11/15/21, 7:16 PM 2015 PLC(CS) 1495 - ALI RAZZAQ Versus D.C.O.

- LAHORE HIGH COURT LAHORE

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ALI RAZZAQ Versus D.C.O.

August 22, 2014 — LAHORE HIGH COURT LAHORE — Honorable Justice Zafarullah Khan
Khakwani — Muhammad Ismail Makki — 2015 PLC(CS) 1495
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ORDER

ZAFARULLAH KHAN KHAKWANI, J.--- By way of this single order Writ Petition No.5126 of
2014/BWP and Writ Petition No.5127 of 2014/BWP are being decided as common questions of
law and facts are involved in both these petitions.

2. Brief facts leading to filing of these petitions may be given first:

Ali Razzaq, petitioner in Writ Petition No.5126 of 2014/BWP retired as Driver from the
department of Defunct Zila Council Bahawalnagar on medical ground on the basis of
invalidation certificate w.e.f. 2-12-2012. After his retirement on medical ground he submitted
application for appointment of his son, Feroz Razzaq as Driver in his place in view of Rule 17-A
of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. However,
neither his said application has been decided nor his son has been appointed by the competent
authority so far. Hence this Constitutional petition.

Mst. Anwar Bibi, mother of Muhammad Zaheer Qasim, petitioner in Writ Petition No. 5127 of
2014/BWP was working as "DAI' under the Defunct Zila Council R.D. Mitha Aqooqa, Tehsil and
Distt. Bahawalnagar. She applied for retirement on medical ground and was issued invalidation
certificate by the competent authority/medical board on 27-9-2013 declaring that she was
completely and permanently incapacitated to work in the department. After issuance of
invalidation certificate she was allowed to proceed on retirement from service. The petitioner on
the basis of the said retirement of her mother filed an application under Rule 17-A of the
Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 for his appointment
in class IV staff. Respondent No.1, however, did not pay heed to the request of the petitioner
who was constrained to approach this Court through the constitutional petition.

3. Learned counsel for the petitioners submits that after retirement of Ali Razaq petitioner and
mother of Muhammad Zaheer Qaim, petitioner there is no earning member in their families;

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that under the said Rule it is right of the petitioner/ petitioner's son to be appointed in the said
department but the department is not considering them for the said appointment on lame
excuses.

4. Conversely, learned Law Officer vehemently opposed these petitions with the contention that
cases of the petitioners fall in clause/category B of the said invalidation certificates as they were
declared completely and permanently incapacitated to work in the department (Zila Council)
and not in other departments, so they are not entitled for appointment under the said Rule.

5. Learned counsel for the petitioners in rebuttal has placed on record order dated 28-3-2014
whereby two persons, namely, Muhammad Rizwan Abbas son of Muhammad Abbas and Abdul
Rehman son of Muhammad Saeed sailing in the same boat as that of the petitioners were
appointed in the department in spite of the fact that their cases also fall in category B and the
respondents while treating the petitioners have discriminately refused them verbally for
appointment in the department.

6. Learned counsel for the parties have been heard and record perused.

7. It is an admitted fact on record that Ali Razzaq, petitioner and mother of the Muhammad
Zaheer Qasim, petitioner were government employees working in the defunct Zila Council
department and they retired from service on the basis of medical ground/invalidation
certificate.

8. Invalidation certificate of Ali Razzaq, petitioner depicts that he was 49 years old, medically
examined by the Orthopedic Surgeon/ Specialist and was found in following condition:---

"H/O Pain low back, radiating down to right leg with stiffness of whole leg and stiffness of back,
along with burning sensation, hyperesthesia and numbness-symptoms worse with standing and
walking and patient is unable to bend forward. On examination power of hallux longusis is 2/5.
Mild Attropy of affected limb which is disuse atroply and SLR (Straight leg Raise) less on right
side 40 and on left side SLR is normal. On MRI of lumborsacral spine there is Disc Buldge of L4-
5 posterior herniation of nucleus pulposis of LV5- SVI, I/V Disc along with degenerative change
of lumber spine. In my opinion the patient was not fit for this (drive) post further service." (Bold
and underlining is mine)

According to the invalidation certificate, Mst. Anwar Bibi was aged about 52 years. The report of
Chest Specialist incorporated in the said certificate depicts that her medical examination was
conducted and her health condition was found as under:---

"C/O SOB 12 years chest pain off and on. On chest examination there are bilateral rhonchi and
crepts. CxR: Old calcipred spots Rt M and upper zone, ECG IHD changes on Lung function test
FVCL 1.61 63% pred, FEVI 1.39 63% pred, Moderate restrictions. In view of history, chest

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examination and lung function test she is suffering from severe COPD with moderate restriction
and IHD, and she is unfit for further Government job". (Bold and underlining is mine)

The certificates further depict that even the Medical Specialists and the Consultants agreed with
the reports of the said Specialists. However, it is mentioned in the certificates that cases of both
these employees fall in category "B" of the categories mentioned in the Invalidation Certificates.
I have perused category-B which reads as under:---

"B. Completely and permanently incapacitated in the department to which he/she belongs."

9. The Government of Punjab made amendment in the Punjab Civil Servants (Appointment and
Conditions of Service) Rules, 1974 (which was made under section 23 of the Punjab Civil
Servants Act, 1974) and inserted Rule 17-A to the said Rules. Before proceeding further it would
be advantageous to reproduce said Rule which reads as under:---

"17-A. Notwithstanding anything contained in any rule to the contrary, whenever a civil servant
dies while in service or is declared invalidated/ incapacitated for further service, one of his
unemployed children, or his widow/wife may be employed by the Appointing Authority against
a post to be filled under rules 16 and 17 for which he/she possesses the prescribed qualification
and experience and such child or the widow/wife may be given 10 additional marks in the
aggregate by the Public Service Commission or by the appropriate Selection Board or
Committee provided he/she otherwise qualifies in the test/ examination and/or interview of
posts in BPS-6 and above:

Provided further that one child or his widow/wife of a government servant who dies while in
service or is declared invalidated/ incapacitated for further service shall be provided a job
against posts in BS-1 to 5 in the department in which the deceased government servant was
working, without observance of formalities prescribed under the rules/procedure; provided
such child or the widow/wife is otherwise eligible for the post."

The above quoted proviso to the said rule was further amended by the government vide
Notification No. SOR-III(S&GAD)2-10/2006 dated 5-1-2008 to include the post of Junior Clerk
(BS-7) and the amended Proviso runs as under:---

"Provided further that one child or widow/wife of a government servant who dies while in
service or is declared invalidated/ incapacitated for further service shall be provided a job
against posts in BS-1 to 5 and the posts of junior clerks (BS-7) in the department in which the
deceased government servant was working, without observance of formalities prescribed under
the rules/procedure; provided such child or the widow/wife is otherwise eligible for the post."

10. A careful perusal of this Rule (Rule 17-A) would reveal that it deals with cases of two
categories: First and the main part deals with cases of candidates who apply for appointment
against a post from B.P.S. 11 and above on the basis of his father/mother having died during

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service or retired on medical ground/invalidation certificate whereas the Proviso deals with
cases of appointment to be made of such candidates against the posts falling in BS-1 to 5 as
also of Junior Clerks. The Rule requires the Public Service Commission or the Selection Board or
Committee to award 10 additional marks to such candidates while considering cases for
appointment. However, under the Proviso no such concession has been awarded rather it has
been required that one unemployed child of a deceased/ invalidated/ incapacitated
government servant shall be appointed against a post falling in BS-1 to 5 in the department in
which the deceased Government servant was working, without observance of formalities
prescribed under the rules if he/she otherwise is eligible. This Proviso clearly makes it
incumbent for the government authorities that if the child who applied under said proviso, if
otherwise found eligible, shall be appointed in the department. Use of imperative language in
the Proviso depicts the intention of legislature that normal procedure for initial appointment in
BS-1 to 5 and to the posts of junior clerks was to be waived of in cases falling under proviso to
Rule 17-A, otherwise there was no fun for the legislature to insert this proviso in the Rule.
Perusal of this provision of law makes it crystal clear that the same was made and subsequently
amended only for beneficial purpose of a civil servant who is not in a position to render his/her
services in the department and not otherwise.

11. The objection of the authority that the retired government servants were still able to
perform their duties in other departments and as such their cases fall within category B appears
to be illogical. It is an admitted fact that Ali Razzak petitioner was a driver. If, as per medical
report, he was unfit to perform his duty in the department, it is not understandable as to how
he could perform his duty as driver in other department. Same is the case of Mst. Anwar Bibi
who was a "DAI". There is another point which must not escape from consideration. As per
medical report/invalidation certificate both of them were above the age of 35. It is not
understandable as to how they could get a job in some other government department. Both
these posts i.e. Driver and DAI are somewhat of technical nature and if they are unable to
perform such duties in their own department, they cannot be presumed to be in a position to
do work of same nature in some other department.

12. There is another aspect of the case. The respondents are blowing hot and cold in the same
breath because vide order dated 28-3-2014 they have appointed two other persons, namely,
Muhammad Rizwan Abbas and Abdul Rehman, sons of similarly invalidated employees who
were issued invalidation certificates of same nature. This act of respondents depicts their
discriminatory treatment which is not recognized under the law and even by the Constitution of
the country. In this context Article 25 of the Constitution of Islamic Republic of Pakistan, 1973
may be referred which enshrines golden rule of equality of citizens before law. The Article reads
as under:---

"Article 25. Equality of Citizens:

(1) All citizens are equal before law and are entitled to equal protection of law.
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(2) There shall be no discrimination on the basis of sex.

(3) Nothing in this Article shall prevent the State from making any special provision for the
protection of women and children.

The Article clearly provides that all citizens similarly placed are to be treated equally and not
otherwise. The right to be treated equally is one of the fundamental right guaranteed in Part II,
Chapter I of the Constitution of Islamic Republic of Pakistan, 1973. Treating the persons
differently and discriminately, who falls in the same category, by making divergent yardsticks
would be mockery of law and cannot be permitted to continue in any manner. Steering
thoughts in this regard can also be taken from the cases of Shrin Munir and others v.
Government of Punjab through Secretary Health, Lahore and another (PLD 1990 SC 295),
Pakistan International Airlines Corporation through Chairman and others v. Shahzad Farooq
Malik and another (2004 SCMR 158), Market Committee, Multan through its Administrator and
another v. Muhammad Sabir (1995 SCMR 305) and Muhammad Ikram v. Principal and Chairman
Admission Committee, Sukkur and 2 others (2014 MLD 1).

13. Article 7 of the universal declaration of human rights also states that all are equal before the
law and are entitled without any discrimination to equal protection of the law.

14. Principle of equality is basic and indispensible element in the structure of Islamic Society.
The differences of colour, race or social status are only accidental. They do not at all effect the
real status of any person in the sight of God. There are clear instructions in the Holy Quran and
the Hadith that in their rights and obligations all are equal. The Holy Prophet Muhammad
(Peace Be Upon Him) in worldly admired Last Sermon at the time of Hajja-tul-Widah said:---

"O mankind, your Lord is one and your father is one. You all descended from Aadam, and
Aadam was created from clay. He is most honoured among you in the sight of God who is most
upright. No Arab is superior to a Non-Arab and no non-Arab is superior to an Arab, no black
person to a white person or a white person to a black person except by Taqwa (Piety)." (Ahmad
& Al-Tirmithi)

Thus guided by the golden principle of Islam and law of the land regarding equality, the
respondents cannot be permitted to discriminately treat the petitioners from other similarly
placed persons.

15. In view of what has been discussed and observed above, looking at from whatever angle the
cases of the petitioners fall within the Proviso to Rule 17-A of the Punjab Civil Servants
(Appointment and Conditions of Service) Rules,1974 and also identical to the cases of two
persons already appointed by the respondents. Resultantly, son of Ali Razzaq and Muhammad
Zaheer Qasim petitioners are entitled to be appointed in the department.

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16. In this view of the matter, these petitions are allowed and the competent
authority/respondents are directed to appoint Feroz Razaq son of Ali Razzaq petitioner and
Muhammad Zaheer Qasim, petitioner in the department against the posts of Driver and Class IV
respectively in accordance with Rule 17-A of the Punjab Civil Servants (Appointment and
Conditions of Service Rules, 1974 within a period of 15 days positively.

ZC/A-194/L Petition allowed.

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