Shireendil Khan Niazi Vs. Sec. Ministry of Defence etc

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IN THE FEDERAL SHARIAT COIJT

TThevisiona1 Jur i sd c t )

PRESENT:

MR. JUSTICE DR. TANZIL-UR -RAHMAN, CHIEF JUSTICE

MR. JUSTICE DR. F IDA MUHAMMAD KHAN

MR.. JUSTICE NAZ IR AHMAD BHATTI

SHARIAT PETITION NO. 63/I OF 1990

Shir een Dil Khan Niaz Petitioner Versus Secretary, Ministry- Respondents of Defence ete

Counsel for the (Petitionew ▪ Mr .Abdullah San i, Advocate Date of Institution • • • 8 .1 0.1 990 Date of Admission 24 .3.1991

SHARIAT PETITION NO. 67/I OF 1990.

Major M. You saf Khkn etc Petitioners Ver sus Secretary, Ministry Respondent of Finance

For Petitioner • • • In per son Date of In st itut ion . ▪ 14 .11.1 990 Date of Admission 2)4.3.1991

SHARIAT PETITION NO.18/I OF 1 991

I.A. Sharwani Petitioner Versus Secretary, Ministry Respondent of Finance For Petitioner In per son

Date of Institution ▪ 214.14.1991 Date of Admission ••• 11. 5.1991

SHARIAT PETITION NO.24/I OF 1 991

Fa zal Ela hi, D.A.C. MA P etitioner V er sus Secretary, Ministry Respond ent of Finaric e For Petitioner In per son

Date of Institution 23. 5.1991 Date of Admission 4 . 6.1 991 Counsel f or t he Federation Hafiz S.A.Rahmar; Advocate and Government of Sind For Government of Punjab . Mr . Khalil Ahmad , Assistant Advocate General e For the Government of N. W.F. P. ..t Mr . Shaba laidd in Bur q, Law Officer Dates.of Hearing i)' • • 27 .4 .1.992 and 28 .4 .1 992 i Date of D ec ision " I "' 14.10.1992.

Fl S. P. No . 63/I/ 90 S. P. No . /I/ 90 4112 S.P.No . 1 8/I/ 91 S.P.No. 214/I/ 91

JUDGMENT:

NAZ IR A HMAD EHATT I J. - All the aforesaid 4 shar iat petitions are interconnected in the sense that the petitioners therein were employees of the Government of Pakistan and are retired pensioners and in receipt of pension. All the petitioners of the aforesaid 4 snar iat petitions are alleged to be old pensioners on account of the term "Old pensioners" a "new pensioners" used by the Government of Pakistan in its notifications of he year s 1 98 5 and 1986 which have been Achalleng ed in all the 4 shar iat petitions on the ground that the same are inconsistant with the Injunctions of Islam.

The petitioners have al so c hall e-ng ed t hat • no t only the term "old p en s ion er s" and "new pensioners" but also the difference between rates of pensions of the, old and new pensioners are inconsistant with the Injunct ions or Islam as contained in the Holy Quran and Sunnah of the Holy Prophet (PBUH).

2.In Shar iat Petition No. 63 /I/1 990 ( her einafier referred to as S. P . No . 63 ) Major General (Retd ) Shir een D il Khan Niazi and Colonel (Retd )

, S. P. No . 63/ I/ 90 -I,.i S. P. No . 67 / 1/ 90 I" S.P.No.18 /I/ 91 -3 - S. P. No. 21: / 1/91

Muir Nawa z are pet it ion er s. Both the petitioners are retired officers of the Army. They have both mentioned in the petition that they had given the best part of their life to the service of the country and retired many years ago but they are not treated at par with the Army officers who retired after thein in the matters of pensions and commutation of pensions. They have challenged the action of the Government of Pakistan in paragraphs No'. 5 to 13 of their petition. For the better under- standing of their contentions the aforesaid paragraphs are reproduced he eund er : - t

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Major (Retd ) M. You saf Khan and others petitioners in S. P.No. 67 /1/1 9 90 (hereinafter referred to as S. P. No . 67 ) have al so challenged the terms of old andnew pensioners used by the Gov ernment of Pakistan in both the aforesaid notifircations and the discriminatory distinction made in their pensions and pensions of the Army

S. P. No . 63 / 1/ 90 P . No . 67 / I/ 90 ii P. No .18 / 1/ 91 S. P. No .24 / 1/91

ff ic er s retired after them as being . inc on s sta nt with the Injunctions of Islam.

4.Paragraphs 3 to 6 of :theii• petition are a al so r epr odiZ66ed hereunder for the better understanding of their contentions:

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S. P . No . 63 /I/ 90 da,P . No . 67/1/ 90 SP. No .18 / I/ 91 S. P. No. 24 / 1/91

I. A. Sharwani the petitioner of Shar iat Petition No .18 /I/1991 (hereinafter referred to as S. P.No .18 ) was a Joint Secretary of the Government of Pakistan and retired in the year 1916 in Gt-ad e-2 0 . lie ha .s su Imitt ed a 1 eng Jmr pet it ion spr ead over 6 pages. He has challenged the difference in pension of new a.nd old pensioners as being violative of the Injunctions of Islam.

Fa zal Ela hi petitioner of ShLiat Petition No.24/1/1991 (hereinafter ref erred to as S.P.No.24,) was employed as D:A.C.M.A. (Grade-L7) in the , itar y Adcount s Department and he r et ir ed from service in the year 1971. In his petition which is also spread over 6 pages he challenged the distinction made by the Government of Pakistan in the pensions of old and new pensioners as being inc on sistant with the Injunctions of Islam. In this respect the follwoing contents of page 6 of his petition are worth perusal: —

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7.It was also asserted by the petitioners before us that formerly pension was calculated at 50% of the average salary of a Government servant drawn during the last thr ee years before his retirement and subsequently the pension was incr ea:sed to 60% of the average salary of the last three years.

but in the year 1985 the pension was raised to 70% .

of the salary last drawn by a retiring Government servant. It was also • contended by the petitioner that there was a further ceiling put on the pension to

S. P. No . 63 / 1 / go S. P. No . 67/1/90

41". P. No .18 /I/ 91 S. P. No . 214 /I/91

the effect that maximum pension which a Government servant Lc guild draw was Rs .1, 000/-, and the amount of pension beyond R s.1, 000/ - was allowed upto 50%, o but in the year 1985 that ceiling as removed and pension could be drawn without any limit of ceiling at 7 0% of the salary last drawn.

8.Although the petitioners did not disclose the amount of pension which they were drawing when they came to this Court but it was conceded on behalf of the Government that in sp it e of the several percentage increases allowed to the pensioners from time to time, total pension of each of the pensioners was not equal to the pension which was being drawn by a Government servant r et ir ing after July, 1985.

However, petitioner Fa zal Ela hi of Sher iat Petition No . 24 has mentioned •in his petition that including ,all the raises in pension which were allowed to him from time to. time he was drawing a total pension of Rs.1,254/- since 1.7.1990 whereas an officer of the same grade of the same Department who had retired after the year 1989 was drawing a pension of R s. 3 , 900/ - in July, 1989. Any how this circumstance should not

B.P.No.e3/I/ 90

• S. P. No . 67 /1/ 90 S. P. No .18/I/ 91 S.P.No.2.4/1/91

detain us from further proceeding in the petitions because it was common knowledge that the petitioners were not drawing the same pensions which were being drawn by the officers of their Lc at Egory who had retired after the years 1985 and 198 6.

The Government of Pakistan submitted very lengthy written statements in all the aforesaid 4 petitioners and similar grounds have been taken in all the written statements.

Some pr eliminary obj ections taken in the written statements inter alia disclosed that the petitioners had not challenged any particular provisions of law or rules and as such the petitions were not maintainable. It was also mentioned that the pensions were calculated on the basis of the salary drawn by 'a Government servant at the time of his retirement and since salaries were revised from time to time, the difference between pensions of old and new pensioners was bound to occur. It was also contended in the written statements that under sect ion 19 of CivilServants Act, 1973, on retirement from service a civilservant was entitled

S. P. No . 63 /I/ 90 a S. P. No. 67/1/ 90 -11-

S. P. No. 24 /1/91

to such pension as may be pr escr ibed and it was contended that Government of Pakistan have been prescribing scales of pensions from time to time keeping in view the salary of a Government servant at the time of his retirement as also the rules applicable in that, behalf at the relevant tine. It was further contended that whenever salaries were revised, pensions were al so simultaneously revised .

and benefits wer e given to the existing pens:loners by allowing them certain percentage increase in pension. It ras also the conten -tion of Government of Pakistan that salaries of Government servants were revised keeping in view the inflation prevalent at a particular time and increase in the cost of living and pensions wer e also revised keeping in view the economic conditions prevalent at that particular time and hence difference between the pensions of Government servants retiring at different times was bound to occur.

11.We have heard the petitioners, and learned counsel for the parties. It is an admitted fact that there exists difference in the pensionary ben ef, its of G•vernment servants retiring at different

S..?. No. 63/1/ 90 S. P. No. 67/1/90 -12 - s.P.N0.18 / 1/91 P.No.2 4 / 1/91 times. Gov ernnrent servants who retired in the sev enties are in receipt of less amount of pension than the Government servants who retired in the eighties or afterwards. It is also an admitted fact. that there occurred revision of salary many times during the years 1971 to 1990 and consequently the rates of pensions also increased with every increase in the sa1ari It i also an admitted fact that inflammatory trends have been on the iticr ease dur ing the af or e sa id per iod af 20 years and cost of riving has arisen many folds. As such the question for determination is whether Gov ernm cut servants of- the same category, whether retired earlier or later, are being treated. equally or otherwise in so far as the pensionary benefits are concerned and if the said treatment is unequal hether it is a violation of any law or rule as also the Injunctions of Islam.

12.It ha ..s even been admitted by the Government of Pakistan tñat after every revision of salary there .

has been a r ev isjmn of pension and the pensions of the old pensioners was not brought at par with the new, pensioners. Instead old pensioners were given some relief in the shape of some percentage incr ease in their pensions.

But it is also a fact that the said percentage increase did not bring -the pension of an old pensioner at par with the pension of a new pensioner.

S.P.No:63/1/90 S,P.No.67/1/90 S. P.No.18 /1/ 91 s13 - P No.24/I/ 91

rib

It was contended on behalf Of the

petitioners that the aforesaid discrimination , in the pensions was a violation of the Injunctions of Islam in as much as''AdIc 1 ( (f,15 ) and 'thsanK9L-'/I were not enforced. It was contended that the fixation of different rates of pension for retirement from the same post was discriminatory treat ement.

14., The contention Of the Government that the pensioners have not challenged any law or rule as being inconsistant with the Injucntions of Islam is not tenable for the reason that pensions • are admissible to retiring Government servants under section 19 of the Civil Servants Act..

13.There is no denying the fact that the hare minimum needs of every man,whether he be young or old,retired or serving,are the r same. He must get food in order to sustain himself and to keep him in proper health,reasonable clothing in order not only to conceal his nudity but also to protect himself ! from the Hazards and vagaries of nature and weather.

Every man also needs a roof over his head. There • are certain other minimum needs and'reciairements.

,3.P.No.63/I/90 S.P.No.67/I/90 S.P.No.18/1/91

4111.P.N.24/I/91

In many countries of.the world there is the practice of determining from time to time a minimum wage which covers minimum requirements of every person at a given time. This minimum wage is subject to evision from time to time. In so far minimum requirements are concerned no discri- mination can be made between men. Similarly no discrimination can be made between retired Govertment servants in so far as their pension is concerned.

1 Allah has, at many places in the

Holy Quran, enjoined upon the people to do justice and to keep balance between men. Let it be noted that Islamic justice is somdthing higher tthat the formal justice of Roman Law or any other human Law. Both Plato and Aristotle define Justice aa the fiirtue which gives everyone his due. From:

this point of view Justice becomes the master virtue, and includes most other virtues. In Islam, justice is related to the concept of Tawhid(....v>")) and Tawhid ia the foundation of justice. Justice is : a value recognized by all •religiots. Some people may be inclined to favour the rich,because they expect something from them. Some people may be inclined to favour the poor becuase they are

.S. P. No . 63 / 1/ 90

A

S. P. No. 67/1/ 90 S. P. No. 18 /I/ 91 -15- S. P.No. 214 /I/ 91 I

generally helpless. Particularly in either ca se is wrong. Allah command s us:• Be just, without fear or favour. Both the rich and the poor are to be treated alike under Allah' s protection as far as their legitimate rights are concerned. To do justice and act righteously in natural a tmo sphere is meritorious enoug h, but the real test comes when you • have to do justice to people who hate you or to whom you have arVaLv er sion.

But no less is required of you by the higher Moral Law.

In verse 45 of Surah Al -Ma ida , the Holy Prophet (PBUH) has been commanded to judge in equity between them, for Allah loves those who judge in equity.

Int ver seila of Surah Al -Imr'an, the angles, the Allah Almighty all stand firm on justice. In verses 7 and 8 of Surah Al -Rahman it ha s been stat ed in Iclear terms that' He raised the High and He has set up the Balance (justice), in order that ye may not transgress Balance (due). As such justice is a heavenly virtue.

It was cont ,erid ed by the learned State ' counsel that Ha zrat Umar had fixed d if f er ent rates

S.P.No.0"/I/90 of stipend) for the residents of Makkah r:P.No.6771/90 S.P.No.18 /1 /91 S,P.No.24/1 /91 and Madina who were either the companions of the Holy Prophet or had taken partin the wars in the company of the Holy Prophet. He was of the opinion that on the same analogy different rates of pension couldl continue between government servants of the same category retiring at different times.

In our opinion the aforesaid example is not applicable to the pensions for the reason that pension i.s a legal right of every government servant who retires after rendering •service qualifying for pension whereas the stipend allowed by Hazrat Umar was not a result of any legal or rightful requirement but it was a gratuitous allowance, given to Sahaba.

19.We had the benefit of going through the writings of eminent Muslim write4.4 of the past and have noted a's follows:

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5“EsNolka/I/90 20. It was • contended by, the learned S.P.No.67/1 /90 S.P.No.18/1/91 S.P.No.24/ 1 711 counsel for the State that the Shariat Petitions No.63,No.67, and No.24 were not legally maintainable as no law or a provision of law has been challenged by the petitioners as being inconsistent with the Injunctions of Islam. No doubt in the aforesaid three Shariat Petitions no law has been directly challenged and only two notifications issued in the years 1985 and 1986 have been challenged.

But it is to be kept in mind that both the aforesaid notifications have purportedly been issued under Regulation 4 of the Civil Service Regulations and as such the vires of the aforesaid Regulations have been challenged. In so far as Shariat Petition No.18 is concerned it has specifically challenged the vires of Regulation 4 of the Civil Service Regulations.

We are,therefore, of the opinion that the intention of the petitioners is very clear. They have challenged the Regulation whereunder the Government exercises the power to determine and fix pensions. The term law as contained under Article 203D of the Constitution includes any custom having the force of law,the Civil Service • Regulation have also the force of law and there inconsistency or otherwise with the Injunctions of Islam can be examined by this Court under Article 203D of the Constitution.

S.P.Ns.63/1/90 S.P.No.67/f/90 S.P.No.18/ 1/91 411.P.No.24/1/91, 2t. It was also contended on behalf of the ci

State that there was no privity of contract -between the Government of Pakistan and the,retired Government servants that the pension, which was admissible to them at time of retirement, will be increased subsequently. We have considered this contention very seriously but in our opinion this argument is fallacious for many reasons; firstly; it ignores the difference in the amount of pension allowed to the same catagory of officers retiring at different times; secondly, it ignores the Injunction Adal(6.9) as enjoined by the Holy Quran; and thirdly, it ignores the basic fact that inflation and cost of living are always and constAntly on the increase and it becomes difficult to make both ends meet with the amount of pension which is not increased with every increase in the inflaQtion and cost of living.

21-. The learned. State counsel also relied upon a quotation from MaLairful Quran Vol-VII (page-729) of Maulana Mufti Muhammad Shafi which - is as f-rilli,YolTO1/2:1-

S.P.No. 63/1/90 S. P. No . 61/1/90 S. P. No .18/ I/ 91 S. P. No.2 4 / 1/91

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23: It wa his contention that. Islam

did not believe in equal distribution of wealth but equal opportun ty to acquire wealth. We have given our serious bonsideration to this contention but we do not agree with the contention of the learned counsel foi- the r ea son that in the earning of pension there is neither any question of equal distribution of wealth nor of equal opportunity to \ acquire wealth. Actually pension is a right acquired by a Government servant after he has put in the best part of his life for the service of the nation. Not only that but it . is a right legally acquired under the Civil Servants Act.

S.P.E4.63/1/90

p..p.N..87/1/90

.P.N..24/1/91

24,e Having come to the conclusion that Allah enjoins upon Muslims to keep balance betweeh individuals and to do justice between men meaning thereby that no discrimination imam be made between man and man, we now proceed to examine both tile impugned notifi- to floteryinp• • oat idriet to tdjetlerze.inie? idiethet lthy•erreoi n opf nn4ty vifl the Injunctions of Islam or not. Here it is pertinent:

to note the salient features of both the notifications.

The first impdgftedhfietification issued in the year 1985 allowed the following benefits - to the pensioners:-

"From 1.7.1985 following benefits were aliowed:-

(1)Pensioners retired upto 31.12.1985 were given indexation on pension @ 131/2% of gross pension upto Rs.1500/- and 10% of gross pension above Rs.1500/- to those retired upto 31.12.1985.

(ii)Prior to 1.7.1985 pensions were subject to 50% reduction after Rs.600/-,1000/-, 2500/-,during 1.7.1966 to 29.2.72, 1.3.1972,30.6.1980,t0 1980,1.7.1980 to 30.6.1983, 1.7.1983 to 30.6.1985 respectively. The above &ut off points were removed from 1.7.1985. This benefit was also allowed to all those retired prior to 1.7.1985 and widows whose husband retired or died prior to 1.7.85. No arrears were allowed prior to 1.7.1985.

(iii)There was no concept of restoration of pensions surrendered for commutation/ gratuity if the pensioners concerned out- live the prescribed period. From 1.7.85 1/4th of grass pension surrendered for

S.P.Ne.63/1/90 S.P.No.67/1/90

S.P.114.18/1/91

11144.Ns.24/I/91

commutation was made restoreable to the pensioners who out-live the period for which it was allowed but do arrears were allowed prior to 1.7.1985. Also see items 8(ii) and 13.

(iv)The family pension of widows which ceased prior to 1.7.1983 after expiry of prescribed period of 5/10 years •and in cases where pension was not admissible as the retired/ deceased Government servant had already availed pension for 5/10 years were also allowed family pension for life or until remarriage."

15.The second impugned notification issued in the year 1986 allowed the following benfits to the penioners:-

'From 1.7.1986 following benefits were allowed:-

(i)Those retired upto 31.12.1985 were given indexation @ 41/2% of gross pension upto 1500/- and 31/2% of gross pension above Rs.1500/-. Those retired between 1.1.1986 and 30.6.1986 were given indexation @ 4% of gross pension upto Rs.1500/- and 3% of gross pension above• Rs.1300/- or indexation on pension • at the rate applicable had they retired on cr before

ii)1/4th of the pension surrendered for gratuity i.e. where commutation was not availed was also made restorable from 1.7.1986 to the pensioners who out-live the period for which it was allowed (i'' Initially Government servants retried on or after 1.7.1986 where entitled to additional benefit @ 2% of pension for each yeacd- of service put in after 30 years service subject to maximum 10% of gross pension. This was subsequently extended to those retired prior to 1.7.1986.

S.P.No.63/1/90 S P.No.67/1/90 ' P.No.18/1/91 .4111P.No.424/1/91 From 1.7.1987 following benefits were allowed to pensioners:-

(±) Indexation on pension @ 4% of gross pension to those retired upto 30.6.1987.

The widows of Government servants who died prior to iri\,troduction of pension-cum-gratuity scheme,1954 were also allowed family pension , from 1.7.1987 if the deceased had rendered pension able service.

The widows of Armed Forces personnel upto' the Rank of Junior Commissioned Officers who retired/ died prior to 1.7.1983 were also allowed ordinary family pension for life or until remarriage. Those retired and died after 1.7.1983 were already entitled to family pension(item 6(iii) above.

From 1.7.1988 following benefits were gi'Ven to old pensioners:-

(i)Indexation on pension @ 7% of gross pension to those retired upto 30.6.1988.

The widows who were granted family pension from 1.7.1985(item 7(iv) above were also allowed the dearness' increases on their pensions.

From 1.7.1988 no gross pension of a retired ' Government servant would be less than Rs.300/- p.m.

2.1• It is also note—worthy, that five percenta increase was allowed from 1.7.1990 to all Government servants who had retired upto 30.6.1991. The following further benefits were allowed to the pensioners:-

(a)Government servants retired prior to 1.7.1986 have been allowed the benefit to the extent of 2% of gross pension for each extra year of service beyond 30 years qualifying service subject to a maximum of 10% of gross pension(orders issued on

S.N.No.63/1/90 S.N.No.67/1/90 .No.18/1/91 4!!!.No.24/1/91 From 1.7.1991, one-fourth of. gross pension surrendered in lieu of •gratuity,in addition to commutation, has been allowed to be restored,after outliving the period for which gratuity was allowed.

From 1.7.1991 Government servants retired prior to 1.5.1977 have been allowed dearness increases -@ 32% and 'those retired from 1.5.1977 27., It was then contended that in the light of the e:rhi prLesntrgrAossATEmsioni of an officer retired in March,1977 after drawing maximum of B-20 for 3 years and after service of 35 years has risen from Rs.1410/- p.m to Rs.3,997.69 p.m as under:-

(1)Gross Pension for 30 years Ns.1410/- service on 31.3.1977.

Gradewise increast from 1.7.1980. Rs. 150/-

10% of above 2 items from 1.7.1981. Rs. 156/-

10% of above 3 items from 1.7.1982. Rs. 171/60

From 1.7.85 restoration of cut off of 410/-(imposed Rs. 410/- at the time of retirement)!

10% of above 5 items from 1.7.1985. Rs. 229/76

31/2% of first five items from 1.7.1986. Rs. 8o/41.

4% of • first five items Rs. 91/90.

7% of ,first five items Rs. 160.88 ' (10) 5% of first five items Rs. 114.88 From 1.7.86 benefit @ of 2% of items 1 & 5 above for Rs. 217.49 each year of service put in after 30 years service subject to maximum of 10% with increases-items 7 to 10 above.

32% of first five items RS. 564.82 and items 11.

Total: Rs.3,997.69

S.P.No.63/1/90 S.P.No.67/1/90 da..R ...No.18/I/91 IrWl%No.24/1/91 28: . It was also contended on behalf of the Government that;

• (a) Upto 30.6.1966,pensions were calculated on 50% of average emoluments drawn during the last 36 months on completion of 30 years service qualifying for pension. From 1.7.1966 the percentage was raised from 50% to 60% of the average emoluments. Those who had retired prior to 1.7.1966 were allowed to get their pension recalculated or to enjoy increase on their pension sanc-tioned from 1.4.1964.

(b)Under Liberalized Pension Rules for Civil Servants introduced in 1977,the Government servants retired on or after 1.3.1972 after a service of 30 •years were allowed to get their pension recalculated @ 70% of average emoluments or continue to draw Pension under the then existing formula of 60% of average emoluments with following increases already admissible to them:- Rate of IncileaSea. Date of Effect.

(i)((a) Gross Pension not ekceeding . 1.6.1973. Rs.50/-adhoc in-crease @ 20% subject to minimum of Rs.5/7

(b)15% of gross pension subject to minimum of Rs.10/-for pensions between Rs.51/- to Rs.100/-,

(q)15% of gross pension subject to minimum of Rs. 30/- on pensions upto Rs.500/ - iith marginal adjustment upto Rs.530/-.

15% of gross pension not exceeding 1.8.1973. Rs.700/- subject to maximum of 8s.35/— 15% of gross pension subject to a 8.6.1974 • maximum of Rs.100/-

10% of gross pension subject to a 7.4.1975 maximum of Rs.25/- p.m.

S. P. Nip. 63/i/ 90 S. P. No. 67 /I/ 90 si. N . 18 / I/ 91

..N,.24/I/91

Pensioners who had retired before 1.3.1972 were entitled to have their retirement pensions recal- culated in accordance with one of the following alternatives whichever was more favourable to them;

The amount of their pensions shall be calculated at the rate of 70% of average emoluments on completion of 30 years qualifying service without dearness increases sanctioned before. 1st Feb. ,1977;

OR

They may continue to receive existing ,pension and increase with following additional benefits:-

An increase of 5% in the case of an employee who retired between'Ist July 1963 and 29th February,1972 or 121/2 percent in the case of an employee who retired upto 30th June,1963 over his existing gross pension,plus dearness increases admissible thereon.

From 1.7.1980 the Government servants retired upto 30.6.1980 were given the following gradewise increases:- Grade 1 to 10 Rs.40/- p.m.

Grade 11 to 16 R5.70/- P.m:

Grade 17 to 18 R5.100/- Grade 19 to 20 Rs.15'0/- p.m.

Grade 21 to 22 Rs.200 p.m.

From 1.7.1981 an increase of 10% of gross pension subject to maximum of Rs.200/- p.m to those retired upto 31.12.1982.

From 1.7.1982 an increase of 10% of gross pension subject to maximum of Rs.200/- p.m. to those retired upto 30.6.1983.

From 1.7.1983 the following benefits were given:-

S. P.No 63/I/ 90 tak S. P. No. 67/1/90 P.No.18/I/ 91 S. P. No.24 /I/ 91

(i ) Dearness increase @ 10% of gross pension subject to maximum of Rs.200/ - to those retired upto 30. 6.1983.

Family pension of widow was made for life. Previously it was admissible for five years upto 29.2.1972 and for 10 years thereafter . Also see sub-para (I) below in case of widows whose pension ceased due to expiry -- of 5/10 years per iod.

Prior to 1.1.1983 • the c•ricept of ordinary family pension did not exist for Armed Forces pensioners upto the rank of Junior Commissioned Officers. The families of such personnel retiring on or •a f t er 1 .7 .1 98 3 were allowed family pension as admissible on bivil side.

In the light of the aforesaid it was

contended by the learned State counsel that Government had been revising the pensions from time to time and had allowed reasonable benefits to the •pensioner s and had brought the pensions of the old pensioners at par with the new pensioners. However, it as contended by the petitioners that still pensions of the Government servants who 1 98 5 and 1 98 6 were not had retired before the years 1911,

raised to the level of the pensions earned by the Government servants who had retired after the year 1986.

This contention of the petitioners was conceded to by the learned counsel for the State but it was contend ed that since the pensioner s had retired at different dates and their pensions were calculated on the basis of salary drawn by them at the time of their retirement, there could be no ,

P.No. 63/I/ 90 P. No. 67/1/90 S. P. No.18 /I/ 91 S. P. No.24 /I/ 91

question of giving equ,a1 pension to the old pensioners as was made admissible to new pensioners bit inspite of that Government had allowed liberal incr ease in the pensions from time to time and the pensions of old pensioners were virtually at ,par with the pensions of the new pensioners.

We think that there is a half truth in

the aforementioned • contention of the learned icounsel for the State because we had noted difference in the maximum pension of old pensioners and new pensioners and this was not denied by • the learned counsel for the State. We have, ther efor e, come to the conclusion that the socalled old pensioners were given such raise in their pension which did not bring them at par with the new pensioners. The pensions Of the former were not made equal to pensions which had become admissible afterevery revision of salttry and pension. Actually discrimination has been made in the treatment of Gov ernment servants retiring at different times in the matter of grant of pension. That would also

S.P.46/1190 prove that justice was not being one to the pensioners S.P.No.:67 / 1 /90 S.P.No.18/1/91 S.P.No.247T7T of thcsathe category retiring at different times.

31.It was •the contention of the Government that pension of a retiring Government servant was calculated in accordance with Regulation 4 of the Civil Service Regulations, which were continued in force under section 25 of the Civil Servants Act,1973, and there was no question of discrimination in the matter of pensions.

Regulation 4 of the Civil Service Regulations is reproduced hereunder:-

"The Government-of Pakistan reserve to themselves the right of changing the rules in these Regulations regarding pay and acting allowance and leave and pension from time to time at their discretion, and of interpreting their meaning in case of dispute.

An officer's claim to pay and aliowandes is regulated by the rules in force at the time in respect of which the pay and allowances are earned; to leave by the rules in force at the time when the leave is applied for and granted; and to pension by the rules in force at the time. when the officer resigns or is discharged from the service of Government."

32.On the contrary it was contended by the petitioners that Regulation 4 of the Civil Service Regulations was incon'sistant with the Injunctions of Islam in so far as it related to pension as also the different rates of pension as also the different rates of pension

S.P.No.63/1/90- admissible at different tithes. Their contention S.P.No.6 7 / 1/90 S.P.No.18/1/91 SJ.No.24/1/91 was that the provisions of Regulation 4 in so far as they related to the pensions were discriminatory because they allowed the Government to fix pensions at different rates in clean violation of the princples of Adl(jAs) and Ihsan(01-N).

33.A further argument was advanced on behalf of the Government that in• order to meet the increase in pension the State would be in need of more money and for that matter more taxes shall have to be levied upon the citizens. No doubt this exercise will entail increase in the expenditure of the State but there is no way out because this shall have to be done in obedience to the Irijunctions of Islam as enjoined by the principles of "Adl" and "Ihsan". We can not ignore 'a clear mandate of Allah simply for the reason that it will entail more expenditure.

34.It was also specifically brought to our notic that since the limit of maximum pension which a Governmen servant could earn was done away with in the year 1985, the pension of Government servants retiring thereafter' had increased many fold. If a Government servant,who had retired before July,1987,used to get a maximum pension of Rs.600/-per month inclusive of all

S.P.No.63/1/90

S.P.N0.67/1/90

S.P.No.18/1/,91 -3i- S.P.No.24/1/91

increases made from time to time, the same category of Government servants retiring thereafter draw a minimum pension of Rs.840/-'and in this way a different treatment is being given to servants of the same grade be' category.

S• We are of the conisdered opinion that the division of mmlanets into new and old pensioners is ' also discriminatory. Actually pensioner is a pensioner irrespective of the date on which •he retired and whenever there is any revision of salary or pension each one of the pensioners is entitled to get pension equal to the other in the same grade or.

category. It traOpires that section 19 of Civil Servants Act is being implemented by the Government in respect of different pensioners not keeping in view the principle of 'Adl' ( ) and 'Ihsan' ( ).I/ We are of the opinion r that the aforesaid

impugned notifications of, the years 1985 and 1986 are inconsistant with the Injunctions of Islam in as much:as the princtples of 'Adl' and 'Ihsan' have been over-looked. We will direct that Regulation 4 of the Civil Services Regulations be also brought in

conformity with the Injunctions of Islam.

S

s:P.No.18/1/91 s.P.No.24/1/91

36.The jndgment shall take effect after 6 months from today.

AZIR AHMAD BHATTI)

Judge

(DR)ANZIL-UR-RAHMAN) (DR.FIDA MUHAMMAD KHAN)

Chief Justfce Judge

An n o u ced 044

at M.Akram *

Fit fel- reporting.