ISLAMABAD: The Supreme Court has declared that the high courts do not have suo motu power under Article 199 of the Constitution and they commit judicial overreach when they exercise powers beyond the compass of powers and jurisdiction.
A three-judge bench, headed by Justice Jamal Khan Mandokhel, and comprising Justice Muhammad Ali Mazhar and Justice Syed Hasan Azhar Rizvi held on the petitions against the Sindh High Court judgment regarding regularisation of the services of ad hoc or contract employees, whose contractual services were extended from time to time with the total length of six years.
The Sindh government in 2013 promulgated the Sindh (Regularization of Ad hoc and Contract Employees) Act, 2013. According to Section 3 of the 2013 Act, an employee appointed on an ad hoc and contract basis against the post of BS-1 to BS-18 who is eligible for appointment on such post, and is presently in service with any government department of Sindh, shall be deemed to have been validly appointed on a regular basis. On 16.09.2014, the Sindh government constituted three scrutiny committees for screening the credentials and antecedents of ad hoc or contract employees for their regularisation in service.
It was contended before the Supreme Court that the regularisation of a large number of employees was reversed by the SHC and the impugned judgment, has committed judicial overreach by declaring the 2013 Act to be ultra vires. The said 2013 Act was never under challenge before High Court but was addressed in the exercise of suo motu jurisdiction.
The judgment authored by Justice Muhammad Ali Mazhar stated that it is a settled exposition and ratification of law that the High Court does not possess any suo motu jurisdiction under Article 199 of the Constitution as compared to this Court (SC) which has been bestowed exclusive jurisdiction by virtue of Article 184(3) of the Constitution which is not interchangeable, switchable or transposable to the High Court while exercising jurisdiction under the sphere and dominion of Article 199.
The Court can scrutinise and survey the constitutionality of any law challenged before it, and also strike it down if it is found to be offending the Constitution for absenteeism of law-making and jurisdictive competence or is in violation of fundamental rights.
The judgment said it is a well-settled exposition that the law should be saved, rather than be destroyed. The function of the judiciary is not to legislate or question the wisdom of the legislature in making a particular law, nor can the judiciary refuse to enforce a law. The intention of the legislature is primarily to be gathered from the language used.
It also said if the vires of a law is challenged, the burden always rests upon the person making such challenge to show that the same was violative of any of the fundamental rights or the provisions of the Constitution and where more than one interpretation is possible, the Court must prefer the interpretation which favours the validity without attributing mala fide to the legislature. Referring the judgment of Lahore Development Authority through D.G. and others v. Imrana Tiwana and others (2015 SCMR 1739) it said: “The power to strike down or declare a legislative enactment void, however, has to be exercised with a great deal of care and caution. It must enforce the Constitution as the Supreme Law but this duty must be performed with due care and caution and only when there is no other alternative.”
The Supreme Court set aside the SHC’s judgment dated 08-04-2021 and remanded it the matter for deciding the constitution petitions afresh.
Copyright Business Recorder, 2024
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