The petitioner seeks a direction to the respondents to fix his pay and pension in view of Government Notification No,2516-24/98, dated 4-12-1998 issued from the Food Secretariat of the Azad Kashmir Government.
2. The facts giving rise to the filing of this petition are that petitioner was serving in the Food Department of the Azad Kashmir Government as food grains inspector in B- 8 when he was retired from service. A case regarding is service was pending in the High Court when he retired which was decided on 20-10-1990 and upheld by the Supreme Court on 20-10-1991 in consequence of which he was promoted as District Food Controller in B-16 on 25-1-1992 with effect from 25-9-1980.
According to the petitioner he, thus. became senior to other district food controllers. According to him, when his case was pending in the Supreme Court one Khawaja Muhammad Tariq was promoted as deputy director foods in B-18 on 4-3-1991. The petitioner filed a review petition against the promotion of Khawaja Muhammad Tariq. The Government accepted the review petition on 14- 5-1998, in consequence of which the Government order was issued on 4-12-1998, whereby an additional post of deputy director food in B-18 was created for the period of 47 days with effect from 4-3-1991 to 20-4-1991 and petitioner was promoted on the newly created post with retrospective effect. When the petitioner approached for fixation of his pay and pension in view of above referred Government notification, the accounts officer of the department referred the case to the pension section of the department for the purpose, who objected to the fixation of pay and pension on the ground that petitioner had remained on leave without pay from 26-4-1998 to 20-4- 1991 till the day of his retirement and that he has not drawn any pay against the post in B-18, hence, he is not entitled to pension under rule 1.6 (vii) of the Pension Rules, 1971. The pension section, therefore, opined that pay already drawn in B-16 shall be the basis of pension.
3. The respondents-accounts department in the written statement has stated that in the period of his promotion in B-18 from 4-3-1991 to 19-4-1991, petitioner has not drawn any pay, hence, his pension cannot be fixed in view of rule 1.6 (vii) of pension rules, 1971 under which the pension can be fixed on the basis of last pay drawn and as the petitioner was on leave and he has not drawn any pay in B-18, the pension already drawn by him in B-16 is the true position of law.
4. I have heard the learned counsel for the parties and have gone through the record. The learned counsel for the petitioner contended that the order implementation of which the petitioner seeks, is issued by the competent appellate authority on his appeal/review and that it has the force of law which has to be acted upon by all the authorities. According to the learned counsel, the promotion, the pay and the pension is the right of civil servants which cannot be denied to them. He further contended that accounts officer or anybody else is not competent to ignore the Government order unless the same is withdrawn or rescinded by the Government. The learned counsel referring to noting side of the file, copies of which are placed on record, contended that case of the petitioner has throughout been processed at different levels in the food department and finance department, and the order is issued on the proposal of finance department for retrospective promotion of the petitioner so as to give him the pension benefits in view of his right of being promoted for being senior in the department. The learned Additional Advocate-General controverting the arguments contended that under rule 1.6(vii) of the Pension Rules, 1971, pension can be fixed on the last pay drawn, and as the petitioner was on leave without pay and has not drawn any pay in B-18, hence, the pension cannot be fixed in view of Government notification and rules.
5. The pleadings of the parties narrate that the petitioner has been promoted by the competent Authority on his review petition against the promotion of Khawaja Muhammad Tariq. The petitioner was promoted on the post at a time when he was already retired from service. A civil servant, even though retired is entitled to the benefits accruing from service under subsection (5) of section 6 of the Civil Servants Act, 1976, provided the benefits accrued during the service. As the right of promotion of the petitioner had accrued during the service, that right cannot be denied to him after service and the Government had rightly issued the notification redressing the grievance of the petitioner. This order is not questionable by any authority except the Courts, the Government in review or service tribunal in appeal. Any officer subordinate to the Government has no authority or power to undo the order of the Government at his discretion or whims. Relevant accounts officer of the accounts office has exceeded his authority in ignoring the valid government order. The objection that the petitioner has not drawn pay in B-18 is also a clerical interception devoid of force for the reason that once a right has accrued in the petitioner on acceptance of his review petition, all the consequential benefits accruing therefrom have to follow. The objection is otherwise misapplication of rule 1.6(vii) of Pension Rules, 1971, and misconception of the rule. Relevant rule is reproduced here: "1.6 (vii). 'Pay' . Pay means the amount drawn monthly by Government servant as (1) the pay other than special pay or pay granted in lieu of his personal qualifications, which has been sanctioned for a post held by him substantively or in an officiating capacity, or to which he is entitled by reason of his position in a cadre." (underling is mine)
6. A perusal of the above rule clearly stipulates two eventualities. One, when the Government servant actually draws monthly amount; and secondly, where he is entitled by reason of his position in a cadre to the amount. The latter part of the rule governs the case of the petitioner vividly, even though the earlier part also does not exclude him for the reason that even if the pay is not drawn, it shall be deemed to be drawn when it accrues in his favor and he becomes entitle to it.
It is not the actual receipt of the amount, but the amount which he would have received, had he not been retired or denied the same. which will be deemed as last pay drawn. As the right is sanctioned in his favor, he becomes entitled to the pay, thus, he being entitled to it, shall be deemed to have drawn the pay in B-18 to which he is promoted and retired therein as per the spirit of the Government notification.
7. The petition stands accepted in the above stated manner. The cost of the petition shall be born by respondent No,2.