In a landmark judgment, the Supreme Court has set aside the government quota scheme reserved for the children or family members of low-grade employees who retired on medical grounds, died during service, or became disabled. The court held the scheme to be ultra vires of the Constitution.
Under the scheme, a widow/widower, wife/husband, or child of a civil servant in various grades were appointed on a contract or regular basis, without open advertisement, competition, or merit. Headed by Chief Justice of Pakistan (CJP) Qazi Faez Isa, a three-judge bench, which also included Justice Naeem Akhtar Afghan and Justice Shahid Bilal Hassan, took up an appeal by the General Post Office Islamabad against an April 13, 2021, ruling by the Peshawar High Court (PHC) in favor of respondent Muhammad Jalal.
The respondent sought a direction from the PHC to consider him for appointment against the quota reserved for the children of class-IV employees who retired on medical grounds. He relied on an April 13, 2005, Office Memorandum (OM) from the Establishment Division, which provided guidelines for contract appointments to civil posts under the federal government for a period of two years. The guidelines relaxed the condition of open advertisement by the Prime Minister for the appointment on a contract basis of a widow/widower or one child of a deceased civil servant who dies during service, as well as the wife/husband or one child of a serving civil servant who becomes permanently disabled during service and takes retirement. This special dispensation was to apply only to posts in BS-10 and below.
Authored by Justice Naeem Akhtar Afghan, the 11-page order explained that government and public sector employment cannot be parcelled out to state functionaries. These jobs cannot be made hereditary, the order stated, adding that the Constitution stipulates that equal employment and economic opportunities must be provided to all citizens. Economic justice is a component of social justice, which focuses on creating equal opportunities for all within society.
Good governance cannot be achieved by exercising discretionary powers unreasonably or arbitrarily. This objective can be met by following the Constitution and adhering to the principles of justness, fairness, and openness as enshrined in the document, the verdict said.
The court stated that any law, policy, or rule that is manifestly inconsistent with constitutional commands, retrogressive in nature, or discriminatory among citizens is subject to judicial review.
While striking down the PHC order, the Supreme Court ruled that policies, office memorandums, and employment rules that allow for appointments without open advertisement, competition, and merit for the widow/widower, wife/husband, or child of civil servants who die during service or become permanently disabled are discriminatory and ultra vires to Articles 3, 4, 5(2), 18, 25(1), and 27 of the Constitution.
The court directed federal and provincial authorities to withdraw these laws but clarified that the present judgment will not affect appointments already made for the widow/widower, wife/husband, or child of deceased or retired civil servants. The Supreme Court also clarified that this judgment will not impact the policies, rules, or compensation packages of the federal and provincial governments for the benefit of the legal heirs of martyred personnel from law enforcement agencies and civil servants who die as a result of terrorist activities.