HADAYAT ULLAH vs FEDERATION OF PAKISTAN art — 2022 SCMR 1691 SUPREME-COURT

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HADAYAT ULLAH VS FEDERATION OF PAKISTAN art. 188---Review jurisdiction of the Supreme Court---Scope---Review jurisdiction of the Court operates in a limited area---Review does not succeed merely because a material error has crept into the disputed judgment---Instead, a review is only allowed when the material error alters the outcome of the case thereby rendering the disputed judgment bad law. Head NotesCase Description Citation Name: 2022 SCMR 1691 SUPREME-COURTBookmark this Case HADAYAT ULLAH VS FEDERATION OF PAKISTAN Judgment in rem---Neither necessary nor the requirement of law that Court should issue a separate notice and offer an opportunity of hearing to each and every person who is likely to be affected, and bound, by judgment in rem---Meaning and scope of a judgment in rem stated. Head NotesCase Description Citation Name: 2022 SCMR 1691 SUPREME-COURTBookmark this Case HADAYAT ULLAH VS FEDERATION OF PAKISTAN art. 25---Equality of citizens---Reasonable classification---Scope of reasonable classification stated. Head NotesCase Description Citation Name: 2022 SCMR 1691 SUPREME-COURTBookmark this Case HADAYAT ULLAH VS FEDERATION OF PAKISTAN arts. 184(3) & 188---Constitutional jurisdiction of the Supreme Court under article 184(3) of the Constitution---Scope---Original jurisdiction of the Supreme Court under article 184(3) of the Constitution cannot be exercised as a parallel review jurisdiction, and a judgment or an order of the Supreme Court can never be challenged by virtue of filing independent proceedings under article 184(3) of the Constitution---Such course is absolutely impermissible. Head NotesCase Description Citation Name: 2022 SCMR 1691 SUPREME-COURTBookmark this Case HADAYAT ULLAH VS FEDERATION OF PAKISTAN Scope---Legislation is the manifestation of the will of the people and the collective wisdom of their chosen representatives in the Parliament---Courts must therefore tread carefully to judicially review the act of the legislature---First, efforts should be made by the Court to save the constitutionality of the legislation by exhausting the interpretative tools e.g. of "reading down" or "reading out" to make the legislation constitution compliant---Only when the legislation happens to be opposed to the constitutional values and the fundamental rights and allowing such a statute to remain on the statute book would be unconstitutional, should the courts interfere---Such freedom and respect is enjoyed by the branches of the government under a prosperous and a progressive constitutional democracy. Head NotesCase Description Citation Name: 2022 SCMR 1691 SUPREME-COURTBookmark this Case HADAYAT ULLAH VS FEDERATION OF PAKISTAN arts. 184 & 185--- Judgments of the Supreme Court---Prospective/retrospective effect---Scope---Judgments of the Supreme Court operate prospectively, however, they could operate retrospectively if so declared---Consequently, there is no binding rule that all judgments issued by the Court take effect only from the date of pronouncement. Head NotesCase Description Citation Name: 2022 SCMR 1691 SUPREME-COURTBookmark this Case HADAYAT ULLAH VS FEDERATION OF PAKISTAN arts. 240 & 260(1)---Civil Servants act (LXXI of 1973), S. 2(1)(b)---Terms "Service of Pakistan" and "Civil Servant"---Said terms were not synonymous, in fact, the phrase 'service of Pakistan' appeared to be of wider import---although the terms 'civil service' and 'service of Pakistan' are not identical they do overlap in that the former is a sub-category of the latter. Head NotesCase Description Citation Name: 2022 SCMR 1691 SUPREME-COURTBookmark this Case HADAYAT ULLAH VS FEDERATION OF PAKISTAN Reference to legislative history---Scope---Reference to legislative history is permissible only as an aid to construction of legislation which is ambiguous or obscure or the literal meaning of which leads to an absurdity i.e. from the text of a statute, the court is unable to decipher the real intent of the Legislature. Head NotesCase Description Citation Name: 2022 SCMR 1691 SUPREME-COURTBookmark this Case HADAYAT ULLAH VS FEDERATION OF PAKISTAN 'Reading out' (severance) and 'reading down' parts of a statute---Principles stated. Head NotesCase Description Citation Name: 2022 SCMR 1691 SUPREME-COURTBookmark this Case HADAYAT ULLAH VS FEDERATION OF PAKISTAN art. 260(1)---Term "Service of Pakistan"---Test for determining whether a person is in the 'service of Pakistan'---Test whether a person is in the service of Pakistan is whether he is performing functions in connection with the affairs of the Federation---For an entity (where a person is employed) to qualify as being in the service of Pakistan, it must fulfill three criteria; first, it must exercise public or sovereign power in some form; second, the government must retain effective/substantial control over its functioning; and third its activities must be mainly financed by the government. Head NotesCase Description Citation Name: 2022 SCMR 1691 SUPREME-COURTBookmark this Case HADAYAT ULLAH VS FEDERATION OF PAKISTAN Scope of the doctrine of Separation of powers in a constitutional democracy stated. Head NotesCase Description Citation Name: 2022 SCMR 1691 SUPREME-COURTBookmark this Case HADAYAT ULLAH VS FEDERATION OF PAKISTAN Courts lean in favour of upholding the constitutionality of laws and are reluctant to strike them down---Cardinal principles of construction of statutes stated. Head NotesCase Description Citation Name: 2022 SCMR 1691 SUPREME-COURTBookmark this Case HADAYAT ULLAH VS FEDERATION OF PAKISTAN art. 25---Equality of citizens---Reasonable classification---Scope---although article 25 of the Constitution envisages equality amongst citizens, it also allows for differential treatment of persons who are not similarly placed under a reasonable classification---However, to justify this difference in treatment the reasonable classification needs to be based on intelligible differentia that has a rational nexus with the object being sought to be achieved'---Only if this test is satisfied can the distinct treatment meted out to a class of persons be sustained under article 25 of the Constitution. Head NotesCase Description Citation Name: 2022 SCMR 1691 SUPREME-COURTBookmark this Case HADAYAT ULLAH VS FEDERATION OF PAKISTAN O. XI, R. 1, Second proviso---Semper praesumitur pro negante, rule of---Scope---When the Judges of an appellate Court are equally divided in their opinion, the judgment of the Court below is affirmed and maintained, and the decision given pro negante is authoritative and binding as any other decision of the appellate Court---However, the said rule is not applicable to the final decision of a case by the Supreme Court in view of the second proviso to Rule 1 of Order XI of the Supreme Court Rules, 1980, which provides that "if the Judges hearing a petition or an appeal are equally divided in opinion, the petition or appeal, as the case may be, shall, in the discretion of the Chief Justice, be placed for hearing and disposal either before another Judge or before a larger Bench to be nominated by the Chief Justice." Hence, the application of the rule of pro negante decision is restricted to the division of opinion on a point of law decided in the judgment of the Supreme Court, notwithstanding of which there is a majority of opinion on the final decision of the case. Head NotesCase Description Citation Name: 2022 SCMR 1691 SUPREME-COURTBookmark this Case HADAYAT ULLAH VS FEDERATION OF PAKISTAN applicability---Principle of locus poenitentiae would not be attracted in a case under which the benefit has been extended by a law which was violative of the provisions of the Constitution. Head NotesCase Description Citation Name: 2022 SCMR 1691 SUPREME-COURTBookmark this Case HADAYAT ULLAH VS FEDERATION OF PAKISTAN Ss. 2(d), 2(f)(vi), 4, 10, 11, 12 & 13 & Preamble---Constitution of Pakistan, Arts. 4, 9, 14, 18, 25, 184(3), 187, 188, 240 & 242---Supreme Court Rules, 1980, O. XXXIII, R. 6---[Per Umar Ata Bandial, J. (Majority view): Initial appointment of majority of the reinstated employees ('the beneficiary employees') was made without following the principles of merit, non-discrimination, transparency and fairness---Through operation of section 4 of the Sacked Employees (Re-instatement) Act, 2010 ('the 2010 Act') all beneficiary employees were ordered to be regularised (either on the same scale or on one-step higher scale) within a certain timeframe without complying any codal formalities and without regard to the nature of the post that they occupied prior to their dismissal, removal or termination from service---Furthermore the 2010 Act discriminated against similarly placed persons who were dismissed, removed or terminated from service in the periods prior to 01-11-1996 and subsequent to 12-10-1999---Such classification of the time period was neither reasonable nor based on any intelligible differentia---By giving leeway to the beneficiary employees and by placing them at the same (or in some cases better) footing in the organisational structure of the employers the fundamental rights of the regular employees were breached --- Act of 2010 was violative of the different provisions of the Constitution, specifically Articles 4, 9, 18, 25, 240 & 242, therefore the same was declared to be void with retrospective effect---Review petitions were dismissed with certain directions regarding services rendered by the re-instated employees of the "employers" [as defined in section 2(d) of the Sacked Employees (Re-instatement) Act, 2010]---[Per Syed Mansoor Ali Shah, J. (Minority view): Vires of the Sacked Employees (Re-instatement) Act, 2010 ('the 2010 Act') enacted by the Parliament could not be examined and declared ultra vires, on the touchstone of Articles 4, 240 & 242 of the Constitution, as said Articles did not provide any criterion to test the vires of a law---Parliamentary debates relating to the objects and reasons of the enactment of the 2010 Act showed that the persons to be reinstated in service had suffered "political victimization" in the matter of their dismissal, removal or termination from service, at the hands of the Government during that period, and the object of the 2010 Act was to provide relief to such persons---Hence, persons reinstated formed a distinct class, and their classification was based on intelligible differentia, distinguishing them from those who had been left out, and it had a rational nexus to the object sought to be achieved by the 2010 Act, therefore, only their reinstatement and regularization under the 2010 Act as such did not offend the fundamental right to equal treatment under Article 25(1) of the Constitution---However, the issue of seniority that affected the right to 'status' enshrined in fundamental 'right to life' of the regular employees serving in the relevant departments, had arisen only in cases of employees reinstated and regularized on "one scale higher", under sections 4(a) & 10 of the 2010 Act---Such reinstatement and regularization was violative of the right to 'status' enshrined in fundamental 'right to life' of the regular employees serving in the relevant departments at the time of promulgation of the 2010 Act, and it was also violative of the 'right to dignity' and 'right to equality before law' as it gave an undue advantage to the reinstated employees to the disadvantage of the rights of the already working regular employees---Proper course, in such circumstances, was for the Court to declare (as ultra vires) only that part of the provisions of sections 4(a) & 10 of the 2010 Act that had the said offending effect, i.e., the reinstatement and regularization on "one scale higher" and this could have easily been done by reading out (severing) the words "one scale higher to" from the provisions of section 4(f) and the words "one scale higher than" from the provisions of section 10 of the 2010 Act---Furthermore sections 2(f)(vi), 11, 12 & 13, of the 2010 Act which dealt with and provided for reinstatement and regularization of such sacked employees who had been dismissed, removed or terminated from service on account of absence from duty, misconduct, mis-appropriation of Government money or stock, or unfitness on medical grounds, and the determination of their guilt or medical unfitness had attained finality by being unchallenged or unsuccessfully challenged, were also ultra vires the Constitution]. Head NotesCase Description Citation Name: 2022 SCMR 1691 SUPREME-COURTBookmark this Case HADAYAT ULLAH VS FEDERATION OF PAKISTAN art. 240---appointments to service of Pakistan---Principles of merit, non-discrimination, transparency and fairness---article 240 of the Constitution is simply the bedrock on which appointments to the service of Pakistan are to be made; it is then the responsibility of the appointing authorities to ensure that appointments are made strictly in accordance with the relevant laws (including the applicable rules and regulations) that incorporate the principles of merit (selection through a competitive process), non-discrimination, transparency and fairness---Same principles apply to appointments on any post in public service since an organisation can only best serve the people when all its employees are qualified individuals who are selected through a fair and transparent process---In the absence of dedicated supporting staff, no senior officer sitting at the helm of affairs can succeed in guiding the nation towards prosperity---However, it is significant that said principles are not merely fruit of judge made law but they also emanate from the fundamental rights enshrined in the Constitution, especially article 18 (freedom of trade, business or profession) for which reason they occupy an immutable character. Head NotesCase Description Citation Name: 2022 SCMR 1691 SUPREME-COURTBookmark this Case HADAYAT ULLAH VS FEDERATION OF PAKISTAN arts. 184 & 185--- Judgments/orders of the Supreme Court---academic exercise---Ordinarily the Supreme Court does not enter into purely academic exercises. Head NotesCase Description Citation Name: 2022 SCMR 1691 SUPREME-COURTBookmark this Case HADAYAT ULLAH VS FEDERATION OF PAKISTAN aid to statutory interpretation---Parliamentary debates---Scope---Parliamentary debates, especially the speech made by the mover of the Bill or by the chairman or member(s) of the Standing Committee that considered the Bill, explaining the reason for introducing the Bill can be referred to for ascertaining the mischief sought to be remedied by the legislation and the object and purpose for which the legislation was enacted. Head NotesCase Description

HADAYAT ULLAH vs FEDERATION OF PAKISTAN art — 2022 SCMR 1691 SUPREME-COURT

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