' UMAR ATA BANDIAL, CJ. The petitioner was appointed Judge of the Lahore High Court on 04.08.1994.
Whilst holding the said office, he was appointed on 06.09 2002 as an adhoc Judge of the Hon'ble Supreme Court of Pakistan under Article 182(b) of the Constitution. He held that office until 31.12.2003 which is the date of his superannuation as Judge, Lahore High Court. The petitioner's total service as Judge, Lahore High Court after including his service as adhoc Judge of the Hon'ble Supreme Court comes to 09 years, 04 months and 24 days.
2 The petitioner was again appointed as adhoc Judge of the Hon'ble Supreme Court on 13 09.2005 for a period of one year. This appointment was made in exercise of power under Article 182(a) of the Constitution.
3 The petitioner receiving pension for service rendered in judicial office of paragraph 15 of the High Court Judges (Leave, Pension and Privileges) Order. 1997 ("P.O. 3 of 1997"). The rate of pension drawn by him is 78% of his salary: representing 8% accretion for 04 years, 04 months and 24 days of service as Judge of the High Court above the threshold level of five years of such service which receives 70% of the salary last drawn.
4 The claim of the petitioner is that by including the period of his service as ado Judge of the Honble Supreme Court commencing 13.09 2005 until 12.09.2006 he has in fact rendered 10 years 04 months and 24 days of service. Accordingly, the petitioner should receive an additional 2% of his salary last drawn as increased pension on account of said period of one year served as adhoc Judge of the Hon'ble Supreme Court.
5. The petitioner first wrote to the respondent No, 3 Accountant General, Punjab ("respondent No, 3") on 30.10.2007 observing that his pension payment order No, 239143/R-III issued in his favour in September-2007 omits his service as adhoc Judge of the Hon'ble Supreme Court of Pakistan commencing 13.09.2005 until 12.09.2006. A request was made for the said period to be included in the length of the petitioner's service for fixation of the amount of his pension under Paragraph 15 of the P.O. 3 of 1997. A reminder to the same effect was sent on 03 12.2007. The respondent No, 3 answered on 12.12.2007 with the comment that the petitioner's request fell within the audit jurisdiction of the AGPR, Islamabad. This was disputed by petitioner. Accordingly, the respondent No, 3 referred the matter to the respondent No, 2, Controller General of Accounts, Islamabad ("respondent No, 2") for opinion on the request made by petitioner. The respondent No, 2 vide letter dated 09.02.2008 referred the matter for legal opinion to the respondent No, 1, Secretary, Ministry of Law, Justice and Human Rights Division, Islamabad. In paragraph 4 of his letter of referral, the respondent No, 2 states his position in the matters.
' This Office is of the view that his services as adho Judge of the Supreme Court of Pakistan may be sidered as "service of Pakistan" within the meaning of Paras 14 & 15 of P.O. 3/1997 read with Article 260 of the Constitution but "any services of Pakistan" cannot be counted towards the service from where he had already been retired. Moreover, Para-20 of P.0.3/1997 seems relevant and pension of the concerned judge may be held in abeyance during his posting as adhoc Judge of Pakistan."
6. By letter dated 30.06.2008 the respondent No, 1 expressed his agreement with the view given by the respondent No, 2 in the above quoted paragraph 4 of his letter dated 09.02.2008. The letter dated 30.06.2008 by the respondent No, 1 ("impugned action") was conveyed to the petitioner by respondent No, 3 on 23.09.2008. It is reproduced below:--- "Government of Pakistan Law and Justice Division No,F.3(1)/2008-All Islamabad, the 30th June, 2008 From: Mumtaz Ahmed, Section Officer.
To: Ch. Bashir Ahmed, Assistant Controller General (Regulation), Office of the Controller General of Accounts, CGA Complex, 4th Floor, G-5/2, Islamabad.
Subject: FIXATION OF CORECT AMOUNT OF PENSION.
Dear Sir, ' I am directed to refer to the Office of Controller General of Accounts letter No 3709/CGA/Reg/8- 1/36/2008, dated 09.02.2008 and subsequent reminders dated 21.02.2008 and 19.06.2008 on the above subject.
2. The matter has been examined in detail in the Law and Justice Division. This Division endorses the views of Controller General of Accounts as contained in para 4 of their letter dated 09.02.2008 referred to above.
' Yours faithfully, (Mumtaz Ahmed) Section Officer."
7. Having been declined relief by the Federal Government on 18.04.2009 the petitioner approached the Hon'ble Chief Justice of Pakistan with his abovementioned request duly substantiated with grounds. The petitioner's case was considered by learned Full Court of the Hon'ble Supreme Court.
Their deliberations in the matter were conveyed to the petitioner by the Registrar, Supreme Court of Pakistan vide letter dated 08.12.2012 given below:--- ' Subject: FIXATION OF CORRECT PENSION BY ACCOUNTANT GENERAL PUNJAB - PENSION PAYMENT ORDER No, 239143/R-III, ("PP').
' Dear Sir, With reference to your letter dated 18.04 2009, I am directed to inform you that the subject matter came under discussion before the Full Court Meeting held on 15.11.2012 and after discussing the matter at some length, the Full Court observed that it is not appropriate to give its opinion on the subject. Hence filed the letter."
(emphasis supplied)
8. It is submitted by learned counsel for the petitioner that the avenues of relief available to the petitioner, namely, the Federal Government and the. Hon'ble Supreme Court of Pakistan were both approached and exhausted by the petitioner. The Hon'ble Supreme Court reserved its opinion in the matter on the ground of propriety. In the circumstances, the petitioner has a right to avail legal remedies for seeking redress. That the matter in issue is purely one of interpretation of the Constitution and the law; for that reason the petitioner is entitled to approach this Court in its Constitutional jurisdiction.
9. In answer to notices issued, the respondent No, 1 Federal Government, has filed report .And parawise comments that take three objections to the relief prayed. Firstly, that there is a break of about 2 years in service of the petitioner between the date of his superannuation or 31.12.2003 and his second appointment on 13.09.2005 aE adhoc Judge in the Hon'ble Supreme Court. Secondly paragraph 15 of the P.O. 3 of 1997 does not envisage payment of pension attributable to a period of adhoc service Such service is akin to appointment on contract and is no regular service. Thirdly, the definition of the term "Judge" it the Supreme Court Judges (Leave, Pension and Privileges) Order.
1997 ("P.O. 2 of 1997") does not include an adhoc Judge of the Supreme Court of Pakistan. Finally, in an additional report, it is also objected that the petitioner's service as adhoc Judge of the Hon'ble Supreme Court is not pensionable because it attracts the provisions of paragraph 20 of P.0.3 of 1997. The learned Deputy Attorney General has reiterated the above noted points with reference to the documents available on record, the relevant provisions of the Constitution and of P.O. 3 of 1997
10. It would be useful to consider the provision of the Constitution that describes the office held by the petitioner in the Hon'ble Supreme Court. Article 182 of the Constitution reads:--- "182. Appointment of ad-hoc Judges. If at any time it is not possible for want of quorum of Judges of the Supreme Court to hold or continue any sitting of the Court. Or for any other reason it is necessary to increase temporarily the number of Judges of the Supreme Court, the Chief Justice of Pakistan in consultation with the Judicial Commission as provided in clause (2) of the Article 175A, may. In writing,-
(a) with the approval of the President, request any person who has held the office of a Judge of that Court and since whose ceasing to hold that office three years have not elapsed; or
(b) with the approval of the President and with the consent of the Chief Justice of a High Court, require a Judge of that Court qualified for appointment as a Judge of the Supreme Court to attend sittings of the Supreme Court as an ad hoc Judge for such period as may be necessary and while so attending an ad hoc Judge shall have the same power and jurisdiction as a Judge of the Supreme Court." (emphasis supplied)
11. With respect to the petitioner's entitlement to pension, the following prayer is made in the petition:-- "(a) Declare that the Petitioner is a retired Judge of the Hon'ble Supreme Court of Pakistan and is entitled to all benefits that accrue from such office under the Supreme Court Judges (Leave, Pension and Privileges) Order, 1997;
(b) Direct the Respondents to pay the Petitioner the outstanding amount of pension that is due to him under the Supreme Court Judges (Leave, Pension and Privileges) Order, 1997 and to provide all other benefits and privileges that accrue to a retired Judge of the Hon'ble Supreme Court of Pakistan;
(c) In the alternative, declare that the Petitioner was " in the service of Pakistan" for 10 years, 4 months and 24 days within the meaning of Paragraph15 of the High Court Judges (Leave, Pension and Privileges) Order, 1997 and is therefore entitled to 80% of the salary of a High Court Judge;
(d) Direct the Respondents to pay the Petitioner the pension amounts that, since the date he retired (i,e, 12.09.2006), have been illegally withheld from him;
(e) Grant any further relief that this Honourable Court deems fit in the facts and circumstances of the case".
12. During arguments, learned counsel for the petitioner has not pressed the prayer claiming a declaration of the petitioner's entitlement to pension as a retired Judge of the Hon'ble Supreme Court. On the other hand, he has prayed that on account of his service of one year as adhoc Judge of the Hon'ble Supreme Court, from 13119.2005 to 12.09.2006, he should receive accretion of 2% of his ermined salary in his pension as Judge of the Lahore gh Court. The said relief is primarily concerned with the meaning and effect of P.O. 3 of 1997 which governs the pensionary rights of the Judges of the High Court. Paragraph 15 of the P.O. 3 Hof 1997 deals with the matter of entitlement and grant of pension. It is reproduced below:- "15. Payable Pension.---The Chief Justice and a Judge on his retirement, resignation or removal as provided in paragraph 14 shall be entitled to the minimum amount of pension equal to seventy per cent of the salary determined by the President from time to time payable to the Chief Justice, or as the case maybe, a Judge on the completion of five years service for pension as Judge, and thereafter an extra pension at the rate of two per cent of such salary for each subsequent completed year of service as the Chief Justice or, as the case maybe, the Judge, including his service, if any, in the service of Pakistan the maximum pension not exceeding eighty per cent of the said salary." (Emphasis added)
13. It is the case of the petitioner that the period of one year from 13.09.2005 to 12.09.2006 served by him as adhoc Judge of the Hon'ble Supreme Court falls within the term "service of Pakistan" used in paragraph 15 ibid. Therefore, the petitioner is entitled to be given benefit of that service for the purpose of increase in his pension to the extent of 2% of his salary. In this behalf, the fact that the office of adhoc Judge of the Supreme Court is in the service of Pakistan is conceded by respondent No, 1 in the impugned letter dated 30.06.2008. The said concession is given by endorsing the view of the respondent No, 2 stated in paragraph 4 of his letter dated 09.02.2008.
The sai content of both letters have already been reproduced above For clarity and facility the comment made in the opinion dated 09.2.2008 is recalled:--- "services as adhoc Judge of the Supreme Court Pakistan may be considered as service of Pakistan within the meaning of Paragraphs 14&15 of P.0.3 ( 7997 read with Article 260 of the Constitution.
14. The position taken by the Federal Governed in the impugned letter dated 30.06.2008 with regard to the nature of the petitioner's service has the backing of law. I the case of Air Marshal (Retd). Muhammad Asghar Khan General, (Retd). Mirza Aslam Baig, Former Chief of Arm Staff and others (PLD 2013 S.C'01 at page 95) the Hon'ble Supreme Court has clearly enunciated the following principle.- "Besides the office of the President. The Judges Un. Chief Justices of the superior courts are also include in the scope of service of Pakistan by failing to make reference to them among the exclusions from Service of Pakistan' in Article 260."
15. Article 260 of the Constitution does not confirm the meaning of "service of Pakistan" to civil servants alone This is spelled out by the Hon'ble Supreme Court in Syec Abida Hussain v. Tribunal for N.A. 69, Jhang-IV and 2 other (PLD 1994 S.0 60). Any post or office having powers an functions exercisable in connection with the affairs of the Federation or of a Province falls within the term "service Pakistan". Consequently, the Hon'bie Supreme Court he that it was immaterial whether such service was contractual or a regular appointment. It is, therefore, if nature of functions performed in exercise of a public office that is relevant for determining whether such office is in if service of Pakistan or not. In the present case Article 182 the Constitution clearly provides that "an adhoc Judge shall have the same power and jurisdiction as a Judge of the Supreme Court.'
Therefore with respect to the performance of functions and exerciso of authority no distinction can be drawn between an adhoc Judge of the Supreme Court and a permanent Judge of that Court.
Applying the rule laid down in Air Marshall (Retd.) Asghar Khan's case to the said proposition. It is plain that the service of an adhoc Judge of the Hon'ble Supreme Court of Pakistan falls within the definition of the term "service of Pakistan" given in Article 260 of the Constitution. The expression "service of Pakistan' used in Paragraph 15 of P 0. 3 of 1997 bears the said defined meaning.
16. The respondents allege that the petitioner is .Disentitled to the pensionary benefit claimed because there is a break in his service from 31.12,2003, the date of his retirement as a Judge of Lahore High Court until 13.09,2005 when he was appointed as adhoc Judge of the Hon'ble Supreme Court. Discontinuity in service is clairried to disentitle him from receiving accretion in the amount of his pension.
17. Learned Deputy Attorney General has exemplified the said objection with reference to the definition of the word "Judge" given in P.0.2 of 1997. That definition is reproduced below:- "2(f) -Judge means a Judge of the Supreme Court and includes the Chiaf Justice, an Acting Chief Justice and an Acting Judge."
An Acting Judge is appointed under Article 181 of the Constitution. According to the learned DAG when a Judge of the High. Court is appointed as Acting Judge of the Supreme Court of Pakistan.
He is entitled to receive pension on account of the period of such service This is because he performs the duties of Judge of the Pakistan on an acting charge basis whilst he remains in regular service of the High Court. Therefore, such Judge is in regular service whilst performing the duties of Acting Judge of the Supreme Court of Pakistan. Consequently, he is specifically included in the definition of "Judge" in order to become eligible for drawing pension as Judge of the Supreme Court subject to satisfaction of the length of service requirement.
18. The objection taken by the learned DAG is irrelevant to the present case because the petitioner is not claiming pension as a retired Judge of the Hon'ble Supreme Court. Reference to the definition of Judge in P.0.2 of 1997 is, therefore, inapt. Be that as it may, the objection is considered since it is illustrative as to whether break in service before appointment as an adhoc Judge or an Acting Judge of the Supreme Court has any impact on the entitlement to or quantum of pension drawn by an appointee. The contention raised by learned DAG ignores the contents of the Explanation to Article 181(1) of the Constitution. By the said Explanation, it is clarified that even a retired Judge of the High Court may be appointed an Acting Judge of the Supreme Court of Pakistan. Therefore, the presumption that only a serving Judge of the High Court can be appointed as an Acting Judge of the Supreme Court is misconceived. When a retired Judge of the High Court is appointed to the said office, clearly there is a break in his service, nevertheless he remains entitled to receive pension as Judge of the Supreme Court under the terms of P.O. 2 of 1997.
19. Reverting to the facts of the present case and the applicable law. Thereto. It is noted that there is nothing in paragraph 15 of P.0.3 of 1997 which either requires service in Pakistan to be continuous with regular service as Judge of the High Court in order for the period of service in Pakistan to qualify the annual accretion to the pensionary amount for each successive year of such service. Nor does said paragraph require that service in Pakistan qualifying for pension must be rendered prior to the date of superannuation of a Judge of the High Court. Even in the context of P.O. 3 of 1997 the said objection raised by learned DAG does not have force.
20. The next objection raised by learned DAG is that an adhoc appointment is in the nature of a temporary appointment or a contract appointment. The Civil Service law in the Province of Punjab has dealt with such an appointment in the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. Rule 22 thereof makes provision for adhoc appointments being made:- "for a period not exceeding one year pending nomination of a candidate by the selection authority".
' According to the learned DAG the second proviso to Rule 22(2) is presently material. It is to the following effect:- "Provided further that ad hoc appointment shall not confer any right on the person so appointed in the matter of regular appointment to the same post nor the service will count towards seniority in the grade."
21. From the second proviso to Rule 22, learned DAG infers that all adhoc appointments do not carry pensionary rights which are an incident of regular service.
22. About the said objection, it needs to be mentioned that the provincial law relied by learned DAG has neither textuai nor contextual relevance for interpreting P.O. 3 of 1997 dealing with pensionary rights of High Court Judges. P.O. 3 of 1997 is a special law. There is no ambiguity or vagueness in its terms that may necessitate external aids for interpretation thereof. Equally, P.O. 3 of 1997 does not by specific , exclude service rendered as an adhoc Judge of the Supreme Court from being counted towards accretion in 'pensionary benefits of a High Court Judge. In any event, the second proviso to Rule 2221 ibid denies an adhoc appointee the right to claim regular appointment in service or to seniority in service after regularization. It is not concerned with pensionary rights which are in issue in the present case. Consequently the second objection taken by the learned DAG is also without merit.
23. Finally, with reference to objection based on paragraph 20 of P.O 3 of 1997, the contents thereof provide the clear answer. These are:--- `20. Abeyance pension.--- The pension admissible to a Judge under this Order shall be held in abeyance on his appointment as a Judge of the Supreme Court and shall cease to be payable if on his retirement as a Judge of the Supreme Court. He is entitled to pension as Judge of that Court. '
24. In the present case, there is no claim by the petitioner for payment of pension under P.0.3 of 1997 during his tenure as adhoc Judge of the Supreme Court, Nor is there any claim or determination that the petitioner is entitled to pension as Judge . Of the Hon'ble Supreme Court Paragraph 20 of P 0.3 of 1997 is totally irrelevant to the present controversy.
25 In view of the foregoing discussion, it is clear that the petitioner, who rendered service as adhoc Judge of the Hon'ble Supreme Court of Pakistan during the period 13.09 2005 until 12.09.2006, was discharging functions and duties in the service of Pakistan. Such service qualifies under the terms of paragraph 15 of the P.0.3 of 1997 for accretion in the petitioner's pensionary benefits. According to paragraph 15 bid one year s service translates to an accretion in the pension of the petitioner to the extent of 2% of his salary as determined by the President The eligibility to claim the said accretion occurred upon the completion of period of :AA-vice in Pakistan by the petitioner on 2000 Irk pension amount payable to the petitioner thereafter must include the said accretion. The impugned order dated 30.06.2008 passed by the Federal Government is, on the foregoing finding, declared to be illegal. The Federal Government is directed to pay the petitioner pension with effect from 13.09.2006 by including therein accretion of 2% of his determined salary.
26. This petition is allowed in the foregoing terms.