WIQAR AHMAD. J. Through this single judgment, we intend to dispose of instant petition (Writ Petition No.4699-P/2022, titled, "Hussain Bashir and others Vs Government of Khyber Pakhtunkhwa etc") alongwith connected Writ Petition No.170-P/2023 titled, "Parvez Khan & others Vs Government of Khyber Pakhtunkhwa and others", Writ Petition No.230-P/2023, titled, "Shabbir Ahmad and others Versus Chief Secretary, Government of Khyber Pakhtunkhwa and others" and Writ Petition No.1089-P/2023, titled "Saddam and others Vs Government of Khyber Pakhtunkhwa and others". In all these petitions, respective petitioners have prayed for similar relief of their regularization as civil servant of province of Khyber Pakhtunkhwa, under The Khyber Pakhtunkhwa Employees of Transport Department (Regularization of Services) Act 2022 (hereinafter referred to as Regularization Act) as well as under provisions of the Khyber Pakhtunkhwa Employees of Transport Department (Regularization of Services) (Amendment) Act, 2022 herein after to be referred as the amending Act. It is case of petitioners that Section 4 of Regularization Act provides for regularization of services of employees of Peshawar Bus Terminal (hereinafter referred to as PBT) appointed on contract/fixed pay therefore, refusal of respondents in regularizing petitioners as employees of said directorate, have been illegal and same may be declared as such. With this grievance, petitioners have prayed, (for reference sake prayer of one of the petitions i.e Writ Petition No.4699-P/2022 is being reproduced):- "that this Hon'ble Court may graciously be pleased to:
1. Declare that petitioners have been duly regularized in the light of The Khyber Pakhtunkhwa Employees of Transport Department (regularization of services) Act 2022 and the inaction of the respondents to issue their appointment order is illegal, arbitrary and unlawful.
2. Direct the respondents to issue appointment orders to the petitioners in accordance with The Khyber Pakhtunkhwa Employees of Transport Department (regularization of services) Act 2022.
3. Direct the respondents to release the salaries of the petitioners which has been withheld since 01.06.2022.
4. Direct the respondents to treat the petitioner in accordance with law.
5. Any other better relief deemed just and equitable in the circumstances of the case may be kindly granted.
2. Respondents were put on notices who have filed their comments. In their comments they mainly asserted that both the Regularization Act and the amending Act have been introduced in the house by a private member and therefore its introduction in the house as well as conversion of the bills into statutes were in derogation of Article 115 of Constitution of Islamic Republic of Pakistan 1973 (hereinafter referred to as Constitution). They also contended that petitioners have never been appointed against posts of civil servants by any of the competent authorities in the Provincial Government but they had rather been appointed by Road Transport Board Khyber Pakhtunkhwa (hereinafter referred to as RTB) as contract and fixed pay employees of PBT, which as per their comments was an autonomous body established under Section 70 of the Motor Vehicle Ordinance 1965(hereinafter referred to as MVO 1965) and its employees could neither be treated nor regularized as civil servants.
3. Learned counsel for petitioners submitted during course of arguments that petitioners had been regularized under the Regularization Act and that under mandate of Legislature, the executive authorities were bound to issue their regularization orders but instead of regularizing petitioners, they have been placed in limbo as they were neither being paid by RTB nor was the Provincial Government owning them as their employees. Learned counsel also contended that law favours upholding constitutionality of validity of enactments and in case where two opinions with regard to Constitutionality of an enactment are possible the one in favour of validity of enactment is to be adopted. If vires of same law are challenged the burden always lies upon person making such challenge to show that same law is in violation of fundamental rights or provisions of Constitution, according to learned counsel. He placed reliance in this respect on the judgment of Hon'ble Supreme Court of Pakistan rendered in the case of "Messrs Sui Southern Gas Company Ltd. and others Vs Federation of Pakistan and others" reported as (2018 SCMR 802). He also placed reliance on judgment of Lahore High Court rendered in case of "Flying Cement Co. Ltd and others VS Government of Pakistan through Secretary Ministry of Water and Power and others" reported as PLD 2015 Lahore 146 and contended that it had been held by the Hon'ble Lahore High Court that Provincial Assembly was fully competent to legislate on the matter and there was no case of incompetence of legislature. He also contended that vires of law have not been questioned by any person, therefore same could not be struck down and grounds raised in comments could not be considered. He also added that since vires of statute in question have not been challenged by any aggrieved person and this Court is having no suo moto jurisdiction for deciding upon vires of the statute. For bolstering his submission the learned counsel placed reliance on judgment of Hon'ble Supreme Court of Pakistan given case of "Dr. Imran Khattak Vs Sofia Waqar Khattak" reported as (2014 SCMR 122).
4. Learned Advocate General on the other hand directly raised question as to validity of the very Regularization Act as well as the amending Act. He stated that both the bills in case in hand had been introduced by a private member of Provincial Assembly, without Provincial Government being on board; which bills have therefore been passed in violation of Article 115 of the Constitution. He also contended that services of these employees have never been needed to Provincial Government for any public service delivery. Learned Advocate General added that services of these employees were not even needed to RTB, which autonomous body was having its domain of regulating affairs of Peshawar Bus Terminal (PBT) but same had also been out sourced in 3rd annual meeting of RTB held on 1st September 2022. He added that despite the outsourcing, huge fleet of employees in various basic pay scales ranging from BPS-3 to BPS-18 had been recruited for unknown tasks. He added that if services of such employees were regularized then huge recurrent budget would be required for their salaries and other expenditures, which would therefore create a charge on Provincial Consolidated Fund. He also contended that such a bill could not have been introduced by a private member in Provincial Assembly.
5. We heard learned counsel for petitioners and learned Advocate General on behalf of respondents.
6. Perusal of record reveals that the case brought before this Court by petitioners and defence put by Provincial Government in its comments as well as the issues raised by learned Advocate General at bar, have directly confronted us with the following questions:-
1. Whether the Regularization Act and the amending Act have validly been enacted and same should be treated a valid laws, enforceable through issuance of writ under Article 199 of the Constitution?
2. Whether Regularization Act as well as subsequent amendment could be reconciled with the mandate of Articles 240 to 242 of the Constitution?
3. Whether petitioners have validly been appointed and they had been holding any post in civil service of the Province and whether their services could be treated regularized under the Regularization Act?
4. If questions framed above are answered in affirmative then can this Court hold and declare both the statutes to be invalid and ultra-vires in instant proceedings or it should be read down?
Discussion Question No.1. Bills for enactment of both the laws have admittedly been introduced by a private member of Provincial Assembly and not by Provincial Government. As per "Messrs Mustafa Impex, Karachi and others Vs Government of Pakistan through secretary Finance, Islamabad & others, reported as PLD 2016 SC 808 Federal Government means Federal Cabinet.
Article 90 of the Constitution of Islamic Republic of Pakistan 1973, which defines Federal Government is pari materia with Article 129 of the Constitution, which defines Provincial Government. Same is the case with Article 91 (Federal Cabinet) and Article 130 (Provincial Cabinet).
Both of same articles have been couched in similar languages. On the ratio of "Messrs Mustafa Impex case supra we can safely conclude that wherever a power is provided to be exercised by Provincial Government under constitution, same could only be exercised after it is authorized by the Provincial Cabinet. The bill prior to its introduction has neither been placed before cabinet nor approved by it for being tabled in the Provincial Assembly. Under Rule 8 sub rule (1)(a) of Rules of Business 1985, a bill approved by Cabinet is supposed to be introduced in the legislative house by Minister Incharge of the Department. It is an admitted fact that neither the bills had been placed before, nor approved by Provincial Cabinet before introduction in the house. There is also no doubt about the fact that the bills were carrying provisions of regularization of 616 (554+62) employees of PBT under service of Directorate of Transport & Mass Transit Department besides some other employees of another project i.e, TIS employees and same would therefore result in addition of a charge on Provincial Consolidated Fund. Article 115 of the Constitution of Islamic Republic of Pakistan 1973 provides that a money bill, or a Bill or amendment which if enacted and brought into operation would involve expenditure from Provincial Consolidated Fund or withdrawal from the Public Account of the province shall not be introduced or moved in the Provincial Assembly except by or with the consent of Provincial Government. The Provincial Government has neither introduced said bill nor has given consent for its introduction at any stage. Provincial Government has totally been out of picture till date. After passing of bill, same had been sent to the Executive for implementation and their refusal has resulted in filing of instant Constitution petition.
7. So far as a money bill or Bill or amendment having financial implications for Provincial Government are concerned, same have expressly been provided to be first approved by Provincial Government for its introduction and then with further approval of Provincial legislature, such bills may be passed and necessary expenditures may be authorized. Here the constitution has been aiming to provide a mechanism for authorization of spending from Provincial Consolidated Fund except charged expenditures. In this regard provisions made in Articles 118, 119 and most importantly Article 120 of the Constitution may also be considered. Provincial Consolidated Fund and Public Accounts of province have been provided for under Article 118 of the Constitution while Article 119 of Constitution have been dealing with custody of Provincial Consolidated Fund and Public Accounts of the province. Article 120 of the Constitution has given mandate of preparing and presenting annual provincial budget to the Provincial Government while Article 121 of Constitution have been providing for expenditures charged upon Provincial Consolidated Fund. Article 122 of the Constitution has provided that expenditures charged upon Provincial Consolidated Fund may be discussed but would not be submitted to vote of Provincial Assembly while other expenditures would be submitted to Provincial Assembly in the form of demands for grants and that assembly would have power to assent to, or to refuse to assent to such demands or to accept it subject to reduction. Sub Article 3 of Article 122 of the Constitution is again of utmost importance where it categorically prohibited Provincial Assembly not to entertain any demand for a grant unless same is recommended by the Provincial Government. Similar provisions have also been placed in case of Federal Government and Federal Consolidated fund under Articles 70 to 85 of the Constitution.
8. We also find in the above explained scheme of financial authorization, a concept of separation of powers between executive and legislative organs of state. Custody of Provincial Consolidated Fund no doubt lies with Provincial Assembly but the whole provincial assembly cannot assume to itself, the role of introducing money bills. Framers of Constitution have consciously put Article 115 of the Constitution with a clear purpose and object. It is for the executive branch of government to initially submit proposals for creating charge on provincial consolidated fund and same can only be deemed created when these proposals are approved by Provincial Assembly. Executive branch of state cannot assume the role of provincial legislature, on the other hand. The provincial assembly may supervise but cannot mould itself into the role of Provincial Executive, There is no ambiguity in the constitutional mechanism provided in this regard.
9. Coming back to the bills in hand, we see that same were having the effects of incurring financial expenditures and creating visible charge on Provincial kitty and same could not have been introduced in the provincial assembly without assent of Provincial Government i.e, the cabinet. This Court while giving its judgment in case of "Frontier Mines Owner Association Vs Khyber Pakhtunkhwa through Chief Government of Khyber Pakhtunkhwa and others (Writ Petition No.1769-P/2017) had declared Khyber Pakhtunkhwa Minerals Sector Governance Act,2016 as ultra- vires for the sole reason that introduction of bill had not been authorized by the Provincial cabinet.
Similarly in case of "Messrs Mustafa Im ex Karachi and others Vs Government of Pakistan through secretary Finance, Islamabad & others, reported as PLD 2016 SC 808, Hon'ble Supreme Court of Pakistan had also declared the fiscal notifications enhancing the levy of tax issued by the Secretary, Revenue Division or Minister as ultra vires mainly for reasons that same had not been authorized by Federal Cabinet before its enforcement. There remains no doubt that Regularization Act as well as the amending Act had not been validly enacted and same cannot be held to be valid laws.
Discussion on Question No.2. Articles 240 had been put in place for providing Constitutional framework for establishing and regulating service of Pakistan (Federal and Provincial service)
Article 240 is also reproduced herein for ready reference:-
240. Subject to the Constitution, the appointments to and the conditions of service of persons in the service of Pakistan shall be determined; a. In case of services of the Federation, posts in connection with the affairs of the Federation and All Pakistan Services, by or under Act of Majlis-e-Shoora (Parliament); and b. In the case of the services of a province and posts in connection with the affairs of a province, by or under Act of the Provincial Assembly.
Article 242 have also relevance in the instant matter which is also reproduced herein:-
242. (1) Majlis-e-Shoora (Parliament) in relation to the affairs of the Federation and the Provincial Assembly of a province in relation to the affairs of Federation shall be appointed by the President on the advice of the Prime Minister. IA. The Chairman of the Public Service Commission constituted in relation to the affairs of the Federation shall be appointed by the President on the advice of the Prime Minister.
1A. The Chairman of the Public Service Commission constituted in relation to affairs of a Province shall be appointed by the Governor on advice of the Chief Minister.
2. A public service commission shall perform such functions as may be prescribed by law."
Article 240 of the Constitution has provided that subject to Constitution appointments to and conditions of service of persons in service of Pakistan would be determined in case of service of Federation or post in connection with affairs of Federation, by or under Act of parliament; and in case of services of a province, post in connection with affairs of province by or under Act of the Provincial Assembly.
10. Here it is important to be noted that for enactment of a law dealing with appointments and regulating terms & conditions of service, there have to be existing posts. In case of the present petitioners it is averred in the comments of respondents that schedule of new expenditure has neither been submitted before Provincial Government (provincial cabinet) for consideration nor approved in the prescribed manner. So these posts, upon which petitioners are seeking appointment, did not exist in regular financial budget of province. Without existence or creation of posts in Directorate of Transport & Mass Transit Khyber Pakhtunkhwa, all these petitioners have been provided to be deemed as regularly appointed in said directorate under Section 4 of the Regularization Act. Then under the amendment Act it has further been provided that they would be deemed to have been appointed in the particular scales, i.e. BPS-18, BPS-17, BPS-16 and other lower scales, as civil servants on the given posts, on commencement of the Act. Through a proviso it has also been provided that those employees in RTB (who had been appointed under the Act) would be employees of Directorate of Transport and Mass Transit, Khyber Pakhtunkhwa and were declared as civil servants in the pay scales given therein.
11. It has been clarified in our discussions made in earlier part of this judgment that for creation of new regular budgetary posts demands for relevant grants has to be first approved by Provincial Cabinet and then recommended to the Provincial Assembly for approval under sub Article 3 of Article 120 of the Constitution. Article 115 of the Constitution also prohibits introducing or moving of a money bill or amendment which if enacted and brought into operation would involve expenditure from Provincial Consolidated Fund or withdrawal from Public Accounts of the Province except by or with the consent of Provincial Government. Same mandatory requirements have not been found fulfilling in case in hand therefore Regularization Act as well as the amending Act, have not been found validly introduced in the house. Same cannot be treated valid laws being passed in contravention of Article 115 of the Constitution. Article 240 states that "subject to Constitution" the appointment to and the conditions of service of persons in the service of Pakistan shall be determined in the case of services of a Province by or under Act of the Provincial Assembly therefore if an act is not passed according to constitution, it cannot be held valid for purpose of appointment to and regulating conditions of persons in the service of province. The regularization Act as well as the amending Act are not found in accordance with Article 115 of the Constitution and therefore same cannot be given effect. The posts had neither been existing in service of province nor created in accordance with Article 120 (3) of Constitution and therefore the regularization of petitioners could not be lawfully made on non-existing posts through private member bills. So the enactments are also not made in accordance with Article 240 of the Constitution. Question No.2 is accordingly resolved.
Discussion on Question No.3. Petitioners have been appointed as employees of Peshawar Bus Terminal by Regional Transport Board in various posts on temporary and contract basis where most of employees have been appointed on 15.04.2022 and 20.04.2022. Few of employees had also been appointed in the year 2021. Applications have not been invited from public by making advertisement in any newspaper. The appointment orders do not mention any recommendations being made by any selection committee established for the purpose. Infact no selection committee has been constituted and no fair process of selection had been conducted. Learned Advocate General was not having any record of these appointments. Simple Computer prints or proforma appointment orders (shown signed by a Director) had been handed over to petitioners for their appointments at Peshawar Bus Terminal. Copies of minutes of 3rd Annual meeting of Road Transport Board (RTB) has also been brought on record alongwith CM No.59-P/2023. Said CM is also containing a number of other orders being issued in month of April and May 2022. Besides, minute of 3rd meeting of Transport Board held on 1st September 2022 reveals that the board while being headed by Shah Muhammad Wazir, then Minister Transport & Mass Transit, Khyber Pakhtunkhwa (then Chairman Road Transport Board) had allowed auction and awarded contracts for regulating affairs of Peshawar Bus Terminal to Mr. Shah Nawaz and company (private contractors). Similarly shops and canteens for Peshawar Bus Terminal have also been outsourced.
So-much-so that cleanliness services and photocopiers shops etc have also been leased out but interestingly in same minutes of meeting of RTB, plea of regularization has been pressed in service again, where employees recruited in Peshawar Bus Terminal were also aimed to be assigned job of going for road checking and earning money for Road Transport Board. Even it is not clear that for what statutory function they would be deputed in Provincial Government on the desire of RTB in the whole province and on what account they would collect money from public at large and transporters. This could not be explained by learned counsel for petitioners that for what services these employees have been recruited and what duties would they perform. The manner in which they have been recruited by a public office holder, i.e the then Director of Road Transport Directorate is also begging for an inquiry but no such inquiry or action has been initiated either by Anti Corruption Establishment or the department itself, despite the fact that various authorities of Provincial Government have raised substantial questions in respect thereto; as is evident from comments and summary annexed therewith.
12. Coming back to the question for determination it is important to note that all petitioners had been appointed as employees of Peshawar Bus Terminal by the RTB, which cannot be deemed to be Provincial Government or a department of Provincial Government. It is in fact an autonomous body established under Section 70 of the Motor Vehicle Ordinance 1965. It is Road Transport Board which had given approval to hire 60 and 550 daily wages workers on need basis in its meetings held on 0109.2021 and 18.01.2022; in pursuance to which petitioners have been appointed in surreptitious manner, as discussed earlier. None of petitioners have been appointed on any sanctioned post reflected in regular budget of Government of Khyber Pakhtunkhwa. So-much-- so that schedule of new expenditures has not even been proposed to any forum, for creation of these posts under Government of Khyber Pakhtunkhwa till date. Posts under Government or its establishment should only be created in the interest of public i.e. People of the Province and posts cannot be created for mere benefit or giving employment to certain blue eyed persons of a Minister or similar other persons. Whatever may be the circumstances the fact remained that no sanctioned post had been existing where petitioners could be employed as government employees or civil servants. Their appointments had also not been made for any job of a civil service under Provincial Government, rather they had just been appointed as contract employees of Peshawar Bus Terminal. The Regularization Act also aimed at regularization of other employees earlier hired in the Directorate of Transport & Mass Transit Khyber Pakhtunkhwa, which employees have been categorized a TIS employees. None of "TIS" employees have brought any petition before this Court and petitioners before us are those employees who had been recruited in Peshawar Bus Terminal by RTB. Learned AAG stated at the bar that since the law had not been validly enacted, therefore, employees of TIS have also not been regularized under the Act and that their matter shall be dealt with by the government separately. So far their employment is concerned, we do not want to comment on their status any further because same may prejudice their case or interest if and when their case comes before Court. We at the moment leave their matter with the government and restrict our discussion to the extent of Constitutional validity of the Act. Whatever may be the situation mandate of Article 115 of the Constitution cannot be ignored.
Discussion on Question No.4. While dealing with this question we are mindful of fact that presumptions lies in favour of upholding constitutionality of statutory instruments. We are also conscious of the fact that vires of statute has not been specifically challenged by any aggrieved person by instituting a writ petition but it is also apparent that questions have been raised regarding validity of the statute by, none else than Provincial Government, in their comments. It is only a procedural matter where vires of a statute are questioned in writ petition or questions are raised in respect thereof in the comments or reply of respondents. Question raised before a court becomes a question for determination of the Court. When a Court is attending to a question raised in writ petition, it resolves the controversy raised before it. Same is situation where the question is raised before it in comments, reply or written statement. When a question is so raised in duly instituted proceedings then it becomes legal duty of the court to resolve such a question, regardless of the fact whether it has been raised by petitioners or respondents. The Code of Civil Procedure 1908 is applicable for regulating procedure in entertaining and disposing of writ petitions. Reliance in this regard may be placed on judgment of the Hon'ble Supreme Court of Pakistan rendered in case of "Muhammad Yar (dleceased) through_LRs and others Versus Muhammad Amin (deceased)_through L.Rs and others" reported as 2013 SCMR 464 as well as in case of "Muhammad Ovais and another Versus Federation of Pakistan through Ministry of Works & Housing Pakistan Islamabad and others" reported 2007 SCMR 1587, Order XIV Rule 1 CPC says that issues arises when a material proposition of fact or law is affirmed by the one party and denied by the other. It also says that each proposition affirmed by one party and denied by the other shall form the subject of a distinct issue. Then issues raised by both the parties and framed in manner provided in Order XIV Rule 1 CPC, has to be attended by Court while giving judgment. Such issues are supposed to be resolved in such judgment. Question raised in the written statements are also supposed to be reduced into issues which are points of determination of a civil Court.
Borrowing said analogy we find the issue raised in comments of respondents as direct questions for determination of this Court. We could not find any other way to avoid deciding upon constitutionality of the Acts as these were main apple of discard and were pivotal for resolving the entire controversy, raised in instant Constitutional petition. It was a case of its own nature where question of validity of an Act has been raised by Provincial Government and therefore the principle that vires of statute has to be specifically challenged by an aggrieved person would not apply in this case. Resolution of the questions regarding validity of the acts has not been in suo motto jurisdiction either but normal adjudicatory domain of this Court. Reliance of learned counsel for petitioner on the case of "Dr. Imran Khattak Vs Sofia Waqar Khattak" reported as (2014 SCMR 122) and his contention that this Court was not having suo moto jurisdiction for looking into vires of statute, is therefore, not holding any water. This Court is infact resolving a live issue raised before it through validly instituted proceedings, which is a normal mode of dispute resolution in adversarial proceedings. Powers of the Court in making decision on disputed question of law cannot be deemed limited. More so when it is a Constitutional Court established by and working under the Constitution. Another interpretation would mean that this Court would be following a line drawn for it by the Provincial Legislature, even in disregard of mandate of constitutional provisions. The oath of office of High Court judges on the other hand dictates that a Judge of High Court or Supreme Court would perform its function to the best of his ability in accordance with the Constitution. Then again he takes oath that he would be duty bound to defend and preserve Constitution of Islamic Republic of Pakistan 1973. There cannot be two views that Constitutional provisions have precedence over ordinary statutes.
13. We have also considered other alternative possibility of reading down the statutes so as to show deference to the statutory instruments and to avoid same being declared unconstitutional but could not found the option of reading down a viable one. Theory of reading down is a judicial principle implied for the purposed of interpretation where provision of two statutes are conflicting each other to an extent that one has to be read down so as to give reasonable and logical effect to the other statute. Same principle is also adopted when part of a statute is found in derogation of any provision of constitution and when rest of statute may be saved by reading down a part of it.
Situation in case in hand is of such a nature that both the statutes cannot be saved. In our above discussion, we have found that the statutes had not been introduced and passed according to Constitutional provision but in regard thereof. In such a situation the statues cannot be saved.
Flon'ble Supreme Court of India while giving its majority judgments in case of "Delhi Transport Corporation vs D.T.C. Mazdoor Congress". reported as AIR 1991 SC 101 has held:- "when language of provision of law was capable of only one construction and if according to that construction the provision contravenes a constitutional provision it must be struck down. A literal interpretation is not always the only interpretation of a provision in a statute and the court has to look at the setting in which the words are used and the circumstances in which the law came to be passed to decide whether there is something implicit behind the words actually used which would control the literal meaning of the words used."
The reason of not employing doctrine of reading down in said case, has also been elucidated in the judgment and same is also reproduced here, being relevant to the case in hand:- "On a proper consideration of the cases cited hereinbefore as well as the observations of Seervai in his book 'Constitutional Law of India' and also the meaning that has been given in the Australian Federal Constitutional Law by Coin Howard, it is clear and apparent that where any term has been used in the Act which per se seems to be without jurisdiction but can be read down in order to make it constitutionally valid by separating and excluding the part which is invalid or by interpreting the word in such a fashion in order to make it constitutionally valid and within jurisdiction of the legislature which passed the said enactment by reading down the provisions of the Act. This, however, does not under any circumstances mean that where the plain and literal meaning that follows from a bare reading of the provisions of the Act, Rule or Regulation that it confers arbitrary, uncanalised, unbridled, unrestricted power to terminate the services of a permanent employee without recording any reasons for the same and without adhering to the principles of natural justice and equality before the law as envisaged in Article 14 of the Constitution, cannot be read down to save the said provision from constitutional invalidity by bringing or adding words in the said legislation such as saying that it implies that reasons for the order of termination have to be recorded. In interpreting the provisions of n Act, it is not permissible where the plain language of the provision gives a clear and unambiguous meaning can be interpreted by reading down and presuming certain expressions in order to save it from constitutional invalidity. Therefore, on a consideration of the above decisions, it is impossible to hold by reading down the impugned provisions of Regulation 9(b) framed under s. 53 of the Delhi Road Transport Act, 1950 read with Delhi Road Transport (Amendment) Act, 1971 that the said provision does not confer arbitrary, unguided, unrestricted and uncanalised power without any guidelines on the authority to terminate the services of an employee without conforming to the principles of natural justice and equality as envisaged in Article 14 of the Constitution of India."
Said reasoning has also been found acceptable and adopted by Hon'ble Supreme Court of Pakistan while giving its judgment in case of "Province of Sindh through Chief Secretary and others Vs M.Q.M. through Deputy Convener and others" reported as PLD 2014 SC 531, wherein Para 34, it was held:- A comparison of un-amended section 13(1) of the Act would indicate that in the former there was a provision of prior notice and inviting objections from the people of the area before it could be declared to be urban or rural. In the amended provision, a proviso has been added to the effect that the Delimitation Officer/Deputy Commissioner during the process of delimitation could declare any area to be rural or otherwise without even a prior notice. The powers have been delegated without any guideline. This excessive and arbitrary delegation of power is not only vulnerable to misuse but has been so used and which is evident from the manner in which the appellate authority i.e. the Commissioner decided the appeals through nonspeaking orders. An argument was raised that the Court should make every effort to save the statute and this can be done by invoking the principle of 'reading in' or 'reading down. However in this context two principles have to be kept in view. First, that the object of 'reading down' is primarily to save the statute and in doing so the paramount question would be whether in the event of reading down, can the statute remain functional? Second, would the legislature have enacted the law, if that issue had been brought to its notice which is being agitated before the Court?
In said judgment Hon'ble apex Court has also held that:- "Law or provision of law not in conformity with the constitutional provisions, it can declare such law or provision of law as ultra vires of the Constitution."
While holding so Hon'ble Supreme Court of Pakistan have also made reliance upon earlier judgment in case of "Government of Baluchistan through additional chief secretary Vs Azizullah Memon and 16 others" "Al-Jehad Trust Versus Federation of Pakistan" reported as 1999 SCMR 1379. Hon'ble Supreme Court of Pakistan while giving its judgment in case of "Aam Log Itehad and another Versus The Election Commission of Pakistan and others" reported as PLD 2022 SC 39, has also held that when a Court of law finds constitutional defect or violation in a statute or other legal instrument it has a whole array of remedies available to it. It was further explained that such remedies included striking down the entire statute as well as the tools of fine tuning such provisions by employing principle of reading in and reading down. But the scope of reading in and reading down should be kept limited to those cases where it may be remedied by resorting to harmonious interpretation. Similarly in case of "Province of Punjab through Secretary Agriculture Department Lahore Vs Saleem ljaz and others" 2023 SCMR 774, Hon'ble Supreme Court of Pakistan has also held that rule of reading down was a recognized rule of statutory interpretation so as to construe two conflicting statutes harmonious. Hon'ble Apex Court also held that such rule of reading down should be used for a limited purpose of making a particular provision workable and to bring it in harmony with other provisions of the statues. We are left with no other option but to hold and declare both the Regularization Act and the amending Act to be in violation of constitutional provisions. The writ cannot be issued for its enforcement by extending the relief as prayed for in instant petition as well as connected writ petitions. This Court while giving its earlier judgment in case of "Wali Muhammad Versus Government of West Pakistan and 3 others" (PLD 1970 Peshawar 119) has held that when a Court finds a statute in conflict with Constitution it does not annul or repeal a statute but simply refuse to recognize it and determine rights of parties in a manner if such statute had no application. The Court cannot simply ignore the statute but has to render a decision one way or others as its validity has to be discerned on the touchstone of Constitution. Besides, state of law on the subject has also been much developed subsequently.
Hon'ble Supreme Court of Pakistan while giving its judgment in case of "Hadayat Ullah Vs Federation of Pakistan" reported as (2022 SCMR 1691) has dealt with question of arbitrary appointments and its regularization through legislative instrument and discussed question of proper appointment and its regularization through various statutory instruments as follows:-
21. It may be noticed from the dictum cited that Article 240 is simply the bedrock on which appointments to the service of Pakistan are to be made. It is then the responsibility of the appointing authorities to ensure that appointments are made strictly in accordance with the relevant laws (including the applicable rules and regulations) that incorporate the principles of merit (selection through a competitive process), non-discrimination, transparency and fairness. Whilst the cases just cited were primarily concerned with appointments to the senior most posts in an organization, in our considered view the same principles apply to appointments on any post in public service since an organization can only best serve the people of Pakistan when all its employees are qualified individuals who are selected through a fair and transparent process. In the absence of dedicated supporting staff, no senior officer sitting at the helm of affairs can succeed in guiding the nation towards prosperity. However, it is significant that these cherished principles are not merely fruit of judge made law but they also emanate from the fundamental rights enshrined in the Constitution, especially Article 18 (freedom of trade, business or profession) wherefor they occupy an immutable character. This is confirmed by the Court in "Mushtaq Ahmad Mohal v. Honourable Lahore High Court" (1997 SCMR 1043): "16. ...It may be observed that even otherwise, the Constitutional requirement, inter alia, enshrined in Article 18 of the Constitution... includes the right of a citizen to compete and participate for appointment to a post in any Federal or a Provincial Government department or an attached department or autonomous bodies/ corporations etc. on the basis of open competition, which right he cannot exercise unless the process of appointment is transparent, fair, just and free from any complaint as to its transparency and fairness..."
The above enunciation of law reiterates principles laid down by the Court in "Munawar Khan v.
Niaz Muhammad (1993 SCMR 1287) at para 6 and Abdul Jabbar Memon: In re (1996 SCMR 1349).
However, the material on record in the present case, furnished by the relevant Ministries/ Divisions, establishes that these principles of merit, non-discrimination, transparency and fairness were not followed in the vast majority of the initial appointments (from 01.11.1993 to 30.11.1996).
Therefore, such defective appointments suffered from illegality and were void.
In Para 22 of said judgment it has been held as under:-
22. For the initial appointments of beneficiary employees that were illegal from the outset, it was not within the competence of Parliament to enact laws that firstly, bypassed the settled requirements enshrined in the Constitution for joining public employment and secondly, protected these unlawful appointments without curing their respective defects. Such contravention can be seen in section 4 of the Act where all beneficiary employees were ordered to be regularized (either on the same scale or on one-step higher scale) within a certain timeframe without complying any codal formalities and without regard to the nature of the post that they occupied prior to their dismissal, removal or termination from service. A few examples of the types of employees who were required to be regularized under the Act are listed below for reference: i. Employees appointed on permanent, temporary, regular or ad hoc basis or otherwise against a regular or temporary post [section 4(a)]; ii. Employees appointed on contract basis against a regular or temporary post [section 4(b); and iii. Employees appointed as any type of trainee [section 4(d)].
Similarly in case reported as (2013 SCMR 1752), "Contempt Proceedings against Chief Secretary, Sindh and others in Criminal Original Petition No. 89 of 2011, the august Supreme Court of Pakistan has also held the statutory instrument enacted for carving out exception to mechanism provided for regulating civil service should not be sanctified when found in violation of provision of the Constitution. In this respect Paras 118 to 121 of said judgment is also worth perusal which is reproduced herein for ready reference:-
120. The impugned Ordinance and Act of 2011 validating absorption by the Sindh Government are ultra vires of Articles 240 and 242 of the Constitution, as these instruments, in the first place, have been promulgated without amending the Act of 1973, and the rules framed there-under.
Moreover, the impugned validation instruments are multiple legislation and do not provide mechanism by which absorption of different employees took place in complete disregard of the parent statute and the rules framed there under. By these impugned validating instruments restriction placed by Articles 240 and 242 of the Constitution has been done away. The validating instruments allowed absorption of a non Civil Servant conferring on him status of a Civil Servant and likewise absorption of a Civil Servant from non-cadre post to cadre post without undertaking the competitive process under the recruitment rules. We may further observe that the Provincial Assembly can promulgate law relating to service matters pursuant to the parameters defined under Articles 240 and 242 of the Constitution read with Act of 1973 but, in no way, the Provincial Assembly can introduce any validation Act in the nature of multiple or parallel legislation on the subject of service law.
121. By the impugned legislations 'absorption' of an employee in ex-cadre group would deprive the seniority and progression of career of meritorious civil servants. A substantial number of unfit and unmeritorious officers and beneficiaries have been absorbed in the important groups, services, positions with the help of authorities and such legislations allow this to continue. The absorption, by way of impugned instruments, would practically cause removal of constitutional and legal differentiations that exist between various cadres, posts and services. Moreover, the culture of patronage will intensify the activity of bringing more politicization, inefficiency and corruption in the provincial services. The Civil Servants Act and Rules framed provide transparency in appointments, which would disappear and the employees who could not get in service through competitive process may also be obliged to look for a political mentor instead of relying on merits in order to protect their careers. We may also observe here that the absorption under the aforesaid impugned instruments is not only confined to non-civil servants to civil servants but through these impugned instruments non-civil servants, who were serving on non-cadre posts, have been transferred and absorbed to cadre posts, the pre-requisite of which is competitive process through Public Service Commission or by other mode provided in the relevant recruitment rules. Law of such nature which is violative of the recruitment rules will encourage corruption and bad governance and the public at large will loose confidence in the officials who are being absorbed under the garb of the aforesaid impugned instruments.
Hon'ble Supreme Court of Pakistan while giving its judgment in case of "Shahzad Shahmir Vs Government of Sindh through Chief Secreta as 2021 SCMR 824) has also held that: Be that as it may, the very appointments in BPS-17, as per law, made under Article 242 of the Constitution, have to be made by the Sindh Public Service Commission (SPSC) and no contract employment could have been made on such posts. Thus, the appointments of the petitioners, as observed by the High Court of Sindh, Karachi (the High Court) in its impugned order, were on their very face illegal and, therefore, in our view, no right whatsoever existed with the petitioners to continue with the employment, more so, when the very contract appointments were not in accordance with law.
As stated earlier when constitutional provisions and statute are in conflict with each other, then Constitutional provision has to be given preference. Further reliance in this respect may also be placed on the judgment of Hon'ble Supreme Court of Pakistan given in case of "Government of Khyber Pakhtunkhwa through Secretary Home Department & others Versus Vali Khan and others" reported as PLD 2022 Supreme Court 253. Question No.4 is therefore, resolved with explanation that in normal cases a Court may declare a law to be ultra vires only when its vires are challenged by an aggrieved person but case in hand may be treated as exception to said rule for the reasons that question regarding validity of Act have been raised by Provincial Government in the comments and same has therefore, emerged as unavoidable question for determination of this Court. In such cases, the Constitutional Court may look into and determine validity of a statute and may also decide whether or not such a statute may be given effect. In case of express conflict with Constitutional provisions and after finding such declaration unavoidable, a Constitutional Court may declare such act to be ultra vires or invalid.
14. After resolving the Questions in the manner stated hereinabove, we hold and declare that: a. Khyber Pakhtunkhwa Employees of Transport Department (Regularization of Services) Act 2022 and subsequent amended Act have not been validly introduced by or with permission of Provincial Cabinet and both laws have therefore been enacted in violation of mandate of Article 115 of Constitution of Islamic Republic of Pakistan 1973, and same being derogative of Articles 240 and 242 of the Constitution, are not held to have been validly enacted laws. b. The laws made in violation Constitutional provisions cannot be made basis for issuance of the writ as prayed for in instant constitutional petition and same is accordingly dismissed. c. We also hold and declare that initial appointments of petitioners had not been made in accordance with law. Their appointments had been illegal from the very inception.