LAHORE, March 29: A division bench of the Lahore High Court has held that vested right is not accrued to persons appointed in a public office under a law and if their tenure of service is curtailed or ended by another ordinance seeking an amendment to an earlier legislation, there is no violation of the Constitution and infringement of the fundamental rights.

Comprising Justice Muhammad Muzammil Khan and Justice Syed Shabbar Raza Razvi, the division bench also held that the president had validly amended the Federal Public Service Commission Ordinance of 1977 by promulgating another ordinance in 2005, with the objective of curtailing the term of commission chairperson and its members from five to three years.

The amended ordinance, the court observed, cannot be subject to a judicial review nor assailed on the grounds of mala fide intention because the president is competent to promulgate ordinances and the power has been vested by article 89 of the Constitution.

The court observed that an ordinance is as competent a law as an act of parliament since article 260(2) of the Constitution enunciates that an ordinance, promulgated by the president, shall have the same force as a law passed by the National Assembly or the Senate. As such, there is no reason to believe that an ordinance is any way a piece of legislation inferior to an act of parliament, the court observed while referring to article 89 of the Constitution.

The LHC made these observations while dismissing two writ petitions through which Lt-Gen Jamshed Gulzar and four others had brought into question the validity of the ordinance of 2005 under which their term of office as chairperson and members of the FPSC was curtailed from five to three years. They argued that the amending law had, by infringing upon their vested right, contravened their fundamental right to life as guaranteed by the Constitution.

The LHC announced the short order of the dismissal of the petitions on March 6 this year and a detailed judgment was proclaimed a few days ago.

The petitioners contended that the amending ordinance was promulgated as a mala fide act because it made them cease the office prematurely. They also contended that the new law was promulgated because the authorities did not like the FPSC chairperson and members to decide cases on merit and in accordance with rules and regulations.

They also pleaded that the ordinance was promulgated barely two days before the National Assembly was to meet and, thus, it was violative of article 89 of the Constitution which provided that no ordinance could be promulgated when the National Assembly was to meet within 15 days.

They cited 1993 SCMR 1905, 2000 SCMR 367 and 2001 SCMR 1012 and contended that no law could be made applicable retrospectively and that the legislature was supposed not to enact a law which manifestly caused injustice. They also argued that legislation by one person could not be held on a par with an act passed by parliament.

The court observed that the ordinance of 2005 had not repealed the ordinance of 1977, but it had only amended certain legal provisions particularly the term of office.

As for the interpretation of article 89 of the Constitution, the court held that an ordinance lapsed and repealed when not laid before the National Assembly within 120 days. In the case of the amending ordinance, it was passed by the National Assembly. To save the ordinance from being repealed, the president promulgated it afresh for the approval of the Senate.