Finance Department NWFP, Accountant General NWFP and Education Department NWFP should follow the rulings of The Supreme Court of Pakistan

The Learned Judges, Mr. Justice Rana Bhagwandas, ACJ and Mr. Justice Sardar Muhammad Raza Khan in the above stated Judgment in Para 3 have clarified the admissibility of Advance Increments thus “Learned Additional Advocate General attempted to argue that in view of the higher scale granted to Elementary School Teachers in pursuance of the Circular letter dated 7-8-1991, which was personal to them, the petitioners would not be entitled to the incentive of advance increments contemplated by circular letter dated 11-8-1991 but he is unable to cite any principle of law or authority for placing this interpretation. We find that while Circular letter dated 7-8-1991 exclusively deals with scales of pay of school teachers in different categories, Circular letter dated 11-8-1991 provides for the revision of basic pay scales and grant of annual increments and advance increments for all Provincial Civil Servants in NWFP without any exception. Since the teachers or the employees in Education Department have never been expressly or impliedly excluded from the operation of the Circular letter, view taken by the Tribunal being erroneous cannot be sustained at law. In fact, it suffers from clear misconception of law and misconstruction of the Circular letter (Supra)”.

The Government of NWFP Elementary & Secondary Education Department vide No. S.O. (P) E&SE/Adv Inc/7-2/09 Dated Peshawar the 13-05-2009 has endorsed the above stated Judgment of the august Supreme Court of Pakistan and has stated that where the prescribed qualification for a post is Matric, 4 advance increments are admissible to a Government Servant while on acquiring higher qualification of M.A, he is entitle to 6 advance increments. Mr. Arif Jamil, Section Officer has stated in this letter that “on the basis of above judgment a large number of teachers have filed Petitions in various Courts for grant of Advance Increments on the basis of acquiring higher qualification. The learned NWFP Service Tribunal as well as the August Supreme Court of Pakistan have taken a very serious view of non-implementation of above referred Judgment of August Supreme Court of Pakistan and directed that the non-implementation of this judgment is contempt of Court and the officers concerned, who failed to implement the judgment would be considered as guilty of misconduct and such person will also be liable to pay fine from his own pocket.” Next he writes, “ In view of above it is requested that necessary instructions may be issued to the Accountant General concerned for implementation of above referred judgment and award of advance increments to the incumbents whose cases are covered under Finance Department circular dated 11-8-1991.”

            Then Section Officer (Litigation) sent a letter to the Director, Elementary & Secondary Education, NWFP, Peshawar, vide Government of NWFP Elementary & Secondary Education Department NO. SO (LIT) E& SED/ G-MISC:/2009 Dated Peshawar, the 27-06-2009 under the heading GRANT OF ADVANCE INCREMENTS TO VARIOUS CATEGORIES OF TEACHERS IN PURSUANCE OF JUDGMENT OF SUPREME COURT OF PAKISTAN IN CIVIL PETITON NO. CPLA NO. 525/2007 DATED 9-7-2007

            The Section Officer writes, “I am directed to refer to this Department letter No. SO(P) E& SE/ Adv. Increments/2009 dated 13-5-2009 on the subject noted above and to inform that the subject case has been discussed in the meeting held on 25-6-2009 under the Chairmanship of Additional Secretary (Regulation) Finance Department. It was decided that total numbers of beneficiaries and their financial implications which should be provided to Finance Department before 3-7-2009 in order to enable the Department to proceed further in the matter. Next meeting on the subject scheduled to be held on 7-7-2009.

            The requisite information as asked for therein may please be provided within three days positively for onward submission to the Finance Department, Government of NWFP.

            The matter may please be treated as MOST IMMEDIATE.

When I saw this speed of the disposal of matter, I also submitted the following Departmental Appeal for the grant of Advance Increments.

To

                        The Director Elementary and Secondary Education,

                        NWFP, Peshawar.

Subject:         Appeal for awarding 6 Advance Increments on M.A since 1-11-1993 and 1 remaining Advance increment on B.Sc; since 2-4-1992.

                        Through Proper Channel,

Respected Sir,

            The appellant submits the Departmental Appeal on the above cited subject on the basis of following facts and grounds.

ON FACTS:

(1)               That the appellant was a Primary School Teacher in BPS-7 when he got trained Teacher’s Certificate on 2-4-1992.

(2)               That the appellant was already B.A and therefore was awarded 3 Advance Increments since 2-4-1992.

(3)               That the appellant was entitled to 4 advance Increments on higher qualification of B.Sc; according to the NWFP Government circular letter NO.FD (PRC)1-1/88 dated 11-8-1991.

(4)               That the appellant was awarded 3 advance increments instead of 4, four Advance Increments and thus the appellant is at loss of 1 advance increment since 2-4-1992.

(5)               That the appellant got higher qualification of M.A Political Science on 1-11-1993 but was not awarded 6 advance increments on the basis of the said notification/circular.

(6)               That the Supreme Court of Pakistan in its Judgment dated 9-07-2007 passed in CP# 525-P/2007 has declared the applicability of the Finance Department Circular No. PRC/1-1/88 dated 11-8-1991 to the School Teachers as well.

(7)               That the Learned Judges, Mr. Justice Rana Bhagwandas, ACJ and Mr. Justice Sardar Muhammad Raza Khan in the said Judgment in Para 3 have clarified the admissibility of Advance Increments thus “Learned Additional Advocate General attempted to argue that in view of the higher scale granted to Elementary School Teachers in pursuance of the Circular letter dated 7-8-1991, which was personal to them, the petitioners would not be entitled to the incentive of advance increments contemplated by circular letter dated 11-8-1991 but he is unable to cite any principle of law or authority for placing this interpretation. We find that while Circular letter dated 7-8-1991 exclusively deals with scales of pay of school teachers in different categories, Circular letter dated 11-8-1991 provides for the revision of basic pay scales and grant of annual increments and advance increments for all Provincial Civil Servants in NWFP without any exception. Since the teachers or the employees in Education Department have never been expressly or impliedly excluded from the operation of the Circular letter, view taken by the Tribunal being erroneous cannot be sustained at law. In fact, it suffers from clear misconception of law and misconstruction of the Circular letter (Supra)”.

(8)               That the Government of NWFP Elementary & Secondary Education Department vide No. S.O. (P) E&SE/Adv Inc/7-2/09 Dated Peshawar the 13-05-2009 has endorsed the above stated Judgment of the august Supreme Court of Pakistan and has stated that where the prescribed qualification for a post is Matric, 4 advance increments are admissible to a Government Servant while on acquiring higher qualification of M.A, he is entitle to 6 advance increments. Copies of this letter have been sent all concerned.

ON GROUNDS:

(1)               That the appellant was entitled to 4 advance increments instead of 3 as per Circular No. F.D. PRC/1-1/88 dated 11-8-1991 and now is entitled to 1 advance increment since 2-4-1992 and its arrears thereof.

(2)               That the appellant acquired higher qualification of M.A on 1-11-1993 and is entitled to 6 advance increments since 1-11-1993 and the arrears thereof.

(3)               That according to the numerous Judgments of the Supreme Court of Pakistan that when a person is declared entitled to a certain right in the past, he cannot be deprived of the Back Benefits/Arrears due to re-fixation of pay.

(4)               That the appellant is entitled to 1 left over advance increment of B.Sc; and 6 advance increments of M.A. thus total of 7 Advance Increments in light of this Judgment of the Supreme Court of Pakistan. (copy of Judgment is attached).

Prayer:

            It is, therefore, prayed that the appeal of the appellant may please be accepted as the matter has already been decided by the Supreme Court of Pakistan to avoid further litigation on this matter.

                        Thanks.

Dated: Saturday, 31 October 2009.

Yours Obediently,

Manzoor Ahmad PST

GPS NO. 3 Kotha, Tehsil Topi, District Swabi.

Copies in advance for the information to

(1)               The Secretary of Education, Govt; of NWFP, Peshawar.

(2)               The Secretary of Finance Department, Govt; of NWFP, Peshawar.

(3)               The Accountant General, NWFP, Peshawar.

(4)               The Section Officer (Litigation), E&SED, Government of NWFP.

(5)               The Executive District Officer, (E&S) Education, District Swabi.

(6)               The District Accounts Officer, District Swabi.

Thanks.

Yours Obediently,

Manzoor Ahmad PST

GPS NO. 3 Kotha, Tehsil Topi, District Swabi.

The purpose of the above narration was just to show the high ups both of the Provincial capital and Federal capital that how the Judgments of the Supreme Court are implemented in letter and spirit, how the Teachers and other low graded civil employees are compelled to seek the remedy of their grievances in the Courts, how much time is wasted in writing letters among the officers of various Offices. Two years have passed on the passing of this Judgment but the beneficiaries of the Judgment are yet to reap the fruit of their struggle. Who is responsible? One officer pushes the matter to the other and the time is unnecessarily wasted because no one can say anything to the officers because they have all kinds of powers.

It was this reason that recently, I have instituted a Service Appeal in the Service Tribunal NWFP in which I have impleaded Finance Department and Accountant General, District Accounts Officer, Swabi in addition to my Education Department so that no department may delay the implantation of the Judgment if the Service Tribunal accepted my Appeal. The appeal is for, apart from other matters, for declaring the second para of the Notification NO. FD (PRC) 5-2/2002 Dated Peshawar, the 30-3-2009 i.e. “No arrears shall, however, be admissible / payable prior to the date of issuance of this circular” as void ab initio, illegal and arbitrary for being repugnant to the facts, Rules and Judgments of the Superior Courts.” There are numerous Judgments of the Supreme Court that when a person is declared entitled to a certain right, then he cannot be deprived of the Back Benefits. The term “benefits” means all facilities, rights and other benefits arising out of service in a department that would include salary, fixation of pay, seniority, promotion, earned leave etc. (Government of NWFP Establishment Deptt: NO. SOS. POOL (E& AD) 1-10 Dated 23-08-2006). This letter is in the notice of the Finance Department but even this letter has been violated in the case of the Teachers when they were deprived of the Arrears of the salaries. How long we shall go to the Courts to repeat the same facts and get the judgments on those same facts. Much injustice has been done with the employees, particularly with the teachers, by the Finance Department. Depriving a person from the arrears is the denial of his past service as well as the denial of the rulings of the Supreme Court and the Constitutional Articles 189 and 190.

First the Department does not recognize the right of a person when that person goes to the Court and get the remedy of his grievance then due to the intervention of other Departments the matter is made complicated and time spoiling. I think that it is the not the job of the Teacher to go to the Courts for litigation but when he is compelled to do so then how he would devote his attention to his primary job i.e. teaching. I request the Finance Department, Government of NWFP, not to harness the job of the Judiciary to interpret the laws but to follow the Rulings of the Supreme Court promptly and allocate funds for the deserved aggrieved persons and in future do not compel the Government Servants to waste their time and money in the Courts.

When I, being a Primary School Teacher take so much pain in knowing the law of the Country, Rulings of the Supreme Court and other Courts then why the Finance Department, Accountant General and other Departments are so obstinate in not accepting the real position regarding the matters of the Civil Servants. Why the poor Civil Servants compelled to knock the doors of the Courts for their rights on those matter which the Courts have already have decided. If the Finance Department, Accountant General and others do not know the exact position of law then they should refer the matters to the Law Department for recent Rulings of the Supreme Court regarding the matters of the Civil Servants instead of imposing wrong interpretations of Law or compelling them to go the Service Tribunal or Supreme Court time and again.

For example, the Supreme Court gave ruling in 1976 that there is no distinction between trained and untrained teachers in relating to pay on no discoverable principle could they be refused graded pay to their disadvantage by an executive fiat. But it is a fact that this ruling of the Supreme Court was never implemented by the Finance Department, Accountant General and Education Department in NWFP.

Then in 1985, the Supreme Court decided a case in favour of an appellant thus “The effect of promotion is to recognize the fact that the official concerned was entitled to be promoted from a date in the past, that he was wrongfully deprived of it that the wrong must be redressed by giving him pro forma promotion and his due seniority a date in the past. The logical consequence of it is that all the ancillary benefits which follow the ante-dating of the promotion and seniority must be allowed to the official concerned unless, of course, there appears ex officio some justification for denying him such a benefit………..In the circumstances and for the reasons we accept the appeal set aside the judgment of the Service Tribunal and allow the claim of the appellant to arrears of pay from the date of his pro forma promotion as Tehsildar. This Judgment shows that when a person is declared entitled to a right retrospectively then he cannot be denied Back Benefits i.e. arrears of pay etc. There are many Notifications of the Finance Department NWFP, in which violation of the Judgments of the Supreme Court has made deliberately particularly relating to the Teachers. The Finance Department issued a Notification on 27-3-2009 that all the Untrained Teachers are entitled to annual increments from the date of their regular appointment but in the second para of the notification it was provided that they would not be entitled to arrears prior to the date of issuance of the notification. In the subject of the notification it was given that the grant of annual increments is in light of the Judgment of the Supreme Court but it is ironical that no number of the Civil petition or date of the Judgment has been given thus creating doubts in minds of everyone.

Then in 1991 the Supreme Court gave ruling regarding promotion and held that Change of grade or scale of pay for the better would amount to promotion. It means that move-over of the Civil Servants is promotion but so far the Finance Department, Accountant General or other Departments are not ready to accept this reality that move-over is promotion and one pre-mature is allowed in the pay fixation.

Again in 1993, the Supreme Court again declared promotion---Change of grade to higher pay scale. The Supreme Court further said that “The learned counsel for the appellant in Appeal NO. 183-P of 1990 tried to argue that the change of grade to a higher pay scale does not amount to promotion. He wanted to rely on some circular in this behalf. However, when a recent judgment of this Court contrary to his submission was pointed out to him he could not pursue the point any further. It is on the record that the above mentioned Departments have yet to accept this fact that change of scale of pay for better is a promotion.

General Musharraf openly dismissed the Judges and was universally condemned but these Departments of the Government do not accept the rulings of the Judges but are still hidden and immune from any condemnation.

The Supreme Court of Pakistan is requested to ask the general public to show the Supreme Court those Departments which do not follow the rulings in the daily functioning of their Departments, I shall show to the Court these Departments with record that they have never accepted any ruling without putting hindrances to the Teachers.

Manzoor Ahmad Yousafzai

Thursday, November 05, 2009