Govt job is to make laws, courts are to enforce them: CJP

ISLAMABAD: The Supreme Court (SC) on Thursday set aside the verdict of Peshawar High Court (PHC) declaring unconstitutional the Khyber-Pakhtunkhwa (KP) Civil Servant Amendment Act, 2019 that increased the retirement age of the government servants from 60 to 63 years.

A three-member bench of the apex court, headed by Chief Justice Gulzar Ahmed, heard the petition filed by the government of Khyber Pakhtunkhwa (KP) challenging the PHC verdict. The court after hearing to the parties set aside the PHC verdict and remanded back to high court for deciding the matter afresh and on merit.

Chief Justice Gulzar Ahmed, however, observed that the law cannot be ruled wrong on the reservations of some civil servants. The chief justice noted that it is the government’s job to make the law and the court’s job to enforce them. The CJP remarked that the law is made as per the Constitution and not Rules of Business.

The counsel further submitted that summary for the law wasn’t concurred by various departments yet the law is made. Justice Muneeb Akhtar, another member of the bench, observed that anyone who had any objection regarding the proceedings of the assembly should approach the assembly to resolve their complaints. “It is useless to ask where the flour came from when the bread is already cooked”, Justice Muneeb Akhtar added.

Justice Ijazul Ahsan, another member of the bench, observed that the matter came to an end when the bill was signed into law by the governor.

The counsel contended that fundamental rights of the respondents are violated, therefore, Article 9 is violated, hence, the learned high court has rightly struck down the law.

KP Advocate General Shumail Ahmed Butt argued that provincial government is fully empowered to amend the KP Civil Servant Act by virtue of Article 240(b) of the Constitution. “It is the prerogative of each province to have independent and separate laws for its civil service so province was well within its rights to legislate and change the age of retirement from 60 to 63 years”, Butt submitted.

He contended that high court had erred in examining the rationale of the impugned legislation, adding that it had also wrongly cited non-compliance with KP Rules of Business. Rules of Business pertain to executive function of the government and cannot supersede or control legislative powers of the provincial assembly.

Shumail Butt submitted that the employees (respondents) had no locus standi to challenge the law on grounds that they were not heard as there is no requirement of consultation with citizens directly before legislating a law. He further submitted that respondents, being civil servants, are bound to agitate matters relating to terms and conditions before Service Tribunal in view of Art 212.

Mohammad Muazzam Butt, counsel for one of the petitioners, Civil Servants while appearing before the court, contended that due process was not followed and no consultation was made with employees before the legislation was passed. He submitted that government was bound to adhere to procedure provided in rules of business made in terms of Art 139.

Last year in February, a bench of Peshawar High Court (PHC), consisting of Chief Justice Waqar Ahmad Seth (Late) and Justice Mohammad Naeem Anwar had declared unconstitutional the Khyber-Pakhtunkhwa (KP) Civil Servant Amendment Act, 2019.

Some ten petitioners, including lawyer Shabina Noor and people from other walks of life including government servants had moved the learned PHC against the KP Civil Servants (Amendment) Act, 2019, through which the relevant provision of law was amended to increase the retirement age.

Counsels for the petitioners had contended before the high court that instead of creating more posts, the move of the government to increase retirement age of its employees would keep a large number of youth unemployed. They had submitted that under the Civil Servants Act, 1973, the federal and provincial governments had fixed the age of retirement for their employees at 60 years.

The petitioners had submitted that in July 2019, the provincial government enacted the impugned KP Civil Servants (Amendment) Act, 2019, through which amendments were made in Section 13 of the main law and instead of the word “sixtieth” the word “sixty-three” was incorporated. The said provision, they had contended, stated, now provides that a civil servant should retire from service on the completion of the sixty-three year of his age.

The counsels had argued that increasing the retirement age would increase the ratio of unemployed youth and the newly graduated degree-holders should have to wait for further three years for retirement of sitting officers.

Later on, the KP government challenged the verdict of PHC in Supreme Court.

Meanwhile, the court set aside the verdict of Peshawar High Court (PHC) declaring unconstitutional the Khyber-Pakhtunkhwa (KP) Civil Servant Amendment Act, 2019 that increased the retirement age of the government servants from 60 to 63 years.

The court remanded the matter to learned PHC with the direction to decide the matter afresh and on merit.