JUSTICE (RTD) MUNAWARALI KHAN (CHAIRMAN).-- On attaining the age of superannuation, the appellant Dr. Aftab Ahmed, who was working in BS-20, as Addl. Secretary, Health Department, retired from service on 25.1.1988. By then he claimed to have completed 34 years from the date of his entry in service in 1953. During this period he was compulsorily retired from service in 1972 under MLR 114, though he was ultimately reinstated in 1978. The said gap of six years that the appellant remained out of service was treated as extraordinary leave and was accordingly excluded from the period qualifying for the pension. The appellant's pension was therefore computed on the basis of 28 years of service. He was issued the PPO accordingly. The appellant took up the matter with the Pension Cases Disposal Committee headed by the Chief Secretary but he did not get the desired relief vide Finance Department's order dated 24.6.1989. The said order was challenged by the appellant in the departmental appeal filed before the Chief Minister on 6.7.1989 but before any decision was taken on his said departmental appeal, he filed Appeal No:90/1989 before this Tribunal.
2. By office memorandum No: F.1(6)/R.6/87-v.11, dated 20th December, 1989, the Federal Govt, in the Finance Division allowed the benefit of 30 years service for the purpose of computing pension to those Govt. Servants who were reinstated under MLO-23. This concession was adopted by the Govt, of Sind vide Finance Department's Circular letter dated 25th April, 1990 addressed to all concerned.
Thus the appellant too got the benefit and his pension was recalculated on basis of 30 years service. Such intimation was also conveyed to him. But he was still unsatisfied because the remaining four years were not counted towards the qualifying period for the pension. However, he withdrew his aforesaid appeal in order to fight out his case before the departmental authorities. He once again filed departmental appeal and after awaiting for decision thereon for a period of 90 days, the appellant filed the present appeal before this Tribunal.
3. We heard the arguments of Mr. M.L. Shahani, learned counsel of the appellant and Mr. Abdul Ghafoor Mangi, learned AAG and carefully went through the documents relevant for the appeal and the authorities cited at the bar.
4. In his earlier appeal (Appeal No. 90 of 1989), the appellant's prayer was that his pension be refixed on the basis of 34 years of service instead of 28 years of service. The said appeal was however, withdrawn by application dated 20th May, 1990 wherein it was inter alia stated: The appellant has now received communication from the respondents that he has been granted pension equivalent to 30 years of service, whereas the claim of the appellant is for 32 years of service. Appellant submits that he is still aggrieved against the order and after complying with the formalities of law, if his grievance is not redressed will move fresh appeal." Thus it is appellant's own admission that he withdrew his earlier appeal in the wake of refixation of his pension on the basis of 30 years' service. It would appear that he was granted relief in pension to the above extent in terms of the office memorandum dated 20th December, 1989 of the Finance Division, Govt, of Pakistan which was accepted by Sind Government vide Finance Department's letter dated 25th April, 1990. But since the appellant's claim was not fully satisfied in as much as that the entire period of 34 years was not counted for the purpose of fixing his pension, he challenged the Govt's memorandum in question in the departmental appeal dated 17.6.1990 addressed to the Chief Secretary. As no decision was made on his said departmental appeal within a period of 90 'days he filed the present appeal.
5. The Pakistan Government's memorandum which has been made the target of attack in the appeal may be reproduced as under:- The undersigned is directed to say that in cases of a few Government servants reinstated under MLO-23, their service qualifying for pension at the age of superannuation will fall short of 30 years due to exclusion of the intervening period between retirement and reinstated. In such cases, it has been decided that the intervening period may be counted towards pension to the extend the qualifying service falls short of 30 years at the age of superannuation."
6. On perusal of the above memorandum there should be no doubt that in case of the Government servants reinstated under MLO-23, from the total period they remained out of service, they have been allowed to count only as much, period which together with their other period of service should come to 30 years. The appellant was out of service in all for six years. If this period is added to his 28 years, actual service, the total becomes 34 years. However, the appellant has been granted pension on the basis of 30 years and not 34 years. In other words he has not been given benefit of extra four years over and above the period of 30 years qualifying for full pension. The appellant's case was obviously not the normal case of retirement. Had he retired in normal circumstances without any break in his service, he would have surely got the benefit of the entire period of 34 years in pension. Since his case is covered by MLO-23, and as such is different from normal cases of retirement, it has to be regulated by the said MLO and the orders/notifications issued from the to the thereunder.
7. In this connection proviso to para 5 of ML-23 is relevant and is reproduced as under:- "provided that any order passed on a petition including an order of reinstatement shall not entitle the petitioner to any damages, compensation, or arrears of emoluments or other benefits for the period he remained out of service."
8. It would appear that the appellant by virtue of his reinstatement under MLO-23 was not entitled to claim any damages, compensation or arrears of emoluments or other benefits. The question would arise if the words "other benefits" following the benefits of monetary nature included the pension benefits. It is clear that the words "other benefits" have been used in sequence of the benefits of financial nature. Accordingly as per rules of interpretation, the words "other benefits" would in our opinion, be interpreted as also monetary benefits. This view finds support from the Supreme Court authority reported as Government of Pakistan -v- Muhammad Iqbal (PLD 1987 Supreme Court 427) which has been relied upon by the appellant himself in support of his case vide ground (E) of the memo of his departmental appeal dated 17.6.1990. On page 436 at side line 'F of the above reported case, the Supreme court held: " on a fair reading of the proviso, it does appear that the words 'other benefits' relate to advantages of a monetary nature only. To this extent the interpretation placed by the learned counsel for the respondents on those words seems to be correct."
9. It is thus clear that on his reinstatement under MLO-23, the appellant could not automatically claim the monetary benefits specified in the proviso hereinabove. The relief claimed in this appeal is certainly a monetary benefit. Of course it is a different thing if the Government decides to allow all or any of such monetary benefits to the re-instated Government servant including the appellant. The said proviso does not place any bar on Government's power for allowing such monetary benefits. This is evident form the fact that although initially the whole of period for which the civil servants concerned remained out of service was treated as leave without pay and hence was not counted towards the period qualifying for pension, yet by memorandum mentioned above the said civil servants were allowed the benefit of as much period from the out-of-service period by which the qualifying period of 30 years1 service fell short of. During the pendency of his earlier appeal even the appellant got the relief in pension upto 30 years of service, the period qualifying for full pension. Accordingly we are of the view that the Federal Govt's memorandum impugned in this appeal, is not violative of any law or rule but is rather gesture of good will shown by the Government to the Government servants reinstated under MLO-23. The leamed counsel for the appellant was unable to point out any lacuna in the impugned memorandum or even its inconsistency with any law or rule. We find, on the contrary, that the memorandum under attack derives further strength from the Supreme Court authority on which the appellant has placed reliance. In the case of Muhammad Iqbal referred to above, it was held by Supreme Court as follows: "Civil Servant who were reinstated in service consequent upon the promulgation of MLO-23 formed a class by themselves and in respect of those falling in this class, the Government has issued special instructions which include the manner in which their seniority on reinstatement is to be determined. See Office Memorandum of the Establishment Division bearing No: 3/378-R.L.I, dated 5th July, 1978. These instruction being of special nature particularly intended for the class of officers to which respondents belong, must override the general principles of seniority as contained in the Annexure."
10. The dictum laid down by the Supreme Court hereinabove with regard to determination of seniority of the civil servants reinstated under MLO-23 shall, in our opinion, apply with full force even in fixation of their pension as a class. That is to say the special instructions issued to indicate the manner in which the pension of the said class of civil servants has to be calculated will supercede the ordinary rules of pension otherwise applicable to civil servants in general. In view of such clear cut authority cited by the appellant himself, we are unable to see how the authorities could be compelled to apply ordinary rules of pension to the appellant who belongs to special class of civil servants reinstated under MLO-23. It has been categorically denied on behalf of the official respondents that Abdullah Arain of Forest Department who like the appellant was reinstated under MLO-23 was ever treated differently. He too was given the benefit of out-of service period only to the extent of making up the shortage in the qualifying period of 30 years.
11. Despite the views expressed in the foregoing paragraphs, the learned counsel for the appellant exhibited his unusual enthusiasm in inviting our attention to the recent judgement delivered by the Supreme Court on 16th January, 1991 in the four Constitution Petitions namely CP No: 15-R of 1989, CP No:16-R, of 1989, CP No: 2-R of 1990 and CP No: 5=R of 1990. The learned counsel stated that the appellant's case is on all fours with the cases covered by aforesaid common judgement of Supreme Court vehemently arguing that as per the law laid down by the Supreme Court in the said judgement the appellant was entitled to the benefit of four years' period which has been excluded from consideration for the purpose of calculating his pension. We have carefully gone through the judgement which is no doubt historic in its importance, as it has thrashed out with great elaboration the points raised and agitated in the cases covered by it. But we are sorry to say that it has no relevance to the issue involved in the appellants case. If the Supreme Court has expressed its view at some places of the judgement having any bearing on the appellant's case the said view of the said August Court is certainly against the appellant. No doubt the said judgement has been delivered in the petitions filed either by the pensioners or on their behalf. Two of the petitions were filed by Associations of the Pensioners and the remaining two by the pensioners themselves. In order to judge if the issue involved in appellant's case was adjudicated by the Supreme Court in the aforesaid judgement, we may reproduce para 2 of the main judgement written by my Lord, Amal Mian J. It reads as under: "2. Factual matri may be referred to in brief. The petitioner in C.P.No:15-R/89 joined civil service in 1940 and retired from the rank of Joint Secretary (Grade-20) with effect from 15.11.1976. Whereas the petitioner in C.P.No:5-R/90 joined civil service in 1958, but from 1966 till July, 1974, he performed duties in the Judicial Branch of the Civil Service of Pakistan. He was elevated as an Additional Judge to the then Sind and Baluchistan High Court on 7.10.1974, where he worked as such upto 31.12.1976, when the above High Court was bifurcated into two High Courts, namely, Sind and Baluchistan High Courts. After that, he performed his duties as an Additional Judge from 1.12.1976 to 6.10.1977 of the Baluchistan High Court and thereafter as its permanent Judge from 7.10.1977 till 7.4.1981, when he was retired with effect from 25.3.1981, under the Provisional Constitution Order 1981.
The petitioner in C.P. No:16-R, 89 is an Association of the G.H.Q, retired civilian officers, where as the petitioner in C.P.No: 2-R/90 is a registered Association for the welfare of retired persons.
The grievance of the above petitioners and the Associations is that the retired civil servants and the retired judges hereinafter referred to as the pensioners, are being discriminated in payment of enhanced pension in violation of Article 25 of the constitution in as much as certain increases in the pension have been denied to some of them on the ground that they had retired prior to a specified date. However, the case of the respondents besides preliminary objections as to the maintainability of the petitions, is that no discriminatory treatment has been meted out and that the pensioners are paid pensions according to the Rules applicable to them."
12. It would appear from the above recitals that there is no similarity between the appellant's case and the cases decided by the Supreme Court. This is further clear from the operative para 33 of the same judgement which is also reproduced hereunder: "33. We would, therefore, allow the above petitions to the extent of declaring that denial of additional benefit of 2% of pension for each year of service exceeding 30 years subject to a maximum pf 10% of pension sanctioned referred to hereinabove in para 19(a) (xvii) to the pensioners who retired prior to 1.7.1986 and denial to the petitioner in C.P.No:5-R of 1990 of the benefit under P.O.No.5 of 1988 referred to hereinabove in para 19(b)(v) on the ground that he retired prior to 1. 7.1987 founded on above eligibility criteria as to the date of retirement, being discriminatory and violative of Article 25, and, they are entitled to the same (if not already granted) so long other pensioners are paid."
13. The above para clearly shows that any enhancement in pension it made applicable only to limited group of pensioners retiring on or before or after the specified date, such enhancement was discriminatory in nature violating Article .25 of the Constitution. That is however, not the case of the appellant. In his case ordinary pension rules applicable to civil servants in normal circumstances have not been applied but instead his pension has been calculated in accordance with special instructions issued by the Government because the appellant belongs to special class of civil servants reinstated under MLO-23. The discrimination to the above extent between his class of Government servants and other Government servants was approved by the Supreme Court not only in its earlier pronouncement in the case of Mohammad Iqbal Junejo but also in its recent judgement hereinabove, zealously relied upon by the appellants learned counsel. In the recent judgement after considering its earlier authorities with regard to interpretation of Article 25 of the Constitution, the Supreme Court has deduced certain principles of law specified in para 26 of the judgement. The said principles of law are repeduced as under: "26. From the above cited case the following principles of law are deducible:- i) that equal protection of law does not envisage that every citizen is to us treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike; ii) that reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis; iii) that different laws can validly be enacted for different sexes, persons in different age groups, persons having different financial standings, and persons accused of heinous crimes; iv) that no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstance may be unreasonable in the other set of circumstances; v) that a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25; vi) that equal protection of law means that all persons equally placed be treated alike both in privileges Conferred and liabilities imposed; vii) that in order to make a classification reasonable, it should be based:- a) on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out; b) that the differentia must have rational nexus to the object sought to be achieved by such classification."
14. It is thus clear even from the recent judgement that despite the fundamental right of equality of all citizens in respect of any law as enshrined in Article 25 of the Constitution reasonable discrimination has been permitted for the purpose of application of the said Article and therefore reasonable classification of citizens can be made. Testing the appellant's case in the light of above principles we have come to the irresistable conclusion that since the appellant belongs to special class of civil servants reinstated under MLO-23 and their classification appex to us to be based on reasonable consideration he is not covered by Art. 25. As such ordinary pension rules applicable to civil servants in general will not apply to him. His pension is to be fixed or refixed in accordance with special instructions issued by Government form the to the, which has already been done in his case.
15. The up shot of above discussion is that appeal must fail. It is accordingly dismissed with no order as to costs.
16. Given under our hands and the seal of this Tribunal on this 18th day of July, 1991 at Karachi.