Court Judgement

7/27/2019 Court Judgement

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Stereo. H C J D A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT LAHORE

JUDICIAL DEPARTMENT

Case No: W. P. 21545/2011.

Ghulam Yasin. Versus Accountant General Punjab etc.

JUDGMENT

Date of hearing: 17.11.2011.

Petitioner by: Syed Muhammad Saqlain Rizvi, Advocate.Mian Masood Ahmed, Advocate for petitioner

in connected writ petition No.6293/2011.

Respondents by: Khawaja Salman Mahmood, Assistant

Advocate General, Punjab.Khalid Mehmood, Deputy Secretary (SR),

Finance Department.Irfan Ahmad Janjua, Law Officer, Accountant

General, Punjab, Lahore

M. Mushtaq Qaisrani, Account Officer,Accountant General Officer, Punjab, Lahore.

Syed Mansoor Ali Shah, J: -This judgment will dispose of the

instant writ petition, as well as, petitions mentioned in Schedule-A of

this judgment, as they raised similar questions of law and facts.

2. Brief facts of the instant petition are that the petitioner retired

from service as a Deputy Project Manager, Education Department,

Government of the Punjab on 01.01.1995. After retirement his 50%

pension (Rs.4,626.80) was computed for 15 years and he started

receiving remaining 50% as monthly pension. The total amount of

pension in the year, 1995 was Rs.9,253.60/-. The period of 15 years of

commutation came to an end on 01.01.2010. Over the years the

pension of the petitioner increased from 5% to 20% and the net 50%

pension received by the petitioner in the year 2010 was in the sum of

Rs.40,349.01/-.


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W. P. No. 21545/2011. 2

3. The grievance of the petitioners is that the restored commuted

portion of pension should be at par with the 50% of the pension being

paid to the petitioners after the expiry of the commuted period of 15

years. It is contended that the petitioners are entitled to pension under

section 18 of the Punjab Civil Servants Act, 1974 read with Punjab

Civil Services (Pension) Rules, 1955 (Rules). However, the said law

is silent regarding the total quantum of restored commuted portion of

the pension. The petitioners have placed reliance on a Division Bench

judgment of this Court reported as Additional Accountant-General

Pakistan Revenue, Lahore v. A.A. Zuberi, (2011 PLC (C.S.) 580)

whereby a similar question has been decided in favour of the

petitioners and increments granted during the period of commutation

were allowed to be included in the restored commuted portion of

pension at the expiry of the period of commutation.

4. Learned law officer on behalf of the respondents has raised a

preliminary objection that the instant petition is barred under Article

212 of the Constitution of Islamic Republic of Pakistan, 1973

(Constitution) as pension falls within the terms and conditions of

service of a civil servant. He also referred to letter 22.03.2008 issued

by the Finance Department, Government of the Punjab (much prior to

the expiry of the commutation period of the petitioners) wherein

increase in pension admissible in the respective financial year is

allowed on the restored commuted portion of pension to all

Government Servants who retired on or before 30.06.2001. It is

contended that letter dated 22.03.2008 issued by the Finance


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W. P. No. 21545/2011. 3

Department amounts to final order for the purposes of section 4 of the

Punjab Service Tribunals Act, 1974 (Act) against the petitioners.

Learned law officer has placed reliance onI.A. Sharwani and others v.

Government of Pakistan through Secretary, Finance Division,

Islamabad and others, (1991 SCMR 1041), Muhammad Arshad

Saeed, DIG Police v. Government of Pakistan through Secretary,

Establishment Division, Islamabad and 29 others, (1994 SCMR

1033) and Iqan Ahmed Khurram v. Government of Pakistan and

others, (PLD 1980 S.C. 153).

5. On merits learned law officer submitted that the petitioners are

not entitled to the increase in the pension over the period of

commutation and are only entitled to the amount of pension at the

time of commutation i.e., 15 years ago.

6. Arguments heard, record perused.

7. In attending to the preliminary objection raised by the learned

law officer it is important to see the context in which the challenge

has been brought by the petitioners. The grievance of the petitioners is

that Rules (i.e., Punjab Civil Service (Pension) Rules, 1955) are silent

regarding the quantum of pension (restored commuted portion of the

pension) to be granted to the petitioners on the expiry of the

commuted period. Therefore, the petitioners on the basis of their

fundamental rights, as well as, the judgment of the Division Bench

reported asAdditional Accountant-General Pakistan Revenue, Lahore

v. A.A. Zuberi, 2011 PLC (C.S.) 580 (petitions against the said

judgment have been dismissed by the august Supreme Court of


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W. P. No. 21545/2011. 4

Pakistan vide order dated 10.12.2010 passed in Civil Petition Nos.

2393 and 2394 of 2010) have prayed that the quantum of pension on

the expiry of the commuted period should be at par with the remaining

50% of the pension being continuously received by the petitioners.

Letter dated 22.03.2008 issued by the Finance Department,

Government of the Punjab is a facility extended to the petitioners for

the first time whereby increments in the pension granted in the

financial year in which the commuted period expires are admissible

and are to be included in the restored commuted portion of the

pension. The said letter issued by the Finance Department, therefore,

allows increase in the pension in the financial year in which the said

pension is restored and is beneficial to the petitioners. However, the

petitioners claim for more in terms of the Division Bench judgment of

this Court, mentioned above. Hence, there is no Final Order passed

against the petitioners by any Departmental Authority. Letter dated

22.03.2008 issued by the Finance Department, Government of the

Punjab is not adverse to the interest of the petitioners and, therefore,

does not pass as a Final Order by a Departmental Authority under

section 4 of the Act. Learned law officers reliance on I.A. Sharwani

and others vs. Government of Pakistan through Secretary, Finance

Division, Islamabad and others(1991 SCMR 1041) is unfounded as

in this case, which also coincidentally deals with pension, Ajmal

Mian, J speaking for the Supreme Court of Pakistan, held as follows

while deciding the preliminary objections regarding the

maintainability of the petition under Article 184(3) of the

Constitution:-


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We are inclined to hold that if a statutory rule or a notification

adversely affects the terms and conditions of a civil servant,

the same can be treated as an order in terms of subsection (1) of

section 4 of the Act in order to file an appeal before the Service

Tribunal. (emphasis supplied).

8. In Iqan Ahmed Khurram vs. Government of Pakistan and

others (PLD 1980 S.C. 153) the bar under Article 212 of the

Constitution was applicable because the Rules in the said case altered

the terms and conditions of service of civil servants.

9. In Muhammad Arshad Saeed, DIG Police vs. Government of

Pakistan through Secretary, Establishment Division, Islamabad and

29 others (1994 SCMR 1033), Shafiur Rahman, J, speaking on

behalf of the Supreme Court of Pakistan once again dealing with the

scope of Service Tribunals Act, held:-

All such orders, if they affect the terms and conditions

of the service of the employee would qualify as

departmental orders ex facie issued by the authority

within the department empowered to do so. (emphasis

supplied).

10. In the present case, no adverse order has been passed against

the petitioner by a departmental authority and letter dated 22.03.2008

issued by the Finance Department does not affect the terms and

conditions of service of the petitioner, hence the preliminary objection

raised by the learned law officer is overruled.

11. I, while speaking for Division Bench of this Court inAdditional

Accountant-General Pakistan Revenue, Lahore held as follows:-

15. Pension is neither a bounty not a matter of grace

depending upon the sweet will of the employer, nor an ex


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gratia payment. It is a payment for the past service

rendered. It is a social welfare measure rendering

socioeconomic justice to those who in the hey-day of their

life ceaselessly toiled for the employer on an assurance

that in their old age they would not be left in lurch.

Pension as a retirement benefit is in consonance with and

furtherance of the goals of the Constitution. The most

practical raison detre for pension is the inability to

provide for oneself due to old age. It creates a vested right

and is governed by the statutory rules such as the Central

Civil Services (Pension) Rules which are enacted in

exercise of power conferred by Articles 309 and 148(5) of

the Constitution. [Central Services (Pension) Rules, 1972,

Rule 23]. Reliance is placed on D.S. Nakara v. Union of

India AIR 1983 SC 130.

16. In Smt. Poonamal v. Union of India(AIR 1985 SC

1196), it was held:---

Pension is not merely a statutory right but it is

the fulfillment, of a constitutional promise

inasmuch as it partakes the character of public

assistance in cases of unemployment, old-age,

disablement or similar other cases of

underserved want. Relevant rules merely make

effective the constitutional mandate. Pension is

a right not a bounty or gratuitous payment.

[Labour and Services].

17. Pension is, therefore, a post retirement benefit of a

civil servant which is earned by a civil servant by giving

the best years of his life in the service of the country. This

post retirement monetary allowance is geared to comfort

and protect a civil servant in the post retirement days

when he ordinarily has no other source of income, is

infirm and of old age. Pension is, therefore, the very life-

line of a civil servant in the post retirement days and,

therefore, an integral part of his livelihood and perhaps

more dearer than the salary received during his service.

18. Pension cannot be a static amount as it has to provide

for the rising cost of living and escalating inflation which


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the retired civil servant has to face and survive in.

Therefore like salary, pension is a real time concept. In

the present case the pension of the respondents was

increased every year in the range of 5% to 20%. The 50%

pension of the respondents in the year 2008 is much

higher than the one in the year 1993 as shown in the table

above. The increase most clearly covers for the

inflationary tendencies over the years.

19. Respondents commuted their 50% pension for a

period of 15 years, which means that a lump sum paymentof 50% of the pension on the basis of the pension as it

stood in the year 1993 was worked out over a future

period of 15 years and handed over to the respondents.

Therefore, during these 15 years benefit of increase in

pension was enjoyed by the respondents only to the extent

of 50% i.e., the pension received by them monthly.

20. Under the Rules the pension stands RESTORED atthe end of the commutation period. This means that the

respondents are once again entitled to 100% pension as it

stands on that day. The best index to gauge the pension

due on the said date is the amount of 50% pension being

received monthly by the respondents on the said date. The

pension due will be double the said amount. It is

preposterous to imagine that a civil servant be given

pension in the year 2008 which he was entitled to draw in

1993 (15 years ago). Such action offends the right to

livelihood of the respondents guaranteed under Article 9

of the Constitution. It also fails to meet the test of

economic justice which is also an integral part of right to

life as provided in the preamble and the Objective

Resolution to the Constitution. Depriving a civil servant

of his lawful pension is also discriminatory when

compared to equally placed retired civil servants who are

drawing the current rate of pension. This offends Article

25 of the Constitution. No civilized system can provide

for such an unreasonable and uneconomic post retirement

benefit to their employees who have given their golden

years for the public service of this country.


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21. The interpretation of the appellant on the accounting

side also appears to be unreasonable. It will be odd for a

civil servant to draw two different slabs of pensions i.e.,

50% at the rate prevalent in the year 1993 and the

remaining on the current rate inclusive of increments.[

12. Therefore, for the above reasons given in the Division Bench

judgment of this Court (supra), the petitioners in the instant petition,

as well as, in the petitions mentioned in Schedule-A are entitled to all

the increments in pension accumulated over the last 15 years. In other

words, restored computed portion of the pension must be at par with

the remaining 50% net pension as it stands on the day of the expiry of

15 years of the commutation period. Respondents are directed to

release the pension of the petitioners forthwith in the above terms.

13. For the above reasons, these petitions are allowed.

(Syed Mansoor Ali Shah)

Judge*A.W.*


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W. P. No. 21545/2011. 9

SCHEDULE-A

Sr.

No.

Case No. Title

1. W. P. No.6293/2011 Tufail Muhammad Alvi v. Government of the

Punjab etc.

2. W. P. No.20376/2011 Mian Ahmad Saeed Khan v. Accountant General

Punjab, Lahore etc.

3. W. P. No.20377/2011 Muhammad Barket Mehmood v. Accountant

General Punjab, Lahore etc.

4. W. P. No.20378/2011 Ch. Muhammad Aslam v. Accountant General

Punjab, Lahore etc.

5. W. P. No.20379/2011 Muhammad Iqbal Ch. v. Accountant General

Punjab, Lahore etc.

6. W. P. No.20380/2011 Mumtaz Ahmad v. Accountant General Punjab,

Lahore etc.

7. W. P. No.20381/2011 Sh. Muhammad Sharif Sabir v. Accountant


8. W. P. No.20382/2011 Muhammad Rashid Zafar v. Accountant General

Punjab, Lahore etc.

9. W. P. No.20383/2011 Mrs. Surriya Ali v. Accountant General Punjab,

Lahore etc.

10. W. P. No.20384/2011 Abdul Jalil Najfi v. Accountant General Punjab,

Lahore etc.

11. W. P. No.20385/2011 Nabi Bakhash Sabir v. Accountant GeneralPunjab, Lahore etc.

12. W. P. No.20386/2011 Ch. Abdul Hameed v. Accountant General

Punjab, Lahore etc.

13. W. P. No.20387/2011 Fateh Khan Ch. v. Accountant General Punjab,

Lahore etc.

14. W. P. No.20388/2011 Mukhtar Ahmad v. Accountant General Punjab,

Lahore etc.

15. W. P. No.20389/2011 Muhammad Ali Pir v. Accountant General

Punjab, Lahore etc.

16. W. P. No.20390/2011 Qazi Zafar Ullah Khan v. Accountant General

Punjab, Lahore etc.

17. W. P. No.20391/2011 Ch. Muhammad Akram v. Accountant General

Punjab, Lahore etc.


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18. W. P. No.20392/2011 Anwar Kamal v. Accountant General Punjab,

Lahore etc.

19. W. P. No.20393/2011 Mirza Abdul Aziz v. Accountant General Punjab,Lahore etc.

20. W. P. No.20394/2011 Ch. Muhammad Hafeez Ullah v. Accountant


21. W. P. No.25402/2011 Mian Muhammad Tufail v. Accountant General

Punjab, Lahore etc.

22. W. P. No.25403/2011 Abdul Bari v. Additional Accountant General

Punjab, Lahore etc.

23. W. P. No.21546/2011 Muhammad Aslam Khan Lashari v. Accountant


24. W. P. No.21547/2011 Muhammad Saad Ullah v. Accountant General

Punjab, Lahore etc.

25. W. P. No.21548/2011 Malik Muhammad Amin Khan v. Accountant


26. W. P. No.21549/2011 Syed Amir Ahmad Shah v. Accountant General

Punjab, Lahore etc.

27. W. P. No.21550/2011 Mian Ahmad Bashir Khan v. Accountant General

Punjab, Lahore etc.

28. W. P. No.21551/2011 Ahmad Saeed Akhter v. Accountant General

Punjab, Lahore etc.

(Syed Mansoor Ali Shah)

Judge*A.W.*

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