Summary: Elections Act, 2017—Ss. 9(1), 9(5), 95(5) & 95(6)—Constitution of Pakistan, 1973—Arts. 175F(2), 185(3) [since omitted], 218(3)—Election dispute—Recounting of votes—Effect of earlier consent order of Supreme Court annulling proceedings—Meaning and scope of “proceedings”—Distinction between proceedings and process rejected—The Federal Constitutional Court held that once the Supreme Court, by consent of parties, had annulled “all the proceedings related to” the recounting application and remanded the matter to the Election Commission of Pakistan for fresh decision, the entire earlier chain of proceedings stood wiped out, including the processes adopted and the recount undertaken during those proceedings. The Court rejected the contention that although the proceedings stood annulled, the recounting process or its result survived independently. It was held that the term “proceedings” is comprehensive in nature and embraces every step, measure, and process taken from commencement of a cause until its culmination in a result or decision. Therefore, the Election Commission could not lawfully rely upon the earlier recount or its outcome after those proceedings had been set aside by the Supreme Court. The matter had to be considered afresh on the pending recount applications, uninfluenced by the previous recount result, and until such fresh determination the petitioner continued to hold the position of returned candidate. Election law—Recounting of votes—When permissible—Sanctity of ballot—Recount not to be ordered on vague or frivolous allegations—The Court reiterated that recounting is not to be ordered as a matter of course, but only on the basis of material demonstrating illegality or irregularity in the count and after satisfaction that there has been wrongful inclusion or exclusion of ballot papers. The sanctity of ballot was held to be sacrosanct, and recounting powers were to be exercised sparingly, only to do full justice between the parties and not to permit a roving inquiry designed merely to fish out material for voiding an election. In this context, the Court referred to Jam Madad Ali v. Asghar Ali Junejo and others (2016 SCMR 251). Election Commission of Pakistan—Fresh decision on recount application—Duty to comply with remand order in letter and spirit—The Court held that the Election Commission had failed to act in accordance with the Supreme Court’s order dated 20.11.2024, which required a fresh examination of the recount application after affording opportunity of hearing to all concerned and through a well-reasoned speaking order. Instead of deciding the recount application afresh on its own merits, the Commission unlawfully relied upon and effectively revived the previous recount and its result, even though the earlier proceedings had already been annulled. Such course was held to be unsustainable in law. The Court, therefore, directed the Election Commission to comply with the earlier Supreme Court order in letter and spirit and to decide the recount applications for PB-21 Hub afresh. If the applications are allowed, recount in 39 polling stations shall be conducted thereafter; if refused, the Commission shall proceed further in accordance with law. Interpretation of statutes and legal expressions—Word “proceedings”—Ordinary and legal meaning—The Court held that the word “proceedings” is of very wide import and, in legal parlance, includes every step taken towards further progress of a cause from its commencement till disposal, whether for relief, redress, or other remedial object. It also includes processes adopted in prosecution or defence of an action, and cannot be artificially confined so as to exclude acts forming part of the decision-making chain. In reaching this conclusion, the Court relied upon The State through Advocate-General, N.W.F.P., Peshawar v. Naeem Ullah Khan (2001 SCMR 1461), Member (S&R), Chief Settlement Commissioner, Board of Revenue, Punjab, Lahore v. Syed Ashfaque Ali and others (PLD 2003 SC 132), and Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others (PLD 2010 SC 61). Constitutional jurisdiction—Maintainability—High Court order and Election Commission order set aside—The Federal Constitutional Court concluded that the impugned judgment of the High Court of Balochistan dated 20.12.2024, as well as the Election Commission’s order dated 16.12.2024, were not sustainable in law because they failed to give effect to the true legal consequence of the Supreme Court’s earlier consent order. The Court accordingly granted leave, converted the petition into an appeal, and allowed the same. Case references—Jam Madad Ali v. Asghar Ali Junejo and others (2016 SCMR 251); The State through Advocate-General, N.W.F.P., Peshawar v. Naeem Ullah Khan (2001 SCMR 1461); Member (S&R), Chief Settlement Commissioner, Board of Revenue, Punjab, Lahore and another v. Syed Ashfaque Ali and others (PLD 2003 SC 132); Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others (PLD 2010 SC 61). The Court also expressly relied upon the earlier Supreme Court order dated 20.11.2024 passed in CPLA Nos. 3201/2024 and 3202/2024, by which all prior proceedings relating to the recount application had been annulled and the matter remanded to the Election Commission for fresh decision. Appeal allowed—Impugned orders set aside—Notification suspended—The Federal Constitutional Court granted leave, converted the petition into an appeal, and allowed it. The judgment of the High Court of Balochistan dated 20.12.2024 and the order of the Election Commission of Pakistan dated 16.12.2024 were set aside. The Election Commission was directed to decide the recount applications regarding 39 polling stations of PB-21 Hub afresh, strictly in accordance with the Supreme Court’s earlier order. Until such fresh decision, the notification declaring respondent No. 4 as returned candidate was suspended.

Summary: Public procurement / tender process--- ----Notice Inviting Tenders (NIT)---Undisclosed engineer’s estimate---Additional security---Rejection of bid---Forfeiture of earnest money---Debarment---Transparency and fairness in public procurement--- Petitioners invited tenders for improvement and widening of road project---Respondent bidder was successful for Package-I and had deposited earnest money at 2% of estimated cost disclosed in advertisement---Petitioners subsequently demanded 8% additional security on basis of engineer’s estimate, asserting that bid was 22.5% below such estimate---Said engineer’s estimate, however, had not been disclosed in NIT---On bidder’s refusal to deposit additional security, bid was rejected, earnest money forfeited, and bidder debarred for six months---High Court set aside such action---Validity---Federal Constitutional Court held that where petitioners had themselves computed earnest money on basis of estimated cost expressly mentioned in advertisement, they could not later shift to an undisclosed benchmark for imposing additional burden upon bidder---Such course offended requirements of transparency, consistency, fairness and equal treatment in public procurement---Any change in essential tender terms or introduction of a fresh financial benchmark after commencement of bidding process, without prior disclosure or fresh advertisement, was arbitrary and legally untenable---Judgment of High Court was found consistent with governing law and principles of public procurement---Leave to appeal was refused and petition was dismissed. Habibullah Energy Limited and another v. WAPDA through Chairman (PLD 2014 SC 47); Ishaq Khan Khakwani and another v. Railway Board through Chairman and others (PLD 2019 SC 602); Monarch Infrastructure (P) Ltd. v. Commissioner, Ulhasnagar Municipal Corporation and others (AIR 2000 SC 2272) rel. (a) Notice Inviting Tenders---Disclosure of material terms---Necessity--- In public procurement, all material and essential terms governing participation in the bidding process must be disclosed in the advertisement / Notice Inviting Tenders so as to ensure a free, fair, open, competitive and transparent process. An undisclosed criterion cannot subsequently be invoked to the prejudice of a bidder. (b) Additional security---Basis not disclosed in NIT---Effect--- Where the petitioners demanded additional security on the basis of an engineer’s estimate not mentioned in the advertisement, such demand was without lawful basis---A bidder could not be burdened with additional security calculated on a benchmark withheld from all participants at the time of tender. (c) Transparency, consistency and equal treatment---Public contracts--- The procuring agency, having calculated the 2% earnest money on the basis of the estimated cost expressly disclosed in the advertisement, could not lawfully switch to another undisclosed valuation standard later on---Such inconsistency violated the principles of transparency, fairness and equal treatment among bidders. (d) Change in essential tender terms after commencement of process---Propriety--- A change in an essential term or financial basis of tender after initiation of bidding process cannot be sustained unless the same is publicly notified through a fresh advertisement enabling all potential bidders to compete on equal footing---Midstream alteration of tender conditions is akin to changing the rules of the game after it has begun and is inherently arbitrary. (e) Rejection of bid, forfeiture of earnest money and debarment---Legality--- Where demand for additional security itself was founded on an undisclosed and impermissible basis, consequential actions of rejection of bid, forfeiture of earnest money and debarment of bidder could not be legally sustained. (f) Leave to appeal---Refusal of--- As the High Court had correctly applied the law and the settled principles of public procurement, no legal infirmity was found in the impugned judgment and no ground for interference was made out. Leave refused; petition dismissed.

Summary: Constitution of Pakistan, 1973--- ----Arts. 8, 10A, 175F, 199, 202A & Third Schedule---Income Tax Ordinance, 2001, S. 109-A---Constitution (Twenty-Sixth Amendment) Act, 2024---Constitution (Twenty-Seventh Amendment) Act, 2025---Challenge to vires of statutory provision---Jurisdiction of Constitutional Bench vis-à-vis Regular Bench under erstwhile Art. 202A---Dominant object theory---Ad-interim order suspending operation of law---Maintainability of challenge thereto---Petitioner, after availing 2018 Amnesty Scheme and declaring ownership of foreign company, was issued notice under S.109-A, Income Tax Ordinance, 2001---He challenged both vires of said provision and the notice issued thereunder before Sindh High Court, which initially granted ad-interim restraint against passing of any final adverse order---Later, Constitutional Bench of High Court recalled said interim order on ground that courts ought not suspend operation of law, particularly in revenue matters---Before Federal Constitutional Court, principal question was whether Constitutional Bench, under erstwhile Art. 202A, possessed jurisdiction to entertain matter whose dominant relief was declaration that impugned law was ultra vires---Held, challenge to vires of statute, in substance, sought relief under Art.199(1)(a)(ii), namely declaration that law was “without lawful authority” and “of no legal effect”, and not merely a direction under Art.199(1)(a)(i) or enforcement of fundamental rights simpliciter---Under pre-27th Amendment regime, such matter did not fall within exclusive jurisdiction of Constitutional Bench---Only forum competent to grant final relief could competently grant interim relief; therefore, Constitutional Bench lacked jurisdiction from the outset and its order recalling the earlier ad-interim order was without jurisdiction---Court further held that ad-interim order which had effect of suspending operation of law could validly be brought in challenge before this Court, as until law is finally declared ultra vires it must ordinarily continue to operate---However, in view of subsequent constitutional amendment, exclusive writ jurisdiction now vests in Constitutional Benches and similar matters would henceforth lie before such Benches---Matter was remanded to Sindh High Court for fresh decision by competent Bench in accordance with law. Kh. Muhammad Fazil v. Mumtaz Munnawar Khan Niazi (deceased) through legal heirs (2024 SCMR 1059); Attock Cement case (2024 SHC 1302); Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416); Rahim Shah v. Chief Election Commissioner (PLD 1973 SC 24); Federation of Pakistan v. Aitzaz Ahsan (PLD 1989 SC 61); Marbury v. Madison (5 U.S. 137 (1803)) rel. (a) Constitution of Pakistan, 1973---Art. 202A (as it stood before Twenty-Seventh Amendment)---Jurisdiction of Constitutional Benches of High Courts---Scope--- Under erstwhile Art.202A, Constitutional Benches were not vested with entire writ jurisdiction under Art.199 but only with limited classes of matters specified therein---Therefore, question whether matter was to be heard by Constitutional Bench or Regular Bench had to be determined by reference to true nature of relief claimed. (b) Constitutional jurisdiction---Dominant object theory---Application--- For determining proper forum under former Art.202A, Court must examine pleadings, prayer clause and ultimate effect of relief sought so as to ascertain dominant or substantive relief, while treating merely consequential relief as ancillary---Such exercise is judicial in nature and not dependent upon drafting alone. (c) Challenge to vires of statute---Nature of relief--- Where petitioner assails validity of statutory provision and seeks declaration that same is contrary to Constitution, dominant relief is one under Art.199(1)(a)(ii), namely that impugned law is “without lawful authority” and “of no legal effect”---Such relief is, in substance, in nature of certiorari / declaratory judicial review, even if consequential directions are also sought. (d) High Courts---Power of judicial review---Inherent constitutional authority--- Power of High Court to strike down law ultra vires Constitution is inherent in constitutional scheme and flows from its role as guardian of Constitution, read with judicial oath and constitutional supremacy---Such authority is not negated merely because relief of declaration is not textually set out in identical terms in every clause of Art.199. (e) Interim relief---Competence of forum--- Interim relief may only be granted by forum competent to render final decision on lis---Consequently, where Constitutional Bench lacked jurisdiction to decide vires challenge under former Art.202A, it also lacked competence to pass or recall interim orders in relation thereto. (f) Ad-interim order suspending operation of law---Propriety and challenge thereto--- As a general constitutional principle, until a law is finally declared ultra vires, it should ordinarily continue to operate in normal course---An interim order having effect of suspending operation of law, especially in revenue matters, is therefore open to challenge before this Court and cannot be shielded merely because it is ad-interim in form. (g) Twenty-Seventh Constitutional Amendment---Effect--- After enactment of Constitution (Twenty-Seventh Amendment) Act, 2025, exclusive writ jurisdiction under Art.199 now lies with Constitutional Benches of High Courts, and Regular Benches no longer possess such jurisdiction---Accordingly, a case of like nature would now fall to be heard by Constitutional Bench. (h) Remand---When warranted--- Where impugned order has been passed by a Bench lacking jurisdiction, proper course is to set aside such order and remit matter for fresh adjudication by competent Bench in accordance with law. Petition allowed; impugned order set aside; matter remanded for decision by competent Bench of Sindh High Court in accordance with law.

Summary: Constitution of Pakistan, 1973--- ----Art. 175E(5) & Federal Legislative List, Entry 49---Khyber Pakhtunkhwa Sales Tax on Services Act, 2022, Sch. 2, Serial No. 14---Provincial sales tax on services---Construction services---Challenge to vires---Tax on services vis-à-vis tax on goods---Scope of provincial taxing power after Eighteenth Amendment--- Petitioners challenged vires of Serial No. 14 of Schedule 2 to Khyber Pakhtunkhwa Sales Tax on Services Act, 2022 on ground that levy described as tax on “Construction Services” in substance included goods component of construction contracts, which, according to petitioners, could only be taxed by Federation under Entry 49 of Federal Legislative List---Federal Constitutional Court held that impugned provision, when read harmoniously with Entry 49, imposed tax only on services and not on goods---After Eighteenth Amendment, power to levy tax on services vested exclusively in Provinces, while Federation retained competence over taxes on sales and purchases of goods except sales tax on services---Impugned entry was confined to construction and allied services and was not inconsistent with Constitution---Even learned counsel for petitioners conceded that Serial No. 14 was confined to services and did not extend to goods---Accordingly, no ground was made out to strike down impugned law as ultra vires. Khyber Pakhtunkhwa Sales Tax on Services Act, 2022--- ----Levy on entire contractual consideration---Inclusion of goods component---Double taxation concern---Adjustment mechanism---Need for bifurcation--- Court, however, observed that grievance of petitioners substantially related not to vires of law but to manner of its implementation, as show-cause notices had demanded tax on entire contractual consideration for period from July 2021 to April 2022, including value of goods utilized in performance of contracts---Court noted that statute itself allowed claim of adjustments, including refunds, regarding tax paid under other laws on goods or taxable services used in provision of taxable services, and Memorandum of Understanding between FBR and KPRA also envisaged cross-adjustment to avoid double taxation---Matter was thus governed by existing law and administrative arrangement and did not warrant constitutional invalidation of impugned provision---Court nevertheless emphasized that KPRA should devise clearer mechanism, rules or Standard Operating Procedures requiring bifurcation of contractual consideration into service component and goods component so that only service portion is subjected to provincial sales tax and unnecessary hardship to taxpayers is avoided. Constitution of Pakistan, 1973--- ----Art. 175E(5)---Federal Constitutional Court---Jurisdiction---Tax reference involving vires of law--- Though tax references were not expressly enumerated within ordinary appellate jurisdiction of Federal Constitutional Court, challenge in present case involved substantial question of constitutional interpretation, namely vires of provincial law---Court held that Art. 175E(5) empowered it, on its own motion or otherwise, to call for record of “any case” from “any court” where substantial question of law as to interpretation of Constitution arose---Such power was unqualified and wide enough to include tax references and other proceedings even where express jurisdiction might not otherwise be specifically mentioned---Since vires of legislation inherently raised substantial constitutional question, Federal Constitutional Court was competent to adjudicate matter and, under present constitutional scheme, is sole apex forum for determining vires of legislation. (a) Provincial sales tax on services---Construction services---Constitutional validity--- After the Eighteenth Amendment, Provinces possess exclusive competence to levy tax on services, while Federation retains competence to tax goods under Entry 49 of Federal Legislative List, except sales tax on services---Serial No. 14 of Schedule 2 to Khyber Pakhtunkhwa Sales Tax on Services Act, 2022, being confined to “Construction Services” and allied services, was intra vires the Constitution. (b) Vires challenge---Harmonious construction of constitutional and statutory provisions--- Where constitutional entry and impugned statutory provision can be read harmoniously without contradiction, constitutional invalidation is not warranted---Impugned law did not trench upon federal taxing domain over goods merely because construction contracts may involve use of goods in course of service delivery. (c) Levy on whole contract amount---Goods and services mixed in construction contracts---Effect--- If tax is demanded on entire contractual consideration, inclusive of both service charges and cost of goods utilized in execution of contract, such grievance pertains to application and assessment mechanism rather than constitutional validity of charging provision itself---Province may tax service component only and not goods component. (d) Double taxation concern---Statutory adjustment and refund mechanism--- Where statute provides for adjustment or refund of tax paid under other laws on goods or taxable services used in provision of taxable service, and there exists inter-agency arrangement for cross-adjustment, apprehended double taxation is addressable within framework of law and does not by itself render charging provision unconstitutional. (e) Revenue administration---Need for bifurcation of contractual consideration--- Revenue authority should streamline process by first requiring taxpayer to identify and segregate portion of contractual consideration attributable to services and portion attributable to goods, so that provincial sales tax is levied strictly on services while goods component remains governed by federal sales tax regime---Formulation of rules or Standard Operating Procedures to this effect was recommended. (f) Federal Constitutional Court---Jurisdiction over tax reference involving vires of law--- Even though tax references are not expressly listed in ordinary heads of jurisdiction, Art. 175E(5) authorizes Federal Constitutional Court to call for and adjudicate “any case” from “any court” if it involves substantial question of law as to interpretation of Constitution---Challenge to vires of legislation inherently raises such question and therefore falls within jurisdiction of said Court. (g) Present constitutional scheme---Forum for striking down legislation--- Under present constitutional arrangement, authority to adjudicate upon vires of legislation and to strike down laws on constitutional grounds vests in Federal Constitutional Court, and not in Supreme Court, wherever substantial question of constitutional interpretation is involved. Leave refused; petitions dismissed; impugned judgment affirmed.

Summary: Income Tax Ordinance (XLIX of 2001)--- ----S. 175---Power to enter and search premises---Scope and conditions for exercise---Pending proceedings, necessity of---Interpretation of taxing statute--- Petitioner challenged validity of raid conducted by tax authorities under S.175 of the Income Tax Ordinance, 2001, contending that said provision could only be invoked where some proceedings were already pending against taxpayer and that prior notice issued under S.176 of the Ordinance could not by itself justify raid---Federal Constitutional Court examined plain language of S.175 and held that provision expressly authorized Commissioner, or officer authorized by him in writing, to enter and search premises, without prior notice, in order to enforce any provision of the Ordinance, including for purpose of audit of taxpayer or survey of persons liable to tax---Court held that no requirement of pre-existing or pending proceedings could be read into statute when legislature had not imposed any such limitation in express terms---Interpretation adopted in Agha Steels Industries v. Directorate of Intelligence and Investigation (2019 PTD 2119), to effect that there must be pending proceedings and search was measure of last resort, was respectfully disagreed with as such gloss was unsupported by statutory text and amounted to diluting clear legislative command---However, Court further clarified that power under S.175 was not unlimited or unfettered, but conditional in nature, since term “enforce” necessarily postulated breach or occasion for enforcement, and there must therefore be clear written statement identifying provision of Ordinance sought to be enforced and reasons for invoking coercive power so as to guard against abuse---In present case, impugned judgment of High Court upholding raid did not suffer from legal infirmity warranting interference---Leave to appeal was refused and petition was dismissed. Agha Steels Industries v. Directorate of Intelligence and Investigation (2019 PTD 2119); K.K. Oil and Ghee Mills Pvt. Ltd. v. FBR (2016 PTD 441); Khurram Shahzad v. Federation of Pakistan (2019 PTD 1124); Edwards v. Edwards (1876) 2 Ch.D. 291 rel. (a) Interpretation of statute---Plain meaning rule---Application--- Where words of statute are clear, plain and unambiguous, Court must give effect to their ordinary meaning and cannot import into provision restrictions, qualifications or conditions not chosen by legislature---Primary duty of Court is to ascertain intention of legislature from language actually employed in enactment. (b) Section 175, Income Tax Ordinance, 2001---Pending proceedings---Whether prerequisite--- Section 175 authorizes Commissioner or duly authorized officer, without prior notice, to have access to premises, accounts, documents and computers in order to enforce any provision of the Ordinance, including for audit or survey---Nothing in text of provision makes pendency of proceedings against taxpayer a condition precedent for exercise of such power---Such requirement cannot be judicially engrafted into statute. (c) Search and raid under S.175---Whether last resort--- View that search under S.175 may be resorted to only as last measure where there is obstruction in pending proceedings was not borne out by statutory language---Courts are not competent to dilute or rewrite a clear taxing provision on ground of perceived severity, such matter being within legislative domain. (d) Section 175---Nature of power---Conditional, not unfettered--- Although existence of pending proceedings is not necessary, power under S.175 is nevertheless not absolute---Use of expression “in order to enforce any provision of this Ordinance” signifies that power is linked with enforcement of law and therefore presupposes some breach or legally cognizable occasion requiring enforcement---Authorities must clearly identify, in writing, provision of Ordinance sought to be enforced and reasons for such action, failing which power may be open to abuse. (e) Notice under S.176---Effect on power under S.175--- Mere fact that information or documents had earlier been sought under S.176 did not, by itself, negate or exclude subsequent exercise of power under S.175, where competent authority considered enforcement action necessary within meaning of statute. (f) High Court judgment---Interference in leave jurisdiction---Scope--- Where impugned judgment did not suffer from any legal infirmity in light of proper construction of S.175 and surrounding facts, no case for interference in leave jurisdiction was made out. Leave refused; petition dismissed.

Summary: Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983--- ----Arts. 9(2), 29 & 32---Constitution of Pakistan, 1973, Art. 199---Service matter---Pensionary benefits---Jurisdiction of Wafaqi Mohtasib---Bar regarding personal grievance of public servant---Effect of undertaking given before Ombudsman---Representations before President---Maintainability of constitutional petition--- Petitioner, retired employee of Telephone Industries of Pakistan, sought redress before Wafaqi Mohtasib regarding non-settlement of pensionary benefits, including cost of living allowance, restoration of commuted pension and annual increases---Chief Financial Officer of employer gave written undertaking before Mohtasib that pension issues would be resolved within 30 to 45 days, whereupon complaint was disposed of with direction for compliance---On review, Mohtasib further directed employer to place matter before Board of Directors and determine date of payment---Representation before President was dismissed on limitation, but High Court in constitutional jurisdiction set aside orders of Mohtasib and President on ground of want of jurisdiction---Federal Constitutional Court held that grievance raised by petitioner was plainly a personal service grievance relating to his employment in agency where he had served, and thus fell squarely within bar contained in Art. 9(2) of the Order of 1983---Wafaqi Mohtasib had no lawful authority to entertain such complaint or pass directions thereon, and orders passed by him were coram non judice and void ab initio---Bar of jurisdiction of Courts under Art. 29 of the Order of 1983 did not preclude interference by High Court where order of Ombudsman suffered from want or excess of jurisdiction---Dismissal of representation before President on ground of limitation did not validate inherently void order, nor did exhaustion of alternate remedy bar constitutional jurisdiction in such case---Undertaking or participation by employer before Ombudsman could not confer jurisdiction on forum expressly barred by statute, nor could doctrine of estoppel operate against law---High Court had rightly set aside impugned orders---Leave was refused and petition dismissed. Pakistan International Airlines Corporation Karachi v. Wafaqi Mohtasib and others (1998 SCMR 841); Peshawar Electric Supply Company Ltd. v. Wafaqi Mohtasib (Ombudsman), Islamabad and others (PLD 2016 SC 940); Muhammad Afzal v. Board of Revenue, West Pakistan and another (PLD 1967 SC 314); Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, N.-W.F.P. (PLD 1995 SC 66); Maulvi Aziz-ur-Rehman v. Ahmad Khan and others (2004 SCMR 1622); Multan Electric Power Company Ltd. v. Muhammad Ashiq and others (PLD 2006 SC 328); Syed Muhammad Hussain Shah v. Abdul Qayyum and others (2011 SCMR 743) rel. (a) Wafaqi Mohtasib---Jurisdiction---Service matters of employees of agency---Bar contained in Art. 9(2), Order of 1983--- Article 9(2) of the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 expressly prohibits Wafaqi Mohtasib from accepting for investigation any complaint by or on behalf of a public servant or functionary concerning any matter relating to agency in which he is or has been working, where grievance pertains to his personal service affairs---Such matters are to be agitated before competent fora constituted for service disputes, and not before Ombudsman. (b) Pensionary claim of retired employee---Nature of dispute--- Claim regarding recalculation of pension, inclusion of cost of living allowance, restoration of commuted portion of pension and grant of annual increases is a personal grievance arising out of service and retirement benefits---Such dispute falls within exclusionary clause of Art. 9(2) of the Order of 1983. (c) Order passed without jurisdiction---Effect--- Any order passed by Wafaqi Mohtasib in a matter expressly excluded by Art. 9(2) is without lawful authority, coram non judice and void ab initio---Such order cannot be sustained irrespective of merits of underlying claim. (d) Article 29, Order of 1983---Bar of jurisdiction of Courts---Scope--- Statutory bar against challenge to action or order of Wafaqi Mohtasib does not oust constitutional jurisdiction of High Court where impugned order suffers from want or excess of jurisdiction, is coram non judice, or has been passed in violation of law---In such cases, judicial review under Art. 199 of the Constitution remains available. (e) Representation before President under Art. 32, Order of 1983---Dismissal on limitation---Effect--- Dismissal of representation on technical ground of limitation does not amount to affirmation of impugned order on merits, nor does it cure inherent jurisdictional defect in original proceedings---Even a decision on merits cannot validate an order that is a nullity for want of jurisdiction. (f) Alternate remedy---Exhaustion of statutory recourse---Whether bars writ jurisdiction--- Availability or even exhaustion of alternate statutory remedy does not operate as absolute bar to constitutional jurisdiction where impugned order is ex facie contrary to statute or passed without jurisdiction---High Court remains competent to correct such illegality. (g) Undertaking before Ombudsman---Consent, waiver or acquiescence---Effect on jurisdiction--- Jurisdiction is creature of statute and cannot be conferred by consent, waiver, acquiescence, silence, participation or undertaking of parties---An employer’s written undertaking before Ombudsman to resolve employee’s grievance cannot validate proceedings before a forum expressly barred by law from entertaining such matter. (h) Estoppel against statute---Non-application of doctrine--- Doctrine of estoppel does not operate against statute---No concession or conduct of parties can override express prohibition contained in Art. 9(2) of the Order of 1983. (i) Undertaking given before incompetent forum---Remedy--- Although undertaking given before Wafaqi Mohtasib cannot cure lack of jurisdiction, aggrieved person may, if so advised, agitate effect of such undertaking before a competent forum in accordance with law. Leave refused; petition dismissed.

Summary: Summary pending

Summary: Summary pending

Summary: (a) Sindh Civil Servants (Appointment, Promotion & Transfer) Rules, 1974----R.11-A---Deceased son/spouse quota---Accrued right to appointment---Effect of subsequent declaration of invalidity of rule---Respondents, being spouse/children of deceased Sindh civil servants, sought appointment under Rule 11-A---Province contended that in view of General Post Office, Islamabad and others v. Muhammad Jalal (PLD 2024 SC 1276), Rule 11-A having been struck down, no appointment could thereafter be made, particularly when no formal appointment letters had yet been issued---Held, relevant event for accrual of right was death of civil servant, and as soon as death occurred, one of children and/or spouse acquired right to be appointed in service under the deceased quota---Submission of application and issuance of appointment letter were merely administrative acts and did not determine creation of right---Since right had already accrued in favour of respondents before abolition of the rule, subsequent judgment striking down Rule 11-A did not defeat such accrued entitlement. (b) Judgment of Supreme Court---Prospective operation---Accrued and closed rights---Held, judgments of the Supreme Court ordinarily operate prospectively and not retrospectively---Subsequent invalidation of Rule 11-A could not divest beneficiaries of rights already accrued prior to such pronouncement---Supreme Court had also clarified in a later decision that judgment reported as PLD 2024 SC 1276 did not wipe out accrued rights or disturb past and closed transactions---Therefore, respondents’ claims remained protected notwithstanding later declaration of invalidity of the enabling rule. Reliance was placed on Pir Bakhsh represented by his legal heirs v. Chairman Allotment Committee PLD 1987 SC 145 and Zahida Parveen v. The Government of Khyber Pakhtunkhawa and others (CPLA No.566-P/2024). (c) Constitution of Pakistan---Constitutional petition---Interference in appeal by Federal Constitutional Court---Held, Sindh High Court had rightly accepted writ petitions of respondents and directed Province to appoint them on deceased son/spouse quota, as no legal infirmity existed in its reasoning---Province’s objection that no right had culminated because appointment letters had not been issued was misconceived, since the substantive right had crystallized on death of employee and not on completion of administrative formalities---No case for interference was, therefore, made out. Petitions were dismissed, leave was refused, and appointments under deceased son/spouse quota were held protected on account of accrued rights arising prior to striking down of Rule 11-A.

Summary: Summary pending