ISLAMABAD: The Supreme Court declined the request of the federation and the counsels representing sacked employees to suspend its judgment on removal of thousands of public servants.
A three-judge bench, headed by Justice Umar Ata Bandial, on Thursday, heard the review petitions of the federal government and the sacked employees against its judgment to declare Sacked Employees (Reinstatement) Act, 2010 ultra vires of the Constitution and the Civil Servants Act, 1973.
As a result of the judgment, over 16,000 employees of various government and semi-government departments were rendered jobless.
The bench though did not suspend the judgment, but ordered that the affected employees shall not be evicted from the official residences and allowed the federal government to provide financial assistance to the affected employees, if so desired.
Attorney General for Pakistan (AGP) Khalid Jawed Khan earlier requested that if the Court does not suspend the judgment then the federation be allowed to retain services of the affected employees, till final order of the Court.
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The AGP said the case involves the humanitarian element, as many employees have been rendered jobless as a result of the impugned judgment. "We request to suspend the judgment, because it not only affected the 16,000 individuals, but 16,000 families."
The AGP argued that the affected employees were not benefited by the Act 2010. He further informed that affected employees were also neither before the apex court nor they were issued notices or impleaded party in this matter.
Khalid Jawed argued that the Attorney General for Pakistan was not heard on the question of vires of the Sacked Employees (re-instatement)Act, 2010 before the Act was declared ultra vires by this Court. The judgment suffers from other material legal defects and has been passed in ignorance of the judgment of the apex court in Ghulam Rasool vs Federation (PLD 2015 SC 6), he added.
He said whenever the vires of a statute is challenged the notices are issued to the Attorney General for Pakistan under Rule XXVII, adding the requirement of issuance of notice under Rule XXVII is mandatory in light of the Supreme Court judgments. The AGP contended the statute may suffer from flaw, but the efforts need to be made by the Court to save the statute by reading down the constitution.
Justice Bandial said if the government is trying to defend the Act for populous sympathy then it needs to bear in mind the cost. The attorney general said if the apex court considers the statute can't sustain, then the government would be bound to comply with the judgment. He pointed out that the impugned judgment failed to consider that each department and corporation is dealt under separate statutes.
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He said where employment in the public entity is governed under different statutes then those are not determined under the Article 242 and the Civil Service Act, 1973. The secretary Establishment Division in September 2021 had filed the review petition under Article 188 of Constitution and cited 93 individuals, who were affected by the judgment, as respondents.
It prayed to suspend the operation of the impugned judgment till the final disposal of the review petition. Justice Mushir Alam, before his retirement (August 17, 2021), delivered the judgment declaring the Act ultra vires and said the effect of such a declaration is that any/all the benefits accrued to be beneficiaries are to be ceased with immediate effect.
"The beneficiaries of the Act, 2010, who are still in service, will go back to their previous positions, i.e., to date when the operation of the Act 2010 has taken effect," the judgment further said. The review petition contended that the impugned judgment was reserved on 16 December 2019, and was announced on 17 August 2021 i.e. after 20 months, which is against the set principles of due process.
The submissions/arguments of the parties have not been recorded in the judgment, which indicates that due to passage of long period of time, important points that may have been raised by the parties during arguments escaped notice of the bench, which passed the judgment.
Copyright Business Recorder, 2021
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