Syed MOHSIN SHAH vs FEDERATION OF PAKISTAN through Secretary Law and Justice, Islamabad Delegated legislation

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Syed MOHSIN SHAH VS FEDERATION OF PAKISTAN through Secretary Law and Justice, Islamabad Delegated legislation---Scope---Criteria to consider the subordinate/delegated legislation to be given protection or to declare it otherwise is to be settled by way of a test, whether the same surpasses the parent statute, per se. Citation Name: 2023 PLD 272 ISLAMABADBookmark this Case Syed MOHSIN SHAH VS FEDERATION OF PAKISTAN through Secretary Law and Justice, Islamabad R. 5---Civil Servants Act (LXXI of 1973), S. 13---Qanun-e-Shahadat (10 of 1984), Art. 114---Retirement---Grounds for retirement---Estoppel---Petitioners questioned the vires of Civil Servants (Directory Retirement from Service) Rules, 2020---Validity---When a civil servant acknowledges his offer letter and joins the service, he is bound by the terms and conditions highlighted in the Civil Servants Act, 1973 and the rules framed thereunder, therefore, law of estoppel applies, which precludes the civil servant to challenge the provisions of law, especially when S. 13 has already been considered on the touchstone of Holy Quran and Sunnah by the Shariat Appellate Bench of the Supreme Court in the judgment reported as "Pakistan and others v. Public-at-Large" [PLD 1987 Supreme Court 304]. Citation Name: 2023 PLD 272 ISLAMABADBookmark this Case Syed MOHSIN SHAH VS FEDERATION OF PAKISTAN through Secretary Law and Justice, Islamabad R.5---Civil Servants Act (LXXI of 1973), Ss. 13 & 25---Retirement---Grounds for retirement---Scope---Petitioners questioned the vires of Civil Servants (Directory Retirement from Service) Rules, 2020---Validity---Section 25 of the Civil Servants Act, 1973, extends the authority to the President to make rules for carrying out the purpose of the Act---President has delegated its authority to the Prime Minister of Pakistan in exercise of powers conferred by subsection (1) of S. 25 of the Civil Servants Act, 1973 vide SRO No.120(I)/98, dated 27-02-1998, to make rules under the Act---In this case the Prime Minister of Pakistan had promulgated the impugned Rules, hence the salient characteristics qua the rulemaking authority are the powers conferred in the statute---Second characteristic is the approval of the Government or statutory sanction which has clearly been observed as the rules have been notified through SRO No.230(I)/2020, therefore, the minimum requirements of law have been fulfilled---Constitutional petitions were dismissed. Citation Name: 2023 PLD 272 ISLAMABADBookmark this Case Syed MOHSIN SHAH VS FEDERATION OF PAKISTAN through Secretary Law and Justice, Islamabad R. 5---Civil Servants Act (LXXI of 1973), Ss. 13 & 3---Retirement---Grounds for retirement---Terms and conditions of service, variation of---Scope---Petitioners questioned the vires of Civil Servants (Directory Retirement from Service) Rules, 2020---Contention of petitioners was that under S. 3 of the Civil Servants Act, 1973, the terms and conditions of their service could not be varied to their disadvantage---Validity---Section 3 though confirmed the rights of the civil servants but the same had to be regulated under the law and it was settled that no adverse action could be taken against the civil servant, except in accordance with law---Even the impugned rules were within the framework of the Civil Servants Act, 1973 and the same did not create a disadvantageous position for a civil servant in any manner---Constitutional petitions were dismissed. Citation Name: 2023 PLD 272 ISLAMABADBookmark this Case Syed MOHSIN SHAH VS FEDERATION OF PAKISTAN through Secretary Law and Justice, Islamabad Ss. 4 & 13---Tenure of office of civil servants---Pleasure doctrine---Scope---Retirement---Scope---Pleasure doctrine is not based on any special prerogative of the Government but is rooted in public policy and serves the public interest---Underlying principle of the pleasure doctrine is that the public has a significant stake in the efficiency and integrity of the civil servants---Therefore, public policy necessitates that the public can demand that a civil servant who is inefficient, dishonest, corrupt, or has become a security risk should not be allowed to continue in service. Citation Name: 2023 PLD 272 ISLAMABADBookmark this Case Syed MOHSIN SHAH VS FEDERATION OF PAKISTAN through Secretary Law and Justice, Islamabad art. 199---Public interest litigation---Scope---Pro bono publico can only be applied in those cases where public interest is the primary factor and secondly for the public good or welfare of general public. Citation Name: 2023 PLD 272 ISLAMABADBookmark this Case Syed MOHSIN SHAH VS FEDERATION OF PAKISTAN through Secretary Law and Justice, Islamabad Rr. 5 & 8---Constitution of Pakistan, Arts. 4 & 10-A---Right to fair trial---Retirement---Grounds for retirement---Right of appeal or review---Scope---Petitioners questioned the vires of Civil Servants (Directory Retirement from Service) Rules, 2020---Right of appeal or review as enshrined in R. 8 of the Civil Servants (Directory Retirement from Service) Rules, 2020, fulfills the constitutional requirements, which expand the principle of natural justice, well defined in our jurisprudence and the same are treated as inherent rights with underline element of fairness, both in terms of hearing as well as impartiality of the forums---Hence, the minimum requirement of Art. 10-A of the Constitution, has also been adhered to in the impugned Rules by the rulemaking authority---Such preconditions fulfill the minimum conditions of due process, fair trial and other fundamental rights protected by the Constitution---Constitutional petitions were dismissed. Citation Name: 2023 PLD 272 ISLAMABADBookmark this Case Syed MOHSIN SHAH VS FEDERATION OF PAKISTAN through Secretary Law and Justice, Islamabad art. 199---Constitutional jurisdiction---Policy decision---Scope---High Court cannot sit as a court of appeal over the policy decision and substitute its own decision with the decision of the Government unless it is proved that the decision has been made in excess of jurisdiction or same is arbitrary or devoid of any justification. Citation Name: 2023 PLD 272 ISLAMABADBookmark this Case Syed MOHSIN SHAH VS FEDERATION OF PAKISTAN through Secretary Law and Justice, Islamabad R. 5---National Accountability Ordinance (XVIII of 1999), Ss. 2(n), 25 & 15---Civil Servants Act (LXXI of 1973), S. 13---Retirement---Grounds for retirement---Voluntary return and plea bargain---Disqualification to hold public office---Scope---Petitioners questioned the vires of Civil Servants (Directory Retirement from Service) Rules, 2020---Petitioners contended that, after accepting the voluntary return under S. 25 of the National Accountability Ordinance, 1999, the department could not punish the civil servant by enforcing directory retirement---Validity---Plain reading of the words used by the legislature in National Accountability Ordinance, 1999, revealed that it does not preclude a civil servant to be dealt with on its departmental side, though he has gained the status of discharged from the criminal liability---Legislative intent clearly spells out from the language used whereby only a criminal liability has been avoided but, it does not mean that a person who is involved in such type of practices has been given a premium for his wrong doing so that he might continue with his services, though the effect of discharge means discharge of all liabilities--- Such an argument is misplaced on the ground that when any civil servant who has voluntarily returned the proceeds of corruption, though considered as discharged from a criminal liability but, his act falls within the ambit of misconduct, against which he can be proceeded on departmental side---There is no bar for parallel proceedings against a civil servant on departmental side---Constitutional petitions were dismissed. Citation Name: 2023 PLD 272 ISLAMABADBookmark this Case Syed MOHSIN SHAH VS FEDERATION OF PAKISTAN through Secretary Law and Justice, Islamabad art. 10-a---Right to fair trial---Scope---Right of fair trial means grant of proper hearing to an accused person by an unbiased competent forum and that justice should not only be done but be seen to be done---adjudicatory tribunal or forum is duty bound to treat a person in accordance with law, to grant him a fair hearing, and for itself to be an impartial and fair tribunal. Citation Name: 2023 PLD 272 ISLAMABADBookmark this Case Syed MOHSIN SHAH VS FEDERATION OF PAKISTAN through Secretary Law and Justice, Islamabad Delegated legislation---Scope---Delegated legislation cannot override the statute either by exceeding authority or by making provision inconsistent with parent statute---General power to make rules or legislation for carrying out or giving effect to statute is strictly ancillary to its nature and cannot enable the authority on which the power is conferred to extend the scope of general operation of the statute---Similarly, the authority cannot extend the purpose of statute or add new or different meaning of carrying it out or depart from or vary its terms---Any rule/regulation which the authority has power to make is liable to be declared invalid if powers entrusted for one purpose are deliberately used with design of achieving another or if it shows on its face misconstruction of law or failure to comply with conditions prescribed under the parent statute for the exercise of the powers or if it is not capable of being related to any purpose mentioned in the parent statute. Citation Name: 2023 PLD 272 ISLAMABADBookmark this Case Syed MOHSIN SHAH VS FEDERATION OF PAKISTAN through Secretary Law and Justice, Islamabad S. 13---Civil Servants (Directory Retirement from Service) Rules, 2020, Rr. 3, 4 & 5---Constitution of Pakistan, Art. 14---Inviolability of dignity of man---Retirement---Grounds for retirement---Scope---Petitioners questioned the vires of Civil Servants (Directory Retirement from Service) Rules, 2020---Validity---Competent authority of a civil servant is the best judge to determine the factors to be given preference and to what extent, per se, after due consideration of the powers highlighted in S. 13(1)(i) and Civil Servants (Directory Retirement from Service) Rules, 2020---Test, criteria, qualifications, eligibility, and methodology provided in the Civil Servants (Directory Retirement from Service) Rules, 2020, is based on the subjective evaluation of each case, as conducted by a committee under R. 4 (for the retirement of civil servants in BPS-16 & BPS-17 to 19) and a Retirement Board constituted under Rule 3 (for the retirement of civil servants in BPS-20 or above)---These bodies are the best judges to assess each case and determine whether a civil servant has demonstrated average performance or has obtained adverse remarks regarding his efficiency---If a civil servant has been recommended for supersession by the CSB (Central Selection Board) on two occasions, despite having some time to serve till the age of superannuation and the higher position requires a high standard on the administrative side where an inefficient civil servant is not desirable; in such cases, if the civil servant continues to serve, he would not be considered an asset but rather a burden to the exchequer---Therefore, these individuals need to be granted a secure exit through a directory retirement concept, especially when they do not fall within the purview of compulsory retirement due to misconduct---Hence, the challenged Rules were formulated while considering the dignity of civil servants, as outlined in Art. 14 of the Constitution---Constitutional petitions were dismissed. Citation Name: 2023 PLD 272 ISLAMABADBookmark this Case Syed MOHSIN SHAH VS FEDERATION OF PAKISTAN through Secretary Law and Justice, Islamabad Prospective application---Scope---Legislation that touches the vested rights of individual cannot be given retrospective effect unless clearly indicated by the legislature. Citation Name: 2023 PLD 272 ISLAMABADBookmark this Case Syed MOHSIN SHAH VS FEDERATION OF PAKISTAN through Secretary Law and Justice, Islamabad Rr. 2(1)(c) & 5(1)(e)---Government Servants (Efficiency and Discipline) Rules, 1973, R. 2(4)---Civil Servants Act (LXXI of 1973), S. 13---Retirement---"Conduct unbecoming" as distinguished from "misconduct"---Scope---Inclusion of term unbecoming of civil servant in terms of Rule 5(1)(e), though a negative phrase but an exception has been created from the definition of misconduct provided in Government Servants (Efficiency and Discipline) Rules, 1973, in order to protect a civil servant from a stigma and to give him a way out from the civil service with his pensionary benefits without declaring him guilty under the concept of misconduct. Citation Name: 2023 PLD 272 ISLAMABADBookmark this Case Syed MOHSIN SHAH VS FEDERATION OF PAKISTAN through Secretary Law and Justice, Islamabad R. 5---Civil Servants Act (LXXI of 1973), S. 13---Retirement---Grounds for retirement---Prospective application---Scope---Petitioners questioned the vires of Civil Servants (Directory Retirement from Service) Rules, 2020---One of the arguments put forth by the petitioners pertained to the prospective application of the challenged Rules---Validity---Rules have to be applied prospectively but, the argument advanced by the learned counsel qua prospective application with the view that the Rules have to be applied after the year 2020 upon those civil servants who have been appointed after the said year is misplaced, rather it applies to all those who have completed 20 years of their service as the pre-condition of S. 13(1)(i) of the Civil Servants Act, 1973, is completion of 20 years of service by a civil servant and, as such, the Rules are made applicable to those civil servants only---Constitutional petitions were dismissed. Citation Name: 2023 PLD 272 ISLAMABADBookmark this Case Syed MOHSIN SHAH VS FEDERATION OF PAKISTAN through Secretary Law and Justice, Islamabad R. 5---Civil Servants Act (LXXI of 1973), S. 13---Retirement---Grounds for retirement---Scope---Petitioners questioned the vires of Civil Servants (Directory Retirement from Service) Rules, 2020---Validity---Legislation touching the vested rights of an individual cannot be given retrospective effect---However, civil servants cannot claim their vested right to continue serving after completing 20 years of service until the age of superannuation, as it is already a part of their terms and conditions under S.13(1)(i) of the Civil Servants Act, 1973---Said provision ensures that they are protected and allowed to continue their service until the 20th year, unless they have been affected by the concept of misconduct---Therefore, the terms and conditions of service stipulated in the Civil Servants (Directory Retirement from Service) Rules, 2020, do not create any other rights, as interpreted by the petitioners, except those provided in the statute---Constitutional petitions were dismissed. Citation Name: 2023 PLD 272 ISLAMABADBookmark this Case Syed MOHSIN SHAH VS FEDERATION OF PAKISTAN through Secretary Law and Justice, Islamabad Rr. 5 & 6---Constitution of Pakistan, Art. 10-A---Civil Servants Act (LXXI of 1973), S. 13---Retirement---Grounds for retirement---Right to fair trial---Scope---Petitioners questioned the vires of Civil Servants (Directory Retirement from Service) Rules, 2020---Absolute authority given under S. 13 of the Civil Servants Act, 1973, has been regulated through the Civil Servants (Directory Retirement from Service) Rules, 2020, as such, the Rules have provided a separate remedy of appeal and review to retired servant if he is aggrieved by the decision of the competent authority---Due protection of Art. 10-A of the Constitution has been envisaged in the Rules, hence it is not justified to declare them ultra vires to the Constitution as the test laid down in different pronouncements of the Supreme Court has fully been observed while making the Rules more effective which are also need of the hour to save the Country from all those officials whose services are no more required in the public interest---Moreover, under Rule 6(6) of the Rules a complete procedure, including issuing show cause notice and affording opportunity of personal hearing, is provided, as such, a civil servant, who has been proposed for directory retirement would have full opportunity to explain his position and he cannot claim that he has been condemned unheard. Citation Name: 2023 PLD 272 ISLAMABADBookmark this Case Syed MOHSIN SHAH VS FEDERATION OF PAKISTAN through Secretary Law and Justice, Islamabad S. 13---Retirement---Scope---Paramount consideration for retiring a civil servant after completion of his 20 years of service is the will and choice of the competent authority as to whether it is interested to allow the civil servant to continue his service or otherwise but, the predominant factor is the public interest, which can only be evaluated by the competent authority, hence the exclusive domain of the competent authority cannot be questioned if it is based on the concept of fitness i.e. whether the particular post and position necessitate a qualified person amongst his peers having eligibility to tackle the highest skill position in the larger public interest. Citation Name: 2023 PLD 272 ISLAMABADBookmark this Case Syed MOHSIN SHAH VS FEDERATION OF PAKISTAN through Secretary Law and Justice, Islamabad S. 13---Retirement---Scope---Plain language of S. 13(1) of the Civil Servants Act, 1973 explicitly states that a civil servant has the right to serve up to the 20th year of his service, except in cases of misconduct---Afterward, the concept of vested right is replaced with the discretion of the competent authority in the public interest---In this context, a civil servant cannot claim to continue his service beyond the 20-year period until the age of superannuation as it is subject to conditions that require evaluation by the competent authority---Similarly, in cases of promotion, the determination of eligibility criteria is an essential administrative matter falling within the exclusive domain and policy-making of the government---Courts cannot interfere in these matters, as no vested right is granted to a government employee regarding promotion or the rules that determine his eligibility or fitness---Constitutional petition was dismissed. Citation Name: 2023 PLD 272 ISLAMABADBookmark this Case Syed MOHSIN SHAH VS FEDERATION OF PAKISTAN through Secretary Law and Justice, Islamabad arts. 10-a & 4---Right to fair trial---Rights of individuals to be dealt in accordance with law---Scope---article 10-a of the Constitution provides a right to fair trial and due process at all forums, which is the fundamental right, as such, any deviation from such principle conclusively vitiates the proceedings, if any---Similarly, art. 4 acknowledges the right of due process where a person shall have a notice of proceedings which affected his right; such person must be given a reasonable opportunity to defend himself; the adjudicatory tribunal or forum must be so constituted as to convey a reasonable assurance of its impartiality and that such tribunal or forum must possess composite jurisdiction. Citation Name: 2023 PLD 272 ISLAMABADBookmark this Case Syed MOHSIN SHAH VS FEDERATION OF PAKISTAN through Secretary Law and Justice, Islamabad R. 5---Civil Servants Act (LXXI of 1973), S. 13---Retirement---Grounds for retirement---Scope---Directory retirement is not a punishment or stigma upon the civil servant, rather the absolute authority vests with the Federal Government to consider a person to continue with his job after 20 years of his service based on certain objective criteria as laid down in the Civil Servants (Directory Retirement from Service) Rules, 2020 and it is not a choice of the civil servant to claim exemption from the rules, which have been made by the competent authority after due consideration and subject to a transparent process including but not limited to right of hearing, evaluation, show cause notice, etc. Citation Name: 2023 PLD 272 ISLAMABADBookmark this Case Syed MOHSIN SHAH VS FEDERATION OF PAKISTAN through Secretary Law and Justice, Islamabad Termination from service---Scope---Powers of the Government to terminate the service of an employee in public interest , though not unqualified or unrestricted, are to be regulated in the manner and in the interest of efficiency of public bodies, however the Government should have the authority to terminate the employment of inefficient, corrupt, indolent character and disobedient employee---However, said authority must be exercised fairly, objectively and independently, and the occasions for exercise must be delimited with precision and clarity---Further, there should be adequate reasons for the use of such power, and the decision in this regard has to be taken in a manner showing fairness, that avoids arbitrariness and evokes credibility. Citation Name: 2023 PLD 272 ISLAMABADBookmark this Case Syed MOHSIN SHAH VS FEDERATION OF PAKISTAN through Secretary Law and Justice, Islamabad R. 5---Civil Servants Act (LXXI of 1973), S. 13---Constitution of Pakistan, Art. 199---Constitutional petition---Retirement---Grounds for retirement---Scope---Petitioners questioned the vires of Civil Servants (Directory Retirement from Service) Rules, 2020---Validity---Civil Servants (Directory Retirement from Service) Rules, 2020, cannot be challenged by the civil servants as same are not contrary to their fundamental rights and under the Constitution no vested right is available to the civil servants to challenge this policy matter where Rules have been framed within the scope of law---Even otherwise, it is settled proposition that the competent authority i.e. the Federal Government is in a better position to settle their requirements to engage the services of a civil servant, whose services are required or otherwise in the public interest---This executive discretion cannot be interfered with---Constitutional petitions were dismissed. Citation Name: 2023 PLD 272 ISLAMABADBookmark this Case Syed MOHSIN SHAH VS FEDERATION OF PAKISTAN through Secretary Law and Justice, Islamabad art. 199---Constitutional jurisdiction---Scope---Legislative enactment, vires of---Judicial review---Scope---Courts are guided by certain set of rules in discharging their solemn duty to declare laws passed by legislature unconstitutional or otherwise in which the foremost principle applied is when a law is enacted by the Parliament, the presumption is that the Parliament had competently enacted it (law) and if the vires of the same (law) are challenged, the burden is always upon the person making such challenge to show that the same (law) is violative of any of the fundamental rights or provision of the Constitution---In a case where two opinions with regard to the constitutionality of the enactment are possible, the one in favour of validity of enactment is to be adopted---It is also cardinal principle of interpretation that law should be interpreted in such a manner that it should be saved rather than destroyed---Courts should lean in favour of upholding the constitutionality of a legislation and it is thus incumbent upon the Courts to be extremely reluctant to strike down laws as unconstitutional.

Syed MOHSIN SHAH vs FEDERATION OF PAKISTAN through Secretary Law and Justice, Islamabad Delegated legislation — 2023 PLD 272 ISLAMABAD

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