ANWAR ZAHEER JAMMU, J. --- In these three Civil Appeals leave was granted by the Court, vide common order dated 7.2.2007, which reads as under:- "The petitioner No. 1 was appointed as Chairman of the Federal Public Service Commission on 30.3.2003, by the President of Islamic Republic of Pakistan, in his discretion, for a period of five years under Article 242(1A) of Constitution of Islamic Republic of Pakistan. The petitioners No. 2, 3, 4 and 5 were appointed as Members of the Commission for a term of five years on 1.11.2001, 31.1.2002, 6.5.2002 and 2.12.2002 respectively under Section 4 of the Federal Public Service Commission Ordinance No. XLV of 1977. Before the expiry of term of their respective offices, the Federal Public Service Commission (Amendment) Ordinance No. XV of 2005 was promulgated on 27th August, 2005, whereby Section 4 of the Ordinance was amended as follows:--- "Amendment of Section 4, Ordinance XLV of 1977.-- In the Federal Public Service Commission Ordinance, 1977 (XLV of 1977), in Section 4, for sub-section (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 tern's. And. Conditions of the service, a member who, on or after the commencement - of the Federal Public Service Commission (Amendment) Ordinance, 2005 (XV of 2005), completes his tenure or attains upper age-limit specified in sub-section (1) shall on such commencement of forthwith cease to . Be member as defined in clause (b) of Section 2."
2. The petitioners filed writ petition No. 2379/2005 against the amending Ordinance No. XLV of 1977.
A learned Single Judge of the Lahore High Court, Rawalpindi Bench, vide impugned order dated 20.12.2005 (15.12.2005) decided some of the points involved therein, framed as many as four questions of law and referred the case to the learned Chief Justice of the High Court for constituting a larger Bench. The petitioners filed Civil Petition No. 105 of 2006 against the order dated 20.12.2005 of the High Court, for grant of leave to appeal.
3. On 22.12.2005, the amending Ordinance was re-promulgated as the Federal Public Service Commission (Second Amendment) Ordinance No. XXV of 2005, on 22.12.2005. Therefore, the petitioners filed another writ petition No. 68/2006. Both the writ petitions were dismissed by the consolidated impugned judgment dated 6.3.2006, passed by a learned Division Bench of the Lahore High Court, Rawalpindi Bench giving rise to the filing of Civil Petitions No. 302 and 303 of 2006 for grant of leave to appeal, under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973.
4. The learned Counsel for the petitioners made the following submissions, inter-alia:---
(I) The appointment of the petitioner No. 1 to the office of Chairman of the Commission for a period of five years was made by the President under Article 242(1A) of the Constitution of Islamic Republic of Pakistan in order to ensure the impartiality and independence of the Commission and to strengthen it. Therefore, the holder of Constitutional office could not be removed injustifiably by a sub- Constitutional legislation or by an executive fiat.
(ii) The re-promulgation of Ordinance, in the absence of laying the first amending Ordinance before the Parliament, was unconstitutional and violative of the provisions of Article 69 Constitution which eroded the supremacy of the Parliament. Reference was made to the cases of The Collector of Customs, Karachi and others v. Messrs New Electronics (Pvt.) Limited and 59 others (PLD 1994 SC 363), Dr. D.C. Wadhwa and others v. State of Bihar and others (AIR 1987 SC 579) and Begum Zeb- un-Nisa Hamidullah, Editor and Publisher of "The Mirror", Karachi v. Pakistan through the Secretary, Ministry of Interior, Government of Pakistan (PLD 1958 SC 35).
(i.e) The vested right of completing the tenure of office by the sitting Chairman and Members could not be taken away retrospectively by the promulgation of the Ordinance which undermined the independence and impartiality of the Commission constituted under Article 242 of the Constitution.
The provisions of both the Ordinances No. XV and XXVI of 2005 thereby removing the petitioners from their offices were violative of Articles 14 and 209 of the Constitution.
(iv) Being temporary statutes, on their expiry, the Ordinances of 2005 should be deemed as having never been promulgated. Reference was made to the cases of Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, NWFP and another (PLD 1995 SC 66) and Government of Punjab through Secretary, Home Department v. Zia Ullah Khan and 2 others (1992 SCM R 602).
(v) The doctrines of legitimate expectation and promissory estoppel were blatantly disregarded by the Government in curtailing the guaranteed tenure of office of the petitioners. The matter of protection of five years term of office of the petitioners was a past and closed transaction."
5. On the other hand, the learned Deputy Attorney General for Pakistan argued that the petitioners had not impleaded their successorsin-office who had, in the meantime, been appointed.
6. Leave to appeal is granted to the petitioners to consider their above and the other submissions."
2. In 1st appeal No. 826 of 2007, arising out of C.P.L.A. No. 105 of 2006, the appellants have challenged the order dated 15.12.2005 passed by a learned Judge in Chambers of Lahore High Court, Rawalpindi Bench, in W.P. No. 2379 of 2005, whereby through a detailed order, names of respondents No. 4 & 5 were ordered to be deleted from the array of respondents and four questions of law were formulated with a request to the Honourable Chief Justice, Lahore High Court, Lahore for constitution of a Larger Bench, which request was, however, not acceded to by the Chief Justice, Lahore High Court.
3. In 2nd Civil Appeal No. 827 of 2007, arising out of C.P.L.A. No. 302 of 2006, the appellants have challenged the judgment dated 6.3.2006, passed by a learned Division Bench of Lahore High Court, Rawalpindi Bench, in W.P. No. 68 of 2006, whereby the said writ petition alongwith W.P. No. 2379 of 2005 was dismissed.
4. In 3rd Civil Appeal No. 828 of 2007, arising out of C.P.L.A. No. 303 of 2006 same appellants have challenged the common judgment dated 6.3.2006, passed by a learned Division Bench of Lahore High Court, Rawalpindi Bench in connected Writ Petition No. 2379 of 2005.
5. Briefly stated, the common facts leading to this litigation are that on 2.9.2005 and 17.1.2006 the appellants, who are five in number, filed writ petitions No. 2379 of 2005 and 68 of 2006 respectively before the Lahore High Court, Rawalpindi Bench, against the Federation of Pakistan and four others, in order to challenge the vires of Federal Public Service Commission (Amendment) Ordinance, 2005 (Ordinance XV of 2005), issued by the President of Islamic Republic of Pakistan on 27.8.2005, and the re-promulgated Ordinance XXV of 2005, dated 22.12.2005 to the same effect, whereby their original term of office for five years from the date they enter their respective office, under Section 4 of. Federal Public Service Commission Ordinance, 1977 (XLV of 1977) was curtailed/reduced to three years. In this context, inter alia, case of the appellants was that it was a mala fide action on the part of the then Prime Minister and the President of Pakistan to oust them from their office prematurely with some ulterior motive. In this background of their case, relief sought in the two petitions was that the Ordinance No. XV of 2005 etc. And their consequent removal thereunder was manifestly void, unconstitutional, based on mala fide and ulterior motives, hence it be declared without lawful authority and of no legal effect.
6. These petitions were strongly resisted by the respondent/Federation of Pakistan. Precisely, it was averred that the amendment/modification in Section 4 of the Ordinance XLV of 1977 through the amending Ordinance XV of 2005 etc. Was strictly in conformity with law, therefore, no grievance could be agitated by the appellants to challenge such lawful legislation by the president in exercise of his powers conferred by clause (1) of Article 89 of the Constitution.
7. It will be pertinent to mention here that the Original Ordinance No. XV of 2005, dated 27.8.2005 was followed by three other Ordinances of similar nature being Ordinance XXV of 2005, dated 22.12.2005, Ordinance V of 2006, dated 21.4.2006, Ordinance XVIII of 2006, dated 3.8.2006 and finally by Act No. V of 2006, to the same effect was passed by the Parliament, which was gazetted on 4.10.2006. In substance, the language and spirit of all four lapsed Ordinances and the Act relating to requisite amendments in Section 4 of the Original Ordinance of 1977 was same, which was the cause of grievance for all the appellants.
8. Learned ASC for the appellants when confronted with the position on previous dates of hearing that in these appeals, having been filed before coming into force of Act V of 2006, the said Act V of 2006 has not been challenged qua subsequent developments, has submitted three miscellaneous applications C.M.As. No. 3334, 3335 & 3336 of 2013 for seeking necessary amendments in these appeals in order to also challenge the vires of the Act V of 2006, as, during the pendency of these appeals, it had replaced the earlier Ordinances regarding which the appellants have similar reservations.
9; In his submissions, at the outset, learned ASC for the appellants Mr. Nasir-ud-Din Khan Nayyar, gave brief resume of relevant facts of the case of each of the appellants regarding their service as Chairman and Members of the Federal Service Commission ("the Commission") respectively. He further made reference to Article 264 of the Constitution and Section 6 of the General Clauses Act, 1897, in support of his submissions that valuable rights to continue in the office as Chairman/Members of the Commission for a period of five years have accrued in favour of the appellants in terms of Section 4 of the Ordinance XLV of 1977, coupled with the Notifications of their respective appointment in same terms, which could not have been snatched, taken away or withdrawn by the President under the garb of issuing above-referred Ordinances, which is nothing but colourful and male fide exercise of his authority and against the spirit of Section 6 of Ordinance XLV of 1977, which provides the only mode through which Chairman or Members of the Commission, who have been appointed for a specified term of five years could be removed. He strongly contended that when a special 'mechanism for removal of Chairman and Members of Commission is provided under the Ordinance during the terms of their office with the object of providing them complete protection of service, no law can be amended or circumvented in the manner so as to make this provision of law redundant, and prejudicial to the interest of serving Chairman/Members of the Commission. Making reference to the language of the earlier Ordinances, referred to above, and the subsequent Act V of 2006, dated 4.10.2006, further submission of the learned ASC for the appellants was that such amendments under section 4 will have only prospective application on the new incumbents, who will, therefore, henceforth enjoy tenure of three years office, but in the present case this amendment cannot be pressed into service against the appellants with retrospective effect. Moreover, in the subsequently changed circumstances, when some of the appellants have passed away and others have pre-maturely retired before the expiry of their respective term of the office, the appellants/their legal heirs are now entitled to be adequately compensated by payment of their salaries and other allowances for the remaining unexpired period of five years, for which they were initially appointed. Learned ASC also made reference to Articles 184(3) and 187 of the Constitution in support of his arguments that this Court being apex Court has ample powers to mold and grant requisite relief to the aggrieved party irrespective of the technicalities of law, which may cause unnecessary hurdles in the legitimate claim of the appellants, who have been penalized only for their upright stance during the period of their service as Chairman and Members of the Commission respectively.
Learned ASC, however, when confronted with a direct question as regards the powers of legislation vested with the Parliament to enact a law with retrospective effect by clear intendment did not dispute this position. In the end, he placed reliance on the following cases:-
(1) Saeed Ahmad v. The State (PLD 1964 S.C. 266).
(2) Molasses Trading and Export (Pvt.) Ltd. Federation of Pakistan (1993 SCM R 1905).
(3) Baz Muhammad Kakar v. Federation of Pakistan (PLD 2012 S.C. 923).
(4) L.P. Agarwal v. Union of India (AIR 1992 S.C. 1872).
(5) Bibi Sayeeda v. State of Bihar (AIR 1996 S.C. 1936).
(6) J.S: Yadav v. State of U.P. & another (2011 SCC (6) 407).
In the case of Saeed Ahmad (supra), with reference to Section 6 of the General Clauses Act and its scope, this Court made following useful discussion:--- "There remains only the argument put forward by learned counsel for the appellant that as during the pendency of the appeal before the High Court the Pakistan Penal Code was amended and Section 165B was introduced, the learned Judges of the High Court should have decided the guilt of the accused not on the basis of the law as it stood on the date when he committed the offence, but in accordance with law as it stood when they decided the appeal.
As to the applicability of a statute which is enacted after the coming into existence of the acts or events, the legal effects which are to be determined, the law is not in any doubt. So far as substantive rights of parties to a litigation are concerned, a law which comes into force either during the pendency of the proceedings in .a Court or even before the institution of such proceedings, but after the coming into existence of the events, the legal effect of which is to be determined, can have no effect whatsoever on the proceedings except to the extent of the retrospective effect which it may possess expressly or by necessary implication. If a person died before 1948 and he was governed in matters of inheritance by custom, an act passed in the year 1948 according to which all his property is to descend to his heirs in accordance with Muhammadan Law has obviously no effect whatsoever on the rights of parties even though the litigation began after the new act came into force. When rights once vest in parties they are not affected by any legislation that has merely prospective effect. This is the position so far as substantive rights are concerned. So far as the procedural provisions are concerned the ordinary rule is the Courts continue to have the jurisdiction which they had at the time when a proceeding was instituted even though that jurisdiction is subsequently taken away, but an interpretation of the new Act may lead to a different result. Not long ago we held that all appeals which were competent under the old Constitution could be filed if the judgment under appeal had been delivered when the previous Constitution was still in force. Even if the appeal was in such a case filed after the coming into force of the new Constitution that would make no difference to the competence of the appeal. It is true that sometimes the jurisdiction of a Court to pass a particular kind of order may be taken away by a new Act so that it can henceforth pass an order of that kind even in a pending proceeding, but as I have said this will depend upon the interpretation of the new statute.
It is not necessary to argue this matter at length in view of the provision that is contained in Section 6 of the General Clauses Act. This section runs:- "6. 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 a which the repeal takes effect; or
(b) affect the previous operation of any enactments repealed or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred 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."
It will be observed that in accordance with this section all rights, liabilities, etc. Continue in spite of repeal and all proceedings can be taken and continued which could have been taken and continued if the repealing Act did not come into force. When I asked learned counsel for the appellant what he had to say in reply to this section his only answer was that this section applies to a repeal and not to an amendment and before us there is a case of an amendment. Every amendment contains a repeal for the law in the form in which it stood previously disappears and a new law comes into force. There is no difference at all between a case where the Legislature says that a particular section will stand amended in a particular way and a case where it says that the section stands repealed and its place will be taken by a new section, if the new section is the same as the amended section. Whenever there is an amendment the Legislature could very well have said that the previous provision would be omitted and the provision as amended would be inserted. There is no reason for giving any different effect to these two methods which achieve the same result. At the same time there is no difference in principle between repeal and amendment and if in the case of a total repeal a proceeding can be continued as if there was no repeal why should the proceeding not be continued in the case of an amended provision?"
In the case of Molasses Trading (supra), referred and relied by both the learned counsels& this Court, while dilating upon the scope of Section 6 of the Gdnerat Clauses Act qua effect of Section 31-A of the Customs Act, 1969 with deeming clause, on the "past and closed transactions" made the following discussion:- "There is another aspect of the matter which may also be mentioned. The exposition of law made in the case of Al-Samrez Enterprise took into consideration the law as it stood on the date when that decision was rendered. As shown hereinabove, the law has changed by the insertion of the new section 31-A materially affecting the enunciation of the law made therein. Therefore the changed state of law that has come into effect was not contemplated in that decision and it cannot therefore be urged with any justification, that the principles laid down therein would still apply to the interpretation of the provisions of law discussed therein. In this view of the matter the argument that the deeming clause takes back the insertion of Section 31-A to the time of enforcement of the Act in 1969 and therefore the non-obstante clause will not eclipse the decision in the case of Al-Samrez Enterprise, loses all force.
My conclusion therefore is that section 31-A has effectively achieved the purposes for which it was enacted as explained above. The only other question that remains to be considered is, that notwithstanding the altered position produced by section 31-A depriving an importer of the right to be protected against any change in the quantum of exemption, on the basis or which he has entered into a contract for the sale of goods to be imported and opened a letter of credit or performed other acts, to what extent this section can be given retrospective effect and whether such retrospective effect can be given so as to affect past and closed transactions.
It is clear from the provisions of Section 5 of the Finance Act, 1988 that by the device of the deeming clause the newly-inserted Section 31-A is to be treated as part and parcel of the Act since its enforcement in 1969. Undoubtedly, therefore, the section is retrospective in operation. It is agreed on all hands that the well-settled principles of interpretation of statutes are that vested rights cannot be taken away 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 sphere of operation to legislate retrospectively or retroactively. Therefore vested rights can be taken away by such a legislation and it cannot be struck down on that ground. However, it has also been laid down (Province of East Pakistan v. Sharafatullah PLD 1970 SC 514) that a statute cannot be read in such a way as to change accrued rights, the title to which consists in transactions past and closed or any facts or events that have already occurred. In that case the following postulation has been made:--- "In other words liabilities that are fixed or rights that have been obtained by the operation of law upon facts or events for or perhaps it should be said against which the existing law provided are not to be disturbed by a general law governing future rights and liabilities unless the law so intends."
In the case of Baz Muhammad Kakar (supra), during some contempt proceedings, inter alia, the question of colourable exercise of jurisdiction by the legislature was examined in detail and in this context, after review of several cases from the Pakistani and Indian jurisdiction, paragraph 96 of the judgment was articulated as under:--- "96. From the above discussion in the case-law, following principles are deduced:---
(a) The whole doctrine resolves itself into the question of competency of a particular legislature to enact a particular law. If the legislature is competent to pass a particular law, the motives which impelled it to act are really irrelevant.
(b) In other words, it is the substance of the Act that is material and not merely the form or outward appearance, and if the subject-matter in substance is something which is beyond the powers of that legislature to legislate upon, the form in which the law is clothed would not save it from condemnation.
(c) The legislature can only make laws within it legislative competence. Its legislative field may be circumscribed by specific legislative entries or, limited by fundamental rights created by the Constitution.
(d) The idea conveyed by the expression 'colourable legislation' is that although apparently a Legislature in passing a statute purported to act within the limits of its powers, yet in substance and in reality it transgressed these powers, the transgression being veiled by what appears, on proper examination, to be a mere presence or disguise.
(e) Where a challenge is made on this ground, what has to be proved to the satisfaction of the Court is that though the Act ostensibly is within the legislative competence of the Legislature in question, in substance and in reality it covers a field which is outside its legislative competence.
(f) The whole doctrine of colourable legislation resolves itself into the question of competency of a particular legislature to enact a particular law. If the legislature is competent to pass the particular law, the motives which impel it to pass the law are really irrelevant.
(g) It is only when a legislature which has no power to legislate frames a legislation so camouflaging it - as to appear to be within its competence when it knows it is not, it can be said that the legislation so enacted is colourable legislation.
(h) if in pith and substance the legislation does not belong to the subject falling within the limits of its power but is outside it, the mere form of the legislation will not be determinate of the legislative competence.
Examined on the touchstone of the above principles, the COCA 2012 is a colourable legislation as it was beyond the legislative competence of the Parliament, and accordingly unconstitutional and void".
In the case of Dr. L.P. Agarwal (supra) the concept of appointment against tenure post for a period of five years or till the civil servant attains the age of 62 years was examined and in this regard following observations were made:--- "Tenure means a term during which an office is held. It is a condition of holding the office. Once a person is appointed to a tenure post, his appointment to the said office begins when he joins and it comes to an end on the completion of the tenure unless curtailed on justifiable grounds. Such a person does not superannuate, he only goes out of the office on completion of his tenure. The question of prematurely retiring him does not arise. The appointment order gave a clear tenure to the appellant. The High Court fell into error in reading "the concept of superannuation" in the said order. Concept of superannuation which is well understood in the service jurisprudence is alien to tenure appointments which have a fixed life span. The appellant could not therefore have been prematurely retired and that too without being put on any notice whatsoever. Under what circumstances can an appointment for a tenure be cut short is not a matter which requires our immediate consideration in this case because the order impugned before the High Court concerned itself only with premature retirement and the High Court also dealt with that aspect of the matter only."
In the case of Bibi Sayeeda (supra), the question of vested right was dilated upon in the context of claim of the appellant relating to Bazar area against the State of Bihar, which was eventually rejected with following useful discussion as to the concept of vested right:--- "17. The word "vested" is defined in Black's Law Dictionary [6th Edn.] at page 1563 as "Vested. Fixed; accrued; settled absolute; complete. Having the character or given the rights of absolute ownership; not contingent; not subject to be defeated by a condition precedent". Rights are "vested" when right to enjoyment, present or prospective, has become property of some particular person or persons as present interest; mere expectancy of future benefits, or contingent interest in property founded on anticipated continuance of existing laws, does not constitute vested rights. In Webster's Comprehensive Dictionary, [International Edn.] at page 1397 "vested" is defined as "Law held by a tenure subject to no contingency; complete; established by law as a permanent right; vested interests". In State of West Bengaland Ors. v. Suburban Agriculture Dairy & Fisheries (Pvt.) Ltd.
And Anr. MANU/SC/1547/1994: 1994(4)SCALE707 the question was whether after the abolition of the estate under the West Bengal Estates Acquisition Act 1953 the fishery right of the intermediary was saved by that Act? A Bench of three Judges had held in paragraphs 9 and 11 that the preexisting rights of the intermediary in the estate to which the declaration applied, shall stand' vested in the State free from all encumbrances. Section 6 does not have the effect of divesting the State of the vested right, title and interest of the intermediary. One of the rights is the right to take possession of the land held by the intermediary. The Section excluded the operation of Sections 4 and 5, viz., the interest of the respondent to retain khas possession was saved subject to his making the application in the prescribed form. It was held that the fishery rights stood vested in the State."
In the last case of J.S. Yadav (supra), a photostat print out of which has been placed on record by learned ASC for the appellants, the case of appellant J.S. Yadav, Principal Secretary and Legal Remembrancer, Government of U.P., was examined in the background that he was appointed as a Member of the Commission on 29.6.2006, but subsequently the State of U.P. Issued notification dated 28.5.2008 to the effect that appellant ceased to hold the office as Member of the Commission. Writ petition filed by the appellant with the above grievance was dismissed by the U.P.
High Court, which order was challenged by the appellant before the Supreme Court of India and after detailed discussion of various judgments relevant in this context, particularly, language of the impugned notification dated 28.5.2008, the appeal was partly allowed, inter alia, with the following observations:--- "26. In the instant case, the Amendment Act, 2006 is not under challenge. However, the issue agitated by the Appellant has been that the Legislature never intended to apply the amended provisions with retrospective effect and therefore, the Appellant could not be discontinued from the post. His rights stood protected by the provisions of Section 6 of the Act, 1897.
The issue of applicability of the said provision has been considered by this Court in State of Punjab v. Mohar Singh Pratap Singh AIR 1955 SC 84; M.S. Shivananda v. The Karnataka State Road Transport Corpn. And Ors. MANU/SC/0371/1979: AIR 1980 SC 77; Commissioner of Income Tax U.P. v. Shah Sadiq & Sons MANU/SC/035111987: AIR 1987 SC 1217; and Vishwant Kumar v. Madan Lal Sharma and Anr.
MANU/SC/0324/2004. : AIR 2004 SC 1887, wherein it has been held that the rights accrued under the Act/Ordinance which stood repealed would continue to exist unless it has specifically or by necessary implication been taken away by the repealing Act.
27. This Court in State of Punjab and Ors. v. Bhajan Kaur and Ors. MANU/SC/7644/2008 : AIR 2008 SC 2276, while dealing with the provisions of Section 6 of the Act, 1897 held as under:- A statute is presumed to be prospective unless held to be retrospective, either expressly or by necessary implication. A substantive law is presumed to be prospective. It is one of the facets of the rule of law .... Where a right is created by an enactment, in the absence of a clear provision in the statute, it is not to be applied retrospectively.
28. In Sangam Spinners v. Regional Provident Fund Commissioner I MANU/SC/8165/2007: AIR 2008 SC 739, this Court held as under:- "It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. The absence of a saving clause in a new enactment preserving the rights and liabilities under the repealed law is neither material nor decisive of the question. In terms of Section 6(c) of the General Clauses Act, 1897 unless a different intention appears the repeal shall not affect any right, privilege or liability acquired, accrued or incurred under the enactment repealed."
29. A Constitution Bench of this Court in Chairman, Railway Board and Ors. v. C.R. Rangadhamaiah and Ors. MANU/SC/0954/1997 : AIR 1997 SC 3828, dealt with the case where the pension admissible under the Rules in force at the time of retirement was reduced with retrospective effect. This Court held such an action to be unreasonable and arbitrary being violative of Articles 14 and 16 of the Constitution of India. The Court observe as under:- It can, therefore, be said that a rule which operates in futuro so as to govern future rights of those already in service cannot be assailed on the ground of retroactivity as being violative of Articles 14 and 16 of the Constitution, but a rule which seeks to reverse from an anterior date a benefit which has been granted or availed of, e.g., promotion or pay scale, can be assailed as being violative of Articles 14 and 16 of the Constitution to the extent it operates retrospectively....
In many of these decisions the expressions "vested rights" or "accrued rights" have been used while striking down the impugned provisions which had been given retrospective operation so as to have an adverse .Effect in the matter of promotion, seniority, substantive appointment, etc., of the employees. The said expressions have been used in the context of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution.
Thus, from the above, it is evident that accrued rights cannot be taken away by repealing the statutory provisions arbitrarily. Moreso, the repealing law must provide for taking away such rights, expressly or by necessary implication.".
10. Conversely, Raja Muhammad Aleem Abbasi, learned Deputy Attorney General for Pakistan in his submissions did not dispute above-noted factual aspects of the case regarding services of the appellants as Chairman and members of the Commission respectively. But he seriously questioned the maintainability of these appeals; firstly, for the reason that Act V of 2006 was promulgated on 4.10.2006, and leave to appeal was granted in the appeals on 7.2.2007, but for 7o valid reason the appellants failed to amend their memo, of appeals to challenge such Act thereafter for a period of over six years, knowing well that the Ordinances, which were earlier challenged by them before the High Court had already lapsed and replaced by an Act of the Parliament. As regards the three applications for amendment belatedly moved on behalf of the appellants. In this regard, learned Deputy Attorney General made reference to the reply submitted on behalf of the Federation and contended that at this belated stage amendment of such nature would not be justified. He, however, did not dispute that the language of Act V of 2006, dated 4.10.2006 is in verbatim the same, which was the language of earlier four Ordinances No. XV of 2005, dated 27.8.2005, XXV of 2005, dated 22.12.2005, V of 2006, dated 21.4.2006 and XVIII of 2006, dated 3.8.2008, therefore, such amendment, if allowed, will not change the nature or character of such proceedings. Considering this admitted position and the fact that belated request for amendment in the memo. Of appeals made by the appellants through C.M.A. Nos. 3334, 335 & 336 of 2013, has not changed the nature of their claim against respondents and has further caused no prejudice to them, these applications for amendment in the memo of appeals are hereby allowed.
11. Learned Deputy Attorney General for Pakistan, making his further submissions with reference to the above-referred four Ordinances issued by the President of Pakistan from time to time and thereafter to the language of Act No. V of 2006, dated 4.10.2006, 'strongly contended that the President had exercised powers under Article 89(1) of the Constitution at a time when the National Assembly was not in Session and he was satisfied that circumstances exist which rendered it necessary for him to take immediate action, therefore, no male fide or ulterior motive can be attributed to such acts of the President. He further contended that even otherwise after lapse of all the four Ordinances, at this stage, it is only a matter of academic discussion for the Court to dilate upon this aspect of the case. Further, making reference to Act V of 2006, he argued that law is well- settled on the point that no mala fide can be attributed to the "Act" passed by the Parliament, which has such Constitutional mandate. As regards the merits of the claim of the appellants, that they were entitled to continue in their respective capacities as Chairman and Members of the Commission for a period of five years as per terms of their notifications, therefore, their five years term of appointment could not be curtailed or reduced to three years by the impugned Ordinances or the Act, he submitted that the legislature has ample power to promulgate a law and to make it applicable retrospectively with clear intendment, thereby transgressing and destroying the vested rights of the individuals, as against the normal course of prospective application of any new legislation. However, in the present case, from the language of earlier lapsed four Ordinances and the Act itself, it is clear that necessary amendment in Section 4 in the Act XLV of 1977 has been made by the legislature with clear intendment of its retrospective applicability, thus the claim of the appellants is not tenable in law. In the same context, he also made reference to the language of Section 6(a) of the General Clauses Act and reiterated that where by clear intendment, a law is passed by the Parliament with retrospective effect, in that case no vested right effected by such law or amendment in the existing law can be protected, as the Parliament has uncurtailed authority/jurisdiction to promulgate any law within its limits prescribed under the Constitution. To fortify his submissions, learned Deputy Attorney General placed reliance on some of the cases cited by the learned ASC for the appellants and further relied upon on the following cases.---
(1) Zaman Cement Company (Pvt.) Ltd. v. Central Board of Revenue (2002 SCM R 312)
(2) Yar Muhammad v. Secretary, Finance Department (2011 SCM R 1537)
(3) Trinity Private School v. Mumtaz H. Hidayatullah (1997 SCM R 494) and
(4) Fecto Belarus Tractor Ltd. v. Government of Pakistan (PLD 2005 S.C. 605).
In the first case of Zaman Cement Company (supra) with reference to 31-A of the Customs Act, 1969, scope of doctrine of legitimate expectation was considered and following useful observations were made:-
(a) Rules of interpretation and canons of construction do not create any new law rather they provide the meaning to understand the law and give correct meaning to it;
(b) Vested right cannot be taken away except by express word and necessary intendment. Vested right, if conferred through a statute can be taken away only by legislative enactment and not by executive authdrity through notification in exercise of either rule-making power or powers conferred under Section 21 of the General Clauses Act, 1897.
(c) Purpose of intention of statutory provision is to ascertain the true intention of the legislature, which is to be gathered from the words used by the legislature itself. If these words are so clear and unmistakable they cannot be given any meaning other than that which they carry in their ordinary grammatical sense. The Courts are not concerned with the consequences of the interpretation, however, drastic or inconvenient the result, for the function of the Curt is interpretation, not legislation.
(d) While interpreting a notification, the purpose for which it is issued, will be relevant in determining the vires of such notification.
(e) Function of the judiciary is not to legislate or question the wisdom of legislature in making a particular law nor it can refuse to enforce the law even if the result of it will be nullify its on decision, provided the law is competently made. Vires of law, thus, can only be challenged being violative of any provision of the Constitution, but not on the ground that, it nullifies the judgment of superior Courts.
In the second case of Yar Muhammad (supra), in the context of relevant facts of that case, it was held that the legislature has authority to take away or affect any vested right of a person retrospectively.
In the third case of Trinity Private School (supra) during the proceedings in a case arising out of the provisions of Section 14(1) of the Sindh Rented Premises Ordinance, 1979, the question of retrospective applicability of law was examined and it was held that such provision will have retrospective applicability, for the persons who have attained the age of 60 years before the promulgation of the said Ordinance.
In the fourth case of Fecto Belarus (supra), in a dispute relating to levy of sales tax it was, inter alia, held that Ordinances, declaratory in nature, ordinarily operate retrospectively.
12. We have carefully considered all the submissions made before us by the learned ASC for the appellants, the learned Deputy Attorney General for Pakistan, with their able assistance also perused the material placed on record. More particularly the language of the four Ordinances issued by the President of Pakistan from time to time, as referred to above, the amending Act V of 2006, whereby Section 4 of the Ordinance XLV of 1977 has been amended and the cases cited at the Bar. As all the submissions of both the learned counsel revolve around the interpretation of this amended provisions of Jaw and its prospective or retrospective applicability, it will be useful to reproduce the amending Act V of 2006 as under:- "GAZETTE OF PAKISTAN, EXTRAORDINARY PUBLISHED BY AUTHORITY ISLAMABAD, THURSDAY, OCTOBER 5, 2006 PART I Acts, Ordinances, President's Orders and Regulations SENATE SECRETARIAT Islamabad, the 4th October, 2006.
F.No. 2(1)/2006-Legis.-- The following Act of Majlis-e-Shoora (Parliament) received the assent of the President on 30th September, 2006, is hereby published for general information:--- ACT No. V OF 2006 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; It is hereby enacted as follows:---
1. Short title and commencement.-- (1) This Act may be called the Federal Public Service Commission (Amendment) Act, 2006.
(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 reappointment.
(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 (XV of 2005), completes his tenure or attains upper age-limit specified in sub-section (1) shall on such commencement of forthwith cease to be member as defined in clause (b) of Section 2.".
RAJA MUHAMMAD AMIN, Secretary"
13. A plain reading of above reproduced Section 2 of Act V of 2006, relating to amendment in Section 4 of the Ordinance XLV of 1977, makes it clear that firstly, so far as its language is concerned, it is word to word same as was the language of earlier four above referred Ordinances issued by the President in the same context. Moreover, it is also crystal clear that by providing deeming provision, the amendment made in Section 4(1) of the Ordinance XLV of 1977, has been given retrospective effect from the date when the Ordinance XLV of 1977 was promulgated. In addition to it, by providing sub-section (1A) starting with non-obstante clause "notwithstanding", the legislature has further ensured the applicability of this amending Act with retrospective effect, covering the case of all the serving Chairman/Members of the Commission. The legal position that legislature has the authority to promulgate or amend a law with retrospective effect by intendment has not been disputed or denied by the learned ASC for the appellants and further it is fully supported from the ratio of case-law cited at the Bar, as discussed above. As regards other submissions of the appellants about the mala fide of the President in promulgation/re- promulgation of same Ordinances, to their prejudice, suffice it to say that such practice of issuing repeated Ordinances to the same effect has been deprecated by this Court time and again (for ready reference see: (i) Government of Punjab v. Zia Ullah Khan (1992 SCM R 602) and (ii) The Collector of Customs, Karachi & others versus M/s. New Electronics (Pvt.) Limited & others (PLD 1994 S.C. 363). However, in the present case, at this stage this aspect of the matter is nothing but of academic importance/relevance, thus, we would refrain from dilating further upon this aspect of the matter. Insofar as the language of Act V of 2006 is concerned, we are fully satisfied and are in agreement with the submission of the learned Deputy Attorney General that when legislature has given the amending enactment retrospective effect with clear intendment spelt out from its language, then no protection to the alleged vested rights of the appellants can be offered contrary to it. As this view of the matter is fortified from the cases discussed in the preceding paragraphs, therefore, any further discussion on this aspect of the case will be a futile exercise. Similarly, the language of Section 6 of the Act XLV of 1977, providing for a special procedure for removal Chairman/Member of the Commission before the expiry of his fixed term of office, aimed to give service protection to him during that tenure,. Is of no help to the case of the appellants, as, even after amendment of Section 4 (ibid) it will remain operative as it is and will have no overriding effect on the fallout of such amendment.
14. Upshot of the above discussion is that these appeals, being devoid of merit, are dismissed.