May 10, 2006	Wednesday	Rabi-us-Sani 11, 1427

Please Visit our Sponsor (Ads open in separate window).

ISLAMABAD, May 9: Former chairman along with four members of the Federal Public Service Commission (FPSC) on Tuesday challenged the Lahore High Court’s order endorsing their removal from the service.

The petitioners, former FPSC chief Lt-Gen (retired) Jamshaid Gulzar and members Gul Hanif, Justice (retired) Abdur Rehman Khan, Javed Akram and Tariq Saeed Haroon, pleaded to declare illegal and unconstitutional the Federal Public Service Commission (Second Amendment) Ordinance, 2005 (Ordinance XXV of 2005) under which they had been removed from the service.

Advocate Akram Sheikh is representing the petitioners in the Supreme Court.

The federal government through secretaries Establishment Division, Law and Justice are respondents in the appeal.

In their appeal, the petitioners pleaded that March 8, 2006, order of the LHC Rawalpindi bench was not sustainable since it was a settled law that re-promulgation of ordinances was a fraud on the constitution.

Article 89 of the constitution clearly provides that if an ordinance is not approved, it shall lapse on the expiry of four months.

The underlying object is to guard the legislative power of the National Assembly which cannot be allowed to be usurped by any head of the state while the parliament exists.

If the parliament does not stand dissolved, the president cannot usurp its legislative powers by repeating the same ordinance, they contended.

The ordinance was placed before the parliament as a bill which did not become an act as the federal government could not succeed to have it passed from both houses.

Still the president over-reached the authority of the legislature to have the ordinance re-promulgated, they stated.

However, the high court failed to take into account the fact that there did not exist any circumstances to compel the president to believe that it was necessary for him to take immediate action and promulgate the ordinance. Therefore, the exercise of power by the president was clearly beyond the mandate of Article 89 of the constitution.

They pleaded that they were appointed for a tenure of five years each which had not expired as yet and that in the scheme of the legislation, a member could only be removed after following the procedure contemplated by Article 209 of the constitution.

The high court erred while holding that the ordinance had retrospective effect and that the judgment in the case of Mollases Trading Vs Federation of Pakistan (reported as 1993 SCMR 1905) does not apply to the case of the petitioner whereas the principles of law laid down therein were clearly applicable to the case of the petitioners.

Removals of the petitioners under the ordinance are violative of Article 14 of the constitution and therefore the order of LHC should be reversed, they contended.