2017 PLP 926 (CLC)

CH. MUHAMMAD IBRAHIM ZIA, J.

This appeal by leave of the Court arises out of the judgment of the High Court dated 25.02.2015, whereby the writ petition filed by the appellant, herein, has been dismissed.

2. The controversy in this lis relates to the question of admissibility of pension to a Judge High Court, who had been elevated from judicial services but does not hold five years' service as Judge High Court. According to the relevant facts, the appellant was initially inducted in to service as Sub Judge, promoted as the District Judge and lastly appointed as the Chairman, Income Tax Appellate Tribunal; wherefrom, he was appointed as the Judge, Azad Jammu and Kashmir Shariat Court on 17.12.2009; and finally, vide notification dated 13.03.2013, elevated as Judge, Azad Jammu and Kashmir High Court. The appellant after attaining the age of superannuation, retired on 27.06.2014. He submitted a representation to the worthy President of Azad Jammu and Kashmir for grant of condonation in the deficiency of qualifying service as a Judge of the High Court and ultimately he invoked writ jurisdiction. The High Court, after necessary proceedings dismissed the writ petition through the impugned judgment, hence, this appeal.

3. On behalf of the appellant, an application under section 42-A of the Azad Jammu and Kashmir Interim Constitution Act, 1974 (hereinafter to be referred as Constitution Act), read with Order XLIII, Rules 1, 2 and 5 of the Azad Jammu and Kashmir Supreme Court Rules, 1978 has also been filed for grant of alternate relief of calculation of pension on the last pay drawn x x x x under the provision of para 16 of the High Court Judges (Leave, Pension and Privileges) Order, 1997 (hereinafter to be referred as Presidential Order, 1997). This specific ground "N" has also been taken in the concise statement. The respondents have not objected to the prayer of alternate remedy by filing objections or taking stand in their written statement.

4. Raja Muhammad Hanif Khan, Advocate, the learned counsel for the appellant after narration of the necessary facts submitted that the impugned judgment of the High Court is not consistent with the statutory provisions dealing with the subject, hence, not maintainable. According to the provisions of paragraph 29 of the Presidential Order, 1997, the deficiency of less than 6 months' service in five years' service as a Judge of the High Court qualifying for pension under paragraph 14, can be dispensed with by the Authority as laid down in the case reported as Begum Nusrat Ali Gonda v. Federation of Pakistan and others [PLD 2013 SC 829]. Thus, the worthy President has failed to act according to law, hence, the appellant's writ petition was maintainable and it was enjoined upon the High Court to issue the prayed writ. It is further argued that the impugned judgment of the High Court is based on misconception of law. It appears that the learned High Court has misconstrued the spirit of the judgment of this Court reported as Bashir Ahmed Mughal v. Azad Govt. and others PLD 2015 SC (AJ&K)

31. Whereas, in the said judgment, the acts done and the perks and privileges of Judge Shariat Court have been protected. The appellant deserves for dispensation of the deficiency of few month's service and is entitled for grant of pensionary benefits as of Judge of the High Court. He also submitted that the service of Judge of the High Court is a service of Azad Jammu and Kashmir. According to the law dealing with the pension, any service rendered in connection with the affairs of Azad Jammu and Kashmir can be calculated for the purpose of pensionary benefits. The appellant has also made a prayer for alternate remedy in the memo of writ petition as well as at the time of arguments it was forcefully stressed that if at all, the remedy of dispensation of deficiency of service is not deemed appropriate, then as an alternate, the appellant may be granted pension under paragraph 16 of the Presidential Order, 1997 on the basis of last pay drawn. As for this purpose, a separate application under section 42-A of the Constitution Act, read with Order XLIII, Rules 1, 2 and 5 of the Azad Jammu and Kashmir Supreme Court Rules, 1978 has been moved stating therein that the appellant is being deprived of the pensionary benefits since last one year's period and he is facing hardships and financial problems, therefore, for the ends of justice, expeditious disposal of the pension matter is necessary. He submitted that under the provision of paragraph 16 of the Presidential Order, 1997, a Judge of the High Court whose case does not fall under the provision of paragraph 14 of the Presidential Order, 1997, is entitled for pensionary benefits admissible to a person in the civil service of Azad Jammu and Kashmir. The pension of a civil servant has to be determined on the basis of last pay drawn as clarified under notification dated 13.9.1986. As after more than 4-1/2 year's period of his elevation as a Judge of the Shariat Court and thereafter, as a Judge of the High Court he had been drawing the salary as was admissible to the Judge of the High Court and his last pay drawn was also as of a Judge of the High Court, according to this notification read with the provision of paragraphs 16 and 29 of the Presidential Order, 1997, the pension has to be calculated on the basis of last pay drawn. The High Court in this regard has fell in error of law while observing that after calculation of the increments admissible as the District and Sessions Judge, for the purpose of service in the High Court and the Shariat Court, his pay will be determined which is totally an alien concept and inconsistent with the statutory provisions dealing with the subject. The phraseology of the statutory provisions is clear leaving no ambiguity. The last pay drawn means 'which a retired civil servant has drawn as last pay' and it does not admit any imaginary or presumptive calculation of pay which in fact has not been drawn by a civil servant. Therefore, as alternate remedy, the appellant is entitled for calculation of the pension on the basis of last pay drawn as of Judge of the High Court. As mentioned hereinabove, under the provision of paragraphs 16 and 29 of the Presidential Order, 1997, the service as a Judge of the High Court has to be treated for the purpose of calculating the pension. He also submitted that the appellant has been treated in a discriminatory manner in the matter of grant of pension, whereas, Mr. Justice Retired Iftikhar Hussain Butt who was also a judge of the Shariat Court is drawing pension as of Judge of the High Court. Same like Mr. Justice Retired, Syed Hussain Mazhar Kaleem, is also drawing the pension at the same rate. Thus, from this angle, the High Court has also not considered the matter and discrimination is not permitted under the Constitution. He further submitted that under the provision of para 29 of the Presidential Order, 1997, he is also entitled to other privileges and facilities as admissible to a Secretary to the Government. He referred to the cases reported as Bostan Chaudhary v. Audit and Accounts Department and 6 others [2011 SCR 279]. Muhammad Ramzan v. Muhammad Latif and 34 others 2014 CLC 248 and Begum Nusrat Ali Gonda v. Federation of Pakistan and others [PLD 2013 SC 829].

5. Conversely, Mr. M. Noorullah Qureshi, Advocate, the learned counsel for the respondents strongly opposed the appeal and defended the impugned judgment on the ground that the writ petition is not maintainable as the terms and conditions of service of the Judge High Court have to be determined by the President of Pakistan, thus, the President of Azad Jammu and Kashmir has no authority in this matter. He further submitted that under the provisions of paragraph 16 of the Presidential Order, 1997, it is clear that the Judge of the High Court whose case does not fall under the provisions of paragraph 14 will be entitled for pension as civil servant and for this purpose it will be deemed that he has not been appointed as a Judge of the High Court which clearly means that for calculation of pension his pay will be considered which is admissible to a civil servant and not to a Judge of the High Court. So far as the provision of paragraph 16 that service as Judge of the High Court shall be treated for calculation of pension, is concerned, it is only regarding the period for purpose of computing length of service and not for the purpose of last pay drawn. The High Court has rightly interpreted the statutory provisions that the appellant will be treated as a District and Sessions Judge, and not being elevated as Judge Shariat Court or High Court. For the period, he has served as a Judge of the Shariat Court or the High Court, the increments as admissible to the District and Sessions Judge shall be added and the last pay drawn after grant of such increments shall be calculated and the pension will be granted on such determined last pay. Therefore, there is no illegality in the impugned judgment of the High Court. He further submitted that the prayer of alternate remedy makes no difference as this issue has already been properly attended by the High Court which is quite consistent with the spirit of para

16. He submitted that the apex Court of Pakistan in the case reported as Begum Nusrat Ali Gonda v. Federation of Pakistan and others [PLD 2013 SC 829] has enunciated the same principle of law. Even, according to the view expressed in that judgment, the undue benefits drawn have to be refunded. Therefore, this appeal has no substance and the same is liable to be dismissed.

6. Due to the important legal proposition of first impression raised in this appeal, we also sought the assistance of Advocate-General. The learned Advocate-General, Mr. Mansoor Pervaiz Khan, submitted that he has already given his opinion that the deficiency in service cannot be dispensed with. Therefore, on this score the judgment of the High Court is quite legal, however, in the light of statutory provisions, the last pay drawn for the purpose of calculation of pension under the provisions of paragraph 16 of Presidential Order, 1997 will be the pay drawn actually by the appellant as a District and Sessions Judge and it will not be imaginary or presumptively calculated pay. Therefore, the prayer of alternate remedy is not justifiable.

7. We have given our deep thought to the arguments advanced at bar and also gone through the record made available. So far as the contention of the appellant regarding the dispensation of the deficiency of few months in qualifying service for the pension as a Judge of the High Court is concerned, in our considered view after the judgment of this Court in Bashir Ahmad Mughal's case [PLD 2015 SC (AJ&K) 31] has no substance. He has served for almost 3-1/2 year's period as a Judge of the Shariat Court and the law under the provisions of which his appointment was made has been declared as ultra-vires the Constitution since its enforcement, thus, all the appointments, made under the said provisions have been declared illegal.

8. So far as the argument regarding the protection given to the service as Judge Shariat Court in the judgment mentioned in the preceding paragraph is concerned, there is no ambiguity in this regard that the protection has only been given under the de facto doctrine to the acts done by the so appointed judges but it doesn't mean that their services or appointments have been treated valid or protected. In this regard the conclusion drawn by the learned High Court in the impugned judgment appears to be correct and need no detailed deliberation. To this extent the impugned judgment is upheld.

9. The High Court has rightly observed that the appellant's case has to be dealt with under the provisions of paragraph 16 of the Presidential Order, 1997. However, in the impugned judgment the interpretation of paragraph 16 of the Presidential Order, 1997 doesn't appear to be consistent with the statutory provisions or the principle of administration of justice. According to the spirit of the referred statutory provision, a Judge of the High Court who doesn't fulfill the condition laid down in paragraph 14 shall be entitled to pension as would have been admissible to him in service or post had he not been appointed as a Judge of the High Court. In this paragraph it is further mentioned that his service as a Judge has to be treated as service for the purpose of calculating the pension.

10. The phraseology "had he not been appointed as Judge" used in this paragraph connotes the intention to avoid the anomaly of break in the service for the purpose of calculation of pension. It doesn't mean that his appointment as a Judge of the High Court shall become non-existent. The phraseology of the subsequent part of the paragraph, clearly speaks that the service as a Judge has to be treated as service for the purpose of calculating the pension, which in our considered view, means that his elevation as a Judge of the High Court would not result into break in his service rather he will be treated in service as not being appointed as Judge for the purpose of continuation of service. But for the purpose of calculating the pension, his service as a Judge has to be treated as service. For calculation of pension as a Judge of the High Court and civil servant or person in service of Azad Jammu and Kashmir, the statutory provisions are different.

11. The calculation for pension as Judge of the High Court has to be made in favour of a person who fulfills the condition prescribed in paragraph 14 of the Presidential Order, 1997, whereas the pension of a Judge not covered by paragraph 14 may be calculated according to law dealing with the civil service pension. In the Azad Jammu and Kashmir in this regard the Azad Jammu and Kashmir Civil Services Pension Rules, 1971 amended up-to-date, are enforced. The Government while exercising the powers vested in it, has prescribed the mode of calculation of pension. According to the presently enforced mode, a person in the civil services who retired after 1st July, 1986, his pension shall be calculated at the existing rate of last pay and emoluments drawn provided the post has been held by him on regular basis as is mentioned in the Finance Department of AJ&K Regulations, FD/R/(33)/81, dated 23.9.1986. Thus, it is clear that under the provision of enforced law regarding the civil servant's pension, calculation has to be made on the basis of last pay drawn with only condition that such pay is drawn while holding the post on regular basis.

12. As in the instant case, there is no dispute that the appellant held the post of Judge of the High Court on regular basis, thus, according to the provision of paragraph 16 of the Presidential Order, 1997, his service as Judge High Court has to be treated as service for the purpose of calculation of pension. Whereas according to the spirit of paragraph 29 of the Presidential Order, 1997, the statutory provision in this regard has to be interpreted favorable to the appellant. In this background, after collective appreciation of the provisions of paragraphs 16 and 29 of the Presidential Order, 1997 in juxtaposition with the Civil Services Pension Rules, 1971 and the Finance Department Regulations dated 23.9.1986, it can be safely concluded that the pension of the appellant shall be calculated on the basis of last pay drawn by him as Judge of the High Court. The conclusion drawn by the High Court in the impugned judgment in this regard in our opinion is not based on proper interpretation of paragraph 16 of the Presidential Order, 1997. The High Court, thus, has fallen in error of law while holding that the pension of the appellant has to be calculated on the basis of the presumptive last pay drawn as District and Sessions Judge. According to the hereinabove mentioned statutory provision, no such concept is admissible rather the term "last pay drawn" is very much clear which means the actual pay drawn. In the judgments referred to and relied upon by the learned counsel for the parties although some incidental matters have been considered but in none of the reports, interpretation of paragraph 16 of the Presidential Order, 1997 has been made keeping in view the peculiar legal proposition involved in the case in hand. Therefore, separate discussion of the referred judgments is not felt advised.

13. The identical legal and factual proposition came under consideration before the apex Court of India in the case reported as M.L. Jain and another v. Union of Indian [AIR 1985 SC 619]. In this case Mr. M.L. Jain and another who were members of Rajasthan judiciary serving as District and Sessions Judges, wherefrom they were elevated as Judge of the High Court, however, as they were lacking the required length of service for appointment as Judge of the High Court, hence, the question of determination of pension was raised which was calculated on the basis of granting the presumptive increments as District and Sessions Judge. This matter was challenged before the Supreme Court of India. The Supreme Court of India has decided the matter while interpreting the provisions of Act 28 of 1954 known as High Court Judges (Salaries and Conditions of Service) Act, 1954, which contain almost the pari materia provision like para 16 of the Presidential Order, 1997. For convenience relevant provision of Part II, paragraph (a) of Act 28 of 1954 is reproduced as follows:- "(a) the pension to which he is entitled under the ordinary rules of the Indian Civil Service if he had not been appointed as Judge, his service as a Judge being treated as service therein for the purpose of calculating that pension; and (b) " After due deliberation, in the supra titled case of M.L. Jain and another, the apex Court of India resolved the matter in the following terms: "The calculation made under CL. (a) of Paragraph 2 of the First Schedule was apparently done pursuant to the letter dated September 19, 1984 from the Ministry of Law, Justice and Company Affairs addressed to all Accountants General. Paragraph 2 of the letter is as follows: 'The question as to what should be taken into account for calculation of pension in terms of para 2(a) mentioned above, has been examined. After careful consideration of the matter, it has been decided that (i) The service as Judge of the High Court will count towards qualifying service for pension in his parent service or post. (ii) Pay for the purpose of calculating pension under para 2(a) shall be the pay which a Judge had drawn or would have drawn in the scale of pay of the post held by him in the parent Department, preceding the date on which he was elevated as a Judge of the High Court, including annual increments, if any, which he would have drawn up to the date of his superannuation as a Government servant. Further the pay which he would have drawn in the selection grade, if any, for which he would have been automatically eligible and not on the basis of any selection, will also be taken into account. In case he was holding a post on deputation (as distinct from "foreign service"), the pay in such an ex-cadre post will also be taken into account on the same lines as mentioned above. (iii) Special additional pension under para 2(b) will be calculated as provided in the High Court Judges' (Conditions of Service) Act, 1954.' We are of the opinion that para 2(ii) of the letter dated September 19, 1984 is a clear departure from para 2 clause (a) of Schedule I to the High Courts Judges (Conditions of Service) Act. Under clause (a) of para 2 of the Schedule I to the High Courts Judges (Conditions of Service) Act, the retiring Judge's entire service as a Judge has to be reckoned for the purpose of calculating his pension and for that purpose the last pay drawn by him has to be the pay drawn by him as a judge of the High Court and not the pay that would have been drawn by him as a District Judge, had he not been appointed a High Court Judge." The interpretation of pari materia statutory provision made by the apex Court of India and the principle of law enunciated, due to identicity of the legal and factual proposition is fully applicable to the case in hand. In view of the above stated facts and reasons, the juxtapose interpretation of the statutory provisions of paragraphs 16 and 29 of the Presidential Order, 1997 read with notification dated 30.09.1986, for the purpose of calculation of pension of the appellant, his last pay drawn as Judge of the High Court shall be considered and not the presumptively determined pay as District and Sessions Judge. Therefore, the findings recorded in para 18 of the impugned judgment of the High Court are not consistent with the principle of law which are hereby recalled.

14. So far as the contention of the learned counsel for the appellant that some other persons are drawing the pension who served as Judges of the Shariat Court is concerned, as neither any detail of the necessary facts in this regard has been brought on record nor any of them has been arrayed as party. Therefore, no observation or finding can be recorded in vacuum against any person. As for the argument of the learned counsel for the appellant regarding discrimination is concerned, the appellant has mainly approached the Court for dispensation of deficiency of service qualified for pension as a Judge of the High Court. Whether any such proposition is involved in the matter of other persons or not, is a question which cannot be resolved in vacuum without furnishing any requisite material.

15. So far as the contention of the learned counsel for the appellant regarding subsidiary condition of service is concerned, in our considered view, the statutory provision of paragraph 29 of the Presidential Order, 1997 is very much clear and loudly speaks that a judge of the High Court in this regard is entitled for the privileges and rights as admissible to an officer holding the rank of Secretary to the Government. According to the spirit of this paragraph, the subsidiary conditions of service have to be determined in a manner favourable to the retiring person. In our considered view, an unambiguous and clear statutory provision does not require any further interpretation. All the subsidiary privileges and rights admissible according to scope of para 29 of the Presidential Order, 1997 have to be granted to the appellant.

16. As the appellant who is a retired Judge of the High Court and his pension case has not been finalized, he is waiting for fixation of pension since last more than a year's period which is against the spirit of law and concept of good governance. Whereas, according to the statutory provisions all the concerned authorities are under the legal obligation to sanction the pension a month before the date of retirement. In this regard, it will be suffice to refer here rules 5.1 and 5.2 of the Azad Jammu and Kashmir Civil Services Pension Rules, 1971, which reads as follows:- "5.1 All authorities dealing with applications for pensions under these rules should bear in mind that delay in the payment of pensions involves peculiar hardship. It is essential to ensure, therefore, that a Government servant begins to receive his pension on the date on which it becomes due. 5.2 The responsibility for initiation and completion of pension papers is that of the Head of Department/Attached Department concerned in the case of gazzetted officers, and of the Head of Officer concerned in the case of non-gazzetted Government servants. The action should be initiated one year before a Government servant is due to retire, so that pension may be sanctioned a month before the date of his retirement. For this purpose, every Government servant should be asked to submit his pension application in Form 3 (Pen) 6 months in advance of the date of his retirement: Provided that in case in which the date of retirement cannot be foreseen 6 months in the advance, the Government servant, may be asked to submit his pension application immediately after the date of his retirement is known."

17. Regrettably, this statutory provision has been ignored which resulted into creating hardships and anomalous situations and agony for the retiring person. Therefore, for the ends of justice keeping in view the peculiar facts of this case, all the concerned are directed to take immediate actions in this regard and finalize the pension matter of the appellant within one month's time from the announcement of this Judgment. This appeal stands accepted in the terms mentioned in para 13, hereinabove, with no order as to costs. ZC/40/SC(AJ&K) Appeal allowed.