MUHAMMAD AFZAL vs SECRETARY ESTABLISHMENT DIVISION ISLAMABAD Ss — 2021 PLC(CS) 1343 SUPREME-COURT

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MUHAMMAD AFZAL VS SECRETARY ESTABLISHMENT DIVISION ISLAMABAD Ss. 2(f), 4 & Preamble---Constitution of Pakistan, Arts. 240 & 242---Sacked Employees (Reinstatement) Act, 2010, ('Act of 2010'), vires of---Said Act circumvented the constitutional process envisioned under Art. 240 & Art. 242 of the Constitution---In terms of S. 2(f) of the Act of 2010 'sacked employees' fell into either the definition of a 'civil servant' or employees 'in the service of Pakistan'---Said two terms were not synonymous with each other---Legislature could not, by a deeming clause in the Act of 2010, confer the status of a 'civil servant' upon employees of a corporation, and overlook the relevant framework for employees in service of Pakistan in clear violation of Arts. 240 & 242 of the Constitution---Furthermore, Ss. 2(f)(i) & 2(f)(ii) of the Act of 2010 clearly envisioned that reinstatement and regularization should be extended to not only regular employees who were either dismissed, removed, or terminated, but also to ad-hoc and contract basis employees---When S. 2 of the Act of 2010 was read holistically, the overall effect of the enactment was that the overall recruitment process was overlooked and non-civil servants were 'reinstated' into civil service thereby deeming them to be members of civil service through a deeming clause---Legislature lacked the legislative competence to enact the Act of 2010 as it had attempted to circumvent the jurisprudence of the Supreme Court and Arts. 240 & 242 of the Constitution---Supreme Court declared that the Sacked Employees (Re-instatement) Act, 2010 was ultra vires of the Constitution; that no vested rights could be created or protected under the same; that any/all benefits accrued to the beneficiaries under the said Act were to be ceased with immediate effect; that cases of employees who had retired and/or passed away were past and closed transactions and it would not be appropriate to interfere in their cases; that beneficiaries of the Act of 2010, who were still in service, would go back to their previous positions, i.e. to the date when the operation of the Act of 2010 had taken effect, however, it would be inequitable to reverse any monetary benefits received by them under the Act of 2010 for the period they had served and those shall remain intact as they were granted against service, but the lump sum received by such 'sacked employees' upon reinstatement shall be reversed. Citation Name: 2021 PLC(CS) 1343 SUPREME-COURTBookmark this Case MUHAMMAD AFZAL VS SECRETARY ESTABLISHMENT DIVISION ISLAMABAD S. 4---Constitution of Pakistan, Art. 240---Civil service---Non-obstante clause under S. 4 of the Sacked Employees (Reinstatement) Act, 2010, ('Act of 2010')---Constitutionality---Such clause could not over-ride the provisions of the Constitution---Given the fact that the legislature itself was subservient to the Constitution, a non-obstante clause could not be deemed to override the provisions of the Constitution itself---Section 4 of the Act of 2010 (non-obstante clause) also excludes the application of the judgments of the Supreme Court or any High Court---Effect of the non-obstante clause, was, in essence, to nullify a judgment of the Supreme Court, but a legislature could not destroy, annul, set aside, vacate, reverse, modify, or impair a final judgment of a Court of competent jurisdiction---Section 4 of the Act of 2010 (non-obstante clause) failed to provide unfettered protection to the said Act and was rendered ineffective through the very judicial pronouncement it sought to oust. Citation Name: 2021 PLC(CS) 1343 SUPREME-COURTBookmark this Case MUHAMMAD AFZAL VS SECRETARY ESTABLISHMENT DIVISION ISLAMABAD S. 4 & Preamble---Constitution of Pakistan, Arts. 4, 9 & 25---Sacked Employees (Reinstatement) Act, 2010, ('Act of 2010'), vires of---Legislature had, through the operation of the Act of 2010, attempted to extend undue benefit to a limited class of employees---In terms of the Act of 2010 upon the 'reinstatement' of the 'sacked employees', the 'status' of the employees currently in service was violated as the reinstated employees were granted seniority over them---Legislature had, through legal fiction, deemed that employees from a certain time period were reinstated and regularized without due consideration of how the fundamental rights of the people currently serving would be affected---Rights of the employees who had completed codal formalities through which civil servants were inducted into service and complied with the mandatory requirements laid down by the regulatory framework could not be allowed to be placed at a disadvantageous position through no fault of their own---Act of 2010 was also in violation of the right enshrined under Art. 4 of the Constitution, that provided citizens equal protection before law, as backdated seniority was granted to the 'sacked employees' who, out of their own volition, did not challenge their termination or removal under their respective regulatory frameworks---Given that none of the 'sacked employees' opted for the remedy available under law upon termination during the limitation period, the transaction had essentially become one that was past and closed; they had foregone their right to challenge their orders of termination or removal---Sacked Employees (Reinstatement) Act, 2010 had extended undue advantage to a certain class of citizens thereby violating the fundamental rights (Articles 4, 9, and 25 of the Constitution) of the employees in the Service of Pakistan and was thus void and ultra vires the Constitution. Citation Name: 2021 PLC(CS) 1343 SUPREME-COURTBookmark this Case MUHAMMAD AFZAL VS SECRETARY ESTABLISHMENT DIVISION ISLAMABAD S. 2(b)---Constitution of Pakistan, Art. 260---Terms 'civil servant' and person 'in the service of Pakistan'---Said terms were not synonymous. Citation Name: 2021 PLC(CS) 1343 SUPREME-COURTBookmark this Case MUHAMMAD AFZAL VS SECRETARY ESTABLISHMENT DIVISION ISLAMABAD arts. 184(3) & 185(1)---Supreme Court, powers of---Vires of an enactment---Supreme Court, as protector and defender of the Constitution, had an inherent duty to ensure that the provisions of the Constitution were enforced in any case coming before the Court and declare any enactments invalid that abrogated the Constitution.

MUHAMMAD AFZAL vs SECRETARY ESTABLISHMENT DIVISION ISLAMABAD Ss — 2021 PLC(CS) 1343 SUPREME-COURT

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