' This judgment shall dispose of two. Constitutional petitions namely, Writ Petition No,1427 of 1997 (Maqsood Ahmad Toor and others v The Federation of Pakistan and another) and Writ Petition No,1064 of 1999 (Saghir Ahmad and others v. The Federation of Pakistan and another) involving common questions of law and facts.
2. Briefly the facts giving rise to these petitions are that by virtue of the Pakistan Postal Services Corporation Ordinance, 1992 (XIII of 1992), the Pakistan Post Office Department was converted into a Corporation. Consequently, all employees of the Post Office Department, except officers of the Postal Group were transferred' to and became employees of the Pakistan Postal Services Corporation. The officers of the Pakistan Postal Group Services in the Pakistan Post Office Department who were also transferred to the Corporation were to retain their links with such group as envisaged in section 34 of the said. Ordinance. The, said sections .5 and 34 of the aforesaid Ordinance are read as under:- "5. Transfer of departmental employees.--(1) Notwithstanding anything contained in any law, contract or agreement, or in the conditions of service on the establishment of the Corporation, all employees of Pakistan Post Office Department shall, subject to subsection (1) of section 34, stand transferred to, and become employees of, the Corporation on the saw terms and conditions to which they were entitled immediately before such transfer, provided that the Corporation shall be competent to take disciplinary action against any such employee.
(2) The terms and conditions of service of any such person as is referred to in subsection (1) shall not be varied by the Corporation to his disadvantage.
(3) Notwithstanding anything contained in any law for the time being in force, no person who stands transferred to the Corporation under subsection (1) shall be entitled to any compensation because of such transfer."
"34. Appointment of officers, advisors and servants.----(1) The Corporation may, from time to time, appoint in accordance with rules, such officers and servants as it may consider necessary for the performance of its functions: ' Provided that the Corporation may appoint advisors, consultants and experts on such terms and conditions as it may deem fit: ' Provided further that all officers of the Postal Group serving in the Pakistan Post Office Department or in any other organisation on the commencement of this Ordinance and all officers of the Postal Group recruited after such commencement shall stand transferred on permanent basis to, and serve in, the Corporation on such terms and conditions as the Federal Government may, in consultation with the Corporation, determine but shall not be entitled to any deputation allowance: ' Provided further that where the Federal Government so desires any officer of the Postal Group may be withdrawn from the service of the Corporation and posted elsewhere in accordance with the provisions of Civil Servants Act, 1973 (LXXI of 1973): ' Provided also that the Federal Government may, in relation to any such officer, delegate such administrative, disciplinary and financial powers to the Corporation as the Federal Government may deem fit.
(2) Subject to the rules, the Corporation shall be competent to take disciplinary action against its officers and other employees.
(3) Service under the Corporation is declared to be service of Pakistan and every person holding a post under the Corporation, not being a person who is on deputation to the Corporation, shall be deemed to be a civil servant for the purposes of the Service Tribunals Act, 1973 (LXX of 1973)."
' The Ordinance XIV of 1992 was kept alive through successive Ordinances. The last Ordinance in this context, namely the Pakistan Postal Services Corporation Ordinance, 1996 (XXVII of 1996), was issued on the 7th March, 1996, and expired on the 6th July, 1996, whereafter it was not re promulgated.
3. On the expiry of the aforesaid Ordinance, the President of Pakistan by a Notification, dated 4-7- 1996 ordered reversion of the Pakistan Postal Services Corporation into its status quo ante as it existed on the 31st July, 1992, viz. Pakistan Post Office Department, as an attached department of the Communication Division w,e,f, 5-7-1996. Through a similar Notification, dated 26-8-1996, the President of Pakistan ordered that Pakistan Postal Services Corporation shall'stand dissolved from the 6th July, 1996. The said Notification contained the following two directions which are more relevant for the purpose of present controversy:-- "3. All employees of the Corporation, including members of the Postal Group, but other than employees appointed on contract or daily wages, whether transferred to the Corporation from the Pakistan Post Office Department on establishment of the Corporation or recruited by the Corporation after such establishment shall stand reverted to the Pakistan Post Office Department in their original or equivalent posts or as the Federal Government may, by notification, appoint any of such employees in any other department, office or post.
4 The employees transferred to the Pakistan Post Office Department under sub-para. (3) shall be civil servants and'be governed under the Civil Servants Act, 1973 (LXXI Of 1973) and their services, under the Corporation shall deemed to be civil services."
4. In the meanwhile, the Federal Government Employees Housing Foundation floated a scheme for allotment of residential plots amongst various categories of persons who fulfilled the eligibility criteria declared, by the Foundation. The relevant provisions of such eligibility criteria relating to the present controversy are contained in paragraph 5 of the brochure issued by the Federal Government Employees Housing Federation (the respondent No,2) and are reproduced below:-- "(a) Judges of the Supreme Court and Federal Shariat Court and Federal Government employees who have been declared as civil servants as defined under Civil Servants Act, 1973 (including civilian employees paid from defence estimates) and were in service on 1-4-1996.
(b) Employees of autonomous/semi-autonomous organizations and public sector corporation under the administrative control of the Federal Government (including employees serving in the Federal Government Employees Housing Foundation, who were in service on 1-4-1996."
5, The petitioners in both the Constitutional petitions were employees of the Pakistan Post Office Department. On its incorporation they were transferred to the Pakistan Postal Services Corporation and were again reverted to the Department after the 6th July, 1996, when the Pakistan Postal Services Corporation Ordinance, 1996 (XXVII of 1996), was not repromulgated on its expiry. All of them applied for allotment of plots under the aforesaid Federal Government Employees Housing Foundation Scheme for Phase-III. The Executive Committee of the Foundation in its meeting held on 11-6-1997, however, decided that, since the petitioners were not civil servants on 1-4-1996, the eligibility date fixed by the Foundation, they were not entitled for allotment of plots in the Housing Scheme out of the 77% fixed civil servants, but would be considered for allotment of plots out of 10% quota fixed for autonomous bodies.
6. The petitioners being aggrieved of the said decision have brought the instant petitions claiming that for all intents and purposes they were civil servants and were entitled to allotment of plots like other civil servants falling under the category of person entitled to 77% quota of plots.
7. Both the petitions were opposed on behalf of the respondents. It was claimed that the cut-out date of eligibility as specified in the Brochure under the heading 'Terms and Conditions of the Housing Scheme' was the 1st April, 1996, whereby on 1-4-1996, the applicants claiming allotment of plots under 77% quota should have been civil servants as defined under the Civil Servants Act, 1973.
Since on the said date, the petitioners were employees of the Pakistan Postal Services Corporation they were not entitled to allotment of plots as civil servants falling under 77% quota of the total number of Plots.
8. Mr. Abdul Rashid Awan and Mr. S.M.K. Lodhi, Advocates, the learned counsel representing the petitioners in these two petitions, contended that on reversion of the Pakistan Postal Services Corporation into Pakistan Post Office Department under Notifications, dated 4-7-1996 and 26-8- 1996. The petitioners were declared to be civil servants. In particular, under paragraph 4 of the Notification, dated 26-8-1996, it was clarified that on reversion, the employees of the Pakistan Postal Services Corporation shall be civil servants and will be governed under the Civil Servants Act, 1973, and their services under the Corporation shall deemed to be civil service throughout. It was, therefore, contended that notwithstanding that on 1-4-1996, i,e,, the cut-out date fixed by the Housing Foundation when they were working under the Corporation, they shall deemed to be civil servants, not only on that date but right from the 1st August, 1992, the date when the Pakistan Postal Services Corporation Ordinance, 1992, had come into operation.
9. Opposing the petition, Mr. Khalil-ur-Rehman Abbasi, Advocate, the learned counsel representing the Housing Foundation, on the other hand, contended that, since on the 1st day of April, 1996, the eligibility date of for allotment of plots, under the law in force they were employees of the Corporation, they could not be treated as civil servants nor could be considered for allotment of plots out of the quota of 77% reserved for the civil, servants. In support of his contentions, the learned counsel relied upon Salahuddin and 2 others v. Frontier Sugar Mills and Distillery. Ltd., Takht Bhai and 10 others (PLD 1975 SC 244), wherein it was held that private organizations or persons, as distinguished from Government or semi-Government agencies and functionaries, cannot be regarded as persons performing functions in connection with the affairs of the Federation or a Province simply for the reason that their activities happen to be regulated by laws made by the State.
10. The petition was also contested by the Ministry of Housing and Works, Government of Pakistan mainly on the ground that since on the eligibility date the petitioners were employees of the Pakistan Postal Services Corporation, they cannot be equated with civil servants. Learned Standing Counsel also contended that the petitioners cannot claim themselves to be civil servants on 1-4- 1994, in clear disregard of their status determined by the statute.
11. It is clear from the above that the main controversy which needs resolution is the service status of the petitioners on the 1st day of April, 1996, the eligibility date fixed by the Federal Government Employees Housing Foundation for allotment of plots in Phase-III'-of its Scheme for various categories of Federal Government employees and others. There is no cavil to the proposition that on the said date, by virtue of section 5 of the Pakistan Postal Services Corporation Ordinance, 1996 (XXVII of 1996), read with section 34 thereof, all the petitioners who do not belong to Postal Group stood transferred to the Pakistan Postal Services Corporation and became employees of that Corporation. The said Ordinance also expired on the 6th July, 1996, by efflux of four months' period specified in Article 89(2)(a)(i) of the Constitution and was not re-promulgated. It was held by the Supreme Court in the Collector of Customs, Karachi and others v. Messrs New Electronics (Pvt.)
Limited and 59 others. (PLD 1994 Supreme Court 363) that as a consequence of general principle after a statute is repealed it is completely effaced from the statute book as if it had never been enacted, subordinate legislation made under such a statute ceases to have effect after its repeal.
This result can be avoided by insertion of saving clause provided to the contrary. When a statute is repealed and re-enacted, section 24 of the General Clauses Act, 1897, provides for continuance of any appointment, notification, order, scheme, rules, form or bye-law made or issued under the repealed statute in so far as it is not inconsistent with the provisions re-enacted. Such appointments, notifications, orders etc., are deemed to be made under the corresponding provisions of the new statute and continue to be in force unless superseded by appointment, notifications, orders, etc., made or issued under the new statute.
12. In the instant case, clearly the previous actions were not saved through statutory provisions, but by issuing administrative notifications. In Government of Punjab v. Zia Ullah Khan and 2 others (1992 SCM R 602), it was laid down that when an amending Act, whereby the text of a Central Act or Regulation was amended, is repealed, then, unless a different intention appears, the repeal is not to affect the continuance of any such amendment made by the amending enactment so repealed: In other words, the effects of above section 6-A of the General Clauses Act is that, in spite of the repeal of an amending Act, the amendment, if it was in the text of any Act or Regulation, was to continued It was also held by the Supreme Court in Muhammad Akhtar Hussain and 4 others v. Government of West Pakistan and 454 others (PLD 1970 Supreme Court 146) that as stated by Maxwell in the Interpretation of Statutes (11th Edition) at page 389, the common law rule undoubtedly was that the repeal of a repealing enactment "revived the first ab initio" but since the passing of the Interpretation Act, 1889, the rule does not apply to repealing statutes passed after 1850. The rule now is that where an Act repealing, in whole or in part, a former Act is itself repealed, the last repeal does not now revive the Act or provisions before repealed, unless words be added reviving them.
13.On the same analogy, the Pakistan Post Office Department which had been converted into a Corporation under the Pakistan Postal Services Corporation Ordinance, 1992 (XIII of 1992), and the successive similar Ordinance, on expiry of the last Ordinance i,e,, the Pakistan Postal Services Ordinance, 1996 (\XVII of 1996), stood reverted to its original status. But in order to protect the services of the employees of the Post Office Department who had by law become employees of the Corporation or of those who had been recruited after the Department was converted into a Corporation and for other allied matter and decision taken and order made, certain legislative and administration measures had to be taken. It is an admitted fact that no legislative measures were adopted to provide necessary protection to the actions taken under the aforesaid Ordinance. On the other hand, it was deemed appropriate to provide legal cover to such action through two administrative Notifications, dated the 4th July, 1996, and the 26th August, 1996. Both these notifications do not contain reference to any statutory provision under which these were issued.
Hence, for all practical purposes these are only administrative notifications dealing with the continuity of service of Post Office employees and could at best deemed to have been issued under the provisions of section 23 of the Civil Servants Act, 1973, which is read as under:-- "23. Saving.--Nothing in this Act or in any rule shall be construed to limit or abridge the power of the President to deal with the case of any civil servant in such manner as may appear to him to be just and equitable: ' Provided that, where this Act or any rule is applicable to the case of a civil servant, the case shall not be dealt with in any manner less favourable, to him than that provided by this Act or such rule."
14. The next question which arises is whether these notifications could be issued with retroactive operation. Mr. S.M.K Lodhi, Advocate, referring to Messrs Army Welfare Sugar Mills Ltd. And others v.
Federation of Pakistan and others (1992 .SCMR 1652) contended that where a notification is beneficial in its nature it could be issued with retrospective effect. In this respect it was laid down by the apex Court that where a notification which purports to impair an existing or vested right or imposes a new liability or obligations, cannot operate retrospectively in the absence of legal sanction, but, the converse i,e, a notification which confers benefits cannot operate retrospectively, does not seem to be correct proposition of law.
15. But it is clear that even a beneficial notification cannot be inconsistent to the provisions of the statute. In Khan Faiz Ullah Khan v. Government of Pakistan and another (PLD 1974 Supreme Court 291), it was held by the Supreme Court that it was well-settled that the rules cannot operate retrospectively. Again in Muhammad Suleman etc. v. Abdul Ghani (PLD 1978 Supreme Court 190) it was laid down that 'notification which curtail or extend rights of the citizens, cannot be retrospective and this is all the moreso in such cases when a state of things is to take place by publication of a notification which means from the date of its publication in the Gazette and not from any prior date or to be more precise, not from the date of the notification itself if it is prior to the actual date of the publication in the Gazette, because then it will tantamount to giving that notification a retrospective effect not from its publication but from a date prior thereto which as explained above is not permissible according to the relevant law involved in the case. Similarly, in Taj Mahal Hotel Ltd. And others v. Karachi Water and Sewerage Board and others (1997 SCM R 503), it was laid down that 'a notification or an administrative order cannot operate retrospectively' .
16. Even if it is presumed that these administrative notifications being beneficial in nature could be given effect from a previous date, the most important question would be if these notifications, may be having an affect of statutory notification, can override the provisions of the statute. Under section 5 of the Pakistan Postal Services Corporation Ordinance. 1992 (XIII of 1992), followed by similar Ordinance, the latest being Ordinance XXVII of 1996 read with section 34 thereof clearly provides that all employees of the Pakistan Post Office Department, except those belonging to Postal Group of Central Services had become employees of the Pakistan Postal Services Corporation from the 1st August, 1992, when Ordinance XIII of 1992 had come into force. They retained this status till the expiry of the Pakistan Postal Ordinance, 1996 (XXVII of 1996), on 6-7-1996.
It is a well-settled principle that subordinate legislation, including rules, notifications, instructions cannot override the provisions of statute. In the instant case, if Ordinance. XIII of 1992 or the Pakistan Postal Services Corporation Ordinance, 1996 (XXVII of 1996), provides that on 1-4-1996, the petitioners were employees of the Pakistan Postal Services Corporation, by any notification whether statutory or administrative, their status could not be altered. It is -true that in order to provide safeguards to salaries, pensions and other service benefits, the Government has decided to consider the period of service of employees of the Corporation as civil service, but it does not mean that for all purposes, notwithstanding the provisions of sections 5 and 34 ibid, the petitioners will be civil servants during the period they served in the Corporation under the law. Hence, notwithstanding the repeal of the Pakistan Postal Services Corporation Ordinance, 1996, by afflux of time and Notification No,3(16)/92-PC(pt), dated 4-7-1996, and Notification No,3(16)/92-PC(pt), dated 26-8-1996, on 1-4-1996, under the provisions of section 24 of the General Clauses Act, 1897, the petitioners were employees of the Pakistan Postal Services Corporation and cannot for the purpose of allotment of plots under the Federal Government Employees Housing Foundation Phase-III claim allotment thereof being civil servants. Consequently, the impugned decision of the Housing Foundation in not including their names in the list of civil servants who were having such status on 1-4-1996 does not suffer from any legal infirmity which may warrant any interference by this Court. Both the petitions are accordingly dismissed with no order as to costs.