P L D 2017 Lahore 665

Before Syed Mansoor Ali Shah, C J

HASSAN SHAHJEHAN---Petitioner
Versus
FPSC through Chairman and others---Respondents
Writ Petitions Nos.28579 and 23578 of 2016, heard on 13th June, 2017.
(a) Constitution of Pakistan---
----Arts. 199, 201, 202, & 203---Interpretation of Constitutional construct of the Judicature---
Exercise of Constitutional jurisdiction of High Court under Art.199 of the Constitution---
Nature of the Constitutional jurisdiction of High Court vis-à-vis Provincial character of the
High Court---Relief granted by the High Court while exercising its Constitutional jurisdiction
could not go beyond the Provincial boundary and affect any other Province, area or its
peoples---Concept and contours of the territorial jurisdiction of High Court under Art.199 of
the Constitution, expounded.
            Constitutional terms like "High Court for each Province" "within the territorial
jurisdiction of the Court" and "all courts subordinate to it" construct a High Court, which has
a provincial character. The term "within the territorial jurisdiction of the Court" ubiquitously
recurs throughout Article 199 emphasizing the territorial limitation on the jurisdiction of a
High Court. The term "All courts subordinate to it" repeated in Articles 201, 202 and 203
place the Provincial High Court atop a provincial pyramidical hierarchy of courts.
Constitutional architecture of a Provincial High Court provides that while it enjoys judicial
power to examine all laws or actions of the federal, provincial and local governments or
authorities, it can only do so if the cause of action arises or the respondent government or
authority is located or if the impugned act or order affects a person within the territorial
jurisdiction of this Court i.e., within the Province. As a corollary, the relief granted or the writ
issued by the High Court also remains within the territorial jurisdiction of this Court and can
only benefit or affect a person within the territorial jurisdiction of the Court. The relief cannot
go beyond the Provincial boundary and affect any other Province or Area or its people. So for
example, if a federal law or federal notification is struck down by Lahore High Court, it is
struck down for the Province of Punjab or in other words the federal law or the federal
notification is no more applicable to the Province of Punjab but otherwise remains valid for
all the other Provinces or Areas. Unless of course the Federation or the federal authority
complying with the judgment of the Lahore High Court, make necessary amends or withdraw
the law or the notification. Which of course would then be open to challenge by the other
Provinces or Areas or their people, if they so decide. The other eventuality is that the
Federation or the federal authority may or may not enforce the said law or notification in
other Provinces, as a matter of administrative decision and instead challenge the judgment of
the Lahore High Court before the apex Court of the country. These are the operational
repercussions and effects of a judgment, setting aside a federal law or federal notification or
decision. However, on a purely constitutional and legal plane, the federal law or federal
notification remains in existence for the rest of the country but for the Province of Punjab.
This is further fortified by the fact that in case the same federal law or federal notification is
challenged in any other Province or Area, the High Court concerned is not bound by the
decision of the Lahore High Court and can declare the same federal law or federal
notification to be valid law (Reference Article 201 of the Constitution). Therefore, under the
Constitution, while the High Courts can judicially examine and strike down a federal law or
federal notification, infact, the said federal law or notification is made non-applicable to the
extent of the Province unless the matter is finally decided by the Supreme Court of Pakistan
or else if the Federation or the federal authority decide to withdraw or amend the law on their
own, in compliance of the judgment.
            What does "Within the territorial jurisdiction of this Court" mean? Relying on the
constitutional jurisprudence developed over the years and the provincial constitutional
architecture of a High Court, writ cannot be issued by High Court against any person which is
located geographically outside the territorial limits of the Province, having no physical or
legal presence within the Province.
            If the order or action of the Government or Authority (federal or provincial), present
within the Province, affect the rights of a person within the Province, writ can be issued
against the said Government or Authority (irrespective of its federal character) and relief
given to the aggrieved person located within the Province.
            Sandalbar Enterprises (Pvt.) Ltd. v. Central Board of Revenue and others PLD 1997
SC 334; Flying Kraft Paper Mills (Pvt.) Ltd., Charsadda v. Central Board of Revenue,
Islamabad and 2 others 1997 SCMR 1874; Asghar Hussain v. The Election Commission
Pakistan PLD 1968 SC 387; Messrs Al-Iblagh Limited, Lahore v. The Copyright Board,
Karachi and others 1985 SCMR 758; Messrs Sethi and Sethi Sons through Humayun Khan v.
Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and others 2012
PTD 1869; The Oxford Handbook of Indian Constitution, edited by Sujit Choudhry Madhav
Khosla and Pratap Bhanu Mehta, Oxford University Press  2016 Federal Scheme Chapter
25 and Guy Regimbald and Dwight Newman-The Law of the Canadian Constitution (Lexis
Nexis) p.97-98 rel.
(b) Constitution of Pakistan ---
----Art. 199---Constitutional jurisdiction of High Court---Nature of territorial jurisdiction of
the High Court under Art.199 of the Constitution---Scope---Per developed Constitutional
jurisprudence and the Provincial Constitutional architecture of a High Court, a writ could not
be issued by a High Court against any person who was located geographically outside the
territorial limits of the Province, having no physical or legal presence within such Province---
If an impugned order or action of the Government or Authority (Federal or Provincial),
present within a Province, affected the rights of a person within such Province, a writ could
be issued against the said Government or Authority (irrespective of its federal character) and
relief given to the aggrieved person located within the said Province.
            Sandalbar Enterprises (Pvt.) Ltd. v. Central Board of Revenue and others PLD 1997
SC 334; Flying Kraft Paper Mills (Pvt.) Ltd., Charsadda v. Central Board of Revenue,
Islamabad and 2 others 1997 SCMR 1874; Asghar Hussain v. The Election Commission
Pakistan PLD 1968 SC 387; Messrs Al-Iblagh Limited, Lahore v. The Copyright Board,
Karachi and others 1985 SCMR 758 and Messrs Sethi and Sethi Sons through Humayun
Khan v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and others
2012 PTD 1869 rel.
(c) Constitution of Pakistan---
----Preamble, Part VII [Arts.175 to 212] & Part V [Arts. 141 to 159]---Interpretation of the
Constitution---Federal nature of the Constitution---Concept of "Federalism"/"Federal
Principle" generally, and under the Constitution of Pakistan---Federalism/federal principle in
the context of the Judicature---Vertical sharing of jurisdiction between the Supreme Court
and the High Courts---Concept of Judicial federalism with emphasis on its effect on the
territorial jurisdiction of High Courts elucidated.
            The commonly accepted features of a federal constitution are: (i) existence of two
levels of government; a general government for the whole country and two or more regional
governments for different regions within that country; (ii) distribution of competence or
power - legislature, executive, judicial, and financial — between the general and the regional
governments; (iii) supremacy of the constitution — that is, the foregoing arrangements are
not only incorporated in the Constitution but they are also beyond the reach of either
governments to the extent that neither of them can unilaterally change nor breach them; (iv)
dispute resolution mechanism for determining the competence of the two governments for
exercising any power or for performing any function. Federalism is in fact the basis of the
division of powers...The principle of Federalism is a central organizational theme of the
Constitution and represents a political and legal response to underlying social and political
realities... A federal system of government allows different provinces to pursue specific
policies tailored to the particular concerns and interests of residents in that province. The
Principle of Federalism also enables provinces to enact specific statues to pursue specific
collective goals, and may promote different cultures and linguistic minorities within a
specific province or areas. At the same time federalism allows citizens to construct and
achieve goals on a national scale through a Federal Government acting within the limits of its
jurisdiction. Consequently, federalism is key to enable citizens to participate in different
collectivities and to pursue objectives at local, provincial and national levels.
            Federalism or Federal Principle under Constitution of Pakistan envisages independent
federating units with autonomous legislature, executive and judiciary. Chapter 1 of Part V of
the Constitution provides for distribution of legislative power between the Federation and the
Provinces. Chapter 2 of the same Part deals with distribution of executive power between the
Federation and the Provinces. Chapters 1 to 3 of Part-VII deal with Judicature and the vertical
sharing of jurisdiction between the Supreme Court of Pakistan and the High Courts, as well
as, the horizontal jurisdictional limits between the High Courts. The Constitution provides a
separate High Court for each Province and a Supreme Court of Pakistan with an overarching
jurisdiction with an overlapping power with the High Court under Article 184(3) of the
Constitution. The provincial jurisdictional limits, delineating judicial power between co-
ordinate High Courts on the basis of territory and the vertical overlap of judicial power under
Article 184(3) between the High Court and the Supreme Court of Pakistan is judicial
federalism. Every Provincial High Court and the High Court of the Islamabad Capital
Territory has its own jurisdictional space. Any order passed by a High Court is, therefore,
effective in the Province and has merely a non-binding persuasive value in other Provinces.
Province is a federating unit and has its own legislature, executive and judiciary. Similarly,
within the Province, the provincial High Court also functions on the same Federal Principle
and exercises judicial power within the limited provincial jurisdictional space or within the
Islamabad Capital Territory.
            The Oxford Handbook of Indian Constitution edited by Sujit Choudhry Madhav
Khosla and Pratap Bhanu Mehta, Oxford University Press 2016 Federal Scheme- Chapter 25
and Guy Regimbald and Dwight Newman- The Law of the Canadian Constitution (Lexis
Nexis) p.97-98 rel.
(d) Forum non conveniens, doctrine of---
----Principle, concept and scope---Principle of forum non conveniens was a discretionary
power, which allowed Courts to dismiss a case where another court or forum was much better
suited to hear the same---Such dismissal did not prevent a plaintiff from re-filing his or her
case in a more appropriate forum and said doctrine also allowed a Court with jurisdiction
over a case to dismiss the same on ground that convenience of the parties and interest of
justice would be better served if said case was brought in a court having proper jurisdiction at
another venue---Doctrine of forum non conveniens i.e. that some other forum was more
appropriate in the sense that the same was more suitable for the ends of justice---Court may
decline to exercise jurisdiction, after giving consideration to the interests of the parties and
the requirements of justice, on ground that a case could be suitably tried only in another
court---Basic principle was that a court was satisfied that there was some other available
forum, having competent jurisdiction, which was the appropriate forum for the trial of the
action (meaning such a forum in which the case may be tried more suitably for the interests
of all the parties and the ends of justice).
            https://www.law.cornell.edu/wex/forum_non_conveniens; https://www.merriam-
webster.com/legal/forum%20non%20conveniens; Dicey and Morris on The Conflict of Laws,
thirteenth Edition, Volumel, London Sweet and Maxwell 2000 and The Conflict of Laws,
Seventh Edition, South Asian Edition 2010 rel.
(e) Constitution of Pakistan---
----Arts. 199, 184(3) & 27---Constitutional jurisdiction of High Court---Civil Service---
Safeguard against discrimination in services---Federal Principle of the Constitution---
Exercise of Constitutional jurisdiction by High Court under Art.199 of the Constitution,
where relief sought would affect other Provinces---Application of the doctrine of "forum non
conveniens" in the exercise of the Constitutional jurisdiction of High Court---Scope---
Petitioner challenged the Constitutionality of geographical allocation of quota amongst
Provinces in the national Competitive Examination of the Central Superior Services ("CSS"),
inter alia, on the ground that the same violated Art.27 of the Constitution---Validity---High
Court under its Constitutional jurisdiction enjoyed power to sit in judgment over quota
allocated to Punjab, and its power under Art.199 of the Constitution was "subject to the
Constitution" and would remain subject to the Federal Principle of the Constitution---In the
present case, quota in question was inter-linked and combined with the quotas of other
Provinces and any interference by the High Court would affect national allocation of quota in
other Provinces and areas---Relief, in such respect, could not be granted to a person in Punjab
without depriving the allocation of quota of the people of other Provinces, therefore, such a
relief or writ issued by High Court would amount to travelling beyond the territorial limits of
the Province and would offend the federal principle and the core value of the Constitution---
Application of the principle of 'forum non conveniens" meant that the present case could only
be resolved by the Supreme Court---His Lordship observed that if the quota was struck down
by High Court, it would not only abolish the Punjab quota but also the quota of other
Provinces for the purposes of CSS Examination and such interference would be
Constitutionally inappropriate and impermissible---High Court while declining to exercise its
Constitutional jurisdiction, left the parties to approach the Supreme Court of Pakistan for the
redressal of their grievance---Constitutional petition was dismissed, in circumstances.
            Ahmad Yar Chohan v. Federal Public Service Commission and 2 others 1998 MLD
1832; Mushtaq Ahmad Mohal and others v. The Honourable Lahore High Court, Lahore and
others 1997 SCMR 1043; Messrs Sethi and Sethi Sons through Humayun Khan v. Federation
of Pakistan through Secretary, Ministry of Finance, Islamabad and others 2012 PTD 1869;
K.B. Threads (Pvt.) Limited through Chief Executive and others v. Zila Nazim, Lahore (Amir
Mehmood) and others PLD 2004 Lah. 376 and High Court Bar Association and others v.
Government of Balochistan through Secretary, Home and Tribal Affairs Department and 6
others PLD 2013 Bal. 75 ref.
            Kh. Isaam Bin Harris and Khalid Ishaq for Petitioner (in W.P. No.28579 of 2016).
Mushtaq Ahmad Mohal and Afrasiab Mohal for Petitioner (in connected writ petition).
            Respondents by:
            Nasar Ahmad, Deputy Attorney General for Pakistan.
            Ms. Hina Hafeezullah Ishaq, Assistant Attorney General for Pakistan.
            Anwar Hussain, Additional Advocate General Punjab.
            Amanullah Kanrani, Advocate General Balochistan.
            Syed Ali Raza, Advocate General, Azad Jammu and Kashmir.
            Malik Akhtar Hussain Awan, AAG, Azad Jammu and Kashmir.
            Rafey Altaf and Saad Rasool amici curiae.
            Assisted by
Qaisar Abbas and Mohsin Mumtaz, Civil Judges/Research Officers, Lahore High Court
Research Centre (LHCRC).
            Date of hearing: 13th June, 2017.
JUDGMENT
            SYED MANSOOR ALI SHAH, C.J.---This judgment will decide the
maintainability of the instant petition, as well as, connected Writ Petition No.23578/2016.
2.         Petitioner has challenged the constitutionality of the geographical allocation of quotas
amongst Provinces and other Areas in the national Competitive Examination of the Central
Superior Services (CSS) 2015. Learned counsel for the petitioner submits that allocation of
quota to various Provinces and Areas is in violation of Article 27 of the Constitution of
Islamic Republic of Pakistan, 1973. It is submitted that the period envisaged in the proviso to
Article 27(1) i.e., forty years from the commencing day, has long expired and, therefore, the
geographical quotas allocated for CSS-2015 by the Federal Public Service Commission
(FPSC) vide Press Note dated 13.04.2016 are unconstitutional and illegal.
3.         At the very outset, M/s Nasar Ahmed, DAG, Anwaar Hussain, Additional Advocate
General, Amanullah Kanrani, Advocate General, Balochistan, Syed Ali Raza, Advocate
General, AJK and Malik Akhtar Hussain Awan, Assistant Advocate General, KPK raised a
preliminary objection regarding the maintainability of the titled petition. They submitted that
any interference by this Court would amount to issuing a writ outside the territorial limits of
the Court, in as much as, it will affect the rights and privileges (quota) of people belonging to
other Provinces and Areas, which is not permissible under Article 199 of the Constitution.
They also oppose the main case on merits but that need not be gone into at this stage.
4.         Messrs Kh. Isaam Bin Haris and Mushtaq Ahmad Mohal Advocates, appearing on
behalf of the petitioners submitted that the impugned Press Note has been issued by the
Federal Government and there are numerous instances when notifications issued by the
Federation and even the federal laws are challenged before this Court and often struck down.
Therefore, this Court can also examine the impugned Press Note, which is no different. They
placed reliance on Ahmad Yar Chohan v. Federal Public Service Commission and 2 others
(1998 MLD 1832) and Mushtaq Ahmad Mohal and others v. The Honourable Lahore High
Court, Lahore and others (1997 SCMR 1043) in support of their contentions.
5.         Considering the gravity of the constitutional question, notices were issued to the
Advocates General of other provinces to solicit their viewpoint. Amanullah Kanrani, AG,
Balochistan Syed Ali Raza, Advocate General, AJK and Malik Akhtar Hussain Awan,
Assistant Advocate General, KPK have tendered appearance and submitted that it would be
constitutionally appropriate if the matter is taken up by the august Supreme Court of
Pakistan. They submitted that this Court cannot issue a writ affecting the rights or quotas of
the people or residents of another Province.
            Mr. Rafey Altaf, Advocate/amicus curiae submits that this Court has jurisdiction to
entertain the matter. He submits that in terms of Article 199(2) of the Constitution this Court
cannot shy away from enforcing the Constitution. He placed reliance on Messrs Sethi and
Sethi Sons through Humayun Khan v. Federation of Pakistan through Secretary, Ministry of
Finance, Islamabad and others (2012 PTD 1869), K.B. Threads (Pvt.) Limited through Chief
Executive and others v. Zila Nazim, Lahore (Amir Mehmood) and others (PLD 2004 Lahore
376) and High Court Bar Association and others v. Government of Balochistan through
Secretary, Home and Tribal Affairs Department and 6 others (PLD 2013 Balochistan 75).
7.         Mr. Saad Rasool, Advocate/amicus curiae submits that this Court has no jurisdiction
to entertain this matter as it amounts to transgressing its territorial jurisdiction. He submits
that any interference by this Court would take away quota allocated to other Provinces, which
is not within the jurisdiction of this Court and can best be dealt with by the august Supreme
Court of Pakistan.
8.         I have heard the learned counsel for the parties and the learned amici curiae. The case
law cited at the bar and the relevant provisions of the Constitution have been examined.
Preliminary objection regarding maintainability of this petition raises an important
constitutional question i.e., Whether the High Court while granting relief to people within its
own territorial jurisdiction can simultaneously affect the rights and privileges enjoyed by
people in other Provinces? Whether, in such a unique situation, issuance of a writ by this
Court is impermissible (hence not maintainable) or inappropriate?
9.         The impugned Press Note issued by FPSC is as under:-
FEDERAL PUBLIC SERVICE COMMISSION
Aga Khan Road, Sector F-5/1
*****
Islamabad, the 13th April, 2016
PRESS NOTE
Subject:           COMPETITIVE EXAMINATIONS (CSS) 2015 – NUMBER OF
VACANCIES ALLOCATED TO VARIOUS OCCUPATIONAL GROUPS/SERVICES
IN ACCORDANCE WITH THE LAID DOWN MERIT/PROVINCIAL/REGIONAL
WOMEN AND MINORITIES QUOTAS.
No.F-2/20/2-15-CE. In pursuance of Rule 15 of the Rules of Competitive Examination
(CSS), 2015 bearing No.F.2/1/2015-CE, dated 27.08.214, it is announced for general
information that the Competitive Examination (CSS) 2015 in accordance with Government
policy on Merit/Provincial/Regional/Women and Minorities quotas, are as follows:--
QUOTA   Fresh Carried Total Vacancies
vacancies over
vacancies
Merit 7.5% All PAAS-2, Nil 18
Pakistan PCS=1
Merit CTG-2,
PAS=3.
FSP=2,
IRS=2,
OMG=2,
PSP=2,
POSTG=1,
RCTG=1
Punjab Open PAAS=11, PAAS=2. 103+3=106
50% merit CTG=8, OMG=1
PCS=8,
PAS=16,
FSP=10,
IRS-15,
IG-4,
MLCG-1,
OMG-7,
 PSP=12,
POSTG-4,
RCTD=5
  Women PAAS=1, Nil 12
CTG=1,
PCS=1,
PAS=1,
FSP=1,
IRS=1,
IG=1,
OMG=1,
PSP=2,
POSTG=1
  Minorities PAAS=1, PAAS=1, 6+18=24
PAS=1, PCS=1,
IRS-1, FSP=1,
IG=1, IRS=5,
OMG=1, MLCG=1,
PSP=1 OMG=6,
PSP=1,
POSTG-6,
PSP=1,
POSTG-1,
RCTG=1
Sindh(R) Open PAAS=2, PCS=1, 24+2=26
11.4% Merit CTG=2, OMG=1
PCS=1,
PAS=4,
FSP=2,
IRS=4,
IG=2,
MLCG=1,
PSP=3,
POSTG=2,
RCTG=1
  Women PAAS=1, PAAS=1, 3+11=14
PCS=1 OMG=6,
OMG=1 PSTG=3,
RCTG=1
Minorities IRS=1 PAAS=1, 1+3=4
OMG=2
Sindh (U) Open PAAS=2, OMG=9, 15=12=27
7.6% Merit CTG=1, PAAS=1,
 PCS=1, POSTG=2
PAS=2,
FSP=1,
IRS=2,
OMG=2,
PSP=2,
POSTG=1,
RCTG=1
  Women PAS=1, IG=2, 2+6=08
FSP=1 OMG=1,
POSTG=3
  Minorities PCS=1 IRS=1, 1+3=04
OMG=1,
PSP=1
K.P.K. Open PAAS=2, Nil 23
11.5% Merit CTG=2,
PCS=1,
PAS=4,
FSP=3,
IRS=3,
IG=1,
OMG=2,
PSP=3,
POSTG=1,
RCTG=1
  Women CTG=1, PSTG=3, 3+4=07
PCS=1, RCTG=1
PSP=1
  Minorities IRS=1 PAAS=1, 1+6=07
PAS=1,
FSP=1,
IRS=1,
OMG=1,
PSP=1
Balochistan Open PAAS=1, IRS=1, 13+3=16
6% merit CTG=1, OMG=1,
PCS=1, POSTG=1
PAS=2,
FSP=1,
IRS=2.
OMG=1,
IG=1,
MLCG=1,
 PSP=1,
POSTG=1
  Women PSP=1 IRS=1, 1+6=07
IG=1,
OMG=2,
POSTG=1
  Minorities PAAS=1 PAS=1, 1+3=04
IRS=1,
OMG=1
GBFATA Open PAAS=1, IRS=1, 9+5=14
4% Merit CTG=1, OMG=3,
PCS=1, POSTG=1
PAS=1,
FSP=1,
IRS=2,
OMG=1,
PSP=1
Women POSTG=1 IRS=1, 1+2=03
IG=1
Minorities Nil IRS=1, 02
OMG=1,
AJK 2% Open PAAS=1, Nil 04
Merit CTG=1,
PAS=1,
RCTG=1
Women FSP=1 OMG=1 1+1=02
Minorities Nil IRS=1 0+1=01
 
                                            Total vacancies for open merit quota= 234
                                    Total vacancies for Women quota= 53
                                    Total vacancies for Minorities quota= 46
                                    Total vacancies of all quotas      = 333
2. Distribution of fresh vacancies has been made keeping in view previous balance share of
the last year's allocated seats of Competitive Examination. The carries over vacancies have
been added in the respective Occupational Groups/Services of concerned
Provincial/Regional, Women and Minorities quotas.
3. Allocation of candidates to the Occupational Groups/Services, will be made keeping in
view their merit position and suitability or unsuitability as determined by the Commission,
preference of the candidates and domicile to qualify for Merit/Provincial/
Regional/Women/Minorities quotas as set out in the Rules for Competitive Examination
(CSS), 2015.
4. The Government however, reserves for right to fill a smaller or a larger or number of
vacancies than those indicated in para.1 above.
(Ramiz Ahmad)
Director Genera
            The above Press Note allocates quota to four Provinces, Gilgit Baltistan, FATA and
AJK for the purposes of CSS Examination-2015. It is important to underline that the Press
Note lays down a national quota allocation scheme. This allocation cannot be read in
isolation for Punjab. 50% quota allocated to Punjab is not separable and cannot be sliced
away without affecting the ratios allocated to other Provinces and Areas. The countrywide
quota system envisaged in the Press Note is inter-linked and together constitutes a total of
100%. This is a unique case, where any intervention by this Court would upset the
equilibrium of national quota system structured for CSS-Examination 2015 and affect the
rights and privileges of the people of other Provinces, having smaller quotas.
10.       What is the jurisdiction of the High Court under Article 199? Article 175 states that
there shall be a High Court for each Province and no court shall have any jurisdiction save as
is or may be conferred on it by the Constitution or by or under any law. The jurisdiction
conferred on the High Court under Article 199 of the Constitution of Islamic Republic of
Pakistan, 1973 is as under:-
199. Jurisdiction of High Court.---(1) Subject to the Constitution, a High Court may, if it is
satisfied that no other adequate remedy is provided by law,--
(a)        on the application of any aggrieved party, make an order---
(i)         directing a person performing, within the territorial jurisdiction of the Court,
functions in connection with the affairs of the Federation, a Province or a local authority, to
refrain from doing anything he is not permitted by law to do, or to do anything he is required
by law to do; or
(ii)        declaring that any act done or proceeding taken within the territorial jurisdiction of
the Court by a person performing functions in connection with the affairs of the Federation, a
Province or a local authority has been done or taken without lawful authority and is of no
legal effect; or
(b)        on the application of any person, make an order—
(i)         directing that a person in custody within the territorial jurisdiction of the Court be
brought before it so that the Court may satisfy itself that he is not being held in custody
without lawful authority or in an unlawful manner; or
(ii)        requiring a person within the territorial jurisdiction of the Court holding or purporting
to hold a public office to show under what authority of law he claims to hold that office; or
(c)        on the application of any aggrieved person, make an order giving such directions to
any person or authority, including any Government exercising any power or performing any
function in, or in relation to, any territory within the jurisdiction of that Court as may be
appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of
Part II. (emphasis supplied)
Article 201 provides that any decision of a High Court to the extent it decides a question of
law or is based upon or enunciates a principle of law shall be binding on all courts
subordinate to it. Similarly, Article 202 provides that the High Court may make rules
regulating the practice and procedure of any court subordinate to it. While Article 203
provides that High Court shall supervise and control all courts subordinate to it.
11.       Constitutional terms like "High Court for each Province" "within the territorial
jurisdiction of the Court" and "all courts subordinate to it" construct a High Court, which has
a provincial character. The term "within the territorial jurisdiction of the Court" ubiquitously
recurs throughout Article 199 emphasizing the territorial limitation on the jurisdiction of a
High Court. The term "All courts subordinate to it" repeated in Articles 201, 202 and 203
place the Provincial High Court atop a provincial pyramidical hierarchy of courts.
Constitutional architecture of a Provincial High Court provides that while it enjoys judicial
power to examine all laws or actions of the federal, provincial and local governments or
authorities, it can only do so if the cause of action arises or the respondent government or
authority is located or if the impugned act or order affects a person within the territorial
jurisdiction of this Court i.e., within the Province. As a corollary, the relief granted or the writ
issued by the High Court also remains within the territorial jurisdiction of this Court and can
only benefit or affect a person within the territorial jurisdiction of the Court. The relief cannot
go beyond the Provincial boundary and affect any other Province or Area or its people. So for
example, if a federal law or federal notification is struck down by Lahore High Court, it is
struck down for the Province of Punjab or in other words the federal law or the federal
notification is no more applicable to the Province of Punjab but otherwise remains valid for
all the other Provinces or Areas. Unless of course the Federation or the federal authority
complying with the judgment of the Lahore High Court, make necessary amends or withdraw
the law or the notification. Which of course would then be open to challenge by the other
Provinces or Areas or their people, if they so decide. The other eventuality is that the
Federation or the federal authority may or may not enforce the said law or notification in
other Provinces, as a matter of administrative decision and instead challenge the judgment of
the Lahore High Court before the apex Court of the country. These are the operational
repercussions and effects of a judgment, setting aside a federal law or federal notification or
decision. However, on a purely constitutional and legal plane, the federal law or federal
notification remains in existence for the rest of the country but for the Province of Punjab.
This is further fortified by the fact that in case the same federal law or federal notification is
challenged in any other Province or Area, the High Court concerned is not bound by the
decision of the Lahore High Court and can declare the same federal law or federal
notification to be valid law (Reference Article 201 of the Constitution). Therefore, under our
Constitution, while our High Courts can judicially examine and strike down a federal law or
federal notification, in fact, the said federal law or notification is made non-applicable to the
extent of the Province unless the matter is finally decided by the Supreme Court of Pakistan
or else if the Federation or the federal authority decide to withdraw or amend the law on their
own, in compliance of the judgment.
12.       What does "Within the territorial jurisdiction of this Court" mean? Relying on our
constitutional jurisprudence developed over the years and the provincial constitutional
architecture of a High Court, writ cannot be issued by High Court against any person which is
located geographically outside the territorial limits of the Province, having no physical or
legal presence within the Province. See: Sandalbar Enterprises (Pvt.) Ltd. v. Central Board of
Revenue and others (PLD 1997 SC 334), Flying Kraft Paper Mills (Pvt.) Ltd., Charsadda v.
Central Board of Revenue, Islamabad and 2 others (1997 SCMR 1874), Asghar Hussain v.
The Election Commission Pakistan (PLD 1968 SC 387), Messrs Al-Iblagh Limited, Lahore v.
The Copyright Board, Karachi and others (1985 SCMR 758) and Messrs Sethi and Sethi Sons
through Humayun Khan v. Federation of Pakistan through Secretary, Ministry of Finance,
Islamabad and others (2012 PTD 1869).
13.       It is trite law that if the order or action of the Government or Authority (federal or
provincial), present within the Province, affect the rights of a person within the Province, writ
can be issued against the said Government or Authority (irrespective of its federal character)
and relief given to the aggrieved person located within the Province.
14.       The impugned Press Note dated 13.04.2016 does this and more, as it provides for
quota for all the Provinces. Granting the prayer of the petitioner and striking down the Press
Note would grant relief to the people of Punjab but simultaneously upset quotas belonging to
the people of other Provinces and Areas. This would amount to issuing a writ beyond the
territorial limits of the Court. A Provincial High Court can only grant relief to people of the
Province and cannot meddle into the affairs of the other Provinces or affect the rights and
privileges of the people of the other Provinces or Areas. 50% quota allocated to the Province
of Punjab under the impugned Press Note is not inseparable from the quotas allocated to the
other Provinces, hence striking down the Press Note will deprive the quota allocated to all the
other Provinces and Areas. Any such writ issued by this Court would also amount to
transgressing the territorial limits of the Province. So while technically, for the sake of
argument, writ can be issued and relief can be granted to the people of Punjab by abolishing
their quota, it would also, at the same time, have the effect of abolishing the quota of other
Provinces and Areas. This unique situation begs the question; whether issuance of a writ as
prayed for in this case, is constitutionally impermissible or inappropriate?
15.       In order to answer the above question, let's revisit the federalist structure of our
Constitution. "The commonly accepted features of a federal constitution are: (i) existence of
two levels of government; a general government for the whole country and two or more
regional governments for different regions within that country; (ii) distribution of competence
or power - legislature, executive, judicial, and financial — between the general and the
regional governments; (iii) supremacy of the constitution — that is, the foregoing
arrangements are not only incorporated in the constitution but they are also beyond the reach
of either governments to the extent that neither of them can unilaterally change nor breach
them; (iv) dispute resolution mechanism for determining the competence of the two
governments for exercising any power or for performing any function. Federalism is in fact
the basis of the division of powers...The principle of Federalism is a central organizational
theme of the constitution and represents a political and legal response to underlying social
and political realities... A federal system of government allows different provinces to pursue
specific policies tailored to the particular concerns and interests of residents in that province.
The Principle of Federalism also enables provinces to enact specific statues to pursue specific
collective goals, and may promote different cultures and linguistic minorities within a
specific province or areas. At the same time federalism allows citizens to construct and
achieve goals on a national scale through a Federal Government acting within the limits of its
jurisdiction. Consequently, federalism is key to enable citizens to participate in different
collectivities and to pursue objectives at local, provincial and national levels.
16.       Federalism or Federal Principle under our Constitution envisages independent
federating units with autonomous legislature, executive and judiciary. Chapter 1 of Part V of
the Constitution provides for distribution of legislative power between the Federation and the
Provinces. Chapter 2 of the same Part deals with distribution of executive power between the
Federation and the Provinces. Chapters 1 to 3 of Part-VII deal with Judicature and the vertical
sharing of jurisdiction between the Supreme Court of Pakistan and the High Courts, as well
as, the horizontal jurisdictional limits between the High Courts. The Constitution provides a
separate High Court for each Province and a Supreme Court of Pakistan with an overarching
jurisdiction with an overlapping power with the High Court under Article 184(3) of the
Constitution. The provincial jurisdictional limits, delineating judicial power between co-
ordinate High Courts on the basis of territory and the vertical overlap of judicial power under
Article 184(3) between the High Court and the Supreme Court of Pakistan is judicial
federalism. Every Provincial High Court and the High Court of the Islamabad Capital
Territory has its own jurisdictional space. Any order passed by a High Court is, therefore,
effective in the Province and has merely a non-binding persuasive value in other Provinces.
Province is a federating unit and has its own legislature, executive and judiciary. Similarly,
within the Province, the provincial High Court also functions on the same Federal Principle
and exercises judicial power within the limited provincial jurisdictional space or within the
Islamabad Capital Territory.
17.       This Court while it enjoys the power to sit in judgment over the quota allocated to
Punjab, the power under Article 199 of the Constitution is "subject to the Constitution" and
will remain subject to the federal principle discussed above. In the present case the quota in
question is inter-linked and combined with the quotas of the other Provinces and any
interference by this Court will affect national allocation of quota in other Provinces and
Areas. As relief cannot be granted to a person in Punjab without depriving the allocation of
quota of the people of other Provinces, such a relief or writ issued by this Court will amount
to travelling beyond the territorial limits of the Province and offend the federal principle and
the core value of the Constitution.
18.       It is also important to bear in mind, that theoretically, any other Provincial High Court
can easily protect its own provincial quota by protecting the impugned Press Note or
declaring it to be intra vires the Constitution. As other High Courts are not bound by the
decision of the Lahore High Court, the possibility of multiple decisions or interpretations of
the same federal law or federal notification cannot be ruled out, leaving behind the FPSC in
total chaos, which could only be settled by the Supreme Court of Pakistan. Therefore, in a
matter, where enforcement of a decision of a High Court is not possible, is it proper to
exercise jurisdiction?
19.       Another dimension of the case is the principle of forum non conveniens which is a
discretionary power that allows courts to dismiss a case where another court, or forum, is
much better suited to hear the case. This dismissal does not prevent a plaintiff from refiling
his or her case in the more appropriate forum: The doctrine allows a court with jurisdiction
over a case to dismiss it because the convenience of the parties and the interest of justice
would be better served if the case were brought in a court having proper jurisdiction in
another venue. "The doctrine of forum non conveniens, i.e., that some other forum is more
"appropriate" in the sense of more suitable for the ends of justice, was developed by the
Scottish courts in the nineteenth century, and was adopted (with some modifications) in the
United States. The Scots rule is that the court may decline to exercise jurisdiction, after
giving consideration to the interests of the parties and the requirements of justice, on the
ground that the case cannot be suitably tried in the Scottish court nor full justice be done
there, but only in another court. The basic principle is that.... the court is satisfied that there is
some other available forum, having competent jurisdiction, which is the appropriate forum
for the trial of the action, i.e. in which the case may be tried more suitably for the interests of
all the parties and the ends of justice. Applying this principle to the facts of the present case,
the matter in hand, can best be resolved at the Supreme Court of Pakistan.
20.       Considering the principles discussed above, if impugned Press Note dated 13.04.2016,
for the sake of argument, is struck down by this Court it will not only abolish the Punjab
quota but also the quota of other Provinces for the purposes of CSS Examination. I am,
therefore, of the considered view that interference by this Court would be constitutionally
inappropriate and impermissible. Therefore, for the multiple reasons narrated above, I decline
to exercise jurisdiction in this matter and leave the parties to approach the august Supreme
Court of Pakistan for the redressal of their grievance, if so advised.
21.       This petition is, therefore, dismissed.
KMZ/H-9/L                                                                                         Petition dismissed.