ZAFFAR HUSSAIN MIRZAJ.--This appeal by leave of this Court arises out of judgment, dated 10th March, 1983, by a Division Bench of the Sind High Court, whereby the Constitutional petition filed by the appellant was dismissed. Leave was granted to consider the question whether the appellant is entitled to pensionary benefits as claimed by him.
2. The appellant retired as Railway Guard on 29th September, 1969. Before that he had proceeded on leave preparatory to retirement on 29th September, 1968. It is an admitted position that the appellant was holding a non-pensionable post and prior to 27th April, 1967, the appellant was governed under the State Railway Provident Fund Rules. The Revised Pension Rules as contained in Finance Department's memo No. S.O. (S.R.)-V-257/67, dated 27th April, 1967, were initially framed for the employees in government service but these Revised Pension Rules were made applicable to the railway employees as well. Under para. 2 of the Revised Pension Rules, an employee was required to give his option for the purpose of application of these rules to him within six months of the issue of the memorandum containing these rules. The railway board also issued memorandum No. 66-PNI/ii-ii, dated 10th May, 1967, to give effect to these rules which is as follows:-- "Subject: --Revised Pension Rules and Rates Recommendation of the Pay and Service Commission.
A copy of the Government of West Pakistan Finance Department letter No. S.O.(S.R.) V-257/67, dated 27th April, 1967, is forwarded for information and necessary action.
As provided in paras. 2 and 3 of their letter referred to above. Fresh options should be invited from all railway servants, who were in service on the 1st July, 1966 to elect either their own existing retirement benefits or to elect New Pension Rules, within a period of six months from 27th April, 1967. The options already exercised by them under the previous instructions are to be treated as cancelled.
(3) This supersedes the Rules copies of which were forwarded to you with this office letter of even number, dated 21st September, 1966.
(Sd.)
Iqbal A. Siddiqui, Section Officer, Estt. II."
There is no dispute that the time limit initially fixed under para. 2 of the Revised Pension Rules was extended by letter No. S.O.(SR) V-E(PN)-4(84)-58/417-69, dated 8th April, 1969, issued by the Finance Department, Government of West Pakistan, Lahore, addressed to all the Administrative Secretaries of the Government of West Pakistan. The result was that the period for exercising option by the employees. Who desired to be governed by the Revised Pension Rules was extended for a further period of six months. This extension of time was also made applicable to the railway employees.
3. It is common ground that the appellant did not exercise the option made available under the Revised Pension Rules within the initial prescribed period or the extended time allowed subsequently. However, on 16th June, 1977, the appellant alongwith some other employees of the railway made a joint representation to the competent authorities offering to refund the benefits received by them under State Railway Provident Fund and praying that the pensionary benefits may be extended to them under the Revised Pension Rules. This representation of the appellant and others received sympathetic consideration and was recommended as reflected in the letter of the Deputy Chief Administrative Officer to the Secretary, Railway Board, Government of West Pakistan, Lahore, dated 20th October, 1977. The grounds upon which the recommendation proceeded may be reproduced as under:-- "In this context it is reiterated that the staff concerned had already proceeded on L.P. R. Before the receipt of Railway Board's letter No. E66. PNI/II-II, dated 10th May, 1967 and O. 66-PNI/ II-II, dated 6- 5-1969. In such circumstances, it was lost sight of to inform them regarding the date allowed by the Government for exercising option in favour of Pension Rules of 1966. Also the forms prescribed by this Administration for this purpose, were not supplied to them. Therefore, it will appear incompatible to say that they did not avail the chance of option offered to them.
4.The aforesaid recommendation and the representation of the appellant were, however, rejected by the authorities on the ground that the benefit of the Revised. Pension Rules cannot be provided for failure to exercise the option in accordance with the Rules within the prescribed time. After making further representation which also met the same fate, the appellant filed the constitutional petition before the High Court and contended that as he was not informed by the concerned Railways authorities about the enforcement of the Revised Pension Rules he cannot be deprived of the benefits extended thereunder and his representation made by him in 1977 should have been treated as the exercise of option on his behalf. The learned Judges of the Division Bench repelled the contention of the appellant on grounds which appear from the following extract from the impugned judgment:-- "The learned counsel for the petitioner is unable to draw our attention to any provision in the relevant rules or any other law for the time being enforced which required the Railway Administration to notify its employee individually in such circumstances. In the absence of any statutory provisions requiring Railway Administration to notify its - employees individually in such cases, it is not possible to hold that the authorities were under any legal obligation to notify the petitioner personally in this regard and ask him to exercise for application of revised pension rules and call for the exercise of their option in his case. It is admitted in para 2 of the petition that Revised Pension Rules were published in Railway Gazette No. 15, dated 1-7-1967. It is also admitted in para. 3 of the petition that the letter of Finance Department, dated 8-4-1969, extending the period of option under the Revised Pension Rules was also circulated under the Railway Board Letter No. 69-PNI/II-11, dated 11-8-1969.In view of these admissions in the petition, we cannot accept the contention that the petitioner was unaware about the application of Revised Pension Rules to railway employees and, therefore, could not opt for application of these rules to his case. In our opinion the publication of the Revised Pension Rules or subsequent letter extending the time limit for exercise of option by the employees of the railway through Railway Board letter to all the subordinate and attached departments, amounted to sufficient notice to the petitioner and his failure to exercise the option within the time disentitled him to the benefits of those rules as provided under Rule 3."
It will appear from the above that the learned Judges based their decision on their opinion that the Revised Pension Rules were brought to the notice of the appellant sufficiently by means of publication in the Pakistan Railway Gazette and by subsequent letter of extension of time to all subordinate and attached departments.
5. We have heard the appellant in person and Mr. Abdul Sattar Pingar learned counsel appearing for the respondents. Now as pointed out above, the Revised Pension Rules were made applicable to non---pensionable posts in the Railway Establishment for the first time on 27th April, 1967, and the period initially fixed for the exercise of option was six months from this date. However, admittedly the time for furnishing the option by employees was extended from time to time and the last extension was issued on 8th April, 1969. The important fact is that while there was still ample time available for exercise of option, the appellant had already proceeded on leave preparatory to retirement on 29th September, 1968. He even retired within the extended period for exercise of option on 29th September, 1969. It is, therefore, emphasised that with effect from 29th September, 1968, the appellant was not on active duty and was not ordinarily expected to see for himself any circular that may have been put up on the notice board in the subordinate and attached departments. His submission is that in these circumstances it was the obligation of the concerned authorities to have brought the new Pension Rules to his notice individually in order to bind him down with the consequences for not opting to avail the benefits extended under the Rules. It has been pointed out that right from the beginning emphasis was placed upon giving wide publicity to the decision for promulgating the Revised Pension Rules so that no employee would remain unaware of his right to opt for the pensionary benefits provided for them. In this connection reference has been made to several Gazette notifications commencing from 1st July, 1967 to 22nd March, 1983. It is not necessary to burden this judgment with a detailed reference to all these Gazette notifications. Suffice it to mention letter No. 720E-/09 (E)-II/Policy, dated 8th February, 1972, published in P.W.R. Gazette No. 5, dated 1st March, 1972, which directs that option forms be "supplied expeditiously to the non-pensionable staff for exercising option within the time limit allowed up to 22nd March, 1977." In the same gazette there is a letter of the Railway Board, dated 7th January, 1972, addressed to the Vice-Chairman, West Pakistan Railway Board. Lahore, in which it is directed that the Ministry of Finance's letter pertaining to Revised Pension Rules, should be given wide publicity through all media available on the Railway to ensure that every affected person becomes aware of the facility of revision of option now made available to the staff." All these letters indicate that the departmental construction of the requirement regarding notice of the promulgation of the Rules was that it should be brought to the notice of all affected employees. Learned counsel for the respondents has submitted, however, that these instructions were issued after the period of option prescribed in the case of the appellant had expired. Nevertheless, we feel that all this evidence lends support to the contention of the appellant that even the departmental authorities realised that it was necessary to ensure that each affected person must be informed about his rights under the Revised Pension Rules.
6. The question for determination is whether mere publication of the new Rules in the Pakistan Western Railway Gazette and circulated among the subordinate officers and attached departments was sufficient notice to the appellant. In this connection it has been urged by the appellant that the Revised Pension Rules as originally published were not sufficiently clear specially on the main subject of length of service to be counted for pension benefits and this matter was clarified under Finance Department's letter, dated 8th April, 1969, circulated by the Railway Department, without publishing it in the Pakistan Railway Gazette. According to him it was on this account that fresh opportunity for notifying the option was given by letter, dated 8th April, 1969. In this letter it was clarified that the benefit was applicable to all railway employees, who were in service on 1st July, 1966, irrespective of the fact whether they were in service or had retired before the date of issue of Finance Department's aforesaid letter. As this subsequent clarification was circulated through the Vice-Chairman, Railway Board's letter, dated 16th August, 1969, the grievance of the appellant was that retired employees like him were left less than two months to opt for the Revised Pension Rules.
7. On a purely factual plane it appears to us that there is no dispute that the appellant had no knowledge or other kind of notice that he was entitled to opt for the Revised Pension Rules and that such option was to be exercised within the prescribed time. We find considerable force in the submission of the appellant that even on the legal plane, the full implications of the scheme were not available in the railway gazette, because further clarifications of an essential character, namely, the length of service to be counted for pension benefits and that persons who had already retired could also avail of the benefits, were not published in the railway gazette. It may be pointed out that even in the memorandum issued by the Railway Board on 10th May, 1967, by which effect was given to the Revised Rules. It was directed that "fresh option should be invited from all railway servants". The word 'invited' in the context of subsequent departmental instructions to the effect that it be ensured that all employees entitled to the benefits be made aware of the new scheme only means that as a matter of fact notice of the new Rules should have been given to employees affected thereby.
8. Learned Judges of the Division Bench have reproduced in their judgment rules 2 and 3 of the Revised Pension Rules as applicable to Government servants, which were adopted by the Railway authorities. Rule 2 deals with Government servants in pensionable service and in substance provides method of exercise of the option by notifying to the designated Account Officer or the head of the office concerned. An important provision of rule 2(1), which seems to have escaped the notice of the High Court reads as under:-- "If, on the date, a Government servant is on leave or on temporary deputation outside Pakistan, he may exercise his option and communicate it within six months from the date of his return from leave or deputation abroad."
Sub-rule (4) of rule 2 then provides the consequences as under:-- "A Government servant who does not exercise and communicate his option within the time limit prescribed in sub-pare (1) shall be deemed to have accepted the new pensionary benefits sanctioned in this letter."
Rule 3 then provides for option for government servants in non--pensionable service and lays down that this option was to be exercised in the same manner as in the case of Government servants in pensionable service as provided by rule 2. If the option is not exercised within the prescribed limit such Government servants will not be entitled to the benefits thereof. It will thus appear that in case a Government servant in non-pensionable service was, inter alia, on leave on the relevant date, he could exercise his option and communicate it within six months of the date of his return from leave. Therefore, applying the rules to the railway employees it is obvious that the fixed period of six months to be computed with effect from the date of the issue of the letter, was not applicable in the case of those who were on leave on that date. However, High Court has strictly applied the initial period prescribed by the memorandum as extended subsequently without regard to the fact that on the relevant dates the appellant was either on leave preparatory to retirement or had already retired. The rationale of the rule was clearly to save the employees from the hardship of the time limit when they could not possibly be aware of the new scheme having been promulgated. In the case of the appellant he never returned to duty after proceeding on leave preparatory to retirement. Therefore, he could not have been held to have failed to exercise his option in terms of the rules. In any case this sufficiently demonstrates that the rules do not visualize the case of such officer, who had already proceeded on leave preparatory to retirement and on expiry of such leave stood retired. The penal consequences of the rules could, therefore, not be applied in the case of such employees and the only course left open to the authorities was to bind them down by bringing to their notice the benefits under the new Rules and asking them to exercise their option within the prescribed time. Here we might observe that recent tendency of the Courts is to prefer a wide meaning which carries out what appears to have been the object of the Legislature more fully and avoid a narrow meaning which carries it out less fully or not at all. The Revised Pension Rules were obviously promulgated for the benefit of the employees and failure to notify the benefits under the rules to the concerned employees would obviously not be conducive to carrying out the object of the rule making authority. The subsequent instructions ensuring proper dissemination of information about the rules among the concerned, in our opinion, is in this context an effort to put into effect the said object. It is laid down that the fact that a section is clearly designed to afford relief may incline the Court to construe it more benevolently than. It might a less obviously remedial enactment. Looking at the case from any angle, we are unable to agree with the High Court that merely because the rules initially issued were gazetted and circulated in the subordinate and attached departments the concerned employees had notice of the rules. In the light of what has been stated we feel that the Deputy Chief Administration Officer's recommendation in his letter dated 20th October, 1977, was eminently just and reasonable that persons who had proceeded on leave preparatory to retirement during the currency of the option period, not having been offered the opportunity to elect for the benefits under the new Rules, their cases merit exceptional treatment. It is regrettable that the competent authorities did not appreciate the justification for this recommendation.
9. For the foregoing reasons we allow this appeal with costs, set aside the judgment of the High Court and direct the respondents to accept the option submitted by the appellant for grant of pensionary benefits under the Revised Pension Rules, 1966, subject to others conditions prescribed therein.