The supra titled writ petition has been addressed under Section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974 whereby a direction is solicited against respondents for payment of additional pension as Orderly allowance to the petitioner.
2. Precise facts forming background of the instant writ petition are that petitioner, herein, stood retired as Registrar B-22 Supreme Court of the Mad Jammu & Kashmir. It is averred that petitioner had been enjoying facility of Orderly till his retirement like Registrar of the Supreme Court of Pakistan, hence, he did not draw Orderly Allowance during service. It is further claimed that after retirement of petitioner Mr. Riaz Ahmed was promoted as Registrar Supreme Court B-22, who is receiving the Orderly Allowance from the date of his promotion a Registrar B-22 @ Rs.3000/- per month. It is stated that petitioner applied to Accountant General-Respondent No. 2 for payment of additional pension as Orderly Allowance vide letter dated 30.09.2010, however, the said respondent by relying upon letter dated 03.01.2011 issued by the Finance Department refused the same. It is contended that petitioner again applied to Accountant General-Respondent No. 2 through an application for payment of the disputed Allowance in light of pronouncement of the apex Court and on the basis of parity with the supreme Court of Pakistan but the respondent again refused to pay the same. It is urged that the employees of the High Court and that of the Supreme Court have been granted Secretariat Allowance as the officers of Secretariat are also drawing Orderly Allowance, hence, petitioner cannot be discriminated against under law. It is further submitted that Orderly Allowance is mentioned in Budget Book of the Supreme Court of Pakistan and has also been sanctioned for the employees of the apex Court of Azad Jammu & Kashmir, hence, the instant constitutional petition.
3. The respondents contested the petition by filing written statement on 11.11.2011 wherein it is stated that only the employees of the Secretariat are entitled to receive Orderly Allowance. It is further stated that petitioner was enjoying facility of Orderly and did not receive Orderly Allowance during his service, therefore, he cannot be granted additional pension. It is alleged that only the officers of B-20, and above working in the Secretariat who have been receiving Orderly Allowance during service are entitled to additional pension, however, the petitioner was neither receiving Orderly Allowance nor was secretariat employee, therefore, was not entitled to additional pension.
4. The learned counsel representing the parties have filed written arguments, wherein almost same grounds raised in the pleadings were reiterated.
5. Admittedly petitioner is a retired Registrar B-22 of the apex Court of Azad Jammu & Kashmir. The petitioner claimed his entitlement for grant of Orderly Allowance on the basis of notification dated 19 June, 1997, which speaks as follows:-- "No. FD/R/1(13 Part-II/97 Azad Govt. of the State of Jammu & Kashmir Finance Department.
"Muzaffarabad"
Dated 19 June, 1997.
To,
1. The Additional Chief Secretary Azad Govt. of the State of All Secretaries to the Government Jammu & Kashmir Muzaffarabad Subject:GRANT OF. SPECIAL ADDITIONAL PENSION Sir, I am directed to refer to the subject cited above and to say that the President of Azad Jammu & Kashmir has been pleased to sanction a special additional pension equal to the admissible pre- retirement Orderly Allowance in favour of , retiring Government Officers in BPS.20 or above working in the Azad Jammu & Kashmir Civil Secretariat with effect-from 19.02.1991.
Yours Obedient Servant.
Kh Shafique Ahmed Deputy Secretary Finance, (Regulations)"
A bare reading of the above mentioned notification makes it clear that special additional pension equal to the admissible preretirement Orderly Allowance in favour of retiring Government Officers in BPS-20 or above working in the Azad Jammu & Kashmir Civil Secretariat was allowed. A perusal of order of refusal to extend benefit of Orderly Allowance in favour of petitioner by Accountant General-respondent further reveals that petitioner was declined the benefit of disputed Allowance on solitary ground that he was not an officer of Civil Secretariat, therefore, on the. basis of notification dated 19.06.1997, supra, was not entitled to additional pension. The assertion of respondents is contrary to basic provision of Section 4(15) of the Azad Jammu & Kashmir Interim Constitution Act, 1974, which postulates that all state subjects are equal before law and are entitled to equal protection of law. It reflects from notification ibid that it does not indicate as to why only the officers of Civil Secretariat have been given preference and there appears to be no rationale whatsoever, to give a preferential treatment to the officers of Civil Secretariat: If an executive order discriminates among certain classes, it becomes arbitrary, if it is not founded upon reasonable grounds, therefore, on, the basis of Fundamental Right No. 4(15), supra, the petitioner cannot be discriminated against on the basis of an officer of B-22 of the Azad Jammu & Kashmir Supreme Court. A similar point was considered by the Apex Court of Azad Jammu & Kashmir in a case reported as Azad Government & another u. Abdul Kabir Qureshi & others (1994 SCR 402). At page 413 it was held by their lordships as under: "It is evident from the above paragraph of the notification that it does not indicate as to why the employees of the Civil Secretariat, President's Secretariat, Prime Minister's Secretariat and the Azad Jammu & Kashmir Legislative Assembly Secretariat have been given preference over the respondents who, as has been held by the High Court, have to perform, if not more, at least, equally onerous duties as civil servant. There appears to be no rationale whatsoever to give a preferential treatment to the employees of secretariats mentioned in the notification and, thus, the classification made cannot be regarded as reasonable."
The principle of equality before law has been applied by the Supreme Court of Pakistan in matters of pay and pension in case of LA Sharwani & others V. Government of. Pakistan through Finance Division, Islamabad and others (1991 SCM R 1041). In the precedent case, it was held by the Supreme Court of Pakistan that in matters of pay and pension, there shall be no discrimination. The relevant para 20 of supra case is reproduced as under:-- "20. A perusal of the above-quoted revisions indicate that the benefit of the revisions in the pension referred to hereinabove at S. Nos. (i) (iii), (vi), (ix), (xi), (xiii), (xiv), (xv),(xviii), (xx), (xxi), (xxii) and (xxiii) of the above para. 19(a) was extended to all the pensioners irrespective of the date of retirement. It may also be pointed out that the benefit of raising the amount of cut off point from Rs.
1,000 to Rs. 2,000 with effect from 1.7.1980 and from Rs. 2,000 to Rs. 2,500 with effect from 1.8.1983 referred to hereinabove at S. Nos. (v) and (xii) of para 19(a) was not extended to the pensioners who retired prior to the above two specified 'dates and, therefore, they could have a legitimate grievance on the ground of discrimination. However, this anomaly and the discriminatory treatment was rectified by abolishing the cut off point with effect from 1.7.1985 referred to hereinabove at S. No. (xiii) of above para 19(a), which benefit was extended to all the pensioners irrespective of the date of retirement.
It may also be noticed that with effect from 1.7.1986 an additional benefit of 2% of pension for each year of service exceeding 30 years subject to a maximum of 10% pension sanctioned was given to the pensioners who retired after 30.06.1986 referred to hereinabove at S. No. (xvii) of para 19(a).
According to the list of documents furnished by Mr. Samdani, this benefit has not been extended to the. pensioners who retired prior to 1.7.1986. It may further be noticed that new National Pay Scales were introduced with effect from 1.3.1972 and were revised in April, 1977, then in June, 1981 with effect from 1.7.1981, then with effect from 1.7.1983 and then with effect from 1.7.1987, referred to hereinabove at Serial Nos. (ii), (iv),
(x) and (xix).
Whereas the case of the petitioner in C.P. No. 5.R of 1990 is that he has given benefit of all the above revisions except that he has been denied benefit under P.O. No. 5 of 1988, which benefit was extended inter alia to the High Court Judges, who retired on or after 17.1987".
6. The petitioner was granted facility of Orderly till his retirement, which fact pleaded in writ petition was not controverted by the other side. At the eve of retirement, the stand of respondents that petitioner is not entitled for additional pension as Orderly Allowance, as he was not officer of Civil Secretariat, is unfortunate for reason that the facility of Orderly was already granted to him which was never objected, therefore, after retirement such like objection of respondents is baseless, which is hereby turned down.
7. The Government of Pakistan to remove discrepancy amongst Secretariat and non-Secretariat retired Government Officers in B-20 and above has passed the following office memorandum.
"Government of Pakistan Finance Division (Regulations Wing)
No.F.1(2)-Reg. 6/91-Vol-DCIslamabad, the 24th December, 2012 OFFICE MEMORANDUM Subject: IMPLEMENTATION OF THE RECOMMENDATIONS OF PAY AND PENSIONS COMMISSION-2009 REGARDING SPECIAL ADDITIONAL PENSION AND PROVISION OF ORDERLY/DRIVER TO THE OFFICERS IN BPS-20 AND ABOVE ON RETIREMENT.
The undersigned in directed to say in terms of Para 2 of the Finance Division's O.M. No. F. 1(2). Reg.
6/91 dated 29th September, 1991, officers in BPS-20 and above on retirement are entitled to Special Additional Pension equal to the admissible pre retirement Orderly Allowance. This facility was further extended to all officers in BPS-20 and above who retired prior to 19.02.1991 on the orders of the Supreme Court of Pakistan: The rate of special additional pension remained fixed at the rate prevailing at the time of the officer's retirement and was not enhanced with the subsequent increases in the rate of Orderly Allowance.
2. The recommendations of Pay and Pension commission-2009 Establishment Division and request of retired government officers in BPS-20 in the above matter have been examined in the Finance Division intensely. On the basis of principle of equity and fairness, the competent authority has been pleased to approve that the retired officers in BPS-20 and above shall be paid special additional pension equal to the Orderly Allowance admissible to serving officers w.e.f. 01.01.2013 and that when ever the Government revises the rates of Orderly Allowance in future, the same increase shall be made applicable to the special additional pension of the retired officers.
Muhammad Shahid Ahmed, Ch. Deputy Secretary (Reg.III)"
The reading of the above office memorandum makes it clear that on the basis of principle of equity and fairness all the retired Government officers in BPS-20 and above, have been granted special additional pension equal to the Orderly Allowance admissible to serving officers. As per letter of Supreme Court of Pakistan dated April 26,2011 all the officers of Grade BPS-20 and above are drawing Orderly Allowance @ Rs. 3000/- per month. Even on the basis of notification dated 19.06.1997 discussed earlier in the instant judgment officers of grade BPS-20 and above in Azad Jammu & Kashmir Supreme Court are also receiving Orderly Allowance, therefore, petitioner is entitled to special additional pension as retired officer of grade BPS-22 of the Azad Jammu & Kashmir Supreme Court.
8. The crux of above discussion is that by accepting the instant writ petition, the respondents are hereby directed to grant special additional pension of Orderly Allowance to petitioner forthwith. The costs shall follow the eventualities.