Law: Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974

Section: 17-A

Law: Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974

Section: 11-A

Law: Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989

Section: 10(4)

Law: Constitution of Pakistan, 1973

Section: 18, 25 & 27

(a)    Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974---
----R. 17-A (since omitted)---Sindh Civil Servants (Appointment, Promotion and
Transfer) Rules, 1974, R. 11-A---Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989, R. 10(4)---Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009, Rr. 12-A (since omitted) & 12---Constitution of Pakistan, Arts. 18, 25 & 27---Civil service--Contract appointment without advertisement---Quota reserved for widow/widower/child of a civil servant who dies during service or who becomes permanently disabled during service and takes retirement from service--Constitutionality---Any Rules, Policies, Office Memorandums, etc. which secure or provide appointments in different grades, without open advertisements and competition, to the widow/widower, wife/husband or a child of a civil servant of the Federal and Provincial Governments, who dies during service or becomes permanently disabled/invalidated/ incapacitated for further service and takes retirement from service, is ex facie discriminatory against the other or ordinary citizens of Pakistan and the same cannot be termed as a reasonable classification as their object is to give an advantage by excluding others, which is not permissible under Article 25 of the Constitution---Article 27 of the Constitution which specifically attends to the service of Pakistan prohibits discrimination in services--These jobs neither are nor can be made hereditary---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 a society in all aspects---Appointment of a widow/widower, wife/husband or child of a civil servant in different grades on contract or regular basis, without open advertisement, competition and merit is also violative of Article 18 of the Constitution which provides that subject to such qualification, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation and to conduct any lawful trade or business---Appointments obstructing ordinary qualified citizens to compete for entering into the profession of the service of Pakistan in accordance with their ability and eligibility also violate this fundamental right, and if such appointments are made they negate equality of opportunity, competition, merit and also defeat the object of good governance---Supreme Court declared the policies, office memorandums, employment under the Prime Minister's Assistance Package, 2006, the Financial Assistance Package, Rule 11-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, Rule 10 (4) of the Khyber Pakhtunkhwa Civil servants (Appointment, Promotion and Transfer) Rules, 1989, Rule 12 of the Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009 or any other rule, policy, memorandum, etc. whereunder appointments without open advertisement, competition and merit of the widow/widower, wife/husband or child of civil servants in different grades, who die during service or become permanently disabled/ invalidated/incapacitated for further service and take retirement from service, to be discriminatory and ultra vires Articles 3, 4, 5(2), 18, 25(1) and 27 of the Constitution---Supreme Court directed that the Federal and Provincial authorities shall withdraw the same---Supreme Court clarified that the present judgment shall not affect the appointments already made of the widow/widower, wife/husband or child of deceased or retired civil servants; that present judgment shall also not affect the policies, rules or compensation packages of the Federal and Provincial Governments for the benefit of the legal heirs of martyred personnel of the law enforcement agencies and of civil servants who die on account of terrorist activities.
(b)    Judicial review---
----Any law, policy or rule which is manifestly inconsistent with the Constitutional commands, retrogressive in nature and discriminatory inter se the citizens is subject to judicial review.
Civil Petition No.288-P of 2015 decided on 12 September 2024 ref.

JUDGMENT
NAEEM AKHTAR AFGHAN, J.---The respondent (herein) filed a Writ Petition in the Peshawar High Court for issuing directions to the petitioners (herein) to consider him for appointment against the quota reserved for the children of classIV employees who retired on medical grounds. The respondent relied upon the Office Memorandum ('OM') dated 13 April 20051 of the Establishment Division, Government of Pakistan ('the Establishment Division') whereby the following paras were added to the Establishment division's OM dated 21 March 20002 which provided guidelines for contract appointments for a period of two years to civil posts under the Federal Government:
'The condition of open advertisement may also be relaxed by the Prime Minister for the purpose of appointment on contract basis of widow/widower of one child of a deceased civil servant who dies during service and wife/husband or one child of a serving civil servant who becomes 'permanently disabled during service' and he/she takes retirement from service provided that such special dispensation may be allowed only for appointment to posts in BS-10 and below.
Provided further that the widow/widower or a child of a civil servant who dies during service and wife/husband or a child of a serving civil servant who becomes 'permanently disabled during service' and he/she takes retirement from service will have to apply for contract appointment within one year after the death of a civil servant or retirement of a permanently disabled civil servant. In case of a minor child of a civil servant, the one year period will start from the date he/she attains the age of 18 years.'

2.    The Writ Petition was contested by the petitioners on the ground that the father of the respondent on 7 August 1996 availed of his retirement as Postman (BPS-4) on medical grounds, therefore, the OM dated 13 April 2005 cannot be applied retrospectively to appoint the respondent, who was the son of a retired civil servant.

3.    The Writ Petition was disposed of by a Division Bench of the Peshawar High Court vide impugned order dated 13 April 2021 by issuing directions to the petitioners to appoint the respondent on contract basis in terms of OM dated 13 April 2005 (wrongly mentioned as notification in the impugned order) in accordance with the policy, notwithstanding that the OM dated 13 April 2005 could not be applied retrospectively to appoint the respondent as his father had retired from service on 7 August 1996, when at that time there was no policy for appointment of a child of a civil servant who dies during service or becomes permanently disabled during service and on this ground takes retirement from service.