2009 PLP 76 (CLC)

The case of petitioner is that he was appointed as Judge of the Federal- Shariat Court on 26-12-1996 for a period of three years, he remained as Judge upto 29-12-1999. After his retirement after coming in knowledge of judgment pronounced by the Honourable Supreme Court of Pakistan on 6-3-2008 he approached to the competent authority for implementation of said judgment in the case of petitioner through letter, dated 27-4-2008 but as no response was given, therefore, he has filed this petition. According to learned D.A.-G. petitioner is not entitled for grant pension and other retirement benefits in terms of judgment of Honourable Supreme Court of Pakistan in C.A. No.1021 of 1995, as neither he is a retired Judge of the High Court nor has completed tenure of his service but himself relinquished his post. Referring to the President Order No.8 of 2007 promulgated on 14-12-2007 he further argued that it also speaks only about the Judge of the High Court who has been retired from his service as permanent Judge and has no room for Chief Justice and Judge of Shariat Court. To support his argument learned D.A.-G. has referred certain paras. of the judgment of the Honourable Supreme Court where distinction in between the two categories of High Court Judges. One those who retired after completing 5 years and other, who reached to the age of superannuation before the required period of 5 years for having financial benefit as defined in para.14 of President Order 3/1997. He argued that President Order 3/1997 also speaks about pension and privileges of Judge, High Court. This distinction though has been thoroughly discussed by apex Court in different context than of the Judge of Shariat Court, but still it was observed that "This distinction in the light of principle of equality and equal protection of law, has no justification and rational and is beyond the legislative wisdom and scope of Article 205 of the Constitution. " Para. 31 of the judgment of apex Court would be relevant to quote, which reads as under:

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31. Before parting with this judgment, we deem it proper to point out that Chief Justice and Judges of Federal Shariat Court are also entitled to the grant of pension and pensionary benefits available to the retired Judges of the Supreme Court and High Courts under the Constitution. The appointment of the Chief Justice and Judges of the Federal Shariat Court is made by the President under Article 203-C of the Constitution and the terms and conditions of service of the Judges of the said Court are also determined by the President, therefore, notwithstanding the fixed tenure of the Chief Justice and Judges of the Federal Shariat Court, they are entitled to the terms and conditions of service and remunerations including pension and pensionary benefits at par to the Judges of the Supreme Court and High Courts, by virtue of Article 203-C(9) of the Constitution which provides as under:

(9) A Chief Justice who is not a Judge of the Supreme Court shall be entitled to the same remuneration; allowances and privileges as are admissible to a Judge of the Supreme Court and a Judge who is not a Judge of a High Court shall be entitled to the same remuneration, allowances and privileges as are admissible to a Judge of a High Court: Provided that where a Judge is already drawing a pension for any other post in the service of Pakistan the amount of such pension shall be deducted from the pension admissible under this clause. In continuation of para.31, observation made in paras.32 and 33 are of mandatory nature clarifying the entitlement of salary, pension, allowance, privileges including grant of leave/LPR of Chief Justice and Judges of Federal Shariat Court that:

32.

Article 205 and Fifth Schedule of the Constitution would show that right of pension and pensionary benefits of the Chief Justice and Judges of Federal Shariat Court notwithstanding the length of services or fixed terms and tenure is recognized under the Constitution and consequently, this judgment subject to the Constitution, shall be equally applicable in respect of the right of pension and pensionary benefits admissible to the Chief Justice and Judges of the Federal Shariat Court.

33. In the light of foregoing reasons, we hold that all retired Judges of the High Courts who retired as such Judge in terms of Article 195 of the Constitution of Islamic Republic. of Pakistan and the Chief Justice and Judge of the Federal Shariat Court notwithstanding the tenure appointment, are entitled to the pension and pensionary benefits in terms of Article 205 read with Fifth Schedule of the Constitution read with P.O. No.8 of 2007 and Article 203-C of the Constitution and all other enabling provisions of the Constitution as well as President's Order No.2 of 1993 and P.O. No.3 of 1997 irrespective of their date of retirement and length of service

" Next objection of learned D.A.-G. was as petitioner had not completed his tenure of service and relinquished the charge on 29-12-1999, therefore, he is not entitled to pensionary benefits. Regret to say that learned D.A.-G. has not properly examined the documents before referring. By notification dated 26-12-1996 petitioner was appointed as Judge of Federal Shariat Court for 3 years. He took oath on 30-12-1996. If period is counted for 30-12-1996, three years expired on 29-12-1999. Thus, "Charge Relinquishing Report" of 29-12-1999 was not before the time of service notified on 26-12-1996. That was a formal Relinquishing Report which is normally prepared while handing over the charge on transfer or retirement. In view of the foregoing reasons and observations of the Honourable Supreme Court of Pakistan the petition is allowed. The petitioner is entitled for all his retirement benefits from the date of his retirement as Judge of Shariat Court according to principle laid down in judgment of apex Court. Copy of the judgment be sent to respondents Nos.2 and 3 for compliance within a month period from today. Any delay on their part will be treated as a defiance to the order of Court as petitioner was retired on 29-12-1999 and till now is not able to get his legal right because of rational attitude of the executive authorities. M.H./A-113/K Petition allowed.