Hussain Bashir & others Vs Govt of Khyber Pakhtunkhwa through Chief Secretary etc

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Judgmemt Sheet [F[ TME PESIilAWAR. HIGH COURT,

PESHAWAR."

WMN€NAN.MMPAEfl&dEAff.

JIIDGh,NENT

Writ Fetitiom I\o.4699-P/2022

t Date of hearing 02.05.2023.

Itrussain Bashin & others Vs Govenmment of Khyber Fakhtunhhwa through Chief Secretary Peshawar, ete Fetitioner (s) by: Mn, Jehanzeb Mehsud and Arnad Nasir K.undi Advocates.

R.espondent(s) by: M/s dhmad Farooq Khattak Advocate and Arnir Javed Advocate General, Khyber Fakhtumkhwa.

WIOAR. AI{NTAD" J Through this single judgment, we intend to dispose of, instant petition (Writ Petition No"4699-P/2022, titledo o'f,{ussain Bashin and others Vs Governmemt of Khyher Pahhtumkhwa etc") alongwith conneoted Writ Fetition No"170-P12023 titled, *Fatrvez Khan & others Vs Govermment of Khyber Fakhtumtrhwa amd others", Writ Fetitiom No.230-P/2023, titled, "Shahbir Ahmad and others Verstls Chief Secretary, Governrnemt of Khyher Fakhtunkhwa and

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othersn' amd Writ Fetitiom l{o.1089-F/2023, titled 5'Saddame and others Vs Govennrnent o{' Khyben Falchtunkhwa and othens"" In all these petitions, respective petitioners have prayed for similar relief of their regularization as civil servant of province of Khyber Fakhtunkhwa, under The Khyber Fakhtunkhwa Ernployees of Transport Departrnent (Regr.rlarization of Services) Act 2022 (hereinafter referred to as Regulartzation Act) as well as under provisions of the Khyber Pakhtunkhwa Ernployees of Transport Department (Regularization of, Services) (Arnendrnent) Act, 2022 herein after to be referred as the arnending Act. It is case of petitioners that Section 4 of Regularization Act provides for regularization of services of employees of Feshawar Bus Terminal (hereinafter referred to as PBT) appointed on contracVfixed pay therefore, refusal of respondents 1n regularizing petitioners AS employees of said directorate, have been illegal and same rnay be declared as sr.lch. With this

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grievance, petitioners have prayed, (for reference sake prayer of one of the petitions i.e Writ Fetition NI.4699-P/2A22 is being reproduced):-

'otkat this Mon'hle Cawrt rnay graciowsly he pleased to: 1" Declure tkst petittaners laave been duly regwlarized in tke light af Tke Kkyber Fwkhtunkkwa Employees of Transport Department (regulartzwtion of sewices) Act 2022 and tke imaction af tke respandents ta isswe thetr appointment arder is illegwl, arbitrary snd wrulawfwl"

2.Direct tke respondents to issue appaintment orders to the petitioners tn sccordsnce with Tke Kkyher Fakktwrekkww Emplayees af Transport Department (regalarization of services) Au 2422" 3, Etreet the respandenis to release tke salaries af tke petitioners whicfu has been witkheld sircce 0 I "06.2 0 2 2 " 4. Dtrect tke respondents to treat tke petitianer tn aceordanee witk lsw.

5.Any other better relief deermed just and eqaitable tn tke circamstsnces af tke c&se na&y be ktndly granted.

2 R.espondents were put on notices who have filed their comrnents. In their

cornments they mainly asserted that both the Regutrarization Act and the amending Act have been introduced in the house by a private raernber and therefore its introduction in the house as well as conversion of the bills into statutes were in derogation of Article 115 of Constitution of Islamic Republic of Fakistan 1973 (hereinafter referred to as Constitution).

They also contended that petitioners have never been appointed against posts of civil servants by any of the cornpetent authorities in the Frovincial Govemment but they had rather been appointed by Road Transport Board Khyber Fakhtunkhwa (hereinafter referred to as RTB) as contract and fixed pay ernployees of FBT, which as per their cornments was an autonornous body estabtrished under Section 70 of the Motor Vehicle Ordinance 1965(hereinafter refen'ed to as MVO 1965) and its employees ooutrd neither be treated nor regularized as civil servants.

3 Learned counsel for Petitioners submitted during course of arguments that petitioners trad been regularized under the

Regularization Act and that under rnandate of Legislature, the executive authorities were bound to issue their regularization orders but instead of regularizing petitioners, they have been plaaed in limbo as they were neither being paid by RTB nor was the Frovincial Govemment owning thern as their ernployees.

Learned counsel also contended that law favours upholding constitutionality of validity of enactments and in case where two opinions with regard to Constitutionality of an enactment are possible the one in favour of validity of enactment is to be adopted. If vires of sarne law are challerrged the burden always lies upon person making such challenge to show that same law is in violation of fundamental rights or provisions of Constitution, according to learned counsel. FIe placed relianae in this respect on the judgrnent of Hon'ble Supreme Court of Pakistan rendered in the case of "l\{essrs Sui Southern Gas Connnan y Ltd and others Vs Federation of Paldstam and others" re ported as (2018 SCMR. 802). F{e also placed reliance on

judgment of Lahore High Court rendered in case of "Flvims Cernent Co" Ltd and others VS Govennment of Falcistan throush Secretarv Ministnv of Waten and Fower and others" renorted fls PLD 2015 [-,ahore 146 and contended that it had been held by the F{on'ble Lahore High Court that Provincial Assembly was fully competent to legislate on the rnatter and there was no case of incompetence of legislature. FIe also contended that vires of law have not been questioned by any person, therefore same could not be struck down and grounds raised in oomments could not be considered. FIe also added that since vires of statute in question have not been challenged by any aggrieved person and this Court is having no suo moto jurisdiction f'or deciding upon vires of the statute. For bolstering his submission the learned counsel placed reliance on judgment of Hon'ble Supreme Court of Pakistan given case of onllr.Ermnam Khattah Vs Sofia Waqar Khattnk" remorted as (2014 SCMR 122).

4.Learned Advocate General on the other hancl directly raised question as to validity of the very Regul arizatian Act as well as the arnending Act. F{e stated that both the bills in case in hand had been introduced by a private rnernber of Provincial Assernbly, without Provincial Govemment being on board; which bills have therefore been passed in violation of Article 115 of the Cnnstitution. He also contended that services of these employees have never been needed to Frovincial Governrnent for any public service delivery. Learned Advocate General added that services of these employees were not even needed to RTts, which aLltonomous hody was having its domain of regulating affairs of Peshawar Bus Terminal (PBT) but sarne had also been out sourced in 3'd annual meeting of RTB held on l't September 2022. He added that despite the outsourcing, huge fleet of employees in various basic pay scales ranging frorn BPS-3 to BPS-I8 had been recruited for unknown tasks. He added that if services of such employees were regularized

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then huge recurrent budget would be required for their salaries and other expenditures, which would therefore create a charge on provincial Consolidated Fund. He also contended that such a bill coulci not have been introduced by a private rnernber in Provincial ,A.ssembtry.

5 We heard learned counsel for petitioners and leamed Advocate General on behalf of respondents

6 Ferusal of record reveals that the case brought before this Court by petitioners and defence put by Provincial Govemment in its cornments as well as the issues raised by leamed Advocate General at bar, have directly conftonted us with the following questions:- l" Wkether tke Regalarization Act and the amendtng Act hwve validly been ewacted awd same skould be trested & valid {aws, enforceahle tkroagh issasnce af writ ander Articte 199 of the Constttwtton?

2" Wketker Regalartzation Act ds well $s swhseqwent smendment coald be reconctled witlt tke mandate af Afiicles 240 to 242 of the Corastitwtion?

3.Whether petitioners have validly beew appointed and tkey kad beew holdtwg any post in ctvil service of the Pravince and wketker their sewices could be treated regularized under lhe Regwlarization Act?

4" If qaestions framed *bove dye &wswered iw affirnaative tken can tkis Coart hold amd declaye botk tke statutes to he invulid and ultra-vires im tnstqnt pweeedings or tt skoald be resd down?

Diseussiom om Oues{ion I\o"tr. Eills for enactrnent of both the laws have admittedly been introduced by a private mernber of Provincial Assembly and not by Provinoial Government.

Asp er'nMessrs Mustafa lrnpex. Karachi amd othens Vs Government of, Pakistan thnou sh secretarv Fimanee" Islamabad & others.

reportecX as PLD 2016 SC 808 Federal Govemrnent means Federatr Cabinet. Article 90 of the Constitiltion of trslarnic Republic of Fakistan 19V3, which defines Federal Governrnent is pari materia with .A.rticle L29 af the Constitution, which defines Provincial Govemrnent. Same is the case with Article 91

(Federal Cabinet) and Amicle 130 (provincial Cabinet). Both of sarne articles have been couched in similar languages. On the ratio of o'Messrs Mwstwfa trrnpex oase supra we can

safely conclude that wherever a power is provided to be exercised by Provincial Government under constitution, same could only tre exercised after it is authorized by the Frovincial Cabinet. The bill prior to its introduotion has neither been placed before cabinet nor approved by it for being tabled in the Provinciatr Assernbly. Under Rule 8 sub rule (1)(a) of Rutres of Business 1985, a bill approved by Cabinet is supposed to be introduced in the legislative house by Minister Incharge of the Department. It is an admitted fact that neither the bills had been placed before, nor approved by Frovincial Cabinel before introduation in the house. There is atrso no doubt about the f,act that the bills were carrying provisions of regularization of 516 (554+62) employees of FBTunder service of Directorate of Transport & Ivtrass Transit Department besides sorne other

empioyees of,another project i.e, TtrS employees and same woutrd therefore result in addition of a charge on Frovinciai Consolidated Fund. Article 115 of the Constitution of Islamic Republic of Fakistan i973 provides that a money bill, or a Bill or arnendment which if enacted and brought into operation would involve expenditure from Provincial Consolidated Fund or withdrawal from the Public Account of the province shall not be introduced or rnoved in the Frovincial Assernbly except by or with the consent of Provincial Government" The Provincial Govenmrent has neither introduced said bill nor has given consent for its introduction at any stage. Provincial Government has totalXy been out of picture till date. A.fter passing of bill, same had been sent to the Executive for irnplementation and their refusal has resulted in filing of instant Constitrition petition.

7 So far as a nxoney bill or Bill or amendrnent having financial implications f,or Frovincial Govemment are concemed, same have expressly been provided to be first

approved by Frovincial Govemment for its introduction and then with further approval of Frovinciai legislature, such bills may be passed and necessary expenditures may be authorized.

Here ttre constitution has been aiming to provide a mechanisrn for authorization of spending frorn Frovincial Consolidated Fund except charged expenditures. trn this regard provisions rnade in Articles 118, 119 and rnost importantly Afticle 120 of the Constitution may also be considered.

Frovincial Consolidated Fund and Fublic Accounts of province have been provided for under Article 118 of the Constitution while Article 119 of Constitution have been dealing with custody of Frovincial Consolidated Fund and Public Accounts of the province. Article 120 of the Constitution has given rnandate of preparing and presenting annual provincial budget to the Provincial Government while Article 121 of Constitution have been providing for expenditures charged upon Provincial Consoliclated Fund. Article 122 of the Constitution has provided that expenditures

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charged upon Provincial Consoliclated Fund may be discussed but would not be submitted to vote of Provincial dssembly while other expenditures wouXd be subrnitted to Provincial Assembly in the fonn of demands for grants and that assembly would have power to assent to, or to refuse to assent to such demands or to accept it subject to reduction. Sub Article 3 of Articl,e 122 of the Constitution is again of utrnost importance where it categorically prohibited Frovincial AssernbXy not to entertain any demand for a grant unless same is recornrnended by the Provincial Govemment. Similar provisions have also been placed in case of Federal Governrnent and Federal Consolidated fund under Articles 70 to 85 of the Constitution.

I We also find in the above explained scheme of financial authorization, a concept of separation of powers between executive and legislative organs of state. Custody of Provincial Consoiidated Fund no doubt lies with Provincial Assembly but the whole provincial assembly cannot assurne to itself, the role of introducing

rnoney bills. F'ramers of Constitution have consciously put Article 115 of the Constitution with a clear purpose and object. It is for the executive branch of govemment to initially submit proposals for creating charge on provincial oonsolidated fund and same can only be deemed created when these proposals are approved by Provincial Assembly. Executive branch of state cannot assume the role of provincial legislature, on the other hand. The provincial assembly may supervise but cannot mould itself into the role of Provinciatr Executive. There is no arnhiguity in the constitutional mechanism provided 1n this regard

I Coming back to the bitrls in hand, we see that sarne were having the effects of incun'ing financial expenditures and creating visibie charge on Frovincial kitty and same could not have been introduced in the provincial assembly without assent of Provincial Government i.e, the cabinet. This Court while giving its judgrn ent in case of, "F'rontier Mines

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0wmer Associatiom Vs Khv ber Falchtunkhwa throueh Chief Secretarv. Government of Khvber Pakhtumkhwa and others (Wnit Fetitiom No.1769-P/201 ilh ad deolared Khyber Fakhtunkhwa N{inerals Sector Govemance Act,20l6 as ultra-vires f,or the sole reason that introduction of bill had not been authorized by the Provincial cabinet.

Similarly in case of "Messrs IVtrusta{h [mpex. Karachi and others Vs Governrmemt of Fakistam thro uch secnetanv Finance Islarmabad & others reported as PLD 2U6_ Sq &CI_8_, Hon'ble Supreme Court of Fakistan had also declared the fiscal notiflrcations enhancing the levy of tax issued by the Secretary, Revenue Division or Minister as ultra vires rnainly for reasons that sarne had not been authorized by Federal Cabinet before its enf,orcernent. There rernains no doubt that Regularization Act as well as the amending Act had not been validly enacted and same cannot be held to be valid laws.

Diseussiosr on Ouestion No.Z. Articles 2 40 had been put in place for providing Constitutional framework for establishing and regulating service of Pakistan (Federal and Provincial service) Article 240 is also reproduced herein for ready ref,erence:-

24A" Swhject to tke Constitation, tlae appotntwents to qnd the conditions of service of, persons tn the sentice of Paktstan skull be determimed; a" fn case af servtces of, tke Federatiom, posts in connectiow with the affitrs of tke Federation and,4ll Paktstan Servtces, by or under Act af Majlis- e-Shoora (Fclrliament);

srad b" trn the cuse of,the services of a provtnce and posts in eonnection wtth the affairs of w province, by or wwder Act af, tke Provtncisl Assemhly"

Article 242 trave also relevance in the instant matter whieh is also re produced herein:-

242.(1) klajlis-e-Skoora (Fclrliuwewt) in relation to tke wffiirs af tke Federatton and tke Frovtncisl Assembly of & province in relatiom to tke affairs of Federation shall be appointed by the Prestdent on tke advtce af tke Frime Mtnister.

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lA" Tke Ckairrnan af tke Pabltc Serviae Connmission constitwted tn relation to the affwirs of tlae Federation shall be appointed by tke President on tke advice af the Friyne fuIinister.

lB" The Chatrnnsn of tke Fablic Service Commisston eowstttuted in relattan to wf,fairs af & Fyottimce skall be appotnted by tke Governor on advice af tke Chief Minister.

2.,4 pwhltc sewice cammission skall perform swck fwmctions N mey be prescribed by law""

Article 240 of the Constitution has provided that subject to Constitution appointrnents to and conditions of service of persons in service of Pakistan woutrd be determined in case of service of Federation or post in connection with affairs of Federation, by or under Act of parliarnent;

and in case of services of a province, post in connection witkr affairs of, province by or under Act of the Frovincial Assembly"

x0" F{ere it is important to be noted that for enactment of a law dealing with appointrnents and regulating terrns & eonditions of service, there have to be existing posts. In case of the present petitioners it is averred in the

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cornments of respondents that schedule of new expenditure has neither been subrnitted before Provincial Government (provincial eabinet) for consideration nor approved in the prescribed nnanner. So these posts, upon which petitioners are seeking appointrnent, did not exist in regular financial budget of' province. Without existence or creation of posts in Directorate of, Transport & klass Transit Khyber Pakhtunkhwa, all these petitioners have been provided to be deemed as regularly appointed in said directorate under Section 4 of the R.egularization Act. Then under the amendrnent Act it has further been provided that they would be deerned to have been appointed in the particular scales, i.e. BPS-18, EPS-17, BPS-I5 and other lower scales, as civil servants on the given posts, on comrnencernent of the Act. Through a proviso it has also been provided that those employees in RTB (who had been appointed under the Act) would be ernployees of Directorate of Transport and Mass Transit, Khyber Pakhtunkhwa and were declared as civil servants in the pay scales given therein.

x1. it has been clarified in olrr discussions made in earlier part of this judgment that for creation ofnew regular budgetary posts demands for relevant grants has to be first approved by Provincial Cabinet and then recomrnended to the Provincial Assembly for approval under sub Article 3 of Article 120 of the Constitution. Article 115 of the Constitution also prohibits introducing or moving of a money bill or amendrnent which if enacted and brought into operation would involve expenditure frorn Provincial Consolidated Fund or withdrawal from Public Accounts of the Frovince except by or with the consent of Frovincial Govemment.

Same rnandatory requirernents have not been found fulfilling in case in hand therefore R.egularization Act as well as the arnending Act, have not been found validly introduced in the house. Sarne cannot be treated valid laws being passed in contravention of Article 115 of the Constitution. Article 240 states that "subject to Constitution" the appointment to and the conditions of service of,persons in the service of

Fakistan shall be determined in the case of services of a Frovince by or under Act of the Frovincial Assembly tkrerefore if an act is not passed according to constitution, it cannot be held valid for purpose of appointment to and regulating conditions of persons in the service of province. The regularizatian Act as well as the an:ending Act are not f'ound in accordance witkl Article 115 of ttre Constitution and therefore same carlnot be given effect. The posts had neither been existing in service of province nor created in accordance with Article 120 (3) of Constitution and therefore the regularization of petitioners could not be lawfully made on non- existing posts through private rnernber bills" So the enactments are also not made in accordance with Article 240 of ttre Constitution. Question No.2 is accordingly resolved.

Discussion om Ouestiom No.3. Petitioners have been appninted as employees of Feshawar Elus Terrninal by Regional Transport tsoard in various posts on temporary and contract basis where rnost of employees have been appointed

on 15"04.2A22 and 20.04.2A22. Few of ernployees had also been appointed in the year 2021. Applications have not been invited frorn public by rnaking advertisement in any newspaper. The appointment orders do not rnention any recornmendations being rnade by any selection comrnifiee established for the purpose. Inf,act no setrection comlnittee has been constituted and no fair process of selection had been conducted. Learned Advocate General was not having any record of these appointments.

Simple Computer prints or profoma appoinfinent orders (shown signed by a Director) had been handed over to petitioners for their appointments at Peshawar Bus Tenninal.

Copies of minutes of 3'd Annual rneeting of Road Transport Board (RTE) has also been brought on record alongwith CM No.59-P/2An.

Said CM is also containing a number of other orders being issued in month of April and May 2022. Eesides, minute of, 3'd meeting of Transport Board held on l't September 2022 reveals that the board while being headed by

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Shah Muharnrnad Wazir, then Minister Transport & Mass Transit, Khyber Fakhtunkhwa (then Chairrnan R.oad Transport Board) had allowed auction and awarded contracts for regulating affairs of Peshawar Bus Terrninal to Mr" Shah Nawaz and cornpany (private cnntractors). Similarly shops and canteens for Peshawar Bus Terrninal have also been outsourced. So-rnuch-so that cleanliness services and photocopiers shops etc have also been leased out but interestingly in same minutes of meeting of R.TB, plea of regularization has been presserJ in service agatn, where ernployees recruited in Feshawar Bus Terrninal were also airned to be assigned job of going for road checking and earning money for Road Transport Eoard. Even it is not clear that for what statutory flrnction they would be deputed in Frovineial Govemrnent on the desire of RTB in the whole province and on what account they would collect rnoney frorn public at large and transporters. This could not be explained by leamed counsel for petitioners that for what

services these ernployees have been recruited ancl what duties would they perfom. The manner in which they have been recruited by a public office holder, i.e the then Director of Road Transport Directorate is also begging for an inquiry but no such inquiry or action has been initiated either by Anti Cornrption Establishrnent or the departrnent itself, despite the fact that various authorities of provincial Governrnent have raised substantial questions in respect thereto; as is evident ftom comments and surn rnary annexed therewith

\2. Coming back to the question for determination it is irnportant to note ttrat all petitioners had been appointed as employees of Feshawar tsus Terrninal by the RTB, which cannot be deerned to be Provincial Governrnent or a department of Frovincial Government. It is in fact an autonomous body established under Section 70 of the Motor Vehicle Ordinance 1965. It is Road Transport Board whioh had given approval to hire 50 and 550 daily wages wortr<ers on need basis in its meetings held on

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43.09.2021 and 8.A1.2022; in pursuance to which petitioners have been appointed 1n surreptitious manner, as discussed earlier. None of petitioners have been appointed on any sanctioned post reflected in regular budget of Governrnent of Khyber Pakhtunkhwa. So-much- so that schedule of new expenditures has not even been proposed to any forurn, for creation of these posts under Government of Khyber F'akhtunkhwa till date. Posts under Governrnent or its establishrnent should only be created in the interest of public i.e. Feople of the Frovinee and posts cannot be created for mere benefit or giving employment to certain blue eyed persons of a Minister or sinnilar other persons" Whatever may be the circumstances the fact remained that no sanctioned post had been existing where petitioners could be ernployed as government ernployees or civil servants. Their appointments had also not been made for any job of a civil service under Provincial Govemrnent, rather they had just been appointed as contract employees of Feshawar Bus Tenninal. The

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Regularization Act also aimed at regularization of other employees earlier hired in the Directorate of Transport & Mass Transit Khyber Fakhtunkhwa, which employees have been categorized a TIS employees. None of (6T15" employees have brought any petition before this Court and petitioners before us are those employees who had been recruited in Peshawar Bus Terminal by R"TB. Learned AAG stated at the bar that since the law had not been validly enacted, therefore, employees of TIS have also not been regularized under the Act and that their matter shall be dealt with by the government separately. So far their employment ic ooncemred, we do not want to comment on their status any fuither because sarne rnay prejudice their case or interest if and when t-heir case comes before Court. We at the moment leave their rnatter with the government and restrict our ,Jiscussion to the extent of Constitutional validity of the Act. Whatever may be the situation mandate of Article 115 of the Constitution carurot be ignored.

Discmssion on uestiom I{o.4. SIhile dealing with this question we are mindful of fact that presumptions lies in favour of' uphoiding constitutionality of statutory instruments. We are also conscious ofthe fact that vires ofstatute has not been specifically chalXenged by any aggrieved person by instituting a writ petition but it is also apparent that questions have been raised regarding validity of the statute by, none else than Frovincial Government, 1n their comments. trt is only a procedural matter where vires of, a statute are questioned in writ petition or questions are raised in respect thereof in the comments or reply of respondents. Question raised before a court becomes a question for determination of the Court. When a Cor.lrt is attending to a question raised in writ petition, it resolves the controversy raised before it. Same is situation where the question is raised before it in comments, reply or written statement. When a question is so raised in duly instituted proceedings then it becornes legal duty of the court to resolve such a question, regardless of

the fact whether it has been raised by petitioners or respondents" The Code of Civil Frocedure 1908 is applicable for regulating procedure in entertaining and disposing of writ petitions R-eliance in this regard may be placed o11 judgment of the Ftron'ble Supreme Court of Fakistan rendered in case of 6,Muhammad Yar deeeased) ttrroush I-,R.s and others Versus Mrnhannrnad Amrin(deceased ) throush L.Rs and othens" reuorted as 20n 3 SCMR. 464 as wetrl as in case of "Nflelhammad Ovais and amothen Versus Fedenatiom of Fakistan throu g 1\{inis trv of Wonks & Housim g Fakistan {slamrahad amd others" remorted 2007 SCMR 1587. Order XIV Rule I CPC says that issues arises when a rnaterial proposition of fact or law is affirmed by the one party and denied by the other. It also says that each proposition affirrned by one party and denied by the other shall form the subject of a distinct issue. Then issues raised by both the parties and framed in manner provided in Order XIV Rule 1 CFC, has to be attended by Court wtrile giving

judgment. Such issues are supposed to be resolved in such judgrnent" Question raised in the written statements are also supposed to be reduced into issues which are points of determination of a civil Court. Borrowing said analogy we find the issue raised in comments of respnndents as direct questions for detemination of this Court. We could not find any other way to avoid deciding upon constitutionality of the Acts as these were main apple of discard and were pivotal for resolving the entire controversy, raised in instant Constitutional petition. It was a case of its own nature where question of validity of an Act has been raised by Frovincial Goverrunent and therefore the principle that vires of statute has to be specifically challenged by an aggrieved person would not apply in this case. Resolution of the questions regarding validity of the acts has not been in suo motto jurisdiction either but norrnal adjudicatory dornain of this Court R.eliance of learned counsel for petitioner on the case of o'Dr"trrnnan Khattak Vs Sofia Waqar

Khattak" renorted as Qol4 SCMR n22) and his contention that this Court was not having suo moto jurisdiction for looking into vires of staflite, is therefore, not holding any water. This Court is infact resolving a live issue raised before it through validly instiflIted proceedings, which is a normal mode of dispute resolution in adversarial proceedings" Powers of the Court in rnaking decision on disputed question of law cannot be deemed limited. More so when it is a Constitutional Court established by and working under the Constitution" .dnother interpretation wr:uld rnean that this Court would be following a line drawn for it by the Provincial Legislature, even in disregard of rnandate of constitutional provisions. The oath of office of High Court judges on the other hand dictates that a Judge of F{igh Court or Supreme Court would perf,orm its firnction to the best of his ability in accordance with the Constitution. Then again he takes oath that he would be duty bound to def,end and preserve Constitution of Islarnic Republic of Fakistan 1973. There cannot be two views that

Constitutional provisions have precedence over ordinary statutes.

n3. We have also considered other altemative possibility of reading down the statutes so as to show deference to the statutory instrurnents and to avoid same being deolared unconstitutional but could not found the option of reading down a viable one. Theory of reading down is a judicial principle implied for the purposed of interpretation where provision of two statutes are conflicting each other to an extent that one has to be read down so as to give reasonable and logical effect to the other statute Same principle is also adopted when part of a statute is found in derogation of any provision of constitution and when rest of statute may be saved by reading down a part of it. Situation in case in hand is of such a nature that both the statutes oannot be saved. In our above discussion, we have found that the statutes had not been introduced and passed according to Constitutional provision but in regard thereof. In such a situation the statues cannot be saved.

F{on'btre Suprerne Court of India while giving its majority judgm ents in case of "Ilelhi Transport Cornroration vs D"T" C. Mazdoor Comsress" reponted as AIR 1991 SC 101 has held:- 'nwllen language af provision af law w{ts capahle af, only ufie constractian swd if according to tkat constrwction tke provision cowtravenes $ constituttonal provision tt mast he strack down, A literal interpretatiaw is not always the only interpretation af w provision im q statate and tke cowrt kss to loalr at tke setting in wktch the words *re wsed wnd the cit'cwntstsnces in wkich tke law c&tne to be passed to decide wketker tkere ds sornething twtplicit bekind tke words actwully wsed whieh wawld control lke literal weaniwg af tke words used."

The reason of not enaploying doctrine of reading down in said case, has also been elucidated in the.ludgment and sarne is also reproduced here, being relevant to the case in hand:- n'Ow a gwogrer cansideratton of the cwses cited hereinbef,ore ws well as the observatians af Seewat tn kis book tConstitwtional Lsw af India' anrl also the meaning that hus been gtven iw the Australian Federal Constitwtional Lsw by Cotn ldoward, tt is clesr snd apparent thst wkere aruy term has been used in the Act whieh Xrer se

seewrs to he withowt jartsdictton bwt can be read down in order lo ymake it constitutionally valid hy separattng and exclwding tke pa$ wkich is invqltd ar hy tnterprettng the ward in sueh a fashion in order to muke it constitutionally valtd and withi.n jarisdiction of tke legislatare wktck passed tke sutd enactment by readimg dowm the provisions of tfue Act. This, hawever, does not under finy ctrcatnstances tnefrn tkst wkere tke plain and literal meandng tkat followsfrom u bsre readiwg af the provisions of tke A,ct, R.wle or Regwlatiow thst it corufers arhttrary, uncanltsed, wnbridled, wnrestricted pvwer to terminste the sewtces af $ perwanent ewployee witkowt recording aruy reasans far the sawe awd wttkowt adkertng ta the prinetples of, natwral jwsttce awd equality before tke law es envisaged tn,Article 14 of, tke Constttation, cfinnot he read down to save the swid provision fram canstitwtional invalidity by brtngtng or adding words tw the said legtslwtion swck &s saytng that it implies tkut reesuns fw the order of termination kave to be recorded. nn interprettng tke provisions of Ac$ it ts mot perwcissible wkere the plain lawgwage af tke provision gives a clear and wnurnbigwows weaning c&n he interpreted by reading down and presurming certain expresstons in order to s&ve it frorn constttutionsl tmvalidity. Tkerefore, on s considerstion of the above deeisiansn it is imposstble to fuald hy reading

?\ JJ

down the irnpugned prrvisions of Regulatian 9(b) frarned wnder s. 53 of tke Dethi R.oad Trwnsport Act, 1950 resd witk Detki Raod Tramsport (Arnendment) Act, 1971 that the said pravision does not confer urbitrary, ungaided, wnrestricted snd wneanalised power wttkowt any gwideltnes 0n tlae authority to terminate the services af an employee withowt conforrning ta the principles of natural jasttce awd eqwality as envisaged in Ayticle 14 af the Co nstitwtto n of lwdta. " Said reasoning has also been found acceptable and adopted by Hon'ble Supreme Court of Pakistan while giving its judgment in case of "Frovince of Sindh throueh Chief Secretany amd others I/s M.0.M. throu ph De n u tv Co mvemer and otherstt remorted as FI-,D 2014 gE53_1, wherein Para34, it was held:- ,4 compwrison af, wn-amended seetion l3(l) af the Act woald indicate that in the fowner there was & provisian of prior ruotice and inviting abjections from tke people af tke area before tt could be declared to be arhan or raral. trn tke awended provision, 0 proviso has heen added to tke effect that tfue Delimitatiow Officer/Depaty Commissioner dwrtng the process of deliruitation caald declare @ny $re& to be rwral or otkerwise witkowt evem a prior notice. Tlae powers huve been

delegated withowt any guideline. Tiris excessive and arbttrary delegation of power is not only vwlnerahle to miswse bwt kss been so used and wkich ts evidentfrorn the mamner in wkick tke appellate awthotitjt t.e. the Cornmissioner dectded tke appeals tkrough reon- speaking ordeys. An argament wws raised thst the Coart showld rnake every effort to suve tke st{ttwte and tkis eaw he done by invoking tke principle af 'reading in' or 'reading down'. However in this context two principles kave to be kept in view. First, that tke object af, 'reading down' ds prtwearily to save tke statate and in cloing so the paramoant qwestion would be whether tn the event of readtng down, can tke stotwie remaim f,unctianal? Seeond, wowld the l.egislatwre have enacted the law, if that isswe hwd heen browght to its nottce whick is heing agttated before the Coart?

in said judgment Hon'ble apex Court has also held that:-

n'L,6w or provision af law not in conforwity witk the constttwttonal provtstonsn tt can declare swck law or provision of lww ss wltra vires af the Constitwtiom."

While holding so Flon'ble Supreme Court of Fakistan have also made reliance upon earlier judgment ln case of t'Government of Baluchistan throush additional chief

^;i.^i

secretarv Vs ,Azizullah Mernon and 16 others" ne nonted as PLI) 19 93 SC 341 and Pakistam" remoEted as 1999 SCMR 1379.

Hon'ble Suprerne Court of pakistan while giving its judgrnent ln case of 66@_ I-,qg Itehad and amother Vensus The Etreation Cormrnission of F akista m amd others" renonted as FLD 2022 SQ 39" has also held that when a Cout of law finds constitutional defect [}r violation in a statute or other legal instrument it has a whole array of rernedies availabtre to it. It was further explained that such remedies includecl striking down the entire statute as well as the tools of, fine tuning such provisions by ennploying principle of, reading in and reading down" Eut the scope of, reading in and reading down should be kept iimited to those eases where it may be rernedied by resorting to hamnonious interpretation. Similarly in case of "Pnovinee of Funiab throuEh Secretarv Apniaulture De [}a rtment Lahore Vs Saleenn niaz and others" 2023 scMR 774" FIon'ble

Supreme Court of Pakistan has also held that rule of reading down was a recognized rule of statutory interpretation so as to construe two conflicting statutes harmonious. Hon'ble Apex Court also held that sucli rule of reading dor,vn should be used for a lirnited purpose of,making a particular provision workable and to bring it in harrnony with other provisions of the statues.We are left with no other option but to hold and declare both the R.egularization Act and the arnending Aot to be in violation of constitutional provisions. The writ cannot be issued for its enforcement by extending the relief as prayed for in instant petition as well as conneeted writ petitions. This Court while giving its earlier "judgm ent in case of "Wali Muhammad Versus Govennrnent of West Pakist am and 3 others" LI) 1970 Feshawar 119 has held that when a Court finds a statute in conflict with Constitution it dnes not annul or repeal a statute but simply refuse to recognize it and detenmine rights of parties in a manner if such statute had no applieation. The Court cannot simply ignore

the statute but has to render a decision one way or others as its vatridity has to be discerned on the touchstone of Constitution. Besides, state of law on the subject has also been much developed subsequently. Hon'ble Supreme Court of Pakistan while giving its judgrnent in case of n6lladavat {Jllah Vs Federatf,on of Fahistam" renorted as {2022 SCMR 1691) has dealt with question of arbitrary appointments and its regularization through legislative instrument and discussed question of proper appointment and its regularization through various statutory instruments as folXows:-

21.It may be notieed from tke dictum cited thst ,Article 240 ds siwply tke hefuock 0n which wppoimtments ta tke service of Pskistsn sye to he made. It ts tken the respowsihiltty af the appotnting awtkarities to ensure that appointments sre ynade strtctly iw sccordance witk tke retevant laws (imclwdimg tke applieable rules and regwlations) thut tncorporate the principles af unertt (selection tkrowglt {! cowpettlive pracess), non- dtscrirniwutton, transparency and fairness" Whilst tke cases jast cited were primarily concerned witk appotntments to tfue senior Nnost posts tm an orgwnizalton, in owr considered view the same priwctples apply ta

appotntments on any post tn pwblic service stnce un organizatton cnn only best sewe tke people af Pakistaw wken all tts ernployees aye qwaltJied individuals who sre selected through afair and transparent process. In the ubsence af dedicated swpporting staffn no sentor offieer sitting at tke helyn af affatrs c&n swcceed tn guiding the nation towsrds prospertty" trIowever, it is signiJicant that tkese cherished prtnciples are not merely frwit af jwdge nrade law but tkey also emanate from the fwndarnental rights enshrined in the Aonstitwtionn especially Arttcle 18 (freedom of, trade, bwstness or prafesston) wkerefor tkey oecwpy an tmnnutable ckuructer. This is cony'irwed by tke Cowrt in n'Mashtaq Ahrnsd Mohal v" trdanoarsble Lahore Iliglt Court'(1997 SCMR 1A$): 't16. ..Jt may be ohsewed that even otherwise, the Constitwtional reqwirement, inter wlia, enshrined in ,Arttele /8 af the Constiiation"". tmclwdes the right of a citizen ta cornpete snd participate for appotntnnent to a post iw any Federal {tv s Provincial Gaveynment departmenl 0r sn attsched department ar autonomows hodtes/ corporattons etc. on the bssts ofopen cowpetition, whtck right ke cannot exerctse wnless the pracess af appotntwent is trawsparent, fair, jast and free from any camplclint as to its transpwrency and fair nes s... t' Tlae above ewwncistion af law retterates principles laid down by tke Cowrt in 'nMunuwar l{han v. Nisz Mwkawamad (1993 SCMR 1287) at para 6 snd Abdwl .trahbar Mernon: Xn re (1996 SCMR 1349). Ilowever, the mMertd on record tn tke present

cilse, fwrnisked hy the yelevant Ministries/ Divisions, estahltshes that these prtnciples af rnerit, non- dtscrimination, trensperency and fairruess were not followed in the vast majority af the inittal appoimtments (frowa 01JLn9% tu 30.11.1996). Therefore, swch defective appotntrnents s wffired fro m illegality and were void"

ln Fara 22 af said judgment it has been held as under:-

22, For tke inittal wppotntments of benefietary emplayees tkat were illegwl from tke outset, it vttss not wtthtw tke eornpetence af Psrliamemt to ensct laws tkat firstly, bypassed the settled reqairements emskrtned in the Constitwtion for joining pablic ewployment and secondly, protected tkese umlawf,wl appointwents witkowt caring their respective defeats. Swck contrsvention eam be seen tn section 4 of tke ,4ct where atl beneficiary ernptoyees were ardered to he regwlarized (ettker on the satne scale of, an one-step higher scale) within a certain ttwefrarne witkout connplying any cadal f,ormalities and wttkowt regard to the nqtwre af the post tkat they occupied prior to tkeir disrnissul, removsl ot terminstion frona servtce" A few exa*nples of tke types af, emplayees who were reqwired to be regwlarized wruder tke ,A.et $re listed below for ref,erence:

i, Employees appatruted on permanent, tempurery, regular or

ad koc basis or otherwise against a regular 0r temporwry pnst fseetion afu)l;

ii" Employees appointed on contyfict basis agairest a regular or tewporary post fsection 4(b); and iii" Ernployees appointed as nny Wpe of tratnee fsection 4(d)J, Similartry in case reported as (20X5 o'Conternpt SCNIR. l7S2), Froceedings against Chief Secretary, Sindh and others in Criminal Original Petition No. 89 of 2011, the august Supreme Court of Fakistan has also hetrd the statutory instrument enacted for carving out exception to rnechanisrn provided for regulating civil service should not be sanctified when found in violation of provision of the Constitution. In this respect Paras 118 to tr21 of said judgment is also worth perusal which is reproduced herein for ready reference:- tr20. The impagned Ordinance and Act af 2011 valtdating absorptton by the Sindh Governnnent are wkra vires af .A,rtteles 244 and 242 af tke Canstttwtiont fis these tnstrwtnents, tn the tirst place, have been pror,nwlgated witkowt arnendtng tke ,Act of 1973, and tke rwles framed tkere-under.

Moreover, the impagned valtdation instrwments @re

maltiple legtslation and do not provide mecharaiswa by which ahsorption of dffirent ewployees toole place in complete disregard af,tke parent statate awd tke rales framed there under" Ey these irnpugned vwlidatimg instrwments restriction placed by Arttcles 240 and 242 af, the Constttutton kas been done away. The validating tnstrwnents allowed absarpti,aw of $ nun Ctvtl Sewant conferring an hirru ststws of a Civil Servamt and likewtse absorptton af a Civil Servant frorn man-cadre post to cadre post tuithowt undertaking the cornpetitive process under tke recrwitment rules. We nnay f,urther ohserve that the Provinctal Assernbljt cfln promwlgate law relattng to sewice rnwtters pwrswent to tke parameters defined wnder Articles 240 and 242 af the Canstitution resd wtth Act af 1973 hwt, in no way, tke Provtnciul Asserubly cfin introduce wny validation Act itt the nature of rnaltiple or parallel legislation on the swhiect af sewice law.

121.By tke impugned legislations nabsorptian' af an ernployee in ex-cadre groap wowld deprive the seniority and progression af c&reer of meritorious civil sewfints. A swbstsntiul nwmber of unfit and wnweritoriows officers snd bewefictaries hsve been ahsorbed tn tke irnportatat groups, services, posittons with the help af swtkorities snd swck legislations ullow this to conttmae. The ahsorptton, by way af irnpugned instraments, woald PracticallY

c&wse remav@l of constituttamal snd legal differentiations that exist between variows cadres, posts wnd services. Mareover, tke cultwre of patronage wtll tntensify the activtty af brtnging mare poltticization, infficiency and corraptian in tke provinctal services. The Civil Sewants Act and Rules framed pravide transparency in appointments, whiek would disappear and tke ewaployees wko cowld not get tn serviee tkroagh competitive process may alsa be obliged to look for a polittcal rnentor tnstead af relying on merits in order ta protect tkeir careers. We rnay also observe here that the absorption wnder the aforesaid irnpagned instruments ts not only conJined ta non-civtl sewants to civtl sewants bat thrawglt these tmpagned imstrwments won-civtl sewants, who were sewing on non-cadre posts, have been transferred amd absorhed to cadre ptosts, the pre-requisite of,which is cormpetttive process tkrowgh Pwbltc Sewice Cornmission or by otker mode provided iru tke rclevant recruitment rules" Law of such nature which is violative af the recruitment rwles will ewcourage coruaptiow snd had grvern$nce and the public at large will loose comfi.dence in the afficials wko are being sbsorbed wnder tke garb af the aforesaid imp ugne d irastr unnents" Hon'ble Suprerne Court of Pakistan while giving its judgrnent in case of "Shahzad

Shahmir Vs Govermrnent of Simdh throu ph Chief Secretarv & otlrers'o reported as CI021 SCN{R E24), has also held that:

Ee that ,rs it ffi&y, tke very) appotntrments in BPS-tr7, as per law, made under ,A,rticle 242 of the Comstitwtion, kave to be made by the Sindh Fublic Sewice Commission (SPSQ snd no contract employrnewt cowld kave beem made ora swch posts. Thws, the appointrnents af the petitioners, as obsewed by tke Migla Cawrt of Sindh, Karachi (tke l{igh Cowrt) in tts irnpwgned order, were on tketr very face illegill and, therefore, iw oar vtew, no right wkatsoever existed wttk tke petitioners to continwe witk the emplqtwtent, more so, when the very contract appointments were not in accordance witk law" .4s stated earlier when constitutional provisions and statute are in conflict with each other, then Constitutional provision has to be given pref,erence. Further reliance in this respect may also be placed on the judgment of Hon'ble Supreme Court of Pakistan given in case of ouGovermmlemt of Khvben Pakhtunkhwa ttrrroush Secretanv florne Departrnemt & others Versus VaIi Khan and others" renorted as F LD 2022 Sun nerne Court253"

Question No.4 is therefore, resolved with explanation that in norrnal cases a Court rnay deolare a law to be ultra vires only when its vrres are challenged by an aggrieved person but case in hand may be treated as exception to said rule for the reasons that question regarding validity of Act have been raised by Frovincial Government in the comments and same has therefore, emerged as unavoidable question for determination of this Court. In such cases, the Constitutional Court may look into and determine validity of a stafirte and rnay also decide whether or not such a statute rnay be given effect. In case of express conflict with Constitutional provisions and after finding such deelaration unavoidable, a Constitutional Court may decXare such aot to be ultra vires or invalid n4" After resolving the Questions in the rnanner stated hereinabove, we hold and declare that:-

cl Khyber Pakhtunkhwa EmPloYees of Transport Department (Regularization of Services) Act 2022 and subsequent amended Act

have not been validly introduced by or with permission of Provincial Cabinet and both latvs have therefore been enacted in violation of mandate of Article 115 of Constitution of Islamic Republic of Fakistan 1973, and sarne being derogative of Articles 240 and 242 of the Constitution, are not held to have been validly enacted laws

b. T?te laws made in ttiolation of Constitutional provisions cannot be made basis for isswance af the writ ss prayed for in instant constitwtional petition and sarne is accordingly disrnissed.

c We also hold and declare that initial appointrnents of petitioners had not been made in accordance with law. Their appointments had been illegalfrom the very inception .4nnownaed" 02.a5.2023"

JADGE

GE

DB) thtAw a ML trlri,E W* AhNn