Shakeel Rahman Vs Chairman WAPDA etc

I

I

JIJDGME T SIIEET

IN THE PES WAR HIGH COT]RT. B BENCH

(Judicial Department)

W.P No.498-B/2018

Shakeel Rahman Vs Chairman WAPDA etc

JI]DGMENT

Date of hearing: 02.05.2023

For petitioner(s): Mr. Asghar Wazir Advocate

f,'or respondent(s): Mr. Umerzad Shah Bukhari Advocate (for respondents No.l to 4)

For respondent(s): Syed Asfandyar Ali Shah Advocate (for respondents No.8 to 15)

For respondent(s): IIafiz Muhammad Hanif, Addl, A,G. (for offrcial respondents No.5 to 7 along with Sanaullah

k Khan, AAC, Bannu)

Dr. Khurshid lobal. J.-

l. The WAPDA's local authorities (respondent) floated an advertisement for appointrnent to certain class-iv positions in North Waziristan. In the subject Writ Petition (WP), Shakil Rahman, and others, and in the corurected WP (# 955-8/2018), one Wali Rahman, have prayed before us that in our constitutional jurisdiction we may declare that all class-iv positions in public departrnents in North Waziristan District shall be open in appointment only for those who belong to a tribe called

Muhammad KIel Wazir and none else. The question for determination in both the WPs being the same, we propose to decide these petitions by this single opinion.

2.The petitioners have based their claim on a certain reference the people of Muhammad Khel tribe had made to the Assistant Political Agent in 1993 regarding appointment to class [V vacancies from their tribe only. The request, the petition further states, was allowed. The petitioners have come to this court, seeking:

(1). [D]irections to the respondents No.l to 5 to abide by the decision / joint agreement of Muhammad Khel Wazir Tribe, whereby, it was jointly decided that all Class-IV services in the area of Muhammad Khel Wazir will be given to Muhammad Khel Wazir Tribe and in case of retirement, their sons will have to occupy his father's post, nevertheless the advertisement published by the respondent No.4 in the daily newspaper inviting applications fiom other tribes, is vivid deviation from the joint settlement which may result in conflict between Wazir Tribes or any other untoward incident;

(2). [Cancellation ofl all appointment orders of the respondents No.8 to 15 and others who were not the residents of Muhammad Khe[ Wazir and were not eligible to be appointed against the posts of Muhammad Khel Wazir; and,

(3). fDirection to] the respondents No.l to 7 to advertise all ClassJV posts falling under the area of Muhammad Khel Wazt in the manner that in advertisement, applicatiors should only be invited from Muhammad Khel Wazir Tribe for Class-IV services."

3.In addition to the above, further facts stated in the petitions are that there was a dispute over appointment on Class-[V vacancies between Muhammad Khel Wazir and other tribes. The Assistant Political Agent F.R., Bannu, called a joint Jirga of Muhammad Khel Wazir and other Wazir tribes showing resentments in respect of the appointments in question. It was stated to have been resolved in such a way that all Class-

IV posts lfng vacant in the area of Muhammad Khel Wazir would be offered to them on hereditary (nikat) basis. The Assistant Political Agent FR Bannu, vide his letter No.1746lAPA, dated 26.09.1993, communicated the aforesaid decision to the Deputy Commissioner, Baruru and requested his office to avoid appointment of others than Muhammad Khel Wazir against Class-IV posts in Muhammad Khel Wazir's area in order to avoid law and other situation and to maintain writ of the Govemment in tJlat area as well. The petitioners contend that the aforesaid decision was followed by all concerned for a long time, but now, the respondent No.4 in contravention of the same, not only appointed respondents No.8 to 15 I their area, but also bent upon appointing others while making advertisements.

4.The respondent submitted para-wise comments in which they opposed the contention of the petitioner, stating that they are not bound by the aforesaid letter. Arguments heard and record perused.

5.To begin with, the relevant portions of the 1993 letter (No. 1746lAPA, Bannu, dated 2610911993) of the Assistant Political Agent, is reproduced below:

Subject ADDointment o fClass-IV Services Memo, Reference attached Office Order No.5700/11-8-S dated 15.08.1993 ftom the XEN Marwat Canal Division Bannu. Today, a joint Jirga of Muhammad Khel Wazir called upon me in my office. They were showing resentment upon the appointment of Assistant Regulation Jamadar Head Works Sub Division Bannu, which has become vacant due to death of Rais Khan Asstt: Jamadar. They further added that the said post be given to Muhammad Klel Qaum on 'Nikat' basis.

It is worth mentioning that there is a long standing dispute of Muhammad Khel Wazir over the apPointment of Class-IV services in Muhammad Klel area, which is still pending and if other than Muhammad Khet Qaum is appointed against the vacant post, the Muhammad Khel Qaum will create serious law and order situation for the administration.

In view of the above, it is requested that XEN Marwat Canal Division Bannu may kindly be directed to avoid the appointment of other than Muhammad Khel in Class-IV services in Muhammad Khel area.

sd/- Assistant Political Agent FR Bannu"

"Nikat" is a term used for quota system in the erstwhile FATA. One commentator has defined it as under:

[T]he share given by the government to each tribe depending on the area under its control. Most of the shares are the same as set by British nearly a century before.l

Another commentator has offered the following definition:

[T]he close and detailed organization based on heredity in a tribe. It fixes the share of each class and sub-section, even of each family in all tibal loss and gain, benefits are distributed and liabilities apportioned. It regulates shares in allowances from the govemment or booty from a raid and equally the amount due in fine under any settlement either with the govemment or with contending sections.2

k 6. From the arguments of leamed counsel for the respondent fwo important points axe gleaned. Firstly, the petitioners have no locus standi because petitioners No.l, 2 and 4 never submitted their applications for appointment in response to the advertisement, whereas petitioners No.3 and 5 appeared for the interview, but could not qualiry for the appointment. Leamed counsel for the petitioners admitted this fact. Secondly, pursuant to the Constitution (Eighteenth Amendment) Act, 2010 (Act 2010), the erstwhile FATA has been merged in the Khyber Pakhtunkhwa province, as such, all the contracts, policies and agreements ' Zahidullah Wazir, 'Indigenous Factors Responsible for the Rise of Mititancy in FATA', Middle-East Journal of Scienti.lic Research 22 (9): 1320-1330,2014, p,1321.

Sarfaraz Khan and Nur ul Amin, 'Demystifying Tribal Autonomous Govemance: A Critical Appraisal ofTribal Maliki System in Federally Administered Triabal Areas (FATA)', Central Asia Journal No. 75, summer 2015, p I l.

between the former political authorities and the tribes therein have become infructuous and ofno legal effect.

7.We would abstain from offering any comments on the concept of nikat as it was practiced in the erstwhile FATA. However, all that we must say is that the FATA is no more in existence. Under section l0 of the Act 2010, the question of under-representation in services has to be addressed by the parliament through legislation. It follows that no discrimination in service matters, other than the one laid down in constitution, is allowed.

8.Article 27 ofour constitution prohibits discrimination in respect of appointment in the services of Pakistan on the ground of only race, religion, caste, sex, residence or place of birth. It, however, provides for discrimination in the form of reservation of positions (also simply called as quota system): firstly, for adequate representation for persons belonging to any class or area, and that, too, for a limited period only; and secondly, for members of either sex due to the nature of duties and functions which cannot be adequately performed by members of the other sex. Then, the provision makes it an obligation of the elected parliament to introduce legislation for (we would avoid using the word 'discrimination') ensuring adequate representation in services, a more cherished goal. Perhaps, it needs not be mentioned that the constitution recognizes equality of opportunity in services of the country. Equality of opporh.rnity may be termed as a necessary part of fundamental rights (notably equality before law: article 25) in the eighth preambluar paragraph of the constitution.

9.Every citizen has the right, subject to such qualification, as prescribed by law, to enter upon any lawful profession or occupation on the touchstone of article 18 of the Constitution. The provision of this article must be read with article 4, which guarantees the right of individuals to be dealt with in accordance with law. The right of an

individual to compete and participate for appointment against a post in any Federal or a Provincial Govemment Department or autonomous or semi- autonomous body, administered or controlled by such Govemment, has its roots deep in the Constitution. The working of any such departrnent or body could only be improved and good govemance achieved, if the posts falling vacant therein are filled up on the basis of merit and merit alone with accountability and transparency. This could only be achieved if every eligible candidate is given equal opportunity, which is a necessary element of the right to employment. Equality of opportunity as referred to in the opening lines of this opinion, is a key milestone on the way to a proper politico-juridical understanding of fundamental rights. Equality of opportunity presupposes enabling individuals to compete on equal terms for jobs and other advantaged positions.3 Applicants are assessed on the basis of their merits, in a just and fair manner, and awarded position if found qualified according to suitable criteria. In liberal political tradition, as John Rawls argues, justice as fairness plays a pivotal role. Rawls constructs justice as faimess on the following two principles:

First Principle: Each person has the same indefeasible claim to a fulty adequate scheme of equal basic liberties, which scheme is compatible with the same scheme of liberties for all;

Second Principle: Social and economic inequalities are to satisry tuo conditions:

a. They are to be attached to offices and positions open to all under conditions of fair equality of opportunity;

See, Mason, Andy. "equal opportunity". Encyclopedia Britznrlica,23 !an.2023, https://www.britannica.com/topic/equal-oppomrnity. Accessed 4 May 2023. Ameson, Richard, 'Equality of Opportunity", The Stanford Encyclopedia ofPhilosophy (Summer 2015 Edirion), Edward N. Zalta (ed.), URL = accessed 04t05/2023.

b. They are to be to the greatest benefit ofthe least-advantaged members of society (the dilference principle).4

The right to employment has a clear nexus with the right to non- discrimination under article 25. The jurisprudence of the employrnent law emphasizes that appointment must be made on merits. It has time and again been held that any appointment made without advertisement or disregard for the prescribed manner would be against the basic law of the land. We may neither approve nor sanctify any such appointment which is being made in violation of the rules or policy laid down for the purpose. Viewing the case of the petitioners in this perspective, there appearc no reason to allow the prayers in favour ofthe petitioners. Reference may be made to the case of PWD Emolovees Union.s

10.By now, it is well settled that it is not the area of a tribe, which could be considered as a sole ground for appointment of persons against posts in the erstwhile FATA (newly merged areas), rather it is the law, rules and policy which shall be taken into consideration while making any appointment. This obviously includes open advertisement, qualification, age, domicile, reservation of relevant quota and other credentials. In the case of Faisal Rasheed and others, it has been held that:

Besides, it is well-settled law that the eligibility ofa candidate is to be determined in terms of recruitrnent rules governing appointments and the advertisement for the post, and such other ancillary instructions issued by the Government from time to time. For this purpose, the age, qualifications, experience, and other credentials, etc., of the candidates existing on or up to the E. Kelly, Justice as Faimess: A Restatement, Cambridge, MA: Harvard University Press, 2001,42-43. Also, Wenar, Leif, "John Rawls", The Stanford Encyclopedia of Philosophy (Summer 2021 Edition), Edward N. Zalta (ed.), URL : accessed 08/05/2023 PllD Employees Union v. Secretary Communicalion & ,yorks Deparlment, Govenrment of Balochistan,2Ol5 PLC (CS) 1182

closing date fixed for such posts as advertised, shall be taken into account. No relaxation in this regard shall be allowed.6

11.For the aforesaid reasons, we find no merit in these writ petitions, which are dismissed as such.

Announced

JIJDGE

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Faisal Rasheed and others v. Sindh Enployees Sociql Secuity Institution through Commissioner and others,2023 PLC (CS) Note 3.