' NAZIR AHMAD BHATTI, J.--- All the aforesaid 4 Shariat petitions are interconnected in the sense that the petitioners therein were employees of the Government of Pakistan and are retired pensioners and in receipt of pension. All the petitioners of the aforesaid 4 Shariat petitions are alleged to be old pensioners on account of the term 'old pensioners' and 'new pensioners' used by the Government of Pakistan in its notifications of the years 1985 and 1986 which have been challenged in all the 4 Shariat petitions on the ground that the same are inconsistent with the Injunctions of Islam. The petitioners have also challenged that not only the terms 'old pensioners' and 'new pensioners' but also the difference between rates of pensions of the old and new pensioners are inconsistent with the Injunctions of Islam as contained in the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h).
2. In Shariat Petition No.63/I of 1990 (hereinafter referred to as S.P. No.63) Major-General (Retd.)
Shireen Dil Khan Niazi and Colonel (Retd.) Amir Nawaz are petitioners. Both the petitioners are retired officers of the Army. They have both mentioned in the petition that they had given the best part of their life to the service of the country and retired many years ago but they are not treated at par with the Army Officers who retired after them in the matters of pensions and commutation of pensions. They have challenged the action of the Government of Pakistan in paragraphs Nos.5 to 13 of their petition. For' the better understanding of their contentions the aforesaid paragraphs are reproduced hereunder:-- {{URDU TEXT}}
3. Major (Retd.) M. Yousaf Khan and others petitioners in S.P. No.67/I of 1990 (hereinafter referred to as S.P. No.67) have also challenged the terms of old and new pensioners used by the Government of Pakistan in both the aforesaid notifications and the discriminatory distinction made in their pensions and pensions of the Army Officers retired after them as being inconsistent with the Injunctions of Islam.
4. Paragraphs 3 to 6 of their petition are also reproduced hereunder for the better understanding of their contentions:-- {{URDU TEXT}}
5. LA. Sharwani the petitioner of Shariat Petition No.18/I of 1991 (hereinafter referred to as S.P. No.18) was a joint Secretary of the Government of Pakistan and retired in the year 1976 in Grade-20. He has submitted a lengthy petition spread over 6 pages. He has challenged the difference in pension of new and old pensioners as being violative of the Injunctions of Islam.
6. Fazal Elahi petitioner of Shariat Petition No.24/I of 1991 (hereinafter referred to as S.P. No.24) was employed as DA.C.MA. (Grade-17) in the Military Accounts Department and he retired from service in the year 1971. In his petition which is also spread over 6 pages he challenged the distinction made by the Government of Pakistan in the pensions of old and new pensioners as being inconsistent with the Injunctions of Islam. In this respect the following contents of page 6 of his petition are worth perusal:-- {{URDUTEXT}}
7. It was also asserted by the petitioners before us that formerly pension was calculated at 50% of the average salary of a Government servant drawn during the last three years before his retirement and subsequently the pension was increased to 60% of the average salary of the last three years but in the year 1985 the pension was raised to 70% of the salary last drawn by the retiring Government servant. It was also contended by the petitioners that there was a further ceiling put on the pension to the effect that maximum pension which a Government servant could draw was Rs,1,000 and the amount of pension beyond Rs,1,000 was allowed upto 50% but in the year 1985 that ceiling was removed and pension could be drawn without any limit of ceiling at 70% of the salary last draws.
8. Although the petitioners did not disclose the amount of pension which they were drawing when they came to this Court but it was conceded on behalf of the Government that in spite of the several percentage increases allowed to the pensioners from time to time, total pension of each of the pensioners was not equal to the pension which was being drawn by a Government servant retiring after July, 1985. However, petitioner Fazal Elahi of Shariat Petition No,24 has mentioned in his petition that including all the raises in pension which were allowed to him from time to time he was drawing a total pension of Rs,1,254 since 1-7-1990 whereas an officer of the same grade of the same Department who had retired after the year 1989 was drawing a pension of Rs,3,900 in July, 1989. Anyhow this circumstance should not detain us from further proceeding in the petitions because it was common knowledge that the petitioners were not drawing the same pensions which were being drawn by the officers of their category who had retired after the years 1985 and 1986.
9. The Government of Pakistan submitted very lengthy written statements in all the aforesaid 4 petitions and similar grounds have been taken in all the written statements.
10. Some preliminary objections taken in the written statements inter alia disclosed that the petitioners had not challenged any particular provisions of law or rules and as such the petitions were not maintainable. It was also mentioned that the pensions were calculated on the basis of the salary drawn by a Government servant at the time of his retirement and since salaries were revised from time to time, the difference between pensions of old and new pensioners was bound to occur. It was also contended in the written statements that under section 19 of Civil Servants Act, 1973, on retirement from service a civil servant was entitled to such pension as may be prescribed and it was contended that Government of Pakistan have been prescribing scales of pensions from time to time keeping in view the salary of a Government servant at the time of his retirement as also the rules applicable in that behalf at the relevant time. It was further contended that whenever salaries were revised, pensions were also simultaneously revised and benefits were given to the existing pensioners by allowing them certain percentage increase in pension. It was also the contention of Government of Pakistan that salaries of Government servants were revised keeping in view the inflation prevalent at a particular time and increase in the cost of living and pensions were also revised keeping in view the economic conditions prevalent at that particular time and hence difference between the pensions of Government servants retiring at different times was bound to occur.
11. We have heard the petitioners, and learned counsel for the parties. It is an admitted fact that there exists difference in the pensionary benefits of Government servants retiring at different times.
Government servants who retired in the seventies are in receipt of less amount of pension than the Government servants who retired in the eighties or afterwards. It is also an admitted fact that there occurred revision of salary many times during the years 1971 to 1990 and consequently the rates of pensions also increased with every increase in the salary. It is also an admitted fact that inflationary trends have been on the increase during the aforesaid period of 20 years and cost of living has arisen manifold. As such the question for determination is whether Government servants of the same category, whether retired earlier or later, are being treated equally or otherwise in so far as the pensionary benefits are concerned and if the said treatment is unequal whether it is a violation of any law or rule as also the Injunctions of Islam.
12. It has even been admitted by the Government of Pakistan that after every revision of salary there has been a revision of pension and the pension of the old pensioners was not brought at par with the new pensioners. Instead old pensioners were given some relief in the shape of some percentage increase in thier pensions. But it is also a fact that the said percentage increase did not bring the pension of an old pensioner at par with the pension of a new pensioner.
13. It was contended on behalf of the petitioners that the aforesaid discrimination in the pensions was a violation of the Injunctions of Islam inasmuch as `Adl' ({{URDU TEXT}} and Ihsan" ({{URDU TEXT}}) were not enforced. It was contended that the fixation of different rates of pension for retirement from the same post was discriminatory treatment.
14. The contention of the Government that the pensioners have not challenged any law or rule as being inconsistent with the Injunctions of Islam is not tenable for the reason that pensions are admissible to retiring Government servants under section 19 of the Civil Servants Act.
15. There is no denying the fact that the bare minimum needs of every man, whether he be young or old, retired or serving, are the same. He must get food in order to sustain himself and to keep him in proper health, reasonable clothing in order not only to conceal his nudity but also to protect himself from the hazards and vagaries of nature and weather. Every man also needs a roof over his head. There are are certain other minimum needs and requirements. In many countries of the world there is the practice of determining from time to time a minimum wage which covers minimum requirements of every person at a given time. This minimum wage is subject to revision from time to time. In so far minimum requirements are concerned no discrimination can be made between men. Similarly no discrimination can be made between retired Government servants in so far as their pension is concerned.
16. Allah has, at many places in the Holy Qur'an, enjoined upon the people to do justice and to keep balance between men. Let it be noted that Islamic justice is something higher than the formal justice of Roman Law or any other human law. Both Plato and Aristotle define justice as the virtue which gives everyone his due. From this point of view justice becomes the A master virtue, and includes most other virtues. In Islam, justice is related to the concept of Tawhid ( {{URDU TEXT}}) and Tawhid is the foundation of justice. Justice is a value recognized by all religions. Some people may be inclined to favour the rich, because they expect something from them. Some people may be inclined to favour the poor because they are generally helpless. Particularly in either' case is wrong. Allah commands us; Be just, without fear or favour. Both the rich and the poor are to be treated alike under Allah's protection as far as their legitimate rights are concerned. To do justice and act righteously in natural A atmosphere is meritorious enough, but the real test comes when you have to do justice to people who hate you or to whom you have an aversion. But no less is required of you by the higher Moral Law,
17. In Verse 45 of Surah Al-Maida, the Holy prophet (p.b.u.h) has been commanded to judge in equity between them, for Allah loves those who judge in equity. In Verse 18 of Surah Al-Imran, the angels, the Allah Almight all stand firm on justice. In Verses 7 and 8 of Surah Al-Rahman it has been stated in clear terms that He raised the High and He has set up the Balance (justice), in order that ye may not transgress Balance (due). As such justice is a heavenly virtue.
18. It was contended by the learned State counsel that Hazrat Umar had fixed different rates of stipend ( {{URDU TEXT}}) for the residents of Makkah and Madina who were either the companions of the Holy Prophet or had taken part in the wars in the company of the Holy Prophet. He was of the opinion that on the same analogy different rates of pension could continue between Government servants of the same category retiring at different times. In our opinion the aforesaid example is not applicable to the pensions for the reason that pension is a legal right of every Government servant who retires after rendering service qualifying for pension whereas the stipend allowed by Hazrat Umar was not a result of any legal or rightful requirement but it was a gratuitous allowance given to Sahaba.
19. We had the benefit of going through the writings of eminent Muslim writers of the past and have noted as follows:-- {{URDU TEXT}} {{URDU TEXT}}
20. It was contended by the learned counsel for the State that the Shariat Petitions No,63, No,67 and No,24 were not legally maintainable as no law or a provision of law has been challenged by the petitioners as being inconsistent with the Injunctions of Islam. No doubt in the aforesaid three Shariat Petitions no law has been directly challenged and only two notifications issued in the years 1985 and 1986 have been challenged. But it is to be kept in mind that both the aforesaid notifications have purportedly been issued under Regulation 4 of the Civil Service Regulations and as such the vires of the aforesaid Regulations have been challenged. In so far as Shariat Petition No,18 is concerned it has specifically challenged the vires of Regulation 4 of the Civil Service Regulations. We are, therefore, of the opinion that the intention of the petitioners is very clear. They have challenged the Regulation whereunder the Government exercises the power to determine and fix pensions. The term 'law' as contained under Article 203-D of the Constitution includes any custom having the force of law, the Civil Service Regulations have also the force of law and their inconsistency or otherwise with the Injunctions of Islam can be examined by this Court under Article 203-D of the Constitution.
21. It was also contended on behalf of the State that there was no privity of contract between the Government of Pakistan and the retired Government servants that the pension which was admissible to them at time of retirement, will he increased subsequently. We have considered this contention very! seriously but in our opinion this argument is fallacious for many reasons; firstly; it ignores the difference in the amount of pension allowed to the same category of officers retiring at different times; secondly, it ignores the: Inunction Adal ({{URDU TEXT}}) as enjoined by the Holy Qur'an; and thirdly, it ignores: the basic fact that inflation and cost of living are always and constantly on the increase and it becomes difficult to make both ends meet with the amount of pension which is not increased with every increase in the inflation and cost of living.
22. The learned State counsel also relied upon a quotation from Ma-a'rful Qur'an Vol. VII (page 729) of Maulana Mufti Muhammad Shafi which is as follows:-- {{URDU TEXT}}
23. It was his contention that Islam did not believe in equal distribution oft wealth but equal opportunity to acquire wealth. We have given our serioui consideration to this contention but we do not agree with the contention of the learned counsel for the reason that in the earning of pension there is neither any question of equal distribution of wealth nor of equal opportunity to acquire wealth. Actually pension is a right acquired by a Government servant after he has put in the best part of his life for the service of the nation. Not only that but it is a right legally acquired under the Civil Servants Act.
24. Having come to the conclusion that Allah enjoins upon Muslims to keep balance between individuals and to do justice between men meaning; E thereby that no discrimination be made between man and man, we now proceed to examine both the impugned notifications to determine whether they are in conformity with the Injunctions of Islam or not. Here it is pertinent to note the salient features of both the notifications. The first impugned notification issued in the year 1985 allowed the following benefits to the pensioners:-- "From 1-7-1985 following benefits were allowed:--
(1) Pensioners retired upto 31-12-1985 were given indexation on pension @ 13-1/2% of gross pension upto Rs,1,500 and 10% of gross pension of Rs,1,500 to those retired upto 31-12-1985.
(ii) Prior to 1-7-1985 pensions were subject to 50% reduction after Rs,600, 1,000, 2,500, during 1-7- 1966 to 29-2-1972, 1-3-1972, 30-6-1980 to 1980, 1-7-1980 to 30-6-1983, 1-7-1983 to 30-6-1985 respectively. The above cut off points were removed from 1-7-1985. This benefit was also allowed to all those retired prior to 1-7-1985 and widows whose husbands retired or died prior to 1-7-1985. No arrears were allowed prior to 1-7-1985.
(iii) There was no concept of restoration of pensions surrendered for commutation/gratuity if the pensioners concerned outlive the prescribed period. From 1-7-1985 1/4th of gross pension surrendered for commutation was made restorable to the pensioners who outlive the period for which it was allowed but no arrears were allowed prior to 1-7-1985. Also see items 8(ii) and 13.
(iv) The family pension of widows which ceased prior to 1-7-1983 after expiry of prescribed period of 5/10 years and in cases where pension was not admissible as the retired/deceased Government servant had already availed pension for 5/10 years were also allowed family pension for life or until remarriage.
25. The second impugned notification issued in the year 1986 allowed the following benefits to the pensioners:-- From 1-7-1986 following benefits were allowed:--
(i) Those retired upto 31-12-1985 were given indexation @ 4-1/2% of gross pension upto 1,500 and 3- 1/2% of gross pension above Rs,1,500. Those retired between 1-1-1986 and 30-6-1986 were given indexation @ 4% of gross pension upto Rs,1,500 and 3% of gross pension above Rs,1,500 or indexation on pension at the rate applicable had they retired on or before 1-1-1986.
(ii) 1/4th of the pension surrendered for gratuity i.e. where commutation was not availed was also made restorable from 1-7-1986 to the pensioners who outlive the period for which it was allowed.
(iii) Initially Government servants retired on or after 1-7-1986 were entitled to additional benefit @ 2% of pension for each year of service put in after 30 years service subject to maximum 10% of gross pension. This was subsequently extended to those retired prior to 1-7-1986.
' From 1-7-1987 following benefits were allowed to pensioners:--
(i) Indexation on pension @ 4% of gross pension to those retired upto 30-6-1987.
(ii) The widows of Government servants who died prior to introduction of pension-cum-gratuity scheme, 1954 were also allowed family pension from 1-7-1987 if the deceased had rendered pensionable service.
(iii) The widows of Armed Forces personnel upto the Rank of Junior Commissioned Officers who retired/died prior to 1-7-1983 were also allowed ordinary family pension for life or until remarriage.
Those retired and died after 1-7-1983 were already entitled to family pension (item 6(iii) above).
' From 1-7-1988 following benefits were given to old pensioners:--
(i) Indexation on pension ct. 7% of gross pension to those retired upto 30-6-1988.
(ii) The widows who were granted family pension from 1-7-1985 (item 7(iv)) above were also allowed the dearness increases, on their pensions.
(iii) From 1-7-1988 no gross pension of a retired Government servant would be less than Rs,300 p.m.
26. It is also noteworthy that five percentage increase was allowed from 1-7-1990 to all Government servants who had retired upto 30-6-1991. The following further benefits were allowed to the pensioners:--
(a) Government servants retired prior to 1-7-1986 have been allowed the benefit to the extent of 2% of gross pension for each extra year of service beyond 30 years qualifying service subject to a maximum of 10% of gross pension (orders issued on 13-6-1991).
(b) From 1-7-1991, one-fourth of gross pension surrendered in lieu of gratuity, in addition to commutation, has been allowed to be restored, after outliving the period for which gratuity was allowed.
(c) From 1-7-1991 Government servants retired prior to 1-5-1977 have been allowed dearness increases 32% and those retired from 1-5-1977 @) 12%.
27. It was then contended that in the light of the above, the present gross pension of an officer retired in March, 1977 after drawing maximum of B-20 for 3 years and after service of 35 years has risen from 1,410 p.m. to Rs,3,997.69 p.m. as under:-- {{TABLE}}
(1) Gross pension for 30 years service on 31-3-1977. Rs,1,410
(2) Gradewise increase from 1-7-1980. Rs,150
(3) 10% of above 2 items from 1-7-1981. Rs,156 19931 Shireen Dil Khan Niazi v. Secy., Ministry of Defence (Nazir Ahmad Bhatti, J)
(4) 10% of above 3 items from 1-7-1982.
From 10-7-1985 restoration of cut off of--- (imposed at the time of retirement). 15 Rs,171.60 Rs,410 10% of above 5 items from 1-7-1985. Rs,229.76 3-1/2% of first five items from 1-7-1986. Rs,80.41 4% of first five items Rs,91.00 7% of first five items. Rs,160.88 5% of first five items Rs,114.88 From 1-7-1986 benefit @ of 2% of items 1 and 5 above for each year of service put in after 30 years service subject to maximum of 10% with increases-- items 7 to 10 above. Rs,217.49 32% of first five items and items it Rs,804.82.
Total Rs 3 997 69
28. It was also contended on behalf of the Government that;
(a) Upto 30-6-1966, pensions were calculated on 50% of average emoluments drawn during the last 36 months on completion of 30 years service qualifying for pension. From 1-7-1966 the percentage was raised from 50% to 60% of the average emoluments. Those who had retired prior to 1-7-1966 were allowed to get their pension recalculated or to enjoy increase on their pension sanctioned from 1-4 1964.
(b) Under Liberalized Pension Rules for Civil Servants introduced in 1977, the Government servants retired on or after 1-3-1972 after a service of 30 years were allowed to get their pension recalculated @ 70% of average emoluments or continue to draw pension under the then existing formula of 60% of average emoluments with following increases already admissible to them:-- Rate of Increases Date of effect (i)(a) Gross Pension not exceeding Rs,50 ad hoc 1-6-1973 increase @ 20% subject to minimum of Rs,5.
(b) 15% of gross pension subject to minimum of Rs,10 for pensions between Rs,51 and Rs,100.
(c) 15% of gross pension subject to minimum of Rs,30 on pensions upto Rs,500 with marginal adjustment upto Rs,530.
(ii) 15% of gross pension not exceeding Rs,700 subject to 1-8-1973 . maximum of Rs,35.
(iii) 15% of gross pension subject to a maximum of 8-6-1974 Rs,100.
(iv) 10% of gross pension subject to a maximum of Rs,25 7-4-1975 P.m.
' Pensioners who had retired before 1-3-1972 were entitled to have their retirement pensions recalculated in accordance with one of the following alternatives whichver was more favourable to them; ' The amount of their pensions shall be calculated at the rate of 70% of average emoluments on completion of 30 years qualifying service without dearness increases sanctioned before 1st February, 1977; OR ' They may continue to receive existing pension and increase with following additional benefits:-- .
' An increase of 5% in the case of an employee who retired between 1st July 1963 and 29th February, 1972 or 12-1/2 per cent in the case of an employee who retired upto 30th June, 1963 over his existing gross pension, plus dearness increases admissible thereon.
(c) From 1-7-1980 the Government servants retired upto 30-6-1980 were given the following gradewisc increases:-- {{TABLE}} Grade 1 to 10 Rs,40 p.m. Grade 11 to 16 Rs,70 p.m. Grade 17 to 18 Rs,100 p.m. Grade 19 to 20 Rs,150 p.m.
Grade 21 to 22 Rs,200 p.m.
(d) From 1-7-1981 an increase of 10% of gross pension subject to maximum of Rs, 200 p.m. to those retired upto 31-12-1982.
(e) From 1-7-1982 an increase of 10% of gross pension subject to' maximum of Rs, 200 p.m. to those retired upto 30-6-1983.
(f) From 1-7-1983 the following benefits were given:--
(i) Dearness increase @ 10% of gross pension subject to maximum of Rs,200 to those retired upto 30-6-1983.
' Family pension of widows was made for life. Previously it was admissible for five years upto 29-2- 1972 and for 10 years thereafter. Also see sub-para. (7) (iv) below in case of widows whose pension ceased due to expiry of 5/10 years period.
(iii) Prior to 1-7-1983 the concept of ordinary family pension did not exist for Armed Forces pensioners upto the rank of Junior Commissioned Officers. The families of such personnel retiring on or after 1-7-1983 were allowed family pension as admissible on civil side.
29. In the light of the aforesaid it was contended by the learned State counsel that Government had been revising the pensions from time to time and had allowed reasonable benefits to the pensioners and had brought the pensions of the old pensioners at par with the new pensioners.
However, it was contended by the petitioners that still pensions of the Government servants who had retired before the years 1977, 1985 and 1986 were not raised to the level of the pensions earned by the Government servants who had retired after the year 1986. This contention of the petitioners was conceded to by the learned counsel for the State but it was contended that since the pensioners had retired at different dates and their pensions were calculated on the basis of salary drawn by them at the time of their retirement, there could be no question of giving equal pension to the old pensioners as was made admissible to new pensioners but in spite of that Government had allowed liberal increase in the pensions from time to time and the pensions of old pensioners were virtually at par with the pensions of the new pensioners.
30. We think that there is half-truth in the aforementioned contention of the learned counsel for the State because we had noted difference in the maximum pension of old pensioners and new pensioners and this was not denied by the learned counsel for the State. We have, therefore, come to the conclusion that the so-called old pensioners were given such raise in their pension which did not bring them at par with the new pensioners. The pensions of the former were not made equal to pensions which had become admissible after every revision of salary and pension. Actually discrimination has been made in the treatment of Government servants retiring at different times in the matter of grant of pension. That would also prove that justice was not being done to the pensioners of the same category retiring at different times.
31. It was the contention of the Government that pension of a retiring Government servant was calculated in accordance with Regulation 4 of the Civil. Service Regulations, which were continued in force under section 25 of the Civil Servants Act, 1973, and there was no question of discrimination in the matter of pensions. Regulation 4 of the Civil Service Regulations is reproduced hereunder:-- "The Government of Pakistan reserve to themselves the right of changing the rules in these Regulations regarding pay and acting allowance and leave and pension from time to time at their discretion, and of interpreting their meaning in case of dispute.
' An officer's claim to pay and allowances is regulated by the rules in force at the time in respect of which the pay and allowances are earned; to leave by the rules in force at the time when the leave is applied for and granted; and to pension by the rules in force at the time when the officer resigns or is discharged from the service of Government."
32. On the contrary it was contended by the petitioners that Regulation 4 of the Civil Service Regulations was inconsistent with the Injunctions of Islam in so far as it related to pension as also the different rates of pension admissible at different times. Their contention was that the provisions of Regulation 4 in so far as they related to the pensions were discriminatory because they allowed the Government to fix pensions at different rates in clear violation of the principles of Adl ({{URDU TEXT}}) and Ihsan {{URDU TEXT}}).
33. A further argument was advanced on behalf of the Government that in order to meet the increase in pension the State would be in need of more money and for that matter more taxes shall have to be levied upon the citizens. No doubt this exercise will entail increase in the expenditure of the State but there is no way out because this shall have to be done in obedience to the Injunctions of Islam as enjoined by the principles of `Adl' and `Ihsan'. We cannot ignore a clear mandate of Allah simply for the reason that it will entail more expenditure.
34. It was also specifically brought to our notice that since the limit of maximum pension which a Government servant could earn was done away with in the year 1985, the pension of Government servants retiring thereafter had increased manifold. If a Government servant, who had retired before July, 1987, used to get a maximum pension of Rs,600 per month inclusive of all increases made from time to time, the same category of Government servants retiring thereafter draw a minimum pension of Rs,840 and in this way a different treatment is being given to servants of the same grade or category.
35. We are of the considered opinion that the division of pensioners into new and old pensioners is also discriminatory. Actually pensioner is a pensioner irrespective of the date on which he retired and whenever there is any revision of salary or pension each one of the pensioners is entitled to get pension equal to the other in the same grade or category. It transpires that section 19 of Civil Servants Act is being implemented by the Government in respect of different pensioners not keeping in view the principle of 'Adl' {{URDU TEXT}}) and `Ihsan' ({{URDU TEXT}} We are of the opinion that the aforesaid impugned notifications of the years 1985 and 1986 are inconsistent with the Injunctions of Isalm inasmuch as the principles of Adl' and `Ihsan' have been overlooked. We will direct that Regulation 4 of the Civil Services Regulations be also brought in conformity with the Injunctions of Islam.
36. The judgment shall take effect after 6 months from today.