MUHAMMAD HUSSAIN NAQVI and another vs GOVERNMENT OF PUNJAB
This matter comes before the Supreme Court of Pakistan upon a petition filed by employees of the Government of Punjab in the Education Department whose services were transferred to the Technical Education and Vocational Training Authority (TEVTA) under Punjab Ordinance XXIV of 1999, challenging the subsequent re-promulgation of the said law as Ordinance XLV of 1999. The petitioners challenged the dismissal of their constitutional petition by the High Court, arguing that the High Court failed to address the substantive power of the Governor to re-promulgate an ordinance when the initial ordinance had lapsed and the Provincial Assembly was not dissolved. The Supreme Court heard arguments from both sides regarding the scope of Article 128 of the Constitution, the effect of laying ordinances before the Assembly, and the protective scope of the Provisional Constitutional Order and Article 270-AA of the Constitution. Finding merit in the contentions, the Court granted leave to appeal to examine the constitutional validity of re-promulgating lapsed ordinances.
- Whether Article 128 empowers the Governor to re-promulgate the same Ordinance when it has lapsed after the statutory period of three months contemplated by the said Article, particularly when the Provincial Assembly did not stand dissolved?
- Whether mere submission of Ordinance No. XXIV of 1999 to the Assembly empowered the Governor to re-promulgate the same as Ordinance No. XLV of 1999?
- Whether the impugned Ordinance stands perfected by virtue of PCO-1 of 1999, read with PCO No. 9 of 1999 or Article 270-AA of the Constitution?
- Article 128, Constitution of Pakistan 1973
- Article 270-AA, Constitution of Pakistan 1973
- Order XXVII-A, Code of Civil Procedure 1908
ORDER
' SYED JAMSHED ALI, J.--- The petitioners, employees of the Government of Punjab in the Education Department, whose services stood transferred to the Technical Education and Vocational Training Authority (TEVTA for short) under Punjab Ordinance XXIV of 1999 (promulgated on 5-6-1999) titled as Technical Education and Vocational Training Authority Ordinance assailed re-promulgation of the same as Ordinance No,XLV of 1999 on 4-9-1999. The constitutional petition was dismissed by the learned High Court for the reasons that Ordinance No,XXIV of 1999 had been laid before the Provincial Assembly, no resolution disapproving the same was passed by the Assembly and it was protected under Art. 5-A of the Provisional Constitutional Order, 1 of 1999.
2. The learned counsel for the petitioners contends that both the reasons for validating Ordinance No, XLV of 1999 pertain to the life of an Ordinance and therefore, the core issue i.e, the substantive power of the Governor to re-promulgate an Ordinance was not decided. He relied on the minority view expressed in the Collector of Customs, Karachi and others v. Messrs New Electronics (Pvt.)
Limited and 59 others PLD 1994 SC 363.
3. The learned Deputy Attorney-General and the learned Additional Advocate General, who were in attendance in response to the notice under Order XXVII-A of the Code of Civil Procedure were also heard. They referred to Government of Punjab through Secretary, Home Department v. Zia Ullah Khan and 2 others 1992 SCM R 602, Riaz Ahmad v. The State 1998 SCM R 1729. Mr. Saleem Sehgal, learned Advocate Supreme Court, who appeared on behalf of respondent No,7, the TEVTA, opposed the grant of leave. He strenuously contended that not only Article 128 does not place any fetter on the powers of the Governor to re-promulgate an Ordinance but also that by virtue of PCO-1 of 1999, PCO No,9 of 1999 (adding para.5-A to PCO-1 of 1999) and. Article 270-AA of the Constitution.
Ordinance No,XLV stands fully perfected and protected and was immune from judicial scrutiny.
4. After hearing the learned counsel for the parties, we are inclined to grant leave to consider the following questions:--
(a) Whether Article 128 empowers the Governor to re-promulgate the same Ordinance when it has lapsed after the statutory period of three months contemplated by the said Article, particularly A when the Provincial Assembly did not stand dissolved.
(b) Whether mere submission of Ordinance No,XXIV of 1999 to the Assembly empowered the Governor to re-promulgate the same as Ordinance No,XLV of 1999.
(c) Whether the impugned Ordinance stands perfected by virtue of PCO-1 of 1999, read with PCO No,9 of 1999 or Article 270-AA of the Constitution.