P L D 1980 Supreme Court 22 (PLP)

ANWARUL HAQ, C. J.--This appeal, by the leave of the Court under Article 212 of the Constitution, is directed against an order made by the Service Tribunal, Government of Pakistan at Islamabad, dated the 20th of November, 1977, by which the appeal filed by the appellant against the order of his dismissal under M. L. R. 58 of 1969, was dismissed for want of jurisdiction. The facts necessary for, the determination of the questions arising in the appeal may briefly be stated. The appellant was serving as Joint Secretary to the Government of Pakistan in the Ministry of Agriculture, Islamabad. He attained the age of superannuation the 19th of October, 1967, and was granted one year's extension -in service, followed by another year, and proceeded on leave preparatory to retirement with effect from the 18th of October, 1969. On the 5th. of December, 1969, the then Chief Martial Law Administrator General Agha Muhammad Yahya Khan suspended the appellant from service under M. L. R. 58, and cancelled his leave. A charge-sheet was then served upon the appellant on the 3rd of March, 1970, and lie was called upon to furnish an explanation, and later he was heard by a Tribunal presided over by a Military Officer on the 8th of May, 1970. On the 25th of May, 1970, a Gazette notification was issued dismissing the appellant from service with effect from the 19th of May, 1970. On the establishment of a Service Tribunal under the Service Tribunals Act, 1973, the appellant filed an appeal before the Tribunal on the 16th of August, 1974, but, as already stated, it was dismissed by the Tribunal for want of jurisdiction on the 20th of November, 1977. The Chairman of the Tribunal, with whom one of the Members concurred took the view that as all actions taken or orders made under M. L. Rs. promulgated by General Agha Muhammad Yahya Khan, had been validated under clause (4) of Article 270 of the Constitution, and it had been provided that they shall not be called in question before any Court on any ground whatsoever, the Tribunal did not have any jurisdiction to entertain the appeal. The second Member, however, expressed the opinion that the Service Tribunal having been vested with exclusive jurisdiction, under Article 212 of the Constitution, in respect of matters relating to the terms and conditions of service of persons who were or had been in the service of Pakistan, including disciplinary matters, it was clear that no other authority could exercise jurisdiction in these matters, and therefore, the appeal was competent under Article 212 of the Constitution read with section 4 of the Service Tribunals Act, 1973; but the scope of the appeal would be subject to the limitations spelt out by the Supreme Court in the case of the Federation of Pakistan v. Saeed Ahmad Khan and others (PLD1974SC151), namely, that the Tribunal could interfere only with the acts, orders or proceedings which had been done, -made or taken without jurisdiction, or were mala fide, or were in the nature of coram non judice. The appellant, who argued the case in person, submitted that the majority judgment of the Tribunal was erroneous in law, as M. L. R. 58, was a bad law, being void ab initio for the reason that. it had been promulgated by a usurper as held by the Supreme Court in the case of Miss Asma Jilani v. The Government of The Punjab and another (PLD1972SC139), that even otherwise the Regulation in question lapsed on the stepping down of Gen. Agha Muhammad Yahya Khan on the 20th of December, 1971, and it was not revived until the 21st of April, 1972, on which date the Interim Constitution of Pakistan was promulgated and certain provisions were made in Article 281 thereof for saving some of the Martial Law Regulations and Orders promulgated by the usurper; that M. L. R. 58 was not validated by the Parliament in terms of clause (1) of Article 270 of the Constitution, as it does not find any mention in the Validation of Laws Act (63 of 1975), and for this reason as well the dismissal of the appellant ceased to exist in the eye of law on the expiry of the two years' period of validation mentioned in clause (2) of Article 270 as the dismissal order was not a past and closed transaction. The appellant emphasised that M. L. R. 58 was not preserved as an existing law under the Interim Constitution or the permanent Constitution of 1973, and, therefore, all actions taken thereunder were null and void, and the Service Tribunal should have determined the appeal before it on merits in terms of the jurisdiction granted to it by section 4 of the Service Tribunals Act, 1973, read with Article 2.12 of the Constitution. The appellant further contended that even the view taken by the dissenting Member of the Tribunal as to the limited scope of the appeal teas not correct, as the observations of the Supreme Court in the case of Saeed Ahmad Khan had relevance only to the power of judicial review exercised by the High Court under Article 199 of the Constitution, and were not intended to limit or control, in any manner, the wide powers enjoyed by an appellate Tribunal of exclusive jurisdiction established under an enabling provision of the Constitution itself. On the merits of his case, he contended that he had all along an excellent record of service; that he had not been given a proper opportunity to defend himself as the Military Tribunal did not hear any evidence in his presence nor was he permitted to produce evidence in defence; that no show-cause notice was given to him as required by law against the proposed punishment of dismissal; and that, in any case, the Regulation in question could not apply to a person who was already on leave preparatory to retirement, and ceased to be in service by being placed under suspension.' He also, alleged male fide on the part of certain authorities. The appellant submitted that as already a period of more than nine years had elapsed since he was dismissed from service, and as he understood that the Federal Tribunal was without a Chairman at present, it would be in the fitness of things if his appeal could be decided finally by this Court, instead of being remitted to the Service Tribunal for a decision on merits, in case the Court was persuaded to accept the appellant's contentions as to the competence of his appeal. Mr. M. Yamin Qureshi submitted that in any case the Court may lay down guidelines for the Tribunal so as to enable it to effectively dispose of the appellant's contentions regarding the procedural illegalities which vitiated the order of dismissal even if M. L. R. 58 was assumed to be a valid piece of legislation. On behalf of the respondent Government, the position taken up by Mr. Irshad Hassan Khan, the learned Deputy Attorney-General for Pakistan, was that in the first place the order of dismissal passed against the appellant having taken effect as long ago as the 19th of May, 1970, it was a past and closed transaction irrespective of the fact whether the Martial Law Regulation under which action was taken was valid or not; that in terms of Article 268 of the Constitution the Martial Law Regulation in question became an existing law as defined by clause (7) of that Article as well as by Article 260, and, accordingly, the absence of specific validation under clause (11 of Article 270 of the Constitution would not have the effect of its automatic repeal and expiry; and that the question of the validity of M. L. R. 58, was, in fact, of an academic nature as actions taken thereunder had been conferred validity and saved from scrutiny by the Courts by clause (4) of Article 270 of the Constitution irrespective of the fact that the Martial Law Regulation itself had not been validated by Parliament in terms of clause (1) of that Article. The learned Deputy Attorney-General further submitted that he would support the minority view of the Tribunal to the effect that although the appeal filed by the appellant was competent in terms of section 4 of the Service Tribunals Act, yet its scope was limited as spelt out by the Supreme Court in the case of Saeed Ahmad Khan already mentioned. He submitted that a sub-constitutional legislation, promulgated under the enabling provision of Article 212 of the Constitution, could not derogate from the immunity conferred by clause (4) of Article 270, and for this reason the appellate powers of the Tribunal could not be as wide in this case as they would be in normal service appeals brought before the Tribunal from other orders of departmental authorities. Finally, the learned Deputy Attorney-General opposed the prayer of the appellant for the decision of his case on merits by the Supreme Court, as several disputed questions of fact would have to be examined, and such an exercise was beyond the jurisdiction conferred on the Supreme Court under Article 212 of the Constitution, which permits an appeal against the orders of a Service Tribunal only on a substantial question of law of public importance. He also stated that in his opinion there did not appear to be any necessity for this Court to lay down any guidelines as to various procedural maters which the appellant may wish to raise in case his appeal goes back to the Tribunal for a decision on merits, as the Tribunal is presided over by a Judge of the High Court, who would be competent to decide all such questions in consultation with the Members of the Tribunal. It is true that in the case of Miss Asma Jilani, this Court ruled that the Military rule sought to be imposed upon the country by General Agha Muhammad Yabya Khan by the proclamation of Martial Law on the 25th of March, 1969, was entirely illegal and all Martial Law Regulations and Martial Law Orders issued by him were on this simple ground void ab initio and of no legal effect. However, the Court also observed that certain acts and actions as well as legislative measures taken by the usurper could be condoned by recourse to the doctrine of necessity. This judgment was delivered by the Supreme Court on the 20th of April, 1972. On the 21st of April, 1972, the Interim Constitution of Pakistan was promulgated, after having been approved by the new Parliament. This Constitution contained certain provisions, namely, Article 281, for validating not only the legislative measures taken during General Agha Yahya Khan's regime, but also conferred validity as well as immunity from judicial review on all acts and actions done or taken or purported to have been done or taken thereunder. The scope of this Article came under detailed examination in the case of The State v. Zia-ur-Rahman and others (PLD 973SC49), and it was held that "the validity given by clause (2) of Article 281 of the Interim Constitution to acts done or purported to have been done in exercise of the powers given by Martial Law Regulations and Orders since repealed or even in the purported exercise of those powers does not have the effect of validating acts done without jurisdiction, coram non judice or rnala fide. After the decision in Ziaur Rahman's case, certain amendments were made in clause (2) of Article 281 of the Interim Constitution by the Constitution Sixth Amendment Order, 1973 (President's Order No. 3 of 1973), presumably with the intention of removing any doubt as to the complete ouster of jurisdiction of the Courts to scrutinise acts and actions done or purported to have been done under Martial Law Regulations and Orders etc. These amendments fell for examination by this Court in the case of the Federation of Pakistan v. Saeed Ahmad Khan and the result to which the Court arrived was that acts, orders or proceedings, which were done, taken or made without jurisdiction, mala fides or coram non judice would still not be immune .from tile scrutiny of the Courts by the ouster clause now incorporated in the .provisions in question. It may be stated that in Saeed Ahmad Khan's case the Court was dealing with the power of the High Court to bring under judicial review orders of dismissal or removal from service passed against civil servants under Martial Law Regulations Nos. 58 of 1969 and 114 of 1972. Although the Interim Constitution did not make any distinction between the Martial Law Regulations and Orders promulgated during the regime of General Agha Muhammad Yahya Khan, and the short period of Martial Law under the late Mr. Zulfiqar Ali Bhutto from the 20th of December, 1971, to the 20th of April, 1972, yet in the permanent Constitution of 1973, which came into force on the 14th of August, 1973, a distinction was drawn between the Martial Law Regulations and Orders promulgated during these two periods, by clause (1) of Article 269, Proclamations, President's Orders, Martial Law Regulations, Martial Law Orders and all other laws made between the 20th of December, 1971, and the 20th of April, 1972, were validated, notwithstanding any judgment of any Court; and by clause (2) validity and immunity from judicial review was conferred on all orders made, proceedings taken and acts done, or purported to have been made, taken or done, under these Martial Law Regulations and Orders etc. during the period in question. The corresponding measures taken during the regime of General Agha Muhammad Yahya Khan were dealt with in Article 270 of the Constitution, and a different scheme was adopted. In clause (1) of this Article it was provided that the Parliament may by law validate such Proclamations, President's Orders and Martial Law Regulations etc.- and in clause (2), it was stipulated that a law made by Parliament under clause (1), shall not be questioned in any Court on any ground whatsoever. In clause (3) of the same Article. it was further provided that the validity of all such instruments shall not be called in question in any Court on any ground whatsoever for a period of two years from the commencing day of the Constitution. In other words, Parliament was given a period of two years to take validating action in teams of clause (1) of this Article in respect of such instruments. It is clear that once action had been taken by Parliament in terms of clause (1), the instruments in question would become valid pieces of legislation, except those which were left out of validation. It was in pursuance of these provisions of the Constitution that the Validation of Laws Act,' LXIII of 1975, was enacted. As Martial Law Regulation No. 58 of 1969, does not find place in this Act, it has not been validated in terms of clause (1) of Article 270 of the Constitution, and the validity conferred on such instruments by clause (3) of this Article for the limited period of two years has also expired. The question, therefore, is what is the legal position in respect of orders made, proceedings taken and acts done, or purported to have been made, taken or done under this Regulation. The answer to this question is to be found in clause (4) of Article 270 of the Constitution, which provides that: "All orders made, proceedings taken, and acts done by any authority, or any person, which were made, taken or. done, or purported to have been made, taken or done, between the twenty-fifth day of March, one thousand nine hundred and sixty-nine and nineteenth day of December, one thousand nine hundred and seventy-one (both days inclusive), in exercise of powers derived from any President's Orders, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye-laws, or in execution of any order made or sentence passed by any authority in the exercise of purported exercise of power as aforesaid shall, notwithstanding any judgment of any Court, be deemed to be and always to have been validly made, taken or done, so however that any such order, proceeding or act may be declared invalid by Parliament at any time within a period of two years from the commencing day by resolution of both Houses, or in case of disagreement between the two Houses, by such resolution passed at a joint sitting and shall not be called in question before any Court on any ground, whatsoever." This clause is identical with clause (2) of Article 281 of the Interim Constitution, except that it preserves to the Parliament the power to declare invalid any such act or proceeding or order at any time within a period of two years from the commencing day. Considerable discussion took place at the Bar regarding the true connotation and scope of the validity conferred by this clause of Article 270 of the Constitution on the proceedings, orders and acts mentioned therein. It was suggested that this clause should be read in conjunction with clause (1) of the same Article, so as to confine the validity mentioned herein to acts and actions taken or done under those Martial Law Regulations and orders etc. which are validated by the Parliament within the specified period of two years, and not extended to those which are allowed to lapse or expire for want of validation, as they were merely in the nature of temporary statutes and instruments promulgated by an illegitimate Ruler during the period of his Martial Law. It was substituted that it could not have beers the intention of the makers of tire Constitution to perpetuate the effects of such instruments beyond the commencing day of the Constitution, which had restored legality in the country. It was argued that with the expiry of a temporary statute all actions taken thereunder automatically stood wiped out and became ineffective; and, therefore, no amount of retrospective validation could continue or save the effects and consequences of actions taken under such instruments, which had adversely affected the life, liberty, property or other rights of the citizens. Reference was also made to what is known as the "doctrine of eclipse" to contend that the old legal order of General Agha Muhammad Yahya Khan's regime had completely disappeared on the assumption of the office of the Chief Martial Law Administrator by the late Mr. Zulfiqar Ali Bhutto; or, at any rate, on the promulgation of the Interim Constitution of 1972, followed by the permanent Constitution of 1973. The effort, in other words, was- to argue that all actions taken under M. L. R. 58 stood completely wiped out, irrespective of the provisions as to validity contained in clause (4) of Article 270 of the Constitution, for the reason that in its inception the Regulation had been made by an incompetent and illegal authority, and it had not been validated by the Pakistan Parliament within the prescribed period of two years. In support of these submissions reference was made to the Crown v. Havel (1), Hubibullah v. Crown (2), The State v. Dosso (3), The Province of East Pakistan v. Muhanrmad Mehdi Ali Khan (4), Muhammad Afzal v. Commissioner Lahore Division (5), Shukar Din v. Abaidur Rehman (6), Miss Ashma Jilani v. The Government of the Punjab, The State v. Zia-ur-Rehnurn and others and Gulzar Hassan v. Islamic: Republic of Pakistan (7), as well as to observations appearing on page 554 of the Grammar of Politics by Harold Laski, 1967 Edn. and page 155 of Maxwell on the Interpretation of Statutes (Twelfth Edition). (1) P L D 1949 Lab. 550 (2) P L D 1955 Lah. 396 (3) P L D 1958 S C 533 (4) P L D 1959 S C (Pak.) 387 (5) P L D 1963 S C 401 (6) P L D 1965 Lah. 522 (7) P

1. D 1975 Lab. 1219 After giving our careful consideration to these submissions, we are of the view that they are irrelevant in the present context, for the reason that we are here dealing not with a situation where the old legal (or illegal) order prevailing under the Martial Law imposed by General Agha Muhammad Yahya Khan has disappeared and given way to a new legal order without there being any specific provision to deal with the situation arising as a consequence thereof. We have already seen that the Interim Constitution of 1972, made specific provision, in Article 281 thereof, for saving the operation of Martial Law Proclamations, President's Orders, Martial Law Regulations and Martial Law Orders promulgated during the continuance of Martial Law from the 25th of March, 1969 to the 20th of April, 1972, and on the repeal of the Interim Constitution of .1972, and its substitution by the permanent Constitution of 1973, elaborate and separate provisions were again incorporated in Articles 169 and 270 of the Constitution to validate and preserve the effects of such instruments and actions taken thereunder during the two periods of Martial Law. We have already commented upon the different scheme embodied in Article 270 of the Constitution insofar as the regime of General Muhammad Yahya Khan was concerned. The Constitution makers, in their own wisdom decided that only some of the instruments promulgated during this period should be validated by Parliament within a period of two years, and they also stipulated that within this period the validity of none of them could be challenged on any ground. They went further and provided that irrespective of the fact whether any of the instruments were eventually validated by Parliament or not, the proceedings taken, orders made or acts done, or purported to have been taken, made or done under these instruments, shall be deemed to be valid and not questioned in any Court on any ground whatsoever. These provisions were clearly necessitated on account of the awarenses of the law makers that the regime of General Agha Muhammad Yahya Khan had been declared by the Supreme Court to be an illegal and unlawful regime, and accordingly, it was necessary to make provisions to ensure continuity in the legal order obtaining in the country, so as to avoid an abrupt interruption insofar as the rights and obligations of the citizens of Pakistan were concerned, who had been subjected to the laws made by the illegitimate Ruler without their consent. It was also precisely for this reason that this Court had recourse to the doctrine of necessity in the case of Asma jilani, which, as already stated, was decided one day before the promulgation of the Interim Constitution of 1972. Hamoodur Rehman, C. J., who delivered the leading judgment in that case observed that: "Recourse has to be taken to the doctrine of necessity where the ignoring of it would result in disastrous consequences to the body politic and upset the social order itself but I respectfully beg to disagree with the view that this is a doctrine for validating the illegal acts of the usurper. In my humble opinion, this doctrine can be invoked in aid only after the Court has come to the conclusion that the acts of the usurper were illegal and illegitimate. It is only then that the question arises as to how many of his acts, legislative or otherwise, should be condoned or maintained, notwithstanding their illegality in the wider public interest. I would call this a principle of condonation and not legitimization". Proceeding, the learned Chief Justice observed that "Applying this test I would condone (1) all transactions which are past and closed, for no useful purpose can be served by reopening them, (2) all acts and legislative measures which are in accordance with, or could have been made under, the abrogated Constitution or the previous legal order, (3) all acts which tend to advance or promote the good of the people, (4) all acts required to be done for the ordinary orderly running of the State and all such measures as would establish or lead to the establishment, in our case, the objectives .mentioned in the Objectives Resolution of 1954. I would not, however, condone any act intended to entrench the usurper more firmly in his power or to directly help him to run the country contrary to its legitimate objectives. I would not also condone anything which seriously impairs the rights of the citizens except insofar as they may be designed to advance the social welfare and national Solidarity". It is in this background that the full meaning and scope of the validity conferred by the relevant provisions in the Interim Constitution as well as the permanent Constitution have to be construed insofar as they have a bearing upon the acts and actions taken during the regime of General Agha Muhammad Yahya Khan. The Parliament may or may not like to continue some of the legislative instruments and enactments promulgated during this regime, nut it clearly had no desire to destroy or nullify all acts and action, taken or done or purported to have been done, under these instruments, It seems to us, therefore, that in the interest of preserving t ha continuity and integrity of the social and legal fabric of Pakistan and the rights and obligations which might have been acquired or incurred by its citizens during the regime of General Agha Muhammad Yahya Khan, clause (4) of Article 270 of the Constitution should be properly interpreted, and given full effect, according to the ordinary meaning of the language used therein, and not artificially limited in the sense that it must be controlled by clause (1) of the same Article. The Courts in this country have, as pointed out in the cases of Zia-urRahman and Saeed Ahmad Khan, mentioned above, taken care to ensure that) the validity, and immunity from judicial review, shall be enjoyed by only those proceedings, orders and acts, which have been duly taken under these instruments, and that such immunity will not be extended to those acts and actions etc. which are without jurisdiction, coram non judice or mala fide. The superior Courts of the country continue to have the power to declare such acts to be without lawful authority and of no legal effect, notwithstanding the provisions contained in clause (4) of Article

270. In other words, the Supreme Court has endeavoured, by means of these judgments, to preserve a balance between the need for the continuity of the fabric of legal and social rights, and for protecting the individuals adversely affected by acts and actions which could not properly be taken even under the laws promulgated by the illegitimate Ruler. We may at this stage also dispose of the submission made by the learned Deputy Attorney-General that even though Martial Law Regulation No. 58 has not been validated, in terms of clause (1) of Article 270 of the Constitution, by Act, LXIII of 1975, yet it could be deemed to be an existing law within the definition of this term as contained in Article 260 of the Constitution read with clause (7) of Article 268, thereof; and, accordingly, continuing in force under the permanent Constitution so far as applicable and with necessary adaptations until altered, repealed or amended by the appropriate Legislature. Mr. Irshad Hassan Khan submitted that these provisions in the permanent Constitution have to be read in the light of the provisions contained in Articles 280 and 281 of the Interim Constitution of 1972, which had the effect of keeping alive certain Martial Law ; Regulations and Orders including Martial Law Regulation No. 58, with the result that it became an existing law on the enforcement of the permanent Constitution. The argument is certainly ingenious but not tenable on close analysis. A similar question arose as to the position of the Land Reforms Regulation, 1972 (M. L. R. 115) under the Interim Constitution, in the case of Mehreen Zaibun Nisa v. Land Commissioner ( P L D. 1975 S C 397), and this Court reached the conclusion, after a detailed examination of Articles 280 and 281 of that Constitution, that "the Interim Constitution contemplates three kinds of laws, namely, Federal Laws, Provincial Laws and existing laws. The first two laws are those which are made by the appropriate Legislature under the Interim Constitution, whereas the existing laws are those which are kept alive under clause (1) of Article 280, subject to the other provisions of this Article of the Constitution, irrespective of the source or authority from which they emanate. If, therefore, there was no other provision in this behalf, Martial Law Regulation 115, dealing with the subject of land reforms, would have to be regarded as an existing law which could be altered, repealed or amended by the appropriate Legislature in terms of clause (1) of Article

280. However, Article 280, contains a specific provision, namely, clause (3) for defining the status of Martial Law Regulations and Martial Law Orders. This clause provides that "all Martial Law Regulations and Martial Law Orders specified in the Seventh Schedule, are repealed with effect as from the commencing day, and on that date each Martial Law Regulation and the Martial Law Order so specified shall be deemed to have become an Act of the appropriate Legislature and shall, with the necessary adaptations, have effect, as such". The provisos to this clause enjoins that no bill to amend or to repeal, any of the Martial Law Regulations or the Martial Law Orders specified as aforesaid shall be introduced or moved without the previous sanction of the President. This clause being a special provision regarding the status of subsisting Martial Law Regulations, and also containing an exceptional procedure for their amendment or repeal, will exclude the application of the general provisions contained in clauses (1) and (8) of Article 280 insofar as the future status and operation of Martial Law Regulations and Martial. Law Orders are concerned. As a result, although ordinarily Martial Law Orders and Regulations, saved from repeal, would have continued in force as existing laws, yet by virtue of this special provision they have to be deemed to be Provincial or Federal Acts, notwithstanding the fact that they have not, been passed or made by any Legislature created or functioning under the Interim Constitution". It seems to us that a similar position obtains under the permanent Constitution, namely, that although ordinarily Martial Law Regulations and Orders etc. validated under the Interim Constitution would have continued in force as existing laws in terms of clause (l) and (7) of Article 268, yet they are taken out of the purview of this Article by reason of the special provisions contained in Articles 269 and 270 as to their validation and continuing effect. In the circumstances, we consider that -the correct position is that all questions relating to the validity and continuing effect and operation of Proclamations, Presidents' Orders, Martial Law regulations and Martial Law Orders promulgated during the regimen of General Agha Muhammad Yahya Khan and the late Mr. Zullikar Ali Bhutto should be examined by reference to the provisions contained in the two Articles just mentioned, and not by recourse to Article 268 of the Constitution which provides for the continuing operation of all existing laws. The makers of the Constitution have made their intention- absolutely clear that they were treating these instruments in a class by themselves, as distinct from .the other laws which already formed a part of the legal order in Pakistan before the promulgation of Martial Law on the 25th of March, 1969. Having found that all proceedings taken, orders made, acts done, or purported to have been taken, made or done under Martial Law Regulation No. 58 fall within the purview of the validity and immunity from) judicial review granted by clause (4) of Article 270 of the Constitution, we now turn to the question of the scope of the appeal as provided in section 41 of the Service Tribunal's Act, 1973. It has already been noticed that the Service Tribunals . Act has been promulgated under the enabling provisions contained in Article 212 of the Constitution, clause (1), whereof provides that: "Notwithstanding anything hereinbefore contained, the appropriate Legislature may by Act provides for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of (a) matters relating to the terms and conditions of persons who are or have been in the service of Pakistan, including disciplinary matters; (b) (c) .. Clause (21 ` of the, same Article confers exclusive jurisdiction on the Service Tribunals to deal with such matters, and clause (3) provides an appeal to the Supreme Court from a judgment of such Tribunals. Section 3 of the Service Tribunals Act, 1973, empowers the President of Pakistan to establish one or more Service Tribunals, and subsection (2) of this section provides that: "A Tribunal shall hive exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants, including disciplinary matters." Section 4 of the same Act, as amended by Act XXXI of 1974, lays down that: "Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service, may within thirty days of the communication of such order to him, or within six months of the establishment of the appropriate Tribunal, which never is later, prefer an appeal to the Tribunal." Proviso (c) to subsection (1), however, restricts the right of appeal by saying that: "No appeal shall lie to a Tribunal against an order or decision of a departmental authority made at any time before the 1st July, 1969." It will be seen, therefore, that the statute enacted by the parliament under an enabling provision of the Constitution specifically contemplates that! a civil servant could file an appeal before the Service Tribunal against ant order or decision of a departmental authority made at any time after the 1st of July, 1969, In the present case the order against the appellant was made in May. .1970, and, therefore, he was clearly entitled to file an' appeal before the Service Tribunal under section 4 of the Act. Th.- question is whether this right has been impliedly taken away by clause (4) of Article 270 of the Constitution as held by the majority of the Service Tribunal. Observations made by this Court at page 167 of the report in Saeed Ahmad Khan's case, while dealing with the scope of clause (2) of Article 281 of the Interim Constitution, are of direct relevance in this behalf: "The contention of the learned Advocate-General of Punjab that the word `validly' gives legal cover not only to' acts done illegitimately but also to acts done improperly and, therefore, covers even mala fide acts, has now to be noticed against, even though this contention too was repelled in the. case of Zia-ur-Rahman. Copious references have been made by the learned Advocate-General to the dictionary meaning of the words `valid' and `validity' in order to press his contention that the grammatical meaning must be preferred, even though the same word has been used in an earlier clause of this very Article in a more limited sense. If this contention be correct, then, would the result not be, having regard. to the. wide words used in the earlier portions of this clause, that all conceivable acts done, proceedings taken or orders made by any authority or by any person on or after the twenty-fifth day of March, 1969, shall, notwithstanding the provisions of the President's Orders, Martial Law Regulations, Martial Law Orders, Enactments, Notifications, Rules, Orders or Bye-Laws to the contrary be deemed to have been validly made and to no longer open to challenge in any Court. Thus, even if an order or sentence had been passed by any authority or any person and such a sentence was under the measures above-mentioned open to appeal or revision, such appeal or revision would now be barred, and if any appeal or revision had been allowed after the twenty-fifth of March, 1 969, the decision in such appeal or revision would now be of no valid effect. Could this have been the intention ? The learned Advocate-General was himself constrained to concede that this could not have been the intention. The question, therefore, that arises is : Is the ouster of jurisdiction as complete as it is now sought to be urged ? The learned Attorney General himself had conceded before the High Court and has not resiled from that position before us that acts done, proceedings taken or orders made incompetently without jurisdiction would not be covered by the ouster clause. If in addition to this we now find that the ouster clause does not affect appeals or revisions, if any, permissible under those Orders, Regulations, Enactments, Notifications, Rules, Orders or Bye-Laws, then the ouster clause is not as comprehensive as is now sought to be urged." It would be seen that the Court was clearly of the opinion that the validity and immunity granted by clause (2) of Article 281 of the Interim Constitution, which is pari materia with clause (4) of Article 270 of the permanent Constitution, did not bar an appeal or revision allowed after the 25th of March, 1969. A similar view was taken by a Division Bench of the Lahore Court in the case of ' Muhammad Aslant Baj~va v. Federation of Pakistan (P L D 1974 Lab. 545). After alluding to the observations of the Supreme Court reproduced above, the learned Judges proceeded to state that it had been conceded before them by the learned Attorney-General for Pakistan that the impugned orders had become appealable under sections 4 and 6 of the Service Tribunals Act, 1973, where the scope of appeal, according to the Central Government's own contention before them, was obviously very wide ; and that this will have the effect of taking these cases out of the purview of Articles 269 and 269 of the Constitution. It was further observed that the bar of jurisdiction contained by these two Articles was only against Courts as distinct from Tribunals or other exclusive authorities. The learned Judges concluded their discussion on this point by saying that they endorsed this standpoint of the Central Government, and the cases will get reopened and the petitioners before them would be provided an opportunity of defending themselves before the Tribunal. It is interesting to observe that during the conduct of this case the learned Attorney-General for Pakistan was assisted, amongst others, by Mr. Irshad Hassan Khan, who is at present appearing before us as Deputy Attorney-General for Pakistan, and has attempted to argue that the scope of the appeal before the Tribunal would be limited by the same considerations as were spelt out by the Supreme Court in the case of Saeed Ahmad Khan in regard to the power of judicial review available to the High Court in respect of orders of the kind we are discussing here. Mr. Irshad Hassan Khan submitted, on the authority of Government of West Pakistan v. Mian Muhammad Hayat (P L D 1976 S C 202), that as a counsel he was not bound by the admission made in a previous case on a question of law. This submission is, indeed, correct, and we do not wish to decide this point on the basis that in a previous case the wide scope of the appeal had been conceded by the learned Attorney General. Reverting to the point, it would be seen that the view taken by this Court in Saeed Ahmad Khan's case was that the validation contained in Article 281 of the Interim Constitution did not constitute a bar in the way of the entertainment of an appeal or revision on merits, if such a recourse was permitted by law. Speaking with respect, we consider that this is, indeed, the correct position in law. We have already explained the background which necessitated the inclusion of the validation clauses in both the Interim and the permanent Constitutions of Pakistan promulgated respectively in 1972 and 1973. The paramount need at that time was to ensure continuity in the legal order, irrespective of the fact that a period of illegitimate rule, had intervened, resulting in all measures and instruments promulgated by the usurper being invalid in the eye of law. The validity sought to be conferred by the law makers had, therefore, direct relevance to their anxiety to avoid an interruption in the legal order by large scale recourse to Courts of law ; and cannot, on a proper construction of the relevant clause, be extended to prevent recourse to appellate or revisional forums created by! the appropriate Legislature itself;. acting under an enabling provision of the Constitution. On any other interpretation, the exclusive appellate jurisdiction conferred on the Service Tribunals with regard to orders made since the 1st of July, 1969, affecting the terms-and conditions of service of civil servants, would become completely nugatory. We have no doubt at all that such an interpretation is to be avoided, unless it is inevitable on the language used in the Constitution. But that is not the case here, specially when we find that clause (4) of Article 270 speaks of immunity from challenge in the Courts of law, and not from appeal or revision before a Tribunal of exclusive jurisdiction, whose establishment is permitted by the Constitution itself. As a result, we are of the view that both the majority and the minority views expressed by the learned Chairman and Members of the Service Tribunal as to the maintainability and the scope of the appeal filed by the appellant before the Tribunal are not sustainable on a proper interpretation of the law. The appeal being one within -the. ambit of section 4 of the Service Tribunals Act, 1973, was fully competent, and it was the duty of the Service Tribunal to examine on merits all questions of law and fact sought to be raised by the appellant to challenge the order of his dismissal made under Martial Law Regulation No. 58, in May, 1970. As already stated, the appellant made a prayer that in view of the long period that had elapsed since he was dismissed from service without any justification, we should ourselves examine his case on merits and hold that the order made against him could not be sustained even on the assumption that the M. L. R. 58 was to be deemed a valid piece of legislation, as the proceedings taken against him and the final order made suffered from a number of infirmities. He also contended that he could not be dealt with at all under M. L. R. 58 as he had ceased to be a civil servant on being suspended from service during the period of his leave preparatory to retirement. It is, indeed, unfortunate that the grievance of the appellant has remained unredressed for a period of over nine years since the impugned order of dismissal was made against him under M. L. R. 58, but we find that in terms of clause (3) of Article 212 of the Constitution, an appeal lies to the Supreme Court only on a substantial question of law of public importance, and, therefore, we would be traversing beyond the jurisdiction conferred on us by the Constitution if we were ourselves to undertake ;en examination and resolution of disputed, questions of law and fact Which ought to be decided, in the first instance, by the Service Tribunal, but could not be so decided in the present case owing to the erroneous view taken by the Tribunal on the question of its own jurisdiction. It seems to us, therefore, that there is no escape from the position that this appeal must go back to the Tribunal for a decision on merits. It goes without saying that it lies within the jurisdiction of the Tribunal, and, indeed, it is its obligation, to decide all questions of law and fact sought to be raised by the appellant to challenge the order of his dismissal, including his contention that no evidence was heard in his presence, nor was he given any opportunity to show cause against the proposed punishment. The appellant would be entitled not only to a full opportunity to present his case before the Tribunal, but also to inspect all 'relevant records which might have been taken into consideration- by the competent authority for the purpose of passing the impugned order. As we see the legal position, the Tribunal has wide powers under section 5 of the Act, as it may on appeal confirm, set aside, vary or modify the order appealed against. Under subsection (2) of the same section, the Tribunal, for the purpose of deciding any appeal, is to be deemed to be a civil Court, and to have all the powers as are vested in such Courts under the Code of Civil Procedure, 1908, including the power of enforcing the attendance of any person and examining him on oath ; compelling the production of documents ; and issuing Commission for the examination of witnesses and documents. 'We have no doubt that the Service Tribunal, presided over generally by a serving or a retired Judge of the High Court, would be able to do full justice to the appellant. It was stated before us that the Federal Service Tribunal was at present without a Chairman, and, therefore, the disposal of the appeal filed by the appellant was likely to be inordinately delayed. The learned Deputy Attorney-General gave us an assurance that he would convey to the appropriate Ministry in the Government of Pakistan the view of :his Court that it was highly desirable, in the public interest, that the Chairman of the Service Tribunal should be appointed without delay, so that these old cases may be expeditiously disposed of. We are informed that this has been- done. For all these reasons, we would accept this appeal with costs, set aside the order of the Tribunal, and direct that the appeal filed by the appellant be expeditiously disposed of on merits in the light of the observations made by us. S. A. H. Appeal accepted. Case remanded.