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Bravo Teachers and other Government Servants in NWFP, I solute to your patience.
This article is in the response of a news report about the non-payment of salaries since January 2010 to Public Prosecutors in the Sindh Province who went to the extent of boycotting the Court’s proceedings. In NWFP, the Teachers were denied their rights but they performed their duty but the Government did not appreciate their performance. First they were denied annual increments and now they denied the “Back Benefits†of the untrained service. Today I want to show my readers that information which is related to my judicial struggle not only for my rights but also for the rights of other Teachers and Government servants. The Tribunal remanded my case to the department and I have written an application for the implementation of the Remand Judgments which is as under. I need the suggestions of the legal experts and others on the email: manzoorahmadjalalmallb@hotmail.com
Mobile: 03459503142.
To
The Secretary of Elementary and Secondary Education,
Government of NWFP, Peshawar.
Subject: Application for Implementation of Remand Judgment of the Service Tribunal NWFP in Appeal No. 1072/09.
Through Proper Channel,
Respected Sir,
1. That the Applicant/Appellant had submitted an appeal to the Service Tribunal for,
(1) Graded Pay since 23-5-1988 and arrears for the annual increments since 1-12-1988;
(2) 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 Court;
(3) Granting of Premature increments in Move-overs from BPS-7 to BPS-8 on 1-12-1999 and from BPS-8 to BPS-9 on 1-12-2000 and arrears thereof;
(4) Granting of one premature increment in up-gradation/promotion from BPS-7 to BPS-12 since 1-10-2007 and its arrears;
2. That the Tribunal summoned the 7 respondents mentioned in the Appeal and gave sufficient opportunity to them to present their point of view for the denial of the rights of the Appellant.
3. That on 12-1-2010, the Tribunal calmly and sympathetically heard arguments in detail from both sides.
4. That the Applicant/Appellant presented his case without the assistance of any Counsel and supported his contention in light of Rules and Judgments of the Superior Courts in the following manner:-
1. Graded Pay. The Applicant/Appellant showed Tribunal the following rules.
(i) F.R. 17 (ii) F.R. 9(6)(a)(i) (iii) F.R. 24.
The applicant also showed the following Judgments.
Judgments:-
(i) 1976 SCMR 297—No rule for the distinction between the trained and untrained teachers in relation to Pay.
(ii) 1975 PLC (C.S.T) 90—Salary is not bounty of State.
(iii) 1984 PLC (CS) 21—Withholding of Increment. Held, that depriving an official of his due remuneration when he was doing his work whole time has devoid of any legal basis.
2. Declaring the Second para of the Notification…….as Void Ab Initio, Illegal and Arbitrary for being repugnant……………
The Applicant/Appellant showed to the Tribunal F.R. 54 which entitles a person to the “Back Benefits†when he is honourably acquitted.
Arguments:- The F.R. 54 entitled the illegally dismissed person to pay and allowances for the period he remained out of duty. The period of absence from duty is treated as a period on duty with full “back-benefitsâ€. But in the instant case the Civil Servant has performed his duty satisfactorily and was neither given annual increments at the outset nor specifically declared entitled to the arrears of the increments in the Notification dated 30-3-2009. Instead he was deprived from the right of pay for the duty he performed. The Finance Department committed fraud with the Teachers including the Applicant/Appellant and then admitted the fraud but still denied the back benefits fraudulently.
Judgments:-
The Applicant/Appellant showed to the Tribunal Judgments of the Superior Courts about Arrears of Pay and other benefits.
(i) 1985 SCMR 1394:-
(a) Constitution of Pakistan (1973)—Art. 212 (3)—Leave granted to examine whether after granting pro forma promotion to appellant, he was not wrongfully denied pay for period of pro forma promotion and whether Service Tribunal had not correctly decided his entitlement to arrears of pay for that period.
(b) Balochistan Civil Services Act (IX of 1974)—Ss 9 & 17-Civil service—Fundamental Rule 17—Pro forma promotion—Arrears of pay—Entitlement for—Appellant subjected to disciplinary proceedings resulting in punishment—Successfully challenged in Civil Court—Restored to office, awarded pro forma promotion but denied arrears of pay under provision of Fundamental Rule 17—Order impugned—Held, Fact of pro forma promotion itself implies recognition of entitlement to be promoted from a date in past-civil servant, who for no fault of his own is wrongfully prevented from rendering service to State in higher post to which he is admitted entitled, should be given salary for higher post. Appellant, Held, was entitled to salary in spite of provision of Fundamental Rule—17—(Civil Service).
Arguments:-
The Applicant/Appellant read out the above judgment to the Tribunal and explained that the facts of judgment and this case are identical. In Balochistan, the Civil Servant was given pro forma promotion but was denied the arrears of pay and in the instant case the Applicant/Appellant was declared entitled to the annual increments from the date of appointment but was not given arrears. In Balochistan, the civil servant had been prevented from service on higher post and was given all the back benefits by the Supreme Court while in this appeal, the appellant was allowed to serve but was denied back benefits!
(ii) PLD 1979 Kar. 56:-
Right to pay accrued cannot be denied—Salary—pay of arrears—Civil Court holding discharge of civil servant from service to be void and inoperative—such civil servant cannot be denied arrears due to his for period he was wrongly kept out of service—Recovery of arrears of salary by a Government servant—Held, an enforceable legal right. [In this judgment the Court relied on the PLD 1970 SC 415; 1969 SCMR 695 and PLD 1973 SC 589].
(iii) 2009 PLC (C.S) 302 [Karachi High Court].
After reinstatement of petitioner in service, awarding him “all back-benefits†he was also entitled to be considered for promotion………Petitioner was allowed pro forma promotion as per his entitlement with all consequential benefits.
(iv) Government of NWFP, Establishment Deptt; No. SOS. POOL (E&AD) 1-10/2002 Dated 23-08-2006.
This letter is in the Notice of the Secretary of Finance Department. In this letter, it has been pointed out that 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. as held in 1999 PLC (CS) 485.
Kalimullah Khan Baloch, Section officer (S. Pool) has invited the attention of the Secretary Finance among others to Article 189 read with Article 190 of the Constitution whereunder the decision of Supreme Court of Pakistan is binding on all other Courts and the Executive alike. All Judicial and Executive authorities throughout Pakistan are required to act in aid of august Court.
3. Granting of Premature increment in Move-overs from BPS-7 to BPS-8 on 1-12-1999 and from BPS-8 to BPS-9 on 1-12-2000 and arrears thereof;
(i) Rule 7 of the NWFP, Civil Services Pay Revision Rules, 1978-Increments in the Revised National Pay Scales.
(ii) Rule 8—Admissibility of next higher Revised National Pay Scale-
Arguments:-
Move-over is not given as a matter of course but after considering the suitability of the civil servant which amounts to his selection on “Seniority-cum-fitness†basis and this selection is made on the basis of four (4) Annual Confidential Reports without any Adverse Entry as enjoined by Rule 8. It is clear from the above that this move-over/promotion is not given in the vacuum on hypothesis but on concrete four (4) ACRs having no adverse entry which is as well required for the promotion in any other case like from post of higher pay scale. When the procedure for the promotion from the lower pay scale post to a higher pay scale post is same/identical then on which ground the respondents do not awards premature increment in move-over?
It is also necessary to be kept in mind that Rule 7 entitles a person to annual increment who remains on a certain pay scale for six months while here the person remains for one year and earns four (4) good reports but is still deprived of the annual/premature increment!
(iii) Rule 9--Fixation of pay on transfer from lower scale to a higher scale.
(iv) Rule 10—Fixation of pay on promotion.
(1) Subject to the provisions of rule 11—
(i) Where a civil servant is promoted from a lower to a higher post in Revised National Pay Scales 2 to 19 where the stage in the Revised National Pay Scale of higher post, next above the pay of the civil servant concerned in the pay scale of lower post, gives a pay increase equal to or less than a full increment of the Pay Scale of the higher post, the initial pay in the Revised National pay scale of the higher post shall be fixed after allowing a premature increment in the Revised National pay scale of the higher post.
Judgments:-
(i) 1984 PLC 1620—[Lahore High Court].
(a) Payment of Wages Act (IV) of 1936)—
Ss. 15 & 17 and Provisional Constitutional Order (1 of 1981), Art. 9—Promotion—Railway employee—Placed in higher Grade—Cannot be said to have not been promoted—Plea of Railway that employees not promoted but only placed in higher Grade not entitled to claim benefit of fixation of pay in higher Grade according to principles prescribed by Notification dated 22nd June, 1972 for fixation of pay on promotion to Higher Grade—Rejected—Order of Authority/Appellate Court under S. 15 or S.17 of payment of Wages Act, 1936 allowing application claiming payment of illegal deduction of wages as admissible on being placed in higher Grade challenged in Constitutional petition—Impugned order upheld by High Court.
(ii) 1991 SCMR 696—
(a) Constitution of Pakistan (1973)—
--Art. 212(3)—Leave to appeal was granted in order to examine the correctness of the view taken by Service Tribunal with regard to the grant of enhanced scale of pay in the basic scales of pay to officers who had fixed percentage of posts of the same category in the higher scale of pay.
(b) Punjab Civil Servants (Change in Nomenclature of Services and Abolition of Classes) Rules, 1974—
--R. 2(e)—Change of grade or scale of pay for the better would amount to promotion.
(c) Punjab Civil Servants Pay Revision Rules, 1973—
--R. 9—Change of scale is promotion.
(d) Punjab Civil Servants Pay Revision Rules, 1977—
--R. 8(3)—Rule is a substantive rule and would have no retrospective application.
(e) Civil Service—
--Change of grade or post—Effect—Whenever there is a change of grade or post for the better, there is a element of selection involved that is promotion and it is not earned automatically, but under an order of the competent Authority to be passed after the consideration on the comparative suitability and the entitlement of those incumbents.
(iii) PLD 1993 Supreme Court 187.
(a) Civil Service—Promotion—Change of grade to higher pay scale amounts to promotion.
In this Judgment, Muhammad Afzal Zullah, CJ, stated “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 amounts 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 Government of the Punjab v. Mohammad Awais Shahid 1991 SCMR 696.
(iv) Wafaqi Mohtasib (Ombudsman’s) Secretariat Islamabad.
Case No. Reg. H/16183/97-202.
Subject: Delay in grant of premature increment on his getting move-over.
Dated: 26-5-1998.
In this Judgment Justice (R) Abdul shakurul Salam states “The complainant was “brought to the next higher grant†commonly called, granted “move-overâ€. He was not allowed premature increment. Hence, the complaint.
The Ombudsman did not accept the contention of Mr. Mehboob Elahi, Joint Secretary (Regulation), Finance Division that a person who is “brought to the next higher National Scale†or what is commonly called granted “move-over†is not entitled to a premature increment. Premature increment is only allowed when there is a promotion from a lower grade post to a higher grade post.
The Ombudsman relied on the letter of the Accountant General Pakistan Revenue No. 1-73/Vol—XXVII/2341—C, dated 5-5-1992 which states “that it has been decided by the Auditor General’s office that the word ‘promotion’ used in this context will include not only promotion from a lower post to a higher post but also grant of higher pay scale of whatsoever means it may beâ€.
The Ombudsman relied on the following authorities from the Superior Courts.
(1) Judgment of Lahore High Court in Writ Petition No. 223 of 1992.
(2) 1984 PLC 1620.
(3) 1991 SCMR 696.
(4) Mr. Abdul Matin and two others versus NWFP through Chief Secretary PLD 1993 S.C. 187.
4. Up-gradation:-
The arguments for the “Move-over†are also for the “up-gradation†because in this up-gradation only those teacher have been upgraded who fulfilled the condition of 10 years’ service. If it had been the up-gradation of all the teachers then all would have been given BPS-12 which is not the reality. This up-gradation is a “Selection Grade†in disguise on the basis of 10 years’ service.
5. That the Tribunal heard both sides and all of a sudden decided to remand the case to the respondent department. It was necessary for the Tribunal at least to pinpoint the flaw/lacuna/reason to the respondent department before remanding the case. It was also necessary for the Tribunal to show the points on which it agreed with the appellant or with the respondents. The Tribunal put the parties on the position on which they were on the first day of the proceedings. In the Civil Court when the District Judge remands the case to the Civil Judge he frames additional issues along with the issues on which the Civil Judge had decided the case and asks him to adduce additional evidence in light of the additional issues and then decide the case. In this case, the Tribunal has left the parties totally unguided and without giving any time-frame to the respondents for the resolution of the matter which is a unique treatment meted out to the appellant. The respondents are at liberty to resolve the matter in decades.
6. That in my opinion, the Tribunal remanded the case only on reason and which has not been mentioned in the remand judgment and that was the non-availability of ‘move-over’ sanction. During the course of the proceeding when the Tribunal asked from the appellant “where is the ‘move-over’ sanctionâ€. The appellant replied that such sanction exists for no one who has been given move-over as a result of re-fixation of pay after the notification of the admissibility of annual increments for the untrained service including the appellant. On this the Tribunal ordered for the remand of the case to the Department. This point was necessary to be pinpointed to the respondent department for giving the move-over sanction promptly for further action.
7. The Judgment of the Tribunal is also unique in the sense that the Finance Department was one of the parties in the appeal and the Tribunal had come to know about the point of view of that department. The appellant expected from the Tribunal a speaking judgment whether it was a final judgment or a remand judgment. The remand judgment lacks clear directions to the respondents what they needed to do in future with this case.
8. The main purpose of this lengthy application was to put before the concerned respondents and other Authorities all the Rulings/Judgments of the August Supreme Court and other Courts on which the Applicant/Appellant had relied before the Tribunal but which have not been mentioned in the Remand Judgment for the reasons best known to the Tribunal. The Applicant/Appellant wants the solution of the matters in light of the Rulings/Judgments of the August Supreme Court.
Dated: Saturday, 06 March 2010.
Yours Obediently,
Manzoor Ahmad
GPS NO. 3 Kotha, District Swabi.
Copies for the information and action
1) The Registrar, Supreme Court of Pakistan, Islamabad.
2) The Registrar, Peshawar High Court, Peshawar.
3) The Chief Secretary, Government of NWFP, Peshawar.
4) The Secretary of Elementary and Secondary Education, Government of NWFP, Peshawar.
5) The Secretary of Finance Department, Government of NWFP, Peshawar.
Yours Obediently,
Manzoor Ahmad
GPS NO. 3 Kotha, District Swabi.
Non-payment of salaries
Public prosecutors boycott court proceedings
Sunday, March 07, 2010
By Jamal Khurshid
Karachi
With Chief Justice Iftikhar Mohammad Chaudhry and other top judges of the country present in the city to review the implementation of the National Judicial Policy, criminal proceedings at the anti-terrorism courts (ATC) in Karachi came to a halt on Saturday after the special public prosecutors (SPP) said that they would be unable to proceed with cases because the government had not paid their salaries since January.
Sources said that 28 cases were fixed for hearing on Saturday. However, all of them had to be adjourned on the request of the SPPs.
On Saturday, special public prosecutors Mubashir Mirza and Mohammad Khan Buriro, who regularly prosecute defendants in terrorism cases in two ATCs in Karachi, expressed their inability to proceed with cases before the ATCs, because they had not received their salaries.
They filed applications before the presiding officers of the ATC, submitting that despite the fact that they had been working regularly, honestly and diligently, their salaries had not been paid since January 2010; no reasons had been given for this either.
They added that their families had reached at the verge of starvation, and so they were mentally disturbed and unable to perform their duties; the quarters concerned were approached several times in this regard, but all in vain.
The SPP also complained that they were not provided with security, despite the fact that they were prosecuting gangsters and hardened criminals from banned militant outfits such as the Tehrik-e-Taliban Pakistan and the Lashkar-e-Jhangvi.
They said that if their grievances were not addressed immediately, they would have no option but to refrain from proceeding with cases pending before the ATCs.
The ATC judges sent a note to the ATC registrar, ordering him to release the salaries of the SPPs, because advocates and litigants would suffer if court proceedings were halted.
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