SAHIBZADA ASADULLAH, J.---Through the instant constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner Meherban Khan has sought the following relief. On acceptance of instant petition, this Hon'ble Court may very graciously be pleased to direct the respondents to release and pay all pensionary benefits and other emoluments of the petitioner in BPS-16, or grant any other remedy deem it fit in the circumstances to meet the ends of justice.
2. Essential facts/history of the case which prompted the petitioner to file present writ petition are that the petitioner was initially appointed as Typist (BPS-5) vide office order dated 17.4.1976 and thereafter promoted from BPS-5 to BPS-6 on 08.01.1992 and posted as Carriage Inspector. Again, vide office order No. 64-70/TC-II dated 06.01.2005, the petitioner was promoted to the post of Assistant Taxation Officer BPS-11 and then the petitioner had been granted BPS-16 vide office order dated 29.10.2015. Finally, on 14.10.2016 the petitioner was retired from service on attaining the age of superannuation and pension case of the petitioner was prepared and sent to the Director Local Fund (Audit) Khyber Pakhtunkhwa, Peshawar for consideration and final sanction but the respondent No. 6/Director Local Fund (Audit) returned the pension case of the petitioner by refusing to sanction pensionary benefits in BPS-16 to the petitioner, being aggrieved, the instant writ petition.
3. Learned Additional Advocate General present in the Court, accepts notice of this petition.
Arguments of learned counsel for the petitioner along with Addl. A.G representing the official respondents heard. Record perused.
4. The prime and critically important question involved in the petition is that whether the petitioner was granted BPS-16 with retrospective effect and in this respect, all relevant entries were made in his service in compliance with office letter dated 29th September, 2015 as well as corrigendum circular dated 8th October 2015 and started getting pay of such selection grade till his retirement i.e 14.10.2016 and after serving almost 04 years in BPS-16, he is entitled to receive the emoluments and pensionary benefits of such post.
5. To fully appreciate the contention of the parties it is important first to look over the upgradation of the petitioner, suffice to say that petitioner has been promoted/upgraded to the higher pay scale in violation of Rules has no efficacy for the reason that since after petitioner's posting in higher pay scale and till the date of his retirement i.e 14.10.2016, the petitioner has throughout worked and discharged his functions as Assistant Taxation Officer. It has not even been alleged that during these 14 years the petitioner has failed to discharge his duties as Assistant Taxation Officer to the satisfaction of his superior or gave way to any complaint regarding his conduct and performance as such. Indeed it is true that the employment and retirement benefits are neither a bounty nor largess, but the same have to be earned by performing the assigned job, and discharging the prescribed duties, which criteria the petitioner has fully met to the satisfaction of his superior/employers. Moreso, the petitioner having been notified as Assistant Taxation Officer and having served as such for long span of time, cannot now be denied his perks and privileges as such. The payments of such perks, privileges and benefits are also protected under the doctrine of legitimate expectancy, as in the circumstances the petitioner was wholly justified in expecting such payments.
6. The basic issue before us is whether the petitioner is entitled to receive the pension. In terms of the various dictas laid down by the august Supreme Court of Pakistan, pension is a retirement benefit, paid regularly based generally on the length of service of a pensioner. It is a series of periodic money payments made to a person who retires from employment because of age, disability, or the completion of an agreed span of service. The payments generally continues for the remainder of the natural life of the recipient or to a widow or any other survivor, as the case may be. Reliance is placed on H.R.C. No.40927-S of 2012 (PLD 2013 SC 823).
7. The right to a pension may be made to depend upon such conditions, as the grantor may see fit to prescribe. Thus, it has been held that it may be provided in a general through a pension act. In Ghulam Sadiq v. Government of Pakistan (2005 PLC (C. S.) 1114), a larger Bench of the Federal Shariat Court held that: It may be noted here that the terms pension denotes to a "grant" after release from service and right of pension depends upon the statutory provisions regulating it, therefore, to our mind, the pensioners retired at different dates cannot claim increase in pension at a particular rate.
In Pakistan Telecommunication Employees Trust (PTET) v. Muhammad Arif (2015 SCMR 1472) and Secretary, Government of Punjab, Finance Department v. M. Ismail Tayer (2015 PLC (C.S.)
296), the august Supreme Court of Pakistan held that: It was noted, and such has been done time and again by this Court that pension is a part of a civil servant's retirement benefit and is not bounty or an ex-gratia payment but a right acquired in consideration of his past service which was a vested right with legitimate expectation. The right to pension is conferred by law which could not be arbitrarily abridged or reduced except in accordance with law.
8. At this point, it is essential to see the definition of 'pension' and the root through which such rights arises in light of the case titled I.A. Sharwani and others v. Government of Pakistan and others (1991 SCMR 1041). Importantly, the relevant excerpt of this case is reproduced hereunder: 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.
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. Conversely full pension admissible under the rules is not to be given as a matter of course unless the service rendered has been duly approved. If the service has not been thoroughly satisfactory, the authority sanctioning the pension is empowered to make such reduction in the amount as it may deem proper. This power is however exercisable only before pension is actually sanctioned."
While considering the above definition of pensions, it was held in I.A. Sharwani case supra that a Government employee's claim to pay and allowances is regulated by the rules in force at the time in respect of which the pay and allowances are earned, whilst his claim to pension is regulated by the rules in force at the time when he retires, resigns, or is invalidated, or is compulsorily retired, or is discharged from service, or is injured, or sudden death whilst in service, depending upon the type of pension claimed. In respect of superannuation pension, the amount of pension payable is determined by the length of completed years of qualifying service put in by the Government servant, subject to the formula then in existence providing the mode of calculation of pension as prescribed by the rules. The right to receive pension flows directly out of the rules applicable and not out of any order of any officer or authority, though for the purposes of determining or quantifying the amount it may be necessary for the authorities to pass such order. The right to receive pension by a Government servant is property so as to attract Articles 23 and 24(1) of the Constitution and any illegal denial to a Government servant to receive the same would affect his fundamental right guaranteed under the said provisions of the Constitution.
9. In view of case law discussed above, we are of the considered view that after retirement of the petitioner, the respondents had no lawful authority or reason to withhold pensionary benefits of the deceased employee, which action on their part had definitely resulted in causing great financial hardship to his family members. The prolonged delay in releasing the emoluments and pension of the petitioner even after repeated request to the respondents to release pension but the respondents failed to pay any heed to the lawful request of the petitioner. This Court does not find any lawful reason or ground to justify withholding of pension and other pensionary benefits by the respondents, to which otherwise the petitioner is entitled according to law. In the case of The Government of N. W. F. P. through the Secretary to the Government of N. W. F. P.
Communications and Works Department, Peshawar v. Mohammad Said Khan and another (PLD 1973 SC 514) the Hon'ble Supreme Court of Pakistan has held as under: "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."
Keeping in view the hardships being faced by the retired government servants in receiving their pensionary benefits due to the lethargic and uncalled for attitude of the concerned officials/officers the Hon'ble Supreme Court of Pakistan in the case of Haji Muhammad Ismail Memon Advocate Complaint (PLD 2007 SC 35) while deprecating such a tendency has issued directions/guidelines to all government departments not to cause unnecessary hurdle or delay in finalizing the payment of pensionary/retirement benefits in future otherwise any dereliction of these directions shall amount to criminal negligence. The Hon'ble Supreme Court of Pakistan has also directed that "in future if there is any delay in the finalization of the pension benefits cases of the government servants, widows or orphan children and smatter is brought to the notice of this Court, the head of the concerned department shall also be held liable for the contempt of the Court and shall be dealt with strictly in accordance with law".
10. In view of the various different dictas of the august Supreme Court of Pakistan, we are of the opinion that pension is the right of the civil servant by way of statute, which cannot be taken away arbitrarily by the respondents. This right accrues in favour of the retired civil servant due to the length of his service and that right is then bestowed upon the persons mentioned in the Rules in the event of their death. Therefore we find that the basic contention: of the petitioner seems to be genuine for the obvious reasons that when any employee is going to be retired from service his pension case shall be prepared during his service and after his retirement the pension shall be paid to the employee immediately without any delay. Consequently, the right of pension is now vested in favour of petitioner who is entitled to collect the pension subject to the terms provided in the Rules.
11. For the foregoing reasons and viewing consensus on case laws, withholding pension and other, pensionary benefits/dues/arrears to which the petitioner is entitled under the Rules is held illegal and unlawful. Consequently, the instant writ petition is allowed and the respondents are directed to release the pension and other dues/arrears/benefits of the petitioner immediately.