TERENCE J SIGAMONY

ISLAMABAD: The Supreme Court declared Sacked Employees (Reinstatement) Act 2010 to be ultra vires of the Constitution and that any/all the benefits accrued to the beneficiaries are to be ceased with immediate effect.

A three-judge bench headed by Justice Mushir Alam and comprising Justice Qazi Muhammad Amin Ahmed and Justice Amin-ud-Din Khan, on Tuesday, announced the reserved judgment against the judgments of various high courts.

The employees of Intelligence Bureau (IB), Commissioner Afghan Refugees, National Highways Authority, Pakistan Telecommunication Company Ltd, Overseas Pakistani Foundation, State Life Insurance Corporation of Pakistan, Civil Aviation Authority, Wapda, Sui Southern Gas Company Limited, Trading Corporation of Pakistan, Karachi, have challenged the vires of the Act 2010.

The appellants/petitioners have impugned the appointments/promotions under the Sacked Employees (Reinstatement) Ordinance Act, 2010, employees who were the regular employees of the organisations/departments, whose seniority has been affected by the employees inducted under the Act of 2010; and those persons who have not been extended the benefit of the Act of 2010.

Justice Mushir Alam, who laid down his robe on attaining the age of superannuation on Tuesday, authored the judgment.

It said that the apex court, in light of Shahid Pervaiz case, is empowered/mandated to examine the benefits accruing to each recipient and undo the same if it is not a past and closed transaction. Therefore, the cases of employees who have retired and/or passed away are past and closed transactions as we do not find it appropriate to interfere in their cases as it will be an exercise in futility.

It said that the beneficiaries of the Act of 2010, who are still in service, will go back to their previous positions, ie, to the date when the operation of the Act of 2010 has taken effect. However, it would be inequitable to reverse any monetary benefits received by them under the Act of 2010 for the period they have served and those shall remain intact as they were granted against service.

However, the lump sum received by such “sacked employees” upon reinstatement shall be reversed.

The judgment said that the Act of 2010 does not fulfill the criteria laid down by this Court in numerous cases.

The Act has extended undue advantage to a certain class of citizens thereby, violating the fundamental rights under Article 4, 9, and 25 of the employees in the Service of Pakistan and being void under Article 8 of the Constitution. The Legislature also lacked the legislative competence to enact The Act of 2010 as it has wrongfully attempted to circumvent the jurisprudence of this Court and Article 240 and Article 242 of the Constitution for which reason we are inclined to hold the Act to be ultra vires of the Constitution.

The legislature has, through the operation of The Act of 2010, attempted to extend undue benefit to a limited class of employees.

This legislation has a direct correlation to the right enshrined under Article 9 of the Constitution for employees currently serving in the departments falling under Section 2(d) of The Act of 2010.

Under Article 9 of the Constitution, a civil servant has been extended the right to “status” and “reputation”. The right to “status” and “reputation” are not mutually exclusive and are encompassed by the wider umbrella of Article 9 of the Constitution. Upon the “reinstatement” of the “sacked employees”, the “status” of the employees currently in service is violated as the reinstated employees are granted seniority over them. This is an absurd proposition to consider as the legislature has, through legal fiction, deemed that employees from a certain time period are reinstated and regularised without due consideration to how the fundamental rights of the people currently serving would be affected.

This Act is also in violation of the right enshrined under Article 4 of the Constitution that provides that citizens equal protection before law, as backdated seniority is granted to the “sacked employees” who, out of their own volition, did not challenge their termination or removal under their respective regulatory frameworks. Therefore, by doing so, the legislature has granted undue favours through circumvention and obviation of the very framework of the civil structure envisaged by the Constitution and law, the judgment noted.