Through this single judgment we intend to decide the instant writ petition as well as the connected W.P No. 593-M/2016, W.P No. 4039-P/20 16, W.P No. 280-M/2017 and W.P No. 281-M/2017 as identical questions of law and facts are involved in all these petitions.
2. Most of the petitioners in all the writ petitions are Levy employees of various districts of the province of Khyber Pakhtunkhwa whereas some of them belong to Bajaur Agency falling within Federally Administered Tribal Areas (FATA). The petitioners joined the Levies Force as Sepoys.
Initially, service of the Force was governed under Dir and Malakand Levies Rules and Rules of Service for Bajaur Levies both promulgated in 1962. Later on, the Rules of 1962 were repealed and Provincially Administered Tribal Areas (PATA) levies Force Service Rules, 2012 were promulgated for PATA Levies Force vide notification dated 13.09.2012 whereas for FATA Levies Force, the Federal Levies Force (Service) Rules, 2012 were framed and notified vide S.R.O 954(1)/2012 dated 03.08.2012.
Under Rule 16 of the ibid Rules it was provided that: "the Force personnel shall retire from service on attaining the age of superannuation i.e 60 years or he may opt for retirement after 25 years of regular service".
Thereafter, the Government of Khyber Pakhtunkhwa notified service rules for Levies Force in PATA i.e Provincially Administered Tribal Areas (PATA) Federal Levies Force Service (Amended) Rules, 2013 vide notification dated 04.02.2013 whereas the Federal Government promulgated Federal Levies Force (Amended) Service Rules, 2013 vide notification S.R.O.580(I)/2013 dated 08.04.2013. Under Rule 17 of both the mentioned amended rules for PATA and FATA, a new criterion was laid down for retirement of Levies Force under Schedule-III and Schedule-IV for PATA and FATA Levies Force respectively which is reproduced herein below:-- {{TABLE}}
1. Subedar Major: 38 years' service or 03 years' service as Subedar Major or 60 years age whichever is earlier.
2. Subedar: 35 years' service or 03 years' service as Subedar or 57 years age whichever is earlier.
3. Naib Subedar: 32 years' service or 03 years' service as Naib Subedar or 54 years age whichever is earlier.
4. Havaldar: 29 years' service or 03 years' service as Havaldar or 51 years age whichever is earlier.
5. Naik: 26 years' service or 03 years' service as Naik or 48 years age.
6. Lance Naik: 23 years' service or 03 years' service as L/Naik or 45 years age whichever is earlier.
7. Sepoy: 20 years' service or 42 years age whichever is earlier. {{TABLE}}
3. By means of the subsequent rules, a clog of three years' service on the same rank was imposed on the Levies personnel, which according to petitioners, had adversely affected the service career of almost the entire force. Hence, the force members including some of the petitioners filed W.P No. 175-M/ 2013, W.P No. 141-M/2013 and W.P No. 2124-P/2013 before this Court whereby they challenged the Rules of 2013, however, in the meanwhile the service Rules for PATA Levies Force were once again amended vide Notification No. So(Levies)HD/FLW/1-1/2013/ Vol.1 dated 12.12.2013 (Schedule-III) and likewise service rules for FATA Levies Force were amended vide Notification No. F.10(5)-LK/2006 dated 05.12.2013 (Schedule- IV). The new criteria for retirement of both Federal and Provincial Levies Force was laid down as under: {{TABLE}}
1. Subedar Major: 37 years' service or 60 years age whichever is earlier.
2.Subedar: 35 years' service or 60 years age whichever is earlier.
3.Naib Subedar: 33 years' service or 60 years age whichever is earlier.
4.Havaldar: 31 years' service or 60 years age whichever is earlier.
5.Naik: 29 years' service or 60 years age whichever is earlier.
6.Lance Naik: 27 years' service or 60 years age whichever is earlier.
7.Sepoy: 25 years' service or 60 years age whichever is earlier. {{TABLE}}
4. According to assertions of petitioners, the above-mentioned amendment in the rules vide the afore-referred notifications redressed the grievances of the Force personnel and several promotions were made consequent upon the above notifications, hence, the petitioners including other members of the Force withdrew their writ petitions. However, once again the service rules for PATA Levies Force were amended vide Notification No. So(Levies)HD/FLW/1-1/2013/Vol.1 dated 25.08.2016 whereas service rules for FATA Levies Force were amended vide Notification No. S.R.O.
936(1)/2016, dated 04.10.2016. It is noteworthy that the rules were amended only to the extent of Subedar Major, Subedar and Naib Subedar whereas the criteria for the remaining ranks remained unchanged. The new criteria for retirement of Levies Force vide Schedules-III & IV to the extent of Subedar Major, Subedar and Naib Subedar was set forth as under: {{TABLE}}
1. Subedar Major: 37 years' service or 03 years' service as Subedar Major or 60 years age whichever is earlier.
2. Subedar: 35 years' service or 05 years' service as Subedar or 60 years age whichever is earlier.
3. Naib Subedar: 33 years' service or 07 years' service as Naib Subedar or 60 years age whichever is earlier. {{TABLE}}
5. The above amendments in the existing rules have limited the length of service of the petitioners as Subedar Major, Subedar and Naib Subedar, therefore, the petitioners have challenged the same through the instant petition as well as the connected writ petitions which are being decided through this single judgment.
6. Learned counsels for the petitioners, inter alia, contended that under the previous rules, certain rights and privileges had accrued to the petitioners which have been taken away from them vide the impugned amendments in the rules, hence, the same are not applicable to petitioners under Article 264(c) of the Constitution of the Islamic Republic of Pakistan, 1973. They further contended that in absence of a stipulation to the contrary, any change in law affecting substantive rights will have prospective effect and any insertion and deletion in the service rules cannot operate retrospectively. Learned counsels added that only that law can be given retrospective effect which brings. some changes in procedure and no retrospective effect can be given to a substantive law under which certain rights accrue to a person. Learned counsels were of the view that procedure laid down under Section 23 of the General Clauses Act, 1897 has not lieen followed while making the amendments in the rules and the last amendments so mad e being in violation of Section 23 of the Act ibid, are not legally sustainable. Learned counsels apprehended that the respondents are going to implement the impugned am ended Rules retrospectively due to which the petitioners would stand retired retrospectively. Reliance was placed on PLD 2015 SCMR 43, 2 005 SCMR 1785, 2013 CLC 839-c, 2012, SCMR 864, 2016 P.Cr.L.J 1302-c, 2016 PLC (CS) 601-f; 2011 PLC (CS) 1623 and 2014 (Peshawar) 210.
7. As against that learned Deputy Attorney General appearing on behalf of the Federation and learned Additional Advocate General appearing for the Provincial Government while supporting 'the amendments made in Rules 2016, submitted that the impugned amendments in the rules have been made in the broad interests of the entire force and the rules cannot be held as invalid mere on the ground that the same have adversely effected only a few individuals of the force. They were of the view that the Government has full plenary powers to amend or alter an rules with retrospective effect. They placed reliance on 2013 SCMR 314, 2016 SCMR 893, 201.5 SCMR 1739, 2005 SCMR 186 and PLD 2007 High Court (AJ&K) 1.
8. We have heard arguments of learned counsel for the petitioners and gone through the record in light of their valuable assistance.
9. In Order to appreciate the nature of the controversy posed for our consideration, we may note a few relevant facts. Since its establishment in PATA till 2012, the Levies Force was governed under Dir and Malakand Levies Rules, 1962 also known as Federal Irregular Corpse Rules, 1962. The Force has mainly been assigned the task of security in PATA while in some notified areas the Force also conducts investigation in criminal cases. In order to regulate the service of Levies Force in PATA, the Provincially Administered Tribal Areas Levies Force Regulation, 2012 was promulgated on 29.08.2012. Section 9 of the Regulation ibid empowers the Provincial Government to frame , rules for the purposes; inter alia, the conditions of' service of Leyies Force. For the first time, Provincially Administered Tribal Areas (PATA) levies Force Service Rules, 2012 were framed under the Regulation promulgated vide notification dated 13.09.2012, as such, the former rules of 1962 were repealed. The main issue which has repeatedly been raised before this Court is with regard to the criteria of retirement of Subedar Major, Subedar and Naib-Subedar laid down in the Rules. Under Section 24 of 2012 Rules an anomaly committee should be set up to consider and correct the anomalies, if any. The first anomaly which was felt in the initial Rules of 2012 was that under Rules 2012 a Subedar Major could hold the said position for unspecified period and there was a minimum chance of promotion of junior members of the Force. Resultantly, a sense of despair and desolation developed amongst majority of the junior members of the Force which prompted the authority to amend the existing Rules of 2012. Hence, the Provincially Administered Tribal Areas (PATA) Federal Levies Force Service (Amended) Rules, 2013 were promulgated vide notification dated 04.02.2013 whereas the Federal Government promulgated Federal Levies Force (Amended) Service Rules, 2013 vide notification S.R.O.580(I)/2013 dated 08.04.2013. Under Rule 17 of both the mentioned amended rules for PATA and FATA, a new criterion was laid down for retirement of Levies Force under Schedule-III and Schedule-IV for PATA and FATA Levies Force respectively which has already been reproduced in the facts of the case.
10. A bare look at both the criteria i.e before and after the amendment, would reveal that in the pre- amended rules of 2012, every member had the right to continue his service till attaining the age of superannuation i.e 60 years or by giving the option to retire before the age of superannuation but under the amended rules, the option previously given to the Force personnel was withdrawn and a clog of three years for each rank was prescribed before attaining the age of superannuation which was challenged before this Court vide W.P No. 175-M/2013, W.P No. 141-M/2013 and W.P No. 2124- P/2013. During the pendency of these writ petitions, once again, the Rules for both PATA and FATA Levies Force were amended vide notification dated 12.12.2013 (Schedule-III) and dated 05.12.2013 (Schedule-IV) respectively wherein the clog of three years' service on each rank from top to bottom was removed under the amended Rules. What is frowned upon is that while amending the Rules, no object or reason for the said amendments was given and soon after the amendment the writ petitions pending before this Court were withdrawn. It may be pointed out that the anomaly committee was created to look into the alleged anomalies and make suitable corrections but here the anomaly committee created further anomalies rather than resolving them.
An amendment cannot be made in a manner detrimental to the rights of other employees. The said amendment not only blocked the promotional avenues of the Force personnel but also offended the guaranties enshrined in the Constitution of Islamic Republic of Pakistan, 1973 against the discrimination in service. Policies or Rules, the very foundation whereof lies on discrimination, unfairness and inequality obviously will result into despair and agony among the public in general and members of the Force in particular. In the backdrop of the above stated scenario of the Rules, the Anomaly Committee having realized the anomalies and absurdities, further amended the Rules in the year 201 6 according to which clog of 3, 5 & 7 years' service was prescribed for the ranks of Subedar Major, Subedar and Naib Subedar respectively on the expiry a which they will retire.
10.The petitioners herein have not questioned the amended rules on the ground that the same are arbitrary or invalid. Their grievance is that an amendment which affects the accrued rights is presumed to be prospective in operation unless made retrospective either expressly or by necessary intendment.
It is a cardinal principle of construction that every statue prima facie is prospective in nature unless it is expressly or by necessary implication made to have retrospective effect, however, where the new law is made to cure an acknowledged evil for the benefit of community as a whole, it is not necessary that express provision be made to make a statute retrospective. It is well settled that if a statute is curative of previous law, retrospective operation is generally intended. After going through the last amendment made in the rules in 2016, this Court came to the conclusion that life was injected to the erstwhile rules and the said rules were brought back to life, hence, the amendment in the rules by necessary implication is retrospective in nature and, therefore, it has to be read in continuation of amendment made in the rules for PATA and FATA Levies Force vide notifications dated 04.02.2013 and 08.04.201 3 respectively.
11.Another contention of learned counsels for the petitioners is that the Rules must be given prospective effect and the same should not be applied retrospectively to the disadvantage of petitioners. Apart from placing reliance on various case laws already noted above, learned counsels for the petitioners referred to Article 264 of the Constitution of Islamic Republic of Pakistan as well as Section 6 of the General Clauses Act, 1897. For the sake of convenience, Article 264 of the Constitution and Section 6 of the General Clauses Act are reproduced herein below.
264. Effect of repeal of laws. Where a law is repealed, or is deemed to have been repealed, by, under, or by virtue of the Constitution, the repeal shall not, except as otherwise provided in the Constitution,-- (a)revive anything not in force or existing at the time at which the repeal takes effect; (b)affect the previous operation of the law or anything duly done or suffered under the law; (c)affect any right, privilege, obligation or liability acquired, accrued or incurred under the law; (d)affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the law; or (e)affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment; 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 law had not been repealed.
Likewise, Section 6 of the General Clauses Act, 1897 lays down that:
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 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 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.
12.The above mentioned article of the Constitution and the provision of the General Clauses Act are of no help to the petitioners as Article 264(c) of the Constitution and Section 6 of the General Clauses Act, 1897 apply to repeal and not to amendment as before us is a case of amendment/ modification in the existing rules. ##T## According to the definition given in Oxford dictionary, repeal means to revoke or annul (a law or Act of parliament) whereas "modification" means a change, improvement or refinement. Since, what has been challenged through the instant petitions is "modification" in the existing rules, therefore, in our view the law which deals with "repeal" of an Act of the legislature cannot be applied to the present cases wherein the issue raised is related with modification in the existing rules.
13.Facts and circumstances of the cases relied upon by petitioners has no relevance with the present cases on the ground that in determining the nature of the amendment of rules or Act, regard must be had to the substance rather than to the form. The present is the case wherein the petitioners seek continuation of the rules which are person specific and if the desired writ is allowed, the remaining force will remain wilderness. Even otherwise, enactment of rules and amendments therein is the prerogative of the Government as observed by the august Supreme Court in its judgment titled "Dr. Alyas Qadeer Tahir vs. Secretary M/O. Education Islamabad and others" reported in 2014 SCMR 997. The relevant portion is reproduced herein below.
"For enactment of rules or amendment therein is the prerogative of the Government. It can enact and amend the rules according to the needs and exigencies of service. It is not individual but institutional interest or uplift which shapes it service structure".
14.In light of the forgoing discussion, we see no merits in the writ petition in hand as well as in the connected writ petitions therefore, the same are hereby dismissed.