' MIAN SAQIB NISAR, J.- -The above-noted appeals/ petition involving akin questions of law are being disposed of through this judgment. The facts Of the cases may slightly differ, therefore, as required, the distinction in this behalf shall - be provided.
2. Before proceeding with the matter further, it may be- mentioned that both the appeals with the leave of the Court, arise out of the common judgment dated 22.6.2009 passed by. The' Federal Service Tribunal (F.S.T.) whereby the service appeals of the appellants (pending before F.S.T.) which had earlier abated in view of the judgment of this Court in Mubeen-us-Salam case, were declined to be restored/ resurrected, by F.S.T, when the appellants applied in this regard after Muhammad Idrees judgment, primarily due to the lack of (F.S.T.) jurisdiction and the maintainability of the appeals, while holding that the service rules of the respondent- bank are non-statutory. Leave in the matter was granted by this Court on 31.12.2009, to consider whether the National Bank of Pakistan (Staff) Service Rules, 1973 (1973 Rules) are statutory and whether the National Bank of Pakistan (Staff) Service Rules, 1980 (1980 Rules) on the same subject, being admittedly non- statutory, shall replace/rescind the former: if they do not, then the 1973 Rules shall hold the field and accordingly would attract to the case of the appellant; resultantly, the Service Tribunal in the light of the judgment of this Court reported as Muhammad Idrees v. Agricultural Development Bank of Pakistan and others (PLD 2007 SC 681) shall have the jurisdiction in the matter. The other petition (C.P.L.A. No, 176-Q of 2009) also involves the same propositions.
3. In the context of the above, the facts of the two appeals are:--,the service appeals, filed by the appellant before the F.S.T, in terms of Section 2A (as it then was) of Service Tribunals Act, 1973 against the departmental orders of the respondent-bank, complaining his service rights having been adversely affected (violated), stood abated, on account of the judgment of this Court in Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others (PLD 2006 SC 602) dated 27.6.2006. However, when judgment in Muhammad Idrees case (supra) was pronounced onr 26.10.2007, the appellant in the light thereof and an another judgment of this Court passed in Civil Petition No, 552/2007 (National Bank of Pakistan v.
Abdul Qadir) moved applications before the F.S.T, for the resurrection of his abated appeals. Such applications (in both the cases) have been disallowed by the F.S.T, vide impugned order dated 22.6.2009, holding that when the charge-sheet was served upon the appellant he was governed by 1980 Rules which undoubtedly were/are non-statutory. Therefore, his case is not covered by Muhammad Idrees dictum (supra), rather it shall.Be hit by the verdict of Mubeen-us-Salam case.
Hence the noted appeals, with the leave of the Court as afore-stated.
4. The facts of noted civil petition are that the petitioner who was an employee of the respondent- bank, after having attained the age of superannuation, but being aggrieved of his non-promotion during the tenure of his service, moved to the F.S.T, for the redressal of his grievance, which appeal has been dismissed by the Tribunal without touching upon the merits of the case, rather on the basis of its own earlier judgment dated 22.6.2009, the one which is impugned in the two noted appeals. i>. Learned counsel for the appellant/petitioner has argued that the 1973 Rules are statutory in nature, which have been framed strictly in terms of the provisions of Section 32 (XXVIH) of National Bank of Pakistan Ordinance, 1949 (the Ordinance, 1949). These rules have never been repealed or replaced by any statutory instrument and, therefore, are the only rules which shall govern the employees of the respondent (National Bank of Pakistan (N.B.P.)). The 1980 Rules have not been framed either by virtue of or under the provisions of Ordinance, 1949, rather as per Section 11(4) etc. Of the Banks (Nationalization) Act, 1974 (the Act, 1974) by the Board of N.B.P, constituted under the Act 1974, which (rules) otherwise have not even been approved by the Federal Government, therefore, these rules, being non-statutory shall not invalidate or render ineffectual the former 1973 Rules which shall endure to hold the field. Consequently the appellant/petitioner shall continue to be governed by the 1973 rules and as the respondent is a statutory body/organization, having statutory rules of service, thus in the light of paragraph 14(c) of the judgment in Idrees case (supra), the appropriate forum is,F.S.T, which shall have the jurisdiction for the redressal of the grievance set out by the employees (to whom those rules are applicable) of the respondent-bank.
6. Kh. Muhammad Farooq, learned counsel for the respondents, however, on the other hand, in the first instance vehemently argued that even the 1973 Rules are non-statutory, as these have not been framed according to the provisions of Ordinance, 1949. But when the other counsel appearing for the respondent-bank in number of other matters fixed for hearing today, were queried by the Court in this context, they candidly conceded and admitted that such rules are statutory. In this behalf Mian Qamar:uz-Zaman, learned counsel for the Bank (in some other case) has referred to a case reported as National Bank of Pakistan v. Punjab Labour Appellate Tribunal and 2-others \ 1993 SCM R 105) to bolster that the said rules are statutory; he has also admitted that in a number of matters coming before this Court on different occasions, it has been the stance of the Bank itself, that 1973 Rules are statutory. Mr. Rasheed Qamar, learned counsel for the Bank in the noted petition has also not supported Kh. Muhammad Farooq on this proposition. Confronted with the above, Kh.
Muhammad Farooq, learned counsel for the respondents (in these appeals) has reviewed his position and. In unequivocal and unambiguous terms stated, rather conceded that the 1973 Rules are statutory in nature. However his plea, and that of the other counsel appearing for the respondent-bank is that, though undoubtedly and indisputably 1980 Rules are non-statutory, yet these have repealed and replaced the 1973 Rules, previously in vogue. Thus, as the former rules are non- statutory, the instant cases are not covered by para 14(c) of the judgment in Idrees case (supra). It is also submitted that in any case and without prejudice to the above, 1973 Rules may at best apply only to those employees who were inducted into the service of the bank prior to the enforcement of 1980 Rules, and all those (employees) inducted after 1980 Rules shall be governed by the later rules.
7. In support of their submissions, the learned counsel for the respondent-bank have placed reliance upon National Bank of Pakistan v. Punjab Labour Appellate Tribunal and 2 others (1993 SGMR 105). By further referring to an order of this Court dated 11.6.2009 passed in Civil Petition No, 1291 - L/2001 {Liaquat Ali Daultana v. The President, National Bank of Pakistan & others), it is submitted that while holding the noted petition as having been abated, this Court in categorical terms has observed "the National Bank of Pakistan having non-statutory rules for its. Employees, the instant petition stands abated", According to the learned counsel, it should, therefore, be inferred that this Court, has, by necessary implication concluded that 1973 Rules are not in force having been replaced by non-statutory rules of 1980. Kh. Muhammad Farooq in the context that 1980 Rules have replaced the earlier rules (1973 Rules) has* also, counted on Section 13(2) of the Act, 1974 which provides "Notwithstanding any law or any provision contained in a contract agreement, letter of appointment, rules or regulations of a bank, every officer and employee of a bank shall be liable to transfer to any of its branches in or outside Pakistan or to any other bank: Provided that his status and emoluments shall not be adversely affected", By emphasizing upon tne expression "Notwithstanding" in the section ibid it is argued that 1980 Rules have an overriding effect on the earlier rules (1973). Therefore, it is urged that in the noted circumstances neither the F.S.T, shall have the jurisdiction- nor the respondents can seek redressal of their service grievance by invoking the Constitutional jurisdiction of the High Court. The relationship of the bank and its employees inter se thus shall be governed by the principle of master and servant'and, therefore, the appellaht/petitioner could only avail the appropriate remedy before the Court of plenary civil jurisdiction, if so permissible under the law and where a case of actionable cause, relating to service grievance, against the bank is made out. It is further added that even if 1980 Rules are held not to have replaced the former (1973) rules, yet the appellant/petitioner cannot invoke the jurisdiction of the Service Tribunal, because they are not the civil servants in' accordance with Section 4 of the Service Tribunals Act, 1973 as Section 2A, which was partly declared to be ultra vires to the Constitution in Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others (PLD 2006 SC 602), has now also been wholly omitted by the Parliament vide Act II of 2010 dated 6.3.2010 and thereafter even the benefit of para 14(c) ofldrees case (supra) is not available to the appellant/petitioner.
8. Heard. As there remains no discord and dissension between the parties that 1973 Rules are statutory, therefore, the key propositions left outstanding and requiring the resolution are: (1) whether 1980 Rules, though non-statutory yet, have displaced/replaced the 1973 Rules as has been held in the judgment of this Court in National Bank of Pakistan v. Punjab Labour Appellate Tribunal and 2 others (1993 SCM R 105) and independent of the above dictum, as so argued by the respondents' learned counsel; (2) if not so, whether the application of 1973 Rules shall be restricted to the employees inducted in the service of the respondent-bank prior to the enforcement of 1980 Rules, and whether all those who were taken into service after 1980 Rules, shall be governed by the later rules; and (3) if 1973 Rules are held to be applicable to all the employees of the respondent- bank and as the bank is a statutory body; therefore, whether after the Idrees case (supra) and moreso, after the omission of Section 2A from the statute book vide amending Act II of 2010, dated 6.3.2010, the noted matters should go back to the Service Tribunal or the appellant/petitioner should avail his remedy before the High Court in its Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. In' the context of last stated proposition, it may be pertinent to mention, that it is not only the legal position, but has also been conceded by the counsel for both the sides that, if the rules, of a statutory establishment/body are statutory in nature, the employees (who are covered by the rules) of such organization may invoke the Constitutional jurisdiction of the High Court for the redressal of their service grievance.
9. Be that as it may, dilating upon the first proposition set out above, suffice it to say that according to the provisions of Section 20 of the Act, 1974 the rule-making power is conferred upon the Federal Government in the terms as under:- "Power to make Rules. The Federal Government may, by notification in the official Gazette, make Rules to provide for all matters for which provision is necessary or expedient for the purpose of giving effect to the provisions of this Act."
It is an admitted position that 1980 Rules have not been framed as per the mandate of law ibid, inasmuch as these rules are neither made by the Federal Government nor published in the official Gazette. There is also no cavil/quibble that the said rules have not been composed/enforced with the prior approval of the Government or any subsequent benediction was conferred to those by the Government. Rather (admittedly) the rules have been formulated by the Board of the respondent- bank constituted under Section 11s of the Act, 1974 which stipulate the general power of the Board pertaining to policy making and the administration and management of the nationalized banks. Sub-section. (4) thereof specifically provides "The general direction and superintendence of the affairs and business of a bank, and overall policy making in respect of its operations, shall vest in its Board". Furthermore, as per sub-section (5) of the Act, 1974 the Board shall determine "personal policies of the bank, including appointment and removal of officers and employees" and in accordance with sub-section (10) "All selections, promotion and transfer of employees of banks except the President and decisions as to their remuneration and benefits shall be made by the President in accordance with the evaluation criteria and personnel polices determined by the Board". From the above it is unequivocally clear that the 1980 Rules have been framed by the Board of the bank pursuant to its authority in the nature of management/superintendence of the affairs of the bank and/or the policy making power; however for all intents and purposes it is so done in the exercise of an executive authority under the statute, but having even no remote or possible or permissible connection and nexus to any statutory jurisdiction,v these rules thus can at best be termed, understood, comprehended/and construed merely as the guidelines or the domestic instructions of the N.B.P., for the purposes of highlighting, elucidating or beneficially revamping the service structure of bank's employees for their advantage, provided the same do not in any manner contravene the 1973 Rules, but nothing more than that can be imputed to those; and in any case the rules do not enjoy the status of a statutory instrument. And this is not disputed by the parties, therefore, the legal question which eminently calls for the resolution, is that whether non-statutory rules (though we have herein construed these as mere instruction etc.) have, and/or can repeal, rescind or displace the statutory rules of 1973? To plead so, it has been inter alia submitted on the bank's behalf that on account of Section 13(2) of the Act, 1974 particularly the expression Notwithstanding" which' shall operate as a non-obstante provision/ clause, even though 1980 Rules are non-statutory, yet as per the force of the law afore- stated, these (1980 Rules) have the overriding effect qua the 1973 Rules. In order to appreciate the above contention, it shall be germane to reproduce the whole Section 13 which reads as follows:- "13. Provisions regarding staff.-(1)' Save as otherwise provided in this Act, all officers and other employees of a bank shall continue jn their respective offices and employment on the same terms and conditions, remuneration and rights as to pension and gratuity , as were applicable to them immediately before the commencing day.
(2) Notwithstanding any law or any provision contained in a contract agreement, letter of appointment, rules or regulations of a bank, every . Officer and employee of a bank shall be liable to transfer to any of its branches in or outside Pakistan or to any other bank: Provided that his status and emoluments shall not be adversely affected." ' thereof "on the same terms and conditions" etc. Which were applicable to them immediately before the commencement of the Act, 1974. It is an admitted and undisputed factual reality that before the commencing day of 1974 Act, 1973 Rules were validly in force and for all intents and purposes were serving as the conclusive terms and conditions of service of the employment for the N.B.P, officers etc.'Thus, by virtue of the Section 13(1), such rules were specifically saved, guarded and shielded instead of having been displaced/repealed/rescinded of overridden. The language of the Section 13(1) without any shadow of doubt, spells out the clear intendment of the legislature to preserve the earlier terms and conditions of the nationalized bank, which in the present case undoubtedly were 1973 Rules, rather than being obliterated. The argument of the learned counsel for the respondent that the expression "notwithstanding" appearing in Section 13(2) should be construed as a non-obstante provision/clause to annul and cancel 1973 Rules 'as a whole' and thus be replaced by 1980 Rules is doubtlessly misconceived and unfounded. The protection and security provided under Section 13(1) which in fact is absolute and unambiguous in nature cannot be negated U and vitiated by Section 13(2) on account of the expression "notwithstanding" which is an expression only relatable to that specific part and purpose of the section (i,e, 13(2)). In my candid view it can neither be legally done, or permissible under the law nor it is the purport or the meaning and the spirit of Section 13(2) when it is read in the syntax of its full text. In simplest terms, the tenor and the command of this subsection is limited and restricted qua the transfer of the officers/ employees of a nationalized bank, inter se the branches of the same bank, and/ or a room has been provided for such transfer to any other nationalized bank. Obviously this being the legislative command and if there was anything to the contrary contained in any other law for thfe time being in force i,e, any law in force at the time of enforcement of 1974 Act, including the 1973 Rules to this restricted extent, the provisions of subsection (2) of Section 13 shall prevail and anything inconsistent thereto even in the said (1973) Rules or contract/ agreement etc. Shall be subservient to this provision and has to give way. But this shall be without in any manner affecting any other earlier terms and conditions of service, which stand fully secured under Section 13(1). I may like to add here with emphasis that the Board of N.B.P, constituted under Section 11 of the Act, 1974, at the most was conferred with the power of managing the affairs of the bank in terms of the policies etc. j to be formulated by it on the subjects enumerated in the section, but by no express command of law (Section 11) was empowered to make service rules, which can be termed as statutory in nature, with the further authority to annul the statutory rules already in force. In any case, the Board in the garb of its general empowerment of policy making, superintendence and managing the affairs and, business of the bank, by no stretch of legal comprehension and principle of interpretation could, rescind, replace, substitute and/or vitiate the 1973 Rules. This undoubtedly could not be done by a non- statutory instrument, which has come into being through simipliciter account of the exercise of executive authority of the^ Board; and it is a fundamental rule of jurisprudence that the executive has no, empowerment to annul Or in any manner invalidate or vitiate the command of the statute. Therefore, I am constrained to hold that 1980 Rules have not replaced or rescinded the earlier Rules of 1973;
10. As far as the dictum of this Court in National Bank Of Pakistan and another v. Punjab Labour Appellate Tribunal and 2 others (1993 SCM R 105) is concerned, the learned Division Bench of this Court in fact was not dealing with the specific question involved in these matters, i,e, whether 1973 Rules have been superseded and displaced-by 1980 Rules; this was never a moot point in that matter, rather in the aforesaid judgment this Court on peculiar facts of the case was considering the issue of forum available to the employees (workmen) of the N.B.P, for the redressal of their service grievance in terms of Section 25-A of the Industrial Relations Ordinance, 1969 (the Ordinance, 1969), however, while holding that 1980 Rules are non-statutory and 1973 are statutory, this Court passingly without assigning any reasons in a solitary isolated manner remarked that the former rules (1980 Rules) displaced the 1973 Rules. The relevant portion of the judgment reads:- "In 1980 the appellant bank framed fresh rules called the National Bank of Pakistan (Staff) Service Rules, 1980. These thus displaced the 1973 Service Rules. The 1980 Service Rules are, obviously non- statutory, for the Central Government's approval was never obtained". From the above it is clear that there absolutely is no discussion or reasoning forthcoming in the said judgment nor this was strictly an issue in that matter, that if the 1980 Rules admittedly being non-statutory have repealed, rescinded or replaced the 1973 Rules. Thus- with utmost respect and deference to the learned Judges pronouncing the judgment supra, I am of the considered view that the observation so made was/is only an orbiter dictum, meaning thereby it is a solitary isolated and passing observation by the Court on a matter not directly or even indirectly in issue before it, which (observation) is not founded upon any settled principles of law or is structured on any precedents of the superior Court in this behalf (Rita Mishra v. Director of Primary Education Bihar 1986 PLJR 1090 (Patna)). Thus the said verdict shall not bind a larger Bench of this Court to hold otherwise.
11. Insofar'as the effect of the order dated 11.6.2009 passed in Civil Petition No, 1291-L of 2001 (supra) is concerned, suffice it to say that it is a leave refusing order and according to law, an order granting and/or refusing leave which does not lay down a rule of law should not be followed necessarily and imperatively {Khairullah v. Sultan Muhammad and another 1997 SCM R 906), as per the standardized or settled principles, meant for the purposes of following the precedents; however such orders may be shown obeisance on the basis of propriety provided those (orders) are strictly in line with the dear mandate and true spirit of law and does not impinge the rules of justice.
Moreover, for the purpose that a judgment of the apex Court should have due effect and due deference, three conditions as per Khan Gul Khan and others v. Daraz Khan (2010 SCM R 539) should be met (a) judgment decides a question of law; (b) it is passed upon the basis of law; and
(c) it enunciate the principle of law. The order passed in Civil Petition No 1291-L of 2001 referred to above, by simply mentioning thb Mubeen-us-Salam case has rendered the said petition as abated'; obviously, it does not qualify the afore-stated t6st, therefore, it is of no help to the case of the respondent. .
12. On account of my opinion on proposition No, 1, there does not seem much difficulty in providing an answer to proposition No, 2: and it is candidly held that whosoever was inducted into the service of N.B.P, ipso jure was governed by the statutory rules of 1973, irrespective of the timing of his induction, as the said rules have been considered and construed herein by me to be the rules envisaging the terms and conditions of service of N.B.P, employees throughout in force, because these were not repealed, replaced or annulled as held earlier. Therefore, if shall be ludicrous and discriminatory to hold that the employees with same and equal status who were taken into service of N.B.P, prior to 1980 Rules should enjoy the benefit of statutory rules and tho'se joining the service after 1980, should be deprived from the protection and security of such (rules) and be governed by non-statutory rules, which has already been declared by me as mere domestic instructions and guidelines. Learned counsel for the respondents have not been able to provide any reasonable ^ justification for giving them an unequal and discriminatory treatment. Therefore, the argument of the learned counsel for the respondents in this context has no force, which is hereby repelled; and the proposition is accordingly answered.; 13, Regarding the third question i.e, the effect of Mubeen-us-Salam and Idrees cases (supra), and especially the impact of the later dicta vis-a-vis the present appeals/ petition, I find expedient to briefly touch upon the relevant legal sequence having nexus to the two verdicts mentioned above.
Service Tribunals Act, 1973 was promulgated to cater the mandate of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 which .Reads as under:- "212. Administrative Courts and Tribunals.-
(1) . Notwithstanding anything hereinbefore contained, the appropriate Legislature may by Act provide for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of:- - .
(a) matters relating to the terms and conditions of persons [who are or have been] in the service of Pakistan, including disciplinary matters; '(b) ......................
(3) An appeal to the Supreme Court from a judgment, decree, order or sentence of an Administrative Court or Tribunal shall lie only if the Supreme Court, being satisfied that the case involves a substantial question of law. Of public importance, grants leave to appeal."
Pursuant to meet the above Constitutional mandate, two enactments were promulgated by the Parliament, the Service Tribunals Act, 1973 (S.T.A., 1973) and Civil Servants Act, 1973 (C.S. Act, 1973).
According to Section 4 of the former Act "Any civil* servant aggrieved by any order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him, [or within six months of the establishment of the appropriate Tribunal whichever is later, prefer an appeal to the Tribunal". Civil servant has been originally defined in Section 2(a) of the S.T.A., 1973 to mean "civil servant means a person who is, or has been a civil servant within the meaning of the Civil Servants fact, 1973". As the meaning of civil servant incorporated in S.T.A., 1973 falls within the domain of legislation by reference, thus it shall be expedient to see as to what is the definition of the expression/word in C.S. Act, 1973. Section 2(1 )(b) of C.S. Act, 1973 postulates "civil servant" means a person who is a member of an All-Pakistan Service or of a civil service of the Federation, or who holds a civil post in connection with the affairs of the Federation, including any such post connected with defence, but does not include:- (i) A person who is on. Deputation to the Federation from any Province or other authority; (ii) A person who is employed on contract, or on work-charged basis or who is paid from contingencies; or (iii) a person who is a "worker " or "workman" as defined in the Factories Act, 1934 (XXV of 1934), or the Workman's Compensation Act, 1923- (VIH of 1923]". On 10th June, 1997 an amendment was introduced in noted Section 2(a) of the S.T.A., 1973 and following was added "[and shall include a person declared to be a civil servant under section 2A; and]"*. Section 2A was thus inserted in the C.S. Act, 1973 to read as under:- "2A. Service under certain corporation, etc. To be service of Pakistan.- Service under any authority, corporation, body or organization established by or under a Federal law or which is owned or controlled by the Federal Government or in which the Federal Government has a controlling share on , interest is hereby declared to be service of Pakistan and every person holding a post under such authority, corporation, body or organization shall be deemed to be a civil servant for the purposes of this Act."
14. In view of the above change in law, the employees/ officers of the authority, corporation, bodies or organization etc. Envisaged by Section 2A being aggrieved of the violation of their service rights thus acquired the right of appeal to approach the F.S.T, for the redressal of their grievance.
However, the constitutionality and validity of Section 2A ibid came in question in a large number of cases before this Court, and the vires thereof were adjudged and decided in Mubeen- us-Salam case supra, the relevant part whereof reads as below:- "108. The threadbare discussion on the subject persuades us to hold:-
(1) Section 2-A of the STA, 1973 is, partially, ultra vires of Articles 240 and 260 of the Constitution, to the extent of the category of employees, whose terms and conditions of service have not been determined by the Federal Legislature and by a deeming clause they cannot be treated civil servants as defined under section 2(1 )(b) of the CSA, 1973 and they are not engaged in the affairs of the Federation.
(2) Section 2-A of the STA,- 1973 cannot be enforced in the absence of amendment in the definition of the civil servant under section 2(l)(b) of (he CSA, 1973.-
(3) The cases of the employees under section 2-A, STA, 1973, who do not fall within the definition of civil servant as defined in section 2(1 )(b) of the CSA, shall have no remedy before the Service Tribunal, functioning under ' Article 212 of the Constitution and they would be free to avail appropriate remedy.
109. Now the question is as to what would be the effect of this judgment on the cases pending before this Court and Federal Service Tribunal. In this behalf it may be noted that following the rule of past and closed transactions, laid down in the case of Mehram Ali v. Federation of Pakistan (PLt)
1998 SC 1445), it is directed as follows
(a) The cases which have been decided finally by this Court in exercise of jurisdiction under Article 212(3) of the Constitution shall not be opened and if any. Review Petition, Misc. Application or Contempt Application, filed against the judgment is pending* it shall be heard independently and shall not be affected by the ratio of this judgment.
(b) The proceedings instituted either by an employee or by the an employer, pending before this Court, against the judgment of the Service Tribunal, not covered by category (a) before this Court or the Service Tribunal shall stand abated, leaving the parties to avail remedy prevailing prior to promulgation of section 2-A of the STA, 1973.
(c) The cases or proceedings which are not protected or covered by this judgment shall be deemed to have abated and the aggrieved person may approach the competent forums for redressal of their grievances within a period of 90 days and the bar of limitation"* provided by the respective laws; shall not operate against them till the expiry of stipulated period.
(d) The cases in which the order of Service Tribunal has been implemented shall remain intact for a period of 90 days or till the filing of appropriate proceedings, whichever is earlier.
(e) The Service Tribunal shall decide pending cases under section 2-A of the STA, 1973 in view of the above observations. However, if any of the cases is covered by clause 'c' (ibid), a period of 90 days shall be allowed to aggrieved party to approach the competent forum*, for the redressal of its grievance."
' It seems that the Service. Tribunal(s) as also the affected litigants could not fully comprehend the law enunciated in aforesaid judgment, therefore, this Court in Muhammad Idrees case deemed expedient to explain Mubeen-us-Salam and another judgment of this Court in State Life Insurance Corporation of Pakistan through Chairman v. Raz Muhammad Shanwari and others (2007 SCM R 1400) and came to the following conclusion "14. This Court accordingly finds and directs as follows:-
(a) The cases noted at serial Nos. 89 to 1914 stand abated with the result that the proceedings and judgments rendered by the learned Federal Service Tribunal also stand nullified. The affected/aggrieved parties are allowed a further period of 90 days to have recourse to the available remedies.
(b) The judgments of the learned Federal Service Tribunal rendered on the basis of Section 2-A of the Service Tribunals Act, 1973 which were never challenged before this Court have attained finality and shall be implemented by the concerned organizations without dragging the employees into further litigation.
(c) The cases in which the services of the employees were governed by statutory rules are not hit by Mubeen-us-Salam's case.
' From the clear mandate of para 14(c) quoted above, it is undoubtedly evident that all those appeals initiated by the employees, of the corporations, organizations or establishments mentioned in Section 2A (which was declared ultra vires) which were at least pending before the respective Service Tribunal(s) at the time of the pronouncement of judgment in Mubeen-us-Salam case and were rendered abated in view thereof, after the verdict in Idrees's case, the appellants (of those pending appeals) were held eligible to pursue their said remedy, provided such employees were governed by the statutory rules, of service. As the appellant/ petitioner were also amongst the category of the affectees of Mubeen's case, therefore, they after the later (Idrees) dictum applied for the resurrection of their appeals, avowing that N.B.P, is the statutory organization and they are governed by statutory Rules of 1973, but this relief was declined to them by the F.S.T., patently on a wrong assumption that the appellant/ petitioner are governed by non-statutory Rules of 1980. The impugned order on account of this glaring mistake cannot sustain, because the appeal(s) per the mandate of para 14(c) of Idrees decision should have been resurrected and decided by the F.S.T, on merits, resultantly, by setting aside the impugned order's the matter should be remanded to the Tribunal, Be that as it may, during the pendency of these cases there has been some further (relevant) development in the. Matter to which our attention has been drawn by the counsel for the respondents i,e, by virtue of Act No, II dated* 6.3.2010 Section 2A, which earlier was partly declared by this Court as invalid/w/rra vires was omitted by the legislature. Therefore it has been argued by the respondent side that, now in view of the aforesaid omission the F.S.T, is totally denuded of its jurisdiction to entertain, adjudicate and deal with any case, which earlier could be adjudged by it as per the force of Section 2A and Idrees ease supra. In order to avoid and wriggle out of the effect of repeal of law in terms of Section 6 of the General Clauses Act, 1897 (G.C. Act), on a right of appeal, which was available to a litigant at the commencement of the lis especially during the pendency thereof, as the appellant's/petitioner's appeals were pending before the F.S.T, at the time of Mubeen's case, the learned counsel for the respondents has drawn a distinction between 'repeal- and 'omission' and in this behalf has relied upon M/s. General Finance Co. And another v, Assistant Commissioner of Income-tax, Punjab (AIR 2002 SC 3126) and Abdul Malik v. Muhammad Iqbal and another (1994 CLC 788) to argue that the concept and legal consequences of ".Repeal of law" and "omission" of a particular provision or a part of statute are two distinct phenomenon, entailing different legal effects. When queried, Kh. Muhammad, Farooq in this behalf has conceded that if a law is repealed, and a right of appeal, was available thereunder, at the time of initiation of lis, such right shall survive and the aggrieved person shall be entitled to exercise that right notwithstanding the repeal of the law, provided the right has been expressly and/or be necessary implication taken away by the repealing Act. But it is argued where the provision conferring a right of appeal, is omitted from the statute book, as in this case, the right (of appeal) shall be extinguished in view of the two decisions cited by the learned counsel. In order to appreciate the plea, it seems expedient to briefly analyze the two cases cited by the learned counsel. In the Indian case, a person who was being prosecuted under certain penal provisions of the Indian tax is, which during the pendency of the. Proceedings was omitted by the amending enactment, moved for the quashment of the action pending against him before the High Court but failed, his further challenge to that in the Supreme Court succeeded, while holding as under :~ "9. Net result of this discussion is that the view taken by the High Court is not consistent with what has been stated by this Court in the two decisions aforesaid and the principle underlying Section 6 of the General Clauses Act as paving the right to initiate proceedings for liabilities incurred during tire currency of the Act will not apply to omission of a provision in an Act but only to repeal, omission being different from repeal as held in the aforesa' 1 decisions. In the Income Tax Act, Section 276-DD stood omitted from the Act but not repealed and hence a prosecution could not have been launched or continued by invoking Section 6 of the General Clauses Act after its omission. "
' In my view the ratio of this decision is conceptually wrong and as shall be dilated on the point in the succeeding part of this judgment, there is no distinction between repeal .And omission, rather these are the expressions used by the legislature to achieve the same object. Anyhow in the other case from Lahore High Court, during the pendency of civil revision before the District Judge, the revisional jurisdiction of the said Court was withdrawn (but the High Court provisional power was kept intact), the District Judge being divested of such jurisdiction dismissed the revision, the matter in this context-when came before the High Court it was held:- "6. The effect of omission of sub-sections (2), (3) and (4) from section 115, C.P.C, is that District Court stands denuded of the powers of revision and as such .It cannot proceed to decide the revision , petitions pending before it. The order which legally thus can be passed, in the pending revision petitions is to return the same for presentation before this Court. The curtailment of one forum as such though would cause inconvenience to the petitioners and some additional expenses as well, but in the ultimate analysis such petitioners would be able to avail of another opportunity to approach the Supreme Court which remedy was not available in case of disposal of the revision petitions by the District Court. The order dated 16.11.1993 dismissing the revision petition thus could' not legally be passed as with the taking away of the power on account of omission of sub-sections (2), (3) and (4) from section 115, C.P.C., the revision could not be proceeded with. In any case, the petitioner has approached this Court by presenting the present revision petition which was entertained and the learned counsel was heard on merits."
' There is no much discussion on-the concept of 'repeal' and 'omission' in this verdict, father from the close examination it transpires that the premise of the decision is that, withdrawing the power of revision is a procedural matter, which has retrospective effect and no one has a vested right qua the change of forum or the change of procedure. This in my view does not sufficiently meet the proposition propounded by the learned counsel for the respondent-bank.
16. Be that as it may, while examining the proposition on its own merits, I shall refer to the provisions of Sections 6 and 6-A of the General Clauses Act, 1897 (G.C. Act) which are reproduced as below :~ "6. Effect of repeal.-Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not:-
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any -enactment so repealed or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurrent under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability penalty, forfeiture or punishment as aforesaid;- ' ' and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed, 6-A. Repeal of Act making textual amendment in Act or Regulation.- Where any Central Act or Regulation made after the commencement of this Act repeals any enactment by which the text of any Central Act or Regulation was amended by the express omission, insertion or Substitution of any matter, then, unless a different intention appears, the repeal- shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal."
Before further proceeding with the matter it may be mentioned that according to the settled law a change in the substantive law which divests and adversely affect the vested rights of the parties shall always have prospective application, unless by express word of the legislation and/or by necessary intendment/implication such law has been made applicable retrospectively. In other words the vested and. Substantive rights of the parties are and should be decided according to the law which was prevalent when the action was initiated and the door of the Court was knocked; and/or the machinery (of the Court) was set in motion. There can be no two opinions that the right of appeal available to a litigant under the law at the time of commencement of the tis is a substantive and a vested right, which cannot be stultified by giving a retrospective effect to a repealing law, to obliterate such right,, when otherwise the repealing statute does not ordain its retroactive application or take away such right, expressly or by necessary implication; this is not the position in the present case as Section 2A has been simply omitted. If a precedent of this Court is required in this behalf,, reference can be made to Manzoor Ali and 39 others v. United Bank Limited through President (2005 SCM R 1785).
17. Setting down the above criteria it shall now be examined if there is any distinction between' "repeal" and "omission" what does repeal mean and pater for, and what is the legal connotation of omission and its purpose. Repeal has been defined by Black's Law Dictionary Ninth Edition to mean rescind, abrogation of an existing law by legislative act; according to the Words and Phrases Permanent Edition "The word "repeal" means to abolish, to abrogate, to annul, to call back, to cancel, to dismiss, to give up, to recall, to rescind or abrogate by authority, or by the same power that made or enacted, to retract, to reverse, to revoke. It means the abrogation or annulling of a previously existing law by the enactment of a subsequent statute. "
' Likewise, omit/omission has been defined in Black's Law Dictionary "leaving something out, something that is left out, left undone or otherwise neglected'/. In MS Dictionary it means "leave out or exclude".
' From the above it is clear that the concept and meaning of Repeal has a wider compass and amplitude and it embodies in it, the idea/traits of omission, which in fact is an exclusion, a substraction. 'To call back', to dismiss, to give up, to retract to reverse a particular part or portion of the .Statutes. When a q statute as a whole is abrogated and annulled it is called "repeal" but when the legislation in order to do away with a particular provision or part of a statute it uses the expression, omit/omitted, delete/deleted etc. As is stipulated by Section 6A of G.C. Act, which manifests all the features and characteristics of repeal for all intents and purposes, and legal consensus and effect to attract the mischief and purview of Section 6 of G.C. Act. In the book titled Principles of ^ Statutory Interpretation by Justice G.P. Singh 7th Edition page 470 it has been scribed/opined "The use of any particular form of words is not necessary to bring about an express repeal. The usual form is to use the words 'is or are hereby repealed' and to mention the Act sought to be repealed in the repealing section or to catalogue them in a Schedule. The use of words 'shall cease to have effect ', is also not uncommon. When the object, is to repeal only a portion of an Act words 'shall be omitted' are normally used (eiiiphasis supplied). "
' In support of the above, a judgment of this Court reported as Dad Muhammad and another v.
Additional District Judge-I, Quetta and others (1996 SGMR 1688) can be relied upon, which while considering the effect, of omission of certain parts of Section 115, CPC, denuding the District Judge from its revisional jurisdiction came to the conclusion:- "9. The learned counsel contended that amendment by omission does not amount to repeal and that it wait Operate retrospectively as it relates to procedure and consequently the District Judge had no jurisdiction to decide the revision application. The High Court by the impugned judgment has taken a contrary view, which is correct. The learned counsel has referred to the meaning of the word "omission" which, according to the Black's Law Dictionary, means erase remove strike off According to the Concise Oxford Dictionary, the word 'omission' means; "leave out, not to insert", and Webster's Dictionary also gives the same meaning and also 'pass over'. The question is whether omission means "repeal" or not. The word "omission" when used in a statute for the purpose of amending an existing law means that part of the statute which has been deleted has been erased and removed from the statute book as if it had never existed before. The amending statute usually use the ' word "omission" for textual amendment. The word "repeal" also conveys meaning of obliteration of one statute by another statute from the statute book as if it had never been passed. In my view the word "repeal" or "omission" used in a statute for amending the entire or part of the statute carry the same effect. The omission of any part of a statute by an amending statute will amount to repeal of that part which has been deleted and omitted. In such a situation section 6 of the General Clauses Act will be applicable and, therefore, the pending proceeding at the time of such amendment will be decided by the Court where the proceeding was pending."
' In another case reported as Dr. Mukhtar Hamid Shah and others v. Govemment of the Punjab and others (PLD 2002 SC 757) this Court while considering another expression "delete", which is used by the legislature to do away a part/ portion of a statute, in the context of repeal and its effect under Section 6 of G.C. Act held:-- "The dictionary meaning of terms 'repeal5 and 'delete' are almost identical and in general sense these terms are synonymous. Repeal in its wider scope includes amendment and deletion.
' Unnecessary Acts or their provisions are struck down by repealing and amending Acts in accordance with the social conditions prevailing in society. A 'repeal' or 'deletion' cannot, as a rule, have retrospective effect to undo the consequences already ensued, unless the Legislature specifically so directs. Section 6 of General Clauses Act is an exception and provides protection to the action already taken under the old Act."
18. In view o/ the above, I am of the considered opinion that the expression omit/omitted is not only a kind of repeal, rather it is a repeal in fact, and this (expression) is used normally and ordinarily (by the legislature) where a part/ portion of the statute is to be rescinded, abrogated, abolished, annulled etc., however where the entire statute has to be annulled the word/expression Repeal is adhered to. These are synonymous terms in the concept of interpretation of law.
19. Therefore, I am of the opinion that the right of appeal possessed by the appellant/petitioner could not be taken away, from them on account of the omission of Section 2A, rather it remained intact in the light of Section 6 of the G.C. Act and as per paragraph No, 14(c) of the Idrees case.
Resultantly, these appeals, and converting the noted petition into appeal are allowed, die impugned decisions of the F.S.T, are set aside, the appeals of the appellants shall be deemed pending before the Tribunal (F.S.T.) which should be decided on merits. /Service Tribunal/Reversed.