MUHAMMAD YOUSUF Versus GOVERNMENT OF WEST PAKISTAN, EXCISE AND TAXATION DEPARTMENT, LAHORE,

1. MUHAMMAD YAQUB ALI, J. ‑These two appeals which call in question the vires of the Constitution (Sixth Amendment) Act, 1966, are concluded by the judgment delivered by the Court on 28‑11‑1969 in Civil Appeals Nos. 99, 100 and 10 of 1966 and Civil Appeal No. 113 of 1967.

2. Muhammad Yousuf, appellant, in Civil Appeal No. K‑38 and Trever Guy Kelly, appellant, in Civil Appeal No. K‑39 were in the service of Pakistan, the first‑named as an Excise and Taxation Officer, Hyderabad, and the second as Superintendent in the Customs House, Karachi. They were due to retire on attaining the age of 55 years on 23‑12‑1964 and 15‑5‑1964 respectively, but on the recommendation of the Committees set up under the Government Servants (Further Usefulness in Public Service) Rules, 1963, they were allowed to continue in service up to the completion of sixtieth year of their age.

3. Thereafter the National Assembly on 31st March 1966, passed the Constitution (Sixth Amendment) Act, 1966, which inter alia empowered the competent authority to retire from service notwithstanding anything contained in the Constitution or in any law or in the terms and conditions of the service, a person if he has completed before, or completes within a period of six months from, the commencement of the Constitution (Sixth Amendment) Act, 1966, the fifty‑fifth year of his age, on such date after such completion, being a date within the said period, as the competent authority may direct. In pursuance to these powers Muhammad Yousuf, appellant, was on the 30th June 1966, served with a notice by the competent authority that he would be retired from service with effect from the 1st October 1966. Similar notice was given to Trever Guy Keller on 30th June 1966, that he will be retired from service with effect from 1st October 1966.

4. Aggrieved by the orders of their retirement the appellants filed separate writ petitions in the High Court of West Pakistan, Karachi Bench, disputing the vires of the Constitution (Sixth Amendment) Act, 1966. It was claimed that the amendment was not passed by the two‑thirds of the total number of Members of the National Assembly as required by Article 209 of the Constitution, since among the Members who had voted in its favour twenty‑four persons elected from Peshawar, Rawalpindi, Sargodha, Lahore, Multan, D.

1. Khan and Khairpur Divisions of West Pakistan were, on account of holding office of profits in the service of Pakistan, disqualified under Article 103 (2) from being Members of the National Assembly. A fortiori if their votes were discounted the am3ndment was not passed by two‑thirds of the total number of the Members of the National Assembly. The disqualification imposed by Article 103 (2) teas removed by the Constitution (Third Amendment) Act, 1965, but that Act itself was claimed to be ultra hires of the Constitution inasmuch as persons who were disqualified from being Members of the National Assembly were among 113 Members who had voted in favour of removal of the disqualification.

5. Both the writ petitions were dismisse3 by a Division Bench of the High Court on 28th October 1966, following the Full Bench decision of their Court in A. M. K. Leghari v. Government of West Pakistan. It was held in that case that the High Court was not competent to call in question tide sires of the Constitution (Sixth Amendment) Act, 1966, because the question raised by the petitioners was in effect and substance an indirect challenge to the election of the allegedly disqualified persons and, therefore, they were debarred from raising this question by reason of the provisions of Article 171 of the Constitution.

6. Leave to appeal was granted as questions relating to the interpretation of the Constitution involved in the two appeals were already under consideration of the Court in Civil Appeals Nos. 99, 100 and 107 of 1966 and Civil Appeal No. 3 of 1967 filed by A. M. K. Leghari and others from the aforesaid Full Bench judgment of the High Court.

7. As indicated in the beginning of this order the appeals by A. M. K. Leghari and others were disposed of by this Court on 28th November 1969, before the present appeals came up for hearing. It was held in those appeals that the vires of the Constitution (Third Amendment) Act, 1965, could not be challenged in collateral proceedings as the acts of de facto Members could not be invalidated, but must be treated as equivalent to or as good as the acts of de jure Members. The opinion expressed by the learned Judges of that High Court that they did not have the jurisdiction to inquire into the validity of the Constitution (Sixth Amendment) Act, 1966, by virtue of the bar contained in Article 171 was, however, not approved. Following the rule laid down in King v. Beer ((1903) 2 K B 693) that bankruptcy being, a disqualification not merely for election but also for holding the office of Councilor, a quo warranto would lie for his removal even though the disqualification had arisen prior to the election it was held that relief by way of quo warranto would be available in a case where the remedy by way of an election petition is no longer possible or is not appropriate remedy or the disqualification is a continuing one which debars a person not only from being elected to an office but also from holding that office. It was further observed in this behalf:

8. "That it was difficult to appreciate on what principle the allegedly disqualified Members were allowed to participate in the passing of the Third Amendment itself which was an amendment for removing their own disqualification with regard to which doubts had arisen and that it would have been more dignified if they had refrained from doing so in keeping with the principle that the persons directly interested in a measure being proposed in the House should not participate in the voting thereof."

9. This principle was embodied in sub‑rule (3) of rule 152 of the National Assembly Rules and was relied upon in Queen v. Ward ((1873) B.Q B 210.) in which Blackburn, J. indicated that if a person were to willfully and contumaciously act in his own election the Court might allow an information to go. This view, however, did not help Mr. A. M. K. Leghari as the decision of the High Court would have taken effect from the date of its pronouncement and not from a date anterior thereto and that would not have altered the decision regarding the validity of the impugned amendments. The grant of the relief of quo warranto in those cases was ruled out as by then the National Assembly stood dissolved and the matter had become only of academic interest. The appeals brought by A. M. K. Leghari and others were accordingly dismissed, but it was unmistakably indicated by this Court that had the Constitution (Third Amendment) Act, 1965, been challenged in proper proceedings and the National Assembly was not dissolved, a writ of quo warranto would have been issued to the persons who stood disqualified from being Members by reason of holding office of profit in the service of Pakistan.

10. The ground on which leave to appeal was granted in the present appeals thus stands disposed of, but the learned counsel for the appellants tried to argue that under clause (b) of Article 178(4) substituted by the Constitution (Sixth Amendment) Act, 1966, the appellants were liable to be retired from service on the completion of the sixtieth year of their age as provided in the concluding clause "or on the completion of the sixtieth year of his age whichever be earlier". The plea is wholly devoid of force as the concluding clause applies only if the competent authority does not issue directions for retirement from service within the period of six months and the person to be retired completes the age of sixtieth year before the expiry of that period. This will be evident from the plain language of clause (b) of sub -Article (4)

11. "(b) if he has completed before, or completes within a period of six months from, the commencement of the Constitution (Sixth Amendment) Act, 1966, the fifty‑fifth year of his age, on such date after such completion, being a date within the said period, as the competent authority may direct, or in the absence of such direction, on the expiry of the said period, or on the completion of the sixtieth year of hi; age, whichever be earlier."

12. It was lastly urged that since the appellants were given extension in service under Government Servants (Further Useful ness in Public Service) Rules, 1963, Article 178(4)(b) was not applicable in their cases. This plea too is met by the provisions in clause (4). At best the orders by which the appellants were allowed to continue in service till the completion of the sixtieth' year of their age became the condition of their service which wash expressly done away with by clause (4).

13. None of the contentions raised in support of these appeals thus holds good. The appeals are, accordingly, dismissed, but in the circumstances we make no order as to costs.

14. S. Q. Appeals dismissed.