2003 PLP (C (PLC(CS))

4. The learned counsel for the appellant, further argued that out of turn promotion, on the same ground was allowed to one Mirza Tufail Hussain Head Constable, in 1997, Shaista Jabeen A.S.‑I, on 23‑7‑1994, Jabeen Kausar, A.S.‑I, on 22‑11‑1995, and Shabana Rehman, A.S.‑I, on 17‑1‑1996. According to him at that time when these Police employees were granted out of turn promotions there was no statutory provisions for such promotions, whereas when his client earned a distinction for himself and for his department by securing first position from all the trainee officers from Pakistan and Azad Jammu and Kashmir, the provision relating to out of turn promotion was on the statute. He was recommended in the light of the statutory provision and still this provision was on the statutory book when the Prime Minister agreed with the recommendations made by the Inspector General of Police, therefore, there was no occasion for the Selection Board to refuse to consider his suitability in the light of the above referred facts for out of turn promotion. According to him the discriminatory treatment on the part of the respondents was liable to be set aside in exercise of the writ jurisdiction by the High Court but the matter was not properly appreciated by the High Court in the light of the facts and law despite that it was seriously pressed on behalf of the appellant as is clear from the judgment of the High Court, wherein, in the arguments of the learned counsel for the appellant at serial No.3, this point stood incorporated. He in support of his contention relied upon the following authorities. In Azad Government and another v. Abdul Kabir Qureshi and others (1995 PLC (C.S.) 46), the Notification No.FD/R/1372‑13672/88 dated 30 -8‑1988 was set aside, whereby the allowance of twenty per cent of the basic pay was allowed to the employees of the Secretariat and the employees of the High Court who were performing the same duties, were deprived of this allowance. The notification was found violative of Fundamental Right (No. 15, as enshrined in the Constitution Act 1974, was set aside. In Azad Jammu and Kashmir Government and others v. Muhammad Younas Tahir and others (1994 PLC 2339), at page 368, the following principle was laid down:‑‑ "The Interim Constitution Act through Right No. 15 holds out a firm and forthright guarantee that all state subjects are equal before law and are entitled to equal protection of law. Its meanings are plain enough to ensure that laws of the State shall equally apply to all subjects and there would be no discriminatory treatment amongst them. Since there is no particularisation in the phraseology these guarantees cover all laws dealing with state subjects whether they related to life, honour, property, freedom, employment and all rights and liabilities. These lofty pronouncements have, however, been rationalised were experienced in literally implementing these guarantees. These difficulties are real and substantial. Therefore, reasonable classification was recognized."

5. Syed Nazir Hussain Shah Kazmi, the learned counsel for the appellant, further argued that as a legal order was passed in favour of the appellant, the High Court should have directed the Selection Board No.3, to consider the case for out of turn promotion of the appellant in the light of the merit which stood discussed and incorporated in the recommendations of the Inspector General of Police and approved by the Prime Minister. He in support of his contention relied upon two authorities of this Court titled Mir Abdul Hamid v. Azad Government and 2 others (1997 PLC (C.S.) 805), wherein it is laid down that if a legal order is not implemented, the High Court can be moved for direction for its implementation. In Ejaz Ahmad Awan and 5 others v. Syed Manzoor Ali Shah and another (1999 PLC (C.S.) 1439), it is laid down as follows:‑‑ "If an application, appeal or review is pending for disposal with the departmental authorities, the High Court is competent to issue a direction for its disposal within a reasonable time by fixing a time limit. However, this power will be exercisable only if the High Court is satisfied that the departmental authorities are procrastinating or contumaciously refused to pass a final order. "

6. While controverting the arguments of the learned counsel for the appellant, Kh. Attaullah, the learned counsel for the respondents, argued that out of turn promotion could ‑be granted under section 8‑A of the Act, 1976, but this provision stood deleted from the statute book therefore, the appellant is not justified in claiming out of turn promotion on the basis of a provision which is not in‑existence. According to the learned counsel for the respondents, the Selection Board was, therefore justified in law in refusing to consider his case for out of turn promotion. He further contended that the learned Judge in the High Court was also justified in law in upholding the above mentioned order of the Selection Board No.3. In the absence of the statutory provision the appellant could not be treated as an aggrieved person, as such, he was rightly declined relief by the High Court.

7. We have considered the respective arguments of the learned counsel for the parties and gone through the record of the case. Section 8‑A was introduced in the Act, 1976, vide the Azad Jammu and Kashmir Civil Servants (Amendment) Ordinance, 1989. It remained on the statute till 20‑2‑1993, when it was deleted. The case of appellant was recommended for out of turn promotion by the Inspector‑General of Police on 26‑3‑1990. The recommendations were approved by the Prime Minister on 16‑5‑1991. On both these dates section 8‑A was a part of Act, 1976. On account of these reasons a right had accrued to the appellant which could be enforced by him through a Constitutional petition in the High Court as is laid down by this Court in cases reported as Mir Abdul Hamid v. Azad Government and 2 others (1997 PLC (C.S.) 805) and Ejaz Ahmad Awan and 5 others v. Syed Manzoor Ali Shah and another (1999 PLC (C.S.) 1439). Even otherwise his case for out of turn promotion should have been looked into and processed by keeping in view the provisions contained in section 6 of the General Clauses Act, read with section 56‑C, of the Act, 1974, which being relevant are reproduced below for the convenience of reference as well as for further discussion:‑‑ "

6. Effect of repeal.‑‑‑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) . ... ... ... ... ... . (b) ... ... ... ... ... ... ... (c) Affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) ... ... ... ... ... ... ... (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. " "56‑C Effect of repeal of laws.‑‑‑Where a law is repealed, or is deemed to have been repealed, by, under, or by virtue of this Act, the repeal shall not, except as otherwise provided in this Act.‑‑ (a) revive anything not in force or existing at the time at which the repeal takes effect; (b) affect the previous operation of the law or anything duly done or suffered under the law; (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the law; (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the law; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment; and any such investigation, legal proceedings, or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the law had not been repealed."

8. As discussed earlier, the appellant was recommended by the Inspector‑General of Police for out of turn promotion as P.D.S.P. on 26‑3‑1990 and these recommendations got favour of the Prime Minister on C 16‑5‑1991. On both these occasions section 8‑A was a part of Act, 1976, therefore, the case of the appellants should have been judged in the light of the law when question for his out of turn promotion arose. Even otherwise, if law would have been changed after the initiation of his case for out of turn promotion, even then the matter should have been processed in the light of the law which was applicable at the relevant time. It is a celebrated principle of law that any change in the statute, if it deals with procedure, could be construed retrospectively otherwise the change cannot be allowed to destroy the accrued right in light of the aforementioned provisions of the General Clauses Act. For this reason the maxim 'omnis nove constitution futuris temporibus forman imponere debt non practeritis' which means except in special cases the new law ought to be construed so as to interfere as little as possible with accrued vested right. The Certificate of Commendation issued by Commandant Police Training College Sehala in favour of the appellant on 3‑3‑1982, and in furtherance to it the recommendations made by the Inspector‑General of Police on 26‑3‑1990, and the order giving approval to F the said recommendations by the Prime Minister on 16‑5‑1990, are the steps in a series of proceedings meant, for allowing out of turn promotion to the appellant which are inter‑connected by an intrinsic unity, and are to be regarded as one legal proceedings. All these, as said earlier, took place prior to the deletion of section 8‑A from the Act, 1976. The Selection Board No.3, therefore, was not justified in law to refuse to judge the suitability of the appellant for his out of turn promotion on the ground that section 8‑A stood deleted from the Act, 1976. Even otherwise as said earlier, the deletion of any provisions of law would apply retrospectively if it is of procedural nature and if substantial rights by the change of law has been effected then the law which was previously enforced shall apply to the benefit of the person to whom any such benefit had accrued at the time when that law was in‑existence. ''This principle stood established from the authorities of this Court cited by the learned counsel for the appellant. Beside the so referred authorities the apex Court of Pakistan in case reported as Adrian Afzal v. Capt. Sher Afzal (PLD 1969 SC 187) after discussing number of authorities has laid down the following principle at pages 191 and 192: "The general principle with regard to the interpretation of statutes as laid down in the well‑known case of the Colonial Sugar Refining Company Limited v. Irving (1905 AC 369) is that 'if the matter in question be a matter of procedure only, the provisions would be retrospective. On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act', then 'in accordance with a long line of authorities extending from the time of Lord Coke to the present day', the legislation would not operate retrospectively, unless the Legislature had either by express enactment or by necessary intendment' given the legislation retroactive effect. To the same effect are the observations of Jessel, Master of the Rolls, in the case of In re: Joseph Suche & Co. Limited (1875) 1 Ch. D. 48), where it was observed that as ' a general rule when the Legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them. It is said that there is one exception to that rule, namely, that, these enactments merely affect procedure and do not extend to rights of action, they have been held to apply to existing rights: ........ ........ .. .. .. The next question, therefore, that arises for consideration is as to what are matters of procedure. It is obvious that matters relating to the remedy, the mode of trial, the manner of taking evidence and forms of action are all matters relating to procedure. Crawford too takes the view that questions relating to jurisdiction over a cause of action, venue, parties pleadings and rules of evidence also pertain to procedure, provided the burden of proof is not shifted. Thus a statute purporting to transfer jurisdiction over certain causes of action may operate retroactively. This is what is meant by saying that a change of forum by a law is retrospective being a matter of procedure only. Nevertheless, it must be pointed out that if in this process any existing rights are affected or the giving of retroactive operation cause inconvenience or injustice, then the Courts will not even in the case of a procedural statute, favour an interpretation giving retrospective effect to the statute.‑ On the other hand, if the new procedural statute is of such a character that its retroactive application will tend to promote justice without any consequential embarrassment or detriment to any of the parties concerned, the Courts would favourably incline towards giving effect to such procedural statutes retroactively." Judging from this angle the Selection Board No.3, was not justified in law to refuse to judge the suitability of the appellant on the basis of the Certificate of Commendation issued in his favour by the Commandant, Police Training College Sehala, the recommendations for out of turn promotion made by the Inspector‑General of Police in his favour and the approval granted by the prime Minister upon the same. The conduct ox tire Selection Board No.3, was highly objectionable which was not taken into consideration by the High court while dismissing the writ petition of the appellant. In view of the above, we accept the appeal and set aside the judgment of the High Court passed on 2‑4‑2001, and direct the Selection Board No.3, to return its findings by considering the matter relating to the out of turn promotion of the appellant in accordance with law and place the case of the appellant alongwith its findings before the competent authority for appropriate orders. S.A.K./311/S Order accordingly.