Said Qamar Vs Govt of KP

Judgment Sheet

IN THE PESHAWAR HIGH COURT,

ABBOTTABAD BENCH

JUDICIAL DEPARTMENT

Writ Petition No. 1163-A/2023

JUDGMENT

Date of hearing...................17.09.2025.................................

Petitioner (Said Qamar) By Mr. Qaiser Rehman Khan, Advocate.

Respondents (Government of Khyber Pakhtunkhwa, through Secretary Local Government, Elections & Rural Development Department, Secretariat, Peshawar & others) By Arbab Ifrahim, Assistant Advocate General along with Mr. Fida Bahadur, Advocate.

SADIQ ALI, J.- Through this petition, petitioner has approached this Court with the prayer;

“It is humbly prayed that on acceptance of instant writ petition the respondent department may kindly be directed to issue the Family Pension of the petitioner with effect from the date of stoppage/entitlement. Any other relief which this honourable Court deems fit and appropriate in the circumstances of the case may also be granted.”

2.The case of the petitioner is that his wife, Mst.

Nusrat Butt, remained in service as Lady Supervisor at TMA and unfortunately expired on 11.11.2017. After her demise, the petitioner obtained a succession certificate from the competent court, on the basis of which the

competent authority sanctioned family pension in his name and he continuously received the same. However, from May 2023 onwards, the payment was abruptly discontinued by the respondents without affording him any prior notice or opportunity of hearing. It is the grievance of the petitioner that the stoppage of pension is arbitrary and violative of law, and has deprived him of a vested right that had already accrued in his favour. Feeling aggrieved, he has approached this Court invoking its constitutional jurisdiction.

3.Arguments of learned counsel for the petitioner were heard and the record available on file was thoroughly perused.

4.Before dilating upon merits of the present case, it would be appropriate to have a look on the relevant Pension Rules. Chapter-C of the amended West Pakistan Civil Services Pension Rules, 2006 deal with Family Pension which is reproduced for ready reference;

“4.10 (I) Family for the purpose of payment of family pension shall be as defined in sub- rule (I) of rule 4.7. It shall also include the Government servants relative mentioned in clause(d) of rule 4.8.

(2)(A) A family pension sanctioned under this section shall be allowed as under:-

(i)(a) To the widow of the deceased------

(b)If the Government servant had more than one wife------

(c)In the case of a female Government servant -----

(ii)Failing a widow or husband as the case may be the pension shall be divided equal among the surviving sons not above 24 years and unmarried daughters.

Note: In working out the share of the various heirs under sub-clause (A)(i) and (ii), the amount should be calculated to the nearest paisa:-

(iii)Failing (i) and (ii), to the eldest widowed daughter.

(iv)-----” The family for the purpose of family pension has been defined under sub-rule(I) of Rule 4.7 of the amended Pension rules 2006, which include:-

“(a) wife or wives, in the case of male Government servant;

(b)Husband in the case of female Government servant:

(c)Children of the Government servant;

(d)Widow or widows and children of a deceased son of the Government servant.” Rule 4.10 of the West Pakistan Civil Servants Pensions Rules, 1963, recognized the husband of a female Government servant as a family-pension beneficiary. While, the Khyber Pakhtunkhwa Civil Servants Pension Rules, 2021 (notified 06-09-2021) define “family” to include, in the case of a female civil servant, her husband “for lifetime or till re-marriage,” and separately introduce a dependency filter “The husband ... shall

only be entitled ... when he has no source of income and was wholly dependent upon his wife.”

The Khyber Pakhtunkhwa Civil Servants Pension Rules, 2021 were published on 06th September, 2021 and under Rule 2 (e ) the “family” has been defined as under:-

“(i) wife in the case of male civil servant or husband in the case of female civil servant, for life time or till re-marriage.

(ii)Children as per detailed given below; who were dependent upon the deceased civil servant or pensioner;

(a)Unmarried daughters, life time or till marriage;

(b)Disabled and retarded children, for life time and without age limit;

(c)Widowed or divorced daughters, for life time or till remarriage;

(d)Son(s) upto the age of 21 years; and (e) In case of non-existence of any of the above family members, to the father or failing the father to the mother subject to the condition that they were wholly dependent upon the deceased civil servant or pensioner and have no other source of income.”

5.The pivotal controversy is whether the amended framework of 2021, which inter alia provides that in the case of a female civil servant her “husband for lifetime or till re-marriage”, can be invoked to curtail or extinguish an

entitlement that accrued and was being disbursed prior to the coming into force of the 2021 Rules. The material facts are not in dispute. The petitioner’s wife died prior to the promulgation of the Khyber Pakhtunkhwa Civil Servants Pension Rules, 2021 (notified on 06-09-2021). Consequent upon her death, family pension was sanctioned and paid to the petitioner in accordance with the then applicable provincial pension rules. After the 2021 Rules took effect, the department, relying upon the clause that treats a widower’s entitlement as subsisting “for life time or till re- marriage”, stopped payment on the sole ground that the petitioner contracted a second marriage after his wife’s death.

6.The law on this subject is well-settled. In the case of “Controller General of Accounts, Government of Pakistan, Islamabad and others V. Abdul Waheed and others” reported as 2023 SCMR 111, the apex Court held that;

“According to Bennion on Statutory Interpretation (Seventh Edition), page 181 with regard to the retrospectivity effect of law, it was said that "principle is sometimes expressed in the maxim lex prospicit non respicit (law looks forward not back). As Willes J said in Phillips v Eyre

retrospective legislation is 'contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transactions carried on upon the faith of the then existing law." Whereas in Crawford's Statutory Construction, Chapter XXV, germane to Prospective and Retrospective Operation, at pages 562 to 566 and 622, the gist of the discussion is that retroactive legislation is looked upon with disfavor, as a general rule, and properly so because of its tendency to be unjust and oppressive. There is a presumption that the legislature intended its enactments to have this effect to be effective only in future. This is true because of the basic presumption that the legislature does not intend to enact legislation which operates oppressively and unreasonably. If perchance any reasonable doubt exists, it should be resolved in favour of prospective operation. In other words, before a law will be construed as retrospective, its language must imperatively and clearly require such construction. Amendatory statutes are subject to the general principles discussed elsewhere herein relative to retroactive operation. Like original statutes, they will

not be given retroactive construction, unless the language clearly makes such construction necessary. In the case of People v. Dilliard (298 N.Y.S. 296, 302, 252 Ap. Div. 125) Court held that "It is chiefly where the enactment would prejudicially affect vested rights, or the legal character of past transactions that the rule in question applies. Every statute, it has been said, which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect of transactions or considerations already past, must be presumed, out of respect to the Legislature, to be intended not to have a retrospective operation.”

Similarly, in the case of “Commissioner Inland revenue, RTO, Rawalpindi Vs. Messrs Trillium Pakistan (Pvt.) Ltd., Rawalpindi” reported as 2019 SCMR 1643, it was held that;

“An explanation in a statute ordinarily operates to clarify the law prospectively. However, retrospective liability is imposed when an explanation attributes a meaning to a substantive provision or expression whereby the burden, obligation or liability of a person is increased for a past period. Such retrospective impact is to be avoided

unless the express language of the explanation warrants such an interpretation.”

Further reliance may also be placed on the cases of “Nagina Silk Mill, Lyallpur v. The Income Officer, A- Ward Lyallpur and another (PLD 1963 SC 322), Adnan Afzan v. Capt. Sher Afzal (PI 1969 SC 187), Nabi Ahmed and another v. Home Secretary, Government of West Pakistan, Lahore 4 others (PLD 1969 SC 599), Province of East Pakistan v. Sharafatullah and 87 others (PLD 1970 514), Sona and another v. The State and others (PLD 1970 SC 264), Hassan and others v. Far Foundation (PLD 1975 SC 1), The Collector, Customs and Central Excise, Peshawar and others v. M Rais Khan Limited through Muhammad Hashim (1996 SCMR 83), Malik Gul Hasan and Co. and others v. Allied Bank of Pakistan (1996 SCMR 237), Manzoor Ali and 39 others v. United Ba Limited through President (2005 SCMR 1785), Commissioner of Income Tax v. Messrs Eli Li Pakistan (Pvt.) Ltd. (2009 PTD 1392), Muhammad Tariq Badr and another v. National Bank of Pakis and others (2013 SCMR 314), Badshah Gul Wazir v. Government of

Khyber Pakhtunkhwa through Chief Secretary and others (2015 SCMR 43)”.

7.Moreover, it has also been well settled that pensionary benefits are a vested statutory right and not bounty or largesse. They cannot be curtailed, withdrawn, or altered to the detriment of a beneficiary by mere administrative circulars or later expediencies. The right of pension once sanctioned under valid rules, it assumes the character of accrued property within the meaning of Article 24 of the Constitution, which cannot be divested save in accordance with law. Similarly, in the celebrated case of “Province of Punjab vs. Kanwal Rashid (2021 SCMR 730)”, the august Supreme Court treated family pension as intimately linked with the right to life under Article 9 and directed that such beneficial entitlements be interpreted liberally so as to protect dependents from arbitrary deprivation.

8.Beneficial statutes, such as pensionary laws, are ordinarily intended to enlarge protection and not to divest vested rights. In the present case, nothing in the text of the Khyber Pakhtunkhwa Civil Servants Pension Rules, 2021, indicates an intention that they should apply retrospectively so as to undo pensions already sanctioned.

Even otherwise, under Articles 9, 14, and 25 of the Constitution provide a further bulwark against arbitrary deprivation. Article 9 mandates that no person shall be deprived of life or liberty save in accordance with law.

Family pension is designed precisely to protect the surviving dependents of a deceased civil servant from destitution. By abruptly discontinuing pension payments without lawful justification, the respondents have undermined the petitioner’s constitutional right to livelihood. Article 14 guarantees dignity of man, which is also gravely compromised when pensioners or their families are left without sustenance. Once a widower’s pension had been sanctioned under the prevailing law, to withdraw it on the basis of a subsequently introduced disqualification is discriminatory and violative of equal protection. It offends the principle that vested rights cannot be extinguished arbitrarily, nor can unequal treatment be meted out between similarly situated individuals.

9.It is also significant that pensionary rules are in the nature of beneficial or social welfare legislation. Such provisions must always be construed liberally in favour of the beneficiaries. The interpretative principle of beneficial construction has been applied by superior courts time and

again to ensure that such welfare-oriented statutes achieve their remedial purpose. The stoppage of family pension upon remarriage, even if prospective, is itself a matter of policy, but to apply it retrospectively to divest a pension already sanctioned would amount to penalizing remarriage, which is neither the spirit of the law nor compatible with the protective intent underlying family pension schemes.

10.The record reveals that the petitioner’s entitlement had been validly sanctioned in 2017 and continued without interruption for nearly six years. No allegation of fraud or misrepresentation is leveled against him. The stoppage is based solely upon the misconceived application of the 2021 Rules. In the absence of explicit retrospective effect, the respondents’ action is without lawful authority. It violates the petitioner’s vested statutory right, undermines constitutional protections under Articles 9, 14, and 25, and disregards the principle of equality and fairness that underpins the rule of law.

11.For these reasons, the instant petition is allowed.

The impugned stoppage of the petitioner’s family pension is declared to be without lawful authority and of no legal effect. The respondents are directed to forthwith restore the pension of the petitioner and to release all arrears from the

date of its discontinuance within thirty (30) days of receipt of this judgment. It is further observed that the province would be well advised to issue necessary clarificatory instructions to its departments and to the Accountant General’s office to ensure that the 2021 Rules are applied prospectively only, and that earlier sanctioned pensions are not disturbed on account of conditions that were never applicable at the time of their accrual. Such instructions would ensure uniformity, protect constitutional rights of citizens, and avoid needless litigation.

Announced:

JUDGE

JUDGE

Tufail./* Hon’ble Justice Sadiq Ali, Hon’ble Justice Syed Mudasser Ameer.