2026 PLP (C (PLC(CS))

JUSTICE (RTD.) ROOH-UL-AMIN KHAN, CHAIRMAN.

Through this single judgment we propose to decide the instant Appeal No.148(R)CS/2024 along with above titled eighteen appeals as identical question of law and fact involved therein. The Appeal No.148(R)CS/2024 is taken as lead appeal wherein the appellant being a retired employee has prayed for passing directions to the respondents to pay him the outstanding amount of commutation to the tune of Rs.17,49,820/-, who retired from service on 24.03.2023. He has further prayed for restraining the respondents from charging commercial rent and evicting the appellant from officially allotted Quarter No.539-A CDL Railways Colony, Rawalpindi. In Appeals Nos.986 to 989(R)CS/2022 the appellants in addition to above also seek issuing direction to the respondents to calculate their pensionary benefits @ 100% instead of 80% with all back benefits.

2. As per averments in the appeal, the appellant while serving as Fitter Mister, (BS-09) in the respondent-department retired from service with effect from 24.03.2023 i.e. on attaining the age of superannuation. During service the appellant was allotted Quarter No.539-A CDL Railways Colony, Rawalpindi wherein he is residing along with his family. The appellant submitted an application on 27.11.2023 followed by a reminder on 26.12.2023 for extension of time to retain the Government Quarter till payment and clearance of all his retiring benefits, which were replied that the appellant's grace/retention period is going to be expired on 24.03.2024, while according to Railways Accommodation Policy, the commercial rent would be deducted from his post-retirement payments. It was also averred that the respondents have calculated and paid the monthly pension to the appellant @ Rs.36210/- but have withheld and not paying the amount of commutation, hence the appellant is unable to get an alternate accommodation. It was submitted that the respondent-department, in compliance of the orders of this Tribunal dated 09.02.2023, 20.07.2023 and 19.01.2024 has allowed certain retired employees vide letter dated 22.08.2023 to retain the official accommodation till clearance of post retirement dues to them subject to payment of utility bills and normal rent. It was urged vide letter dated 24.01.2024 that the respondents have proposed to the high-ups of the department to devise a policy for retention of Railways accommodation by retired employees till the time of clearance of their legitimate dues. Lastly; it was argued that though the respondents are legally bound to pay the remaining pensionary dues to the appellant along with markup but they are using delaying tactics, therefore, they may be directed to pay the amount of commutation as early as possible, strictly in compliance of the judgments of the Hon'ble Supreme Court of Pakistan reported as 2005 PSC 1350, 2002 SCMR 312 and 2005 SCMR 1424. In Appeals Nos.986 to 989(R)CS/2022 the counsel for Appellants argued that the respondents have calculated less pensionary benefits of the appellants i.e. @ 80% instead of 100% on the sole ground that they were wrongly promoted from SS Wireman to Muawan unskilled category in the year 1985 and thereafter to the post of Semi Skilled Wireman (BPS-04) in the year 1994, but was wrongly allowed BS-05 in the year 1997, when he was lacking required service length of 5 years. Learned counsel for appellants emphasized that the appellants have served the department in BS-05 with effect from 28.03.1997. Neither the Notification of promotion nor grant of BS-05 has questioned by the respondent-department at any stage of service of the appellants. The said promotion order still holds the field, thus calculation of less pension of the appellants is sheer violation of Law and worst example of mala fide and highhandedness of department. He prayed for acceptance of appeals.

3. The instant appeal was admitted on 08.03.2024 for regular hearing and on 11.03.2024 the respondents were directed to provide the budget estimate showing income and expenditure coupled with record of payment of salaries to existing employees and pension to retired employees along with the modality and mechanism adopted by the Railways authorities for payment of arrears/outstanding amount to the retired employees. The respondents in compliance of the above said order submitted an incomplete report wherein it has repeatedly accentuated that Railways is facing acute financial crunch for several years, but the entire reports is silent about the downfall of Railways department. The respondents have admitted the factum of non-payment of commutation to the large number of retired employees for the only reason the mentioned above, however, it has conceded that at no stage the retired employees have been denied payment of commutation. According to report a strategy has been formulated in the form of priority list according to date of retirement/death of the employees for payment of outstanding amount. As per report expenditure to the tune of 96 billion has incurred against an income of 64 billion revenue earned during the year 2023-2024, whereas the pension liability of employees comes to an amount of 10.6 billion. Monthly grant provided by the Finance Division is 4.5 billion, wherein Rs.4.3 million has been allocated to monthly pension, while 3.5 billion comes in the share of monthly salaries of employees. For non-payment of the liabilities the Finance Division has been blamed and held responsible as they have evaded the responsibility by not increasing the amount of grant in aid. It was contended by the respondents that occupying the Government quarters beyond the retention period is not related to the payment of pensionary benefits. The appellants have no right to retain the accommodation beyond the grace period and refusal of retired employees to vacate Government quarters would amount to jeopardize the rights of other serving employees who are in queue and waiting for their turn of allotment since long. The learned counsel for the respondents prayed for dismissal of the appeal.

4. Having heard the lucid arguments from both the sides and examining the record with their able assistances we are of the view that the entire controversy between the parties revolves around three fold main questions viz; i) Whether the appellant is entitled to retain possession of officially allotted accommodation till clearance of all the pensionary benefits by respondent-department? ii) Whether the lack of financial resources would be consideredas sufficient reason for withholding the pensionary benefits of a retired employee? iii) Whether the pension of appellants in Appeals Nos.9861 to 989(R)CS/2022 has rightly calculated by the respondents @ 80% instead of 100% on the sole ground of wrongly grant of BS-05 in the year 1997? It is an admitted fact that the appellant has got retired from service of Railways department on 24.03.2023 i.e. on attaining the age of superannuation and since then is in possession of official accommodation, allotted to him during his service. Under the Pakistan Railways Policy, the appellant was allowed to retain the Government accommodation for a period of one year from the date of his retirement i.e. from 24.03.2023 to 23.03.2024 which period has already been expired. During the course of arguments, the learned counsel for the appellant was confronted to show any Law, Rule or Policy under which the appellant is entitled to retain the official accommodation after expiry of post retirement grace period, however he could not substantiate his plea, except referring to letter dated 24.01.2023 being issued by department, wherein a policy has been proposed to be devised for retention of Railways accommodation by retired employees till such time their legitimate dues are paid. It may be made clear that letter dated 24.01.2023 is just a proposal for formulating a policy which has not been finalized yet, hence the appellant cannot take shelter of a proposal of department for extension of time for retention of official quarter /accommodation. The above said letter being a proposal from department has no force or sanctity of law. It is not denied that till date, the Railways Department has not formulated any policy with regard to retention of Government quarter beyond the prescribed period of one year, hence the prayer of the appellant for restraining the respondents from evicting him from official accommodation i.e. Quarter No.539-A CDL Railways Colony, Rawalpindi after completion of post retirement grace period is of no rationale and is not covered under any rule/law. Even otherwise an identical Appeal bearing No.634(R)CS/2023 titled "Sardar Nawaz v. Secretary/Chairman, Ministry of Railways and others" filed by a retired employee of Pakistan Railways for restraining the respondents not to evict him from official quarter till clearance of his retiring dues, has already been dismissed by a Bench of Tribunal vide order dated 28.09.2023, however, the respondents have only been directed not to evict any retired employee, who has not completed the prescribed period of one year. In view of the above discourse the appellant cannot be held entitle to occupy the officially allotted accommodation beyond the statutory period, resultantly his claim and plea for retention of official accommodation in lieu of outstanding of clues against is rejected.

5. Coming to the second question with regard to payment of commutation amount, suffice it to say that the respondent-department, at no stage, has denied payment of commutation to the appellant. It was urged that the respondents have formulated a mechanism for payment of outstanding pensionary dues to the retired employees in the form of priority list according to date of their retirement. It is necessary to clarify that the payment of post retirement benefits like pension, Provident Fund or commutation amount etc. is not a bounty of the employer/department, rather a vested right of employee, while the employer's fiscal instability or lack of financial resources would not be an excuse or valid ground to suppress post retirement benefits or taking away the vested right of a retired employee. It is duty of the employer/department to arrange the recourses where the fund can be made available to fulfill the rights of retired employees. Pensionary benefit is the only scheme of livelihood for a pensioner to live a dignified life after retirement. In case titled "Government of N.W.F.P. through Secretary Communications and Works Departments, Peshawar v. Mohammad Said Khan and another" (PLD 1973 SC 514), the Hon'ble Supreme Court of Pakistan while dilating upon the importance of grant of pension and pensionary benefit to the retired employee was pleased to hold that; "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, grant 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". Commutation is part of pension plans devised by the Government for retired employees, according to which an employee has an option to commute a portion of his pension, mostly not exceeding 40% of it in to a lump sum payment. The above said plan is envisaged by the Government to ensure socio economic security of employees for post retirement period. It is repeatedly held by the Apex Courts that the pension is in a nature of right which employee has earned by rendering long service to the employer; rather it is a deferred payment of compensation for the post service of the employee. It is neither a charity nor is gratuitous payment nor solely dependent on the sweet will or whims of the department. It is in fact in the nature of socio security plan guaranteed by the Constitution of Islamic Republic of Pakistan. Any delay in payment of pensionary right is violative of vested fundamental right of employee, which according to Supreme Court direction amount to criminal negligence. Relevant extracts from the judgment dated 18.05.2006 passed by Hon'ble Supreme Court of Pakistan in case of Haji Muhammad Ismail Memon (PLD 2007 SC 35) are reproduced below: "

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 overall 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 everyone who is responsible in any manner in 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 for 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".

8. We, therefore, direct that all the Government Departments, Agencies and Offices deployed to serve, the general public within the limit by the Constitution as well as by the law shall not cause unnecessary hurdle or delay in finalizing the payment of pensionary / retirement benefits cases in future and violation of these directions shall amount to criminal negligence and dereliction of the duty assigned to them. Thus having noticed such miserable condition prevailing in the department particularly relating to the payment of the pension to retired Government servants or widows or orphan children, we direct all the Chief Secretaries of the Provincial Governments as well as the Accountant Generals and the Accountant General Pakistan Revenue, Islamabad, to ensure future, strict adherence of the pension rules reproduced hereinabove and clear such cases within a period not more than two weeks without fail.

11. We also direct that in future if there is any delay in the finalization of the pension benefits cases of the government servants, widows or orphan children and matter is brought to the notice of this Court, the head of the concerned department shall also be held liable for the contempt of the Court and shall be dealt with strictly in accordance with law". Similar view was reiterated by August Supreme Court of Pakistan in case reported in PLD 2013 SC 829 wherein it was held that the pension is a right which the Government servant or the employees in different positions and different capacities earned in terms of the relevant statutory provisions applicable to their cases, mostly depending upon their length of service; and in any case it is not a state bounty which could be awarded as a favour to any individual outside the scope of applicable statute.

6. In view of the concept and connotation of the term "Pension" the rights and obligation attached thereto and its importance, most particularly the law laid down by the Hon'ble Supreme 'Court, it can be safely held that the respondents are under laden statutory duty to pay the commutation amount to all the retired employees immediately. The relief claimed is allowed.

7. Taking up the issue of calculation of less pension involved in four Appeals bearing Nos.986 to 989(R)CS/2022 being filed by Naseer Ahmad, Muhammad Tariq, Ejaz Hussain and Mehboob Elahi, respectively. It was contended that the appellants after rendering considerable service in the respondent department retired on attaining the age of superannuation. The respondents intentionally calculated their pension @ 80% instead of 100%. The appellants when approached the respondent No.2 about less fixation of their pensions they were informed that they had been promoted to skilled category from SS Wireman before completion of five years. The issue raised by the department at belated stage had already been decided by this Tribunal vide judgment dated 28.11.2016 and upheld by the Hon'ble Supreme Court of Pakistan vide order dated 29.03.2028. It was contended that the respondents without any lawful justification deprived the appellants from 100% pension which will not loss, only in commutation but also caused recurring loss in his monthly pension.

8. The appellants have prayed for passing a direction to the respondents to calculate their pensionary benefits (commutation/ pension) @ 100% instead of 80% which claim of the appellants has been controverted by the respondent-department in their written objections on the ground that the appellants were paid anticipatory pension due to error in pay fixation, hence their pension was calculated @ 80%. It was contended by respondents that appellants were appointed as Mauvan (unskilled category) on 17.07.1985, 02.06.1985, 27.12.1980 and 16.09.1981 respectively and were promoted against 70% quota of Semi Skilled Wireman in BS-04 as on 10.09.1994, 13.05.1991, 20.01.1993 and 03.09.1994. Thereafter they were wrongly allowed BS-05 on 28.03.1997, 15.05.1994, 30.05.1995 and 29.05.1996 as Semi Skilled Wireman against 30% quota reserved for those Semi Skilled Wiremen who might have completed-5 years service as Semi Skilled Wiremen in BS-04. Under the Pakistan Railways Board policy letter dated 12.12.1983 the appellants were required to complete five years service in Semi Skilled Category of BS-04 against 30% quota and were wrongly. allowed the benefit of BS-05, resultantly 80% anticipatory pensionary benefits were verified by the Accounts Officer CDL Workshop Pakistan Railways, Rawalpindi and were paid since their retirement in order to protect the relevant rules.

9. On perusal of record it transpires that identical issue had been raised by an employee of the Pakistan Railways in Appeal No.10(P)CS/ 2014 wherein hehadprayedforfixationofhispayasSS Carpenter (BS-04) w.e.f. 08.03.2007 and as Carpenter (BS-06) w.e.f. 31.06.2012 from the date of his promotion wherein the stance of the respondent-department was that under the policy letter dated 12.12.1983, seven years service was necessary for promotion from Muawan (BS-01) (unskilled) to SS Carpenter (Semi Skilled) BS-04 and that at the time of promotion of the appellant he had only 3 years service at his credit, as such his pay was not fixed in BS-04 on his promotion as SS Carpenter (BS-04) and the department fixed his pay w.e.f. 15.04.2011 on completion of seven, years service. The above said appeal was allowed by this court vide judgment dated 28.11.2016 passed in Appeal No.10(P)CS/2014 titled "Rashid Iqbal v. G.M. Operation, Pakistan Railways and another". The respondent-department assailed the said order before the Hon ble Supreme Court of Pakistan and the Hon ble the order of this Tribunal vide order dated 29.03.2018 passed in C.P. No.449/2017 which is reproduced as follows: "We have heard the learned counsel for the Petitioners. The matter pertains to the promotion and fixation of pay of the Respondent, which in fact has been done. The promotion was effected by the department itself which is now trying to wriggle out the natural legal consequences of re-fixation of pay.

2. After examining the judgment and the record, we are unable to see what question of law of public importance arises in this case warranting interference by this Court in exercise of jurisdiction of this Court in view of Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973.

3. Consequently, this Civil Petition being without merit is dismissed and leave declined". At this stage no different view can be taken as under Article 189 of Constitution of Pakistan the decision of Supreme Court is binding on all organs of the State including Courts and Tribunals. So much so, an iota of evidence or shred of document has brought on record by respondents, show the fact that the order qua grant of BS-05 has ever been reviewed, rescinded or countermanded by any authority. The above mentioned order of promotion and grant of BS-05 still hold the field. We are not in consonance with the submission of respondent-department that the appellants had not completed 5 years service as Semi Skilled Wiremen in BS-04 for the reasons that they themselves allowed BS-05 to the appellants on 28.03.1997, 15.05.1994, 30.05.1995 and 29.05.1996 respectively as Semi Skilled Wireman against 30% quota reserved for those Semi Skilled Wiremen. The appellants never managed to get their promotions in BS-05 rather their promotions were approved by the competent authority. It is settled law that the authority could not be allowed to take benefit of its lapses. Needless to mention that it was incumbent upon the competent authority to apply its conscious mind while scrutinizing the appellants' case for promotion in accordance with their policy before issuing the promotion orders in their favour. Once the appellants have been promoted after fulfilling all the codal formalities by the competent authority they cannot be denied the fruit of their retirement after about more than 28 years of their promotions on the flimsy ground that under the Pakistan Railways Board policy letter dated 12.12.1983 they were required to complete five years service in Semi Skilled Category of BS-04 against 30% quota and were wrongly allowed the benefit of BS-05. Certainly a matter being past and closed transaction cannot be re-opened under the principle of locus poenitentiae. Reliance is placed on the case titled Bashir Ahmad Solangi v. Chief Secretary, Government of Sindh, Karachi (2007 PLC (C.S.) 824 SC). ".... If in consequence to an order passed by an authority competent to pass such an order, certain rights were created in favour of a person, such order could not be subsequently undone or withdrawn... Authority being responsible for passing of an order creating certain rights, would not be legally justified to take a turn and retrace the steps to undo the said order on the ground that it was passed in violation of rules or was a wrong order...." For the reasons discussed above, instant and the connected Appeals bearing No.1153(R)CS/2023, 1155(R)CS/2023, 110(P)CS/2023, 246(R)CS/2023, 441(R)CS/2023, 474(R)CS/2023, 217(P)CS/2023, 1124(R)CS/2023, 1154(R)CS/2023, 734(R)CS/2023, 919(R)CS/2023, 1022(R)CS/2023, 562(R)CS/2022 and 269(R)CS/2024 are disposed of in the following terms; i) The appellant is not entitled to retain possession of official accommodation beyond the period prescribed by law, resultantly relief claimed for extension of time to occupy the official accommodation till clearance of his post retirement liability is dismissed being against law and rules on the subject. ii) Since the delay in payment of pensionary right is violative of vested fundamental right of employee and the Hon'ble Supreme Court of Pakistan was pleased to hold the same as criminal negligence. In view of the detailed discussioninprecedingpara-5, the relief claimed by appellant is allowed, resultantly, the respondents are directed to pay the commutation amount to the retired employees within two months positively. So far the issue of financial restraint is concern, suffice it is to say that it is liability of Railways authorities to manage fund from the resources of Railways income or to reduce unnecessary expenses of the officials. Since the main appeals have been decided finally, the Misc. Petitions Nos.223/24, 1696, 1698, 406, 775, 800, 1339, 1697, 1141, 1131, 1210, 1229/23 and 584, 459/24 filed in the above said, appeals for retention of Government quarters have become infructuous and the same are also dismissed accordingly. iii) Appeals Nos.986 to 989(R)CS/2022 are allowed with direction to the respondent-department to calculate and pay their pensionary benefits @ 100% instead of 80% with all back benefits within a period of two months from the date of receipt of this judgment.

10. No order as to costs. Parties be informed. MQ/2/FST Appeal dismissed.