' MUHAMMAD ATHER SAEED, J.---These two civil appeal with the leave of this Court have been filed to consider the same question as to whether the respondents in these appeals are entitled for the payment of orderly allowance and its inclusion in their pensionary benefits.
2. In Civil Appeal No,655-L of 2009 the appellants has filed civil petition for leave to appeal against two judgments of the learned Lahore High Court, Lahore one dated 30-4-2008 and the other dated 1-2-2008 and both were passed in Writ Petition No,2482 of 2005. The second judgment was passed in writ petition filed by the present respondent praying that it may be declared that he was entitled to orderly allowance in accordance with the provisions of letter issued by the. Finance Department, Government of Punjab No,FD.IC-2-25/78 dated 2nd March, 1986 and was also entitled for its inclusion in pensionary benefits as per the letter of the Government of Punjab, Finance Division No,FD.SR.III 4-131/2001 dated 7th April 2003, whereby the learned Lahore High Court allowed the writ petition and declared that respondent was entitled to orderly allowance with effect from 2-2-2003 and the first judgment was passed correcting the date of the entitlement of orderly allowance by substituting the date 31-5-1994 for the date 2-3-2003.4 Obviously the second petition was barred by' limitation and an application for codonation of delay has been filed which will also be 'considered by us in this judgment.
3. Civil Appeal No,717-L of 2009 has been filed impugning the judgment .Of the learned Lahore High Court, dated 20-5-2009 in Writ Petition No,12554 of 2005 filed by the present respondent in which the learned Lahore High Court held that respondent was entitled to orderly allowance and directed the present appellants to amend the notification dated 26-6-2008 according to which the entitlement of the respondent was recognized.
4. Initially leave was granted in Civil Appeal No,655-L of 2009 by this Court vide its order dated 4-9- 2009 which reads as under:-- "We have heard learned counsel for the parties and have gone through the judgment under challenge.
(2) Subject to question of limitation, leave is granted, inter alia, to consider whether having not availed the option of services of orderly or an allowance to the tune of Rs,800 per month in lieu thereof, could the respondent be granted the relief sought and whether could this allowance be counted towards pensionary benefits of the respondents?
(3) As only a short question of law is involved, office is directed to fix the main appeal before the year is out."
' In other civil appeal on the basis of above order, leave was granted in that case also.
5. Brief facts of the two appeals are that the respondent in the first appeal has retired as District and Sessions Judge and was at time of filing the petition before the learned Lahore(sic.) posted as Judge Banking Court. He retired from service on 2-3-2002 and had made an application for payment of orderly allowance with pension wherein he claimed additional benefit of pre- retirement orderly allowance from the date of retirement. The application of the respondent was refused as a result of which the respondent filed the writ petition on the basis of which the impugned judgment has been passed on 1-2-2008.
6. The respondent in Civil Appeal No,717-L of 2009 was serving as Member, Punjab Public Service Commission. He retired on 25-4-1997 and initially he and other members of the Punjab Public Service Commission had filed a writ petition before the learned Lahore High Court with regard to the question of tenure as a Member of the Punjab Public Service Commission and the salary to be drawn by them. This petition was allowed by the learned Lahore High Court on 9th January, 1998, however, since even after this judgment of the learned Lahore High Court the respondent was not allowed orderly allowance, he therefore, filed another petition which was disposed of by the judgment mentioned above.
7. We have heard Mr. M. Azeem Malik, learned Additional Advocate-General Punjab accompanied by Mr. Tariq Mohammad Mirza, Deputy Secretary Finance for the appellants in both civil appeals and Ch. Mushtaq Ahmed Khan, learned Senior Advocate Supreme Court for the respondent in Civil Appeal No,655-L of 2009 and Pir S.A. Rasheed, learned Advocate Supreme Court respondent in Civil Appeal No,717-L of 2009.
8. Learned Additional Advocate-General submitted that the orderly allowance was allowable only to those officers holding post in BSP-20 and above and were working in the Punjab Civil Secretariat who opt in writing for the grant of orderly allowance in lieu of residence orderly and such option has been communicated to the Audit Office and a certificate has been issued by the Audit Office to the effect that he was not provided orderly by the office. He submitted that the above respondents had neither exercised the option nor did they ever serve in the Punjab Civil Secretariat and therefore were not entitled to the orderly allowance. He submitted that as far as the inclusion of orderly allowance in the pensionery benefits is concerned, it has been provided in clause (iii) of the letter dated 7th April 2003 that retired officers in BPS-20, 21 and 22 will be allowed the specified additional benefit of pension equal jo admissible pre-retirement orderly allowance. He submitted that although the word working in the Punjab Civil Secretariat is not 'mentioned in this letter but the key word in this para is the word `admissible' and the admissibility or otherwise of the orderly allowance will, have to be determined on the basis of whether there was any entitlement of the respondents to receive orderly allowance during the term of their pre-retirement service and since on the basis of the earlier letter they were not entitled to receive orderly allowance during the period of their service as not being an officer in the service of Punjab Civil Secretariat, therefore, no orderly allowance was admissible to them and this benefit is not available to them. He therefore prayed that appeals may be allowed and the judgments of the learned High Court may be set aside.
9. On our query as, to the reasons for delay in the filing of civil petition for leave to appeal against the first judgment, he submitted that he did not receive intimation of the decision of the first writ petition in time. In fact it came to the knowledge of the petitioners/ appellants on 9-4-2008 on receipt of letter dated 5-4-2008 issued by the Deputy Registrar, Lahore High Court, Lahore. On receipt of this letter after requesting the Solicitor General of the Government of Punjab to issue directions to the Advocate-General Punjab for filing of civil petition for leave to appeal against that judgment and filed joint petition impugning the judgments dated 1-2-2008 and 30-4-2008 in which the date of payment of orderly allowance was changed without giving him any chance of hearing. He submitted that legal proposition in this case is of great public importance and requested that delay may be condoned.
10. Ch. Mushtaq Ahmed Khan, learned Senior Advocate Supreme Court for respondent in Civil Appeal No,655-L of 2009 did not contest the' judgment of 30-4-2008 in which the date of implementation of the judgment was corrected but submitted that he was entitled to receive orderly allowance as part of his pensionary benefits and therefore strongly opposed the arguments of the learned counsel for the appellants on the earlier judgment. He first challenged the petition against the earlier judgment as barred by time and submitted that the judgment was announced in open Court on 1-2-2008 and the claim that present appellants did not know about the judgment is frivolous as the appellants were represented by a counsel at the time of hearing of the petition and it was his duty to follow the petition till the judgment is announced and get a copy of the same. He, therefore, prayed that due to delay in filing the petition a valuable right had accrued in favour of the respondent and therefore there is no basis for allowing the condonation of delay application and condoning the delay in filing of this appeal.
11. Adverting to the merits of the case, he referred to the letter dated 7th April, 2003 and pointed out that clause (iii) which deals with the additional pension to the retiring officer only categorizes the officers to the extent of grade i,e, BPS-20, 21 and 22 but there is no classification in this letter that only those officers who had served in the Punjab Civil Secretariat are entitled to this pensioney benefit, therefore, government officers in BPS-20, 21 and 22 were entitled to additional pension equal to the pre-retirement orderly allowance. He also pointed out that a copy of this letter dated 7-4-2003 has also been addressed to the Registrar, Lahore High Court, Lahore which means that this letter is also applicable to the government officers serving in the judiciary of the learned Lahore High Court. He, therefore, submitted that both on limitation and merits of the case, the appellants have no case and therefore prayed that the appeal may be dismissed.
12. Pir S.A. Rasheed, learned Advocate Supreme Court for the respondent in Civil Appeal No,717-L of 2009 submitted that respondent was serving as a Member, Punjab Public Service Commission and his tenure and entitlement of salary has already been settled by the learned Lahore High Court in its earlier judgment dated 9-1-1998. However, despite this judgment an order was issued by the Government of Punjab No,SI.PF-E-86/94 dated 26th June, 1998 whereby his salary has been fixed in BPS-21 but orderly allowance was excluded. Aggrieved by this order he had filed a petition before the learned Lahore High Court, Lahore and the learned Lahore High Court by. The impugned judgment had declared him entitled to the orderly allowance and directed the present appellants to amend the notification dated 26-6-1998 accordingly. He submitted that being Member of the Punjab Public Service Commission he was for all practical intents an officer working in the Punjab Civil Secretariat and therefore even if the orderly allowance was only available to the officer working in the Punjab Civil Secretariat in BPS-21 and 22, he was entitled to it and the. Learned Lahore High Court has rightly concluded that he was entitled to it. He submitted that the respondent was a BPS-21 officer and the officers serving in the Punjab Civil Secretariat are also drawing the same benefits in the same grade and therefore there is no legal distinction between the officers in the Punjab Civil Secretariat and non-secretariat and if there was, it has been removed by the introduction of unified pay scales and therefore, he has been discriminated and his case falls under Articles 4 and 25 of the Constitution of the Islamic Republic of Pakistan 1973. He therefore prayed that this appeal being merit-less may be dismissed.
13. We have examined the case in the light of the arguments of the learned Law Officer and learned ASCs and have carefully perused the records of the case including the impugned judgments.
14. Before we examine the case on merits, we would first like to dispose of the application for condonation of delay filed by the appellants in Civil Appeal No,655-L of 2009. Although the reasons enumerated in the condonation of delay application are not very convincing but at the same time,it is established fact that the matter is of public importance and will affect a number of government employees. Even otherwise in Civil Appeal No,717-L of 2009 which has been filed, within time, we are already adjudicating on this proposition of law. Whenever this Court is faced with such a situation, it has used its discretion to condone the IA delay and decide the case on merits. In this connection we rely on the judgment of this Court in the case of Commissioner of Income Tax and others v. Messrs Media Network and others reported in PLD 2006 SC 787 where this Court has held as under:-- "35. Some of these cases such as Civil Appeals Nos,282, 299 to 309,312 to 315,835, 837, 840, 842, 844/2004, 1211, 1212, 1213, 1214, 1641, 1704/2005 have been filed after the expiry of limitation period.
They are accompanied by the applications for condonation of delay. Since the other appeals were filed within limitation period, therefore, we condone the delay in all such appeals for the reasons stated in the applications for condonation of delay and by following principles laid down in the cases of Sheikh Muhammad Rashid (supra), Ch. Manzoor Elahi (supra), Mehreen Zaibun-Nisa (supra), Fazal Elahi and others (supra) and Province of Punjab v. Muhammad Tayyab and others (supra) and Ali Muhammad (supra) referred to by Mr. Shahid Hamid, Senior Advocate Supreme Court are distinguishable from the facts of these cases."
15. Now coming to the merits of the case, we are of the opinion that the two letters dated 2-3-1986 and 7-4-2003 by which the provisions of grant of orderly allowance and its inclusion in the pensionery benefits has been specified are the documents on the interpretation of which will hinge the decision of these appeals. These letters are reproduced as under:-- "TO BE SUBMITTED BEARING SAME NUMBER ' NO, FD. IC-2-5/78 ' GOVERNMENT OF THE PUNJAB FINANCE DEPARTMENT ' Dated Lahore, the 2nd March, 1986.
' From: ' G.M. Afzal, ' Finance Secretary to the Government of the Punjab.
' To: ' All the Administrative Secretaries to the Government of the Punjab.
' SUB: RESIDENCE ORDERLY OR OREDERLY ALLOWANCE TO OFFICERS IN BS-20 AND ABOVE WORKING IN THE PUNJAB SECRETARIAT ' Sir, ' I am directed to refer to SGA & ID's letter No,C-I.1-2/7, dated the 17th May, 1977, and to state that it has been decided the officers holding posts in scale 20 or above, working in the Punjab Civil Secretariat, will henceforth have the option either of having a residence orderly from the existing sanctioned strength of their department or a residence orderly allowance at the rate of Rs,800 p.m.
The orderly allowance shall be regulated in the following manner:- ' The option for orderly allowance shall be exercised, in writing and will be communicated to the audit office.
' Those opting for the orderly allowance would furnish a certificate to the audit office to the effect that they have not been provided with an orderly by the office or have surrendered the orderly already provided to them.
' Your Obedient Servant ' SD/- (MUNAWAR HUSSAIN) DEPUTY SECRETARY (PC) For/Finance Secretary.
' No, & Date Even: ' A copy is forwarded for implementation and necessary action to the Accountant General, Punjab, Lahore.
' SD/- (FAZAL D. CHAUDHRY) UNDER SECRETARY (IC)
' No, & Date Even: ' Copy is forwarded for information and necessary action to:-
(1) The Finance Secretary, Govt. Of Sindh, Karachi.
(2) The Finance Secretary, Govt. Of N.-W.F.P., Peshawar.
(3) The Finance Secretary, Govt. Of Balochistan, Quetta.
(4) The Finance Secretary, Govt. Of Azad Jammu and Kashmir, Muzaffar Abad.
(5) P.S. To F.S. Sd/- (FAZAL D. CHAUDHRY) UNDER SECRETARY (IC)"
"No, FD.SR.III 4-131/2001 GOVERNMENT OF THE PUNJAB FINANCE DEPARTMENT April 7, 2003 From: Mr. Salman Siddique, Secretary to Government of the Punjab, Finance Department.
(1) All Administrative Secretaries of the Punjab Government.
(2) The Secretary to Chief Minister Punjab, Lahore.
(3) The Secretary to Governor Punjab, Lahore.
(4) All Heads of Attached Departments in the Punjab.
(5) All District Nazims in the Punjab.
(6) All the District Co-ordination Officers in the Punjab.
(7) The Registrar, Lahore High Court, Lahore
(8) The Secretary Punjab Provincial Assembly, Lahore.
(9) The Secretary Punjab Public Service Commission, Lahore.
(10) The Director-General, Audit and Accounts (Works), Lahore.
(11) The Director-General, Audit Punjab, Lahore.
(12) The Registrar, Punjab Service Tribunal, Lahore.
' Subject: Retiring Benefits to Superannuating Government Servants ' I am directed to refer to the subject noted above and to state that Governor of the Punjab has been pleased to allow the following retiring benefits to the superannuating government servants of BS-20 and 21 and 22 with immediate effect:
(i) Retention of Government Accommodation ' A retiring Government servant will be entitled to retain the Government accommodation allotted to him after his retirement up to the date of superannuation plus 6 months. In case the retired Government servant dies during this period, this facility shall be extended to the family of the deceased for the corresponding period;
(ii) Private Jobs ' A retiring Government officer shall be permitted to undertake a private job (except a job under foreign Government) or to carry on private business in partnership with other party during LPR and thereafter. Such permission will be given by the Government liberally; and
(iii) Additional Pension ' A retiring Government Officer in BPS-20, 21 and 22 will be allowed a special additional pension equal to the admissible pre-retirement orderly allowance.
' Your obedient servant, ' Sd/- (Syed Munawar Qadeer)
Deputy Secretary (SR)
' No, and Date Even ' A copy is forwarded for information and necessary action to:--
(1) The Accountant-General Punjab, Lahore.
(2) All the District Accounts Officers in the Punjab.
' Sd/- ' SECTION OFFICER (SR-III)
' No, and Date Even ' A copy is forwarded to all Additional Secretaries/Deputy Secretaries and Under Secretaries/Section Officers in the Finance Department.
' Sd/- ' SECTION OFFICER (SR-III)"
' The first letter dated 2-3-1986 is very simple and its provisions lead to only one interpretation i,e, orderly allowance will only be available to officers of BPS-20, 21 and 22 working in the Punjab Civil Secretariat who follow certain procedure. Thus from a bare reading of this letter it is clear that officers who have been working in the Punjab Civil Secretariat are only ones entitled to orderly allowance.
16. Now we take up the letter dated 7-4-2003, clause (iii) of this letter which he highlighted provides for the payment of additional pension equal to the admissible pre-retirement orderly allowance. As pointed out by the learned counsel for the appellants the important word in this clause is "admissible" and the interpretation of this clause which emerges is that only those officers are entitled to this additional benefit to whom orderly allowance was admissible during the pre- retirement service. We have already held that the respondents not being officer in Punjab Civil Secretariat were not entitled to orderly allowance during the service and therefore the same is not admissible to their post-retirement benefits and therefore they are not entitled to additional pensionery benefits on the basis of non-admissibility of orderly allowance in pre retirement service.
17. Coming to the arguments of the learned counsel for the respondent in Civil Appeal No,717-L of 2009 that the respondent was serving as Member, Punjab Service Commission and was for all practical purposes an officer working in Punjab Civil Secretariat. We are of the clear view that the orderly allowance will only be admissible to officers who have actually served in the department in Punjab Civil Secretariat and not those who may be on the same footing in some other department.
We are also clear in view that there is no discriminatory treatment meted out to the respondent as there is no unfair classification as there may be valid reasons for allowing orderly allowance to the officers serving in the Punjab Civil Secretariat which may not be valid for other department. Even otherwise the officers working in different departments fall in different classes and cannot be categorized as a composite class.
18. We, therefore, are of the considered opinion that both the impugned judgments cannot be sustained. These appeals are therefore allowed and both the impugned judgments are set aside.
Order accordingly.