2020 PLP (C (PLC(CS))

MUHAMMAD NAEEM ANWAR, J.

By this constitutional petition, vires of Khyber Pakhtunkhwa Tourism Act, 2019, hereinafter called "the Act" in general and sections 8 and 32 in particular were challenged on the ground of being arbitrary, discriminatory and un-constitutional.

2. Necessary facts are that the petitioners are the employees of respondent No.3, who were appointed against different pay scales, regularized and were promoted on different posts. They are aggrieved from the provisions of sections 8 and 32 of the Act. Grievance of the petitioners is that the authority constituted under section 6 of the Act, under sub-clause (i) of section 8 shall take over the administrative, financial and regulatory control of all the activities, offices, projects, centers etc of the corporations, Directorates and institute in the prescribed manner and the result thereof shall be determined by the authority. Likewise, sub-clauses (b) and (c) of subsection (iv) of section 8 of the Act shall be determining factor of the future of employees including the petitioners. In the above said scenario, section 32 of the Act was also focused by the petitioners and contended that by the Act respondents are malafidely converting the status of regular employees into contract employees, which is illegal and unconstitutional.

3. During the course of arguments, the circumference was only to the conversion of regular service into contractual service and at the end it was also submitted that the petitioners would not press this petition provided their status from regular to contractual is not converted.

4. Heard and record perused.

5. Though the main prayer of petitioners was for declaration that Khyber Pakhtunkhwa Tourism Act, 2019 be declared as unconstitutional, however, in that respect no reason muchless the legal one was given. For declaring a legislative enactment void or unconstitutional certain basic principles were laid down by the Hon'able apex Court in a case titled Lahore Development Authority v. Imran Tiwana (2015 SCMR 1739), which in verbatim are reproduced herein below.

65. Cooley in his "Treatise on Constitutional Limitations", Pages 159 to 186, H.M. Seervai in "Constitutional Law of India", Volume I, Pages 260 to 262, the late Mr. A.K. Brohi in "Fundamental Law of Pakistan", Pages 562 to 592, Mr. Justice Fazal Karim in "Judicial Review of Public Actions" Volume I, Pages 488 to 492 state the rules which must be applied in discharging this solemn duty to declare laws unconstitutional. These can be summarized as follows:-- I. There is a presumption in favour of constitutionality and a law must not be declared unconstitutional unless the statute is placed next to the Constitution and no way can be found in reconciling the two; II. Where more than one interpretation is possible, one of which would make the law valid and the other void, the Court must prefer the interpretation which favours validity; III. A statute must never be declared unconstitutional unless its invalidity is beyond reasonable doubt. A reasonable doubt must be resolved in favour of the statute being valid; IV. If a case can be decided on other or narrower grounds, the Court will abstain from deciding the constitutional question; V. The Court will not decide a larger constitutional question than is necessary for the determination of the case; VI. The Court will not declare a statute unconstitutional on the ground that it violates the spirit of the Constitution unless it also violates the letter of the Constitution; VII. The Court is not concerned with the wisdom or prudence of the legislation but only with its constitutionality; VIII. The Court will not strike down statutes on principles of republican or democratic government unless those principles are placed beyond legislative encroachment by the Constitution; IX. Mala fides will not be attributed to the Legislature.

6. The contentions of the petitioners are relating to none of the above rules for seeking such declaration.

7. While considering the future prospect of the services of the petitioner in juxtaposition with section 8 (iv) (a) (i) & (ii) of the Act, it seems that apprehensions of the petitioners have been properly met and their rights were protected with due care and caution. The said provisions is reproduced as under: "S:8 (iv) upon taking over by the Authority, the employees of the Corporation, Directorates and Institute shall be dealt in the following manner; (a) Government shall create Surplus Pool in the Establishment Department for employees of the Directorates till the retirement of the last incumbent. These employees shall continue to enjoy all the benefits currently admissible to them and shall be entitled to receive their salary and other benefits, as if they had continued to work against existing cadres or posts. The services of such employees shall either- (i) be utilized by Government in such offices as controlled by Government under such terms and conditions as decided by Government; or (ii) absorb the services of the employees of the Directorates at the discretion of Government in various Government Departments, and in such case, the right of promotion shall be in accordance with rules and regulations and terms and conditions of the cadres into which they are absorbed."

8. It was never intended that regular services of petitioners or other employees of respondent No.3 shall be converted into contractual employment. The intention of the legislature was clear that the employees shall continue to enjoy all the benefits currently admissible to them and shall be entitled to receive their salary and other benefits, as if they had continued to work against existing cadres or post.

9. At the same line, section 32 of the Act does not relate to the service of existing employees of respondent No.3, keeping in view the plain meaning of section being based upon the principle of "interpretation" which, according to Salmond, is "the process by which the court seeks to ascertain the meaning of the legislature through the medium of authoritative forum in which it is expressed". The process of interpretation of statutes is the correct understanding of law (underlined by me for emphasis). The process is commonly adopted by the courts for determining the exact intention of legislature, because the objective of the court is not only merely to read the law but is also to apply it in meaningful manner to suit from case to case. The verbatim of section 32 is as under:- "

32. Status of the employment.

All employees shall be hired on contract basis for a specific period terminable on one month's 'notice by either side or payment of one month salary in lieu thereof; Provided that no extension shall be made in the service of contract employees however, he shall be eligible for fresh hiring under a new contract;" Though there may be loopholes in the statute which are required to be cured and this can be done by applying various norms and theories of interpretation which might go against the literal meaning at times. The purpose behind interpretation is to clarify the meaning of the words used in the statute which might not be that much clear. In the case in hand, section 32 of the Act pertains to the status of the employment in future and the same does not apply to the petitioners or the existing employees.

10. For all that has been discussed above, this petition is disposed of in the light of paras Nos. 7 and 9 of the judgment. SA/29/P Order accordingl