| Citation(s) |
|---|
| 2026 SLG 1339 2026 SLD 1339 = 2026 SCP 34 = 2026 PLC 874 |
Civil Petitions No.1935 to 1938 of 2018 AND Civil Appeals No.174 & 185 to 187 of 2020 Against judgments dated 18.04.2018 & 26.12.2018 of Khyber Pakhtunkhwa Service Tribunal, Peshawar, passed in Appeals No.218 of 2016 & 1003, 1004, 1005 of 2017 and dated 19.03.2018 passed in Appeals No. 868, 971, 972 & 1064 of 2017.
Mr. Justice Shahid Waheed Mr. Justice Naeem Akhter Afghan Mr. Justice Malik Shahzad Ahmad Khan Mr. Justice Aqeel Ahmed Abbasi Mr. Justice Shakeel Ahmad
Mr. M. Asif Yousafzai, ASC via video link from Peshawar (in Civil Appeals No.185 to 187 of 2020)
Shafique Ahmed & three others Petitioners (in CP Nos.1935 to 1938 of 2018) Shah Durran Appellants (in CA No. 174 of 2020) Provincial Police Officer, KP & Others Appellant (in CA No.185 to 187 of 2020)
VERSUS
Provincial Police Officer, KP & others Respondents (in CP Nos.1935 to 1938 of 2018) Provincial Police Officer, KP & others Akhtar Ali, Mubarak Zeb & Abdullah Shah Respondents (in CA No.174 of 2020) Respondents (in CA Nos. 185 to 187 of 2020)
Law: Constitution of Pakistan, 1973
Section: 10-A,9
Law: Khyber Pakhtunkhwa Civil Servants Act, (XVIII of 1973)
Section: 17
Tagline : The underlying principle regarding the grant of back pay to the civil servant upon setting aside his dismissal is “fair go all round,” because the culture of authority in administrative law, after the coming into force of Article 10-A in the Constitution, is now untenable, and the culture of justification takes precedence.
Summary
This Supreme Court judgment, delivered by Justice Shahid Waheed, consolidates multiple cases involving police officials in Khyber Pakhtunkhwa seeking back pay after their dismissals were set aside. It establishes that while reinstatement is automatic, back pay is discretionary under the second proviso to Section 17 of the KP Civil Servants Act, 1973, guided by the "fair go all round" principle and a shift to a "culture of justification" post-Article 10-A. Full back pay is the norm for wrongful dismissals (unproven misconduct) or unfair ones absent mitigating factors like alternative employment, with courts intervening against arbitrary denials, especially in prolonged litigation. Specific cases are resolved in favor of full back pay for exonerated petitioners where no contrary evidence exists.
Core Points
- Guiding Principle: "Fair go all round" balances individual and institutional justice; post-Article 10-A, authorities must justify decisions rationally, rejecting arbitrary "culture of authority."
- Discretionary Back Pay: Not automatic upon dismissal annulment; authority decides arrears under Section 17 proviso, considering factors like employment during dismissal, misconduct nature, service length, and proportionality.
- Burden of Proof: Civil servant claims no gainful employment (via plea/affidavit); authority must prove otherwise with evidence to deny/reduce pay.
- Unfair vs. Wrongful Dismissal: Unfair (procedural/technical/proportionality issues) allows nuanced discretion; wrongful (unproven charges) mandates full back pay as constitutional tort linked to Article 9 (right to life/livelihood).
- Court Intervention: Justified for arbitrary decisions, prolonged litigation (not civil servant's fault), or floating status; full pay as default unless compelling reasons shown.
- Case Outcomes: CPLA 1936-1938/2018 allowed (full back pay); CPLA 1935/2018 withdrawn; CA 174/2020 allowed (full back pay); CA 185-187/2020 dismissed (Tribunal's full back pay upheld).
Laws and Sections
| Law/Provision | Key Text/Principle | Application in Judgment |
|---|---|---|
| Article 10-A, Constitution of Pakistan | Right to fair trial and due process. | Shifts administrative law to "culture of justification" over "culture of authority"; demands reasoned decisions on back pay. |
| Article 9, Constitution of Pakistan | Right to life (includes livelihood). | Wrongful dismissal as "constitutional tort"; full back pay required to restore economic position. |
| Section 17, Khyber Pakhtunkhwa Civil Servants Act, 1973 (2nd Proviso) | "Where a civil servant has, under an order which is later set aside, been dismissed... he shall... be entitled to such arrears of pay as the authority setting aside such order may determine." | Confers discretion on reinstatement authority for back pay; not automatic; must be exercised fairly, with justification. |
| Similar Provisions in Other Civil Servants Acts | Federal/provincial analogs to Section 17. | Prevalent across jurisdictions; same discretionary framework applies. |
JUDGMENT