2000 PLP (C (PLC(CS))

MALIK MUHAMMAD QAYYUM, J.‑‑‑This judgment shall dispose of the Constitutional, petitions, the list of which is attached, in all of which common question of law as to the interpretation of Punjab Secretariat Allowance (Withdrawal) Act, 1997 (Act I of 1998) is involved. By the Finance Department Letter No. FD.PC‑2/83 dated 8‑8‑1998, the Government of Punjab provided for payment of an allowance known as Secretariat Allowance at the rate of 20% of the basic pay to all the employees in the Punjab Government Secretariat, Governor's Secretariat, Chief Minister s Secretariat and Punjab Provincial Assembly Secretariat. A large number of employees of the: Provincial Government, who 'are employed in various other departments as also employees of the autonamous/semi autonomous bodies set up and controlled by the Provincial Government have filed Constitutional petitions, which are being disposed of by this judgment, urging that they too were entitled to the Secretariat Allowance and the Provincial Government by confining the payment of said allowance only to the employees of various Secretariats, have acted discriminately.

3. During the pendency of these petitions, the Provincial Legislature promulgated Punjab Secretariat Allowance (Withdrawal) Act, 1997 (Act I of 1998), section 2 of which reads as under:‑‑‑ "Withdrawal of Secretariat Allowance. ‑‑‑(1) Government of Punjab Finance Department's Letter No.FD PC‑2‑1/88, dated 8‑8‑1988 (hereinafter referred to as the 'said letter) which provided for the payment of an allowance called Secretariat Allowance 20.% of the basic pay to all employees in the Punjab Government Secretariat, Governor's Secretariat, Chief Minister's Secretariat and Punjab Provincial Assembly Secretariat being discriminatory shall be deemed never to have been issued. (2) The said letter shall be deemed not to have created any right in favour of any person and the‑ Government was not liable to pay Secretariat Allowance on the basis of the said letter. (3) Notwithstanding the provisions of subsections (1) and (2), the allowance already paid to any person under the said letter shall be deemed to have been validly paid and shall not be recovered from him by the Government."

4. From a reading of the above‑cited provision it becomes obvious that the Secretariat Allowance has not only been abolished but the abolition has been given retrospective effect in the sense that the letter whereby the Secretariat Allowance had been granted, is deemed to have never been issued. This position is further fortified by subsection (2) of section 2 which ordains that the aforesaid letter shall be deemed not to have created any right in favour of any person nor has the Government any liability to pay the Secretariat Allowance on the basis of the said letter. In view of this clear enactment, the petitioners cannot claim payment of any Secretariat Allowance.

5. In Writ Petition No.21333 of 1997 and 10116 of 1999 learned counsel for the petitioners has challenged the vires of the aforesaid Act by arguing that the provision of section 2 itself is discriminatory inasmuch as while payment of Secretariat Allowance to the Government servants has been denied by subsection (2) of section 2, under subsection (3) the payment already made has been saved and cannot be recovered by the Government.

6. The contention raised by the leaned counsel is without any legal basis. Subsection (3) of section 2 is based on well accepted principle of interpretation of statutes that past and closed transactions should not be allowed to be reopened. This provision is beneficial in nature as it protects the benefits already, received by the civil servants. It would be harsh and unjust to ask them to refund the payment already received. It is in realisation of this position that the legislature in its wisdom has saved the transactions past and closed in which no possible exceptions can be taken.

7. It was next argued by the learned counsel that the petitioners have a vested right to receive Secretariat Allowance and by promulgating Punjab Secretariat Allowance (Withdrawal) Act, 1997 (Act I of 1998), the Legislature cannot be deemed to have taken away or destroyed the vested right. .

8. This argument of the learned counsel has again not impressed us. While it is true that generally speaking, a statute is presumed to be prospective in nature and as far as possible should be interpreted in a manner which would not result in ‑destruction of vested right. However, the Legislature is competent to legislate retrospectively and retroactively and while doing so, it can take away the vested right provided the language used by the Legislature is clear aid unambiguous and explicit. If any authority is needed, reference may be made to M/s. Haider Automobile Ltd. v. Pakistan (PLD 1969 SC 623), wherein it was ruled. that:‑‑‑ "Learned counsel has secondly argued that in any event Ordinance No.II of 1964 could not take away a right which had become vested in Mr. Manzoor Qadir as both when he was appointed and when he resigned. President's Order No.21 of 1962 held the field and under that he had an absolute right of resuming his practice. I would entirely agree with him that a vested right cannot be taken away save by express word's or necessary intendment. The Legislature, however, which is competent to snake a law, has full and plenary powers in that behalf and can even legislate retrospectively or retroactively. There is no such rule that even if the Legislature has by the use of clear and unambiguous language, sought to take away a vested right yet the Courts, must hold that such a legislation is ineffective or strike down that legislation on the ground that it has retrospectively, taken away a vested right."

9. In the present case, the Legislature by using clear and unambiguous language sought to take away the rights, if any, vested in the petitioners with respect to their entitlement to receive Secretariat Allowance. We are, therefore, unable to agree with Dr. A. Basit; Advocate that despite the use of such a language it should be presumed that vested rights of the petitioners have not been taken away. In view of what has been sari above, all these petitions are dismissed leaving the parties to bear their own costs.