40 Hon'ble Whether taking into account so-called “99% Govt. employees” the Peshawar High Court has not conveniently ignored the rest of the population as Government Servants only forms 2% ofthe entire popalation land by sparing and saving billions from pension money the amounts could have been used in many pro-peer initiatives for the rest of actual 983 of the citizens of Khyber Pakhtunkhwa? Whether the impugned judgment is not wrongly assuming that providing Government jobs to the entire population is a fundamental obligation and correspondingly heving Government jobe for each individual is a fundamental right? Whether the Hon’ble Peshawar High Court has not extended Article 9 t0 indude a right to necassarly have Government provided jobs as @ fundamental right? Whether it is not by now a well-established legal preposition that in case of ‘8 civil servant is aggrieved of even the vires of any rule or law the jurisdiction exclusively vest in the Services Tribunal and not the Hon’ble Peshawar High Court to examine such vires of law ot enforcement of fundamental rights as laid down in LA Shirwani Vs GOP 1991 SCMR 10317 Whether retirement & pension are not related to the term and condition of service which exclusively fall within the jurisdiction of Service Tribunal ‘under Article 212 of the Constitution of Islamic Republic of Pakistan’? Whether the impugned judgment of Peshawar High Court is not without jurisdiction as Article 212 of the Constitution barred the jurisdiction of High ‘Court in matter related to term and condition of the service? Whether the scope of Judicial Review is not seriously misconstrued by the Hon'ble Peshawar High Courtin applying the dicta laid down in SSGL Vs to FOP ete. 2018 SCMR 602 which deals with 2 totally different question land does not remotely relate to question of fixation of age of superannuation?@) 1 was filed and the stance of respondents was strongly denied on 18 as well as on factual aspect. ‘that the Hon'ble Peshawar High Court Peshawar accepted and allowed the writ petition of respondent by striking down the Amendment in section 13 of the Civil Servant Act 1973 as Amended ‘Act (XXX) 2019 vide judgment and order dated 19/02/2020. That the petitioners being aggrieved from the impugned judgment and order of the Hon'ble Peshawar High Court, Peshawar dated 19/02/2020 in Writ Petition No. 5673-P/2019 prefer this petition for leave to appeal before this August Court, ‘That the petitioners seck leave to appeal against the impugned judgment and order of the Hon’ble Peshawar High Court, Peshawar dated 19/02/2020 in Writ Petition No. 5673-P/2019. Itis, therefore, prayed that on acceptance of this petition, leave to appeal against the impugned judgment and order of Hon‘ble Peshawar High Court, Peshawar dated 19/02/2020 in Writ Petition No, 5673-P/2019 may graciously be granted. (Mian Saadullah Jandoli) Advocate-on-Record Supreme Court of Pakistan For Government /Petitioners Learned Advocate General, KPK/ Addl. AG /State Counsel shall appear at the time of hearing of this petition. Office of the Advocate General, KPK, High Court Building, Peshawar, (Telephone No.091-9210119, Fax No,091-9210270) (Certified that no such petition has earlier been filed by Petitioners/ Government against the impugned judgment mentioned above. ‘Advocate-On-Recorddepriving @ popularly acted legislature from its authority to legislate laws for its employees? Whether this premise of the Hon’ble Peshawar High Court to have taken "99% employees” into coniidence is not alien to the concept of representative democracy? Whether the impugned judgment is not passed in total negation of the dicta laid down in LDA Vs Ms. Imrana Tawana 2015 SCMR 739? Whether it is not well established jurisprudence in this country that law ‘only can be questioned for reason of legislative competence or violation of fundamental rights? Whether any malafide can be imputed to the Legislature? Whether a statue can be put to knot merely for presumptive and self- ‘assumed legitimate expectancy? Whether the Hon‘ble Peshawar High Court, Peshawar was justified in ‘supplanting and super imposing its view in matters of pure policy and Idecides for the Government the permissible age of retirement and thus prevail upon a decision of legislature in matter of policy? séther the age of superannuation of 60 years as mentioned in unamended 18 of Khyber Pakhtunkhwa Civil Servant Act, 1973 has not been a ‘of policy which has seen several changes in the past without any from the Judiciary? sr a future legislature can be bound and estopped by any ion of a past legislature? ‘the age of “Sixty years” as retirement age prescribed is un- Jaw, has any constitutional character that no future assembly nge?‘Similarly nature case earlier received ‘was taken up with the Establishment Division Islamabad for their opinion ‘over increasing the age of retirement a preeen c0 yous 10 yous xplanatory reply has ry reply been also been advised that the matter may be placed in IPC/CCI, s0 as to arrive at a decision based on consensus/collective wisdom. ingly, the matter was placed Secretary Khyber Il rise at a time when. be in the last _ needing more | next election. In the on pension | stand retired from that date. Their pensionary the above concise statement which is correct. @ and "HER and for Paieyy thee” the word EE and Ter oe gabettated. The “fifty-eight” may be oul tmenditent oo made would only serve the purpose of few officers, who are on the VerBt Tr retirement by depriving the entire chain of promotion right from top most grade to the bottom, which can even start a tug-of-war between junior and senior employees. It is on record that Geological survey of Pakistan has been assigned with the task of Geological survey in the province, including merged tribal district, which would be completed by the end of 2021 and without waiting for the said survey the impugned enactment seems to be done in hast and without keeping in view the other consequences. It has come to the knowledge of this Court that in the province of Indian Punjab, in order to cope with the unemployment, the retirement age has been reduced to 58 from 60. In view of the above the instant as well as connected writ petitions are allowed by declaring the impugned Khyber Pakhtunkhwa Civil Servants (Amendment) Act 2019 as ultra vires of the Constitution of Islamic Republic of Pakistan 1973 in terms quoted above. The incumbents who got retired at their actual date of retirement in reference to 60 years would benefits would be calculated till that date; however, under the law of locus poenitentiae the salaries so received thereafter would not be recovered as they have worked during the said (Mian Saadullah Jandoli) ‘Advocate-on-Record ‘Supreme Court of Pakistan For Government/ Petitioners@ Whether a summary for the Hon'ble Chief Minister or Cabinet can take precedence over the legislation itself and the collective wisdom of the Legislature? 9, Whether the Khyber Pakhtunkhwa Rules of Business 1985 framed under Article 139(iii) of the Constitution for executive function business of the Government would also eclipse and regulate the functions and powers of the Legislature? 10, Whether opinions of different Secretaries or Chief Secretary during the process of the summary can override the will of legislature in a democratic dispensation when Constitution clearly propounds “Parliamentary Supremacy” as cardinal principle of our Constitution? 1. Whether the Provincial Assembly is not regulated by its own Rules of Procedure formulated under Article 67 r/w Article 127 of the Constitution? 22. Whether the impugned judgment has not trespassed into the fundamental principles of tracheotomy of powers among three pillars of state? 13, Whether it is not a constitutionally mandated ber for the Courts to not look into and call into questions any proceedings conducted in the National or Provincial Assemblies during the process of legislation in terms of Article 69 ~ read with Article 127 of the Constitution? 14, _ Whether was there any justification available for the Court to ignore Clause (@jof Article 116 which clearly mandates that no Act of Provincial Assembly and no provision of any such Act shall be invalid by reason only that some recommendations, previous sanctions or consents required by the ‘Constitution not given if that Act is assented to in accordance with Constitution? 15. Whether the Hon'ble Peshawar High Court did not err in ignoring the mandate under Article 69 read with Article 127 of the Constitution assuming certain non- existing or presumptive at best errors or irregularitiesy qualifying service of twenty-five(25) hence, the instant writ | petitions. |The Government of | Khyber Pakhtunkhwa however, introduced the limPugred amendment commonly known as (Khyber Pakhtunkhwa, Civil’ Servant (Amendment) Act, 2019 by amending section 13 of the Khyber Pakhtunkhwa, Civil Servant Ac, 1973, in the manner as (a) in clause (@) after the words “qualifying service”, the words and commas “or attaining the age of fifty-five years, whichever is later,” shall be inserted; and (b) in clause (b) for the word “sixtieth” the words “sixty-three” shall be substituted. Record is suggestive that without complying with the rules of business while violating rule-8, 1b rules-9, 11 & 15 specially, summary for Chief Minister on the subject amendment in Khyber Pakhtunkhwa, Civil Servants Act, 1973 revision of Superannuation Age from 60 to 63, was prepared on 08/04/2019 vide Para 15, Secretary Law, observed “the instant case has been examined. Law Department is of the view that the subject matter pertains to Establishment Department and as such amendment in the Khyber Pakhtunkhwa, civil Servants Act, 1973, comes. under the Administrative purview of the establishment Department and Establishment Department if agreed with the proposal of Finance Department may initiated necessary amendments in the act ibid, for vetting of law Department”. Thereafter the matter went to | [eiivement and ensure approximi 19 observed which reads “2 Secretary Establishment who in Para [opposition that te word “fifty-five” for the @ ately Rs.6 billion per year saving by the government of Khyber Pakhtunkhwa, These figures clearly reflect that the Finance Department had illogical calculations because by the end of 3 years ie. at the age of 63, the payment would be made, so the saving per year seems to be stopgap just for 3 years, What about payment of pensionary etc. by the end of 63% year to the present employees as well as belonging to that year, which may create substantial difference ibut the same, has been overlooked. Constitutional petition challenging law/laws relating to civil services/ civil servants to be violative of fundaments rights guarantees under Constitution is always maintainable. In the instant case due to the impugned amendment 99% of the employees in service are affected and many more, possessing the degrees/diplomas/qualifications would be made waiting for a period of three years approximately to get their job, especially in the circumstances when there is no increase in the upper age limit for the fresh recruitees. Moreover, for the purpose of constitutional petition by way of Articles 199 or 184 (3) are ‘one and the same jurisdictions and competent to exercise the vires legislative enactment under judicial review. This Court under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, has the power of judicial review of a legislative instrament/ law enacted by the Parliament and the powers so conferred of judicial review is to examine the constitutional legitimacy of any legislative jinstrument/ law enacted by the Government. The total aim, reflected from the comments of the petitioners and the arguments 30 advanced is to safe sbout rupees 72 to rupees 80 billion in three years and to invest in developmental side whereas the existing developmental [budget of more than 50% has been lapsed and surrendered to the Federal Government due to lack of any major project/scheme in the whereas the enhancing of retiring ‘would also increase the liabilities and the financial burden would be shifted to the next government reflecting malafide as well. Although the acts and actions on the floor of the house cannot be discussed however, it is talk of the day that the impugned bill was passed while the entire opposition and boycotted it, as their two proposed end were not entertained or d. The proposed amendment by the@O IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) CPLA NO. 2020 1. Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar. 2, Speaker Khyber Fakhtunkhwa Provincial Assembly Peshawar through Secretary, Khyber Pakhtunkhwa, Assembly. 3. Secretary to Government of Khyber Pakhtunkhwa, Finance Department, Peshawar. 4. Secretary to Government of Khyber Pakhtunkhwa, Establishment Department, Peshawar. 5. Secretary to Govemment of Khyber Pakhtunkhwa, Law, Parliamentary Affair 6 Human Rights Department, Peshawar. PETITIONERS VERSUS President Peshawar. 1. Malik Zaheer-ud-Din Babar, District Public Prosecutor Prosecution Officer's Welfare Association Khyber Pakhtunkhw: 2. Attig-ur-Rehman Deputy Public Prosecutor Peshawar, General Secretary ‘Prosecution Officers Welfare Association Khyber Pakhtunkhwa, Peshawar. 3, Zafar Abbes Mirza Senior Public Prosecutor presently posted as Law Officer, Advocate General's Office, Peshawar (Respondent No. 3 has been impleaded through CM No. 532-P/2019 vide order dated 14/1172019) ——-RESPONDENTS (CIVIL PETITION FOR LEAVE TO APPEAL UNDER REPUBLIC _OF _ PAKISTAN, _1973__AGAINST _THE NED JUDGMENT / ORDER OF LEARNED WR HIGH. ‘PESHAWAR DATED 19/02/2020 NO. 56 9. ————4. That the matter in dispute impugned in the CPLA is pertaining to Public importance as all those employees who lave crossed the age of supermnuation of 60 years and still perforning their duty are in suspense regarding their future therefore the matter in dispute requires priority to be ‘xed at an early date for hearing to shorten the agonies and difficulties of all tnose employees who have crossed the age of superannuation of 60 years and are now hanged in the air. 5. That the circumstances explained above if this august court is pleased to fix the above noted case in early date for hearing it will reduce the agonies and difficulties of all those employees who are on duty on the strength of impugned amendment in the Civil Seroant Act, 1973. Ibis, therefore, requested that on acceptance of this application the above noted CPLA along-with stay application may kindly be transferred from registry branch to Principal seat at Islamabad for early hearing ient to this August Court. Drawn & Filed by aadullah Jandoli Advocate on Record Supreme Court of Pakistan For Government/ Petitionerst JN IAE SUPREME COURT OF FAKIOLAIN (Appellate Jurisdiction) CMA. NO (2020. IN. CPLA NO. 167-P/2020 Government of Khyber Pakhtunkhwa, through Chief Secretary, Peshawar and others PETITIONERS VERSUS Malik Zaheer-ud-Din Babar & others RESPONDENTS APPLICATION UNDER ORDER-XXXIII-RULE-6 OF THE SUPREME COURT ORDERS & RULES 1980 FOR EARLY HEARING AND TRANSFER OF CPLA NO.167-P/2020, FROM REGISTRY BRANCH OF PESHAWR TO PRINCIPLAL SEAT AT ISLAMABAD RESPECTFULLY SEWETH: 1. That the petitioners have filed the above noted CPLA alongavith stay ication in the Registry Branch at Peshawar of this august Court. fe has yet been fixed in the case for hearing due to non- ich at the Registry Branch at Peshawar. loyee's fate ave attached or involved in the above have alrendy crossed the age of superannuation of 60 years ing their duties on account of impugned antendment in nklnwa Civil Servant Act, 1973 by enhancing the oge of years to 63 years.16. @ Whether the Hon’ble Peshawar High Court in its impugned judgment has viz. express not afforded supremacy to subordinate lagilation vin‘ provisions of the Constitation? Whether while passing the impugned judgment the Hon'ble Peshawar High Court has not totally ignored that the impugned legislation was also supported by a Cabinet decision dated 14/06/2019 as laid down dicta in ‘Mustafa Impex case reported as PLD 2016 SC 808? Whether the distribution of Executive Business amongst departments in terms of Schedule-II of Khyber Pakhtunkhwa Rules of Business, 1985 is 60 critical that it will stripe the Legislature of its authority to pass a law in terms of powers under the Constitution? Whether a mere letter of the Prime Minister can be afforded overriding ‘effect over the Provincial Legislature? decision taken at the Whether any so-called letter for that matter ever level of Prime Minister ean hinder or stop a Provincial Legislature from exercising its authority over a subject squarely falling within their ‘legislature domain? Whether the conduct of Government of Punjab serves as estoppel for Province of Khyber Pakhtunkhwa or its Provircial Assembly not to independently legislate and decide according to its own will and volition especially ina policy matter? ‘Whether the impugned judgment does not seta very dangerous precedent ‘where laws could be struck down merely forthe comments or difference of opinion among various Administrative Secretaries on a summary and whether such a trend would discourage Secretaries from giving their Independent point of view and would not deprive Government to informed decision making based on healthy discussion and critique? dgment will not hinder critical ments?