ISLAMABAD – The Supreme Court of Pakistan Thursday set aside the Peshawar High Court (PHC) judgment on the increase of retirement age in Khyber Pakhtunkhawa (KP) from 60 year to 63 years and remanded the matter to the PHC to decide it afresh.
A three-member bench of the apex court headed by Chief Justice of Pakistan Justice Gulzar Ahmed conducted hearing of the KP appeal against the PHC judgment, which declared Khyber Pakhtunkhawa Civil Servant (Amendment) Act 2019 ultra vires.
It was February 19, 2020 when the PHC struck down the amendment in Section 13 of Khyber Pakhtunkhawa Civil Servant Act 1973. The Section 13 of Act states in clause (a) after the word “qualifying service” the word and commas “or attaining the age of fifty-five (55) years whichever is later” shall be inserted and in Clause (b) for the word “Sixty” the word “Sixty-Three (63)” shall be substituted.
Advocate General KP Shamail Butt contended that the reasons given by the PHC in its judgment are contrary to the settled principles. He added that there are no grounds available that the law made by the legislature could be declared ultra vires.
Additional Attorney General for Pakistan Sohail Mehmood supported the KP AG stance. He said that the grounds on the basis, the Act was declared ultra vires are alien to the settled jurisprudence. He said that according to Article 116(5) of Constitution “No Act passed by the provincial assembly can be invalidated on the grounds that some requisite permission has not been obtained before enacting the law.”
The counsels of the KP employees also argued. However, they failed to satisfy the court about the legality. The bench noted that the Khyber Pakhtunkhawa Civil Servant (Amendment) Act 2019 has prospective affect and it will not apply to those who after the promulgation of the Act were not in the service.
The SC order observed that the Civil Servants have vested rights to the Terms and Conditions of their Service. The bench noted that the PHC has not taken into account this aspect, while delivering the judgment. The High Court was, therefore, asked to examine this aspect and pronounce the judgment accordingly.
The KP government against the PHC judgment has raised objections; whether the Provincial Assembly of Khyber Pakhtunkahwa was not competent to legislate regarding the age of superannuation independently? Whether there was enough legitimate competence available with the Provincial Assembly to amend Khyber Pakhtunkhawa Civil Servant Act, 1973 by virtue of Khyber Pakhtunkhawa Civil Servant (Amendment) Act, 2019.
According to the KP government’s appeal, the provincial government had started work on pension reforms since 2016 and the report was also shared with the Federal Government and in response to Federal Government letter dated 11/06/2019, the KP Government went on with its plan of pension reforms by collecting the Pension Data.
It said that most of the civil servants opt to voluntarily retire at the age of 45 years by completing the qualifying services i.e. 25 years while some employees retired on attaining the age of superannuation. Those civil servants who get retirement at an early age get other job opportunities like consultancy by virtue of training and experience gained in government service while receiving pension from government. The appeal said that, therefore, comprehensive groundwork and analysis was carried out before proceeding with the Amendment, the revision of retirement age will result in saving of approximately Rs18 billion per year for three years so as to reduce the pension expenditure and liabilities.
It further said that the provincial government intends that the saving made by it through reforms will be spent on development, health, education and social sectors to generate more employment opportunities to large numbers of its population along-side of general population.
The appeal added that in view of these facts and circumstances the KP government had decided to make necessary Amendment in the Section 13 of Civil Servant Act 1973. In this respect a proper summary was prepared which was placed before the Cabinet for discussion and approval.
It maintained that the cabinet approved it and then a proper bill was presented before the KP Provincial Assembly.