ISLAMABAD - The Supreme Court of Pakistan on Friday declared that Article 25 of the Constitution guarantees the equal protection of law, not the equal protection of lawlessness, by declaring that all citizens are equal before law and are entitled to equal protection of law.
A three-member bench of the apex court headed by Justice Syed Mansoor Ali Shah and comprising Justice Jamal Khan Mandokhail and Justice Ayesha A Malik held that on the appeals of two employees of the Pakistan Post.
The appellants, Muhammad Yasin and Mehboob Khan, were working in Pakistan Post Office Department as Clerk and Postmaster, respectively. They applied to the departmental authority for permission to appear in the departmental competitive exam for appointment to the posts of Assistant Superintendent, which was declined to them on the ground that they were above 45 years of age and as such were not eligible for appointment to the said post under the relevant rules.
The petitioners challenged that before the Federal Service Tribunal, which was dismissed. Therefore they filed an appeal against the Tribunal.
The judgment said that an unlawful act cannot be made a standard for enforcing the right to equality guaranteed by the Constitution. “One illegality cannot be allowed to be compounded by applying the right to equality. The extension of the right to equality to the acts done in violation of law would amount to perpetuating previous unlawful acts and motivating the commission of further illegalities.”
It further said Article 25 of the Constitution has no application to a claim based upon other unlawful acts and illegalities. It comes into operation when some persons are granted a benefit in accordance with law but others, similarly placed and in similar circumstances, are denied that benefit.
It added that such other persons cannot be discriminated against to deny the same benefit, in view of their right to equality before law and equal protection of law guaranteed by Article 25 of the Constitution. But where a person gains, or is granted, a benefit illegally, other persons cannot plead, nor can the court accept such a plea, that the same benefit must be allowed to them also in violation of law.
The bench continued that if some other person ineligible for the appointment to the post of Assistant Superintendent, whose case is not before us, had been permitted to appear in an earlier exam for the said post in violation of law (the relevant rules), this fact does not confer any right on the petitioners to claim the similar permission by repeating the violation of law.
It mentioned that as the proverb goes: “Two wrongs don’t make a right”. One wrongdoing cannot be permitted, defended or condoned by citing the example of another wrongdoing. If unlawful acts are allowed or acknowledged on the basis of the right to equality and non-discrimination, it would negate the rule of law mandated by Articles 4 and 5 of the Constitution.
The judgment also said that the one who wants the court to grant him the relief prayed for must base his claim on his own legal right, not on the wrongful gains of others. Any person aspiring for the appointment to a post has to pass the eligibility criteria prescribed in the relevant law for that post and cannot be absolved from fulfilling those criteria on the ground that some other person who was allowed to compete for or appointed to such post also did not meet the prescribed criteria.
The petitioners, thus, cannot dispute the decision of the departmental authority, declining to them the permission sought, on the ground of their right to equal treatment and non-discrimination.