Asfandyar Khan Vs Govt. of KP through Secty. Education Peshawar etc

IN THE PESHAWAR HIGH COURT, BANNU BENCH

JUDICIAL DEPARTMENT

W.P.No. 02-8/2023 Asfandyar Khan Vs.

Govt. of Khyber Pakhtunkhwa through Secretary Education, Peshawar and others.

JUDGMENT

Date of Announcement .......26.06.2024......

For Petitioner: Mr. Fazal-e-Hadi adnrocate For official respondents: Mr. Naieebullah Khan Marwat Asstt: A.G.

KAMRAN HAYAT MIANKHEL, J.' The petitioner approached this court by invoking its jurisdiction under o

Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, with the prayer that:

"It is, therefore, humbly prayed that on acceptance of instant writ petition, the every act of respondents to non appointing petitioner on the quota of medtcal employees sons on the plea of having no retrospective affect ls against the lan without lawful authority, void ab initto unconditional, illegal against the law rules and regulation and further directed the respondent to appoint the petitioner on the post ofjunior clerk. Any other relief with this hon'ble court may deem fit may also be granted."

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2.Precisely stated facts of the writ petition are that father of the petitioner had been working with the respondents' department, who got retired on medical ground on 10.I2.t997, whereafter the petitioner had moved numerous applications to the respondents for his appointment on the quota reserved for invalidated I incapacitated employees but with no fruitful result, hence, he filed the abovementioned writ petition.

3.We have heard arguments of leamed counsel for the parties and scanned the record with their valuable assistance.

4.The main controversy involved in this petition is that the amendment introduced in Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989 (hereinafter referred to as Rules 1989), in sub- Rule (4) of Rule-l0 vide notification No. SOR- YIIE&AD1L-312015 dated 19.04.2016 will operate prospectively or retrospectively. As per said amendment, one of the children or wife/widow will be appointed in BPS-01 to BPS-10 in case the civil servant is rendered incapacitated/ invalidated permanently during service. Now the question arises that whether amendment so made in Rule 10(4) of the Rules-1989 will operate prospectively or retrospectively and whether the civil servants who had retired on the basis of incapacitation or invalidation before

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the ibid amendment, the children of those civil servants will have any right to be appointed under Section 10 (4) of the Rules 1989 or not?

5.It is by now trite law that the Majlis-e-Shoora or the Parliament has the power to enact law retrospectively but the only cavil to the above proposition is that the legislature must give retrospective effect to the statute with great particularity of language and with clear intendment.

In the case of "shahida Bibi and others Vs. Habib Bank Limited and others" reported as PLD 2016 SC 995, the Honourable Supreme Court held that;

'Unless a Legislature enacts a new law (the 1997 Act) to be specifically retrospective, and that too with great particularity of language, the Courts are not to assume retrospecttvity.

There ,s nothing in the rePealing section, i.e. section 28 of the 1997 Act, to indtcate that the Legislature meant

"fo, such Act to be aPPlied with retrospective ffict. Therefore, the question of retrospective application of the provisions of the 1997 Ordinance (and the 1997 Act) does not artse, as the execution proceedings tn the case at hand, though instituted under the 1984 Ordinance, stood transferred to the Banking Court established under the 1997 Ordinance

and then the 1997 Act, and in the absence of any saving clause as mentioned above, the relevant provistons of the 1997 Ordtnance (and then the 1997 Act) were to aPPIY on the date of transfer of such proceedings and thereafter. The Banking Court ,s not required to proceed denovo, rather from the stage which the proceedings had reached immediately prior to the transfer as envtsaged by section 7(7) of the 1997 Act (reproduc ed hereinab ove).

Similarty, in the case of "Irshad Ahmed Sheihh vs. National Accountabiltty Bureau and others" reported as 2015 SCMR 588, it has been held that: - "In Jamshaid Gulzar v. Federation of Pakistan (2014 SCMR I 504), this Court has specifically held that where the legislature had given an enactment retrospective ffict with clear intendment spelt outfrom its language, then no protectton to the alleged vested rights of a party could be offered contrary to it and that the Legislature had the authorttY to promulgate or amend a law with retrospective ffict by intendment. " Likewise in the case titled "Badshah Gul Wazir Vs. Government of Khyber Pakhtunkhwa through

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Chief Secretary & others" reported as 2015 SCMR 43, the Hon'ble Apex Court has held:- uA substituted section, and particularly one curtailing substantive rights, does not have "retroacttve operation" unless the legislature elects to give it retrospective ffict. Nor does a substituted section obliterate accrued rights; section 6 and sectton 4 resPectivelY of the Federal and Provincial General Clauses Act specifically preserves such vested rtghts as mentioned therein."

In the case titled "The income Tax Officer (investigation) Circle, Dacca and another v. Sulaiman Bhai Jiwa" reported as PLD 1970 SC 80, it was observed as under: -

'No rule is more firmly established than the rule with regard to retrospective operation of a statue law. It ts a fundamental rule of law that no statute shall be construed to have a retrospective operation unless such a construction aPPears very clearly in the terms of the Act, or arises by necessary and disttnct implication (see Maxwell on the Interpretation of Statutes, g'h Edrtion, page 221 and Treaties on Statute Law

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not covered by the plain language of the legislation. "

6.The above precedent law affirms that it is a settled principte that the Majlis-e-Shoora (Parliament) has power to Legislate either retrospectively or prospectively provided the subject upon which legislation has been made, is within its competence. Now the question here is that the impugned amendment was made in the Rules which is in the nature of delegated Legislation. The sub-ordinate Legislation by delegated Legislative Authority cannot be given retrospective effect unless, of course, the stafute under which delegation of the Legislative power was made, expressly provides as such. In the present case, the rule making power has been provided under Section 26 of the Khyber Pakhtunkhwa Civil Servant Act, 1973 and the perusal of Section 26 clearly stipulates that no such power of retrospective Legislation has been conferred upon the government.

7.The concept of "delegated legislation" has gain its momentum with the mushroom population growth, the dire need for good governance and the ultimate aim to cater for the essential basic needs of very segment of the society to bolster and fulfill the afiributes of Islamic welfare state. What is important to note that all legislation more so "delegated legislation" are to be prospective in its effect

and applicability unless same has been expressly provided and that too with the backing of the parent statute. In the case of "sheikh Rehmatullah Vs. The Deputy Settlement Commissioner, Centre A Karachi and others" reported as PLD 1963 SC 633 the Government, in exercise of its powers, issued a notification whereby certain rights were conferred on occupants of evacuee properly. The notification was issued under the provisions of Displaced Persons Act. By a subsequent notification, those rights were taken back and the matter was brought to the august Supreme Court in appeal. It was held that the government could not give retrospective effect to a notification, so much so, to take back the rights which were conferred earlier by a notification on occupants of evacuee property.

The broad proposition laid down by the learned Judges was that a notification can operate prospectively and not retrospectively.

8.In the case of "sheikh Fazal Ahmad Vs. Raja Zia Ullah Khan" reported as PLD 1964 SC 494, it was held that notification issued in exercise of sub-ordinate Legislative Authority by executive does not include power to give the notification retrospective effect. It was case under Registration of Claims Act and order passed by the Claim Commissioner was sought to be reviewed as by time the limitation prescribed under Section 6 of the Act had

expired. The government in exercise of its powers, amended the provisions to enable the Claims Commissioner to review his own order or the order of his predecessor in office after the period of 90 days prescribed under the previous law. Mr. Justice B.ZKaikauds, the learned Judge who spoke for the Court, observed that legislature was competent to legislate with retrospective effect but the power of subordinate legislation was limited and it was not in his power to give retrospective effect to its legislation.

The Observation is as under;

"This amendment had come into force on 22.02.1963. An obvious obiection to this amendment is that it z's a notffication by the Government in exercise of the power of subordinate legislation and such power does not include a power to give retrospecttve

ffict. The power of subordinate legislation which is exercised by the executive is a very limited power. Its exercise even to a limited extent had been objected to on the ground that the fact that a legislature had been empowered to legislate on a particular

subject dtd not imply that it could delegate its power of legislation to any other person or body of persons. The power of delegation had, however, to be accepted to a limited extent because

in many cases it is almost impossible for the Legislature to make provistons in detail and in some cases the time or the occasion for applying a statue has to be lefi to the executive Government. It wos considered that it was not possible for the Legislature to exercise its functions properly unless the grant of subordtnate legislative power to the executive wos permitted to this extent.

However, the subordinate legislative power is to be permitted onlY to the extent to which it is necessary for the proper exercise of its function by the Legislature and a power to legislate with retrospective ffict has never been accepted as included in a power of sub ordinate I egis latton. "

Further reliance is placed on the judgment given in the case of "Khaltd Mehmood Vs. N.-W. F.P through Chief Secretary, Peshawar and 4 others " reported as PLD 20ll Peshawar 120 as well as in the case of "Federation of Pakistan Vs. Muhammad Khan and 2 others " reported as 1990 CLC l7l.

In recent judgment delivered in the case of "Government of Pakistan through Secretary Establishment Diviston Islamabad Vs. Muhammad Ismail and another" reported as 2021 SCMR 1246, it was held that the Government of Pakistan, on 13.06.2006, issued an

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assistance package for government employees who died in service and according to which son/daughter/ widodwidower/ family member, as the case may be, of the deceased govemment servant was made eligible for appointment on post of BPS-01 to BPS-15 on two years contract without any advertisement. The package was amended from time to time and period Qf contract was enhanced to five years and same was also made extendable titl the age of superannuation or regularization. The respondent in the referred case, filed application to the Accountant General, Khyber Pakhtunktrwa Peshawar for appointment on the quota of deceased govemment employee for appointment on the basis of afore-referred memorandum, but the same was never responded and the respondent then filed writ petition before the Peshawar High Court which was allowed, but the same was ovemrled by the apex Court on the premise that the father of the respondent died in the year 1999, when there was no policy in vogue for employment of family member of the deceased employee which was issued later ofl, with prospective effect. Acting on the same analogy, this court at Abbotabad bench, in WP No. I 134-A of 2019, decided on 29.11.2023, has held that the amendment so made in Rules 1989, will have prospective effect and not retrospective effect.

w- ,t1, g. In view of above referred case law, this court comes to a conclusion that adelegated legislation cannot be given retrospective effect, unless and until the parent statute confers specifically the right of retrospectivity. Hence, the amendment so made in Rules-1989 will have prospective effect and not retrospective effect. The father of the petitioner had died prior to amendment notification, hence, the benefit of the same cannot be extended to him.

10.In view of the above, this writ petition is hereby dismissed.

Announced:

iu;1763179.91

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(D.B)

Hon'ble Mr. Justicc Kemran Hayrt Miankhel and Hon'bleMr.Justice Dr. Khurshid lqbal

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