[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]

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[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-F

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[139]

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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