Asim Hafeez, J: - This appeal is against judgment dated 13.06.2018 by learned Single Judge in Chambers, whereby writ petition filed by the respondent was allowed and the appellant corporation was directed to increase the pension of the respondent in terms of Of fice Memorandum issued by Ministry of Finance dated 05.07.2010.
2. The facts of the case are simple. The respondent retired on 23.06.2011, who claimed 15% increase in the pension from 01.07.2010 - sanctioned by the Federal Government to all civil pensioners of the Federal Government - pursuant to Finance Division's, Office Memorandum dated 05.07.2010. The petition was allowed by placing reliance on regulation 16 (3)(iv) of State Life Employees' Pension Regulations, 1986 ("Regulations of 1986"). It is expedient to reproduce the said regulation, which read as under; "16(3)(iv) Pension shall be indexed in the manner adopted by Federal Government from time to time."
3. Learned counsel for the appellant contends that learned Single Judge in Chambers has misconstrued and misinterpreted regulation 16 (3)(iv) of Regulations of 1986, which had the effect of compromising the autonomy and independence of appellant' s corporation. Adds that, ipso-facto increase in the pension cannot be allowed to the employees merely upon issuance of Office Memorandum dated 05.07.2010. Learned counsel submits that judgment passed by Division Bench of this Court i.e. I.C.A No. 915 of 2014 is per-incuriam, as various regulations were neither brought to the attention of the learned Bench nor considered.
4. The learned counsel for the respondent controverted the submissions and supported the judgment under reference and the judgment passed by the Division Bench of this Court in I.C.A No. 915 of 2014.
5. Arguments heard; record perused.
6. The heart of the controversy is that whether the direction issued by the Federal Government in terms of Office Memorandum dated 05.07.2010 is binding on the appellant Corporation and entitle the employees to claim vested right qua increase in the pension sanctioned in terms thereof. An off-shoot of this controversy also involves interpretation of regulation 16(3)(iv), ibid, and its scope in the wake of other regulations, containing specific instructions regarding powers to sanction pension by competent authority . Before proceeding to adjudge the controversy , it is expedient to analyze the judgment in I.C.A No. 915 of 2014. Relevant portion of the judgment, for convenience, is reproduced hereunder; "There is no cavil to the proposition that the Corporation is an autonomous entity being run by its own Board of Directors. There is, however, no provision available in the Pension Regulations and none was cited by the learned counsel which shows that any right or discretion has been reserved to the Board of directors of the Corporation to disregard the increase in pension announced by the Federal Government for its employees. Regulation No. 16(3)(iv) is quite categorical in its intention that the pension of the employees of the Corporation is indexed with that of the employees of the Federal Government with the obvious consequence that the Corporation is bound to follow the circulars issues by the Federal Government in this regard by granting increase in pension as and when announced by the Federal Government for its employees.
The learned counsel for the Corporation relied upon a number of judgments set up the defence that the employees of the Corporation are not civil servants and that the Corporation is a commercial entity. There is no need to cite these judgments as these were rendered on their own facts and had no applicability to the facts of the present case which revolve around the Pension Regulations and the automatic increase in pension that the appellants allege accrued to them by virtue of office memorandum dated 17.10.2012 issued by the Ministry of Finance. The Corporation could have amended its Pension Regulations by granting a right to its Board of Directors to formulate its own policy with regard to the increase in the pension of its employees. Since it was not done, the Corporation cannot deviate from the command of Regulation 16(3)(iv) which makes it obligatory on it to increase the pension of its employees by following the directions given by the Federal Government. The stance of the learned counsel that the Corporation is under the administrative control of Ministry of Commerce and, therefore, is not bound by the circulars of the Ministry of Finance cannot be accepted. The Ministry of Finance under the rules issues the circulars/notifications for increase in the pension of the employees of the Federal Government and as such the Corporation is bound by the said circulars".[Emphasis underlined]
7. The pertinent question is that whether there is any clause in the regulation which determines and limits the scope of regulation 16 (3)(iv) of Regulations of 1986. In terms of regulations, it appears that discretion has been extended to Chairman of the Corporation or person authorized, being competent authority , to sanction pension. It appears that proper assistance was not provided to the learned bench of this court, as the attention of the learned Bench was not drawn towards regulation 4 of Regulations of 1986 and Article 25 of Life Insurance (Nationalization)
Order , 1972 ( "Order of 1972" ). It is expedient to reproduce regulation No. 4 and Article 25 of Order of 1972; "4. Sanctioning Authority; - The Chairman of the Corporation or a person authorized by him shall be the authority competent to sanction the pension.
25. Corporation to be guided by the directions of [Federal Government]; - In the discharge of its functions under this Order , a Corporation shall be guided by such directions in matters of policy involving public interest as the [Federal Government] may give to it in writing; and if any question arises wheth er a direction relates to a matter of policy involving public interest the decision of the [Federal Government] thereon shall be final."
8. It is evident from the perusal of judgment in ICA No.915 of 2014 that no reference was made to aforesaid regulation and Article, despite being asked by the learned Division Bench. If regulation 4 of Regulations of 1986 is ignored, it would have the effect of rendering the sanctioning authority redundant and subservient to the Federal Government, which was not the intent of the regulations. Regulation No.4, otherwise extends specific power for the purposes of sanctioning of pension to the authority competent. The purpose of the regulations dealing specifically with matters relating to pension would stand compromised if absolute discretion is deemed to have been allowed to Federal Government to direct increase in pension of the employees of corporation.
9. It is apparent from the perusal of the Office Memorandum dated 05.07.2010 that no direction in writing was given to the appellant corporation, in terms of Article 25 of Order of 1972. The Judgment rendered in ICA No.915 of 2014 has not considered the effect and scope of Article 25, ibid. If the intention of the Federal Government was to give effect and implement Office Memorandum qua the employees of Corporation, such intention would have had been conveyed in writing as required in terms of Article 25 of Order of 1972. Regulation 16(3)(iv) cannot be read and implemented in isolation, without considering the effect of regulation 4 of Regulations of 1986. Even otherwise mere indexing of the pension in the manner adopted by the Federal Government would not ipso-facto result in the implementation of Office Memorandum qua the employees of the appellant corporation, completely ignoring the powers of competent authority. The question that whether the Office Memorandum dated 05.07.2010 relates to the matter of policy involving public interest requires indulgence and decision by the Federal Government in terms of Article 25 of Order of 1972.
10. A perusal of Regulation 24(1) of Regulations of 1986 would reinforce our view that where the intention was to make discretion of the competent autho rity, in terms of regulation 4 of the Regulations of 1986, subject to the directions by the Federal Government, such conditions and limitations were spelled with regard to Extraordinary pension. No such limitation has been prescribed with reference to pension otherwise sanctioned, for other employees. Regulation 24(1) is reproduced hereunder; "24. (1) Where an employee is injured, killed or dies of injuries received during the execution of his duties he or his family, as the case may be, shall be awarded such pension/ gratuity or children allowance and subject to such conditions and other limitations as is awarded to civil employees of the Federal Government. The classification of disability, the rate of pension, gratuity or children allowance, principle and procedure for determining attributability to service of the disability and the rights of family members to such pension or gratuity will be the same as prescribed for civil employees of the Federal Government.
11. The Regulations of 1986 have been issued with previous sanction of the Federal Government and enjoyed statutory force and any decision made in ignorance of any regulation, material to the controversy, would be per incuriam. The Regulations of 1986 and purpose thereof cannot be made subservient to the command of the Federal Government, such connotation would negate the purpose of the regulations and violate the spirit of Order of 1972.
12. In the circumstances, the Judgment passed in ICA No.915 of 2014 is per-incuriam and has been passed without considering regulation 4 of Regu lations of 1986 and Article 25 of Order of 1972. Reliance is placed on judgment reported as "Gulshan Ara Vs. The State" (2010 SCMR 1162). Relevant paragraph is reproduced hereunder:- "It appears that a contrary view was taken by two other Benches of equal number of Judges in the cases of Muhammad Hashim and Amanat Ali (supra). In such a situation, apparently the rule laid down by the case of Multiline Associates v. Ardeshir Covasjee PLD 1995 August Supreme Court of Pakistan 423 was required to have been followed which is that if a Bench of equal Judges does not agree with the earlier Bench of equal Judges, then the matter should be referred to a larger Bench. It appears that earlier decisions of this Court in the cases of Nadir Khan and Ali Muhammad (supra) were not brought to the notice of the Benches in the cases of Muhammad Hashim and Amanat Ali (supra), therefore, the principle laid down in the said cases was never discussed. In such a situation this Court in the case of Province of the Punjab v. S. Muhammad Zafar Bukhari PLD 1997 SC 351 observed as under:--- "Halsbury' s Laws of England, Fourth Edition, volume 26 in paras 577-578, has commented on the "judgment per incuriam" as under: "A decision is given per incuriam when the Court has acted in ignorance of previous decision of its own or of a Court of coordinate jurisdiction which covered the case before it in which case it must decide which case to follow or when it has acted in ignorance of House of a Lords' decision, in which case it must follow that decision or when the decision is given in ignorance of the terms of statute or rule has statutory force."
Reliance can be placed on judgment reported as "Fasih ud-Din Khan and others Vs. Government of Punjab and others" (2010 SCMR 1778 ), which relevant portion is reproduced as under:- "The word per incuriam means "carelessness" as held by this Court in "Sindh High Court Bar Association v.
Federation of Pakistan" (PLD 2009 Supreme Court 879). It is also settled principle of law that once the Court has come to the conclusion that the judgment was delivered per incuriam. Such judgment itself is without jurisdiction as per incuriam, therefore, learned High Court erred in law to give due weight to said observation without application of mind."
13. Thus reference made to judgment reported as "Multiline Associates Vs. Ardeshir Cowasjee and 2 others" (PLD 1995 S.C 423) is misplaced. This Court is not taking contrary view of the judgment passed in I.C.A No. 915/2014 but holding it as per incuriam, which was passed in ignorance of the regulations having a statutory force. In these circumstances, there is no need for constitution of a larger Bench.
14. There is no cavil that the fact, the appellant corporation may consider the increase sanctioned in Office Memorandum dated 05.07.2010 and take independent decision qua the increase to be allowed to the employees, but no right / benefit can be claimed by the employees merely upon issuance of the Memorandum. Respondent may approach the appellant corporation for seeking increase in its pension which request, if may shall be considered and decided in accordance with the mandate of the order regulation, 1972.
15. The argument that Office Memorandum dated 05.07.2010 would apply ipso-facto is without force. Regulation 16(3)(iv) of Regulations of 1986 has to be read and interpreted in the light regulation 4 and Article 25 of Order of 1972. Whether regulation 16(3)(iv) can be interpreted in a manner to hold it out of bounds of Article 25 of Oder of 1972 - which interpretation defies time tested principle of law that regulations do transgress beyond the limits of parent statute.
16. In view of the aforesaid, this appeal is allowed and the Judgment dated 13.06.2 018 by learned Single Judge in Chambers is set-aside.