1. ' The petitioner has filed this petition to challenge the orders of the respondents reducing or stopping the payment of ordinary and additional pension to him and for further directions that the same be paid to him alongwith the arrears. The case of the petitioner is that he was in service of the respondent University as a teacher in Urdu department and he retired on 30-9-1972 as Associate Professor after having completed a total service of 20 years. He contends that pursuant to a circular dated 6-11-1973 issued by the respondent he opted for the Sind University Employees Pension Statutes which were made effective from 1st July 1972 which were constituted under the provisions of section 41 of the University of Sind Act 1972 for the, benefit of its officers, teachers and other employees. Assent to the said Statutes was given by the Vice-Chancellor under section 10(5) of the above-said Act. The abovesaid Pension Statutes were duly published in the Sind Government Gazette on 3-1-1974 under Notification No,OSD(HE)/8/17-73 dated 2 9-1973. It is further contended that by virtue of above option he was entitled to both, the ordinary pension and the special and additional pension according to the prescribed schedule as per Statutes No,4.4 and 4.5 respectively and he was accordingly issued a pension order dated 8-4-1975 where under he was given a sum of Rs,616.67 per month as ordinary pension and Rs,125 per month by way of additfonal pension. It is next contended that the Director Local Fund Government of Sind subsequently without any lawful reason objected to the validity of the said statutes in respect of the provision for the additional pension and grant of the same to the petitioner on the ground that the Sind Government had abolished the same whereupon the respondent obtained legal opinion from their legal adviser who also disagreed with the said opinion and maintained the view that the respondent was fully empowered to constitute the said Statutes but in spite of that the said Director Local Fund Audit who had by then joined the service of the respondent University as Director Finance, stopped the payment of the additional pension to the petitioner in the year 1978 which action was in violation of Statute No,1.8. It was also contended that this stoppage has been effected after the petitioner had been receiving the said pension for about 6 years from the date of his retirement. The petitioner thereafter made representation and ultimately the respondent University clarified vide its resolution No,26 dated 26-4-1979 as amended by resolution No,1 dated 17-5-1979 holding that he was entitled to ordinary as well as additional pension but in spite of that the same was not paid to him and the petitioner again filed an appeal and his case was placed before the Syndicate of the respondent University who passed the resolution allowing him the additional pension vide resolution dated 13-6-1982 but yet no payment was made towards additional pension. Not only this but he received a letter dated 24-10-1983 from the respondent threatening to recover the payments already made to him. The petitioner again made an application and in reply he was communicated the resolution No,9(1) passed by the Syndicate in its meeting held on 17-12-1983.
2. Thereafter petitioner made several reminders and representations but all in vain and ultimately he filed the present petition. That the respondent filed their comments wherein it was contended that the said Statutes also had special schedule providing for working out the pension and according to this, an employee having completed 20 years of service was entitled to maximum. Limit of pension of Rs,5,500 per annum although it was admitted that the petitioner having opted for the Above said Statutes of 1972 was entitled to ordinary pension and additional pension according to prescribed schedule as contained in Statutes No,4.4 and 4.5 respectively. It was further contended that the then Treasurer of the respondent had erroneously calculated the amount of pension of the petitioner at Rs,616.67 per month and additional pension of Rs,125 per month but the same on the basis of correct calculation' come to Rs,458.33 and Rs,125 respectively. It is case of the respondent that on account of some confusion with regard to applicability of the said Pension Statutes, the reference was made to the Director Local Fund Audit Sind who had given the said opinion and the Director Finance of the respondent University finding excess payment of gratuity stopped the payment of the same amount of excessive pension to the petitioner. It is further contended that the Director Finance exercised his discretionary powers to safeguard the financial interest of the respondent University as the petitioner had already received the amount in excess. The various applications and representations made by the petitioner and the various resolutions passed by the respondent was not denied. However, it was contended that according to the Statute 4.4, the petitioner was entitled to maximum annual pension of Rs,5,500 as per the schedule and also he was entitled to special additional pension of Rs,1,500 per annum under Statute 4.5 and also he was entitled to gratuity under Statute 4.5(3) and the schedule given thereafter. We have heard Mr. Z.U.
3. Ahmad learned counsel for the petitioner and also Mr. Kishenchand learned counsel for the respondent. The admitted facts in the matter are that the petitioner did retire on 30-9-1972 as Additional Professor in Urdu Department after having completed 20 years with the respondent and that he was entitled to the pension. It is also admitted that the petitioner had opted for the Sind University Employees' Pension Statutes which came into effect from 1-7-1972 and by virtue of Statutes 4.4 and 4.5 he was entitled to the ordinary pension as well as additional pension. It appears that thereafter the Director Local Fund Audit Government of Sind who subsequently joined the service of respondent University as its Finance Director had taken up the plea that since such pension rules were not applicable to the employees of the Provincial Government, same would not be allowed to the employees of the respondent University and the present petitioner. He also took the plea that the previous Treasurer of the Sind University had erroneously calculated the pension of the petitioner and over-payment was made which was to be recovered.
4. ' At the very outset Mr. Z.U. Ahmad has drawn our attention to the report filed with the counter- affidavit of the petitioner on 24-10-1988 which he has marked as Annexure S/2. This report which is signed by the Vice-Chancellor on 3-10-1974 shows that the deficiency in the service of the petitioner by 5 months and 19 days was condoned. This report also shows that the petitioner was allowed the special additional pension as admissible under Statute No,4.5 on account of his meritorious service- satisfying the standard of work and conduct required under the special conditions of the post held. Consequently an order was issued by the respondent University bearing No,Estt/486A dated 8-4-1975 which reads as under:-- "ORDER ' As Mr. Muhammad Murtaza Kazi, Ex-Associate Professor, Department of Urdu, Sind University, has.
5. Retired from University service on 30-9-1972, after completing Twenty (20) years of effective service in Sind University, he has been granted Pension under section 4.4 of the Sind University Employees Pension statutes which comes to Rs,616.67 p.m. Plus the additional pension under section 4.5 amounting to Rs,125 p.m., totalling Rs,741.67 p.m. The pension may be drawn and paid to Mr. Muhammad Murtaza Kazi from the date of retirement from the Sind University Service regularly.
6. (Sd.)
7. 2.4.1975 REGISTRAR, UNIVERSITY OF SIND, SIND" ' tom this Mr. Z.U. Ahmad argued that it is apparent that the service f the petitioner is treated to be 20 years' service, that he was ranted ordinary pension under Statute 4.4. Amounting to Rs,616.67 er month and that having earned additional pension under. Statute 5 he was allowed Rs,125 per month. This position.Of fact is not ontroverted by the learned counsel for the respondent. However, he argues that initially the petitioner was entitled to pension as per schedule under Statute 4.4. As gazetted in the Sind Government Gazette on 3-1-1974, photostat copy of which has been submitted by the respondent with the comments which shows that the maximum limit of pension per annum for 20 completed years of qualifying service is Rs,5,500 and therefore, his fixation of ordinary pension at Rs,616.67 was erroneous.
8. ' With regard to above position Mr. Z.U. Ahmad has taken u., through relevant pension rules (statutes). He has not denied the original position as per the schedule mentioned above but he has argued that subsequently by a resolution passed on 10-2-1975, the said schedule was revised and the maximum limit of pension in case of 20 completed years of qualifying service was revised to Rs,7,800 per annum as against previous maximum Rs,5,500 per annum. He has drawn our attention to the minutes of the Senate meeting held on 10-2-1975 adopting the pension statutes already gazetted in the Gazette of 3-1-1974 and further having modified/revised the schedule vide item No,9 and the consequent resolution passed. He has also referred to the revised schedule which is also produced with the affidavit of the petitioner at page 5 of the Annexure S/1, which shows the maximum of Rs,7,800.
9. ' In this context Mr. Z.U. Ahmad has referred to the pension statutes as gazetted in the Sind Government Gazette 3-1-1974. Statute 3.1 lays down' the four classes of pensions to which an employee is entitled. It will be advantageous to reproduce here the relevant Statutes:- "3.1. Classifications of, Pensions.- Pensions are divided into four classes:
(a) Compensation Pension.
(b) Invalid Pension.
(c) Superannuation Pension.
(d) Retiring Pension.
10. Note:- Special additional pension is also granted to certain classes of employees under special circumstances."
11. "4.2. (1) If the service of an employee has not been thoroughly satisfactory, the authority sanctioning the pension may make' such reduction in the amount of pension as it may think proper.
(2) The special additional pension admissible under Statute 4.5 is not to be given as a matter of course, but only where the service rendered is approved as satisfying the standard of work and conduct required in the special conditions, of the post held and for which special additional pension is admissible."
12. "4.4. Amount of Full pension.-(1) After a qualifying service of not less than 10 years, full superannuation, retiring, invalid or compensation pension may be granted not exceeding the maximum limits prescribed."
13. "4.5. Special Additional Pension.-(1) For grant of special pension, there shall be two grades of employees namely, Upper Grade and Lower Grade as shown in the.Schedule under this Statute as amended from time to time.
(2) An' employee may be granted an additional pension (a) at the rate of Rs,300 for each completed year of effective service in any post included in the low grade, and (b) at the rate of Rs,500 for each completed year of effective service in any post in the upper grade, upto a maximum of Rs,1,500 per annum for service in lower grade appointments, and R,.2,500 per annum for service in lower and upper grade appointments combined or in upper grade appointments alone, provided that in the case of an employee who has earned an additional pension by service in appointments in both the upper and lower grade service for any broken period of year in the upper grade may count as service in the lower grade if his pension would be thereby increased."
14. "SCHEDULE.
(a) UPPER GRADE
(a) Vice-Chancellor, Professors, the Principal Sind University Engineering College, the Registrar and the Employees of their status, if any.
(b) The employees drawing pay of Rs,1,700 per month or more or those employees whose maximum of pay scale is not less than Rs,2,000.
(b) LOWER GRADE.
(a) Readers, Treasurer, Controller of Examinations and employees of their status, if any;
(b) The employees drawing pay of Rs,1,400 or more per month or those employees whose maximum of pay scale is not less than Rs . 1,500 . "
15. Mr. Z.U.Ahmad has argued that the additional pension is not something which is to be granted in ordinary course but is to be earned under Statute 4.2(2) and that the report of the competent authority as referred to earlier shows that the petitioner did earn the special pension. He has also drawn our attention to various corresponded 'e contained in the letters addressed to the petitioner from the University authority whereby the respondents have admitted the entitlement of the petitioner to additional pension. Letter No,ADMN: Teach/1483 dated 27-6-1982 reproduced the contents of resolution No,3(2) dated 13-6-1982 to the above effect. So also is the letter No, ADMN/Teach/91 dated 4-1-1984 reproducing resolution No,9(1). Lastly our attention was drawn to a letter No,ADMN/Teach/904 dated 7-3-1984 in which also the net pension of the petitioner is calculated at Rs,604.04 per month which is based as per the pension calculation memo attached therewith.
16. ' Mr. Kishanchand Lachmandas learned counsel for the respondent has frankly conceded that the petitioner is entitled to additional pension of Rs,125 per month but he has disputed his entitlement of ordinary pension which was fixed in accordance with revised schedule as per Resolution No,9 of 10-2:1975. He has argued that the Statute No,1.12 of the said Statutes as gazetted on 3-1-1974 provides that "Amendments additions etc to the West Pakistan Civil Service Pension Rules, from time to time, shall be considered amendments, additions, etc. To these statutes, from time to time."
17. ' His contention therefore, is that it will be rules of Provincial Government that will govern pension of the employees of the Sind University of the respondent and the resolution passed by the Syndicate will not affect the same. He has argued that since such evised rate was not granted to the employees of the Provincial vernment, the same would not be available to the petitioner. We cannot subscribe to above contention of the learned counsel. Me Statutes gazetted on 3-1-1974 shows that the said statutes were assented to by the Chancellor.
18. ' Section 28(1)(A) of University Act 1972 provides as under:- "28. Statutes.-(1) Subject to the provisions of this Act, Statutes may be made to regulate or prescribe all or any of the following matters:-
(a) The constitution of pension, insurance, gratuity, provident fund and benevolent fund for University employees:"
19. This shows that the statutes with regard to pension may be made. Whereas the powers of the Senate as per section 28(2) of the University of Sind Act do give powers to Senate to approve or pass such drafts, the very fact that the pension was allowed to the petitioner as per the order dated 8-4-1975 and same had been acted upon which shows that the said revision of schedule in the Statutes was duly authorized and approved. Secondly, the said order granting the pension to the petitioner as per the revised schedule having been acted upon, the same, in our view now cannot be revised with retrospective effect to the disadvantage of the petitioner. It is well-settled law that no fiscal statutes or rules shall be given retrospective effect, especially when the same is to the disadvantage of the incumbent.
20. ' In view of the above discussion, we hold that the petitioner is entitled to receive the pension, both ordinary and additional as per schedule to Statutes 4.4 and 4.5 as published in Sind Government Gazette of 3-1-1974 and revised as per Resolution No,9 passed on 10-2-1975 and as ordered vide No,Estt/486A of 8-4-75 and that the petitioner is not liable to refund any amount of pension, allegedly overpaid to him. We further direct the respondents to pay the petitioner his ordinary and additional pension above terms alongwith all the arrears.
21. ' The petition stands allowed in above terms. However, there will be no order as to costs.