ISLAMABAD: The federal government sought review and reconsideration of the Supreme Court judgment on removal of thousands of employees by declaring Sacked Employees (Re-instatement) Act, 2010 ultra vires.
The secretary Establish-ment Division, on Tuesday, filed the review petition under Article 188 of the Constitution and cited 93 individuals, who were affected by the judgment, as respondents.
It prayed to suspend the operation of the impugned judgment till the final disposal of the review petition.
Justice Mushir Alam, before his retirement (August 17, 2021), delivered the judgment declaring the Act ultra vires, and said the effect of such a declaration is that any/all the benefits accrued to be beneficiaries are to be ceased with immediate effect.
“The beneficiaries of the Act, 2010, who are still in service, will go back to their previous positions, i.e., to date when the operation of the Act 2010 has taken effect,” the judgment further said.
The review petition contended that the impugned judgment was reserved on 16th December 2019, and was announced on 17th August 2021 i.e. after 20 months, which is against the set principles of due process.
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The submissions/arguments of the parties have not been recorded in the judgment, which indicates that due to passage of long period of time, important points that may have been raised by the parties during arguments escaped notice of the bench, which passed the judgment.
It stated that the legitimate rights and the interests of the existing employees including their seniority positions and promotion prospects could have been protected without declaring the entire Act as ultra vires the constitution.
The issue of the seniority under the Act had to be resolved on a case-to-case basis and the Act could not be struck down on this ground.
The Act could have been read down or if there was any offending provision, it could have been severed.
The petition mentioned that no notice was issued to large number of employees who were direct beneficiaries of the Act and have lost or shall lose their jobs immediately without any opportunity of being heard by the Court.
The Attorney General for Pakistan was not heard on the question of vires of the Sacked Employees (re-instatement) Act, 2010, before the Act was declared ultra vires by the Court.
The judgment suffers from other material legal defects and has been passed in ignorance of the judgment of the apex court in Ghulam Rasool vs Federation (PLD 2015 SC 6), it further said.
The federation submitted that it fully supports the principle of transparency, merit and due process in public employment and would not support or vouch for violations of any rights and interests of the existing employees who secured their jobs on merit in accordance with law.
The petition said the legitimate rights and interest of thousands of employees be protected in manner, which does not prejudice other employees. The Act was neither meant for nor applied to the service of the civil servants whose service is governed under the provisions of the Civil Servants Act, 1973, and the Rules framed there under.
The provisions of the Act could have been construed, read down and saved so as not to be in conflict with Article 240 of the Constitution and dealt with under respective law applicable to each body, corporation or organisations to which the beneficiary employees belonged as has already been held by the apex court in Ghulam Rasool’s case.
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The principle of severability of the provisions of the statute was not applied and the entire statute was declared ultra vires even though provisions, which merely protected the employees by reinstatement or regularisation of service without affecting rights or interest of any existing employees, could have been saved by the Court.
Resultantly, thousands of employees have instantly become unemployed causing severe distress to thousands of families.
In December 2010, the Parliament passed Sacked Employees (Re-instatement) Act, 2010 to reinstate persons, who were earlier employed in service of various corporations, autonomous or semi-autonomous bodies or government service but were later dismissed.
The basic relief given to the concerned persons was reinstatement into and regularisation of, the services.
The compensation allowed to them included an amount equal to three years’ salary vide Section 16 of the Act.
As regards the seniority, the reinstated employees were granted seniority one grade above at the bottom of the relevant cadre.
The employees already serving in the organisations assailed seniority, promotion and grant of one step higher scale to the reinstated employees.
Some of the litigants also challenged the vires of the Act and consequent reinstatement in service of the sacked employees.
On the other hand, the beneficiaries of the Act sought enforcement of their rights under the Act.
The petition said that the Court had appointed amicus curaie, but the consolidated impugned judgment under review is silent as to the assistance rendered by the said amicus curaie.