Judgement ICA 17A Appointment 05.05.2025

Judgement ICA 17A Appointment 05.05.2025

OFFICE MEMORANDUM

Subject: ICA 17A Appointment

JUDGEMENT

MALIK WAQAR HAIDER AWAN, J:- Through this consolidated judgment, we intend to decide the instant Intra-Court Appeal as well as connected cases detailed in Appendix “A” and Appendix “B” as common questions of law and facts are involved in these cases.

2. By way of filing Intra-Court Appeals mentioned in Appendix “A”, appellants (Province of the Punjab etc.) have thrown challenge to judgment dated 18.12.2024 passed by learned Single Judge in Chamber in Writ Petition No.74563/2024 as well as connected petitions. Through the petitions detailed in Appendix “B” (except Crl. Org. No. 12592/2025), petitioners therein have claimed appointments under Rule 17-A of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 (hereafter referred to as “the Rules”) prior to the rescission of the Rule ibid. By virtue of Crl. Org. No.12592/2025, petitioner has alleged defiance of judgment dated 18.12.2024 passed by learned Single Judge in Chamber in Writ Petition No.70692/2024.

3. Learned Law Officer contends that learned Single Judge in Chamber misconstrued the findings recorded in the judgment passed by the Supreme Court of Pakistan in Civil Petition No. 3390/2021 titled General Post Office, Islamabad and others v. Muhammad Jalal. Adds that it is a settled principle of jurisprudence where any law or rule is declared ultra vires, the Constitution on the touchstone of either legislative competence or infringement of fundamental rights, it is declaration of the same being void ab initio but this aspect of the matter was neither considered nor dealt with by learned Single Judge in Chamber.

Places reliance on Malik Asad Ali and others v. Federation of Pakistan through Secretary, Law, Justice and Parliament Affairs. Islamabad and others (PLD 1998 Supreme Court 161), Ali Azhar Khan Baloch and others v. Province of Sindh and others (2015 SCMR 456), Shahid Pervaiz v. Ejaz Ahmad and others (2017 SCMR 206) and Mir Muhammad Khan and 2 others v. Haider and others (PLD 2020 Supreme Court 233).

4. On the other hand, learned counsel for respondents support the impugned judgment passed by learned Single Judge in Chamber and submits that the case of General Post Office, Islamabad and others (supra) is not applicable retrospectively. Submits that respondents who acquired rights till 24.07.2024 are entitled to get the benefit of Rule 17-A of the Rules.

5. Before discussing the facts of cases fixed before us, we would like to discuss the case of General Post Office. Islamabad and others (supra) as the whole controversy for resolving the instant matters in issue revolves around the judgment of Supreme Court of Pakistan by virtue of which quotas provided in special circumstances in service rules through which child, widow or widower had been facilitated against untimely death of an employee as under Article 189 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter called “Constitution”) judgments of the Supreme Court of Pakistan are binding upon all others Courts of Pakistan.

6. In the case of General Post Office, Islamabad and others (supra), only two exceptions are being given by the Apex Court in paragraph No. 25, relevant portion of which is reproduced below for ready reference:-

“However, it is clarified that the instant judgment shall not affect the appointments already made of the widow/widower, wife/husband or child of deceased or retired civil servants. It is further clarified that this judgment shall not affect the policies, rules or compensation packages of the Federal and Provincial Governments for the benefit of the legal heirs of martyred personnel of the law enforcement agencies and of civil servants who die on account of terrorist activities.”

It is very much clear from the above that only two following exceptions have been given:-

Appointments already made of the widow/widower, wife/husband or child of deceased or retired civil servants. 

The benefits given to the legal heirs of martyred personnel or the law enforcement agencies and of civil servants who die on account of terrorist activities and were protected through policies, rules or compensation packages of the Federal and Provincial Governments.

7. The pivotal question for determination before us is whether the case of General Post Office, Islamabad and others (supra) would be applicable prospectively or retrospectively. In this regard, learned counsel representing legal heirs of deceased employees relied upon CPLA No. 566-P/2024 titled Zahida Parveen v. Government of Khyber Pakhtunkhwa etc. wherein it has been held that the judgment of Apex Court would operate prospectively unless declared otherwise. On the other hand, learned Additional Advocate General has relied upon Shahid Pervaiz v. Ejaz Ahmad and others (2017 SCMR 206) to controvert the arguments advanced by learned counsel for legal heirs of deceased employees.

8. We are fortified with the view taken in the judgment reported as Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others (PLD 2007 SC 302) which became applicable on pending proceedings retrospectively. As a result of interpretation of the statute (The Punjab Pre-emption Act, 1991), many requirements were made condition precedent for the maintainability of the pending suits for pre-emption, hence the conclusion could be drawn that judgments of the superior courts became applicable as and when announced over the pending proceedings until and unless their applicability was not categorically made prospective. In the case in hand, the persons who are claiming accrual of their rights on the basis of findings made in the impugned judgment and judgment in case of Noor ul Hadi Shah but have not been appointed do not get support from the case of General Post Office, Islamabad and others (supra) as it has only protected the persons whose appointments have already been made.

9. The view taken in the case of Mian Pir Muhammad and another (supra) was recognized and endorsed by the Apex Court in its judgment reported as Mst. Bashiran Begum v. Nazar Hussain and another (PLD 2008 Supreme Court 559) wherein retrospective effect was indubitably given to the pending cases.

10. While affirming the dictum laid down in the case of Mst. Bashiran Begum, the Supreme Court of Pakistan in its esteemed judgment reported as Haq Nawaz v. Muhammad Kabir (2009 SCMR 630) held as follows:-

As to the next contention of the learned counsel for the petitioner regarding applicability of the above referred case i.e. Mian Pir Muhammad (supra), on the pending cases filed before the pronouncement of the said judgment, it may be mentioned here that proposition in hand stands answered by this Court in the case of Mst. Bashiran Begum v. Nazar Hussain and another, PLD 2008 SC 559, wherein, it was held that the requirement of mentioning of date, place and time in the plaint is also essential even in the pending cases.

11. It is the principle of interpretation that declarations made by the superior courts are operative retrospectively over all the pending situations which have not been finalized. This principle has been dilated upon by the Supreme Court of Pakistan in its recent venerated judgment reported as Taisei Corporation and another v. A.M. Construction Company (Pvt.) Ltd. and another (2024 SCMR 640). Relevant portion of Paragraph No. 44 of this judgment is reproduced hereinbelow:-

“We all know that while interpreting a provision of law or construing its effect, a constitutional court only declares what the law is and does not make or amend it. The law so declared by the court, therefore, as a general principle applies both prospectively to future cases and as well as retrospectively to pending cases, including the one in which it is declared. It is only as an exception to this general principle that while considering the possibility of some grave injustice or inconvenience due to the retrospective effect, the courts sometimes provide for the prospective effect of their judgments from such date as they think just and proper in the peculiar facts and circumstances of the case. But this exception cannot be invoked in a case where its effect would be tantamount to negation of the legislature intent.”

12. We are not inclined to agree with the argument of learned Additional Advocate General that Rule 17-A of the Rules becomes non est from its insertion for the reason that neither malafide has been attributed to Rule 17-A of the Rules nor any violation of law has been agitated as a consequence to which Rule 17-A of the Rules becomes inoperative from the date of its omission (24.07.2024), hence the case of Shahid Pervaiz (supra) would not be attracted and applicable retrospectively over the past and closed chapter to the employees who had been appointed before the omission of Rule 17-A of the Rules. However, the case of the General Post Office. Islamabad and others (supra) will be applicable retrospectively to the persons who had not been appointed till the omission of Rule 17-A of the Rules and their appointments are still in process.

13. The persons who have taken benefit of Rule 17-A of the Rules till its omission dated 24.07.2024, that process would deem to be a past and closed chapter. To further classify and clarify the situation, the persons who could not get the benefit of Rule 17-A of the Rules (omitted on 24.07.2024) and were in process and no final and decisive step could have been taken effect till the pronouncement of venerated judgment passed in the case of General Post Office, Islamabad and others (supra) i.e. 18.10.2024, the judgment ibid would be applicable with retrospective effect.

14. Epitome of the above discussion is that the Intra-Court Appeals detailed in Appendix “A” are allowed as a sequel to which judgments dated 18.12.2024 passed by learned Single Judge in Chamber are set aside whereas the petitions mentioned in Appendix “B” stand dismissed.