1. ' AJMAL MIAN, C.J.- -By this common judgment, we intend to dispose of the above two civil appeals which have been filed with the leave of this Court against the judgments, dated 2-11 1993, which is the subject-matter of Civil Appeal No,422 of 1994, and dated 21-11-1993, which is the subject-matter of Civil Appeal No,423 of 1994, passed by the Federal Service Tribunal in Appeal No,317-R of 1993 and Miscellaneous Petition No,98 of 1993 in Appeal No,191-R of 1992, dismissing the same.
2. ' The brief facts are that the appellant retired from Government service as a Solicitor to the Government of Pakistan, Ministry of Law and Justice with effect from 13-12-1987. He was allowed the retiring benefits and pension then admissible. The Ministry of Finance (Regulation Wing). By Office Memorandum No,F.1(12)-Imp. 11-1991 dated 19-8-1991, while revising the Basic Pay Scales of the civil servants from BPS-16 to 22, allowed special pay of Rs,100 to senior officers for Advance Course in Management in N.1 P.A. The relevant portion of the above 0.M. Reads as follows:-
(ii) QUALIFICATION PAY FOR SENIOR OFFICERS. - ' Qualification pay shall be allowed from 1-6-1991 to those officers who have qualified the following course at the rates shown against each:-- (a)
3. (b)
(c) Advance course Rs,100 p.m. In Management in N1PA Note:---One Qualification pay will be admissible at a time."
4. ' The appellant demanded the above benefit by contending that since the above allowance is computable towards pension of the civil servants who retire after enforcement of the above circular with effect from 1-6-1991, the appellant also is entitled to increase in pension by re- computing the above amount by including the above allowance. The department rejected the above claim. After that the appellant filed the aforesaid Appeal No,317-R of 1993, which was dismissed by the aforesaid judgment, dated 2-11-1993. Against the above judgment, the appellant filed a petition for leave to appeal, which is now the subject-matter of Civil Appeal No,422 of 1994.
5. Civil Appeal No,423 of 1994 has arisen out of Office Memorandum No,F.1(2) Reg. (6)/91, dated 29-9- 1991, issued by the Government of Pakistan Finance Division, granting the benefit mentioned therein with effect 19-2-1991, to Grades-21-22 officers who were to retire on completion of twenty-five year's service. Para. 2 of the above Memorandum reads as follows:-- "(2) On retirement, a Government Officer in BPS-20, 21 and 22 would be allowed a Special Additional Pension equal to the admissible pre-retirement orderly allowance."
6. ' In this case also the appellant claimed the benefit of the above quoted para. 2 before the department, but without any success. Thereupon, he filed Appeal No,I91-R of 1992, which was disposed of on 12-5-1992 in the following terms:-- "In consultation with the appellant and representatives of the respondents,-Department, we direct the Ministry of Finance to dispose of the issue of Special Additional Pension in the light of the Government decisions contained in the Finance Division's relevant O.Ms. And the decisions of the Supreme Court. The case is disposed of in the above terms. The process of the case should not take more than one month."
7. ' After that since the Ministry of Finance did not accept the appellant's above claim, he filed the aforesaid Miscellaneous Petition No,98 of 1993 in the above disposed of Appeal No,191-R of 1992, but the same was declined on the ground that the direction of the Tribunal was complied with as the Ministry of Finance, pursuant to the above order of the Tribunal, had decided the matter. Against the above order, the appellant filed a petition for leave to appeal.
8. ' Both the above petitions were taken up together and leave to appeal was granted to consider whether the appellant was entitled to the benefit of qualification pay under the aforesaid Office Memorandum No,F.1(12)Imp. 11/91, dated 19-8-1991 with effect from 1-6-1991 and whether he was entitled to additional pension in terms of the aforesaid O.M.No,F.1(2)Reg.(6) of 1991, dated 29-9-1991.
9. ' In support of the above Civil Appeal No,422 of 1992 Mr K.M:A.Samdani, learned Senior Advocate Supreme Court appearing for the appellant, stated that since the above amount of qualification pay of Rs,100 is computed as a part of the salary of the civil servants who retired after, 1-6-1991, the appellant cannot be discriminated against and, therefore, he is entitled to the recalculation of the pension amount by including the qualification allowance of Rs,100, though he had retired w.e.f, 13- 2-1987. He has relied upon the judgment of this Court in the case of I.A. Sharwani and others v.
10. Government of Pakistan through Secretary, Finance Division, Islamabad and others (1991 SCMR 1041) particularly the following portion at page 1091:- "(32). However, we may again point out =that with effect from 1-7-1986 an additional benefit of 2% pension for each year of service exceeding 30 years subject to a maximum of 10% of pension sanctioned was given to the pensioners who retired after 30-6-1986 and not to those pensioners who retired earlier and, therefore, the above withholding of the benefit from the pensioners who had retired prior to 1-7-1986 without having any basis as to bring the case within reasonable classification, cannot be sustained in view of the ratio decidendi of the cases referred to hereinabove. According to the list of documents submitted by Mr. Samdani, the Punjab Government has already extended the above benefit to all the pensioners irrespective of the date of retirement. Similarly the withholding of the benefit of P.O. No,5 of 1988 from the petitioner in Civil Petition No,5-R of 1990 was not warranted by law. In this regard, reference may be made to the case of M.A. Rashid v. Pakistan through Finance Division, Government of Pakistan. Islamabad and 3 others (PLD 1988 Quetta 70), in which the facts were that the petitioner in above Civil Petition No,5-R of 1990 happened to be the petitioner. He impugned Government action of withholding the benefit of P.O. No,5 of 1983 on the ground that he had retired earlier."
11. ' Whereas in support of the above Civil Appeal No,423 of 1994 his submission was that since the benefit was given as a special additional pension w.e.f, 19-2-1991, the appellant and other pensioners who have retired on or before 19-2-1991 cannot be discriminated against.
12. ' On the other hand Mr. Yawar Ali Khan, Deputy Attorney-General, has relied upon the following portion of the judgment in the case of I.A. Sharwani v. Government of Pakistan (supra):- "(28). 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 different a has rational nexus to the object or raison d'etrae 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 as to be classified on the basis of applicability or relevant pension rules. We are, unable to subscribe to Mr. Samdani's above submissions that civil servants who have already retired and who will retire in future, are to he 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 are 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 revison 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.
13. Therefore, there cannot be uniformity in the amount 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 increase pension amount by 10%, say on 1-1-1991, but provides that this benefit swill 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 violative of Article 25. Of the Constitution unless the Government can slemonstrate 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 stautory rule."
14. Since Rs,100 qualification allowance was computed as a part of the salary and not as a part of pension and since the appellant had retired on 13-2-1987, i.e, about four years prior to the issuance of the above office memorandum, he cannot ask for recalculation of the pension by including the above Rs,100 qualification pay in view of what has been stated hereinabove in above quoted para. 28 of the judgment in I.A. Sharwani case. However, since under the 0.M., dated 29-9-1991 the special additional pension is payable as pension, the appellant could not have been discriminated against as highlighted in the above, quoted para. 28.
15. ' The upshot of the above discussion is that Civil Appeal No,422 of 1994 fails and therefore, the same is dismissed with no orders as to costs.
16. ' As regards Civil Appeal No,423 of 1994, the appellant has case on merits in terms of the above quoted para. 28 of the judgment in the case of LA. Sharwani (supra). The only technical question which is in issue is whether Tribunal was justified in not entertaining the appellant's above Miscellaneous Petition No,98 of 1993 on the ground that Appeal No,191-R of 1992 had already been disposed of. In our view since interpretation of the above 0.M., dated 29-9-1991 was involved, it was incumbent upon the Tribunal to have given its own interpretation instead of, referring the matter to the Ministry of Finance, though with the consent of the parties.
17. We are of the view that it will not be just and proper to decline the relief to the appellant on the above technical aspect. It may be stated here that this Court, in terms of clause (1) of Article 187 of the Constitution is competent to issue such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it. We are, therefore, of the view that this is a fit case where this Court should overlook the above technical aspect as the appellant has served the Ministry of Law commendably, which is a fact known to all. We would, therefore, allow the above appeal, set aside the above judgment of the Tribunal and declare that the appellant is entitled to the benefit of the above quoted para. 2 of O.M.No,F.1(2) Reg. (6)/91 w.e.f, 19-2-1991.
18. However, there will be no order as to costs.