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Stereo. H C J D A 38.
Judgment Sheet
IN THE LAHORE HIGH COURT LAHORE
JUDICIAL DEPARTMENT
Case No: W. P. 21545/2011.
Ghulam Yasin. Versus Accountant General Punjab etc.
JUDGMENT
Date of hearing: 17.11.2011.
Petitioner by: Syed Muhammad Saqlain Rizvi, Advocate.Mian Masood Ahmed, Advocate for petitioner
in connected writ petition No.6293/2011.
Respondents by: Khawaja Salman Mahmood, Assistant
Advocate General, Punjab.Khalid Mehmood, Deputy Secretary (SR),
Finance Department.Irfan Ahmad Janjua, Law Officer, Accountant
General, Punjab, Lahore
M. Mushtaq Qaisrani, Account Officer,Accountant General Officer, Punjab, Lahore.
Syed Mansoor Ali Shah, J: -This judgment will dispose of the
instant writ petition, as well as, petitions mentioned in Schedule-A of
this judgment, as they raised similar questions of law and facts.
2. Brief facts of the instant petition are that the petitioner retired
from service as a Deputy Project Manager, Education Department,
Government of the Punjab on 01.01.1995. After retirement his 50%
pension (Rs.4,626.80) was computed for 15 years and he started
receiving remaining 50% as monthly pension. The total amount of
pension in the year, 1995 was Rs.9,253.60/-. The period of 15 years of
commutation came to an end on 01.01.2010. Over the years the
pension of the petitioner increased from 5% to 20% and the net 50%
pension received by the petitioner in the year 2010 was in the sum of
Rs.40,349.01/-.
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W. P. No. 21545/2011. 2
3. The grievance of the petitioners is that the restored commuted
portion of pension should be at par with the 50% of the pension being
paid to the petitioners after the expiry of the commuted period of 15
years. It is contended that the petitioners are entitled to pension under
section 18 of the Punjab Civil Servants Act, 1974 read with Punjab
Civil Services (Pension) Rules, 1955 (Rules). However, the said law
is silent regarding the total quantum of restored commuted portion of
the pension. The petitioners have placed reliance on a Division Bench
judgment of this Court reported as Additional Accountant-General
Pakistan Revenue, Lahore v. A.A. Zuberi, (2011 PLC (C.S.) 580)
whereby a similar question has been decided in favour of the
petitioners and increments granted during the period of commutation
were allowed to be included in the restored commuted portion of
pension at the expiry of the period of commutation.
4. Learned law officer on behalf of the respondents has raised a
preliminary objection that the instant petition is barred under Article
212 of the Constitution of Islamic Republic of Pakistan, 1973
(Constitution) as pension falls within the terms and conditions of
service of a civil servant. He also referred to letter 22.03.2008 issued
by the Finance Department, Government of the Punjab (much prior to
the expiry of the commutation period of the petitioners) wherein
increase in pension admissible in the respective financial year is
allowed on the restored commuted portion of pension to all
Government Servants who retired on or before 30.06.2001. It is
contended that letter dated 22.03.2008 issued by the Finance
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W. P. No. 21545/2011. 3
Department amounts to final order for the purposes of section 4 of the
Punjab Service Tribunals Act, 1974 (Act) against the petitioners.
Learned law officer has placed reliance onI.A. Sharwani and others v.
Government of Pakistan through Secretary, Finance Division,
Islamabad and others, (1991 SCMR 1041), Muhammad Arshad
Saeed, DIG Police v. Government of Pakistan through Secretary,
Establishment Division, Islamabad and 29 others, (1994 SCMR
1033) and Iqan Ahmed Khurram v. Government of Pakistan and
others, (PLD 1980 S.C. 153).
5. On merits learned law officer submitted that the petitioners are
not entitled to the increase in the pension over the period of
commutation and are only entitled to the amount of pension at the
time of commutation i.e., 15 years ago.
6. Arguments heard, record perused.
7. In attending to the preliminary objection raised by the learned
law officer it is important to see the context in which the challenge
has been brought by the petitioners. The grievance of the petitioners is
that Rules (i.e., Punjab Civil Service (Pension) Rules, 1955) are silent
regarding the quantum of pension (restored commuted portion of the
pension) to be granted to the petitioners on the expiry of the
commuted period. Therefore, the petitioners on the basis of their
fundamental rights, as well as, the judgment of the Division Bench
reported asAdditional Accountant-General Pakistan Revenue, Lahore
v. A.A. Zuberi, 2011 PLC (C.S.) 580 (petitions against the said
judgment have been dismissed by the august Supreme Court of
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W. P. No. 21545/2011. 4
Pakistan vide order dated 10.12.2010 passed in Civil Petition Nos.
2393 and 2394 of 2010) have prayed that the quantum of pension on
the expiry of the commuted period should be at par with the remaining
50% of the pension being continuously received by the petitioners.
Letter dated 22.03.2008 issued by the Finance Department,
Government of the Punjab is a facility extended to the petitioners for
the first time whereby increments in the pension granted in the
financial year in which the commuted period expires are admissible
and are to be included in the restored commuted portion of the
pension. The said letter issued by the Finance Department, therefore,
allows increase in the pension in the financial year in which the said
pension is restored and is beneficial to the petitioners. However, the
petitioners claim for more in terms of the Division Bench judgment of
this Court, mentioned above. Hence, there is no Final Order passed
against the petitioners by any Departmental Authority. Letter dated
22.03.2008 issued by the Finance Department, Government of the
Punjab is not adverse to the interest of the petitioners and, therefore,
does not pass as a Final Order by a Departmental Authority under
section 4 of the Act. Learned law officers reliance on I.A. Sharwani
and others vs. Government of Pakistan through Secretary, Finance
Division, Islamabad and others(1991 SCMR 1041) is unfounded as
in this case, which also coincidentally deals with pension, Ajmal
Mian, J speaking for the Supreme Court of Pakistan, held as follows
while deciding the preliminary objections regarding the
maintainability of the petition under Article 184(3) of the
Constitution:-
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W. P. No. 21545/2011. 5
We are inclined to hold that if a statutory rule or a notification
adversely affects the terms and conditions of a civil servant,
the same can be treated as an order in terms of subsection (1) of
section 4 of the Act in order to file an appeal before the Service
Tribunal. (emphasis supplied).
8. In Iqan Ahmed Khurram vs. Government of Pakistan and
others (PLD 1980 S.C. 153) the bar under Article 212 of the
Constitution was applicable because the Rules in the said case altered
the terms and conditions of service of civil servants.
9. In Muhammad Arshad Saeed, DIG Police vs. Government of
Pakistan through Secretary, Establishment Division, Islamabad and
29 others (1994 SCMR 1033), Shafiur Rahman, J, speaking on
behalf of the Supreme Court of Pakistan once again dealing with the
scope of Service Tribunals Act, held:-
All such orders, if they affect the terms and conditions
of the service of the employee would qualify as
departmental orders ex facie issued by the authority
within the department empowered to do so. (emphasis
supplied).
10. In the present case, no adverse order has been passed against
the petitioner by a departmental authority and letter dated 22.03.2008
issued by the Finance Department does not affect the terms and
conditions of service of the petitioner, hence the preliminary objection
raised by the learned law officer is overruled.
11. I, while speaking for Division Bench of this Court inAdditional
Accountant-General Pakistan Revenue, Lahore held as follows:-
15. Pension is neither a bounty not a matter of grace
depending upon the sweet will of the employer, nor an ex
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W. P. No. 21545/2011. 6
gratia payment. It is a payment for the past service
rendered. It is a social welfare measure rendering
socioeconomic justice to those who in the hey-day of their
life ceaselessly toiled for the employer on an assurance
that in their old age they would not be left in lurch.
Pension as a retirement benefit is in consonance with and
furtherance of the goals of the Constitution. The most
practical raison detre for pension is the inability to
provide for oneself due to old age. It creates a vested right
and is governed by the statutory rules such as the Central
Civil Services (Pension) Rules which are enacted in
exercise of power conferred by Articles 309 and 148(5) of
the Constitution. [Central Services (Pension) Rules, 1972,
Rule 23]. Reliance is placed on D.S. Nakara v. Union of
India AIR 1983 SC 130.
16. In Smt. Poonamal v. Union of India(AIR 1985 SC
1196), it was held:---
Pension is not merely a statutory right but it is
the fulfillment, of a constitutional promise
inasmuch as it partakes the character of public
assistance in cases of unemployment, old-age,
disablement or similar other cases of
underserved want. Relevant rules merely make
effective the constitutional mandate. Pension is
a right not a bounty or gratuitous payment.
[Labour and Services].
17. Pension is, therefore, a post retirement benefit of a
civil servant which is earned by a civil servant by giving
the best years of his life in the service of the country. This
post retirement monetary allowance is geared to comfort
and protect a civil servant in the post retirement days
when he ordinarily has no other source of income, is
infirm and of old age. Pension is, therefore, the very life-
line of a civil servant in the post retirement days and,
therefore, an integral part of his livelihood and perhaps
more dearer than the salary received during his service.
18. Pension cannot be a static amount as it has to provide
for the rising cost of living and escalating inflation which
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W. P. No. 21545/2011. 7
the retired civil servant has to face and survive in.
Therefore like salary, pension is a real time concept. In
the present case the pension of the respondents was
increased every year in the range of 5% to 20%. The 50%
pension of the respondents in the year 2008 is much
higher than the one in the year 1993 as shown in the table
above. The increase most clearly covers for the
inflationary tendencies over the years.
19. Respondents commuted their 50% pension for a
period of 15 years, which means that a lump sum paymentof 50% of the pension on the basis of the pension as it
stood in the year 1993 was worked out over a future
period of 15 years and handed over to the respondents.
Therefore, during these 15 years benefit of increase in
pension was enjoyed by the respondents only to the extent
of 50% i.e., the pension received by them monthly.
20. Under the Rules the pension stands RESTORED atthe end of the commutation period. This means that the
respondents are once again entitled to 100% pension as it
stands on that day. The best index to gauge the pension
due on the said date is the amount of 50% pension being
received monthly by the respondents on the said date. The
pension due will be double the said amount. It is
preposterous to imagine that a civil servant be given
pension in the year 2008 which he was entitled to draw in
1993 (15 years ago). Such action offends the right to
livelihood of the respondents guaranteed under Article 9
of the Constitution. It also fails to meet the test of
economic justice which is also an integral part of right to
life as provided in the preamble and the Objective
Resolution to the Constitution. Depriving a civil servant
of his lawful pension is also discriminatory when
compared to equally placed retired civil servants who are
drawing the current rate of pension. This offends Article
25 of the Constitution. No civilized system can provide
for such an unreasonable and uneconomic post retirement
benefit to their employees who have given their golden
years for the public service of this country.
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W. P. No. 21545/2011. 8
21. The interpretation of the appellant on the accounting
side also appears to be unreasonable. It will be odd for a
civil servant to draw two different slabs of pensions i.e.,
50% at the rate prevalent in the year 1993 and the
remaining on the current rate inclusive of increments.[
12. Therefore, for the above reasons given in the Division Bench
judgment of this Court (supra), the petitioners in the instant petition,
as well as, in the petitions mentioned in Schedule-A are entitled to all
the increments in pension accumulated over the last 15 years. In other
words, restored computed portion of the pension must be at par with
the remaining 50% net pension as it stands on the day of the expiry of
15 years of the commutation period. Respondents are directed to
release the pension of the petitioners forthwith in the above terms.
13. For the above reasons, these petitions are allowed.
(Syed Mansoor Ali Shah)
Judge*A.W.*
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W. P. No. 21545/2011. 9
SCHEDULE-A
Sr.
No.
Case No. Title
1. W. P. No.6293/2011 Tufail Muhammad Alvi v. Government of the
Punjab etc.
2. W. P. No.20376/2011 Mian Ahmad Saeed Khan v. Accountant General
Punjab, Lahore etc.
3. W. P. No.20377/2011 Muhammad Barket Mehmood v. Accountant
General Punjab, Lahore etc.
4. W. P. No.20378/2011 Ch. Muhammad Aslam v. Accountant General
Punjab, Lahore etc.
5. W. P. No.20379/2011 Muhammad Iqbal Ch. v. Accountant General
Punjab, Lahore etc.
6. W. P. No.20380/2011 Mumtaz Ahmad v. Accountant General Punjab,
Lahore etc.
7. W. P. No.20381/2011 Sh. Muhammad Sharif Sabir v. Accountant
General Punjab, Lahore etc.
8. W. P. No.20382/2011 Muhammad Rashid Zafar v. Accountant General
Punjab, Lahore etc.
9. W. P. No.20383/2011 Mrs. Surriya Ali v. Accountant General Punjab,
Lahore etc.
10. W. P. No.20384/2011 Abdul Jalil Najfi v. Accountant General Punjab,
Lahore etc.
11. W. P. No.20385/2011 Nabi Bakhash Sabir v. Accountant GeneralPunjab, Lahore etc.
12. W. P. No.20386/2011 Ch. Abdul Hameed v. Accountant General
Punjab, Lahore etc.
13. W. P. No.20387/2011 Fateh Khan Ch. v. Accountant General Punjab,
Lahore etc.
14. W. P. No.20388/2011 Mukhtar Ahmad v. Accountant General Punjab,
Lahore etc.
15. W. P. No.20389/2011 Muhammad Ali Pir v. Accountant General
Punjab, Lahore etc.
16. W. P. No.20390/2011 Qazi Zafar Ullah Khan v. Accountant General
Punjab, Lahore etc.
17. W. P. No.20391/2011 Ch. Muhammad Akram v. Accountant General
Punjab, Lahore etc.
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W. P. No. 21545/2011. 10
18. W. P. No.20392/2011 Anwar Kamal v. Accountant General Punjab,
Lahore etc.
19. W. P. No.20393/2011 Mirza Abdul Aziz v. Accountant General Punjab,Lahore etc.
20. W. P. No.20394/2011 Ch. Muhammad Hafeez Ullah v. Accountant
General Punjab, Lahore etc.
21. W. P. No.25402/2011 Mian Muhammad Tufail v. Accountant General
Punjab, Lahore etc.
22. W. P. No.25403/2011 Abdul Bari v. Additional Accountant General
Punjab, Lahore etc.
23. W. P. No.21546/2011 Muhammad Aslam Khan Lashari v. Accountant
General Punjab, Lahore etc.
24. W. P. No.21547/2011 Muhammad Saad Ullah v. Accountant General
Punjab, Lahore etc.
25. W. P. No.21548/2011 Malik Muhammad Amin Khan v. Accountant
General Punjab, Lahore etc.
26. W. P. No.21549/2011 Syed Amir Ahmad Shah v. Accountant General
Punjab, Lahore etc.
27. W. P. No.21550/2011 Mian Ahmad Bashir Khan v. Accountant General
Punjab, Lahore etc.
28. W. P. No.21551/2011 Ahmad Saeed Akhter v. Accountant General
Punjab, Lahore etc.
(Syed Mansoor Ali Shah)
Judge*A.W.*
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