2005 PLP (C (PLC(CS))

Syed Mustajab Ahmed and others v. Secretary Ministry of Finance, and others. "Further, it is common ground between the parties that Secretariat Allowance/Personal Allowance now stands merged into the pay of civil servants concerned. The parties are also one on the point that the petitioners would not be entitled to any such raise in their pay in that they all attained the age of superannuation before 23-5-1996. That being the position, it would be in the fitness of things to dispose of the petitions with the observation that, notwithstanding the promulgation of the Ordinance the causes of the petitioners require re-consideration by the Competent Authority and in line with the judgment of this Court dated 24-6-1999 in Asghar Mehmood's case as expeditiously as possible but not later than ninety days from the receipt of a copy of this order. Order accordingly. If any adverse order is passed against the petitioners they shall be at liberty to approach the Tribunal for the redress of their grievance in accordance with law." Federal Service Tribunal (iv) 1996 PLC (CS) 1224. There is another aspect of this case that the denial of financial benefits is a recurring liability and the cause of action is renewed each time when the person is paid less. Thus, the issue of limitation can also be met on this ground as well.

6. It is to be noted with regret that despite the clear ruling by the superior Courts in unambiguous terms the Finance Division still has the impunity to refuse the benefit to the helpless pensioners on the ground that it was a judgment in personam and not a judgment in rem. We fail to appreciate why generalization of the galaxy of judgments is being narrowed down as a decision in an individual case and why the poor pensioners are compelled to seek their remedies individually.

7. It was argued on behalf of the respondents that the extension of benefit will open a Pandora box and all the pensioners will agitate the issue with greater force. We are sorry to observe that if the law is to be implemented, it has to take effect despite financial constraints. Even otherwise in this case the petitioner wants the restoration of a sum of Rs.270 p.m. with effect from 1-7-1980 till 1-7-1985 when the benefit was extended to all the pensioners. Huge money is not involved in this case and we do not think there will be hundreds of pensioners retired earlier than 1980 who will get benefit out of this liberalized scheme.

8. With these observation, the appeal is accepted and it is hereby directed that the pension of the appellant may be revised with effect from 1-7-1980 without any reduction or deduction, in terms of Finance Division's Notification dated 28-6-1980 and the arrears so found due may be released to the appellant with costs. Parties be informed. (v) Appeal No.498(R)CS of 2001. Roshan Ali Mangi v. Secretary, Finance Divisional decided on 14-5-2002.

8. We feel that the principle laid down in the Supreme Court's judgment in Civil Appeal No.1298 of 1995, 3, 4 and 2006 of 1998 should also be applicable to the appellant's case. (vi) Appeal No.875(R) 1998. Rao Fazal Khan Akhtar v. Secretary Establishment Division and another.

9. Therefore, unless it is made an overriding principle that officers who retire in the same grade shall be given the same pension and other benefits irrespective of their date of retirements, this benefit of Orderly Allowance cannot be given to all officers who have retired in Grad-20.

10. We, therefore, agree with the interpretation of the Ministry of Finance that the benefit given vide their O.M. dated 29-9-1991 is restricted to those officers who will retire after that date. The appeal is therefore dismissed with no order as to costs. (vii) Appeal No.1473(R) of 1999. Rao Fazal Khan Akhtar v. Secretary Establishment Division and another. We have heard appellant who appeared himself and learned counsel for the respondents. The appellant relied upon the judgment of the Hon'ble Supreme Court of Pakistan in S.A.M. Wahidi's case which in our opinion is personam in nature and cannot be applied in rem and secondly, if we consider it as personam a Pandora Box will be opened for Government of Pakistan to bear huge additional financial burden in the existing situation of the country. Thirdly, this matter has already been settled by this Tribunal vide judgment dated 1-4-1999 against which the appellant should have approached the Hon'ble Supreme Court of Pakistan but he failed to do so. Accordingly the appeal is hit by doctrine of Res judicata and the Tribunal cannot revise its own judgment. The appeal being incompetent is, therefore, dismissed with no order as to costs. (viii) Appeal No. 2001 (R) of 1999 Aizaz Hussain Zuberi v. Ministry of Finance, and another

7. The emphasis is in the word of on retirement i.e. in future and not on those who have been retired prior to the date. The intention of this letter is clear that it will be applicable to those who have retired after the date of the Officer Memorandum and not to those who have been retired before this date.

8. Therefore, is the light of the earlier judgments of the Tribunal and legal interpretation of the O. M, the appeal is misconceived and is, therefore, dismissed with no order as to costs.

8. In our view, the argument of the respondent that the Supreme Court's judgment is S.A.M. Wandi's case is personam in nature is not tenable because the said judgment has laid down a principle which gives it a character of judgment in rem: Here it would be relevant to quote Supreme Court's judgment in the case of Hamid Akhtar Niazi v. Secretary Finance reported in 1996 SCMR 1185 wherein the Honourable Judge observed: "....that the Tribunal or this Court decides a point of law relating to the terms of service of a civil servant which covers not only the case of civil servant who litigated, but also of other civil servants, who litigated, but also of other civil servants, who may have not taken any legal proceedings, in such a case, the dictates of justice and rule of good governance demand that the benefit of the above judgment be extended to other civil servants, who may not be parties to the above litigation instead of compelling them to approach the Tribunal or any other legal forum."

9. As would be observed from para. 7 ibid, of the eight cases (i to viii), five (i to v) had been decided by the Honourable Supreme Court of Pakistan and this Tribunal on the principle that the appellants, who were in receipt of the benefit at the time of their retirement, were entitled thereto even thereafter but the last three decisions (vi to viii) of this Tribunal were to the contrary that the benefit was restricted to the officers retiring after a specific date given by the Finance Division, and out of these three judgments the one mentioned at No. vii was decided on the doctrine of res judicata. The present appellant was drawing orderly allowance (i.e. Special Additional Pension) at the time of his superannuation, thus the denial thereof to him afterwards would not be in the interest of good governance and in consonance with the principle of natural justice. We opine that to keep the same taintless and beyond discrimination, he should be extended the same benefit which has been allowed to the officers who retired for Government service on or after 19-2-1991. Finance Division may also undertake an exercise to ameliorate the financial hardship being faced by the vanishing category of the pensioners, who would be presently in their mid-seventies, to bring them at par with slightly junior pensioners and take a sympathetic decision in that direction as they are senior citizens too.

10. As for the point of limitation, the Hon'ble apex Court has held in a number of similar cases that the period specified for preference of appeal would not be applicable where financial benefit is involved. We, therefore, condone the delay, if any, in preference of this appeal.

11. Pursuance to the above discussion, we are constrained to accept the appeal set aside the impugned order dated 20-9-1999 and direct the respondent to allow Special Additional Pension to the appellant w.e.f. 19-2-1991.

12. No order as to costs. Parties be informed accordingly. H.B.T./276/FST Appeal accepted.