M. TUBASSUM AFTAB ALVI, C.J.---The supra titled Writ Petition has been filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby petitioner solicited a direction in the nature of mandamus against respondents jointly and severally to extend him full pensionary benefits as a retired Judge of the High Court.
2. Precise facts leading to the instant Writ Petition are that petitioner was elevated as Judge of the High Court of Azad Jammu and Kashmir, vide Government notification dated 13th March, 2013. After attaining age of superannuation (sixty two years), petitioner was retired through Government notification dated 25th January, 2016. He was allowed leave encashment, however, respondents jointly and severally by misinterpreting a judgment of the Hon'ble Supreme Court of Pakistan, failed to grant him full pensionary benefits. The claim of petitioner is that his experience at Bar was liable to be treated towards length of service for the purpose of pension as a Judge of the High Court, which qualified him for grant of pensionary benefits. It is further maintained that withholding full pensionary benefits on the part of respondents, is without lawful authority; hence, petitioner constrained to file the instant Constitution Petition.
3. The Writ Petition has been resisted by respondents through written statement filed on 5th November, 2016. It is stated that petitioner was elevated as Judge of the High Court on 13th March, 2013, who availed status as such till 25th January, 2016, hence, his total rendered service was 02 years, 10 months and 12 days. Therefore, deficiency in qualifying service for the purpose of pensionary benefits, was 02 years. 01 month and 18 day. It is stated that Bar experience rendered by petitioner as an Advocate could not be counted towards his service as a Judge of the High Court. It is further averred that a Judge of the High Court is entitled to pay, pension and privileges after administering oath under the Interim Constitution Act, 1974, however, without elevation and administering oath petitioner was not entitled to receive pensionary benefits. It is stated that as per section 43(9) read with 5th Schedule of the Constitution Act, the Judges of the High Court of Azad Jammu and Kashmir shall be entitled to the same salary, allowances, privileges and pension as are admissible to the Judges of the High Courts in Pakistan, whereas Judges of the High Courts of Pakistan are entitled to such privileges under Article 205 of the Constitution of Islamic Republic of Pakistan, 1973, read with its 5th Schedule. It is further stated that in light of judgment of the Hon'ble Supreme Court of Pakistan titled Begum Nusrat Ali Gonda v Federation of Pakistan and others [PLD 2013 SC 8291, the instant Writ Petition is not maintainable, hence, prayed for its dismissal.
4. Barrister Hamayun Nawaz Khan, the learned Counsel for petitioner filed written arguments, wherein, it is submitted that petitioner was entitled to full pensionary benefits, irrespective of the length of service, in light of judgment of the Supreme Court of Pakistan, titled Accountant General Sindh and others v. Ahmed All U. Qureshi and others (PLD 2008 SC 522) and not upon minimum rendered service of 05 years as held in case titled Begum Nusrat All Gonda v. Federation of Pakistan and others [PLD 2013 SC 8291. He further contended that in pursuance of latter judgment of the Supreme Court of Pakistan, supra, a Presidential Order was liable to be issued by the Government, however, no such Presidential Order has yet been promulgated by respondents and only previous Presidential Order i,e, High Court Judges (Leave, pension and Privileges) Order, 1997, is holding field, which allows, full pensionary benefits irrespective of length of service as Judge of the High Court. The learned Counsel maintained that the apex Court of Azad Jammu and Kashmir allowed full pensionary benefits to a retired Judge of the High Court, who was elevated from subordinate judiciary vide Govt. notification dated 13th March, 2013, who had less than 05 years service as Judge of the High Court, as per reported judgment titled Justice (R) Abdul Rasheed Sulehria v. Azad Government and others, (2015 SCR 1396), whereas petitioner was elevated from Bar, through the same Govt. notification dated 13th March, 2013; hence, he was also entitled to full pensionary benefit on the basis of principle of equality under the Constitution. He emphasized that experience of petitioner at Bar was liable to be treated towards length of service for the purpose of pension, because when service of a Judge of subordinate judiciary is treated towards length of service for the purpose of pension to a Judge of the High Court, then why practice of an Advocate of 10 years, who is elevated from Bar as Judge of the High Court, cannot be counted towards his length of service? He agitated that respondents committed gross violation of constitutional clause of equality while refusing pensionary benefits to petitioner, hence, craved for acceptance of Writ Petition. The learned Counsel, in support of his arguments, placed reliance upon the following authorities: i. Accountant General Sindh and others v. Ahmed Ali U. Qureshi and others [PLD 2008 SC 522]. ii. Justice (R) Abdul Rashid Sulehria v. AJK Government and 3 others [2015 SCR 1396]. iii.P. Ramakrishnam Raiu v. Union of India and others [AIR 2014 SC 1619].
5. Mr. Muhammad Noorullah Qureshi, the learned Counsel for respondents also filed written arguments, wherein, it is submitted that petitioner was elevated as Judge of the High Court on 13th March, 2013 and he availed status as such till 25th January, 2016, so his total service rendered as a Judge of the High Court was 02 years, 10 months and 12 days, hence, deficiency in qualifying service for the purpose of pensionary benefits, was 02 years, 01 month and 18 days. He further contended that experience rendered by petitioner as an Advocate could not be counted towards his service rendered as a Judge of the High Court. He pressed into service that a Judge of the High Court is entitled to pay, pension and privileges etc after administering oath under the Interim Constitution Act, 1974, however, without elevation and administering oath petitioner was not entitled to receive any pensionary benefit as a Judge of the High Court. The learned Counsel also maintained that as per section 43(9) read with 5th Schedule of the Interim Constitution Act, 1974, the Chief Justice and Judges of the High Court of Azad Jammu and Kashmir shall be entitled to the same salary, allowances, privileges and pension as are admissible to the Chief Justice and the Judges of the High Courts in Pakistan, whereas the Chief Justice and Judges of the High Courts of Pakistan are entitled to such privileges under Article 205 of the Constitution of Islamic Republic of Pakistan, 1973, read with its 5th Schedule: hence, reliance upon the case law of Indian Supreme Court, titled P. Ramakrishnam Raju v. Union of India and others [AIR 2014 SC 1619], cannot be placed. He contended that in light of paragraphs 14, 16 and 29 of Presidential Order, 1997, petitioner could not be granted pensionary benefits. He maintained that even on the basis of case titled Justice (R) Abdul Rasheed Sulehria v. Azad Government and others [2015 SCR 1396], petitioner is not entitled to pensionary benefits. He further agitated that in light of judgment of the apex Court of Pakistan titled Begum Nusrat Ali Gonda v Federation of Pakistan and others [PLD 2013 SC page 829], the instant Writ Petition is liable to be dismissed.
6. We have gone through the contents of Writ Petition as well as written arguments of the learned Advocates for parties. A minute perusal of Writ Petition and written arguments of the learned Counsel for petitioner emerges the following moot points that:- i. Whether petitioner is entitled to pensionary benefits, irrespective of the length of service, in light of precedent case of the Hon'ble Supreme Court of Pakistan titled Accountant General Sindh and others v. Ahmed Ali U. Qureshi and others (PLD 2008 SC 522) and not upon minimum rendered service of 05 years as held in Begum Nusrat Ali Gonda v Federation of Pakistan and others /PLD 2013 SC 829]? ii. Whether in light of judgment of the Supreme Court of Pakistan, reported in case of Begum Nusrat Ali Gonda, supra, a Presidential Order was liable to be promulgated by the Government, however, no such Presidential Order has yet been issued after pronouncement of the aforesaid judgment, hence, previous Presidential Order i,e, High Court Judges (Leave, Pension and Privileges) Order, 1997, is holding field, which allows full pensionary benefits, irrespective of length of service as Judge of the High Court? iii. Whether in view of dictum laid down by the Hon'ble Supreme Court of Azad Jammu and Kashmir in case titled Justice (R) Abdul Rasheed Sulehria v. Azad Government and others (2015 SCR 1396), through which full pensionary benefits were allowed to a retired Judge of the High Court, who was elevated from subordinate judiciary and had less than 05 years service, whereas petitioner was elevated from Bar, through the same notification: hence, pensionary benefits could be extended to h m on the basis of principle of equality under the Constitution? iv. Whether experience of petitioner at Bar. without prejudice to :her grounds, has to be treated towards length of service for the purpose of pensionary benefits, because when service of a Judge e f subordinate judiciary is treated towards length of service for to purpose of pensionary benefits to a Judge of the High Court, then why practice of an Advocate of 10 years, who is elevated from Bar. could not be counted towards length of service, as a J edge of the High Court and whether solicited relief can be c (tended to petitioner in view of law laid down by the Indian Supreme Court in case titled P. Ramakrishnam Raju v. Union of india and others [AIR 2014 SC 1619]?
7. We shall take up the aforementioned points one by one. However, before considering arguments of the learned Advocates, it is appropriate to reproduce section 43(9) of The Interim Constitution Act, 1974, which speaks as follows:- " 43(9). The remuneration and other terms and conditions of service of Judge of High Court shall be as provided in the [Fifth Schedule]."
The Fifth Schedule of the Constitution is reproduced as under:- "The Chief Justice and the Judges of the High Court of Azad Jammu and Kashmir shall be entitled to the same Salary, Allowances, Privileges and pension as are admissible to the Chief Justice and Judges of the High Court in Pakistan."
Same like manner paragraphs 14 and 16 of Presidential Order, 1997, relating to Pension of Judges of the High Court are also reproduced herein below:- "14. Conditions or admissibility of pension: A Judge shall, on his retirement, resignation or removal, be paid a pension in accordance with the provisions of this Order if he has- (a)completed not less than five years of service for pension and attained the retiring age: or (b)completed not less than five years of service for pension and, before attaining the age, resigned [or sought retirement]; or
(c) completed not less than five years of service for pension and before attaining the retiring age, either resigned, his resignation having been medically modified to be necessitated by ill-health or been removed for physical or mental incapacity or been allowed by the President for sufficient cause to retire.
16. Pension of Judges not covered by paragraph 14: A judge who immediately before his appointment as such was a member of a civil service in Pakistan or was holding a post in connection with the affairs of the Federation or of a Province and who does not fulfil the conditions laid down in paragraph 14 shall, on retirement, be entitled to such pension as would have been admissible to him in this service or post, had he not been appointed a Judge, his service as a Judge being treated as service for the purpose of calculating that pension."
A bare reading of ibid paragraphs makes it abundantly clear that five years service, as a Judge of the High Court, is essential for the purpose of pensionary benefits.
8. The first point, therefore, is that whether petitioner was entitled to full pensionary benefits, irrespective of the length of service, in light of precedent case titled Accountant General Sindh and others v. Ahmed Ali U. Qureshi and others (PLD 2008 SC 522) and not upon minimum rendered service of 05 years as held in case titled Begum Nusrat Ali Gonda v Federation of Pakistan and others [PLD 2013 SC 8291? We have scrutinized precedents of the apex Court of Pakistan supra and found that the judgment titled Accountant General Sindh and others v. Ahmed Ali U. Qureshi and others (PLD 2008 SC 522), which was handed down by Mr. Justice Muhammad Nawaz Abbasi, J, (as his lordship then was) on 6th March, 2008, through which, retired Judges of the High Court, who had less than five years service, irrespective of the length of service, were declared entitled to receive all pensionary benefits, was reviewed through precedent case titled Begum Nusrat Ali Gonda v Federation of Pakistan and others (PLD 2013 SC 829). The relevant extract of the latter precedent is reproduced as under:- "We, therefore, have no hesitation to hold that for the preceding reasons and further reasons to be recorded hereinafter, the judgment under challenge falls in the category of per incuriam and makes it without jurisdiction and nullity in the eyes of law, as if it never existed at all."
The apex Court, with regard to the length of service, also observed at page 944, in paragraph 67 of the aforesaid judgment as under:- "The gist of the discussion made in the above cited cases on the subject of pension is that it is a right which the Government servants or employees in different positions and different capacities earn in terms of the relevant statutory provisions applicable to their case, mostly depending upon their length of service. In any case it is not a State bounty which can be awarded to any individual outside the scope of the applicable statute as a favour.
Therefore, stance of petitioner that irrespective of the length of service, he might be granted pensionary benefits, in view of Full Court precedent case of Begum Nusrat Ali Gonda v Federation of Pakistan and others [PLD 2013 SC page 829], cannot be extended to the Hon'ble retired Judge, as the said precedent was reviewed by the apex Court of Pakistan.
9. The next stance of petitioner is that in pursuance of latter judgment of the Supreme Court of Pakistan, a Presidential Order was liable to be promulgated by the Government, however, the same has yet not been issued; hence, only previous Presidential Order i,e, High Court Judges (Leave, Pension and Privileges) Order, 1997, is holding field, which allows, full pensionary benefits irrespective of length of service as Judge of the High Court, hence, he is entitled to full pension, has been considered. We would like to reproduce again relevant paragraph No, 14 of the Presidential Order, 1997, which reads as under:- "14. Conditions or admissibility of pension: A Judge shall, on his retirement, resignation or removal, be paid a pension in accordance with the provisions of this Order if he has- (d)completed not less than five years of service for pension and attained the retiring age; or (e)completed not less than five years of service for pension and, before attaining the age, resigned [or sought retirement]; or (f)completed not less than five years of service for pension and before attaining the retiring age, either resigned, his resignation having been medically certified to be necessitated by ill-health or been removed for physical or mental incapacity or been allowed by the President for sufficient cause to retire.
Similarly paragraph 16 is also relevant, which is reproduced as under:-
16. Pension of Judges not covered by paragraph 14: A judge who immediately before his appointment as such was a member of a civil service in Pakistan or was holding a post in connection with the affairs of the Federation or of a Province and who does not fulfil the conditions laid down in paragraph 14 shall, on retirement, be entitled to such pension as would have been