1998 PLP (C (PLC(CS))

Mr.Saeed Mehtab Butt W. P. No.- 18036/96 26-4-1934 30-5-1991 25-4-1997 25-4-1997 Vide Annex.C 31-12-1996 Dr. Muhammad Jamil Akhtar. W.P.No.24339/96 12-12-1935 19-10-1993 11-12-1998 31-12-1996 Major-General (Retd.) Naseer Ahmed Khan. W.P.No.13228/97) 9-6-1937 16-8-1992 8-6-2000 21-8-1999 Vide Annex.C 8-6-1997

3. The controversy has arisen on account of the amendments brought about in the original Ordinance by way of the Punjab Public Service Commission (Amendment) Ordinance, 1993 (Punjab Ordinance No.XIII of 1993) (hereinafter referred to as the Amending Ordinance) and the subsequent repeal of Ordinance XIII of 1993 under Article 128 (2)(a) of the Constitution of Islamic Republic of Pakistan, 1973 after three months from the date of promulgation i.e. October 3, 1993. Under the Ordinance the terms and conditions of service of the Members were to be determined by the Governor. Under section 4 thereof the terms of the office of a Member was not to exceed 5 years although a Member could be reappointed for another term not exceeding 3 years. The Amending Ordinance substituted the original provisions as contained in section 4 and provided that the term of the office of a Member shall be 7 years. It was, however, provided that a person already attaining the age of 59 years will not be appointed as a Member Section 5 of the Amending Ordinance is crucial and laid down that "Notwithstanding anything in the said Ordinance or any order or instrument a Member of the Commission holding office on the commencement of this Ordinance shall continue to hold office till he completes the term of 7 years or attains the age of 63 years, whichever is earlier".

4. It will be seen that in cases of Saeed Mehtab Butt and Major General (Retd.) Naseer Ahmed Khan, petitioners, at one time, the date of expiry of each of the petitioner was fixed according to the provisions of the Amending Ordinance but after the repeal of the same the date was refixed keeping in view the original provisions as contained in the Ordinance. In the case of Dr. Muhammad Jamil Akhtar, though no date of expiry was fixed but on 19-10-1993, the date of his appointment, the Amending Ordinance provided for a 7 years' term or until attainment of age of 63, whichever was earlier. As is obvious, this changed legal position has given rise to the controversy regarding the tenure of each of the petitioner, the rival positions being reflected in the above chart.

5. Another controversy pertains to scale of pay. Admittedly, under the original legal dispensation a Member of the Commission was to get BS-20 unless he was already getting a higher scale. On 5-10-1993, the relevant rules namely the Punjab Public Service Commission (Conditions of Service) Rules, 1978 were contended and the amended Rule 4 provided that BS-21 alongwith status, allowances and privileges attached to this pay scale would be admissible to the Member. M/s. Saeed Mehtab Butt and Doctor Muhammad Jamil Akhtar, the petitioners, claim that with effect from 5-10-1993 they are entitled to the grant of salary etc. in BS-21 while the third petitioner namely Major-General (Retd.) Naseer Ahmed Khan does not make any such claim as apparently his terms and conditions granted him BS-21. Admittedly, the amendments brought about in the Punjab Public Service Commission (Conditions of Service) Rules, 1978 on 5-10-1993 are intact and as informed at the bar, are parts of the-statute, in spite of the repeal of the Amending Ordinance. The other controversy, therefore, is whether the above-noted two petitioners can validly claim grant of BS-21 with effect, from 5-10-1993.

6. The case of Mr. Saeed Mehtab Butt (Writ Petition No. 18036 of 1996) has become infructuous in so far as the question of tenure is concerned, since this petitioner attained the age of 63 years on 25-4-1997 and has, under the interim orders of this Court, served as Member up to the said date in spite of the impugned order fixing the date of expiry as 31-12-1996. To this extent, therefore, the petition is held to have fructified.

7. The question of entitlement to pay scale may be taken up first as, in my view, it does not present much difficulty for resolution. In each case the order of appointment stated that the terms and conditions shall be settled separately. Most of the terms and conditions, however, are provided for by Punjab Public Service Commission (Conditions of Service) Rules, 1978 framed in exercise of power conferred by section 10 of the Ordinance. Rule 4 provided that a Member shall receive pay in BPS-20 and the letter of settlement of terms and conditions also said the same. Then came the amendments made in the (Conditions of Service) Rules, 1978, on 5-10-1993 and this provided BS-21 for a Member. The amendments in rules have also been made in exercise of the powers conferred by section 10 of the Ordinance. As noted and conceded at the bar, these amendments remain intact and have not been done away with. Consequently, and notwithstanding the promulgation and repeal of the Amending Ordinance, a Member is entitled to BS-21 because this is so provided by the (Conditions of Service) Rules, 1978, as amended. The denial of the respondent-Government to grant A BS-21 to M/s. Saeed Mehtab Butt and Doctor Muhammad Jamil Akhtar, the petitioners, is held to be without lawful authority and of no legal effect. This will be all the moreso in the case of Doctor Muhammad Jamil Akhtar who was appointed Member on 19-10-1993, after the enforcement of the Amending Ordinance as well as the amending rules. It is further declared that with effect from 5-10-1993, these two petitioners are entitled to BS-21 alongwith the consequential privileges and allowances etc.

8. The attack on the impugned orders dated 7-10-1996, reducing the tenure is manifold. One that the order has been passed without prior notice and hearing and two, that the same is violative of section 5 of the Ordinance which lays down the procedure for removal of the Member. It is contended that reducing the term, in fact, amounts to removal and, therefore, the procedure laid down for removal in section 5 of the Ordinance had to be complied with. It is further argued that the repeal of the Amending Ordinance under Article 128 of the Constitution, did not affect the previous operation of the Ordinance nor take away the right already accruing to the petitioners. Reliance for this purpose is placed on large number of precedent cases including the case titled Government of Punjab through Secretary, Home Department v. Zia Ullah Khan and 2 others (1992 SCMR 602). The impugned action on the other hand is defended by the learned Assistant Advocate-General, Punjab, Mr. Muhammad Iqbal Khichi, by contending that it is not a case of removal of a Member but the dispute really is to the fixation of the term of office of the Member and as such the procedure laid down in section 5 of the Ordinance was not required to be followed. It is urged that with the repeal of the Amending Ordinance under Article 128 of the Constitution, legal dispensation prevailing before 3-10-1993 reverted and in the circumstances the respondent-Government was perfectly justified in re-settling the tenure of each of the petitioners in terms of the Ordinance of 1978. Reliance has been placed on the cases titled Syed Fayyaz Hussain Qadri, Advocate v. The Administrator, Lahore Municipal Corporation, Lahore and 4 others (PLD 1972 Lahore 316), Mian Muhammad Aslam and 3 others v. The Deputy Commissioner, Sheikhupura and another 1990 MLD 1725) and host of other judgments including some from Indian jurisdiction.

9. The real controversy in these cases is the precise tenure of the petitioners. It does not seem to be a case of removal of a Member for which the procedure is laid down in section 5 of the Ordinance. Section 5, to my mind, would be attracted where the term of office is not in dispute but a Member, enjoying a settled tenure, is sought to be removed on charge of misconduct or on the allegation that he has become incapable of properly performing the duties of his office by reason of physical or mental incapacity. In the circumstances, there is no force in the contention of Mr. Zia Ullah, Advocate, learned counsel for the petitioners that the impugned order should be struck down on the ground of the same being violative of section 5 of the Ordinance.

10. Mr. Zia Ullah, Advocate, however, has to succeed on other grounds. Admittedly while the Amending Ordinance was in force, the respondent-Government fixed the term of two of the petitioners namely Saeed Mehtab Butt and Major-General (Retd.) Naseer Ahmed Khan, in accordance with the Amending Ordinance. The third petitioner namely Doctor Muhammad Jamil Akhtar was appointed on 19-10-1993 while the Amending Ordinance was promulgated on 3-10-1993. The Amending Ordinance did provide for a term of seven years or up to the attainment of age of 63 years, whichever was earlier. In case of each of the petitioner, therefore, a right accrued in favour of the petitioners to continue serving for a period laid down in the Amending Ordinance. In this connection section 5 of the Amending Ordinance is equally relevant. As noted above, this section provided that notwithstanding anything in the said Ordinance or any order of instrument, a Member of the Commission holding office on the commencement of this Ordinance, shall continue to hold office till he completes the term of 7 years or attains the age of 63 years, whichever is earlier. Section 5 in terms straightaway created a right in M/s. Saeed Mehtab Butt and Major-General (Retd.) Naseer Ahmed Khan to enjoy a tenure of 7 years or until the attainment of the age of 63 years. In recognition of the mandate of section 5 of the Amending Ordinance, the respondent Government issued Annexure 'C' in each of the writ petitions fixing the date of expiry of term of petitioner Saeed Mehtab Butt, as 25-4-1997 and petitioner, Major-General (Retd.) Naseer Ahmed Khan as 21-8-1999, when both of them will complete the age of 63 years. In the case of third petitioner namely Doctor Muhammad Jamil Akhtar appointed on 19-10-1993, section 4 of the Amending Ordinance itself provided that "the term of office of a Member shall be 7 years". The term having been fixed by statute, has to be allowed to this petitioner also. It is, therefore clear that in case of each of the petitioners the provisions of Amending Ordinance were applicable and as seen in cases of M/s. Saeed Mehtab Butt and Major-General (Retd.) Naseer Ahmed Khan, the respondent-Government itself accepted that position

11. The question arises whether the repeal of the Amending Ordinance in terms of Article 128 of the Constitution, changes the above legal position. The answer to my mind is in the negative. Reliance is placed on Article 264 of the Constitution which lays down that where a law is repealed or it deemed to have been repealed by, under, or by virtue of the Constitution, the repeal shall not, except as otherwise provided in the Constitution

(a) ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... (b) Affect the previous operation of the law or anything duly done or suffered under law; (c) Affect any right, privilege, obligation or liability acquired, accrued or incurred under the law; (d) ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... (e) ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .... ... ... ...

12. The Amending Ordinance is deemed to have been repealed under or by virtue of Article 128 of the Constitution and as provided in clause (b) of Article 264 this repeal did not affect the previous operation of the Amending Ordinance. In these cases, the Amending Ordinance operated to give a different and larger tenure to each of the petitioners and mere repeal, therefore, would not affect this operation. The case would also be covered by clause (c) as each of the petitioner can claim to have acquired a right and a privilege under the Amending Ordinance and merely because the Amending Ordinance stood repealed under Article 128 of the Constitution, the repeal would not affect their rights and privileges.

13. The cases cited by Mr. Muhammad Iqbal Khichi, Assistant Advocate-General, Punjab, are not to the point inasmuch as these cases either proceeded on different facts or are cases of repeal followed by fresh legislation. This distinction is important as in cases of repeal followed by fresh legislation the legislative intention has to be gathered from the fresh legislation. The present are cases of mere repeal under Article

128. The matter will, therefore, be governed by Article 264 of the Constitution and as noted above, under this Article a mere repeal does not affect the previous operation of the law nor any right and privilege acquired under the repealed law. If the respondent-Government wanted to fall back and apply the provision of the Ordinance in case of the three petitioners, it could not simply rely on repeal of the Amending Ordinance but has to bring into force some legal measures so as to wash away the affect of the previous operation of the repealed Ordinance or undo the right and privilege acquired while the repealed Ordinance was in existence. Admittedly, there is no legislation following the repeal. The re-fixation/reduction of tenure vide orders; dated 7-10-1996, therefore, is entirely illegal.

14. I also uphold the submission of Mr. Zia Ullah, Advocate, that if at all the Government could competently pass the impugned order, it could do so only after prior notice and hearing to each of the affected petitioner. The reason is simple. The petitioners acquired a right and a privilege under the repealed Ordinance and if the said right or privilege is sought to be taken away, the affected party had to be heard and its point of view/argument duly considered. Undisputedly, no prior notice was issued to any of the petitioners before passing the impugned order. The same has, therefore, to be struck down on this technical ground as well.

15. During the course of hearing it was also argued that the Amending Ordinance of 1993 being temporary in nature could not make permanent changes in the Ordinance of 1978 and with its repeal the amendments also leave the field. This may or may not be so. To my mind, this question need not be decided since the petitions can be disposed of on the points noted above.

16. For the above-noted reasons, all three petitions are allowed and while holding the impugned orders to be without lawful authority and therefore, of no legal effect it is declared that each of the petitioner is entitled to serve as a Member, Punjab Public Service Commission according to the tenure fixed in the Amending Ordinance and further that each of the (petitioner is entitled to the grant of BS-21 with all its benefits and privileges etc. with effect from 5-10-1993 when the amendments in the Punjab Public Service Commission (Conditions of Service) Rules, 1978 were made. In the circumstances, the parties are left to bear their own costs. A. A./S-181 /L Petition accepted.