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Civil Appeals Nos. 99 of 1964, 51, 52 and 53 of 1968, decided on 7th January 1970.

(On appeal from the judgments and orders of the High Court of West Pakistan, Lahore, dated the 17th July 1964, in Writ Petition No. 425 of 1962; dated 24th January 1967, in Writ Petitions Nos.702 of 1961; 934 of 1962 and 882 of 1963, respectively).

S. 2-Interpre tation-Intention of S. 2, clearly to negative Supreme Court deci sion in Manzur Ahmad v. Province of West Pakistan and others PLD1961SC 166.

Held, the intention of section 2 of the Punjab Government Services (War) Amendment Rules (West Pakistan Repeal) Ordinance, 1963 was clearly to negative the decision of the Supreme Court in the case of Manzur Ahmad v. Province of West Pakistan and others P L D 1961 S C 166 with retrospective effect, from the 1st Janu ary 1946, a date prior even to the Partition of the country, because, that was the date from which, according to the judgment of this Court, the distinction between War-reserved vacancies and non-reserved vacancies had been removed. This section, however, has two provisos. The first was intended to safeguard all actions that had, presumably up to the date of the promulga tion of the Ordinance, been taken under the Rules of 1943, as interpreted by this Court and the second to lay down that the seniority of those who were not covered by the first proviso, would be fixed in future in accordance with the provisions of section 3. This section sought to restrict the War services benefit only to those appointed to a War-reserved vacancy. In the case of persons appointed to non-reserved vacancies the War Services Rules of 1943 were not to apply and their seniority was to be fixed according to the rules applicable to all others in that service. In other words no advantage of War Service was to be given to ex-service candidates appointed to non-reserved vacancies, not withstanding the decision of this Court in Manzur Ahmad's case.

Manzur Ahmad v. Province of West Pakistan and others P L D 1961 S C 166 ref.

and Constitution of Pakistan (1962), Arts. 2, 79 (4), 178 & 234 -Questions: (i) whether Ordinance XLI of 1963 ultra vires provisions of Art. 234 of Constitution; (ii) whether repeal of Punjab Govern ment Services (War) Amendment Rules, 1943 effected by Ordinance has taken paramount effect notwithstanding that the Ordinance itself deemed repealed under Art. 79(4) of Constitution, and (iii) what is effect of S. 2 of Ordinance.

The contention before the Supreme Court was that the Punjab Government Services (War) Amendment Rules (West Pakistan Repeal) Ordinance, 1963 was bad inasmuch as it was repugnant to the provisions of Article 234 of the Constitution of Pakistan, 1962 which guaranteed that the terms and conditions of persons in the service of Pakistan applicable to them immediately before the commencing day of the Constitution would continue to apply to them and could not be varied to their disadvantage. Further, it was contended, that the Ordinance could not be given retrospective effect. The bar of Article 2 ref the Constitution was pleaded in support. The questions of law which required decision by the Supreme Court, therefore, were:

(i) Whether the Ordinance XLI of 1963 was ultra vires the provisions of Article 234 of the Constitution in so far as it pur ported to give retrospective effect to the repeal of the Punjab Government Services (War) Amendment Rules, 1943;

(ii) Whether the repeal of the Rules of 1943 effected by the Ordinance had taken permanent effect notwithstanding that the Ordinance itself is to be deemed to have been repealed under Article 79 (4) of the Constitution; and

(iii) What is the effect of the first proviso appended to section 2 of the Ordinance

Held, the word "law" has not been defined in the Constitution. In Article 242 only "Central law" and "Provincial law" have been defined. Central law means "a law made by or under the authority of the Central Legislature, and includes a law made by the President". Similarly, a Provincial law means "a law made by or under the authority of a Provincial Legislature, and includes a law made by the Governor". Under this definition it is not clear whether rules framed in exercise of powers given by the Constitution after its coming into force or by a subsequent statute would have the status of law but an Ordinance promulgated by the Governor would certainly come within the definition of "Provincial Law" as given in Article 242. Since an Ordinance is definitely a law and clause (1) of Article 234 is subject both to the Constitution and the law, it cannot be said that the terms and conditions, other thin those relating to remuneration and age of superannuation, applicable to a public servant at the time of the coming into force of the Constitution cannot be altered to his disadvantage. Whenever the Constitution intends that a particular provision should be subject not only to the Constitution but also to a law enacted by virtue of powers granted by the Constitution it has so provided but where the intention is to make the provision subject only to the Constitution it has been so expressed, e.g. in Articles 110, 117, 175 and 177 which are only subject to the Constitution while Articles 178 and 179 are like Article 234 subject both to the Constitution and the law. This difference in the language employed by the makers of the Constitution is not without significance. The difference in terminology is being maintained throughout the Constitution so consistently that it becomes manifest that where the provisions are intended to be unalterable save by an amendment of the Constitution, they are being made subject to the Constitution only but in other cases subject to both the Constitution and the law. It would also appear from the provisions of clause (3) of Article 178 that the guarantee that is being given by the Constitution to public servants is only to this extent that their remuneration and ages fixed for superannuation will not be varied to their disadvantage during the period of their service but there is no guarantee with regard to the other terms and conditions of service. A comparison between these provisions would also make it clear that Article 234 was not intended to guarantee Man thing more than the continuance of the existing state of airs during the transitional period or until other provision is made either by the Constitution or some competently made law. It is, therefore, not correct to say that Ordinance XLI of 1963 was bad by reason of being repugnant to the provisions of Article 234 of the Constitution.

It is well settled that legislation may be made both prospectively and retrospectively but normally legislation, which is not of a purely procedural nature, will not be given retrospective effect so as to take away vested rights unless the Legislature has used express words in that behalf or such an intention necessarily flows from the language of the statute. There are express words in the Ordinance XLI of 1963 giving it retrospective effect. By saying that the Rules of 1943 shall be deemed to have been repealed "with effect on and from the first day of January 1946" the Ordinance made its intention abundantly clear and there could be no room for doubt that the repeal was being made with retrospective effect. It is difficult to construe Article 2 of the Constitution as conveying a fundamental right in every citizen of Pakistan and every person for the time being within Pakistan against the making of laws by the established Legislatures, which expressly operate retrospectively or retroactively against his interests.

The repeal effected by the Ordinance remained effective even after the Ordinance itself was deemed to have been repealed. As stated by Maxwell in his Interpretation of Statutes (11th Edition) at page 389, the common law rule undoubtedly was that the repeal of a repealing enactment "revived the first ab Initio" but since the passing of the Interpretation Act, 1889, the rule does not apply to repealing statutes passed after 1850. The rule now is that "where an Act repealing, in whole or in part, a former Act, is itself repealed, the last repeal does not now revive the Act or provisions before repealed, unless words be added reviving them". Article 250 of the Constitution of 1962 appears to have adopteed the latter rule.

Proviso first to section 2 of the Ordinance XLI of 1963, only sought to maintain the benefits, if any, given to public servants of the Rules of 1943 after the decision of the Supreme Court in the case of Manzur Ahmad v. Province of west Pakistan P L D 1961 S C 166 but before the promulgation of Ordinance XLI of 1963. These were not to be disturbed under the Ordinance of 1963. Apart from such cases the seniority of all others was to be fixed according to the provisions of section 3 of the Ordinance. In other words after the promulgation of the Ordinance the war service candidates holding non-reserved posts, if not already given the benefit of the Rules of 1943, would have their seniority fixed according to the same rules as were applicable to non-war-service candidates appointed to such posts. War-service candidate appointed to reserved posts would, however, still continue to enjoy the benefits of the Rules of 1943.

Muhammad Ashraf Government of West Pakistan and others Civil Appeal No. 96 of 1964; Dr. Muhammad Amin Durrani v. Government of West Pakistan and another P L D 1966 S C 99; Muhammad Yousuf v. The Chief Settlement and Rehabilitation Commissioner and another P L D 1968 S C 101; Governor of West Pakistan v. Karamatullah Khan P L D 1968 S C 292; Nagina Silk Mill v. Income-tax Officer P L D 1963 S C 322 and Maxwell on Interpretation of Statutes, 11^th Edn., p. 389 ref.

Art. 178(3) -Terms and conditions of service only in so far as relate, to remuneration or age of superannuation, guaranteed -- Other terms and conditions of service may be varied by Rules made by competent authority.

Art. 2-Does not bar mak ing of laws, by established Legislatures, which expressly operate retrospectively or retroactively against interest of citizen.

Muhammad Yousuf v. The Chief Settlement and Rehabilitation Commissioner and another P L D 1968 S C 101; Governor of West Pakistan v. Karamatullah Khan P L D 1968 S C 292 and Nagina Silk Mill v. Income-tax Officer P L D 1963 S C 322 ref.

Repeal and revival-Repeal of Act effected by a repealing enactment- Remains effective even after repealing enactment itself stands repealed.

Maxwell on Interpretation of Statutes, 11^th Edn., p. 389 and Mir Ahmad Nawaz Khan Bughti v. Superintendent, District Jail, Lyallpur P L D 1966 S C 357 ref.

Civil Appeal No. 99 of 1964

Muzafar Ahmad Mian, Advocate Supreme Court instructed by Nasimul Haq Amjad, Attorney for Appellants.

M. Aslant Riaz Hussain, Additional Advocate-General (lamer Raza, Advocate Supreme Court with him) instructed by Ijaz All, Attorney for Respondent No. 1.

Respondent Nos. 2 to 82, 84 to 115, 117 to 142, 144 to 198, 200, 201, 203 to 229, 231 to 245, 247 to 296, 298 to 322, 324 to 345, 347 to 374, 375 to 416, 418 to 440 and 442 to 455: Ex parte.

Respondents Nos. 83, 116, 143, 199, 202, 320, 246, 297, 323,. 346, 374, 417 and 441: Struck off:

Civil Appeal No. 51 of 1968

M. Aslam Riaz Hussain, Additional Advocate-General West Pakistan (R. S. Sidhwa, Advocate Supreme Court with him) instructed by Ijaz All, Attorney for Appellant.

Muhammad Asghar Ali Bhatti, Advocate Supreme Court instructed by Maqbool Ahmad Rana, Attorney for Respondent.

Civil Appeal No. 52 of 1968

M. Aslant Riaz Hussain, Additional Advocate-General (R. S. Sidhwa, Advocate Supreme Court with him) instructed by Ijaz All, Attorney for Appellant.

Respondents : Ex parse.

Civil Appeal No. 53 of 1968

M. Aslant Riaz Hussain, Additional Advocate-General West Pakistan (M.A. Bajwa, Advocate Supreme Court with him) instructed by Ijaz Ali, Attorney for Appellant.

Ghulam Mujaddid Mirza, Senior Advocate Supreme Court (Shaukat Ali Khawaja, Advocate Supreme Court with him) instructed by Abdul Karim, Attorney for Respondents.

Date of hearing: 31st October 1969.

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