Stereo. H C J D A 38.

Judgment Sheet
IN THE LAHORE HIGH COURT LAHORE
JUDICIAL DEPARTMENT

Case No: W.P. 28579/2016

Hassan Shahjehan Versus FPSC through its Chairman,

etc.
JUDGMENT

Date of hearing 13.06.2017

Petitioner by Kh. Isaam Bin Harris & Khalid Ishaq
Advocates for the petitioner.
M/s Mushtaq Ahmad Mohal and Afrasiab
Mohal, Advocates for the petitioners in
connected writ petition.

Respondents Mr. Nasar Ahmad, Deputy Attorney General

by: for Pakistan.
Ms. Hina Hafeezullah Ishaq, Assistant
Attorney General for Pakistan.
Mr. Anwaar Hussain, Additional Advocate
General, Punjab.
Mr. Amanullah Kanrani, Advocate General,
Baluchistan.
Syed Ali Raza, Advocate General, AJK.
Mr. Malik Akhtar Hussain Awan, AAG, KPK
M/s Rafey Altaf and Saad Rasool,
Advocates/amici curiae.

Assisted By: M/s. Qaisar Abbas and Mohsin Mumtaz,

Civil Judges/Research Officers, Lahore High
Court Research Centre (LHCRC).

Syed Mansoor Ali Shah, CJ:- This judgment will

decide the maintainability of the instant petition, as well as,
connected Writ Petition No.23578/2016.
W.P. No.28579/2016 2

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, Baluchistan, 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. M/s. 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.
W.P. No.28579/2016 3

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, Baluchistan
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.

6. 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).
W.P. No.28579/2016 4

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 EXAMINATION (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.2/20/2015-CE. In pursuance of Rule 15 of the Rules of Competitive

Examination (CSS), 2015 (bearing No.F.2/1/2015-CE, dated 27.08.2014, 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 vacancies Carried over Total
vacancies Vacancies
Merit All PAAS=2, PCS=1 Nil 18
7.5% Pakistan CTG=2, PAS=3,
Merit FSP=2, IRS=2,
OMG=2, PSP=2,
POSTG=1, RCTG=1
Punjab Open PAAS=11, CTG=8, PAAS=2, 103+3=106
50% merit PCS=8, PAS=16, OMG=1
FSP=10, IRS=15, IG=4,
W.P. No.28579/2016 5

MLCG=1, OMG=7,
PSP=12, POSTG=6,
RCTG=5.
Women PAAS=1, CTG=1, Nil 12
PCS=1, PAS=1, FSP=1,
IRS=2, IG=1, OMG=1,
PSP=2, POSTG=1.
Minorities PAAS=1, PAS=1, PAAS=1, PCS=1, 6+18= 24
IRS=1, IG=1, OMG=1, FSP=1, IRS=5,
PSP=1 MLCG=1,
OMG=6, PSP=1,
POSTG=1,
RCTG=1
Sindh Open PAAS=2, CTG=2, PCS=1, OMG=1 24+2= 26
(R) Merit PCS=1, PAS=4, FSP=2,
11.4% IRS=4, IG=2,
MLCG=1, PSP=3,
POSTG=2, RCTG=1
Women PAAS=1, PCS=1, PAAS=1, 3+11= 14
OMG=1 OMG=6,
POSTG=3,
RCTG=1
Minorities IRS=1 PAAS=1, 1+3= 4
OMG=2
Sindh Open PAAS=2, CTG=1, OMG=9, 15=12=27
(U) Merit PCS=1, PAS=2, FSP=1, PAAS=1,
7.6% IRS=2, OMG=2, POSTG=2
PSP=2, POSTG=1,
RCTG=1
Women PAS=1, FSP=1 IG=2, OMG=1, 2+6=08
POSTG=3
Minorities PCS=1 IRS=1, OMG=1, 1+3=04
PSP=1
K.P.K. Open PAAS=2, CTG=2, Nil 23
11.5% Merit PCS=1, PAS=4, FSP=3,
IRS=3, IG=1, OMG=2,
PSP=3, POSTG=1,
RCTG=1
Women CTG=1, PCS=1, PSP=1 PSTG=3, 3+4=07
RCTG=1
Minorities IRS=1 PAAS=1, PAS=1, 1+6= 07
FSP=1, IRS=1,
OMG=1, PSP=1
Balochis Open PAAS=1, CTG=1, IRS=1, OMG=1, 13+3= 16
tan Merit PCS=1, PAS=2, FSP=1, POSTG=1
6% IRS=2, OMG=1, IG=1,
MLCG=1, PSP=1,
POSTG=1
Women PSP=1 IRS=1, IG=1, 1+6=07
OMG=2,
POSTG=1
Minorities PAAS=1 PAS=1, IRS=1, 1+3=04
OMG=1
GBFAT Open PAAS=1, CTG=1, IRS=1, OMG=3, 9+5=14
A Merit PCS=1, PAS=1, FSP=1, POSTG=1
4% IRS=2, OMG=1, PSP=1
Women POSTG=1 IRS=1, IG=1 1+2=03
Minorities NIL IRS=1, OMG=1 02
AJK Open PAAS=1, CTG=1, Nil 04
2% Merit 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 carried 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
W.P. No.28579/2016 6

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 the right to fill a smaller or a larger number
of vacancies than those indicated in para 1 above.
(Ramiz Ahmad)
Director General

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.1 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—

1
Article 175 (1) and (2) of the Constitution.
W.P. No.28579/2016 7

(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
W.P. No.28579/2016 8

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
W.P. No.28579/2016 9

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, 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.

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
W.P. No.28579/2016 10

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
W.P. No.28579/2016 11

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.‖2 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
2
The Oxford Handbook of Indian Constitution. edited by Sujit Choudhry
Madhav Khosla & Pratap Bhanu Mehta. Oxford University Press © 2016
Federal Scheme- Chapter 25.
W.P. No.28579/2016 12

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.3

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,

3
Guy Regimbald & Dwight Newman- The Law of the Canadian
Constitution (Lexis Nexis) p.97-98
W.P. No.28579/2016 13

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?
W.P. No.28579/2016 14

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.4 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.5
―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.‖6
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.‖7 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

4
https://www.law.cornell.edu/wex/forum_non_conveniens
5
https://www.merriam-webster.com/legal/forum%20non%20conveniens
6
Dicey and Morris on The Conflict of Laws, thirteenth Edition, Volume1,
London Sweet & Maxwell 2000.
7
The Conflict of Laws, Seventh Edition, South Asian Edition 2010.
 W.P. No.28579/2016 15

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.

(Syed Mansoor Ali Shah)

Chief Justice
M. Tahir*

APPROVED FOR REPORTING