1993 PLP (C (PLC(CS))

AHMED YAR KHAN, J.‑‑‑Petitioner Nazir Alam Shah had been working as Assistant Director (Legal) in Federal Investigation Agency, Karachi. He was retired from service with effect from 12th August, 1981 as he was found to be medically unfit persuant to examination by the Medical Board. Under section 13 of the Federal Employees' Benevolent Funds and Group Insurance Act, 1969, as amended by the Federal Employees' Benevolent Fund and Group Insurance (Amendment) Ordinance, 1980, the petitioner became entitled to the Benevolent grant from the Benevolent Fund according to the scale specified in the first schedule for a period of 10 years or up to the date on which the petitioner attained the age of 65 years, whichever was earlier. The petitioner thus received Benevolent grant at the rate of Rs.475 per month from the Benevolent Fund up to 13‑4‑1987, on which date he attained the age of 65 years. 'Before attaining the age of 65 years the petitioner had been making representations to the various authorities including the Federal Minister for Finance, Government of Pakistan for extension in the abovementioned grant till the petitioner was alive. But his representations did not find favour with the Authorities. In the meantime on 1‑9‑1988, the President of Pakistan was pleased to promulgate Federal Employees' Benevolent Funds and Group Insurance (Amendment) Ordinance, 1988, which was enforced w.e.f. 4‑9‑1988. The relevant amendments of section 13 run as under:‑‑ "Substitution of section

13. Act 11 of 1969.‑‑‑In the said Act, for section 13 the following shall be substituted, namely:‑‑ "

13. Benevolent grants to be paid from the Benevolent Fund.‑‑‑If an employee‑‑ (a) is declared by the prescribed medical authority to have been completely incapacitate physically or mentally to discharge the duties of his employment and is for that reason retired or removed from service, he shall be entitled to receive for life such benevolent grant from the Benevolent Fund as may be prescribed; or (b) dies during the continuance of his employment, or during retirement before attaining the age of seventy years, his spouse shall be entitled to receive for life such benevolent grant from the Benevolent Fund as may be prescribed: Provided that, if the deceased employee has no spouse or his spouse has died, the other members of his family shall be entitled to receive benevolent grant from the Benevolent Fund for a period of fifteen years or up to the date the deceased employee would have attained the age of seventy years, whichever is earlier: Provided further that, in the case of an employee who dies after having drawn benevolent grant, the said period of fifteen years shall be reckoned from the date from which he began drawing such grant." In view of the abovementioned amendments, the petitioner again entered into a chain of correspondence with the concerned authorities including the Federal Mohtasib agitating his stand that he was entitled to receive the benevolent grant till the time he was alive. His representations were, however, rejected by the authorities including the Federal Mohtasib, hence the present petition under Article 199 of the Constitution of the Islamic Republic of Pakistan was filed with the prayer that respondents Nos.1 and 2 be severally and jointly directed to pay the Benevolent grant to the petitioner till his death in accordance with the provisions of Federal Employees' Benevolent Funds and Group Insurance (Amendment) Ordinance, 1998. Before dealing with the merits of the petition, we propose to dispose of preliminary objection about the maintainability of this petition with regard to the bar contained in Article 212 of the Constitution read with the provisions of the Service Tribunals Act 1973. Relevant provisions of Article 212 of the Constitution read as follows:‑‑ Article 212 of the Constitution: 212.‑‑(1) Notwithstanding anything hereinbefore contained, the appropriate Legislature may by Ad provide for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of‑‑‑ (a) matters relating to the terms and conditions of persons who are or have been in the service of Pakistan, including disciplinary matters; (b) matters relating to claims arising from tortious acts of Government, or any person in the service of Pakistan, or of any local or other authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge of his duties as such servant; or (c) ..... (2) Notwithstanding anything hereinbefore contained, where any Administrative Court or Tribunal is established under clause (1), no other Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends and all proceedings in respect of any such matter which may be pending before such other Court immediately before the establishment of the Administrative Court or Tribunal, other than an appeal pending before the Supreme Court, shall abate on such establishment: Provided that the provisions of this clause shall not apply to an Administrative Court or Tribunal established under an Act of a Provincial Assembly unless, at the request of that Assembly made in the form of a resolution, Majlis‑e‑Shoora (Parliament) by law extends the provisions to such a Court or Tribunal. (3) An appeal to the Supreme Court from a judgment, decree, order or sentence of an Administrative Court or Tribunal shall lie only if the Supreme Court, being satisfied that the case involves a substantial question of law of public importance, grants leave to appeal." Section 4 of the Service Tribunals Act, 1973, reads as follows:‑‑ ‑ Section 4 of the Service Tribunals Act 1973:

4. Appeals to Tribunals.‑ ‑‑(I) Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may within thirty days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal. Provided that‑‑‑ (a) where an appeal, review or representation to a departmental authority is provided under the Civil Servants Act, 1973 (LXXI of 1973), or any rules against any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application, or representation was so preferred; (b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade; and (c) no appeal shall lie to a Tribunal against an order or decision of a departmental authority made at any time before the 1st July, 1969. (2) Where the appeal is against an order or decision of a departmental authority imposing a departmental punishment or penalty on a civil servant, the appeal shall be preferred‑‑‑ (a) in the case of a penalty of dismissal from service, removal from service, compulsory retirement or reduction to a lower post or time scale,. or to lower state in a time‑scale, to a Tribunal referred to in subsection (3) of section 3; and (b) in any other case, to a Tribunal referred to in subsection (7) of that section. It has been contended that pension is included in "the terms and conditions of service" as such remedy for the petitioner was to agitate his claim before the Service Tribunal and the Constitution petition under Article 199 of the Constitution was not maintainable. On the other hand Mr. Nisar Ali learned counsel for the petitioner submitted that section 4 of the Service Tribunals Act, 1973 was not applicable as the petitioner has not challenged any original or appellate order passed by a departmental authority in respect of any of the terms and conditions of his service. He contended that the present petition challenges the discriminatory treatment meted out to him in violation of Article 25 of the Constitution and the petition is not filed in respect of any breach of any provision of the Civil Servants Act or any service rule. Reliance has been placed on 1991 SCMR 1041. The relevant paragraph of the aforesaid authority runs as under:‑‑ "From the above‑cited cases it is evident that it has been consistently held inter alia by this Court that a civil servant if is aggrieved by a final order, whether original or appellate passed, by a departmental authority in respect of his terms and conditions, his remedy, if any, is by way of an appeal before the Service Tribunal even where the case involves vires of a particular Service Rule or a Notification or the question, whether an accused civil servant can claim the right to be represented by a counsel before the Enquiry Officer. We are inclined to hold that if a statutory rule or a notification adversely affects the terms and conditions of a civil servant, the same can be treated as an order in terms of subsection (1) of section 4 of the Act in order to file an appeal before the Service Tribunal. However in the present case the petitioner's case is founded solely on the ground of discriminatory treatment in violation of Article 25 of the Constitution and not because of any breach of any provision of the Civil Servants Act of any service rule. Furthermore, the question involved is of public importance as it affects all the present and future pensioners and, therefore, falls within the compass of clause (3) of Article 184 of the Constitution. However, we may clarify that a civil servant cannot bye pass the jurisdiction of the Service Tribunal by adding a ground of violation of the Fundamental Rights. The Service Tribunal will have jurisdiction in a case which is founded on the terms and conditions of the service even if it involves the question of violation of the Fundamental Rights." Mr. Nisar Ali contended that the petitioner has challenged the discriminatory treatment ‑ in not allowing him the benefits of the Federal Employees' Benevolent Funds and Group Insurance (Amendment) Ordinance, 1988 on the ground that the petitioner was retired from service before the date of enforcement of the aforesaid Ordinance i.e. 4‑9‑1988. We have carefully gone through the facts of the present petition in the light of the abovementioned authority. We find ourselves in agreement that the present petition has not been filed in respect of any final order passed by the original or the appellate authority in respect of the terms and conditions of the service under the provisions of Civil Servants Act or rules made thereunder. The present petition has been filed in respect of the discriminatory treatment meted out to the petitioner as against the persons of his category who retired after 4‑9‑1988. As such we are of the view that the present petition is not hit by Article 212 of the Constitution read with section 4 of the Service Tribunals Act; 1973. Mr. Nisar Ali learned counsel for the petitioner contended that the perusal of the provisions of the aforesaid Ordinance of 1988 indicates that it is nowhere expressed therein that the benefits of the amendments were available to only those pensioners who retired before 4‑9‑1988 or that the Ordinance did not come into force retrospectively. Mr. Nisar Ali urged that the aforesaid Ordinance of 1988 does not provide any classifications of the pensioners who were to be affected by the amendments. He urged that all the pensioners including those who retired before 4‑9‑1988 were also to be benefited by the aforesaid amendment. He placed reliance on PLD 1988 Quetta 70, MA. Rashid v. Pakistan through Finance Division, Government of Pakistan, Islamabad, which reads as follows:‑ "The basic principle of interpretation of statutes 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. A Constitution is a fundamental document and while interpreting a provision of the Constitution, the Article must receive a construction which is beneficial to the widest maximum extent." Mr. Nisar Ali also placed reliance on 1991 SCMR 1041, whereby it is held, that: "Under Article 25 (1) of the Constitution the citizens are equal before law and entitled to equal protection of law." It is further held that all persons equally placed be treated alike both in personal comfort and liabilities. As regards the case of the pensioners of the same class, the above authority observed as under:‑‑ "However, a pensioner may have a legitimate grievance if he is not treated alike with other pensioners, for example, if the Legislature/Government increases pension amount by 10% say on 1‑1‑1991, but provides that this benefit will be available to those pensioners who had retired prior to 1‑1‑1989 are deprived of the above benefit. This would be violative of Article 25 of the Constitution unless the Government can demonstrate that the above sub -classification within the class of pensioners is based on an intelligible differentia and that the latter has rational nexus to the object sought to be achieved by the relevant classification under the statute or statutory rule." The learned counsel appearing for the respondents could not convince us that discriminatory treatment could be extended to the same class of pensioners while awarding benefits of a legislation. We find that the language of the Ordinance of 1988 referred to above does not create any discrimination among the pensioners of the class to which the petitioner belongs. Accordingly we are of the view that the petitioner is entitled to the benefits awarded by the Federal Employees' Benevolent Fund and Group Insurance (Amendments) Ordinance, 1988, irrespective of the fact that the petitioner retired from service prior to the date of the enforcement of the aforesaid Ordinance. The petition is hereby allowed and respondents Nos. 1 and 2 are directed to make payment of Benevolent grant to the petitioner for life in accordance with Federal Employees' Benevolent Fund and Group Insurance (Amendment) Ordinance, 1988. Parties to bear their own costs. H.B.T./N‑477/K Petition allowed.