ISLAMABAD: The federal government has proposed the restoration of sacked employees from BS-1 to BS-7 and to hold test for BS-8 to BS-17 or above working in respective departments/bodies/corporations before the Supreme Court judgment through the Federal Public Service Commission (FPSC).
A five-judge larger bench, headed by Justice Umar Ata Bandial, on Wednesday, heard the review petitions of the federal government and the sacked employees against its judgment, which declared Sacked Employees (Reinstatement) Act, 2010, ultra vires.
The bench said they would deliberate upon the proposals and decide Thursday (Dec 16).
Attorney General for Pakistan Khalid Jawed Khan submitted the government proposals for the relief of sacked employees. He said 5,947 employees of 45 divisions/departments/corporations were affected by the impugned judgment, adding no employees of seven Division were affected.
He reiterated its submission to recall its judgment and accept the review petitions, filed against it and pass order for reinstatement of the sacked employees. He said if the Court is not inclined to review the petitions then consider the federal government proposals.
The employees who were working in the departments/bodies/corporations before the apex court judgment of 17th August may be allowed to continue their services in the light of its judgments in Muhammad Akram vs Registrar Islamabad High Court, and Dr Naveeda vs Punjab government.
The employees from BS-8 to BS17 or above working in the departments/bodies/corporations before the apex court judgment of 17th August will have to undergo appropriate process/test to be conducted by FPSC. He said the purpose of test is to determine whether the sacked employees are fit to hold the post to which they were appointed. The exercise may be completed within three months. Their past service will be treated as ad hoc and would not count for the purpose of seniority, which would be based on the date of regular appointment after recommendation of the FPSC.
The cases of those employees who have retired from their service or passed away may be treated as past and closed transaction. However, it shall not entitle them to pension, as they were never regularised constitutionally.
An employee affected by the judgment and who had filed cases earlier which were disposed of solely on the basis of the ordinances or the Act, 2010, are free to approach the respective courts and the courts may decide the cases in accordance with the law. However, they will not be non-suited on account of laches alone.
Earlier, advocate Faisal Siddiqui, representing the Pakistan State Oil (PSO), argued that the legislation, which confers rights or imposes liabilities by having cut-off dates is not unconstitutional simply because the cut-off dates are not mathematical or logically precise or that precise reasons are missing from the text of the statute but rather they can be struck down only if they are completely arbitrary, capricious, or whimsical. In determining reasonable classification, the courts have generally show deference to legislative judgment except where the classification is without any basis at all and suffers from hostile discrimination.
He contended that any declaration of unconstitutionality under Article 8(1) of Constitution is only void and does not amount to either void ab initio or repeal. Therefore, any declaration of unconstitutionality under Article 25 of Constitution against the Sacked Employees (Reinstatement) Act, 2010 can only be prospective, as applying to persons yet to be reinstated under the said law, whose appeals were decided by the Court through impugned judgment or are yet to be decided. So no such void law can be made in the future.
The legislature can nullify the effect of a judgment both in terms of its precedent value as well as the rights accrued to the respective parties under the said judgment, if it can remove the defect on the basis of which the judgment was pronounced. He argued that the notwithstanding clause in the Sacked Employees (Reinstatement) Ordinance, 2009 and the Act 2010 could override the earlier judgment of the courts not to reinstate the rest of the employees, but this notwithstanding clause has to be read down as only applying to cases in which the defect was curable without amending the law.
Copyright Business Recorder, 2021
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