FAQIR MUHAMMAD KHOKHAR, J. --- The petitioners while posted as Judges, Accountability, Courts, retired from service as District and Sessions Judges (BS-21) on attaining the age of superannuation. They submitted pension papers to the Lahore High Court claiming themselves to be entitled to the calculation of pension and gratuity on the basis of pay as admissible to a Judge of the High Court drawn by them as Judges of the Accountability Court. The Registrar of the Lahore High Court, by letters dated 23.12.2000 and 10.11.2000 respectively intimated them that their pension and gratuity was to be calculated on the basis of the pay drawn by them as District and Sessions Judges (BS-21) or to which they would have been entitled as such and not at the rate of pay admissible to Judges of High Court. Therefore, they preferred service appeals Nos. 6 and 7/2001 before the Punjab Subordinate Judiciary Service Tribunal, Lahore High Court (hereinafter referred to as the Tribunal) which were dismissed by the separate impugned judgments dated 07.07.2006.
Hence, these petitions for leave to appeal under Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973.
2. The learned Counsel for the petitioners submitted that by notifications of their appointment as well as notifications dated 31.12.1999 and 05.09.2000, issued by the Law, Justice and Human Rights Division, Government of Pakistan, the petitioners as Judges of Accountability Court were entitled to and had drawn the some pay and allowances as were admissible to a.Judge of the High Court.
They were posted as Judges of the Accountability Court on regular basis. Therefore, their pension was required to be calculated at the existing rate of last pay drawn by them in terms of Memo. No. FD.SR-III-4-58/86-C, dated 10.08.1986 issued by Government of the Punjab, Finance Department. It was next contended that the Tribunal had incorrectly placed reliance on the judgment of this Court in the case of Khan Asfandyar Wali and others. v. Federation of Pakistan through Cabinet Division, Islamabad and others (PLD 2001 SC 607) in taking the view that the petitioners were only entitled to the pension and gratuity admissible to .Them as the District and Sessions Judges.
3. We have heard both the learned Counsel for the petitioners at length and have also perused the available record. The petitioners were holding the Cadre Posts of District and Sessions Judges (BS- 21). By Notifications dated 02.09.2000 and 07.01.2000, the Lahore High Court, placed their services at the disposal of Government of Pakistan, Law, Justice and Human Rights Division, Islamabad, 'for posting as Judges of Accountability Courts pursuant to Federal Government Notifications dated 31.08.2000 and 05.01.2000. The post of the Judge, Accountability Court was
4. An ex-cadre post, in connection with the affairs of the Federation. The provision of Section 5(h) of the National Accountability Ordinance No. XVIII of 1999 (hereinafter referred to as the Ordinance), (as it originally stood), laid down that a "Judge" would mean a person who had been a Judge of the High Court, was or had been a District and Sessions Judge qualified to be a Judge of the High Court or any lawyer who was qualified to be a Judge of the High Court. It would thus be clear that under the old dispensation even a retired District and Sessions Judge or a lawyer qualified to be a Judge of the High Court could be appointed . Or continued as Judge of the Accountability Court, by the President of Pakistan after consultation with the Chief Justice of Pakistan. A District and Sessions Judge would continue to hold his lien as such, notwithstanding his posting as a Judge of the Accountability Court, for the time being. The petitioners being incumbents of the post of Judges, Accountability Court were paid out of the Federal Consolidated Fund. They could not, by any stretch of imagination, be said to be holders of the said post on regular basis in connection with the affairs of the Province of the Punjab. .4.: The question of validity or otherwise of the provisions of the Ordinance, was examined by this Court in the case of Khan Asfanyar Wali and others (supra), it was held that the statutory appointment of persons other than serving Judges of the Accountability Court was for a period of two years while a Sessions Judge serving on deputation as Judge, Accountability Court could be reverted to the Subordinate Judiciary of any stage It was further held that the incumbent Judges of the Accountability Courts, who were District and Sessions Judges, were not entitled to the payment of the High Court and also that they had to be serving District and Sessions Judges who were qualified to be appointed as Judges of the High Court. However, it was directed that the salaries already dawn by them as Judges of the Accountability Courts would not be recovered from them being past and closed transaction. The national Accountability (Amendment) Ordinance No. XXV of 2001 was also promulgated in order to bring the provisions of the Ordinance in conformity with the said judgment.
5. In the case of Islamic Republic of Pakistan v.
Israr-ul-Haq and 23 others (PLD 1981 SC 531 = PLJ 1981 SC 909) Mr. Justice Shafi-ur-Rehman's, J: (as he then was) made the following observations at page 542 in regard to the concept of "deputation" at a Government servant:- Hitherto the term "deputation" has not been formally /defined. However, according to the practice in vogue a Government servant begins to be regarded as deputationist" when he is appointed or, transferred, through the process of selection, to a post in the department or service altogether different from the one to which he permanently belongs. He continues to be placed in this category so long as he holds the new post in an officiating or temporary capacity but ceases to be regarded as such either on confirmation in the new post or on reversion to his substantive post."
A somewhat similar view was taken in the cases of Muhammad Arshad Sultan, Section Officer, Cabinet Division, Islamabad and others v. Prime Minister of Pakistan, Islamabad and 31 others (1997 PLC (CS) 451 (SC) and Province of Punjab v. Lkramul Haq and another (1986 SCMR 1994). The Supreme Court, of India also observed in the case of D.M. Bharati v. L.M. Sud (AIR 1991 SC 940), that transfer to an ex-cadre post was presumed to be as on deputation. According to the definition contained in Clause (b) of sub-section (1) of Section 2 of the Civil servants Act No. LXXI of 1973 "civil servant" means a person who is' a member of an all Pakistan Service or of civil service of the Federation or who holds a civil post in connection with the affairs of the Federation, including such post connected with defence. But does not include (i) a person who is on deputation to the Federation from, an; Province or other authority.
6. The petitioners were to be considered to be on deputation with the Federal Government while serving as Judges of the Accountability Court. Therefore they could not be said to have held the said post on regular basis. They were liable to be repatriated to their parent department at any time. The memo. Dated 10.08.1986, issued by the Government of the Punjab, Finance Department, had no application to the post for the time being held in connection with affairs of the Federation.
Even the District and Sessions Judges, who attained the age of superannuation during elevation as Additional Judges of the High Court, if not confirmed were not granted pensionary benefits on the basis of salary drawn by them as Judges of the High Court. In our view, the petitioners were rightly held disentitled to the calculation of their -pension on the basis of the last pay drawn by them as Judges of the Accountability Court. The impugned judgments dated 07.07.2006, passed by the Tribunal did not suffer from any defect or other legal infirmity so as to warrant interference by this Court.
7. For the foregoing reasons, we do not find any merit in these petitions which are dismissed and leave to appeal is refused accordingly.