ,4P83 are therefore liable /to be dismissed. WAPDA Act and laws relating to Universities will be examined in other respects. The Cantonment. Act; JI'eif 1n24 has been examined by the Council of Islamic Ideology and it is unnecessary for this Court to ‘re-.examine it.

Cont'd___ P/28

CIVIL 'SERVANTS ACT, 1973,

'SSM No. 204/P /.8.3 THE PUNJAB CIVIL SERVANIV' ACT-.OF 1374. SSM N o . S 4 /S /8 4 THE SIND CTglL-SERVANTS ACT 7ST1973. SSM N o . 7 1 /B /8 4 THE BALUCHISTAN CIVIL SERVAN3S~CTT974. SSM N o.71/N W F P /84 THE NWFP CIVIL" SERVANTS ACT OF 1973.

54.The emphasis of the Deputy Attorney General. Advocates General Sind and Baluchistan and Assistant Advocates General of Punjab and NWFP was entirely on the provision about retirement after 25 years' qualifying service for pension. The only argument in regard to the provision in the.Punjab and Baluchistan about • taking away the statutory protection of tenure of service from Additional Secretaries or persons of higher or equal ranks was that equality does not mean absolute equality and it is within the power of the legislature to make classifications. This power is valid not only under the constitutional fundamental rights of equality but also the Quranic human right of mussawat (equality). This point shall be considered later but it may be pointed out that the classification referred tc by the learned Counsel by which Additional Secretaries or persons of equal or higher ranks are treated to be a class by themselve has been uniformly adopted. This classification is in ‘the Federal Act and the Punjab and Baluchistan' Acts only and is not therein Sind and NWFP Acts.

55.Although the question of validity of both the provisions analogous to Section 13(1) and (2) of the Civil Servants Act, 1973 has been considered by this ^ Court but since the Provincial Governments had not been provided with an opportunity of being heard at that stage it was made clear to all the learned Counsel that they could argue the matter as long as. ' they likedand that if the Court is satisfied about the incorrectness of its earlier judgment it would cbns.ider itself governed by the Sharia principle of y. ;- w .;:-. .r (correction of one’s errors.)-' and-^

review its earlier order. \'£-.

56.Some arguments were addressed by the learned V; tC;.

Counsel in the four Shariat Petitions in support of the earlier judgment of this Court. Mr. Israrul Hag addressed oral arguments as well as submitted written arguments in support of the above judgment. The main arguments for the opposite view were addressed by Mr. Khalil Ramday, Assistant Advocate General, Punjab,-.^* while others argued certain specific points.

57.Mr. israrul Haq in his written argtiments has dealt with the history of the civil service with a view to highlight the benefits accruing from :

conferment upon the Civil Servant the security of tenure and protection against arbitrary’’ removal or i*V* dismissal and the corrupting influences that emerged from depriving him of such security and safeguards. He also canvassed the principle of Adl-o-Ihsan {justice and equity) in the Quran and the Sunnah.

Besides this he tried to furnish answers to the objections raised by the learned Counsel for the

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Federal Government and the Provinces. His contribution - * on the whole is valuable. ■’’

V

58.Mr. S.M.K. Lodhi, Advocate, argued that compulsory retirement is a penalty in the civil

J£T

service rules as well as the Cantonment Service fcules, 1954 vide rule 49 (viii). He further submitted that Section 12 of the Punjab Act provides for retirement of a person after 25 years' qualifying service only in the public interest, but the word public interest has been left urt-defined.He submitted■•••;

that the expression has been defined in the Pakistan Railways Personnel Manual Vol.1, page 261, para .809. : Para 809 provides that the true interpretation of -words "in public interest" will be that a person

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%.. outlived his utility to the administration. He may, y therefore, either be in-sfficient or has ceased to be efficient, or is corrupt, or may reasonably be considered corrupt or is engaged or is reasonably suspected in being engaged in subversive activities.

59 Rule 3 of the Rules under the Punjab Civil Servants Act, 19?4 providesinter-alia for the following grounds for penalty:-

(a)is in-efficient or has ceased to be efficient,-

(b)is corrupt or may reasonably be considered corrupt; and

(c)is engaged or is reasonably suspected in: being engaged in subversive activities.

60.Clearly these are the same grounds which arc provided in para 809 for proving that a person has outlived his utility to the administration, gi In the major penalities too one of the penalty is compulsory retirement. The distinction between Section 12(2) and the Efficiency and Discipline Rules

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is that if an action is taken under the rules* full opportunity of being heard is given to the civil servant on the principle that these grounds inter-alia if proved are likely to stigmatize him. It was therefore argued that the grounds in Section 12(2) i being the same which tend to stigmatize the civil servant^ there is no reason why a civil servant may h© deprived of opportunity of being heard.

62.Mr. Irshad Qureshi in addition to the other arguments relied upon 0 3:79 and Q 9:111. He submitted that the provision of Sub-section 1 & 2 of Section 12' of the Punjab Act have the tendency to make the civil servant concerned extremely servile to the person who has the authority to retire a person in these.

clauses and thus make him adapt himself to the position y

v4*

of a servant of the boss rather than a civil servant or servant of the State. The verse 0 3519 enjoins the ■ : ----%-.ik.\ Prophet (PBUH) not to say "Be slaves of me instead ._ :f•>.•-;,•$£ ■ .-'■>i'i*i>§ of Allah, {but they should say) "Be ye faithful -:.S;..j servants of the Lord by virtue of your constant teaching 'I.

of the Scripture and of your constant study thereof".

These injunctions according to him nullify inter-alia v/hVff) in the case of a civil servant, the concept of personal service or service to the person having authority to remove or retire- him instead of his being the servant under a duty of the State who may be /to act according to the injunctions of Allah in the performance of his lawful <'vt-^L« duties. ^4* >.&§p

63.The verse Q 9:111, however, does not appear

•1- I

to be relevant to support any point arising in the petition or during the examination of these Laws.

64.These arguments of fefee Mr.Lodhi have merit. ■■-io It appears odd that while a civil servant is given full opportunity of being heard if disciplinary action is required to be taken on inter-alia the same grounds, he, is denied that opportunity completely if action is taken under Section 12 Sub-sections (1) and {2).

Both actions separate him from the office and if it is necessary to spare a civil servant the agony of stigmatization , there is no reason why he may be left ■ open to that evil by clothing those grounds with the

*N

garb of retirement in the public interest. Pension or - other retirement benefits cannot be a compensation for the stigma he is provsdto suffer.

65.There is an other disparity also. Section 13 - of the Punjab Act provides that a retired civil\ servant shall hot be re-employed in the Government unlesssuch h ‘ -re-4 'is necessary, in -the-public interest’).., M3 in an' -vyr .v-V*/ •'-s'tfA-r.

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different connotation but his re-employment in Government cannot be allowed, because be was retired in the public interest on charges of having out-dived his utility on grounds of in-efficiency, corruption and subversion. His retirement becomes a disqualificauDj for him. And if public interest can be served by his re-employment, obviously his retirement in public interest was wrong.

66.The learned Counsel for the Government relied upon the instructions of the President in letter No.

1/4/79-C.V, dated the 15th November. 1979 and letter No. CSA-Sec. 13{ii)/Rev/82, dated 18th April, 1982, issued by the Establishment Division. These letters laid down the guidelines for review of cases of Government Servants for the purpose of retirement who have completed 25 years of qualifying service. The object of letter of 1979 is said to be to "eliminate chances of arbitrary decisions and to avoid any impression of victimisation, which has always persisted in the wake of such exercises in the past." Review Committees were set up for this purpose' who were.to submit their recommendations to the competent authority They were directed to keep under consideration ACRs in which the rating should be 'good' to 'very good 5 in the case of officers of Grade-21 to 22 and 'good8 in the case of officers Grade-20 and below. The other , points which required to be taken into consideration were s- \

{i) the reputation of the officers regarding efficiency and integrity ' should be kept in view? and

{ ii) the confidential record should be ■ • ' rated adversely in proportion to any - penalty for mis-conduct and for repeated observations about, lack of. efficiency or integrity, including.' ’average* integrity.

The directive of the President was for reducing the •size of the establishment by'10% during the 'current financial year' and another 10% 'in the next financial year* to solve the problem of visible surpluses in certain grades. The object was to retain the best among them; and to eliminate officers who is politicised to a point that it influences his official conduct or he has used political connections for personal advancement.

67.. uhe. letter of 18th April, 1982 changed the .

criteria for retention beyond 25 years to some extent.

■Hie criteria areas follows

(a)The review shall be mainly based on the ACRs; more weightage being :

given to the record of the preceding 10 years.

*b) For retention in service beyond 25 years, the aggregate rating should be ‘Good' to 'Very Good* in case of officers of Grade 22 to 20, ’Good* for officers of Grade 19; and 'Satisfactory' fc-r rest of the Grades.

(c)The reputation of the officers regarding efficiency and integrity should be kept in view.

(d)The confidential record, should be rated adversely in proportion to any penalty for misconduct and for repeated observations about lack of efficiency or integrity, including 'average1 integrity.

68.It was conceded at the Bar that there are r>o Review Committees in the Punjab. However, it appears clear that these guidelines for retirement include grounds on which a person can be proceeded against under the Efficiency & Discipline Rules. There is no direction to the Review Committees to find out whether- the adverse Reports were communicated to the officer concerned and whether his protest against it. was .

reasonable or not.

V,

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gg^ The learned Counsel for the Government also"';

drew our attention to yet another letter No.6/4/78-fc-II/: dated 18th February, 1979 from the Establishment fr.Vltg Division to all the Ministries concerned directing ,;•t\ V«i&» the inclusion of a special entry regarding the fitnesjj* of a Government servant for continued retention in \,r^ service,3 years before he is due to complete 25 ye But this letter also does not improve matters since 1vj in the letter of 1982 different criteria have been J?g provided. •

70.Before dealing with the history of civil ’ services and the Islamic Law on the subject, it would' be better to deal with thebbjections raised by •it;

Counsel and the arguments submitted by them.

71.Syed Riaz ul Hassan Gilani, the learned Counsel for the Federal Government referred to Verse Q 12;S5 in which Prophet Joseph t •v-j^ said to the King "Set me over the store houses of the land. Lo! I am a skilled custodian".

- -±v*>- Jl*

He submitted that the word ( ***■ > provides the key to the relationship of master and servant in the sense that the master has the exclusive right to provide terms and conditions. He also referred to 3s$I Q 28:26 in which one of the daughters of the Prophet for whom water was drawn by Moses said to her father

N.

"hire him! For the best (man) that thou canst hire is the strong, the trust.worthy".

72.None of these two Verses can be interpreted- Vr'r^l* as giving the master the exclusive right to fix the A ,' *.y .*\ ??

terms and conditions of service. Generally the ^ service contract regulates the terms and conditions v~z' s -- pertain of service and the yerss merely/to. requests, for ' 'yi/Vs.''-- •.!'t". < — -• — — -- " ■ • m4 «h

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73.Mr. Gilani referred to the case of removal of Khalid from the Command of the Army and submitted '.f r - that this order of removal was passed without giving •V.* >tit v.- him a show cause notice. Maulana Shibli Noatnani has, however, to say something different in Al-Farooq,

W*

pages 215 to 217. He asserted that Hazrat Omar was opposed to Khalid on account of his un-balanced conduct but after his election as Caliph he did not i

want to take action against him. It was customary with Khalid not to send accounts to the office of the Caliph. Hazrat Umar directed him to be particular ; A\ in rendering accounts. Khalid wrote in reply that he never acted in this manner in the Caliphate of Abu Bakar and he could not now do contrary to it.

Hazrat Umar obviously could not tolerate this '•'-‘o -.v independence on the part of Khalid nor could he allow him to spend the money belonging to the State .lii according to his sweet will. He wrote to Khalid that he could be retained as a Commander of the Army if he regularly sent the accounts of expenses of the Army.

Khalid refused to abide by this condition and he was ' 4 ,1V , removed for this reason. According to LAZL Asaba ( by Hafiz bin Hajar he was not dismissed but was reduced in rank and was directed to serve under Abu Obaida.

74.There was yet an other incident in the 17th Hijra that Khalid gave in reward, a sum of 10,000 Dirhams, to a poet. Hazrat Umar wrote to Abu Obaida that if Khalid had paid this money from his resources, it would amount to squandering his money, but if he. had paid it from the State Treasury, it would to commission of the offence of mis-appropriatiQni^ In,either case he was fit to be dismissed. The-

mvrtaongor -iiu brought Ihe lullcr oi‘ (JlamiuBul uskod Khulici in public I'com where ho hud paid the amount of reward. He was instructed by Hazrat Umar that if Khulid admitted his error, lie may be pardoned. Since he did not consent to this the messenger took off from his head his cap in token of his dismissal.

75.It is clear from this that the first action taken against him of relieving him of his Command was taken after he was given an opportunity to obey the Caliph and to render accounts regularly. The action was taken after his refusal to abide by the directions.

In the second case also he was given an opportunity to explain the source from which he had rewarded the poet and the action was taken on his refusal to disclose the source whether he had paid from his own pocket or from the Treasury. It cannot be said that he was reduced in rank or ultimately dismissed without being given an opportunity of being heard.

76.Mr.Gilani referred to the observation made by Abu-Bakr Ibn-al-Arabi in his book entitled "Alawasim Minal Qawasim" p.87, Cairo 1375H wherein the author says:

ul----- j------ 5U lj (his appointment was discretionary). He also referred to Qurrat ul Ainain fi Tafizii il Sheikein ( l^^by Shah Waliullah, p.272.

He said 4— J (1 say that appointment and dismissal is the right of the Caliph). From this he concluded that any categorization made by the Caliph while laying down rule of preference in matters within his discretion will not be hit by the principle of equality. This question will be considered later.

77.The learned Advocate General Sind, referred to Article 13 of the Provisional Constitutional Order 1981 and argued that in view of this provision the

jurisdiction of this Court as regards the vires of the provision about retirement after 25 years qualifying service is beyond the jurisdiction of this Court. This argument was repeated by the Deputy Attorney Genera] am by others.

78.Article 13 is in the following terms:-

(1)Where a person in the service of Pakistan has been or is retired from service under the orders of the competent authority after he has completed 25 years of service qualifying for pension or other retirement benefits, no court or tribunal, including the Supreme Court, a High Court and a service tribunal, shall have any jurisdiction to entertain any proceeding calling in question the validity of the orders of the competent authority on any ground whatsoever and any such proceedings pending before any such court or tribunal immediately before the commencement of this order shall abate forthwith.

(2)Any person in respect of whom an order such as is referred to in Clause (1) has been or is made mayr.

within 30 days from the commencement of this Order or the date of the making of the order, whichever is later, apply to the competent authority for a review of the order.

79.The Article does not bar the jurisdiction of this Court to determine the vires about Section 12(2 of the Punjab Act or the corresponding Sections in the other Provinces.. It only bars the jurisdiction of other Courts and that is also limited to questioning the validity of the order of a competent authority as distinguished from questioning the validity of the provision itself. In the Constitutional provision of Article 203-D, this Court is performing an altogether different duty and cannot entertain any matter in which personal relief is required to be granted to any person. Article 13 bars the jurisdiction v of Courts in respect of such personal reliefs only; -r 80 . It was argued that in any case Sub-article 2 provides for review of the order and any error

.I:' ... ■ ■-

f authoi

in exercise of the review jurisdiction. This argument has no relevance to the point under consideration before this Court. But even otherwise we do not understand what benefit can materially accrue to a person who does not know the grounds on which the order has been passed uryi is not aware of the points which were considered by the competent authority while passing the order under review. If in a given case the competent authority passes an order of retirement arbitrarily, whimsically or for a reason which is not a reason of public interest, we do not understand how a review before the same authority will at. all make any difference.

The Deputy Attorney General submitted that no age of superannuation had been provided in Section 12 of the Punjab Act. He raised this point on the basis of the language of the Law which empowers the competent authority to retire after 25 years’ qualifying service and if no such order is passed, to retire him compulsorily at the age of 60 years.

82.We do not agree with this submission since clearly the superannuation age has been fixed at 60 years and provisions have been made in Section 12(2) of the Punjab Act for retirement on ground of public interest before that. age. It is nothing but a case of pre-mature retirement. This is the substance of the law.

g3 . The learned Deputy Attorney General submitted that the provisions about Massawat or equality before Law and equal protection of Law are not attracted to this case since there is no such thing as absolute equality. On the other hand it is open to the Governmen to make classification and equality is to be determined

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amongst the members of a particular class. He referred to many authorities on the right of the Government to classify.

- 84. This argument was adopted by the Assistant Advocate General of KJV7FP and was elaborated further by Mr. Khalil Raroday, Assistant Advocate General of Punjab.; Mr. Ramday submitted that Quran also allows such classification, or rather classification is not barred or forbidden in Sharia. He referred to the .distinction between the rich and the poor, the muslims and the non-muslims, a man and a woman and people of the right hand and people of the left hand He submitted that in matters of law also classification is recognised. He referred to the provisions about inheritance in Quran which generally allows a woman 4 of the property heritable by man.

85.This argument has force that Islam also allows classification but such classification made in legislation must stand the test of reasonableness and intelligibility. Only the class legislation is forbidden but not reasonable classification. The classification, however, cannot be arbitrary but must rest upon some real and substantial distinction bearing a reasonable and just relation to the things in respect of which the classification is made.

In other words the classification must have a reasonable relation to the object or the purpose sought to be achieved by the impugned legislation.

(Sakhawat. Ali v. State of Orissa, A,I.F. 1955 S.C.166), 86. Two tests were laid down for pennissable classification,in {Shxi Ram Krishna Dalmia etc v.

i i ' l ~ -U -* •■

w.

S.C.538). One is that the classification must be founded o n > an intelligible differentia which distinguishes persons or

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things that are grouped together f r o m o t h e r s left out of th e 1, group and that the differentia must have a rational relation to. the object sought to be achieved by the statute in question. The classification may be founded on different k* bases, namely geographical, or according to objects or occupations or the like. There must he a nexus between the n basis of classification and the object of the Act under consideration.

g-7 It is un-necessary to reproduce any large number of authorities. This question was considered by the Supreme Court of Pakistan in detail in the case of Jibendra Kishore Achharyya Chowdhurv etc. Vs The Province of East Pakistan, F.Ii.D. 1957 S.C.9. It says:-

"The expression has been borrowed from the Fourteenth Amendment to the Constitution of the United States which was intended to secure to the emancipated negroes equal rights to the enjoyment of life, liberty and property. Though in the United States the guarantee of equal protection of ^» the laws has been invoked upon more occasions than any other constitutional guarantee, with the possible *■- «• exception of the due process of law guarantee, also ft*: contained m the Fourteenth Amendment, no rule has yet been formulated by the Supreme Court as to what

£ * - - S

may be regarded as a denial of the 'equal protection cr«9. * ,4 r f * V + of the laws1 that will embrace every case and the application of the principle has always depended S V n' on the facts of each case as it came before the Court. But notwithstanding the disinclination of the Court to give an all inclusive definition of the expression, some broad propositions as to its meaning have been enunciated. One of these proposition? is that equal protection of the laws means that no ■ . •person or class of persons shall be denied the same ,sj

persons or other classes in like circumstances, in their lives, liberty and property and In pursuit of happiness. Another generalization more frequently stated is that the guarantee of equal protection of the laws requires that all persons shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed. In the application of these principles, however, it has always been recognised that classifica­ tion of persons or things is in no way repugnant to the equality doctrine provided the classification is not arbitrary or capricious, is natural and reasonable and bears a fair and substantial relation to the object of the legislation. It is not for the Courts in such cases, it is said, to demand from the legislature a scientific accuracy in the classification adopted. If the classification is relevant to the object of the Act it. must be upheld unless the relevancy is too remote or fanciful. A classification that proceeds on irrelevant consideration such as differences in race, colour or religion will certainly be rejected by the Courts.”

88.The example of such vm-reasonableness is provided by Kentucky Finance Corporation Vs. Paramount Auto Exchange

(1923) 262US544,

Corporation/* The facts of the case are as follows :~ 89. The plaintiff in error, a Kentucky corporation, brought art action of replevin in a state court at Milwaukee, Wisconsin, against the defendant in error, a Wisconsin i corporation, to recover an automobile, the right of recovery- asserted in the complaint being put on the ground that the plaintiff was the owner and entitled to the possession of the aututomobile, that one Allen had unlawfully taken it from the plaintiff’s possession at Louisville. Kentucky, had fraudulently removed it to Milwaukee, and had there wrongfully delivered it to the defendant, and that the defendant was

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secretary, who resided at Louisville and was in the plaintiffr service there, to appear in Milwaukee at a fixed time, before a designated court commissioner, to bring x-tfith him all paper’s, files, and records of the plaintiff which were under his control and relevant to the controversy, and then and there :o submit to an examination by the defendant. The order was sought and granted on the ground that the examination would >etter enable the defendant to plead to the complaint, which is yet it had not done. The plaintiff was not engaged in any tu.sin.ess in Wisconsin, nor had it complied with the law of .hat state prescribing conditions on which it might do so. It .ad no property in the state other than the automobile, and t had gone into the state only for the prupose of instituting nd prosecuting the action to repossess itself of that vehicle, ts secretary was not within the state, nor did it have any epresentative there other than the attorneys who were rosecuting the action in its behalf. For itself and its acretary it. consented that such an examination as was sought Lght be had at Louisville at any time, and before any officer, le court might designate, but it objected to any order squiring that the examination be had in Milwaukee. The >jection was overruled and the court put in the order a rection that the defendant tender to the plaintiff for its . cretary the railroad fare from the southern boundary of sconsin to Milwaukee and return, being $4.74, and one y*s witness fae being $1,50. The tender was made and dined, and the secretary, with the plaintiff's approval, fused to comply with the order. Because of this the court,, the defendant’s motion and over the plaintiff’s objection, 2e a further order striking the plaintiff’s complaint from i files and dismissing its cause of action, with costs, appeal to the supreme court of the state both orders were - ,.v -

stained over the plaintiff's contention that fbpy iX ¥ ■?-*' -i rtfSlM*

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statute under which they were made violate the due process and equal protection clauses of the Fourteenth Amendment 171 Wis. 58C, 179.n.w^9.To obtain a review of the judgment of the supreme court the case was brought before the United States Supreme Court on writ of error, under s 237 of the Judicial Code.

90.The Court held the statute to be invalid as would be.

clear from the following pqra:- "No doubt a corporation of one state, seeking relief in the courts of another, must conform to the prevailing modes of proceeding in those courts, and submit to reasonable rules respecting the payment of costs or giving security therefor and the like (see Canadian Northern R. Co. v. Eggen, 252 U.S. 553, 561, 64 L. ed. 713, 716, 40 Sup. Ct. Rep. 402}? but it cannot be subjected, merely because it is such a corporation, to onerous requirements having no reasonable support in that fact, and not laid on other suitors in like situation Here the statute authorised the imposition, and there was imposed on the plaintiff a highly burdensom requirement because of its corporate origin,- a requirement which, under the statute, could not. be laid on an individual suitor in the same situation. The discrimination was essentially arbitrary. There could be no reason for requiring a corporate resident of Lopisville to send its secretary, papers, files, and books to Milwaukee for the purposes of an adve-z-"~ examination that would not ^ p l y equally to an individual resident of Louisville in a like case. T ". discrimination is further illustrated by the provision that, as to all residents of Wisconsin, individual and corporate, the examination should be had in the county of their residence, no matter what its distance from the place of suit."

91 Another example is furnished by Louisville Gas & Electric Co. Vs Cleil Coleman( 1927 ).277 U.S. 32. The facts pf the case are as followss-

92.The plaintiff in error, a Kentucky Corporation, executed a deed cf trust of property-in. that state to secart

x>rids amounting in the aggregate to $150,000,000, of which M 8 , 805,000, were issxsed, bearing date November 1 , 1922, and naturing November 1 r 1’>52. The deed was presented to the clerk 3f the Jefferson county court for record and payment made of :he lawful recording fee required by the state statute, but the 2lerk refused to record the deed unless plaintiff in error ?aid to him a tax of 20 cents on each $100 of the $18,805,000, is required by s 4Q19a-9 of the Kentucky statutes, Carroll’s ed, I922, the pertinent portions of which followj- "A tax of twenty cents {20c) is hereby imposed upon each one hundred dollars {$100} or fraction thereof of indebtedness which is, or may be, in any contingency secured by any mortgage of property in this state, which mortgage shall be lodged for record after this act goes into effect where the indebtedness does not mature within five years............ "Provided, however, the provisions of this section shall not apply to mortgages executed to building and loan associations."

It is provided by another Kentucky statute that no ieed or deed of trust or mortgage shall be valid against a mrchaser for a valuable consideration without notice thereof >r against creditors until such deed or mortgage shall be .odged for record. Ky. Stat s496. In view of this statute, >lainti£f in error concluded that it was absolutely necessarv :o place the deed of trust on record, and thereupon, unwilling^- m d under protest, paid the amount demanded in addition to the .awful recording fee.

4^ Subsequently, plaintiff in error brought this action .n-the proper state court to recover the amount of the tax sc paid upon the ground that the quoted previsions of > 4019a~9 were contrary to the Kentucky Constitution ''■equiring uniformity of taxes upon all property of the same Uass, and upon the further ground that these provisions lenie/3 the equal protection of.the law and deprived •laintiff in error of. ..its^property without due-'process, of

•;.y. .

law in contra verstion of the 14tk Amendment-of the Federal Constitution. A demurrer to the petition w a s sustained by the court of first instance and the petition dismissed. Upon appeal to the state court cf appeals, the judgment was affirmed, sub nom., Louisville Gas & Eiec. Co. Vs Shanks,21J 762, 281 S.W. 1017, upon the authority of Middendorf Vs Goodale, 202 Ky. 118. 259 S.W. 5*.

The Court held as followss-

"Here it. seems clear that a circumstance which affect-- only taxable values has been made the basis of a classification under which one is compelled to pay a tax for the enjoyment of a necessary privilege which, aside from the amount of the recording fee which is paid by each, is furnished to another as a pure gratuity. Such a classification is arbitrary. It bears no reasonable or just relation to the intended result of the legislation.”

95.Even a statute which is not ex-facie discriminatory, can be challenged undei the equality clause if it is capable of being administered in a discriminatory manner. It was held in East & West Steamship Company Vs Pakistan P.L.D.1S5S Lah. 41 (50) and Jibendra Kishore Achharyya Chcwdhury Vs Province of East Pakistan P.L.D. 1957 3.C. 9 that where a statute is not ex-facie discriminatory, but capable of being administered in a discriminatory warmer, the party chsllanging the constitutionality of that statute iusfc show that it has actually been administered to the detriment o£ a particular class and in a partial, unjust and oppressive manner.

96, In the judgment of this court in regard to the Civil Servants Act, 1973, this has been pertinently pointed out: thar though this provision about retirement after 25 years service has been there since quite long.but if a comparison is made between the action taken it will be found that cases of such

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retirement before 1958 are rare. The White Paper Vol.II ^ i.j to -157 proves the.

■jC , ' • ! -.''rSptS

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inter-alia premature retirement by the previous Government.

97.We may enter a caveat here that as will be shown, later, the powers of the legislature should be exercised in a manner that chances of opression and discrimination may foe 'reduced as for as possible, because it is difficult to find out persons holding high offices who possess qualities and qualifications required of Ulul Amr ( ^.U^M) {those having authority). The principles based on the constitutional provision of equality as interpretted on the basis of English & American law cannot be applied in all their details in a matter in which the legislature is required to enforce legislation based on Quranic musawat (equality) because the object of legislation should be to reduce as much as possible, the chances c-f its implementation in an unjust and - oppressive manner. The ideal may appear to be idealistic but an attempt should be made to remove the chances of mischief ..as for as possible*Where the modern law requires guidelines to be provided for exercise of discretion.,the object of law enforced on the basis of the Quran and the Sunnah is to aEfce it as immune as possible from being misused if the person in authority is not possessed of the required scruples.

98 There are a few cases in which some comments have been made regarding the provision of retirement after 25 years .service.

99, In the case of Muhammad Yousuf {PLD 1970 S.C 219) it was argued that the appellants were liable to be retired from service on the completion of the 60th year of their age.

.It was held that the plea was wholly devoid of force because the question of his retirement was to be considered at the time when he was of 55 years of age and it was only when no such order was made that he could remain in service upto the -age of 60 years. This question has already been considered while dealing with the age of superannuation. The case is not

an authority for the preposition that 60 years of age is not the final age of superannuation.

”*00. in Malik Muhammad Khalil Vs Government of Pakistan P.Ii.D. 1.9.59 (W.P.) Lahore 229 the same question was discussed by the Lahore Bench of the Vilest Pakistan High Court. It was held that the difference between the clause about retirement at the age of 55 years and retention after that age is this that a person falling in the clause should ordinarily be retained up to the age of 60, if he continues to be efficient but he may be required to retire at 55. Thus there is power to retire him at 55, though its exercis-e is optional, but if that power is exercised',, the succeeding provisions — that le should ordinarily be retained upto 60 if he continues to oe efficient — obviously do not come into play.

01.In a way this is in accordance with our own Interpretation of Section 12(2) & (3) of the Punjab Act >ecause we also treat the ultimate age of superannuation *.o be 60 years.

02.Mr.Khalil Ramday referred to certain rules in certain ’rovinces of India in which review of efficiency etc. is illowed at 3 stages, i.e. at the age of 50 years, 55 years md 60 years. He submitted that in the case of Moti Ram Vs !WF Railways, AIR 1964 SC 600 there xs7j?r{ obiter hat. if any rule permits an appropriate authority to retire ompulsorily a civil servant without passing a limitation n this behalf that the civil servant should have put in a inimum period of service, that Rule would be invalid and the o called retirement order under the said Rule would amount o removal of the civil servant within the meaning of Article 11 (2), The learned Counsel distinguished this observation n the ground that this violates the constitutional guarantee

53.•it is not necessary to elaborate this argument any urther-in view of what has been said already regarding

.nadvisibility in Sharia of conferring power ipon an Ululraar or competent authority which lay be used by him in an unjust and oppressive lannei'fHHsi without guaranteeing that the ihances of such misuse may be eliminated or 'educed as far as possible.

04.Mr.Khalil Raraday submitted that the Court's jurisdiction is confined to finding out vhether a law is repugnant to the Quran and the 3unnah of the holy Prophet (PBUH). There is, lowever, nothing specific. in the Quran about service matters,; the traditions of the holy. Irophet (PBUK) are only about the treatment which should be accorded to one’s servant.

The court does not have jurisdiction to consider any other matter for directing repeal or amendment of any law. He further submitted that the civil service in the Government is also based on a contract and one is bound by that contract

05.The argument that the Court has jurisdiction only to find out the repugnancy from specific injunctions in the Quran and the Sutmah and that if no such injunction is.found the law will be treated to be good is to say the least a very narrow view of the constitutional jurisdiction of this court Specific laws in the Quran and the Sunnah are not many but the principle laid down therein embrace everything interalia in the field of legislation.

In view absence of specific provision pertaining to a particular matter it becomes our duty to discover and find out whether a particular legislation is not repugnant to the principles laid down in or emanating from the Quran and

the Sunnah. The repugnancy is to be discovered interalia not only against a specific provision .

( jjt^Ibarat ul Nas)but also what is described by the jurists and commentators of the holy Quran as

(oalalat sin Nas, Isharat un Sas, Iqtada un Nas,j l! ,g}B.>is something which emanates from the verse by necessary intendment (Usoolul Fiqh by jjft pages 246-248) . Zaheer Ahmad

Vs. Federation of Pakistan PLD 1982 FSC 244 (248) These four words have been explained in Muhammadan Jurisprudence by Abdul Rahim.

^* Such expression of meaning may be directly by the language of the text (Ibaratun Nas ( i L * ) or indirectly by way of connotation or suggestion (isharatun . Sometimes a word may indicate something which its application k in the text necessarily implies as a condition precedent (iqtada'an Nas tauiv, sometimes from what is expressed in a text, it may appear that it applies to some other matter which comes within its intendment by the implication of language (delalatan Nas ( >MicBEKSen^.uriSR.rffSence pages 100 ,,101 •)- • In addition a number of laws have been evolved by the use of Qiyas or analogy from the injunctions in holy Quran and the Sunnah of the holy Prophet (PBU®. Principles and rules evolved from the Quran and the Sunnah are equally -binding and no law can be in accord with the Quran or the Sunnah which is repugnant to such

1°9* Thus one of the main principles is the principle of Adi on which the whole super­ structure of Islamic Polity is founded. The word Fasad t»t—i) is an antonym of Adi. The principle of legislation should, therefore, be to advance Adi and to frustrate fasad ( alwi) or mischief. Any legislation which does not advance what should be advanced in Islam and does not frustrate what should be frustrated cannot enjoy the sanctity of being in accord with the Quran and the Sunnah. The argument, therefore, is without force.

It was urged that even Government service is as if a contractual service. The State service is subject to the rules of security of tenure and protection against removal and dismissals While other services are based upon a contractual relationship.

The argument is contrary to the precedents of the Superior Courts noted above.

111, It vi-as submitted that the pension rule No. 3 j- 5 of 1955 allowed a person to retire after 25 years*service on pension calculated @ 25 years’ service but in the present set up he is allowed pension on the basis of 30 years j service though he may have been retirediafter t twenty five year's sendee only. But this is little consolation for the apprehended stigma that a person remains subject to, for the loss of full emoluments and other allowances to which a person remains entitled during service and for the disqualification.in respect of re-employment in Government to which he remains

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subject. Moreover this is a matter of instructions and rules. There is no such provision about the.

calculation of pension on'the basis of 30 years service in the section itself.

112.it. would appear from the history of transition from spoil to merit system and from patronage to carrier system that it was considered important 'to protect and encourage independence of mind*Frankness of opinion needsprotection because it is the safeguard of the most precious element in the administration, originality inventiveness, ideas, stimulation of emotion and emulation.(Theory and Practice of Modern Government by Finer page 864).

11 •:> Political servility breeds corruption and patronage while constitutional rules require a civil servant to be honest, capable and faithful to the Constitution,

114.in 1849 the permanent Secretary of the Treasury Sir Charles Tre-vellyan pointed out the defects of the civil service of -the day. It was over-staffed, inactive and incompetent *it attracted tc its ranks only the stupid boys'. ft.

commission vtas set up with Charless Trevellyan and Sir Stafford North Cote to go into the whole question of erficiency and integrity of the British Civi 1 Servants. At about the same time a commission w as set up.with Lord Macaulay to recomnien a modern Civ il Service System, for India. It is significant to note that both these commissions came, to the same conclusion that both the Civil Services had. degenerated and were not in a position ■iri­ -7*6 i s' -•

to face the new challenge because they were based on patronage. Both the commissions recommended for the abolition of patronage and for the establishment of a Career System based on open competitive examination amongst candidates of prescribed age limits.

115.sir Warren Fisher while deposing subsequently before the Tomlin Commission on the principle of cooperation between the political leadership and the civil servants made the following historic pronouncement. "Determination of policy is the function of Minister. It is traditional duty of the Civil Servant that when the decision is being formulated to make available to their political chief all the information and the experiences at their disposal and to do this without fear or favour irrespective of whether the advice tendered may accord or not with the Minister's initial view. The presentation of inferences from the facts equally demands from him all the wisdom and all the detachment he can command. The preservation of integrityf fearlessness and independence of thought and utterance in their private communion with Ministers, of the experienced officials .is an essential principle in an enlightened government' Ubia 7?0).

-jg n In an essay on the Civil Service in 3reat Britain Raymond Nottage has pointed out ;he difference of approach on this question in 3reat Britain and in the newly emergent countries, tt is stated that while the politically neutral :ivil servant may be suitable for Britain, he .s out of place in the newly emergent countries.

Ministers in these countries, it is asserted, need officials who share their political beliefs and have the dynamism which comes from active participation in a common cause. One must, of course, respect that view, but it is arguable that better results will, in fact, be secured if a Minister's political enthusiasms, and possibly prejudices, are tempered, by more objective attitudes of mind in his closest official advisers".

117.Now if integrity, fearlessness, independence of thought or action or the urge to act without fear or favour is essential in an enlightened government, how much more essential will it be in an Islamic Government where everyone holding an office, whether high or low, is equally enjoined to be just to others and to act upon the principlesof Quranic Adi and Ehsan of which concept is much wider than justice and equity of the western world. It is therefore, necessary that in order that a law may be called islamic and in accord with the Quran and the Sunnah it must ensure to the maximum possible extent that fasad <*ischief) of which arbitrariness unscrupulousnessfppjmression and tyranny are some facts is eliminated-and everv“ one shares the ti blessings of Adi.

118 ftii legislation should create conditions that every civil servant may be in a position to refuse to obey an order which is contrary to sharia without fear of earning bad reports which may ultimately end in his premature retirment.

A person in authority, however lowly placed has the right to order Maroof and to restrain from

Munkar. He has a duty to act with Adi and to remove Fasad (mischief). In fact it is a maxim that removal of mischief is preferable to and better than the acquisition of benefits,

5.a civil Servant is required to act as a servant of the State and not virtually as a servant of even the Head of the State, Governor or any other appointing or competent authority.

120.This being so no Constitutional Government can be allowed to act in a manner which may jeopardize the legal exercise of power by a public servant A fortiori no opportunity can be provided in an Islamic state to anyone to curb the urge and instinct of others to disobey his arbitrary, dishonest orders and orders which are contrary to sharia.

121.it is well established that security of tenure of a civil servant can be an incentive to him for ’•x discharging his duties honestly, constitutionally and according to Sharia* On the other hand any apprehension in his mind against this security is liable to breed in him what is known as servility to the boss. This is something which may make him corrupt. .Security, therefore, tends towards the advancement of the welfare of the society and elimination from it of the main source, of mischief, i.e. corruption;-servility is likely to endanger his independence of action and make his actions subservient to the wishes of the boss, howsoever, unlawful and un-islamie they may bs.

122.It may be appreciated that all process of law making is within the scope of these verses:- Q. 22:41 Those Who, if We .give them power in the Tana, establish worship and pay the poor due and enjoin kindness and forbid inquity. And Allah's is the sequel.of

events.

vi.

Q.4;59 O ye who believe! Obey Allah, and obey the messenger and those of you who are in authority; and if ye have a dispute , 'concerning any matter, refer it to Allah and the messenger if ye .are (in truth) believers in Allah and the Last Day. That is better and more seemly in the end.

123.The subservience of all laws to the injunctions of the Quran and the Sunnah is included in the words and it is absolutely necessary that the m naaar (person in authority) Should establish worship, arrange for the recovery of Zakat and enjoin what is Maroof (which is considered good) and forbid what is munkar (which is considered evil). The laws of the State are, therefore, required to comply directly as well as indirectly with the injunctions to enjoin Maroof and to forbid Munkar. The legislation should therefore, be so moulded that this object be achieved according to the t state of the society for which the legislation is made. If the society be such that ir may' not be difficult to find persons who are qualified in sharia to hold a post o* office the law need not put fetters on the exercise of his discretion since there might be a presumption that the exercise of discretion by him will be in- accordance with Sharia inj it.ctions and such an h)iaisj*,r (person in authority) shall supervise the activities and actions of his subordinates also so as to make them conform to sharia orders. But if, as in the present age it be difficult to find cut such qualified Ululanvr tpersons in authority' be he the Head of the State or a Minister or any other officer, the objective of the legislation should be to regulate the exercise of legislation by checks and balances, keeping in view the

the principle that power corrupts and absolute power corrupts absolutely. >

124.The functions delegated and assigned to the Ameer (Ruler) by the divine law will negate the concept of the ruler being a despot. He himself is a slave of Allah and is on a plain of equality with other slaves of Allah given under his supervision and control. He cannot claim their unstinted loyalty.

Q.3:79: It is not possible for any human being unto whom Allah had given the Book, the ruling authority (Dominion) and the Prophethood that he should afterwards have said unto mankinds Be slaves of me instead of Allah: Buts Be ye faithful servants of the lord by virtue of your constant teaching of the Book and of your constant study thereof.

12 5. He cannot call upon them to obey, him instead of Allah. He can claim their obedience in his projects for the establishment of Ibadat (five times Prayer, Zakat, Fasting and Haj), for the enforcement of Hudoodullah (limits of Allah) including the chastisement for transgression of these limits, for enjoining good and prohibiting evil, for uprooting of all corruption, mischief, sedition, rebellion, inequity, wickedness, violence aid for spreading in the land justice, equity, virtue and discipline.

Every individual is ordained to enjoin right conduct and.forbid vicious and dishonourable conduct. (Q.3:110).

126.It would follow that every Muslim must assist others for enforcement of this injunction . In particular the ruler who has

the necessary authority for punishing transgression should be assisted. This assistance can be secured by obedience only, which i,s ordained in the versus 'obey Allah, His Prophet and the rulers amongst you'.

Ibrte Khaldoon categorises ; siyasa ( into two kinds, i.e. (Siyasat -e~ Aqlia) and (S iyasat-e-Deeniya) According to him the kingship of a tyrant is not desirable and rules breeding tyranny cost unbearable burden on the subject. In such state of affairs it is essential to frame all the administrative rules and regulations which may be beneficial to the Government and the public alike. If such laws are made by the members of the shoora and wise people in the community and those who hold responsible office, the administration by resort to them is called Sivasat-i-Deeniya (Islamic Siyasat by Ghauhar Rehman page 28). But when laws are subservient to Sharia the Government making them is of Khalafit or Siyasat-e-Deenya. 1 2 8 . The same is the distinction between *L«U V.~ (Siyasat-e-Faaila) and (Siyasat-e-Jahilya of Abu Nasar Farabi (Ibid pages 30-32).

129.Ibne Qayyium distinctly treated (Siyasat-e-Adila)as a part of sharia. He says "We do not say tnat (Sivasat-e-

Adila) is opposed to Sharia rather it is a part of it and is only for the sake of convenience It is based on justice and equality and is undoubtedly part of sharia (Ibid page 35 and 36).

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1-30. It would, therefore, follow that the rules and regulations should be such that they may help in the advancement of Adi "fid should be so framed as to advance this objective 1• it has been demofetrated frequently in the judgments of th'is Court that the old great jurists of Islam had provided enlightening guidance in matters which struck the modern world with significance and importance in the nineteenth and twentith century only. Such guidance was provided in relation to civil service also several centuries ago when such concept could not even be thought.

132.The historical perspective to Fiqb establishes that there was a time when according to the jurists the appointment of a civil servant was on pleasure and even if a person was appointed for a fixed period he could be removed by- the employer before the expiry of the period according to the exigencies of the situation. If a person was appointed till completion of a job, his services stood automatically terminated on the completion of that business {See Al-Ahkamus Suitaniyya.by Almawardi who died in 450 Hijra, pages 329to 331.

1-33. Later Abu Mohammad Xzzuddin Bin Abdus Salam who died in the year 660 Hijra, however, laid down certain re^u.latorv nrincioles in his book rM igr, rid of State wants to remove his subordinate, he can do so only if he entertains some doubts about him because it is the rule that the retention of such a person is likely to create mischief and does not advance welfare or benefit.

It is immaterial whether the incumbent is a holder of. a'h&.tof {general authority) or ^|j

(special authority). However if there be no Such cause, there are 3 alternatives., 1X4. The first alternative is that he may remove him -to substitute him with a person of lower qualifications. This is not permissible since therein lies the loss of public interest in view of the superiority of his qualifications and it is not open to the Ixnam to act against public interest.

13 5. The second alternative' is to remove him for appointing in his place a better person. This certainly advance's public interest or interest of the muslims and is permissible.

136.The third alternative is that the man to be appointed holds similar qualifications as the one who is to be removed. Some of the Jurists permit it on ground of use o-f discretion among two equal but others consider it to be unlawful. Such a replacement is not permissible according to this opinion {

Vol.I, page 69) .

1®?* Regarding promotion the view of the author is that if 2 persons are equally qualified and the only difference is that one is senior in duration of service to other the senior should be preferred (Ibid Vo I .If page 200).

I3gt It also appears from the opinion of thi author (Vide Vol.I of the above book^page 158) that the discretion of the authorities is not to be exercised arbitrarily. He says whatever powers

are entrusted to the Imam and other persons charged with (Government) administration must be exercised if they pertain to the right of the people. It is unlawful for the persons in authority to deny their enforcement on demand of a person entitled to their enforcement. But if the power pertains to the rights of Allah the persons in authority are bound to act according to the requirements of public interest. If denial of exercise of authority be in public it.

interest, it must be denied but if/be in public interest to act upon it, it must be acted upon.

”*39. This is a rule which was made at a time when there were no written laws' nor any guiding principles were statutorily set down. Now-a-days the power can be exercised by the highest authority only if it is conferred by legislation.

It is, therefore the duty of the legislature to lay down principles which may check the misuse of the power.

140.Some assistance may be obtained from Jalaluddin Suyuti who died in 911 Hijra. A questi was put about the legality of removal of a guardi of an orphan by the authorities. He replied that, was not lawful for him to remove the guardian.

141.It appears that the reason as under sto*.

by Suyuti is that tne officer while removing the guardian’may not exercise his power arbitrarily. Sheikhul Islam, therefore held in favour of its unlawfulness (page 276).

* 152. The ru^e therefore is that the authority i • ■ cannot pass an order of removal of the executor except for cause (page 277).

1^ 3. It is-in Alrozaand is also related by Mawardi that if the' Waliul Amar ( ^ ) (Person in authority) removes any office holder from the office for cause, it is permissible? but if it is not for cause,it is not permitted (page 277).

•jA|. The later Jurists thus placed restriction . upon the rules laid down about removal of Mutawalli or any teacher at pleasure. The rule now is that such removal is not permitted except for cause (page 277).

1 A1 Balq»ini says in

(Hashiat ul Rauza) that if a Mutawalli removes a teacher without cause, his order is not executable and such order is not legal (page 278).

I46. While discussing the appointment and removal of a person appointed to administer waqf ( U * ) Allama Abidin (died 1252 Hijra) writes, "An Administrator of a Waqf cannot be removed by a Judge Without any cause e.g. misappropriation t

( jlW-) . it is immaterial whether he was appointed by the Waqif or by the Judge himself".

14'7. He further writes, "From this dictum another principle has been derived, that no .employee of a Waqf can be removed unless he -incurs disability on account of misconduct **»!*■) and disability to discharge his duty".

<(Rs&ul Mukhtar Vol.' Ill, P.423).

1 48. Ibji~cj~Wuja:lm writes .in connection with appointment and removal of teachers that the appointment of a teacher by a Sultan (competent. authority) otherwise than on comparative merit is not valid and legal because the exercise of the authority (of appointments is subject public to public interest and there is no/interest in the appointment of a person who has no merit. Similarly a person having merit cannot be removed, (even by the Sultan). (Al-Ashbah wal Nazair by Ibr.-e-'Jujaim, P.3S9), 14 9. The principle according to lbn-e-Nujaim is derived from what Qazi Abu Yusuf said * *4?-Wu .> l u u l "The Imam has no authority to take any thing from a person except in exercise of a right which is proved anci well known", (ibid).

15q There is a maxim in Sharia

JUni-aJ l fL 15tu^*S(the exercise of control over the subject depends on doing what is right and expedient) . This rule was evolved by Imam Shafe.i who said that the relationship of Imam with his subjects is very like that o£ guardian with the minor. It is based upon what was said by liazrat Umar "I treat the property of Allah as the guardian is to treat the property of a minor. I can take {hat much which can fulfil my necessities-anti whenever I am ir. a position-of prosperity 1 must return it. If I can bear my expenses from my own source I must not charge, anything from the property of; Allah. From this several principles are

(I.) At the time of distribution of Sakat it. is unlawful to discriminate between persons whose requirements are similar?

(2)If it is intended to remove Army 'personnel -it can be done only for a cause and not without, cause as is started ;i.n Al~£arooq by Shibli.

(3)As Maawardi said it is not lawful for Ameer to appoint Imam who is fasiq for leading Prayers although the Prayer offered after him correct* it is however abomiry. person in authority should act in the public interest and no public interest is served by an act which is abominable.

(4)If the person in authority has to decide whether the prisoner should be put to death or be made a slave or be released with or without compensation, he cannot act except in public interest. For so long as he is not able to make up his mind q on the course of public interest the prisoner should be kept in prison.

(5)There is no pardon in matters of Qissas since it is against public interest. If he finds any good in Qissas he should execute it but If he considers it better to obtain Diyat he should obtain it.

(£>} The authority should not marry a woman except among people belonging to her status even though she be willing to marry among others. The reason is that this is a right vested in all muslins and he being their agent cannot act otherwise than on this rule.

E£ y * v

r i (7) The Imam not permitted to allow operation of a will of a person eying without heir, exceeding 1/3rd of his property. (The reason appears to be that it would he detrimental to the interest of the atate which succeeds a percou leaving no heir).

(8)It is not permitted to the person in authority while distributing money from the State Treasury to give priority to a person who is not needy to one who is needy. (A1 Ashbah Wal Nasair by Suyuti p. 121)

151* Other maxims which are of assistance in legislation xs (damage ( Zarar) and retaliation ry aamare is not allowed O* ^ 3 l (The repelling of mischief (raufas.id) is preferred to the acquiaitic >f benefits) . maqe Zarar )iis r<^pe-Llea _ a I q o

152.It is a well known principle in Jharia that.

f ^^ £* (It cannot be denied that laws change with the change in age}<It ir. not necessary to deal with this principle in ar.y detail on account of the established flexibility of legislation in Islam which is suitable for each age upto the day of Judgment. The best illustration oh this is furnished by the gradual change of view about service! The concept of civil, service being on pleasure underwent a change ; and the tenure ofa Mutawalli. teacher etc become terminable for cause only J s evident from the above opinions of Al-Mawardi,izzuddin Abdus &Lan and Suyuti.

According to Cuy"t? p-ven the. Military Personnel whose efficiency depends upon harsh discipline cannot be removed or dismissed ctv.cc. The removal of civil servant stands on a much stronger footing .

153.Where the dismissal or removal cannot be ordered except for cause it would be necessary to give the person affected an opportunity of being heard, because cause cannot be decided by a competent authority in the secrecy of his office because the object is to minimise- rather to eliminate-mischief or possibility of corruption and arbitrariness.

1^ 4. This is established from the dismissal of Iblees from his lofty position since he was turned out (Q.38:77) only after inquiry from him about the cause of not prostrating himself befor Adaia {0.38:75), the exact procedure provided by the Quran for punishing the offenders on the day of judgment, the.

*i fact that neither any punishment nor u-li was sent on any people unless they w e r e warned by the Prophets,and V e r s e s 27:20 & 21 in the story of Prophet Suleman:

Q.27:20 And he sought among the birds and said: How is it that I sec- not the iioopoe, or is he among the absent ?

Q. 27:21. I verily will punish him with hard punishment or I verily will slay him, or ho verily shall bring me a plain excuse.

1$5. The words -ate?? bring me a plain excuse prove that the bird was to bo given the opportunity to defend itself before being punished. Explaining this verse MaulanaMuhammad Rafique ehaudhry wrote in his article (Injunction an£ non Injunction provision in the Quran)published in Minhaj quarterly

.153. Where the dismissal or removal cannot be ordered except for cause it would be necessary to give the person affected an opportunity of being heard, because cause cannot be decided r

by a competent authority in the secrecy of his office because the object is to minimise- rather to eliminate-mischief or possibility of corruption and arbitrariness.

1$4. This is established from the dismissal of Iblees from his lofty position since he was turned out (0.38:77) only after inquiry from him about the cause of not prostrating himself befor Adam (Q.38:75), the exact procedure provided by the Quran for punishing the offenders on the day of judgment, the 't fact that neither any punishment nor was sent, on any people unless they were warned by the Prophets,and Verses 27:20 & 21 in the story of Prophet Suleman:

Q.27:20 And he sought among the birds and said: How is it that I see “ not the hoopoe, or is 1iC OTcQ the absent ?

Q.27:21. I verily will punish him with hard punishment or I verily will slay him, or he verily shall bring me a Plato excuse.

1$5. The words shall bring me a plain excuse prove that the bird was to bo given the opportunity to defend itself before being punished. Explaining this verse MaulanaMuhammad Rafique Ghaudhry wrote in his article (Injunction an0 non Injunction provision l1 in the Quran)pufclxshed in Minhaj quarterly

i5q , ..It «as urged that irany a persons are likely to become inefficient by the expiry of time arsd instead of stigraitisating them it is better . to let them be retired quitely with all the benefit s. This argument does not appeal to us since the causes? on which a pejcsort can be retired must have be-eri there 10.03 before, the employee has at his credit 25 years qualifying service. The reason lor this can be lack of supervision and want of accountability for which the competent authority should be held responsible. It is always better to make an employee accountable for his inefficiecv or for his mischief whenever such things come to the notice of the authorities. To take proper action at the right time -gainst any person who does not discharge his duties efficiently acts as a warning to others also who would reform themselves. To allow these mischiefs to pile', up and then to take action after 25 years qualifying service only would not be necessary if proper action is taken at the earlier stage. However, we do not agree that this is really the objective of making this provision in Section '12 of the Punjab Act: or corresponding provisions in other Provinces.. This question v?ur. considered and commented .in its historical context in •the White Paper of 1979,Vo 1.II, pages 131 to 1 gre The .remarks- at page 136 about both the provisions of Section 12U) and (ii) reinforce, the judgment ,of this Court on Sectj.cn T3 (i> and

(ii)of the civil -Servant Act, n>73- (SSM No.2.63-_ A/33) v After re-:cotk ideration of this matter and

i: •sh

-'W> §6

“Ijtehad number" of January? 1984) that - no employee in a Islamic State can be- proceeded against except by. service of a, show cause notice. The incident of the removal of Khalid has already been commented upon. There are, however, a number of such instances in which action was taken against officers of the State by Hazrat Umar only after giving them an opportunity of show cause (see pages 300 to 303 of Al-Farooq by Maulana Shibli Nnumani).

I56. Section 12 (i & ii) of the Punjab Act and corresponding sections of the Provincial laws are therefore, repugnant to the Quran and the Sunnah.

15'7 . These sections are violative of the principle of Masawat {equality before law) also as there appears to be no reasonable classification of Additional Secretaries or persons of equal or higher ranks on the one hand and other employees of lower ranks on the other. The denial of security of service was really a subject to make the holder of this Office subordinate to the will of the :person .in authority irrespective of whether ,h.f order is in accord with sharia or contrary <*“ to it.

I58. After- 1958 such a large number of

X

persons have been retired from service compulsorily and that the interest 'C^c- of legislation cannot be served without it necessary to issue notice to the sSsk -%*• to show cause ..retirement. -.'y.iSijiy *>1-'

■r.r^tL J -a,*.

after hearing the counsel at length, we find no reason to depart from the principle laid down in that .judgment. We, therefore, direct the Government of the Punjab to repeal the provisions of Section 12(i) and (ii) of the Punjab Civil Servant Act, 1974 by 30th September, 1984. Similarly we direct the Government of UWFP^Siod and Baluchistan to repeal by the same date the provisions of Section I3(i) in each of the NWFP Civil Servants Act. 1S73 and Sind Civil Servants Act, 1973 and Section 13(i) and (it) of Baluchistan Civil Servants Act, 1974, respectively. Consequential amendments will be made in other parts of the same Sections.

161.Shariat Petition No.l/L of 1983 is thus allowed and the other three Shariat Petitions bearing N 0 .S.P.2/L of 1983, S.P.l/I of 1984 and S.P.N0 .3/L of 19S3 are dismissed.

162.No exception can be taken to other provisions of the laws referred to above except the provisions which have already been ordered to be amended vide our Judgment on the laws of Punjab Code Vol .III, l'V and V.

CHIEF JUSTICE

AS

JUDO®- V JUDGE-VI

Islamabad the . *3 1984 — - p b . y?