SECRETARY, GOVERNMENT OF PUNJAB, FINANCE DEPARTMENT and 269 others

' SH. AZMAT SAEED, J.---Through this common judgment, it is proposed to decide the above- captioned Civil Appeals and Civil Petitions for Leave to Appeal, involving primarily a common question of law.

2. The essential facts necessary for adjudication of the lis at hand are that the private respondents in the instant Civil Appeals and Civil Petitions for Leave to Appeal are former employees of the Government of the Punjab, who on their retirement were sanctioned commutation of one half of their pension for a period of 15 years in terms of the Punjab Civil Services Pension Rules, 1963 (hereinafter referred to as the Rules of 1963). During the period of commutation i.e. 15-years, periodic increase in pension was effected by the Government of the Punjab. On expiry of the commuted period, the pension of the respondents was restored and full pension inclusive of the afore-said periodic increase was disbursed to the respondents. On 22-3-2008, the Finance Department, Government of the Punjab issued a letter, in light of an Office Memorandum No.F.13(6)-Reg-6/2003, dated 29-2-2008, issued by the Government of Pakistan, Finance Division (Regulation Wing), as a consequence whereof the increase in pension granted during the commuted period was deducted from the pension paid to the respondents. Being aggrieved the private respondent in Civil Appeal No.971 of 2012, invoked the jurisdiction of the learned Punjab Service Tribunal, Lahore (hereinafter referred to as "the learned Tribunal") through an Appeal praying that the respondents (present appellants) be directed to allow the increase in pension periodically granted, while the private respondents in the remaining above-captioned Civil Appeals and Civil Petitions for Leave to Appeal, invoked the constitutional jurisdiction of the learned Lahore High Court through various Writ Petitions, seeking a similar remedy with regards to their individual pensions. The learned Tribunal allowed the Appeal bearing No.773 of 2009, filed by the present private respondent in Civil Appeal No.971 of 2012. Similarly, the private respondents in the remaining above-captioned cases were also successful before the learned High Court and appropriate Orders granting them relief were variously passed in their favour. In some of such cases, the Accountant-General, Punjab/Government of the Punjab filed Intra Court Appeals, which were dismissed. The Accountant-General, Punjab/ Government of the Punjab challenged the judgment of the learned Tribunal and the judgments of the learned Lahore High, Court passed in various Writ Petitions and Intra Court Appeals, referred to above through Civil Petitions for Leave to Appeal and this Court allowed the same and leave was granted, while the Civil Petitions for Leave to Appeal filed thereafter were directed to be heard along with the Civil Appeals in which leave had been granted. These are the aforesaid matters, which have now come up for hearing before this Court.

3. It is contended by the learned Additional Advocate-General, Punjab, that a retired Civil Servant in terms of section 18 of the Punjab Civil Servants Act, 1974 (hereinafter referred to as "the Act of 1974") are entitled only to the pension, as may be prescribed. The said provision, it is contended, empowers the Government to fix the pension and also to increase the same from time to time. The matter of increase in pension has not been provided for in the Rules framed under the Act of 1974, leaving this aspect to be effected through the exercise of the Executive Authority, as has been done in the instant matter.

' Furthermore, the grant of any increase in pension and the quantum thereof is a matter of Government Policy, therefore, immunes from Judicial Review. In the circumstances, impugned judgments of the learned Tribunal as well as the learned Lahore High Court are illegal, void and liable to be set aside.

' It is further contended that by way of the impugned judgments, the real matter in controversy has been side-stepped and the findings have been rendered on moral rather than legal grounds. It is added that the law as laid down by this Court, has either not been taken into consideration or misinterpreted by the learned Tribunal and the learned High Court. It is further contended that the judgments with regard to the employees of the Federal Government have been erroneously pressed into service despite the fact that the same were inapplicable to the cases in hand.

4. With regard to the impugned judgments passed by -the learned High Court, the learned Additional Advocate-General, Punjab, additionally contended that the said Court had no jurisdiction to adjudicate upon the matter in view of Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973. In support of his contentions, the learned Additional Advocate-General, Punjab, referred to the judgment, reported as Akram ul Haq Alvi v. Joint Secretary (R-II)

Government of Pakistan, Finance Division, Islamabad and others (2012 SCMR 106).

5. Learned counsel for the private respondents controverted the contentions raised by the Additional Advocate-General, Punjab, by contending that the pension is a right of a retired Civil Servant conferred by law and not charity. It is added that the learned Tribunal as well as the learned High Court has correctly interpreted the law in the light of the judgments of this Court by striking down the attempt of the appellants/petitioners to deprive the respondents of their vested rights by treating them in a discriminatory manner without any valid classification. Hence, these Civil Appeals/Civil Petitions merit dismissal.

6. Heard. Record perused.

7. Adverting first to the legal objection raised by the appellants that the learned High Court had no jurisdiction to entertain the Constitutional Petitions filed by the respondents, it may be noted that in pith and substance, it is canvassed by the learned Additional Advocate-General, Punjab, that such Writ Petitions were barred by Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973, as the learned Tribunal was vested with the jurisdiction to adjudicate upon the matter. The respondents, on the other hand, have vehemently argued that the Office Memorandum, in dispute was not a final order, passed by a designated Departmental Authority, hence, the jurisdiction of the learned Tribunal could not be invoked and validity of the Office Memorandum in dispute could always be called into question through a petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. Be that as it may, one of the Civil Appeals i.e. Civil Appeal No.971 of 2012, arises from the judgment passed by the learned Tribunal to which no such objection has been taken by the appellants and any adjudication thereupon qua the legal issues involved and rights affirmed would enure to the benefit of all other retired Civil Servants placed in similar circumstances including all the respondents, as has been repeatedly held by this Court inter alia by the judgment, reported as Government of Punjab, through Secretary Education, Civil Secretariat, Lahore and others v. Sameena Parveen and others (2009 SCMR 1). In the circumstances, the objection is of no legal consequence or effect.

8. A perusal of the offending Office Memorandum dated 22-3-2008 reveals that the same has been issued in the light of the Government of Pakistan, Finance Division (Regulations Wing), Office Memorandum dated 29-2-2008 whereby the Civil Servants of the Federation were deprived of the increase in their pension sanctioned during the commuted period. The said Office Memorandum of the Federal Government was called into question before the learned Lahore High Court. The said Office Memorandum was struck down by a learned Single Judge of the said High Court in the case, reported, as A.A. Zuberi v. Additional Accountant General Pakistan Revenue, Lahore [2010 PLC (C.S.)

1211]. The said judgment of the learned Single Judge was challenged in appeal _through an Intra Court Appeal, which was dismissed by a learned Division Bench of the said High Court vide judgment dated 16-6-2010, reported as Additional Accountant-General Pakistan Revenue, Lahore v.

A. A. Zuberi [2011 PLC (C.S.) 580]. Whereafter, Civil Petitions for Leave to Appeals Nos.2393 and 2394 of 2010 were filed before this Court challenging the aforesaid judgment of the learned Division Bench of the High Court, which too were dismissed vide judgment dated 10-12-2010, as barred by limitation. The said judicial pronouncements have been implemented by the Federal Government vide Office Memorandum dated 10-9-2009, whereby the retired Civil Servants of the Federal Government are being paid their pension inclusive of the increases sanctioned during the commutated period. Thus, the very decision of the Federal Government in the light whereof the Office Memorandum dated 22-3-2008 had been issued is no longer in force having been struck down through a judicial decision, which has been implemented.

9. Furthermore, the meaning and true import of the term "pension" came up for interpretation before this Court in the case, reported as The Government of N.-W.F.P. Through the Secretary to the Government of N.-W.P.P. Communication and Works Departments, Peshawar v. Mohammad Said Khan and another (PLD 1973 SC 514), wherein it was held as follows:-- "It must now be taken as well-settled that a person who enters Government service has also something to look forward after his retirement, to what are called retirement benefits, grant of 'pension being the most valuable of such benefits. It is equally well-settled that pension like salary of a civil servant is no longer a bounty but is a right acquired after putting in satisfactory service for the prescribed minimum period. A fortiori, it cannot be reduced or refused arbitrarily except to the extent and in the manner provided in the relevant rules."

' The aforesaid view was quoted and approved by this Court in the case, reported as I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others (1991 SCMR 1041), wherein it was further held:--- "A pension is intended to assist a retired civil servant in providing for his daily wants so long he is alive in consideration of his past services, though recently the above benefit has been extended inter alia in Pakistan to the widows and the dependent children of the deceased civil servants. The raison d'etre for pension seems to be inability to provide for oneself due to old-age. The right and extent to claim pension depends upon the terms of the relevant statute under which it has been granted."

' A similar view has been taken by the Indian Supreme Court in the cases, reported as Deokinandan Prasad v. State of Bihar and others (AIR 1971 SC 1409) and State of Punjab and another v. Iqbal Singh (AIR 1976 SC 667).

10. The afore-said dictum makes it clear and obvious that with regard to a retired Civil Servant, pension forms a part of his retirement benefits. It is not a bounty or an ex-gratia payment but a right acquired in consideration of past services. Such right to pension is conferred by law and cannot be arbitrarily abridged or reduced except in accordance with such law, as it is a vested right and legitimate expectation of a retiring Civil Servant.

11. The right to pension of a Civil Servant of the Province of the Punjab has been conferred by law i.e. Section 18 of the Punjab Civil Servants Act, 1974. The relevant portion thereof reads as follows:--- "(18) Pension and gratuity.--- (1) On retirement from service, a civil servant shall be entitled to receive such pension or gratuity as may be prescribed."

' A perusal of the afore-said provision clearly manifests that upon retirement, a Civil Servant is entitled to receive such pension, as may be prescribed. Section 2(1)(g) of the above-said Act of 1974, defines the word 'prescribed' to mean "prescribed by rules". Apparently, no Rules pertaining to pension payable to Civil Servants were made after the promulgation of the Act of 1974 i.e. 4th June, 1974. However, section 23(2) of the Act of 1974 lays down that any Rules in force immediately before the commencement of the Act of 1974 shall be deemed to be the Rules under the Act of 1974. The Punjab Civil Services Pension Rules, 1963 were in force when the Act of 1974 was enacted and, therefore, by virtue of section 23(2) of the said Act, the same are the Rules as contemplated by section 18 of the Act of 1974 and are applicable to the matter in hand.

12. Chapter VIII of the Rules of 1963 deals with the Commutation of Civil Pensions, Rule 8.1 of the Rules of 1963 provides that the Competent Authority may sanction the commutation for lump-sum payment of a portion of the pension. In this behalf, a Commutation Table is also provided setting forth the number of years for which a portion of pension may be commuted and paid in lump-sum.

Such period has been indexed to the age of the Civil Servant. Rule 8.12 of the Rules of 1963 lays down that the commuted portion of pension would be restored on completion of the number of years for which the commuted pension was paid.

13. The amount of pension payable has been dealt with in Chapter IV of the Rules of 1963 and Rule 4.4 includes a scale of pension. The said Rule also envisages increases or indexation of pension sanctioned from time to time. It is a matter of record that variously such periodic increases in pension have been granted including through Office Memorandum issued in this behalf by the Government of the Punjab. The validity and effectiveness of such increase is not disputed by the appellants/petitioners.

14. The term "restored" has been variously defined. Some of such definitions are-reproduced hereunder:-- I. Words and Phrases, Permanent Edition, Volume 37A: "The word "restored", as used in Rev. St. c. 9, 78, 79, declaring that, if an attaching officer has notice of a mortgagee's debt, the property shall be restored to the mortgagee, means that it shall be surrendered and delivered to the mortgagee, from whom it was detained by the officer. Esson v.

Tarbell, 63 Mass. (9 Cush.) 407, 415.

' Statute providing that wife, for whose aggression husband is granted divorce, shall be "restored" to whole or part of her realty, acquires that realty she had when married or acquired during marriage be returned to or reinvested in her. Sidwell v. Sidwell, Del. Super., 165 A. 334, 335, 5 W.W. Harr. 322."

II. Corpus Juris Secundum, Volume 77: "The word "restore" relates to something having a previous existence, and is defined as meaning to bring back; to bring back or put back to a former position or condition; to bring back to a former and better state. It is also defined as meaning to heal.

"Restore" has been held equivalent to or synonymous with, "deliver" see 26 C.J.S. p 696 note 10.1, "repair" see 76 C.J.S. p 1174 note 15, "restate" see ante p 322 note 83, and "substitute."

III. Stroud's Judicial Dictionary of Words and Phrases, Fourth Edition, Volume 4: "(1) "When the statute, Larceny Act 1826 (c.29), S. 57, says that the stolen property 'shall be restored,' it may mean the chattel stolen shall be restored; but at all events it means the restoration of the right" (per Patteson J., Scattergood v. Sylvester, 15 Q.B. 511), and the right to the property re-vested on conviction of the thief, so that the owner could recover it even against one who purchased it in MARKET OVERT (ibid. 19 L.J.Q.B. 447; Nickling v. Heaps, 21 L.T. 754, which case followed the principle of Horwood v. Smith, 2 T.R. 750, on (21 Hen. 8, c. 11); see further Chichester v. Hill, 52 L.J.Q.B. 160). The same ruling applied to the similar phrase in S. 100 of the Larceny Act 1861 (c.96) (Bentlty v. Vilmont)

12 App. Cas. 471). In all the cases the principle was upheld that no order for restitution was necessary to perfect the statutory restoration of the right to the chattel. See hereon Moss v.

Hancock [1899] 2 Q.B. 111, cited MONEY.

(2) An obligation to "restore" a ROAD interfered with under compulsory powers, semble, is to make it as nearly as possible identical with the load before the interference (R. v. Birmingham & Gloucester Railway, 2 Q.B. 47)."

15. With reference to the context of the Rules of 1963, more particularly, Rule 8.12 the term "restored" appears to mean the restoration of the right to pension with the retired Civil Servant being re- vested therewith.

16. Thus, under section 18 of the Act of 1974, a retired Civil Servant is entitled to receive pension as may be prescribed. In case a portion of pension is commuted for a particular period of time, he surrenders his right to receive full pension in lieu of lump-sum payment received by him and on expiry of the commuted period, his right and entitlement to receive full pension, as prescribed, is restored and re-vested in him. The restoration of the right to receive pension in terms of Rule 8.12 of the Rules of 1963, is without any rider and upon re-vesting of such right, the status of such retired Civil Servant in law is brought at par with the other retired Civil Servants, who had not exercised their option by seeking commutation of their pension. Such is the obvious effect of the term "restoration" as used in the Rules in question. In the circumstances, a retired Civil Servant, on expiry of the period of commutation, cannot be discriminated against by being paid less pension, then his colleagues, who had not sought commutation, as there was no valid classification available in law between the two. If the Government were to .Adopt such a course of action as has been attempted to be done, it would offend against Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973. Such right in terms of section 18 of the Act of 1974 would obviously mean the pension, as prescribed by the Rules payable on the date of restoration and would obviously include any increase in pension granted by the Government during the intervening period of commutation, as such, increase is envisaged by the Rules.

17. The reliance attempted to be placed by the learned Additional Advocate General, Punjab, in the case, reported as Akram ul Haq Alivi (supra) is misconceived. By way of the said judgment, the law as laid down by this Court in Civil Appeals Nos.1305 to 1327 of 2003, has been reiterated and reproduced in-extenso. The dictum, as laid down is merely that a retired Civil Servant is entitled to the pension as may be prescribed and a decision granting increase in pension has been interpreted by upholding the legal fiction of a net-pension created for the purpose of calculating the increase as granted by the decision under consideration.

18. With regard to Civil Servants in the service of the Federation, an attempt was made to press the judgment, reported as Akram ul Haq Alvi (supra) to deprive the said Civil Servants of the increases sanctioned during the commuted period of pension. Such argument was resoundingly repelled by this Court in its judgment, reported as Federation of Pakistan v. Ghulam Mustafa and others (2012 SCMR 1914).

19. The afore-said are the detailed reasons of our short Order dated 31-3-2014, which is reproduced hereunder:--- "For reasons to be recorded later in the detailed judgment, we are persuaded to hold that the interpretation being accorded to Rule 8.1 read with 8.12 of the Punjab Civil Services Pension Rules vide the office memorandum issued by the Government of Punjab dated 22-10-2001 is not only violative of those Rules but also of Article 25 of the Constitution of Islamic Republic of Pakistan.

These appeals and petitions are, therefore, dismissed with no orders as to costs."