' SYED SHABBAR RAZA RIZVI, J.---This judgment will decide Writ Petition No,2379/2005 and Writ Petition No,68/2006 as same questions of law and facts are involved in both petitions.
2. According to the contents of the petitions, the petitioners were appointed as Chairman of the Federal Public Service Commission and Members respectively, under the provisions of Federal Public Service Commission Ordinance, 1977 (Ordinance No, XLV of 1977) [To be referred Original Ordinance hereinafter]. The appointments of the petitioners were for the term of five years.
Petitioner No,1 was appointed as a Chairman on 31-3-2003. Petitioner No,2 was appointed on 1-11- 2001 as a member, petitioner No,3 was appointed on 31-1-2002 as a member, petitioner No,4 was appointed on 6-5-2002 as a member and the petitioner No,5 was also appointed on 2-12-2002 as a member.
3. Section 4(1) of the Original Ordinance provides term of tenure of members as five years, commencing from the date appointee enters upon the office. Under section 2 of the original Ordinance, expression `Member' includes Chairman of the F.P.S.C. Under section 4-A of the Original Ordinance before entering upon the office, the Chairman is required to take oath before the President and other members before Chairman in the prescribed form. Section 6 of the Original Ordinance provides that a Member shall not be removed from office except in the manner applicable to a Judge of High Court.
4. The petitioners were still in their respective offices as their term was not expired, the President of the Islamic Republic of Pakistan promulgated the Federal Public Service Commission (Amendment) Ordinance, 2005 (Ordinance No,XV of 2005) and notified the same vide Gazette of Pakistan dated 27-8-2005, which reads as follows:-- ' Ordinance No,XV of 2005 an Ordinance further to amend the Federal Public Service Commission Ordinance, 1977 ' Whereas it is expedient further to amend the Federal Public Service Commission Ordinance, 1977 (XLV of 1977), for the purpose hereinafter appearing: ' And whereas, in exercise of the powers conferred by clause (1) of Article 89 of the Constitution of the Islamic Republic of Pakistan, the President is pleased to make and promulgate the following Ordinance:
(1) Short title and commencement.--(1) This Ordinance may be called the Federal Public Service Commission (Amendment) Ordinance, 2005. (2) It shall come into force at once.
(2) Amendment of section 4, Ordinance XLV of 1977.---In the Federal Public Service Commission Ordinance, 1977 (XLV of 1977) in section 4, for subsection (1) the following shall be substituted and shall be deemed always to have been so substituted; namely: "(1) A member of the Commission shall hold office for a term of three years from the date on which he enters upon office or till he attains the age of sixty five years whichever is earlier: ' Provided that a member of the Commission who is a retired Judge of the Supreme Court or a High Court shall hold office for a term of three years within five years from the date of his retirement: ' Provided further that a member of the Commission shall not be eligible for re-appointment.
(1A) Notwithstanding anything in any contract agreement or any instrument containing terms and conditions of the service, a member who. On or after the commencement of the 'Federal Public Service Commission (Amendment) Ordinance, 2005, completes his tenure or attains upper age- limit specified in subsection (1) shall on such commencement forthwith cease to be member as defined in clause (b) of section 2."
5 Reading of the Ordinance No, XV of 2005 shows that section 4of the Original Ordinance has been amended and not repealed. According to the petitions, the amendment through the Amending Ordinance No,XV of 2005 has been malafidely and deliberately made to deprive petitioners of their vested right to complete five years term in the office. To put it in other words, the learned counsel for the petitioners means that by the said Amending Ordinance period of five years term has been reduced to three years. According to him, the effect of enactment of the Amending Ordinance is that petitioners Nos.1, 3 and 4 ceased to hold office forthwith. Petitioner No,5 ceased to hold office with effect from 1-12-2005 and petitioner No,1 shall cease to hold office as the Chairman, FPSC from 30-3-2006. According to the learned counsel for the petitioners, the President promulgated/re- promulgated the Amending Ordinance as he did not like functioning of petitioners on merit and in accordance with law and rules. In this context, the learned counsel for the petitioners referred to some examples in the petitions, which are not needed to be narrated in this judgment as not required for the purpose. The learned counsel further submitted that the Amending Ordinance, 2005 was made and promulgated just two days before the session of the National Assembly was summoned, which is against spirit of provisions of Article 89 of the Constitution, therefore, is void, unconstitutional andbased on mala fides/ulterior motives; hence without lawful authority and of no legal effect.
6. The learned counsel further stressed in the petitions that the `Amending Ordinance' of 2005/impugned Ordinance is violative of provisions of Article 9 of the Constitution. According to him, in any case, the impugned Ordinance could not be applied on the petitioners as they had earned vested right of five , years term before the promulgation/re-promulgation of the impugned Ordinance. The learned counsel added that the expression "repeal" includes "amendment" hence Article 264 of the Constitution is attracted. Thee learned counsel also sought a declaration that the Federal Public Service Commission (Amendment) Ordinance, 2005 (Ordinance No,XV of 2005) be declared void, unconstitutional, without lawful authority and of no legal effect. Likewise, the petitioners also sought a declaration that petitioners be allowed to complete their five years term.
7. Parawise comments were submitted on behalf of respondent No,
1. Some preliminary objections were raised: That the petition is neither maintainable on the facts stated nor in law; the Court cannot take cognizance to examine validity of the impugned Ordinance under Article 199 of the Constitution; that the wisdom, bona fide and the motives of the legislature are not a subject- matter of judicial review by the superior Courts; and this Court has already declared vide its judgment dated 12-12-2005 that the President had validly promulgated Amending Ordinance, vires whereof cannot be subjected to judicial review; Amending Ordinance is not ultra vires of any provision of the Constitution; it cannot be assailed on ground of mala fide; the same is a valid piece of legislation and it cannot be struck down.
8. On the contents of the petitions, the learned Attorney General submitted that the appointments of the petitioners were made subject to the law and the Constitution and there was no clog on the power of the Legislature to amend the law which regulates such appointments. It was further submitted that sections 4 and 6 of the Ordinance, 1977 are statutory provisions and can be amended like any other statutory provisions of any other statute. According to the learned Attorney General, the promulgation of Federal Public Service Commission (Amendment) Ordinance, 1977 (Ordinance No,XV, 2005) was competently enacted. The respondents denied that the Amending Ordinance was promulgated on account of any mala fide or to target any individual. The impugned Ordinance was promulgated bona fidely and competently, therefore, it cannot be challenged under Article 199 of the Constitution. Violations mentioned in paras. 9 and 10 of the petition were categorically denied. It was further denied that the Amending Ordinance was: promulgated as the President of Pakistan annoyed with the petitioner No,l.
9. In support of contents of the writ petition and written statement, the learned Advocate for the petitioners and learned Attorney General for Pakistan addressed their oral arguments. The learned Advocate for the petitioners referred to Article 264 of the Constitution. In this regard, he referred to clauses (b) and (c), which read as under:-
264. Where a law is repealed, or is deemed to have been repealed, by, under, or by virtue of the Constitution, the repeal shall not, except as otherwise provided in the Constitution;---
(a) ------
(b) Affect the previous operation of the law or anything duly done or suffered under the law;
(c) Affect any right, privilege, publication or liability acquired, accrued, incurred under the law; ' In this relation, he also referred to 1998 PLC (CS) 535, Saeed Mehtab Butt v. Government of Punjab.
He referred to section 31 of the Custom Act, 1969, and section 2 of Finance Ordinance-II of 1998 to point out that similar language was used in the above enactments. According to him, similar interpretation should be assigned to provisions of the Amending Ordinance as was assigned by the Hon'ble Courts to the said enactments. The learned counsel submitted that "amendment" includes "repeal".
10. The learned counsel for the petitioners further relied upon 1993 SCMR 1905, Molasses Trading v.
Federation of Pakistan to stress that vested rights cannot be taken away. He also referred to 2000 SCMR 367 and 2001 SCMR 1012 to urge that amendment in an enactment with retrospective effect could not be applied where vested rights were adversely affected. In this regard, he also referred to 2001 CLC 385 to contend that legislature is presumed not to legislate a law manifestly causing injustice or abuse of the jurisdiction of legislation. Where such abuse of jurisdiction is caused, the Courts have the exclusive powers to examine the validity of the same. The learned counsel for the petitioners next contended that expression "Life" used in Article 9 of the Constitution has an extended meaning and it includes right to work. To advance further his arguments, the learned counsel referred to PLD 2005 SC.
193. The learned counsel also. Argued that in the above context Article 199(c) of the Constitution should be kept in mind while deciding the present case. He also referred to 2003 SCMR 291 and some case-law from the English jurisdiction. In addition to above, the learned counsel for the petitioners submitted that legislation by 'one person is not at par with legislation by the Parliament, therefore, the Original Ordinance and vested rights provided therein should be given preferential treatment over Amending Ordinance. According to him, the Amending Ordinance was only passed by the National Assembly but it could not be passed in the Senate, therefore, Amending Ordinance stood expired; it could not have been re-promulgated. He emphasized that re-promulgation is not recognized or provided under Article 89 of the Constitution.
11. The learned Attorney General for Pakistan submitted that the Amending Ordinance is competently and duly promulgated/repromulgated and it has retrospective effect; it is applicable to the petitioners. He also referred to Molasses Trading v. Federation of Pakistan, 1993 SCMR 1905 as relied upon by the learned counsel for the petitioners. He submitted that since petitioners were holding or still holding the office, their appointment was not a past and closed transaction. He referred to PLD 2005 Lahore 150 and PLD 2005 SC 605. He submitted that language of the Amending Ordinance is express and its intention is manifest, thus, applicable to the petitioners' case. He further submitted that power to re-promulgate is contained in power of promulgation under Article 89 of the Constitution. Since the Amending Ordinance was passed by the National Assembly, but it could not be passed in the Senate and four months were about to run out, a need arose to re-promulgate it; re-promulgation was constitutional necessity under the above circumstances. He referred to 2005 CLC 452, PLD 1999 Lahore 320 and PLD 1993 Lahore 70. The learned Attorney General submitted that Article 264 was not applicable to the facts and circumstances of the present case. He also submitted that legislature has to go on making or amending the laws to meet the requirements and contingencies of the time
12. We have heard the learned counsel for the petitioners as well as learned Attorney General for Pakistan. We considered their arguments in favour of their pleas with due care and attention.
13. Before touching the merits of these two writ petitions, we hold that these petitions are maintainable as the controversies raised in these two writ petitions involve interpretation of Articles 89 and 264, besides some other provisions of the Constitution.
14. At this stage, it would be proper for us to remind ourselves that the learned Single Bench already held that the President of Pakistan had validly promulgated the 'Amending Ordinance', vires whereof cannot be subject to judicial review. The 'Amending Ordinance' would take effect retrospectively. The learned Single Bench further noted that section 2 of the 'Amending Ordinance' provides that new section 4(1) shall be deemed always to have been so substituted. According to the learned Single Bench, the said language in the Ordinance has substantial bearing,while interpreting about its taking effect. According to his lordship, the following questions arise in the present petition:-
(i) Whether 'Amending Ordinance' is to operate retrospectively or it will take effect prospectively?
(ii) Whether any vested right existed in favour of the petitioners, when the 'Amending Ordinance' was promulgated?
(iii) If so, whether the 'Amending Ordinance' has infringed any of the vested rights of the petitioners?
(iv) Whether petitioners' cessation to hold offices under the `Amending Ordinance' is void, unconstitutional and without lawful authority?
15. The learned Single Bench observed that a deeper consideration was needed to consider the above questions, therefore, the writ petition was admitted to regular hearing only to consider and decide the afore-noted questions. The Hon'ble Chief Justice. Was requested to constitute a Larger Bench. In the above backdrop, we proceed to give our findings on the aforementioned questions/points formulated by the learned Single Bench of this Court vide its order dated 15-12- 2005.
16. The learned counsel for the petitioners vigorously argued that in section 4 of the Federal Public Service Commission Ordinance, 1977 (Original Ordinance) term of a member was provided as five years from the date on which he enters upon office, therefore, the time the petitioners entered into their offices, they earned a vested right to serve or to work for a term of five years. For them, it was a question of offer and acceptance under the circumstances then prevailing. According to the learned counsel, the respondent could not have reduced the said term of five years unilaterally even by amending the relevant statute i,e, Ordinance No,XLV, 1977. In this respect, the learned counsel for the petitioners heavily relied upon Article 264 of the Constitution of Pakistan. According to the learned Attorney General, Article 264 is not applicable in the facts and circumstances of the present case Article 264 relate to subject of "repeal", whereas, issue raised in this present writ petitions relate to the subject of "amendment". According to- him, there is a clear distinction between "repeal" and "amendment". According to the learned counsel for the petitioners, "amendment" includes "repeal". As far as petitioners are concerned, the impugned amendment repealed the original provision which was provided in section 4 of the Original Ordinance, i,e, Federal Public Service Commission Ordinance, 1977 (Ordinance No,XLV of 1977).
17. To determine the scope of section 264 and whether "amendment" includes "repeal", we allude to the Law LexiconEncyclopedic Legal and Commercial Dictionary by Justice Y.V. Chandrachud, former Chief Justice, Supreme Court of India (page 101).
According to his Lordship "amendment" means a modification or alteration to be made in a bill on his passage or in an enacted law; modification or change in an existing act or statute. In the same book "repeal" means, revocation; as the repealing of a statute is the revoking or disannulling it, Abrogation of any law; a repeal signifies the abrogation of one statute by another. The primary meaning of the word "repealed", is, as its etymology imports, that the statute has been recalled or revoked. The general rule is when an act of parliament is repealed; it must be considered as if it had never existed. According to the Black's Law Dictionary, Eighth Edition by Bryan A. Garmer at page 89, "amendment" means, formal revision or addition proposed or made to a statute,.
Constitution, pleading, order or other instrument, specify; a change made by addition, deletion, or correction; especially an alteration in wording. By the same Book, "repeal" means: rescind, abrogation of an existing law by legislative act. This Court defined "repeal" in Zia Ullah Khan v.
Government of Pakistan PLD 1989 Lah. 554, repeal means to revoke rescind, annul, etc.
18. Maxwell on the interpretation of Statues, 12th Edition by P.St.J. Langan at page 16 defines "repeal" as under-- "The common law rule was that if an act expired or was repealed. It was regarded in the absence of provision to the contrary, as having never existed, except as to matters and transactions past and closed."
' The impugned Ordinance i,e, Ordinance No,XV of 2005,sections 1 and 2 read as under:-- "1. Short title and commencement.-(1) This Ordinance may be called the Federal Public Service Commission (Amendment) Ordinance, 2005.
(2) It shall come into force at once,
2. Amendment of section 4, Ordinance No,XLV of 1977.-In the Federal Public Service Commission, Ordinance, 1977, Ordinance No,XLV of 1977 in section 4 for subsection (1) the following shall be substituted and shall be deemed always to have been so substituted, namely-- "(1) A member of the commission shall hold office for a term of three years from the date on which he enters upon office or till he attains the age of sixty-five years whichever is earlier: ' Provided that a member of the Commission who is a retiredJudge of the Supreme Court or a High Court shall hold office for a term of three years within five years from the date of his retirement: ' Provided further that a member of the Commission shall not be eligible for re-appointment.
(IA) Notwithstanding anything in any contract, agreement or any instrument containing terms and conditions of the service, a member who, on or after the commencement of the Federal Public Service Commission (Amendment) Ordinance, 2005, completes his tenure or attains upper age- limit specified in subsection (1) shall on such commencement forthwith cease to be member as defined in clause (b) of section 2.".
The perusal of the above in light of definitions of "repeal" and "amendment" discussed earlier, shows that an amendment has been made in section 4 of the original enactment by the impugned Ordinance. The original Ordinance of 1977 as a whole or section 4 has not been repealed, at all. The definition of "repeal" and "amendment" has already been mentioned from the well-known Law Books which probably cannot be substituted or improved by us. On the basis of the same, it is observed that section 2 of the 'Amending Ordinance' introduced `amendment' in section 4 of the Original Ordinance, i,e, Federal Public Service Commission Ordinance, 1977 (Ordinance No,XLV of 1977) and not the 'repeal' and Article 264 of the Constitution is applicable if a law is repealed and it is not applicable if a law is only amended.
19. In the context of our Constitution, Article 89 itself indicates what is 'repeal'. Under Article 89, an Ordinance is repealed if it is not laid before the National Assembly or before both Houses, as the case may be and it is not approved before the expiration of four months from its promulgation . It also stands repealed if before expiration of that period a resolution disapproving it is passed by the National Assembly or by either House, as the case may. In the present case, the Ordinance was laid before the National Assembly before the expiration of four months and it was approved by the National Assembly, but it could not be passed by the Senate, therefore, it was re-promulgated by the President of Pakistan. Thus, neither there was a failure on part of the Government in laying the Ordinance before the National Assembly, etc. Nor there was any disapproval from the National Assembly or Senate. In view of the above, present case is not a case of 'repeal' in terms of provisions of Article 89 of the Constitution either.
20. Neither the Federal Public Service Commission (Amendment) Ordinance, 2005 (Ordinance No,XLV of 1977) was repealed in terms of provisions of Article 89 of the Constitution nor it repealed section 4 of the Federal Public Service Commission, 1977 (Ordinance No,XLV of 1977), therefore, there is no question of application or. Attraction of Article 264 of the Constitution to the present case.
Article 264 only deals with the consequences of "repeal."
21. The learned counsel for the petitioners referred to 1998 PLC ' (CS) 535, Saeed Mehtab Butt v.
Government of Punjab and also stressed that the said case is in pari materia with the present case.
We are afraid that is not correct. As a matter of fact, the said judgment is neither applicable to the facts and circumstances of the present case nor helpful to the learned counsel for the petitioners.
The facts of Saeed Mehtab Butt's case are that certain amendments were brought in the Punjab Public Service Commission Ordinance, 1978 by way of the Punjab Public Service Commission (Amendment) Ordinance, 1993. The said "Amending Ordinance" was subsequently repealed after three months from the date of its promulgation, as the Ordinance was not placed or approved by the Provincial Assembly. Therefore, the question before the Court was consequence of the repeal of the "Amending Ordinance" under Article 128 of the Constitution. In the present case, the Amending Ordinance was not repealed as it was saved by the re-promulgation of the Ordinance. Therefore, his lordship rightly referred to Article 264 of the Constitution in SaeedMehtab Butt's case. His lordship reflected as under:-- "The question arises whether the repeal of the Amending Ordinance in terms of Article 128 of the Constitution changes the above legal position. The answer to my mind is in the negative. Reliance is placed on Article 264 of the Constitution, which lays down that where a law is repealed or it deemed to have been repealed by, under, or by virtue of the constitution, the repeal shall note except otherwise provided in the Constitution: (a)
(b) Affect the previous operation of the law or anything done or suffered under the law;
(c) Affect any right of privilege, obligation or law acquired, accrued or incurred under the law, The Amending Ordinance is deemed to have been repealed by virtue of Article 128 and as provided in clause (b) of Article 264 this repeal did not affect the previous operation of the Amending Ordinance."
22. At this stage, we may also refer to Government of the Punjab v. Zia Ullah Khan and 2 others, 1992 SCMR 602. In the said judgment also it was held that the operation of Article 264 and section 6 of the General Clauses Act is attracted in cases of "repeal" only. It was also held that despite repeal of the law, etc. Previous operation of the law or anything done are suffered under the law, any right, privilege, obligation, etc. Would remain unaffected which were incurred under the repealed law, but nothing was mentioned in the above terms about consequences if a law is amended. One can infer it from reading para.14 of the said judgment that if the Amending Ordinance" in the present case is treated or deemed as a case of "repeal", it would amount violation of Article 89 of the Constitution. As explained above, a law made by an Ordinance is treated as repealed if it is not approved by the National Assembly or by both Houses as the case may be, in four months or if it is disapproved by the National Assembly or by either Houses earlier. At this stage, a brief reference to Federation of Pakistan v. United Sugar Mills Ltd., PLD 1997 SC 397 would be useful. Clause 4-A was inserted in Article 199 of the Constitution by clause (b) of section 8 of the Constitution (Fourth Amendment) Act, 1975. In the said judgment, the learned counsel for the petitioner attempted to convince the Court that the amendment made in the Constitution be treated as a 'repeal' and Article 264 be applied. This contention of the learned counsel for the petitioner was found by the Court as untenable. A brief extract from the report is reproduced as under:-- ' I do not find any substance in the last contention of learned counsel in support of the second limb of his argument, that section 14 of the Amending Ordinance must be read subject to the provision of Article 264 of the Constitution. The Article as pointed out already is in the same terms as section 6 of the General Clauses Act, it reads---- ' Where a law is repealed, or is deemed to have been repealed, by, under, or by virtue of the Constitution, the repeal shall not, except as otherwise provided in the Constitution,---
(a) Revive anything not enforced or existing at the time at which a repeal takes effect;
(b) Affect the previous operation of the law or anything duly done or suffered under the law;
(c) Affect any right, privilege, obligation or liability acquired, accrued or incurred under the law; (d)
(e)
' Article 266 of the Constitution is also referred to, which reads as under:-- "The interim Constitution of the Islamic Republic of Pakistan, together with the Acts and President's Orders making omissions from, additions to, modifications of, or amendments in, that Constitution is hereby repealed."
This Article makes it absolutely clear that repealing of the interim Constitution means that the said interim Constitution has been annulled and completely replaced by the present Constitution of 1973. From the reading of Article 266, it is crystal clear that expression "repeal" and "amendments" are two distinct expressions and they are not interchangeable.
23. As stated in para-10, the learned counsel for the petitioners laid a lot of stress that in any case the "Amending Ordinance" could not be applied upon the petitioners or the "Amending Ordinance" could only be applied prospectively. In support of his contentions, he relied and read extensively Molasses Trading v. Federation of Pakistan, 1993 SCMR 1905. Before discussing the said report, Article 12 of the Constitution is mentioned which is the only provision in the Constitution which prohibits making of law with a retrospective effect.
Protection against retrospective punishment: 12(1) No law shall authorize punishment of a person---
(a) for an act or omission that was not punishable by law at the time of the act or omission;
(b) for an offence by a penalty greater than, or of a cruel nature or incompatible with human dignity.
(2) Nothing in clause (1) or in Article 270 shall apply to any law making acts of abrogation or subversion of a Constitution in force in Pakistan at any time since the twenty-third day of March, one thousand nine hundred and fifty-six, an offence.
' Reading of Article 12 makes it clear that the Constitution expressly prohibits making of such laws which have effect of retrospective punishment. However, Article 12 allows that laws with retrospective punishment can be made if the offence is of abrogation or subversion of a Constitution.
24. The Molasses's case is relied upon by the learned counsel for the petitioners that the amended Ordinance cannot be given a retrospective effect. It may be pointed out that in the said case the issuewas payment of duty on imported Palm Oil. Originally duty was loveable at the rate of Rs,3000 per metric ton but by means of notification dated 17-4-1986 issued under section 19 of the Customs Act, 1979, the Federal Government modified the previous notification on the subject dated 25-6- 1981 whereby, the amount of exemption was further increased so that the duty be payable only at Rs,2,350 per metric ton. However, on 29-5-1986, the same rate of exemption was maintained by the notification of the said date issued under section 19 of the Act. In the events that happened, however, after opening of the letter of credit by the appellant, by means of notification dated 22-8- 1986 issued under section 19 of the Act, the exemption earlier granted under the last mentioned two notifications was modified with the result that the duty was increased from Rs,2350 to Rs,5350 per metric ton, with the result that under the said notification, the appellant would be required to pay Rs,3,000 per metric ton towards duty offered earlier rate. The contention of the appellants was that the amendment in the duty was made after opening the letter of credit, therefore, their case should be treated as a past and closed transaction. In the present case, the facts are entirely different, which are not needed to be re-narrated at this stage. However, it may be mentioned that tenure of the petitioners was still continuing and they were holding office when the "Amending Ordinance" was promulgated. Therefore, to their extent It was not a case of past and closed transaction. Even in the Molasses's case it was held:-- "It is agreed on all hands that the well-settled principles of interpretation of statutes are that vested rights cannot be taken save by express words or necessary intendment. It also cannot be disputed that the legislature, which is competent to make a law, has full plenary powers within its affairs of operation to legislate retrospectively, therefore, vested rights can be taken away by such a legislation and it cannot be struck down on that ground." (Molasses Trading and Export (Pvt.)
Limited v. Federation of Pakistan, 1993 SCMR 1905)."
If Article 12 and above extract of Molasses's case are read together, there is no doubt left that the respondents were competent to promulgate/ re-promulgate the impugned Ordinance with retrospective effect, under Article 89 of the Constitution. In this regard, a reference may also be made to Facto Belarus Tractors Limited v. Government of Pakistan, ,PLD 2005 SC 605, paras. 54 to 56.
25. The learned counsel for the petitioners asserted that before the promulgation of the "Amending Ordinance" the petitioners had earned the vested rights, this assertion can be, examined in the light of a para. Of a recent judgment of the Hon'ble Supreme Court, 2002 SCMR 312. Thesaid Judgment has been authored by his lordship JavedIqbal, J. Which reads as under:-- "There is no cavil with the proposition that "vested rights cannot be taken away save by express words and necessary intendment. No doubt that the Legislature, is also competent to amend, vary or repeal the same but the right conferred through statute can only be taken away by Legislative enactment and not by an executive authority through notification in exercise of the rule-making power or the power to amend, vary or rescind an earlier order/notification in the purported exercise of powers conferred under section 21 of the General Clauses Act, 1897. Collector of Central Excise and Land Customs v. Azizuddin Industries (Pvt.) PLD 1970 SC 439 and Messrs M.Y. Electronics Industries (Pvt.) Ltd. v. Government of Pakistan 1998 SCMR 1404.Gatron Industries Ltd. v. Government of Pakistan 1999 SCMR 1072 but in the case in hand no vested right whatsoever was accrued and accordingly the question of its infringement does not arise. Let we mention here at this juncture that "a vested right is free from contingencies,, but not in the sense that it is exercisable anywhere and at any moment. There is hardly any right which can be so exercised. There must always be occasions at which and circumstances under which they may be exercised. Those occasions and circumstances do not constitute contingencies, but are the peculiar characteristics of those rights."
(M. Farani on "Interpretation of Statutes" 1977 Edn. P.280). There is a distinction between a "vested right" and "assertion" which admittedly are not interchangeable or synonymous terms. It is not a case of wrong mentioning or non-quoting of S.R.O. And had it been so such lapse could have been cured and rectified by this Court as there is no hurdle in doing so. If any authority is required reference can be made to case entitled Gatron (Industries) Ltd. v. Government of Pakistan (1999 SCMR 1072). As mentioned hereinabove S.R.O. No,484(I) of 1992 has rightly been mentioned but unfortunately after its expiry". (2002 SCMR 312)."
In the present case, suppose, the petitioners had any vested rights, they are taken away expressly and by necessary intendment which is clearly worded in the impugned Ordinance. In Zulfiqar Ali Babu v. Government of Punjab The Punjab Local Government (Repeal) Act, 1996 was challenged.
One of the grounds was that the said legislation had nullified the effect of decision of the Hon'ble Supreme Court. It may be pointed out that in the said case the issue was of "repeal" and not the "amendment", yet Hon'ble Supreme Court held:-- "From the review of the above case-law, it is evident that the Court is not at liberty to inquire into the motives or mala fide on the part of the Legislature. Once a statute is competently made, the court is not entitled to question the wisdom of fairness of the Legislature. Nor the Court can refuse to enforce a law competently made on the ground that the result would be to nullify its own judgment." (Zulfiqar Ali Babu v.Government of Punjab PLD 1997 SC 11.
' It may also be pointed out that another effect of the Repeal Act was reduction in tenure of office of the petitioners and one of the arguments was that the tenure of the petitioners could not have been curtailed as it was secured under the deceased Act as well as judgment of the Hon'ble Supreme Court. On this point, the Hon'ble Supreme Court held:-- "The Repeal Act had taken away the rights of the petitioners to remain as the members of the Local Council up to 9-2-1997 conferred by the above judgment of this Court of 26-6-1996. Keeping in view the ratio decided of the above judgments of this Court, the Repeal Act cannot be struck down on the above ground." (Zulfiqar Ali Babu v. Government of Punjab PLD 1997 SC 11).
26. The learned counsel for the petitioners contended that Article 9 of the Constitution and fundamental rights contained therein are attracted in this case as right to work is included in "right to life". One cannot live without necessary requirements of life and to attain the required facilities and comfort, one needs to work. In this regard the learned counsel for the petitioners referred to Naveeda Tufail v. Government of the Punjab 2003 SCMR 291. Briefly, according to the facts of the said case, the Education Department, Government of the Punjab, for information of general public; advertised the posts of Lecturers on 11-11-1995 and 13-11-1995 and constituted a Divisional Selection Board comprising of a Chairman and four members including the subject specialist for selection of the suitable candidates. The petitioners applied for these posts, the Selection Board having assessed the suitability of the petitioners as per criteria fixed for the posts interviewed them and after determining their suitability, recommended them for appointments. The petitioners were accordingly appointed ad hoc lecturers, vide orders dated 21-12-1995. The ad hoc employment of the petitioners continued without any break till their termination vide order dated 5-8-2002. The Tribunal dismissed their appeals against the termination orders. Against the said order of the Tribunal, the petitioners filed their petitions before the Hon'ble Supreme Court on the ground that the employment in the Government was a public employment and it being a source of livelihood, right of life was attached. It was further contended that the continuous retention of the petitioners in service on ad hoc basis for a considerable period would bring them at par to the regular employees and their termination from service without notice would not be proper and legal and that their employment for such a long period without break would create legitimate expectancy of confirmation/permanent employment as the policy of continuity despite having no statutory backing would be recognized in law. The Hon'ble Supreme Court held that the Government would initiate the process of regularization of the petitioners through Punjab Public Service Commission giving the concession as mentioned in the reply filed by the respondent in the Punjab Public Service Commission within a period of one month and meanwhile without prejudice to the right of the selectees of the Punjab Public Service Commission for. Appointment on regular basis, the posts which were being held by the petitioners would not be filled. The Court further held that petitioners, being ad hoc employees, could not claim regularization as of right.
27. The Hon'ble Supreme Court further observed that an employment for a common person is the source of livelihood and right of livelihood is an undeniable right to a person. The finding of the Hon'ble Court is well-recognized but it does not affect the facts and circumstances of the present case. As recorded above, the case before the Hon'ble Supreme Court was regularization of ad hoc employees in accordance with law and rules. The petitioners just wanted that they should be considered' against the vacant seats according to the policy and equal treatment as was given to the ad hoc employees of the Federal Government. In the instant case, the issue is amendment of section 4 in the original Ordinance whereby a term of office has been reduced. For the above reason 2003 SCMR 291 is distinguishable from the instant case.
28. In Arshad Mehmood v. Government of the Punjab PLD 2005 SC 193, the issue was interpretation of Article 18 of the Constitution. According to the petitioners, insertion of section 69-A in the West Pakistan Motor Vehicles Ordinance, 1965, was challenged on the ground that by the said enactment, the appellants were restrained/ousted completely from the trade/business of transportation, which they were carrying on against valid routes permits issued by the competent authority. The franchise of the said routes on which the appellants were plying their stage- carriages were given to the private respondents in pursuance of scheme under section 69-A of the Ordinance. The Amending law was challenged in the High Court under Article 199 of the Constitution, but the petitions were dismissed, hence the matter reached to the Hon'ble Supreme Court questioning validity of section 69-A of the Ordinance. Again facts in the instant case are clearly distinguishable, the case of the petitioners is not a case of freedom of trade, profession, etc. In Arshad Mehmood's case, the petitioners were disallowed to ply theirwagons. The Hon'ble Supreme Court observed that Article 18 of the Constitution envisaged free competition, whereas, the petitioners were out rightly excluded from the business without providing them opportunity to participate as route permits of the petitioners were cancelled in violation of principles of natural justice Iftikhar Muhammad Chaudhry J. The Hon'ble Chief Justice held as under:-- "Argument of learned counsel for the respondents is that competent authority can regulate any trade or profession by a licensing system. There may be no cavil but this clause has to be read conjunctively with proviso (b) of Article 18 of the Constitution, according to which, an element of free competition to regulate a trade, commerce or industry has been introduced because if competition in the trade is discouraged, it would negate the provisions of Article 3 of the Constitution, which deals with the elimination of all forms of exploitation and if due to non- competition franchise is granted of specified routes, it would tantamount to monopolize trade/business of transportation."
' Therefore, in view of the above, it is crystal clear that Arshad Mehmood's case is also not applicable to the facts and circumstances of the present case.
29. In Muhammad Rafique v. Federation of Pakistan, the petitioners had filed their nomination papers for the posts of Members, Punjab Bar Council. Their nomination papers were found correct and accepted. Subsequently, section 5-A was amended and qualification of standing was increased from 7 years to 10 years. The Hon'ble Full Bench of this Court declared that validly nominated candidates whose nomination papers were accepted before impugned amendment could not be deprived of contesting the election as the provisions of the amending Ordinance were not express or unequivocal. The relevant portion of the report is reproduced as under:- "The revised schedule issued on 6-11-2004 by the learned Returning Officer had the effect of nullifying the valid nominations of the said petitioners. The amendment made by Ordinance No,III of 2004 have become part of the Act itself but even in the scheme of the entire aforesaid act there is no provision for nullifying a valid nomination already made right to be elected in the creation of Act XXXV of 1973 and as a result of acceptance of the nomination papers and publication of the list of the contesting candidates, the right of the said petitioners to contest the election stood perfected and that right could not be taken away except by express word and unequivocal intendment of the Legislature which we were unable to find in section 1(3)of the Amending Ordinance relied upon by the learned Deputy Attorney General. It may also be noted that in case of doubt, it has to be resolved against retrospectively to save existing rights."
' The above finding of the Hon'ble Full Bench of this Court is not applicable to the present case as language of the impugned/ Amending Ordinance is worded in express words and unequivocal intendment is clear and there is no doubt in the said language. Muhammad Rafiq v. Federation of Pakistan PLD 2005 Lah. 150).
30. The learned counsel for the petitioners further contended that legislation by one person (President) is not at par with legislation by the Parliament. This argument of the learned counsel for the petitioners is devoid of any force as a matter of fact, directly in conflict with the Constitution itself. In this regard. Article 260(2) of the Constitution is referred to which reads as below:-- "In the Constitution Act of [Majlas-e-Shoora (Parliament)] or Federal Law or Act of Provincial Assembly or Provincial Law shall include an Ordinance promulgated by the President or as L the case may, a Governor.The above language of Article 260(2) of the Constitution makes it evidentially known that there is no difference between Act of Parliament or an Ordinance promulgated by the President. Thus, there is no reasons to believe that legislature by one person, i,e, Ordinance promulgated by the President, is in any manner an inferior law than the law made by an Act of the Parliament. It has been repeatedly held by the superior Courts of this country and other countries that every provision and word of the Constitution has equal importance. By the analogy we cannot assume that provision of Article 89 are less important than the provisions of Article 70 of the Constitution. A learned Division Bench of this Court held:-- "We cannot accept the contention raised by the Deputy Attorney General and Mr. Khosa that an Ordinance is not a law for the purpose of Article 264 of the Constitution. No doubt, law is not defined in the Constitution, but if an Act of Parliament is a law which is undoubtedly, there is no reason why an Ordinance should be not treated as a law. Clause (2) of Article 260 of the Constitution places the matter beyond doubt as it provides act of (Majlas-e-Shoora (Parliament)) or Federal Law or Act of Provincial Assembly or Provincial Law shall include an Ordinance promulgated by the President or, as the case may, a Governor" (Zia Ullah Khan and others v.
Government of Punjab PLD 1989 Lahore 554.)
' Article 89 of the Constitution itself reads as under:-'- "An Ordinance promulgated under this article shall have the same force and effect as an Act of Majlas-e-Shoora/Parliament and shall be subject to like restrictions as the power of Majlas- eShoora/Parliament to make law."
' The Hon'ble Supreme Court held in PirSabir Shah v. Shad Muhammad Khan PLD 1995 SC 66 that there is no difference of force and legal effect between a law made by an Ordinance or by an Act of the Parliament. Similar finding is made by the Hon'ble Supreme Court in Fauji Foundation v.
Shamim-ur-Rehman PLD 1983 SC 457.
31. Lastly the learned counsel for the petitioners argued that after the impugned Ordinance/Amending Ordinance was passed in the National Assembly. It could not be passed by the Senate, therefore, President was not competent to re-promulgate the impugned/amending Ordinance. The arguments of the learned counsel for the petitioners are not tenable. For example the President of Pakistan makes and promulgate an Ordinance and before expiration of four months; National Assembly is dissolved under Article 48(1) or under Article 48(2) of the Constitution, as the case may be, in the above circumstances, would the President be not competent to re-promulgate the Ordinance? Even Article 89 of the Constitution itself does not contain such prohibition. As a matter of fact, re-promulgation is included in promulgation. To make and promulgate an Ordinance is a legislative power conferred upon the President of Pakistan and if he can exercise this once why cannot he exercise it the second time? His Lordship AjmalMian, J., the former Chief Justice of Pakistan expressed himself on this point in the following words:-- "It may be observed that Article 89 of the Constitution does not expressly prohibit against the re- enactment of an expired Ordinance."
' In the same case, his Lordship observed: "I may re-enforce my above view by giving an example. Suppose the National Assembly completes its constitutional tenure but elections could not take place within constitutional mandate on account of an act of God for nearly one year, can it be said that after expiry of a Finance Ordinance upon expiry of four months, the President cannot re-enact the same by invoking the reserve power contained in Article 89 of the Constitution." (Collector of Customs of Karachi v. M/s.New Electronics (Pvt.) Limited and others, PLD 1994 SC 363).
32. In Mehmood Hassan Barvi v. Federation of Pakistan PLD 190Lah. 320, his Lordship Faqir Muhammad Khokhar, J., (as he then was), held as under-- "In view of the recent pronouncement of the superior Courts, it is too late in the day for the learned counsel for the petitioners to raise objection as to the competence of the President to promulgate successive Ordinances on the subject-matter."
33. On the same point finding of a learned Division Bench of Karachi High Court may also be referred to. The learned Division Bench considered the relevant precedents of our superior Courts while concluding the discussion, held as below:-- "Mr. Faisal Arab learned Standing Counsel nevertheless brought to our notice a subsequent pronouncement by a five-member Bench of the Honourable Supreme Court in Riaz Ahmad v. State 1998 SCMR 1729 where both the views in New Electronics case were duly considered and dilated upon. It was observed that Article 89 only required an Ordinance laid before the Houses of .The Parliament and this must obviously be done when it was still in force. Indeed supremacy of the Legislature was recognized by the stipulation that it would cease to have effect upon disapproval by either House. Nevertheless in case the Legislature chose to take time in deliberation over its provisions, without approving or disproving it, a vacuum could not be countenanced. Under such conditions the power to re-promulgate an Ordinance ought to be conceded to the President. We have noticed that in a subsequently case Federation of Pakistan v. M. Nawaz Khokhar PLD 2000 SC 26 a seven member Bench of the Honourable Supreme Court has proceeded on the assumption that Ordinance XX of 1997 which was re-promulgation upon expiry of Ordinance CXI of 1996 was a valid piece of legislation". (Messrs Hino Pak Motors Ltd. v. Federation of Pakistan, 2005 CLC 452).
34. In the preceding paras. We have tried to consider and discuss all the points raised/argued by the learned counsel for the petitioners and the learned Attorney General, of course with their able assistance, which we deeply appreciate and acknowledge. On the basis of above discussion and reasons, we hereby answer to the questions formulated by the learned Single Bench of this Court vide order dated 15-12-2005 as under:-- "(i) We hold and answer that the "Amending Ordinance" i,e, Ordinance No,XV of 2005 is to operate retrospectively and is applicable to the petitioners for reasons contained in paras. 17 to 25; (ii)we hold and answer that petitioners did not have any vested right existing in their favour at the time of promulgation/promulgation of the "Amending Ordinance", and even if it deemed so, they have been taken away by the "Amending Ordinance" as the language of the "Amending Ordinance" is express and unequivocal. We also hold that benefit of provisions of Article 264 of the Constitution is not available to the petitioners and Article 264 is not attracted in the present case. Detailed reasons have already been given in the preceding paras. 17 to 25;
(iii) we hold/answer that the "Amending Ordinance" has notinfringed any rightof the petitioners in view of ourfindings/answers given to the questions Nos. 1 and 2;
(iv) we also hold/answer that cessation of petitioners to hold their respective offices is neither void nor illegal in view of the above findings as well as findings of the learned Single Bench whereby the learned Single Bench held as under:-- "In the above backdrop, it is held that the President has validly promulgated the "Amending Ordinance", vires whereof cannot be subjected to judicial review, the "Amending Ordinance" is not ultra vires of any of the provisions of Constitution; it cannot be assailed on the ground of mala fide, the same is valid piece of legislation and it cannot be struck down."
35. In view of our above findings, both Writ Petitions Nos.2379/2005 and Writ Petition No,68/2006 (titled Lt.-General (Retd.) JamshaidGulzar and others v. Federation of Pakistan and others) are dismissed without any costs.
36. This is our detailed judgment pursuant to the short order dated 6-3-2006 which was announced in open Court on 8-3-2006.