BEFORE THE HONORABLE ISLAMABAD HIGH COURT,
ISLAMABAD
ICA No. -----/2023
In
WP No. 4657/2022
National Assembly Secretariat through Mr. Muhammad Farooq, Deputy
Secretary (Litigation) National Assembly Secretariat, Parliament House,
Islamabad
-------Appellant
Versus
1. Mumtaz Khan, Son of Sakhi Muhammad, Losar Sharfoo, Madni
Masjid, Post Office Wah Cantt, Tehsil Texila
2. Mrs. Majida Noureen Abbasi,
3. Mrs. Sobia Ahmed Faraz
4. Prime Minister etc.
-------- Respondents
INTRA COURT APPEAL UNDER SECTION 3 OF THE LAW
REFORMS ORDINANCE, 1973 AGAINST THE ORDER
DATED 13-10-2023 PASSED BY THE LEARNED SINGLE
JUDGE OF THE ISLAMABAD HIGH COURT, ISLAMABAD
Respectfully Sheweth:
1. That the addresses of the parties are correctly mentioned in the
memo of appeal which are sufficient for the purpose of the service
to be issued by this Honorable Court.
2. That the brief facts forming background of the matter are that the
respondent No. 1 instituted a writ petition thereby challenging the
directions/ recommendations dated 03-10-2022, 27-10-2022 and
07-12-2022 issued by the Special Committee on Affected
Employees” (hereinafter referred to as “the Special Committee’)
to the Ministry of Federal Education & Professional Training. The
Special Committee was constituted in pursuance of a Motion
adopted by the National Assembly on 10th October 2022. The said
writ petition was clubbed with several other petitions (some of them
were carrying altogether different subject matters) and decided through
a consolidated judgment dated 13-10-2023 (hereinafter referred
to as “the impugned judgment”) passed by the learned single
Judge.
Copy of impugned judgment dated 13-10-2023
passed by the learned single Judge of this
Honorable Court is annexed as Annexure-A
3. That feeling aggrieved of the impugned judgment, the appellant
prefers the instant Intra Court Appeal interalia on the following
grounds:
GROUNDS
A. That it is submitted with respect that the impugned judgment is
legally not sustainable inasmuch as the same has been rendered
interalia in violation of Article 69 of the Constitution of Islamic
Republic of Pakistan (hereinafter referred to as “the Constitution
of Pakistan”). The judgment under challenged has also been passed
in negation to the rules i.e. 28, 29, 119, 227, 201(4), 244-B and 245
of the Rules of Procedure and Conduct of Business in the National
Assembly, 2007 (hereinafter referred to as “the 2007 Rules”). The
judgment has also attacked the concept of trichotomy of powers
which is the hallmark of the Constitution of Pakistan. The Honorable
Single Judge, in purported exercise of judicial review, with respect,
transgressed the jurisdiction conferred upon him under Article 199
of the Constitution of Pakistan.
B. That the learned Judge in chambers, it is submitted with respect,
erred in holding that the Special Committee could have only made
recommendations to the National Assembly. While making such
observations, the learned Judge discussed the powers of the
Standing Committees as mentioned in the 2007 Rules altogether
ignoring that the subject matter of the constitution petitions (decided
by the learned single Bench) did not have any relevance to the powers
of the Standing Committees. What was relevant for the learned Judge
was the powers of the Special Committee as conferred upon it by the
three Circulars dated 12-10-2022, 17-10-2022 and 04-11-2022
issued by the National Assembly Secretariat. These Circulars were
issued on the strength of a Motion adopted by the National Assembly
on 10-10-2022. The learned Judge, instead of making discussion on
the contents of the said Circulars and the Motion adopted by the
National Assembly, merely focused on the powers of the Standing
Committees and decided the matter. The Judgement under challenge
thus can not sustain being passed on the basis of entirely irrelevant
discussion.
Copy of Circulars dated 12-10-2022, 17-10-2022
and 04-11-2022 are annexed as Annexure-B, C
and D
C. That while rendering the judgment under challenge, the learned
single Judge, with respect, ignored from consideration the ToRs
mentioned in the Circular dated 04-11-2022. The said Circular
interalia empowered the Special Committee to issue directions/
Show Cause Notices to any department in case of necessity. It is
worth mentioning here that the impugned judgment has not set-
aside any of the said Circulars. While these Circulars were holding
the field, the Special Committee constituted thereunder was well
within its powers to exercise any of the powers enumerated therein.
The consequence of the impugned judgment, as one can see, is that
all the said Circulars are still intact but the recommendations/
directions framed/ issued by the Special Committee under the said
Circulars have been surprisingly reversed. The learned Judge, it is
respectfully submitted, could not have passed any such judgment at
least until the legal instrument(s) pursuant to which the powers
were exercised by the Special Committee were holding the field.
D. That it is submitted with respect that while rendering the impugned
judgment, the learned Judge ignored that the Special Committee
acted strictly in accordance with the Circulars, the Motion adopted
by the National Assembly on 10-10-2022 and the 2007 Rules. No
illegality/ irregularity whatsoever was committed by the Special
Committee. As submitted in the preceding paragraph, so long as the
legal instruments were holding the field, the powers exercised by
the legal entity (Special Committee) created thereunder could not
have been declared as unlawful.
E. That in paragraph No. 18 of the impugned judgment, the Honorable
Judge observed that “the committee had admittedly trespassed its
mandate and made certain observations against senior officials by
issuing directions to issue Show Cause….”. The expression
“admittedly” used by the Honorable Judge does not identify the
maker of such admission before the Honorable Judge. It is submitted
with utmost respect that the appellant was the only contesting
respondent before the learned Judge and during the course of
proceedings, no such admission was ever made by any of the officials
of the Assembly or the counsel representing the appellant. Fact of
the matter is that throughout the proceedings, the counsel for the
Assembly not only defended the powers exercised by the Special
Committee but also took objection on the maintainability of the
constitution petitions filed in the High Court. The impugned
judgment, it is added with respect, was thus delivered contrary to
the material on record, the written arguments submitted on behalf
of the National Assembly Secretariat and the contentions put
forward by the appellant.
F. That the learned Judge, while rendering the impugned judgment,
also observed (in Paragraph 18 at Page No. 8) that no rule empowered
the Special Committee to call the officials of departments,
corporations and organizations for implementation of its
recommendations. By making such observations, the Honorable
Judge, it is submitted with respect, made the three Circulars issued
on the strength of the Motion adopted by the National Assembly
completely ineffective. The entire proceedings of the Special
Committee were conducted in pursuance of the said Motion adopted
by the National Assembly. The impugned judgment, it is submitted
with reverence, had indirectly attacked the Motion adopted by the
National Assembly which power was not available to the learned
Judge in view of the principle of separation of powers as enshrined
in the Constitution of Pakistan.
G. That the impugned judgment is also not sustainable being
inconsistent and self-conflicting. At page No. 8 of the judgment, the
learned Judge observed that “in all circumstances recommendations
had to be place before the House in National Assembly through
speaker……”. Without prejudice, it is submitted that if the learned
Judge had formed such opinion then instead of setting aside the
recommendations made by the Special Committee, the proper
course available to the learned Judge was to send the matter back to
the worthy Speaker for placing the same before the House. So, on
one hand, the learned Judge observed that the recommendations of
the Committee were required to be placed before the Speaker for
onward placement of the same before the House but surprisingly on
the other, the learned Judge set-aside those recommendations
himself.
H. That in paragraph No. 19 (Page No. 9 of the impugned Judgement),
the learned Judge in chambers, while discussing the scope of Article
69 of the Constitution of Pakistan observed that the “proceedings in
the Parliament that infringed the provisions of the Constitution are no
longer protected”. One wonders that on what basis the learned Judge
in chambers formed this opinion that the proceedings conducted by
the Special Committee (constituted on the strength of a Motion adopted
by the National Assembly) were in violation of some provision of the
Constitution of Pakistan. It is a matter of record that the learned
Judge did not refer to any constitutional provision that was infringed
by the Special Committee. A vague, inconclusive and unfounded
observation made in the impugned judgment is thus not sustainable.
In support of the above observation, the learned judge relied upon a
case reported as PLD 2022 SC 574. True that the said judgment of
the august Supreme Court of Pakistan has interalia dealt with the
scope of Article 69 of the Constitution of Pakistan but the ratio of the
said judgment, it is respect fully added, is not applicable at all to the
facts and circumstances of the case. The reliance on the said
judgment, respectfully added, was misconceived.
I. That while rendering the impugned judgment, the learned Judge, in
Paragraph No. 19 (page 11 of the impugned judgment), observed that
“actions initiated and orders given by the respondent committee of the
National Assembly are contrary to the law”. The judgment, however,
does not give any indication about the law that was allegedly
violated by the Special Committee. The learned single Judge
discussed the contents of Circular dated 12-10-2022 and observed
that the Committee “cannot go beyond its Terms of Reference”. The
Honorable Judge, it is respectfully submitted, altogether overlooked
the subsequent Circulars dated 17-10-2022 and 04-11-2022 that
enlarged the scope of ToRs earlier framed for the Committee in the
Circular dated 12-10-2022.
J. That another observation made in the impugned judgment that
makes it legally not sustainable reflects at Page 11 of the impugned
judgment and it states that since the tenure of the Assembly stood
completed, “the recommendations have no legal effect and all the
recommendations are void.” The strange logic which the learned
Judge has tried to invoke in support of the aforementioned
observations has no legal backing. The recommendations issued by
the Committees constituted during the tenure of a particular
Assembly cannot be termed as without any legal effect or void
merely on the basis of completion of tenure of the said Assembly.
Added thereto that the recommendations/directions of the Special
Committee were fait accompli and not pending business for the
purpose of rule 253 of the 2007 Rules. Such
recommendations/directions are still in field despite dissolution of
the Assembly.
K. That the learned Judge, while concluding the judgment (Page 11),
seems to have been impressed by the position taken by the learned
Assistant Attorney General (AAG) representing the Federal
Government. The learned AAG, during the course of proceedings
before the single Bench, did not support the recommendations given
by the Special Committee. The writ petitions were heard on 27-09-
2023 when the caretaker set up had taken control of the affairs of
the federal government. It is respectfully submitted that stance of
the caretaker government had hardly any relevance for adjudication
of the questions involved in the writ petition. Even otherwise, as per
the scheme of the Constitution of Pakistan what is done by the
elected parliament cannot be allowed to be undone by a caretaker
setup.
L. That the learned Judge has issued an omnibus direction to all the
ministries, departments and organizations ordering them not to
implement the directions issued by the Special Committee. No
concept of such omnibus order exists. The last two paragraphs of the
impugned judgment show that the Honorable Judge, while deciding
the constitution petitions had in fact exercised sou moto jurisdiction
and the impugned judgment not only covered the litigating parties
before the Court but several other departments and organizations
which were not even party to the proceedings. It is now a settled law
that the High Courts in the country can not exercise sou moto
jurisdiction.
M. That the impugned judgment is voilative of the well-defined concept
of sovereignty of the Parliament and the same is nonetheless, with
exactitude, a serious encroachment upon, blatant interference with
and intrusion into the constitutionally envisaged independence of
an organ of the state i.e. the Parliament.
N. That the appellant seeks permission to take further grounds at the
bar during the course of hearing of the case.
PRAYER
It is, therefore, most respectfully prayed that this Honorable
Court may very graciously be pleased to set aside the judgment
dated 13-10-2023 and as a consequence thereof the writ
petition No. 4657/2022 may kindly be ordered to be
dismissed.
Appellant
Through
Hafiz Arfat Ahmad Ch Kashifa Niaz Awan
Advocate Supreme Court Advocate Supreme Court
Tariq Zaman Ch.
Advocate High Court
CERTIFICATE
As per instructions received from the client, it is certified that no such
appeal has been filed earlier on the subject matter before this or any other
Honourable Court.
It is certified that the appeal has arisen from the violation, non-fulfilment
of obligations under the articles of the constitution of Islamic republic of
Pakistan.
Further certified that no appeal of the appellant on the subject is pending
or has been decided by the Honourable Supreme Court.
COUNSEL
BEFORE THE HONOURABLE ISLAMABAD HIGH COURT ISLAMABAD
I.C.A No. _________/2023
in
Writ Petition No. 4657/2022
National Assembly Secretariat Versus Mumtaz Khan etc
APPEAL UNDER SECTION 3 OF THE LAW REFORMS ORDINANCE, 1972
AGAINST THE JUDGEMENT ANNOUNCED ON 13-10-2023 PASSED BY
THE LEARNED SINGLE JUDGE OF ISLAMABAD HIGH COURT,
ISLAMABAD
Affidavit of: Mr. Muhammad Farooq, Deputy Secretary
(Litigation) National Assembly Secretariat, Parliament House,
Islamabad
The above named deponent do hereby solemnly affirm and declare that the
contents of the accompanying intra court appeal are true and correct to the
best of my knowledge and belief and nothing has been concealed
therefrom.
DEPONENT
VERIFICATION
Verified on oath at Islamabad on this-----day of November, 2023 that the
contents of the above affidavit are true to the best of my knowledge and
belief nothing has been concealed or suppressed.
DEPONENT
BEFORE THE HONOURABLE ISLAMABAD HIGH COURT ISLAMABAD
CM No.________/2023
IN
I.C.A No. _________/2023
National Assembly Secretariat Versus Pakistan Mumtaz Khan etc.
APPEAL UNDER SECTION 3 OF THE LAW REFORMS ORDINANCE, 1972 AGAINST
THE JUDGEMENT PASSED ON 13-10-2023 BY THE LEARNED SINGLE JUDGE OF
ISLAMABAD HIGH COURT, ISLAMABAD
APPLICATION UNDER SECTION 151 CPC FOR EXEMPTION
Respectfully Sheweth:
1. That certified copies of Annexures are not available. However,
uncertified/photo state copies of the same have been annexed with the
Appeal, which are true copies of original documents.
2. That it is in the interest of justice that the applicant/appellant be
dispensed with from producing certified copies of documents and the
captioned appeal be entertained
It is, therefore, respectfully prayed that this Hon’ble court may be pleased
to dispense with the requirement of filing of certified copies of documents.
Applicant/Appellant
Through
Hafiz Arfat Ahmad Ch
Advocate Supreme Court
BEFORE THE HONOURABLE ISLAMABAD HIGH COURT ISLAMABAD
CM No.________/2023
IN
I.C.A No. _________/2023
National Assembly Secretariat Versus Mumtaz Khan etc.
APPEAL UNDER SECTION 3 OF THE LAW REFORMS ORDINANCE, 1972 AGAINST
THE JUDGEMENT PASSED ON 13-10-2023 BY THE LEARNED SINGLE JUDGE OF
ISLAMABAD HIGH COURT, ISLAMABAD
APPLICATION UNDER SECTION 151 CPC FOR EXEMPTION
AFFIDAVIT
Affidavit of: Mr. Muhammad Farooq, Deputy Secretary
(Litigation) National Assembly Secretariat, Parliament House,
Islamabad
The above named deponent do hereby solemnly affirm and declare that the
contents of the accompanying application are true and correct to the best of my
knowledge and belief and nothing has been concealed therefrom.
DEPONENT
VERIFICATION
Verified on oath at Islamabad on this-----day of November, 2023 that the contents
of the above affidavit are true to the best of my knowledge and belief nothing has
been concealed or suppressed.
DEPONENT
BEFORE THE HONOURABLE ISLAMABAD HIGH COURT ISLAMABAD
CM No.________/2023
IN
I.C.A No. _________/2023
National Assembly Secretariat Versus Mumtaz Khan etc.
APPEAL UNDER SECTION 3 OF THE LAW REFORMS ORDINANCE, 1972
AGAINST THE JUDGEMENT PASSED ON 30-11-2022 BY THE LEARNED
SINGLE JUDGE OF ISLAMABAD HIGH COURT, ISLAMABAD
APPLICATION UNDER ORDER 39 RULE 1& 2 READ WITH SECTION
151 CPC FOR GRANT OF INTERIM RELIEF
Respectfully Sheweth:
1. That the applicant/appellant has today filed the titled appeal in
which no date of hearing has been fixed so far.
2. That, inter alia, for the grounds taken and submissions made in the
titled appeal which may graciously be read and considered as
integral part of this application, the applicant/appellant has a strong
prima facie case entitling it to the relief prayed for.
3. That the balance of convenience and inconvenience leans in favour
of the applicant/appellant and badly against the respondents.
4. That it is therefore, expedient and in the interest of law, justice and
equity that the operation of the impugned judgment dated 13-10-
2023 be suspended till the final adjudication of the titled Intra Court
Appeal
In view of the above, it is respectfully prayed that pending
decision of the titled appeal, the operation of the impugned
judgment dated 13-10-2023 may kindly be ordered to be
suspended.
Applicant/appellant
Through
Hafiz Arfat Ahmed Ch.
Advocate Supreme Court
BEFORE THE HONOURABLE ISLAMABAD HIGH COURT ISLAMABAD
CM No.________/2023
IN
I.C.A No. _________/2023
National Assembly Secretariat Versus Mumtaz Khan etc.
APPEAL UNDER SECTION 3 OF THE LAW REFORMS ORDINANCE, 1972 AGAINST
THE JUDGEMENT PASSED ON 13-10-2023 BY THE LEARNED SINGLE JUDGE OF
ISLAMABAD HIGH COURT, ISLAMABAD
APPLICATION UNDER ORDER 39 RULE 1& 2 READ WITH SECTION
151 CPC FOR GRANT OF INTERIM RELIEF
Affidavit of: Mr. Muhammad Farooq, Deputy Secretary
(Litigation) National Assembly Secretariat, Parliament House,
Islamabad
The above named deponent do hereby solemnly affirm and declare that the
contents of the accompanying application are true and correct to the best of my
knowledge and belief and nothing has been concealed therefrom.
DEPONENT
VERIFICATION
Verified on oath at Islamabad on this-----day of November, 2023 that the contents
of the above affidavit are true to the best of my knowledge and belief nothing has
been concealed or suppressed.
DEPONENT
BEFORE THE HONOURABLE ISLAMABAD HIGH COURT ISLAMABAD
I.C.A No. _________/2023
National Assembly Secretariat Versus Mumtaz Khan etc.
APPEAL UNDER SECTION 3 OF THE LAW REFORMS ORDINANCE, 1972 AGAINST
THE JUDGEMENT PASSED ON 13-10-2023 BY THE LEARNED SINGLE JUDGE OF
ISLAMABAD HIGH COURT, ISLAMABAD
INDEX
Sr. Particulars of Documents Annexure Page No.
No
1 Grounds of ICA
2 Copy of Impugned Judgement A
3 Copy of Circular dated 12-10-2022 B
4 Copy of Circular dated 17-10-2022 C
5 Copy of Circular dated 04-11-2022 D
6 Exemption Application along with
Affidavit
7 Application for interim relief along
with Affidavit
8 Vakalatnama
Appellant
Through
Hafiz Arfat Ahmad Ch. Kashifa Niaz Awan
Advocate Supreme Court Advocate Supreme Court
