P L D 1958 Supreme Court (Pak (PLP)

CORNELIUS, J.

‑This certificated appeal by Mr. Hassanally Khan G. Agha lately a judge of the Chief Court of Sind, raises a question as to the exact amount of pension admissible to the appellant under the statutory instruments applicable to his case. The matter came before the High Court of West Pakistan in the form of a petition for a writ under Article 170 of the Constitution. The case for the appellant is conveniently set out in a paragraph of a letter which he wrote to the Chief Secretary of the Government of the then Province of Sind on the 1st October 1954 which reads as follows :‑

"(4) Article 19 of the above High Court Judges Order, 1937 clauses 3 (a) and (b) say that the pension payable to me shall be (a) the pension for which I would have been eligible under the rules of the Civil Service if I had not been appointed a Judge of the Chief Court of Sind, my service as a judge of the Chief Court of Sind being treated as service for the purpose of calculating that pension. As I have put in more than 28 years' service, as mentioned above, I am entitled to get a pension of Rs. 7,000 per annum under this clause (a). I might here refer to Government Resolution No. 4295/7‑P. S. of the Political Service and General Administration Department dated 26th February 1953, by which Mr. Rahim Bakhsh Sheikh, retired District and Sessions judge, got superannuation pension of Rs. 7,000 and special pension of Rs. 1,500 per annum. I would, therefore, be entitled to get Rs. 7,000 as superannuation pension plus Rs. 1,500 as special pension per annum. Clause 3 (b) of Article 19 of the High Court Judges Order says that a judge who is not a member of the Indian Civil Service, will get (a) "Special Additional Pension" of Rs. 500 per annum in respect of each completed year of service for pension but not in any case exceeding Rs. 2,500 per annum. I am therefore entitled to this special additional pension, in addition to what I am entitled to get under clause 3 (a). As there is likelihood of mis interpretation of clauses 3 (a) and (b) of Article 19 with respect to the question whether the additional pension of Rs.1,500 per annum, to which I will be entitled under clause 3 (a) as a District judge, is also to be given in addition to‑the special additional pension payable to me under clause 3 (b), I wish to submit that between clause 3 (a) and clause 3 (b), the word "and" appears ; clause (a) finishes with the word "pension", after which there is a semi‑colon and then the word "and" is mentioned before clause (b) begins. From this it is very clear that I am entitled under clause 3 (a) to get the pension which would have been due to me as a District and Sessions judge, including the special pension of Rs. 1,500 per annum, in addition to the special additional pension mentioned in clause 3 (b). Any local rules appearing in the C. S. R. or otherwise cannot override the provisions of the High Court Judges Order which has been made under the Order of H. M. The King on the advice of His Privy Council, as mentioned in the above order itself." The relevant dates are as follows. Between the 6th March 1931 and the 8th April 1947 inclusive, the appellant was a member of the Provincial Judicial Service of Sind. On the 9th April 1947, he was elevated to the Bench of the Sind Chief Court and retired from that position on the 5th January, 1955. Reference to the High Court Judges Order 1937 will show that it was open to the appellant as a judge of a Chief Court to claim pension under the Third Schedule to that Order, but it is clear from the quotation above that he elected to receive pension under paragraph 19 which was to be calculated under clause (3) of that paragraph, viz. firstly "the pension for which he would have been eligible under the rules of his civil service if he had not been appointed a judge, his service as a judge being treated as service for the purpose of calculating that pension" plus a special additional pension of Rs. 500 per annum in respect of each completed year of service for pension in the Chief Court, but not in any case exceeding Rs. 2,500 per, annum. The rules of the Civil Service to which the appellant belong ed are contained in the Civil Service Regulations, in Articles 474‑AA and 475‑A of the 1951 edition. It seems that according to Article 474‑AA, the total pension which the appellant could claim was Rs. 6,800 basic per annum relatable to paragraph 19 (3) (a) of the Order. Article 475‑A provides for special additional pensions to be payable to officers who have held certain posts of high importance, these being given not as a matter of course but "only where the service rendered is approved as satisfying the standard of work and conduct required in the special conditions of the post or duty". The Schedule appended to this paragraph is divided into two parts, the first part containing enumera tion of posts of superior character described as "upper grade appointments" and the second part containing a list of "lower grade appointments". Among the enumerated upper grade appointments, the item which is relevant to the present case reads as under :‑

"High Court and Chief Court Judges . . . . . who may take a pension under the rules in this Part of the Regulations." Among the lower grade appointments, are included "Pakistan posts lower in rank than that of a Commissioner of a Division or a District and Sessions judge in the selection grade." The appellant's service prior to his elevation to the Sind Chief Court was performed in posts falling within this item. The provision regarding entitlement to special additional pension is contained in clause (2) of Article 475‑A of the Civil Service Regulations, which is reproduced below :‑

"Officers who have held posts listed in the Schedule to this Article may be granted an additional pension (a) at the rate of Rs. 300 for each completed year of effective service in any post included in the lower grade, and (b) at the rate of Rs. 500 for each completed year of effective service in any post included in the upper grade, up to a maximum of Rs. 1,500 per annum for service in lower grade appoint ments and Rs. 2,500 per annum for service in lower and upper grade appointments combined or in upper grade appoint ments alone: Provided that in the case of an officer who has earned an additional pension by service in appointments in both the upper and lower grades, service for any broken period of a year in the upper grade may count as service in the lower grade if his pension would be there by increased." The special provision for High Court judges in para graph 19 of the High Court Judges Order, 1937 may be reproduced here with advantage as comparison of the language of this special provision with the general provision in the Civil Service Regulations furnishes a direct clue to the correct answer to the question raised in this case. Clause (3)' of paragraph 19 reads as under :‑

"If any such Judge is not eligible for a pension under Paragraphs 17 and 18 of this Order or, being eligible for such a pension, elects not to receive that pension, the pension payable to him shall be‑‑

(a) the pension for which he would have been eligible under the rules of his civil service if he had not been appointed a Judge, his service as a judge being treated as service for the purpose of calculating that pension ; and (b) if he is not a member of the Indian Civil Service, a special additional pension of five hundred rupees per annum in respect of each completed year of service for pension in any one or more of the High Courts, or as acting judge of the Federal Court but not in any case exceeding two thousand five hundred rupees per annum." It is to be observed that the description attached to the supplementary pension which a member of a Civil Service may claim in respect of service rendered as a judge of a High Court is the same as is used in Article 475‑A of the Civil Service Regulations. It is clear also that the amount of the special additional pension is expressed in practically the same words in the two provisions. Since paragraph 19 of the High Court Judges Order, 1937 expressly refers to "the rules of his civil service" and Article 475‑A mentions "Chief Court judges who may take a pension under the rules in this part of the Regulations", there can be no doubt that the two instruments are intended to be, and should be construed together. Applying such a mode of construction, it becomes plain that the view for which the appellant contends is not tenable. The provision in the Civil Service Regulations clearly excludes the possibility of a claim being made for one amount as special additional pension in relation to service in the lower grade and an additional claim being made for a further amount in relation to service in an upper grade post. The exclusion is accomplished by providing a flat rate of special additional pension applicable to "service in lower and upper grade appointments combined or in upper grade appointments alone". Therefore, if the pension admissible to the appellant were governed by Article 475‑A alone, there would be no question but that the maximum special additional pension which he could claim for his total service whether in the ripper or the lower grade, is Rs. 2,500 per annum. Do the terms of paragraph 19 (3) of the Order have the effect of avoiding this provision in Article 475‑A ? Where two provisions relating to the some matter are being con strued together, the rule is that they should as far as possible be construed consistently with each other. The employment of the same expression "special additional pension" and the fixation of the amount in the same terms 1B as in Article 475‑A lead to the conclusion that by para graph 19, no distinct pension other than that given by Article 475‑A was being provided. The question might then arise if it be the same supple ment to pension, why was a separate provision in the High Court Judges Order considered necessary ? Two reasons appear very clearly. The first is that without repeating the provision, the High Court Judges Order 19371E would not be complete in itself. The second reason is more fundamental, and derives from the circumstance that there is a significant difference between the provisions in the two instruments. Whereas Article 475‑A, which is expressed so as to be applicable to a very large number of appointments, provides that there should be a positive act of approval by the Government in respect of the standard of work and conduct of the officer concerned in the special conditions of the appointment which he held, as a condition of the grant of the special additional pension, no such approval is provided for in paragraph

19. The learned judges of the High Court who rejected the appellant's contention, and dismissed his petition for a writ have seen in this differentia tion an intention to maintain the independence of the judiciary from control by the Executive. Their observations on this point are as follows :‑

"There seems to be a good reason behind this rule of law as embodied in para. (19) (3) (a) and (b) of the Government of India (High Court Judges) Order, 1937. If a person has once become a High Court judge, though he could claim his pension under the Civil Service Regula tions but he was put above the approval and satisfaction of the Executive so far as his work was concerned. The underlying principle under the Government of India (High Court Judges) Order, 1937, as disclosed by para. 19 (3) (b) is to guarantee the independence of judiciary. Under Article 475‑A of the Civil Service Regulations the special additional pension admissible under that Article was not to be given as a matter of course, but only where the service rendered was approved as satisfying the standard of work and conduct required in the special conditions of the post or duty. The framers of the Govern ment of India (High Court Judges) Order, 1937 did not consider it proper to leave the grant of special additional pension to the discretion of the Executive. The Govern ment of India (High Court Judges) Order, 1937, in fact, guaranteed the special additional pension." With this view, we entirely agree, and have only to add that the exclusion of discretionary approval by the Executive may be found, as a matter of pure construction as well, bye application of the maxim generalia specialibus non darogant. The provision in the Order is clearly special, in contradistinc tion to the general provision in the Civil Service Regulations. The learned judges have gone on to observe that the framers of the High Court Judges Order 1937 clearly did not intend to give two special additional pensions, but only one. We do not entertain the slightest doubt regarding the correctness of that opinion. We consider that the cons truction for which the appellant contended is one which the plain words of the relevant instruments will not bear. The Civil Service Regulations provide for only one special additional pension admissible to an officer whose qualifying service has been spent in lower grade as well as in upper grade appointments. Paragraph 19 of the High Court Judges Order, on its true construction, makes a similar provision p in relation to a member of a Civil Service who has risen to the post of judge of a High Court and elects to take a pension otherwise than under the Third Schedule to that Order. Any construction which has the effect of furnishing such an officer with two special additional pensions is clearly inadmissible. . We accordingly dismiss this appeal with costs. A. H. Appeal dismissed.