1987 PLP (C (PLC(CS))

Muzaffarabad. Sub. FURTHER LIBERALIZATION OF LIBERALIZED PENSION RULES FOR CIVIL SERVANTS. Sir, I am directed to state that further liberalization of existing pensionary benefits has been under the consideration of Government for some time past. It has now been decided that with effect from 1st July 1980, the amount of pension in excess of Rs. 2,000 (instead of Rs. 1,000) shall be reduced by 50%. Therefore the figure of Rs. 1,000 shall be substituted by the figure of Rs. 2,000 referred to in para. 2(a) of the FD's circular letter No. FD/1816‑90/77 dated 15‑3‑1977, and in the Note below the Revised Pension Table at Annexure I thereto.

2. It has also been decided that where the enhancement of the cut off point to Rs. 2,000 as mentions to para. 1 above, results in no increase or an increase of less than Rs. 40 in the pension, it shall be so determined that a minimum benefit of Rs. 40 per month is ensured. (Sd.) Section Officer (Finance) No.FD/7229‑7608/80 dated 10‑9‑1980." "No. FD/Audit/33/81/342/82 Azad Government of the State of Jammu and Kashmir, Muzaffarabad. Dated 21‑1‑1982. To The Accountant‑General, Azad Government of the State of J & K, Mu zaffarabad . Sub: FURTHER LIBERALIZATION OF LIBERALIZED PENSION RULES CIVIL SERVANTS Sir, I am directed to refer to this Department's circular letter No. FD/7529‑7608/80, dated 10‑9‑1980, on the subject noted above and to say that the instructions issued by this Department regarding special ad hoc increase admissible to civil pensioners existing on or before 30th June, 1980 have created certain anomalies vis‑a‑vis pension accruing after 30th June, 1980. In order to remove the anomalies the President Azad Jammu and Kashmir has been pleased to decide that if employees of Grade 11‑16 and 17‑18 get an increase of less than Rs. 70 per month and Rs. 100 per month respectively by the enhancement of the cut off point to Rs. 2,000 the increase shall be so determined that a minimum benefit of Rs. 70 per month or Rs. 100 per month as the case may be, is ensured. If the increase allowed under this Department circular letter dated 10‑9‑1980 on the above subject read with the present circular letter results in an increase of less than the special ad hoc increase viz: N.P.S. Rs. p.m. 1‑10 40 11‑16 70 17‑18 100 19‑20 150 21‑22 200 In family pension, extraordinary family pension, disability pension and compassionate Allowance accruing on or after 1‑7‑1980, they shall be as determined that a minimum benefit equal to the special ad hoc increase mentioned above is ensure. Your obedient servant, (Sd.) (Abdul Rashid Baig) Section Officer Finance No.FD/Audit/33/81/342‑402/82 dated 21‑1‑1982." No.FD/R‑(53)‑P/85‑B, AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR FINANCE DEPARTMENT 'MUZAFFARABAD' Dated 12th August, 1985. From S. Faragh Naweed, Secretary Finance, Azad Government of the State of J & K, Muzaffarabad To (1) Additional Chief Secretary (Dev), (2) All Secretaries to Government. (3) All Heads of attached Departments, Azad Government of the State of J & K, Muzaffarbad . Sub: CALCULATION OF PENSION WITHOUT APPLYING ANY REDUCTION DUE TO CUT OFF POINTS: Sir, I am directed to state that according to the existing rules/ instructions, pension is calculated at the rate of 70% of average emoluments on completion of 30 years qualifying services. Where qualifying service is less than 30 years but not less than 10 years, the pension is calculated at the percentage applicable according to length of service. Any amount of pension in excess of Rs. 2,500 is reduced by 50%. The President Azad Jammu and Kashmir has been pleased to decide that with effect from 1st July, 1985, the reduction by 50% of the pension in excess of Rs. 2,500 shall not be applied in the case of those Government servants who retire on or after 1‑7‑1985. In all such cases the pension shall be calculated at the rate of 70% of average emoluments or other percentage rate applicable according to length of qualifying service without applying any reduction.

2. The President Azad Jammu and Kashmir has also been pleased to direct the Pension/Family Pension of those who retired/died between the period 10‑3‑1969 to 30‑6‑1985 in respect of non‑Gazetted Government servants and 1‑7‑1970 to 30‑6‑1985 in respect of Gazetted Government excess of the cut off points of Rs. 600, 1,000, 2,000 and 2,500 existing at the time of their retirement /death was applied, shall also be that as calculated previously without applying any reduction subject to the condition that the amount of re‑calculated pension under the Azad Jammu and Kashmir Civil Service Pension Rules, 1971, as amended from time to time, shall not exceed the maximum limit of pension referred to in the Pension Table annexed to the Azad Kashmir Civil Service Pension Rules, 1971 issued vide No. FD. /2372‑2422/71 dated 15‑7‑1971. In such cases gratuity or commutation will not be revised or re‑calculated. The pensioner concerned or his family will only be allowed the benefit of enhanced pension with effect from 1‑7‑1985 without any arrears.

3. The benefit of gratuity or commutation will also not be admissible on the revised /enhanced pension in cases where the pensioners concerned did not exercise their option to draw any gratuity or commutation at the time of their retirement. In such cases the benefit of gratuity or commutation will continue to be admissible on the original amount of gross pension in accordance with the prescribed rules. Yours obedient servant (Ch. Muhammad Latif), Joint Secretary Finance (Regulation) for Secretary Finance. No. FD/R(53)‑P/85‑3 dated,rl2th August, 1985".

7. There is no doubt that pension is not a bounty. It was held in the case of the Government of N.‑W.F.P. v. Muhammad Said Khan and another PLD 1973 S C 514:‑ "It must now be taken as well‑settled that a person who enters Government service has also something to look forward after his retirement, to what are called retirement benefits, grants of pension being the most valuable of such benefits. It is equally well‑settled that pension like salary of a civil servant is no longer a bounty but is a right acquired after putting in satisfactory 'service for the prescribed minimum period. A fortiori, it cannot be reduced or refused arbitrarily except to the extent and in the manner provided in the relevant rules. Conversely full pension admissible under the rules is not to be given as a matter of course unless the service rendered has been duly approved (see Art. 470, Civil Service Regulations). It is equally well settled that if the service has not been thoroughly satisfactory, the authority sanctioning the pension is empowered under the said Article to make such reduction in the amount as it may deem proper. This power is however exercisable only before pension is actually sanctioned."

8. It is an admitted fact that all the petitioners retired and that under the order of the President of Azad Jammu and Kashmir an ad hoc special increase to the extent of Rs. 100 per month was granted to these petitioners who were serving in N.P.S. 18 at the time of their retirement. It is also an admitted fact that the orders allowing them this benefit were communicated to them and they received the benefit for sometime. In other words an important valuable right accrued to them which cannot be snatched away arbitrarily or without giving them an opportunity of being heard. The order of refusal of Rs. 100 per month as the Special Ad hoc Increase in pension violates the fundamental right of Audi Alteram Partem which right stems from the Muslim Jurisprudence. Moreover, the learned Accountant‑General, who has been paying them the benefit for sometime, cannot now change a volte face and deny them the payment of Rs. 100 per month as an ad hoc special increases in their pension. The Accountant‑General or any other functionary of the Government cannot undo the decision which was made by the President of Azad Jammu and Kashmir Government.

9. Regarding the point of Locus Poenitentiae (power to recede) there is a catens of authorities that when an order takes effect and certain rights are created in favour of an individual or individuals in persuance of such order, decisive step is deemed in such cases to have been taken and therefore, the order cannot be withdrawn or rescinded. In this respect, the case of Muhammad Aslam Khaki v. Vice‑Chancellor Gomal University, Dera Ismail Khan P L D 1980 Pesh. 128 is clear in which case reliance was made on:‑ P L D 1956 F C 46; P L D 1960 S C 310; P L D 1963 Lah. 53; P L D 1964 S C 503; P L D 1965 Pesh. 31; P L D 1969 S C 407; P L D 1973 Quetta 14 and P L D 1979 Quetta

131. I have also held the same in the case of Syed Muneeb Nazir Shah v. Azad Kashmir Government P L D 1985 AJK 17, that an authority which passes an order is competent to vary, rescind or cancel the order passed by it and that power vests in it by virtue of section 21 of the General Clauses Act. But this power is not absolute as it is subject to certain limitations. The most important limitation is that when the order sought to be varied, rescinded or cancelled is communicated to the other party and/or subsequent to that communication, a party acts upon it, a very valuable right accrues to the other party and therefore, the authority, under such circumstances, becomes incompetent to vary, rescind or cancel its previous order because the law does not allow volte face to that authority (34)B. In that case I had referred to: A I R 1938 Nag. 513; P L D 1955 Lah. 65; P L D 1956 F C 46; P L D 1960 S C 310; P L D 1963 Lah. 53; P L D 1964 S C 438, 503; PLD, 1956 Pesh. 31; P L D 1969 S C 407; P L D 1980 S C 439; P L D 1973 Quetta 14; P L D 1979 Quetta 131; P L D 1980 S C (AJ&K) 46 and P L D 1980 Pesh. 128.

10. I have seen the PPO of Mr. Abdul Ghani in which the Special Ad hoc Increase of Rs. 100 is mentioned separately and then the total pension has been calculated. PPOs are issued after full deliberations and after going through the relevant law and rules, therefore, it does not lie in the mouth of the Accountant‑General that the PPOs were issued wrongly by his subordinates. Moreover, in the column of "Class and sanction", the Government order dated 16‑9‑1982 has been mentioned in the PPO of Abdul Ghani. I could not lay my hands on the Government order dated 16‑9‑1982. However, the special ad hoc increase was allowed under the Accountant‑General's Circular dated 10‑9‑1980, wherein it has been clearly stated that the President of Azad Jammu and Kashmir Government has been pleased to sanction w.e.f 1st of July 1980, a Special Ad hoc Increase to all the existing civil servants pensioners of Azad Jammu and Kashmir Government. According to the letter No FD/7529‑7608/80, dated 10‑9‑1980 issued by the Finance Department to the Accountant‑General, it has been clearly stated that further liberalization of pension benefits had been under the consideration of the Government for some times past and that it has been decided that w.e.f. 1st of July 1980, the amount of pension in excess of Rs. 2,000 (instead of Rs. 1,000) shall be reduced by 50%. According to the Finance Department's direction to the Accountant‑General given on 21‑1‑1982, a further liberalization of liberalized pension rules of civil servants was made and certain anomalies vis‑a‑vis pension accruing after 30th June of 1980, were removed. It was clarified in the letter No. FD/Audit/33/B1342/82 dated 21‑1‑1982, that the President of Azad Jammu and Kashmir has been pleased to decide that employees of Grade 11‑16 and 17‑18 shall get an increase not less than Rs. 70 per month or Rs. 100 per month respectively by the enhancement. In other words, the increase shall be as determined that a minimum benefit of Rs. 70 per month or Rs. 100 per month as the case may be, is ensured. It was also decided that in family pension, extraordinary family pension, disability pension and compassionate allowance accruing on or after 1‑7‑1980, they shall be so determined that a minimum benefit equal to the special ad hoc increase mentioned above is ensured.

11. Therefore, it is very clear that the petitioners herein who are serving in N.P.S.18 and 19, were entitled to the increase up to Rs. 100 per month which is the minimum benefit according to the letter of the Finance Department to tide Accountant‑General dated 21‑1‑1982, referred to above.

12. There is no doubt that when something is paid in excess to a Government servant, the Accountant‑General is perfectly justified to get back that money. But here in these three cases, nothing was paid in excess to the petitioners herein. They were allowed an increase in their pension to the tune of Rs. 100 per month only and this amount of Rs. 100 per month was included in their PPOs. It will be highly unjustified to snatch away this benefit from them without hearing them. It is the settled law that no body can be condemned unheard. The rule of "Audi alteram partem" stems from the Muslim Jurisprudence. This is the additional ground : which cannot be overlooked. I would like to quote 1982 P L C (C.S.) 257 'in which case the Revenue Board had not heard a certain Government servant before passing the impugned order.

13. I think that the plea of alternate remedy, taken up by the Government, does not hold field because it is the settled law now that in its writ jurisdiction, the High Court can grant relief despite the fact, that an alternate remedy is available but where the alternate remedy is less convenient, expensive or consumes a sufficiently large time, the writ petitions lie. Here in these cases, the rule of natural justice has also been infringed. Moreover, the disposal of all those three writ petitions did not require any evidence, except certain documents, therefore, writ jurisdiction is more convenient, less expensive nerd more adequate to the petitioners herein. They are retired Officers and it was not necessary for them to go before the learned Service Tribunal in the light of‑ P L D 1981 Quetta 16 and P L D 1984 S C (AJ&K)

77. Under these circumstances, I hereby accept the above titled three writ petitions and quash the orders of the Accountant‑General dated 29‑9‑1983 in the case of Raja Muhammad Akram Khan 6‑10‑1983 G in the case of Agha Alla‑ud‑Din and Abdul Ghani, whereby the grant of Rs. 100 per month as Special Ad hoc Increase, was withdrawn by him. The parties shall bear their own costs. M.B.A./294/H.A.