October 2014

JURISDICTION OF PUNJAB SERVICE TRIBUNAL OVER LOCAL GOVERNMENT EMPLOYEES: THE HARMONIOUS ASPECT

By
ZOHAIB IMRAN SHEIKH
Advocate High Court & Service Tribunals
Zohaib_imran_elahi@hotmail.com

BRIEF BACKGROUND

The aftermath of drastic judgment reported as PLD 2006 SC 602 MUBEEN US SALAM VS FEDERATION OF PAKISTAN, has crippled and ruined the lives of many innocent litigants wandering in search of justice before the tribunals throughout Pakistan. The judgment was not much explanatory, necessitating the honorable apex court to engrave Mubeen’s judgment effect in later declarations. The continuous pressure and declarations from the apex court after 2006 has also constrained the Parliament of Pakistan to repeal Section 2-A from the Service Tribunal Act 1973, the provincial service tribunals simply resorted to undoing a legislative instrument by the Parliament, without even knowing and understanding its constitutional, legal and moral impacts. Article 189 of Constitution of Pakistan 1973 binding the lower judicial hierarchy, but in no way can tarnish the independence of a judicial officer while interpreting the statues to its true import. Another chaotic impact is that the Supreme Court of Pakistan by giving contradictory judgments has also surprised the situation (will be dealing in later parts). Laws as held in various apex pronouncements, shall travel, always travel and not constant, as the humanity (ages) travels. The collateral attack to legislation and consequent its declaration in Mubeen’s judgment also could be explain its prospects of application. Resultantly, I have seen many people dying in the Federal Service Tribunal, owing its continuous dysfunctional in Musharraf’s regime, then by the nasty judgments by the apex court curtailing the jurisdiction for petty employees. I can cite thousand contradictory orders/judgments of constitutional courts, denying justice to petty beings and blessings for superior creation. This aspect of my paper had also been discussed in detail by Mr Karl Marx while pointing out “social injustice theory”. The Local Government Department, Punjab also suffered from the jurisdictional curtailing judgments of apex court, even otherwise, none of the learned presiding officers have endeavored to understand the true import of jurisdiction of Punjab Service Tribunal over local government employees. I would set reasons and grounds for the tribunals to exercise their respective jurisdiction notwithstanding repeal of jurisdictional granting enactments. The employees of Local Government in Punjab are also affected by the jurisdictional declarations by the apex court, notwithstanding the law saying contrary to the judgments. The Punjab Service Tribunal Lahore in earlier pronouncements dittoed the judgments of apex court without independently applying the same on the employees of Local Government, Government of the Punjab, whether amenable to the jurisdiction of tribunal or not. At this juncture, for the first time, I have been directed by Honorable Mr Jawad Ul Hassan, Learned Judicial Member of Punjab Service Tribunal Lahore, to ponder over this sacred issue of streamlining the jurisdictional conflicts, which I owed as an inherent duty to sift out the true interpretation of law qua mandate of Article 212. Here I refresh my memory by quoting following extracts from an Indian report:-

“…..it is the function of the legislature to enact the laws and the duty of the judiciary to interpret and enforce them. It is not doubt the characteristic of a good judge to amplify his jurisdiction, where the words of the statute conferring the jurisdiction can reasonably be interpreted as giving him jurisdiction, where, however, jurisdiction can only be snatched by a strained interpretation of the law ………………. the good judge becomes a bad citizen…….” (AIR 1930 SINDH 265 AT PAGE 271)

It is to be noted that the evolution of judicial process holds that the judges are better suited than legislatures to “unearth important principles beneath statutory language and weight unforeseen issues and disputes”. This view adapts the courts as open partners in producing statutory meaning. In case reported as AIR 1962 ALL 227, following ratio was laid down:-

“…………………Law is however not an exercise in linguistic discipline. It is emerging as an important therapy in disorder of social metabolism. It is a complex process and can be fully understood only by an attentive regard to its therapeutic function and its synthesis. There is accordingly, growing recognition by courts that a statute should be construed, rather than interpreted with due regard to its avowed object and to its character. In the words of learned judge, the art of interpretation is the “art of proliferating a purpose” ……………………”

THE PROPOSITIONS

1) Whether the Employees of Local Government, Government of the Punjab are amenable to the jurisdiction of Punjab Service Tribunal?

2) What is true import and status of employees defined under Punjab Local Government Ordinance 1979 and consequently in Punjab Local Government Ordinance 2002 & ACT 2013 and amendments made up to date?

3) Whether the law saving jurisdiction over the said employees requires amplification or simple declaration in this regard would suffice the purpose?

THE LAW ON THE SUBJECT

Before marshalling further, it is appropriate to reproduce Article 212 of Constitution of Pakistan, enacting for the establishment of Service Tribunals under the constitutional mandate:-

(1) Notwithstanding anything hereinbefore contained, the appropriate Legislature may by Act provide for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of,--

(a) matters relating to the terms and conditions of persons who are or have been] in the service of Pakistan, including disciplinary matters;

(b) matters relating to claims arising from tortuous acts of Government, or any person in the service of Pakistan, or of any local or other authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge of his duties as such servant; or

(c) matters relating to the acquisition, administration and disposal of any property which is deemed to be enemy property under any law.

(2) Notwithstanding anything hereinbefore contained, where any Administrative Court or Tribunal is established under clause (1), no other court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends and all proceedings in respect of any such matter which may be pending before such other court immediately before the establishment of the Administrative Court or Tribunal other than an appeal pending before the Supreme Court,] shall abate on such establishment: Provided that the provisions of this clause shall not apply to an Administrative Court or Tribunal established under an Act of a Provincial Assembly unless, at the request of that Assembly made in the form of a resolution, Majlis-e-Shoora (Parliament) by law extends the provisions to such a Court or Tribunal.

(3) An appeal to the Supreme Court from a judgment, decree, order or sentence of an Administrative Court or Tribunal shall lie only if the Supreme Court, being satisfied that the case involves a substantial question of law of public importance, grants leave to appeal.

The highlighted portion deals our proposition. The terminology “Service of Pakistan” has been couched by the Article 260 of Constitution itself, defining in the following terms:-

“….."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…………….”

One would definitely inquire about the establishment of provincial service tribunals, when the opening words of Article 212 only talks about establishment of service tribunal for the persons who are or has been in service of Pakistan. Relevant portion is again reproduced hereunder:-

“………… matters relating to the terms and conditions of persons who are or have been] in the service of Pakistan, including disciplinary matters….”

Here Article 260 answers, in that it inter-alia includes, defines and treats the persons in service of province as one rendering service of Pakistan without independently taking care of. As a necessary consequence, the sub-constitutional enactments, i.e Punjab Service Tribunal Act 1974 (Amended UP to date) by deriving strength from the Article 212 sets up the Punjab Service Tribunal, which already stood established by the Constitution itself. It is trite to note that the Service Tribunals are constitutional courts, mere fact that they are defined as “tribunals” would not lessen their sanctity, less than constitutional courts. See 2013 PLC CS 1308.

Section 2(b) of Punjab Civil Servants Act 1974 proceeds to define the “Civil Servant” in the following way:-

“Civil servant” means a person who is or who has been a member of a civil service of the Province or holds or has held a civil post in connection with the affairs of the Province but does not include--

(i) a person who is or who has been on deputation to the Province from the Federation or any other Province or authority;

(ii) a person who is or has been employed on contract, or on work-charged basis, or who is or has been paid from contingencies; or

(iii) a person who is or has been a ‘worker’ or ‘workman’ as defined in the Factories Act, 1934 (XXV of 1934) or the Workmen’s Compensation Act, 1923 (VIII of 1923);

Article 140-A of Constitution of Pakistan 1973 establishes the local government system through the country in the following legislative language.

“Local Government.− Each Province shall, by law, establish a local government system and devolve political, administrative and financial responsibility and authority to the elected representatives of the local governments.”

“Government” means the Government of the Punjab as defined in Section 2(xiii) of Punjab Local Government Ordinance 2001, whereas, the terms “Decentralize” or “Decentralized” means conferment by the Government under this ordinance of its administrative and financial authority for the (Operation, functioning and management of specific offices of the provincial Government to the Local Government (Emphasis added). The process of devolution for the purpose of decentralization couched in the preamble of the said ordinance 2001 devolves political power and decentralize the administrative and financial authority to accountable local governments for good governance, by no stretch of imagination could be treated to take as one denying the tribunals to exercise the jurisdiction over local government employees. The political measures taken by way of ordinance 2001 would not devastate the jurisdictional authority of tribunals until and constitution is so amended. Hereunder the Ordinance 2001 Government devolving its own powers, authority upon the local government, but it does not mean that Provincial Government by doing so is denuded of the administrative powers over the employees. Government under section 64 (3) of Act 2013 can delegate any function on the recommendations of Punjab Local Government Commission. Para 50 reproduced below from leading judgment cited as PLD 2014 LAHORE 221, by HJ Syed Mansoor Ali Shah:-

“…………50. The constitutional nexus between the powers of the Provincial Legislature, ECP, the Local Government System and elections to the local governments, requires elaboration. This also addresses the argument made by the Acting Advocate General, Punjab that the Provincial Legislature cannot impose any obligation (addressed in the context of delimitation) on a constitutional entity like the ECP. Constitution under Article 140A has empowered the Provincial Legislature to provide for a Local Government. System whereby political, financial and administrative responsibility and authority is devolved to the elected representative of the local governments. This power is, of course, supplemental to the residuary power enjoyed by the Provincial Legislature under the Constitution. Central to the Local Government System and intrinsic to any political devolution is the process of free and fair elections……...” (Emphasis)

Section 2(xvi) defines the local government in “inclusive manner”. The impact of inclusive definition is that it inter-alia includes other governments within its contemplation. However, the inclusive definition is always subject to certain restraints, i.e it must resort to the object of primary legislative purpose. Section 4 of Ordinance 2001 and Punjab Local Government Act 2013 both enacting with the similar language in the following way:-

4. (1) “LOCAL GOVERNMENT TO WORK WITHIN PROVINCIAL FRAME WORK: - The Local Governments established under this ordinance shall function within the provincial framework and adhere to the federal and provincial laws.

(2) In performance of their functions, the local governments shall not impede or prejudice the exercise of the executive authority of the government. “

The section reproduced above establishes the local government with the rider that the local governments so established shall work within the provincial framework, meaning thereby, and provincial control over the delegated administration shall remain intact by the titled law. The newly created local governments under the ordinance 2001 saves the authority, jurisdiction of provincial government over the local governments. Notwithstanding such devolution, inter-alia, the provincial government cannot be declared denuded with the vested inherent powers over such governments. Section 27 provides District Coordination Group of Offices shall be headed by the District Coordination officer (A Civil Servant). Section 27 further enacts that the government shall set offices for the newly created governments. The statutory task assigned to the District Coordination Officer had been defined in Section 28 of the Ordinance 2001, which inherently aimed fulfillment of requisite constitutional obligations and discharge of its functions by the province itself. The naked statutory reading is self explanatory to establish that it was the province delegating its powers to the newly estalibhsed local governments, the newly established governments deriving powers, administrative authorities from the province cannot be held or treated as separate entity outside the provincial framework. The new dawn necessitated establishment of local governments, per section 4 of Ordinance 2001, they are treated part of provincial set up. Decentralization does not and should not mean disconnection/ disassociation of powers of provincial government. Under Articles 32, 37(i) and 38 the Constitution provides that the local government is the third tier of political structure with the objective to decentralize the Government administration so as to facilitate expeditious disposal of the business to meet the convenience and requirement of the public and by doing so, it was never intended by law to drag them out of the jurisdiction of service tribunals. The political vision is to provide basic necessities of life, such as food, clothing, housing, education and medical relief to all citizens. To reduce disparity in the income and earning of individuals, to provide citizens facilities for work and adequate livelihood, to secure the well being of people by raising their standards of living by preventing concentration of wealth and means of production in the hands of the few, to the detriment of general interest are the political aspirations under our Constitution. SEE PLD 2014 LAHORE 221.

Here while exercising the constitutional mandate under Section 31, government had been empowered to frame Rules of Business for the smooth administration of District Government. The statutory aspect of the case is that the local governments under ordinance 2001 are nothing without the provincial set-up; the delegated control cannot make them or bless them with an independent character or identity. Local governments are nothing without provincial supervision, lest it may not prejudice their identification. Under Section 127 of Ordinance 2001 the district government shall collect such provincial tax or taxes within its local area as the Government may direct and the District Government shall after the collection of tax or taxes deposit the same in the relevant Government account. (Emphasized). Here the local government appears to be an agency of Provincial Government, collecting taxes and generating revenue for the provincial government, much less than performing functions in connection with the affairs of province. Especially, the Section 130 of ordinance entrusts certain functions to the District Government with the condition that Government shall provided necessary resources. Conceiving the statutory mandate, section 133A restructures the provincial departments.

It would be pertinent to reproduce Article 240 of Constitution of Pakistan, enacting in the following way:-

"240. subject to the Constitution, the appointments to and the conditions of service of persons in the service of Pakistan shall be determined --

(a) in the case of the services of the federation, posts in connection with the affairs of the Federation and Ali-Pakistan Services, by or under Act of [Majlis-e-Shoora (Parliament)]; and

(b) In the case of services of a Province and posts in connection with the affairs of a province, by or under Act of the Provincial Assembly.

Explanation.--In this Article, "All Pakistan Service" means a service common to the Federation and the Provinces, which was in existence immediately before the commencing day or which may be created by Act of [Majlis-e-Shoora (Parliament)].

It was the Government, creating a District Service comprising all posts of local government grouped into district and Tehsil cadres of decentralized local government functions under Section 140-A of Ordinance 2001. Deriving constitutional and statutory authority from the repealed ordinance 1979, the Governor enacts the Punjab Local Council Service (Appointment & Conditions of Service) Rules 1983, establishing the Punjab Local Government Board. Rule 3 of the Rules 1983 enacts in the following way, most important to be noted for the true import of conflicting proposition:-

“1) Constitution and Composition of the Service:-. There is hereby constituted for the province of the Punjab, a Local Council Service to be known as the Punjab Local Council Service”

2) The Service Shall Comprise the Posts shown in the schedule

3) The Posts comprising the service shall be classified according to the functional units indicated in the schedule

4) The following posts in the local council may be filled by the Punjab Local Government Board by transfer of District Management Group or Ex-PCS (EB) officers or the officers of local council service ……………”

Respectfully speaking, none of jurisdictional curtailing judgments ever considered the true import and intent of Rules 1983, in that, the local council service created by the Rules 1983 has been treated as Service of Province under Rule 3 thereof, with the establishment of service structure in different hierarchies under the provincial umbrella. Rules 18 and 22 are self explanatory, rather supplemental to the general provisions. Rule 22 engraving the impact of Rules 1983 provides that the members of service shall be governed as nearly as possible by the Punjab Civil Service Rules, Punjab Civil Service Pension Rules, Punjab Civil Servants T.A Rules, W.P Government Servants (Medical Attendance) Rules 1959 and such other general rules as may have been or may hereafter be prescribed by the Government from time to time. One must remember that Government under the Rules means Government of the Punjab. The remedial provisions had also been enacted under Rule 23. The schedule annexed with the Rules enacts administrative functional unit, accounts functional unit, engineering functional unit, town planning functional unit, architecture functional unit, health functional unit, and education functional unit, prescribing therein method of recruitments, promotions etc.

How the executive authority of Province are to be exercised stands answered by the constitution, laying therein generic mechanism in the following wordings:-

129. The Provincial Government.− (1) Subject to the Constitution, the executive authority of the Province shall be exercised in the name of the Governor by the Provincial Government, consisting of the Chief Minister and Provincial Ministers, which shall act through the Chief Minister. (2) In the performance of his functions under the Constitution, the Chief Minister may act either directly or through the Provincial Ministers

The article begins with the rider “Subject to the Constitution” rendering it as “non obstante clause”, but its implication would stand liberalized with the later amplification of constitution itself. It is pertinent to refer Article 138 of Constitution enacting that on the recommendation of the Provincial Government, the Provincial Assembly may by law confer functions upon officers or authorities subordinate to the Provincial Government. Subordination here appears to be much similar rather conjectural with the devolution process introduced by the constitution itself.

The implications of Section 44 of Repealed Punjab Local Government Ordinance 2001 cannot be lost sight at this juncture, enacting in the following ways:-

(1) Notwithstanding anything the contrary in any other law, the members of the Local Council Service constituted under the Ordinance shall be deemed to be civil servants for the purpose: of the Punjab Service Tribunal Act, 1974........”

It is again non- obstante clause, the impact of which had been discussed in various reports of honorable apex court, literally means that the status given above to the employees of local council has the over-ridden effect over the over status-denying provisions (if any). Here the honorable member would be looking into the intent, object and application of non obstante clause, declaring the employees of local council as civil servants. Besides, the generalized discussion above and the statutory intention while declaring the employees of local governments as one controlled and administered by the statutory provisions, their status is quiet manifest from the above statutory declarations. What is intended by “non obstante” clause has already been discussed in the foregoing judgments. The honorable apex court in case reported as 2013 SCMR 85, while interpreting Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976, dealt with the impact of “non obstante clause through following declaratory note:-

“…….… The Civil Servants Act is an Act of general application and as earlier said it has no constitutional status. Accordingly, it is as much a law as the Police Act of 1861 with the added distinction that it is of general application while the Police Act is of special application to the officers of the subordinate ranks of the police force. The same is true with the rules. In this view of the matter, as to which would prevail over the other in case of inconsistency is of no difficulty. It should not be forgotten that the Police Act and the rules framed there under are such as would be applicable to a disciplined force only while the Civil Servants Act cannot serve this purpose."……………….10. The question of applicability of General and Special Laws was also considered by the Privy Council in Montreal Corporation v. Montreal Industrial Land Company (AIR 1932 PC 252) wherein it was laid down as follows:--

"When the legislature had given its attention to a separate subject and made provision for it, the presumption is that a subsequent general enactment is not intended to interfere with the special provision unless it manifests that intention very clearly. Each enactment must be construed in that respect according to its own subject-matter and its own terms."…….11. The afore-referred view was reiterated in Tahira Haq v. A.R. Khan Niazi, Additional Commissioner (Revenue) Multan (PLD 1968 Lah. 344) and it was held as under:--

"The principle that the general law would not prevail over specific enactment is now well-settled …………………. While interpreting 'non obstante' cause, it should first be ascertained what the enacting part of the section provides on a fair construction of words used according to their natural and ordinary meaning as a 'non obstante' clause is to be understood as operating to set aside as no longer valid anything contained in relevant existing law which is inconsistent in the new enactment. The enacting part of the Statute must, where it is clear, be taken to control the non obstante clause where both cannot be read harmoniously for, even apart from such clause a later law abrogates an earlier law clearly inconsistent with it…………..."

I may also refer page 1678 of “Interpretation of Statutes” by N.S Bindra, (Tenth Edition) wherefrom following extracts dealing with the scope and intent of “non obstante clause” has been reproduced hereunder:-

"It has to be read in the context of what the legislature conveys in the enacting part of the provision. It should first be ascertained what the enacting part of the section provides on a fair construction of words used according to their natural and ordinary meaning and the non obstante clause is to be understood as operating to set aside as no longer valid anything contained in relevant existing law which is inconsistent with the new enactment. The enacting part of a statute must, where it is clear, be taken to control the non obstante clause where both cannot be read harmoniously, for even apart from such clause a later law abrogates earlier laws clearly inconsistent with it………. The proper way to construe a non obstante clause is first to ascertain the meaning of the enacting part on a fair construction of its words. The meaning of the enacting part which is so ascertained is then to be taken as overriding anything inconsistent to that meaning in the provisions mentioned in the non obstante clause. A non obstante clause is usually used in a provision to indicate that that provision should prevail despite anything to the contrary in the provision mentioned in such non obstante clause. In case there is any inconsistency between the non obstante clause and another provision one of the objects of such a clause is to indicate that it is the non obstante clause which would prevail over the other clauses. It does not, however, necessarily mean that there must be repugnancy between the two provisions in all such cases. The principle underlying non obstante clause may be invoked only in the case of 'irreconcilable conflict”.

Given the context and legal proposition, there appears no limitation on the legislature to declare any service to be the service of province and declaring any particular cadre or service within the procedural jurisdiction of Punjab Service tribunals, therefore, in exercise of these powers, a declaration in terms of section 44 of Punjab Local Government Ordinance 1979 had been made accordingly, as a result whereof members of local council service were declared civil servants, for the purpose of availing remedy under the law. However, Section 196 of Punjab Local Government Ordinance 2001 saves the status given to such employees under the Repealed Ordinance 1979. I can refer 1993 SCMR 745 to substantiate this contention.

The question of legislative competence would not arise barring our proposition, as the provincial legislature is fully conscious that Article 260 of the Constitution excludes certain persons from the definition of `service of Pakistan' but in spite of it, by enacting section 44 in the ordinance 1979, for special class of employees, granted them the status of civil servants. Ignorance is not to be imputed to the Legislature because; wisdom is always expected in favor of the Legislature. Another positive argument is that Article 212 of the Constitution does not stand in way of Section 44 of Ordinance 1979 and the remedy is independent of Article 212 of the Constitution because section 44 of Ordinance 1979 itself provides a remedy. The definition of service of Pakistan under Article 260 of the Constitution is very wide and generally it is termed as `government service'. Section 44 rightly categorized the members of local council as separate entity and the legislature was again within its competence over this aspect of the matter. There are a number of laws under which one segment of the society is excluded from the jurisdiction of Special Courts under a particular provision of law. Reference in this behalf can be made to NAB Ordinance, 1999.

How could we bypass the legislative intent under the garb of interpretation by undermining the supreme authority of legislature to enact laws. Answer is simply no, any consequent exercise thereupon would be futile. From the law there should be no departure. Lord Macnaughten quoted in Vacher & Sons Ltd Vs London Society of Compositors (1913 AC 107), the note of warning given by Tindal CJ, delivering the opinion of the judges who advised the House of Lords in the Sussex Peerage case in the following terms:-

“……..If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do, in such case, best declare the intention of law giver……”

The courts in aid of administration of justice must resort to principle of litera legus, as the intention of legislature cannot be bypassed under the garb of voidness or primacy to precedents. The maxim Lex Nil Frusta Facit, also apply and govern our proposition, meaning that the law does nothing in vain. It is a fundamental legal principle, as well as dictate of commonsense, that the law will not itself attempt to do an act which would be vain. To elaborate the authority of Provincial Government qua establishment and control over the local governments and their servants, I must refer here the judgment reported as PLD 1990 SC 612. Wherein it was held:-

"7. A perusal of the above-quoted definition of the term `civil servant' indicates that it includes a person, who is (i) a member of All Pakistan services or (ii) is a civil servant of the Federation or (iii) holds a civil post in connection with the affairs of the Federation including any such post connected with defence but does not include the persons mentioned in sub-clauses (i) and (ii) to the above clause (b), whereas the above quoted section 5 provides that the appointment to the above three categories of the persons shall be made in the prescribed manner by the President or by a person authorized by the President in that behalf. It may also be pointed out that the above-quoted section 7 of the Ordinance provides that the test and examinations for recruitment of the above three categories of persons referred to in the above clause (b) and section 5 of the Act are to be conducted as may be prescribed by rules made under section 10 of the Ordinance. We may observe that the learned ASC has not-been able to point out any rules, requiring the junior teachers to appear in the Federal Public Service Commission examination. In any case this is not the point in issue. The controversy is, as to whether respondent No. 1 falls in any of the above three categories of persons, who have been defined as civil servants. Admittedly the Federation has established inter alia the college in Islamabad, which is the capital of the Federation. This has been done in the discharge of its constitutional and/or statutory obligation as a State. In the capital of the Federation, the Federal Government discharges dual functions namely, of the Federal Government and of the Provincial, Government. In the above background, it cannot be denied that respondent No. 1 holds a civil post in connection with the affairs of the Federation. The Tribunal has dilated upon the above question exhaustively and has pointed out the factum that the schools and colleges were constructed by the Federation and even annual budget is provided by the Federation." (Highlighted & Emphasized for quick reference)

Section 2(b) of Punjab Civil Servants Act 1974 while defining the status of civil servants associate them to the “affairs of province”. The term “affairs of province” has not been defined to its exactness. The same however, revolves around other constitutional provisions, like Article 240 & 260 of Constitution of Pakistan 1973 etc and other explanatory judgments of apex court. The Supreme Court of Pakistan in case reported as 2009 PLC (CS) 1001 PAKISTAN TELECOMMUNICATION COMPANY LIMITED through General Manager and another VS HAMMAD ZAHID and 29 others, while relying upon its earlier pronouncement reported as PLD 1975 SC 244 dealt with the terms “affairs of federation/province” in the following ways:-

“……….Private organizations or persons as distinguished from Government or Semi Government agencies and functionaries cannot be regarded as persons performing function in connection with affairs of Federation or Province simply because their activities happen to be regulated by laws made by State---Person including body corporate can be regarded as person performing functions in connection with affairs of Federation etc. if functions entrusted to them are indeed functions of State or if control of organization vests substantially in hands of Government Public limited company not created by any statute and governmental control limited only by certain regulations Such company not a person performing functions in connection with affairs of Federation etc……………… Now, what is meant by the phrase "performing functions in connection with the affair of the Federation or a Province". It is clear that the reference is to governmental or State functions, involving, in one form or another, an element of exercise of public power. The functions may be the traditional police functions of the State, involving the maintenance of law and order and other regulatory activities; or they may comprise functions pertaining to economic development, social welfare, education, public utility services and other State enterprises of an industrial or commercial nature. Ordinarily, these functions would be performed by persons or agencies directly appointed, controlled and financed by the State, i.e. by the Federal Government or a Provincial Government. However, in recent years, there has been manifest a growing tendency on the part of governments to create statutory corporations for undertaking many such functions, particularly in the industrial and commercial spheres, the belief that, free from the inhibiting effect of red-tapism, these semi-autonomous bodies may prove more effective, flexible and also profitable. Inevitably, government retains effective control over their functioning by appointing the heads and other senior officers of these corporations, by regulating their composition and procedures by appropriate statutes, and by finding funds for financing their activities. Examples of' such statutory corporations are the National Bank of Pakistan, the West Pakistan Water and Power Development Authority, the National Shipping Corporation, the Agricultural Development Bank of Pakistan, and the large number of Universities functioning under their respective statutes. On account of their common attributes, as mentioned in the preceding paragraph, they have all been regarded as persons performing functions in connection with the affair' of the Federation or a Province…………….. The primary test must always be whether the functions entrusted to the organization or person concerned are indeed functions of the State involving some exercise of sovereign or public power; whether the control of the organization vests in a substantial manner in the hands of Government: and whether the bulk of the funds is provided by the State. If these conditions are fulfilled, then the person, 'including a body politic or body corporate, may indeed be regarded as a person performing functions in connection with the affairs of the Federation or a Province, otherwise not….”

Applying the above test, “affairs of province” appears to be a vibrant term, developing its jurisprudential aspect from the passage of legal development itself. It, inter-alia defines its own self, and not capable to any exact, stringent legal meaning. Setting up local governments is constitutional mandate; statutes and ordinance promulgated there under are also in supplementation of said goal envisaged by the constitution itself. Section 44 of the Ordinance 1979 protected by Ordinance 2001 and Act 2013 creating a special class of employees within the jurisdiction of tribunals, must be respected by all means.

One of the proven methods of examining the legislative competence of a legislature with regard to an enactment is by the application of the doctrine of pith and substance. This doctrine is applied when the legislative competence of the legislature with regard to a particular enactment is challenged with reference to the entries in various lists. If there is a challenge to the legislative competence, the courts will try to ascertain the pith and substance of such enactment on a scrutiny of the Act in question. In this process, it is necessary for the courts to go into and examine the true character of the enactment, its object, its scope and effect to find out whether the enactment in question is genuinely referable to a field of the legislation allotted to the respective legislature under the constitutional scheme. An Indian report cited A.S. Krishna v. State of Madras AIR 1957 SC 297 would serve the purpose], holding as under:

“8. … But then, it must be remembered that we are construing a federal Constitution. It is of the essence of such a Constitution that there should be a distribution of the legislative powers of the Federation between the Centre and the Provinces. The scheme of distribution has varied with different Constitutions, but even when the Constitution enumerates elaborately the topics on which the Centre and the States could legislate, some overlapping of the fields of legislation is inevitable. The British North America Act, 1867, which established a federal Constitution for Canada, enumerated in Sections 91 and 92 the topics on which the Dominion and the Provinces could respectively legislate. Notwithstanding that the lists were framed so as to be fairly full and comprehensive, it was not long before it was found that the topics enumerated in the two sections overlapped, and the Privy Council had time and again to pass on the constitutionality of laws made by the Dominion and Provincial Legislatures. It was in this situation that the Privy Council evolved the doctrine, that for deciding whether an impugned legislation was intra vires, regard must be hard to its pith and substance. That is to say, if a statute is found in substance to relate to a topic within the competence of the legislature, it should be held to be intra vires, even though it might incidentally trench on topics not within its legislative competence. The extent of the encroachment on matters beyond its competence may be an element in determining whether the legislation is colourable, that is, whether in the guise of making a law on a matter within it competence, the legislature is, in truth, making a law on a subject beyond its competence. But where that is not the position, then the fact of encroachment does not affect the vires of the law even as regards the area of encroachment.”

Another judgment touching my conscience is reproduced hereunder with the foregoing citation, Kartar Singh v. State of Punjab (1994) 3 SCC 569:-

“60. This doctrine of ‘pith and substance’ is applied when the legislative competence of a legislature with regard to a particular enactment is challenged with reference to the entries in the various lists i.e. a law dealing with the subject in one list is also touching on a subject in another list. In such a case, what has to be ascertained is the pith and substance of the enactment. On a scrutiny of the Act in question, if found, that the legislation is in substance one on a matter assigned to the legislature enacting that statute, then that Act as a whole must be held to be valid notwithstanding any incidental trenching upon matters beyond its competence i.e. on a matter included in the list belonging to the other legislature. To say differently, incidental encroachment is not altogether forbidden.”

In Bharat Hydro Power Corpn. Ltd. v. State of Assam (2004) 2 SCC 553, the doctrine of pith and substance came to be considered, when after referring to a catena of decisions of this Court on the doctrine it was laid down as under:

“18. It is likely to happen from time to time that enactment though purporting to deal with a subject in one list touches also on a subject in another list and prima facie looks as if one legislature is impinging on the legislative field of another legislature. This may result in a large number of statutes being declared unconstitutional because the legislature enacting law may appear to have legislated in a field reserved for the other legislature. To examine whether a legislation has impinged on the field of other legislatures, in fact or in substance, or is incidental, keeping in view the true nature of the enactment, the courts have evolved the doctrine of ‘pith and substance’ for the purpose of determining whether it is legislation with respect to matters in one list or the other. Where the question for determination is whether a particular law relates to a particular subject mentioned in one list or the other, the courts look into the substance of the enactment. Thus, if the substance of the enactment falls within the Union List then the incidental encroachment by the enactment on the State List would not make it invalid. This principle came to be established by the Privy Council when it determined appeals from Canada or Australia involving the question of legislative competence of the federation or the States in those countries. This doctrine came to be established in India and derives its genesis from the approach adopted by the courts including the Privy Council in dealing with controversies arising in other federations. For applying the principle of ‘pith and substance’ regard is to be had (i) to the enactment as a whole, (ii) to its main objects, and (iii) to the scope and effect of its provisions. For this see Southern Pharmaceuticals & Chemicals v. State of Kerala [(1981) 4 SCC 391], State of Rajasthan v. G. Chawla [AIR 1959 SC 544], Amar Singhji v. State of Rajasthan [AIR 1955 SC 504], Delhi Cloth and General Mills Co. Ltd. v. Union of India [(1983) 4 SCC 166] and Vijay Kumar Sharma v. State of Karnataka [(1990) 2 SCC 562]. In the last-mentioned case it was held:

‘(3) Where a law passed by the State Legislature while being substantially within the scope of the entries in the State List entrenches upon any of the entries in the Central List the constitutionality of the law may be upheld by invoking the doctrine of pith and substance if on an analysis of the provisions of the Act it appears that by and large the law falls within the four corners of the State List and entrenchment, if any, is purely incidental or inconsequential.

One may now refer the constitutional mandate and legislative competence behind promulgation of PLGO 1979, 2001 and PLGA 2013, which exclusively fall within the competence of provincial legislature. Even applied the referred to “doctrine of pith and substance”, the same does not offend or violate any legal boundary or constitutional mandate. Article 8 strictly guarding the law making authorities and prohibiting enacting in violation of fundamental rights mentioned in the constitution. There would be no other parameter for judging the validity of laws, except to the touchstone of Article 8. Nothing beyond the constitution could even be imagine or superimposed by extraneous considerations. As such, section 44 of PLGO 1979, protected by later enactments would hold the field.

DELEGATION OF POWERS BY THE GOVERNMENT

As discussed above, it is defined Government under Act 2013, delegating its functions and powers to ensure the constitute mandate. Without such delegation, and supervision by the provincial government, the local governments have no legal, constitutional or moral entity, what to talk about their own employees. Section 64 (3) of Act 2013 reads as under:-

64 (3) The Government may, on the recommendations of the Punjab Local Government Commission and by notification in the official Gazette, delegate any function of a Mayor or a Chairman to a Deputy Mayor or Vice Chairman subject to such conditions as may be prescribed in the notification

Section 65 of the Act 2013 appears to be residue in nature, and enacts in the following way:-

65. Additional functions.– (1) The Government may, in the prescribed manner, devolve one or more of its functions to a local government for improved and efficient service delivery to the citizens.

(2) In the performance of the functions mentioned in subsection (1), a local government shall be bound by the directions of the Government. (3) The Government shall, in the prescribed manner, provide technical support and fiscal resources required for carrying out the said functions by a local government.

Article 37 (a) of our constitution binds that the state to promote, with special care, the educational and economic interests of backward classes or areas, Article 37(b) enacts to ensure removal of illiteracy and provision of free and compulsory secondary education within minimum possible period. Article 38 (d) enacts another mandate that the state shall provide basic necessities of life, such as food, clothing, housing, education and medical relief, for all such citizens, irrespective of sex, caste, creed or race, as are permanently or temporarily unable to earn their livelihood on account of infirmity, sickness or unemployment. What the constitute meant for the term “state”, one must refer Article 7 defining the “state” in the following terms:-

Article 7. Definition of the State.− In this Part, unless the context otherwise requires, "the State" means the Federal Government, Majlis-e-Shoora (Parliament), a Provincial Government, a Provincial Assembly, and such local or other authorities in Pakistan as are by law empowered to impose any tax or cess

“Why not judiciary roams in this definition”, is a constitutional question, but not debatable for the time being. The primary test, as held above, must be the exercise of public power and to see whether the functions entrusted are indeed functions of state. The above referred to Articles binds to state to promote educational system, reformations therein etc. In line with said constitutional mandate, the Government under Section 17 of PLGA 2013 establishes the District Education Authority with the following laws:-

17. Authorities.– (1) Subject to this section, the Government shall, by notification in the official Gazette, separately establish and determine the composition of District Education Authority and District Health Authority for each District

Government under Section 2® of Act 2013 again means Government of the Punjab. All the functions spurring from the Act 2013 and constitution as entrusted by establishing local government are indeed functions of government under the constitutional mandate. It is trite to note, that the local government for all intents and purposes performs functions in connections with the affairs of province, that too under the constitutional mandate. How could the employees working there under be denied the status of civil servants. Mere fact that they are termed as “local government employees” or “local council employees” would not drag them out from the definition of civil servant as provided under the Civil Service Laws.

It is also important to refer page 841 from “Interpretation of Status by N.S. Bindra” (10^th Edition), which provides a unique method of interpretation of statutes:-

“…………..In the construction of ancient statutes, it is proper also to consider the general state of contemporary public sentiment, and in the construction of remedial statute to consider the evil they were proposed to redress. For this purpose, recourse may be had to annals or histories of the period and to antiquarian researches…….”

In the given context, the policy-oriented interpretation is permissible. Refer to AIR 1977 SC 1339, wherein it was held:-

“………………..A Policy oriented interpretation, when a welfare legislation falls for determination is sanctioned by the principle contained in Article 37 of Constitution ……………”

With regard to the effect of statute, which give powers to carry out some object which is assumed will benefit the public at large, one of the most important rules is, that to keep within strictly within these powers and not to be guided by any fanciful view of the spirit of the Act which confers them. (Craies, Statute Law, Fifth Edition, P 254), Statutory object conforming the intention of law making authority must be respected and cannot be bypassed under the garb of interpretation or constitutional morality, as the morality fell outside the ambit of jurisprudence, unless hit the constitutional conscience. Many statutes have been passed to enable something to be done which was previously forbidden by law, with or without prescribing the way in which it is to be done. They are called enabling statutes and provisions, such as Section 44 of Punjab Local Government Ordinance 1979 still remains protected by Ordinance 2001 and Act 2013. It is the duty of court to make what it can of statutes, knowing that they are meant to be operative and not inept and nothing short of impossibility should allow a judge to declare a statute unworkable. Lord Denning in case reported as {1949} 2 ALL ER 155, laid that effects should be given to the intention of legislature, even if the provisions of statute are unhappily worded. The task of the court as said, must be to ascertain the real intention of the legislature, whether actual or impugned.

Section 93 of Act 2013 defines the functions of District Education Authority, which per, undertake to fulfill the constitutional provisions discussed above. The District Education Authority is established, inter-alia, to perform certain statutory and constitutional tasks so assigned as mentioned in Section 93 of Act 2013. The District Education Authority has to implement the policies of provincial Government as envisaged by Section 93 (b) and is required to perform any other function assigned by the Government, a Commission or a body established by law in the prescribed manner. What it does, it acts as a subsidiary or delegated institution in discharged of affairs of province as required by the constitution itself. At the cost of repetition, local government system, without provincial supervision are nothing but, chimera, illusion and fantasy. The District Health Authority assumes certain statutory functions under Section 94 of Act 2013 with the rider that government can let them perform any other functions in discharge of its constitutional obligation. Section 95 of the Act 2013 reads as under:-

95. (1) An Authority shall perform its functions in the prescribed manner

(2) In the performance of their functions, the Authorities shall also be bound and be guided by the policies and instructions issued, from time to time, by the Government Performance of functions by the Authorities.–

Here, once again the provincial government has exclusive control over the entire affairs, functioning of the authorities so established by the statute. Section 100 establishing Local Fund and Public Account, regulates the monetary procedure amongst local government and provincial government. The relations inter-se has been defined statutorily. In furtherance, Section 111 establishes Punjab Finance Commission, which amongst others, has a statutory function to manage distribution between the Government and the local governments out of the proceeds of the Provincial Consolidated Fund into a Provincial Retained Amount and a Provincial Allocable Amount to be called Punjab Finance Commission Award. Under Section 111(7), the Punjab Finance Commission shall present to the Government annually a report on the analysis of the fiscal transfers, the situation of own-source revenue of the local governments and the reach and quality of their services and the Government shall cause the report to be laid before Provincial Assembly of the Punjab. Under Section 115 of Act 2013, local government has been mandated to collect taxes for provinces, the revenue generation process, in its own generic sense is a connection related to the affairs of province. Section 119 is more illustrative and supplemental, enacting in the following terms:-

119 RELATIONS OF GOVERNMENT AND LOCAL GOVERNMENTS.–

(1) A local government shall collect such Provincial tax or taxes within its local area as the Government may direct and the local government shall, after the collection of such tax or taxes, deposit the receipts in the relevant Government account.

(2) The Government may provide guidelines and render advice to a local government for achieving the objectives of the policy of the Government and for promoting economic, social and environmental security of the Province (Emphasized)

How the provincial government retains control over the local governments, Section 120 answers in the following way:-

120. Powers of the Government.

(1) The Government may, on the recommendations of the Punjab Local Government Commission, issue directions to a local government and the local government shall be bound by such directions.

(2) Where the situation demands immediate action and the local government fails to comply with the directions given to it under subsection (1), the Government may direct the officer authorized by it to take such action as the situation may necessitate.

As suggested earlier, the provincial government statutorily controls the affairs of local government in its entirety, the local government to run the affairs of province by way of delegation of provincial authority would never and cannot be treated as separate institutions from the constitutional framework, whereas Section 124 of Act 2013 makes the Local Government Commission answerable to the Punjab Government. Section 142 of Act 2013 although empowers the Government to create different service cadres for the local government employees, but leaves the present status untouched in accordance with previous laws governing the same. For ready reference, the definition of civil servant is again reproduced hereunder:-

(i) a person who is or who has been on deputation to the Province from the Federation or any other Province or authority;

(ii) a person who is or has been employed on contract, or on work-charged basis, or who is or has been paid from contingencies; or

(iii) a person who is or has been a ‘worker’ or ‘workman’ as defined in the Factories Act, 1934 (XXV of 1934) or the Workmen’s Compensation Act, 1923 (VIII of 1923);

How would learned member would deal with the disjunctive definition reproduced above is an art of interpretation. For myself, it is bounded duty to assist the learned member to the best of my professional abilities. However, the broader principles which govern use of the words “and” and “or” Ordinarily, as in everyday English, use of the conjunctive “and” in a list means that all of the listed statutory requirements must be satisfied, while use of the disjunctive “or” means that only one of the listed requirements need be satisfied. The repeated use of the term “or” in above defining section appears to provide multiple essentials for treating an employee as civil servant. In case reported as 2013 PLC CS 96 MUHMMAD MUNAWAR JANG SHER QADRI VS GOVERNMENT OF THE PUNJAB, the Chief Justice Lahore High Court, while dealing with the eligibility criteria of candidate intending judicial competition, held as follows:-

“….…Word “or” was used between choices of qualification advertised for the post in question. Contention of the petitioner was that he was holding LLB degree and was eligible to participate in selection process for appointment of deputy district attorney and assistant district attorneys. Held that word “or” had been used in disjunctive sense and a candidate must either have a LLB degree or the equivalent qualification, as the equivalent qualification was subject to two riders, firstly recognition of higher education commission and secondly 50 % of aggregate marks…..”

The honorable apex court in case reported as 2011 SCMR 1675, while dealing with the modes empowering the learned banking court to execute decree in presence of “disjunctive clause” held as follows:-

“…………..11. The aforesaid subsection stipulates three modes authorizing the banking court to execute its decree. The first mode empowers a banking court to execute a decree by applying the provisions of C.P.C. The second mode provides that a banking court can execute a decree in the manner provided under any other law for the time being in force and the third mode provides that at request of the decree-holder, a banking court may adopt any procedure for execution of a decree which it deems appropriate. The word 'or' used twice in subsection (2) of section 19 of the Ordinance which has to be read disjunctively classify three modes for execution of the decree. In the case in hand, the executing court has adopted the procedure for executing the decree as provided under C.P.C., which fact is manifested from the proclamations issued, at times, by it. In clause 2 of the proclamations, it is provided that the highest bidder shall deposit 25% of the auction money immediately on conclusion of the auction. Clause 4 of the proclamations provides that the remaining 75% of the auction money shall be deposited in court within 15 days from the date of auction, failing which the executing court can forfeit the amount of auction money deposited on the conclusion of the auction. These conditions are in fact borrowed from the provisions of Order XXI, Rules 84, 85 and 86, C.P.C. In other words, the executing court had chosen to adopt the procedure provided under the C.P.C. for executing the decree. There is nothing on record to show that the decree-holder had ever approached the banking court to execute the decree in the manner other than the one provided under the C.P.C. Therefore, the argument of the learned counsel for the appellant on the issue of application of the provisions of C.P.C. by the executing court are without substance……………”

Similar question of law qua interpretation of “disjunctive law” had been recently dealt by honorable supreme court in case reported as PLD 2013 SC 378, wherefrom the ratio is being reproduced hereunder:-

“……….7. A bare reading of the above referred Articles of the Constitution leads us to a definite conclusion that all the grounds urged and submissions made by the petitioner in support of his plea to challenge the appointment of respondent No.2 as Chief Election Commissioner of Pakistan, are entirely baseless, misconceived and devoid of merit. It could be seen from the language of Articles 101 and 103 of the Constitution, relating to appointment of Governor of the Province and conditions of holding such office that as a matter of fact, these two provisions of the Constitution go against the submission of the petitioner that respondent No.2 is a political figure. Clause-2 of Article 101 provides that no person shall be appointed as Governor unless he is qualified to be elected as a member of the National Assembly and is not less than thirty-five years of age, while clause-2 of Article 103 emphasises upon his non-political status so much so that even if he is an elected member of Parliament or Provincial Assembly, before entering upon the office of Governor, he has to vacate such office and further to take oath of office as contemplated under Article 102 of the Constitution, in the form set out in the Third Schedule. Thus, the appointment of respondent No.2 as Governor of Sindh in the past could only be considered as his non-political status during the tenure of such office and not otherwise. Reference to Article 213 of the Constitution with further reference to clause (2) of Article 207 of the Constitution qua the age of respondent No.2, is again misleading inasmuch as clause (2) of Article 213 provides two categories of qualifications for appointment as Chief Election Commissioner, that no person shall be appointed as Chief Election Commissioner (a) unless he is, or has been, a Judge of the Supreme Court or (b) is, or has been, a Judge of the High Court and is qualified under paragraph (a) of clause (2) of Article 177 to be appointed a Judge of the Supreme Court. In the context of qualification (b), (not applicable in the present case), when we look at the language of paragraph (a) of clause (2) of Article 177, we find that it contemplates that a person shall not be appointed a Judge of the Supreme Court unless he is a citizen of Pakistan and has for a period of, or for periods aggregating, not less than five years been a Judge of High Court (including a High Court which existed in Pakistan at any time before the commencing day). From the plain reading of above constitutional provisions, it is evident that the two categories of qualification, with the insertion of word "or" in between, are disjunctive, therefore, a person who is or has been a Judge of the Supreme Court in the past, is out rightly eligible to hold the office of the Chief Election Commissioner without any condition of upper age limit. It is for this clear legal position that in the past also many retired judges of the Supreme Court of Pakistan, at least in double figure, mostly after their retirement, have held this prestigious office without any such objection from any corner……”

PLD 2013 SC 594 would also serve the purpose, for ready reference, the relevant extracts from the judgment are reproduced hereunder:-

“………….13.. The discussion made above leads us to an irresistible conclusion that the principle of ejusdem generis pressed by Mr. Wasim Sajjad does not apply to the words "any other person" appearing in section 9(a) of the National Accountability Ordinance, 1999 and that the words "A holder of a public office, or any other person," used in that section are disjunctive as they refer to different classes of persons. In the context of the scheme and scope of that Ordinance the words "any other person" are to be given their ordinary meanings and are simply to be accepted as referring to any other person, nothing more and nothing less. In the ordinary use, the word "or" is disjunctive that marks an alternative which generally corresponds to the word "either" (Crawford's Interpretation of Laws). The word "person" has been used in the general sense and includes every person. It is one of the fundamental rules of Construction that the general words should be given a general construction unless the statute in some manner reveals that the legislative intent was otherwise. We have not been able to find any contrary intent after going through various provisions of Ordinance referred to in the preceding paragraphs. A close examination of section 9, reproduced above would show that with reference to subject-matter there are three kinds of offences. Those kinds are as under:-- (i) Offences which are holder of public office specific; (ii) offences which are committed by the holder of a public office along with any other person and in which the latter are also liable, (iii) offences committed by person who do not hold any public office…..”

Understanding the impact of generic definition of Civil Servant as provided in Act 1974 in the context of “disjunctive nature” would clearly bring the employees of local government with the definition of civil servant. The illustrative definition qua “in connection with the affairs of province” is much self-explanatory, therefore, to be read in the given context without evaluating its constitutional aspect, which as referred to above is quiet within legislative competence, furthermore, the term “post” has been used in generic sense. Refer to 2005 PLC (CS) 836.

It is pertinent to highlight that Section 154 of Act 2013 repeals the Punjab Local Government Ordinance 2001, but saves the actions done, status accrued, rights determined etc under the repealed ordinance, meaning thereby the status of local government employees remains unchanged even after the repeal of ordinance 2001. It is appropriate the reproduce the relevant extracts from the apex court’s declarations in case reported as PLD 2002 SC 757 in the foregoing terms:-

“…………the term “repeal” as applied with reference to statute means the abrogation or annulling of earlier law in force by a subsequent statute. Its dictionary meaning are to abolish, to abrogate, to annul, to call back, to cancel, to dismiss, to give up, to recall, to rescind. the terms “repeal” and “amendment” have been distinguished to the effect that repeal of a law whereas the amendment of a statute means an alteration in the law already existing, leaving some part of the original still standing………..The dictionary meaning of terms “repeal” and “delete” are almost identical and in general sense these terms are synonymous. Repeal in its wider scope includes amendment and deletion. Unnecessary acts or their provisions are struck down by repealing and amending acts in accordance with the social conditions prevailing in the society. A repeal or deletion cannot as a rule., have retrospective effect to undo the consequences already ensued, unless the legislature specifically so directs. Section 6 of the general clauses act is an exception and provides protection to the action already taken under the old act……..”

Furthermore, the honorable Supreme Court in case reported as 2010 SCMR 72, while dealing with the constitutionality of saving clause held as follows:-

“………..Saving clause is generally used to preserve from destruction certain rights, remedies or privileges already existing. Saving means that it saves all rights the party previously had but it does not create any right in his favor………………..”