THE KHYBER PAKHTUNKHWA CESSATION OF PAYMENT OF ARREARS ON ADVANCE INCREMENTS ON HIGHER EDUCATIONAL QUALIFICATION ACT, 2012 IS AN UNCONSTITUTIONAL ACT AND IS LIABLE TO CHALLENGED BEFORE THE PESHAWAR HIGH, PESHAWAR
First of all it is necessary to read the text of the Act which has destroyed all the hopes of the deserved Government Servants including the Teaching community. The text is given below:-
THE KHYBER PAKHTUNKHWA CESSATION OF PAYMENT OF ARREARS ON ADVANCE INCREMENTS ON HIGHER EDUCATIONAL QUALIFICATION BILL, 2012.
to cease the payment of arrears accrued on account of advance increments on higher educational qualification.
WHEREAS advance increments have been granted to certain Provincial Government employees on the basis of acquiring or possessing higher educational qualification over and above the prescribe educational qualification from time to time;
AND WHEREAS the Provincial Government vide Notification No. (PRC)1-1/2001, dated 27.10.2001, had already discontinued the scheme of advance increments on higher educational qualification;
AND WHEREAS due to financial constraints, it is not possible for Provincial Government to pay the claimed and unclaimed arrears accrued from the said increments;
It is hereby enacted as follows:-
1. Short title, application and commencement.___ (1) This Act may be called the Khyber Pakhtunkhwa Cessation of Payment of Arrears on Advance Increments on Higher Educational Qualification Act, 2012.
(2) It shall apply to all the employees of the Provincial Government, who were entitled to received advance increments on higher educational qualification.
(3) It shall come into force at once and shall be deemed to have taken effect on and from 1st day of December, 2001.
2. Cessation of payment of arrears on advance increments on higher educational qualification. ___ (1) Notwithstanding anything contained in any decision, judgment and order of any Tribunal or Court including High Court or Supreme Court of Pakistan, for the purpose of any claim for payment of arrears on account of advance increments on higher educational qualification sanctioned in pursuance of any order, letter, office memoranda, notification, instructions and other instruments issued before 1.12.2001, such orders, letters, office memoranda, notifications, instructions and other instruments shall be deemed to be non-existent, ceased or revoked and no further claim whatsoever on the basis of these instruments shall be entertained and all cases in respect of such claims pending in any Court or Tribunal including High Court and Supreme Court of Pakistan shall stand abated.
(2) Any order made, instruction issued, decision, judgment or order of any Court or Tribunal including a High Court or the Supreme Court, implemented immediately before the commencement of this Act, shall be deemed to have
been validly made, issued and implemented by the date of commencement of this Act, and any amount already paid there-under on account of advance increments or arrears thereof shall be deemed to have been validly paid and shall not be recoverable from the recipient Government employees.
3. Removal of difficulties.___ If any difficult arises, in giving effect to the provisions of this Act, the Provincial Government may make such orders as it may deem just and equitable.
4. Repeal.- The Khyber Pakhtunkhwa Cessation of Payment of Arrears on Advance Increments on Higher Educational Qualification Ordinance, 2012 (Khyber Pakhtunkhwa Ordinance NO. I of 2012), is hereby repealed.
Certified that the Khyber Pakhtunkhwa Cessation of Payment of Arrears on Advance Increments on Higher Educational Qualification Bill, 2012 was passed by the Provincial Assembly in its meeting held on 8th May, 2012.
The said Act of 2012 is against the Articles 2, 4, 8, 24, 25, 190 and 264 of the Constitution of the Islamic Republic of Pakistan, 1973, and shall be challenged before the Peshawar High Court for striking down being against the Constitution.
This Act is an attack not only on the accrued rights of the Government Servants in shape of advance increments and the arrears thereof but also nullifying the Judgments of the Superior Courts of Pakistan, which have decided the applicability of the Khyber Pakhtunkhwa Finance Department Notification dated 11-8-1991 to the Teachers of the Education Department in the years 2007 and 2008.
If this Act was not challenged in the Court, it shall encourage the Government to use the Provincial Assembly in future as a tool to deprive the deserved and eligible persons and there shall be no one even in the elected Assembly to protect the rights of the helpless people as the chosen representatives are indulging in their perks privileges and they have got no soft corner in their heart to redress the grievances of the public as the Government being the Sovereign power has mercilessly violated the spirit of the Constitution by using the genuine power of the Assembly of legislation mala fidely because this is an attempt of the Provincial Government to discourage the people who have got unwavering confidence in the Judicial system being the ultimate hope of common citizen of Pakistan.
It is stated that legislature is supreme but when this supreme legislature passes such a law which is detected even by an ordinary person as Unconstitutional then a bold Judiciary becomes the prime necessity of a helpless person before such a supreme legislature which might have made a law against the Constitution and in derogation of Fundamental Rights of the Citizen.
I am neither a politician nor do politics but when such a situation arises as has arisen in this case then naturally a person shall safeguard his interests which have constitutional validity. I am duty bound to protect the Constitution and rights given therein because if I showed any timidity it shall not only be disastrous for me but also for my future generations. Today I am under democratic tyrants tomorrow my offspring shall be under new tyrants. I am going to set new precedents to the new generation that whenever even an Assembly usurped their rights they can go to the Courts for their rights. The bad luck of our people is that when we are in power we forget everything but when power is snatched then we remember every law, rule etc. Today, I am a Primary School Teacher but tomorrow I shall be a respectful member of the Bar Assocation. My friends in the legal fraternity have started requesting me to join them but I shall join them after clearing everything with the Government of Khyber Pakhtunkhwa. The Government of Khyber Pakhtunkhwa shall not be allowed to make any law which is against the Constitution of Islamic Republic of Pakistan.
When people talk about a rubber-stamp legislature, the meaning becomes clear after the passing of such like Acts because the bill is not brought under such discussion which is necessary before passing of an Act.
The Law Department of the Government of Khyber Pakhtunkhwa is equally responsible for drafting such a bill because Constitutional provisions were not in the minds of the persons who drafted the bill and those who approved it for sending to the Assembly to be a law.
Democracy has brought much happiness only to those who were in the Assemblies or in the Ministries for others it is a dream. The agony of the democracy becomes intense when the elected persons become robbers of the accrued rights of the people under the Constitution of the Country.
The process of democracy should continue because it would enable the people to vote for new people in every new election but courageous Judiciary is indispensable for all the time. It was the Supreme Court of Pakistan which showed the people how the wealth of the nation was looted by the Ministries.
When the Government cannot give more benefits to the people then why snatch those rights which have got permanence and which have been given by the previous Governments.
The black Act has destroyed every Judgment of the Supreme Court of Pakistan, High Court or Tribunal. It has destroyed every Government Notification, order etc relating to the rights of the Government Servants.
I shall request the new Government to put under rigorous trial every person of the present Government whether elected person or high ranking officer to show cause of the rise in the level of the wealth.
No person shall be permitted to say that it is political victimization. PTI Chief Imran Khan is right when he says that big dacoits are holding big posts. I pray for the strength and courage of Imran Khan and also for his coming into power for bringing to book the looters of this Country.
Manzoor Ahmad Yousafzai
Thursday, July 26, 2012