C.M. No.3/2019.
This application to place on record certain documents is allowed subject to all just and legal exceptions.
C.M. No.4/2019.
Dispensation sought for is allowed subject to all just and legal exceptions.
MAIN CASE.
Through this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 petitioner has made the following prayer:- "It is therefore respectfully prayed that the act of the respondents for refusing pensiona ry benefit to the petitioner , on account of services rendered by her husband, may kindly be declared as illegal and without lawful authority . It is further prayed that the petitioner , who is an old citizen and have no means to sustain herself, may kindly be given full pensionary benefit of her husband, who had rendered more than 27 years of meticulous service in Government Department, alongwith the all the past pensionary benefits accrued to the late husband of the petitioner before his death. Any other relief which this Hon'ble Court may deem fit and proper may also be granted".
2. Brief facts giving rise to the filing of this constitutional petition are that petitioner is widow of one Asad Ahmed Aziz, who was recruited in Transportatio n & Commercial Department of Pakista n Railways on 26.10.1972 and resigned on 16.11.1999 after serving for 27 years. During this period, he had also served in Pakistan Cricket Board on deputation and was also got repatriated to his parent department. After that, he sought an early retirement but when it was refused by the respondent/department, he had to resign from his office with an undertaking that he would be paid his outstanding emoluments. Consequently , his resignation was accepted. But despite putting in his best efforts to get the post- retirement benefits, including pension, he failed and met Almighty on 04.12.2005. The petitioner being his widow could only get Rs. 1,99,312/- as G.P. Fund that too after putting in great efforts. The petitioner approached the Federal Ombudsman where the respondent/depa rtment had taken a stance that petitioner 's husband did not complete the requisite length of service making him eligible for the grant of pension.
3. Learned counsel for the petitioner contends that under Clause 361 of Civil Service Regulations petitioner was entitled to the pensionary benefits. He places reliance upon NISAR AHMAD and others versus TOWN COMMITTEE, KHAIRPUR TAMEWALI through Administrator (2004 PLC (C.S) 382) MINISTRY OF DEFENCE, GOVERNMET OF PAKISTAN, through Secretary Defence, Rawalpindi and 6 others (2012 PLC (C.S) 1223) Haji MUHAMMAD ISMAIL MEMON, ADVOCATE complaint (PLD 2007 SC 35) THE GOVERNMENT OF N.-W.F.P.
THROUGH THE SECRETARY OF THE GOVERNMENT OF N.-W.F.P. COMMUNICATION AND WORKS DEPARTMENTS, PESHAWAR versus MOHAMMAD SAID KHAN AND ANOTHER (PLD 1973 SC 514) Mrs. RIFFAT SATTAR versus GOVERNMENT OF THE PUNJAB through Secretary and 6 others (2016 PLC (C.S)
472) NAZEER AHMED CHAKRANI and others versus FEDERATIOIN OF PAKISTAN through Secretary, Ministry of Petroleum and Natural Resources, Government of Pakistan and 2 others (2009 PLC (C.S) 776) and CHIEF ENGINEER, HYDEL (NORTH) AND PROJECT DIRECTOR, WAPDA, WARSAK versus ZAFRULLAH SHAH and another (2003 SCMR 686), to argue that petitioner is entitled to pensionary benefits.
4. Conversely , in the report and parawise comments submitted by respondent, the entitlement of the petitioner to get the pensionary benefits of her late husband was controverted inter alia on the ground of laches, deficiency in mandatory qualifying service of deceased husband of 25 years as he served for 22 years 6 months and 18 days as he had availed 4 years 5 months and 12 days leave without pay. It was also alleged that he had drawn double salary; i.e. from the Railway department as well as from the Pakistan Cricket Board and that even the house rent of Rs. 9000/- was also recoverable from him and that he had committed the huge bank default of Rs. 6012 million and that he was also a defaulter of loan advanced for house building purposes. It is also reiterated that under Fundamental Rule 9.5, a 25 years' service is mandatory for the grant of pensionary benefits and, therefore, prays for dismissal of the petition.
5. Arguments heard. File perused.
6. After hearing the learned counsel for the parties and perusing the file, it is straightway observed that admittedly , the late husband of the petitioner joined services on 26.10.1972 and resigned on 16.11.1999 which resignation was accepted on 15.06.2000, he died on 04.12.2005 after 5 years of his retirement. During his service, he remained on leave from 10.09.1979 to 10.09.1981 and thereafter on 30.05.1985, he rejoined the service without any reservations. Admittedly , during this period no disciplinary proceedings were initiated against him and he was considered as regular employee duly entitled to the benefits as government employee since he was permitted to resume his duty. It appears that late Asad Ahmed Aziz, decided to resign with some understanding as his pensionary benefits were calculated just 3 days after his resignation date and under Rule 418.(a) under the head of "Resignation and Dismissals of CHAPTER XVI.--CONDITIONS OF QUALIFYING SERVICE of Civil Service Regulations, he was entitled to the pension. Relevant rule 418(b) is reproduced as under:- "418. (a) Resignation of the public service, [or dismissal] or removal from it for misconduct, insolvency , inefficiency not due to age, or failure to pass a prescribed examination entails forfeiture of past service.
(b) Resignation of an appointment to take up another appointment, service in which counts, is not a resignation of the public service. (underlining is for emphasis).
This clause has been interpreted in CHIEF ENGINEER, HYDEL (NORTH) AND PROJECT DIRECT OR, WAPDA, WARSAK versus ZAFRULLAH SHAH and another (2003 SCMR 686) at page 690. Relevant extracts is reproduced as under:- "........ The contents of the regulation would clearly indicate the different kinds of resignations that entail upon different consequences. Though the case of respondent fell under sub-Regu lation (b) of Regulation 418 yet for the purpose of contrast and comparison a careful perusal of both should be most appropriate. Regulation 418(a) highlights those resignations which arise from misconduct, insolvency , inefficiency and not due to age or failure to pass a prescribed examination and all such resignations entail forfeiture of post service"
He was authorized leaves from 10.09.1979 to 10.09.1981 of 24 months and it is not denied by the respondent that petitioner remained on deputation in Pakistan Cricket Board and after his repatriation, no disciplinary proceedings were shown to have been initiated against him during his remaining period of service. Pensionary benefits could not be deducted by refusing to count the said period of absence from duty which is to be treated as leave without pay, therefore, should be considered towards computation of pension. In Haji MUHAMMAD ISMAIL MEMON, ADVOCA TE complaint (PLD 2007 SC 35), it was severely observed by the Supreme Court that there should not be any delay in release of pension. Para 7 is reproduced as under:-
7. It is pathetic condition that Government servants, after having served for a considerable long period during which they give their blood and sweat to the department had to die in a miserable condition on account of non payment of pension/pensionary benefits etc. The responsibility, of course, can be fixed upon the persons who were directly responsible for the same but at the same time we are of the opinion that it is an over all problem mostly in every department, where public functionaries failed to play their due role even in accordance with law. Resultantly, good governance is suffering badly. Thus every one who is responsible in any manner in delaying the case of such retired officers/official or widows or orphan children for the recovery of pension/gratuity and G.P. Fund has to be penalized.
As their such lethargic action is in violation of Articles 9 and 14 of the Constitution of Islamic Republic of Pakistan, 1973. Admittedly, it is against the dignity of a human being that he has to die in miserable condition and for about three years no action has been taken by the concerned quarters in finalizing the pension case and now when the matter came up before the Court, for the first time, they are moving in different directions just to show their efficiency and to clear their position before the Court. Such conduct on their behalf is highly condemnable and cannot be encouraged in any manner.
6. Article 420 of Civil Service Regulations, under the heading of Interruptions, it has been provided that an interruption in the service of an officer entails forfeiture of the past service, except when it was due to an authorized leave of absence or when the un-authorized absence is in continuation of authorized leave so long as the of fice of the absentee is not substantively filled. Article 420 (a) (b) is reproduced as under:-
420. An interruption in the service of an of ficer entails forfeiture of his past service, except in the following terms:-
(a) Authorised leave of absence.__
(b) unauthorised absence in continuation of authorized leave of absence so long as the office of the absentee is not substantively filled; if his of fice is substantively filled, the past service of the absentee is forfeited.
In I.A. Sharwani and others versus GOVERNMENT OF PAKISTAN through Secretary, Finance Division, Islamabad and others (1991 SCMR 1041) it is held at page No. 1096 that the right to receive the pension by a government servant is property so as to attract Article 23 and 24(1) of the Constitution and any illegal denial would affect his fundamental right guaranteed under the Constitution itself. It is not a bounty of the government which could be conferred upon its subject.
7. In this view of the matter , this writ petition is allowed and it is declared that petitioner is entitled to the pension of her late husband after completing his 25 years of service requisite as a qualifying service.