' MIAN FASIH-UL-MULK, J.--- Petitioners, through instant writ petition, have questioned the vires of Notification No,SO(UE)3-24/80 dated 1-2-1996 issued by the Secretary to Government of N.-W.F.P.
(now K.P.K.) Education Department whereby in exercise of the powers conferred by section 20 of the West Pakistan General Clauses Act 1956, the Governor N.-W.F.P. Was pleased to rescind the Government of N.-W.F.P. Education Department Notification No,S.O. (UE)3-24/85 dated 14-3-1989 and approved the de-linking of Police Public School Peshawar from the ambit of N.-W.F.P.
Educational and Training Institutions Ordinance 1971 with immediate effect.
2. On 11-5-1971, North West Frontier Province Government Education and Training Institutions Ordinance, 1971 (N.-W.F.P. Ordinance No,III of 1971) (hereinafter called the Ordinance) was promulgated for establishment of Boards of Governors for Government Education and Training Institutions. Under section 2 of the Ordinance, the Provincial Government was competent to apply the Ordinance to such Institutions and from such dates as may be notified in the Official Gazette.
Under section 3 of the Ordinance any Educational Institution to which the Ordinance is applicable or applied shall. Have a Board of Governors and the Governor/Chief Minister of the Province is authorized under section 4 of the Ordinance to appoint Members and Chairman of the Board.
Under section 20 of the Ordinance, the Board has been authorized to frame Statutory Regulations inter-alia providing for recruitments, tenure of office and terms and conditions of service of the employees of any such institutions.
3. In the year 1982, a School under the name and style of Police Public School (hereinafter called the School) was established and vide Notification No,SO(PH)HD/6-29/88, dated 12-1-1989, the Government of N.-W.F.P. In exercise of the powers conferred by subsection (3) of section 1 of the Ordinance was pleased to direct that all the provisions of the aforesaid Ordinance shall apply to the Police Public School, Peshawar, with immediate effect. Vide Notification No, SO(U.E)3-24/85 dated 14-3-1989, a Board of Governors for the School was established with immediate effect, whereby Minister for Education, N.-W.F.P. Was notified as its Chairman besides nomination of Vice- Chairman, Members and Secretary by designation. Accordingly, the Board of Governors while exercising the powers conferred upon it through Clause 2(e) of section 20 of the Ordinance framed the terms and conditions of Service Regulations, 1992, whereby staff/employees of the School for all intent and purposes was given statutory protection and status of Government Servants. However, vide impugned notification dated 1-2-1996, delinking of the School was ordered from the ambit of the Ordinance.
4. As the impugned Ordinance was not published in the official Gazette, therefore, when the Provincial Government introduced revision of basic pay scales in the year 2005 for its employees, such benefit was not extended to petitioners, who then came to know about disconnection of the School from the realm of the Ordinance.
5! Petitioners, therefore, challenged the aforesaid act of respondents through Writ Petition No,929 of 2007. During pendency of the writ petition, petitioners Nos.1 to 3 were proceeded against for misconduct under the so-called terms and conditions of the Constitution 2007 of the Police Public School and College, Peshawar, Show cause notices were issued to them wherein intention of imposing major penalty of dismissal from service was disclosed, compelling the petitioners to again challenge such proceedings through Writ Petition No,1201 of 2010.
6. The aforesaid writ petition came up for hearing on 8-4-2010 wherein the following order was passed:--- "Whether the Police Public School could be taken outside the orbit of N.-W.F.P. Government Educational Training Institution Ordinance, 1971 by virtue of a Notification, which has not been gazetted so far in terms of section 20 of the General Clauses Act and whether the petitioners could be proceeded against under any other dispensation, which does not enjoy statutory sanction, is a question requiring consideration. Admit Notice.
' Inter Relief Notice for 14-4-2010. Till then the respondents may proceed with the inquiry but shall not pass final order."
However, on 10-4-2010, when the above order was in the field, respondents issued orders of removal from service of petitioners Nos.1 to 3. Petitioners, in view of the above state of affairs, filed amended writ petition whereby orders of their removal from service were challenged. This Court, on 20-5-2010, granted status quo ante to petitioners Nos.1 to 3 and the impugned order dated 10-4- 2010 was suspended.
7. Both the above writ petitions came up for hearing on 2-6-2010 but it was observed that vires of the notification dated 1-2-1996 has not been specifically challenged. Petitioners, therefore, requested for withdrawal of the writ petitions in order to specifically challenge the impugned notification; hence the present writ petition.
8. Learned counsel for the petitioners argued that petitioners have not been treated in accordance with law, as once a statutory protection was given to their terms and conditions of service, the impugned notification, 'being neither published in the official gazette nor ever brought into the notice of petitioners before agitating the matter of extension of the benefits of revised pay scales before the Court, the same loses its legal sanctity, is illegal and without lawful authority.
9. On the other hand, learned counsel for respondents defended the impugned notification on the grounds that the writ petition is hit by laches, as the notification was issued as early as in the year 1996 but the same was challenged in the year 2007 and that the impugned notification is now duly published in the official gazette dated 6th August, 2011. They further alleged that the School is now being run under the Constitution 2007, where under respondent No,1 is fully competent to initiate proceedings against petitioners Nos.1 to 3, to which no legal exception could be taken.
10. We have heard learned counsel for the parties and have also gone through the record of the case.
11. On 4-11-2010, when instant writ petition was fixed for hearing, the learned A.A.-G. Was asked as to whether the Notification of de-linking the Institution from the Ordinance was published in the official Gazette; he informed that it has not been published. It was observed that when it has not been published, it is more than clear that such Notification cannot have any effect. However, learned counsel for the parties requested for time to find the judgment of apex Court on the point.
12. On the next date of hearing i,e, 10-11-2010, learned counsel for the petitioners referred to the judgments of the apex Court in the cases of Chief Administrator Auqaf v. Mst. Amna Bibi (2008 SCM R 1717), Haji Malik Amanullah Khan v. Khyber Khan and others (2008 SCM R 1723), Muhammad Suleman and others v. Abdul Ghani (PLD 1978 Supreme Court 190) and Province of East Pakistan v.
Major Nawab Khawaja Hassan Askary and others .(PLD 1971 Supreme Court 82) and contended that according to section 2(41) of the West Pakistan General Clauses Act (VI of 1956), notification shall mean a notification published under proper Authority in the official Gazette. It was again observed that on the strength of the authorities referred to by learned counsel for the petitioner, he has quite successfully canvassed before the Court that the subsequent Notification for want of publication in the official gazette cannot be called a Notification within the term of section 2(41) of the General Clauses Act. However, it was again adjourned for the reason that the School was not represented by anybody.
13. So far as the question of laches is concerned, when the learned counsel for respondents were asked that neither the notification was published in the official gazette nor served upon the petitioners, how negligence of petitioners could be established, he produced a copy of the said notification purportedly sent to the School and received by an official in the Accounts Branch.
However, it would not mean that the petitioners were duly informed about the same. Laches is equivalent to statute of limitation, however, unlike statute of limitation, laches leaves it up to the Court to determine whether petitioners slept over their rights and have waited too long to seek relief. We, in the facts and circumstances of instant case, do not find any unreasonable lapse of time on part of petitioners or their negligence to assert the matter before Court, when neither the impugned notification was published in the official gazette nor it was personally served on the petitioners.
14. Learned counsel for respondents, while placing reliance on the cases of Pakistan through Secretary, Ministry of Defence and others v. Late Ch. Muhammad Ahsan through Legal Heirs and others (1991 SCM R 2180), Muhammad Siddique v. The Market Committee Tandlianwala (1983 SCM R 785), argued that the mere fact that publication of notification was delayed, it will not invalidate or otherwise make its operation retrospective from any date prior to the date when it was actually signed though not published in the official Gazette.
15. It is cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. Similarly, notifications which may affect the rights of the parties are treated to be prospective unless the in nature will have notification itself clearly indicates that it retrospective effect.
16. The word notification, according to section 2(41) of the West Pakistan General Clauses Act VI of 1956 shall mean a notification published under proper authority in the official Gazette. The August Supreme Court of Pakistan in the case of Muhammad Sideman and others v. Abdul Ghani (PLD 1978 Supreme Court 190) has held:--- "Section 8(2) referring to curtailment of right of pre-emption and curtailment requiring to be done by notification published in official Gazette, withdrawal of such curtailment, held, also to be done by publication in form of notification in official Gazette and to be effective from date of publication of Gazette and not from any prior date."
' Again similar view was taken by the apex Court in the case of Karachi Metropolitan Corporation, Karachi v. Messrs S.N.H. Industries (Pvt.) Limited, Karachi and 2 others (1997 SCM R 1228) in the following words:- "As the word "notification" has not been defined in the Ordinance, the definition given in the West Pakistan General Clauses Act shall be applied, which requires that any direction/order which is published under proper authority in the official Gazette is called a notification, Mere issuance of an order or direction will not amount to a Notification. Even if it is published in the newspapers, affixed on the Notice Board or is published in any other manner, it shall not amount to a Notification.
Notification published in an official Gazette is a public document and carries certain presumptions of its legality and authority and its enforcement as well. Such attributes cannot be attached to an order or direction which is issued, notified or published without publication in the official Gazette."
"According to section 2(41) of the General Clauses Act, 1956 a Notification means a Notification published under proper ' In the recent judgment reported in PLD 2011 Supreme Court 347, titled Government of Sindh through Secretary Agriculture and Livestock Department and others v. Messrs Khan Ginners (Private) Limited and 57 others, the august Supreme Court of Pakistan, while placing reliance' on the case of Muhammad Suleman (supra) has laid down that:--- authority in an official Gazette. In this view of the matter before its publication in the official Gazette the Notification relevant to the present appeals could not even be lawfully termed as a Notification."
17. In view of the above, we are of the view that by impugned notification, the vested rights of petitioners were taken away without its publication in the official Gazette, hence no retrospective effect can be given to it from the date when it was published in the official Gazette on 6-8-2011.
18. As stated above, the impugned notification, having lost its legal sanctity for the reasons stated above, all the acts done against petitioner particularly against petitioners Nos.1 to 3, fall to the ground, as under the notification dated 12-1-1989, respondent No,1 was not competent to act as a Chairman of the Board of Governors under the so-called Constitution of 2007. The entire superstructure built upon the same has no base to stand upon. It would be important to note that the said Notification was never acted upon and no meeting of any so-called Board of Governors of the School has ever been conducted. Annexure-E with the writ petition is a certified copy of the judgment authored by the then Hon'ble Chairman Labour Appellate Tribunal, Peshawar in Appeals Nos.63 to 69 of 2000, decided on 15-10-2001. The Board of Governors, Police Public School and others were respondents in those appeals. The learned Appellate Tribunal while deciding the appeals held that the Police Public School is certainly an educational Institution being run under the control of Provincial Government. Section 2(b), section 2(f) and proviso (1) to section 1 of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 read with section 2(ii)
(g) of the Payment of Wages Act, 1936, taken collectively go a long way to prove that the School in question is neither an Industrial nor Commercial Organization and hence the provisions of the Labour Laws are not at all attracted to the employees of the Police Public School who are admittedly permanent employee thereof. Had the impugned notification been in the field, the same would have been relied upon by the respondents in their defence.
19. The respondents have failed to follow the due process as required by law; hence the impugned notification has no binding force. If I a legislation, which is aimed to extend some monetary benefits to the public can be given retrospective effect, the same in the case of taking away vested rights cannot be given retrospective effect, therefore, we accept this writ petition and declare the impugned notification K dated 1-2-1996 as without lawful authority and ultra vires to the relevant provisions of the Constitution. The impugned departmental proceedings initiated against petitioners Nos.1 to 3 and the impugned orders dated 10-4-2010 whereby they were removed from service by respondent No,1 are also declared as illegal and without lawful authority. The respondents are directed to allow tie petitioners all those benefits which have been extended to the employees of the Provincial Government. No order as to costs.