Supreme Court strikes down multiple Ordinances and Acts in a landmark judgment

Ch. Afrasiab Khan, ASC, represented the successful Petitioners and Appellants (all high ranking bureaucrats) in two Constitution Petitions and a Civil Appeal challenging, inter alia, the following pieces of legislation:

1. The Sindh Civil Servants (Regularization of Absorption) Ordinance, 2011
2. The Sindh Civil Servants (Regularization of Absorption) Act, 2011
3. The Sindh Civil Servants (Amendment) Ordinance, 2012
4. The Sindh Civil Servants (Second Amendment) Ordinance, 2012
5. The Sindh Civil Servants (Amendment) Act, 2013.
6. The Sindh Civil Servants (Second Amendment) Act, 2013.

The Honourable Supreme Court declared that all these legislations are in violation of the Constitution. The Court also declared illegal all “absorptions” by the Government of Sindh since 1994. The Court futher declared that all out of turn promotions given under section 9-A of the Sindh Civil Servants Act, 1973, by the Government of Sindh to an employee or civil servant with or without antedated seniority since 22-01-2002, when section 9-A was inserted through Ordinance IV of 2002, are ultra vires of the Constitution.

The Honourable Supreme Court then directed: “A copy of this judgment be sent to the Chief Justice, Sindh High Court, through Registrar for circulating it amongst the learned judges. A copy of this judgment be also sent to all the Chief Secretaries of the Provinces as well as Secretary, Establishment Division, Government of Pakistan, with the direction to streamline the service structure of civil servants in line with the principles laid down in this judgment. The Chief Secretary and Secretary, Services, Sindh, are further required to comply with this judgment in letter and spirit and report compliance within three weeks.”

Honourable Mr. Justice Asif Saeed Khan Khosa added a landmark additional note to the judgment, which reads: “It is true that the judicial precedent available thus far declares that mala fide cannot be attributed to the legislature but if a legislature deliberately and repeatedly embarks upon a venture to nullify considered judicial verdicts in an unlawful manner, trample the constitutional mandate and violate the law in the manner it was done in the presentcase then it is difficult to attribute bona fide to it either.”

The Respondents were represented by senior lawyers Dr. Farough Naseem, Anwar Mansoor Khan, Miangul Hassan Aurangzeb, M.M. Aqil Awan and Khalid Javed etc..

The judgment is reported at 2013 SCMR 1752. A copy is also available on the Supreme Court website.