JAWAD HASSAN, J. Almost a decade ago in April, 2010, the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution" ) was amended eightieth time (the "Eighteenth/18th Amendment" ) in which Concurrent List was omitted as a result whereof the Provinces become autonomous. Before that both the Federal and Provincial Governments could legislate on the subjects enumerated in Concurrent List provided under Fourth Schedule of the Constitution but now the 18th Amendment has provided the Provinces strong legislative autonomy in order to form a more perfect federation. This judgme nt will discuss in detail the Provincial Autonomy while discussing its scope/powers regarding adoption and giving effect to a federal notification by a Provincial Government over a matter , which otherwise falls within the legislative competence of the Province.
2. Through this Intra Court Appeal filed under Section 3 of the Law Reforms Ordin ance, 1972 (the "Ordinance" ), the Appellant has challenged the validity of impugned judgment dated 06.05.2014 passed in Writ Petition No.31626 of 2013 by the learned Single Judge (the "Impugned Judgment" ) whereby the constitutional petition filed by the Appellant was dismissed.
A. Gist of the Issues
3. The Appellant retired from the service of Government of Punjab on 09.08.2013 after that he was granted his pensionary benefits. Later on, the Federal Government amended Revised Leave Rules 1980 by enhancing the period for leave preparatory to retirement from 180 days to 365 days with effect from 01.07.2012. The Respondent No.1/Secretary Finance Department also adopted aforesaid notification on 09.09.2013 by giving it effect from 01.09.2013. The grievance of the Appellant is that since the Provincial Governmen t/Respondent No.1 had adopted the Notification of Federal Government regarding enhancement of leave preparatory to retirement period therefore, the Provincial Government/Respondent No.1 has to give effect to the said Notification from the same date as made by the Federal Government had done i.e. 01.07.2012 and not from 01.09.2013. The Appellant challenged Notification dated 01.09.2013 (the "Notification") issued by the Provincial Government/Respondent No.1 in the writ petition which was dismissed, hence this appeal.
B. Nub of the Matter
4. The nub of the matter in this case is that whether it was obligatory upon the Provincial Government that while adopting the Notification of Federal Government on 09.09.2013, it should have given it effect from 01.01.2012, the date when the Federal Government has given it effect and no choice was available with the Provincial Government to effectuate the same w .e.f. 01.09.2013.
C. Grounds taken by Appellant
5. Mian Abdul Qudoos, ASC, contended that the impugned judgment is against law and facts; that the impugned judgment is the result of mis-reading and non-reading of record; that the learned Single Judge has ignored the orders of Ombudsman, Punjab dated 04.07.2013 and 29.11.2013 whereby directions were issued to the Respondent No.1 to review its rules; that the Single Judge has also failed to appreciate the fact with regard to adoption of Notification which should have done as a whole and there should be no bifurcation or choice at all because the Provincial Government always adopted Notification of the Federal Government verbatim as there is no reason for it to deviate from this practice; that the consistent practice of a certain thing attained the status of force of law which cannot be ignored; that the impugned judgment is contrary to the constitutional rights; that the impugned judgment is a non-speaking judgment and it is based on surmises and conjectures hence it is liable to be set-aside.
D. Arguments of Law Officer
6. Barrister Hassan Khalid Ranjha, Assistant Advocate General, on the other hand, controverted the arguments advanced by the learned counsel for the Appellant and prayed for the dismissal of Appeal on the ground that the learned Single Judge has rightly passed the impugned judgment; that there is no requirement in law that the Provincial Government must give effect to a policy in exact similar manner as adopted by the Federal Government therefore, the Respondent No.1 is fully competent to decide the matter in which it is going to adopt such a policy and thus the Appeal is liable to be dismissed.
7. We have heard the arguments and perused the record.
E. Moot Points
8. The crux of the arguments of both the parties leads to the following moot points which are: i. Whether it is obligatory upon the Provincial Government wile adopting a policy notification of the federal government regarding a matter , which is within its competence and domain after Eighteenth Constitutional Amendment, to follow and give effect the same from the very date as given by Federal Government? ii. Whether the judgment of Ombudsman is binding on the Court?
Moot Point No.1
9. Article 7 of the Constitution defines that 'the state' means the Federal Government, [Majlis-e-Shoora (Parliament)], a Provincial Government, a Provincial Assembly , and such local or other authorities in Pakistan as are by law empowered to impose any tax or cess. Primarily the governments in Pakistan are divided into "Federal Government" and "Provincial Government" . The Federal Government functions under Articles 90 and 97 read with Article 99 under which Federal Rules of Business, 1973 are made whereas the Provincial Government functions under Articles 129 read with Article 137 and under Article 139 conduct of business is made alongwith Punjab Government Rules of Business, 2011. The law made by either Federal Govern ment or Provincial Government originates through legislative procedure provided under Article 70 of the Constitution. After the 18th Amendment made to the Constitution in the year 2010, the concept of Provincial Autonomy stands heightened and accentuated in the context of the Federation of Pakist an and what was previously not within the domain of the federating units and was not do-able for the Provinces now falls within the ambit and purview of their executive authority and legislative competence.
10. The concept of decentralization of power and functions has gained currency throughout the world and political philosophers have advocated merits of sharing responsibilities with all the component units of the state instead of concentration and centralization of all the powers within the Federal Government in order to empower the Provinces to legislate laws and execute policies in accordance with the requirements and needs of their respective areas and to secure effective and efficient delivery of services for the citizens residing therein in accordance with their particular ground realities.
11. The term Autonomy is derivative of Autonomous, which is defined in Black' s Law Dictionary 1 1th Edition as:- "1. The right of self-government.
2. A self-governing nation.
3. An individual' s capacity for self-determination."
In Advanced Law Lexicon 4th Edition the term "autonomous" is defined as "Possessing self-government." whereas the term 'autonomy' is defined as "The quality or state of being autonomous, the power or right of self- government; the political independence of a nation".
12. Provincial Autonomy means two things. First, the Provincial Governments are wholly , responsible to the provincial legislatures and secondly , provinces, are free from outside control and interference in a large number of matters. There are two lists of powers, federal and concurrent lists. The residuary powers are vested in the Provinces. Though the Constitution did not enumerate separate powers for Provinces but gave them the powers to legislate on residuary subjects, which are not enlisted either in the federal list or concurrent list yet the central government is supposed to delegate power and authority to the Provincial Gove rnments as their agents which could either be conditional or unconditi onal. In "PUNJAB HIGHER EDUCA TION COM MISSION Versus Dr. AURANGZEB ALAMGIR and others" (PLD 2017 Lahore 489), learned Division Bench of this Court discussed the legislative domain of federal and Provincial Governments and held that "18th constitutional amendment by removing the Concurrent Legislative list, gives more legislative space to the Province and boosts provincial autonomy . With the removal of the common legislative areas, provincial autonomy and the Federal Principle stand accentuated. The two governments now legislate in their own domain to advance the social and political realities of the State. The exclusivity of legislative power under Article 142 provides a clear divide of legislative subjects between the two governments. This horizontal sharing of legislative power provides that the legislative competence, in any matter , is either with the Federation or the Province".
13. The Hon'ble Supreme of Pakistan in "GOVERNMENT OF SINDH etc. Versus DR. NADEEM RIZVI etc"( 2020 SCMR 1) dilated upon the issue of Provincial Autonomy and hold that "We are conscious of the fact that there is a balance of powers between the Federation and the Provinces as spelt by the Constitution of the Islamic Republic of Pakistan, 1973 which grants provincial autonomy in specified areas . The provincial autonomy granted by the Constitution deserves the highest respect and is sacrosanct. The principle and spirit of federalism and provincial autonomy has been reinforced and made watertight and sacrosanct, through the 18th Amendment, adopted by the Parliament with unanimity . The basic feature, rather the spirit and soul of federalism, is the distribution of legislative powers between the federation and the province, with its core being provincial autonomy .
Interpretation of constitutional provisions should thus be in consonance with the said principle, rather than in a manner that encroaches upon the space reserved for the provinces. The scope of an entry in the FLL should not be expanded or enlarged in a manner that infringes provincial autonomy . It is also to be kept in mind that the nature and character of the Constitution carries great significance and is of utmost relevance in construing the legislative entries and determining the scope and extent of the subjects assigned by it to the Federation and the Provinces. The Court should therefore avoid an expansive construction of a federal legislative power which renders redundant or nugatory the legislative field, power and authority assigned to the provinces, either expressly or as residuary , thus undermining provincial autonomy . Allowing the federation to assume power and authority under such a rubric would, thus, hardly leave anything for the provincial government to undertake, discharge, or fulfil, jeopardizing this nation's collective odyssey towards greater provincial autonomy , as witnessed in the unanimous approval of the 18th Amendment"
14. In "Messrs SUI SOUTHERN GAS COMP ANY LTD. and others Versus FEDERA TION OF PAKIST AN and others" (2018 SCMR 802) wherein it was held that "The Islamic Republic of Pakistan is a democratic State (Federation) with its Federating Units (Provinces) and the Constitution recognizes and creates a balance between the authority of the Federatio n and the autonomy of the Provinces, which recognition has been given an iron cladding by virtue of the Eighteenth Amendment, passed vide the Constitution (Eighteenth Amendment) Act, 2010. This Amendment to the Constitution has inter alia introduced a drastic enhancement in the legislative authority of the Provinces by deleting the Concurrent Legislative List (CLL), whereby previously both the Parliament and the Provincial legislatures could legislate on the subjects enumerated therein. The omission of the CLL, left only a single Legislative List (CLL) in the Constitution which exclusively list subjects that can be legislated upon by the Parliament alone, and by virtue of Article 142(c) of the Constitution any subject not enumerated in these two lists would subject to the Constitution, be within the legislative competence of the Provinces"
15. In relation to the service matters, the employees of Federal Government are regulated under the Civil Servants Act, 1973 while the employees of Provincial Government are regulated under the Punjab Civil Servant Act, 1974.
For the service of Pakistan, the Federal Government can make laws under Article 240(a) of the Constitution while sub-section (b) of Article 240 empowers the Provincial Government to make laws for the service of the province.
16. The sole ground agitated by Mian Abdul Qudoos, ASC for the Appellant before us is that he should be given the benefit of a Notification w.e.f. 01.07.2012 when the Federal Government by amending Revised Leave Rules, 1980 enhanced period of leave preparatory to retirement from 180 days to 365 days. Although, the Provincial Government adopted and extended the same relief to the employees of the Province yet the Appellant is persistent that the Provincial Government has to give effect such Notification w.e.f. 01.07.2 012 instead of 01.09.2013. The said ground of the Appellant is not valid because the Appellant performed his duties and retired from the service in connection with the affairs of a Province and his services were regulated under the Punjab Civil Servant Act, 1974, preamble of which clearly states that an Act to regulate the appointment to, and the terms and conditions of service in respect of the services of the Province of the Punjab. The Civil Servants Act, 1973 was enacted on 29.09.1973 and Punjab Civil Servants act, 1974 was enacted on 04.06.1974 therefore, the argument of learned counsel for the Appellant to implement the Notification of the federal government in the province is not tenable because Provincial law has its own mechanism, rules and regulations and the amendments therein is to be made by the provinces through the Provincial Assembly . Under the Punjab Government Rules of Business, 2011, the Services & General Administration Department of the Government of the Punjab has the mandate to administer Punjab Civil Servants Act, 1973 and make rules therein hence, Notification in question by the Appellant was rightly passed by the Provincial Assembly . Furthermore, after 18th Amendment, in set up of service matters, the Constitution has drawn a line between the services of Pakistan with federal and provinces hence they are distinguished from each other in respect of making laws.
17. Moreover , in light of judgment of Hon'ble Supreme Court cited as "MUZAFF AR KHAN and others Versus GOVERNMENT OF PAKIST AN and others" (2013 SCMR 304), the Provincial Assembly becomes absolute once the domain of legislation falls with the provinces after abolishment of concurrent list and in the issue of service, each province has a separate laws dealing with it because under Article 240 of the Constitution, each province have similar legislation like of Federal Government' s Civil Servants Act, 1973, Sindh Civil Services Act, 1973, Khyber Pakhtunkhwa Civil Servants Act, 1973 and the Balochistan Civil Servants Act, 1974 because the words used under Article 240 of the Constitution is very clear on the appointment and conditions to service of Pakistan and the same shall be determined by the federation or provinces in connection with affairs of provinces under the act of the Provincial Assembly .
18. It is to be noted that the Ministry of Finance and Revenue (Finance Division),functions under the Rules of Business, 1973, by exercising powers conferred under Article 25 of the Civil Servants Act, 1973, amended its Revised Leave Rules, 1980 on 29.08.2012. The effect and benefit of aforesaid amendment was applicable only to civil servants' function under the Federal Government.
19. On the other hand, the Finance Department, Government of Punjab, which functions under the Punjab Government Rules of Business, 2011 exercised the powers conferred under Section 23 of the Punjab Civil Servant Act, 1974, amended the Revised Leave Rules, 1981 and by adopting the same relief, as given by the Federal Government, extended the same benefit to the employees.
20. From the above discussion, it is crystal clear that matter of service of person s serving at posts in connection with the affairs of the Province including their terms and conditions, which of course, include pensionary matters, falls within the embrace of authority of the Province because under the concept of Provincial Autonomy , the Province is free from outside control and interference and also is well within its rights to follow and purse any scheme/Notification or any policy from any date, as it deems appropriate. Furtherm ore, the Eighteenth Amendment to the Constitution has introduced a drastic enhancement in the legislative authority of the Provinces by deleting the Concurrent Legislative List (CLL), whereby previously both the Parliament and the Provincial legislatures could legislate on the subjects enumerated therein. The omission of the CLL, left only a single Legislative List (CLL) in the Constitution which exclusively list subjects that can be legislated upon by the Parliament alone, and by virtue of Article 142(c) of the Constitution any subject not enumerated in these two lists would subject to the Constitution, be within the legislative competence of the Provinces". The learned Single Judge in Chamber has rightly held that "the Federal Government has given effect to its policy from 01.07.2012 does not mean that the Provincial Government has to do the same. In this case, the Provincial Government had adopted the notification after more than one year.
Therefore, there is no justifiable reason to compel the Provincial Government to give effect to the notification from 01.07.2012".
21. Upshot of above discussion is that after omission of concurrent list from the fourth schedule of the Constitution post Eighteenth Amendment, now Provinces have exclusive domain and legislative competence to legislate and regulate upon all those matters, which were earlier part of that list. It is therefore within the exclusive domain of Provincial Government to adopt a policy/Notification of the federal government, which falls within its legislative competence and made its applicability within the province from that date, which it finds appropriate and mere adopting such Notification of the federal government does not made the same ipso facto applicable in entirety unless directed so by the Provincial Government as it is within its competence to limit or extend such applicability and it is not obligated upon it to adopt a policy on the same date as made applicable by the Federal Government.
Moot Point No.2
22. Another objection was taken by learned counsel for the Appellant that the learned Single Judge has ignored the orders of Ombudsman. Suffice it to say that the findings of Mohtasib/Ombudsman are of recommendatory nature and not a judgment/decision and such performance of quasi-judicial functions by itself does not convert an Authority into Court. In order to constitute a Court in stricto senso, it should have power to give a decision or a definite judgment, which has finality and authoritativeness therefore, office of Wafaqi Mohtasib is neither a Court nor Judicial Tribunal within the scope of Article 175 of the Constitution. Reliance is placed on "SHAF AATULLAH QURESHI Versus FEDERA TION OF PAKIST AN" (PLD 2001 SC 142) in which it has held that "the question of determination as to which forum is a Court and which is not a Court, is mainly dependant on the manner and method in which proceedings are regulated before it. This process naturally embraces the procedural laws, which bind it in its functions and determine its course of action. The evidence being the deciding factor in all kinds of disputes, it is also pertinent to see whether such forum follows the Evidence Act or not. It may be mentioned here that the Evidence Act by virtue of the definition describes such forums as 'Court' which follow its tenets. But it is only relevant for the purpose of the Evidence Act. Ordinarily the decision of a dispute by an arbitrator and a conciliatory body etc. may be termed as decision by a Court but that is not so because such forums are not bound by any law with regard to procedure and evidence, as such, they only settle the dispute but do not administer justice according to law, and are not, therefore, Courts. Hence, the Courts are such organs of the State which follow legally prescribed scientific methodology as to procedure and eviden ce in arriving at just and fail conclusions."
23. Furthermore in "Dr. ZAHID JAVED Versus Dr. TAHIR RIAZ CHAUDHAR Y and others" (PLD 2016 SC 637), the functions of the Ombudsman have been explained in the words that "likewise, on the statutory plane, the office of the Ombudsman is essentially an executive function, which (Ombudsman) serves as a statutory check on the Government to so as to curb instances of maladministration. In this regard the enunciation of law in the judgment reported as Federation of Pakistan through Secretary , Establishment Division, Government of Pakistan, Islamabad v. Muhammad Tariq Pirzada and others (1999 SCMR 2189 ) to the extent that the President exercised quasi-judicial powers while deciding representations under the Ombudsman law, does not seem to be the correct exposition of law for the reason that the very functions of the Ombudsman are not of a judicial nature, since the Ombudsman simply holds a probe into maladministration by a Government agency and makes recommendations which is very different from the orders a judicial officer passes, and from those recommendation(s), a representation lies to the President" . So this argument of the Appellant is also turned down being weightless.
F. Conclusion
24. Learned counsel for the Appellant has failed to convince us with cogent reasons to set aside the impugned order and to show any illegality or pervers ity in the same which warrants any interfe rence by us. We agree with the impugned order as the same has been passed in accordance with.
25. In view of above, the instant appeal, being devoid of any merit, is hereby dismissed .