MUHAMMAD AFZAL vs SECRETARY ESTABLISHMENT DIVISION ISLAMABAD Ss — 2021 SCMR 1569 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 (Re-instatement) 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.

MUHAMMAD AFZAL vs SECRETARY ESTABLISHMENT DIVISION ISLAMABAD Ss — 2021 SCMR 1569 SUPREME-COURT

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