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Petitioner: Lt. Gen. (Retd.) JAMSHAID GULZAR and another VS Respondent: FEDERATION OF PAKISTAN JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Nasir-ul-Mulk, Anwar Zaheer Jamali, Iqbal Hameed-ur-Rehman Title:Lt. Gen. (Retd.) JAMSHAID GULZAR and another vs FEDERATION OF PAKISTAN
JUDGMENT
Reported As: 2014 SCMR 1504 Result: Appeals dismissed Judgment JUDGMENT ' ANWAR ZAHEER JAMALI, J.---In these three Civil Appeals leave was granted by the Court, vide common order dated 7-2-2007. Which reads as under:-- "The petitioner No,1 was appointed as Chairman of the Federal Public Service Commission on 30-3- 2003, by the President of Islamic Republic of Pakistan, in his discretion, for a period of five years under Article 242(1A) of Constitution of Islamic Republic of Pakistan. The petitioners Nos.2, 3, 4 and 5 were appointed as Members of the Commission for a term of five years on 1-11-2001, 31-1-2002, 6-5- 2002 and 2-12-2002 respectively under section 4 of the Federal Public Service Commission Ordinance No,XLV of 1977. Before the expiry of term of their respective offices, the Federal Public Service Commission (Amendment) Ordinance No,XV of 2005 was promulgated on 27th August, 2005, whereby Section 4 of the Ordinance was amended as follows:- "Amendment of section 4, Ordinance XLV of 1977.---In the Federal Public Service Commission Ordinance, 1977 (XLV of 1977), in section 4, for subsection (1) the following shall be substituted and shall be deemed always to have been so substituted, namely: "(1) a member of the Commission shall hold office for a term of three years from the date on which he enters upon office or till he attains the age of sixty-five years whichever is earlier: ' Provided that a member of the Commission who is a retired Judge of the Supreme Court or a High Court shall hold office for a term of three years within five years from the date of his retirement: ' Provided further that a member of the Commission shall not be eligible for re-appointment. (1A) Notwithstanding anything in any contract, agreement or any instrument containing terms and conditions of the service, a member who, on or after the commencement of the Federal Public
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Service Commission (Amendment) Ordinance, 2005 (XV of 2005), completes his tenure or attains upper age-limit specified in subsection (1) shall on such commencement of forthwith cease to be member as defined in clause (b) of section 2.". (2) The petitioners filed Writ Petition No,2379 of 2005 against the amending Ordinance No,XLV of 1977. A learned Single Judge of the Lahore High Court, Rawalpindi Bench, vide impugned order dated 20-12-2005 (15-12-2005) decided some of the points involved therein, framed as many as four questions of law and referred the case to the learned Chief Justice of the High Court for constituting a larger Bench. The petitioners filed Civil Petition No,105 of 2006 against the order dated 20-12-2005 of the High Court, for grant of leave to appeal. (3) On 22-12-2005, the amending Ordinance was re-promulgated as the Federal Public Service Commission (Second Amendment) Ordinance No,XXV of 2005, on 22-12-2005. Therefore, the petitioners filed another. Writ Petition No,68 of 2006. Both the writ petitions were dismissed by the consolidated impugned judgment dated 6-3-2006, passed by a learned Division Bench of the Lahore High Court, Rawalpindi bench giving rise to the filing of Civil Petitions Nos.302 and 303 of 2006 for grant of leave to appeal, under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973. (4) The learned Counsel for the petitioners made the following submissions, inter alia:-- (i) The appointment of the petitioner No,1 to the office of Chairman of the Commission for a period of five years was made by the President under Article 242(1A) of the Constitution of Islamic Republic of Pakistan in order to ensure the impartiality and independence of the Commission and to strengthen it. Therefore, the holder of constitutional office could not be removed unjustifiably by a sub-constitutional legislation or by an executive fiat. (ii) The re-promulgation of Ordinance, in the absence of laying the first amending Ordinance before the Parliament, was un-Constitutional and violative of the provisions of Article 89 of the Constitution which eroded the supremacy of the Parliament. Reference was made to the cases of The Collector of Customs, Karachi and others v. Messrs' New Electronics (Pvt.) Limited and 59 others (PLD 1994 SC 363), Dr. D. C. Wadhwa and others v. State of Bihar and others (AIR 1987 SC 579) and Begum Zeb-un-Nisa Hamidullah, Editor and Publisher of "The Mirror", Karachi v. Pakistan through the Secretary, Ministry of Interior, Government of Pakistan (PLD 1958 SC 35). (iii) The vested right of completing the tenure of office by the sitting Chairman and Members could not be taken away retrospectively by the promulgation of the Ordinance which undermined the independence and impartiality of the Commission constituted under Article 242 of the Constitution. The provisions of both the Ordinances Nos.XV and XXVI of 2005 thereby removing the petitioners from their offices were violative of Articles 14 and 209 of the Constitution. (iv) Being temporary statutes, on their expiry, the Ordinances of 2005 should be deemed as having never been promulgated. Reference was made to the cases of Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, N.-W.F.P. And another (PLD 1995 SC 66) and Government of Punjab through Secretary, Home Department v. Zia Ullah Khan and 2 others (1992 SCM R 602). (v) The doctrines of legitimate expectation and promissory estoppel were blatantly disregarded by the Government in curtailing the guaranteed tenure of office of the petitioners. The matter of protection of five years term of office of the petitioners was a past and closed transaction." (5) On the other hand, the learned Deputy Attorney-General for Pakistan argued that the petitioners had not impleaded their successors-in-office who had, in the meantime, been appointed. (6) Leave to appeal is granted to the petitioners to consider their above and the other submissions.". 2. In 1st Appeal No,826 of 2007, arising out of C.P.L.A. No,105 of 2006, the appellants have challenged the order dated 15-12-2005 passed by a learned Judge in Chambers of Lahore High Court,
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Rawalpindi Bench, in W. P. No,2379 of 2005, whereby through a detailed order, names of respondents Nos.4 and 5 were ordered to be deleted from the array of respondents and four questions of law were formulated with a request to the honourable Chief Justice, Lahore High Court, Lahore for constitution of a Larger Bench, which request was, however, not acceded to by the Chief Justice, Lahore High Court. 3. In 2nd Civil Appeal No,827 of 2007, arising out of C.P.L.A. No,302 of 2006, the appellants have challenged the judgment dated 6-3-2006, passed by a learned Division Bench of Lahore High Court, Rawalpindi Bench, in W.P. No,68 of 2006, whereby the said writ petition along with W.P. No,2379 of 2005 was dismissed. 4. In 3rd Civil Appeal No,828 of 2007, arising out of C.P.L.A. No,303 of 2006 same appellants have challenged the common judgment dated 6-3-2006, passed by a learned Division Bench of Lahore High Court, Rawalpindi Bench in connected Writ Petition No,2379 of 2005. 5. Briefly stated, the common facts leading to this litigation are that on 2-9-2005 and 17-1-2006 the appellants, who are five in number, filed Writ Petitions Nos.2379 of 2005 and 68 of 2006 respectively before the Lahore 'High Court, Rawalpindi Bench, against the Federation of Pakistan and four others, in order to challenge the vires of Federal Public Service Commission (Amendment) Ordinance 2005 ((Ordinance XV of 2005)), issued by the President of Islamic Republic of Pakistan on 27-8-2005, and the re-promulgated Ordinance XXV of 2005 dated 22-12-2005 to the same effect, whereby their original term of office for five years from the date they entered their respective office, under section 4 of Federal Public Service Commission Ordinance, 1977 (XLV of 1977) was curtailed/reduced to three years. In this context, inter alia, case of the appellants was that it was a mala fide action on the part of the then Prime Minister and the President of Pakistan to oust them from their office prematurely with some ulterior motive. In this background of their case, relief sought in the two petitions was that the Ordinance No,XV of 2005 etc. And their consequent removal thereunder was manifestly void, unconstitutional, based on mala fide and ulterior motives, hence it be declared without lawful authority and of no legal effect. 6. These petitions were strongly resisted by the respondent/Federation of Pakistan. Precisely, it was averred that the amendment/modification in section 4 of the Ordinance XLV of 1977 through the amending Ordinance XV of 2005 etc. Was strictly in conformity with law, therefore, no grievance could be agitated by the appellants to challenge such lawful legislation by the President in exercise of his powers conferred by clause (1) of Article 89 of the Constitution. 7. It will be pertinent to mention here that the Original Ordinance No,XV of 2005 dated 27-8-2005 was followed by three other Ordinances of similar nature being Ordinance XXV of 2005 dated 22- 12-2005, Ordinance V of 2006 dated 21-4-2006, Ordinance XVIII of 2006 dated 3-8-2006 and finally by Act No,V of 2006, to the same effect was passed by the Parliament, which was gazetted on 4-10- 2006. In substance, the language and spirit of all four lapsed Ordinances and the Act relating to requisite amendments in section 4 of the Original Ordinance of 1977 was same, which was the cause of grievance for all the appellants. 8. Learned Advocate Supreme Court for the appellants when confronted with the position on previous dates of hearing that in these appeals, having been filed before coming into force of Act V of 2006, the said Act V of 2006 has not been challenged qua subsequent developments, has submitted three miscellaneous applications C.M.As. Nos.3334, 3335 and 3336 of 2013 for seeking necessary amendments in these appeals in order to also challenge the vires of the Act V of 2006, as, during the pendency of these appeals, it had replaced the earlier Ordinances regardingwhich the appellants have similar reservations. 9. In his submissions, at the outset, learned Advocate Supreme Court for the appellants Mr. Nasir- ud-Din Khan Nayyar, gave brief resume of relevant facts of the case of each of the appellants regarding their service as Chairman and Members of the Federal Service Commission ("the
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Commission") respectively. He further made reference to Article 264 of the Constitution and section 6 of the General Clauses Act 1897, in support of his submissions that valuable rights to continue in the office as Chairman/Members of the Commission for a period of five years have accrued in favour of the appellants in terms of section 4 of the Ordinance XLV of 1977, coupled with the Notifications of their respective appointment in same terms, which could not have been snatched, taken away or withdrawn by the President under the garb of issuing above referred Ordinances, which is nothing but colourful and mala fide exercise of his authority and against the spirit of section 6 of Ordinance XLV of 1977, which provides the only mode through which Chairman or Members of the Commission, who have been appointed for a specified term of five years could be removed. He strongly contended that when a special mechanism for removal of Chairman and Members of Commission is provided under the Ordinance during the terms of office with the object of providing them complete protection of service, no law can be amended or circumvented in the manner so as to make this provision of law redundant, and prejudicial to the interest of serving Chairman/Members of the Commission. Making reference to the language of the earlier Ordinances, referred to above, and the subsequent Act V of 2006 dated 4-10-2006, further submission of the learned Advocate Supreme Court for the appellants was that such amendments under section 4 will have only prospective application on the new incumbents, who will, therefore, henceforth enjoy tenure of three years office, but in the present case this amendment cannot be pressed into service against the appellants with retrospective effect. Moreover, in the subsequently changed circumstances, when some of the appellants have passed away and others have pre- maturely retired before the expiry of their respective term of the office, the appellants their legal heirs are now entitled to be adequately compensated by payment of their salaries and other allowances for the remaining unexpired period of five years, for which they were initially appointed. Learned Advocate Supreme Court also made reference to Articles 184(3) and 187 of the Constitution in support of his arguments that this Court being apex Court has ample powers to mold and grant requisite relief to the aggrieved party irrespective of the technicalities of law, which may cause unnecessary hurdles in the legitimate claim of the appellants, who have been penalized only for their upright stance during the period of their service as Chairman and Members of the Commission respectively. Learned Advocate Supreme Court, however, when confronted with a direct question as regards the powers of legislation vested with the Parliament to enact a law with retrospective effect by clear intendment did not dispute this position. In the end, he placed reliance on the following cases:-- (1) Saeed Ahmad y. The State (PLD 1964 SC 266) (2) Molasses Trading and Export (Pvt.) Ltd. v. Federation of Pakistan (1993 SCM R 1905) (3) Baz Muhammad Kakar v. Federation of Pakistan (PLD 2012 SC 923) (4) L.P. Agarwal v. Union of India (AIR 1992 SC 1872) (5) Bibi Sayeeda v. State of Bihar (AIR 1996 SC 1936) (6) J. S. Yadav v. State of U.P. And another (2011 SCC (6) 407) ' In the case of Saeed Ahmad (supra), with reference to section 6 of the General Clauses Act and its scope, this Court made following useful discussion:-- "There remains only the argument put forward by learned counsel for the appellant that as during the pendency of the appeal before the High Court the Pakistan Penal Code was amended and section 165-B was introduced, the learned Judges of the High Court should have decided the guilt of the accused not on the basis of the law as it stood on the date when he committed the offence, but in accordance with law as it stood when they decided the appeal. ' As to the applicability of a statute which is enacted after the coming into existence of the acts or events, the legal effects which are to be determined, the law is not in any doubt. So far as substantive rights of parties to a litigation are concerned, a law which comes into force either
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during the pendency of the proceedings in a Court or even before the institution of such proceedings, but after the coming into existence of the events, the legal effect of which is to be determined, can have no effect whatsoever on the proceedings except to the extent of the retrospective effect which it may possess expressly or by necessary implication. If a person died before 1948 and he was governed in matters of inheritance by custom, an Act passed in the year 1948 according to which all his property is to descend to his heirs in accordance with Muhammadan Law has obviously no effect whatsoever on the rights of parties even though the litigation began after the new Act came into force. When rights once vest in parties they are not affected by any legislation that has merely prospective effect. This is the position so far as substantive rights are concerned. So far as the procedural provisions are concerned the ordinary rule is the Courts continue to have the jurisdiction which they had at the time when a proceeding was instituted even though that jurisdiction is subsequently taken away, but an interpretation of the new Act may lead to a different result. Not long ago we held that all appeals which were competent under the old Constitution could be filed if the judgment under appeal had been delivered when the previous Constitution was still in force. Even if the appeal was in such a case filed after the coming into force of the new Constitution that would make no difference to the competence of the appeal. It is true that sometimes the jurisdiction of a Court to pass a particular kind of order may be taken away by a new Act so that it can henceforth pass an order of that kind even in a pending proceeding, but as I have said this will depend upon the interpretation of the new statute. ' It is not necessary to argue this matter at length in view of the provision that is contained in section 6 of the General 'clauses Act. This section runs: "(6) Where this Act, or any (Central Act) or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not-- (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactments repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; ' and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed." ' It will be observed that in accordance with this section all rights, liabilities, etc. Continue inspite of repeal and all proceedings can be taken and continued which could have been taken and continued if the repealing Act did not come into force. When I asked learned counsel for the appellant what he had to say in reply to this section his only answer was that this section applies to a repeal and not to an amendment and before us there is a case of an amendment. Every amendment contains a repeal for the law in the form in which it stood previously disappears and a new law comes into force. There is no difference at all between a case where the Legislature says that a particular section will stand amended in a particular way and a case where it says that the section stands repealed and its place will be taken by a new section, if the new section is the same as the amended section. Whenever there is an amendment the Legislature could very well have said that the previous provision would be omitted and the provision as amended would be
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inserted. There is no reason for giving any different effect to these two methods which achieve the same result. At the same time there is no difference in principle between repeal and amendment and if in the case of a total repeal a proceeding can be continued as if there was no repeal why should the proceeding not be continued in the case of an amended provision? ' In the case of Molasses Trading (supra), referred and relied by both the learned counsel, this Court, while dilating upon the scope of section 6 of the General Clauses Act qua effect of section 31-A of the Customs Act 1969 with deeming clause, on the "past and closed transactions" made the following discussion:-- "There is another aspect of the matter which may also be mentioned. The exposition of law made in the case of Al-Samrez Enterprise took into consideration the law as it stood on the date when that decision was rendered. As shown hereinabove, the law has changed by the insertion of the new section 31-A materially affecting the enunciation of the law made therein. Therefore the changed state of law that has come into effect was not contemplated in that decision and it cannot therefore be urged with any justification, that the principles laid down therein would still apply to the interpretation of the provisions of law discussed therein. In this view of the matter the argument that the deeming clause takes back the insertion of section 31-A to the time of enforcement of the Act in 1969 and therefore the non obstante clause will not eclipse the decision in the case of Al-Samrez Enterprise, loses all force. ' My conclusion therefore is that section 31-A has effectively achieved the purposes for which it was enacted as explained above. The only other question that remains to be considered is, that notwithstanding the altered position produced by section 31-A depriving an importer of the right to be protected against any change in the quantum of exemption, on the basis or which he has entered into a contract for the sale of goods to be imported and opened a letter of credit or performed other acts, to what extent this section can be given retrospective effect and whether such retrospective effect can be given so as to affect past and closed transactions. ' It is clear from the provisions of section 5 of the Finance Act, 1988 that by the device of the deeming clause the newly-inserted section 31-A is to be treated as part and parcel of the Act since its enforcement in 1969. Undoubtedly, therefore, the section is retrospective in operation. It is agreed on all hands that the well-settled principles of interpretation of statutes are that vested rights cannot be taken away save by express words or necessary intendment. It also cannot be disputed that the legislature, which is competent to make a law, has full plenary powers within its sphere of operation to legislate retrospectively or retroactively. Therefore vested rights can be taken away by such a legislation and it cannot be struck down on that ground. However, it has also been laid down (Province of East Pakistan v.. Sharafatullah PLD 1970 SC 514) that a statute cannot be read in such a way as to change accrued rights, the title to which consists in transactions past and closed or any facts or events that have already occurred. In that case the following postulation has been made: ' In other words liabilities that are fixed or rights that have been obtained by the operation of law upon facts or events for or perhaps it should be said against which the existing law provided are not to be disturbed by a general law governing future rights and liabilities unless the law so intends." ' In the case of Baz Muhammad Kakar (supra), during some contempt proceedings, inter alia, the question of colourable exercise of jurisdiction by the legislature was examined in detail and in this context, after review of several cases from the Pakistani and Indian jurisdiction, paragraph 96 of the judgment was articulated as under:-- "(96) From the above discussion in the case-law, following principles are deduced:-- (a) The whole doctrine resolves itself into the question of competency of a particular legislature to enact a particular law. If the legislature is competent to pass a particular law, the motives which
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impelled it to act are really irrelevant. (b) In other words, it is the substance of the Act that is material and not merely the form or outward appearance, and if the subject-matter in substance is something which is beyond the powers of that legislature to legislate upon, the form in which the law is clothed would not save it from condemnation. (c) The legislature can only make laws within it legislative competence. Its legislative field may be circumscribed by specific legislative entries or, limited by fundamental rights created by the Constitution. (d) The idea conveyed by the expression 'colourable legislation' is that although apparently a Legislature in passing a statute purported to act within the limits of its powers, yet in substance and in reality it transgressed these powers, the transgression being veiled by what appears, on proper examination, to be a mere presence or disguise. (e) Where a challenge is made on this ground, what has to be proved to the satisfaction of the Court is that though the Act ostensibly is within the legislative competence of the Legislature in question, in substance and in reality it covers a field which is outside its legislative competence. (0 The whole doctrine of colourable legislation resolves itself into the question of competency of a particular legislature to enact a particular law. If the legislature is competent to pass the particular law, the motives which impel it to pass the law are really irrelevant: (g) It is only when a legislature which has no power to legislate frames a legislation so camouflaging it as to appear to be within its competence when it knows it is not, it can be said that the legislation so enacted is colourable…
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