A temporary instrument cannot create indefeasible, permanent right or liability: FCC

ISLAMABAD: A temporary instrument (Ordinance) cannot create an indefeasible, permanent right or liability unless that permanence is subsequently validated and adopted through an Act of Parliament with retrospective effect.

A three-member bench of Federal Constitutional Court (FCC) led by Chief Justice Aminuddin, set aside the Islamabad High Court judgment and dismissed the writ petitions of Imtiaz Ali Qureshi, former member of academics, and Waqas Mahmood, former member registration in the Ministry of Federal Education. ]

The legal issue before the FCC was whether the appointments made under the Islamabad Capital Territory Private Educational Institutions Ordinance, 2009 (2009 Ordinance), still hold the field despite the repeal of the Ordinance(s) and the subsequent enactment of the Islamabad Capital Territory Private Educational Institutions (Registration and Regulation) Act, 2013, which does not save the past actions undertaken under the said Ordinance(s).

The judgment said that the Act of 2013 contains no express saving clause to validate or protect the appointments, employment arrangements, rules, rights, or liabilities created under the earlier, temporary Ordinance(s) which had already lapsed upon the expiry period prescribed under the Constitution.

It noted that the purported rights were acquired under a temporary statute which has since lapsed. To grant these rights perpetual existence would amount to giving the Executive absolute authority to legislate as and when it pleases. “A temporary instrument cannot create an indefeasible, permanent right or liability unless that permanence is subsequently validated and adopted through an Act of Parliament with retrospective effect.”

The judgment also said that Article 189 (1) of the Constitution stipulates clearly that the judgments of this Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other courts in Pakistan, including the Supreme Court. “In this context, the binding effect of the judgments of this Court is not only confined to the ratio decidendi but also obiter dicta,” it added.

Any observation made by this Court in any judgment or order, which has the effect of deciding a question of law or is based upon or enunciates a principle of law, shall be binding on all courts including the Supreme Court. In holding so, we draw wisdom from some of the judgments of the Supreme Court which, when it was the highest court of the country, observed to the effect that its obiter dicta carry binding effect on all courts including High Courts.

Ministry of Federal Education and Professional Training (Ministry of FE&PT) on 13-07-2009 through advertisement invited applications for appointment to various posts in the Islamabad Capital Territory-Private Educational Institutions Regulatory Authority (ICT-PEIRA) on permanent basis.

Imtiaz Ali Qureshi, respondent No. 1, and Waqas Mahmood were appointed as members. Their appointments were challenged through petitions under Article 199 of the Constitution on the ground that under the Islamabad Capital Territory Private Educational Institutions Chairman and Member (Academic) and Member (Registration) (Appoint-ment and Qualifications) Rules, 2015, such appointments were required to be for a period of three years, whereas they had been appointed permanently.

The IHC, vide order dated 13.01.2020, directed that the matter of Qureshi and Mahmood be placed before the Federal Cabinet.

Consequently, the Ministry of FE&PT, vide notification(s) dated 03.12.2021, terminated the services of Qureshi and Mahmood as Member (Academics) and Member (Registration), ICTPEIRA, respectively, with effect from 23.11.2021. Qureshi and Mahmood assailed their termination by way of petitions under Article 199 of the Constitution, which were allowed by the Judge-in-Chambers vide judgment dated 22.07.2022. Intra-Court Appeals (ICAs) filed by the petitioner against the said judgment were dismissed vide the impugned judgment.

Copyright Business Recorder, 2026