Summary: Summary pending

Summary: (Against the judgment dated 28.01.2025 passed by the Islamabad High Court, Islamabad in C.M.A. No. 409 of 2024). (a) Federal Public Service Commission Ordinance (XLV of 1977)--- ----S. 7(3)(d)---Pakistan Citizenship Act (II of 1951), S. 17---Succession Act (XXXIX of 1925), Part-II---Civil Service Regulations, Vol-I, R. 310-A, Schedule---Domicile after marriage---Scope---Authorities were aggrieved of acceptance of candidature of respondent for post in question on the basis of domicile of her husband---Validity---Theories of domicile span several disciplines––law, human geography, and residential mobility, each highlighting how one’s place of habitual residence affects jurisdiction, migration patterns, and settlement dynamics---Domicile must always be interpreted in light of underlying purpose it is meant to serve---In Pakistan, concept of domicile is recognized in Part II of Succession Act, 1925 and section 17 of Pakistan Citizenship Act, 1951 and Schedule to Rule 310-A of Civil Service Regulations, Volume I---Such provisions acknowledge changes of domicile through dependence, voluntary relocation, choice, or marriage---Procedural framework for obtaining, modifying, renewing, or cancelling domicile is outlined in the Pakistan Citizenship Rules, 1952---For civil servants, the applicable domicile regime is set out in the Schedule to Rule 310-A of Civil Service Regulation, Volume I, which explicitly recognizes change of domicile through marriage and other modes, and affirms that the domicile of a married woman ordinarily follows that of her husband---Supreme Court set aside orders of FPSC whereby respondent’s candidature was rejected---Supreme Court directed FPSC to consider the case of respondent for appointment for post in question as the same was lying vacant, on the basis of her Balochistan domicile strictly in accordance with law and after complying with all codal formalities---Appeal was dismissed. A. Rahim Foods (Pvt.) v. K & N's Foods (Pvt.) PLD 2023 SC 516; Wafaqi Mohtasib v. SNGPL PLD 2020 SC 586; Dr. Riffat Kamal v. Federation of Pakistan 2015 SCMR 847; Officer Incharge Army Housing v. Federation of Pakistan PLD 2024 SC 576; Rasheed Ahmad v. Federation of Pakistan PLD 2017 SC 121; Sindh Irrigation and Drainage Authority v. Government of Sindh 2022 SCMR 595; Muhammad Mubeen us Salam v. Federation of Pakistan PLD 2006 SC 602; Dr. Rashid Anwar v. Federation of Pakistan 1996 PLC (C.S.) 1073; Ellison Kahn, 'The South African Law of Domicile of Natural Persons' (1971) 1971 Acta Juridica 1; Albert Levitt, 'The Domicile of a Married Woman - I - The Older View' (1920) 91 Cent LJ 4; Black's Law Dictionary (9th edn, West 2009) 558; Words and Phrases (Permanent edn, vol 13, West 1952) 425-26; Corpus Juris Secundum (vol 25, West 1956) 2-3; District Education Officer (Female), Charsadda v. Sonia Begum 2023 SCMR 217; Muhammad Yar Khan v. Deputy Commissioner 1980 SCMR 456; Joan Mary Carter v. Albert William Carter PLD 1960 SC 616; Mark v Mark [2005] UKHL 42; Cragnish v. Craignish [1892] 3 Ch. 180; Pradeep Jain v. Union of India (1984) 3 SCC 654; Mohammad Raza v. State of Bombay, AIR 1966 SC 1436; Peter Stone, Conflict of Laws (Longman Law Series 1995); Waicker v. Hume (1858) 10 HLC 124; Paul Torremans, 'Domicile, Nationality and Residence' in Paul Torremans (ed), Cheshire, North & Fawcett: Private International Law (15th edn, OUP 2017); Anggi Fitratama Rianto Putra and Rifqi Ridlo Phahlevy, 'The Concept of Domicile in Filling Government Positions in the Regions' (2024) 1(4) Journal of Geography, Regional Planning and Development; JG Castel, 'Domicile' (1958) McGill LJ 179; Dr. Muather Gul v. Government of Khyber Pakhtunkhwa 2025 MLD 36; Najm-un-Nisa v. Government of Khyber Pakhtunkhwa 2021 PLC (C.S.) 434; Dr. Shama Hidayat v. Chairman Public Service Commission 2018 PLC (C.S.) Note 93; Shabnam v. Government of Khyber Pakhtunkhwa 2015 PLC (C.S.) 1111; Fareeda Noor v. Mehar Muhammad Nawaz 2005 CLC 669; E. H. Deering, 'Coverture and Lasting Effects of Gender Inequality: An Analysis through Equal Protection Jurisprudence' Washington University Jurisprudence Review (Volume 16, Issue 2, 2024); Reed v. Reed 404 U.S. 71 (1971); Frontiero v. Ricardson 411 U.S. 677 (1973); Kirchberg v. Feenstra 450 U.S. 455 (1981); Bombay Labour Union v. Messrs International Franchises AIR 1966 SC 942; C. B. Muthamma v. Union of India AIR 1979 SC 1868; Air India v. Nargesh Meerza AIR 1981 SC 1829; Joseph Shine v. Union of India AIR 2018 SC 4898, Murdoch v. Murdoch [1975] 1 SCR 423; Bhe v. Magistrate Khayelitsha 2005 (1) SA 580 (CC); Domicile and Matrimonial Proceedings Act, 1973 (U.K.); Domicile Act, 1976 (New Zealand); Domicile Act, 1982 (Australia) and Section 52, Women's Charter 1961 (Singapore); Teo Ka Fook v Loo Chiat Hui [2010] MLJU 636; Pakistan ratified the CEDAW on April 12, 1996; Articles 2, 5, 15 and 16, CEDAW; Mauzam Hanif v. Settlement Officer 2006 SCMR 642; Qaisar Khan v. Government of Khyber Pakhtunkhwa 2021 SCMR 67; Muhammad Shakoor and Rehan Safdar v. Federal Public Service Commission PLD 2007 SC 381; Hadayat Ullah v. Federation of Pakistan 2022 SCMR 1691; Ajit Singh v. State of Punjab (1999) 7 SCC 209; Barbara Geddes, Politician's Dilemma: Building State Capacity in Latin America (University of California Press 1994); Paul P Craig and Adam Tomkins (eds), The Executive and Public Law: Power and Accountability in Comparative Perspective (Oxford University Press 2006); Wahiduddin v. Province of Sindh 1980 PLC (C.S.) 390; The Mysore State Civil Services Rules, 1957; I.P.S. (Regulation of Seniority Rules, 1954); R. N. Nanjundappa v. T. Thimmiah AIR 1972 SC 1767; Dr. P. Dananjayan v. The Principal (Writ Appeal No. 1423 of 2019); Waqar Zafar v. Haji Mazhar Hussain Shah PLD 2018 SC 81; Aftab Shahban Mirani v. Muhammad Ibrahim PLD 2008 SC 779; Mohsin Ali Hasani v. Government of Pakistan 1990 SCMR 1685 and Yaqub Ali Khan v. Federal Public Service Commission 2019 SCMR 413 rel. (b) Civil service--- ----Establishment Division Office Manual, 1971, O. M. No. 1/14/71-TRV dated 20-09-1971---Domicile---Female civil servant---Principle---Exception to general principle under O.M. 1971, whereby domicile of a civil servant stands frozen upon entering civil service, has been carved out in the case of female officers who marry during service---Recognizing constitutional values of equality, dignity and realities of social mobility that accompany marital life, a limited concession is provided whereby a woman officer may, only once, adopt domicile of her husband if she seeks appointment to a post through direct recruitment---Such exception acknowledges that marriage often entails a change in residence and social identity and aims to accommodate such transitions without violating broader principle of domicile integrity---Such option is strictly a one-time concession in the entire service tenure of female officer---Once exercised, the new domicile (based on husband’s domicile) stands frozen and remains immutable regardless of whether the officer is subsequently divorced, widowed, or remarries a person from another province---Such safeguard ensures that the exception does not evolve into an instrument of circumvention or manipulation and preserves the constitutional scheme of fair and equitable representation across the Federation. (c) Constitution of Pakistan--- ----Art. 176---Role of Supreme Court and its Judges---Scope---Real role of Supreme Court and its Judges is not merely a forum for resolving disputes; it is the constitutional conscience of the nation, tasked with producing progressive and principled jurisprudence that breathes life into the Constitution and bridges distance between law and the lived realities of the people---It is the ultimate guardian of fundamental rights and final sentinel against Executive or Legislative overreach---Judges of Supreme Court are not passive interpreters of text, they are the custodians of liberty, equality, and institutional independence---Supreme Court must remain alive to the evolving aspirations of society and innovate new remedies to advance justice---Judges are to act with integrity and courage, to resist all encroachments, external or internal that threaten to erode the autonomy of the judiciary or subvert the rule of law---Judges must not fall prey to the lure of small, short-term benefits, whether of elevation, power, or personal comfort that may accrue if they speak the language of authority rather than that of the Constitution---Such benefits are illusory and transient---True reward of a Judge lies in preserving dignity of the institution and trust of the people---It is also the solemn duty of Judges of Supreme Court to call out, with moral clarity and institutional courage, those among their ranks who surrender to the power of the day at the cost of constitutional principles---Critique from within, when rooted in fidelity to the Constitution, is not disloyalty, it is the highest form of service to the judicial institution---History is a vigilant witness, it does not remember those who accommodated power but those who stood resolute in defense of principle---Jurisprudential legacy of a Judge is not built on appeasement but on principled defiance when the soul of justice is imperiled---Courts must never become tools of expediency, rather they must be lighthouses of constitutional morality and guardians of democratic integrity---History does not absolve judges who abandon their constitutional duty; it remembers them not as dispensers of justice, but as collaborators in injustice. Rashideen Nawaz Kasuri, Addl. A.G.P. along with Haroon Rasheed, Director FPSC, Sana Ullah Islam, J.S, Establishment Division, Government of Pakistan and Masroor Hussain, D.S, Establishment Division, Government of Pakistan for Petitioner. Barrister M. Saad Umer Buttar, Advocate Supreme Court along with Moiz Gul and Ms. Maheen Junaid, Advocates for Respondents. Ms. Asma Hamid, Advocate Supreme Court, Amicus Curiae. Assisted by: Umer A. Ranjha, Judicial Law Clerk and Ms. Uzma Zahoor Civil Judge/Research Officer, Supreme Court of Pakistan. Date of hearing: 22nd May, 2025.

Summary: Under Section 7(f)(ii) of PEEDA, where charge of absence from duty for a period of more than one year is proved, the penalty of compulsory retirement, or removal or dismissal from service shall be imposed. However, if the absence from duty is not more than one year, the Authority has option to impose any one or more penalties mentioned under section 4 of PEEDA, however, such discretion must be reasoned, supported by cogent justification and in accordance with principles of proportionality and administrative fairness. 379Writ Petition- Land- Consolidation 2535-15 MUHAMMAD BUX ETC VS MBR ETC Mr. Justice Ch. Sultan Mahmood 17- 06- 2025 2025 LHC 4147

Summary: (a) Civil Servants Act, 1973 – S. 2(1)(b); Constitution of Pakistan – Arts. 4, 25, 27, 34 & 35 – Status of Civil Servant – Female Government Officer’s Right to Change Domicile Respondent, a female civil servant originally appointed under KPK domicile, changed her domicile to Balochistan post-marriage and applied for direct recruitment to a post under Balochistan quota—Held, respondent remained a “civil servant” within the meaning of S. 2(1)(b) of the Civil Servants Act, 1973 and was rightly subject to recruitment regulations applicable to civil servants—Mere success in competitive exam does not confer a vested right of appointment—FPSC acted within administrative capacity; locus standi to file appeal was upheld—Change of domicile after marriage is not automatic but a matter of legal choice, and constitutionally protected where permitted under policy. (b) Civil Service Regulations, Vol I – R. 310-A; Office Memoranda (O.M.) 1971 & 1975 – Change of Domicile During Service – Female Officer’s One-Time Right Held, under O.M. 1971, domicile declared at entry into service is frozen and immutable during service tenure to preserve provincial quotas and inter-federal equity—However, O.M. 1975 read with R. 310-A, CSR Vol. I, carves a gender-sensitive exception: married female civil servants may exercise a one-time option to adopt husband’s domicile for direct recruitment—Such change does not disrupt seniority or service structure if the recruitment involves a distinct post and fresh scale—Court affirmed the validity of respondent’s change of domicile under O.M. 1975 as a permissible and final legal exercise. (c) Interpretation of Service Law – “Direct Recruitment” vs. “Initial Recruitment” – Scope and Application Held, terms “direct recruitment” and “initial recruitment” are interchangeable in service jurisprudence—Both apply to appointments made otherwise than by promotion or transfer—Thus, in-service civil servants are eligible for “direct recruitment” to new posts if they meet criteria and obtain departmental NOC—O.M. 1975 applies equally to in-service female officers seeking fresh appointment on new posts, enabling one-time domicile adoption in line with spousal domicile. (d) Gender Equality – Article 25(3) of the Constitution – Women-Centric Constitutional Interpretation Court adopted purposive, gender-sensitive interpretation of O.M. 1975 in harmony with Art. 25(3), 34 and 35 of the Constitution—Held, law must be applied to recognize historical disadvantages faced by women—Affirmative action through lawful accommodation (e.g., permitting change of domicile for direct recruitment) is a constitutionally sanctioned tool to promote substantive gender equality—Respondent’s legal right to adopt her husband’s domicile for one-time use upheld as valid and non-discriminatory. (e) PMDC Regulations, 2018 – S. V(5), (6) & (9) – Validity of Experience Certificate – Jurisdiction of Certifying Authority Held, PMDC is the competent statutory authority to assess teaching experience in medical faculty appointments—PMDC’s unchallenged certification confirming respondent’s qualifying experience in BS-18 and BS-19 roles carries legal finality—Internal arrangements or terminology used by PIMS do not override PMDC’s certification—FPSC cannot disregard or override PMDC’s jurisdiction—Objections to experience certificate rejected as baseless. Disposition: Petition dismissed—Orders of FPSC dated 10.07.2024 and 02.10.2024 rejecting respondent’s candidature were set aside—FPSC directed to consider respondent for appointment to post of Associate Professor on Balochistan quota within 15 days—Court upheld respondent’s domicile change and experience as lawful. Cited Constitutional Provisions and Statutes: • Constitution of Pakistan, 1973 – Articles 4, 25(3), 27, 34, 35 • Civil Servants Act, 1973 – S. 2(1)(b) • Civil Service Regulations, Volume I – R. 310-A • Establishment Division O.M. Nos. F.8/5/75-WC (1975) & 1/14/71-TRV (1971) • Pakistan Medical and Dental Council Regulations, 2018 • Citizenship Rules, 1952 Notable Cases and Authorities Cited: • Muhammad Mubeen us Salam v. Federation of Pakistan PLD 2006 SC 602 • Dr. Rashid Anwar v. Federation of Pakistan 1996 PLC (C.S.) 1073 • District Education Officer v. Sonia Begum 2023 SCMR 217 • Waqar Zafar v. Mazhar Hussain Shah PLD 2018 SC 81 • Hadayat Ullah v. Federation of Pakistan 2022 SCMR 1691 • Mohsin Ali Hasani v. Government of Pakistan 1990 SCMR 1685 • Yaqub Ali Khan v. FPSC 2019 SCMR 413 • Lord Denning’s dissent, and international references including CEDAW Articles 2, 5, 15 & 16

Summary: (a) Punjab Civil Servants Act (VIII of 1974)--- ----S.10(1)(i)---Termination of service---Probation period---Scope---Services of probationers can be terminated without notice during initial or extended period of probation---Where no stigma of misconduct including inefficiency or corruption is attached, it is case of termination simpliciter and question of any prior show-cause notice does not arise. ������ Muhammad Siddiq Javaid Chaudhry v. The Government of West Pakistan PLD 1974 SC 393; Ch. Muhammad Hussain Naqshbandi v. Government of the Punjab and others 2004 SCMR 44 and Syed Tathir Hussain Shirazi v. The Governor of the Punjab and others 1990 SCMR 1510 rel. (b) Punjab Public Service Commission Regulations, 2016--- ----Regln. 63---Recommendation, withdrawal of---Principle---Jurisdiction under Regln. 63 of Punjab Public Service Commission Regulation, 2016 has been conferred upon Punjab Public Service Commission to withdraw the recommendation made for appointment against any post proposed for appointment through the Commission. (c) Punjab Civil Servants Act (VIII of 1974)--- ----S. 10(1)(i)---General Clauses Act (X of 1897), S. 21---Punjab Public Service Commission Regulation, 2016, Regln. 63---Withdrawal of recommendation---Unfair means, use of---Termination of service---Locus poenitentiae, principle of---Applicability---Punjab Public Service Commission withdrew its recommendations in favour of respondents / candidates on the allegation of use of unfair means during examination---Authorities terminated services of respondents / candidates who were still on probation---Judge in Chambers of High Court, in exercise of Constitutional jurisdiction set aside the orders passed by authorities---Validity---Using of unfair means in examination shatters confidence of public in examination system---Piecemeal cancellation of examination process encourages the racket involved in such nefarious scam of cheating which remains unnoticed in the process either by maneuvering with the invigilators of the examination or otherwise---Instead of cancelling candidature of few candidates, entire recruitment through such process may be set aside---Respondents/candidates who opposed such withdrawal of recommendations had no vested right in the examination conducted by authorities and the Commission had jurisdiction under the principle of the locus poenitentiae as well as S. 21 of General Clauses Act, 1897 to make decision to conduct test again---Such re-test would cause no prejudice to respondents / candidates because if they had confidence in their abilities and intellect, then in the next examination they would again be in a better position---If the examination was not re-conducted, those candidates who were involved in unfair means would be in advantageous position as compared to those students who had worked hard and burnt midnight oil while preparing for the examination---Division Bench of High Court declined to interfere in the decision of the Commission and the authorities, as the same was not open to any exception---Punjab Public Service Commission withdrew recommendations of candidates in 12 different departments out of which new tests were taken in 09 departments and the matter was pending for 03 departments only due to pending litigation---Division Bench of High Court set aside the judgment passed by Judge in Chambers of High Court and restored the order passed by the Commission---Intra Court Appeal was allowed in circumstances. ������ Province of Punjab through Secretary, Finance Department, Civil Secretariat, Lahore and others v. Atta Muhammad Zafar and others 2021 SCMR 1195; Abrar Hassan v. Government of Pakistan and another PLD 1976 SC 315; Mian Muhammad Nawaz Sharif and others v. Muhammad Habib Wahab Al-Khairi and others 2000 SCMR 1046; Abdullah Jumani and others v. Province of Sindh and others 2024 SCMR 1258; Federal Government Employees Housing Authority through Director General, Islamabad v. Ednan Syed and others PLD 2025 SC 11; Federation of Pakistan through Secretary, Ministry of Interior, Government of Pakistan � v. Ashba Kamran � and others I.C.A. No.53628/2024; Suo Motu Action Regarding Eligibility of Chairman and Members of Sindh Public Service Commission and others 2017 SCMR 637; Rashid Ali Channa and others v. Muhammad Junaid Farooqui and others 2017 SCMR 1519; Hafsa Habib Qureshi and others � v. Amir Hamza and others PLD 2024 SC 780; Ali Sher Khan � v. District and Sessions Judge, Multan and others 2022 PLC (C.S.) 492; Mst. Saba � v. The Province of Sindh through Secretary and 2 others 2020 PLC (C.S.) 113 and Rida Fatima � v. Pakistan Medical Commission and others PLD 2022 Lah. 197 rel. ������ Rana Shamshad Khan, Additional Advocate General, along with Tahir Mehmood, Law Officer, PPSC, Ali Niaz, Law Officer, PPSC and Mian Muhammad Iqbal, Director (Legal), PPSC for Appellants. ������ Abid Hussain Saqi, Mian Bilal Bashir, Bilal Hasan Minto, Barrister Muhammad Saram Israr, Moeen Yousaf and Syed Hussain Raza for Respondents in Intra Court Appeals. ������ Hafiz Tariq Nasim, Jawad Tariq Nasim, Usman Shafiq for Petitioners (in W.P.No.29811/2021). ������ Barrister Taha Shaukat and Barrister Salman Khalid for Petitioners (in W.P.No.28399/2021). ������ Saifullah Maan for Petitioners (in W.P.No.28711/2021). ������ Sohaib Rumi for Petitioners (in W.P.No.16781/2025). ������ Dates of hearing: 13th and 20th May, 2025. ������ CH. MUHAMMAD IQBAL, J.--- Through this single judgment, we intend to decide the titled Intra Court Appeal [No.13336/2022] as well as the connected appeals/writ petitions mentioned in Appendix annexed with this judgment as common questions of law and facts are involved in these cases.

Summary: Intra Court Appeal --- Appointment on the recommendation of PPSC---Proven use of Malpractice, unfair means in the test, interview in inquiry conducted by Anti Corruption Establishment. --- PPSC withdrew its recommendation for appointment of alleged successful candidate on the said post--- On said recommendations concerned Department terminated their newly appointed employee during probation without any stigma--- As per the Regulation 26 and 63 of Regulations-2016, the Commission is competent to withdraw its earlier recommendations sent to the concerned department if a person has been found deficient in any conditionality regarding his / her eligibility as a candidate and if any error or omission in result or merit is found, even after dispatch of recommendation to the concerned department.--- The appointing authority has jurisdiction to terminate its newly appointed employee without assigning any reason or serving any show cause notice during the period of probation. --- Public Service Commission and Government were obliged to ensure complete transparency in the process of selection / appointment of civil servants and if an incompetent or the corrupt persons enter into the civil service at the unwarranted ouster of the eligible and competent candidate from public post / job opportunities such appointments which disregard the merit, undoubtedly perpetuate bad governance and would drained the public exchequer and such appointments also thwart the credibility of the Commission. High Court has no suo moto jurisdiction to take cognizance of the matter---- Intra Court Appeals allowed. Writ petition of the respondent stood dismissed. 385Crl. Revision 1601133.41-

Summary: FEDERATION OF PAKISTAN through Secretary Ministry of Law and Justice Government of Pakistan and others-Respondents (On appeal against the Order dated 23.01.2023 passed by the High Court of Sindh, Karachi in C.P. No. D-2901 of 2022). Federal Service Tribunal (Chairman and Members) Service Rules, 1983- -R.5-Service Tribunals Act (LXX of 1973), S.3(4)-Constitution of Pakistan, Art. 205-Tenure post of Chairman, Federal Service Tribunal (FST)-Grant of pensionary benefits-Scope-Claim of the petitioner for pensionary benefits after completion of tenure of the post of Chairman, FST, for a term of 03 years was rejected on the ground that terms/contract of appointment of a certain length of service could not be construed as regular service for pensionary benefits-Validity-High Court, while rendering the order, followed an altogether different pathway to decline the claim and also failed to consider the impact and effect of Rule 5 of the Federal Service Tribunal (Chairman and Members) Service Rules, 1983 (Rules), which could not be made inconsequential or redundant and which unambiguously articulates that if a person, who is neither a Judge nor retired Judge of a High Court, nor is or has been in the service of Pakistan, is appointed as Chairman, he shall be entitled to such salary, allowances, and privileges as are admissible to a Court-It was also mentioned in the notification of appointment that when the petitioner assumed charge as a Chairman, he should be entitled to such pay, allowances, and privileges as were admissible to a Judge of the High Court as may be prescribed from time to time-Rejection of the representation or the denial of the claim of pension was primarily based on the tenure of the petitioner as a High Court Judge, however, while declining the request, the Rules were not taken into consideration with its actual spirit, in particular Rule 5 of the said Rules-Case was remanded for de novo consideration on the touchstone of Rule 5 of Rules so as to determine the entitlement of the petitioner or otherwise-Civil petition was converted into an appeal and was disposed of accordingly.

Summary: (On appeal against the Order dated 23.01.2023 passed by the High Court of Sindh, Karachi in C.P. No. D-2901 of 2022). Federal Service Tribunal (Chairman and Members) Service Rules, 1983--- ----R.5---Service Tribunals Act (LXX of 1973), S.3(4)---Constitution of Pakistan, Art. 205---Tenure post of Chairman, Federal Service Tribunal (FST)---Grant of pensionary benefits---Scope---Claim of the petitioner for pensionary benefits after completion of tenure of the post of Chairman, FST, for a term of 03 years was rejected on the ground that terms/contract of appointment of a certain length of service could not be construed as regular service for pensionary benefits---Validity---High Court, while rendering the order, followed an altogether different pathway to decline the claim and also failed to consider the impact and effect of Rule 5 of the Federal Service Tribunal (Chairman and Members) Service Rules, 1983 (Rules), which could not be made inconsequential or redundant and which unambiguously articulates that if a person, who is neither a Judge nor retired Judge of a High Court, nor is or has been in the service of Pakistan, is appointed as Chairman, he shall be entitled to such salary, allowances, and privileges as are admissible to a Court---It was also mentioned in the notification of appointment that when the petitioner assumed charge as a Chairman, he should be entitled to such pay, allowances, and privileges as were admissible to a Judge of the High Court as may be prescribed from time to time---Rejection of the representation or the denial of the claim of pension was primarily based on the tenure of the petitioner as a High Court Judge, however, while declining the request, the Rules were not taken into consideration with its actual spirit, in particular Rule 5 of the said Rules---Case was remanded for de novo consideration on the touchstone of Rule 5 of Rules so as to determine the entitlement of the petitioner or otherwise---Civil petition was converted into an appeal and was disposed of accordingly. Dr. Muhammad Farogh Naseem, Advocate Supreme Court along with Petitioner. Mohsin Shahwani, Additional Attorney General for Respondents. Ghulam Rasool Mangi, Advocate-on-Record for Respondents. Sajjad Mustafa, S.O, Ministry of Law for Respondents. Date of hearing: 12th June, 2025.

Summary: The petitioner was appointed as Ombudsperson Protection against Harassment of Women at the Workplace, Punjab vide notification dated 17.06.2021 for a term of two years. Subsequently, subsections (5) and (6) in Section 7 were added by way of the Amendment Act which was published in the Punjab Gazette (Extraordinary) on 12.01.2022, whereby term of office of the Ombudsperson has been stipulated for four years. Such amendment has not only fixed tenure of the Ombudsperson to be four years but also curtailed her eligibility for extension of tenure or re-appointment. The commencement clause of the Amendment Act clearly stipulates that it "shall come into force at once." This legislative phrasing indicates an immediate application of the amended provisions upon their enactment. Since the Amendment Act, including the revised tenure stipulated in the amended Section 7, came into force while the petitioner was still serving as the Ombudsperson, the extended tenure of four years became applicable to her office. In the absence of any legislative expression within the Amendment Act explicitly suggesting that the new tenure provision would only apply to future appointments, it squarely applied to the petitioner and the notification dated 01.04.2022 was lawfully issued by the Government of the Punjab to give immediate effect to the Amendment Act whereby tenure of the petitioner as Ombudsperson was extended to four years with effect from her initial taking of charge on 18.06.2021. 392Crl. Revision 63117/24 Muhammad Afzal Vs The State etc. Mr. Justice Tariq Mahmood Bajwa 11- 06- 2025 2025 LHC 4795 2025 PCr.LJ 1919 (Lahore)

Summary: (a) Constitution of Pakistan ---- Arts. 4, 9, 18, 25 & 199 --- Civil Aviation Authority Ordinance, 1982 ---- S. 21(1) --- CAA Service Regulations, 2000 --- Contract Employment --- Regularization --- Ultra Vires --- Maintainability --- Aforesaid Civil Petitions for leave to appeal are directed against judgment dated 12.01.2021, passed by High Court of Sindh, Karachi, in Constitutional Petitions No. D-2576 and D-3167 of 2020 --- Short-lived facts of case are that respondent No. 2 is statutory body incorporated under Pakistan Civil Aviation Authority Ordinance, 1982 ("Ordinance") --- CAA Service Regulations, 2000 ("Regulations") was framed pursuant to provisions of Ordinance --- Regulations were revised first in year 2014 and then in year 2019 --- Respondent No.2 advertised certain vacancies in newspapers and petitioners applied against vacant posts on merit, and after qualifying written test and interview, they were appointed on contract basis for two years --- Contract period was subsequently extended, and after being granted extension of their last contract, Departmental Head recommended their case for further extension --- However, vide letter dated 20.05.2020, petitioners were informed that they will not be allowed further extension --- According to revised Regulations in 2019, maximum time limit for contract service was fixed as five years --- Petitioners, in serious apprehension that their period of contract service will not be extended, filed CP No. D-3167/2020 for relief that their appointment may be declared regular appointment and that Regulation 21(1) of Regulations is ultra vires Constitution of Islamic Republic of Pakistan, 1973 ("Constitution") and fundamental rights guaranteed under it --- High Court clubbed CP No. D-2576/2020 and CP No. D-3167/2020 together and dismissed both petitions vide consolidated judgment dated 12.01.2021 on ground that Civil Aviation Authority ("CAA") has no statutory rules --- However, High Court failed to consider that vires of Regulations were also under challenge, on which there was no discussion --- Learned counsel for petitioners argued that under rules and statutes of CAA, there is no mention of Contract or Project post, and no procedure laid down to fill such post --- It was further contended that contract appointments, without any backing of law, are not only unlawful but also amount to exploitation --- He further argued that neither plea of vires of regulations was considered nor any other crucial questions raised were taken into consideration, and though case law was noted in impugned judgment, but without appreciating same, High Court found it distinguishable --- It was further averred that if contract appointment is made against permanent post involving duties/work of permanent nature through transparent selection process, then it would be considered regular appointment --- According to learned counsel, revised Regulation 21(1) of Regulations are ultra vires fundamental rights guaranteed under Constitution, but High Court had dismissed petitions without considering or giving any findings on whether aforesaid Regulation is ultra vires or intra vires --- Learned counsel for CAA argued that petitions were not maintainable before High Court and fully supported impugned judgment --- He further argued that this Court, in various dicta, already held that contract employees cannot invoke constitutional jurisdiction for their regularization or otherwise, and proper remedy for contract employee, if there is any breach of contract, is to file civil suit --- However, when we confronted learned counsel on whether question of vires raised by petitioners was decided by High Court, learned counsel frankly conceded that no such issue was dealt with or decided in impugned judgment --- Heard arguments --- According to facts narrated in CPLA No.407-K of 2021 (CP.No.D-3167/2020 before High Court), petitioner No.1 (Syed Saad Ali) applied against one vacancy of Assistant Director (IT) (Data Base Administrator -EG-01), while petitioner No.2 (Syed Zia-ul-Haq) applied against vacancy of Assistant Director (IT) (Oracle Functional Consultant -EG-01) --- Both petitioners, in their writ petition, sought declaration that their appointment by way of direct recruitment in EG-01 is regular appointment and they further challenged vires of Regulation 21 (1) of Regulations, same being ultra vires their fundamental rights, and prayed to High Court to strike it down as unreasonable --- Moreover, Office Memorandum dated 20.05.2020, issued pursuant to Regulation 21(1) of Regulations, was also challenged, with prayer that since they were performing their duties against permanent post for last 5 years, hence directions be issued against respondents to regularize their services --- Whereas, in CP No. 449-K of 2021 (CP No.D-2576 of 2020 before High Court), claim of petitioner (Javed Iqbal) was that he was commissioned in Pakistan Air Force in year 1993 and having more than 17 years of service at his credit, he was sent on deputation to CAA on 29.08.2001 and was posted as ADC to Deputy DG (Ops. CAA) --- He remained on deputation till 16.12.2005 and also submitted application, as per Regulations, for his permanent absorption, which was processed and he was consequently asked to seek retirement from his parent organization --- It is further stated by said petitioner that he was appointed as Airworthiness Safety Inspector, Ex-Cadre "B" (PG-10), on 25.01.2008 after fulfilling all codal formalities for regular appointment in CAA, but he was appointed on contract basis --- He had also prayed to High Court for declaration that he is regular employee and is entitled to serve till age of superannuation, and that respondents may be directed to issue his notification as regular employee --- Bone of contention before High Court in CP No.D-3167/2020 was challenge to alleged vires of revised Regulation 21 (1) of Regulations, whereby it was articulated that "subject to upper age limit criteria, authority may fill regular post or temporary post, or project post on contract basis for specified period, initially for two years to be renewed, upon satisfactory performance --- Provided that fresh yearly contract to be executed up to maximum of five years" --- Learned counsel for petitioners collectively argued that plea of ultra vires was not taken into consideration by learned High Court and impugned judgment, in this regard, is silent --- It is translucent from impugned judgment that while jotting down other relevant facts in CP No.D-3167/2020, learned High Court also mentioned that petitioner has prayed for declaration to effect that revised Regulation 21(1) of Regulations is ultra vires fundamental rights of petitioners and same be struck down being unreasonable --- It is further reflected from arguments of Mr. M. M. Aqil Awan, Sr. ASC (mentioned in impugned judgment) that he strongly objected to decision of respondent (CAA) of introducing Regulation 21(1) of revised Regulations --- Learned Division Bench of High Court acknowledged and noted that petitioners also attacked revised Regulation 21 (1) of Regulations, under which time limit was provided for contractual appointment, but learned High Court, in paragraph 10 of impugned judgment, without adverting to plea of vires raised by petitioners and argued by their learned counsel, confined judgment to question of regularization in service of CAA alone, and in same scenario, held that contractual employees have no vested right to be regularized unless it has specifically been provided for under terms and conditions of appointment and law --- Ultimately, writ petitions were not found maintainable either on facts or in law --- Terms "intra vires" and "ultra vires" are both Latin phrases, and diametrical opposites --- Expression ultra vires means "beyond powers" --- If act entails legal authority and it is done with such authority, it is symbolized as intra vires, that is, within precincts of powers, but if it is carried out shorn of authority, it is ultra vires --- It is well-settled that constitutionality of any law, rules, or regulations, can be scrutinized and surveyed, and law can be struck down if it is found to be offending Constitution due to absence of law-making and jurisdictive competence, or found in violation of fundamental rights enshrined therein --- At same time, it is established precept of interpretation of laws, one backed by judicial sagacity and prudence in form of numerous precedents of superior courts, that law should be saved rather than be destroyed and court must lean in favour of upholding constitutionality of legislation unless it is ex facie violative of constitutional provision --- Function of judiciary is not to legislate or question wisdom of legislature in making particular law, nor can it refuse to enforce law --- Doctrine of severability permits court to sever unconstitutional portion of partially unconstitutional statute in order to preserve operation of any uncontested or valid remainder --- Words contained in statutes, rules, or regulations, are first to be understood in their natural, ordinary, or popular sense, and phrases and sentences are construed according to their grammatical meaning, unless that leads to some absurdity or unless there is something in context, or in object of statute, to suggest contrary --- Vires of law, rules, or regulations can be challenged if its provisions are ex facie discriminatory, in which case actual proof of discriminatory treatment is not required to be shown, but there is also presumption in favour of constitutionality of enactments, unless it is ex facie violative of constitutional provision --- Reference can be made to judgment of this Court rendered in case of Lahore Development Authority v. Ms. Imrana Tiwana and others (2015 SCMR 1739), wherein this Court summarized applicable rules while determining constitutionality of statute and also referred to various other judicial precedents --- It is well settled exposition of law that each case has to be decided on its own facts --- Every litigant deserves fair chance of being heard and decision of court must be founded and structured on facts of case --- It is admitted position that learned High Court neither considered plea of vires of Regulation under challenge nor discussed anything in this regard in impugned judgment which completely ignored and overlooked same --- Doctrine of "sub-silentio" accentuates legal principle where judgment is rendered without specifically and precisely avowing or attending to exact question of law raised for determination --- In fact, sub silentio, Latin term, literally translates to "under silence" or "in silence" --- In legal milieus, it points towards incidence where Court decides lis without appreciating or deliberating particular point of law raised before it, which disturbs precedential value of judgment --- This doctrine often denotes that if court, in its judgment, overlooked or dispensed with crucial point of law raised before it, then precedential value of such decision is seriously disturbed --- Decision is not binding if it was reached at without argument, without reference to critical terms of law, and without citation of authority --- Such decision, taken as sub silentio, lacks authoritative weight --- This Court, in case of Uch Power (Pvt.) Ltd. v. Income Tax Appellate Tribunal (2010 PTD 1809), explained that decisions sub silentio have no precedential value --- Such decisions are defined as "those which are given on point of law not perceived by Court or present to its mind" --- Whereas, in case of Municipal Corporation of Delhi v. Gurnam Kaur ((1989) 1 SCC 101), Supreme Court of India, while quoting Salmond on Jurisprudence, explained that decision passed sub silentio in technical sense is when particular point of law involved in decision is not perceived by court or present to its mind --- Aforesaid Civil Petitions were converted into appeal and allowed vide our Short Order dated 12.06.2025 --- As consequence thereof, impugned consolidated judgment dated 12.01.2021, passed by High Court of Sindh, Karachi, in Constitutional Petitions No.D-2576 and D-3167/2020, was set aside and matter was remanded to High Court for fresh adjudication, expeditiously, preferably within period of three months, excluding period of summer vacations --- Above are reasons assigned in support of our Short Order --- Petitions were allowed accordingly.