The Province of Sindh through Chief Secretary and others vs Azhar Ali

2025 SCLR 6

Other citations: 2025 SCP 464

[Supreme Court of Pakistan]

Present: Muhammad Ali Mazhar, Athar Minallah and Salahuddin Panhwar, JJ

The Province of Sindh through Chief Secretary and others --- Petitioners

versus

Azhar Ali --- Respondent

Civil Appeals No.106-K to 111-K and 650-K of 2024, decided on 1st September, 2025.

[Against the Orders dated 22.11.2023, 15.01.2024, 23.04.2024, 25.04.2024, and 02.05.2024, and the order dated 14.05.2024, passed by the High Court of Sindh, Circuit Court, Hyderabad, and Bench at Sukkur in C.Ps. No. D-755/2023, D-110/2022, D-78/2023, D-1093/2020, D-96/2019, D-178/2019, and Const. P. No. D-1784/2023.]

HEADNOTES

(a) Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 ---

--- R. 11-A --- Appointment on deceased/invalidated quota --- Impact of minority on limitation period --- Scope --- Petitioner challenged the different orders passed by High Court in different constitutional petitions vis-à-vis the right of employment on the strength and pursuit of deceased quota in terms of rule 11-A of the Sindh Civil Servants (Appointment, Promotion & Transfer) Rules, 1974 --- The petitioner contended that the High Court disregarded the plain language and cut-off dates of the deceased quota policy; furthermore, pursuant to Supreme Court precedent, the underlying rule is now unconstitutional, rendering such appointments legally untenable --- Validity --- The substratum of erstwhile rule 11-A expounded that when a civil servant died while in service, or is declared invalidated or incapacitated, one of his children or, as the case may be, his spouse if his children are minor, shall be provided job, but the predominant condition was to apply within a period of two years of death or declaration of invalidity or incapacity of a civil servant --- Petitioner fervently avowed that the High Court in all impugned orders disregarded the definite date to adjudge whether the legal heirs of deceased civil servants and/or sons/daughters of invalidated or incapacitated civil servants applied for the job within the cut-off date mentioned in rule 11-A --- However, he could not point out any instance within the realm or dominion of the erstwhile rule that since the children of deceased, invalidated or incapacitated civil servants were minor at the time when the job opportunity matured, therefore, under the beneficial provision, the spouse of such civil servant was accommodated or provided the job and if this was not done then what were the reasons?; it was not even disclosed as an effective defense that the job was offered but the opportunity was not availed --- The record reflects that many minors after attaining maturity within the cut-off date applied for the job and were accommodated by the High Court --- If commonsensical and serviceable interpretation is made, then the aforesaid rule has not created any bar and obviously, if the widow was not accommodated for any reason, then neither the right to apply by a minor after attaining maturity is stifled nor he could be blamed if at the time of death of his father, he was minor especially in the state of affairs when his mother i.e. widow of deceased was not accommodated for a job consistent with the aforesaid rule --- Leave to appeal was refused. [A]

General Post Office, Islamabad and others v. Muhammad Jalal (PLD 2024 SC 1276) referred.

(b) Interpretation of statues ---

--- Beneficial legislation --- Scope --- The terminology “beneficial legislation” allude to the laws, rules or regulations premeditated to vouch for the well-being of individuals and the populace --- The Courts are obligated to interpret such laws, rules and regulations moderately and judiciously to make sure that the objectives of such legislation are enforced and implemented pragmatically --- In order to achieve this task and safeguard the underlying principle, a dynamic, purpose oriented and liberal approach is inevitable to augment its end result --- Even if a word or provision of any beneficial legislation may be interpreted in two ways that one protects and conserves the benefit but one does not or it allows diverse interpretations, then the dominant option is to pick and choose the interpretation which prospers and withstands the benefit rather than deprive it --- One more important principle that cannot be lost sight of is that the philosophy of beneficial interpretation indoctrinates farther than extended connotation to the words of such beneficial provisions if such an interpretation brings into line with the legislative intent and primary objectives --- It is also well-known precept of beneficial construction that it should be interpreted with proactive and dynamic approach to sync and live up to primary intended raison d'être --- In order to achieve its inner self, the beneficial provision should be interpreted to shield the rudimentary aspiration which is in fact an empathy of beneficial construction with generous approach and reading it with widest conceivable denotation to protect the interests of the beneficiaries of beneficial statute/provision --- At times, statutes do not assimilate every situation coherently and in such scenario, the tool of beneficial construction allows the judges to alleviate the incongruences but without varying its quintessence. [B]

--- Art. 189 --- Decisions of Federal Constitutional Court and Supreme Court binding on other courts --- Prospective application of precedents --- Scope --- It is clear beyond any shadow of doubt that the judgment of Supreme Court has the prospective effect unless declared otherwise --- The prospective declaration of law cannot reopen the past and closed matters to avoid or prevent the multiplicity of proceedings and undermining the doctrine of finality of judgments --- The law declared by Supreme Court will apply to the cases arising in future but the cases which have attained finality are fully protected under the doctrine of past and closed transactions. [C]

Pir Bakhsh and others vs. Chairman, Allotment Committee and others, (PLD 1987 S.C. 145); Sakhi Muhammad and another vs. Capital Development Authority, Islamabad (PLD 1991 S.C 777); Pakistan Medical and Dental Council & others vs. Muhammad Fahad Malik and others (2018 SCMR 1956) relied.

Kafeel Ahmed Abbasi, Addl. AG and Dr. Raana Khan, Advocate-on-Record for the petitioners.

Abdul Samad Memon, Advocate Supreme Court and Ghulam Rasool Mangi, Advocate-on-Record for the respondents.

Nadeem Abbas, in-person.

Date of hearing: 1st September, 2025.

Judgment

Muhammad Ali Mazhar, J:- The aforesaid Civil Appeals and Civil Petition for leave to appeal have been brought to challenge the Orders dated 22.11.2023, 15.01.2024, 23.04.2024, 25.04.2024, 02.05.2024 and 14.05.24 passed by High Court of Sindh, Circuit Court, Hyderabad and Bench at Sukkur in C.Ps.No.D-755/2023, D-110/2022, D-78/2023, D-1093/2020, D-96/2019, and D-178/2019 & D-1784/2023 whereby the Constitution Petitions filed by the respondents were allowed subject to fulfillment of all codal formalities and Rules.

2. In point of fact, the Government of Sindh has challenged the different Orders passed by the learned Sindh High Court in different constitution petitions vis-à-vis the right of employment on the strength and pursuit of deceased quota in terms of Rule 11-A of the Sindh Civil Servants (Appointment, Promotion & Transfer) Rules, 1974 ("APT Rules").

3. On 16.10.2024, leave to appeal was granted by this Court to examine whether the learned High Court, without adverting to the pure language of the Rule, allowed the Constitution Petitions with certain directions to issue the appointment letters, whereas Rule 11-A is clear in all respects that when a Civil Servant dies while in service, or is declared invalidated or incapacitated, one of his children or, as the case may be, his spouse if his children are minor, shall be provided job, but the predominant condition is to apply within a period of two years of death or declaration of invalidity or incapacity of a Civil Servant and whether the High Court in all impugned Orders, ignored the actual date when the legal heirs applied for the job and despite a clear cut-off date mentioned in Rule 11-A of the APT Rules, certain directions were issued for the appointment and the compliance report.

4. The learned Additional Advocate General, Sindh ("Addl.AG") argued that the learned High Court ignored the pure language of the aforesaid Rule and allowed the Constitution Petitions with certain directions to issue the appointment letters beyond the scope of the aforesaid rule, therefore, the impugned Orders are against the law and facts. He further argued that upon receipt of applications for the job against the deceased quota, Law Department fulfilled its obligation of scrutinizing the same in the light of deceased quota policy and after scrutiny of the case of the respondents, the law department opined that the cases of the respondents do not fall within the ambit of existing policy including the cut-off date for applying for the job. Last but not least, the learned Addl.AG very vigorously relied upon the dictum laid down by this court in the case of General Post Office, Islamabad and others Vs Muhammad Jalal (PLD 2024 SC 1276) and wrapped up his argument that after rendering aforesaid judgment by this Court, neither Rule 11-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 is in field, which has been declared ultra vires and unconstitutional by this Court nor any deceased/son quota policy in vogue, hence no appointment could be made in view of the erstwhile rule.

5. The learned counsel for the respondents argued that all the impugned /orders were rendered by the High Court prior in time the dictum was laid down by this Court in the case of General Post Office (supra). It was further argued that the High Court after considering the niceties of Rule 11-A of APT Rules allowed the constitution petitions with due care and caution which cannot be undone or set aside on the basis of aforesaid judgment of this Court.

6. Heard the arguments. The substratum of erstwhile Rule 11-A APT Rules expounded that when a Civil Servant died while in service, or is declared invalidated or incapacitated, one of his children or, as the case may be, his spouse if his children are minor, shall be provided job, but the predominant condition was to apply within a period of two years of death or declaration of invalidity or incapacity of a Civil Servant. The learned Addl.AG fervently avowed that the High Court in all impugned Orders disregarded the definite date to adjudge whether the legal heirs of deceased civil servants and/or sons/daughters of invalidated or incapacitated civil servants applied for the job within the cut-off date mentioned in Rule 11-A of the APT Rules. However, he could not point out any instance within the realm or dominion of the erstwhile rule that since the children of deceased, invalidated or incapacitated civil servants were minor at the time when the job opportunity matured, therefore, under the beneficial provision, the spouse of such civil servant was accommodated or provided the job and if this was not done then what were the reasons?; it was not even disclosed as an effective defense that the job was offered but the opportunity was not availed. The record reflects that many minors after attaining maturity within the cut-off date applied for the job and were accommodated by the High Court. If commonsensical and serviceable interpretation is made, then the aforesaid Rule has not created any bar and obviously, if the widow was not accommodated for any reason, then neither the right to apply by a minor after attaining maturity is stifled nor he could be blamed if at the time of death of his father, he was minor especially in the state of affairs when his mother i.e. widow of deceased was not accommodated for a job consistent with the aforesaid Rule.

7. If we look into the pith and substance and genre of aforesaid Rule, it unambiguously divulges that it was a beneficial acclimatization of the children of deceased, invalidated or incapacitated civil servants which was deep-seated and in vogue for last many years under the APT Rules. The terminology “beneficial legislation” allude to the laws, rules or regulations premeditated to vouch for the well-being of individuals and the populace. The Courts are obligated to interpret such laws, rules and regulations moderately and judiciously to make sure that the objectives of such legislation are enforced and implemented pragmatically. In order to achieve this task and safeguard the underlying principle, a dynamic, purpose oriented and liberal approach is inevitable to augment its end result. Even if a word or provision of any beneficial legislation may be interpreted in two ways that one protects and conserves the benefit but one does not or it allows diverse interpretations, then the dominant option is to pick and choose the interpretation which prospers and withstands the benefit rather than deprive it. One more important principle that cannot be lost sight of is that the philosophy of beneficial interpretation indoctrinates farther than extended connotation to the words of such beneficial provisions if such an interpretation brings into line with the legislative intent and primary objectives. It is also well-known precept of beneficial construction that it should be interpreted with proactive and dynamic approach to sync and live up to primary intended raison d'être. In order to achieve its inner self, the beneficial provision should be interpreted to shield the rudimentary aspiration which is in fact an empathy of beneficial construction with generous approach and reading it with widest conceivable denotation to protect the interests of the beneficiaries of beneficial statute/provision. At times, statutes do not assimilate every situation coherently and in such scenario, the tool of beneficial construction allows the judges to alleviate the incongruences but without varying its quintessence. So for all intent and purposes, the High Court in its strength of mind rightfully extended the benefit of beneficial provision according to the spirit of law prevailing at the time of deciding the constitution petitions.

8. Recently in the case of Registrar, High Court of Sindh, Karachi versus Rehana and another (CPLA.804-K to 807-K/2025) in a similar situation, the case of General Post Office (supra) was dilated upon vis-à-vis its binding effect. It is a fact that all the impugned orders were passed by the High Court much before the date of dictum laid down by this Court in the General Post Office which struck down the Rule 11-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 and other corresponding provisions of the other Provincial Civil Servants’ and Federal Civil Servants’ Laws. Indeed, this Court in the above case on 04.01.2024, framed two questions on its own motion i.e. Whether the policy conforms with Articles 25 and 27 of the Constitution of Islamic Republic of Pakistan insofar as it creates separate categories of persons who are to be given preference in employment; and (2) Whether the Prime Minister of Pakistan has the power to relax rules and/or to issue the Policy. Notice was also issued under Order 27A of Civil Procedure Code 1908 (CPC) to the Attorney General, Pakistan as well as to the Advocate Generals of all the Provinces. In such situation, the matter ought to have been dealt with according to Section (4) of the Supreme Court (Practice and Procedure) Act 2023 (as stood prior the 26th Constitutional Amendment), which provided in its original form that the matters where the interpretation of the Constitutional provisions is involved, Committee should constitute the bench comprising not less than five judges of the Supreme Court but this elemental and crucial aspect touching the jurisdiction escaped the attention of the honorable bench seized of the lis, rather, the matter was fixed and decided by three member bench, the aspect which also needs to be thrashed out in appropriate proceedings whether the said judgment is “per incuriam” or not?

9. The next most important aspect which need to be considered is the effective date of the judgment passed by this Court and its effect on previous decided cases. It is clear beyond any shadow of doubt that the judgment of this Court has the prospective effect unless declared otherwise. The prospective declaration of law cannot reopen the past and closed matters to avoid or prevent the multiplicity of proceedings and undermining the doctrine of finality of judgments which in the present case successfully attained and the Orders of the High Court cannot be assailed or set aside on the anvil of judgment rendered by this Court posterior i.e. on 26.09.2024. We are sanguine that the law declared by this Court will apply to the cases arising in future but the cases which have attained finality are fully protected under the doctrine of past and closed transactions.

10. In the case of Pir Bakhsh and others vs. Chairman, Allotment Committee and others, (PLD 1987 S.C. 145), it was held that the fact that Supreme Court in an appeal, titled Abdul Hafiz v. Rehabilitation Commissioner and others, against the judgment of the High Court set aside the same judgment in another writ petition would not reopen the concluded rights of the parties under the decision of the High Courts against which no appeal was filed, nor could the appellants who were respondents in that writ petition avail the benefit of the law laid down by the Supreme Court under Article 189 of the Constitution. The fact that the law laid down by this Court (Supreme Court) is prospective, it cannot be doubted. In the case of Sakhi Muhammad and another vs. Capital Development Authority, Islamabad (PLD 1991 S.C 777), it was held by this Court that the consequence of the Supreme Court judgment was that as from the date of decision all courts subordinate to the Supreme Court and all executive and quasi-judicial authorities were obliged by virtue of the Constitution to apply the rule laid down by the Supreme Court in cases coming up before them for decision. The decision of the Supreme Court did not have and it could not be contended that it had, the effect of altering the law as from the commencement of relevant law so as to render void of its own force all relevant orders of the Authority or of the High Court made in the light of the earlier interpretation. Likewise, in the case of Pakistan Medical and Dental Council & others vs. Muhammad Fahad Malik and others (2018 SCMR 1956), this Court again held that the judgment of the Supreme Court, unless declared otherwise, operates prospectively.

11. As a result of the above discussion, we do not find any illegality, perversity or impropriety in the impugned orders passed by the learned High Court. As a consequence thereof, the aforesaid Civil Appeals are dismissed and C.P.L.A.No.650-K of 2024 is also dismissed and leave refused.

Leave refused