IN THE SUPREME COURT OF PAKISTAN  
(Appellate Jurisdiction) 
 
 
 
PRESENT:  
MR. JUSTICE MUSHIR ALAM 
MR. JUSTICE QAZI MUHAMMAD AMIN AHMED  
MR. JUSTICE AMIN-UD-DIN KHAN 
 
 
CIVIL APPEAL NO. 491 OF 2012 AND  
(On appeal from the judgment/order dated 
29.03.2012 passed by Islamabad High Court, 
Islamabad in W.P.1206/2011) 
CIVIL APPEALS NO.536-546,580/2012, 452,453,43/2013 AND 
(On appeal from the judgment/order dated 29.03.2012 passed by Islamabad 
High 
Court, 
Islamabad 
in 
W.P. 
1206, 
1433, 
1604,1981/2011 
and 
judgment/dated 24.10.2012 passed by High Court of Sindh, Karachi in 
Const.P.214-D/2011 and dated 13.09.2012 passed by Peshawar High Court, 
Abbottabad Bench, Abbottabad in W.P.813/2011) 
CIVIL PETITIONS NO.150-151/2013 AND 
(On appeal from the judgment/order dated 31.10.2012 
passed by Peshawar High Court, Abbottabad Bench, 
Abbottabad in W.P.368, 770/2012) 
CIVIL APPEALS NO.1081,1084/2011,432/2013 AND 
(On appeal from the judgment/order dated 16.05.2011 passed by 
High Court of Sindh, Karachi in C.P.1107-D, 605-D/2010 
judgment/order dated 22.11.2012 passed by Peshawar High Court, 
Bannu Bench, Bannu in W.P.150-B/2010) 
CRIMINAL PETITIONs NO.138-140/2014 AND 
(On appeal from the judgment/order dated 19.03.2014 
passed by Islamabad High Court, Islamabad in I.C.A.143-
145/2014) 
CIVIL APPEALS NO.1151/2012,1026-1027/2013 AND 
(On appeal from the judgment/order dated 01.04.2011 passed by 
High Court of Sindh, Karachi in Const.P.3515-D/2010 and 
judgment/order dated 14.05.2013 passed by Peshawar High Court, 
Peshawar in W.P.2685/2011, W.P.363-P/2012) 
CIVIL PETITIONS NO.677-P/2014,1567/2015 AND 
(On appeal from the judgment/order dated 21.10.2014 passed 
by Peshawar High Court, Peshawar in W.P.3504/2012 and 
judgment/order dated 05.05.2015 passed by Federal Service 
Tribunal, Islamabad in A.3099(R)CS/2012) 
CIVIL APPEALS NO.637-651,660,/2015 AND 
(On appeal from the judgment/order dated 02.03.2015 
passed by High Court of Sindh, Karachi in C.P.298, 304-
308,310-318/2014 and 10.12.2014 passed by High Court 
Of Sindh, Sukkar Bench in W.P.2756/2012) 
CIVIL PETITIONs NO.842/2015,3612/2015 AND 
(On appeal from the judgment/order dated 02.03.2015 passed 
by High Court of Sindh, Karachi in C.P.309/2014 and dated 
14.10.2015 passed in Peshawar High Court, D.I. Khan Bench, 
D.I. Khan in W.P.177/2015) 
CIVIL APPEALS NO.101/2016,1106/2015 AND 
(On appeal from the judgment/order dated 06.10.2015 
passed Peshawar High Court, Peshawar in W.P.3848/2014 
and dated 12.12.2014 passed by High Court Of Sindh, 
Karachi in C.P.1905/2011) 
CIVIL PETITION NO.3366/2015 AND 
(On appeal from the judgment/order dated 
12.12.2014 passed by High Court of Sindh, 
Karachi in C.P.1998/2011) 
C.R.P.231-236,256/2016 IN C.P.405-411/2016 AND 
CAs 491/12 etc                     -2- 
 
(review of the judgment/order of this Court dated 05.05.2016) 
CIVIL APPEALs NO.4-K & 5-K/2017 AND 
(On 
appeal 
from 
the 
judgment/order 
dated 
07.09.2016 passed by High Court of Sindh, Karachi 
in C.P.D-4078/2011 and C.P.D-2841/2012) 
CIVIL PETITION NO.19-P/2016 AND 
(On appeal from the judgment/order dated 
29.10.2015 passed by Peshawar High Court, 
Peshawar in W.P.2758-P/2015) 
CIVIL APPEAL NO.65-K/2013 AND 
(On appeal from the judgment/order dated 
24.10.2012 passed by High Court of Sindh, 
Karachi in C.P.214-D/2011) 
CIVIL APPEAL NO.518 AND 519/2018 AND 
(On appeal from the judgment/order dated 27.10.2017 
passed by High Court of Sindh, Karachi in C.P.6370-
D/2016 and C.P.3411-D/2016) 
CIVIL PETITIONS NO.588-K, 589-K/2018 AND 
(On appeal from the judgment/order dated 14.03.2018 
passed by Federal Service Tribunal, Camp At Karachi in 
Appeals 4(K)CS and 5(K)CS /2017) 
CIVIL APPEAL NO.1098/2018 AND 
(On appeal from the judgment/order dated 
25.05.2018 passed by Islamabad High Court, 
Islamabad in W.P.1479/2012) 
CIVIL APPEAL NO.1921-1923/2019  
(On appeal from the judgment/order dated 
30.01.2019 
passed 
by 
Federal 
Service 
Tribunal, Islamabad in Appeals No.156(R)CS 
to 158(R)CS /2017) 
 
 
AND 
C.M.A.4382/2016 in C.A.637/2015 AND 
C.M.A.7274/2017 in C.A.637/2015 AND 
(Impleadment applications) 
C.M.A.6842/2018 in C.A.1098/2018  
(Stay) 
 
Muhammad Afzal & others  
(in CAs 491/12) 
D.G., IB Islamabad  
(in CAs 536-
539/12, CP 
3612/15 ) 
Shahabuddin Ahmed Khan & another 
(in CA 540/12) 
Ahmed Raza & another  
(in CA 541/12) 
Waseem Ahmed & another 
(in CA 542/12) 
Muhammad Tahir Faisal & another 
(in CA 543/12) 
Syed Muhammad Saeed Ahmed Gillani & others (in CAs 544, 
580/12) 
Ejaz Ahmed & others 
(in CA 545/12) 
Daulat Ali Khan & others 
(in CA 546/12) 
Javed Akhtar Arbab & others  
(in CA 452/13) 
Chairman National Highway Authority, Govt. of 
Sindh Karachi & others  
(in CA 453/13) 
Commissioner Afghan Refugee, KPK, Peshawar 
& others  
(in CA 43/13, CPs 
150, 151/13, CA 
101/16) 
PTCL thr. its President/CEO Islamabad  
(in CAs 1081, 
1084/11) 
M/s Pakistan Telecommunication Company Ltd 
thr. its Director Islamabad & another 
(in CA 432/13) 
Pakistan Telecommunication Company Ltd 
(in CAs 4-K, 5-
K/17) 
National Highway Authority thr. its Chairman, (in Crl.Ps. 138-
CAs 491/12 etc                     -3- 
 
NHA & another  
140/14) 
Overseas 
Pakistani 
Foundation 
Islamabad 
(O.P.F.) thr. its Director & others  
(in CA 1151/12) 
State Life Insurance Corporation of Pakistan 
thr, its Chairman  
(in CAs 1026, 
1027/13, 
CRPs.231-236, 
256/16) 
Naushad and others 
(in CP 677-P/14) 
Rai Muhammad Abbas 
(in CP 1567/15) 
Civil Aviation Authority thr. its D.G., Quaid-e-
Azam International Airport, Karachi  
(in CAs 637-651, 
842/15, 518, 
519/18),  
WAPDA thr. its Chairman, WAPDA House, 
Lahore & another  
(in CA 660/15) 
Muhammad Riaz & others 
(in CA 1106/15) 
Abdul Rasheed & another 
(in CP 3366/15) 
Sari Had 
(in CP 19-P/16) 
Jawaid Akhter Arbab 
(in CA 65-K/13) 
Fazal Mehmood Mithani 
(in CA 588-K/18) 
Muhammad Arshad Khan 
(in CA 589-K/18) 
Chairman, Trading Corporation of Pakistan (Pvt) 
Ltd, Karachi  
(in CA 1098/18) 
Qamar ul Islam 
(in CA 1921/19) 
Tanveer Saeed 
(in CA 1922/19) 
Muhammad Nadeem Khan 
(in CA 1923/19) 
 
…Appellant(s) 
VERSUS 
The 
Secretary 
Establishment 
Division 
Islamabad & others 
(in CAs 491, 540, 
545,546, 580/12, CPs 
588-K, 589-K/18, CAs 
1921-1923/19) 
Waqar Alam & others 
(in CA 536/12) 
Rafaqat Ali Goraya & others 
(in CA 537/12) 
Abdullah Khan & others 
(in CA 538/12) 
Muhammad Akram & others 
(in CA 539/12) 
D.G., I.B. Islamabad & others 
(in CAs 541-
544/12, CP 
1567/15) 
Javed Hussain Langha & others 
(in CAs 452, 
453/13) 
Syed Sabir Hussain Shah & others 
(in CA 43/13) 
Gohar Habib 
(in CP 150/13) 
Waheed Ahmed 
(in CP 151/13) 
Federation of Pakistan thr. Secy. M/O IT & 
Telecommunications & others 
(in CAs 1081, 
1084/11) 
Usman Ghani & others 
(in CA 432/13) 
Shahid Zaheer 
(in Cr.P 138/14) 
Shoukat Hayat 
(in Cr.Ps 139, 
140/14) 
Muhammad Nawaz Abbasi & others 
(in CA 1151/12) 
Mazullah Khan & others 
(in CA 1026/13) 
Muhammad Anwar Swati 
(in CA 1027/13) 
Commissioner 
Afghan 
Refugees, 
K.P 
Commissionerate of Afghan Refugees and others 
(in CP 677-P/14) 
Noor Alam & another 
(in CA 637/15) 
Muhammad Arif & another 
(in CA 638/15) 
Kamran & another 
(in CA 639/15) 
Sultan Sikandar & another 
(in CA 640/15) 
CAs 491/12 etc                     -4- 
 
Azimuddin & another 
(in CA 641/15) 
Maqsood Siddique & another 
(in CA 642/15) 
Rana Abdul Qayum & another  
(in CA 643/15) 
Khalil Ahmad & another 
(in CA 644/15) 
Muhammad Arif & another 
(in CA 645/15) 
Abdul Aziz & another 
(in CA 646/15) 
Tariq Mahmood & another 
(in CA 647/15) 
Manzoor & another 
(in CA 648/15) 
Azad Khan & another 
(in CA 649/15) 
Syed Fida Hussain Jafry & another 
(in CA 650/15) 
Muhammad Piral & another 
(in CA 651/15) 
The Federation of Pakistan thr. Secretary M/o 
Water 
& 
Power 
Development 
Authority, 
Islamabad & another 
(in CA 660/15) 
Syed Abdul Waheed & another 
(in CP 842/15) 
Kamran Iqbal Kundi & others 
(in CP 3612/15) 
Sher Bahadar Khan & others 
(in CA 101/16) 
M/o Petroleum & Natural Resources thr. its 
Secretary, Islamabad & others 
(in CA 1106/15, 
CP 3366/15) 
Rana Zulfiqar Ahmad & another 
(in CRPs 231/16) 
Abdul Majeed Klair & another 
(in CRPs 232/16) 
Nazar Muhammad Warraich & another 
(in CRPs 233/16) 
Muhammad Yasin Tariq & another 
(in CRPs 234/16) 
Muhammad Ayub Rizvi & another 
(in CRPs 235/16) 
Malik ABdul Ghafoor & another 
(in CRPs 236/16) 
M. Nawaz Bhatti & another 
(in CRPs 256/16) 
Ghulam Ali and others 
(in CA 4-K/17) 
Aijaz Ali Chachar and another 
(in CA 5-K/17) 
District Education Officer (Male) (E & S) 
Education, Buner & others 
(in CP 19-P/16) 
Federation of Pakistan & others 
(in CA 65-K/13) 
Syed Yawar Hussain Shigri & another 
(in CAs 518, 
519/18) 
Akhtar Abbas Bharwana & others 
(in CA 1098/18) 
 
…Respondent(s) 
 
For the Appellants/ 
Petitioners: 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Mr. M. Shoaib Shaheen, ASC. 
 
Mr. M. Akram Sheikh, Sr. ASC. 
 
Mr. M. Asif Vardag, ASC. 
 
Rai M. Nawaz Kharral, ASC 
 
Mr. M. Tariq Tanoli, ASC.  
 
Mr.M. Munir Paracha, ASC. 
 
Hafiz S. A. Rehman, Sr. ASC. 
Hafiz Hifzur Rehman, ASC. 
 
Raja M. Ibrahim Satti, Sr. ASC. 
 
Mr. Haider Waheed, ASC. 
 
Mr. Altaf Ahmed, ASC. 
CAs 491/12 etc                     -5- 
 
 
Mr. Sanaullah Noor Ghauri, ASC. 
 
Raja Muqsat Nawaz Khan, ASC. 
 
Mian Shafaqat Jan, ASC. 
 
Mr. Zafar Iqbal Chaudhry, ASC. 
 
Mr.Zahid Yousaf Qureshi, Addl. AG,  
KPK.  
 
For the Federation:  
 
Mr. Sajid Ilyas Bhatti, Addl.AGP. 
Mr. Ishrat Bhatti, Director IB 
Mr. Amjad Iqbal, Asstt.Dir.(Lit.) 
 
For the Respondent(s):  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
For intervenor:  
 
 
 
 
 
Mr. Sohail Mehmood, DAG. 
(in CAs 1081,1084/11,432/13) 
Mr. Tariq Asad, ASC. 
 
Mr. S. A. Mehmood Khan Sadozai, 
ASC. 
 
Qari Abdul Rashid, ASC/AOR. 
 
Mr. Pervaiz Rauf, ASC. 
 
Syed Wusat-ul-Hassan Taqvi, ASC. 
 
Mr. Fawad Saleh, ASC. 
 
Mian M. Hanif, ASC. 
 
Raja Abdul Ghafoor, AOR 
 
Mr. M. Ilyas Siddiqui, ASC. 
 
Mr. M. Yousaf Khan, ASC. 
 
Kh. M. Arif, ASC. 
 
Mr. Hazrat Said, ASC. 
 
Mr. Asim Iqbal, ASC. 
 
Mr. Fazal Shah Mohmand, ASC. 
 
Mr. Wasim ud Din Khattak, ASC 
 
Mr. Khalid Rehman, ASC. 
 
Mr. Kamran Murtaza, Sr. ASC. 
Syed Rifaqat Hussain Shah, AOR 
 
Mr. Fawad Saleh, ASC. 
 
Syed Zulfiqat Abbas Naqvi, ASC 
CAs 491/12 etc                     -6- 
 
 
 
 
In-person. 
 
Dr. Babar Awan, Sr. ASC. 
 
Khalil Javed, M. Nawaz Abbasi, Sari 
Had, 
Fazal 
Mehmood 
Methani, 
Arshad Khan, Waheed Ahmed, Ilyas,  
 
 
Date of Hearing: 
16.12.2019 
 
JUDGMENT  
 
MUSHIR ALAM, J.— Through this common judgment, this 
Court shall dispose of the above title cases in the following 
manner. 
 
2. 
 
There are a number of groups of cases, in which 
appellants/petitioners have impugned the appointments/ 
promotions under the Sacked Employees (Reinstatement) 
Ordinance Act, 2010, (hereinafter referred as to ‘Act of 2010’). 
Those groups can be divided into two categories, i.e. (i) those 
employees 
who 
were 
the 
regular 
employees 
of 
the 
organizations/departments, whose seniority has been affected 
by the employees inducted under the Act of 2010; and (ii) 
those persons who have not been extended the benefit of the 
Act of 2010.   
 
3. 
 
First group of cases pertains to the Intelligence 
Bureau (IB), in which there are two categories of cases. The 
first category of employees who filed Civil Appeals No.491, 
540-546, 580/12, Civil Petitions No.1567/15, 588-K, 589-
K/18 and Civil Appeals No.1921-1923/19 are the regular 
employees of the IB appointed in regular course through due 
process and are civil servants, whose seniority has been 
CAs 491/12 etc                     -7- 
 
affected by the Respondents, who have been inducted in IB in 
1996 and 1997, were dispensed with service and were 
reinstated/restored in service and have been given benefit of 
one step above promotion under the provisions of the Act of 
2010. The second category of the employees of IB, who have 
filed Civil Appeals No. 536-539/12, C.P. 3612/15, and are the 
employees, who have not been extended the benefit of the Act 
of 2010. Leave has been granted in these cases vide order 
dated 18.05.2012 in Civil Appeals No.491, 540-546, 580/12 
in the following terms: 
“After 
hearing 
learned 
counsel 
for 
the 
petitioner, leave to appeal is granted, inter 
alia, to consider as to whether section 4 of the 
Sacked Employees (Reinstatement) Act, 2010 
is ultra vires and repugnant to Article 48 and 
25 of the Constitution of Islamic Republic pf 
Pakistan and as to whether without prejudice 
to the case the learned High Court had the 
jurisdiction to grant leave on the point noted 
above, in view of the bar under Article 212 of 
the Constitution” 
 
Leave has also been granted in Civil Appeals No.1921-
1923/19 vide order dated 20.11.2019 in the following terms: 
“Learned counsel for the petitioners contends 
that the petitioners were reinstated in service 
under the Sacked Employees (Reinstatement) 
Act, 2010. He contends that petitioners were 
employed as Sub-Inspector (BPS-14) and that 
pursuant to Section 4 of the said Act, they 
were required to be re-instated one scale 
higher than the post on which they were 
terminated. He contends that the Tribunal in 
the impugned judgment has omitted to 
consider this very aspect of the matter.  
 
2. 
The submission made by the learned 
counsel 
for 
the 
petitioners 
requires 
consideration. Leave to appeal is granted to 
consider, inter alia, the same. As connected 
CAs 491/12 etc                     -8- 
 
cases i.e. C.A. No.491 of 2012 etc are 
already 
fixed 
before 
this 
Court 
on 
25.11.2019, the appeals arising from these 
petitions be also fixed on the said date.” 
 
4. 
 
Second 
group 
of 
cases 
pertains 
to 
the 
Commissioner Afghan Refugee, Khyber Pakhtunkhwa. In this 
group of cases, there are two categories of cases. The first 
category of employees who filed Civil Appeals No.43/13, Civil 
Petitions No.150,151/13 and Civil Petition No.677-P/14 are 
the former employees who have not been extended the benefit 
of the 2010 Act or the organization/department is not 
extending the benefits under the provisions of the Act of 2010 
to such employees, whereas Civil Appeal No.101/16 have 
been filed by the Commissioner Afghan Refugee KPK 
challenging the order of the learned High Court, whereby the 
petitioners/appellants 
were 
directed 
to 
reinstate 
the 
respondents enforcing earlier decision of the learned High 
Court dated 22.11.2011 under the provisions of the Act of 
2010. Leave has been granted in C.A. No.101/16 on 
21.01.2016 on the basis of leave granting order dated 
18.05.2012 in C.A.491/12, whereas in C.A. No.43/2013 on 
02.01.2013 in the following terms: 
“By the impugned order of the learned 
Peshawar High Court, Abbottabad Bench, the 
petitioner have been directed to reinstate the 
respondents into service, pursuant to Section 
4 of the Sacked Employees (Re-instatement) 
Act, 2010 (Act No.XXII of 2010). 
 
2. 
In C.P. No.718 of 2012, in the case of 
Muhammad Afzal & others v. Secretary 
Establishment Division, Islamabad & others 
through order dated 18.05.2012, this Court 
CAs 491/12 etc                     -9- 
 
has already granted leave to appeal, inter 
alia, to consider as to whether Section 4 of the 
Sacked 
Employees 
(Re-instatement) 
Act, 
2010, is ultra vires and repugnant to Article 
25 and 48 of the Constitution of Islamic 
Republic pf Pakistan and as to whether 
without prejudice to the case the learned High 
Court had the jurisdiction to grant leave on 
the point noted herein above, in view of the 
bar 
contained 
in 
Article 
212 
of 
the 
Constitution. 
 
3. 
This matter also give rise to similar 
question, as noted in the order dated 
18.05.2012, passed in C.P. No.718 of 2012, 
with addition that vires of the Act may also be 
considered on the threshold of Article 3 of the 
Constitution of Islamic Republic of Pakistan, 
1973, and thus leave to appeal is granted.” 
[emphasis provided] 
 
5. 
 
Third group of cases belongs to the regular 
employees of National Highway Authority whose seniority has 
been affected by allowing benefits under the provisions of the 
Act of 2010 vide impugned judgment of the learned High 
Court and they have filed Civil Appeal No.452/13, whereas in 
Civil Appeal No.453/13, Civil Appeal No.65-K/13 and 
Criminal Petitions No.138 to 140/14 (arising out of contempt 
proceedings before the learned High Court) have been filed by 
the certain employees, wherein benefits under the Act of 2010 
have not been extended to the appellants/petitioners or the 
department is not willing to extend the same. Leave was 
granted mainly vide order dated 23.04.2013 in the following 
terms: 
“Rai Muhammad Nawaz Kharal learned ASC 
for the petitioner in CPLA No.1978/2012 has 
brought to our notice a certificate of the 
learned AOR attached at the bottom of the 
petition which reads as under: 
CAs 491/12 etc                     -10- 
 
 
 
 
Certificate: 
i. 
That this is the first CPLA on 
behalf 
of 
Petitioners 
against 
impugned 
Judgment 
dated 
24.10.2012 passed in CP No.D-
214/2011 by Sindh High Court, 
Karachi. 
 
ii. 
That the Respondents No.5 to 293 
have 
filed 
a 
separate 
CPLA 
No.1949 of 2012 against the 
impugned 
judgment 
dtd. 
24.10.2012 passed in CP No.D-
214/2011. 
 
iii. 
That on the same question of law 
this Apex Court was very much 
pleased to grant leave to Appeal 
vide 
Order 
dated 
18.05.2012 
passed in CPLA No.718/2012 and 
in 
CP 
890/893/980/983/987 
and 989 of 2012 regarding the 
same question of law. 
 
iv. 
That CPLA No.1949/2012 is also 
against 
the 
said 
impugned 
Judgment 
dtd. 
24.10.2012 
passed in CP No.D-214/2011. 
 
2. 
In view of the above, leave to 
appeal is granted in this petition as well 
as 
other 
connected 
Civil 
Petition 
No.1949/12. Office is directed to fix the 
appeal arising out of this petition along 
with 
appeal 
arising 
out 
of 
other 
connected 
petition 
as 
detailed 
in 
paragraph-iii of the certificate.”  
 
6. 
 
Fourth group of cases belongs to the employees of 
M/s Pakistan Telecommunication Company Ltd, who have 
not been extended certain benefits under the provisions of the 
Act of 2010 or the organization does not want to extend the 
benefits to such employees and as such they have filed Civil 
Appeals No.1081, 1084/2011, 432/13, 4-K and 5-K/2017. 
CAs 491/12 etc                     -11- 
 
Leave was granted in these cases based on main order dated 
03.11.2011 in the following terms: 
“Counsel for the petitioner states that the 
learned Division Bench of the High Court of 
Sindh at Karachi has held that the services of 
the respondent employees were not governed 
under the statutory rules, thus a petition 
under Article 199 of the Constitution was not 
maintainable despite proceeded to grant relief 
to the respondents by holding that when the 
right is claimed in terms of the previsions 
contained in the Sacked Employees (Re-
instatement) Act, 2010 and a right prayed to 
be enforced, is sought under statute, the 
petition was held maintainable thus there is 
contradiction in the impugned judgment. 
2. 
In view of the above submission, this 
petition is allowed and converted into appeal 
which shall be heard on the basis of available 
paper books, subject to option to the parties to 
file additional documents.” 
 
7. 
 
Civil Appeal No.1151/2012 has been filed by the 
Overseas Pakistani Foundation Islamabad, assailing the 
judgment of the learned High Court of Sindh whereby they 
were directed to extend the benefit of the Act of 2010 to the 
respondents. Leave was granted in this case on the basis of 
earlier order dated 08.05.2011 passed in CP 718/2012, which 
has been reproduced above. 
 
8. 
 
Civil Review Petitions No. 231 to 236 and 
256/2016 in Civil Petitions No.405 to 411/2016 have been 
filed by the State Life Insurance Corporation of Pakistan, 
seeking review of the judgment of this Court dated 
05.05.2016, whereby the judgment of the learned High Court 
in favour of the respondents was maintained through which 
the respondents were extended certain benefits under the 
CAs 491/12 etc                     -12- 
 
provisions of the Act of 2010. Civil Appeals No.1026 & 
1027/2013 have also been filed by the State Life Insurance 
Corporation of Pakistan, wherein leave was granted vide order 
dated 13.09.2013 in the following terms: 
“In order to consider the question, when the 
respondents services have been terminated 
by the competent authority on account of the 
poor performance and such termination order, 
when challenged by the respondents, has 
been upheld by this Court; whether on the 
promulgation 
of 
the 
Sacked 
Employees 
(Reinstatement) Act No.XXII of 2010, the 
respondents 
were 
entitled 
to 
the 
reinstatement; whether the respondents ipso 
jure were entitled to the reinstatement 
notwithstanding 
the 
judgments/verdicts 
passed against them, leave is granted. In the 
meantime, 
operation 
of 
the 
impugned 
judgment is suspended.”   
 
 
9. 
 
Civil Appeals No.637 to 651/2015, 518, 519/2018 
and Civil Petition No.842/2015 have been filed by the Civil 
Aviation Authority, assailing the judgment passed by learned 
High Court of Sindh, whereby Writ Petition filed by the 
Respondents, seeking reinstatement and regularization of 
service under the provisions of the Act of 2010, was allowed 
vide judgment dated 02.03.2015. Leave was granted vide 
order dated 17.06.2015 in the following terms: 
“Leave is granted, inter alia, to consider the 
following: 
1. Whether Act No.XXII of 2010 titled Sacked 
Employees 
(Reinstatement) 
Act, 
2010 
(“Act”) is a valid piece of legislation being 
violative of law laid down by this august 
Court in cases reported as PLD 2010 SC 
265 and PLD 2012 SC 923? 
 
2. Whether 
Sacked 
Employees 
(Reinstatement) Act, 2010 can be legally 
extended to cover and apply to the kind of 
CAs 491/12 etc                     -13- 
 
employees like the Respondent No.1, i.e. 
daily wagers? 
 
3. Whether the terms of engagement and the 
nature 
of 
duties 
performed 
by 
the 
Respondent No.1 can be legally considered 
as falling within the definition of a “sacked 
employee” under section 2(f) of the Act? 
 
4. Whether employment of the respondent 
No.1 on daily wage basis for a term of 89 
days and upon expiry of which a fresh and 
successive term of employment after a gap 
of one or two days may be legally 
regarded 
as 
a 
continuous 
term 
of 
employment by the Respondent No.1 with 
the Petitioner? 
 
5. Whether 
the 
definition 
of 
“sacked 
employee” 
contained 
in 
section 
2(f)(i) 
requires a continuous terms of employment 
or simply appointment to have been 
between 1st November 1993 till 30th 
November, 1996 and departure between 
1st November, 1996 till 12th October, 
1999?” 
 
10. 
 
Civil Appeal No.660/2015 has been filed by 
WAPDA, challenging the order of the learned High Court of 
Sindh dated 10.12.2014 allowing the petition of the 
respondent No.2 for his reinstatement under the provisions of 
the Act of 2010. Leave was granted in this case vide order 
dated 06.07.2015 in line with the leave granting order dated 
17.06.2015 passed in Civil Appeals No.637 to 651/2015, 
reproduced above.  
 
11. 
 
Civil Appeal No.1106/2015 and Civil Petition 
No.3366/2015 have been filed by the former employees of the 
Sui Southern Gas Company Limited, who are seeking certain 
benefits under the provisions of the Act of 2010 and 
CAs 491/12 etc                     -14- 
 
settlement agreement dated 07.07.2003, which benefits, 
according to the appellants/petitioners, are not being 
extended to them.  Leave was granted on 26.10.2015 in the 
following terms: 
“It is submitted that the petitioners were the 
employees of Sui Southern Gas Company 
Limited (company) since 1995 and their 
services were terminated in 1999. They 
challenged the termination order before the 
learned Federal Service Tribunal (as at the 
relevant time Section 2A of the Service 
Tribunals Act, 1973 was in vogue) and their 
appeals were accepted on account of which 
they 
were 
reinstated 
vide 
order 
dated 
13.04.2001. The respondent-company did not 
challenge such order which had attained 
finality. Be that as it may, a settlement was 
arrived at between the petitioners and the 
Company on 07.07.2003 on account of which 
besides the reinstatement having been made 
per the order of the learned Tribunal certain 
other 
terms 
and 
conditions 
regarding 
seniority and further promotion were also 
settled. Subsequently, the Sacked Employees 
(Reinstatement) Act, 2010 (the Act) was 
enforced and according to the provisions of 
Section 16, the petitioners were entitled to 
certain back benefits which were denied to 
them compelling the petitioners to invoke the 
constitutional jurisdiction of the learned High 
Court. Moreover, the terms and conditions of 
the settlement were also not adhered to by 
the respondent and this also was a part of 
the cause of action for the petitioners. The 
learned High Court through the impugned 
judgment has dismissed the petition holding it 
to be not maintainable; that the petitioners 
are not entitled to the benefit of the provisions 
of Section 16 of the Act; that they have 
approached the court with inordinate delay 
and thus are hit by laches; and that 
contractual obligations cannot be enforced 
through 
invocation 
of 
the 
constitutional 
jurisdiction of the court in terms of Article 199 
of the Constitution. It is argued that the 
provisions of Section 16 of the Act are clear 
and do not permit any doubt that all the 
sacked employees defined in Section 2(f) are 
CAs 491/12 etc                     -15- 
 
entitled 
to 
reinstatement 
benefits 
notwithstanding 
that 
they 
have 
been 
reinstated under the order of the court. The 
only condition is that they must fall within the 
purview of the law quoted above. it is also 
argued that since the respondent is an 
autonomous body, therefore, even the breach 
of a contractual obligation could be enforced 
against it as per the law down in the 
judgment reported as Pakistan Defence 
Officer’s Housing Authority vs. Javaid 
Ahmed (2013 SCMR 1707). Moreover, as 
there 
is 
recurring 
cause 
of 
action, 
consequently the rule of laches would not be 
attracted. Leave is granted to consider the 
above.” 
 
12. 
 
In Civil Petition No.19-P/2016, the respondents 
(Education Department) had not reinstated the Petitioner but 
did reinstate his colleagues under the provisions of the 
Khyber Pakhtunkhwa Sacked Employees (Reinstatement) Act, 
2012. Learned Peshawar High Court vide judgment dated 
29.10.2015 has dismissed the petition of the petitioner. 
Hence the petitioner filed this petition for leave to appeal. 
However, vide our order 28.11.2019, we had de-clubbed 
certain cases (i.e. Civil Appeals No.1448/2016, 1483/2019, 
Civil Petitions No.288-P,372-P/2016, 43-P to 45-P/2018, 416-
P,517-P/2017, 
491-P,568-P,633-P,634-P/2018, 
6-P,118-
P/2019, 439-P, 485-P/2017, 147-P,541-P and 704-P/2019 
and 2122/2018) relating to the Khyber Pakhtunkhwa Sacked 
Employees (Re-instatement) Act, 2012 but inadvertently this 
case could not be separated. Accordingly, office is directed to 
de-club this case from the titled cases and fix the same 
separately.  
 
CAs 491/12 etc                     -16- 
 
13. 
 
Civil Appeal No.1098/18 has been filed Chairman, 
Trading 
Corporation 
of 
Pakistan 
(Pvt) 
Ltd, 
Karachi, 
challenging the impugned short order dated 25.05.18, passed 
by learned Islamabad High Court, allowing certain benefits to 
respondent No.1 under the provisions of the Act of 2010. 
However, the petitioner claims that they do not fall within the 
purview of the Act of 2010. Leave was granted in this case 
vide order dated 18.09.2018 in the following terms: 
“The point raised and noted in the order 
dated 29.08.2018 needs further consideration 
in the light of the law laid down by this Court 
in the judgment reported as WAPDA and 2 
others vs. Mian Ghulam Bari (PLD 1991 
SC 780). Leave is therefore, granted in this 
case to thoroughly consider the same.”    
 
 
14. 
 
We have heard the learned counsel for the 
Petitioners and Respondents as well as perused the record.  
Issue 1: 
THE SCOPE OF THE NON-OBSTANTE CLAUSE: 
 
15. 
  
 
The vires of he Sacked Employees (Re-
instatement) Act 2010 has been challenged before us. Prior 
to addressing the merits of the case, we will first address 
the issue of the non-obstante clause present within the Act 
of 2010.  
 
16. 
  
 
The Act of 2010 also mentions a non-
obstante clause under S.4 as: 
“Notwithstanding contained in any law, for 
the time being in force, or any judgment of 
any tribunal or any court including the 
Supreme Court and a High Court or any terms 
and 
conditions 
of 
appointment 
on 
appointment basis or otherwise, all sacked 
employees shall be re-instated in service and 
CAs 491/12 etc                     -17- 
 
their services shall be regularized with effect 
from the date of enactment of this Act.” 
 
17. 
  
The first issue that requires examination is what 
would be the effect of a non-obstante clause when this 
Court is examining the vires of a statute. Given that the 
constitutionality of The Act of 2010 has been challenged, 
the precise proposition that requires consideration is 
whether a non-obstante clause can override the provisions 
of the Constitution itself.  
 
18. 
  
Article 240 of the Constitution is prefaced by the 
phrase ‘subject to the constitution’ that serves as a clear 
indicator that the drafters intended the Parliament and/or 
Provincial Assemblies to be subservient to it. This Court, in 
the case of Contempt Proceedings Against Chief 
Secretary, Sindh and Others,1 has held that: 
“Article 4(1) provides that all citizens are 
entitled to enjoy equal protection of law and 
have inalienable right to be treated in 
accordance with law. In this respect the Act of 
1973 framed under the command of Articles 
240 and 242 of the Constitution provides 
protection to all the Civil servants by assuring 
them that the law promulgated by the 
Parliament and/or Provincial Assemblies will 
be subject to the Constitution. The phrase 
"subject to the Constitution" has been used as 
prefex to Article 240 which imports that 
Assemblies cannot legislate law against 
service structure provided in Part XII of 
Chapter 1 of the Constitution.” 
 
 
19.    
Furthermore, the legislation derives its power to 
legislate on matters pertaining to employees in service of 
Pakistan by virtue of the Constitution. It has been 
observed by this Court in the case of Fazlul Quader 
Chowdhry v. Muhammad Abdul Haque2 that the 
                                       
1 2013 SCMR 1752 at Paragraph 117 
2 PLD 1963 SC 486 
CAs 491/12 etc                     -18- 
 
Constitution is at the pinnacle of legislative hierarchy 
compared to any other law and that each and every body 
acting under it must, in exercise of delegated authority, be 
subservient to the instrument by which the delegation is 
made.  
 
20.    
The Constitutional framework under Article 240 
and Article 242 clearly envisions that any appointments in 
the service of Pakistan shall be done so under the Act of 
Parliament for the Federation and under the Act of 
Provincial Assemblies in the case of services of a province. 
Pursuant to Article 240 of the Constitution, the Parliament 
enacted The Civil Servants Act, 1973, which was adopted 
by all Provinces with minor modifications. Article 240 of 
the Constitution is further supplemented by Article 242, 
which envisioned the creation of a Public Service 
Commission that is intended to be the supervisory body to 
oversee recruitments for the Province and the Federation. 
Any act of Parliament that attempts to evade the 
constitutional mandate and extend undue favor to a 
specific class of citizens could constitute a clear violation of 
the constitutional rights of the Civil Servants enumerated 
in Articles 4, 9, 25 as well as Articles 240 and 242 of the 
Constitution. 
 
21.    
Therefore, given the fact that the legislature itself 
is subservient to the Constitution, a non-obstante clause 
cannot be deemed to override the provisions of the 
Constitution itself.  
 
22.    
Interestingly, 
the 
non-obstante 
clause 
also 
excludes the application of the judgments of this Court or 
any High Court. The effect of the non-obstante clause, is, 
in essence, to nullify a judgment of this Court. However, it 
is a settled position in law that a legislature cannot 
destroy, annul, set aside, vacate, reverse, modify, or impair 
CAs 491/12 etc                     -19- 
 
a final judgment of a Court of competent jurisdiction as 
most recently been upheld by the decision of this Court in 
Contempt Proceedings Against Chief Secretary, Sindh 
and others:3 
“With respect to legislative interference with a 
judgment, a distinction has been made between 
public and private rights under which distinction a 
statute may be valid even though it renders 
ineffective a judgment concerning a public right. 
Even after a public right has been established by 
the judgment of the court, it may be annulled by 
subsequent legislation." 
 
166. This Court in the case of Fecto Belarus Tractor 
Ltd. v. Government of Pakistan through Finance 
Economic Affairs and others (PLD 2005 SC 605) 
has held that when a legislature intends to validate 
the tax declared by a Court to be illegally collected 
under 
an 
individual 
law, 
the 
cause 
for 
ineffectiveness or invalidity must be removed before 
the validation can be said to have taken place 
effectively. It will not be sufficient merely to 
pronounce in the statute by means of a non-
obstante clause that the decision of the Court shall 
not bind the authorities, because that will amount 
to reversing a judicial decision rendered in exercise 
of the judicial power which is not within the domain 
of the legislature. It is therefore necessary that the 
conditions on which the decision of the Court 
intended to be avoided is based, must be altered so 
fundamentally, that the decision would not any 
longer be applicable to the altered circumstances… 
 
167. In order to nullify the judgment of the Court, 
unless basis for judgment in favour of a party is not 
removed, it could not affect the rights of a party in 
whose favour the same was passed. The issue of 
effect of nullification of judgment has already been 
discussed in the case of Mobashir Hassan reported 
in (PLD 2010 SC 265), Para-76 discusses the effect 
of nullification of a judgment by means of a 
legislation. In the said case, the view formed is 
identical to the one in the case of Indira Nehru 
Gandhi v. Raj Narain (AIR 1975 SC 2299) and 
Fecto Belarus Tractor Ltd. v. Government of 
Pakistan through Finance Economic Affairs and 
others (PLD 2005 SC 605) and it was observed that 
legislature cannot nullify the effect of the judgment 
and there are certain limitations placed on its 
                                       
3 2013 SCMR 1752 
CAs 491/12 etc                     -20- 
 
powers including the one i.e. by amending the law 
with retrospective effect on the basis of which the 
order or judgment has been passed thereby 
removing basis of the decision…  
 
168. In the case in hand the Provincial Assembly 
has validated/regularized the absorptions and out 
of turn promotions by the Ordinance of 2011, Act 
XVII of 2011 and Act XXIV of 2013 without 
providing mechanism by which the absorptions and 
out of turn promotions with backdated seniority 
were given to the employees. The judgments on the 
issue of absorption were clear and in fact through 
impugned instruments, the Assembly validated the 
absorptions/out of turn promotions without noticing 
that while granting concessions to few blue eyed 
persons, rights of all the civil servants guaranteed 
under the Constitution and Civil Servant Act were 
impaired. In fact the impugned instruments are in 
the nature of legislative judgment as they purport to 
take away jurisdiction of the Superior Courts to 
abridge the writ and legality of the provisions by 
which Sindh Government has conferred undue 
favours on a select group of undeserving persons 
by way of deputation, posting, absorption out of 
turn promotions, ante-date seniority and re-hiring, 
hence they are violative of Article 175 of the 
Constitution. 
It 
goes 
without 
saying 
that 
a 
repugnancy to the Constitution declared by this 
Court or a High Court cannot be validated or 
condoned by a legislature unless the Constitution is 
itself amended.” 
 
23.    
Therefore, the non-obstante clause has failed 
abysmally to provide unfettered protection to the Act of 
2010 and is rendered ineffective through the very judicial 
pronouncement it sought to oust. Hence, we will now 
proceed to examine the constitutionality of The Act of 2010 
in light of judicial pronouncements. 
 
ISSUE 2: 
THE VIRES AND CONSTITUTIONALITY OF THE ACT OF 
2010: 
 
I. VIOLATION OF FUNDAMENTAL RIGHTS  
 
24. 
  
The preamble of The Act of 2010 provides that this 
Act is to: 
CAs 491/12 etc                     -21- 
 
“provide relief to persons in corporations 
service or autonomous or semi-autonomous 
bodies or in a Government service who were 
dismissed, 
removed 
or 
terminated 
from 
service.” 
 
25. 
 
The relief envisioned in The Act of 2010 is of 
reinstatement and then regularization into service for all 
sacked employees. The term ‘reinstatement’ has not been 
defined in The Act of 2010. Therefore, we will be relying on 
the jurisprudence of this Court to clarify on the meaning of 
the term ‘reinstatement’. In the case of Muhammad Sharif 
v. Inspector General of Police, Punjab,4 reinstatement 
was defined as: 
“Reinstate in service means to place again in 
a former state or position5 from which the 
person had been removed.6 Reinstatement is 
effected from the date of dismissal with back 
pay from that date.7 A reinstated employee is 
to be treated as if he had not been dismissed 
and is therefore entitled to recover any 
benefits (such as arrears of pay) that he has 
lost during his period of unemployment. 
However, pay in lieu of notice, ex gratia 
payments by the employer, or supplementary 
benefits, and other sums he has received 
because of his dismissal or any subsequent 
unemployment will be taken into account.8 
 
26. 
 
This Court further went on to state that: 
“An employee, i.e. civil servant in this case, 
whose wrongful dismissal or removal has 
been set-aide goes back to his service as if he 
were never dismissed or removed from 
service. The restitution of employee, in this 
context, means that there has been no 
discontinuance in his service and for all 
purposes he had never left his post. He is 
therefore entitled to arrears of pay for the 
period he was kept out of service for no fault 
of his own. No different is the position where 
an employee has been served with a penalty 
                                       
4 2021 SCMR 962 at Paragraph 8 
5 Black’s Law Dictionary (10th Edition, Thomson Reuters, 2014) 1477 
6 Black’s Law Dictionary, (6th Edition, St. Paul, MINN., West Publishing Co., 1990) 1287 
7 Aiyar’s Judicial Dictionary (10th Edition, 1988) 871 
8 Oxford Dictionary of Law (Fifth Edition, Reissued with new covers, 2003) 419- 420. 
CAs 491/12 etc                     -22- 
 
like reduction in rank or withholding of 
increment(s) or forfeiture of service, etc. and 
the penalty has been set-aside. The employee 
stands restored to his post with all his perks 
and benefits intact and will be entitled to 
arrears of pay as would have accrued to him 
had the penalty not been imposed on him. 
This general principle of restitution fully 
meets the constitutional requirements of fair 
trial and due process (Article 4 & 10A) 
besides the right to life (Article 9) which 
includes the right to livelihood ensuring all 
lawful economic benefits that come with the 
post. 
Reinstating 
an 
employee 
but 
not 
allowing him to enjoy the same terms and 
conditions of service as his colleagues is also 
discriminatory (Article 25). All this snowballs 
into offending the right to dignity (Article 14) 
of an employee for being treated as a lesser 
employee inspite of being reinstated or 
restored into service.”9 
 
27. 
 
Interestingly, this Court has also held that the 
term ‘reinstatement’ and ‘absorption’ are synonymous in 
nature. This was held in the case of Dr. Anwar Ali Sahto 
v. Federation of Pakistan,10 wherein this Court observed 
that: 
“we are of then view that ‘reinstatement' and 
'absorption' for all intents and purposes, are 
synonymous 
expressions, 
in 
that, 
‘reinstatement’ in service involves an element 
of 'absorption', therefore, the expression 
'absorbed' used its Abdul Samad (supra) by 
this Court is to be construed accordingly and 
to that extent the case of Abdul Samad 
(supra) also stands revisited.” 
 
28. 
  
The aforementioned principle can be distinguished 
on the facts. While the intent of the legislature, through 
the enactment of the Sacked Employees (Re-instatement) 
Act 2010, is to reinstate “sacked employees”,11 the 
constitutionality of such a blanket legislation extending 
relief to a specific class of citizens requires examination.  
                                       
9 2021 SCMR 962 at Paragraph 9 
10 PLD 2002 SC 101 
11 S.2(f) of the Sacked Employees (Re-instatement) Act, 2010 
CAs 491/12 etc                     -23- 
 
 
29. 
  
We 
will 
now 
proceed 
to 
examine 
the 
constitutionality of The Act of 2010 on the touchstone of 
Article 8 of the Constitution which provide for laws 
inconsistent with or in derogation of fundamental rights to 
be 
void. 
The 
fundamental 
rights 
that 
are 
under 
consideration before us are Article 4, 9 and Article 25 of 
the Constitution which reads as follows: 
“4. To enjoy the protection of law and to be 
treated in accordance with law is the 
inalienable right of every citizen, wherever he 
may be, and of every other person for the time 
being within Pakistan 
 
9. Security of person.- No person shall be 
deprived of life or liberty saves in accordance 
with law. 
 
25. Equality of citizens.- (1) All citizens are 
equal before law and are entitled to equal 
protection of law.” 
 
30. 
 
The principles for adjudging the constitutionality 
of legislation have been enumerated time and again by this 
court. It was stated in the case of Shahid Pervaiz v. Ejaz 
Ahmad12 that: 
“112. Undoubtedly, the legislature enjoys 
much leeway and competence in matters of 
legislation, but every law enacted may not 
necessarily be tenable on the touchstone of 
the Constitution. It is the sole jurisdiction of 
this Court, under the law and the constitution 
to look into the fairness and constitutionality 
of an enactment and even declare it non est, 
if it is found to be in conflict with the 
provisions 
of 
the 
Constitution. 
Thus, 
legislative competence is not enough to make 
a valid law; a law must also pass the test at 
the touchstone of constitutionality to be 
enforceable, failing which it becomes invalid 
and unenforceable.” 
 
31. 
 
Therefore, the proposition then becomes whether 
the law has placed the regular employees, who remained in 
                                       
12 2017 SCMR 206 
CAs 491/12 etc                     -24- 
 
service, at a disadvantageous position in terms of seniority 
and other benefits to reinstated employees. If so, then The 
Act of 2010 would be violative of right enshrined under 
Article 9 and Article 25 of the Constitution of the regular 
employees.  
 
32.    
A similar matter was addressed by this Court 
Contempt Proceedings Against Chief Secretary, Sindh 
and Others13 where the vires of the legislative instruments 
known as the Sindh Civil Servants (Regularization of 
Absorption) Ordinance, 2011 and the Sindh Civil Servants 
(Regularization of Absorption) Act, 2011 were examined. 
Through the operation of these legislative instruments, the 
employees of the Federal Government, Corporation, 
Council, statutory body, or any other authority absorbed in 
the Sindh Civil servants on or before the commencement of 
the aforementioned ordinance were granted backdated 
seniority from the date of their absorptions. Therefore, the 
question before the court was whether such regularization, 
among other legislative instruments, could be validated 
through statutes? In holding that the statute was ultra-
vires, this Court held that: 
“118. Article 9 of the Constitution provides 
protection to every citizen of life and liberty. 
The term "life and liberty", used in this Article 
is very significant as it covers all facets of 
human existence. The term "life" has not been 
defined in the Constitution, but it does not 
mean nor it can be restricted only to the 
vegetative or animal life or mere existence 
from conception to death. The inhibition 
against its deprivation extends to all those 
limbs and faculties by which life is enjoyed. 
The term "life" includes 'reputation' 'status' 
and all other ancillary privileges which the 
law confers on the citizen. A civil servant is 
fully protected under Article 9 and cannot be 
deprived of his right of reputation and status. 
Under the impugned instruments a person, 
                                       
13 2013 SCMR 1752 at Paragraph 117 
CAs 491/12 etc                     -25- 
 
who 
without 
competing 
through 
the 
recruitment process is conferred status of a 
civil servant. The impugned legislation has 
amended service laws in a manner to deprive 
the civil servants from their rights to status 
and reputation 
under Article 
9 
of 
the 
Constitution. 
 
119. A civil servant, who after passing the 
competitive exam in terms of the recruitment 
rules, is appointed on merits, loses his right to 
be 
considered 
for 
promotion, 
when 
an 
employee from any other organization is 
absorbed under the impugned legislative 
instruments, 
without 
competing 
or 
undertaking competitive process with the 
backdated seniority and is conferred the 
status of a civil servant in complete disregard 
of recruitment rules. Under the impugned 
enactments, it is the sole discretion of the 
Chief Minister to absorb any employee 
serving in any other organization in Pakistan 
to any cadre in the Sindh Government. The 
discretion of the Chief Minister to absorb any 
employee from any part of Pakistan to any 
cadre 
with 
backdated 
seniority 
directly 
affects the fundamental rights of all the civil 
servants in Sindh being violative of the Article 
4 which provides equal protection of law to 
every citizen to be treated in accordance with 
law, which is inalienable right of a citizen. 
The impugned legislative instruments have 
been promulgated to extend undue favour to 
few individuals for political consideration and 
are against the mandate of the Civil Servant 
Act and recruitment rules framed thereunder. 
The impugned instruments are discriminatory 
and prejudicial to public interest as such 
enactments 
would 
be 
instrumental 
in 
affecting 
the 
Civil 
servants' 
tenurial 
limitations and their legitimate expectancy of 
future 
advancement. 
The 
provision 
of 
absorption on the plain reading reveals that 
this provision has been promulgated to 
circumvent and obviate the very framework of 
the Provincial civil structure, as envisaged by 
the Constitution and law. By such impugned 
instruments, a parallel system based on 
discrimination 
and 
favoritism 
has 
been 
CAs 491/12 etc                     -26- 
 
imposed to supersede the existing law, Rules 
and Regulations governing the important 
matters of civil servants like 'absorption', 
therefore, it can be safely held that the 
impugned instruments being discriminatory 
are violative of Article 25 of the Constitution, 
as it is not based on intelligible differentia not 
relatable to the lawful object. 
 
120. The impugned Ordinance and Act of 
2011 validating absorption by the Sindh 
Government are ultra vires of Articles 240 
and 242 of the Constitution, as these 
instruments, in the first place, have been 
promulgated without amending the Act of 
1973, and the rules framed there-under. 
Moreover, 
the 
impugned 
validation 
instruments are multiple legislation and do 
not provide mechanism by which absorption 
of different employees took place in complete 
disregard of the parent statute and the rules 
framed there under. By these impugned 
validating instruments restriction placed by 
Articles 240 and 242 of the Constitution has 
been done away. The validating instruments 
allowed absorption of a non Civil Servant 
conferring on him status of a Civil Servant 
and likewise absorption of a Civil Servant 
from non-cadre post to cadre post without 
undertaking the competitive process under 
the recruitment rules. We may further observe 
that the Provincial Assembly can promulgate 
law relating to service matters pursuant to the 
parameters defined under Articles 240 and 
242 of the Constitution read with Act of 1973 
but, in no way, the Provincial Assembly can 
introduce any validation Act in the nature of 
multiple or parallel legislation on the subject 
of service law.” 
 
33.    
Finally, in the aforementioned case, the Court 
concluded that: 
“The impugned legislation on absorption is 
persons/class specific as it extends favours 
to specific persons infringing the rights 
guaranteed to all the civil servants under the 
service structure provided under Articles 240 
and 242 of the Constitution. This Court in the 
CAs 491/12 etc                     -27- 
 
case of Baz Muhammad Kakar and others v. 
Federation of Pakistan and others (PLD 2012 
SC 870) has held that the legislature cannot 
promulgate laws which are person/class 
specific 
as 
such 
legislation 
instead 
of 
promoting 
the 
administration 
of 
justice 
caused injustice in the society amongst the 
citizens, who were being governed under the 
Constitution. 
In 
the case 
in 
hand 
the 
impugned legislation, prima facie, has been 
made to protect, promote and select specific 
persons who are close to centre of power, and 
has altered the terms and conditions of 
service 
of 
the 
civil 
servants 
to 
their 
disadvantage in violation of Article 25 of the 
Constitution.” 
 
34.   
The matter before us bears a similar nexus to the 
aforementioned case. 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 regularized without due consideration to 
how the fundamental rights of the people currently serving 
would be affected. 
 
35.    
There exists a regulatory framework of each 
organization which was created to ensure parity among the 
CAs 491/12 etc                     -28- 
 
employees 
in 
service 
of 
Pakistan. 
There 
exists 
a 
meritorious process that ensures completion of all codal 
formalities through which civil servants are inducted into 
the service of Pakistan. The rights of the people who have 
completed such formalities and complied with the 
mandatory requirements laid down by the regulatory 
framework 
cannot 
be allowed to be placed 
at a 
disadvantageous position through no fault of their own.  
 
36.    
Similarly, 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 favors through circumvention and obviation 
of the very framework of the civil structure envisaged by 
the Constitution and law. 
 
37.    
Given that none of the ‘sacked employees’ opted 
for the remedy available under law upon termination 
during 
the 
limitation 
period, 
the 
transaction 
has 
essentially become one that is past and closed. They had 
foregone their right to be reinstated by availing the due 
process of law that was available to them due to which 
they had foregone their right to challenge their orders of 
termination or removal. The ‘sacked employees’, upon 
termination or removal, were entitled to the legal remedy to 
challenge such orders and their inaction has closed the 
doors for such remedy.  
 
ISSUE 3: 
THE REPUGNANCY OF THE ACT OF 2010 WITH 
ARTICLE 240 AND ARTICLE 242 OF THE 
CONSTITUTION OF PAKISTAN: 
 
CAs 491/12 etc                     -29- 
 
38. 
 
Needless to mention that even in the absence of 
violation of fundamental rights, this Court may examine 
the vires of a legislation by assessing whether it can be 
reconciled with the Constitution of Pakistan. In the case of 
Zafar Ali Shah v. Pervaiz Musharraf, Chief Executive of 
Pakistan,14 a full court has held that:  
“so long as the superior Courts exist, they 
shall 
continue 
to 
exercise 
powers 
and 
functions 
within 
the 
domain 
of 
their 
jurisdiction and shall also continue to exercise 
power of judicial review in respect of any law 
or 
provision 
of 
law 
which 
comes 
for 
examination before the superior Courts. " 
 
39. 
 
This Court, as protector and defender of the 
Constitution, has an inherent duty to ensure that the 
provisions of the constitution are enforced in any case 
coming before us and declare any enactments invalid that 
abrogate the Constitution.15 
 
40.    
Therefore, as discussed above, notwithstanding 
the non-obstante clause in The Act of 2010, there is no 
cavil to the proposition that this Court may examine the 
legislative competence to enact statutes. Therefore, the 
second limb of the proposition orbits around the legislative 
competence of the legislature to enact 2010 Act as it 
circumvents the constitutional process envisioned under 
Article 240 and Article 242 of the Constitution. 
 
41. 
 
Another important distinction is the difference of 
the terms ‘civil servant’ and employees in ‘Service of 
Pakistan’. This is a crucial distinction as the proposition 
that requires examination is whether a person can be 
declared by the legislature, on the basis of legal fiction, a 
Civil Servants, for the purposes of section 2(b) of the Civil 
Servants Act, and a person serving ‘in service of Pakistan’, 
                                       
14 PLD 2000 SC 869 
15 PLD 1963 SC 486. PLD 1967 Lahore 227. 1989 PTD 42. PLD 1983 SC 457. PLD 1999 SC 54. 
1999 SCMR 1402. 2002 SCMR 312. 2004 SCMR 1903. PLD 2006 SC 602.  
CAs 491/12 etc                     -30- 
 
under Article 260 of the Constitution. A civil servant is 
defined as: 
“(b) "civil servant" means a person who is a 
member of an All-Pakistan Service or of a civil 
service of the Federation, or who holds a civil 
post in connection with the affairs of the 
Federation, 
including 
any 
such 
post 
connected with defence, but does include- 
(i) a person who is on deputation to the 
Federation 
from 
any 
Province 
or 
other 
authority; 
(ii) a person who is employed on contract, or 
on work-charged basis or who is paid from 
contingencies; or 
(iii) a person who is "worker" or "workman" as 
defined in the Factories Act, (XXV of 1934), or 
the Workman's Compensation Act, 1923 (VIII 
of 1923) 
 
42. 
The term ‘service of Pakistan’ is defined under Article 
260 of the Constitution as: 
“Service of Pakistan" means any service, post 
or office in connection with the affairs of the 
Federation or of a Province, and includes an 
All-Pakistan Service, service in the Armed 
Forces and any other service declared to be a 
service of Pakistan by or under Act of Majlis-
e-Shoora (Parliament) or of a Provincial 
Assembly, but does not include service as 
Speaker, Deputy Speaker, Chairman, Deputy 
Chairman, Prime Minister, Federal Minister, 
Minister of State, Chief Minister, Provincial 
Minister, Attorney-General, Advocate-General, 
Parliamentary Secretary or Chairman or 
member of a Law Commission, Chairman or 
member of the Council of Islamic Ideology, 
Special Assistant to the Prime Minister, 
Adviser 
to 
the 
Prime 
Minister, 
Special 
Assistant to Chief Minister, Adviser to a Chief 
Minister or member of a House or a Provincial 
Assembly” 
 
43. 
 
A ‘sacked employee’ has been defined under The 
Act of 2010 under S.2(f). The employer for such 
organizations has been defined under s.2(f) as: 
“employer means the Federal Government or 
any Ministry or Division or department of the 
Federal Government or a corporation or 
organization 
or 
autonomous 
or 
semi-
CAs 491/12 etc                     -31- 
 
autonomous body established by or under a 
Federal law or owned or controlled by the 
Federal Government.” 
 
44. 
 
A bare perusal of the aforementioned definition 
reveals that the ‘sacked employees’ fall into either the 
definition of a ‘civil servant’ or employees ‘in the service of 
Pakistan’. This Court, in the case of Syed Abida Hussain 
v. Tribunal for N.A 69,16 has held that the two terms are 
not synonymous. The relevant extract is reproduced below: 
“6. It is difficult to subscribe to the contention 
of the learned counsel. The expression 
`service of Pakistan' has been defined in 
Article 260(1) of the Constitution…  Learned 
counsel for the petitioner rightly concedes that 
the post of an Ambassador is a post in 
connection with the affairs of the Federation. 
It will be seen that the definition does not 
take notice of the manner in which a post in 
connection with the affairs of the Federation 
or a Province may be filled. Thus so far as the 
inclusion of the post in the service of Pakistan 
is concerned, it is immaterial whether the 
holder thereof has come to occupy it through a 
special contract or in accordance with the 
recruitment rules framed under the Civil 
Servants Act: consequently, the mere fact that 
a person is not a civil servant within the 
meaning of the Civil Servants Act would not 
put him beyond the pale of the said 
Constitutional definition. The contention that 
the case of the petitioner was covered by sub-
clause (n) ibid, is entirely misconceived as ex 
facie it does not apply to situations where the 
relationship of master and servant exists 
between the parties. Here the petitioner was 
a wholetime employee of the Government and 
except for matters, which were specifically 
provided in the letter of appointment she was 
governed by the ordinary rules of service 
applicable to the civil servants. It may 
perhaps be of interest to mention here that 
these rules were framed in pursuance of the 
provision of Article 240 ibid. Thus the 
assertion on her behalf that while serving as 
an Ambassador she could not be treated as 
one in the service of Pakistan merely because 
her appointment to the post owed its origin to 
                                       
16 PLD 1994 SC 60 
CAs 491/12 etc                     -32- 
 
a 
special contract cannot be 
accepted. 
Admittedly, a period of two years has not 
passed since she relinquished charge of the 
said post. Therefore, she has been rightly 
held to be suffering from the disqualification 
laid down in clause (k) ibid. We find no merit 
in this petition. It is hereby dismissed. For the 
above discussion, it is quite clear that a 
person may be in the service of Pakistan but 
for that reason he cannot be classed as a 
`Civil Servant ` as well, as defined in the Civil 
Servants 
Act. 
The 
Service 
Tribunal 
established in pursuance of Article 212 of the 
Constitution has been conferred exclusive 
jurisdiction only in respect of the dispute 
relating to terms and conditions of the service 
of a `Civil Servant' as defined under the Civil 
Servants 
Act, 
1973 
and 
as 
such 
the 
jurisdiction of the Tribunal could not be 
extended to any other category." 
 
45. 
 
This reasoning was upheld in the case of 
Registrar, 
Supreme 
Court 
of 
Pakistan 
v. 
Wali 
Muhammad,17 wherein it was held that: 
“We would like to mention here that from the 
trend of arguments at the bar it appeared that 
two expressions `service of Pakistan' and 
`Civil servants' were treated as synonymous. 
This in our opinion is not so. Service of 
Pakistan is defined in Article 260 of the 
Constitution as meaning, any service, post or 
office in connection with the affairs of 
Federation or a Province. This expression also 
includes an All Pakistan Service and service 
in the Armed Forces or any other service 
declared under an Act of the Parliament or a 
Provincial Assembly as Service of Pakistan. 
The terms `Civil Servant' is defined in the Civil 
Servants Act 1973 as a person, who is a 
member of an All Pakistan Service or of a civil 
service of the Federation or a person holding 
a civil post in connection with the affairs of 
Federation, including a civil post connected 
with the defence. However, a person on 
deputation 
to 
the 
Federation 
from 
any 
Province or other authority, a person who is 
employed on a contract or on work-charge 
basis who is paid from contingencies and a 
person who is `worker' or `workman' as 
                                       
17 1997 SCMR 141 
CAs 491/12 etc                     -33- 
 
defined in the Factories Act, 1934 or the 
Workmen's Compensation Act, 1923, are 
expressly excluded from the category of `Civil 
Servant'. On a careful examination of the 
definitions of `Service of Pakistan' as given in 
Article 260 of the Constitution and the `Civil 
Servant' as mentioned in Civil Servants Act, 
1973, 
it 
would 
'appear 
that 
the 
two 
expressions 
are 
not 
synonymous. 
The 
expression `Service of Pakistan' used in 
Article 260 of the Constitution has a much 
wider 
connotation 
than 
the 
term 
`Civil 
Servant' employed in the Civil Servants Act. 
While a `Civil Servant' is included in the 
expression `Service of Pakistan', the vice 
versa is not true. `Civil Servant' as defined in 
the Civil Servants Act, 1973 is just a category 
of service of Pakistan mentioned in Article 
260 of the Constitution. To illustrate the point, 
we may mention here that members of Armed 
Forces though fall in the category of `Service 
of Pakistan' but they are not civil servants 
within the meaning of Civil Servants Act and 
the Service Tribunals Act. The scope of 
expression `Service of Pakistan' and `Civil 
Servants' came up for consideration before 
this Court in the case of Syeda Abida 
Hussain v. Tribunal for N.A. 69 (PLD 1994 SC 
60). 
In 
that 
case 
the 
petitioner 
was 
disqualified 
from 
contesting 
the 
general 
elections of 1993 on the ground that she was 
a person who held the office of profit in the 
Service of Pakistan. It was contended by the 
petitioner in that case that she was appointed 
as an Ambassador on contract for two years 
and as a person employed on contract was 
specifically excluded from the definition of 
civil servant the petitioner could not be 
disqualified.” 
 
46. 
 
This rationale was finally upheld in the case of 
Mubeen-Us-Salam v. Federation of Pakistan18 wherein it 
was stated that: 
“From perusal of the definition of `civil 
servant' in section 2(1)(b) of the CSA, 1973, it 
emerges that in order to attain the status of a 
`civil servant' it is necessary that the person 
should be member of All Pakistan Service or 
of a civil service of the Federation, or who 
                                       
18 PLD 2006 SC 602 at Paragraph 35 
CAs 491/12 etc                     -34- 
 
holds a civil post in connection with the 
affairs of the Federation. There may be some 
employees who fall within the definition of 
`civil servant' for the purpose of STA, 1973 
but do not enjoy the status of All Pakistan 
Service or of a civil service of the Federation.” 
 
47. 
 
When assessing when the legislature can, through 
legal fiction, by a deeming clause, declare a person to be a 
person in the service of Pakistan for the purposes of Article 
260, we find solace in the case of  Federation of Pakistan 
v. Muhammad Azam Chattha,19 wherein it was stated 
that: 
“In this behalf it may be noted that according 
to Article 260 of the Constitution, the 
Legislature is empowered to declare any 
service to be service of Pakistan by or under 
an Act of Majlis-e-Shoora [Parliament]. This 
constitutional provision nevertheless does not 
empower the Legislature to declare any 
person to be in the service of Pakistan, on the 
basis of a legal fiction. The Legislature by 
using the expression "shall be deemed" has 
allowed to enjoy the status of civil servant, 
even to those persons who were excluded 
from its definition in terms of section 2(I)(b) of 
the CSA, 1973, which also includes a person, 
who is a contract employee as interpreted by 
this Court…” 
 
48.    
Further support to the proposition that the 
Legislature cannot, by deeming clause, confer the status of 
a ‘civil servant’ upon employees of corporation can be 
found in the case of Mubeen-us-Salam v. Federation of 
Pakistan,20 wherein, after an elaborate discussion, it was 
held that that: 
“71. In view of above position, we are of the 
opinion that Article 260 of the Constitution 
does not mandate to Legislature to declare 
any person to be in the service of Pakistan, 
and by deeming clause to be a civil servant 
for the purpose of STA, 1973. We have 
minutely examined the earlier judgments on 
the point, particularly the cases of WAPDA 
                                       
19 2013 SCMR 120 
20 PLD 2006 SC 602 
CAs 491/12 etc                     -35- 
 
employees, discussed above, as well as the 
judgment in the case of Qazi Wali Muhammad 
(ibid), to come to the conclusion that a person 
can be declared to be in service of Pakistan 
but not necessarily a civil servant, in terms of 
CSA, 1973. 
 
75. This Court had an occasion to examine 
the effect 
of a deeming clause in the case of Mehreen 
Zaibun Nisa (PLD 1975 SC 397), wherein the 
effect of a deeming clause in light of the 
earlier judgments was summed up as follows: 
--- 
 
‘(i) When a statute contemplates that a state 
of affairs should be deemed to have existed, it 
clearly proceeds on the assumption that in 
fact it did not exist at the relevant time but by 
a legal fiction we are to assume as if it did 
exist. 
 
(ii) Where a statute says that you must 
imagine the state of affairs, it does not say 
that having done so you must cause or permit 
your imagination to boggle when it comes to 
the inevitable corollaries of that state of 
affairs. 
 
(iii) At the same time, it cannot be denied that 
the Court has to determine the limits within 
which and the purposes for which the 
Legislature has created the fiction. 
 
(iv) When a statute enacts that something 
shall be deemed to have been done which in 
fact and in truth was not done, this Court is 
entitled and bound to ascertain for what 
purposes and between what persons the 
statutory 
fiction 
is 
to 
be 
resorted 
to.’ 
 
76. As pointed out herein above that on 
promulgation of section 2-A of the STA, 1973, 
the persons employed in the Government 
controlled Corporations, were never treated to 
be in the service of Pakistan, therefore, they 
were not allowed to enjoy the status of a civil 
servant. But now, by means of a legal fiction, 
such status has been conferred upon them 
notwithstanding the fact that statedly their 
cases are not covered by the definition of "civil 
servant" and on account of this legal fiction a 
CAs 491/12 etc                     -36- 
 
discrimination has been created between the 
persons, who have been excluded from the 
definition of civil servant as per section 2(1)(b) 
of the CSA, 1973 whereas the persons in the 
employment 
of 
Government 
controlled 
Corporations, either created by or under a 
statute, most of them incorporated under the 
Companies 
Ordinance 
1984, 
have 
been 
declared to be in the service of Pakistan and 
deemed to be civil servants. Thus, it has 
created a classification which does not seem 
to be reasonable. As per the second principle, 
noted hereinabove, a deeming clause only 
permits to imagine a particular state of affairs 
but it does not mean that such imagination 
can be allowed to be overwhelmed, when it 
comes to the inevitable corollaries of that 
state of affairs, therefore, merely on the basis 
of imagination, status of a person cannot be 
converted, without ensuring compliance of the 
basic requirements. As in the case in hand, 
merely on the basis of a deeming clause, if a 
person is treated to be a civil servant, it has 
also to be examined whether remaining 
conditions, provided under the CSA, 1973 
have 
been 
fulfilled, 
particularly, 
as 
to 
whether, 
while 
making 
appointments, 
provisions of section 5 of the CSA, 1973 have 
been complied with or not, according to which 
the appointments to an All-Pakistan Service 
or, to a civil service of the Federation or to a 
civil post in connection with, the affairs of the 
Federation, including any civil post connected 
with the defence, shall be made in the 
prescribed manner by the President or by a 
person authorized by the President in that 
behalf. Inevitable corollary consequent upon 
this provision of law and the conclusion 
would be that those persons, who are 
working 
in 
the 
Government 
controlled 
Corporations etc. and have been appointed in 
a prescribed manner, would be deemed to be 
in the service of Pakistan and if their status is 
declared to be a civil servant, only then they 
would be entitled to enjoy the benefits of 
Section 2-A of the STA, 1973, whereas the 
persons other 
than those, like persons 
employed on contract basis, deputationist, 
worker or workman, under different statutes, 
whose appointment has not taken place in the 
prescribed manner, shall not be deemed to be 
civil servants and merely on the basis of 
CAs 491/12 etc                     -37- 
 
fiction their status cannot be enhanced 
essentially, in majority of cases, they have 
not been appointed under any statutory 
provision and it is also not clear as to whether 
their appointment had taken place under 
lawful authority and such Authority had 
exercised its discretion fairly and in good 
faith or there was any mala fide etc.” 
 
49.    
Furthermore, S.2(f)(i) and S.2(f)(ii) clearly envisions 
that reinstatement and regularization21 should be extended 
to not only regular employees who were either dismissed, 
removed, or terminated, but to ad-hoc and contract basis 
employees as well. When S.2 is read holistically, the overall 
effect of the enactment is that the overall recruitment 
process 
is 
overlooked 
and 
non-civil 
servants 
are 
‘reinstated’ into civil service thereby deeming them to be 
members of civil service through a deeming clause.  
 
50.    
Therefore, given the fact that it is settled law that 
the legislature cannot, through deeming clause, confer the 
status of a civil servant,22 it has overlooked the relevant 
framework for employees in the service of Pakistan in clear 
violation of Article 240 and Article 242 of the Constitution.  
 
51.    
This is particularly troubling as each of the 
‘sacked employees’ had appropriate remedies available 
under Article 212 read with the Service Tribunals Act, 
1973 before the appropriate Service Tribunal. Given that 
the employees did not elect for such a remedy upon 
termination of services, they have foregone their right to be 
reinstated.  
 
52. 
 
In conclusion, while The Act of 2010 intends for 
reinstatement, the jurisprudence of this Court has clearly 
laid down the nuances entailed by the term ‘reinstatement’. 
The Act of 2010 does not fulfill the criteria laid down by 
                                       
21 Under S.4 of The Act of 2010 
22 2015 SCMR 456 at Paragraph 203 
CAs 491/12 etc                     -38- 
 
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.  
 
53. 
 
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.  
 
II. THE EFFECT OF DECLARING A LAW ULTRA VIRES: 
 
54.    
The final point of contention becomes the effect of 
the judgment declaring the law to be ultra vires of the 
Constitution. It is settled law that the effect of a 
declaration of this Court deeming a statute to be ultra-vires 
of the Constitution has been aptly described in the case of 
Ali Azhar Khan Baloch v. Province of Sindh23 that:  
“129… Now, it is a settled law of this Court 
that no right or obligation can accrue under 
an unconstitutional law. Once this Court has 
declared a legislative instrument as being 
unconstitutional, the effect of such declaration 
is that such legislative instrument becomes 
void ab initio, devoid of any force of law, 
neither can it impose any obligation, nor can 
it expose anyone to any liability.  
 
130. In the case in hand, the benefits 
extended to the Petitioners through the 
impugned legislation, were not only violative 
of law but were also declared ultra vires of 
the Constitution. In such like circumstances, 
the benefits, if any, accrued to the Petitioners 
by the said legislative instruments shall 
stand withdrawn as if they were never 
extended 
to 
them… 
In 
the 
present 
proceedings, this Court has struck down the 
                                       
23 2015 SCMR 456 
CAs 491/12 etc                     -39- 
 
legislative instruments by which benefits 
were extended to a class of persons, in 
complete disregard of the service structure 
mandated by the provisions of Articles 240 
and 242 of the Constitution. Through the 
legislative instruments, which were struck 
down by this Court, undue favours were 
extended to a few individuals, for political 
considerations against the mandate of the Act 
and the recruitment Rules framed thereunder. 
Such instruments were held to be violative of 
Articles 4, 8, 9, 14 and 25 of the Constitution. 
Through these legislative instruments, many 
of the Petitioners were absorbed and/or given 
out 
of 
turn 
promotions 
or 
back-dated 
seniority, depriving other meritorious Civil 
Servants of their seniority and smooth 
progression in career. A substantial number 
of unfit and unmeritorious Officers were thus 
absorbed/promoted out of turn/given back-
dated seniority in important cadres,services 
and posts by extending undue favors by the 
Authorities, skipping the competitive process. 
Such 
absorptions 
etc, 
which 
were 
not 
permissible under the Civil Servants Act, had 
practically obliterated the Constitutional and 
legal differentiations that existed amongst 
various cadres, posts and services. We have 
already observed in our judgment that the 
legislative instruments, which were struck 
down by this Court, had engendered a culture 
of patronage, bringing more politicization, 
inefficiency 
and 
corruption 
in 
the 
Civil 
Service.” 
 
55.   
Furthermore, it was stated that in the case of 
Shahid Pervaiz v. Ejaz Ahmad24: 
“111. … If an illegal benefit was accrued or 
conferred under a statute, whether repealed 
(omitted) or continuing, and its benefits 
continue to flow in favour of beneficiaries of 
such an unconstitutional Act, and it is 
declared ultra vires, the benefits so conferred 
would have to be reversed irrespective of the 
fact that the conferring Act was still on the 
statute book or not.” 
 
 
                                       
24 2017 SCMR 206 
CAs 491/12 etc                     -40- 
 
56.   
It was also mentioned in Shahid Pervaiz v. Ejaz 
Ahmad (supra) that: 
“119. However, when a statute (whether 
existing or repealed) is found to be ultra vires 
the Constitution, the Court is empowered 
indeed, mandated to examine whether any 
person continues to enjoy the benefits of the 
ultra vires statute, or whether any state of 
affairs continues to exist as a result, and if it 
is found so, the Court is mandated to undo 
the same, provided that the benefit or state of 
affairs in question is not a past and closed 
transaction. For instance, the case of an 
employee who had enjoyed an out of turn 
promotion pursuant to a law found to be ultra 
vires the Fundamental Rights, who now 
stands retired and or died, it would constitute 
a past and closed transaction inasmuch as it 
would be a futile exercise to re-open the case 
of such an employee. On the other hand, 
employees who were so promoted under such 
a statute and who continue to remain in 
service, would be liable to be restored to the 
position that existed prior to the benefit 
conferred 
under 
the 
statute 
found 
inconsistent 
with 
Fundamental 
Rights. 
Indeed, once a statute has been declared as 
being unconstitutional for any reason, all 
direct benefits continuing to flow from the 
same are to be stopped. Reference in this 
behalf may be made to the case of Dr. 
Mobashir Hassan v. Federation of Pakistan 
(PLD 2010 SC 265). 
 
57. 
 
The only cavil to such a proposition is if a vested 
right was created, however, that can only be generated 
through a valid enactment. Furthermore, neither are the 
benefits accrued under the Act of 2010 neither a past and 
closed transaction as the rights created were through a 
non est legislation from its inception. Therefore, given the 
nature of the Act of 2010, and its blatant unconstitutional 
mechanism, a vested right could not have been created, let 
alone the vested right be protected under the doctrine of a 
past and closed transaction.  
 
CAs 491/12 etc                     -41- 
 
58. 
 
It is the duty of this Court to safeguard the rights 
and interests of the citizens and such application cannot 
be maintained as the constitutional rights of employees 
who have invested decades of their lifetime into the service 
of the country are outrightly violated. They continue to be 
disadvantageously placed in comparison to their peers who 
reap the benefits of their own inaction.  
 
59. 
 
Therefore, in light of the discussion above, the Act 
of 2010 is hereby declared to be ultra vires of the 
Constitution. The effect of such a declaration is that 
any/all the benefits accrued to the beneficiaries are to be 
ceased with immediate effect.  
 
60. 
 
This Court, in light of Shahid Pervaiz (supra), 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. 
 
61. 
  
Whereas, the beneficiaries of the Act of 2010, who 
are still in service, will go back to their previous positions, 
i.e. 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.    
 
CAs 491/12 etc                     -42- 
 
62. 
 
In the light of above, all the Petitions, Appeals, 
Review Petitions and Applications are disposed of as per 
list below: 
 
CPLAs converted & 
Allowed/CRPs allowed/CAs 
Allowed 
Dismissed  
Disposed of 
CAs 491, 540-546, 580/12,  
CA 1151/12,  
 
CA 452/13,  
CAs 1026 & 1027/13,  
 
CAs 637-651/15,  
CAs 660/15,  
 
CA 101/16,  
 
CAs 518, 519/18 
CA 1098/18 
 
CAs 1921-1923/19,  
 
CP 842/15,  
CPs.1567/15,  
 
CPs 588-K, 589-K/18,  
 
CRPs 231-236, 256/16  
CAs 1081,1084/11  
 
CAs 536-539/12,  
 
CA 43/13,  
 
CAs 432/13,  
 
CAs 453/13,  
 
CA 65-K/13,  
 
CA 1106/15,  
 
CAs 4-K & 5-K/17,  
 
CPs 150, 151/13,  
 
CP 677-P/14,  
 
Cr.PLA 138-140/14,  
 
CPs 3612/15,  
CP 3366/15,  
All listed CMAs 
are disposed of.  
  
 
 
 
 
 
 
 
 
 
 
 
 
 
Judge 
 
 
 
Judge 
 
 
 
 
 
ANNOUNCED IN OPEN COURT 
At ISLAMABAD on 17.08.2021.      Judge            
Judge 
 
