PESHAWAR, June 23: The Peshawar High Court on Thursday dismissed a writ petition filed by former chairman and nine members of the Khyber Pakhtunkhwa Public Service Commission challenging the recent amendments in the relevant law for cutting down their service tenure from five to three years.

A two-member bench comprising the Chief Justice Ejaz Afzal Khan and Justice Yahya Afridi pronounced the order after completion of arguments by counsel of the petitioners and respondents.

The ex-chairman, Gulzar Khan, and members had filed a joint writ petition praying the high court to declare the Khyber Pakhtunkhwa Public Service Commission (Amendment) Act, 2011, as ultra vires of the constitution.

They requested the court to declare that the said act was tainted/targeted law, therefore it was beyond the competence of the provincial assembly. The petitioners stated that the respondents may be directed to allow them to complete their tenure of office for a period of five years.

The respondents in the petition were: Khyber Pakhtunkhwa government through its chief secretary; governor; provincial assembly through its speaker and the newly appointed chairman and members of the commission.

Following the enactment of this Act, the provincial government had issued a notification on May 6 through which it was announced that the chairman and six of the members -- Jamshed Ali Khan, Shala Khan Afridi, Manzoor Iqbal Bangash, Mian Sahib Jan, Mohammad Younas Marwat and Alam Zeb -- ceased to hold office.

Barrister Zahoorul Haq appeared for the provincial government and contended that the said Act was a validly enacted law. He argued that the language of the law was clear as it clearly pronounced that it would be applicable to the chairman and the members.

Mr Haq argued that normally the superior courts avoided in interfering in such like issues. He referred to several judgments of the Supreme Court including the case of former chairman of Federal Public Service Commission, Jamshed Gulzar Kayani, contending that the court judgments in such like cases were consistent.

Petitioners' counsel Abdul Lateef Yousafzai stated that the NWFP Public Service Commission was originally established by the Act XIX of 1973, in which the terms of office for each member of the PSC were fixed as three years and were eligible for re-appointment for such further period or periods.

He stated that the said Act was repealed through the NWFP PSC Ordinance, 1978. Through that ordinance, the terms of office for each member were fixed at five years.

Mr Yousafzai informed that recently the provincial assembly passed Khyber Pakhtunkhwa PSC (Amendment) Act, 2011, through which amendments were made in the ordinance of 1978 and the tenure of a member of the commission is reduced to three years or till he attains the age of 65 years, whichever was earlier.

The counsel argued that the said amendments violated fundamental rights of the petitioners and could not be applied to them as they were appointed under a contract for a term of five years. He contended that the said Act could not be applied with retrospective effect on the petitioners.

He referred to the “theory of reading down” stating that it was a rule of interpretation resorted to by the courts when they find that a provision literally seems to offend a fundamental right or falls outside the competence of the particular legislature.

On the touchstone of that theory, he argued, even if the court may not declare the Act ultra vires to the Constitution, it could rule that it was not applicable to the petitioners as it violated their fundamental rights.