IN THE MATTER OF FITNESS
By
ZOHAIB
IMRAN SHEIKH
Advocate High Court & Service
Tribunals
zohaib_imran_elahi@hotmail.com
Article 212 of Constitution of Pakistan 1973 enacts in
the following way:-
212. Administrative Courts and
Tribunals.(1) Notwithstanding anything hereinbefore
contained, the appropriate Legislature may by Act provide for the establishment
of one or more Administrative Courts or Tribunals to exercise exclusive
jurisdiction in respect of--
(a) matters relating to the terms and
conditions of persons who are or have been] in the service of
Assuming the constitutional authority, the legislature
in
“An
Act to provide for the establishment of [Service] Tribunals to
exercise jurisdiction regarding matters relating to the terms and conditions of
service in respect of services of the Province of the
The preamble aids in interpreting the
statute to spur out the intention of the legislature, however, on repeated
counts the Courts have held that it is the substantive law from where the real
intention of the legislature could be gathered, for them the preamble rarely
mattered. Countering the constructional value of preamble our Supreme Court
holds in MUMTAZ HUSSAIN ..... VS ..... DR NASIR KHAN 2010 SCMR 1254 that: - “……………. Preamble
of an act does not govern provisions of that act, if those provisions are
unambiguous and clear. Preamble can be
taken into consideration in discovering purpose of the statute and aid can be
taken in interpreting provisions of the act if they are
ambiguous....................preamble of an act does not control or govern the
act and is not an enacting part of the act but may recite the ground and cause
of making that statute, if provisions of the act are clear and unambiguous .............” In PLD
2007 SC 571 it was held that preamble of a statute was always the key
to interpret the statute.
In case reported as 2005
C L C 312 SB PHC TEHSEEN ULLAH VS USMAN KHAN, single Bench of
Peshawar High Court while interpreting Court Fees Act 1870 resorted to object
and scope and held that ACT 1870 like other fiscal statutes, was to be
construed strictly in favour of subject as it was passed with the object to
secure revenue for benefit of the State and not to arm a litigant with the
weapon of technicality to harass his opponent side.
In PLD 2005 SC 530 it was held that while interpreting the statute and to
gather the proper intention of the legislature, contemporaneous circumstances
including the history of the time existing when the law was enacted, the
previous state of law, the evil intended to be corrected, the general policy of
State or the established policy of the Legislature can also be considered. Further
held that while interpreting a particular statute the preamble must be present
in the mind of the Judge and where the language of the statute permits an
exercise of choice or interpretation, the Court must choose the interpretation
which is guided by the principles embodied therein but it does not mean that
the preamble or object and reason is to be given preference and it can only be
considered here the language is somewhat ambiguous. The purpose of a preamble,
however, is that in case of any doubt as to the intention of the law makers it
may be looked at in order to ascertain the, true meaning of a particular
provision but it cannot control the substantive provisions of the enactment.
Lord Viscount Simonds, while delivering his opinion in
Attorney-General v. Prince Ernest Augustus of Hanover, 1957 AC 436 (at page
461), underlined with greater emphasis the above concept in the following
words: " I conceive it to be my right and duty to examine every word of a
statute in its context, and I use the word 'context' in its widest sense
......................................................... as including not only
the enacting provisions of the same statute, but its preamble, the existing
state of the law, other statutes in pari materia, and the mischief which I can,
by those and other legitimate means discern the statute was intended to
remedy."
Article 212 is non obstante provision of
our constitution as held in elaborative judgment handed down by HJ Syed Mansoor
Ali Shah carrying citation 2010 PLC
CS 51 = PLJ 2011 LAHORE 392 DR GHAZANFARULLAH VS SECRETARY HEALTH ETC, holding
therein that Article 212 would prevail over Article 199 thereby completely
ousting the jurisdiction of high Court to entertain the service matters of
civil servants. There are chain of authorities barring the jurisdiction of high
Court under Article 199 in the matters relating to the terms and conditions of
civil servants. But none of the judgment, so far I researched, touched the
vires of Section 4(1) (b) of Punjab Service Tribunal Act 1974 & statutes
pari materia, with the Article 212 of Constitution of Pakistan 1973. In AIR
1965 AP 220, the Division Bench succinctly stated the rule as follows (at p.
223) :-- ……….It must be understood that a non obstante clause is usually used
in a provision to indicate that that provision should prevail despite anything to the contrary in the provision
mentioned in such non obstante clause. In case there is any inconsistency or a
departure between the non obstante clause and another provision one of the
objects of such a clause is to indicate that it is the non obstante clause
which would prevail over the other clause." The absence of violation of
fundamental rights does not prevent to test the vires of violative law. The
challenge to Section 4(1) (b) with Article 8 of constitution can also intensify
the article. The apex Court in case reported as PLD 2012 SC 923
BAZ MUHAMMAD KAKAR VS FEDERATION OF PAKISTAN has held that vires of disputed law can be
challenged, if the same is violative of any of the constitutional provisions,
besides Article 8 of Constitution. So Article 8 carries little importance to my
proposition. Let me try to solve the confusion qua stringent relations
of Section 4(1) (b) of Punjab Service Act 1974 with Article 212 of Constitution
of Pakistan. The Question framed would be whether High Court under Article 199
of Constitution of Pakistan 1973 entertains the petitions involving question of
fitness of civil servants to be promoted upon higher post, in view of Section
4(1) (b) of Punjab Service Tribunal Act 1974, barring service appeal before the
tribunal. If I am not in contempt, my answer is simply no. let me give the
reasons. My hands trembled while going against the consistent view of HJ Syed
Mansoor Ali Shah while answering the self posed query, with whom my affection
and love touches the divine limits. It is also encouraging for the judicial
system that said HJ has maximum reported judgments on the website maintained by
Lahore High Court Lahore. But the statute convinced me a different, as such, I
differ on legal and constitutional issues. 2012
PLC CS 1062 = PLD 2013 LAHORE 413 LIAQUAT ALI CHUGHTAI VS FEDERATION OF
PAKISTAN BY HJSMASH takes jurisdictional and legal cognizance in the matter of fitness. Besides,
the apex Court also treats Section 4(1) (b) as ouster clause in the matter of
fitness. See 2012 PLC CS 1104
MUHAMMAD AZAM VS MUHAMMAD TUFAIL etc. The Indian Supreme Court in case
reported as Maneka Gandhi v. Union of
“…… The rule of adherence to
precedence is not a rigid and inflexible rule
of law, but it is a rule of practice adopted by the Courts for the
purpose of ensuring uniformity and stability in the law. Otherwise there will
be no certainty and predictability in the law, leading to chaos and confusion
and in the process destroying the rule of law, and increasing the labor of
judges. But this rule of adherence to precedents; though a necessary tool "in
the legal smithy," is only a useful servant and cannot be allowed to turn
into a tyrannous master. If
the rule of stare decisis were followed blindly and mechanically, it would
dwarf and stultify the growth of the law and affect its capacity to adjust itself
to the changing needs of the society. There are certain issues which transcend
technical considerations of stare decisis and if such an issue is brought
before the Court, it would be nothing short of abdication of its constitutional
duty for the Court to refuse to consider such
issue by taking refuge under the doctrine of stare decisis… ………..”
Furthermore in case reported as AIR 1986 SC 1571 It was held that law
should move forward in tune with the change of the ideas and ideologies of the
society.
Section 4 (1) of
[4
(1) Appeal to Tribunals. — (1) Any civil servant
aggrieved by any final order, whether original or appellate, made by a
departmental authority in respect of any of the terms and conditions of his
service may, within thirty days of the communication of such order to him or
within six months of the establishment of the appropriate Tribunal, whichever
is later prefer an appeal to the Tribunal―
Provided
that—
(a) Where an appeal,
review or representation to a departmental authority is provided under the
Punjab Civil Servants Act, 1974, or any rules against any such order no appeal
shall lie to a Tribunal unless the aggrieved civil servant has preferred an
appeal or application for review or representation to such departmental
authority and a period of ninety days has elapsed from the date on which such
appeal, application or representation was so preferred;
(b) No appeal shall lie to a Tribunal against
an order or decision of a departmental authority determining the fitness or
otherwise of a person to be appointed to, or hold a particular post or to be
promoted to a higher grade; and
(c) No appeal shall lie to a Tribunal against
an order or decision of a departmental authority made at any time before the
1st July, 1969.
All of the judicial
interpretations, so far made, have treated Section 4(1) (b) as exclusion clause
and none of the judgments tried to explore the real concept of Article 212.
Though delayed, but rightly the Supreme Court of Pakistan in Sheikh Riaz ul Haque VS Federation of
Pakistan reported as 2013
PLC CS 1308, while
applying the “Reading Down Theory” (Author’s view) has read the word “tribunal”
as “Court” in Article 175 of Constitution of Pakistan. The relevant portion of the
Riaz’s judgment is being reproduced hereunder:-
“34.
Firstly, it is to be examined whether
Service Tribunals established under Article 212(1)(a) of the Constitution read
with Federal or Provincial Legislation, fall within the definition of a Court, under
Article 175 of the Constitution………….41. It is pertinent to mention here that as
the service Tribunals are not only deemed to be a civil Court but also exercise
judicial powers, therefore, they are included in the term ‘Court’ mentioned in Article 175 of the Constitution.
As such, these Tribunals are to be manned, controlled and regulated in
accordance with the law relating to management, regulation and control of
Courts in
Above reproduced
declarations maximized the importance of service tribunals, which the
bureaucracy always treated as inferior institution, denying the lawful orders
of tribunals, avoiding executions. Such menace of non compliance is also
encouraged by our high Courts while sparing the defaulting officers to go check
free. Only one officer denying execution of orders be sent jail, would set at
right all the bureaucracy. Once declared that the service tribunals are Courts
under Article 175, then the Supreme Court should have completely disallowed the bureaucracy to
sit as members in the tribunals. But the judgment appears to be much influenced
by the Indian set up under Article 323-A of Indian Constitution, which is more
elaborative, exhaustive and elaborative article as compared to Article 212 of
Pakistani Constitution. At this juncture, relevant would be to reproduce page 361 of B.N. Rau: “India's
Constitution in the making”:-"Most modern constitutions do make
full use of the experience of other countries,
borrow whatever is good for them and reject whatever is unsuitable. To profit
from the experience of other countries or from the vast experience of one's own
is the path of wisdom. There is another advantage in borrowing not only the
substance but even the language of established constitutions; for we obtain in
this way, the benefit of the interpretation put upon the borrowed provisions by
the Courts of the countries of their origin and we thus avoid ambiguity or
doubt. Lahore High Court Lahore in 1997
wrongly interpreted the Article 212 by including the employment issues within
ambit of said article, but the same had been set right by apex Court in case
reported as PLD 1997 SC 382 (AHMED
SALMAN WARI’S CASE), wherein it was held that the person having applied
for the post but not selected could not acquire the status of a civil servant
within the meaning of Punjab Service Tribunals Act, 1974. Further held that
such a person was not entitled to file an appeal before the Service Tribunal. But who cares. Let the heaven fall, justice
should prevail, better to live in books. The judge while hearing the contempt
petitions and continuously remanding the matter either to his law officer or to
department, simply encourages corruption and promotes corrupt practices. The
contempt jurisdiction is for enforcement of orders and not for sending the poor
litigants back in the laps of defaulting contemptuous officers, perhaps for negotiations
(emphasized). Well, I heard, contempt is a matter between the Court
and noble
contemnor. Said injudicious attitude invites the hell fire. See PLD 1999 SC 885, besides
infinite Quranic references in this regard. But not least, the Supreme Court of
Pakistan in PLD 2012 SC 923 BAZ MUHAMMAD KAKAR VS FEDERATION OF PAKISTAN holds
that In cases of disobedience contempt, Courts did not show restraint because
at stake was the people's right to the rule of law, not the ego of Judges.
The legal position still apt the
judgment reported as 2009 PLC (CS)
914 that in
Section 4 of the Punjab Service Tribunal is remedial
in nature and generally grants right of appeal to the civil servants aggrieved
by the orders of departmental authority.
Here the word departmental authority is of significant importance. See [2011 PLC (CS 580) BY HJSMASH] & 2007
PLC CS 285 for departmental authority and consequent jurisdictional
prospects. The bare reading of two provisions, viz Section 4) and proviso 4 (1)
(b), disputes, contradict each other, in that first part of Section 4 literally
construed, is in direct conformity with Article 212 of the Constitution, simply
the both cannot constitutionally stand together. The effect of proviso cutting down the scope
of general law would be discussed in detail. Sarathi in 'Interpretation of Statutes' at pages 294- 295 has collected
the following principles in regard to a proviso:-………… When a proviso is
repugnant to the enacting part, the proviso will not prevail over the absolute
terms of a later Act directed to be read as supplemental to the earlier
one. Another reasoning and argument in
support of conflicting provision could be that the service appeal against
fitness is barred on factual points, but lies on legal issues. Prof. Wade in
`Administrative Law' 6th Edn, at page 720 says "Many statues provide that
some decision shall be final. (As in
case of Section 4 (i) (b)). That provision is a bar to any appeal. But the Courts refuse to allow it to
hamper the operation of judicial review. As will be seen in this and the
following section, there is a firm judicial policy against allowing the rule of
law to be undermined by weakening the powers of the Court. Statutory
restrictions on judicial remedies are given the narrowest possible construction, sometimes even against the
plain meaning of the words. This is a sound policy, since otherwise
administrative authorities and tribunals would be given uncontrollable power
and could violate the law at will. `Finality' is a good thing but justice is a
better." "If a statute says that the decision `shall be final' or `shall be final and conclusive to all intents
and purposes' this is held to mean merely that there is no appeal:
judicial control of legality is unimpaired.”……………..”. I would supplement that
no executive action is final under the Rule of law guaranteed in the written
constitution.
PLD 1971
Furthermore, in case cited as AIR 1954 SC 520 the order of the Election Tribunal was made
final and conclusive by Section 105 of the Representation of the People Act,
1951 (Indian). The contention was that the finality and conclusiveness clauses
barred the jurisdiction of the Supreme Court under Article 136. This contention
was repelled. It was observed: ".....but once it is held that it is a
judicial tribunal empowered and obliged to deal judicially with disputes
arising out of or in connection with election, the overriding power of this
Court to grant special leave, in proper cases, would certainly be attracted and
this power cannot be excluded by any parliamentary legislation. ...... But once
that Tribunal has made any determination or adjudication on the matter, the
powers of this Court to interfere by way of special leave can always be
exercised. ...... The powers given by Article 136 of the Constitution, however,
are in the nature of special or residuary powers which are exercisable outside
the purview of ordinary law, in cases where the needs of justice demand
interference by the Supreme Court of the land……
Section 105 of the Representation of the People Act certainly give
finality to the decision of the Election Tribunal so far as that Act is
concerned and does not provide for any further appeal but that cannot in any
way cut down or effect the overriding powers which this Court can exercise in
the matter of granting special leave under Art. 136 of the Constitution."
Similarly in 1978
(1) SCR 1, high Court was considering the challenge to the validity of
a proclamation issued by the President of India under Article 356 of the
constitution. At the relevant time under clause (5) of Article 356, the
satisfaction of the President mentioned in clause (1) was final and conclusive
and it could not be questioned in any Court on any ground. All the learned
judges have expressed the view that the proclamation could be open to challenge
if it is vitiated by mala fides. It was further held that even if an issue is
not justiciable, if the circumstances relied upon by the executive authority
are absolutely extraneous and irrelevant, the Courts have the undoubted power
to scrutinize such an exercise of the executive power. Such a judicial scrutiny
is one which comes into operation when the exercise of the executive power is
colourable or mala fide and based on extraneous or irrelevant
considerations."
In [1985] Supp. 2 SCR 131 the
expression "final” occurring in Article 311(3) of the Constitution this
Court in at page 274 held "......The finality given by clause (3) of
Article 311 to the disciplinary authority's decision that it was not reasonably
practicable to hold the inquiry is not binding upon the Court. The Court will
also examine the charge of mala fides, if any, made in the writ petition. In
examining the relevance of the reasons, the Court will consider the situation
which according to the disciplinary authority made it come to the conclusion
that it was not reasonably practicable to hold the inquiry. If the Court finds
that the reasons are irrelevant, then the recording of its satisfaction by the
disciplinary authority would be an abuse of power conferred upon it by
Let me focus on other aspect of this case. Such might
be the rule of harmonious construction. Even by applying harmonious
interpretation, Section 4(1) (b) offends the mandatory object of Article 212.
The apex Court in case reported as PLD 2005 SC 530 has
held that Court must deduce the intention of parliament from the
words used in the, Act, but if the words of an instrument are ambiguous in the
sense that they can reasonably bear more than one meaning, that is to say, if
the words are semantically ambiguous, or if a provision, if read literally, is
patently incompatible with the other provisions of that instrument, the Court
would be justified in construing the words, in a manner which will make the
particular provision purposeful. Here the Section 4 (1) (b) granting unbridled
and uncontrolled discretion to the government functionaries in the matter of
fitness of civil servant to be promotion, directly offends the basic purpose of
Article 212. Reasoning that no outside
forum could interfere in the subjective evaluation done by the
employer/government functionaries is no valid, legal, moral or constitutional
ground to sustain or protect Section 4 (1) (b) of Act 1974. It also diminishes
the basic concept of alternative institutional mechanism and very purpose of
establishment of service tribunals. The constitutional Courts don’t interfere
in the matter of fitness, is fallacious argument. See 2010 SCMR 1301 & 2012
PLC CS 1062 LIAQAT ALI CHUGTAI VS FEDERATION OF
In case reported as 1992 SCR (1) 686 it was held: -
“……. On the other hand, there are,
as in all political and economic experimentations, certain side-effects and
fallout which might affect and hurt even honest dissenters and conscientious
objectors. These are the usual plus and minus of all areas of experimental
legislation. In these areas the distinction between what is constitutionally
permissible and what is outside it is marked by a `hazy gray-line' and it is
the Court's duty to identify, "darken and deepen" the demarcating
line of constitutionality. A task in which
some element of Judges' own perceptions of the constitutional ideals inevitably
participate. There is no single litmus test of constitutionality. Any suggested
sure decisive test, might after all furnish a "transitory delusion of
certitude" where the "complexities of the strands in the web of
constitutionality which the Judge must alone disentangle" do not lend
themselves to easy and sure formulations one way or the other. It is here that
it becomes difficult to refute the inevitable legislative element in all
constitutional adjudications ……….. “
The criterion for determining the validity of a law is
the competence of law making authority. The competence of the law-making
authority would depend on the ambit of the legislative powers so derived, and
the limitations imposed thereon as also the limitations on mode of exercise of
the power, as stated above. There may be substantive as well as procedural
limitation upon the legislature. Article 212 of the constitution never
permitted the legislature to deprive the civil servants from right of appeal in
the matter of fitness/supersession. Again the remedy would be subject to
interpretation of Article 212, which exclusively bars the jurisdiction of all
other Courts, including high Courts. So Section 4 (1) (b) being
subconstituitonal legislation cannot override/nullify the express
language/mandate of Article 212 of constitution of
THE BASIC
STRUCTURE DOCTRINE: It is thus
possible to set up an alternative institutional mechanism in place of the High
Court for providing judicial review. It is sustainable that establishment of
tribunal under the Act 1974 taking away the jurisdiction and power of the High
Court to interfere in such matters is not violative of the doctrine of judicial
review which is a fundamental aspect of the basic structure of our Constitution
because the fundamental provisions of the constitution, which bars the'
jurisdiction of the High Court under Article 212 preserves the jurisdiction and
power of the Supreme Court under Articles 212 (3) and that of high Court under
Article 199 of the Constitution. This argument is further strengthened by
reproducing the following passage from "Administrative
Tribunals and the High Courts: A Plea for Judicial Review" Journal of the
Indian Law Institute -Vol.29 No. 4. Oct-Dec. 1987) in the following terms:
- “It is not correct to say that a tribunal will have the power to issue writs.
That power is not given to the tribunal because the power to issue writs is not
the power under the conditions of service of the employees. That was an
extraordinary remedy given by the Constitution for certain purposes.
The Indian Supreme Court in case reported as Union of
India v. Paramananda that in the case of a proceedings transferred to the
Tribunal or a Civil Court or High Court, the Tribunal has the jurisdiction to exercise
all the powers which the Civil Court could in a suit or the High Court in a
writ proceeding would have respectively exercised. The Tribunal can thus
exercise any of the powers of
In such circumstances, it does not
require nullification of the law, or repeal the statute if it finds it in
conflict with the Constitution. It should simply be refused to be recognized as
law, and determines the rights of the parties just as if such Section 4 (1) (b)
had not been enacted. In case reported as Brij
Bhukan Kalwar and Ors. vs S.D.O. Siwan And Ors decided on 17 August, 1954
it was held that if after examination and analysis it is found that the terms
of this statute are repugnant to and inconsistent with the existing law and
that the persons affected of the statute have been left at the mercy of the
executive officers, the Act or some portions of it will have to be scraped as
unconstitutional, because they negative the fundamental rights by making the
enjoyment of the rights dependent on the whim of the executive. "Even
if it be said that the statute on the face of it is not discriminatory, it is
so in its effect and operation inasmuch as it vests in the executive government
unregulated official discretion and, therefore, has to be adjudged
unconstitutional." It was further held in AIR 1951 Cal 111 that any reasonable substantive provision might
be rendered wholly unreasonable by the procedure which an Act prescribes, and
the procedure which is prescribed" in this Act for dealing with lands of
the description mentioned in Clause (d) is extraordinary and arbitrary, thus
obviously coming within the inhibition laid down by the Constitution. I would
also reproduce with proud the following extracts by Lord Atkin in the
well-known case reported as 'Liversidge
v. Anderson', (1942) AC 206 (Z21): holding "I view with apprehension the attitude of
Judges who on a mere Question of construction when face to face with Claims
involving the liberty of the subject show themselves more executive minded than
the executive."
Before proceeding further, relevant
would be to understand the jurisdictional prospects of terms “eligibility” and “fitness”, repeated used in the promotion matters of civil
servants, as most of the judge’s twist and unwantedly play with these
words. Eligibility, the grammatical
notion, implies the minimum fulfillment of “required or prescribed or laid down” qualifications for post, grade
or scale etc to be considered against such post, grade or scale. The judicial
dictums give sacred considerations to the discretion/power of authority to
promote/appoint any particular/eligible candidate. That is called the fitness
of such candidate to be promoted/appointed upon higher post/scale. Eligibility
is prescribed by rules/laws etc but the fitness for promotion is guided by
various factors, including discretion of authority etc. Rao Shamsher’s case 1992 SCMR 1388 is illustrative.
But the judgment reported as PLD 1994
SC 539 (MUHAMMAD ANIS VS ABDUL HASEEB), although runs counter to my
arguments, but grammatically defines meaning of said two words. At Page 551, it
was held “we are also of the view that the question of eligibility is different
from the question of fitness. Indeed, from the definitions of the words
“eligible” and “fit” given in the above dictionaries, it appears that the
meanings of the above two words are interchangeable and sometimes they carry
the same meanings. Even in the above Legal Thesaurus the word “eligible” has
been defined as “fit for appointment, fit for election, fit for selection, fit
to be chosen, legally qualified and suitable”:. Whereas Black’s Law Dictionary
defines the word “eligible” inter alia as qualified to be elected and legally
qualified to serve. It may again be pointed out that the Stroud’s Judicial
Dictionary has highlighted that the word “eligible” carries two different
meanings namely legally qualified or fit to be chosen. The question whether a
person is legally qualified for appointment or promotion to a particular post
and grade is relatable to the factum, whether he possesses the requisite
qualification for consideration,
whereas, the question of fitness pertains to the competency of the person
concerned to be decided by the competent authority. For example, under Article
193 (2) of the Constitution, the qualifications for being considered for
appointment as a high Court judge have been given. It does not that the persons
who possesses the said qualification are fit for appointment as judges of the
high Courts. The question of fitness of their being appointed is to be
determined by the functionaries mentioned therein.………… “
So the portions from Anis’s judgment reproduced above
would suggest that eligibility has to be extracted from the law prescribes it.
Such as Section 9 of (The Federal
Statute) Civil Servants Act 1973 enacts in that:-
PROMOTION: A Civil
Servant possessing such minimum qualification as may be prescribed shall be eligible for promotion to a
higher post for the time being served under the rules for departmental
promotion in the service or cadre to which he belongs.”
So consideration for promotion
is statutory right, rather fundamental right of civil servant as held in PLJ 2013 LAHORE 112 PERVAIZ AKHTAR VS FEDERAL
GOVERNMENT SB LHC. On the other hand, it
is held in case reported as that the case of ineligible person may not
be required to be considered by the central selection board at all. As such,
the consideration for promotion means a lawful, just and due consideration. See
2009 PLC CS 40, on the other
hand; it is settled law that no one can claim promotion as a matter of right.
All the interpretations qua Section 4(1) (b) are based on the literal rule
applied to the said law, none of the judgments tries to marshal in view of its
context, as to what was real mischief prior to its enactment. The legislative
history, debates prior to promulgation of Act 1974 could not be traced despite
putting all possible efforts. So the preamble of the ACT 1974 would serve this
basic purpose.
“An
Act to provide for the establishment of [Service] Tribunals to exercise jurisdiction regarding matters relating to
the terms and conditions of service in respect of services of the Province of
the
Furthermore, in AIR
1984 SC 121 it was held that the history, object, title and preamble of
the Act shall have to be taken into consideration while interpreting the
statute.
And in case reported as 2002
CLC 1910 the Division Bench of
Peshawar High Court held that speech of a mover of the bill can be
referred to ascertain the mischief sought to be remedied.
Preamble said, Lord Halsbury is regarded as part of
the statute for the purpose of explaining, restraining or even extending the
enacting words……….. . See AIR 1965 MP
183. It was held in 2010 SCMR
27
that the preamble and object of
a statute
should always be kept in mind while interpreting provisions of any act. Further held that the preamble is key to
understand the ACT. The position that the statement of objects and reasons was
primarily evidence of the object with which the prosper of the Bill introduced
the legislation was reiterated by the Supreme Court of India in case reported
as 2003 (1) SCC 506 by
holding that Court should rely on the statement of objects and reasons to
decide whether the arms in question came within the meaning of “prohibited
arms” in Section 2(1) of the Arms Act 1959. In AIR 1998 SC 2120 it was held that in addition to the
statement of objects and reasons the statement of the minister who has moved
the Bill in Parliament can be looked at to ascertain mischief sought to be
remedied by the legislation and the object and purpose for which the
legislation is enacted. It was also held in 2004 (2) SCC 249, that the statement of objects also
provides evidence of the intent with which a legislation is introduced. In 2003 (5) SCC 298, the Indian
Supreme Court held that statement of object and reasons was a useful
documentation of the circumstances prevailing at the time of the legislation.
In 2005 (6) SCC 281 it was
held that the Court must keep in mind the object of the enactment and the same
could be discerned from the statement of objects and reasons. Further held
in 2012 MLD
1413 that preamble of a
statute would always be considered key to the legislation.
The case cited as 2010 SCMR 539 KHAN GUL KHAN VS DARAZ KHAN is also illustrative at this juncture. The Court
while interpreting the Preemption Act 1991 resorted to preamble and held that preamble is key to understand the Act which is
always used to understand and interpret provisions of the Act keeping in view
the preamble of the statute. 2010 SCMR 27 ISMAEEL VS THE STATE
also helps my proposition, wherein the Court held that preamble and object of
a statute
should always be kept in mind while interpreting provisions of any Act. The Court further held that preamble is
key to understand the Act. Sindh High Court in case reported as PLD 2010
Karachi 236 has held that preamble
is to be read with other provisions of the statute to examine intro vires or
ultra vires of rules, regulations or bye-laws framed there under. Further held
that preamble is one of the important gauges to examine vires of rules,
regulations and/or bye-laws framed under delegated authority. Also see PLD
2007
It is however elementary
principle of interpretation that Elementary
maxim that where two constructions of a statutory provision are possible, then
that one is to be preferred which is designed to effectuate its particular
purpose or requirement and not the other which may tend to thwart and negative
the intent and the object which was sought to be achieved. .
In AIR 1965 SC 1839, it has been observed: "Very often in
interpreting a statutory provision, it becomes essential to have regard to the subject-matter of the statute
and the object which it is intended to achieve. That is the reason why in
dealing with the true scope and effect of the relevant words, the context in
which the words occur, the object of the statute in which the provision is
included, and the policy underlying the statute, become relevant and material. .......................”
Per rule held in Heydon’s case the interpretation of
particular statute also depends upon the law stood when the law to be construed
was passed, what the mischief was for which the old law did not provide, and
the remedy provided by the statute to cure that mischief". At the same
time, the language of the statute must not be strained to make it apply to a case
which does not legitimately, on its terms, apply by invoking consideration of
the supposed intention of the legislature. The true meaning of any passage, it
is said, is to be found not merely in the words of that passage; but in
comparing it with other parts of the law, ascertaining also what were the
circumstances with reference to which the words were used, and what was the
object appearing from those circumstances which the legislature had in view.
Then the office of all the Judges is always to make such construction as shall:--
(a) Suppress the mischief, and advance the
remedy, and
(b) Suppress subtle inventions and evasions for
continuance of the mischief, and pro privat ocommodo - for private benefit, and
(c) Add force and life to the cure and remedy,
according to the true intent of the makers of the Act, pro bono publico - for
the public good.
It was held in AIR
1960
The very purpose of creation of service tribunals was
to decrease the work load of Courts of ordinary jurisdiction, including the
high Court under Article 199 of Constitution of Pakistan 1973. Although the
tribunals enjoy the independent but limited powers of judicial review of
administrative actions, but they have wider jurisdiction under the respective ACTS, same could not be confused
with the extra ordinary powers exercised by the high Court. The existence
of order affecting the terms and conditions of civil servant and he being
aggrieved of that order is sine qua non for invoking jurisdiction of Service
Tribunal. Unless there was a specific order adversely affecting the civil
servant and he was found aggrieved, jurisdiction of Service Tribunal could not
be invoked and in those matters jurisdiction of Civil Courts, High Court, would
remain intact. See 2011 PLC (CS) 580.
The reason being so, tribunal are of limited jurisdiction and can assume
jurisdiction and deal with the orders challenged before them and cannot
exercise extra-ordinary jurisdiction just to counter the prospective damage to
the terms and conditions of civil servant. And while examining the legality of
adverse order, Service Tribunal could strike down the order or a rule, having
the effect of adversely affecting the terms and conditions of the civil
servant, it could issue directions of the appropriate nature to dilute the
adverse effect of impugned order but when a departmental Authority would not
act under law or rule, prolong or delay the matter the jurisdiction of High
Court would remain intact to issue a direction to Authority to act in
accordance with law and rule. In contradistinction, where the vested rights of
a civil servant are likely to be adversely affected against law or rule by any
proposed or threatened action of the departmental authority, the High Court can
intervene. The question of prospective declaration or direction would not arise
or restrain the high Court to issue writ. (Reproduced from my earlier Article
reported as PLJ 2011 TRC SERVICE 118
None of the judgments interpreted the Section 4(1) (b)
of Act 1974 with stringent rigors of Article 212 and also by keeping in view
alternative institutional mechanism introduced in the newly judicial realm.
Historical debates as said earlier could not be obtained. The Indian Supreme Court in case reported as Union of
The necessary corollary thereof is that the judicial
power of the State encompasses entrustment of power of adjudication not only to
regular Courts under Article 175 of Constitution but also to bodies called
'tribunals' established under Article 212. As said earlier, Supreme Court in
Riaz’s case has applied reading down theory while reading the tribunals in
Article 175 of Constitution of Pakistan 1973.The distribution of powers between
the
Punjab Service Tribunal is constitutionally required
to enforce the constitutional provisions, as held in Riaz’s Judgment cited above. Although the Sampath Kumar’s
judgment does not in totality consider the Indian service tribunals as
substitute to high Court while adjudicating rights of civil servants, but it
acknowledges their alternative characteristic in sharing the workload of
ordinary high Courts. The Punjab Service tribunal although functions and
controlled by ACT 1974 being subordinate legislation, but in no case, it has
less characteristic than the constitutional Court itself. Here I would differ
with Sampath Kumar’s judgment too and argue that Punjab Service Tribunal
although functions under constitutional subordinate legislation but it, for all
intents and purposes, is a constitutional Court.
Supersession (Fitness for promotion)
is a matter of terms and conditions of civil servant, consideration for
promotion is a matter of right as held in
2009 PLC CS 40, which
lays much emphasis on just and due consideration. Applying principles of
Shariah qua right of atleast one appeal as a matter of right, Section 4(1) (b)
also offends the same. In
PLD 2000 SC 1 it was
held that at least one right of appeal should have been provided by the
legislature
One would now imagine that how the Section 4 (1) (b)
of ACT 1974 being sub constitutional could offend the Article 212 itself, which
primarily authorized the provincial legislature to establish the tribunals.
Here the constitution itself by delegating the extra ordinary legislative
powers to the Punjab Legislature stays away from meddling into the affairs of
terms and conditions of civil servant. Such being the intention of constitution
itself, how could the suborindate provision destroy the fundamental
constitutional structure by disallowing the service appeal involving fitness of
civil servant to be promoted upon higher post. The division bench of Karachi
High Court in case reported as 2007
PCrLJ 1515 holds that National Accountability Ordinance, 1999, was a
sub-constitutional statute which could not override the Constitution, but it
was subservient to it. Further held that said ordinance
could not curtail constitutional powers of the High Court. The legislature in
JURISDICTION ASSUMED BY THE TRIBUNAL IN THE MATTER OF
FITNESS:
In case reported as 2007 PLC CS 1246 AZHAR HASSAN NADEEM VS
FEDERATION OF
The apex Court in case cited as
2002 SCM R 1056 ZAFAR ULLAH BALOCH VS GOVERNMENT OF
BALOCHISTAN and others
also took the same view by holding “…………performance
of civil servant is to be evaluated, on quantifying the marks secured by him as
per the in vogue formula. Where a right to consider the civil servant for
promotion has been claimed on the ground that he has been bypassed in violation
of the Promotion Policy, the Service Tribunal can examine the question of
fitness of such civil servant……….”
The
tribunal as well in case reported as 1998 P L C (CS) 936 holds
that if civil servants despite being
senior in service to opposing civil servants, were ignored and opposing civil
servants were granted Selection Grade despite nothing adverse was against civil
servants, case being of, injustice and favoritism, Service Tribunal could go
into the matter.
How illogical and irrational would be to argue that
when an employee is not considered for promotion, tribunal can interfere, but
when considered and knocked out either legally or illegally, no Court can grant
relief. And what would be the case when an employee is considered for promotion
per directions issued by the tribunal and subsequently rendered unfit either
legally or illegally. Why we only prefer high Courts under extra ordinary
constitutional jurisdiction, why not civil Courts for declaratory relief
against the unfitness/supersession determined by the authorities. Its mockery
over the Article 212 of Constitution of Pakistan. This could be rule of
interpretation, evolved as a matter of reasonableness and common sense and out
of the necessity of satisfactorily solving conflicts from the inevitable
overlapping of conflicts in the legislation. With respect to the judgments in
ousting the jurisdiction of tribunals in the matter of fitness/supersession,
these contentions it is enough to say that in passing upon constitutional
questions the Court has regarded to substance and not to mere matters of form,
and that, in accordance with familiar principles, the statute must be tested by
its operation and effect. It was further
submitted that in all such cases, the Court has to look behind the names, forms
and appearances to discover the true character and nature of the legislation.
THE UNCONSTITUTIONAL
ASPECT OF PROVISO TO SECTION 4 (1) (b)
The arbitrariness and offensiveness inherent in proviso to section 4 (1) (b) of ACT 1974 is
void, its consequent jurisdictional application by the tribunals, even without
considering the basic purpose of ACT 1974 and dismissing the service appeals
involving matters of fitness for promotion. It was never the permitted by
Article 212 to the
STRUCTURAL AND ETHICAL
MODALITY
At page 229 of case reported as
PLD 2010 SC 61 it was held
that any interpretation which seeks to comply with or advance principle of
policy enumerated in the constitution should be adopted as against an
interpretation which goes against the principles. Here comes Article 37 of our constitution dealing with promotion
of social justice and eradication of social evils. Article 37 (d) binds the
state to provide inexpensive and expeditious justice. See PLD 1973 SC 49 & PLD 1976 SC 713.
PLD 1999 SC 504 is also important to be referred wherein at page
7694 it was held that efficiency in Courts is a serious national problem, an
expression of grater public concern than even the threat of war, article 37 (d)
enjoins upon the state to ensure inexpensive and expeditious justice. Article 7
of constitution deliberately does not count the judicature within the
definition of state. For the time being, notwithstanding the chaotic position
in
LOGICAL & COMMON SENSE INTERPRETATION:
Besides the rules of interpretation
so far evolved, Courts have also considered and applied common sense
construction of statute. IN AIR 1929
ALL 750, it was held that where
there are two possible constructions, it is the duty of the Court to use the
common sense construction. In 2005 (5) (SCC) 375 it was held
that provisions of the statute must be interpreted keeping in mind the
legislature as well as the needs and times it has to serve. As life is not
static, the law cannot afford to be static. Law must be given dynamic
interpretation to achieve the ends of justice. The superior Courts in our
country should declare that service appeals involving matter of
fitness/supersession fall within the exclusive jurisdiction of service
tribunals to avoid chaos. Rightly noted at page 227 in Crawford’s
interpretation of statutes:- “ …no human wisdom can prepare law in such a form,
and in such simplicity of language as that it shall meet every possible complex
case that may afterwards arise …………. it has been shown that I is impossible to
word laws in such a manner as to absolutely exclude all doubts, or to allow us
to dispense with construction even if they were worded with absolute
mathematical precision, for the time for which they were made, because things
and relations change, and because different interests conflict with each other ………..”
The nutshell brings me to the
inescapable conclusion that the Section 4 (1) (b) of Punjab Service Tribunal
Act 1974 as well as proviso to Section 21 (2) of Punjab Civil Servants Act 1974
require suitable amendment by the competent law making authority to bring it in
direct conformity with the Article 212 of Constitution of Pakistan. The
representation barring provision also runs counter to principles of Shariah as
held in case reported as PLD 2000 SC
1 & PLD 2006 SC 602. I truly
suspect that the law making authority in Punjab under direct influence of
bureaucracy would never amend the suggested discprencies in the law,
resultantly the superior Courts have again to take pains in declaring so either
by removing the offensive law from the statute book or by interpreting in such
a way that brings it in harmony with Article 212 of constitution of Pakistan. I
am really thankful to Mr. M.A Riaz Advocate, who helped me a lot in
streamlining the arguments so made above.