2018 PLP (C (PLC(CS)N)

MOHAMMAD SHERAZ KAYANI, J.

Through this petition filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, following relief is implored by the petitioners:- "In the light of what has been narrated the petitioners and Proforma non-petitioners most respectfully and humbly pray and request that non petitioners may kindly be directed to disburse the amount of pension due from the month of August 2015 to December 2015 in the light of Notification No.LSG/S-11/3(8) part-1/9810- 57/2015 dated 27.10.2015 issued by Additional Secretary LG & RDD on behalf of non-petitioner No.1 on the basis of notification dated 02.07.2015, as they received the funds provided by Government of Pakistan as mentioned in notification dated 30.11.2012 without any further loss of time and delay to the petitioners and Proforma non-petitioners from where they were receiving salary. Any other appropriate relief which this Honorable Court deems proper be awarded to the petitioners."

2. Precise facts culminating into filing the instant writ petition are that petitioners and Proforma respondents are retired employees of Local Government Board and had been serving under the control of Administrator of Municipal Corporation, Mirpur. It has been stated that Municipal Corporation, Mirpur declared all of the them i.e. petitioners and Proforma respondents; eligible for obtaining monthly pension as mentioned in detailed monthly statement furnished by the Administrator Municipal Corporation Mirpur for the month of August 2015 till December 2015. It has been averred that in light of detailed statement submitted by Administrator Municipal Corporation Mirpur for years of 1998-99 to 2011-12 and estimated amount assessed by said authority an amount of Rs.71746165/- was assessed and under this claim an amount of Rs.147.102 million was provided by the Government of Pakistan to AJK Government but keeping this amount in pensionary emoluments the concerned authority misused the said grant, therefore, did not disburse the pensionery amounts due to the petitioners and Proforma respondents herein, since 2015 till this time. The precise stand of the petitioners and Proforma respondents is that they have sought a direction from this Court that they must be paid the pension and other benefits from August 2015 till now and also payment of the same on monthly basis in the light of notification dated 27.08.2015 issued by Additional Secretary LG&RD Department, through which the Department has received the funds provided by Government of Pakistan. As has been mentioned in notification dated 30.11.2012 issued by Finance Department.

3. The respondents, on court notice, have filed written statement, wherein, almost the claim of the petitioners has been admitted, however, it has been stated that due to financial crunches, payment of pension and other benefits to the pensioners cannot be made, well in time. The respondents have not negated issuance of any Notification in favor of the petitioners and also provision of one time grant for the purpose and only have stated that the one time grant has been utilized and the Department has not sufficient funds for payment of pension amount to the petitioners.

4. In the written statement, filed on behalf of respondent No.4, it has been stated that the Department was granted one time grant for the purpose of payment of pension to the employees and thereafter, it was the Department, itself to manage the funds for the purpose and the Government has nothing to do with the matter.

5. Mr. Muhammad Riaz Tabbassum, Advocate, the learned counsel for the petitioners, while reiterating the facts incorporated in the petition, vehemently contended that the petitioners are not being paid their pension for an indefinite time period, therefore, they have to suffer a lot. The learned counsel maintained that arrangement of funds is the sole responsibility of the Department/respondents, therefore, while accepting the instant writ petition, a favorable direction be issued to them.

6. On the other hand, the learned AAG frankly conceded that the petitioners are not being paid their pensions due to deficiency of funds. The learned counsel maintained that the matter was referred to the Government but no useful action has been taken so far. The AAG submitted that the petitioners shall be made payment of their dues on the availability of funds.

7. I have heard the learned counsel for the parties, perused the file and given anxious thought to the controversy, involved therein.

8. A careful perusal of the file reveals that the matter in hand pertains to the employees of the Municipal Corporation, Mirpur. The similarly placed employees of the other municipal corporations have also been benefited by approving pension in their favor and they are receiving their dues, regularly.

9. Provision and arrangement of funds is the sole responsibility of the employer and not the employees and the claim of the petitioners has also not been denied by the respondents. The pensionary right which has the statutory backing, cannot be denied on the pretext of deficiency of the funds. Under the Azad Jammu and Kashmir Municipal Committee Employees Pension Rules, 1984, an adequate amount shall be credited to the pension fund. Under rule 6(D) the Municipal Committees are bound to engage a firm of Chartered Accountant, who along with auditing the accounts, will also ensure that appropriate sums have been credited in the pension fund. The relevant clause reads as under: "6 .. (a) .. (b) .. (c) .. (d) The Municipal Committee to whom these rules have been applied or shall be applied will engage a reputable firm of chartered Accountants for annual auditing of their accounts who will also ensure and verify that appropriate sums have been credited to the pension Fund as laid down in rule (6)."

10. The respondent-Municipal Corporation, Mirpur, so far, in pursuance of the above rule has not engaged any firm of chartered accountant, which is mandatory, particularly, keeping in view the miseries of the petitioners, who are not receiving pensions for years. Their bread and butter has been snatched by the poor and inefficient administration of the respondent-Corporation. One can imagine the plight of old pensioners, who have no other means of income. All the local bodies, organizations governed by the aforesaid rules should arrange the Chartered Accountants firm for their respective entities, who may ensure and verify that appropriate sum is available in the fund.

11. Pension is not a bounty. It is a vested right of a retired employee and such right cannot be reduced or abridged, save in accordance with law. My view finds support from the following authorities:

1. PLD 2007 SC 35,

2. PLD 2013 SC 829, 3. 2014 SCMR 1336 and 4. 2015 SCMR 1472

12. For the sake of brevity, only one observation made by the apex Court of Pakistan, in case titled Secretary Government of Punjab, Finance Department and 269 others v. M. Ismail Tayer and 269 others, [2014 SCMR 1336] is reproduced, which reads as under: "

10. The afore-said dictum makes it clear and obvious that with regard to a retired civil servant, pension forms a part of his retirement benefits. It is not a bounty or an ex-gratia payment but a right acquired in consideration of past services. Such right to pension is conferred by law and cannot be arbitrarily abridged or reduced except in accordance with such law, as it is a vested right and legitimate expectation of a retiring civil servant."

13. In view of above, while accepting this writ petition, the respondents are directed to ensure payment of the arrears of the pension and other dues to the petitioner and other employees, within three months. They are also directed to make payment of monthly dues, on the due date, regularly and in compliance of rule 6(D) of the Azad Jammu and Kashmir Municipal Committee Employees Pension Rules, 1984, shall engage reputed firms of Chartered Accountant within a reasonable time. ZC/46/HC(AJ&K) Petition allowed.