Reinstatement of PARC Employees – A Constitutional Dilemma
An interesting legal proposition has cropped up before the Islamabad High Court (IHC) while adjudicating upon the case for reinstatement of 269 employees of the Pakistan Agricultural Research Council (PARC).
The employees were sacked in May 2011 over allegations of being appointed illegally and without the posts being advertised by the then Chair of the Council. It was also claimed that many of them did not meet the qualification and experience requirement. Outraged, the employees went to court where their petitions were dismissed. However, on May 2, 2012, Prime Minister Yousaf Raza Gilani reinstated the employees on the recommendation of a Cabinet sub-committee. PARC then served the reinstated employees with show-cause notices and called into question the said reinstatement as being illegal and marred with irregularities, which formed the basis of the termination in the first place.
In the meantime, Supreme Court disqualified Prime Minister Gilani and further declared all actions taken by him between April 26 and June 19, 2012 as unconstitutional. The then President passed a Validation Ordinance 2012 to provide constitutional cover to orders issued by Gilani. However, the Ordinance failed to attain the status of an Act from the National Assembly. In the absence of parliamentary assent, an Ordinance is only a temporary statute which expires as per Article 89 of the Constitution. But then there is Article 264, which can save what has been duly done under a repealed statute.
Later, the Supreme Court of Pakistan corrected the contradiction. It ruled that Article 89 was to be viewed as an exception to Article 264. As a result, the actions taken by the Prime Minister lacked constitutional sanctity as held by the court.
In a 2012 case, the court held that the unconstitutional actions of Gilani could be ratified by Parliament alone. So the question that arises is that in the 120 days in which the Ordinance 2012 was a valid statute, was the Ordinance sufficient to provide necessary constitutional sanctity?
It would appear that any constitutional cover provided by the Ordinance 2012 lapsed after 120 days.
The only possible escape for Gilani could have been the de facto doctrine. The doctrine, as held by the court in Fahad Malik v. Pakistan Medical and Dental Council in 2018, is invoked in favour of those public functionaries who act bona fide in the belief that they are legally entitled to perform actions, and whose legal status is not a concern. However, the doctrine cannot be invoked in utter disregard for the rule of law.
That said, in my opinion, this doctrine might not be able to provide constitutional cover to restore the jobs of PARC employees who were sacked, as employment matters cannot be treated as policy matters, as was also considered in a case of the Pakistan Medical and Dental Council, where court only applied the doctrine to day-to-day activities of the Council and not the appointments made by it.
Since the 2012 Ordinance does not protect the actions of the former Prime Minister and the doctrine is inapplicable, PARC employees are likely to have to pack up and go home.
An earlier version of this article appeared on Geo. Republished here with permission.
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