P L D 1988 Quetta 70 (PLP)

ABDUL QADEER CHAUDHRY, ACTG. C.J.‑‑The facts leading to the filing of the present petition may be stated as under:‑

1. The petitioner was a Member of Civil service of Pakistan from the year 1958 to 1965 and discharged his duties in the administrative set up of the Province of West Pakistan. it,,: petitioner opted for judiciary in the year 1966 and he was also discharging his duties in the judicial branch upto July 1974 On 7th October 1974 lie was elevated to the High Court of Sind and Baluehistan. He became an Additional Judge of the High Court of Baluchistan on 1st December, 1976 and was made a permanent Judge of this Court on 7th October, 1977, By means of Notification No.F.12(3)l8 A‑II(B}, dated 7th April, 1981 of the Government of Pakistan, Ministry of Law and Parliamentary Affairs law division Islamabad, which was passed in pursuance of Article‑? of the Provisional Constitution Order, 1981, the petitioner ceased to hold the office of Judge of the High Court of Baluchistan w.e.f. 25th March; 1981. ` From 25th March, 1981, the Petitioner Was awarded pension at the rate of Rs.2,632 per month, On 4th April, 1983, the judges (Leave, Pension and Privileges) (Amendment) Order, 1983 was passed. This amendment raised the rats of pension and came into effect on 1st July, 1981.

2. According to the petitioner, on a representation to the Accountant‑General Baluchistan, claiming benefit of the aforesaid amendment, the Accountant‑General ‑Baluchistan awarded the pension to the petitioner at the amended rate and the petitioner started receiving pension at the rate of Rs. 3600 Per month w.e,f. 18t July, 1981. The Accountant‑General Baluchistan (respondent No.3) vide letter No.PN/5‑726/81‑82/6986, dated 4th May, 1986 ordered .the Treasury Officer, Sibi to reduce the pension Payment of the petitioner to Rs.1,750 per month. The petitioner protested against the reduction in pension and requested the immediate withdrawal of the impugned revised pension payment. order, but without any result. In such circumstances, the petitioner has filed this Constitutional Petition against the impugned action of the respondent No.3.

3. In order to appreciate the contention of the petitioner, it is necessary to refer to the President's Order No.S of 1983 "The Judges (Leave, Pension and Privileges) (Amendment; Order, 1983" whereby in the High Court ,Judges (Leave, Pension and Privileges) Order, 19711 (President's Order No. 9 of 1970?, in tire First Schedule in Part‑1, sub‑paragraph (a), (i) far the words "tone thousand" the words "two thousand one hundred", (ii) for the words "one hundred" the words "two hundred" anti (iii) for the wards "one thousand seven hundred and fifty" the words "three thousand six hundred" were substituted, and in Part‑11, in sub‑paragraph (b), (i) for the words "one hundred" the words "two hundred" and (ii) for the wards "one thousand seven hundred and fifty" the words "three thousand six hundred" were substituted. This Order was published on 4th April, 1.383 in the Official Gazette, but by means of Section (2), it came into force at once and was deemed to have taken effect on the 1st day of July, 1981. Here we may also point out that this Presidential Order was again amended by means of President's Order No.6 of 1985 "The Constitution (Amendment) Order, 1985" and in the part relating to the High Court, (i)...,...for the figure "2,100" the figure "2,00", and for the figure "3,600" the figure "4,200" were substituted. It came into effect on the 1st day of July, 1983. Before the promulgation of President's Order No. 5 of 1983, the maximum pension of a High Court Judge used to be Rs.1,750 per month, which has been increased to Rs.3,600 by the Presidential Order No. S of 1983 and to Rs.4,200 per month by means of Presidential Order No. 6 of 1985.

4. Only respondents Nos.l, 3 and 4 have filed the comments and according to these comments, the petitioner held more than five years service as a Judge and fulfilled the conditions laid down in Article la. of the high Court Judges (Leave: Pension and Privileges) Order, 1970, his pension, was, therefore, required to be calculated under Article 14(b) and not under Article 15 thereof, and the maximum of Hs.1,750 was also‑ applicable as provided in part relating to High Court, para. 3 of the Fifth Schedule to the Constitution read with Part‑11 of the First Schedule to the High Court Judges (Leave, Pension and Privileges) Order, 1970. The enhanced rate was allowed to the petitioner on the understanding that these rates were also admissible to Judges, who had retired prior to 1st July, 1981. However a reference was made to the Justice Division in another case seeking their clarification, as the framer of the Presidential Order. The Justice Division issued clarification after consulting the Finance Division that President's Order No. 5 of 1983 shall have prospective effect and not retrospective effect. As such, the President's Order No. 5 of 1983 was applicable to those Judges who retired on or after 1st July, 1981. The plain reading of the Presidential Order No. 5 of 1983 makes it clear that nowhere in this Order, it has been stated that the benefit of this order would not be applicable to those Judges who had retired prior to 1st July, 1981. It has also not been provided in this Order that the maximum limit would only be applicable to the Judges, who had retired on or after .1st July, 1981. Under Article 205 of the Constitution, remuneration and other terms and conditions of service of a Judge of the Supreme Court or of a High Court shall be as. provided in the Fifth Schedule. There is a constitutional provision fixing remuneration and other terms and conditions of a High Court ,fudge. In accordance with such provision, the pay and pension of'! the Judges of the superior Courts are fixed by a constitutional' instrument. The Fifth Schedule relates to remuneration and terms and conditions of service of Judges. This Schedule is not to be read in isolation, as it is a part of the Constitution. The salary and other privileges of the superior Court Judges are allowed under a Constitutional provision, in order to keep the judiciary independent. 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 t and no foreign element is to be introduced. The interpretation must . be harmonious and reasonable. It must be construed within the constitutional limits. Maxwell "On the Interpretation of Statutes" on page 28 of Twelfth Edition has observed as follows:‑ The first and most elementary rule of construction is that it is to be assumed that the words and phrases of technical legislation are used in their technical meaning if they have acquired one, and otherwise in their ordinary meaning, and the second is that the phrases and sentences are to be construed according to the rule of grammar. "The length and detail of modern legislation", wrote Lord Evershed M . R . , "has undoubtedly reinforced the claim of literal construction as the only safe rule". If there is nothing to modify, alter or qualify the language which the statute contains; it must be construed in the ordinary and natural meaning of the words and sentences. "The safer and more correct course of dealing with a question of construction is to take the words themselves and arrive if possible at their meaning without, in the first instance, reference to cases". The rule of construction is "to intend the Legislature to have meant what they have actually expressed". The object of all interpretation is to discover the intention of Parliament, "but the intention of Parliament must be deduced from the language used". For "it is well accepted that the beliefs and assumptions of those who frame Acts of Parliament cannot make the law". Where the language is plain and admits of but one meaning, the task of interpretation can hardly be said to arise Where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the legislature, it must be enforced however harsh or absurd or contrary to commonsense the result may be. The interpretation of a Statute is not be collected from any notions which may be entertained by the Court as to what is just and expedient". Crates on Statute Law, Seventh Edition, Chapter five relating to the construction where the meaning is plain, has expressed as under:‑ "If the words of the statute are themselves precise, and unambiguous, then no more can be necessary than to expound those words in their ordinary and natural sense. The words themselves alone do in such a case best declare the intention of the law‑giver." In the case of Robert v. Bank of Upper India Limited, reported in A.I.R. 1937 Lah. 507, it was observed as under:‑ "It is a cardinal rule of interpretation of statutes that an enactment ought to be construed according to its plain language and it is not for the Court to speculate as regards the intention of the legislature or to import into the enactment words which do not exist there, in order to remove possible or supposed hardship." In the case of Messrs Hamdard Dawakhana v . Commissioner of Income‑tax, Karachi, reported , in P L D 1980 S C 84, it was held as under:‑ "In any case, as observed by Lord Watson in The Guardian of Poor of the West Derby Union v. The Metropolitan Life Assurance Society and others, it is clear that if the language of the enacting part of the Statute does not contain the provisions which are said to occur in it, one cannot derive these provisions by implication from a proviso."

5. 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. In the case of Muhammad Nur Hussain v. The Province of East Pakistan and others, reported in P L D 1959 S C (Pak.) 470, it was pointed out that:‑ "It is well‑recognized that in interpreting a provision of a Constitution the widest construction . possible in its context should be given according to the ordinary meaning of the words used, and that each general word should be held to extend to all ancillary and subsidiary matters." The Presidential Order nowhere stipulates that the benefit of the two Presidential Orders would not be available to the Judges who had retired before the dates mentioned in the two orders. As the E Orders are clear and admit of no ambiguity, therefore, the necessary conclusion would be that the benefit of these Orders would be available to all the Judges irrespective of their date of retirement.

6. Learned Advocate‑General has submitted that it is a recognized principle of law that the legislature may enact retrospectively or prospectively and as in the present case; the legislature has legislated prospectively, therefore, the petitioner is not entitled to the increase in the pension by the aforesaid Presidential Orders. He has referred to the case of Muhammad Akhtar Hussain and 4 others v. Government of West Pakistan through the Chief Secretary to Government of West Pakistan, Lahore and 454 others, reported in P L D 1970 S C 146, in which, it was held that "it is well settled that legislation may be made both prospectively and retrospectively but normally legislation, which is not of a purely procedural nature, will not be given retrospective effect so as to take away vested rights." There is no cavil with this proposition, but we are of the view that the contention of the learned counsel is not well founded on the facts of the case. He has also referred to the case of Nazir Ahmad v. Pakistan and 11 others, reported in P L D 1970 S C 453, in which it was observed that "where the departmental practice has followed a course in the implementation of the relevant rule whether right or wrong, it will be extremely unfair to make a departure from it after a lapse of many years and to disturb rights that have been settled by a long and consistent course by the practice". In fact, this authority supports the contention of the petitioner. He then referred to the case of Azhar Ali Shah v. Nor Muhammad and other, reported in P L D 1960 (W.P.) Lh. 728, which lays down that "where the language used in a statute is plain and unambiguous the Courts have no power to extend the meaning of the words used in a statute because it that were allowed, the Courts will be travelling beyond their function". There is also no quarrel with this proposition. The next cited case by the learned Advocate‑General is Muhammad Sharif and another v. The State, reported in P L O 2959 (W.P.) Lah. 987, wherein it has been observed that "pit is not for the Courts to discuss ethical principles, not for that ratter to weigh the appropriateness of the relevant provisions bearing on a subject. Courts lave to give effect to the law as it is and interpret the intention of the legislature from the language of the statute". In fact there is also no quarrel with this proposition stated by the learned Advocate‑General, taut even this authority supports the contention of the petitioner. The next case cited by him is Commissioner of Income Tax, Madhya Pradesh and Bhopal v. Sm. Sodra Devi and Sm. Oamyanti Sahni, partner of Messrs Ishwar Das Shni anal Bros. v. Commissioner of Income Tax, Delhi, reported in P L D 1958 S C (India) 11, but this precedent is not relevant, lie has also cited the case of Abdul Hadi alias Abdul Hadi Hasan anal 2 others v. Syed Ali Haider and others, reported in P L 11 1983 S C 342, wherein it has been held that "all parts of enactment to lie read together anal given due effect".

7. Learned counsel for the petitioner on the other hand has cited the cases of (i) K.F. Shaifta v. Settlement and Rehabilitation Commissioner, Lahore and another, reported in 1974 S C M R 465 and (ii) Akhtar Muhammad v. Haji Faiz Muhammad and 2 others, reported in 1986 P Cr. L J (Quetta) 2994. After considering the arguments of learned counsel for the parties and the precedents cited by them, we are clear in our minds that the provisions of the Presidential Orders are not ambiguous and literal meanings have to be given to these Orders. The Fifth Schedule is a part. of the Constitution and any amendment in this Schedule would be interpreted as a constitutional provision, so as to make its consistent with Article 205 of the Constitution.

8. Learned Advocate‑General has referred to section 4 of the Civil Service Regulations, which provides that the Government of Pakistan reserve to themselves the right of changing the rules in these Regulations regarding pay and acting allowance and leave and pension, from time to time at their discretion, and of interpreting their meaning in case of dispute. An officer's claim to pay and allowances is regulated by the rules in force at the time in respect of which the pay and allowances are earned; to leave by the rules in force at the time the leave is applied for and granted; and to pension by the rules in force at the time when the officer resigns or is discharged from. the service of Government". The Judges of the superior Courts are not the civil servants. Their terms and conditions of service are provided in the Constitution itself, therefore, the respondents cannot take shelter behind such rules. Additionally, the Presidential Orders are quite clear and these Orders cannot be destroyed by such rules. If the rules are not in consonance with the main provisions, the basic principle of interpretation is that such rules are to be ignored. There was no justification under any statute to withhold the pensionary benefits of the petitioner. In fact, it is the narrow bureaucratic outlook, which has caused harassment to the petitioner. The respondent No.3 has misconstrued Part‑1I of the First Schedule to the said Order. If the construction of Part‑I1 of 1st Schedule by the respondent is to be accepted, then it leads to the result that a retiring Judge who has been formerly a Member of the Civil Service of Pakistan and has been a Judge of the High Court for more than five years shall receive only a maximum of Rs.1,750 p.m. as pension, while a person in a similar category i.e. formerly a Civil Servant, who has not completed five years as a Judge of the High Court can receive a higher rate of pension. This negates the intention of the law‑giver. The respondents have urged that as the petitioner has retired before 1st July, 1981, therefore, he is not entitled to the pensionary benefits as provided in the President's Order No.5 of 1983. The significance of the dates mentioned in the two Presidential Orders, namely, President's Order No.5 of 1983 and President's Order No.6 of 1985 has not been elaborated by the respondents. There was. no special reason for fixing the two dates. The first Order was issued on 4th April, 1983, but came into effect w.e.f. 1st July, 1981. The respondents have not drawn a distinction between the two sets of pensioners; one who had retired prior to 1st July, 1981 and the other after that date. The anomaly would further be seen from the fact that a Judge who had retired a day before 1st July, 1981 would get only Rs.1,750 as pension per month and the other Judge who had retired on 1st July, 1981 would get the maximum pension of Rs.3,600 per month. There is no reasonable classification between the two individuals. Reasonable classification is always accepted, but the respondents have failed to justify their action on any principle of law and precedent. In fact, by action of the respondents, a discrimination has been done to the petitioner without any valid legal reason.

9. Now the concept of colonial rule that pay is a bounty of the State is no more a good law in Pakistan. Pension is earned by a pensioner due to the hard work and labour he puts in during the r course of his service and such benefits of pension cannot be withheld) without any sanction of law. Now pension is being claimed as a matter of right and not as a matter of grace. It would be pertinent if we quote from the order of an eminent Jurist Sardar Muhammad Iqbal, who disposed of a complaint by a retired Judge of the Supreme Court, as Ombudsman. The observation reads as follows:‑ "It is nowhere provided in the Constitution (Amendment) Order No.4 of 1983 or this Order that the revised limits of pension would apply only to those Judges retiring on or after 1‑7‑19811 or as the case may be 1‑7‑1983 or that the Judges having retired earlier shall be excluded from their purview. The language used is so clear and explicit that it admits of no, ambiguity whatsoever and is susceptible to one, and only one interpretation that the revised rates shall be admissible to retired Judges of the Supreme Court irrespective of their dates of retirements. In such a situation, it would indeed be a futile exercise to urge that the intention of the lacy‑maker in the present case has to be ascertained not from the words used in the Statutes but from other sources. The distinction imported by the Agency in the application of this provision runs counter to the provisions of the Constitution which are of a mandatory nature. "This obviously fails within the meaning of maladministration as defined in clause 2 of Article 3 of P.O.No.l of 1983" His Lordship further observed as under: "Reading these provisions together, as I am entitled to do, there can absolutely be no doubt or ambiguity as to the fact that a retired Judge, no matter when he retired, is entitled to a pension of not less than Rs.3,600 per mensem or more than Rs.4,o00 per mensem. If someone is to contend that this is not applicable to the Judges who retired before 1st July, 1981 he has to show where is that provision in the Fifth Schedule. The figures of Rs.1,500 and Rs.1,950 originally given in paragraph 3 of the Fifth Schedule to the Constitution stood replaced by the amendments of 1983 and 1985. Under Article 205, the remuneration and other terms and conditions of service are as laid down in the Fifth Schedule. This Schedule does not provide any pension other than Rs.3,600 as the minimum and Rs.4,600 as the maximum. It is contended that this was not the intention of the law‑makers when they amended the Constitution, then doubtless they have not been able to translate their intention into words". We fully share the above‑quoted views.

10. We have been able to lay down our hands on two cases from the Indian jurisdiction, which may be relevant for consideration. By an Act of 1976, the pension of the High Court Judges was increased and the Act was given some retrospectivity, but it further provided that it shall be deemed to have come into force on October 1st, 1974 and the pension .at enhanced rates was made payable to such Judges who had retired on or after 1st October, 1974, but this amendment was struck down by the Allahabad High Court in the case of Bidhubhushan Malik (dead) retired Chief Justice, Allahabad High Court and others v. Union of India, reported in A.I.R. 1983 Allahabad 209 and the following observations were made:‑ "Where the Amending Act of 1976 introduced para. 10 in the First Schedule and liberalised the pension admissible to Judges and Chief Justices of the High Courts and the pension at enhanced rates made payable to such Judges only who were retired on or after the 1st October, 1974, and no relevant or valid consideration to selection of eligibility criteria, was suggested. It was held that in the absence of such consideration the criteria laid by the Government would be arbitrary and irrelevant. Merely because in the counter‑affidavit it was stated that the Government of India in September, 1974, for the first time considered that the 'conditions of service of Judges should be liberalised and, therefore, the Amendment Act was enforced with effect from the specified date, it would not be 'sufficient to constitute a legitimate basis for discriminating against those whose retirement had taken place prior to the said date. The division was unsupportable being devoid of rational principle; the object being evidently to give something more in the form of additional pensionary benefit to persons otherwise equally placed; the line drawn at the said date was clearly discriminatory. Thus, the pensionary benefit must be extended to all covered under this class without regard to the question whether the Judge/Chief Justice retired from service before or after the 1st October, 1974. Therefore the High Court Judges (Conditions of Service) Act, 1954 (as amended) shall be read down as under: in para. 10 of the First Schedule, the words "and who has retired on or after the 1st day of October, 1974" are unconstitutional." This matter was taken up before the Supreme Court of India and the Supreme Court in A I R 1984 1177 refused to grant leave to appeal and confirmed the order of Allahabad High Court. We may also like to quote weighty observations made in the case of D . S. Nakara and others v . Union of India, reported in A I R 1983 S C 130, which read as under:‑ "With the expanding horizons of socio‑economic justice, the Socialist Republic and Welfare State which the country endeavors to set up and the fact that the old men who retired when .emoluments were comparatively low are exposed to vagaries of continuously rising prices, the falling value of the rupee consequent upon inflationary inputs, by introducing an arbitrary eligibility criteria, "being in service" and retiring subsequent to the specified date "for being eligible for the liberalised pension scheme and thereby dividing a homogeneous class, the classification being not based on any discernible rational principle and being wholly unrelated to the objects sought to be achieved by grant of liberalised pension and the eligibility criteria devised being thoroughly arbitrary, the eligibility for liberalised pension scheme of "being in service on the specified date and retiring subsequent to that date" in the memoranda, violates Article 14 and is unconstitutional and liable to be struck down. But, as the arbitrary and discriminatory portion in the memoranda can be easily severed, both the memoranda shall be enforced and implemented after severance of the unconstitutional part. However, arrears of pension prior to the specified date are not required to be paid to those who have retired before the specified date because to that extent the scheme is prospective. Accordingly, all pensioners governed by the 1972 Rules and Army Pension Regulations shall be entitled to pension as computed under the liberalised pension scheme from the specified date, irrespective of their date of retirement. (paras. 49, 64). The fundamental principle is that Article 14 forbids class legislation but permits reasonable classification for the purpose of legislation which classification must satisfy the twin tests of classification being founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group and the differentia must have a rational nexus to the object sought to be achieved by the statute in question. The doctrine of classification was evolved to sustain a legislation or state action designed to help weaker sections of the society or some such segments of the society in need of succour. Legislative and executive action may accordingly be sustained if it satisfies the twin tests of reasonable classification and the rational principle correlated to the object sought to be achieved. The State, therefore, would have to affirmatively satisfy the Court that 'the twin tests have been satisfied. It can only be satisfied if the state establishes not only one rational principle on which classification is founded but correlates it to the objects sought to be achieved. Where all relevant considerations are the same, persons holding identical posts may not be treated differently an flee matter of their pay merely because they belong to different departments. If that cannot be done when they are in service, can that be done during their retirement? Expanding this principle, it can confidently be said that if pensioners form a class, their computation cannot be by different formula affording unequal treatment solely on the ground that some retired Barber and some retired later. (Pares. 15, 16, 32)." The case of the petitioner stands on higher pedestal than the cases before the Indian Courts. The Presidential Orders have not placed any clog on the cases of those Judges who retired before 1st July, 1981. The enhancement in pension was made keeping in view the changed circumstances, rising prices and inflation. The salaries of other government servants were also increased. The enforcement clause does not speak of any date of retirement and it does not provide any provision relating to the date of retirement. It appears that there was some difference of opinion between the administrative departments of respondent No. 3, which created trouble for the petitioner and other Judges. The respondents have taken the position that the Justice Division had given opinion that those Judges who retired on or after 1st July, 1981 are only entitled to the benefit of Presidential Order. The order of learned Ombudsman shores that the Justice Ministry has revised his earlier opinion, therefore, it was incumbent upon the respondents to have allowed the revised pension to the petitioner.

11. We have come to the conclusion that the retired Judges irrespective of their dates of retirement are entitled to the pensionary benefits, as provided in the President's Order No. 5 of 1983 and 6 0f 1985. We are further convinced that the action of the respondent is not justified by any provision of law. We, therefore, declare the impugned action of the respondent No. 3 reducing the rate of payment of pension, to, be illegal, without lawful authority and consequently of no effect. We accordingly accept this petition with costs. A.A./307/Q Petition accepted.