' Syed Rafique Hussain Shah, Member.--Appeals No, 56(P)CS/2012, 215, 219 to 253, 273, 276 & 327 to 336(P)CS/2014, 40 & 41(P)CS/2015 pertain to one and the same relief sought for by the appellants and, as such, we would like to dispose of all the appeals through this single judgment being recorded in Appeal No, 56(P)CS/2012.
2. Precisely, the facts of the matter are, that the appellant (Nazar Hussain) was recruited as Sepoy (levy personnel) on 01.05.1981 in Kurram Levy Force. After attaining the age of fifty-five years he got retired from service vide order dated 29.06.2007 without extending him pensionary benefits. He, therefore, felt aggrieved of such treatment at the hands of the respondents whom he served for long twenty-two years. Later on, the appellant approached the departmental authority for grant of pension but his appeal/ representation proved abortive which obliged him to file the instant service appeal praying for grant of pension and all other retirement related benefits.
3. In the memo of appeal while narrating the facts of the case, the appellant took the stance that the authority had ignored all rules, regulations, decisions/judgments of the competent Courts, pension rules & orders and statutory notifications in connection with grant of pension to him and his other colleagues. He alleged discrimination against him and his other colleagues at the hands of the respondents and described their attitude as illegal, unjustified and against the provisions of Constriction of Pakistan, 1973. It was submitted by the appellant that all levymen were entitled to pension as admissible under the rules vide Circular dated 04.08.1981 issued by the Commissioner, Kohat Division, Kohat as well as under Regulation 371A of Pension Rules. According to the appellant he being "declared Government servant" was entitled to pensionary benefits as his case was covered under Regulation No, 371-A. The appellant further pointed out that the General Provident Fund and Benevolent Fund had been deducted from the levy employees' salaries like other Government officials. The appellant made reference to the judgment of the Hon'ble Supreme Court of Pakistan dated 30.11.1993 in the case titled Mir Ahmad Khan vs Secretary to Government and others (Civil Appeal No, 574/1992) and submitted that as per verdict of the apex Court all those employees who rendered ten years service in any Government department were entitled to pensionary benefits. The appellant next pointed out that the President of Pakistan had been pleased to grant pensionary benefits to the employees of Malakand/Dir Levies who retired prior to the 1st March, 1972 vide notification dated 26.03.1995 and, hence, Kurram Levy Force also deserved the same/equal treatment.
4. The appeal of the appellant was resisted by the respondents taking the stance in their parawise comments that Kurram Levy Force was established in 1981 but no statutory rules or regulations were framed by the Government regarding its pensionary benefits. Subsequently, the pensioner benefits were granted to all levy personnel with effect from 16.06.2010 prospectively. By the time the pensionary benefits were extended to the Kurram Levy Force the appellant had already been retired from service and thus was not entitled to pension.
5. In this background, we heard the arguments of the learned counsel for both the parties and perused the material placed on the record.
6. The record would show that the Commissioner Kohat Division Kohat, in exercise of the administrative powers enabling him in this behalf, promulgated the Standing Order dated 04.08.1983. This order was called the Kohat Division Levies (Efficiency and Discipline) Order, 1983. It came into force at once. This order was promulgated to ensure uniformity in the administration and working of Levy Force in Kohat Division. According to Clause-19 of the Standing Order dated 04.08.1983, the levy men were held entitled to pension as admissible under the rules.
7. The appellant alongwith ten others was retired from service with effect from 01.07.2007 in view of the Kohat Division Levies (Efficiency and Discipline) Order, 1983. In case the Order dated 04.08.1983, above mentioned, was applied for retirement of the appellant and others then the question arises why he same was not applied to the levy personnel in connection with pension which was clearly and specifically provided in Clause-19 of the order. The logic of the respondents that the Commissioner's order dated 04.08.1983 was not attracted to the matter of pension of the appellant and others is quite implausible, unjustified and unconvincing because if the said order was applicable to the appellant and others in connection with their retirement why it was not attracted to them with regard to their pension and pensioner benefits.
8. We are of the considered view that there could not be pick and choose in one and the same order. The order of 1983, in our opinion, would be applicable in toto which included pension to the levy personnel.
9. It has been clearly mentioned in Regulation 371-A that temporary and officiating service, in case of Government servants who retired on or after the 1st January, 1949, or who joined service thereafter, shall count for pension according to the rules mentioned therein. So in the light of Regulation 371-A the appellant and others being Government servants are entitled to the pensionary benefits.
10. It may also be mentioned over here that pensionary benefits were extended to Malakand/Dir Levies personnel who retired prior to 1st March, 1972 vide order of States and Frontier Regions Division dated 26.03.1995. In case the levy personnel of Malakand/Dir were made entitled to pensionary benefits why not the personal of Kurram Levy Force who performed the same duties and were similarly placed persons. To deprive the appellant and others of the pensionary benefits would certainly amount to discrimination between the similarly placed persons. It has been claimed rather alleged by the appellant that two persons of Kurram Levy Force namely Syed Hussain Shah and Mr. Jaffar Hussain have already been granted pension by the respondents. The respondents have not denied the grant of pension to those two persons. However, the respondents have been unable to give plausible explanation as to why the said two persons are given pensionary benefits and why the appellant and others do not. This would also reflect discrimination with the appellant and others at the hands of the respondents. It has been admitted by the respondents that they have been paying pensionary benefits to the personnel of Kurram Levy Force since 2010 onward. If the expansionary benefits to Levy personnel of Kurram Levies have been allowed since 2010 why the same have been refused to the appellant and others who retired in 2007 i.e, 2/3 years prior to sanction of expansionary benefits to the other Levy Force.
11. Keeping in view the principle of natural justice and equality before law, the appellant and others have made out their case C for the grant of expansionary benefits.
12. As regards the question of limitation, it is always considered/treated as mixed question of law and fact. In condonation of delay in filing of proceedings depends upon facts of each case. There are several judgments of this Tribunal to hold that in the matters of and pension, being continuous grievance, the limitation is not applicable to appeals filed by the civil servants. Reference may given to 1995 PLC (CS) 1026, 1996 PLC (CS) 832 and 2006 PLC (CS) 1124. In view of the aforementioned judgments of this Tribunal coupled with the judgment of the Hon'ble Supreme Court of Pakistan reported as 2002 SCMR 947 we are of the opinion that as per peculiar circumstances of the instant case the question of limitation becomes irrelevant. It has been observed by the Hon'ble Supreme Court of Pakistan in the judgment reported 2003 SCMR 318 that technalities should not to create hurdles in the way of substantial justice. In the judgment reported as 2009 PLC (CS) 119 the Hon'ble Supreme Court of Pakistan had held a temporary employee of Union Council, on completion of ten years service, entitled to the pensionary benefits under West Pakistan Civil Services Pension Rules. We may mention here that Article 25 of the Constitution pertains to equality of citizens. According to this Article all citizens are equal before law and are entitled to equal protection of law. The case of the appellant and others fall under Article 25 of the Constitution who are entitled to be treated alike with that of their other colleagues of Malakand/Dir Levies.
13. Putting all the relevant facts together, we are of the view that the appellant and his colleagues of the connected appeals could not be deprived of the pensionary benefits and hence they should be allowed/extended all the pensionary benefits from the date of their retirement. To grant the appellant and others, pensionary benefits, would not be so heavy on the Government exchequer whereas, on the other hand, it would develop the sense of loyalty among all those concerned who live in sensitive areas like Kurram Agency (FATA) bordering Afghanistan from where infiltrators and miscreants very frequently cross over to our side for sabotage. In this view of the matter, we allow this appeal with direction to respondents to grant pensionary benefits to the appellant and his other colleagues of the connected appeals.
14. This judgment shall mutatis mutandis be applicable to Appeals No 215, 219 to 253, 273, 276 & 327 to 336(P)CS/2014, 40 & 41(p)CS/2015.
15. There shall be no order as to costs.
16. Parties be informed accordingly.