P L D 1983 Lahore 246 (PLP)

ABDUL SHAKURUL SALAM, J.-On 15-7-1980. the Government of the Punjab issued a memo. to the following effect : "I am directed to state that the question of grant of relief to all existing pensioners was under consideration of the Government for some time past. The Governor has been pleased to sanction with effect from 1st July, 1980, a special ad hoc increase as under to all existing civil pensioners of the Provincial Government :- NPS.??? Rs. P. M. 1-10????? 40 11-16??? 70 17-18??? 100 19-20??? 150 21-22??? 200 On the same day the Government of Punjab issued another memo. which is to the following effect : "I am directed to state that further liberalization of existing pensionary benefits has -been under the consideration of Government for some time past. It has now been decided that with effect from 1st July 1980, the amount of pension in excess of Rs. 2,000 (instead of Rs. 1,000) shall be reduced by 50 %. Therefore the figure of Rs. 1,000 shall be substituted by the figure of Rs. 2,000 referred to in para. 2(a) of the F. D.'s Circular Letter No. FD-SR-111-4-1/77 dated 17th January, 1977, and in the Note below the Revised pension Table at Annexure I thereto. It has also been decided that where the enhancement of- the cut-off point to Rs., 2,000 as mentioned in 'para. 1 above results in no increase or an increase of less than Rs. 40 in the pension, it shall be so determined that a minimum benefit of Rs. 40 P. M. is ensured." The respondent was not being given the benefit in implementation of tote last mentioned memo. by the Accountant-General, Punjab when he filed Writ Petition No. 9076/80. The Provincial Government was also impleaded as a party to the writ petition. The learned Single Judge held that "the petitioner is entitled to get his pension revised in accordance with the letter dated 17th January, 1977, as amended by the circular letter dated 15th July, 1980. Further, the benefits .so calculated shall be payable only from 1st July, 1980. The result is that "the refusal on the part of the respondent to act as said above, is without lawful authority. The respondent is, therefore, directed to act accordingly." This is vide judgment announced on 22-3-1981. The Accountant-General, Punjab and the Provincial Government filed an appeal on 17-4-1981. It was returned on 20-4-1:981 by the office, inter alia, on the ground that the appeal was barred b: 8 days. Separate application under section 5 of the Limitation Act for condonation of the delay should be filed. The appeal was received by the appellants on 23-4-1981. They refiled it on 9-5-1981.

2. The Federal Government filed C. M. 4/82 for being impleaded as a party in the appeal. It was allowed subject to all just exceptions vide order dated 2-10-1982. Syed. Iftikhar Ahmad, Deputy Attorney General has appeared to state that he has the instructions to withdraw this application and that the name of the Federal Government be struck off from the array of the respondents. The application is, therefore, dismissed as withdrawn without any order as to costs.

3. Learned Assistant Advocate-General appearing for - the appellants has submitted that the two memos. mentioned above and annexed with the appeal as Annexures 'A' & `B' were issued on the instructions of the Federal Government and on the request of the Finance Department of the Provincial Government, the Finance Department of the Federal Government, has clarified through its memo. dated 16-9-1980 (Annexure'E' with the appeal) that benefit of memo. : Annexure `B' shall enure to persons retiring on or after 1st July, 1980 though that of Annexure 'A' shall apply to pensioners retired prior to 1st July, 1980. Therefore, the action of the appellants was valid. Secondly, that the writ petition was not competent because the dispute related to terms and conditions of a civil servant and for that purpose the only remedy available under section 4 of the Punjab Service Tribunals Act, 1974 read with Article 212 of the Constitution was an appeal before the Punjab Service Tribunal.

4. Learned counsel appearing for the respondent has submitted that the appeal was barred by time when it was filed on 19-4-1981 by 8 days' delay, and even care had not been taken to know whether the appeal was within limitation or not because no application for condonation of delay was filed. When the office pointed out on 20-4-1981 that the appeal was barred by 8 days and a separate application under section 5 of the Limitation Act should be filed, the appellants received back the appeal on 23-4-1981. An application for condonation of delay under section 5 of the Limitation Act was drafted on 5-5-1981. The affidavit in support thereof was attested on 6 5-1

81. The appeal was still not filed until three days later i. e. on 9-5-1981. Not only the explanation regarding initial delay of 8 days is without substance but also there is no explanation whatsoever for the further delay of 3 days in filing the appeal after the affidavit in support of the application under section 5 of the Limitation Act had been attested. He has placed reliance on Chief Settlement and Rehabilitation Commissioner and another v. Ghulam Ghaus etc. (1974SCMR38) and The Province of West Pakistan, Lahore v. Mian Noor Ahmad and others (1975SCMR91). He has, next, submitted that the contention raised that the writ petition was not competent, is belated. No such contention was raised before the learned Single Judge. In any case, the contention does not hold water because the dispute is not in relation to the terms and conditions of service between the civil servant and his employer but between a pensioner and the Accountant-General, Punjab who is not paying him the pension in accordance with the decision of the competent authority, the Provincial Government. Secondly the Accountant-General, Punjab who is refusing to make the payment in accordance with the Government's decisions, is not a departmental authority) of the answering respondent. Consequently, section 4 of the Punjab Service. Tribunals Act, 1974 has no application.

5. We have heard the learned counsel for the parties at length and gone through the record with their assistance. There is no doubt whatsoever that the appeal is barred by time. Not only it was filed after 8 days of the limitation without any application for condonation of delay in the first instance but the explanation advanced is that it was "caused due to the q fact that the matter was examined by different departments." The Government Departments should be more vigilant and efficient being staffed by educated paid officers than private citizens. The latter are not shown indulgence for such consultation. Why Government Departments? No premium can be put on inefficiency. All have to be treated alike by law. Moreover, the affidavit in support of the 'application for condonation of delay was attested on 6-5-1981. The application with affidavit was not filed until three days later. No explanation is forthcoming for this delay. In a case where an appeal had been returned on the ground that it was barred by time, application for condonation of delay must have been filed diligently and no further indolence shown. In view of the established law, many C times declared by the learned Supreme Court of Pakistan including in the two judgments quoted by the learned counsel for the respondent, this appeal is liable to be dismissed as barred by time.

6. The contention that the writ petition was not competent is an afterthought. It was not urged before the learned Single Judge. He had no opportunity to give his view on the point. Therefore, his order cannot be said to suffer from any infirmity. Secondly, the contention is without merit. Section 4 of the Punjab Service Tribunal Act, 1974 bars an appeal on behalf of a civil servant against an order "made by a departmental authority". In the present case, departmental authority has passed no adverse order against the respondent-pensioner. What the latter is complaining is that what his employer, the Provincial Government, has decided to pay him, the Accountant-General is not doing. Therefore, the contention is repelled.

7. On merit the appeal has no force whatsoever. Vide memo. dated 15-7-1980, the Provincial Government decided that "with effect from 1st July, 1980, the amount of pension in excess of Rs. 2,000 (instead of Rs. 1,000) shall be reduced by 50%. Therefore, the figure of Rs. 1,000 shall be substituted by the figure of Rs. 2,000 referred to in para. 2(a) of the F. D's. circular letter No. FD-SR-III-4-1/77, dated 17th January, 1977". Now, from 1st of July 1980, by incorporation, the amended memo. dated 17-1-1.977 shall read as follows : "Pension shall be calculated at the rate of 70 per cent of the average emoluments on completion of 30 years qualifying service. Where qualifying service is less than 30 years, but not less than 10 years, proportionate reduction in percentage stall be made. Any amount of pension in excess of Rs. 2,000 shall be?????? reduced by 50 per cent ???? "Therefore, from 1st of July, 1980, "pension" shall be calculated in the prescribed manner and any amount in excess of Rs. 2,000 shall be reduced by 50 %. Obvious it is that from 1st July, 1980 "pension" will be calculated of persons who were getting pension or were eligible. They were not to be barred. It is for them that decision was being taken. Therefore, the contention that the benefit will be . derivable by `people' who will retire on 1st of July, 1980 or thereafter, is without force. It was patently for the `pensioners'. The contention that the decision of the Government has been differently construed by the Finance Department is neither here nor there. Decision of the Government cannot be varied or modified by interpretation by an officer in one of the departments n of the Government, even if it be Finance. If it were possible that the decision of the Government can be so construed by any official of any of the departments of the Government, contrary to the express and explicit language of the decision of the Government, the Government would obviously then not be relied upon by citizens and they will have to look to the officials who are designated, as civil servants. Then servants will be masters and not the Government of the day. The whole thing will go topsy-turvey. Such a construction as advanced by the learned counsel for the appellants will play havoc. It is without merit altogether.

8. For the foregoing reasons this appeal is dismissed as barred by time and on merits with costs. M. Y. M.????????? Appeal dismissed.