To,

                        The Director of Elementary and Secondary Education,

                        N.W.F.P. Peshawar.

Subject:          Appeal for counting of Verified Service of the Appellant towards Annual Increments and Pension. Re-fixation of Pay with effect from 23-5-1988 and the arrears of the Annual Increments since December 1988 ­­­after counting of ­­­ Untrained Service to Annual Increments and Pension.­­­­­­­­­­­­­­­­­

Respected Sir,

                                    I have the honour to submit a Departmental Appeal for the solution of the problem of the Untrained Service of the Untrained Teachers (who subsequently got trained) to be solved in light of the Constitution of Pakistan, Civil Servants Act, 1973 and the Fundamental Rules with back benefits of the arrears of the Annual Increments after the re-fixation of Pay giving progressive pay from the date of appointment i.e., 23-5-1988. The appeal has been based on the following facts, grounds, legal references and provisions of law:--

FACTS:

(1)        That the appellant was appointed as a teacher and he took over charge on 23-5-1988.

(2)        That the appellant was properly given salaries and allowances from 1988 as was admissible under the Fundamental Rule 17 until this time except the annual increments for the years December 88, December 89, December 90 and December 91.

(3)        That the perusal of the Service Book shows that the services of the appellant have been duly verified by the Departmental Officers for the above mentioned years but he was denied annual increments without showing any rule or law from the Fundamental or Supplementary Rules by which the Pay of the appellant is regulated. The Officers of the Education Department, Finance Department and Accountant General fully knew the concept of verification of the Service because they have never verified the Service of person remained on leave without pay or remained absent.

(4)        That the appellant is willing and ready to explain those Rules and laws on which he has based his instant appeal.

(5)        That the concerned departments like the Education Department, Finance Department and Accountant General have acted partly on Rules when the appellant was given Pay and Allowances and partly acted arbitrarily and against Constitution of Pakistan 1973, Civil Servants Act 1973 and the Fundamental Rules when he was denied Annual Increments during his pay fixation by the Education Department and Accountant General.

(6)        That the appellant has been deprived of annual increments at present mainly due to this fact that his service has not been counted for the Annual Increments and in future for the pension.

ON GROUNDS:

(1)        That the contractual relation in this case of Employer and Employee i.e., Government and Government Servant is regulated by the Constitution of the Islamic Republic of Pakistan 1973, the Civil Servants Act, 1973 and the Fundamental Rules enacted in 1922 and adopted by the Government of Pakistan under the Government of India Act, 1935.

(2)        That the Government has committed fraud on the untrained teachers by denying them Annual Increments.

(3)         That the Article 25 of the Constitution of Pakistan has provided that every citizen shall be treated according to the law.

(4)         That according to the Article 24 of the Constitution property rights has been guaranteed. Property has been defined in Article 260 (1) �Property� includes any right, title or interest in property, movable or immovable, and any means and instruments of production.  

(5)        Article 240 of the Constitution of Islamic Republic of Pakistan, 1973. Subject to the Constitution, the appointments to and the conditions of service of persons in the service of Pakistan shall be determined;-

(a)        in the case of the services of the Federation,

posts in connection with the affairs of the

Federation and All-Pakistan Services, by or under

Act of Majlis-e-Shoora (Parliament): and

(b)        in the case of the services of a Province and posts

in connection with the affairs of a Province, by or

under Act of the Provincial Assembly.

Explanation:- In this Article, "All-Pakistan Service"

means a service common to the Federation and the

Provinces, which was in existence immediately before the

commencing day or which may be created by Act of Majlis-e-

Shoora (Parliament).

(6)        Article 241. Until the appropriate Legislature makes a law under Article 240, all rules and orders in force immediately before the commencing day shall, so far as consistent with the provisions of the Constitution, continue in force and may be amended from time to time by the Federal Government or as the case may be, the Provincial Government.

(7)        NWFP Civil Servants Acts, 1973. (N.W.F.P. Act No. XVIII of 1973)

An Act to regulate the appointment of persons to, and the terms and conditions of service of persons in, the service of the North West Frontier Province.

(8)        Section 17. Pay:- A civil servant appointed to a post shall be entitled, in accordance with the rules, to the pay sanctioned for such post: Provided that, when the appointment is made on a current-charge basis or by way of additional charge, his pay shall be fixed in the prescribed manner: Provided further that where a civil servant has, under an order which is later set aside, been dismissed or removed from service or reduced in rank, he shall, on the setting aside of such order, be entitled to such arrears of pay as the authority setting aside such order may determine.

(9)        That the concept of Back Benefits should be seen in light of the Fundamental Rules. The whole case revolves round one point and that is duty of an untrained teacher. The clarification of the concept of duty in light of the Fundamental Rules is necessary.

            Fundamental Rule 17 (1) says, �an officer shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date when he assumes the duties of that post and shall cease to draw as soon as he ceases to discharge those duties�.

Duty has been defined under Fundamental Rule 9(6)(a)(i), �Service as a probationer or apprentice provided that such service is followed by confirmation�.

(10)      If deeply analysed, the service verification is actually the declaration and affirmation on the part of the departmental officer to the effect that the teacher has rendered the service satisfactorily.

(11)      That the Fundamental Rule 24 says, �an increment shall ordinarily be drawn as a matter of course unless it is withheld. An increment may be withheld from a Government servant by a local Government, or by any authority to whom the local Government may delegate this power under Rule 6, if his conduct has not been good or his work has not been satisfactory. In ordering the withholding of an increment, the withholding authority shall state the period for which it is withheld, and whether the postponement shall have the effect of postponing future increments�.

            (12)      This rule has given only two grounds under which the increment can be stopped,

                                    (i)         if his conduct has not been good;

                                    (ii)        if his work has not been satisfactory.

The above has not provided that the untrained teacher should not be given annual increment despite good conduct and satisfactory work and despite verifying his services.

(13)      �Fundamental Rule 26 (a) says that all duty in a post on a time-scale counts for increments in that time-scale�.

It is has not provided that the duty of an untrained teacher is not counted for increments despite on a time-scale.

Audit Instruction (5) to F.R. 26: �If a probationer is confirmed at the end of a period of probation exceeding twelve months, he is entitled to claim retrospectively the increments which, but for his probation, he would have received in the ordinary course�.

(14)      Fundamental Rule 54 says, �that when the suspension of a Government servant is held to have been unjustifiable or not wholly justifiable; or

When a Government servant who has been dismissed, removed or suspended is reinstated, the revising or appellate authority may grant to him for the period of his absence from duty�

(a)        if he is honourably acquitted, the full pay to which he would have been entitled if he had not been dismissed, removed or suspended and, by an order to be separately recorded, any allowance of which he was in receipt prior to his dismissal, removal or suspension,

(b)       if otherwise, such proportion of such pay and allowances as the revising or appellate authority may prescribe.

In a case falling under clause (a), the period of absence from duty will be treated as a period on duty.

In a case falling under clause (b), it will not be treated as a period spent on duty unless the revising or appellate authority so direct.

Similarly, extraordinary leave granted under Fundamental Rule 85(a) is not counted for annual increments.

Cases decided in relation to Pay

Pay:     The expression �pay� used in Section 17 of the Civil Servants Act, 1973 means �pay� in time-scale as defined in F.R. 9(31)(a) which raises by periodical increments from minimum to maximum. The civil servant of Grade 19 was appointed to officiate against Grade 20 post and shouldering full responsibilities thereof. He was allowed pay in Grade 20 at minimum stage or at the stage to be fixed with reference to substantive pay in Grade 19 but without benefit of increment. Such action was supported on ground that promotion to Grade 20 was not yet made and pay could be restricted under F.R. 35. The contentions were rejected. F.R. 35, in circumstances of the case was held inconsistent with Section 17. The appellant Dy. Chief Operating Supdt, H.O. Office in circumstances was entitled to pay including periodical increments in Grade 20. [1984 PLC (CS) 398].

                        Salary is not bounty of State. [1975 PLC (C.S.T) 90].

Withholding of increment: According to the case of [1984 PLC (CS) 21], the annual Increment of a WAPDA servant was withheld due to failure to pass promotional examination; Held, that depriving an official of his due remuneration when he was doing his work whole time was devoid of any legal basis.

Arrears of pay or other benefits, entitlement to: Civil servant, who for no fault of his own, was wrongly prevented from rendering services to the State in higher post to which he was admittedly entitled and whose seniority subsequently was restored, should have been given salary of higher post and should not have been denied benefit of arrears of pay and increments for the period he would have been entitled to consideration for promotion and earned promotion as claimed by him. [1985 SCMR 1394 and PLD 1973 Lah. 56 ref. 1993 (c.s.) 1057].

Right to pay accrued cannot be denied: Recovery of arrears of salary by a Government servant is an enforceable legal right. Where civil Court has held discharge of a civil servant from service to be void and operative, such civil servant cannot be denied arrears due to him for the period he was wrongly kept out of service. [PLD 1979 Kar. 56].

The above whole narration and citations of the authorities shows that the untrained teachers are entitled to Back Benefits as they have been fraudulently kept away from their rights unlawfully, arbitrarily and without any reason or guilt.

(15)      That the Supreme Court of Pakistan (1976 SCMR, 297) had clarified this matter of Untrained Teachers 32 years ago that �there is no rule for the distinction between the trained and untrained teachers in relation to Pay.�  What occurred subsequently that they were discriminated and deprived of their right which has been guaranteed by the Constitution of Pakistan 1973? Why the Constitution is not considered in their case? Whether new rules have been framed? (The appellant is not aware of any such rules to the contrary). The Supreme Court can only interpret the law and apply it to the cases and cannot make new rules for the parties during litigation for the adjudication of their rights. The Supreme Court can decide cases according to the rules or laws prevalent in the Country and cannot decide any case when the rules are not present. Judgments are given in light of the available rules and laws, not in their absence.

(16)      That in the presence of the Constitution and the Fundamental Rules, a teacher cannot be treated arbitrarily either by the Government Departments or the Supreme Court whose service is verified by his officers. In nut shell, every act either of the Government Department or of the Government Servant is regulated by the Rules. Admissibility or inadmissibility of any thing is controlled and regulated by the Rules and before deciding any thing, a particular rule or Rules are cited for the rights of the parties in the litigation and Judgment. It is totally an unjustifiable conduct of the concerned Departments that Pay and Allowances are given under the Rules while annual increments and Pension are denied without Rules. Whether annual increments and Pension are not regulated by the Rules?

(17)      That the appellant has been paid salaries and allowances but not annual increments and in future he shall not be paid full pension according to the length of the service as is clear from the cases of other teachers who have been retired and who have been deprived in the past from the benefit of annual increments despite having verified service.. It is similar to the person who acknowledges the ownership of another person of the movable or immovable property but is refusing to deliver the possession and benefits of the property to the real owner. It is also similar to a case when an accused is acquitted by the Court but does not order for the release of the acquitted person from jail.

(18)      That the appellant has the right to ask from the concerned departments that under which rules the Pay and allowances were paid and under which rules his annual increments were denied and in future less Pension would be given due to non-counting of the verified service for the calculation of the pension.

(19)      That the Courts are bound to follow the rules in their judgments while deciding cases whether it be the Service Tribunal or the Supreme Court. When there is no rule or law to the contrary then it is presumed that the untrained teachers are as much entitled to the annual increments as much the trained teachers. When the concerned Departments or the Supreme Court is of the view that the untrained teachers are not entitled to the annual increments or their service cannot be counted towards pension which rule or law they put forward in support of their opinion or judgment? When the Legislature has not discriminated them then what Authority is Supreme from the Legislature which is warranting the discrimination among the Trained and Untrained Teachers in relation to Pay and is also warranting the deprivation of the teachers from their right which has been guaranteed by the Constitution. It is the bad luck of the people of our Country that they treated against the wishes of the Legislature and Laws.  Neither the Provincial Assembly nor the Parliament has enacted any such law or rule which may give authority or force to deprive the untrained Teachers from their rights.

(20)      Stoppage of annual increments is one of the minor penalties under the Efficiency and Discipline Rules, 1973. The untrained status of a teacher is no ground for his punishment in shape of stopping of annual increments. Rules say that �When a person performed duty on a post for six months in a year, he is entitled to annual increment on the 1^st December of that year�. Finance Department is a department of the State and is bound to issue Notifications, Circulars etc. in conformity of the Rules and not against it. The Finance Department is neither Rule-Making Authority nor Rule-Interpreting Authority. It is just Rule-Notifying Authority in the sense that it shall forward the �Will� of the Rule-making Authority. It shall show the rule before giving or taking any right to a Government Servant. In absence of such conduct, it will be inferred that it has assumed the Authority of Provincial Assembly by imposing its own laws on the Government Servants.

(20)      That on every ground the appellant is entitled for the untrained service to be counted both for the annual increments as well as for the full Pension along with the arrears since the date of his appointment. The appellant is ready to explain the legal position of an untrained teacher in relation to pay if the Education Department is willing to have a discussion on this point. The point of �Back Benefits� shall be cleared to everyone in light of the prevalent rules. When a dismissed person can be reinstated by either the Government or the Court with back benefits then what rule or authority hinders the way of the Government when deciding the case of the untrained teachers? It is a great an injustice with the untrained teachers that first they were kept deprived of their rights from the date of appointment and then they are given less pension by not counting their untrained service. They have been fraudulently kept deprived of their rights by arguing that the untrained is not entitled to annual increments and full pension without showing him the exact rule on the point. The helpless teachers having no knowledge of laws and rules and fully dependent on the mercy of their departmental officers accepted the fraudulent assertion of their officers and remained silent on the usurpation of their rights. Any action contrary to this Appeal shall be challenged up to the Supreme Court of Pakistan for a proper a verdict based on the existing rules and the Constitutional laws.

Prayer:

It is, therefore, prayed that the Appeal of the Appellant may please be accepted and the concerned officers may please be directed to re-fix the pay of the appellant retrospectively i.e., from the date of his appointment, giving him all the denied annual increments along with the arrears of increments since 1^st December 1988 by counting the verified service along with his rest of the service.

            Dated: Friday, 27 March 2009.

Thanks.

Yours Obediently,

Manzoor Ahmad

B.Sc; L.L.B. M.A. Political Science

Mobile: 03459503142

Email: manzoorahmadjalalmallb@hotmail.com

Address of residence: Marghuz Balar Khel, Tehsil and District Swabi.

PST Government Primary School No. 3 Kotha,

Tehsil Topi, District Swabi.

Copies for the information and action forwarded to

1.                  The Chief Minister, Government of NWFP, Peshawar.

2.                  The Minister of Education, Government of NWFP, Peshawar.

3.                  The Secretary of Education Department, Government of NWFP, Peshawar.

4.                  The Secretary of Finance Department, Government NWFP, Peshawar.

Thanks.

Yours Obediently,

Manzoor Ahmad

PST Government Primary School No. 3 Kotha, Tehsil and District Swabi.

[The NWFP Chief Minister Ameer Haider Khan Hoti has, on the analogy of the government of Punjab, approved the grant of one special advance increment to the upgraded clerical employees and employees in BPS-1 to 4 moved one scale up in the pay scale.

The decision will be effective from 1st September, 2007 and the special increment will be paid to the concerned employees during the next financial year. A total sum of Rs. 7.388 million will be paid to 69572 employees of the provincial government under the decision.

It may be mentioned here that the government of Punjab has  allowed one special advance increment to junior clerks, senior clerks, assistants and head clerks in their upgraded scales as well as to the employees in BPS-1 to BPS-4 in their moved up scales with effect from 1/9/2007. (Downloaded from www.nwfp.gov.pk/ on 2-4-2009)].

            Different parameters have been used by the Government of NWFP, for the treatment with Clerks and Teachers. Awarding of Special advance increment to clerical employees is a favour of the Government with them. In case of teachers, first they were kept deprived of the annual increment for decades and now when they have been given annual increments, the arrears have been denied. There is a difference between Special advance increment and annual increment. Special increment is a favour of the Government while the annual increment is the right of the teacher. The clerks were not entitled to special advance increment on 1^st September but the teachers were entitled to annual increments on the date when the award of increment was due on the 1^st December of a year subject to six months service. Award of annual increment is supported by the Rules while special increment has been awarded to the clerks on the analogy of the Government of Punjab and not under any rules. It means that the Government has no regard to the rules, laws but has enough regard to imitate others in favouring others.

            Judgment is left to the Service Tribunal and the Supreme Court of Pakistan.

Manzoor Ahmad Yousafzai