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Petitioner: Hussain Bashir & others VS Respondent: Government of Khyber Pakhtunkhwa through JUDGMENT
Court Name: Peshawar High Court Judge(s): Ijaz Anwar, Wiqar Ahmad Title:Hussain Bashir & others vs Government of Khyber Pakhtunkhwa through
JUDGMENT
Reported As: 2023 PHC 191 Result: Order Accordingly Judgment JUDGMENT WIQAR AHMAD. J. Through this single judgment, we intend to dispose of instant petition (Writ Petition No.4699-P/2022, titled, "Hussain Bashir and others Vs Government of Khyber Pakhtunkhwa etc") alongwith connected Writ Petition No.170-P/2023 titled, "Parvez Khan & others Vs Government of Khyber Pakhtunkhwa and others", Writ Petition No.230-P/2023, titled, "Shabbir Ahmad and others Versus Chief Secretary, Government of Khyber Pakhtunkhwa and others" and Writ Petition No.1089-P/2023, titled "Saddam and others Vs Government of Khyber Pakhtunkhwa and others". In all these petitions, respective petitioners have prayed for similar relief of their regularization as civil servant of province of Khyber Pakhtunkhwa, under The Khyber Pakhtunkhwa Employees of Transport Department (Regularization of Services) Act 2022 (hereinafter referred to as Regularization Act) as well as under provisions of the Khyber Pakhtunkhwa Employees of Transport Department (Regularization of Services) (Amendment) Act, 2022 herein after to be referred as the amending Act. It is case of petitioners that Section 4 of Regularization Act provides for regularization of services of employees of Peshawar Bus Terminal (hereinafter referred to as PBT) appointed on contract/fixed pay therefore, refusal of respondents in regularizing petitioners as employees of said directorate, have been illegal and same may be declared as such. With this grievance, petitioners have prayed, (for reference sake prayer of one of the petitions i.e Writ Petition No.4699-P/2022 is being reproduced):- "that this Hon'ble Court may graciously be pleased to: 1. Declare that petitioners have been duly regularized in the light of The Khyber Pakhtunkhwa Employees of
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Transport Department (regularization of services) Act 2022 and the inaction of the respondents to issue their appointment order is illegal, arbitrary and unlawful. 2. Direct the respondents to issue appointment orders to the petitioners in accordance with The Khyber Pakhtunkhwa Employees of Transport Department (regularization of services) Act 2022. 3. Direct the respondents to release the salaries of the petitioners which has been withheld since 01.06.2022. 4. Direct the respondents to treat the petitioner in accordance with law. 5. Any other better relief deemed just and equitable in the circumstances of the case may be kindly granted. 2. Respondents were put on notices who have filed their comments. In their comments they mainly asserted that both the Regularization Act and the amending Act have been introduced in the house by a private member and therefore its introduction in the house as well as conversion of the bills into statutes were in derogation of Article 115 of Constitution of Islamic Republic of Pakistan 1973 (hereinafter referred to as Constitution). They also contended that petitioners have never been appointed against posts of civil servants by any of the competent authorities in the Provincial Government but they had rather been appointed by Road Transport Board Khyber Pakhtunkhwa (hereinafter referred to as RTB) as contract and fixed pay employees of PBT, which as per their comments was an autonomous body established under Section 70 of the Motor Vehicle Ordinance 1965(hereinafter referred to as MVO 1965) and its employees could neither be treated nor regularized as civil servants. 3. Learned counsel for petitioners submitted during course of arguments that petitioners had been regularized under the Regularization Act and that under mandate of Legislature, the executive authorities were bound to issue their regularization orders but instead of regularizing petitioners, they have been placed in limbo as they were neither being paid by RTB nor was the Provincial Government owning them as their employees. Learned counsel also contended that law favours upholding constitutionality of validity of enactments and in case where two opinions with regard to Constitutionality of an enactment are possible the one in favour of validity of enactment is to be adopted. If vires of same law are challenged the burden always lies upon person making such challenge to show that same law is in violation of fundamental rights or provisions of Constitution, according to learned counsel. He placed reliance in this respect on the judgment of Hon'ble Supreme Court of Pakistan rendered in the case of "Messrs Sui Southern Gas Company Ltd. and others Vs Federation of Pakistan and others" reported as (2018 SCMR 802). He also placed reliance on judgment of Lahore High Court rendered in case of "Flying Cement Co. Ltd and others VS Government of Pakistan through Secretary Ministry of Water and Power and others" reported as PLD 2015 Lahore 146 and contended that it had been held by the Hon'ble Lahore High Court that Provincial Assembly was fully competent to legislate on the matter and there was no case of incompetence of legislature. He also contended that vires of law have not been questioned by any person, therefore same could not be struck down and grounds raised in comments could not be considered. He also added that since vires of statute in question have not been challenged by any aggrieved person and this Court is having no suo moto jurisdiction for deciding upon vires of the statute. For bolstering his submission the learned counsel placed reliance on judgment of Hon'ble Supreme Court of Pakistan given case of "Dr. Imran Khattak Vs Sofia Waqar Khattak" reported as (2014 SCMR 122). 4. Learned Advocate General on the other hand directly raised question as to validity of the very Regularization Act as well as the amending Act. He stated that both the bills in case in hand had been introduced by a private member of Provincial Assembly, without Provincial Government being on board; which bills have therefore been passed in violation of Article 115 of the Constitution. He also contended that services of these employees have never been needed to Provincial
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Government for any public service delivery. Learned Advocate General added that services of these employees were not even needed to RTB, which autonomous body was having its domain of regulating affairs of Peshawar Bus Terminal (PBT) but same had also been out sourced in 3rd annual meeting of RTB held on 1st September 2022. He added that despite the outsourcing, huge fleet of employees in various basic pay scales ranging from BPS-3 to BPS-18 had been recruited for unknown tasks. He added that if services of such employees were regularized then huge recurrent budget would be required for their salaries and other expenditures, which would therefore create a charge on Provincial Consolidated Fund. He also contended that such a bill could not have been introduced by a private member in Provincial Assembly. 5. We heard learned counsel for petitioners and learned Advocate General on behalf of respondents. 6. Perusal of record reveals that the case brought before this Court by petitioners and defence put by Provincial Government in its comments as well as the issues raised by learned Advocate General at bar, have directly confronted us with the following questions:- 1. Whether the Regularization Act and the amending Act have validly been enacted and same should be treated a valid laws, enforceable through issuance of writ under Article 199 of the Constitution? 2. Whether Regularization Act as well as subsequent amendment could be reconciled with the mandate of Articles 240 to 242 of the Constitution? 3. Whether petitioners have validly been appointed and they had been holding any post in civil service of the Province and whether their services could be treated regularized under the Regularization Act? 4. If questions framed above are answered in affirmative then can this Court hold and declare both the statutes to be invalid and ultra-vires in instant proceedings or it should be read down? Discussion Question No.1. Bills for enactment of both the laws have admittedly been introduced by a private member of Provincial Assembly and not by Provincial Government. As per "Messrs Mustafa Impex, Karachi and others Vs Government of Pakistan through secretary Finance, Islamabad & others, reported as PLD 2016 SC 808 Federal Government means Federal Cabinet. Article 90 of the Constitution of Islamic Republic of Pakistan 1973, which defines Federal Government is pari materia with Article 129 of the Constitution, which defines Provincial Government. Same is the case with Article 91 (Federal Cabinet) and Article 130 (Provincial Cabinet). Both of same articles have been couched in similar languages. On the ratio of "Messrs Mustafa Impex case supra we can safely conclude that wherever a power is provided to be exercised by Provincial Government under constitution, same could only be exercised after it is authorized by the Provincial Cabinet. The bill prior to its introduction has neither been placed before cabinet nor approved by it for being tabled in the Provincial Assembly. Under Rule 8 sub rule (1)(a) of Rules of Business 1985, a bill approved by Cabinet is supposed to be introduced in the legislative house by Minister Incharge of the Department. It is an admitted fact that neither the bills had been placed before, nor approved by Provincial Cabinet before introduction in the house. There is also no doubt about the fact that the bills were carrying provisions of regularization of 616 (554+62) employees of PBT under service of Directorate of Transport & Mass Transit Department besides some other employees of another project i.e, TIS employees and same would therefore result in addition of a charge on Provincial Consolidated Fund. Article 115 of the Constitution of Islamic Republic of Pakistan 1973 provides that a money bill, or a Bill or amendment which if enacted and brought into operation would involve expenditure from Provincial Consolidated Fund or withdrawal from the Public Account of the province shall not be introduced or moved in the Provincial Assembly except by or with the consent of Provincial Government. The Provincial Government has neither introduced said bill nor has given consent for its introduction at any stage. Provincial Government has totally
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been out of picture till date. After passing of bill, same had been sent to the Executive for implementation and their refusal has resulted in filing of instant Constitution petition. 7. So far as a money bill or Bill or amendment having financial implications for Provincial Government are concerned, same have expressly been provided to be first approved by Provincial Government for its introduction and then with further approval of Provincial legislature, such bills may be passed and necessary expenditures may be authorized. Here the constitution has been aiming to provide a mechanism for authorization of spending from Provincial Consolidated Fund except charged expenditures. In this regard provisions made in Articles 118, 119 and most importantly Article 120 of the Constitution may also be considered. Provincial Consolidated Fund and Public Accounts of province have been provided for under Article 118 of the Constitution while Article 119 of Constitution have been dealing with custody of Provincial Consolidated Fund and Public Accounts of the province. Article 120 of the Constitution has given mandate of preparing and presenting annual provincial budget to the Provincial Government while Article 121 of Constitution have been providing for expenditures charged upon Provincial Consolidated Fund. Article 122 of the Constitution has provided that expenditures charged upon Provincial Consolidated Fund may be discussed but would not be submitted to vote of Provincial Assembly while other expenditures would be submitted to Provincial Assembly in the form of demands for grants and that assembly would have power to assent to, or to refuse to assent to such demands or to accept it subject to reduction. Sub Article 3 of Article 122 of the Constitution is again of utmost importance where it categorically prohibited Provincial Assembly not to entertain any demand for a grant unless same is recommended by the Provincial Government. Similar provisions have also been placed in case of Federal Government and Federal Consolidated fund under Articles 70 to 85 of the Constitution. 8. We also find in the above explained scheme of financial authorization, a concept of separation of powers between executive and legislative organs of state. Custody of Provincial Consolidated Fund no doubt lies with Provincial Assembly but the whole provincial assembly cannot assume to itself, the role of introducing money bills. Framers of Constitution have consciously put Article 115 of the Constitution with a clear purpose and object. It is for the executive branch of government to initially submit proposals for creating charge on provincial consolidated fund and same can only be deemed created when these proposals are approved by Provincial Assembly. Executive branch of state cannot assume the role of provincial legislature, on the other hand. The provincial assembly may supervise but cannot mould itself into the role of Provincial Executive, There is no ambiguity in the constitutional mechanism provided in this regard. 9. Coming back to the bills in hand, we see that same were having the effects of incurring financial expenditures and creating visible charge on Provincial kitty and same could not have been introduced in the provincial assembly without assent of Provincial Government i.e, the cabinet. This Court while giving its judgment in case of "Frontier Mines Owner Association Vs Khyber Pakhtunkhwa through Chief Government of Khyber Pakhtunkhwa and others (Writ Petition No.1769-P/2017) had declared Khyber Pakhtunkhwa Minerals Sector Governance Act,2016 as ultra- vires for the sole reason that introduction of bill had not been authorized by the Provincial cabinet. Similarly in case of "Messrs Mustafa Im ex Karachi and others Vs Government of Pakistan through secretary Finance, Islamabad & others, reported as PLD 2016 SC 808, Hon'ble Supreme Court of Pakistan had also declared the fiscal notifications enhancing the levy of tax issued by the Secretary, Revenue Division or Minister as ultra vires mainly for reasons that same had not been authorized by Federal Cabinet before its enforcement. There remains no doubt that Regularization Act as well as the amending Act had not been validly enacted and same cannot be held to be valid laws. Discussion on Question No.2. Articles 240 had been put in place for providing Constitutional framework for establishing and regulating service of Pakistan (Federal and Provincial service)
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Article 240 is also reproduced herein for ready reference:- 240. Subject to the Constitution, the appointments to and the conditions of service of persons in the service of Pakistan shall be determined; a. In case of services of the Federation, posts in connection with the affairs of the Federation and All Pakistan Services, by or under Act of Majlis-e-Shoora (Parliament); and b. In the case of the services of a province and posts in connection with the affairs of a province, by or under Act of the Provincial Assembly. Article 242 have also relevance in the instant matter which is also reproduced herein:- 242. (1) Majlis-e-Shoora (Parliament) in relation to the affairs of the Federation and the Provincial Assembly of a province in relation to the affairs of Federation shall be appointed by the President on the advice of the Prime Minister. IA. The Chairman of the Public Service Commission constituted in relation to the affairs of the Federation shall be appointed by the President on the advice of the Prime Minister. 1A. The Chairman of the Public Service Commission constituted in relation to affairs of a Province shall be appointed by the Governor on advice of the Chief Minister. 2. A public service commission shall perform such functions as may be prescribed by law." Article 240 of the Constitution has provided that subject to Constitution appointments to and conditions of service of persons in service of Pakistan would be determined in case of service of Federation or post in connection with affairs of Federation, by or under Act of parliament; and in case of services of a province, post in connection with affairs of province by or under Act of the Provincial Assembly. 10. Here it is important to be noted that for enactment of a law dealing with appointments and regulating terms & conditions of service, there have to be existing posts. In case of the present petitioners it is averred in the comments of respondents that schedule of new expenditure has neither been submitted before Provincial Government (provincial cabinet) for consideration nor approved in the prescribed manner. So these posts, upon which petitioners are seeking appointment, did not exist in regular financial budget of province. Without existence or creation of posts in Directorate of Transport & Mass Transit Khyber Pakhtunkhwa, all these petitioners have been provided to be deemed as regularly appointed in said directorate under Section 4 of the Regularization Act. Then under the amendment Act it has further been provided that they would be deemed to have been appointed in the particular scales, i.e. BPS-18, BPS-17, BPS-16 and other lower scales, as civil servants on the given posts, on commencement of the Act. Through a proviso it has also been provided that those employees in RTB (who had been appointed under the Act) would be employees of Directorate of Transport and Mass Transit, Khyber Pakhtunkhwa and were declared as civil servants in the pay scales given therein. 11. It has been clarified in our discussions made in earlier part of this judgment that for creation of new regular budgetary posts demands for relevant grants has to be first approved by Provincial Cabinet and then recommended to the Provincial Assembly for approval under sub Article 3 of Article 120 of the Constitution. Article 115 of the Constitution also prohibits introducing or moving of a money bill or amendment which if enacted and brought into operation would involve expenditure from Provincial Consolidated Fund or withdrawal from Public Accounts of the Province except by or with the consent of Provincial Government. Same mandatory requirements have not been found fulfilling in case in hand therefore Regularization Act as well as the amending Act, have not been found validly introduced in the house. Same cannot be treated valid laws being passed in contravention of Article 115 of the Constitution. Article 240 states that "subject to Constitution" the appointment to and the conditions of service of persons in the service of Pakistan shall be determined in the case of services of a Province by or under Act of the Provincial Assembly therefore if an act is not passed according to constitution, it cannot be held valid for purpose of
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appointment to and regulating conditions of persons in the service of province. The regularization Act as well as the amending Act are not found in accordance with Article 115 of the Constitution and therefore same cannot be given effect. The posts had neither been existing in service of province nor created in accordance with Article 120 (3) of Constitution and therefore the regularization of petitioners could not be lawfully made on non-existing posts through private member bills. So the enactments are also not made in accordance with Article 240 of the Constitution. Question No.2 is accordingly resolved. Discussion on Question No.3. Petitioners have been appointed as employees of Peshawar Bus Terminal by Regional Transport Board in various posts on temporary and contract basis where most of employees have been appointed on 15.04.2022 and 20.04.2022. Few of employees had also been appointed in the year 2021. Applications have not been invited from public by making advertisement in any newspaper. The appointment orders do not mention any recommendations being made by any selection committee established for the purpose. Infact no selection committee has been constituted and no fair process of selection had been conducted. Learned Advocate General was not having any record of these appointments. Simple Computer prints or proforma appointment orders (shown signed by a Director) had been handed over to petitioners for their appointments at Peshawar Bus Terminal. Copies of minutes of 3rd Annual meeting of Road Transport Board (RTB) has also been brought on record alongwith CM No.59-P/2023. Said CM is also containing a number of other orders being issued in month of April and May 2022. Besides, minute of 3rd meeting of Transport Board held on 1st September 2022 reveals that the board while being headed by Shah Muhammad Wazir, then Minister Transport & Mass Transit, Khyber Pakhtunkhwa (then Chairman Road Transport Board) had allowed auction and awarded contracts for regulating affairs of Peshawar Bus Terminal to Mr. Shah Nawaz and company (private contractors). Similarly shops and canteens for Peshawar Bus Terminal have also been outsourced. So-much-so that cleanliness services and photocopiers shops etc have also been leased out but interestingly in same minutes of meeting of RTB, plea of regularization has been pressed in service again, where employees recruited in Peshawar Bus Terminal were also aimed to be assigned job of going for road checking and earning money for Road Transport Board. Even it is not clear that for what statutory function they would be deputed in Provincial Government on the desire of RTB in the whole province and on what account they would collect money from public at large and transporters. This could not be explained by learned counsel for petitioners that for what services these employees have been recruited and what duties would they perform. The manner in which they have been recruited by a public office holder, i.e the then Director of Road Transport Directorate is also begging for an inquiry but no such inquiry or action has been initiated either by Anti Corruption Establishment or the department itself, despite the fact that various authorities of Provincial Government have raised substantial questions in respect thereto; as is evident from comments and summary annexed therewith. 12. Coming back to the question for determination it is important to note that all petitioners had been appointed as employees of Peshawar Bus Terminal by the RTB, which cannot be deemed to be Provincial Government or a department of Provincial Government. It is in fact an autonomous body established under Section 70 of the Motor Vehicle Ordinance 1965. It is Road Transport Board which had given approval to hire 60 and 550 daily wages workers on need basis in its meetings held on 0109.2021 and 18.01.2022; in pursuance to which petitioners have been appointed in surreptitious manner, as discussed earlier. None of petitioners have been appointed on any sanctioned post reflected in regular budget of Government of Khyber Pakhtunkhwa. So-much-- so that schedule of new expenditures has not even been proposed to any forum, for creation of these posts under Government of Khyber Pakhtunkhwa till date. Posts under Government or its establishment should only be created in the interest of public i.e. People of the Province and posts
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cannot be created for mere benefit or giving employment to certain blue eyed persons of a Minister or similar other persons. Whatever may be the circumstances the fact remained that no sanctioned post had been existing where petitioners could be employed as government employees or civil servants. Their appointments had also not been made for any job of a civil service under Provincial Government, rather they had just been appointed as contract employees of Peshawar Bus Terminal. The Regularization Act also aimed at regularization of other employees earlier hired in the Directorate of Transport & Mass Transit Khyber Pakhtunkhwa, which employees have been categorized a TIS employees. None of "TIS" employees have brought any petition before this Court and petitioners before us are those employees who had been recruited in Peshawar Bus Terminal by RTB. Learned AAG stated at the bar that since the law had not been validly enacted, therefore, employees of TIS have also not been regularized under the Act and that their matter shall be dealt with by the government separately. So far their employment is concerned, we do not want to comment on their status any further because same may prejudice their case or interest if and when their case comes before Court. We at the moment leave their matter with the government and restrict our discussion to the extent of Constitutional…
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