' QAZI FAEZ ISA, J.---This appeal assails the judgment of the Peshawar High Court dated 9th June, 2014 ("the impugned judgment") whereby two Writ Petitions Nos.2547-P and 2833-P of 2013 were dismissed.
2. The appellant, a retired grade 21 officer, was appointed as the Provincial Ombudsman, Khyber Pakhtunkhwa under section 3 of the Khyber Pakhtunkhwa Ombudsman Act, 2010 ("the Act") for a period of four years with effect from the date of his taking oath of office of Provincial Ombudsman vide Notification No, SO(E-1)E&AD/9-94/2010 which is reproduced hereunder:-- "GOVERNMENT OF KHYBER PAKHTUNKHWA ESTABLISHMENT AND ADMINISTRATION DEPARTMENT Dated Peshawar, the December 29, 2010 NOTIFICATION ' No, SO(E-I)E&AD/9-94/2010. In exercise of the Powers conferred by section 3 of the Khyber Pakhtunkhwa Provincial Ombudsman Act, 2010 (Act No,XIV, of 2010), the Governor of Khyber Pakhtunkhwa is pleased to appoint Mr. Badshah Gul Wazir (Rtd: PCS EG BS-21) as Provincial Ombudsman, Khyber Pakhtunkhwa against the vacant post for a period of four years, with effect from the date of his taking over the oath of the office of Provincial Ombudsman, Khyber Pakhtunkhwa.
(2) The terms and conditions of his appointment as Provincial Ombudsman, Khyber Pakhtunkhwa shall be settled later on. CHIEF SECRETARY GOVT. OF KHYBER PAKHTUNKHWA"
' Section 3 of the Act, as it stood when the appellant was appointed, is reproduced hereunder:-- "3. Appointment of Provincial Ombudsman.
(1) There shall be a Provincial Ombudsman for the Province of the Khyber Pakhtunkhwa, who shall be appointed by 'the Government on the advice of the Chief Minister.
(2) The Provincial Ombudsman shall be a person of known integrity.
(3) Before entering upon office, the Provincial Ombudsman shall take an oath before the Governor in the form set out in the Schedule -1 to this Act.
(4) The Provincial Ombudsman shall, in all matters, perform his functions and exercise his powers fairly, honestly, diligently and independently of the Executive, and all executive authorities throughout the Province shall act in aid of the Provincial Ombudsman.
3. That Act was amended vide Khyber Pakhtunkhwa (Amendment) Act, 2013 ("the Amendment Act") which received the ascent of the Governor of the Province on 24th September 2013 and was published in the Gazette of Khyber Pakhtunkhwa (Extra Ordinary) dated 25th September, 2013. A number of amendments were made in the Act pursuant to the Amendment Act, including amending section 3 and section 4. In so far as section 3 is concerned, the power vesting in the Governor to appoint the Provincial Ombudsman was given to the Government and subsection (2) of section 3 was substituted with the following:-- "(2) The Provincial Ombudsman shall be a person, who is, or has been or is qualified to be judge of a High Court or any other person of known integrity."
4. That subsection (1) of section 4 as appearing in the Act and as it stood after the Amendment Act are reproduced hereunder:-- ' Section 4 as it originally stood in the Act: "4.
Tenure of the Provincial Ombudsman.
(1) The Provincial Ombudsman shall hold office for a period of four years and shall not be eligible for any extension in his tenure or for re-appointment as Provincial Ombudsman under any circumstances."
Section 4 after the Amendment Act: "4. Tenure of the Provincial Ombudsma n.
(1) The Provincial Ombudsman shall hold office for a period of four years or till the age of sixty-two years, whichever is earlier and shall not be eligible for any extension in his tenure for re- appointment as Provincial Ombudsman under any circumstance. "
5. That, since the appellant had attained the age of 62 years, the Government of Khyber Pakhtunkhwa ("the Government") de-notified the appointment of the appellant as Provincial Ombudsman vide Notification No,SE(E-I)E&AD/9-94(B)/2013 dated 29th October 2013 ("the first impugned Notification"), reproduced hereunder: "GOVERNMENT OF KHYBER PAKHTUNKHWA ESTABLISHMENT AND ADMINISTRATION DEPARTMENT DATED PESHAWAR THE, OCTOBER 29, 2013 NOTIFICATION ' SO(E-I)E&AD/9-94(B)/2013. In pursuance of section 4 of the Khyber Pakhtunkhwa Provincial Ombudsman (Amendment) Act 2013, (Khyber Pakhtunkhwa Act No, XXVI of 2013), the Provincial Government is pleased to de-notify the appointment of Mr. Badshah Gul Wazir, as Provincial Ombudsman, Khyber Pakhtunkhwa, with immediate effect. CHIEF SECRETARY GOVERNMENT OF KHYBER PAKHTUNKHWA"
' The Government followed the first impugned Notification with Notification No, SO(E-I)E&AD/9- 94(B)12013 dated 30th October 2013 ("the second impugned Notification") whereby it appointed respondent No,4 as the Provincial Ombudsman, which is reproduced hereunder: "GOVERNMENT OF KHYBER PAKHTUNKHWA ESTABLISHMENT AND ADMINISTRATION DEPARTMENT DATED PESHAWAR THE, OCTOBER 30, 2013 NOTIFICATION ' No, SO(E-I)E&AD/9-94(B)/2013. In exercise of powers conferred under section 4(i) of the Khyber Pakhtunkhwa Provincial Ombudsman Act 2013, the Provincial Government is pleased to appoint Mr. Khurshid Anwar as Provincial Ombudsman, Khyber Pakhtunkhwa, against the vacant post, for a period of four years or till the age of sixty two years, whichever is earlier, from the date of taking oath of the office.
(2) The terms and conditions of the appointment as Provincial Ombudsman, Khyber Pakhtunkhwa will be settled later on"
CHIEF SECRETARY GOVERNMENT OF KHYBER PAKHTUNKHWA"
' The appellant assailed the first and second impugned Notifications in Writ Petition No, 2833-P of 2013 and assailed the Amendment Act in Writ Petition No, 2547-P of 2013; both these petitions were decided by the impugned judgment. The Amendment Act, has been assailed in C.P.L.A. No 1070 of 2014, however Mr. Asaf Vardag the learned counsel for the petitioner did not press this petition.
Therefore, we are left to decide the effect of the first and second impugned Notifications, the subject matter of C.P.L.A. No, 1080 of 2014, which was converted into an appeal on the 17th September 2014.
6. Mr. Asaf Vardag the learned counsel for the appellant stated that the appellant was appointed for a period of four years, but before the expiry of said period the Government had purported to "de-notify" him pursuant to the first impugned Notification. The learned counsel stated that despite the amendment made in Section 4 it did not automatically follow that the appellant would cease to hold the said office and that there was nothing to suggest in the Amendment Act that the amendment made in section 4 was retrospective in operation and/or would also include the appellant. Reliance was also placed upon section 4 of the Khyber Palditunkhwa (previously N.- W.F.P.) General Clauses Act, 1956 which provision is reproduced hereunder:-- "4. Effect of Repeal.
(1) Where this Act, or any other Provincial Act repeals any enactment 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;
(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 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 had not been passed.
(2) The provisions of subsection (1) shall apply on the expiry or withdrawal of any Ordinance promulgated by the Governor as if it had been repealed by a Provincial Act.
The cases of Federation of Pakistan v. Shaukat Ali Mian (PLD 1999 SC 1026) and Mst. Sarwar Jan v.
Mukhtar Ahmed (PLD 2012 SC 217) were cited in support of his contention, that in the absence of specific language in the enactment the amendment made in the law will apply prospectively unless it confers a benefit. The learned counsel further stated that the appellant could only have been removed, before the expiry of his four year term of office of Provincial Ombudsman on the ground of misconduct or if he was incapable of performing his duties by reason of either physical or mental incapacity as provided in subsection (2) of section 6, reproduced hereunder:-- "6. Terms and conditions of service and remuneration of Provincial Ombudsman.
"(1) The Provincial Ombudsman shall be entitled to such salary, allowance and privileges and other terms and conditions of service as Government may determine and these terms shall not be varied during the term of his office.
(2) The Provincial Ombudsman may be removed from office by the Governor on the ground of misconduct or of being incapable of properly performing the duties of his office by reason of physical or mental incapacity. Government shall provide the Provincial Ombudsman a copy of charges before such an order of removal is made: Provided that the Provincial Ombudsman may, if he thinks fit and appropriate to refute all or any of the charges, request for an open public evidentiary hearing before a Division Bench of the High Court and if such hearing is not held within thirty days from the date of the receipt of such request or hot concluded within ninety days of its receipt, the Provincial Ombudsman will stand absolved of all the charges whatsoever. In such circumstances, he may choose to leave his office and shall be entitled to receive full remuneration and benefits for the remaining term."
7. Mr. Afnan Karim Kundi, the learned counsel for respondent No,4, valiantly opposed the appeal and stated, that, after the amendments brought about by the Amendment Act to section 4 the appellant could no longer hold office as he had attained the age of 62 years and the Government had legally issued the first impugned Notification de-notifying the Appellant. He further stated that as the office of the Provincial Ombudsman had fallen vacant the Government had also legally issued the second impugned Notification, appointing respondent No, 4 as the Provincial Ombudsman. He contended that the legislature was fully competent to change the terms of the office of the Ombudsman and it had done so by bringing down the age till which a person can hold such office. It was next stated that the appellant had no 'vested right" and the learned counsel placed reliance upon the case of Union of India v. Uday Date (AIR 1998 Bombay 157). He .Also canvassed the proposition that the legislature was empowered to pass legislation with retrospective effect and in this regard relied upon the case of Imtiaz Ahmed Lali v. Ghulam Muhammad Lali (PLD 2007 SC 369), Muhammad Hussain v. Muhammad (2007 SCMR 367) and Amin Ullah v. Pannu Ram (PLD 1967 SC 289). Another contention of the learned counsel was that the Amendment Act specifically stipulated that, "it shall come into force at once" (subsection (2) of section 2 of the Amendment Act) and cited the following judgments as to the import of the said expression, K.K. Garments v. Chairman C.B.R. (2001 YLR 22) and Ummatullah v. Province of Sindh (PLD 2010 Karachi 236). Reference was also made to the case of Federation of Pakistan v. M. Nawaz Khokhar (PLD 2000 SC 26) and Elahi Cotton Mills Ltd. v. Federation of Pakistan (PLD 1997 SC 582). He concluded by stating that the ratio of two un-reported judgments of this Court, respectively Lt. Gen. (Retd.) Jamshaid Gulzar and others v. Federation of Pakistan and others (Civil Appeals Nos. 826, 827, 828 of 2007) and Gulzar Khan v. The Government of KPK (Civil Appeal No, 116 of 2011), are applicable to the case in hand.
8. The learned Advocate General, Mr. Abdul Latif Yousafzai, while supporting the impugned Notifications stated that section 4 did not contain a non obstante clause or deeming provision nor did its language suggest retrospective application, unlike for instance the amendments that were made in the Federal Public Service Commission Ordinance, 1977 vide the Federal Public Service Commission (Amendment) Ordinance 2005 which was considered by this Court in the case of Lt. Gen. (Retd.) Jamshaid Gulzar (supra) and Gulzar Khan (supra).
9. That the Act as it originally stood provided for a person to hold the office of the Provincial Ombudsman for a period of four years whereas the Amendment Act curtailed such period in case of those persons who had attained the age of 62 years, i.e. The tenure of a person holding office for a period of four years was repealed and or substituted, and henceforth the term of office of the person holding the office of Ombudsman would be four years provided he had not attained the age of 62. The appellant was appointed for a period of four years pursuant to section 4 and the said four years had not expired when the first impugned Notification was issued de-notifying him.
We, therefore, need to examine the effect of such repeal and particularly whether section 4 (as amended pursuant to the Amendment Act) would also apply to the appellant, in other words whether the effect of the amendment is retrospective. The provincial General Clauses Act, 1956 was promulgated as stated, to facilitate the interpretation of provincial statutes"; clauses (b) and (c) of subsection (1) of section 4 whereof respectively stipulate that the repeal "shall not affect the previous operation of any enactment so repealed" or "affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed." The judgment of this Hon'ble Court in the case of Lt. Gen. (Retd.) Jamshaid Gulzar, which was followed in the case of Gulzar Khan, had considered a federal law and held that section 6 of the General Clauses Act, 1897 (which section is similar to the provincial General Clauses Act) was not applicable as Parliament had consciously given the amendment retrospective effect and had incorporated a non obstante clause commencing with the word "notwithstanding". However, in the Amendment Act the Provincial legislature did not give section 4 of the Act retrospective effect nor contained a non obstante clause, therefore, the cases of Lt. Gen. (Retd.) Jamshaid Gulzar and Gulzar Khan are clearly distinguishable. It would, however, be useful to reproduce the following extract from the judgment in Jamshaid Gulzar's case, which further strengthens the case of the appellant:-- "(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 statue can be taken away only by legislative enactment and not by executive authority 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 Court is interpretation, not legislation."
10. That the learned Divisional Bench of the Hon'ble Peshawar High Court considered the question that is before us in paragraphs 12 and 13 of the impugned judgment; it referred to the judgment of the High Court authored by one of us (Ejaz Afzal Khan, J in W.P. No, 1394/2011), but without appreciating the significant distinguishing feature of that case, which was the "express and unambiguous" retrospective operation given to the amendment made in the legislation. The learned Bench also erred in law by holding that, "a substituted section in an Act introduced by an amending Act is to be treated having retroactive operation as the function of a substituted section in an Act is to obliterate the rights of the parties as if they never existed." With respect to the learned judges the proposition formulated by them does not accord with the law and settled precedents. A substituted section, and particularly one curtailing substantive rights, does not have "retroactive operation" unless the legislature elects to give it retrospective effect. Nor does a substituted section obliterate accrued rights; section 6 and section 4 respectively of the Federal and Provincial General Clauses Act specifically preserves such vested rights as mentioned therein.
The courts have interpreted laws and notifications in the light of the General Clause Acts to save rather than obliterate vested rights. In the matter of Akhlaque Hussain Advocate (PLD 1965 (WP)
Lahore 147) a Full Bench of the Lahore High Court held that the Legal Practice (Disqualification)
Ordinance, 1964, which disqualified certain judges from practicing as advocate was ultra vires qua the petitioners as it took away their accrued vested rights. In the Bombay High Court case of Uday Date (supra) it was held that since, "there is no express abrogation of the rights conferred and, hence, those rights are saved under the provisions of section 6 of the General Clauses Act"
(paragraph 14, page 162). In this case the appellant is aggrieved by the action of the executive, which has issued the first and second impugned Notifications. Needless to state that the executive can also not obliterate vested rights. In Collector of Central Excise and Land Customs v. Azizuddin Industries Ltd. (PLD 1970 Supreme Court 439 at page 444), Justice Yaqub Ali, J writing for a four member bench, held that:-- "The respondent had acquired a vested right of exemption from the levy of excise duty on all the goods produced or manufactured by it for a period of four years under the Notification of the Central Government referred to above. That vested right could not, therefore, be taken away by an executive action. The Notification dated the 28th February 1964, being completely destructive of the right vested in the respondent-company was in this view without lawful authority and of no legal effect."
11. That the Act was enacted, "to provide for the establishment of the office of the Provincial Ombudsman for protection of the rights of the people, ensuring adherence to the rule of law, redressing and rectifying any injustice done to a person through maladministration suppress corrupt practices and to ensure good governance" (the first preamble of the Act). The Provincial Ombudsman has been empowered to investigate maladministration (section 9), therefore, to ensure that the watchdog status of the Ombudsman is not compromised and he does not succumb to pressure the legislature in its wisdom provided statutory protection to the person holding the office of Provincial Ombudsman and envisaged his/her removal only if he/she was guilty of misconduct or was physically or mentally incapacitated to perform his/her duties as provided in subsection (2) of section 6 and its proviso. The appellant was appointed as the Provincial Ombudsman for a period of four years and no step for removal of the appellant was taken pursuant to subsection (2) of section 6, therefore, he must be allowed to continue to hold the office till the expiry of such term. The amendment made to section 4 does not contain any element whereby the appointment of the appellant as a Provincial Ombudsman was revoked, repealed, withdrawn or cancelled; the silence of the legislature in this regard is significant. Therefore, in the absence of legislation, the tenure of the appellant cannot be curtailed in the exercise of administrative powers, but, unfortunately, the same was purported to be done by the first impugned Notification. The Act grants security of tenure to the office of the Ombudsman and it cannot be undone by the Government as such power the legislature in its wisdom has not conferred upon the Government. Consequently, the first and second impugned Notifications are declared to be in contravention of the Act, illegal, without jurisdiction and of no legal effect. The appellant will continue to hold the office of the Provincial Ombudsman for a period of four years which shall commence from the date he took the oath of office of the Provincial Ombudsman Khyber Pakhtunkhwa pursuant to notification dated 29th December, 2010. Resultantly, the purported appointment of respondent No, 4 as Provincial Ombudsman, at a time when the appellant was holding such office, is also declared to be illegal, without jurisdiction and of no legal effect.
12. These are the detailed reasons of our short order dated 17th September 2014 which was announced in open Court.