2023 PLP (C (PLC(CS)N)

ABDUL HAMEED BALOCH, J.

This Constitutional Petition has been filed under Article 199 of the Constitution of the Islamic Republic of Pakistan ("the Constitution") with the following prayers: "i.) the act of respondent No.3 whereby pension of petitioner has been stopped by him illegally and in excess of authority and jurisdiction and against the judgments of apex court, as such, not maintainable consequently the same may be set aside. ii.) the respondents be directed to release the pension on the basis of Last Pay Drawn: iii.) to direct the respondent No.3 to add annual increment in the salary of the petitioner of the year 2013; iv.) that since the administrative head of both the respondents No.3 and 4 is respondent no.1, as such, this Honourable directs the respondents to release the pension as per law; and v.) any other relief and cost of the proceeding throughout which may deem fit and proper in the interest of justice."

2. Brief facts leading to file the instant petition are that on 15.10.1985 the petitioner was inducted in the service of respondent No.4 as Officer Assistant (B-11), thereafter the petitioner was appointed as PS (BS-17) to the respondent No.4 and on 15.09.2001 the respondent No.3 posted him in the Liaison Office BCDA at Karachi; that as per the decision of the Governing Body of the BCDA vide as Accounts Officer (B-17), thereafter in pursuance of the decision dated 06.07.2007 the Governing Body and the competent authority of BCDA/Chief Minister Balochistan, the post of the petitioner was upgraded to BS-18; that on 21.04.2011 the respondent No.3 assigned the additional charge of Director, Planning to the petitioner and also held him entitle to draw the pay of the post. The petitioner continued his service on the said post till retirement; that after retirement the petitioner was withdrawing his pension till may 2020 but the respondent No.3 without any reason stopped the same and till date, he has not been paid his monthly pension. The petitioner further submitted that as per rule, the pension is calculated on the Last Pay Drawn and since lie was serving in BS-19 and has been withdrawing pay in the same scale but the respondents with mala fide intention has been disbursing pension equivalent to BS-18.

3. The respondent No.4 contested the petition by way of filing written statement.

4. Heard. Perused the record. The record transpires that besides the instant petition, earlier the petitioner filed a CP No.148 of 2017 before this court which was decided on 04.05.2020. The relevant Para of the judgment is reproduced as under:

9. Bare perusal of the promotion policies and view taken by the Finance Department and BCD/I, does not entitle the petitioner for pensionary benefits of grade BPS-20 on two counts, firstly there is no policy of promotion exist after two weeks of retirement and up-gradation of promotional post from the back dates as there was a ban on up-gradation of posts and - secondly the prescribed procedure for his promotion at a time of Governing Body Meeting was not adopted as suggested by the Secretary Fisheries, on the other hand, there are two different working papers are available on record and both are contradictory to each other and there is an ambiguity in both working papers which does not support the claim of petitioner, it is further been observed that in a haphazard manner the Governing Body approved the agenda without keeping in mind the rules and polices even otherwise only the following words were mentioned in minutes of meeting of Governing Body in favour of petitioner i.e. "to he promoted against the vacant post of Director Planning on his retirement and employed on contract basis" such sentence is without comma (,) and full stop () neither any specific date for promotion is mentioned nor any grade or up-gradation of post from B-19 to 20 is mentioned, thus the same cannot be termed as valid approval and on the basis whereof it cannot be ascertained that he is promoted in BPS-19 and the post is upgraded in BPS-20, thus glaring ambiguities are found in the minutes of meeting, as such, the order dated 22nd November, 2013 passed by the DG BCDA prima facie seems to be illegal and without lawful authority and the DO BCDA was not competent to issue such order which is violative of rules and regulations.

5. Under Section 23 of the Balochistan Coastal Development Authority Act, 1998, the officer and officials of the authority deemed to be public servant, the same being relevant is reproduced as under:

23. Public Servants. The Chairman, the Director General, members, officers and officials of the Authority, shall when acting or purporting to act in pursuance of any of the provisions of this Act be deemed to be public servants within the meaning of the Pakistan Penal Code, 1860.

6. Under Section 21 clause ninth of P.P.C., the public servant has been defined, which reads as under: 21. "Public servant". Ninth: Every officer whose duty it is, as such officer, to take, receive, keep or expend any properly on behalf of the Government, or to make any survey, assessment or contract on behalf of the Government, or to execute any revenue process, or to investigate, or to report, or any matter affecting the pecuniary interests of the Government, or to make, authenticate or keep any document relating to the pecuniary interests of the Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government, and every officer in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty;

7. The word public servant means a person, who hold any office which I empowered him to do an act for the benefit of government or local agency. In Karim Bakhsh's case PLD 19862 Lah. 155, it has been held that "the public servant must be holding some office or "officium", humble or exalted, high or low, in the sense that he must exercise, to some extent, a' delegated function of the Government and he must in this behalf be either himself armed with some authority or a representative character, or his duties must he immediately auxiliary to those of someone who is some armed."

8. From the Act of the BCDA, it is crystal clear that the employee of the BCDA are civil servant and the pension is not bounty on the part of the government. Pension is right of a civil servant. To receive pension is treated right of property which is guaranteed tinder Article 9 of the Constitution. Admittedly the petitioner was retired as an Account Officer BPS-18 on attaining age of superannuation i.e., 60 years in BCDA in the year 2013 and has drawn pension till May; 2020, thereafter the pension of the petitioner was stopped. The respondent No.3 has no right to withheld the pension of the petitioner without any allegations. The pension is right of a civil servant, which cannot be withheld without cogent reason. Reliance is placed on the case of Muhammad Ismail Memon reported in PLD 2008 SC 35, whereby it has been held as under:-- "

4. It may be noted that it is not only the case of late Prof. Ghazi and his wife who had died allegedly due to starvation as they had no financial resources to feed themselves but there are a large number of identical case of the retired government officers/officials as well as widows and their children which are being reported from time to time in the media. Predecessors of deceased government servants have to wait for a long period to get cleared their pension papers. it is also an admitted fact all over the country the offices of Accountants General usually raise baseless, frivolous and technical objections for causing delay in finalizing the pension case with ulterior motives, of course, known to them best. However, when this case was taken up, we were informed that in the month of January, 2006, there were several pension cases pending in the office of Accountant General, Sindh, and the majority of them, have been cleared and on the last date of hearing, it was pointed out by Mr. Fateh Muhammad QureshZ Deputy Accountant General that about 100 cases of pension were still pending for clearance. He was directed to finalize these cases without any further delay. Today, he has made a categorical statement before the Court that all such cases hove been cleared. Mr. Zulifikar Ali Kadri, Accountant General. Sindh, also appeared and stated that following measures have been adopted for disposal of pension and G.P. Fund cases expeditiously in future:-- INITIATIVE FOR SPEEDY DISPOSAL OF PENSION AND G.P. FUND CASES The forum of Khuli Katchery (Open Court), is held on every Friday, to provide instant oedoess& to the complainants. The AG himself addresses the grievances of Pension and G.P. Fund subscribers and provide on the spot remedy. About 118 Pension and G.P. Fund cases have been disposed of during the period from December, 2004 to 12th May. 2006. Letters to all the Heads of the Departments were written for submission qfpension cases in this office six months before retirement of expected retirees as per paras. 5.1 to 5.9 of the Pension Liberalized Rules 1964 and Presidential Order (F/C). Daily monitoring of Pension cases by raising the level of responsibility at the level of Deputy Accountant Getteral/Additional Accountant General. Letters were written to all the Departments to appoint focal persons to co-ordinate with A.G. Sindh for speedy disposal of r Pension and G.P. Fund cases, but a slow response has been eceivedfrom the Departments. FUTURE ACTION PLAN As a first instance data collection of all the expected retirees for the years, 2006 and 2007, has been made by this office to expeditiously process the Pension and GPF cases of expected retirees of the years, 2006 and 2007, through computerized system: of Pension and GPF cases modules to be installed in this office in near future. Pensioner's Directory In order to facilitate pensioner, pensions directory in respect of all the District of the Province have been complied As an initiative the list of employees retiring up to December, 2007 has been prepared The executive departments are being pursued vigorously to process the cases in time and submit cases complete in all respects, with all required documents, and to interact till the finalization of cases."

7. It is pathetic condition that Government servants, after having served for a considerable long period during which they give their blood and sweat to the department had to die in a miserable condition on account of non payment of pension/pensionary benefits etc. The responsibility, of course, can be fixed upon the persons who were directly responsible for the same but at the same time we are of the opinion that it is an over all problem mostly in every department, where public functionaries failed to play their due role even in accordance with law. Resultantly, good governance is -suffering badly. Thus every one who is responsible in any manner it: delaying the case of such retired officers/official or widows or orphan children for the recovery of pension/gratuity and G.P. Fund has to be penalized As their such lethargic action is in violation of Articles 9 and 14 of the Constitution of Islamic Republic of Pakistan. 1973. Admittedly, it is against the dignity of a . human being that he has to die in miserable condition and \or about three years no action has been taken by the concerned quarters in finalizing the pension case and now when the matter came up before the Court, for the first time, they are moving in different directions just to show their efficiency and to clear their position before the Court. Such conduct on their behalf is highly condemnable and cannot be encouraged in any manner.

9. In view of above discussion, the withholding of pension of theener is illegal. The respondent No.3 is directed to pay the pension to the petitioner, which he has already been withdrawing till May 2020. The petition is disposed of in the above terms. MQ/40/Bal. Petition allowed.