2012 PLP 106 (SCMR)

TASSADUQ HUSSAIN JILLANI, J.

Through this appeal by leave of the Court, the appellant has challenged the judgment dated 16-11-2010 vide which the learned Federal Service Tribunal dismissed appellant's appeal and relying on a judgment of this Court dated 19-12-2005 found that the increase in pension of the appellant would not on 'gross' but on 'net' pension.

2. Appellant has argued his case himself and the main thrust of his submissions has been that in view of the judgments of this Court reported at Bashir Ahmed Solangi v. Chief Secretary, Government of Sindh (2004 SCMR 1864) and Government of Pakistan v. Village Development Organization (2005 SCMR 492) the Federal Government having allowed the increase on gross pension in terms of its earlier notification dated 23-7-1999 could not have withdrawn the said relief by a subsequent notification dated 4-9-2001 as appellant was retired in the year 2000 and was drawing benefit of the former notification of the year 1999 and the latter notification (of the year 2001) could not be used to deprive the benefit which had already accrued to him.

3. Learned Deputy Attorney-General, on the other hand, defended the impugned judgment mainly on the ground that the quantum of increase in pension is basically an executive function and the Government from time to time has got the power to review or modify the same keeping in view the host of factors including inflation, financial constraints and other factors tenable in law. He lastly relied on a judgment of this Court passed in Civil Appeals Nos. 1305 to 1327 of 2003 wherein this power of the Government was upheld.

4. Having heard the appellant and learned Law Officer at some length, we find that the subsequent notification dated 4-9-2001 had the effect of revising basic pay scales and fringe benefits of the civil employees and the issue of its vires including the question whether the principle of locus poenitentiae was attracted, was considered by this Court in Civil Appeals Nos. 1305 to 1327 of 2003 and this Court came to the conclusion as follows:-- "There is no provision in the Civil Servant Act, 1973 providing or the Rules specifically for increase in pension. However section 19 of the Act provides that a civil servant shall be entitled to receive such pension as may be prescribed. This provision therefore empowers the Government to fix an amount of pension and also to increase the same from time to time. No formal rules have been framed for the purpose of increase in pension and the increase had been made from regularly through Office Memorandums. The documents relied upon by the respondents in support of their contention that previously the increase used to be on gross pension are in the form of Office Memorandums dated 29-6-1995, 23-7-1999, where it is stated that pension, for the purpose of increase, is the amount before commutation etc. However in these Office Memorandums it has been expressly stated that the meaning given to the terms pension is relevant only for the purpose of interpreting pension as it appears in the Office Memorandums. Thus there is no general definition of pension for the purpose of calculating increase therein and it is to be given the meaning assigned to it in the instrument by which the pension is increased. In the Notification of 4-9-2001 it has been clearly laid down that the rate of increase in the pension is to be calculated on net pension. For the sake of further clarity, Clause (f) of para 16 of the Notification declared that "in future the increase in pension to the pensioners shall be allowed on net pension instead of gross pension". The Government undoubtedly is invested with the power to fix the amount of, or increase, pension, to lay down the method for its calculation, and to bring about changes therein. Reference may be made to Section 19 of the Civil Servant Act and Rule 4 of the C.S.R. In the absence of any statutory bar or restriction the Government is free to decide whether to grant enhancement in pension on gross or net pension. The Tribunal therefore erred in holding that the increase can only be on full and not net pension. Furthermore, the previous mode adopted by the Government cannot restrain it from changing it. Since the increase in pension is purely an executive act and is based on a policy, which takes into consideration various factors, including inflation and the Government financial constraints, the amount of increase given to the pensioner by the Notification in question must have been determined on the premise that the same would be payable on net and not gross pension. To accept the plea of the respondent would lead to creating an additional financial burden on the exchequer not envisaged by the Government at the time of issuing the Notification in question. The Tribunal gave the impugned direction simply because of its misconception that pension can neither be 'net' nor 'gross' but simply "pension". As observed above such conclusion is untenable."

5. Respectfully reiterating the earlier view taken by this court, to which reference has been made above, we do not find any merit in this appeal, which is dismissed. S.A.K./A-42/SC Appeal dismissed.