1. ' Plaintiff S. M. Lutfullah, (who will hereafter be referred as the deceased) had instituted this suit for declaration, and recovery of arrears of salary and pension against the Government of Pakistan through Secretary, Ministry of Home Affairs, Islamabad, as well as the then Government of East Pakistan, through the Secretary, Home Department, Dacca. The deceased died during the pendency of this suit on 8th August, 1980, and is now represented through his legal heir in the proceedings (who will be described hereafter as `the plaintiffs'). The suit was resisted by both the defendants on common pleas and accordingly following issues which were suggested by the plaintiff were adopted by the Court on 2nd of April, 1970 :- "(1) Is the suit maintainable ?
(2) Is the suit time-barred?
(3) Has this Hon'ble Court jurisdiction to try this suit?
(4) Is the plaintiff entitled for full benefits of service in India for purposes of his pension as contained in the Establishment Division's Office Memorandum No, 55/2/51/M. E., dated 15-9-1955?
(5) Was the plaintiff's appointment in East Bengal Provincial Police Service treated as transfer of service from one Government to another and was the continuity of service in India maintained ?
(6) Has the plaintiff's scale of pay to be governed by para. 3 of letter No, 10/38/52-Police-I, dated 12-2-1954 read with letter No, 42/4/46-police, dated 6-7-1946, this being Annexures "H" and "I" to the plaint?
(7) Was the pay of the plaintiff finally fixed by the A.G. East Pakistan on 2-8-1963 as alleged in para. 10 of the written statement and was the plaintiff informed of this fixation of pay?
(8) Was an amount of Rs, 6,221.24 due from the plaintiff as alleged by the defendants in para. 11 of the written statement ?
(9) Is the plaintiff entitled to the fixation of his pay as calculated in para. 16 of the plaint?
(10) Is the plaintiff entitled to Rs, 29,275.23 as arrears of his pay ?
(11) Is the position of the plaintiff that of an officer working on the terms of an expressed contract contained in the appointment letter or has plaintiff to be governed by various rules and notifications, orders and letters of the Government?
(12) Is the Finance Ministry's Office Memorandum No, 0. B. 2/18/63-IMP, dated 22-4-1964 applicable to the plaintiff ?
(13) To what relief is the plaintiff entitled?
2. ' After recording of the evidence, final arguments in the suit were heard by my learned brother Ajmal Mian, J. Who reserved the judgment on 7-5-1978. However, it appears that my learned brother while writing the judgment noticed certain legal points on which no arguments were addressed by the parties' counsel and accordingly on 10-5-1978 he ordered for issuance of notice to the parties for 16-5-1978 for further arguments on the following points :- "A notice may be issued to the learned counsel for the parties for 16-5-1978 for further arguments on the following points :- (the copy of this order should also be sent with the notice).
(1) What is the effect of the fact that no decree can be passed against defendant No, 2.
(2) Admittedly plaintiff was serving in the then East Pakistan and was drawing salary from the Auditor-General Office East Pakistan upto nevertheless mentioned here that in paragraph 10 of the written statement filed on behalf of defendant No, 1 it is categorically stated that in March 1966 Government sanctioned a pension after obtaining report from the A.-G. P. On the amount of pension and gratuity admissible to the deceased On the face of this admission in the written statement of defendant No, 1 the contention raised by Mr. Sher Ali that defendant No, I was not liable to pay pension or gratuity to deceased in view of the provisions contained ii section 4, Appendix III to the Accounts Code Volume I has no force. The last point noted in the order of my learned brother is with regard to the effect of the provision of the Services Tribunals Act, 1973 on this suit. There is no difficulty in answering this point as the provisions of Services Tribunal Act are not applicable to the cases in which orders were passed before 1-7-1969. The orders in this case were admittedly of such earlier date. I the written arguments filed on behalf of defendant No, 1 it is conceded that the suit is not hit by section 6 of the Services Tribunal Act.
4. Having dealt with all the points noted in the order of my learned brother dated 10-5-1978, I will now consider the issues settled in the suit by the Court on 2nd February, 1970.
3. ' Issue No, 1 : ' This issue relates to maintainability of the suit. It is contended o behalf of defendant No, 1 in the written arguments that the suit with regard to pension is not maintainable under section 4 of the Pension Act, 1871 The relevant provision relied upon by the defendant No, t is as follows :- "(4) Except as hereinafter provided, no civil Court shall entertain any suit relating to any pension or grant of money or land revenue conferred or made by the (Federal Government or any Provincial Government) or any former Government, whatever may have been the consideration for any such pension or grant and whatever may have been nature of the payment, claim or right for which such pension or grant may have been substituted."
4. ' A reading of the above provisions of law will show that except as otherwise provided in the Act civil Courts have no jurisdiction to entertain an adjudicate upon disputes relating to pension or grant of money or land Revenue conferred or made by the Government. This section is very widely worded and the leaves no room for adjudication by a civil Court any dispute relating to pension or grant of money in any form. The present suit does not fall under section 6 of the Act which authorises a civil Court to entertain claim for recovery of pension in particular circumstances. Mr. Kam Mansoor Alam, the learned counsel for plaintiff contended that the High Court is not a civil Court within the meaning of section 4 of the Act. The learned counsel has relied upon the case of Hussain Bakhsh v.
5. Settlement Commissioner (1) to support his contention. The case cited by the learned counsel has no relevance as in that case the argument considered by the Supreme Court was with regard to power of review by the High Court while exercising writ jurisdiction under Article 98 of the Constitution of 1962. I am, therefore of the view that the jurisdiction of this Court is barred to entertain the dispute with regard to pension of the deceased.
6. ' Issue No, 2 : ' This issue raises the question of limitation. It is contended in the written arguments on the behalf of defendant No, 1 that the cause of action for recovery of salary is governed under Act 102 of the Limitation Act which
(1) PLD 1970 SC 1 ' provides a period of 3 years and the limitation will start from the last day f each month. Article 102 of the Limitation Act relied upon by the learned/counsel for defendant No, 1 in my view will apply in those cases only where here is no dispute with regard to the rate of salary. However, where the mount of salary is yet to be fixed, this article of Limitation Act will have application. The cause of action in such a case in my opinion will arise some the date the employee concerned is informed about the fixation of his salary. In the present case there is sufficient material on record to show that there were serious differences/disputes between the deceased and defenant No, 1 with regard to the fixation of his pay. In one of the letters acted 30th August, 1954, produced in the evidence it is stated that the question of confirmation of the deceased in the listed post of P. S. P. Is under on side ration of the Government of Pakistan, Ministry of Interior and as soon as orders are issued the question of fixation of his pay in the P. S. P. Cable will be taken up with the Central Government.
7. Defendant No, 1 in is written statement had contended that the salary of the deceased was fixed 2- 8-1963 but in the written argument filed on behalf of defendant No, 1 t is conceded that the order, dated 2-s-1963 has been produced in the evidence. The deceased had denied this fact and the defendant No, 1 did of lead any evidence to show that the salary of the deceased was so fixed 2-8-1 63 and that the deceased was intimated about it. On the contrary he deceased all along kept agitating that his salary was not fixed in the scale to which he was entitled. On 27-4-1966 the deceased was for the first time intimated about fixation of salary when a copy of Memorandum o.
8. Reg. VI/IP-12/65, dated the March, 1966 was endorsed to him demanding from him a sum of Rs, 6,221.24 allegedly over drawn by him. Even in this better the amount of refixed salary of the deceased was not disclosed. From the leadings in the suit it is quite clear that the dispute between the deceased and defendants related to the fixation of his pay under the relevant rules. In these circumstances even if it be assumed that the deceased's salary was axed as contended by defendant 1, even then the deceased was informed of such fixation only by the letter referred to above copy whereof was endorsed him for the first time on 27th April, 1966, and therefore, the suit as filed n 25-4-1969 is within time. ' issue No, 3 : It is contended on behalf of defendant No, 1 that this Court has no jurisdiction to try the suit as the deceased was in the service of the then government of East Pakistan and also retired there, and therefore, the cause of Action, if any arose within the then territory of East Pakistan. From the written statement filed on behalf of defendants in the suit it is clear that the deceased as a Central Government employee being the member of Pakistan Police rives. The gratuity and the pension of the deceased was sanctioned ordering to paragraph 10 of the written statement by the Central Government March, 1966. The actions which are challenged in the suit of defendant No. 1. It is not di putted that suit against defendant No, 1 could be filed this Court. I therefore, hold that this Court has jurisdiction to try the suit.
9. Issue No, 4 : ' In view of any findings on Issue No, 1 that this Court has no is diction to try a dispute relating to the payment of pension, this issue nnot be decided by this Court. ' issue No, 5 : ' It is contended on behalf of the defendant that since the plaintiff resigned from his post in U. P.
10. Government (India) with effect from 12-4-1948 and was appointed by the Government of East Pakistan with effect from 11-11-1948 his appointment by the Government of East Pakistan was on the terms and conditions mentioned in Exh. 6/7 relied upon by the defendant No,
1. The deceased was offered an appointment in the provincial police cadre as substantive Deputy Superintendent of Police. The deceased was asked to intimate if he was willing to resign from his present post under the U. P. Government and join the police service of East Bengal. The deceased, it appears, accepted the offer and after resigning from his post joined East Bengal Police Services. The appointment of deceased though appeared to be a fresh appointment was treated in the nature of a transfer of service from one Government to another as would appear from the notification, dated 12-6.1954 (Exh. 6/11) and accordingly the requirements of consultations for new appointments with the Police Services Commission of East Bengal were dispensed with. Similarly vide Exh. 6/9, dated 23-11-1943, the deceased was allowed actual railway or steamer fares for himself and his family members from his present residence to the place of posting as admissible under the rules. The concession is not allowed in case of a fresh appointment but is admissible only the transfer from one Government to another. Apart from these facts, the Government of Pakistan while considering the question of payment of pensioner benefit to the displaced Provincial/States Government servant (vide Exh. 6/15), who left their pensionable post in India and were later employed under the Government of Pakistan, decided that such employees if reemployed by the Central Government of Pakistan, on or before 31-12-1950, will be allowed benefit of service rendered by them in the provinces in India. Even the temporary employment of such employees in the Central Government of Pakistan was treated as qualifying service for grant of pension. In this policy decision the Government also condoned the break of service of such employees. It is also not disputed that the seniority of the deceased was fixed in the service taking into account the service rendered by him in the province of India. From the above fact it is quite clear that continuity of deceased's service was maintained. It accordingly hold that the appointment of the deceased in East Bengal Provincial Police Service was treated as a transfer of service from one Government to another and the continuity of service rendered by the deceased in India was maintained.
11. ' Issue No, 6 : This issue is the main issue in the suit. The deceased had claimed that his pay was liable to be fixed in accordance with paragraph 3 of letter No, 10/38/52 Police 1, dated 12-2-1954 read with letter No, 42/4/46-Police, dated 6-7-1946. The defendants on the other hand contended that the case of the deceased fell under paragraph 2(a) of the above letter. In the written arguments filed on behalf of defendant 1 it is contended that paragraph 3 of the above letter was not applicable to the case of deceased as he was not a permanent member of the East Pakistan Police Service, on 18-7-1947 having been appointed in the said Province on 11-11-1948. Paragraph 3 of the letter referred to above is in the following terms :- "(3) An officer of a Provincial Police Service who was a permanent member of that Service on the 18th July, 1947 and was, with effect from a date prior to the 1st January, 1949, appointed to hold substantively a superior post on the cadre of the Police Service of Pakistan which falls within the quota of posts reserved for members of the Provincial Police service shall be entitled to draw pay in the superior time scale of the old I. P. His pay in that scale shall be fixed as from the date of his substantive appointment to the superior post according to the orders issued by the late Government of India. Home Department, in their Notification "No, 113-111/24, dated the 20th March, 1928 as subsequently amended in their letter No, 42/4/44-Police, dated the 6th July, 1946, subject to the application, upto the 31st March, 1951, of the orders made in the Government of Pakistan, Ministry of Finance 0. M. No, 3885-EG/II/48, dated the 12th July, 1949, as amended from time to time."
12. ' A reading of the above paragraph will show that for application of this paragraph to the case of a Police Officer two conditions were prescribed. Firstly he must be an officer in a Provincial Police Service on 18-7-1947 and secondly prior to 1-1-194) he should have been appointed to hold substantively a superior post reserved for members of Provincial Police Services in the cadre of Police Services of Pakistan. The deceased fulfilled both the above qualifications. The deceased was undoubtedly a permanent member of the Provincial Services on the target date namely 18-7-1947 in the Provincial Government of United Province (India). The fact that the plaintiff was a permanent employee of the Provincial Government of U. P. Is borne out from Exh. 6/2 which is a certificate from the U. P. Government confirming that the plaintiff was confirmed as Deputy Superintendent Police w. e. f. 16-3-1941. Again in Exh. 6/5 which is a civil list published by the U. P. Government, at page 265 the name of the deceased appeared as Deputy Superintendent of Police. Similarly in Exh .6/9, dated 23-11-1946, the plaintiff is shown as directly recruited Deputy Superintendent of Police in the United Province of India and officiating Superintendent of Police since 1947. The deceased in his examination-in-chief (Exh. 6) stated on oath that he was appointed on 16-3-1939 as Deputy Superintendent of Police in United Province (India) and after completing two years period he was confirmed in that post. This statement of plaintiff was not at all challenged in the cross- examination. There is, thus, sufficient evidence on record to show that the deceased was a permanent Police officer in the Provincial Police Service of U. P. (India) on 19-7-1947. The deceased's appointment in the cadre of Police Service of Pakistan prior to 1-1-1949 in the quota reserved for members of Provincial Police Services is evidenced by the two Exhs. 6/12 and 6/14, dated 25-6-1959.
13. In Exh. 6/13 the deceased is stated to have been appointed by then Government of Pakistan to be the member of Police Services of Pakistan with effect from 11-11-1948. In the second Exh. 6/1 the deceased who was officiating Superintendent of Police is shown to have been confirmed in the post w. e. f. 11-11-1948.
14. ' The case of plaintiff was, therefore, fully covered under paragraph 3 of letter Exh. 6/17. Paragraph 2 had no application to the case of the deceased as paragraph 2 applied to such case which are not covered under paragraphs 3 to 5. The contention raised on behalf of defendant No, 1 that the deceased not being a permanent member of the Provincial Police Service of East Pakistan on 18-7- 1947 was not covered under paragraph 3 of Exh. 6/17 but will be governed under paragraph 2 of the letter, is based on a misconceived interpretation of the above instructions. There was admittedly no province of East Pakistan in existence on 18-7-1947 as Pakistan itself came into being on 14-8- 1947. The Provincial Police Service referred to in paragraph 3 of Exh. 6/17, therefore, has reference to the Provincial Governments of the then India and not Pakistan. I accordingly hold that the salary of the deceased was liable to be fixed in accordance with the principle laid down in paragraph 3 of Letter No, 10/38/52-Police I, dated 12-2-1954.
15. ' Issue No, 7 : ' It was contended on behalf of defendant No, 1 that the salary of the deceased was fixed by the Accountant-General East Pakistan on 2-8-1963 and he was informed of his fixation of pay. The learned counsel for defendant No, 1 in the written argument has conceded that this order is not produced in the evidence and there is no other evidence in support of it. The deceased had denied this fact in his evidence. I accordingly hold that the defendants have failed to prove this issue.
16. ' Issue No, 8 : ' Defendant No, 1 has claimed that a sum of Rs, 6,221.24 was overdrawn as pay by the deceased which he was liable to pay to the defendants. This amount is stated to be so due from the deceased in the letter (Exh. 6/22), dated March, 1966. The deceased in his evidence had denied that this amount was overdrawn by him. The burden of proving this issue was on defendants. The deceased was not cross-examined by the defendants' counsel on this point. No evidence was led by the defendants to prove how this amount was due from the deceased. The deceased however in his examination-inchief (Exh. 6), stated that he had no objection to the deduction of car advance amounting to Rs, 339.59 claimed in paragraph 5 of letter Exh. 6/22. I accordingly hold that the defendants have failed to prove that a sum of Rs, 6,221.24 was due and payable by the plaintiff.
17. ' Issues No, 8 and 10 : ' I will deal with both these issues together as they are inter-connected. I have already held under Issue No, 6 that the deceased was entitled to the fixation of his pay in terms of paragraph 3 of the letter Exh. 6/17. The learned counsel for the plaintiff accordingly contended that the minimum pay of the deceased on promotion to the superior post in the P. S. P. Cadre should have been fixed from the date of his substantive appointment which was 11-11-1948, according to the orders issued by the late Government of India, Home Department vide Notification No, F-113-111/24, dated 20-3-t928, as amended by letter No, 42/4/44-Police, dated 6-7-1946. In accordance with the letter dated 6-7- 1946, the minimum pay of such officer was to be fixed on the senior time scale of pay at the lowest stage which exceeded not less than Rs, 200 a month of the substantive pay last drawn by him in the regular line of his service or at the stage of the 11th year of service whichever is greater. The basic pay of an officer of P. S. P. Cadre at the 11th year is admitted to be Rs, 800 as shown in the Annexure to Exh. 6/17. The deceased's salary, therefore, should have been fixed at Rs, 800 per month from 11-11-1948. The deceased had produced the calculation of his arrear of pay on that basis (Exh.
18. 6/23) which worked out to Rs, 29,27.23. The only contention of learned counsel for defendant No, 1 is that paragraph 3 of letter Exh. 6/17 was not applicable to the deceased. He made no attempt to show that the calculation made by the deceased in Exh. 6/23 were wrong or incorrect if paragraph 3 of Exh. 6/17, applied to the case of the deceased. I have examined these calculations in the light of relevant rules and they appeared to be correct. 1 accordingly hold that the deceased was entitled to the arrears of his salary amounting to Rs, 29,275.23.
19. ' Issue No, 11 : ' It is contended by the learned counsel for defendant No, 1 that this issue does not arise on the pleadings of the parties. It is further stated by the learned counsel that the service of the deceased was governed in accordance with the rules, notification and orders of the Government applicable to him. In view of this statement of the learned counsel for the defendant No, 1 and in veiw of my decision on Issue No, 6 this issue need not be decided specifically.
20. ' Issue No, 12 : ' This issue cannot be decided by this Court in view of my decision on Issue No, 1.
21. As a result of the above discussion I declare that the deceased's pay was liable to be fixed in accordance with the principles laid down in paragraph 3 of letter No, 10-38/52-Police-1, dated 12-2- 1954 and accordingly the deceased was entitled to further benefits if any, on retirement in the light of the above instructions. The plaintiffs are, therefore, entitled to a decree for arrears of salary amounting to Rs, 29,275.23 with proportionate costs against defendant No,
1. The plaintiffs will also be entitled to interest at rate of the 6 per cent per annum on the amount of arrears of salary from the date of decree till the amount is paid. The suit against defendant No, 2 is dismissed with no order as to costs.