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
JUDGMENT

Accountant General Punjab etc.

Date of hearing: Petitioner by:

17.11.2011. Syed Muhammad Saqlain Rizvi, Advocate. Mian Masood Ahmed, Advocate for petitioner in connected writ petition No.6293/2011. 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.

Respondents by:

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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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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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 on I.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. 7. Arguments heard, record perused. 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 as Additional 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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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 in Additional

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 lifeline 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 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.

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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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SCHEDULE-A
Sr. No. 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. W. P. No.6293/2011 W. P. No.20376/2011 W. P. No.20377/2011 W. P. No.20378/2011 W. P. No.20379/2011 W. P. No.20380/2011 W. P. No.20381/2011 W. P. No.20382/2011 W. P. No.20383/2011 W. P. No.20384/2011 W. P. No.20385/2011 W. P. No.20386/2011 W. P. No.20387/2011 W. P. No.20388/2011 W. P. No.20389/2011 W. P. No.20390/2011 W. P. No.20391/2011 Tufail Muhammad Alvi v. Government of the Punjab etc. Mian Ahmad Saeed Khan v. Accountant General Punjab, Lahore etc. Muhammad Barket Mehmood v. Accountant General Punjab, Lahore etc. Ch. Muhammad Aslam v. Accountant General Punjab, Lahore etc. Muhammad Iqbal Ch. v. Accountant General Punjab, Lahore etc. Mumtaz Ahmad v. Accountant General Punjab, Lahore etc. Sh. Muhammad Sharif Sabir v. Accountant General Punjab, Lahore etc. Muhammad Rashid Zafar v. Accountant General Punjab, Lahore etc. Mrs. Surriya Ali v. Accountant General Punjab, Lahore etc. Abdul Jalil Najfi v. Accountant General Punjab, Lahore etc. Nabi Bakhash Sabir v. Accountant General Punjab, Lahore etc. Ch. Abdul Hameed v. Accountant General Punjab, Lahore etc. Fateh Khan Ch. v. Accountant General Punjab, Lahore etc. Mukhtar Ahmad v. Accountant General Punjab, Lahore etc. Muhammad Ali Pir v. Accountant General Punjab, Lahore etc. Qazi Zafar Ullah Khan v. Accountant General Punjab, Lahore etc. Ch. Muhammad Akram v. Accountant General Punjab, Lahore etc. Case No. Title

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10

18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28.

W. P. No.20392/2011 W. P. No.20393/2011 W. P. No.20394/2011 W. P. No.25402/2011 W. P. No.25403/2011 W. P. No.21546/2011 W. P. No.21547/2011 W. P. No.21548/2011 W. P. No.21549/2011 W. P. No.21550/2011 W. P. No.21551/2011

Anwar Kamal v. Accountant General Punjab, Lahore etc. Mirza Abdul Aziz v. Accountant General Punjab, Lahore etc. Ch. Muhammad Hafeez Ullah v. Accountant General Punjab, Lahore etc. Mian Muhammad Tufail v. Accountant General Punjab, Lahore etc. Abdul Bari v. Additional Accountant General Punjab, Lahore etc. Muhammad Aslam Khan Lashari v. Accountant General Punjab, Lahore etc. Muhammad Saad Ullah v. Accountant General Punjab, Lahore etc. Malik Muhammad Amin Khan v. Accountant General Punjab, Lahore etc. Syed Amir Ahmad Shah v. Accountant General Punjab, Lahore etc. Mian Ahmad Bashir Khan v. Accountant General Punjab, Lahore etc. Ahmad Saeed Akhter v. Accountant General Punjab, Lahore etc.

(Syed Mansoor Ali Shah) Judge

*A.W.*