P D 1995 Karachi 223 (PLP)

‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ Judge Minimum . Maximum amount amount ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ Chief Justice Rs.5,640 Rs.7,050 Other Judges Rs.5,040 Rs.6,300 ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ As is clearly indicated by the proviso inserted in the substituted paragraph, the President was authorised to raise the amount of pension payable to Judges of High Court from time to time.

7. Such was the position till the President's Order 2 of 1973 came into, force with effect from the 27th July, 1991. The said Order now provides as under:‑‑ "PRESIDENT'S ORDER 2 OF 1993 PENSION OF JUDGES OF SUPERIOR COURTS ORDER, 1993 [Gazette of Pakistan, Extraordinary, Part I,19th October, 19931 No. F.2(2)/91‑Pub., dated 19‑10‑1993.‑‑The following Order made by the President is hereby published for general information:‑‑ Whereas, the proviso to third paragraph of the Fifth Schedule to the Constitution of the Islamic Republic of Pakistan relating to the remuneration of the Judges of the Supreme Court and High Courts provides that the President may, from time to time, raise the minimum or maximum amount of pension so specified in the said paragraph; Now, therefore, in exercise of the powers conferred by the aforesaid paragraph, the President is pleased to make the following order:‑‑

1. Short title and commencement.‑‑(1) This Order may be called the Pension of Judges of Superior Courts Order, 1993.

2. It shall come into force at once and shall be deemed to have taken effect on the twenty‑seventh day of July, 1991.

2. Pension.‑‑(1) The minimum and maximum monthly pension of the Chief Justice of Pakistan shall be Rs.11,393 and Rs.13,202 respectively and that of every other Judge of the Supreme Court shall be Rs.10,869 and Rs.12,390 respectively. (2) The minimum and maximum monthly pension of the Chief Justice of a High Court shall be Rs.9,800 and Rs.12,250 respectively and that of every other Judge of a High Court shall be Rs.8,722 and Rs.10,902 respectively." Basing his contention upon the preamble to P.O. 2 of 1993, the learned A.A.‑G. has argued that since a clear reference can be found in the Preamble to the proviso to the third paragraph of the Fifth Schedule, which as just pointed out, authorised the President to raise remuneration of the Judges of the Supreme Court and High Courts from time to time, the said order must, therefore, be read in conjunction with the said paragraph. In case, the contention of the learned Assistant Advocate‑General is accepted, the petitioner certainly would have no case before us. However, we are unable to agree with the contention raised by the learned Assistant Advocate‑General. As is evident from the plain language employed even in the substituted paragraph 3 in the Fifth Schedule, it refers to the minimum and maximum pension payable only to such Judge of a High Court, who has retired after completion of five years in service as such Judge. No doubt, according to the proviso to paragraph 3 the President was empowered to raise the minimum and maximum pension as specified in the said paragraph, from time to time and reference no doubt, can be found in the Preamble to the President's Order No.2 of 1993 to such proviso but, as is clearly evident from Article 2(2) of the said Order, the minimum and maximum pension of Rs.8,722 and Rs.10,902 respectively has been made payable to every other Judge of a High Court, notwithstanding the period of service he might have put in as such Judge at the time of his retirement from service. But if the intention only was to enhance the pension of such Judges of a High Court as referred to in paragraph 3 of the Fifth Schedule, no more was necessary than to substitute the figures for those embodied in the third paragraph of the Fifth Schedule, as amended by the Constitution (Twelfth Amendment) Act,. 1991. However, by the plain language used by the law‑maker in Article 2 of P.O. 2 of 1993 not only that the minimum or maximum pension payable to a Judge of a High Court has been enhanced but as just pointed out, clause (2) of the said Article further provides that such enhanced pension shall be payable to every other Judge of a High Court, which is a clear departure from the language earlier employed by the law‑giver. A clear intention can, therefore, be spelt out from Article 2(2) of P.0.2 of 1993 to extend the said benefit not only to a Judge who has completed five years of service as such Judge but also to extend it to every other Judge who has retired from service before completion of the said period. No doubt, reference to every other Judge of a High Court in Article 2(2) of P.O.No.2 of 1993 only appears to be to a Judge other than the Chief Justice of such High Court, but it is pertinent to note that the law‑maker has made no further distinction between the Judges of a High Court other than the Chief Justice, as was the case earlier. Although, as was pointed out earlier, a specific reference can be found in the said Preamble to the third paragraph of the Fifth Schedule to the Constitution but, preamble cannot be relied upon as a guide to interpretation to override otherwise plain and unambiguous provisions of a statute. It is only in case of an ambiguity that a preamble may be called in aid to expound a provision of a statute. In our opinion, the law‑giver by allowing such benefit to every other Judge intended to do away with the distinction which earlier existed in this behalf. The words "every other Judge" in Article 2(2) of P.O. 2 of 1993 therefore, cannot only relate to paragraph 3 in the Fifth Schedule. If the intention was to extend such benefit only to a particular class of Judges, as referred to in paragraph 3, Article 2(2) r~ P.6. 2 of 1993 would have been couched in a different language. When isolated from the preamble, Article 2(2j of P.O. No.2 does not even remotely suggest that it is relatable only to paragraph

3. As has already been pointed out, paragraph 2 in the Fifth Schedule is an independent paragraph, not to he governed by. the provisions of paragraph,

3. Although paragraph 2 clearly contenrparties that every Judge, of a High Court shall be entitled for such rights and privileges as maybe determined by the President, but such rights acrd privileges, entitling a Judge to pension, who retired therefore completion of a period of five' years in service, had not been determined earlier by the President. However, as a stop‑gap arrangement, such Judges were made, entitled to such benefits this regard as were available to them before the commencing day. But nothing can be spelt out from paragraph 2 to indicate that the intention of the law‑giver was to completely exclude such class of Judges from such benefits, although the President was fully empowered to provide for different rates of pension in their case. 'therefore. Article 2(2) of P.O. 2 of 1993 appears to be completely in consonance with paragraph 2 in the Filth Schedule and Article 205 of the Constitution. Paragraphs 2 and 3 in the Fifth Schedule in, fact indicate that two independent provisions has, been made side by side in the Constitution,. one authorising the President to enhance, from time to time, the pension payable to such class of Judges whose length of service is not less than five years and the other authorising him to determine rights and privileges in respect of pension payable to every other Judge of a High Court. Therefore, P.O. 2 of 1993 serves a , dual purpose by determining rates of pension admissible to' both. Consequently, in absence of a clear intention being. spelt out that Article 2(2) of P.O. No.2 of 1993 is not to extend to such Judges who have not put in less than five years of service, the provisions of the said Article cannot b interpreted to the disadvantage of the petitioner.

8. Reliance has also been placed by the petitioner upon ,the judgment o the Balochistan High Court in the case of MA. Rasheed,v. Pakistan (PLE 1988 Quetta 70). In this case, while considering the implications of President', Order No.5 of 1983, it was observed by a Division Bench of the High Court of Balochistan that literal meaning was to be given to the terms of the President's Order which were to be read as part of the Constitution and every amendment which was made thereby in the Fifth Schedule of the Constitution was to be interpreted in a manner so as to make the same consistent with the provisions of Article 205 of the Constitution. It was further observed that Judges of the superior Courts were not civil servants but their terms and conditions of 'service were provided in the Constitution itself. Therefore, no shelter could be taken behind such rules particularly when they were not in consonance with the main provisions of the Constitution. The judgment of the Balochistan High Court was subsequently noted with approval by the Supreme Court in the case of IA. Sharwani v. Government of Pakistan (1991 SCMR 1041). It was observed in this regard by the Supreme Court as follows:‑‑ "The plain reading of the Presidential Order No.5 of 1983 makes it clear that nowhere in this Order, it has been stated that the benefit of this Order would not be applicable to those Judges who had retired prior to 1st July, 1981. It has also not been provided in this Order that the maximum limit would only be applicable to the Judges, who had retired on or after 1st July, 1981. Under Article 205 of the Constitution, remuneration, and other terms and conditions of service of a Judge of the Supreme Court or of a High Court shall be as provided in the Fifth Schedule. There is a Constitutional provision fixing remuneration and other terms and conditions of a High Court Judge. In accordance with such provision, the pay and pension of the Judges of the superior Courts are fixed by a Constitutional instrument. The Fifth Schedule relates to remuneration and terms and conditions of service of Judges. This Schedule is not to be read in isolation, as it is a part of the Constitution. The salary and other privileges of the superior Court Judges are allowed under a Constitutional provision, in order to keep the judiciary independent. The basic principle of interpretation of statute is that if the words are clear and unambiguous, then literal construction must be followed. The intention of the law‑giver can be seen from the words themselves and no foreign element is to be introduced. The interpretation must be harmonious and reasonable."

9. We are, consequently. of the view that rights and privileges admissible[, to the petitioner in respect of his pension are now governed under President's admissible[, Order No.2 of 1993. As has been held by the Supreme Court in IA. Sharwani's case, instruments such as P.O. 2/1993 are Constitutional instruments, therefore, full effect must be given to them. We, therefore, find no force in the contentions raised on behalf of the respondents. Learned Standing Counsel has also adopted the arguments advanced by the learned AA.‑G. but as we have just pointed out, we are unable to agree with his contentions.

10. Although, it has also been contended by the petitioner in the alternative, that, in any case, he is entitled to a pension of Rs.8,190 in E accordance with the Civil Servants Rules, but since we have accepted his plea that P.O. 2 of 1993 is applicable to the petitioner, it is not necessary for us to order the second contention of the petitioner. However, it will always be open for the petitioner to take such a plea in the. future if the circumstances so require.

11. In the result, the petition is allowed and the respondents are liable to fix the petitioner's pension at the maximum pension as allowed under President's Order No. 2 of 1993. The parties are left to bear their own costs. A.A./A‑1527/K ‑ Petition accepted.