The Constitution of Pakistan, 1973 Developed by Zain Sheikh

Per Muhammad Aqil Mirza, J.

(a) Constitution of Pakistan (1973)–Arts 9 & 199–

The exercising powers under Article 199 of the Constitution, in normal cases, the jurisdiction of this Court is restricted to making an order “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 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”. However, when dealing with Constitutional petitions for the enforcement of fundamental rights, is the case in hand, the jurisdiction of this Court is not controlled by any limitation. The jurisdiction regarding the enforcement of fundamental right finds mention in clause (c) of sub-Article (1) of Article 199 of the Constitution, which is reproduced below:-

“(c) on the application of any aggrieved person, make an order giving such direction 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.”[p. 595, 596]A

Therefore, it is clear that for the purpose of enforcement of any of the fundamental rights guaranteed under the Constitution his Court can give a direction to any person or authority, including any Government within its territorial jurisdiction, which may be deemed proper for securing the fundamental rights or to avoid their violation. The act which is required to be done by the public functionaries by the Court under the above clause may not normally be allowed to be taken by them under law/rules or in normal circumstances they may even be not permitted specifically to perform such act under the existing law or rules. But in pursuance of a direction given by the Court under sub-clause (c) (supra), the person/authority/Government so commanded by the High Court shall be bound to perform the act so that the fundamental rights of citizens are enforced. The reason why unlimited powers have been granted to the High Court for issuing appropriate is that every other laws/rules/instructions have to yield to the fundamental rights enshrined in the Constitution. Any law or any custom or usage having the force of law which is inconsistent with the fundamental rights to the extent of inconsistency is void, as per dictates of Article 8 of the Constitution which reads as follows :-

“8. Laws inconsistent with or in derogation of Fundamental Rights to be void.-(1) Any law or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall to the extent of such inconsistency, be void.

The State shall not make any law, which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void.

The provisions of this Article shall not apply to—

(a) ……………

(b) ……………

(c) ……………

(d) ……………

(e) ……………

The rights conferred by this Chapter shall not be suspended except as expressly provided by the Constitution.”

The position that emerges, therefore, is that to alleviate the miseries of the large number of citizens of Bahawalpur and to secure them their fundamental right guaranteed under Article 9 of he Constitution with regard to protection of their life from diseases and inconvenience, it will be just and proper to issue suitable directions which will ensure the restoration of sewerage system in the city of Bahawalpur. Accordingly the following direction are made:-

(i) The Municipal Corporation will recruit on ad hoc basis or otherwise fifty sewermen/sanitary workers with normal salary and other suitable allowance/honoraria, for the purpose of desilting and cleaning the sewerage in the area of Multan Road, near about the Fawara Chowk and other affected areas in the city, on emergency basis. These persons shall be recruited irrespective of and by passing the general ban imposed by the Government on fresh recruitment in the Province. No one including the audit people will raise objection on the appointments made for the above purpose;

(ii) In addition to above, the Municipal Corporation may also hire water thanks for the purpose of removing dirty water from the sore points in the city so that expeditious relief is made available to the citizens; and

(iii) The uncovered manholes in the city will be properly covered without any delay. The Chief Corporation Officer, with the consent of the Administrator of the Municipal Corporation has given an undertaking that all the manholes shall be covered within the next fortnight. The Administrator of the Municipal Corporation shall pay personal visit in the affected area after every fortnight with a view to check the work of desilting of the sewer lines. The Chief Corporation Officer shall pay their own they must visit more oftenly.[p. 596, 597]B, C

Before parting with the case, it may be stated that the ban imposed by the Government of fresh recruitment is not absolute. The Court can take judicial notice of the appointments which are being made in relaxation of the rules and the ban. It has, therefore, been thought appropriate by me to direct the appointments by ignoring the ban imposed by to Court. Similarly the requirement of public notice through press before making appointments is also to be dispensed with to meet the emergency. It must be stated that financial constraints were not pleaded before me on behalf of the Municipal Corporation regarding the fresh appointments of the sewermen/sanitary workers.

For what has been stated above, the writ petition stands accepted in the above terms. No order as to costs.[p. 598]D