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Petitioner: Muhammad Afzal & others VS Respondent: The Secretary Establishment Division JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Mushir Alam, Amin-Ud-Din Khan, Qazi Muhammad Amin Ahmed Title:Muhammad Afzal & others vs The Secretary Establishment Division
JUDGMENT
Reported As: PLJ 2021 SC 463, 2021 SCP 316, 2021 SCMR 1569 Result: Application disposed of Judgment JUDGMENT MUSHIR ALAM, J. Through this common judgment, this Court shall dispose of the above title cases in the following manner . 2. There are a number of groups of cases, in which appellants/petitioners have impugned the appointments/promotions under the Sack ed Employees (Reinstatement) Ordinance Act, 2010, (hereinafter referred as to 'Act of 2010') . Those groups can be divided into two categories, i.e. (i) those employees who were the regular employees of the organizations/departments, whose seniority has been affected by the employees inducted under the Act of 2010; and (ii) those persons who have not been extended the benefit of the Act of 2010. 3. First group of cases pertains to the Intelligence Bureau (IB), in which there are two categories of cases. The first category of employees who filed Civil Appeals No.491, 540-546, 580/12, Civil Petitions No.1567/15, 588-K, 589- K/18 and Civil Appeals No.1921-1923/19 are the regular employees of the IB appointed in regular course through due process and are civil servants, whose seniority has been affected by the Respondents, who have been inducted in IB in 1996 and 1997, were dispensed with service and were reinstated/restored in service and have been given benefit of one step above promotion under the provisions of the Act of 2010. The second category of
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the employees of IB, who have filed Civil Appeals No. 536-539/12, C.P. 3612/15, and are the employees, who have not been extended the benefit of the Act of 2010. Leave has been granted in these cases vide order dated 18.05.2012 in Civil Appeals No.491, 540-546, 580/12 in the following terms: "After hearing learned counsel for the petitioner , leave to appeal is granted, inter alia, to consider as to whether section 4 of the Sacked Employees (Reinstatement) Act, 2010 is ultra vires and repugnant to Article 48 and 25 of the Constitution of Islamic Republic pf Pakistan and as to whether without prejudice to the case the learned High Court had the jurisdiction to grant leave on the point noted above, in view of the bar under Article 212 of the Constitution" Leave has also been granted in Civil Appeals No.1921- 1923/19 vide order dated 20.1 1.2019 in the following terms: "Learned counsel for the petitioners contends that the petitioners were reinstate d in service under the Sacked Employees (Reinstatement) Act, 2010. He contends that petitioners were emplo yed as Sub-Inspector (BPS-14) and that pursuant to Section 4 of the said Act, they were required to be re-instated one scale higher than the post on which they were terminated. He contends that the Tribunal in the impugned judgment has omitted to consider this very aspect of the matter . 2. The submission made by the learned counsel for the petitioners requires consideration. Leave to appeal is granted to consider , inter alia, the same. As connected cases i.e. C.A. No.491 of 2012 etc are already fixed before this Court on 25.1 1.2019, the appeals arising from these petitions be also fixed on the said date." 4. Second group of cases pertains to the Commissioner Afghan Refugee, Khyber Pakhtunkhwa. In this group of cases, there are two categories of cases. The first category of employees who filed Civil Appeals No.43/13, Civil Petitions No.150,151/13 and Civil Petition No.677-P/14 are the former employees who have not been extended the benefit of the 2010 Act or the organization/department is not extending the benefits under the provisions of the Act of 2010 to such employees, whereas Civil Appeal No.101/16 have been filed by the Commissioner Afghan Refugee KPK challenging the order of the learned High Court, whereby the petitioners/appellants were directed to reinstate the respondents enforcing earlier decision of the learned High Court dated 22.11.201 1 under the provisions of the Act of 2010. Leave has been granted in C.A. No.101/16 on 21.01.2016 on the basis of leave granting order dated 18.05.2012 in C.A.491/12, whereas in C.A. No.43/2013 on 02.01.2013 in the following terms: "By the impugned order of the learned Peshawar High Court, Abbottabad Bench, the petitioner have been directed to reinstate the respondents into service , pursuant to Section 4 of the Sacked Employees (Re-instatement) Act, 2010 (Act No.XXII of 2010). 2. In C.P. No.718 of 2012, in the case of Muhammad Afzal & others v. Secreta ry Establishment Division, Islamabad & others through order dated 18.05.2012, this Court has already granted leave to appeal, inter alia, to consider as to whether Section 4 of the Sacked Employees (Re-instatement) Act, 2010, is ultra vires and repugnant to Article 25 and 48 of the Constitution of Islamic Republic of Pakistan and as to whether without prejudice to the case the learned High Court had the jurisdiction to grant leave on the point noted herein above, in view of the bar contained in Article 212 of the Constitution. 3. This matter also give rise to similar question, as noted in the order dated 18.05.2012, passed in C.P. No.718 of 2012, with addition that vires of the Act may also be considered on the threshold of Article 3 of the Constitution of Islamic Republic of Pakistan, 1973 , and thus leave to appeal is granted." [emphasis provided] 5. Third group of cases belongs to the regular employees of National Highway Authority whose seniority has been affected by allowing benefits under the provisions of the Act of 2010 vide impugned judgment of the learned High Court and they have filed Civil Appeal No.452/13, whereas in Civil Appeal No.453/13, Civil Appeal No.65-K/13 and Criminal Petitions No.138 to 140/14 (arising out of contempt proceedings before the learned High Court) have been filed by the certain employees, wherein benefits under the Act of 2010 have not been extended to the appellants/petitioners or the department is not willing to extend the same. Leave was granted mainly vide order dated 23.04.2013 in the following terms: "Rai Muhammad Nawaz Kharal learned ASC for the petitioner in CPLA No.1978/2012 has brought to our notice a certificate of the learned AOR attached at the bottom of the petition which reads as under: Certificate:
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i. That this is the first CPLA on behalf of Petitioners against impugned Judgment dated 24.10.2012 passed in CP No.D-214/201 1 by Sindh High Court, Karachi. ii. That the Respondents No.5 to 293 have filed a separate CPLA No.1949 of 2012 against the impugned judgment dtd. 24.10.2012 passed in CP No.D-214/201 1. iii. That on the same question of law this Apex Court was very much pleased to grant leave to Appeal vide Order dated 18.05.2012 passed in CPLA No.71 8/2012 and in CP 890/893/980/983/987 and 989 of 2012 regarding the same question of law . iv. That CPLA No.1949/2012 is also against the said impugned Judgment dtd. 24.10.2012 passed in CP No.D- 214/201 1. 2. In view of the above, leave to appeal is granted in this petition as well as other connected Civil Petition No.1949/12. Office is directed to fix the appeal arising out of this petition along with appeal arising out of other connected petition as detailed in paragraph-iii of the certificate." 6. Fourth group of cases belongs to the employees of M/s Pakistan Telecommunication Company Ltd, who have not been extended certain benefits under the provisions of the Act of 2010 or the organization does not want to extend the benefits to such employees and as such they have filed Civil Appeals No.1081, 1084/201 1, 432/13, 4-K and 5-K/2017. Leave was granted in these cases based on main order dated 03.1 1.201 1 in the following terms: "Counsel for the petitioner states that the learned Division Bench of the High Court of Sindh at Karachi has held that the services of the respondent employees were not governed under the statutory rules, thus a petition under Article 199 of the Constitution was not maintainable despite proceeded to grant relief to the respondents by holding that when the right is claimed in terms of the previsions contained in the Sacked Employees (Re-instatement) Act, 2010 and a right prayed to be enforced, is sought under statute, the petition was held maintainable thus there is contradiction in the impugned judgment. 2. In view of the above submission, this petition is allowed and converted into appeal which shall be heard on the basis of available paper books, subject to option to the parties to file additional documents." 7. Civil Appeal No.1151/2012 has been filed by the Overseas Pakistani Foundation Islamabad, assailing the judgment of the learned High Court of Sindh whereby they were directed to extend the benefit of the Act of 2010 to the respondents. Leave was granted in this case on the basis of earlier order dated 08.05.201 1 passed in CP 718/2012, which has been reproduced above. 8. Civil Review Petitions No. 231 to 236 and 256/2016 in Civil Petitions No.405 to 411/2016 have been filed by the State Life Insurance Corporation of Pakistan, seeking review of the judgment of this Court dated 05.05.2016, whereby the judgment of the learned High Court in favour of the respondents was maintained through which the respondents were extended certain benefits under the provisions of the Act of 2010. Civil Appeals No.1026 & 1027/2013 have also been filed by the State Life Insurance Corporation of Pakistan, wherein leave was granted vide order dated 13.09.2013 in the following terms: "In order to consider the question, when the respondents services have been terminated by the competent authority on account of the poor performance and such termination order , when challenged by the respondents, has been upheld by this Court; whether on the promulgation of the Sacked Employees (Reinstatement) Act No.XXII of 2010, the respondents were entitled to the reinstatement; whether the responde nts ipso jure were entitled to the reinstatement notwithstanding the judgments/verdicts passed against them, leave is granted. In the meantime, operation of the impugned judgment is suspended." 9. Civil Appeals No.637 to 651/2015, 518, 519/2018 and Civil Petition No.842/2015 have been filed by the Civil Aviation Authority , assailing the judgment passed by learned High Court of Sindh, whereby Writ Petition filed by the Respondents, seeking reinstatement and regularization of service under the provisions of the Act of 2010, was allowed vide judgment dated 02.03.2015. Leave was granted vide order dated 17.06.2015 in the following terms: "Leave is granted, inter alia, to consider the following: 1. Whether Act No.XXII of 2010 titled Sacked Employees (Reinstatement) Act, 2010 ("Act") is a valid piece of legislation being violative of law laid down by this august Court in cases reported as PLD 2010 SC 265 and PLD
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2012 SC 923 ? 2. Whether Sacked Employees (Reinstatement) Act, 2010 can be legally extended to cover and apply to the kind of employees like the Respondent No.1, i.e. daily wagers? 3. Whether the terms of engagement and the nature of duties performed by the Respondent No.1 can be legally considered as falling within the definition of a "sacked employee" under section 2(f) of the Act? 4. Whether employment of the responden t No.1 on daily wage basis for a term of 89 days and upon expiry of which a fresh and successive term of employment after a gap of one or two days may be legally regarded as a continuous term of employment by the Respondent No.1 with the Petitioner? 5. Whether the definition of "sacked employee" contained in section 2(f)(i) requires a continuous terms of employment or simply appointment to have been between 1st November 1993 till 30th November , 1996 and departure between 1st November , 1996 till 12th October , 1999?" 10. Civil Appeal No.660/2015 has been filed by WAPDA, challenging the order of the learned High Court of Sindh dated 10.12.2014 allowing the petition of the respondent No.2 for his reinstatement under the provisions of the Act of 2010. Leave was granted in this case vide order dated 06.07.2015 in line with the leave granting order dated 17.06.2015 passed in Civil Appeals No.637 to 651/2015, reproduced above. 11. Civil Appeal No.1106/2015 and Civil Petition No.3366/2015 have been filed by the former employees of the Sui Southern Gas Company Limited, who are seeking certain benefits under the provisions of the Act of 2010 and settlement agreement dated 07.07.2003, which benefits, according to the appellants/petitioners, are not being extended to them. Leave was granted on 26.10.2015 in the following terms: "It is submitted that the petitioners were the employees of Sui Southern Gas Company Limited (company) since 1995 and their services were terminated in 1999. They challenged the termination order before the learned Federal Service Tribunal (as at the relevant time Section 2A of the Service Tribunals Act, 1973 was in vogue) and their appeals were accepted on account of which they were reinstated vide order dated 13.04.2001. The respondent- company did not challenge such order which had attained finality . Be that as it may, a settlement was arrived at between the petitioners and the Company on 07.07.2003 on account of which besides the reinstatement having been made per the order of the learned Tribunal certain other terms and conditions regarding seniority and further promotion were also settled. Subsequently , the Sacked Employees (Reinstatement) Act, 2010 (the Act) was enforced and according to the provisions of Section 16, the petitioners were entitled to certain back benefits which were denied to them compelling the petitioners to invoke the constitutional jurisdiction of the learned High Court. Moreover , the terms and conditions of the settlement were also not adhered to by the respondent and this also was a part of the cause of action for the petitioners. The learned High Court throug h the impugned judgment has dismissed the petition holding it to be not maintainable; that the petitioners are not entitled to the benefit of the provisions of Section 16 of the Act; that they have approached the court with inordinate delay and thus are hit by laches; and that contractual obligations cannot be enforced through invocation of the constitutional jurisdiction of the court in terms of Article 199 of the Constitution. It is argued that the provisions of Section 16 of the Act are clear and do not permit any doubt that all the sacked employees defined in Section 2(f) are entitled to reinstatement benefits notwithstanding that they have been reinstated under the order of the court. The only condition is that they must fall within the purview of the law quoted above. it is also argued that since the respondent is an autonomous body , therefore, even the breach of a contractual obligation could be enforced against it as per the law down in the judgment reported as Pakistan Defence Officer 's Housing Authority vs. Javaid Ahmed (2013 SCMR 1707 ). Moreover , as there is recurring cause of action, consequently the rule of laches would not be attracted. Leave is granted to consider the above." 12. In Civil Petition No.19-P/2016, the respondents (Education Department) had not reinstated the Petitioner but did reinstate his colleagues under the provisions of the Khyber Pakhtunkhwa Sacked Employees (Reinstatement) Act, 2012. Learned Peshawar High Court vide judgment dated 29.10.2015 has dismissed the petition of the petitioner . Hence the petitioner filed this petition for leave to appeal. However , vide our order 28.11.2019, we had de-clubbed certain cases (i.e. Civil Appeals No.1448/2016, 1483/2019, Civil Petitions No.288-P ,372-P/2016, 43-P to 45-P/2018, 416- P,517-P/2017, 491-P ,568-P ,633-P ,634-P/2018, 6-P,118- P/2019, 439-P , 485-P/2017, 147-P ,541-
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P and 704-P/2019 and 2122/2018) relating to the Khyber Pakhtunkhwa Sacked Employees (Re-instatement) Act, 2012 but inadvertently this case could not be separated. Accordingly , office is directed to de-club this case from the titled cases and fix the same separately . 13. Civil Appeal No.1098/18 has been filed Chairman, Trading Corporation of Pakistan (Pvt) Ltd, Karachi, challenging the impugned short order dated 25.05.18, passed by learned Islamabad High Court, allowing certain benefits to respondent No.1 under the provisions of the Act of 2010. However , the petitioner claims that they do not fall within the purview of the Act of 2010. Leave was granted in this case vide order dated 18.09.2018 in the following terms: "The point raised and noted in the order dated 29.08.2018 needs further consideration in the light of the law laid down by this Court in the judgment reported as WAPDA and 2 others vs. Mian Ghulam Bari (PLD 1991 SC 780). Leave is therefore, granted in this case to thoroughly consider the same." 14. W e have heard the learned counsel for the Petitioners and Respondents as well as perused the record. Issue 1: THE SCOPE OF THE NON-OBST ANTE CLAUSE: 15. The vires of he Sacked Employees (Re instatement) Act 2010 has been challenged before us. Prior to addressing the merits of the case, we will first address the issue of the non-obstan te clause present within the Act of 2010. 16. The Act of 2010 also mentions a non obstante clause under S.4 as: "Notwithstanding contained in any law, for the time being in force , or any judgment of any tribunal or any court including the Supreme Court and a High Court or any terms and conditions of appointment on appointment basis or otherwise , all sacked employees shall be re-instated in service and their services shall be regularized with effect from the date of enactment of this Act." 17. The first issue that requires examination is what would be the effect of a non-ob stante clause when this Court is examining the vires of a statute. Given that the constitutionality of The Act of 2010 has been challenged, the precise proposition that requires consideration is whether a non-obstante clause can override the provisions of the Constitution itself. 18. Article 240 of the Constitution is prefaced by the phrase 'subject to the constitution' that serves as a clear indicator that the drafters intended the Parliament and/or Provincial Assemblies to be subservient to it. This Court, in the case of Contempt Proceedings Against Chief Secretary , Sindh and Others , has held that: "Article 4(1) provides that all citizens are entitled to enjoy equal protection of law and have inalienable right to be treated in accordance with law. In this respect the Act of 1973 framed under the command of Articles 240 and 242 of the Constitution provides protection to all the Civil servants by assuring them that the law promulgated by the Parliament and/or Provincial Assemblies will be subject to the Constitution. The phrase "subject to the Constitution" has been used as prefex to Article 240 which imports that Assemblies cannot legislate law against service structure provided in Part XII of Chapter 1 of the Constitution." 19. Furthermore, the legislation derives its power to legislate on matters pertaining to employees in service of Pakistan by virtue of the Constitution. It has been observed by this Court in the case of Fazlul Quader Chowdhry v. Muhammad Abdul Haque that the Constitution is at the pinnacle of legislative hierarchy compared to any other law and that each and every body acting under it must, in exercise of delegated authority , be subservient to the instru ment by which the delegation is made. 20. The Constitutional framework under Article 240 and Article 242 clearly envisions that any appointments in the service of Pakistan shall be done so under the Act of Parliament for the Federation and under the Act of Provincial Assemblies in the case of services of a province. Pursuant to Article 240 of the Constitution, the Parliament enacted The Civil Servants Act, 1973, which was adopted by all Provinces with minor modifications. Article 240 of the Constitution is further supplemented by Article 242, which envisioned the creation of a Public Service Commission that is intended to be the supervisory body to oversee recruitments for the Province and the Federation. Any act of Parliament that attempts to evade the constitutional manda te and extend undue favor to a1 2
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specific class of citizens could constitute a clear violation of the constitutional rights of the Civil Servants enumerated in Articles 4, 9, 25 as well as Articles 240 and 242 of the Constitution. 21. Therefore, given the fact that the legislature itself is subservient to the Constitution, a non-obstante clause cannot be deemed to override the provisions of the Constitution itself. 22. Interestingly , the non-obstante clause also excludes the application of the judgments of this Court or any High Court. The effect of the non-obstante clause, is, in essence, to nullify a judgment of this Court. However , it is a settled position in law that a legislature cannot destroy , annul, set aside, vacate, reverse, modify , or impair a final judgment of a Court of competent jurisdiction as most recently been upheld by the decision of this Court in Contempt Proceedings Against Chief Secretary , Sindh and others : "With respect to legislative interference with a judgment, a distinction has been made between public and private rights under which distinction a statute may be valid even though it renders ineffective a judgment concerning a public right. Even after a public right has been established by the judgment of the court, it may be annulled by subsequent legislation." 166. This Court in the case of Fecto Belarus Tractor Ltd. v. Government of Pakistan through Finance Economic Affairs and others (PLD 2005 SC 605) has held that when a legislature intends to validate the tax declared by a Court to be illegally collected under an individual law, the cause for ineffectiveness or invalidity must be removed before the validation can be said to have taken place effectively . It will not be sufficient merely to pronounce in the statute by means of a non-obstante clause that the decision of the Court shall not bind the authorities, because that will amount to reversing a judicial decision rendered in exercise of the judicial power which is not within the domain of the legislature. It is therefore necessary that the conditio ns on which the decision of the Court intended to be avoided is based, must be altered so fundamentally , that the decision would not any longer be applicable to the altered circumstances... 167. In order to nullify the judgment of the Court, unless basis for judgment in favour of a party is not removed, it could not affect the rights of a party in whose favour the same was passed. The issue of effect of nullification of judgment has already been discussed in the case of Mobashir Hassan reported in (PLD 2010 SC 265), Para-76 discusses the effect of nullification of a judgment by means of a legislation. In the said case, the view formed is identical to the one in the case of Indira Nehru Gandhi v. Raj Narain (AIR 1975 SC 2299) and Fecto Belarus Tractor Ltd. v. Government of Pakistan through Finance Economic Affairs and others (PLD 2005 SC 605) and it was observed that legislature cannot nullify the effect of the judgment and there are certain limitations placed on its powers including the one i.e. by amending the law with retrospective effect on the basis of which the order or judgment has been passed thereby removing basis of the decision... 168. In the case in hand the Provincial Assembly has validated/regularized the absorptions and out of turn promotions by the Ordinance of 2011, Act XVII of 2011 and Act XXIV of 2013 without providing mechanism by which the absorptions and out of turn promotions with backdated seniority were given to the employees. The judgments on the issue of absorption were clear and in fact through impugned instruments, the Assembly validated the absorptions/out of turn promotions without noticing that while granting conces sions to few blue eyed persons, rights of all the civil servants guaranteed under the Constitution and Civil Servant Act were impaired. In fact the impugned instruments are in the nature of legislative judgment as they purport to take away jurisdiction of the Superior Courts to abridge the writ and legality of the provisions by which Sindh Government has conferred undue favours on a select group of undeserving persons by way of deputation, posting, absorption out of turn promotions, ante-date seniority and re-hiring, hence they are violative of Article 175 of the Constitution. It goes without saying that a repugnancy to the Constitution declared by this Court or a High Court cannot be validated or condoned by a legislature unless the Constitution is itself amended." 23. Therefore, the non-obstante clause has failed…
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