1. SARDAR MUHAMMAD ASHRAF KHAN (CHAIRMAN).-This order will dispose of both the Appeals Nos.
2. 72 and 73 of 1978 filed. By Ch. Alif Din and Agha Ashiq Hussain respectively as in these appeals a common question of interpretation and application of Government circular letter is involved.
3. The above-mentioned two appeals have arisen in the following circum--stance Ch. Alif Din and Agha Ashiq Hussain appellants in the above appeals having served in different capacities in the Azad Government of the State of Jammu and Kashmir were holding the posts of Officer on Special Duty Mangla Dam Organization and Development Commissioner respectively when they were retired on the attainment of age of superannuation on 25-4-67 and 1-12-68 respectively. They were granted pension Q 450 p. m. Each on their retirement but due to ad hoc increases in pensions sanctioned by the Government, from time to time were drawing Rs. 667.70 each when the Government, vide its circular letter issued under Finance Department No. FD/1816-90-77 dated 15- 3-77 hereinafter referred to as circular letter) predetermined the pension and retirement benefits of the retired civil servants. According to Ch. Alif Din appellant, he applied to the concerned Audit officer for recalculation of his pension @ 70 % of his average emoluments in accordance with the provisions contained in para. (7) (i) of the circular letter and kept on pursuing his case by personally visiting different officers of the Accountant-General's Department including the Accountant-General himself but to no success. At last he submitted a representation to the Chief Executive of the Government on 1-1-78 (copy Annexure `B' with his memorandum of appeal) to the effect that in spite of his written and oral requests to the Audit department he had not received any reply in respect of his claim for revision of his pension at 70 % of his average emoluments and that justice might be done to him and in case he was not entitled to his claim he at least be informed of the decision. This representation was sent to the Accountant-General for his immediate comments from whose office later on the said appellant received a copy of the letter of Accountant-General's Office No. 6028 dated 28-3-78 addressed in reply to Section Officer Defence Department for his information (copy Annexure 'C' with his appeal). In the said letter it was stated that Ch. Alif Din appellant was not entitled to any increase. In gratuity ere. But pensioners like him could get 5 % increase on their pension w. e. f. 1-12-77 under the Pension Rules, 1977. Feeling aggrieved by this decision of the Accountant-General made in the said letter and communicated to him by endorsing a copy of the same to him by the learned counsel for the respondents. In the first place it is contended by the learned Advocate-General that these appeals are not maintainable as the appellants bad not preferred any appeal, application for review, or representation against the impugned orders before any departmental authority before lodging the present appeal as was incumbent upon them to do so under the proviso (A) to section 4 of the Service Tribunal Act. We find no merits in this contention of the learned Advocate-General. It is, no doubt, correct that the right of appeal is given to an aggrieved civil servant subject to the condition contained in the said proviso that he should first agitate his grievance before a departmental authority if any of the above-- mentioned remedies has been provided against an order of the competent authority in respect of which he feels aggrieved under any law, regulation or rules in force. But in the present case the above proviso is not at all attracted because the learned Advocate-General has not been able to show us any such law, regulation or rules providing for a right of appeal, review or representation to the civil servant against an order of the Accountant General made in respect of the fixation or reification of the pension. We ourselves have not been able to lay our hands on any such law, regulation or rules and therefore, since none of the above-mentioned remedies is available to the appellants under any law, regulation or rules for the redress of their grievances before the departmental authorities against such orders as are impugned in the present appeals, they are within their right conferred on them under section 4 of the Service Tribunal Act to prefer these appeals before this Tribunal without in the first instance approaching any departmental authority.
4. The next preliminary objection of the learned Advocate-General is confined to the appeal of Ch. Alif Din and is to the effect that the same does not lie before this Tribunal inasmuch as the order impugned therein is not a final order of the Accountant-General made in respect of the claim of the said appellant for the revision of his pension under the circular letter but is only a reply to a letter of the Defence Department. This objection of the learned Advocate-General is also not tenable and cannot be sustained in view of the circumstances of the case. At the time of making the impugned decision the representation of the said appellant for the refixation of his pension @ 70 % of his average emoluments made to the Chief Secretary had already been sent to Accountant-General for his comments. A copy of the letter addressed to Section Officer Defence and containing the impugned decision of the Accountant-General was endorsed to the said appellant for his information. This endorsement was obviously meant to inform the appellant of the decision of the Accountant-General on his claim regarding his entitlement to revised pension @ 70 % of his average emoluments, otherwise there was no point or object in endorsing a copy of the said letter containing the decision of the Accountant General regarding the entitlement of the said appellant to only 5 % increase in his pension in accordance with the provision of the circular letter.
5. Thus when the impugned decision is seen in the light of the facts that at the time of its making a representation of the appellant for revision of his pension @ 70 % of his average emoluments was lying with the Accountant-General, that it pertains to the entitlement of the said appellant to 5 %, increase in his pension and that a copy of it was endorsed to him for information, then there remains no doubt that the impugned decision is the final order/decision of the Accountant General on the claim of the appellant for recalculation of his pension @ 70 Y, of his average emoluments The above conclusion is even supported by the contents of para, 5 of the within objection put in by the respondents in the relevant appeal. For the reasons stated above we hold that the impugned decision under consideration is final one and as such is appealable before this Tribunal.
6. After having disposed of the preliminary objections we now propose to consider the cases on merits. The learned Advocate-General has argued that the circular letter having been issued in modification of Azad Kashmir Pension Rules, 1971 which are applicable only in cases of those gazetted civil servants who retired on or after 1-7-70 is limited in its applicabili--ty to the Government servants who retired on or after 1-7-70 and thus does not cover the cases of appellants so as to entitle them to have their pensions recalculated @ 70 Y. Of 'their average emoluments under its para. 7 (i) as they stood retired before the said date. It is further contended by him that notification governs the cases of the appellants and thus if the appellants are allowed revised pension @ 70of their average emoluments in accordance with para 7 (i) of circular letter then the maximum ceiling of pension fixed at Rs. 575 p. m. By notification would be acceded to. In reply to this argument it is contended by the learned counsel for the appellants that para. 7 of the circular letter is fully applicable to the pensioners who retired before the said date under which an option has been given to them either to have their pension recalculated @ 70% of their average emoluments or to have 5 % increase, over their existing pensions. It is further contended by him that the notification stood modified by the circular letter and now the amount of pension would be determined in accordance with the provisions of the circular letter and the restriction of maximum amount of pension as envisaged in the notification has lost its validity. It is also contended that the appellants, in view of their option exercised under para 7 (i) of the circular letter, are entitled to have their pensions recalculated @ 70 % of their average emoluments.
7. With a view to appreciating the above arguments of the learned counsel for the parties and making decision thereon, it would be advantageous to reproduce the relevant paragraphs of circular letter which reads as under:--- "7. In the case of pensioners who retired before Ist March, 1972, they shall have the following choice in recalculating their retirement pensions:-
(i) They have their pensions recalculated on the basis mentioned in para. 2 (a) above, on their average emoluments without dearness increases sanctioned before 1st February, 1977; or
(ii) To receive an increase of 5 per cent (in the case of employees who retired between Ist July, 1963 and 29th February 1922) or 121 per cent (in case of employees who retired up to 30th June, 1963) over their existing gross pension plus dearness increases admissible thereon. For the purpose of these commutations, the average emoluments, as calculated at the time of retirement, will remain the same. Gratuity will not be revised or recalculated. Commutation will be allowed on the basis of the original gross pension."
8. In view of the plain reading of the above provisions of the circular letter reproduced above we find ourselves unable to agree with the argument of the learned Advocate-General that since the circular letter is issued in modi--fication of Civil Servant Pension Rules, 1971 which are applicable to those Civil Servants who retired on or after 1-7-70, its applicability is automatically limited to the cases of those Government servants whose date of retirement falls on or after 1-7-70 and thus the cases of appellants fall outside its scope and operation. It is a settled principle of interpretation of statute and rule that the provisions of the later Act or Rules prevail over the provision B of earlier Act or Rules on the subject and the provisions of the earlier enactment or Rules, as the case may be, stand extinguished to the extent of their inconsistency with the provisions of the later. Similarly an authority which has the power to make rule or order is also entitled to amend, alter, rescind or add to such rule or order.
9. In this view of the matter the provisions of the Notification and Pensions Rules, 1971 which are inconsistent with the provisions of the circular letter have become obsolete and invalid and provisions of the latter will prevail over the former. The provisions of para. 7 of the circular letter, therefore, are as much effective and enforceable as its other paras notwithstanding the fact that application of the Pensions Rules, 1971 is restricted to the cases in which the Government servants have retired on or after 1-7-70 or that a maximum amount of pension admissible to the Government servant is fixed under notification.
10. Apart from the above legal position the provisions contained in para. 12 of the circular letter itself have put an end to the controversy over the scope of its application by declaring in unambiguous terms that all existing rules and Government orders on the subject of pensions to the Government servants shall be deemed to have been modified to the extent of its provisions and, thus, it is quite clear that circular letter holds the field in the matter of determination of pensions and other benefits to the retired Government servants.
11. Similarly for the reasons stated above the argument of the learned Advocate-General that the appellants' cases are governed by the K. S. R. And notification and as such they cannot be granted pensions beyond the amount fixed as maximum ceiling in Article 236 of K. S. R., Vol. I as amended by notification is unsustainable. The provisions of notification fixing Rs. 575 p. m. As the maximum amount of pension stands superseded by the provi--sions of the circular letter and is no longer valid and operative. Moreover the notification was made applicable in cases of those pensioners whose date of effect of P. R. A. Commenced before 1-7-66 with the result that the appellants having retired after the said date it does not govern their cases regarding the grant of pensions.
12. The Accountant-General does not himself appears to be sure of the grounds of his refusal to the grant of pensions to the appellants at the rate of 70 % of their average emoluments as he has taken in this respect conflicting and contradictory stands on different occasions. The request of Agha Ashiq Hussain appellant for revision of his pension at the above rate was not acceded to on the grounds that his pension in that case would cross the limit prescribed as maximum amount admissible to Government servants under Article 236 of K. S. R., Vol. I and that it would also be against the advice given by the Finance Department in an identical case of Kh. Abdul Ghani retired Secretary Law whereas in the written objections filed in the appeal of the above-mentioned appellant it has been contended that if his pension is recalculated @ 70 % in accordance with the clause (i) of para. 7 of the circular letter then it would exceed the limit of maximum amount of pension to be granted to a Government servant under the notification by which his case is governed. But contrary to the above contention in a decision impugned in his appeal Ch. Alif Din appellant has been held to be entitled to an increase of 5 % over his existing pension under circular letter.
13. It sounds paradoxical that while on the- one hand the Accountant-General respondent himself granted 50% increase on the pension of the appellants in accordance with circular letter but on the other he has taken objection in the present appeals to the very applicability of the circular letter to the cases of the appellants on the ground of its limited application to only cases of those pensioners who retired on or after 1-7-1970. These quite contradictory actions on the part of Accountant-General respondent may rightly be described as contradiction in terms and blowing hard and cold in the same breath. If an increase of 5 0% can be allowed to the appellants over their existing pensions under clause (ti) of the para. 7 of the circular letter then no reason--able basis are left for contending that its scope does not extend to the cases of the appellants so as to entitle them to have their pensions recalculated @ 70 %. It is quite obvious that if 5 % increase over their pensions is admissible to the appellants in accordance with clause (i1) of para. 7 of the circular letter, then they are equally entitled to get their pensions revised @ 70 % of their average emoluments m case they make option for the recalculation of their pensions under clause (i) of its above-mentioned para. The plain reading of the circular letter as a whole leaves no doubt in our mind that for the purpose of giving them pension and retirement benefits the civil servants, have been divided into two categories, first comprising those pensioners whose dates of retirement fall on or after 1st March, 1972 while second consists of all others not included in the first one. The pensions of the first category are to be determined afresh in accordance with the provisions of clause (a) of the para. 2 of the circular letter whereas the benefits to the pensioners of second category are granted under its para. 7 where under they have been giving choice either to get their pensions revised on the same basis on which they are allowed to those belonging to the first category under the provisions of the circular letter or to receive an increase of 5 % if they have retired between Ist July, 1963 to 29th February, 1972 or 12% in other cases over their gross pensions including dearness allowances admissible thereon.
14. The appellants having retired before Ist March, 1972 are fully governed by the provisions contained in para. 7 of the circular letter and are, therefore, entitled to exercise their option given to them under the said para in matter of refixation of their existing pensions. The appellants having completed 30 years service qualifying for pensions and also having exercised their choice in favour of the first alternative referred to above are eligible to their revised pensions @ 70 of their average emoluments under clause (i) of the para. 7 of the circular letter and the Accountant-General as a functionary of the Government was bound to implement and give effect to the provisions of the circular letter issued by the Government and to re-calculate their pensions in accordance with their choice exercised by them under clause (i) of para. 7 0 the circular letter and had no authority or power to impose his choice on them by allowing only 5 % increase on their existing pensions in accordance with clause (II) of its aforementioned para. The Accountant-General by allowing revised pension to the appellants contrary to their choice made by them has not only contravened the provisions of the circular letter but has also definitely travelled beyond the province of his authority and jurisdiction thereby depriving the appellants of the full benefits granted by the Government to the pensioners who as a class generally are hard-pressed in these days of high inflation and find it difficult to make both ends meet within their limited pen--sions as no amount of increase in pensions can keep pace with the rapid and ever-increasing cost of living.
15. For the foregoing reasons, we hold that appellants are entitled to have their pensions recalculated in accordance with the provisions contained in para. 7(i) read with para. 2 (a) of the circular letter.
16. We accordingly, accepting the appeal, set aside the impugned orders and direct the Accountant- General to recalculate the pensions of the appellants @ 70 % of their average emoluments w.e.f. 1- 2-1977 and make payment to them accordingly. The parties are left to bear their own costs.
17. A copy of this order be kept on the file of other appeal.
18. The parties shall be informed of this order.