SENIOR MEMBER BOR and others vs Sardar BAKHSH BHUTTA and another

ORDER

' TASSADUQ HUSSAIN JILLANI, J.---This appeal by leave of the Court is directed against the judgment dated 712-2010 passed by the Punjab Service Tribunal vide which the respondent's appeal was allowed in terms as follows:-- "6. The result of the above discussions is, that this appeal is partly allowed and the competent authority namely Executive District Officer (Revenue), Multan is directed to place the name of the appellant before the Departmental Promotion Committee in the light of repealed rules for filling up the vacancy lying vacant due to retirement of Muhammad Yaqoob, Naib Tehsildar/Private respondent No,6 from the date of his retirement and in case if the appellant is otherwise found entitled for the promotion his case may after due consideration be decided in accordance with law i,e, the rules as prevalent on 25-3-2009 when Muhammad Yaqoob/private respondent was promoted and in case if the appellant is found entitled for promotion is given promotion, however, the same shall be from the date when vacancy occurred due to retirement of Muhammad Yaqoob/private respondent No,6. The competent authority is further directed to ^complete the process and ensure that the matter is finally put up before the Departmental Promotion Committee and decided within 60 days from the receipt of this order."

2. Learned Additional Advocate-General submits that the learned Service Tribunal did not appreciate that in terms of the Notification No SRO-III (S&GAD)1-21/2006 dated 7-1-2010, the appointment of Naib Tehsildar even in promotion quota had to be made on the recommendations of the Punjab Public Service Commission and the recommendations of the departmental authorities did not carry any weight.

3. Learned counsel for the respondent, on the other hand, submitted that there is no cavil with the proposition that the appointments for the post in question had to be made in terms of the afore- mentioned notification but the said notification could not have a retrospective effect. In support of the submissions made, he relied on a judgment of this Court reported at Dr. Muhammad Amjad v.

Dr. Israr Ahmed (2010 SCM R 1466).

4. Having heard learned Additional Advocate-General and learned counsel for the respondent at some length, we find that admittedly the respondent's claim to be selected as Naib Tehsildar against the promotion quota was relatable to a period much before the enforcement of the rules which came into effect on 7-1-2010. Those rules could not have a retrospective effect. It is by now a well settled principle of statutory interpretation that the insertion or deletion of any provision in the rules or the law, if merely procedural in nature would apply retrospectively but not if it effects substantial rights, which already stood accrued at the time when the un-amended rule or provision was in vogue. In Adnan Afzal v. Capt. Sher Afzal (PLD 1969 SC 187), the Court laid down as under:- "The general principle with regard to the interpretation of statutes as laid down in the well-known case of the Colonial Sugar Refining Company Limited v. Irving (1905 A C 369) is that "if the matter in question be a matter of procedure only", the provisions would be retrospective. "On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the A passing of the Act", then in accordance with a long line of authorities extending from the time of Lord Coke to the present day", the legislation would not operate retrospectively, unless the Legislature had either "by express enactment or by necessary intendment" given the legislation retroactive effect.

' To the same effect are the observations of Jesse, master of the Rolls, in the case of In re: Joseph Suche & Co. Limited ((1875) 1 Ch. D. 48), where it was observed that as a general rule when the Legislature alters the rights of parties by taking away or conferring any right 6 of action, its enactments, unless in express terms they apply to pending actions, do not affect them. It is said that there is no exception to that rule, namely, that, these enactments merely affect procedure and do not extend to rights of action, they have been held to apply to existing rights."

' The question for consideration there was regarding the right of a secured creditor of a company to prove for the full amount of his debt without deducting the value of his Securities in the course of the winding up. That was held to be, in substance, a right of action for the recovery of a debt and, therefore, section 10 of the English Judicature Act was held not to apply retrospectively.

' The principle has been admirably put by Crawford in his Book on Construction of Statutes, 1940 Edition; page 581, as follows:-- "As a general rule, legislation which relates solely to procedure or to legal remedies will not be subject to the rule that statutes should not be given retroactive operation. Similarly, the presumption against retrospective construction is inapplicable. In other words, such statutes constitute an exception to the rule pertaining to statutes generally. Therefore, in the absence of a contrary legislative intention, statutes pertaining solely to procedure or legal remedy may affect a right of action no matter whether it came into existence prior to, or after the enactment of the statute. Similarly, they may be held applicable to proceedings pending or subsequently commenced. In any event, they will, at least, presumptively apply to accrued and pending as well as to future actions."

' The next question, therefore, that arises for consideration is as to what are matters of procedure. It is obvious that matters relating to the remedy, the mode of trial, the manner of taking evidence and forms of action are all matters relating to procedure. Crawford too takes the view that questions relating to jurisdiction over a cause of action, venue, parties pleadings and rules of evidence also pertain to procedure, provided the burden of proof is not shifted. Thus a statute purporting to transfer jurisdiction over certain causes of action may operate retroactively. This is what is meant by saying that a change of forum by a law is retrospective being a matter of procedure only. Nevertheless, it must be pointed out that if in this process any existing rights are affected or the giving of retroactive operation cause inconvenience or injustice, then the Courts will not even in the case of a procedural statute, favour an interpretation giving retrospective effect to the statute. On the other hand, if the new procedural statute is of such a character that its retroactive application will tend to promote justice without any consequential embarrassment or detriment to any of the parties concerned, the Courts would favorably incline towards giving effect to such procedural statutes retroactively."

5. The afore-referred principle was reiterated in WAPDA v. Irtiqa Rasool Hashmi (1978 SCMR 359) wherein at page 362, it was observed as follows:-- "But by insertion of the words "or removed by order under section 17(1-A) of the WAPDA Act even employees against whom no disciplinary action by way of punishment was taken were sought to be placed in the same category of persons not entitled to pensioner benefits. Before the Tribunal the contention of the WAPDA was that the 1982 amendment in rule 7 affected the case of the respondent (who was removed on 2nd June, 1977) because the amendment was made by adding the aforesaid words retrospectively. Reference in this connection was made to the words "abs initio". The learned Service Tribunal rejected the contention of the WAPDA and rightly so on the ground that executive orders cannot be given retrospective operation which powers can only be enjoyed by the Legislature. Even rule-making power which is by way of statutory grant does not possess this quality unless conferred by the statute, which is of rare occurrence. Section 18 of the WAPDA Act does not grant such authority to the WAPDA to, alter or change the service rules touching the terms and conditions of employees with retrospective operation so as to rob them of vested rights already accrued in their favor."

6. In Hashanah Hotels Limited v. Federation of Pakistan and others (PLD 1997 SC 315) relying on an earlier precedent case-law in this context, the Court reiterated the ratio laid down earlier in terms as follows:-- "Reverting to the question, whether such a direction can affect the loan agreements which were already concluded prior to such direction, it tray be observed that it is a well-settled principle of interpretation of a notification and/or an executive order that the same can operate prospectively and not retrospectively. This principle is equally applicable to a statute in the absence of any express or implied intendment contrary to it."

7. For what has been discussed above, the impugned judgment is unexceptionable. The appeal having no merit is accordingly dismissed.