' SALEEM AKHTAR, J.---This appeal with the leave of the Court challenges judgment of the High Court passed in Constitution petition filed by the respondent whereby the appellants were directed to make payment of benevolent grant to the respondent for life in accordance with the Federal Employees Benevolent Fund and Group Insurance Act, 1969 as amended by the Federal Employees Benevolent Fund and Group Insurance (Amendment) Ordinance, 1988 (hereinafter referred as the Act).
2. The respondent was an employee of the Federal Government and was working as Assistant Director (Legal), Federal Investigation Agency, Karachi. The Medical Board appointed by the Federal Government declared the respondent completely and permanently incapacitated for further service of any kind and accordingly he was retired from service w,e,f, 12-8-1981. On retirement the respondent became entitled to benevolent grant from the Benevolent Fund according to the scale specified in the First Schedule to the Act. This grant was available for a period of ten years or if alive till the age of 65 years, whichever was earlier. The respondent was paid benevolent grant at Rs,475 per month up to 13-4-1987 where after it was stopped as the respondent had attained the age of 65 years. The respondent continued to make representations in every quarter for extending the grant to him without any result. On 1-9-1988 the Federal Employees Benevolent Fund and Group Insurance (Amendment) Ordinance, 1988 (Ordinance VI of 1988) was promulgated and enforced w,e,f, 4-9-1988 by which section 13 of the Act was substituted by the following:-- "13. Benevolent grants to be paid from the Benevolent Fund.--If an employee-
(a) is declared by the prescribed medical authority to have been completely incapacitated physically or mentally to discharge the duties of his employment and is for that reason retired for removed from service, he shall be entitled to receive for life such benevolent grant from the Benevolent Fund as may be prescribed, or
(b) dies during the continuance of his employment or during retirement before attaining the age of seventy years, his spouse shall be entitled to receive for life such benevolent grant from the Benevolent Fund as may 'be prescribed: ' Provided that, if the deceased employee has no spouse or his spouse has died, the other members of his family shall be entitled to receive benevolent grant from the Benevolent Fund for a period of fifteen years or up to the date the deceased employee would have attained the age of seventy years, whichever is earlier: ' Provided further that, in the case of an employee who dies after having drawn benevolent grant, the said period of fifteen years shall be reckoned from the date from which he began drawing such grant."
' It may be pointed out that by Act I of 1989 (Federal Employees Benevolent Fund and Group Insurance (Amendment) Act), 1968, this Ordinance was repealed, but section 13 was incorporated in it. On the basis of these provisions the respondent claimed grant from the Benevolent Fund for life. This claim was rejected. Consequently he challenged it through a Constitution Petition which was allowed by the impugned judgment. While relying on I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division and others (1991 SCM R 1041), the learned Judges made the following observation:-- "We find that the language of the Ordinance of 1988 referred to above does not create any discrimination among the pensioners of the class to which the petitioner belongs.
' Accordingly we are of the view that the petitioner is entitled to the benefits awarded by the Federal Employees Benevolent Fund and Group Insurance (Amendment Ordinance), 1980, irrespective of the fact that the petitioner retired from service prior to the date of the enforcement of the aforesaid Ordinance. The petition is hereby allowed and respondents Nos.1 and 2 are directed to make payment of benevolent grant to the petitioner for life in accordance with Federal Employees Benevolent Fund and Group Insurance (Amendment) Ordinance, 1988."
3. Mr. Shahudul Hag, learned counsel for the appellants contended that even under section 13 as substituted by Ordinance VI of 1988 and Act I of 1989, the respondent was not entitled to claim the benefits for life. In this regard he has placed reliance on certain portions of the judgment in I.A.
Sharwani. The entire case of the respondent is based on the plea that he cannot be discriminated and is entitled to the life benefits under the amended Act like any other employee irrespective of the fact whether he had retired before the amendment. In our view, judgment in I.A. Sharwani is distinguishable because there the petition was filed by the retired Government servants and they had claimed that they have been discriminated in payment of enhanced pension in violation of Article 25 of the Constitution inasmuch 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. Therefore, the discrimination which was pointed out was in respect of a class of persons called pensioners, but where there are two distinct classes and classifications, such discrimination will not apply. Dealing with the question of discrimination and classification, Ajmal Mian, J. Observed as follows:-- "The question which requires consideration is, as to whether in the instant cases classification is founded on an intelligible differentia which distinguishes one group of pensioners from others and whether the above differentia has rational nexus to the object or raison deter sought to be achieved. According to Mr. Samdani, civil servants who have already retired and who will retire in future should be treated as a class and that there cannot be any sub-classification within the above class on the basis of date of retirement, as it would not fall within permissible reasonable classification. On the other hand, Mr. Aziz A. Munshi, learned Attorney-General, has urged that various groups of pensioners are to be classified on the basis of applicability of relevant pension rules. We are unable to subscribe to Mr. Samdani's above submission that civil servants who have already retired and who will retire in future, are to be treated as one class nor we are inclined to agree with the above submission of the learned Attorney-General. In our view, reasonable classification will be that all the pensioners as a group are to be treated as one class and all serving civil servants as a group are to be treated as a separate class. In this view of the matter, if the pay scales of serving civil servants are revised, the civil servants, who have by then already retired cannot have any legitimate grievance to agitate for notional revision of their pay scales for re-computing their pension amounts for any purpose as the pension amount is to be computed as above C.S.R. 4 on the basis of the Pension Rules in force on the date of retirement of a civil servant.
The Pension Rules contain formula as to the method of computation of pension amount with reference to the salary drawn by him till the date of retirement and, therefore, there cannot be uniformity in the amounts of pension among the civil servants despite of having equal rank and equal length of service, if they retire not on one date but on different dates and in-between such dates pay scales are revised. However, a pensioner may have a legitimate grievance if he is not treated alike with the other pensioners, for example, if the Legislature/Government increases pension amount by 10%, say on 1-1-1991, but provides that this benefit will be available to those pensioners who have retired on or after 1-1-1989. In other words, the pensioners who had retired prior to 1-1-1989 are deprived of the above benefit. This would be volatile of Article 25 of the Constitution unless the Government can demonstrate that the above sub-classification within the class of pensioners is based on an intelligible differentia and that the latter has rational nexus to the object sought to be achieved by the relevant classification under the statute or statutory rule."
From the above observation, it is clear that there can be two classes of civil servants, one who are in employment and the others who have retired. If a benefit is given to the persons in employment, which is not extended to the pensioners, then it will not amount to discrimination as both of them belong to different classes and such classification is reasonable. Such classification will be based on intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out. Such differentia has rational nexus to the objects sought to be achieved by such classification.
4. Applying these principles to the facts of this case, we find that the respondent belonged to a class of persons who had retired and the entitlement of benefits which he had at the time of retirement has been paid to him. Under section 13 as it stood on 12-8-1981 when the respondent retired, the benevolent grant was paid till he attained the age of 65 years. The amendment by which section 13 was substituted and the benevolent grant was to be paid for life was promulgated on 1-8-1988 much after the respondent had retired and even after he had received the benevolent fund as provided under law at that time. The respondent claimed the benefit of amended section 13 mainly on the basis that there should be no distinction between a person who had retired earlier to the amendment and the one who has retired after the amendment. The same question was considered in I.A. Sharwani and the classification as quoted above applies to the present case. It may be noted that the Act applies to the employee. Section 2(4) of the Act defines employee and has specified several persons to be included in that definition, but a person who has retired from service is excluded from the category of employee. The Act provides benefit to the employees, but not to the persons who have retired from service. Till the time of retirement the employee could get all the benefits as provided under the Act, but if after the retirement any extra benefits are allowed without providing that the same will be extended to the persons who, have retired, the retired persons cannot claim that benefit. In I.A. Sharwani the classification of civil servants who were in service and those who had retired was held to be justifiable and those civil servants who are in employment if granted augmentation in their salary which would fairly affect the calculation of the pension, the same benefit was not extended to the retired persons. We, therefore, allow the appeal and set aside the impugned judgment with no order as to costs.