Govt seeks review of SC ruling against PPP-era law

Published September 29, 2021
A file photo of the Supreme Court of Pakistan in Islamabad. — SC website/File
A file photo of the Supreme Court of Pakistan in Islamabad. — SC website/File

ISLAMABAD: The federal government on Tuesday sought review of the Supreme Court’s Aug 17 judgement that rendered almost 17,000 government employees jobless, creating much hue and cry.

On his last day in office, Justice Mushir Alam had on Aug 17 declared illegal and unconstitutional a PPP-era law called Sacked Emplo­yees (Reinstatement) Ordi­nance Act 2010 (SERA) under which a number of people were employed or promoted in 1989-90.

The review petition filed by the establishment division secretary through Additional Attorney General Sajid Ilyas Bhatti requested the apex court to recall the Aug 17 judgement and suspend its operation in the meanwhile.

The judgement had caused a furore and led to a protest sit-in outside the Parliament House at a time when President Dr Arif Alvi was addressing a joint sitting of parliament on Sept 13.

The petition has named 93 people, mainly those affected by the SC verdict, as respondents and argued that though the apex court had declared SERA as illegal despite the fact that the act was duly passed by parliament, yet no notice was issued to a large number of employees who were direct beneficiaries of the act but lost or would lose their jobs immediately without any opportunity of being heard by the court.

The petition recalled that despite the court order in 2010, no formal notice was issued to the Attorney General for Pakistan (AGP) in terms of the required mandatory rules. Accordingly, the AGP was not heard on the question of vires of SERA before it was declared ultra vires of the Constitution, it argued.

As a result of which, the Aug 17 judgement suffered from material defects since it had been passed in ignorance of a 2015 verdict by the apex court in the Ghulam Rasool case, it added.

“Though the government fully supports the principle of transparency, merit and due process in the public employment, the erstwhile sacked employees falling and benefitting under SERA may not be rendered completely jobless merely owning to deficiencies and, therefore, their legitimate rights and interests should be protected which does not prejudice other employees,” the petition contented.

The petition highlighted the need for adopting more equitable approach to balance the rights and interests of all the parties on more transparent and merit-based criteria. Accordingly, it said, material provisions of SERA redressing injustices meted out to an overwhelming number of erstwhile sacked employees resulting from their earlier arbitrary terminations could have been avoided rather than outright annulment of the entire act.

The petition explained that the act was neither meant for nor applied to the services of civil servants whose service was governed under the provisions of the Civil Servants Act 1973 and the rules framed thereunder.

SERA, as stated in its preamble, was meant to provide relief to those persons in corporation service or autonomous or semi-autonomous or in government service which did not fall within the ambit of the Civil Servants Act, it argued.

The petition regretted that the principle of severability of the statute was not applied and the entire SERA was declared ultra vires even though provisions, which merely protected the employees by reinstatement or regularisation of service without affecting right or interest of any existing employee, could have been saved by the court.

Resultantly, thousands of employees instantly become unemployed causing severe distress to thousands of families, the petition contended, recalling that SERA passed by parliament had received the president’s assent on Dec 6, 2010 and was published for general information on Dec 8 that year.

Prior to SERA, it said, ordinances were also promulgated by the president to the same effect as the act, adding that the act was passed to reinstate the persons who were earlier employed in different corporations, autonomous or semi-autonomous bodies or government service but were later dismissed.

The petition recalled that when the sacked employees were reinstated and regularised, disputes over seniority and promotion in the organisations occurred and as a result of which the employees already serving in the organisations assailed seniority, promotion and grant of one step higher scale to the reinstated employees.

Some of the litigants also challenged the vires of SERA and consequent reinstatement in service of the sacked employees. In other cases, the beneficiaries of the act sought enforcement of their rights under the act, the petition said.

Important legal questions as well as material facts escaped the notice of the apex court while passing the Aug 17 judgement, the petition said, adding that the verdict contained mistakes and errors apparently on the face of the record.

The petition contented that a transparent methodology was required to be adopted to fully protect all the legitimate rights and interests of the existing and other employees who secured their jobs on merit, qualifications and transparent process.

Published in Dawn, September 29th, 2021

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