' ANWAR ZAHEER JAMALI, J.-- Leave to appeal is sought by the petitioner against the order of a Division Bench of High Court of Sindh dated 1-4-2009, passed in C.P.No,D-409 of 2007, whereby, the said petition was partly allowed, to the extent of benefit of ad hoc relief of Rs,100 and the remaining claim of the petitioners, as regards inclusion of cost of living allowance @ 7% of the basic pay for the purpose of pensionary benefit, was dismissed.
2. Facts, divulged from the material placed on record, are that after unsuccessfully pursuing their remedy before different departmental forums regarding calculation of cost of living allowance @ 7% of basic pay and ad hoc relief of Rs,100 towards the pensionary benefits, the petitioners had instituted C.P.No,D-409 of 2007, before the High Court of Sindh on 13-3-2007, and amended it on 9- 3-2009, with the following prayer:-- "It is, therefore, respectfully prayed that this Honourable Court may be pleased to order the above named respondents to calculate the cost of living allowance @7% of the basic pay of the petitioners and Rs,100 in terms of letters of Finance Division dated 7-4-2006 and 16-3-2006 vide annexures F&G as a part of their pay, which they were in receipt on the day of their retirement as pensionary benefits."
3. This petition, when came up for hearing before the High Court of Sindh at Karachi, was dismissed in terms of the impugned order, inter alia, for the following reasons:- "As regards the claim of the petitioners that the retirement benefit be calculated by including cost of living allowance @7% it may be noted that such cost of living allowance was specifically excluded from being part of emolument of the petitioners for the purpose of calculation of pension and such fact is reflected from the respondent's memorandums dated 23-7-1995 and 26-1-2000, filed with the petition as Annexure A & C. The petitioners' counsel admits that the cost of living allowance of 7% is not being treated as part of emolument of any of the employees of the respondents for the purpose of calculation of the pension. No law has been shown by the learned counsel for the petitioners to substantiate his plea that the cost of living allowance of 7% should be the part of emoluments of the petitioners for the calculation of their pension. Rather two memorandums attached with the petition by the petitioners apparently seems to have been accepted by the petitioners as they did not challenge them in any forum when they were issued."
4. Mr. Abrar Hussain learned counsel for the petitioners, making reference to various documents placed on record on behalf of the petitioners contended that the petitioners are poor retired employees of Pakistan Railways, who are now depending upon their retirement /pensionary benefits for the purpose of survival. Admittedly, vide notification dated 23-7-1995, the President of Pakistan was pleased to sanction the benefit of cost of living allowance of 7% of the basic pay to all the employees of Pakistan Railways in BPS 1 to 22 with effect from 1-6-1995, which remained in force till issuance of second notification dated 2-9-2001, whereby, while introducing revised pay scales, with effect from 1-12-2001, the said cost of living allowance @ 7% of the basic pay, was withdrawn/discontinued. He further contended that once for a period of over six years such cost of living allowance @ 7% of the basic pay formed part of the salaries of the petitioners, it was also liable to be included and considered as part of their salaries for the purpose of determining their retirement/pensioner benefits.
5. When confronted with the very contents of the notification dated 23-7-1995, which clearly provide that the said allowance was not to be treated as part of emolument of the employees for the purpose of calculation of pension and recovery of house rent, learned counsel did not dispute this factual aspect of the matter. However, making reference to another notification of ad hoc relief of Rs,100 per month with effect from 1-1-2000, which also contained a similar clause, he urged that in respect of such ad hoc relief, the pensioner benefits have been allowed to the petitioners by the Honorable Supreme Court of Pakistan and, therefore, no discrimination can be made for the purpose of extending the benefit of 7% cost of living allowance, earlier availed by the petitioners.
6. Keeping in view the above submissions of the learned counsel, we have carefully perused the material placed on record and noticed that, through the benefit of 7% of the basic pay as cost of living allowance and ad hoc relief of Rs,300 per month and Rs,100 per month were discontinued/withdrawn by the Government of Pakistan, vide same notification dated 4-9-2001, on introduction of revised pay scales with effect from 1-12-2001, but thereafter, admittedly, the claim for pensioner benefit was pursued by the petitioners, only in respect of sum of ad hoc reliefs and not in respect of 7% of the basic pay, as cost of living allowance. There is no plausible explanation in this regard, offered by the petitioner, except some correspondence, that too relating to the pensioner benefits, depending upon ad hoc relief of Rs,300 Rs,100. It seems that, at the time of introduction of revised pay scales with effect from 1-12-2001, said cost of living allowance @ 7% of the basic pay was absorbed in the new pay scales, and for this reason, the petitioners remained contended and satisfied, and did not pursue the matter in this regard. Even if the factual position is not so, the fact remains that after the notification dated 4-9-2001, and even after retirement of the petitioners, they remained mum for an indefinite long period till the filing of their petition before the High Court in the month on 13th March, 2007. For this inordinate delay, amounting to laces, there is no satisfactory explanation offered by the petitioners. Moreover, on facts too, we have not been impressed by the submissions of Mr. Abrar Hassan, about claim of the petitioners for grant of retirement/pensioner benefits, on the basis of cost of living allowance @ 7% of the basic pay as it was only possible in case there was no specific negation of such relief from the language of the said notification, which in this context, clearly provided as under:--
(c) The above allowance will not be treated as part of emolument for the purpose of calculation of pension and recovery of house rent.
7. For the reasons recorded above, leave to appeal is refused and this petition is dismissed.