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JUDGMENT SHEET PESHAWAR HIGH COURT PESHAWAR JUDICIAL DEPARTMENT
W.P. NO. 2547-P OF 2014
JUDGMENT
Date of hearing ______09.06.2014______
Petitioners------Badshah Gul Wazir------
Respondent------Govt. of Khyber Pakhtunkhwa---
MAZHAR ALAM KHAN MIANKHEL, CJ.- The
petitioner, through instant constitutional petition, has
questioned the amendments made in the Khyber
Pakhtunkhwa Provincial Ombudsman Act, 2010 vide
Khyber Pakhtunkhwa Provincial Ombudsman
(amendment) Act, 2013 being ultra vires, is against the
Constitution and has prayed that the same may be struck
down and be declared as prospective, thus restraining the
respondents from taking any adverse action against the
petitioner. Similarly, petitioner has also filed another Writ
Petition No.2833/2013, wherein he has prayed for
issuance of a writ to declare the impugned Notifications
No.SO(E-I) E&AD/9-94(B)2013 dated 20.10.2013 de- 2 notifying the petitioner and No. SO(E-I) E&AD/9-
94(B)2013 dated 30.10.2013 whereby respondent No.4 was appointed as Provincial Ombudsman as illegal, unlawful, without jurisdiction and void ab initio.
Through this common judgment, we propose to decide this Writ Petition No.2547-P/2013 as well as Writ
Petition No.2833-P/2013, as common questions of law and facts are involved in both the petitions.
2. Brief facts of the case are that the Provincial
Government on 6th October, 2010 enacted the Khyber
Pakhtunkhwa Provincial Ombudsman Act, 2010 (Khyber
Pakhtunkhwa Act No. XIV of 2010) (hereinafter referred to as the “Act”) for the establishment of the office of Provincial
Ombudsman in the Province of Khyber Pakhtunkhwa. The petitioner being a retired civil servant in Grade-21 was appointed as Provincial Ombudsman under Section 4 of the
Act for a period of four years with effect from the date of his taking over the oath of office vide Notification No.SO(E-I)
E&AD/9-94/2010 dated 29.12.2010. 3
3. On 25.09.2013, the Khyber Pakhtunkhwa Provincial
Ombudsman (Amendment) Act, 2013 (Khyber Pakhtunkhwa
Act No.XXVI of 2013) (hereinafter called as the “Amending
Act”) was introduced, where under besides other amendments,
Section 4 was also amended to the effect that the Provincial
Ombudsman shall hold office for a period of four years or till the age of sixty-two years, whichever is earlier.
In the wake of above amendment, the Establishment
Department issued two Notifications of even Nos. i.e. SO(E-
I)E&AD/9-94(B)2013 dated 29.10.2013 and 30.10.2013 vide which the petitioner was de-notified as Provincial
Ombudsman, while one Khurshid Anwar (respondent No.4 in the connected Writ Petition) was appointed as Provincial
Ombudsman respectively.
4. Learned Counsel for the petitioner challenged the vires of the Amending Act and Notifications on three main grounds, i.e. (i) competence of legislature to enact the
Amending Act; (ii) malafides of respondents behind the same; and (iii) its applicability with retrospective effect. The learned 4 counsel submitted that the amendments made in the Khyber
Pakhtunkhwa Provincial Ombudsman Act, 2010 vide Khyber
Pakhtunkhwa Provincial Ombudsman (Amendment) Act, 2013 are violative of Articles 2A, 9, 25, 115, 116 and 131 of the
Constitution besides being based on biased and malafide intention to punish the petitioner for his refusal to accommodate the favorites of the Law Minister. Further submitted that there exists an Ombudsman in each Province but no age limit has been provided for any of the Federal and
Provincial Ombudsmen in the country; that the impugned amendments were processed under the guise of a Money Bill in order to deprive the Governor of his choice to return the Bill for reconsideration by the Assembly and even if it was presumed to be a Money Bill, the same was required to be presented in the Provincial Assembly after obtaining consent of the Provincial Government, which is not the case here; that through the Amending Act, the Ombudsman has been placed under the control/supervision of Chief Minister or Provincial
Government, which has defeated the statutory autonomy and 5 functional independence of the Provincial Ombudsman as provided in Section 3(4) of the Act; that the impugned amendments are against the public will and public perception because the words ‘women and children’ for whose well being the Act was passed has been omitted; that the impugned notifications are, inter alia, violative of petitioner’s fundamental rights guaranteed under Articles 2A, 4, 9, 14 and
25 of the Constitution; that notwithstanding the grave illegalities, unconstitutionalities and infirmities in the substance, form and process of the amendments made in the
Act, such amendments are prospective in nature and cannot be given retrospective effect through any cannon of interpretation.
5. On the other hand, the learned AAG submitted that intention behind the amendments in sub-section (1) of Section
4 was to bring organizational reforms in the office of
Provincial Ombudsman for ensuring good governance, which was one of the reforms Agenda of the Provincial Government and that after the 18th amendment, the authority was required 6 to be devolved from Governor to the Chief Minister; that the arguments of the learned counsel with regard to the Money
Bill are also not sustainable because the expenditure of the office of Ombudsman as per provision of the Act is charged upon the Provincial Consolidated Fund; that any irregularity committed in the proceedings cannot be inquired into by the
Court in view of Article-169 of the Constitution which are made applicable to the Provincial Assembly under Article 127 of the Constitution; that the words used in the amended
Section 4 of the Act are very clear that the Ombudsman who completes his tenure of 4 years or attains the age of sixty-two years shall cease to hold the office, therefore, no valid exception could be taken to the Amending Act therefore, the relevant provisions were competently added in the Amending
Act.
6. Learned counsel for respondent No.4 argued that the
Provincial Ombudsman’s term of office is prescribed by the competent legislature i.e. the Khyber Pakhtunkhwa Provincial
Assembly through enactment of section 4(1) of the Act, which 7 was fully competent to alter the said term of office by means of amending legislation, which has rightly been done by enacting the Amending Act; hence the legislature cannot be stopped from altering the term of office of an incumbent
Provincial Ombudsman merely because he was appointed prior to such alteration. As such, no present or future incumbent of Provincial Ombudsman’s office can claim a vested right in completing the term of his/her office prescribed prior to an amendment altering the same. Learned counsel for the parties placed reliance on the judgments of this Court in
Writ Petition No.1394 of 2011 (Mr. Gulzar Khan and others vs. The Government of Khyber Pakhtunkhwa through its Chief Secretary and others, decided on
23.06.2011; Fauji Foundation vs. Shamim ur Rehman
(PLD 1983 Supreme Court 457), Lt. Gen (Retd) Jamshaid
Gulzar & others vs. Federation of Pakistan & others (Civil
Appeals No.826, 827, 828 of 2007 (decided on 25.06.2013) and Elahi Cotton Mills (PLD 1997 SC 582). 8
7. We have considered the pro and contra arguments of learned counsel for the parties in the context of the subject and in the light of the relevant record.
8. Before considering the arguments of learned counsel for the parties, it would be appropriate if Section 4 of the Act and its subsequent amendment through the Amending Act is reproduced hereunder, which prior to amendment was to the following effect:-
“(1) The Provincial Ombudsman shall hold office for a period of four years and shall not be eligible for any extension in his tenure or for re-appointment as Provincial Ombudsman under any circumstances.”
The same was amended through the Amending Act as under:-
“(1) The Provincial Ombudsman shall hold office for a period of four years or till the age of sixty-two years, whichever is earlier and shall not be eligible for any extension in his tenure or for re-appointment as Provincial Ombudsman under any circumstances.”
9. In our view, the amending Act was a validly enacted piece of legislation because it was quite within competence of 9 the Provincial Assembly to pass such an Act, which cannot be assailed for want of legislative competence. The provisions of amending Act were only intended to prescribe an age limit for the Provincial Ombudsman, for which a proper course was adopted by presenting a Bill in the Provincial Assembly, which was duly passed and assented to by the Governor, thus the circumstances in which the amending Act was enacted is neither unfair nor unreasonable. It is well settled that the Court cannot sit in judgment over the wisdom of the legislature except on two grounds on which a law laid down by the legislation can be struck down by the Courts viz; lack of legislative competence and violation of any of the fundamental rights guaranteed in the Constitution or of any other
Constitutional provision. Similar views have been expressed by a learned Division Bench of this Court in the case of Mr.
Gulzar Khan (Writ Petition No.1394 of 2011 – decided on
23.06.2011) wherein too vires of the amending Act No.VI of
2011 were challenged by virtue of which Section 4 of the
NWFP Public Service Commission Ordinance No.XI of 1978 10 was amended and the tenure of the offices of Chairman and
Members of Public Service Commission was curtailed from 5 years to 3 years. The Hon’ble Judges while taking guidance from the judgments of the apex Court held that the legislature is competent to make, vary or repeal a law but a right conferred through a Statute can only be taken away by a legislative enactment and not by an executive authority through notification. The august Supreme Court of Pakistan in the case of Province of West Pakistan through Advocate
General vs Manzoor Qadir and another (PLD 1969 SC
625) has laid down the following dictum:-
“Normally, upon general principles of equity and
justice it would only be reasonable to expect that
the terms and conditions of service of a person,
no matter who he is would not be varied to his
disadvantage during the tenure of his office, or
after he has completed his tenure of office relying
on those terms and conditions but the validity of
a legislation made by a competent authority
cannot, in my view, be challenged merely on the
basis of such an expectation or inference.” 11
10. As regards the malafides alleged against the
Law Minister by the petitioner that the amendments are based upon political considerations, the same cannot be sustained as no ‘malafides’ can be attributed to the legislature. No enactment can be struck down just by saying that it is arbitrary and illegal or that the Court thinks that it is unjustified. The scope of interference as regards legislative action and the administrative action is quite different and the parameters to deal with them are distinct. Administrative action can be interfered with while exercising judicial review on the ground of it being unreasonable or irrational or there being an illegality or procedural impropriety but the same cannot be utilized and applied to strike down an enactment on any of these grounds. The motive of the Legislature in passing a statute is beyond the scrutiny of Courts coupled with any irregularity of procedure under Article-69 of the Constitution.
Nor can the Courts examine whether the Legislature had applied its mind to the provisions of a statute before passing it.
The propriety, expediency and necessity of a legislative act are 12 for the determination of the legislative authority and are not for determination by the Courts. An Act passed by the
Provincial Legislature stands on the same footing as an Act passed by the Federal Legislature, as provided in Article 127 of the Constitution. It needs no highlighting the aspect that there is always a presumption in favour of the constitutionality and a law will not be declared unconstitutional, unless the case is so clear as to be free from doubt and that too on the basis of the two fundamental principles with regard to the powers of the Court to strike down a legislation, where the validity of the statute is questioned and there are two interpretations, the one which would make the law valid has to be preferred over the other which would render it void. In our view, no malafides can be attributed to any act of legislature and when the competent legislature has enacted a statute, prescribing a particular age, the same cannot be struck down on the grounds of malafides of respondent No.2, as has been alleged.
Although, the petitioner has annexed certain correspondence in between the office of Ombudsman and Law Ministry but 13 the same will have no relevance with regard to the validity or otherwise of the prescription of the age under the amending
Act.
11. The argument that the Amending Act was passed on the pretext of a Money Bill, which in fact was not, is also having no force keeping in view the provisions of
Articles-115 (4) and (5) as well as Article 116 (5) of the
Constitution of Islamic Republic of Pakistan, which are reproduced hereunder for the sake of convenience:-
“115(4) – If any question arises whether a Bill is a Money Bill or not, the decision of the Speaker of the Provincial Assembly thereon shall be final. (5) Every Money Bill presented to the Governor for assent shall bear a certificate under the hand of the Speaker of the Provincial Assembly that it is a Money Bill and such certificate shall be conclusive for all purposes and shall not be called in question. 116(5) – No Act of a Provincial Assembly, and no provision in any such Act, shall be invalid by reason only that some recommendation, previous sanction or consent required by the Constitution was not given if that Act was assented to in accordance with the Constitution.” 14
12. A similar question had arisen in the case of Mr.
Gulzar Khan and 9 others versus The Government of
KPK through Chief Secretary and others (W.P. No.1394 of 2011), which was decided by a learned Division Bench of this Court comprising the then Hon’ble Chief Justice on 23.06.2011. The petitioners in the above writ petitions were appointed as Chairman and Members of Public
Service Commission in terms of Section 4 of the NWFP
(now KPK) Public Service Commission Ordinance No.XI of 1978 for a period of five years, which section was amended by Act No.VI of 2011, whereby the tenure of office of a Member was curtailed to three years from the date on which he enters upon office or till he attains the age of sixty five years. Besides, challenging vires of the amendment, petitioners had also questioned the prospective effect given by the Government to the said amendment by issuing notifications in this regard. The
Hon’ble Bench repelled the contention of petitioners in
Para.8 of the judgment as under:- 15
“The argument as to the Reading Down of a provision would not be relevant in this case when the intention of the legislature about retrospectivity of the statute is express and unambiguous. Even otherwise the courts of law always lean in favour of upholding the constitutionality of a legislation on the strength of presumption in favour of its constitutionality. The case of Messrs Ellahi Cotton Mills Ltd. Vs Federation of Pakistan through Secretary M.O. (Finance) Islamabad and 6 others (PLD 1997 Supreme Court 582) may well be referred in this behalf. When considered in this background, we do not think a case for the issuance of the writs asked for is made out.”
13. This Court is of the view that a substituted section in an Act introduced by an amending Act is to be treated having retroactive operation as the function of a substituted section in an Act is to obliterate the rights of the parties as if they never existed. In section 4 of the
Amending Act, there is no charge or imputation against the petitioner. In fact, only the words “till the age of sixty- two years, whichever is earlier” have been inserted, which 16 would also govern the tenure of the office of Ombudsmen to be appointed in future also. The office of the
Ombudsman is an executive office performing quasi- judicial functions on the executive side. The Provincial
Ombudsman is responsible to the Provincial Government in terms of Article 138 of the Constitution of Pakistan,
1973 and it is within the competence of the Provincial
Legislature to prescribe the age limit for tenure of the office of Ombudsman, which would be having retrospective effect as and when an incumbent of the office attains the age of sixty-two years, whether before completion of the period of four years or thereafter.
14. For the reasons stated above, these writ petitions being devoid of substance are therefore dismissed with no order as to costs.
Announced 09.06.2014
CHIEF JUSTICE
J U D G E