P L D 1957 (W (PLP)

INAMULLAH, J.

This is a petition for issue of a writ of mandamus or any other appropriate writ against the Province of West Pakistan directing the respondent to pay to the petitioner the additional special pension of Rs. 1,500 per annum under para. 19 (3) (a) and (b) of the Government of India (High Court Judges) Order 1937, read with Article 475-A of the Civil Service Regulations. The facts leading to the present petition are these: Mr. Hassanally Khan G. Agha was appointed as Assistant Judge and Assistant Sessions Judge in Sind in 1931, and in course of time was appointed as permanent District judge in 1938. He was appointed as judge of the then Chief Court of Sind in 1947. On completing his age of superannuation he retired from service on the 1st January 1955. The petitioner claimed that he was entitled to a pension under the Government of India (High Court Judges) Order, 1937. He claimed that under para. 19, clause (3) (a) and (b) of the aforesaid Order he was entitled to the grant of superannuation pension, a special pension of Rs. 1,500 per annum under Article 475-A of the Civil Service Regulations relating to salary, leave, pension and travelling allowance, issued by the Government of Pakistan. The contention of the petitioner was that he had not been allowed the special additional pension of Rs. 1,500 per annum to which under the rules he was entitled. The contention raised by Mr. Dingomal for the petitioner was only this that under clause (3) (a) of para. 19 of the Government of India (High Court Judges) Order, 1937, the petitioner was entitled to the pension mentioned under Article 474-AA of the Civil Service Regulations. The contention was that under Article 474-AA the petitioner was entitled to the superannuation pension excluding the amounts earned for special additional pension which he has not been allowed as provided under Article 475-A of the Civil Service Regulations. This was the only contention raised by Mr. Dingomal before us. For the consideration of the point urged by Mr. Dingomal, paragraphs 17, 18 and 19 of the Government of India (High Court Judges) Order, 1937, would have to be reproduced and also parts of Articles 474-AA and 475-A of the Civil Service Regulations published by Ministry of Finance, Government of Pakistan, First Edition, 1951, at page

114. They run as under :- " The Government of India (High Court Judges) Order, 1937. " 17. (1) Subject to the provisions of this Order, a pension shall be payable to a judge on his retirement if, but only if, either- (a) he has completed not less than 12 years' service for (b) he has completed not less than 7 years' service for pension and has attained the age of sixty ; or (c) he has completed not less than 7 years' service for pension and his retirement is medically certified to be necessitated by ill-health. (2) The Secretary of State may for special reasons direct that any period not exceeding three months shall be added to a judge's service for pension: Provided that a period so added shall be disregarded in calculating any additional pension under Part I or Part II of the Third Schedule to this Order. 18. (1) Subject to the provisions of this Order the pension payable to a judge who on his retirement is entitled to a pension shall be calculated- (a) in the case of a Chief Justice or judge who is not a member of the Indian Civil Service or of a Chief Justice of a Chartered High Court who is a member of the Indian Civil Service, in accordance with the scale ''tend rules in Part I of the Third Schedule to this Order ; (b) in the case of judge who is a member of the Indian Civil Service and is not a Chief Justice of a Chartered High Court, in accordance with the scale and rules in Part 11 of the said Schedule. 19. (1) The provisions of this paragraph shall apply in relation to a judge who is a member of a Civil Service of the Crown in India. (2) If any such judge is eligible for a pension under paragraphs 17 and 18 of this Order he shall elect to receive either that pension or such pension as is referred to in the next succeeding sub-paragraph. (3) If any such Judge is not eligible for a pension under paragraphs 17 and 1$ of this Order or being eligible for such a pension elects not to receive that pension, the pension payable to him shall be

(a) the pension for which he would have been eligible under the rules of his Civil Service if he had not been appointed a judge his service as a judge being treated as service for the purpose of calculating that pension ; and (b) If he is not a member of the Indian Civil Service, a special additional pension of five hundred rupees per annum in respect of each completed year of service for pension in any one or more of the High Courts or as acting judge of the Federal Court but not in any case exceeding two thousand five hundred rupees per annum. (4) The pension payable to any such judge part of whose service includes service as a Chief Justice shall in no case be less than the pension for which he would have been eligible if all his service for pension had been service rendered otherwise than a Chief Justice. The Civil Service Regulations relating to Salary, Leave, Pension and Travelling Allowance. Article 474-AA.- 3. (a) In the case of members of the services and holders of the posts specified in Schedule V whose pensions are regulated under the Civil Rules and who retires on or after the 1st April 1924, the maximum limits for retiring and superannuation pensions, excluding amounts earned for special additional pensions shall be as follows : -- Rs. After 25 year's qualifying service 6,000 After 26 year's qualifying service 6,200 After 27 year's qualifying service 6,400 After 28 year's qualifying service 6,600 After 29 year's qualifying service 6,800 After 30 year's qualifying service 7,000 Article 475-A.-The grant of special additional pensions to officers specified in Article 349-A is regulated as follows (1) The special additional pension admissible under this Article is not to be given as a matter of course but only where the service rendered is approved as satisfying the standard of work and conduct required in the special conditions of the post or duty hereinafter mentioned. (2) Officers who have held posts listed in the Schedule to this Article may be granted an additional pension (a) at the rate of Rs. 300 for each completed year of effective service in any post included in the lower grade, and (b) at the rate of Rs. 500 for each completed year of effective service in any post included in the upper grade, up to a maximum of Rs. 1,500 per annum for service in lower grade appointments and Rs. 2,500 per annum for service in lower and upper grade appointments combined or in upper grade appoint ments alone: Provided that in the case of an officer who has earned an additional pension by service in appointments in both the upper and lower grades, service for any broken period of a year in the upper grade may count as service in the lower grade of his pension would be thereby increased." It was urged on behalf of the petitioner that by virtue of paragraph 19 (3) (a) of the Government of India (High Court Judges) Order, 1937, the petitioner was entitled to the pension as provided under Article 474-AA of the Civil Service Regulations. The petitioner should have, it was strenuously contended, been not only given a pension of Rs. 6,800 per annum but also a further special additional pension. In other word, Article 474-AA, it was contended, contemplates not only a superannuation pension but also a special additional pension as provided under article 475-A. It was, however, conceded by the learned advocate for the petitioner that his client was only entitled to the special additional pension for service in lower grade appointments up to a maximum of Rs.1,500 only. His Excellency The Governor of Sind, it was contended, has not allowed the petitioner "amounts earned for special additional pension" as provided under Article 475-A of the Civil Service Regulations. The petitioner, on the contrary, has been granted a superan nuation pension of Rs. 6,800 per annum and a special additional pension of Rs. 2,500 per annum as provided under paragraph 19 (3) (b) of the Government of India (High Court Judges) Order, 1937. We have given our best consideration to the contention raised by the learned advocate for the petitioner, and we have come to the conclusion, on consideration of the provisions of the High Court Judges Rules, 1922, and also on a perusal of clause (3) (a) and (b) of paragraph 19 of the Government of India (High Court Judges) Order, 1937, that the petitioner cannot claim a special additional pension as urged by him. The short point for consideration is whether the words "the pension" under paragraph 19 (3) (a) of the Government of India (High Court Judges) Order, 1937 are wide enough to include the special additional pension. We have no doubt that the words "the pension" as used under paragraph 19 (3) (a) do not include the special additional pension for two reasons : The definite article before the word "pension" is indicative of the intention of the authority framing the Government of India (High Court Judges) Order, 1937, that it does not include anything like "special additional pension". In the second place, reading clauses (a) and (b) of paragraph 19 (3) of the Government of India (High Court Judges) Order, 1937, together as they are connected with 'the word "and", it is clear that a distinction was sought to be drawn between "pension" and "special additional pension". While the petitioner was entitled to the pension under the Civil Service Regulations, he was entitled to the special additional pension under sub-para. 3 (b) of para. 19 of the Government of India (High Court Judges) Order, 1937. There seems to be a good reason behind this rule of law as embodied in para. 19 (3) (a) and (b) of the Government of India (High Court Judges) Order, 1937. If a person has once become a High Court judge, though he could claim his pension under the Civil Service Regulations, but he was put above the approval and satisfaction of the Executive so far as his work was concerned. The underlying principle under the Government of India (High Court Judges) Order, 1937, as disclosed by para. 19 (3) (b), is to guarantee the inde pendence of judiciary, Under Article 475-A of the Civil Service Regulations, the special additional pension admissible under that Article was not to be given as a matter of course, but only where the service rendered was approved as c satisfying the standard of work and conduct required in the special conditions of the post or duty. The framers of the Government of India (High Court Judges) Order, 1937, did not consider it proper to leave the grant of special additional pension to the discretion of the Executive. The Government of India (High Court Judges) Order, 1937, in fact, guaranteed the special additional pension. On the face of it, reading paragraph 19 of the Government of India (High Court Judges) Order, 1937, along with Article 474-AA and Article 475-A of the Civil Service Regulations it is clear that the framers of the Order did not intend to give two special additional pensions. That the view we have taken is correct is also supported by statutory rules framed by the late Secretary of State in Council known as the High Court Judges Rules, 1922. These are reproduced at pages 149-157, Chapter XXIII of the Civil Service Regulations, published by the Government of Pakistan Ministry of Finance, in 1951. If the High Court Judges Rules, 1922, were applicable today, the rule applicable to the petitioner, as pointed out by Mr. Dingomal, would be rule 26 of the said rules. According to this rule, the petitioner would have been entitled to a pension which he might have received under the rules applicable to the branch of service to which be belonged. If so, the only pension to which the petitioner would have been entitled was his basic pension permissible under Article 474-AA, and the special additional pension under Article 475-A of the Civil Service Regulations. In short, he would not be entitled to two special additional pensions. Moreover, the words "the service of the judge being treated as service for purpose of calculating that pension" also give a clue to the intention of the framers of the High Court Judges Order, 1937 as to whether "the pension" means the superannuation pension including the special additional pension or not. The question of the number of years of service put in by a person was only important so far as the basic pension was concerned and had no relevancy so far as the special additional pension was concerned. The amount of pension varied from the number of years of service put in by the person. The amount varied from Rs.6,000 to Rs.7,000 from 25 years' qualifying service to 30 years. We would, for the reasons given above, dismiss the petition, but would make no order as to costs under the circumstances of the present petition. A. H. Petition dismissed.