P L D 1959 Supreme Court (Pak (PLP)

SHAHABUDDIN, J.‑--This is an appeal by special leave preferred by the Government of Pakistan against the judgment of the High Court of West Pakistan by which the order of the appellant regarding distribution of certain amounts among the respondents 1 to 5 and 9 under a new scheme of Retirement Benefits elected by the late Mr. Justice Soofi who died while in service, leaving the abovesaid respondents as members of his family, was interfered with and a direction was issued for the distribution of the said amounts according to the Muslim Law of Inheritance. The scheme referred to above which was sanctioned in memorandum dated 24th March 1954, is to the effect that on a surrender of a fourth of the pension admissible to a Govern ment servant in pensionable service under the existing rules, a gratuity computed according to a certain scale fixed with reference to the number of his years of service would be paid to him on retirement, or to his family in case of his death while in service. It is also a part of the scheme that in the event of the officer's death before retirement, 50 percent of the pension calculated as if the officer retired on invalid pension on the date of his death should be paid to the family for a period of five years and that in case of the death of the officer after retirement, but within five years thereof, the family should be paid the reduced pension for the unexpired portion of the five years. The expres sion "Family" however was not defined in the said memorandum; nor was it indicated there as to how the gratuity or pension should be divided among the members of the family. It was only o0 the 15th August 1956 that rules where framed and the word "family" was defined as including (1) wife or wives in the case of a male Government servant and husband in the case of a female Government servant, (2) children of the Government servant and (3) widow or widows and children of a deceased Government servant. It is also of interest to mention that as regards the gratuity the rules provide that subject to any nominations by the officer, it shall be payable to the members of the family in equal shares, with specified exceptions. There are also detailed rules for distribution of the pension among the members of the family, and where the officer leaves no family. The late Mr. Justice Soofi died in November 1954 while in service. Respondents 1 and 9 are his widows while respondents 2 to 5 are his three sons and one daughter all by the first res pondent. He had elected the benefits of the scheme explained above but as by the time he died the rules defining the family or indicating the mode of division amongst the members of the family had not been framed, this case was specially con sidered by the Government of Pakistan who ordered that the gratuity should be distributed in equal shares among both the widows and four children and that of the pension and share should be paid to the senior widow, the ninth respondent, and 2/3rd to the junior widow the Ist respondent, who is the mother of respondents 2 to

5. The junior widow, thereupon, on behalf of herself and her children, applied to the High Court of West Pakistan for a writ or an appropriate order quashing the order of the Government and directing a proper apportion ment of the gratuity and pension which according to her petition was 1/16th of the amount to the senior widow and the rest 15/16th to herself and her children. It was stated in her petition that Government had not assigned any reason for making a distinction between the apportionment of pension and that of gratuity although they were identical in character and that the apportionment ordered contravened the Shariat Act and was wholly illegal, arbitrary and capricious. In their written state ment the Government of Pakistan pointed out that in providing for the family it had been necessary to allocate the gratuity and pension in such a way as to provide for due maintenance and subsistence of all the members of the family, that this was done after taking into consideration other available assets, such as bank deposits and life insurance money, that the gratuity was divided among them equally as it was a provision of capital to them and that the pension was not heritable property to be divided according to Personal Law. Finally, it was claimed that Govern ment was empowered to allocate and distribute the benefits justly and equitably, that its decision was not open to review, and that the law of Shariat had no application. The learned Judges accepted the contention of the contesting respondents, quashed the order of the Government and directed it to pay the petitioner and her children 15/16th share of the gratuity and pension and the senior widow only a 1/16th share. Before us it was contended on behalf of the appellant that the gratuity and pension were only a bounty and not heritable property and therefore no question of Personal Law arose and that neither the civil jurisdiction nor the extraordinary writ jurisdiction of the High Court could be availed of to challenge the decision of the Central Government. On behalf of the respondent No. 1 and her children the senior widow was not represented before us‑the argument advanced was that, in the case of a commuted pension, the heirs of the officer have a right to receive it that this is also a case of commutation, that the Government had no interest in the matter as to how the amounts are distributed and that as the senior widow did not join the Government in filing this appeal the order of the High Court should not be interfered with. In view of the pleadings, one would have expected in the judgment of the High Court a discussion of the main point arising in the case, namely, whether these retirement benefits constitute property heritable by the heirs or only a bounty to be disbursed by the granter, the Government of Pakistan, in the manner it likes. But there is nothing in the judgment to show that this point was considered at all. On the other hand, the learned Judges appear to have proceeded on the assumption that the apportionment in this case should be according to the Muslim Law of inheritance. For instance, they observed:‑ "Where the gratuity or pension has become payable, and has been ordered to be paid to the family of the deceased, we have no doubt that, in the absence of any rules the Government should regulate its discretion by the Muslim Law of inheritance . . . . .". No reason is given for this conclusion. It is significant that according to this observation Muslim Law of inheritance is applicable only if there are no rules. It does not require the rules to conform to the Muslim Law of Inheritance. In other words, if at the time of the impugned order, rules had been framed the learned Judges would have had no objection to their being applied. In this view the distribution of gratuity as well as pension are entirely within the discretion of Govern ment. That being so, we fail to understand how the mere fact that by the time Mr. Justice Soofi died rules had not ‑been framed deprived the Government of their right to distribute the gratuity and pension as they thought fit. On a consideration of all the facts placed on record regarding the assets available for the maintenance of the defendants, we consider that the distribution of so much of these assets as is repre sented by the Governmental contribution, is eminently just and equitable. As regards the main point arising in the case which, as stated already, has not been considered by the learned Judges there can be no doubt that the gratuity as well as pension constitute a bounty and riot heritable property. But for the new scheme of Retirement Benefits Mr. Soofi's family would not have been entitled to any gratuity or pension. Rule 961 of the Civil Services Rules relied on for the appellant is clear that if an officer dies before actually retiring or being discharged, his heirs have no claim to anything in respect of his pension. As a matter of fact even the right of the officer himself to a pension is not enforceable in a civil Court. This is clear from C section 4 of the Pensions Act, 1871. The remedy provided in section 5 is to make a claim to the District Collector or Deputy Commissioner or other officer appointed in this behalf by the appropriate Government. Under S. 6 a Civil Court can take cognizance of such claims only upon a certificate of a specified or authorised Governmental authority, but the Court, "shall not make any order or decree in any suit whatever by which the liability of Government to pay any such pension or grant as aforesaid is affected directly or indirectly". Section 7 relates to pensions capable of alienation and descent but these are not service pensions of officers but are pensions for lands held under sanads purporting to confer a right in perpetuity. As regards commuted pensions, in cases where the pensioner dies before a commutation that has been passed takes effect, the amount is herit able not because pension as such is heritable but because the com mutation rules prescribe that "if the pensioner died on or after the day following that on which commutation became absolute but before receiving the commutation value, this value shall be paid to his heirs". In the scheme here under consideration there is no mention of heirs. Here the benefit is restricted in the first place to the family of the deceased officer. This scheme is obviously an arrangement mainly for the maintenance of the family of the officer till it adjusts itself to the new conditions upon his death. We, therefore, consider that this was not a matter in respect of which the writ jurisdiction could be exercised. Article 170 of the late Constitution no doubt referred to "directions and orders" also, in addition to the standard writs, but that does not mean that High Court could issue any order or direction regardless of the nature of the act impugned before it. It is G necessary that the order should per se be of a nature falling within the jurisdiction of the Court under certiorari or mandamus etc. and any order to be made would necessarily be an order in the nature of certiorari or mandamus etc. What was sought in this case was an order in the nature of mandamus. It is well settled that such an order can only issue where a legal right is shown to exist. It is clear that the claim in this case has no foundation in law. In the Tariq Transport Co., Lahore v. Sargodha‑Bhera Bus Service (P L D 1958 S C (Pak.) 437 at p. 462) it was pointed out by this Court that this Article should be read in the whole context of the late Constitution, E the basic feature of which is a distribution of power between the Legislature, the Executive and the Judiciary and that any encroachment by the High Court in the field reserved for the Executive would therefore amount to a judicial invasion and excess, and would be contrary to the spirit of the Constitution. Sufficient has been said above to indicate that the introduction and operation of the scheme of Retirement Benefits is entirely an executive act. The grant of gratuity and pension to dependents of a deceased officer is by expression in the rules, as well as on general principle, within the bounty of the State, and thus a matter B of pure discretion which the High Court had no power whatsoever to control. The appeal is, therefore, allowed, but there will be no order as to costs. A. H. Appeal allowed.