MIRZA VIQAS RAUF, J. The petitioner namely Kaneez Fatima is the widow of a Judge of this Court (Justice Arshad Mahmood Tabassum), who was elevated as Additional Judge on 29th October, 2013 and was confirmed as permanent Judge on 28th October, 2015. Unfortunately, husband of the petitioner passed away on 27th December, 2015 due to cardiac failure at the age of fifty-six years, while being in service. The petitioner considering herself to be entitled for the benefits in terms of revised assistance package approved by the Prime Minister of Pakistan through office memorandum No.8/10/2013-E-2 (Pt) dated 04th December, 2015 brought the matter to the notice of the Registrar, Lahore High Court, Lahore (respondent No.3) through written application, a copy of which was also sent to the Hon'ble Chief Justice. The claim of the petitioner to the extent of lumpsum amount of Rs.3 million was allowed by the Hon'ble Chief Justice vide order No.4290-B/1- A-40 (2015-2016) dated 25th February, 2016. The remaining claim was, however, forwarded to the Secretary, Government of Pakistan, Establishment Division, Islamabad, who further routed the same to the Government of Pakistan, Ministry of Law and Justice Parliamentary Affairs, Pakistan. The applicability of the office memorandum dated 04th December, 2015 was initially though acknowledged by the Ministry of Law and Justice but finally through office memorandum No.F.5(1)/2013-A.H dated 21st February, 2020 claim of the petitioner was declined and the previous office memorandum was withdrawn, which is now impugned in the instant petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as "Constitution").
2. This petition was admitted for regular hearing vide order dated 24th May, 2021 and a notice was issued to the respondents whereas a notice in terms of Order XXVIIA of the Code of Civil Procedure (V of 1908) was also issued to the learned Attorney General for Pakistan as well as learned Advocate General for Punjab. The notice under Order XXVIIA of the Code ibid was, however, recalled in the light of consensus developed interse all in attendance that the petition for the time being does not disclose any question as to interpretation of any law as required under Order XXVIIA of the Code of Civil Procedure (V of 1908) vide order dated 24th March, 2022. The respondents submitted their report and parawise comments out of which comments on behalf of respondent No.1-A are more pertinent, as the claim of the petitioner is mainly resisted by the said respondent. The reason assigned by respondent No.1-A is that the petitioner being the widow of retired Judge of High Court is only entitled to claim facilities under Paragraph 28 of the High Court Judges (Leave, Pension and Privileges) Order, 1997 (hereinafter referred to as "Order") whereas office memorandum was only applicable to the families of the Federal Government employees/civil servants who died during service.
3. Learned counsel for the petitioner contended that since the petitioner has already' received lump sum grant of Rs.3 million so her claim is now left with regard to payment of rent of hired house till the age of superannuation and lump sum payment in lieu of plot subject to condition that no plot had been allotted in the past. He added that in terms of Paragraph 29 of the "Order" the petitioner being the widow of a Judge is entitled for the privileges extended to families of government employees through revised assistance package, which is even affirmed by the respondents through office memorandum dated 03rd May, 2016. It is contended with vehemence that said office memorandum has been withdrawn through impugned office memorandum unilaterally and without assigning any lawful reasoning. Learned counsel argued that part of package has already been paid to the petitioner and as such the respondents are precluded to deprive the petitioner from the remaining privileges. It is further contended that no plausible reason has been assigned for withdrawal of the previous office memorandum and even otherwise the respondents have no lawful authority to interpret the law as per their awn choice. Reliance is placed on Federation of Pakistan through Secretary capital Administration and Development Division, Islamabad and others v. Nusrat Tahir and others (2018 SCMR 691)
4. The claim of the petitioner on the other hand is resisted by the Law Officer representing Federation on the ground that being the widow of retired Judge the petitioner has already availed facility in terms of Paragraph 28 of the "Order", so she cannot claim the privileges of a government employee. It is contended that office memorandum dated 03rd May, 2016 was rightly withdrawn by respondent No.1-A and the petitioner has no locus standi to challenge the impugned office memorandum.
5. Heard. Record perused.
6. The moot point involved in this petition is as to "whether the petitioner being the widow of Judge can claim privileges/benefits of office memorandum dated 04th December, 2015?"
7. The appointment of a Judge of the High Court is to be made under Article 193 of the "Constitution" which provides that Chief Justice and each Judge of the High Court shall be appointed by the President in accordance with Article 175A of the "Constitution". Article 205 of the "Constitution" prescribes the remuneration and others terms and conditions of service of a Judge of Superior Court, which reads as under:- "205. The remuneration and other terms and conditions of service of a Judge of the Supreme Court or of a High Court shall be as provided in the Fifth Schedule."
In terms of Paragraph 2 of the Fifth Schedule to the "Constitution" a Judge of High Court is entitled for the remuneration in the form of salary, allowances, privileges and pension as determined by the President. In order to determine the privileges, allowances and as the rights in respect of leave of absence and pension, the "Order" was promulgated. Paragraph 28 of the "Order" deals with the facilities to Retired Judges and it also lays down benefits to the spouse of a Judge on his retirement and after his death in the following manner :- "28. FACILITIES TO RETIRED JUDGES.-
(1) A judge on retirement, and after his death, the spouse shall be entitled to the following benefits and perquisites at government expense, namely:---
(a) the services of a driver or an orderly at his option;
(b) 800 free local calls per month;
(c) 800 units of electricity per month as well as 25 HM 3 of gas per month;
(d) free supply of water;
(e) 150 liters of petrol per month;
(2) If during service a judge dies or has died before the commencement of this Order, the spouse shall also be entitled to the benefits and perquisites provided in sub-paragraph (1);
(3) No income tax shall be payable in respect of benefits and perquisites to which a judge or the spouse, as the case may be, is entitled under this paragraph.
(4) A judge on retirement opting to avail the facilities specified in sub-paragraph (1) shall undertake to perform the work of arbitration involving Government interest if assigned to him without charging any fee."
(5) The facility and benefits given to the retired judge under this paragraph shall stand suspended on his re-employment with Federal or Provincial Government."
(Underlining supplied for emphasis)
Paragraph 29 of the "Order" provides subsidiary conditions of service, which is reproduced below for ready reference and convenience :- "29. SUBSIDIARY CONDITIONS OF SERVICE.- Subject to the provisions of this Order and such other provisions as the President may make in this behalf, the other privileges and rights of a Judge shall be determined by the rules for the time being applicable to an officer appointed by the President and holding the rank of secretary to the Government of Pakistan: Provided that nothing in this paragraph shall have effect so as to give to a Judge who is a member of a civil service less favourable terms in respect of his conditions of service than those to which he would have been entitled as a member of such service if he had not been appointed as a Judge, his service as Judge being treated as service for the purpose of determining those privileges and rights."
(Underlining supplied for emphasis)
From the bare perusal of the above referred provisions of law it is manifestly clear that the privileges of a Judge or his/her spouse are neither limited nor restricted to Paragraph 28 of the "Order" but a Judge or his/her spouse as the case may be can also become entitle for other privileges if any other provision is made by President in this behalf as determined by the rules for the time being applicable to an officer appointed by the President and holding the rank of Secretary to the Government of Pakistan in terms of latter Paragraph. It is undeniable fact that in terms of Section 5 of the Civil Servants Act, 1973 appointments to an All-Pakistan Service or to a Civil Service of the Federation or to a civil post in connection with the affairs of the Federation, including any civil post connected with defence, shall be made in the prescribed manner by the President or by a person authorized by the President in that behalf.
8. An interpretation drawn by the learned Law Officer, that a Judge or his/her spouse can only be allowed privileges and facilities in terms of Paragraph 28 of the "Order" and Paragraph 29 of the "Order" is restricted to the officers of civil services, found to be fallacious after having combined analysis of the above noted provisions of law. At the cost of repetition it is observed that Paragraph 29 of the "Order" is not in negation of Paragraph 28 of the "Order" but it is actually in addition and furtherance to the said provision, so the privileges and rights of Judge or his/her spouse cannot be curtailed to the limits of Paragraph 28 of the "Order".
9. The above was apparently the reason that in the first instance the Ministry of Law and Justice, Government of Pakistan issued the office memorandum dated 03rd May, 2016 stating therein as under :- "The undersigned is directed to refer to Establishment Division's O.M. No.B/32/2016-E-2 dated 6th April, 2016 on the subject noted above and to state that Paragraph 29 of the High Court Judges (Leave, Pension and Privileges) Order, 1997 (P.O. 3 of 1997) deals with subsidiary conditions of service and says that subject to the provisions of the aforesaid Order and' such other provisions as the President may make in this behalf, the other privileges and rights of a judge shall be determined by the rules for the time being applicable to an officer appointed by the President and holding the rank of Secretary to the Government of Pakistan.
2. The aforesaid provisions make it amply clear that O.M. of Government of Pakistan No. 8/10/2013- E-2 (Pt) dated 4th December, 2015 have the force of rules and applies to a judge of the High Court who dies during service."
(Underlining supplied for emphasis)
This was the reason that a lump sum amount of Rs.30,00,000/- (rupees three million only) was sanctioned in favour of the petitioner by the orders of the Hon'ble Chief Justice without any objection from any quarter and as such part of assistance package in question was acted upon.
10. Before dilating upon the other aspects of the case it would be advantageous to first have a glimpse of the historical background of office memorandum. The term 'memorandum' in this new generic sense began to be used in the later 1870s and early 1880s, although it did not become common until the 1920s, by which time the form of the memo was in widespread use. Office memorandum is a special order of the Government. Basically, an Office Memorandum is a document released by a proper authority stating the government's policy or decision. It is recognized as an order from the government or a circular released by the executive branch. An office memorandum is thus not a stray paper rather it has the force of law. Guidance in this respect can be sought from Secretary to theGovernment of Punjab, Irrigation and Power Department, Irrigation Secretariat, Lahore v. Abdul Hamid Arif and others (1991 SCMR 628). Reliance in this respect can also be placed on Muhammad Saleem v. Federal Public Service Commission and others (2020 SCMR 221) wherein the Hon'ble Supreme Court held as under:-- "14........Now, it was common ground before us that these Office Memorandums had the force of law.
The question however is: what is the legal source of the power whereby, or in terms whereof, these Office Memorandums have been issued? This question is of central importance to deciding this appeal since it will be recalled that one basic objection taken by the appellant to the ML&C Group OM is that it is (in relevant part) inconsistent with the 1973 Act and the rules framed thereunder and must therefore yield to, and before, the latter.
15. Keeping the foregoing analysis in mind it is our view that the legal source for the issuance of the Office Memorandums can only be the 1973 Act itself. Thus, the legal power whereby the Office Memorandums have been issued is nothing other than an aspect (and exercise) of the rule making power conferred in terms of section 25(1). The reason is that, as shown above, the present Constitution has removed entirely the earlier direct and independent grant of rule making power on the Executive branch. On the constitutional plane there is now only one repository of the power in relation to the appointment and the terms and conditions of service of civil servants, and that is the legislature. It would therefore be incorrect to posit that, notwithstanding this important and in many ways fundamental change from the past, the Executive branch nonetheless somehow continues to have (perhaps on some residual basis) a direct and independent power in this regard. That cannot be so. Even a bare glance at the Office Memorandums shows that they are concerned with the terms and conditions of service of the civil servants who fall within the relevant Group. It will also be recalled that in terms of section 25(2) not only rules but also the orders and instructions carrying over from previous dispensations were deemed to be "rules" under the statute.
Even though the Office Memorandums do not formally make reference to section 25 it surely cannot be otherwise with regard to terms and conditions settled under them after the commencement of the present Constitution. In our view therefore, in law the Office Memorandums whereby the Occupational Groups are established emanate from, and are an exercise of, the rule making power conferred on the "President or any person authorized by the President in this behalf".
16. lf, as we have just concluded, the legal source from which the Office Memorandums emanate is the rule making power, it necessarily follows that they are co-equal with other rules framed in terms thereof, such as the APT Rules. In other words, they cannot be considered subordinate to such rules. It follows from this that the Office Memorandums cannot, in case of any inconsistency, be regarded as yielding to the rules otherwise made under section 25 (i.e., more formally with specific reference thereto). Since in the legal hierarchy they are of equal standing, the Office Memorandums and rules such as the APT Rules must be read together in a harmonized and consistent manner, to the maximum extent possible. It is only if there is an irreconcilable difference that the question of which will prevail would arise. And that question would have to be addressed by resort to well established rules of interpretation, including (but not limited to) those such as relating to earlier versus later in time, or general versus specific etc. Which particular rule(s) of interpretation would actually apply (and how) would depend on the actual provisions under consideration and the context in which they operate."
11. It is thus quite strange that after interpreting the office memorandum dated 04th December, 2015 in a righteous and equitable manner, respondent No.1-A has taken a summersault and through impugned office memorandum, after holding otherwise, has withdrawn office, memorandum dated 03rd May, 2016 unilaterally and without any justifiable cause. It is an oft repeated principle of law that a right having stemmed out from a legal origin is always a vested right, which cannot be obviated by the executive. The respondents were even otherwise estopped by their words and conduct to withdraw the previous office memorandum beneficial to the petitioner. Reference in this respect can be made to Badshah Gul Wazir v. Government of Khyber Pakluunkhwa through Chief Secretary and others (2015 SCMR 43).
12. There is yet another important aspect that it is well recognized principle of law as ordained in Section 21 of the General Clauses Act, 1897 most commonly known as principle of "locus poenitentiae" that once a benefit has accrued from legal source and it is availed by its recipients it can neither be transgressed nor rescinded thereafter, as such right becomes indefeasible and absolute. In somewhat similar circumstances in the case of Federation of Pakistan through Secretary Capital Administration and Development Division, Islamabad and others v. Nusrat Tahir and others (2018 SCMR 691) the Hon'ble Supreme Court of Pakistan held as under:-- "11. As a secondary and also tenuous argument, learned Deputy Attorney General contended that the Health Allowance is granted under executive fiat without any statutory backing therefore the same can be withdrawn by the Federal Government at any time. That is clearly a flawed contention. It is admitted that grant of the Health Allowance and the terms of eligibility to receive the same were determined by the competent authority, Ministry of Finance in accordance with Rules of Business of the Federal Government. The original terms of the said lawful grant still hold the field. These were acted upon and payment of the Health Allowance to the respondents has conferred a vested right upon them. In such circumstances, the executive is barred by the rule of locus poenitentiae from unilaterally rescinding and retrieving the benefit availed by its recipients.
Reference is made to Pakistan, through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi (PLD 1969 SC 407) and The Engineer-in-Chief Branch v. Jalaluddin (PLD 1992 SC 207). Therefore without a change of the terms of eligibility for the Health Allowance even the prospective exclusion of the respondents from receipt of the benefit shall constitute arbitrary and unlawful action."
Reference to the above can also be made to Province of Punjab through Secretary, Finance Department, Civil Secretariat, Lahore and others v. Atta Muhammad Zafar and others (2021 SCMR 1195), Constitution Petition No.127 of 2012 (REGARDING PENSIONARY BENEFITS OF THE JUDGES OF SUPERIOR COURTS FROM THE DATE OF THEIR RESPECTIVE RETIREMENTS, IRRESPECTIVE OF THEIR LENGTH OF SERVICE AS SUCH JUDGES) (PLD 2013 Supreme Court 829), Nazir Ahmad Panhwar v.
Government of Sindh through Chief Secretary Sindh and others (2005 SCMR 1814).
13. The nutshell of above discussion is that the petitioner, being the widow of a Judge, who died in service, is also entitled for the benefits in terms of office memorandum dated 04th December, 2015, more precisely payment of rent of hired house till the age of superannuation and payment of lump sum grant in lieu of plot subject to condition that no plot had been allotted in the past. As a sequel of above impugned office memorandums No.F.5(1)/2013-A.II dated 21st February, 2020 issued by the Government of Pakistan Ministry of Law and Justice and No.8/32/2016-E-2 dated 19th March, 2020 issued by the Government of Pakistan Cabinet Secretariat Establishment Division are set aside, being illegal and unlawful. This petition is thus allowed on above terms with no order as to costs.