MUHAMMAD NAWAZ ABBASI, J.---The civil Appeal No,1021 of 1995, by leave of the Court, has been filed by Accounted General, Sindh, challenging the validity of the judgment dated 2-2-1995 passed by the High Court of Sindh at Karachi whereby the relief of pension sought by the respondent (since dead), a retired Judge of the High Court of Sindh against the Federation of Pakistan through Secretary Finance, Government of Pakistan, Islamabad, was granted, whereas, Constitution Petitions bearing Nos. 8/2000, 10/2001, 26/2003, 34/2003, 4/2004 and 26/2007 have been filed by the retired Judges of various High Courts under Article 184 (3) of the Constitution of Islamic Republic of Pakistan seeking declaration that notwithstanding the length of service mentioned in paragraph 3 of Fifth Schedule to the Constitution, a retire Judge of the High Court who has put less than five years of service as such Judge is entitled to the grant of pension and pensioner benefits in terms of Article 205 of Constitution read with paragraph 2 of the Fifth Schedule of the Constitution. The civil appeal and the connected constitution petitions involving common question of law and facts, are proposed to be disposed of through this single judgment.
2. The relearnt facts in the background leading to the filing of Civil Appeal No,1021 of 1995 by the Accountant General of Sindh are that Mr. Justice Ahmed Ali U Qureshi [(Since dead) (hereinafter to be referred as respondent)] being a member of the subordinate judiciary while holding the position of District and Sessions Judge was posted as Secretary to the Government of Sindh in the Law Department and in 1985, he was elevated as an Additional Judge of the High Court of Sindh, Karachi. The respondent on retirement on 25-10-1998 was allowed pension at the rate of Rs,4,200 per month with the benefit of commutation, gratuity and additional sum of Rs,2,100 per month as cost of living allowance payable to a retired Judge of the High Court under paragraph 16-B of President's Order No,9 of 1970, as amended by P.O. No,5 of 1988. In pursuance of the Constitution (Twelfth Amendment) Act, 1991 (Act XIV of 1991), the pension of the respondent was revised and was fixed as Rs,6300 per month and thereafter by virtue of P.O. No,2 of 1993, the ix.s.r.r,ion of retired Judges of the High Court and Supreme Court was again revised, wherein the pension of High Court Judges was fixed with minimum and maximum ratio of Rs,9.800 and Rs,10,902 per mensum but this increase in pension was declined to the respondent on the basis of departmental interpretation of the President's Orders referred to above read with Fifth Schedule of the Constitution. The respondent thereafter, invoking the Constitutional jurisdiction of the High Court of Sindh at Karachi, filed a constitution petition wherein he sought a declaration that he was also entitled to the benefit of P.O. No,2 of 1993.
3. The precise contentions of respondent before the High Court in the writ petition were firstly that notwithstanding the length of service, put by him, as Judge of the High Court, he was entitled to the grant of pension as envisaged in Article 205 of the Constitution read with paragraph 2 of the Fifth Schedule of the Constitution and secondly he having put more than thirty five years of service in the subordinate judiciary was entitled to the pension at the rate of 77 per cent of his last emoluments in terms of service laws applicable to civil servants and consequently, he would get pension at the rate of Rs,8,190 per month. The High Court of Sindh, having considered the matter in detail, gave the verdict as under:-- "We are consequently of the view that rights and privileges admissible to the petitioner in respect of his pension are now governed under President's Order No,2 of 1993. As has been held by the Supreme Court in I.A. Sharwani's case, instruments, such as P.0.2/1993 are constitutional instruments, therefore, full effect must be given to them. We, therefore, find no force in the contentions raised on behalf of the respondent. Learned Standing counsel has also adopted the arguments advanced by the learned A.A-G. But as we have just pointed out, we are unable to agree with the contentions.
Although, it has been contended by the petitioner in the alternative that, in any case, he is entitled to a pension of Rs,8,190 in accordance with the Civil Servants Rules, but since we have accepted his plea that P.0.2 of 1993 is applicable to the petitioner, it is not necessary for us to consider the second contention of the petitioner, however, it will always be open for the petitioner to take such a plea in the future if the circumstances so require.
In the result, the petition is allowed and the respondents are liable to fix the petitioner's pension at the maximum pension as allowed under President's Order No,2 of 1993."
4. Accountant General Sindh, being aggrieved of the judgment of High Court, filed Civil Petition for Leave to Appeal No,168-K of 1995 under Article 185(3) of the Constitution in which leave was granted vide order dated 28th August 1995, as under:- "So far the main petition is concerned, it is submitted by the learned Deputy Attorney General for the petitioner that respondent No,1 was a District and Session Judge and was elevated as Judge of the High Court in July, 1985 and retired after completing tenure of three years two months and twenty-seven days in that capacity, hence for the purpose of pension his case is covered by Article 15 of the High Court Judges (Leave, Pension and Privileges) Order, 1970, which is applicable to such judges of the High Court who retire before completion of five years service in the High Court and are entitled to draw pension as having retired from the service they were taken from for elevation to the High Court. Leave is granted to examine the following questions. Firstly, whether for claim of respondent No,1 for extra/maximum pension writ petition before the High Court was competent to and maintainable. Secondly, whether P.0.9/70 is to be read in conjunction with P.0.2/93, P.0.3/95 and Article 205 read with Fifth Schedule to the Constitution, if yes, what will be its effect on the claim of respondent. Thirdly, whether the President can only increase or decrease the amount of pension with altering the terms and conditions as contemplated under Article 205 read with the Fifth Schedule to the Constitution. Fourthly, whether respondent No,1 is entitled to the minimum and maximum amount of the pension as contemplated under P.0.2/93."
5. Pending disposal of the present appeal, a number of other retired Judges of the High Courts, who were not allowed pension on the ground that they having been not put minimum service of five years in terms of paragraph 3 of Fifth Schedule to the Constitution were not entitled to the grant of pension, moved a joint representation to the President of Pakistan, through the Ministry of Law, Justice and Human Rights, Government of Pakistan and having received no reply, have filed direct petitions before this Court under Article 184 (3) of the Constitution whereas some of the retired Judges have filed miscellaneous applications to be impleaded as party in the present proceedings before this Court. Constitution Petition No,40 of 2002 filed by Mr. Justice (Retd) S.A. Manan was disposed of as withdrawn, but in view of the nature of right claimed in these petitions, this withdrawal was inconsequential to the right of pension of the Judges. The appellant in the main appeal and the petitioners in these constitution petitions have sought declaration, as under:--
(a) The provision of President's Order No,3 of 1997 was in derogation to Article 205 of the Constitution read with Fifth Schedule of the Constitution wherein the right of pension of only those Judges who have put minimum five years of service as Judge of the High Court, was recognized.
(b) The retired Judges of the High Court, irrespective of their length of service were entitled to the grant of pension, as per their entitlement under Article 205 read with paragraph 2 of the Fifth Schedule of the Constitution.
6. The matter in respect of the pension of retired Judges of the High Courts having direct nexus with the fundamental rights enshrined in the Constitution and with independence of judiciary involved interpretation of certain provisions of the Constitution, therefore, we proceed to entertain these direct petitions under Article 184 (3) of the Constitution and dispose of the same on merits.
7. Mr. Wasim Sajjad, learned Senior Advocate Supreme Court, counsel for the petitioner in C.M.A.
No,2454/2007 in C.A. 1021/1995 and Mr. Saeed-ur-Rehman Farrukh, one of the petitioner in person in the constitution petitions on his behalf and on behalf of other petitioners, have argued that under Article 205 of the Constitution, the remuneration and other terms and conditions of service of a Judge of the Supreme Court or of a High Court are to be determined by the President in the matter as provided in the Fifth Schedule to the Constitution as under:--
(1) There shall be paid to the Chief Justice of a High Court a salary of Rs,7,200 per mensem, and to every other Judge of a High Court a salary of Rs,6,500 per mensem;
(2) every Judge of the High Court shall be entitled to such privileges and allowances, and to such rights in respect of leave of absence and pension as many be determined by the President and until so determined, the privileges, allowances and rights to which, immediately before the commencing day, the Judges of the High Court were entitled, and
(3) the pension payable to a Judge of a High Court who retires after having put in not less than five years service as a Judge shall not be less than Rs,2,400 per mensem or more than Rs,4,200 per mensem, depending on the length of his service as such Judge and total service, if any, in the service of Pakistan."
Learned counsel has added the Reference in Article 205 of the Constitution to the remuneration of Judges also includes their pension besides their salary because the expression "remuneration" has been defined in Article 260 of the Constitution to include both salary and pension and plain reading of paragraph 2 in the Fifth Schedule indicates that every Judge of a High Court is entitled to pension besides other rights and privileges as referred to in the said paragraph, which any be determined by the President. This paragraph further indicates that until such rights and privileges are so determined, a Judge shall be entitled to such privileges and rights including a right to receive pension to which a Judge was entitled immediately before the commencing day i,e, 14-8- 1973. Learned counsel has vehemently contended that Paragraph 3 of Fifth Schedule provides for a minimum and a maximum pension payable to a Judge of a High Court who has not put in less than five years of service as such Judge and although Paragraph 3 refers to only to a particular class of Judges, as indicated therein, but nothing can be spelt out from this Paragraph to show that the same is to be read in derogation of Paragraph 2 in the Fifth Schedule. It appear that two Paragraphs are entirely independent in their import as one refers to every Judge of a High Court, whereas the other to a Judge of a High Court who retires after having put in not less than five years of service as such Judge. Learned counsel has thus contended that as is evident from the language employed by the law givers in paragraph 2, every Judge of a High Court shall be entitled to such pension, as may be determined by the President which makes it abundantly clear that under Paragraph 2 every Judge of a High Court is entitled to pension without any distinction on the basis of length of service as such Judge and added that under Paragraph 3, the retired Judges of the High Court have to receive pension at the rate as determined therein whereas the rate of pension of other Judges falling within the ambit of paragraph 2, was to be determined by the President. Learned counsel submitted that subsequent to promulgation of P.O. No,9 of 1970 vide Constitution (Twelfth Amendment) (Act XIV of 1991) certain amendments were made in the Constitution, and by one of such amendments, paragraph 3 in the Fifth Schedule was substituted which provided that the pension payable per mensem to a Judge of a High Court who retires after having put in not less than five years of service as such Judge shall not be less or more than the amount mentioned therein, depending on the length of service of such Judge. Learned counsel has submitted that such was the position till the President's Order No,2 of 1993 came into force with effect from the 27th July, 1991 and it is evident from Article 2 (2) of the said Order, that minimum and maximum pension of Rs, 8,722 amd Rs,10,902 respectively was payable to every other Judge of a High Court notwithstanding the period of service he might have put in as such Judge at the time of his retirement from service and if the intention only was to enhance the pension of such Judges of a High Court as referred to in paragraph 3 of the Fifth Schedule, only substitution of the figures was sufficient. The plain language used by the law-maker in Article 2 of P.O. No,2 of 1993 clearly shows that apart from increase in minimum and maximum pension payable to a Judge of a High Court under sub-Article (2) of the said Article, it was also provided the pension shall be payable to every other Judge of a High Court, irrespective of the condition of completing five years of service.
The world "every other Judge" used in Article 2(2) of P.0.2/1993 is not only confined to the Judges with reference to Paragraph 3 of the Fifth Schedule because if the intention of legislature was to extend the benefit of pension only to the judges who fulfil the condition of five years of service in terms of Paragraph 3, then Article 2(2) of P.O. No,2 of 1993 would have been couched in a different language and thus Article 2(2) of. P.0.2/1993 is found in complete consonance with paragraph 2 in the Fifth Schedule and Article 205 of the Constitution. The real purpose of two independent paragraphs in Fifth Schedule is to authorize the President to enhance, from time to time, the pension payable to those Judges who have served for a period not less than five years and also to determine the privileges and pension payable to every other Judge of a High Court and thus in this way, P.O.No,2 of 1993 serves a dual purpose for determination of rates of pension admissible to both categories of Judges. Learned counsel while concluding his arguments has contended that President's Order No,3 of 1997 deals only with category of Judges as mentioned in paragraph 3 of the Fifth Schedule to the Constitution and contains no provision in respect of pensionary benefits so far as other Judges are concerned but the right of pension available to such judges under Article 205 read with Paragraph 2 of the Fifth Schedule would not be negated by this omission in P.O. No,3 of 1997 which having escaped the notice of legislature, was not considered and debated at any stage.
We have heard the learned counsel for the petitioner and also learned Attorney General who have rendered valuable assistance to the Court and have also examined the matter in detail with reference to the relevant provisions of the Constitution and law on the subject.
8. The petitioner in all these constitution petitions were retired as Judges of the High Court on attaining the age of superannuation in terms of Article 195 of the Constitution. The claim of the petitioners is that notwithstanding the length of service, as mentioned in Paragraph 3 of the Fifth Schedule to the Constitution, a Judge of the High Court on retirement is entitled to the grant of pension and other pensionary benefits under Article 205 of the Constitution read with paragraphs 2 and 3 of the Fifth Schedule of the Constitution and his constitutional right of pension of a retired Judge cannot be denied on the basis of condition of service mentioned in paragraph 3 of the Fifth Schedule to the Constitution. We for the purpose of better appreciation of the proposition, raised hereinabove, deem it proper to examine the relevant provisions of the Constitution and the legal instruments dealing with the subject.
Article 205 of the Constitution provides as under:- "The remuneration and other terms and conditions of service of a Judge of the Supreme Court or of a High Court shall be as provided in the Fifth Schedule."
The remuneration has been defined in Article 260 of the Constitution as under:-- ""remuneration" includes salary and pension;"
"Judge" has been defined in Article 260 (1) as under:- "Judge" in relation to the Supreme Court or a High Court, includes the Chief Justice of the Court and also includes:--
(a) in relation to the Supreme Court a person who is acting as a Judge of the Court; and
(b) in relation to the High Court, a person who is an Additional Judge of the Court;"
The Fifth Schedule of the Constitution which deals with the Privileges, Allowance, Leave and Pension of the Judges of the High Court provides as under:-- "2. Every Judge of a High Court shall be entitled to such privileges and allowances, and to such rights in respect of leave of absence and pension, as many be determined by the President, and until so determined, to the privileges, allowances and rights to which, immediately before the commencing day, the Judges of the High Court were entitled.
3. The pension payable per mensem to a Judge of a High Court who retires after having put in not less than five years service as such Judges shall not be less or more than the amount specified in the table below, depending on the length of his service as Judge and total service, if any, in the service of Pakistan: Provided that the President may, from time to time, raise the minimum or maximum amount of pension so specified:--"
Judge Minimum Maximum Amount Chief Justice Rs.5640 Rs.7050 Other Judge Rs.5040 Rs.6300
9. The plain reading of Paragraph 2 and 3 of the Fifth Schedule in the light of the provisions of Article 205 of the Constitution shows that the President under Paragraph 2 of the Fifth Schedule, has to determine the privileges, allowances, leave and pension of every Judge of High Court irrespective of his length of service whereas under Paragraph 3 of this schedule, the minimum and maximum amount of pension payable to a Judge who retires after having put in service not less than five years, is to be determined.
10. The President, in pursuance of the Fifth Schedule, before promulgation of President's Order No,3 of 1997, issued President's Order. No,2 of 1993 by virtue of which the pension of the retired Judges, was determined as under:--
1. Short title and commencement.---(1) This Order may be called the Pension of Judges of Superior Courts Order, 1993.
(2). It shall come into force at once and shall be deemed to have taken effect on the twenty seventh day of July, 1991.
2. Pension.--(1) The minimum and maximum monthly pension of Chief Justice of Pakistan 'shall be Rs,11,393 and Rs,13,202 respectively and that of every other Judge of the Supreme Court shall be Rs,10,869 and Rs,12,390 respectively.
(2) The minimum and maximum monthly pension of the Chief Justice of a High Court shall be Rs,9800 and Rs,12250 respectively and that of every other Judges of a High Court shall be Rs,8722 and Rs,10902 respectively.
11. The President in exercise of the powers conferred upon him under Fifth Schedule to the Constitution of Islamic Republic of Pakistan was pleased to promulgate P.O. No,3 of 1997 on 12-2- 1997 in respect of the pay and pension to the Supreme Court and High Courts Judges and para. 14 of President's Order No,3 of 1997 which deals with Leave, Pension and Privileges of Judges of the High Court, provides as under:-- "14. Conditions or admissibility of pension---A Judge shall, on his retirement, resignation or removal, be paid a pension in accordance with the provisions of this Order if he has ---
(a) completed not less than five years of service for pension and attained the retiring age; or
(b) completed not less than five years of service for pension and before attaining the age, resigned or sought retirement; or
(c) completed not less than five years of service for pension and, before attaining the retiring age, either resigned, his resignation having been medically certified to be necessitated by ill-health or been removed for physical or mental incapacity or been allowed by the President for sufficient cause to retire".
12. The comparative study of P.O.No,2 of 1993 and P.No,3 of 1997 would show that in P.O. No,3 of 1997, the right of pension of the Judges of the High Court who retired having put less than five years of service as such Judge, was omitted without any amendment in Article 205 of the Constitution or in the Fifth Schedule and thus the first question requiring determination would be whether in consequence to the omission in P.O. No,3 of 1997, the right of pension of every Judge available under Article 205 read with Paragraph 2 of Fifth Schedule of the Constitution, was really affected and second question for examination would be as to whether by way of classification, on the basis of length of service, the retired Judges of the High Courts can be dealt with differently in respect of their right of pension and privileges under the Constitution.
13. The first question was answered by the High Court of Sindh in its judgment under challenge before us in Civil Appeal No,1021 of 1995 wherein with reference to paragraphs 2 and 3 of the Fifth Schedule of the Constitution, it was held as under:-- "The two paragraphs appear to be completely independent, on referring to every Judge of a High Court, whereas the other to a Judge of a High Court who retires after having put in not less than five years of service as such Judge"
The conclusion of the Court was as under:-- "It is, therefore, abundantly clear that paragraph 2 includes within its ambit every Judge of a High Court without making any classification on the basis of his length of service as such Judge"
The above verdict given by the High Court in the light of Constitutional mandate, would be unexceptionable.
14. Notwithstanding the fact that right of pension of a Judge of High Court, who retires after having put in less than five years of service as such Judge, has not been recognized in P.O. No,3 of 1997, such Judge in terms of Article 205 read with Fifth Schedule of the Constitution, is entitled to the pension and pensionary benefits. The wisdom behind the classification of Judges in paragraphs 2 and 3 of Fifth Schedule was for the purpose of determination of pension, admissible to the two categories of Judges with reference to the length of service and consequently, these two paragraphs are not to be read conjunctively rather both having separate connotations and implications have to be read independently and given effect accordingly. The ceiling in the P.O.
No,3 of 1997 on the right of pension of Judge who put less than five years of service as such Judge in terms of paragraph 3 of the Fifth Schedule is in conflict to the provisions of Article 205 of the Constitution read with Paragraph 2 of the Fifth Schedule.
15. The argument of Hafiz S.A. Rehman, learned Senior Advocate Supreme Court, counsel for the Federation that the right of pension and other privileges as provided under paragraph 2 of the Fifth Schedule to the Constitution is subject to the provisions of Paragraph 3 of the said Schedule and power of President was confined to the extent of determination of pension of only those Judges of the High Court who fulfil the requirement of paragraph 3 of the Fifth Schedule to the Constitution, has no substance. The above interpretation of paras 2 and 3 of the Fifth Schedule is not in consonance to the spirit of Article 205 of the Constitution of Islamic Republic of Pakistan and denial of the Constitutional right of pension to the retired Judges of the High Court through President's Order, a sub-constitutional instrument, is deviation from the mandate of Constitution. The classification of the retired Judges of the High Court for the purpose of pension and pensionary benefits into two categories with reference to the length of service is certainly relevant to determine the maximum and minimum ratio of pension payable to a Judge but this division for the purpose of determination of their entitlement to pension is beyond the scope of Article 205 read with paragraph 2 of the Fifth Schedule of the Constitution and consequently, the omission of the right of pension of the Judges of the High Court who retire having put less than five years of service in President's Order No,3 of 1997 was in direct conflict with Article 205 read with paragraph 2 of the Fifth Schedule of the Constitution. The above omission in P.O. No,3 of 1997 either was deliberate or accidental, has caused injustice to all those Judges who are otherwise entitled to the grant of pension under Article 205 read with Fifth Schedule of the Constitution. Be that as it may, this omission in P.O. No,3 of 1997, stood rectified by virtue of President's Order No,8 of 2007, promulgated on 14-12-2007, in the following manner;- "4. Retirement and pension, etc.---A Judge who has ceased to hold office of a Judge of High Court in terms of Article 3 of the Oath of Office (Judges) Order, 2007 or has otherwise retired from service as permanent Judge shall be entitled to full pension and other retirement benefits admissible to a permanent Judge of a High Court and the provisions of clause (3) of Article 207 of the Constitution of the Islamic Republic of Pakistan shall apply to such a Judge, including a permanent Judge who had retired under the High Court Judges (Service Benefits) Order, 2000 (P.O No, 5 of 7_000): Provided that commutation of pension shall be admissible to such Judge on the basis of his actual age as on the 3rd day of November, 2007,"
16. In consequence to the above change, the right of pension of all retired Judges of High Courts has been recognized w,e,f, 25-1-2000 without any distinction or classification with reference to Paragraphs 2 and 3 of the Fifth Schedule to the Constitution but still the right of pension of those Judges who retired before 25-1-2000 has not been acknowledged. This distinction in the light of principle of equality and equal protection of law, has no justification and rationale and is beyond the legislative wisdom and scope of Article 205 of the Constitution.
17. Initially under President's Order No,9 of 1970, promulgated on the 17th June, 1970, the pay, pension and other privileges of the Judges were determined and subsequently certain amendment were brought in the Constitution including the substitution of paragraph 3 in the Fifth Schedule through Act XIV of 1997 (Constitution Twelfth Amendment) as referred hereinabove and his position continued as such till promulgation of P.O. No,3 of 1997 supra.
18. In paragraph 2 (2) of Order No,2 of 1993, the Chief Justice and every other Judge without any distinction, were held entitled to get minimum and maximum pension mentioned therein in consonance to paragraphs 2 and 3 of the Fifth Schedule, notwithstanding the length of service of a Judge who might have put in as such Judge-at the time of his retirement. The plain reading of Paragraphs 2 and 3 of the Fifth Schedule with Paragraph 2 (2) of P.O. No,2 of 1993, would make it clear that the maximum and minimum monthly pension with the ratio mentioned therein was payable to the Chief Justice and every other Judges, irrespective of length of service or any other distinction, therefore, in the substituted paragraph 3 of the Fifth Schedule of the Constitution, the expression "every other Judge" used therein in departure from the language earlier employed therein would convey the intention that the benefit of pension was not only confined to a Judge who has completed five years of service as such Judge but it was also extendable to every other Judge who has retired as such Judge. The reading of words "every other Judge" in paragraph 2 of Fifth Schedule in conjunction with paragraph 3 of the Fifth Schedule to the Constitution, would make paragraph 2 of the said Schedule redundant and ineffective, whereas this is well settled principle of interpretation of statutes that redundancy cannot be attributed to any provision of the Constitution rather in case of any conflict in two provisions, the rule of harmonious interpretation is to be followed. The careful examination of paragraphs 2 and 3 of the Fifth Schedule of the Constitution, would show that two categories of the Judges referred therein have been classified for the purpose of pension and privileges admissible to the retired Judges of the High Court and para. 2(2) of P.O. No,2 of 1993 was promulgated in complete consonance with the spirit of these paragraphs read with I Article 205 of the Constitution.
19. In the light of above discussion, the true import of Fifth Schedule appears that President under para 2, has to determine the rate of pension and privileges of the Judges and until such determination is made, they shall be paid pension and privileges, which were admissible to them immediately before the commencing day and thus, the interpretation placed on Fifth Schedule that only those retired Judges of the High Court who have put not less than five years of service as such Judge, would be entitled to the grant of pension was due to misinterpretation and misconception of the legislative intention and wisdom behind the two independent paragraphs of the Fifth Schedule read with Article 205 of the Constitution. It is thus manifest from the language of these paragraphs of the Fifth Schedule that the right of pension of all those Judges who retired as judges of the High Court irrespective of their length of service is not negated either by paragraph 3 of the said schedule or by any other legal instrument and except the distinction that a Judge on retirement after having put not less than five years of service would get pension at the rate given therein in the table and a Judge who has less than five years of service at the time of retirement would get minimum pension mentioned therein, there was no other legislative intention and wisdom behind this classification which was made for the purpose of determination of rates of pension admissible to the two categories of Judges referred in Paragraphs 2 and 3 of the Fifth Schedule. In the light of fundamental principle of interpretation of the Statute, that law cannot be stretched by necessary intendment to the disadvantage of a person in departure to the expressed provision, any other interpretation of Fifth Schedule, would amount to negate the Constitutional right of pension of retired Judges.
20. President's Order No,3 of 1997, acknowledged the right of pension only of the retired Judges with reference to paragraph 3 of the Fifth Schedule to the Constitution and does not contain any provision in respect of right of pension of those Judges who retire as such Judge before completing five years service. This distinction in P.O. No,3 of 1997 apart from being in derogation to P.O. No,2 of 1993 is also in direct conflict to Article 205 read with Article 260 of the Constitution. However, as referred above, this anomaly has been removed by virtue of P.O. No,8 of 2007 promulgated on 14- 12-2007 which has been validated by this Court in the case of Tikka Iqbal Muhammad Khan etc. v.
General Pervez Musharraf (Const. Ps.Nos.87 & 88 of 2007) as under:-- "3. We, therefore, hold that-
(i) the Constitution of the Islamic Republic of Pakistan, 1973 still remains to be the supreme law of the land albeit certain parts thereof have been held in abeyance in the larger interest of the country and the people of Pakistan;
(ii) the extra-constitutional steps of Proclamation of Emergency .Of the 3rd day of November, 2007, the Provisional Constitution Order No,1 of 2007, the Provisional Constitution (Amendment) Order, 2007, the Oath of Office (Judges) Order, 2007 and the President's Order No,5 of 2007 are hereby declared to have been validity made by the Chief of Army Staff/President subject to the condition that the country shall be governed, as nearly as may be, in accordance with the Constitution. All acts and actions taken for the orderly running of the State and for the advancement and good of the people are also validated. In absence of the Parliament, General Pervez Musharraf, Chief of Army Staff/President, in pursuance of the Proclamation of Emergency of the 3rd day of November 2007 may, in the larger public interest and the safety, security and integrity of Pakistan, under the principle of salus populi suprema lex, may perform-
(a) All acts or legislative measures which are in accordance with, or could have been made under the 1973 Constitution, including the power to amend it;
(b) All acts which tend to advance or promote the good of the people; and
(c) All acts required to be done for the ordinary orderly running of the State.
4. We further hold and direct as under:--
(i) The old Legal Order has not been completely suppressed or destroyed, but it is a case of constitutional deviation for a limited transitional period;
(ii) Constitutional amendments can be resorted to only if the Constitution fails to provide a solution for the attainment of the declared objectives of Chief of Army Staff/President, but without affecting the salient features of the Constitution, i,e, independence of Judiciary, federalism, parliamentary form of Government blended with Islamic provisions;
(iii) The President, the Federal Government and the Election Commission of Pakistan shall ensure the holding of fair, free and transparent elections as required by the Constitution and the law;
(iv) The Superior Courts continue to have the power of judicial review, to judge the validity of any act or action of the Chief of Army Staff, or the President notwithstanding the ouster of their jurisdiction by the aforesaid extra-constitutional measures;
(v) The Chief Justice and Judges of the superior Courts (Supreme Court of Pakistan, Federal Shariat Court and the High Courts) are subject to accountability only before the Supreme Judicial Council in accordance with the procedure laid down in Article 209 of the Constitution;
(vi) The learned Chief Justice and Judges of the superior. Courts, (Supreme Court of Pakistan, Federal Shariat Court and the High Courts), who have not been given and who have not made, oath under the Oath of Office (Judges) Order, 2007 have ceased to hold their respective offices on the 3rd of November 2007. Their cases cannot be re-opened being hit by the doctrine of past and closed transaction; and
(vii) The Proclamation of Emergency of the 3rd day of November, 2007 shall be revoked by the President and/or the Chief of Army Staff at the earliest so that the period of constitutional deviation is brought to an end. However, this Court may, at any stage, reexamine the continuation of the Proclamation of Emergency if the circumstances so warrant.
5. The petitions are disposed of in the above terms."
21. In the light of above discussion and the Constitutional provisions on the subject, the sole question requiring determination relates to the grant of benefit of pension in terms of Article 205 of the Constitution read with Paragraph 2 of the Fifth Schedule of the Constitution to those Judges of the High Courts who retired before completing five years of service as such Judge and also the date of retirement as mention in P.O. No,8 of 2007 promulgated on 14-12-2007 wherein the right of pension to all those Judges of the High Court, who retired as such Judges on or after 25-1-2000, has been given, whereas an embargo has been placed on the right of pension of those Judges who retired before the above date. This may be pointed out that the case of those Judges who retired before the date referred therein may not be differentiated to that of the Judges who retired after the said date because such distinction with reference to date of retirement, is definitely discriminatory in terms of Article 25 of the Constitution. This Court in I.A. Sherwani v. Government of Pakistan (1991 SCM R 1041), observed as under:-- "14. I will now take up the case of legislation effecting increase in salaries and indexation on salaries. This cannot be treated as legislation creating a classification which is arbitrary just because the retired pensioners have not been given higher pensions by figuratively treating them as entitled to such higher salaries or indexation. The object of Article 25 is not to force Government to legislate over a matter which is silent, but to strike down a legislation or a legal instrument which creates classification which is unreasonable or arbitrary. The fact that salaries are increased or indexation is allowed thereon, is legislation pertaining to salary which specifically deals with serving Government servants and has no connection with pension which specifically deals with Government servants who have retired. Merely because the legal instruments are directly intended to augment salaries of serving Government servants, the fact that indirectly they may tend to effect emoluments and thus augment pensioner benefits or affect other allowances which are allowed as a percentage of the wages and thus augment such allowances, cannot be treated as creating an unreasonable discrimination against recipient of pensions and allowances. The rule is that where a particular legislation tends to create an arbitrary distinction or unreasonable discrimination, the principle that all persons similarly circumstances or matters evenly placed should be treated or dealt with alike is enforced. But where a legislate-n dealing with one subject has the effect of indirectly affecting other persons or matters covered by another legislation dealing with another subject, the violation of the rule of equality cannot be blindly enforced, unless there is some strong ground which would make it almost mandatory for the Court to do so.
Legislation also treats salary and pension separately. Just because one indirectly affects the other, it does not become a case of unreasonable discrimination. If such a rule were to be applied, it would open up a Pandora's box of illusive and unintelligible classification, having no rationale nor reason, and all forms of legislation would be thrown into utter confusion. In State Government Pensioners Association v. State of Andhra Pradesh (AIR 1986 SC 1907) the Supreme Court of India was considering the question whether a provision providing for payment of enhanced gratuity with prospective effect from a specified date offended Article 14 of the Indian Constitution if it did not provided for payment under the revised basis to all those who had already retired, the Indian Supreme Court answered the question in the negative. In dealing with this question the Supreme Court held:- "Improvements in pay scales by the very nature of things can be made prospectively so as tb apply to only those who are in the employment on the date of the upward revision. Those who were in employment say in 1950, 1960 or 1970, lived, spent and saved on the basis of the then prevailing cost of living structure and pay scale structure, cannot invoke Article 14 in order to claim the higher pay-scale brought into force say, in 1980. If upward pay revision cannot be made prospectively on account of Article 14, perhaps no such revision would ever be made."
I do not think legal instruments augmenting salaries or indexation on salaries can be struck down as violating Article 25 of the Constitution if they indirectly happen to affect pension. Thus, every time increase in salary or indexation to salary takes place, a sub-class would be created, each sub-class being constituted by a group of pensioners who have retired on or after the date when some change in the legal instruments has taken effect till the date the next change in the salary or indexation taxes place."
22. In the light thereof, the right of pension and retirement benefits admissible to a retired Judge under Article 205 of the Constitution would invariably be available to all retired judges in terms of paragraph 2 of Fifth Schedule notwithstanding the date of retirement and length of service and consequently, the distinction created with reference to the date of retirement under P.O. No,8 of 2007 promulgated on 14-12-2007 or on the basis of length of service as provided in paragraph 3 of the Fifth Schedule read with P.O. No, 3 of 1997, would not distinguish the case inter se retired Judges of High Court vis-a-vis their right of pension admissible under Article 205 read with Fifth Schedule.
In view of the above, the mandate of the Constitution, is that all those Judges who retired as Judges of the High Court irrespective of their length of service and date of retirement, would be entitled to the pension and pensioner benefits without any distinction.
23. In the light of principle of equality and equal protection of law, the above distinction made in respect of Constitutional right of pension of retired Judges of High Court in P.O. No,8 of 2007 and President's Order No,3 of 1997, was discriminatory in terms of Article 25 of the Constitution, which being without any significance and legal consequence also is in conflict to the concept of independence of judiciary enunciated in Article 175(3) of the Constitution. This Court in Government of Sindh v. Sharaf Faridi (PLD 1994 SC 105) held as under:-- "In the result, while upholding the judgment of the High Court in the main, some modification therein have been made. These have become necessary as some of the directions issued by the High Court in its impugned judgment have by now been already complied with, while some others, we felt, cannot appropriately be issued in these proceedings. In our opinion, the following directions will, consistent with the mandate contained in Article 175 of the Constitution suffice to secure the separation of the judiciary from the Executive namely:--
(i) The Government of Sindh and Punjab shall issue the requisite notifications in items of subsection
(2) of section 1 of Law Reforms Ordinance (XII of 1972) for enforcing the provisions of the aforesaid Ordinance by 23rd March, 1994, for bifurcating magistracy into Judicial Magistrates and Executive Magistrates and place all the Judicial Magistrates under the administrative control of the High Court; and
(ii) The Federal Government as also the Provincial Government of Sindh, Punjab, N.-W.F.P., and Balochistan shall not require the Supreme Court and the High Courts of the Provinces to seek their approval to incurring expenditure or any item from the funds allocated for them in the annual budgets provided the expenditure incurred falls within the limit of the sanctioned budgets, as more fully explained in the body of the judgment above. Necessary instructions to enable in compliance with this direction shall be issued by the Federal Government and the Provincial Government to all concerned by 1-12-1993."
24. In the broader sense, the concept of independence of judiciary is not confined to the extent of disposal of cases by the Judges and discharging of the judicial functions rather in the extended meaning, the concept of independence of judiciary is complete separation from executive authorities of the State in all matters including pay and pension which is an essential component of independence of judiciary but unfortunately as is evident from judicial history of Pakistan Executive Authorities instead of acting in aid of judicial independence and taking remedial steps for judicial reforms have always behaved with step-motherly attitude towards judiciary and its independence of obvious reasons of maintaining their will and supremacy through administrative devices even at the cost of damaging the judicial system. This may be, pointed out that all financial matters concerning with the judiciary including the pay and pension as well as other privileges of Judges are under the direct control of the Executive Authorities and it has been observed that the Executive Authorities, without recognizing the independent status of judiciary as an important Organ of State, treat it as their subordinate department in such matters. This Court in Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324), Zafar Ali Shah v. Pervez Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869) and Khan Asfandyar Wali v. Federation of Pakistan (PLD 2001 SC 607), while dealing with the subject of independence of judiciary vis-a-vis the appointment of Judge of superior Courts and their removal from office and financial as well as administrative independence, held that consultative process for appointment of Judges of the superior Courts as provided in the Constitution must not to be interfered and interrupted by the Executive by ignoring the opinion of the Chief Justices concerned and Chief Justice of Pakistan. The Judges of superior Courts, cannot be M removed from their offices except in accordance with the provision of Article 209 of the Constitution but since they are not immune from accountability therefore, if situation arises and President also considers necessary, the proceedings can be initiated against a Judge with respect to his conduct in terms of Article 209 of the Constitution which provides as under:-- "209. (5) If, on information [from any source, the Council or] the President is of the opinion that a Judge of the Supreme Court or of a High Court---
(a) may be incapable of properly performing the duties of his office by reason of physical or mental incapacity; or
(b) may have been guilty of misconduct, the President shall direct the Council to [, or the Council may, on its own motion,] inquire into the matter."
In nutshell, the Executive is not supposed to interfere in the affairs of judiciary in any manner. The relevant portions from the judgments referred above are reproduced hereunder:-- In Al-Jehad Trust case, supra, it was held as under:-- "The independence of Judiciary is inextricably linked and connected with the constitutional process of appointment of Judges of the superior Judiciary. The relevant constitutional provisions are to be construed in a manner which would ensure the independence of Judiciary. A written Constitution is an organic document designed and intended to cater the need for all times to come. It is like a living tree, it grows and blossoms with the passage of time in order to keep pace with the growth of the country and its people. Thus, the approach, while interpreting a constitutional provision should be dynamic , progressive and oriented with the desire to meet the situation, which has arisen, effectively. The interpretation cannot be a narrow and pedantic. But the Court's efforts should be ever changing society. The general words cannot be construed in isolation but the same are to be construed in the context in which they are employed. In other words, their colour and contents are derived from their context.
The above principles will have for be kept in view while construing the provisions of the Constitution relating to the appointments/ transfers of judges of the superior judiciary."
The Constitution contemplates tracheotomy of power inter se the three pillars of the State, namely, Legislature, Executive and the Judiciary, each one of the organs of the State has to function within the limits provided in the Constitution. The constitutional provisions relating to the appointments and transfers of Judges of the superior Courts, therefore, need to be examined in the light of the Islamic concept of justice.
"Article 209 of the Constitution relates to the composition of the Supreme Judicial Council and its functions. It enables the Council to take action or remove a Judge from the office on the ground of his incapability to perform the duties of his office for the reason of physical or mental incapability or misconduct. Sub-Article (7) of this Article provides that a Judge of the Supreme Court or of a High Court shall not be removed from the office except as provided by this Article. Sub-Article (8) of this Article provides that the Council shall issue the Code of Conduct to be observed by the Judges of the Supreme Court and the High Courts. It is clear from the above provisions that the security of tenure is provided under Article 209 and also the forum for removal from the office as Judge of the High Court or of the Supreme Court. This provision is incorporated in the Constitution by the Constitution-makers. Subsequently, Chapter 3A setting up the Federal Shariat Court was inserted in Part VII of the Constitution vide P.O. No,1 of 1980 providing in Article 203-C(4) that a Judge or Chief Justice of the High Court can be appointed to the Federal Shariat Court without his consent for a period not exceeding two years. After such appointment it is open to the President to modify the terms of the appointment of such Judge in the Federal Shariat Court or assign him any other office or require him to perform such other functions as the President may deem fit. If a Judge or Chief Justice of a High Court refuses to accept the appointment to the Federal Shariat Court, then he stands retired. No doubt, Chapter 3A inserted in Part VII of the Constitution for the purpose of setting up of the Federal Shariat Court envisages that the provisions of this Chapter shall have effect notwithstanding anything contained in the Constitution, still the appointment of a Judge or a Chief Justice of a High Court to the Federal Shariat Court in such manner without his consent accompanying by such harsh conditions, in the final analysis, tantamount to removal or forcible retirement which can and should be done only under Article 209 of the Constitution under which the Supreme Judicial Council is constituted and is authorized to take action of such punitive nature. If the Government finds a particular Judge or the Chief Justice of a High Court to be un- cooperative and if there is sufficient material to support the charge of misconduct, then in all fairness action should be taken against him and proceedings should be initiated before the Supreme Judicial Council in the manner prescribed under Article 209. The object is not to strike down provisions (4), (4-B) and (5) of Article 203-C as void being inconsistent with Article 209 but keeping in view the rules of interpretation, if there is choice between two forums or provisions, then the provision beneficial to the affected Judge should have been adopted or resorted to, and in such circumstances, the resultant action is to be considered as void in absence of cogent reasons without going into the constitutionality of Article 203C of the Constitution. The Constitution is to be read as a whole and if there is any inconsistency, the same can be removed or rectified by the Parliament.
In Zafar Ali Shah v. Pervez Musharaf, Chief Executive of Pakistan (PLD 2000 SC 869), it was held as under:-- "The independence of judiciary is a basic principle of the constitutional system of governance in Pakistan. The Constitution of Pakistan contains specific and categorical provisions for the independence of judiciary. The Preamble and Article 2A state that "the independence of judiciary shall be fully secured" and with a view to achieve this objective, Article 175 provides that " the Judiciary shall be separated progressively from the executive" a system of constitutional governance, guaranteeing Fundamental Rights and based on principle of trichotomy of powers, such as ours, the judiciary plays a crucial role of interpreting and applying the law and adjudicating upon disputes arising among Governments or between State and citizens or citizens inter se. The judiciary is entrusted with the responsibility for enforcement of Fundamental Rights.
This calls for an independent and vigilant system of judicial administration so that all acts and actions leading to infringement of Fundamental Right are nullified and the rule of law upheld in the society.
The Constitution makes it the exclusive power/responsibility of the judiciary to ensure the sustenance of system of "separation of powers" based on checks and balances. This is legal obligation assigned to the judiciary. It is called upon to enforce the Constitution and safeguard the Fundamental Rights and freedom of individuals. To do so, the judiciary has to be properly organized and effective and efficient enough to quickly address and resolve public claims and grievances; and also has to be strong and independent enough to dispense justice fairly and impartially. It is such an efficient and independent judiciary which can foster an appropriate legal and judicial environment where there is peace and security in the society, safety of life, protection of property and guarantee of essential human rights and fundamental freedoms for all individuals and groups, irrespective of any distinction or discrimination on the basis of caste, creed color, culture, gender or place of origin, etc. It is indeed such a legal and judicial environment, which is conducive to economic growth and social development."
25. This Court has repeatedly held that in the scheme of Constitution neither a Judge of superior Court can be appointed except in accordance with the method prescribed in Constitution nor he can be removed from his office except in accordance with the provisions of Article 209 of the Constitution. In Asfandyar Wali's case, supra, it was observed as under:-- "A perusal of the above clause indicates that the right to move the Supreme Judicial Council (SJC) against a Judge of the superior Court under Article 209 of the Constitutional is not available to any individual. Secondly, the President alone on the advice of Prime Minister or the Cabinet as the case may be, can refer a case of the Judge of the superior Court to Supreme Judicial Council for holding an enquiry against him. Thirdly, the jurisdiction of Supreme Judicial Council to hold an enquiry against the Judge of a superior Court arises only when a reference is made to it by the President in this behalf. Fourthly, the enquiry by the Supreme Judicial Council against the Judge of a superior Court under Article 209 of the Constitution of Pakistan (1973), is limited only to two points, namely
(i) the incapacity of the Judge to perform the duties of his office properly arising from any physical or mental incapacity, and (ii) misconduct of the Judge concerned. Lastly, the findings of the Supreme Judicial Council in such an enquiry are recommendatory in nature and the action, if any, is to be taken by the President on the advice of the Prime Minister or the Cabinet. However, in order to make the Supreme Judicial Council more effective and functional and to ensure that the Judges of the superior Courts observe the Code of Conduct in letter and spirit, the Chief Justice of Pakistan/Chairman, Supreme Judicial Council convened meetings of the council on 29-3-2000, 13- 4-2000 and 30-4-2000 respectively wherein decisions, inter alia, were taken to make it obligatory on every Judge to take all steps necessary to expedite cases, and effectively control the processing therefor with a view to deciding the same expeditiously and to strictly adhere to the Code of Conduct, pursuant to the provisions contained in Articles II, IX and X of the Code of Conduct. Article X provides for quick disposal of cases. The Judges of the superior Courts have to work and conducts themselves under the Code of Conduct already prescribed for them. They are oath- bound to preserve the Code and act in accordance with its dictates. The Code of Conduct is a fairly comprehensive document and covers both the public and private conducts of Judges. It lays down essential norms of behavior to be observed in the interest of maintaining decorum and judicial propriety. The Supreme Judicial Council is a unique institution, which comprises the senior most judges in judicial hierarchy and entrusted with the onerous responsibility of deciding complaints that are referred to it through references by the President alone. It is an essential prerequisite of the independence of judiciary that there is put in place a system of accountability. It should, therefore, be the en devour of the Judges of the superior Courts to make the Code fully applicable and ensure that it is strictly adhered to. The Judges of the superior Courts are not immune from accountability. They are accountable only in the manner laid down under Article 209 of the Constitution. The Judges of the superior Courts are not immune from accountability and that it is for the President to make a reference if in a case such a course is desirable at his end."
26. The judicial history of Pakistan is full of victimization of the judges of superior Courts at the hands of Executive and irrespective of the fact that independence of judiciary, has always been considered a threat to the Executive, the Judges collectively as well as in their individual capacity have always been functioning according to their conscience. The judiciary is an important Organ of the State and without its independence at all levels in all affairs including the financial matters, the right of access to justice cannot be ensured, therefore, the independent and strong judiciary for good governance and welfare of the people, is essential and thus the matters relating to the appointment and P removal of Judges from their offices, security of their tenure, pay and pension and other privileges must not be in the exclusive control and domain of Executive Authorities rather the role of executive in such affairs of judiciary must be curtailed to the extent of only general supervision, so that judicial reforms in real sense can be made to the requirement of the Judiciary.
It is thus imperative that all matters concerning with the judiciary should be decided by the Judicial Policy Making Body, a highest statutory Body in the Judiciary which consists of the Chief Justices of all the High Courts and the Chief Justice of Pakistan, as its Chairman. The direct or indirect control of the Executive Authorities in the affairs of judiciary has always been an hindrance in the administration and dispensation of justice and also the smooth functioning of judiciary.
27. The appointment of Judges in superior Courts is made through a consultative process provided in the Constitution but the Executive Authorities with a view to make the appointments of their choice always cause unnecessary interruption in this process and similarly the Judges of the superior Courts in the past have been removed from their office in an un-ceremonial and unconstitutional manner even in normal circumstances either for political reasons or for Executive command and will in departure to the Provision of Article 209 of the Constitution which provide protection to the tenure of office of a Judge. The Judges of the superior Courts at a number of occasions became victims of the Executive action either in consequence to the imposition of emergency in the country or when the Constitution was held in abeyance and have been removed from their offices through an extra-constitutional measures so much so even in normal situation, there are instance of compelling the Judges to resign from their offices or confirmation of Additional Judges of the High Courts has been withheld without any legal excuse and moral justification. In recent past in consequence to the observation made by this Court without taking judicial notice of certain facts brought before the Court in Asif Ali Zardari v. The State (PLD 2001 SC 568), the Executive Authorities of the State forced two Judges, one of this Court and one of Lahore High Court to resign from their offices which was in complete departure to the mandate of Constitution. The use of such device to force a Judge to tender resignation from his office, is certainly un-constitutional which has no legal and moral justification. The concept of independence of judiciary is that a Judge is free from all sort of out side influence in discharge of his functions and in view of protection of tenure provided under Article 209 of the Constitution, his removal from office in any other manner except in accordance with the Constitution and the procedure provided therein including involuntary resignation is un-constitutional, thus part from the personal independence of the Judges, Judiciary must be independent in all respects in its affairs for which judicial reforms at large scale are required under the control of Judiciary Body (JPM Body) and Government should confine its role to the extent of providing resources and general supervision otherwise the concept of independence of judiciary would remain confine to the extent of persons of the Judges.
This may be seen that the Government Agencies and Functionaries instead of performing their duty, waste much public time and money on collecting information in respect of private affairs of Judges and their families for no useful purpose and thereby cause disturbance in their private life which is against all legal and moral norms and is strictly prohibited in Islam in addition to disturb privacy in terms of Article 14 of the Constitution.
28. Reverting back to the present case, we find that a plain reading of paragraph 2 in the Fifth Schedule referred to above indicates that every Judge of a High Court shall be entitled to a pension besides other rights and privileges as referred to in the said paragraph, as may be determined by the President. It is thus clear that all those Judges of the High Courts on retirement, irrespective of their length of service as such Judges would get pension as per their entitlement and the executive authorities including the President cannot by way of Presidential Orders or through any other legal instrument curtail their constitutional right of pension. Consequently, we hold that retired Judges of the High Courts invariably are entitled to the grant of pension under Article 205 read with Fifth Schedule of the Constitution, irrespective of the date of retirement before or after 25-1-2000 and length of service, therefore, the distinction created and classification of retired Judges made for the purpose of grant of pension and pensionary benefits on the basis of length of service or date of retirement, is not legal and constitutional.
29. The matter relating to the grant of pension to the retired Judges of High Courts irrespective of their length of service as such Judge, at one stage was seriously considered by the Federal Government but it could not be materialized for the reason of departmental interpretation of Fifth Schedule that a retired Judge of the High Court who has not put in five years minimum service in terms of paragraph 3 of the Schedule, was not entitled to the pensionary benefits whereas the plain reading of Paragraph 2 in the Fifth Schedule referred to above, would show that every Judge of a High Court shall be entitled to a pension besides other rights and privileges as referred to in the said Paragraph, as may be determined by the President. This paragraph further provides that until such rights and privileges are so determined, a Judge shall be entitled to such privileges and rights including a right to receive pension to which a Judge was entitled immediately before the commencing day. There is no ambiguity in paragraphs 2 and 3 of Fifth Schedule because paragraph 3 provides for a minimum and a maximum pension payable to a Judge of a High Court who has not put in less than five years of service as such Judge whereas paragraph 2 deals with the entitlement of Judges. In short paragraph 3 identifies a particular class of Judges, with reference to the length of service and nothing can be spelt out that paragraph 2 has no independent implication with reference to every Judge of a High Court. It is thus clear that the classification of Judges was made with reference to their length of service for the purpose of determination of their pension at different rates mentioned therein and not for the purpose of determination of their right of pension which is recognized under Article 205 of the Constitution.
30. Malik Muhammad Qayyum, learned Attorney-General for Pakistan, having placed on record advice tendered by him to the Ministry of Law, Justice and Human Rights, has submitted that in consequence to the promulgation of P.O. No,8 of 2007, the Judges of the High Courts who retired on or after 25-1-2007 irrespective of their length of service, have been given the right of pension and pens it. .Try benefits as provided under Article 205 read with Fifth Schedule of the Constitution. The learned Attorney General stated that principally all retired Judges of the High Courts irrespective of date of retirement and length of service are equally entitled to the grant of pension and pensionary benefits under the Constitution without any distinction. He added that in the light of principle of equality and equal protection of law, the retired Judges of the High Courts by implication may be entitled to the benefit of P.O. No,8 of the 2007 read with Article 205 of the Constitution. However, the learned Attorney General has not been able to justify the grant of such right to the Judges of the High Courts who retired on or after 25-1-2000 and withheld the same in respect of the Judges who retired prior to this date, as no such distinction can be created in respect of the right of pension and pensionary benefits of the retired Judges of the High Courts under the Constitution. All retired Judges of the High Courts in the above circumstances, are placed in the same situation and are equally entitled to the grant of pension and pensionary benefits without any discrimination. The advice referred to above tendered by the learned Attorney General for Pakistan to the Government of Pakistan through Secretary, Ministry of Law, Justice & Human Rights, Islamabad, is reproduced hereunder:-- "As requested vide your letter No, F.1 (3)12008-A-II dated 14-2-2008. I have examined the matter and am clearly of the view that the pensionary benefits granted to the permanent Judges of the High Court through Presidential Order No, VII of 2007 are available to all the permanent Judges who retired on or after 25th of January 2000 irrespective of the length of service.
2. As you are fully aware the issue has a background. Many of the permanent Judges of the High Court who had retired from service after putting in less than five years service were denied pensionary benefits and they have been agitating their mattes before different forums. The Constitutional Petitions filed by them are still pending in the Supreme Court of Pakistan.
3. One of the reason for granting pensionary benefits to the permanent judges irrespective to the length of service was that those Judge cannot practice before the High Court in view of Article 207(3) of the Constitution. It was felt that it was anomalous that while these Judges were deprived of the right to practice the profession of law before the High Court, they were not being paid any pension which resulted in great financial hardship to them and many of them were living from hand to month. As already mentioned the idea of promulgation of Presidential Order No, VIII of 2007 was to grant pensionary benefits to all such Judges. It was also felt that there was no legal or Constitutional backing for differentiating between the permanent Judges who had put less than five years of service and those who had held the office for a larger period of time. The cutoff point, in the circumstances appeared to be discriminatory and violative of Article 25 of the Constitution, keeping in view laid down in I.A. Sherwani's (I.A Sherwani v. Government of Pakistan) 1991 SCM R 1041.
4. The answer to the question posed by the High Court is as under:--
(i) Q. Whether a Judge of High Court having put in less than five years of service is entitled to receive full pensionary benefits.
Ans. Yes.
(ii) Q. Whether Article 4 of the President's Order No,8/2007 overrides para 3 of the 5th Schedule to the Constitution, relating to the High Court Judges?
Ans. It is clear from the perusal of the Presidential Order itself that which has an override effect in as much as it is specifically provided in Article 2 thereof that provisions of the Order shall have effect notwithstanding anything to the contrary in any other law for the time being in force.
(iii) Q. Who is permanent Judge within the meaning of Article 4 of the President's Order No,8/2007?
Ans. The word "Permanent Judge" has been used in all the laws as to distinguish such Judges from the Additional Judges. The permanent Judges are the Judges who are appointed under Article 193 of the Constitution as distinguished from Additional Judges appointed under Article 197.
(iv) Q. Who is not eligible to enjoy the Pensionary benefits under Articles 4 within the contemplation of Article 5 of the President's Order No, 8/2007?
Ans. All Permanent Judges are entitled to the pensionary benefits.
(v) Q. If any permanent/confirmed Judge of a High Court having put in less than five years of service has been allowed pensionary benefits under the President's Order No,8/2007, then the exact rate of pension paid, be also intimated.
Ans. The question of rate of pension may be examined at your level or by the concerned officer of Audit and Accounts.
(vi) Q. Who are the Permanent Judges, eligible for the benefits under the High Courts Judges (Service Benefits) Order, 2000 (Orders No,5/2000) and what is the implication qua its retrospectively i,e, from the 25th day of January 2000 as mentioned in the Article 7 of the Article 1 of the P.O. No . 8/2007?
Ans. Strictly speaking the pensionary benefits should be given with effect from the date 5th January 2002, as Presidential Order No, 8 of 2007 has been made retrospectively applicable from the date."
31. Before parting with this judgment, we deem it proper to point out that Chief Justice and Judges of Federal Shariat Court are also entitled to the grant of pension and pensionary benefits available to the retired Judges of the Supreme Court and High Courts under the Constitution. The appointment of the Chief Justice and Judges of the Federal Shariat Court is made by the President under Article 203-C of the Constitution and the terms and conditions of service of the Judges of the said Court are also determined by the President, therefore, notwithstanding the fixed tenure of the Chief Justice and Judges of the Federal Shariat Court, they are entitled to the terms and conditions of service and remunerations including pension and pensionary benefits at par to the Judges of the Supreme Court and High Courts, by virtue of Article 203-C(9) of the Constitution which provides as under:-- "(9) A Chief justice who is not a Judge of the Supreme Court shall be entitled to the same remuneration, allowances and privileges as are admissible to a Judge of the Supreme Court and a Judge who is not a Judge of a High Court shall be entitled to the same remuneration, allowances and privileges as are admissible to a Judge of a High Court: Provided that where a Judge is already drawing a pension for any other post in the service of Pakistan, the amount of such pension shall be deducted from the pension admissible under the clause."
32. The Chief Justice or a Judge of Federal Shariat Court shall be entitled to the same salary, pension, allowances, privileges, including grant of leave/LPR and other benefits as are allowed to a Judge of the Supreme Court and High Court respectively. The plain reading of Article 203-C of the Constitution read with Article 205 and Fifth Schedule of the Constitution would show that right of pension and pensionary benefits of the Chief Justice and Judge3 of Federal Shariat Court notwithstanding the length of service or fixed term of tenure is recognized under the Constitution and consequently, this judgment subject to the Constitution, shall be equally applicable in respect of the right of pension and pensionary benefits admissible to the Chief Justice and Judges of the Federal Shariat Court.
33. In the light of foregoing reasons, we hold that all retired Judges of the High Courts who retire as such Judge in terms of Article 195 of the Constitution of Islamic Republic of Pakistan and the Chief Justices and Judges of the Federal Shariat Court notwithstanding the tenure appointment, are entitled to the pension and pensionary benefits in terms of Article 205 read with Fifth Schedule of the Constitution read with P.O. No,8 of 2007 and Article 203-C of the Constitution and all other enabling provisions of the Constitution as well as President's Order No,2 of 1993 and P.O.No,3 of 1997, irrespective of their date of retirement and length of service. The Miscellaneous Applications bearing No,940 in C.A. 1021 (filed by Justice (R.) Muhammad Azam Khan), 968/05 in C.A. 1021/95 (filed by Syed Sharif Hussain Bokhari and Muhammad Aqil Mirza, retired Judges of Lahore High Court, 1004/05 in C.A. 1021/95 (filed by Ghulam Muhammad Qureshi), 1176/05 in C.A. 1021/95 (filed by Mr. Riaz Kayani retired Judge of Lahore High Court, 1190/05 in C.A. 1021/95 (filed by Rao Iqbal Ahmed Khan), retired Judge of Lahore High Court, 1368/05 in C.A. 1021/95 (filed by Dr. Munir Ahmad Mughal), retired Judge of Lahore High Court, 2079/06 in C.A. 1021/95 and 1273/06 in Const. P. 10/01 (both filed by Justice (R.) Saeed-ur-Rehman Farrukh), involving similar questions of fact and law, containing the prayer for implement of the applicants in the constitution petition as co-petitioner and in civil appeal as respondent, have already been allowed.
34. In consequence to the above discussion, the Constitution Petitions Not. 8/2000, 10/2001, 26/2003, 34/2003, 04/2004 and 26/2007, filed by the retired Judges of the High Courts are allowed and the petitioners/applicants in these petitions and miscellaneous applications, along with all other retired Judges of the High Courts, who are not party in the present proceedings, are held entitled to get pension and pensionary benefits with other privileges admissible to them in terms of Article 205 of the Constitution read with P.O.No,8 of 2007 and Article 203-C of the Constitution read with paras 2 and 3 of Fifth Schedule and P.O. No,2 of 1993 and P.0.3 of 1997 from the date of their respective retirements, irrespective of their length of service as such Judges.
35. In Civil Appeal No, 1021/1995, no one appeared on behalf of the respondents but since the question involved therein relates to the right of pension and pensionary benefits of the retired Judges of the High Courts and respondent was also a retired Judge of the High Court, therefore, notwithstanding his death pending disposal of this appeal, the judgment of the High Court, impugned before us, is upheld and this Civil Appeal filed by the Federation is dismissed, with no order as to costs.