' MUHAMMAD AZAM KHAN, J.--- These four appeals, by leave of the Court, arise out of the judgments of the Azad Jammu and Kashmir High Court dated 19-2-2004 and 10-6-2005, whereby Writ Petitions Nos.81 of 2003, 82 of 2003, 92 of 2003 and 30 of 2004 have been accepted and the respondents, herein, were declared entitled to the medical allowance @ Rs,250 per month from May 28, 1994 till June, 26, 2001.
2. The facts necessary for disposal of the present appeals are that the respondents served the Azad Jammu and Kashmir University as teaching staff in different grades and retired from the service in the years, 1982, 1989, 1990 and 1995 respectively. The Syndicate of Azad Jammu and Kashmir University in its meeting held on 20the April, 1993 decided that in lieu of medical facility the University employees will receive an allowance @ 15% or their initial pay subject to minimum of Rs,125 and maximum of Rs,250 per month. This facility was extended to the University pensioners from the said date. In this respect a Notification was issued on 28-5-1994. The Vice-Chancellor of the Azad Jammu and Kashmir University cancelled the Notification dated 28-5-1994 on 9-6-1994.
The Notification dated 9-6-1994 was challenged before the High Court through a writ petition by one Raja Abdul Hakim which was dismissed by the High Court. An appeal before this Court was accepted and Notification dated 9-6-1994 was struck down. Later on, another Notification was issued by the Syndicate on 25-6-2001, whereby the facility of medical allowance granted vide Notification dated 28-5-1994 was withdrawn. The Supreme Court declared that the Vice- Chancellor has no power to withdraw the Notification issued by the Syndicate. Therefore, the Syndicate withdrew the facility vide Notification dated 25-6-2001. Since the withdrawal Notification issued by the Syndicate on 25-6-2001 has no retrospective operation, therefore, the appellant in the case was declared entitled to receive the medical allowance from 28-5-1994 to June 25, 2001.
3. After judgment of the Supreme Court in case titled Raja Abdul Hakim v. Azad Jammu and Kashmir University and others Civil Appeal 7 of 2002, decided on 21-6-2002 the respondents submitted the medical allowance bill to the Director Finance or the University, who refused to make the payment, whereupon, they filed the separate writ petitions in the Azad Jammu and Kashmir High Court. The High Court accepted all the writ petitions and directed the University authorities to pay the medical allowance @ Rs,250 per month from 28-5-1994 to June 25, 2001. Four separate appeals have been filed against these judgments. Since the facts and question of law involved in captioned appeals are identical, therefore, all these shall be disposed of through this single judgment.
4. In Appeal No,58 of 2004 titled Azad Jammu and Kashmir University and others v. Amin Tariq Qasmi, the learned counsel for the respondents moved an application for abatement of appeal on the ground that Professor Amin Tariq Qasmi died on 4-5-2008 and the appellants have not moved any application to substitute his legal representatives as respondents in the appeal within time due to this reason the appeal has abated and liable to be dismissed.
5. Mr. Farooq Hussain Kashmiri, the learned Advocate, representing the appellants has argued the following points:---
(i) that necessary parties have not been impleaded by the respondents in writ petitions, therefore, the writ petitions were liable to be dismissed on this sole ground. He explained that the Syndicate awarded the medical allowance to the pensioners vide Notification dated 28-5-1994 which was withdrawn by the Vice- Chancellor on 9-6-1994. Subsequently the Syndicate also ordered for withdrawal of the Notification dated 28-5-1994 vide Notification dated 26-6-2001, therefore, the Vice-Chancellor and Syndicate were necessary parties without impleading them the writ petitions were not maintainable and liable to be dismissed on the sole ground;
(ii) that no law existed for the payment of medical allowance at the time when the writ petitions were filed, therefore, The extraordinary remedy of writ cannot be granted in favour of the petitioners and the High Court accepted the writ petitions without any justification; and
(iii) that all the appeals are hit by the doctrine of laches. The medical allowance Notification was initially issued on 28-5-1994 which was first time withdrawn on 9-6-1994 by the Vice-Chancellor.
The respondents never claimed the medical allowance for a long time even after the judgment of the Supreme Court delivered in Civil Appeal No,7 of 2002 on 21-6-2002, they remained silent and filed the writ petitions in the High Court after the lapse of more than one year and in Appeal No,56 of 2004 after two years, as such the writ petitions were hit by the laches. This point was argued by him in the High Court but the learned High Court has not attended to this point. He has specially raised this point in the petition for leave to appeal and filed affidavit in its support. He contended that the writ petitions are liable to be dismissed on this ground also.
6. While controverting the arguments the learned counsel for the respondents, Raja Fazal Hussain Rabbani, Advocate, argued that this Court in a case titled Raja Abdul Hakim v. Azad Jammu. And Kashmir University Civil Appeal 7 of 2002, decided on 21-6-2002 has already declared that the medical allowance was sanctioned in favour of pensioners by the Syndicate and the Vice- Chancellor was not competent to withdraw the same, therefore, after the judgment of the Supreme Court all the respondents submitted their medical allowance bills pertaining to the period beginning from 28-5-1994 to 26-6-2001 as declared by the Supreme Court . The University authorities declined to pay the bill, whereupon the respondents filed the writ petitions seeking direction from the Court to the effect that the university authorities shall pass the medical allowance bill and pay the same to the respondents, herein. He clarified that the Vice-Chancellor of the AJ&K University has been arrayed as party as respondent in the writ petition. Since the medical allowance bill was submitted to the Director Finance, it was his responsibility to pay the same, therefore, the only necessary party in the writ petitions was the University of Azad Jammu and Kashmir through its Registrar and its Director Finance, no relief was claimed against the Syndicate, therefore, the objection of necessary parties is not tenable.
7. While replying the point that no law was in existence at the time when the writ petitions were filed in the High Court, he argued that the medical allowance facility to the pensioners was granted by the Syndicate on 28-5-1994 which was illegally withdrawn by the Vice-Chancellor on 9-6-1994.
Realizing that the order of Vice-Chancellor is without jurisdiction, the Syndicate withdrew the facility on 26-6-2001. This Court in Raja Abdul Hakim's case has declared that the Vice-Chancellor was not competent to withdraw the Notification and the Syndicate has the jurisdiction to withdraw the Notification and declared the pensioners entitled to the medical allowance for intervening period.
After the judgment of the Supreme Court the answering respondents were entitled to receive the medical allowance for intervening period. Director Finance refused to pay the same illegally, whereupon they sought a direction for payment of the same. While replying the point of laches he contended that there is no question of laches. Since the Supreme Court has declared the order of Vice-Chancellor without jurisdictional competence, therefore, the respondents were entitled to receive the medical allowance bill from the university, but the university authorities refused to pay the same without any justification and after refusal of the university authorities the writ petitions for issuance of direction have been filed in the High Court. The doctrine of laches is not applicable in the present case.
8. Before proceeding further we feel necessary to dispose of the application filed in Appeal No,91 of 2004 titled AJ&K University and others v. Amin Tariq Qasmi, for dismissal of appeal being abated due to the death of respondent, Amin Tariq Qasmi. It is contended by Raja Fazal Hussain Rabbani, the learned counsel for the respondent, that Amin Tariq Qasmi, respondent, died on 4-5-2008 and the appellants have not moved any application for impleading his legal representatives within limitation therefore, the appeal is liable to be dismissed as abated. The learned counsel for the appellant argued that under law applicable it right to sue survives then there is no question of abatement. Since we have decided to dismiss the captioned appeals on merits through a single judgment, therefore, there is no need to resolve the point of legal representatives of deceased- respondent, Amin Tariq Qasmi.
9. We have heard the learned counsel for the parties and perused the record with utmost care. It is admitted position between the parties that respondents were employees of the Azad Jammu and Kashmir University and they served the University in different grades and are deriving the pension benefits after retirement. The Syndicate of AJ&K University in its meeting held on 20-4-1993 decided to pay medical allowance at the rate of 15% of their initial pay subject to minimum of Rs,150 and maximum of Rs,250 per month. In this respect a Notification was issued by the University on 28-5- 1994. The Vice-Chancellor of the University withdrew the medical allowance facility through Notification dated 9-6-2004. This order of Vice-Chancellor was challenged by one Raja Abdul Hakim through a writ petition in the AJ&K High Court which was dismissed. During the pendency of the writ petition the Syndicate realized that the circler passed by the Vice-Chancellor is without jurisdiction, therefore, the Syndicate withdrew the medical allowance facility vide Notification dated 26-6-2001. After dismissal of writ petition an appeal was filed before this Court, which was accepted vide judgment dated 21-6-2002, whereby it was declared that the Vice-Chancellor has no jurisdictional competence to withdraw the medical allowance facility granted to the pensioners by the Syndicate. However, the Supreme Court declared that the order of withdrawal of medical allowance facility issued by the Syndicate on 26-6-2001 is valid one. It was further laid down- in the judgment that the medical allowance facility was validly granted in favour of the pensioners on 28-5-1994 and it remained valid upto 26-6-2001. The Notification of Syndicate dated 26-6-2001 is not retrospective it is prospective and appellant/petitioner was declared entitled to receive the benefit upto 26-6-2001.
10. The learned counsel contended that the Vice-Chancellor and Syndicate were necessary parties in the writ petitions. Petitioners in the High Court have not arrayed them as party, therefore, the writ petitions were not competent. In the present case, after the judgment of his Court in Raja Abdul Hakim's case, the respondents who are retired pensioners and were entitled to receive the medical allowance submitted their medical allowance bills for which they were declared entitled to by this Court to the Director Finance AJ&K University, who refused to pay the bills, whereupon they filed writ petitions for issuance of direction to the Director Finance that the medical allowance shall be paid.
It may be observed that necessary party is that in absence of whom no adjudication can be made or no effective order/decree can be issued or any party who is directly affected from the order/judgment is called the necessary party. In the present case the Director Finance refused to pay the bills and he was the only necessary party. The Vice-Chancellor has issued no order nor any relief was sought against him or the Syndicate, therefore, the argument has no force, it is hereby repelled.
11. The next contention of the learned counsel for the appellant is that no law existed for the payment of medical allowance at the time when the writ petitions were filed. As it has been stated above that the medical allowance facility was sanctioned in favour of the pensioners of AJ&K University by the Syndicate on 28-5-1994 through Notification after issuance of which a right has accrued to the pensioners of the University to receive the medical allowance. Right once accrued cannot be withdrawn arbitrarily. This Court has already declared that the Syndicate was competent to withdraw the medical facility and it ratified the Notification dated 26-6-2001. This Court also declared that the pensioners are entitled to receive the medical allowance during the intervening period, i.e, 28-5-1994 to 26-6-2001, therefore, there is no question that the law was not in existence when the writ petitions were filed. It was a vested right of the pensioners to receive the benefit. This Court in a case titled Raja Shoukat Mehmood v. Azad Jammu and Kashmir Government through its Chief Secretary Civil Secretariat Muzaffargarh and another 2003 PLC (C.S.)
424 has observed as under:--- ....... The case of appellant was recommended for out of turn promotion by the Inspector General of Police on 26-3-1990. The recommendations were approved by the Prime Minister on 16-5-1991. On both these dates section 8-A was a part of Act, 1976. On account of these reasons aright had accrued to the appellant which could be enforced by him through a Constitutional petition in the High Court as is laid down by this Court in cases reported as Mir Abdul Hamid v. Azad Government and 2 others 1997 PLC (C.S.) 805 and Ejaz Ahmad Awan and 5 others v. Syed Manzoor Ali Shah and another 1999 PLC (C.S.) 1439 ...."
As the pensioners have already been declared entitled to receive the medical allowance, the filing of the writ petitions at later stage for I enforcement of that right would not affect their vested right.
12. The third contention of the learned counsel for the appellant is that the writ petitions filed by the respondents, herein, in the High Court were hit by the doctrine of laches. The learned counsel contended that he argued the point in the High Court but it was not resolved by the learned Judge in the High Court. He has taken the point in the memo. Of appeal and also filed affidavit to this effect, therefore, he has a right to argue the point of laches. His contention is that the medical allowance was sanctioned by the Syndicate on 28-5-1994 which was withdrawn by the Vice- Chancellor on 9-6-1994. The respondents kept silent and never challenged this order of the Vice- Chancellor. The order oj Vice-Chancellor was challenged by Raja Abdul Hakim by way of writ petition, after acceptance of the appeal of Raja Ayyaz, the respondents remained silent for a period of more than one year and in the case, of Raja Fazal Hussain Rabbani after two years, they submitted the medical allowance bills to the Director Finance and on his refusal filed the writ petitions. The writ petitions have been filed after a period of nine years after the order of Vice- Chancellor, as such, these are hit by the doctrine of laches. We have perused the writ petitions, as stated earlier that the writ petitions were filed after the Director Finance refused to pay the medical allowance to the respondents, herein. In the writ petitions the order of Vice-Chancellor dated 9-6- 1994 was not challenged nor was any order of Syndicate challenged, only a direction was sought from the Court on the basis of judgment delivered by this Court in Raja Abdul Hakim's case for payment of medical allowance. The medical allowance facility which was sanctioned in favour of pensioners is a part of pensionary benefit. Once it becomes due it has to be paid to the pensioners and question of limitation or laches does not arise at all In case titled Rao Solat Yasin Khan v.
Director-General, Federal Directorate of Education, Islamabad and 2 others 1995 PLC-(C.S.) 1026, it has been held as under:--- ' As regards the question of limitation, the learned counsel for the appellant has also submitted an application for condonation of delay. In this connection we are of the view that this Tribunal has always taken a view that in matters of pay and pension, the bar of limitation is not applicable. In support decisions of this Tribunal in 1983 PLC (C.S.) 386 and 1987 PLC (C.S.) 181 are referred to the same view was taken by this Tribunal in 1986 PLC (C.S.) 66 which was also upheld by the Supreme Court of Pakistan...........
' This Court while deciding Abdul Hakim's appeal has declared that the Vice-Chancellor has no jurisdictional competence to withdraw the medical allowance granted by the Syndicate, as long as the Notification remains intact all the pensioners are entitled to receive the same irrespective of the fact whether they challenge the order of Vice-Chancellor or not. Our above view is followed fortified by the judgment of the Supreme Court of Pakistan delivered in case titled as 1996 SCMR 1185, in which is was observed as under:--- ' We may observe that if the Tribunal or this Court decides a point of law relating to the terms of service of a civil servant which covers not only the case of the civil servant who litigated, but also of other civil servants, who may have not taken an legal proceedings, .In such a case, the dictates of justice and rule of good governance demand that the benefit of the above judgment be extended to other civil servants, who may not be parties to the above litigation instead of compelling them to approach the Tribunal or any other legal forum."
' While dealing with the same proposition in a case reported as Abdul Qayoom Soomro v.
Government of Sindh through Chief Secretary and another 1995 PLC (C.S.) 1137, it was observed as under:--- Although the appellant was not party to the judgment of the Supreme Court delivered in Agha Rafiq Ahmed's case, yet he was certainly entitled to the benefit of that judgment. Because the judgment of the Supreme Court was a law binding on all concerned in the identical cases.
However, the judgments of lower Courts (other than High Court and Supreme Court) do not enjoy such authority, as they bind only the parties in whose cases they are delivered."
' The petitioners in the High Court were entitled to receive medical allowance from 28-5-1994 to 26- 6-2001 and on refusal a writ petition for enforcement of that right was competent and no question of laches arises in the case.
' The upshot of the above is that finding no force in these appeals, IG which are hereby dismissed with no order as to costs.