Through this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan the petitioner has prayed for declaring the act of respondents Nos, 1 and 2 of distributing vacancies on regional basis, illegal without lawful authority, void and ultra vires of the Constitution and the selection of respondents Nos,3 to 6 be set aside and the respondents be directed to fill the posts in question on open merit.
2. Brief facts of the case are that the petitioner claimed that he qualified his Bachelor of Medicine and Surgery from University of Punjab, 1983 and then he went abroad and got decree in Ophthalmology from the Royal College of Surgeons of Edinburgh England in the year 1993. He got himself registered with the Pakistan Medical and Dental Council on 15-12-1985. The petitioner worked as a House Surgeon in the Eye Unit of Services Hospital, Lahore from 10-2-1986 to 10-2-1987 and then he worked as Medical Officer, Mayo Hospital Haemodialysis Unit from 5-1-1988 to 4-4- 1988. The petitioner was selected through Punjab Public Service Commission as Assistant Professor and was posted in the Punjab Medical College, Faisalabad and worked there from 30-5-1995 to 29- 11-1995. At the time, when the petition was filed the petitioner was working as Ophthalmologist in Divisional Headquarter Hospital Faisalabad since 30-11-1995. Respondent No,2 invited applications by citation in daily Nawa-i-Waqt dated 13-4-1997 for the posts, for which the petitioner was also eligible. The appointments were made while distributing the vacancies on zonal basis and respondents Nos,3 to 6 were selected.
3. Nobody has entered appearance to pursue this petition. A request was made by one Mirza Hafeez, Advocate, that the original counsel who filed this petition has died in 1999, therefore, notice be issued to the writ petitioner for prosecution of this writ petition by him. This request is declined as the learned counsel for petitioner died in 1999 and three years have passed and the petitioner himself has not approached any counsel and has not appeared to pursue this case. A duty is cast on the petitioner to pursue this case, otherwise, it will be deemed that he is not interested in prosecution of this writ petition, which can be dismissed for this reason, but as the petition was admitted to regular hearing, hence it is being decided on merit.
4. The petitioner claimed that appointments of respondents Nos,3 to ,6 are totally illegal and not warranted by law. He further claimed that the allocation of vacancies on zonal basis by respondent No,2 is illegal and is in violation of Article 27 of the Constitution of Islamic Republic of Pakistan as the allocation of zonal basis was allowed for 20 years and this period has expired in 1993. Zonal allocation according to him after that period is un-Constitutional.
5. The learned counsel appearing on behalf of Advocate-General has opposed this petition on the ground that the writ petition was filed in 1997 and 20 years period given in. Article 27 of the Constitution has already elapsed, but this Article has been amended in 1999 through 16th Amendment in the Constitution and the words '20 years' have been removed and substituted by the words '40 years'. He further contends that as the interpretation of a deeming clause like the present, the subsequent amendment covering the period will also be sufficient to hold that the amendment was also for that period. It is further contended that in cases Sayeed-ur-Rehman v.
CEC (PLD 1965 SC 157) and Commissioner Sales Tax v. M/s. Kruddsons (PLD 1974 SC 180) similar situations had arisen and the Supreme Court of Pakistan has held that until the judgment is announced subsequent changes in law can be considered by the Court. Hence the amendment has been made in Article 27 of the Constitution and this writ petition was not decided hence the amendment will affect this case and it will be sufficient to hold that Article 27 covers, up a period of 40 years from promulgation of the Constitution. Hence the writ petition is not maintainable and it may be dismissed.
6. I have heard the argument of learned counsel appearing on behalf of Advocate-General and perused the record carefully. I am fully in agreement with the arguments of the learned counsel that Article 27 of the Constitution provides a period of 20 years for allocation of seats on regional basis, which expired on 1993. Subsequently, in 1999 through amendment in the Constitution in Article 27 the word 'twenty' has been substituted with the word 'forty' hence the regional quota would continue till forty years from 1973. It was specifically in the mind of Legislature that the amendment will cover the period from expiry of twenty years and discontinuance of quota system to the promulgation of the amendment in Article 27 of the Constitution. As the writ petition was not decided during the period, hence the period in which the amendment was not introduced will be covered by subsequent amendment. Hence it will be deemed that the amendment was in field at the time when the petition was filed. The posts were filled by the respondent by appointing respondents Nos,3 to 6 on zonal basis. The learned counsel appearing on behalf of respondent has cited the case reported as (PLD 1959 Karachi 94) to contend that no statute shall be construed to have retrospective a operation unless such a construction appears very clearly in the terms of the Act or arises by necessary and distinct implication. In case reported as PLD 1987 Azad J&K 183 it has categorically been held that a right accrued to the party or a vested right cannot be destroyed by a repealing enactment unless the Legislature manifests its intention expressly or by implication. I am also fortified by Maxwel's Interpretation of Statutues; where at page 221 it is mentioned in the following words:- "However, if the -intention of the new statute is to effect the rights of the parties to the pending actions, the Court must give effect to the intention of the Legislature and apply the law as it stands at the time of the judgment even though there is no express reference to pending actions." The above-quoted quote indicates that through the Deeming Clause the intention of the Legislature was clear due to amendment of Article 27 to have effect on the pending proceedings.
The amendment in the Article 27 will definitely affect the pending proceeding as this writ petition was pending. I am fortified by the view taken by august Supreme Court of Pakistan while examining similar issue and the unanimous view is that the 'deeming clause' effects pending proceedings. In case of Sayeed-ur-Rehman referred above it has been held that Act XXIII of 1963 clearly said, that the Act XXXI of 1957 shall be deemed to have been repealed from 23rd March, 1962. The Supreme Court held:- "We have no doubt that the Act of 1963 is retrospective in the sense that it applies to proceedings pending at the time when the Act came into force. Accordingly, it only remains to be considered whether this Court in the exercise of its appellate jurisdiction can substitute for the judgment of the High Court a judgment or order in accordance with the law as now exists without discussing the law as it existed at the time when the High Court was seized of the case. When an appeal has been admitted, this Court becomes seized of the whole matter, and therefore, can take into account the provisions of the new Act which repealed the Act of 1957 and grant relief accordingly even though the judgment of the High Court had been correct according to law as it stood then."
In another case relied by the learned counsel for respondent Commissioner Sales Tax v. MA.
Kruddsons (PLD 1974 SC 180), the Supreme Court has ruled that until the judgment is final it is subject to the power of Legislature to enact curative legislation.
In view of above discussion it can be clearly said that the amendment of Article 27 of the Constitution has affected the pending proceeding and covers up the period in which the amendment was not there, when this writ petition was filed. The decision is to be based on the consideration of amendment made during the pendency of this writ petition. By the said amendment today the Article 27 of the Constitution has allowed the quota system for 40 years from 1973. This writ petition, therefore, has no merit and the same is dismissed. Before parting with the judgment, I will be constrained to appreciate the work done by Mr. Muhammad Shan Gul, Advocate, appearing on behalf of Advocate-General by preparing the case and in citing the precedents.