Deputy Director, Finance & Administration FATA & others etc. vs. Dr. Lal Marjan & another etc. (Supreme Court)

Prior to the 25th Amendment of the Constitution of the Islamic Republic of Pakistan, Article 247(3) of the Constitution provided that: (i) no act of the federal legislature shall apply to FATA unless the President so directs; and (ii) no act of the Federal or Provincial legislature shall apply to PATA unless the Governor of the Province, with the approval of the President, so directs. Consequently, on the principle of casus omissus the High Courts cannot extend federal or provincial legislation to FATA/PATA as the Court cannot travel beyond its jurisdiction and read something into the law as the same would be ultra vires the powers available to the Court under the Constitution. The same would also be against the principle of trichotomy of powers.

The Supreme Court in its landmark decision titled Deputy Director, Finance & Administration FATA through Additional Chief Secretary, FATA Peshawar & others etc. vs. Dr. Lal Marjan & another etc. (Civil Appeals No. 231, 233, 235, 236, 238, 241, 242, 243, 256, 260, 262, 263, 264, 266, 278, 279, 281, 286, 287, 290, 291, 292, 293, 294, 295, 296, 297, 299, 300, 304 & 306 of 2020) inter alia elaborates on the aforementioned holdings in the context of whether the Khyber Pakhtunkhwa Employees (Regularization of Services) Act 2009 is applicable to project employees in FATA. I have prepared a concise case brief consisting of the facts, issues and holdings of the Supreme Court.

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Deputy Director, Finance & Administration FATA through Additional Chief Secretary, FATA Peshawar & others etc. vs. Dr. Lal Marjan & another etc. (Civil Appeals No. 231, 233, 235, 236, 238, 241, 242, 243, 256, 260, 262, 263, 264, 266, 278, 279, 281, 286, 287, 290, 291, 292, 293, 294, 295, 296, 297, 299, 300, 304 & 306 of 2020)

Facts:

Respondents were appointed on contract basis against different posts in FATA. The Respondents received termination notices and were replaced. Respondents through Constitutional Petitions sought regularization of their services which were allowed by Peshawar High Court. The Supreme Court set aside the judgment of the High Court and remanded the matter back. The High Court again vide impugned judgment allowed the Constitutional Petitions. Appellants challenged impugned judgment of Peshawar High Court before Supreme Court. Leave to appeal was granted.

Arguments:

The Additional Advocate General, Khyber Pakhtunkhwa contends that:

·??????The Respondents were employed on contract basis against project posts and hence their employment was dependent on life of project;

·??????The KP Employees (Regularization of Services) Act 2009 (“2009 Act”) is not applicable to the Respondents who were employees of different departments in FATA in terms of Article 247(3) of the Constitution;

·??????The High Court’s jurisdiction was barred to deal with controversy considering the provision of Article 247 of the Constitution, as it existed at the relevant time; and

·??????President Order No. 13 of 1972 relied on by Respondents provides relief to a specific class of employees which did not cover the Respondents.

The Respondents on the other hand contended that:

·??????Respondents were to be treated at par with other employees who were regularized;

·??????Respondents should be regularized as they were employed before commencement date of the 2009 Act;

·??????High Court was vested with jurisdiction to adjudicate upon matters related to FATA after the 25th Amendment; and

·??????Respondents were serving satisfactorily and so deserve to be regularized.

Issue No. 1: Whether the High Court could apply the 2009 Act to FATA / PATA?

Held: The High Court could not apply the 2009 Act to FATA/PATA.

Reasoning:

·??????The preamble of the 2009 Act provides that its purpose and scope is regularization of certain employees in the province of Khyber Pakhtunkhwa. The preamble does not provide that the 2009 Act shall be applicable on FATA/PATA. In the definitions under the 2009 Act as well the term “Government” is defined as Government of KP.

·??????Even otherwise, at the time when the Respondents were employed and subsequently relieved the 25th Amendment to the Constitution was not in force. Consequently, the applicable provision of the Constitution was Article 247 which provided the mechanism for extension of law to FATA/PATA. Article 247(3) provides that no act of the federal legislature shall apply to FATA unless the President so directs. It further provides that no act of the Federal or Provincial legislature shall apply to PATA unless the Governor of the Province, with the approval of the President, so directs. Consequently, the 2009 Act was not extended to FATA/PATA.

·??????The High Court could therefore not have extended the 2009 Act to FATA/PATA on the principle of casus omissus. This principle provides that where the legislature has not provided something in the language of the law, the Court cannot travel beyond its jurisdiction and read something into the law as the same would be ultra vires the powers available to the Court under the Constitution. The same would also be against the principle of trichotomy of powers. ?

Issue No. 2: Whether the High Court could exercise jurisdiction in matters related to FATA/PATA?

Held: The High Court could not exercise jurisdiction in matters related to FATA/PATA.

·??????Article 247(7) of the Constitution provided that neither the Supreme Court nor a High Court shall exercise any jurisdiction under the Constitution in relation to a Tribal Area, unless the Federal Legislature by law provides otherwise.

·??????Whilst the 25th amendment omitted Article 247 of the Constitution with effect from 04.06.2018 and inter alia merged FATA/PATA in the province of KP, the Respondents were employed before the incorporation of the 25th Amendment and cannot be given retrospective effect. Consequently, Article 247 applies to the matter at hand. Giving the 25th amendment retrospective application would open a floodgate of unnecessary legal and constitutional complications which should be avoided.

·??????It may be noted that the Supreme Court and High Court (Extension of Jurisdiction to Federally Administered Tribal Areas) Act 2018 was to be made applicable from a date to be notified by the Federal Government. However, no such date had been notified at the time the High Court took cognizance of the matter.

Issue No. 3: What was the effect of Presidential Order No. 13 of 1972?

Held: The Presidential Order No. 13 of 1972 (“PO”) is not applicable to the case of the Respondents.

Reasoning:

·??????Para 3 of the PO mentions that employees recruited in FATA are to be deemed to be employees of the Provincial Government on deputation with the Federal Government. It is, therefore, argued that the benefit of the 2009 Act would extend to them. This view is incorrect as the PO was only applicable to those employees who were already in service on the appointed day when the PO was passed. Consequently, the PO could not be extended to cover the Respondents. Even otherwise, employees of FATA cannot be treated as provincial employees as the same came under the control of the Federal Government and not the Provincial Government.

Issue No. 4: Whether the Respondents, being project employees, can claim regularization based on long service?

Held: The Respondents cannot claim regularization based on long service.

Reasoning:

·??????It is trite that long service is no ground for regularization. Regularization has to be supported by regularization and it is not an automatically accruing right. Section 3 of the 2009 clearly excludes project employees from the benefit of regularization, and it is uncontroverted that the Respondents were project employees. Consequently, the Courts cannot overstep their powers to add language to a statute which the legislature has not provided.

Based on the above, the appeals were allowed and the impugned judgments of the Peshawar High Court were set aside.

The judgment of the Supreme Court may be accessed from the following link: https://www.supremecourt.gov.pk/downloads_judgements/c.a._231_2020.pdf

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