Reference Against Justice Mansoor Ali Shah
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Transcript of Reference Against Justice Mansoor Ali Shah
[1]
To
The Chairman,
Supreme Judicial Council / Hon’ble Chief Justice of Pakistan, Supreme Court of Pakistan Building,
Constitution Avenue, Islamabad.
Subject: COMPLAINT REGARDING ALLEGED MISCONDUCT OF HON’BLE MR. JUSTICE SYED MANSOOR ALI SHAH, JUDGE,
LAHORE HIGH COURT, LAHORE FOR ACTION IN ACCORDANCE WITH ARTICLE 209 OF THE CONSTITUTION
READ WITH CODE OF CONDUCT FOR JUDGES OF THE SUPREME COURT AND THE HIGH COURTS AND THE
SUPREME JUDICIAL COUNCIL PROCEDURE OF INQUIRY,
2005
Dear Sir,
It is humbly submitted that, being a citizen of Pakistan, I am
vitally interested in Rule of Law in the country and I do have legitimate
expectation from judicial organ of the state to ensure complete submission
of all in the country to the Constitution and, under the Constitution, to the
law. The judiciary performs its role in strengthening Rule of Law by (a)
adjudicating cases in accordance with law; and (b) meaningfully activating
constitutional mechanism to proceed against judges of the higher judiciary
who, expressly or impliedly, refuse to decide cases in accordance with law
and behave as if they are their own Constitution, law and procedure.
2. It is requested that Hon’ble Mr. Justice Syed Mansoor Ali Shah,
Judge, Lahore High Court, Lahore (hereinafter referred to as the Hon’ble
Judge) may, kindly, be proceeded against under Article 209 of the
Constitution read with CODE OF CONDUCT TO BE OBSERVED BY JUDGES OF
THE SUPREME COURT OF PAKISTAN AND OF THE HIGH COURTS, circulated
vide Notification No. F.SECRETARY-01/2009/SJC dated 2nd of September,
2009 (hereinafter referred to as ‘the Code’) and THE SUPREME JUDICIAL
COUNCIL PROCEDURE OF INQUIRY, 2005 (hereinafter referred to as ‘the
Procedure’) on the following charges:
i. The Hon’ble Judge, through an interim order dated 03.07.2014
in Writ Petition No. 5406/2011 (Annex-A), issued a direction to
the Lahore High Court, Lahore, through its Registrar, to do
certain acts specified in that order. Article 199 of the
Constitution, inter alia, authorizes a High Court to issue a
direction only to a ‘person’. High Court is not a ‘person’. Thus, by
[2]
issuing a direction to the High Court, the Hon’ble Judge
knowingly refused to submit to the Constitution although he was
under oath to preserve, protect and defend the Constitution. The
Hon’ble Judge does not have an exemption from the duty of
obedience to the Constitution and is not authorized to adjudicate
except in accordance with the Constitution and the laws made
thereunder. The Hon’ble Judge is, therefore, guilty of misconduct
in terms of paragraph 2 of the Code which requires complete
submission of a judge to the Constitution.
ii. The Hon’ble Judge, in an interim order dated 03.07.2014 in Writ
Petition No. 5406/2011(Annex-A), recorded the fact that a
Deputy Registrar of the High Court (who was a subordinate of
the petitioner and had direct material interest in the matter)
presented some information concerning the issues under
adjudication in the said writ petition. The information was not
presented in the open court. The said Deputy Registrar was not
a party to the case. Allowing him to privately submit information
relating to a matter under adjudication without first becoming a
party to the case in accordance with law is misconduct on part of
the Hon’ble Judge as Article II of the Code requires him to be
law-abiding but he has violated the law in this case.
iii. The Hon’ble Judge, in an interim order dated 03.07.2014 in Writ
Petition No. 5406/2011(Annex-A), observed as follows:
“It is expected that on the next date of hearing the Secretary Finance, Government of the Punjab will
place on the record Payment Plan regarding arrears
of 50% Adhoc Relief, as well as, 50% Judicial Allowance.”
By the above interim order, the Hon’ble Judge attempted to
grant final relief without adjudication on the point in controversy
on which the grant of that relief depends. The Hon’ble Judge
played the role of a negotiator on behalf of the petitioner to
convince and coerce the respondents to accede to demands of
the petitioner. Thus, the Hon’ble Judge did not remain neutral
and fair in this case. By doing so, he violated fundamental right
of fair trial and due process, guaranteed by Article 10-A of the
[3]
Constitution, which, inter alia, requires that all persons shall be
equal before the courts. The Hon’ble Judge is, thus, guilty of
impropriety which is misconduct in terms of Article-III of the
Code and is also a violation of fundamental right of fair trial and
due process.
iv. The Hon’ble Judge has shown M/s Tanvir Ali Agha, former
Auditor General of Pakistan and Waqas Ahmad Mir, Advocate as
amici curiae in final order (Annex-B), in Writ Petition No.
5406/2011. No written or verbal order for appointment of the
above persons as amici curiae exists. These persons did not
render any assistance in open court. Privately seeking assistance
from strangers to a case as has been done by the Hon’ble Judge
in the instant case is equivalent to misconducting proceedings of
the case and abdication of judicial power of the state to
unauthorized persons, proving the Hon’ble Judge to be guilty of
misconduct and rendering him liable to action under Article 209
of the Constitution.
v. In Crl. Org. No. 597-W/2015, it was submitted in writing to the
Hon’ble Judge that the Hon’ble Supreme Court granted leave to
appeal to the Province of the Punjab to consider the question of
maintainability of a petition under Article 199 on matters
covered by Article 212 of the Constitution. The Hon’ble Supreme
Court in its judgment reported as 2014 SCMR 1336 (Annex-C),
has not upheld jurisdiction of the High Court on the subject of
pension of former civil servants. On the other hand, jurisdiction
of the Service Tribunal on the subject has been declared to be
undisputed. It is trite law that prescription of one is prohibition
of another. Further, jurisdictions conferred vide Article 199 and
212 of the Constitution are mutually exclusive and are not
concurrent. If pension of retired civil servants is a subject-matter
falling within exclusive jurisdiction of the learned Service
Tribunal, then, no stretch of imagination or reasoning can drag it
under purview of the Hon’ble High Court. The question of
jurisdiction so determined by the Hon’ble Supreme Court in this
judgment is not open to revision by the Hon’ble High Court.
[4]
Without giving any reason for non-acceptance of determination
of question of jurisdiction by the Hon’ble Supreme Court in its
judgment reported as 2014 SCMR 1336 or without claiming that
the said judgment of the Hon’ble Supreme Court is not
applicable to facts and circumstances of the Crl. Org. No. 597-
W/2015, the Hon’ble Judge continued to entertain the case
without jurisdiction. After determination of question of
jurisdiction by the Hon’ble Supreme Court, the Hon’ble Judge
had no discretion but to follow it. Chief Justice John Marshall
said: “When they (the judges) are said to exercise a
discretion, it is a mere legal discretion, a discretion to be
exercised in discovering the course prescribed by law; and
when that is discovered, it is duty of the court to follow it.
Judicial power is never exercised for the purpose of giving
effect to the will of the Judge; always for the purpose of
giving effect to the will of the legislature, or in other
words, to the will of the law.” {(Osborn v. Bank of US (1824)
22 US (9 Wheat) 738, 866} By not following Article 212 of the
Constitution as interpreted by the Hon’ble Supreme Court in its
judgment reported as 2014 SCMR 1336, the Hon’ble Judge is
guilty of refusal to submit to the Constitution and by doing so he
has committed misconduct in terms of paragraph 2 of the Code
which requires complete submission of a judge to the
Constitution.
vi. In Crl. Org. No. 597-W/2015, the Hon’ble Judge ignored the
question of lack of jurisdiction of the Hon’ble High Court in
matters falling under Article 212 of the Constitution just to give
effect to a judgment authored by him and reported as 2011 PLC
(C.S.) 580 (Annex-D) which, being rendered without
jurisdiction, is void and, hence, cannot be implemented through
contempt of court proceedings. The law laid down by the Hon’ble
Supreme Court in judgments reported as PLD 1949 Lah. 301 and
PLD 1997 SC 351 was violated by the Hon’ble Judge despite the
fact that it was humbly brought to his notice through a written
statement. He continued to coerce the state functionaries for
implementation of a void judgment despite full knowledge that
[5]
he had no jurisdiction to do so and implementation of that
judgment means militancy against order of the Hon’ble Supreme
Court reported as 2014 SCMR 1336. The Hon’ble Judge, thus,
through his conduct, showed contempt to the Constitution and
orders of the Hon’ble Supreme Court. This conduct of the
Hon’ble Judge is in violation of paragraph 2 of the Code and,
hence, is liable to action under Article 209 of the Constitution.
vii. In Crl. Org. No. 597-W/2015, a humble written submission was
made to the Hon’ble Judge that the principle of merger
prescribes that if judgment of an inferior court is subjected to an
appeal in a superior court and the superior court, after contested
hearing, passes an order determining rights and obligations of
the parties, that order supersedes the judgment passed by the
inferior court. It was also brought into his notice that the juristic
justification for doctrine of merger is based on the common law
principle that there cannot be, at one and the same time, more
than one operative order governing the same subject matter. In
such a case, only the judgment of the superior court is capable
of execution, irrespective of the fact whether order of the lower
court is affirmed, reversed or modified. Since, in the case in
hand, the Hon’ble Supreme Court, after hotly contested and
lengthy hearing, has itself determined
rights and obligations of the contesting parties through an
express and executable order, supported by reasons therefor, no
other order is lawfully in the field and since that order stands
duly implemented through re-allowing facility of restoration of
commuted value of pension on expiry of the period of
commutation, therefore, no further action is required to be taken
as the orders appealed against do not exist in eyes of law.
Despite this, the Hon’ble Judge insisted on implementation of his
judgment reported as 2011 PLC (C.S.) 580 (Annex-D). The
Secretary to Government of the Punjab, Finance Department
(Annex-E), and the Chief Secretary to Government of the
Punjab (Annex-F), through their separate written statements
filed in the Hon’ble Court, informed the Hon’ble Judge that
judgment of the Hon’ble Supreme Court reported as 2014 SCMR
[6]
1336 had been implemented. The Chief Secretary specifically
informed the Hon’ble Court that as a result of implementation of
that judgment, 163,306 retired civil servants of the Government
of the Punjab have so far become entitled to restoration of
commuted value of pension on expiry of the period of
commutation with a one-time estimated cost of Rs.945 million
(Rs.6142.5 million estimated average per annum). Restoration of
commuted value of pension of 21,877 retired civil servants has
become due up to 31.03.2015 with a one-time expenditure of
Rs.53.77 million (Rs.349.505 million estimated average per
annum). Commuted portion of pension of 821 pensioners has
already been restored with one-time cost of Rs.2.018 million and
annual financial impact of Rs. 24.216 million. The Hon’ble Judge
totally ignored the written statements of the above said state
functionaries and without giving any reason to deny their claim
of full implementation of the judgment of the Hon’ble Supreme
Court continued to coerce them for implementation of his
judgment reported as 2011 PLC (C.S.) 580. By insisting on
implementation of a void and non-existent judgment, the
Hon’ble Judge showed disdainful contempt for lawful orders of
the Hon’ble Supreme Court and, thus, refused, by his conduct, to
completely submit to the Constitution. By doing so, the Hon’ble
Judge has committed misconduct in terms of paragraph 2 of the
Code which requires complete submission of a judge to the
Constitution.
viii. In Crl. Org. No. 597-W/2015, a humble written submission was
made to the Hon’ble Judge that pension is payable as prescribed
in the applicable rules and not on the basis of reasons which
may seem to be just and equitable to a court of law. It was
humbly submitted that this is the ratio decidendi of the of the
judgment of the Hon’ble Supreme Court reported as 2014 SCMR
1336 and of the judgment rendered by a five-judge bench of the
Supreme Court in I.A. Sharwani’s case (1991 SCMR 1041) as
well as of the case reported as PLD 2013 Supreme Court 829. No
one has alleged that he is not in receipt of pension as prescribed.
In absence of such an allegation, there was no live controversy
[7]
or cause of action to proceed further in the matter. No law or
rule applicable to pension has been invalidated by the Supreme
Court; therefore, all aspects of pension including restoration of
commuted portion of pension have exclusively to be regulated in
accordance with existing rules and not otherwise. On the other
hand, increases in pension are payable in accordance with the
order of the Government through which these are sanctioned.
This principle of law has been settled by the Supreme Court in
Civil Appeals Nos. 1305 and 1327 of 2003, re-affirmed in 2012
SCMR 106 (Annex-G) and also upheld in the judgment of the
Hon’ble Supreme Court reported as 2014 SCMR 1336. No court
in Pakistan has held that the Government is not lawfully
competent to sanction increases in pension in accordance with
the formula of calculation of amount of such increases as
determined by the Government. The Hon’ble Judge continued to
insist on implementation of his judgment reported as 2011 PLC
(C.S.) 580 which is patently against the dictum of law laid down
by the Hon’ble Supreme Court in the judgments supra. It was
specifically mentioned by the Chief Secretary in his written
statement that as per judgment of the Hon’ble Supreme Court
reported as 2014 SCMR 1336:
“In case a portion of pension is commuted for a particular period of time, he surrenders his right to
receive full pension in lieu of lump-sum payment received by him and on expiry of the commuted
period, his right and entitlement to receive full pension, as prescribed, is restored and re-
vested in him.” Full pension means the amount of ordinary pension admissible
including commuted portion of the pension, if any. Contrary to
this, the Hon’ble Judge defined restoration as entitlement to
receive double of what is drawn by a pensioner on the date of
restoration. Whereas upon restoration of 50% commuted portion
of pension, the pension stands doubled in accordance with the
applicable rules but doubling of pension does not require
doubling of increases already allowed on pension. The Hon’ble
Judge, without any lawful reason or basis, directed that the
amount being drawn by a pensioner be doubled on the date of
[8]
restoration i.e. doubling of pension as well as increases in
pension. The Hon’ble Judge was informed of the dictum of law
laid down by the Hon’ble Supreme Court on the subject but he
did not refrain himself from disobeying the law contained in the
above said judgments of the Hon’ble Supreme Court. The
Hon’ble Judge, thus, through his conduct, showed contempt to
the Constitution and orders of the Hon’ble Supreme Court. This
conduct of the Hon’ble Judge is in violation of paragraph 2 of the
Code which requires complete submission of a judge to the
Constitution and, hence, liable to action under Article 209 of the
Constitution.
ix. In Crl. Org. No. 597-W/2015, it was submitted in the open Court
on 17.04.2015 by the Finance Secretary, Additional Finance
Secretary and the Accountant General, Punjab, that pension and
periodic increases in pension are distinctly distinguishable and
are regulated through different legal dispensations. The Hon’ble
Judge agreed to this proposition and promised to adequately
reflect this view in his order regarding proceedings of the case of
that day. But the Hon’ble Judge did not honour his words and
totally ignored the submissions of state functionaries on the
issue. Thus, the Hon’ble Judge is not truthful of tongue and,
therefore, is guilty of misconduct in terms of Article–II of the
Code.
x. In Crl. Org. No. 597-W/2015, it was brought into kind notice of
the Hon’ble Judge that the discrimination in payment of full
pension after expiry of period of commutation, caused by para
16 (e) of Finance Department’s letter No.FD.PC-2-1/2001 dated
22nd October, 2001, and pointed out in para 16 of the judgment
of the Hon’ble Supreme Court reported as 2014 SCMR 1336 was
discontinued by the Government of the Punjab through deletion
of the said para 16 (e) vide its circular letter No. FD-SR-III /4-
41/2008 dated 22.07.2014 (Annex-H). It was also submitted in
writing that a retired civil servant is entitled to full pension for
life. In case, he opts for commutation of a part of his pension for
a defined period, he receives pension of the commuted portion in
[9]
advance. If the civil servant opting for commutation is denied
right of restoration of commuted value of pension after expiry of
the defined period, it would imply that he has been given full
pension for the period of commutation only and not for life. Such
creation of two classes of pensioners---one getting full pension
for life and the other getting full pension for a defined period
only—is without lawful justification. After expiry of the defined
period, the civil servant opting for commutation would not be in
receipt of full pension in case right of restoration of commuted
value of pension is denied to him. Since the discrimination
pointed out by the Hon’ble Supreme Court no longer exists,
therefore, there remains no mischief requiring a remedy.
Detailed calculations were submitted to the Hon’ble Judge to
prove that implementation of his judgment reported as 2011 PLC
(C.S.) 580, besides being in contempt of judgments of the
Hon’ble Supreme Court, would cause discrimination to those who
did not opt for commutation. The Hon’ble Judge had option
either to accept this view or reject the same through proper
written judgment. The Hon’ble Judge simply ignored this point
and continued to proceed with the case. Thus, the Hon’ble Judge
is guilty of attempting to cause discrimination which is prohibited
by the Constitution and, therefore, his implied refusal to submit
to the Constitution is actionable under Article 209 of the
Constitution read with paragraph 2 of the Code.
xi. The courts have not been designed to legislate or substitute
existing legislation with their own choices. Whereas the Courts
may examine legality of actions or instruments in appropriate
cases, they cannot judge reasonability or wisdom of one or the
other option in a given situation. Proceedings under Article 199
of the Constitution are not for legislation or policy formulation. In
Crl. Org. No. 597-W/2015, the Hon’ble Judge instead of
surrendering himself to the judgment of the Hon’ble Supreme
Court reported as 2014 SCMR 1336 continued to get his personal
policy notions regarding ‘full pension’ and ‘restoration of
commuted portion of pension’ implemented. Thus, by impliedly
substituting definitions of ‘full pension’ and ‘restoration’, the
[10]
[11]
Annex-A
[12]
[13]
[14]
[15]
[16]
[17]
[18]
[19]
[20]
[21]
Annex-B
[22]
[23]
[24]
[25]
[26]
[27]
[28]
[29]
[30]
[31]
[32]
[33]
[34]
[35]
[36]
[37]
[38]
[39]
[40]
[41]
[42]
[43]
[44]
[45]
[46]
[47]
[48]
Annex-C
2014 S C M R 1336
[Supreme Court of Pakistan]
Present: Tassaduq Hussain Jillani, C.J., Khilji Arif Hussain and Sh. Azmat Saeed, JJ
SECRETARY, GOVERNMENT OF PUNJAB, FINANCE DEPARTMENT and 269
others---Appellants
Versus
M. ISMAIL TAYER and 269 others---Respondents
Civil Appeals Nos.971 to 1012, 1013 of 2012, C.M.As. Nos.5314, 1014 to 1017 of 2012, 289-L,
386-L to 401-L of 2013, 61 to 223, 274 of 2014 and Civil Petitions Nos.1040-L, 1049-L, 1070-L
of 2013, 46-L to 58-L, 92-L to 94-L, 106-L, 213-L, 219-L to 225-L, 239-L, 257-L, 277-L,
293-L, 307-L to 315-L and 330-L of 2014, decided on 31st March, 2014.
(On appeal from the judgment dated 5-5-2011 of the Punjab Service Tribunal, Lahore,
passed in Appeals Nos.773 of 2009 and the judgments/orders dated 17-1-2012, 17-11-2011, 27-
2-2012, 17-1-2012, 2-2-2012, 17-1-2012, 23-4-2012, 21-11-2011, 31-5-2012, 8-10-2012, 1-11-
2012, 22-10-2012, 30-10-2012, 1-11-2012, 16-10-2012, 1-11-2012, 13-12-2012, 18-12-2012,
24-12-2012, 14-12-2012, 10-7-2013, 31-7-2013, 30-1-2013, 15-1-2013, 22-1-2013, 16-1-
2013, 4-2-2013, 8-1-2013, 15-1-2013, 2-5-2013, 24-5-2013, 22-5-2013, 10-6-2013, 28-5-
2013, 28-6-2013, 3-7-2013, 25-6-2013, 25-6-2013, 28-6-2013, 12-8-2013, 19-6-2013, 30-7-
2013, 10-4-2013, 9-9-2013, 10-9-2013, 18-9-2013, 10-9-2013, 19-9-2013, 20-9-2013, 17-9-
2013, 16-9-2013, 15-1-2013, 16-9-2013, 21-10-2013, 26-9-2013, 27-9-2013, 30-9-2013, 19-9-
2013, 30-9-2013, 3-10-2013, 4-10-2013, 1-10-2013, 24-9-2013, 26-9-2013, 27-9-2013, 30-9-
2013, 1-10-2013, 7-10-2013, 14-10-2013, 23-10-2013, 7-10-2013, 24-10-2013, 10-10-2013,
21-10-2013, 28-10-2013, 29-10-2013, 30-10-2013, 2-10-2013, 21-10-2013, 4-10-2013,
14-10-2013, 31-10-2013, 21-10-2013, 22-10-2013, 23-10-2013, 24-10-2013, 7-10-2013,
28-10-2013, 31-10-2013, 30-10-2013, 4-11-2013, 6-11-2013, 13-12-2013, 24-5-2013, 17-5-
2013, 2-5-2013, 11-11-2013, 12-11-2013, 13-11-2013, 15-1-2013, 18-11-2013, 29-11-
2013, 19-11-2013, 20-11-2013, 20-11-2013, 4-11-2013, 4-11-2013, 7-11-2013, 20-
11-2013, 18-11-2013, 17-12-2013, 19-12-2013, 17-11-2013, 23-12-2013, 26-12-2013,
19-12-2013, 17-12-2013, 23-12-2013, 20-11-2013, 19-12-2013 and 23-12-2013 of the Lahore
High Court, Lahore/Bahawalpur Bench/Rawalpindi Bench/Multan Bench, passed in W.Ps.
Nos.29579, 6293, 20379, 20380, 20383, 20385 to 20393, 21546, 21547, 21550, 25402, 25403,
20376, 20377, 20381, 20382, 20384, 20394, 21548, 21551, 20378, 21549 of 2011, I.C.A. No.50
of 2012, W.Ps. Nos.324, 326, 327 of 2012, 11141, 24765 of 2011, 325, 299, 1653, 1654, 1914,
679, 3521 of 2012, 23058 of 2011, 13248, 13249, 10644, 298, 8745, 8746, 26478, 25760, 8747,
17077, 27183, 24652, 29155, 29287, 30862 to 30867 of 2012, 1480, 19144, 1899 of 2013,
29536, 31347 of 2012, 859, 1942, 2264, 2265, 2589 of 2013, 539, 29593, 29332 of 2012, 1373,
5058, 5069, 5071, 5073, 5499, 5501 to 5503, 5561, 5866, 6660, 7817, 7818, 8062, 7822, 5504,
5070, 5562, 5500, 5505, 7820, 5072, 7819, 7821 of 2013, 8344 of 2011, 7489, 7899, 8671, 5661,
8038, 1372, 8837, 10973 to 10975, 14337, 13122, 13168, 3487, 3486 of 2013, 21301 of 2012,
14297, 15537, 15950 of 2011, 345, 4643, 7349, 8640, 11504 of 2012, 3216, 894, 1853, 2689,
3216, 8984, 4507, 3485, 17937 of 2013, 25742 of 2011, 5102 of 2012, 8122, 933, 21918, 22183,
17118, 20381, 22028, 22166, 22144, 23519, 23665, 23770, 23093, 22912, 29332, 22888, 6162,
14635, 24551, 24664, 24850, 23493, 24769, 25276, 25197, 25012, 24099, 24211, 24437, 24645,
24713, 24757, 24939, 24957, 25692, 26431, 26923, 25685, 3946, 26059, 26131 of 2013, 6035,
[49]
6044/2013/BWP, 26111, 22115, 24286, 25495, 25161, 22102, 22103, 23375, 24618, 24949,
24953, 25055, 25239, 25484, 25670, 25984, 26140, 26738, 27343, 27480, 27559, 27730, 25103,
21989, 25196, 25517, 26516, 26557, 26611, 26636, 27804, 23183, 23230, 23823, 25703, 26820,
19412, 19413, 26878, 27151, 25682, 27487, 27796, 27690, 28166, 28424, 2547, 1878, 12157,
5041, 28780, 28797, 28927, 29044, 29131 of 2013, 29332 of 2012, 29291, 29287, 29314, 29331,
29346, 29470, 29545, 28067, 28135, 11026, 13644, 20141, 27206, 30834, 21545, 27710, 27562,
29537, 26514, 10544, 27314, 26635, 10667, 30967, 28184, 28475, 28664, 28893, 29230, 29263,
29303, 29317 and 27622 of 2013)
(a) Punjab Civil Servants Act (VIII of 1974)---
----S. 18---Punjab Civil Services Pension Rules, 1963, Rr. 4.4, 8.1 & 8.12---Constitution of
Pakistan, Arts. 25, 185 & 212---Pension---Commutation of pension for a certain period---
Periodic increase in pension during commutation period---Expiry of commutation period---
Effect---Full pension would be restored inclusive of periodic increase in pension during the
commutation period---Pension of retired civil servants of Provincial Government was commuted
to one half for a period of 15 years---Upon expiry of commutation period full pension was
restored---Provincial Government issued an Office Memorandum whereby increase in pension
granted during the commutation period was deducted from the pension paid to retired
employees---Legality---When a retired civil servant's portion of pension was commuted for a
particular period of time, he surrendered his right to receive full pension in lieu of lump sum
payment received by him, and on expiry of the commuted period, his right and entitlement to
receive full pension, as prescribed, was restored and re-vested in him---Restoration of the right to
receive pension in terms of R. 8.12 of Punjab Civil Services Pension Rules, 1963 was without
any rider, and upon re-vesting of such right, the status of such retired civil servant in law was
brought at par with the other retired civil servants, who had not exercised their option of seeking
commutation of their pension---Retired civil servant on expiry of the period of commutation
could not be discriminated against by being paid less pension, than his colleagues, who had not
sought commutation, as there was no valid justification available in law between the two-
-- If the Government were to adopt such a course of (discriminative) action, as had been
attempted in the present case, it would offend Art. 25 of the Constitution---Restored pension
payable to a retired civil servant upon expiry of period of commutation would obviously include
any increase in pension granted by the Government during the intervening period of
commutation---Even retired civil servants of the Federal Government were being paid their
pension inclusive of the increases sanctioned during the commutation period, after the Supreme
Court struck down an Office Memorandum, which deprived increase in pension sanctioned
during the commuted period---Appeal was dismissed accordingly.
Akram ul Haq Alvi v. Joint Secretary (R-II) Government of Pakistan, Finance Division,
Islamabad and others 2012 SCMR 106 distinguished.
(b) Civil Servants Act (LXXI of 1973)---
----S. 19---Pension, right of---Nature---Acquired and vested right---Pension formed a part of a
civil servant's retirement benefits---Pension was not a bounty or an ex-gratia payment but a right
acquired in consideration of past services---Pension was a vested right and a legitimate
expectation of a retiring civil servant---Right to pension was conferred by law and could not be
arbitrarily abridged or reduced except in accordance with law.
The Government of N.-W.F.P. through the Secretary to the Government of N.-W.F.P.
Communication and Works Departments Peshawar v. Muhammad Said Khan and another PLD
1973 SC 514; I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance
[50]
Division, Islamabad and others 1991 SCMR 1041; Deokinandan Prasad v. State of Bihar and
others AIR 1971 SC 1409 and State of Punjab and another v. Iqbal Singh AIR 1976 SC 667 ref.
(c) Words and phrases---
----"Restored"--- Definition.
Words and Phrases, Permanent Edition, Volume 37A; Corpus Juris Secundum, Volume
77 and Stroud's Judicial Dictionary of Words and Phrases, Fourth Edition, Volume 4 ref.
Ch. Muhammad Iqbal, Additional A.-G., Khalid Mehmood, Additional Secretary
(Regulation), Finance Department, Government of the Punjab, Lahore for Appellants.
Khadim Nadeem Malik, Advocate Supreme Court, Asif Ch., Advocate Supreme Court,
Abrar Hasan Naqvi, Advocate Supreme Court, Talat Farooq Sh., Advocate Supreme Court,
Nazeer Ahmed Qureshi, Advocate Supreme Court, Afshan Ghazanfar, Advocate Supreme Court,
Mian Ashiq Hussain, Advocate Supreme Court and Mrs. Tasneem Amin, Advocate-on-Record
for Respondents.
Date of hearing: 31st March, 2014.
JUDGMENT
SH. AZMAT SAEED, J.---Through this common judgment, it is proposed to decide the
above-captioned Civil Appeals and Civil Petitions for Leave to Appeal, involving primarily a
common question of law.
2. The essential facts necessary for adjudication of the lis at hand are that the private
respondents in the instant Civil Appeals and Civil Petitions for Leave to Appeal are former
employees of the Government of Punjab, who on their retirement were sanctioned commutation
of one half of their pension for a period of 15 years in terms of the Punjab Civil Services Pension
Rules, 1963 (hereinafter referred to as the Rules of 1963). During the period of commutation i.e.
15-years, periodic increase in pension was effected by the Government of the Punjab. On expiry
of the commuted period, the pension of the respondents was restored and full pension inclusive
of the afore-said periodic increase was disbursed to the respondents. On 22-3-2008, the Finance
Department, Government of the Punjab issued a letter, in light of an Office Memorandum
No.F.13(6)-Reg-6/2003, dated 29-2-2008, issued by the Government of Pakistan, Finance
Division (Regulation Wing), as a consequence whereof the increase in pension granted during
the commuted period was deducted from the pension paid to the respondents. Being aggrieved
the private respondent in Civil Appeal No.971 of 2012, invoked the jurisdiction of the learned
Punjab Service Tribunal, Lahore (hereinafter referred to as "the learned Tribunal") through an
Appeal praying that the respondents (present appellants) be directed to allow the increase in
pension periodically granted, while the private respondents in the remaining above-captioned
Civil Appeals and Civil Petitions for Leave to Appeal, invoked the constitutional jurisdiction of
the learned Lahore High Court through various Writ Petitions, seeking a similar remedy with
regards to their individual pensions. The learned Tribunal allowed the Appeal bearing No.773 of
2009, filed by the present private respondent in Civil Appeal No.971 of 2012. Similarly, the
private respondents in the remaining above-captioned cases were also successful before the
learned High Court and appropriate Orders granting them relief were variously passed in their
favour. In some of such cases, the Accountant-General, Punjab/Government of the Punjab filed
Intra Court Appeals, which were dismissed. The Accountant-General, Punjab/ Government of
[51]
the Punjab challenged the judgment of the learned Tribunal and the judgments of the learned
Lahore High, Court passed in various Writ Petitions and Intra Court Appeals, referred to above
through Civil Petitions for Leave to Appeal and this Court allowed the same and leave
was granted, while the Civil Petitions for Leave to Appeal filed thereafter were directed
to be heard along with the Civil Appeals in which leave had been granted. These are the
aforesaid matters, which have now come up for hearing before this Court.
3. It is contended by the learned Additional Advocate-General, Punjab, that a retired Civil
Servant in terms of section 18 of the Punjab Civil Servants Act, 1974 (hereinafter referred to as
"the Act of 1974") are entitled only to the pension, as may be prescribed. The said provision, it is
contended, empowers the Government to fix the pension and also to increase the same from time
to time. The matter of increase in pension has not been provided for in the Rules framed under
the Act of 1974, leaving this aspect to be effected through the exercise of the Executive
Authority, as has been done in the instant matter. Furthermore, the grant of any increase in
pension and the quantum thereof is a matter of Government Policy, therefore, immunes from
Judicial Review. In the circumstances, impugned judgments of the learned Tribunal as well as
the learned Lahore High Court are illegal, void and liable to be set aside.
It is further contended that by way of the impugned judgments, the real matter in
controversy has been side-stepped and the findings have been rendered on moral rather than legal
grounds. It is added that the law as laid down by this Court, has either not been taken into
consideration or misinterpreted by the learned Tribunal and the learned High Court. It is further
contended that the judgments with regard to the employees of the Federal Government have been
erroneously pressed into service despite the fact that the same were inapplicable to the cases in
hand.
4. With regards to the impugned judgments passed by the learned High Court, the learned
Additional Advocate-General, Punjab, additionally contended that the said Court had no
jurisdiction to adjudicate upon the matter in view of Article 212 of the Constitution of the
Islamic Republic of Pakistan, 1973. In support on his contentions, the learned Additional
Advocate-General, Punjab, referred to the judgment, reported as Akram ul Haq Alvi v. Joint
Secretary (R-II) Government of Pakistan, Finance Division, Islamabad and others (2012 SCMR
106).
5. Learned counsel for the private respondents controverted the contentions raised by the
Additional Advocate-General, Punjab, by contending that the pension is a right of a retired Civil
Servant conferred by law and not charity. It is added that the learned Tribunal as well as the
learned High Court has correctly interpreted the law in the light of the judgments of this Court by
striking down the attempt of the appellants/petitioners to deprive the respondents of their vested
rights by treating them in a discriminatory manner without any valid classification. Hence, these
Civil Appeals/Civil Petitions merit dismissal.
6. Heard. Record perused.
7. Adverting first to the legal objection raised by the appellants that the learned High Court
had no jurisdiction to entertain the Constitutional Petitions filed by the respondents, it may be
noted that in pith and substance, it is canvassed by the learned Additional Advocate-General,
Punjab, that such Writ Petitions were barred by Article 212 of the Constitution of the Islamic
Republic of Pakistan, 1973, as the learned Tribunal was vested with the jurisdiction to adjudicate
upon the matter. The respondents, on the other hand, have vehemently argued that the Office
Memorandum, in dispute was not a final order, passed by a designated Departmental Authority,
hence, the jurisdiction of .the learned Tribunal could not be invoked and validity of the Office
Memorandum in dispute could always be called into question through a petition under Article
[52]
199 of the Constitution of the Islamic Republic of Pakistan, 1973. Be that as it may, one of the
Civil Appeals i.e. Civil Appeal No.971 of 2012, arises from the judgment passed by the learned
Tribunal to which no such objection has been taken by the appellants and any adjudication
thereupon qua the legal issues involved and rights affirmed would enure to the benefit of all
other retired Civil Servants placed in similar circumstances including all the respondents, as has
been repeatedly held by this Court inter alia by the judgment, reported as Government of Punjab,
through Secretary Education, Civil Secretariat, Lahore and others v. Sameena Parveen and others
(2009 SCMR 1). In the circumstances, the objection is of no legal consequence or effect.
8. A perusal of the offending Office Memorandum dated 22-3-2008 reveals that the same
has been issued in the light of the Government of Pakistan, Finance Division (Regulations
Wing), Office Memorandum dated 29-2-2008 whereby the Civil Servants of the Federation were
deprived of the increase in their pension sanctioned during the commuted period. The said Office
Memorandum of the Federal Government was called into question before the learned Lahore
High Court. The Office Memorandum was struck down by a learned Single Judge of the said
High Court in the case, reported, as A.A. Zuberi v. Additional Accountant General Pakistan
Revenue, Lahore [2010 PLC (C.S.) 1211]. The said judgment of the learned Single Judge was
challenged in appeal through an Intra Court Appeal, which was dismissed by a learned Division
Bench of the said High Court vide judgment dated 16-6-2010, reported as Additional
Accountant-General Pakistan Revenue, Lahore v. A. A. Zuberi [2011 PLC (C.S.) 580].
Whereafter, Civil Petitions for Leave to Appeals Nos.2393 and 2394 of 2010 were filed before
this Court challenging the aforesaid judgment of the learned Division Bench of the High
Court, which too were dismissed vide judgment dated 10-12-2010, as barred by limitation. The
said judicial pronouncements have been implemented by the Federal Government vide Office
Memorandum dated 10-9-2009, whereby the retired Civil Servants of the Federal Government
are being paid their pension inclusive of the increases sanctioned during the commutated period.
Thus, the very decision of the Federal Government in the light whereof the Office Memorandum
dated 22-3-2008 had been issued is no longer in force having been struck down through a
judicial decision, which has been implemented.
9. Furthermore, the meaning and true import of the term "pension" came up for
interpretation before this Court in the case, reported as The Government of N.-W.F.P. through
the Secretary to the Government of N.-W.P.P. Communication and Works Departments,
Peshawar v. Mohammad Said Khan and another (PLD 1973 SC 514), wherein it was held as
follows:--
"It must now be taken as well-settled that a person who enters Government service has
also something to look forward after his retirement, to what are called retirement benefits, grant
of 'pension being the most valuable of such benefits. It is equally well-settled that pension like
salary of a civil servant is no longer a bounty but is a right acquired after putting in satisfactory
service for the prescribed minimum period. A fortiori, it cannot be reduced or refused arbitrarily
except to the extent and in the manner provided in the relevant rules."
The aforesaid view was quoted and approved by this Court in the case, reported as I.A.
Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad
and others (1991 SCMR 1041), wherein it was further held:--
"A pension is intended to assist a retired civil servant in providing for his daily wants so
long he is alive in consideration of his past services, though recently the above benefit has been
extended inter alia in Pakistan to the widows and the dependent children of the deceased civil
servants. The raison d'etre for pension seems to be inability to provide for oneself due to old-age.
The right and extent to claim pension depends upon the terms of the relevant statute under
which it has been granted."
[53]
A similar view has been taken by the Indian Supreme Court in the cases, reported as
Deokinandan Prasad v. State of Bihar and others (AIR 1971 SC 1409) and State of Punjab and
another v. Iqbal Singh (AIR 1976 SC 667).
10. The afore-said dictum makes it clear and obvious that with regard to a retired Civil
Servant, pension forms a part of his retirement benefits. It is not a bounty or an ex-gratia
payment but a right acquired in consideration of past services. Such right to pension is conferred
by law and cannot be arbitrarily abridged or reduced except in accordance with such law, as it is
a vested right and legitimate expectation of a retiring Civil Servant.
11. The right to pension of a Civil Servant of the Province of the Punjab has been conferred
by law, i.e. section 18 of the Punjab Civil Servants Act, 1974. The relevant portion thereof
reads as follows:--
"(18) Pension and gratuity: (1) On retirement from service, a civil servant shall be
entitled to receive such pension or gratuity as may be prescribed."
A perusal of the afore-said provision clearly manifests that upon retirement, a Civil
Servant is entitled to receive such pension, as may be prescribed. Section 2(1)(g) of the above-
said Act of 1974, defines the word 'prescribed' to mean "prescribed by rules". Apparently, no
Rules pertaining to pension payable to Civil Servants were made after the promulgation of the
Act of 1974 i.e. 4th June, 1974. However, section 23(2) of the Act of 1974 lays down that any
Rules in force immediately before the commencement of the Act of 1974 shall be deemed to be
the Rules under the Act of 1974. The Punjab Civil Services Pension Rules, 1963 were in force
when the Act of 1974 was enacted and, therefore, by virtue of section 23(2) of the said Act, the
same are the Rules as contemplated by section 18 of the Act of 1974 and are applicable to the
matter in hand.
12. Chapter VIII of the Rules of 1963 deals with the Commutation of Civil Pensions, Rule
8.1 of the Rules of 1963 provides that the Competent Authority may sanction the commutation
for lump-sum payment of a portion of the pension. In this behalf, a Commutation Table is also
provided setting forth the number of years for which a portion of pension may be commuted and
paid in lump-sum. Such period has been indexed to the age of the Civil Servant. Rule 8.12 of the
Rules of 1963 lays down that the commuted portion of pension would be restored on completion
of the number of years for which the commuted pension was paid.
13. The amount of pension payable has been dealt with in Chapter IV of the Rules of 1963
and Rule 4.4 includes a scale of pension. The said Rule also envisages increases or indexation of
pension sanctioned from time to time. It is a matter of record that variously such periodic
increases in pension have been granted including through Office Memorandum issued in this
behalf by the Government of the Punjab. The validity and effectiveness of such increase is not
disputed by the appellants/petitioners.
14. The term "restored" has been variously defined. Some of such definitions are reproduced
hereunder:--
I. Words and Phrases, Permanent Edition, Volume 37A:
[54]
"The word "restored", as used in Rev. St. c. 9, §§ 78, 79, declaring that, if an attaching
officer has notice of a mortgagee's debt, the property shall be restored to the mortgagee, means
that it shall be surrendered and delivered to the mortgagee, from whom it was detained by the
officer. Esson v. Tarbell, 63 Mass. (9 Cush.) 407, 415.
Statute providing that wife, for whose aggression husband is granted divorce, shall be
"restored" to whole or part of her realty, acquires that realty she had when married or acquired
during marriage be returned to or reinvested in her. Sidwell v. Sidwell, Del. Super., 165 A. 334,
335, 5 W.W. Harr. 322."
II. Corpus Juris Secundum, Volume 77:
"The word "restore" relates to something having a previous existence, and is defined as
meaning to bring back; to bring back or put back to a former position or condition; to bring back
to a former and better state. It is also defined as meaning to heal.
"Restore" has been held equivalent to or synonymous with, "deliver" see 26 C.J.S. p 696
note 10.1, "repair" see 76 C.J.S. p 1174 note 15, "restate" see ante p 322 note 83, and
"substitute."
III. Stroud's Judicial Dictionary of Words and Phrases, Fourth Edition, Volume 4:
"(1) "When the statute, Larceny Act 1826 (c.29), S. 57, says that the stolen property 'shall
be restored,' it may mean the chattel stolen shall be restored; but at all events it means the
restoration of the right" (per Patteson J., Scattergood v. Sylvester, 15 Q.B. 511), and the right to
the property re-vested on conviction of the thief, so that the owner could recover it even against
one who purchased it in MARKET OVERT (ibid. 19 L.J.Q.B. 447; Nickling v. Heaps, 21 L.T.
754, which case followed the principle of Horwood v. Smith, 2 T.R. 750, on (21 Hen. 8, c. 11);
see further Chichester v. Hill, 52 L.J.Q.B. 160). The same ruling applied to the similar phrase in
S. 100 of the Larceny Act 1861 (c.96) (Bentlty v. Vilmont) 12 App. Cas. 471). In all the cases
the principle was upheld that no order for restitution was necessary to perfect the statutory
restoration of the right to the chattel. See hereon Moss v. Hancock [1899] 2 Q.B. 111, cited
MONEY.
(2) An obligation to "restore" a ROAD interfered with under compulsory powers, semble,
is to make it as nearly as possible identical with the road before the interference (R. v.
Birmingham & Gloucester Railway, 2 Q.B. 47)."
15. With reference to the context of the Rules of 1963, more particularly, Rule 8.12 the term
"restored" appears to mean the restoration of the right to pension with the retired Civil Servant
being re-vested therewith.
16. Thus, under section 18 of the Act of 1974, a retired Civil Servant is entitled to receive
pension as may be prescribed. In case a portion of pension is commuted for a particular period of
time, he surrenders his right to receive full pension in lieu of lump-sum payment received by him
and on expiry of the commuted period, his right and entitlement to receive full pension, as
prescribed, is restored and re-vested in him. The restoration of the right to receive pension in
terms of Rule 8.12 of the Rules of 1963, is without any rider and upon re-vesting of such right,
the status of such retired Civil Servant in law is brought at par with the other retired Civil
Servants, who had not exercised their option by seeking commutation of their pension. Such is
the obvious effect of the term "restoration" as used in the Rules in question. In the circumstances,
[55]
a retired Civil Servant, on expiry of the period of commutation, cannot be discriminated against
by being paid less pension, then his colleagues, who had not sought commutation, as there was
no valid classification available in law between the two. If the Government were to adopt such
a course of action as has been attempted to be done, it would offend against Article 25
of the Constitution of the Islamic Republic of Pakistan, 1973. Such right in terms of section 18
of the Act of 1974 would obviously mean the pension, as prescribed by the Rules payable
on the date of restoration and would obviously include any increase in pension granted by the
Government during the intervening period of commutation, as such, increase is envisaged by the
Rules.
17. The reliance attempted to be placed by the learned Additional Advocate General, Punjab,
in the case, reported as Akram ul Haq Alivi (supra) is misconceived. By way of the said
judgment, the law as laid down by this Court in Civil Appeals Nos.1305 to 1327 of 2003, has
been reiterated and reproduced in-extenso. The dictum, as laid down is merely that a retired Civil
Servant is entitled to the pension as may be prescribed and a decision granting increase in
pension has been interpreted by upholding the legal fiction of a net-pension created for the
purpose of calculating the increase as granted by the decision under consideration.
18. With regards to Civil Servants in the service of the Federation, an attempt was made to
press the judgment, reported as Akram ul Haq Alvi (supra) to deprive the said Civil Servants of
the increases sanctioned during the commuted period of pension. Such argument was
resoundingly repelled by this Court in its judgment, reported as Federation of Pakistan v.
Ghulam Mustafa and others (2012 SCMR 1914).
19. The afore-said are the detailed reasons of our short Order dated. 31-3-2014, which is
reproduced hereunder:--
"For reasons to be recorded later in the detailed judgment; we are persuaded to hold that
the interpretation being accorded to Rule 8.1 read with 8.12 of the Punjab Civil Services Pension
Rules vide the office memorandum issued by the Government of Punjab dated 22-10-2001 is not
only violative of those Rules but also of Article 25 of the Constitution of Islamic Republic of
Pakistan. These appeals and petitions are, therefore, dismissed with no orders as to costs."
MWA/S-15/SC Order accordingly.
[56]
Annex-D
2011 PLC (C.S.) 580
[Lahore High Court]
Before Syed Mansoor Ali Shah and Muhammad Yawar Ali, JJ
ADDITIONAL ACCOUNTANT-GENERAL PAKISTAN REVENUE, LAHORE
Versus
A.A. ZUBERI
Intra-Court Appeals Nos.118 and 215 of 2009 in Writ Petition No.2147 of 2009, decided on 16th
June, 2010.
(a) Civil service---
----Pension---Import, object and scope---Pension is a post retirement benefi t of a civil servant
which is earned by a civil servant b y giving the best years of his life in the service of his
country---Such post-retirement monetary allowance is geared to comfort and protect a civil
servant in post retirement days when he ordinarily has no other source of income, is infirm
and of -old age---Pension is, therefore, very life-line of a civil servant in post-retirement days
and, therefore, an integral part of his levelihood and more dearer than salary received during
his service---Pension cannot be a static amount as it has to provide for rising cost of living and
escalating inflation which retired civil servant has to face and survive in---Like 'salary, pension
is a real time concept.
D.S. Nakara v. Union of India AIR 1983 SC 130 and Smt. Poonamal v. Union of AIR 1985 SC
1196 rel.
(b) Civil Servants Act (LXXI of 1973) ---
[57]
----S. 19---Pension Rules, 1969, Rr.3.29 & 9.1(vii)---Constitution of Pakistan, Arts.2-A, 9 &
25---Law Reforms Ordinance (XII of 1972), S.3-Intro-court appeal---Pension benefits---
Restoration of full pension---Quantum---Respondents were retired civil servants who got their
50% pension commuted and after lapse of 15 years their full pension was restored---Grievance
of authorities was that the restored pension to retired civil servant should be that which was
payable at the time of commutation and not the current amount of pension which was inclusive
of all increments---Validity---When pension stood restored at the and of commutation period,
retired civil servants were once again entitled to 100% pension as it stood on that day---Best
index to gauge pension due on the date of restoration was the amount of 50% pension which
was being received monthly by retired civil servants and the pension due would be double the
amount being received---High Court found it preposterous to imagine that a civil servant was
given pension in year, 2008 which h e was entitled to draw in. year, 1993 (15 years ago)---
Such action would offend the right to livelihood of retired civil servants. guaranteed under
Art.9 of the Constitution---Payment of such amount as pension would fail to meet the test of
economic justice which was also an integral part of right to life as provided in the preamble
and Objectives Resolution of the Constitution---Depriving a civil servant of his lawful
pension was also discriminatory when compared to equally placed retired civil servants,
who were drawing the current rate of pension, as the same would offend Art.25 of the
Constitution---No civilized system could provide for such an unreasonable and uneconomic
post-retirement benefit to their employees who had given their golden years for public service of
their country---Restoration of pension under R.3.29 of Pension Rules, 1969, meant the pension
due to a retired civil servant in that year inclusive of all increments till that time (i.e.
accumulated over the last 15 years)---Restored pension would simply be double the amount of
50% pension which the retired civil servants were already drawing---Intro-court appeal was
dismissed accordingly.
Black's Law Dictionary and I.A. Sharwani and others v. Government of Pakistan through
Secretary, Finance Division, Islamabad and others 1991 SCMR 1041 rel.
Muhammad Ashraf Khan, D.A.-G. for Appellant.
Syed Abrar Hussain Naqvi for Respondents.
Dates of hearing: 15th and 16th June, 2010.
JUDGMENT
SYED MANSOOR ALI SHAH, J,---ICA No.118 of 2009 and ICA No.215 of 2009 are being
decided through this consolidated judgment.
2. Brief facts are that the respondents in both the appeals are retired civil servants. In I.-C.A. 118
[58]
of 2009, the respondent is A.A. Zuberi, who retired as Member, Income Tax Appellate Tribunal
on 31-5-1993. While in ICA No.215 of 2009 the respondent is Abrar Hussain Naqvi, who retired
as Chairman, income Tax Tribunal on 31-12-1993. After retirement, both the respondents opted
for 50% commutation of pension for a period of 15 years which was allowed and, therefore, 50%
of the pension of the respondent was commuted while the remaining 50% was paid to the
respondent on monthly basis. After the lapse of 15 years the full pension of the respondents was
'restored.
3. The precise question for determination before this Court is the quantum of 50% pension that is
restored at the end of the commutation period, Is it the amount of pension payable at the time of
commutation in the year 1993 or is it the current amount of pension, which is inclusive of all the
increments granted over the last 15 years (which is also reflected in the amount of 50% pension
being paid to the respondents monthly)?
4. To fully appreciate the contention of the parties it is important to provide a snapshot of the
pension details of the respondents as collected from the writ petition and its annexures: ---
Sr.
No.
Name Gross pension in
1993 in Rs. Per
month
50%pension
Payable per
month in Rs.
50% pension
commuted for 15
years in Rs.
1 A.A. Zuberi 11176.83 5588 887,128
2 Abrar Hussain Naqvi 5490.60 2745.34 599,079.91
50% pension
payable in
2008 in Rs. Per
month
50% pension
restored +20%
Increase on the
restoration
amount in Rs.
Total restored
pension in Rs.
Per month
Claim of total
pension in
2008 in Rs.
Differential in
Rs. per month
17426 6674 24100
(17426+6674)
34852 10752
13736 3873 17610 (13736
+3874)
27472 9862
5. The writ petition was allowed vide impugned order dated 11-2-2009 and according to the
respondents they were held entitled to the full pension as it stood in the year 2008 along with all
the increments that accrued over the period of 15 years. The judgment of the learned Single
Judge is not clear and, therefore, the operative part is reproduced hereunder:
"(13) For the reasons mentioned above, I see the impugned action by the authorities as
highly indiscriminate and violative of the rights of the civil servants and therefore declare
the same without lawful authority, having no legal effect, and direct the respondents to
calculate the petitioner's revived pension amount reflecting the total increases from the
date of expiry of period of 15 years i.e. with effect from 31-5-2008 and pay the arrears of
the said 'period to the petitioner. However, the petitioner shall not be entitled for any
increase prior to 31-5-2008 i.e. the period of 15 years maturity." (emphasis supplied)
[59]
6. Learned counsel for the appellant submitted that the word "Commutation" means "alteration
change, substitution; the act of substituting one thing for another" and referred to Black's Law
Dictionary, 5th Edition in this regard. He relied on the said meaning to submit that the
respondent was not getting any pension during the period of commutation, therefore, the
increments over the said period cannot accrue to the respondents. The counsel relied on clause
9.39 of Chapter IX of the Financial Rules of the Federal Government (ref: Ministry of Finance
O.M. No.F 10(8)) Reg.(6)/85, dated 25-6-1985) which states:--
"9.39 The commuted amount of pension equal to 1/4th of the gross amount of pension
shall be restored on completion of the number of years for which commuted value was
paid.
7. He also referred to F.D.O.M. No.F.10(8)-Reg.(6)/845, dated 25-6-1985
Subject: Restoration of commuted portion of pension (ref: Compendium of Pension Rules
and Orders) which states:--
"The undersigned is directed to state that under the existing rules a pensioner on his
option can get his pension commuted upto a maximum of 50 per cent. In such cases
Government pays commuted .value of such portion of pension for a number of years
according to age next birthday after retirement as shown in the Commutation Table. The
President has been pleased to decide that commuted portion of pension to the extent of
1/4th of gross pension shall be resorted w.e.f. 1st July; 1985 in the case of such civil
pensioners including those paid from Defence Services Estimates who have already
completed the number of years for which commuted value of pension was paid. The 1/4th
Commuted portion of pension shall also be restored in the case of those retiring in future
on completion, of the number of years for which commuted value is paid."
(2) In restoring the commuted portion of pension fraction of a year shown in the
Commutation Table which is less than 6 months will be ignored and that of 6 months and
more will count as one year.
(3) No arrears on account of restoration of commuted portion of pension will be- payable
in those cases in which the number of years paid for had been completed before 1st July,
1985."
8. He also referred to Office Memorandum dated 29-2-2008 which is also reproduced hereunder
for ready reference:---
[60]
Government of Pakistan
Finance Division (Regulations Wing)
**********
No.F.13(16)-Reg.6/2003 Islamabad the 29th February, 2008.
OFFICE MEMORANDUM
Subject:- RESTORATION OF PENSION SURRENDFRED IN LIEU OF
COMMUTATION/GRATUITY.
The undersigned is directed to refer to Finance Division's O.M.No.F.5(2)-Reg.6/2002
dated 2nd July, 2002 on the above subject and to state that in pursuance of the Judgment
dated 21-4-2007 passed by Federal Service Tribunal in civil petition No.495(R)/CS/2003,
it has been decided that increase in pension admissible in the respective financial year be
allowed on the restored commuted portion of pension to all those Government servants
who retired on or before 30-6-2001 with effect from the date on which the commuted
value of pension has been restored.
(Sd.)
(MUHAMMAD SALEEM SALEEMI)
Deputy Secretary (R.III)
9. Counsel for the appellant relying on the above submitted that the pension on the date of
commutation will be restored plus the increase of 20% granted in the year 2008 (the year when
the 15 years period lapsed). He argued that no pension during the period of commutation can be
extended to the respondents.
10. The contention of the respondents is that during the period of commutation increase in
pension was granted ranging from 5% to 20% and therefore restoration of pension means the
pension inclusive of increments granted over the last 15 years. Therefore, pension in the year
2008 should be double of the 50% pension received by the respondents per month. The counsel
argued that the increase has been in the "pension" and, therefore, the respondents cannot be
deprived of the said increments. In support of his arguments, he referred to Section 19 of the
Civil Servants Act, 1973 and I.A. Sharwani and others v. Government of Pakistan through
Secretary, Finance Division, Islamabad and others 1991 SCMR 1041 (at 1096).
11. Arguments heard. Record perused.
[61]
12. It is important to first understand the meaning and scope of "Pension". Pension has been
defined in Rule 9.1 (vii) of the Pension Rules, Chapter IX of the Financial Rules of the Federal
Government as:
"(vii) Pension.-. (-) a periodical payment made by Government in consideration of past
services rendered by a Government servant. Except when the term "Pension" is used in
contradistinction to Gratuity "Pension" includes Gratuity."
13. Section 19 of the Civil Servants Act, 1973 provides that on retirement from service, a civil
servant shall be entitled to receive such pension as may be prescribed.
14. Pension as defined in Black's Law Dictionary means "a fixed sum paid regularly to a person
by an employer as a retirement benefit." August Supreme Court of Pakistan has extensively dealt
with the meaning and scope of "Pension" in I.A. Sharwani and others v. Government of Pakistan
through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041. The relevant
extracts are as follows:
" . . .we may first refer to the definition and raison d'etre of the term "pension" and the nature of
right in respect thereof. In this regard, reference may be made to Encyclopaedia Britannica,
Volume 17, 1963 Edition, page 488, Corpus Juris Secundum, Volume 67, pages 763 and 764,
Corpus Juris Secundum, Volume 70, page 423, American Jurisprudence, Volume 40, pages 980
and 981, and para. 29 from the judgment in the case of D.S. Nakara and others v. Union of India
(supra), which read as follows:-
Extract from Encyclopaedia Britannica, Vol. 17, 1963 Edition page 488 ---"Pensions are
periodic payments, usually for the natural life of a person who retires because of age or
disability. Sometimes the term refers to periodic payments to wives, widows or children
of a primary or deceased person or pensioner; occasionally, a pension will be conveyed
solely as an honour for conspicuous, service or valour. Pensions are provided by
Government in three guises: (1) as compensation or recompense to war veterans and
families for old age or for disability or death, usually from service causes; (2) as
disability or old age retirement benefits for civilian employees of government; (3) as
social security payments for the aged, disabled or deceased citizenry based on past
employment history or subject to current evidence of need. Pensions are also provided by
many non-Governmental employers as a means of protecting workers retiring for age or
disability and for relieving the payroll of superannuated personnel. They are sometimes
provided by union-management welfare funds, associations or trusteeships. Only rarely
do employees in groups, associations or unions undertake their own pension programme
without employer or Government assistance."
Extract from Corpus Juris Secundum, Vol. 67, pages 763-764.--"Except as limited by the
Constitution the establishment of a pension system is within the scope of the legislative
power. The granting of pensions to public officers or public employee` serves the public
purpose, and is designed to induce competent persons to enter and remain in the public
service or employment, and to encourage the retirement from public service of those who
[62]
have become incapacitated from performing their duties as well as they might be
performed by younger or more vigorous persons. It has also been stated that pension
system is intended to promote efficient, continued and faithful service to the employer
and economic security to the employees and their dependents, by an arrangement under
which, by fulfilment of specified eligibility requirements, pensions become property of
the individual as a matter of right upon the termination of public service."
Extract from Corpus Juris Secundum, Vol. 70, page 423. ---"A pension is a periodical
allowance of money granted by the Government in consideration or recognition of
meritorious past services, or of loss or injury sustained in the public service. A pension is
mainly designed to assist the pensioner in providing for his daily wants, and it
presupposes the continued life of the recipient."
Extract from American Jurisprudence, Vol. 40, pages 980 and 981. ---"The right to a
pension depends upon statutory provisions therefore, and the existence of such right in
particular instances is determinable primarily from the terms of the statute under which
the right or privilege is granted. The right to a pension may be made to depend upon such
conditions as the grantor may see fit to prescribe. Thus, it has been held that it may be
provided, in a general Pension Act, that any person who accepts the benefits thereof shall
forfeit his right to a special pension previously granted."
Para. 29 from the judgment in the case of D.S. Nakara and others v. Union of India
(supra). ---"Summing-up it can be said with confidence that pension is not only
compensation for loyal service rendered in the past, but pension also has a broader
significance, in that it is a measure of socio-economic justice which inheres economic
security in the fall of life when physical and mental prowess is ebbing corresponding to
aging process and, therefore, one is required to fall back on savings. One such saving in
kind is when you give your best in the hey day of life to your employer, in days of
invalidity, economic security by way of periodical payment is assured. The term has been
judicially defined as a stated allowances or stipend made in consideration of past service
or a surrender of rights or emoluments to one retired from service. Thus the pension
payable to a Government employee is earned by rendering long and efficient service and
therefore can be said to be a deferred portion of the compensation for service rendered. In
one sentence one can say that the most practical raison d'etre for pension is the inability
to provide for oneself due to old-age. One may live and avoid unemployment but not
senility and penury if there is nothing to fall back upon."
15. "Pension is neither a bounty not a matter of grace depending upon the sweet will of the
employer, nor an ex gratia payment. It is a payment for the paste 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 (if the
Constitution. The most practical raison d'etre 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 34]." Reliance is
placed on D.S. Nakara v. Union of India AIR 1983 SC 130.
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16. In Smt. Poonamal v. Union of AIR 1985 SC 1196, it was held:---
"Pension is not merely a statutory right but it is the fulfilment, 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 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 payment of 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 at the 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.
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.
22. We, therefore, hold that under Rule 3.29 of the Pension Rules (supra) the restoration of
pension means the pension due to a retired civil servant in that year inclusive of all the
increments till that time (i.e. accumulated over the last 15 years in this case). In other words it
would simply be double the amount of 50% pension the respondents are already drawing. These
appeals are, therefore, dismissed. The order of the learned Single Judge is modified/clarified in
the above terms.
M.H./A-165/L Order accordingly.
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Annex-E
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Annex-G
2012 S C M R 106
[Supreme Court of Pakistan]
Present: Tassaduq Hussain Jillani, Mian Saqib Nisar and Asif Saeed Khan Khosa, JJ
AKRAM UL HAQ ALVI---Appellant
Versus
JOINT SECRETARY (R-II) GOVERNMENT OF PAKISTAN, FINANCE DIVISION,
ISLAMABAD and others---Respondents
Civil Appeal No. 245-L of 2011, decided on 29th June, 2011.
(On appeal against the order dated 16-11-2010 passed by the Federal Service
Tribunal, Islamabad in Appeal No. 1389(R)CS of 2010).
Civil Servants Act (LXXI of 1973)---
----S. 19---Civil Service Rules, R. 4---Service Tribunals Act (LXX of 1973), S. 4---
Constitution of Pakistan, Art. 212(3)---Appeal---Increase in pension of appellant allowed on
gross pension through Notification dated 23-7-1999 withdrawn through Notification dated 4-
9-2001 allowing same on net pension---Refusal of Service Tribunal to give appellant benefit
of Notification of year 1999---Validity---Government under S. 19 of Civil Servants Act,
1973 had powers to fix an amount of pension, increase same, bring about changes therein
from time to time and prescribe method for its calculation---In absence of any bar or
restriction, Government was free to decide whether to grant increase in pension on gross or
net pension---Previous mode of increase on gross pension could not restrain Government
from changing same---Increase in pension was purely an executive act and based on a policy
taking into consideration various factors including inflation and Government financial
constraints---In absence of definition of pension for purpose of calculating increase therein,
pension would be given meaning assigned thereto in instrument by which same was
increased---According. to Cl. (f) of Para 16 of Notification dated 4-9-2001, rate of increase
in pension in future would be calculated on net pension instead of gross pension---Supreme
Court dismissed appeal in circumstances.
Bashir Ahmed Solangi v. Chief Secretary, Government of Sindh 2004 SCMR 1864
and Government of Pakistan v. Village Development Organization 2005 SCMR 492 ref.
Civil Appeals Nos. 1305 to 1327 of 2003 fol.
Appellant in person.
Naseem Kashmiri, D.A.-G. and A.H. Masood, Advocate-on-Record for Respondents.
Date of hearing: 29th June, 2011.
[140]
ORDER
TASSADUQ HUSSAIN JILLANI, J.---Through this appeal by leave of the Court,
the appellant has challenged the judgment dated 16-11-2010 vide which the learned Federal
Service Tribunal dismissed appellant's appeal and relying on a judgment of this Court
dated 19-12-2005 found that the increase in pension of the appellant would not on 'gross' but
on 'net' pension.
2. Appellant has argued his case himself and the main thrust of his submissions has been
that in view of the judgments of this Court reported at Bashir Ahmed Solangi v. Chief
Secretary, Government of Sindh (2004 SCMR 1864) and Government of Pakistan v. Village
Development Organization (2005 SCMR 492) the Federal Government having allowed the
increase on gross pension in terms of its earlier notification dated 23-7-1999 could not have
withdrawn the said relief by a subsequent notification dated 4-9-2001 as appellant was
retired in the year 2000 and was drawing benefit of the former notification of the year 1999
and the latter notification (of the year 2001) could not be used to deprive the benefit which
had already accrued to him.
3. Learned Deputy Attorney-General, on the other hand, defended the impugned
judgment mainly on the ground that the quantum of increase in pension is basically an
executive function and the Government from time to time has got the power to review or
modify the same keeping in view the host of factors including inflation, financial constraints
and other factors tenable in law. He lastly relied on a judgment of this Court passed in Civil
Appeals Nos. 1305 to 1327 of 2003 wherein this power of the Government was upheld.
4. Having heard the appellant and learned Law Officer at some length, we find that the
subsequent notification dated 4-9-2001 had the effect of revising basic pay scales and fringe
benefits of the civil employees and the issue of its vires including the question whether the
principle of locus poenitentiae was attracted, was considered by this Court in Civil Appeals
Nos. 1305 to 1327 of 2003 and this Court came to the conclusion as follows:--
"There is no provision in the Civil Servant Act, 1973 providing or the Rules
specifically for increase in pension. However section 19 of the Act provides that a
civil servant shall be entitled to receive such pension as may be prescribed. This
provision therefore empowers the Government to fix an amount of pension and also to
increase the same from time to time. No formal rules have been framed for the
purpose of increase in pension and the increase had been made from regularly through
Office Memorandums. The documents relied upon by the respondents in support of
their contention that previously the increase used to be on gross pension are in the
form of Office Memorandums dated 29-6-1995, 23-7-1999, where it is stated that
pension, for the purpose of increase, is the amount before commutation etc. However
in these Office Memorandums it has been expressly stated that the meaning given to
the terms pension is relevant only for the purpose of interpreting pension as it appears
in the Office Memorandums. Thus there is no general definition of pension for the
purpose of calculating increase therein and it is to be given the meaning assigned to it
in the instrument by which the pension is increased. In the Notification of 4-9-2001 it
has been clearly laid down that the rate of increase in the pension is to be calculated
on net pension. For the sake of further clarity, Clause (f) of para 16 of the Notification
declared that "in future the increase in pension to the pensioners shall be allowed on
net pension instead of gross pension". The Government undoubtedly is invested with
the power to fix the amount of, or increase, pension, to lay down the method for its
calculation, and to bring about changes therein. Reference may be made to Section 19
of the Civil Servant Act and Rule 4 of the C.S.R. In the absence of any statutory bar
or restriction the Government is free to decide whether to grant enhancement in
pension on gross or net pension. The Tribunal therefore erred in holding that the
increase can only be on full and not net pension. Furthermore, the previous mode
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adopted by the Government cannot restrain it from changing it. Since the increase in
pension is purely an executive act and is based on a policy, which takes into
consideration various factors, including inflation and the Government financial
constraints, the amount of increase given to the pensioner by the Notification in
question must have been determined on the premise that the same would be payable
on net and not gross pension. To accept the plea of the respondent would lead to
creating an additional financial burden on the exchequer not envisaged by the
Government at the time of issuing the Notification in question. The Tribunal gave the
impugned direction simply because of its misconception that pension can neither be
'net' nor 'gross' but simply "pension". As observed above such conclusion is
untenable."
5. Respectfully reiterating the earlier view taken by this court, to which reference has
been made above, we do not find any merit in this appeal, which is dismissed.
S.A.K./A-42/SC Appeal dismissed.
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Annex-H
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