Find a Lawyer

Appeal No.204(R) of 1982, decided ors 7th October, 1984.

‑‑‑S.4(1)(c)‑‑Appeal before Tribunal‑‑Maintainability‑‑Cut off date of 1‑7‑1969‑‑Issues involving a source of continuing wrong or grief to a civil servant but riot adjudicated upon by Tribunal, held, shall continue to be within jurisdiction of Tribunal irrespective of cut off date of 1‑7‑1969‑‑Wrong fixation of pension or pay even prior to 1‑7‑1969, held, within jurisdiction of Tribunal because aggrieved Civil Servant suffers loss every month and cause of action to agitate his right accrues to him every month.

‑‑‑Res judicata‑‑Previous appeal dismissed by Service Tribunal on technical grounds and not on merits‑‑Principle of res judicata, held, not applicable on fresh appeal‑‑Service Tribunals Act (LXX of 1973), S.4.

‑‑‑S. 4‑‑Limitation Act (IX of 1908), S.5‑‑Limitation‑‑Condonation of delay‑‑Appellant agitating against wrong fixation of pension on basis of letter dated 28‑11‑1967‑‑Civil suit dismissed on grounds of jurisdiction‑ Appeal before Service Tribunal not entertained on grounds that impugned order was of date prior to 1‑7‑1969‑‑Appellant once again seeking redress by way of civil suit but same again dismissed‑‑Appellant again filing fresh appeal before Tribunal in 1982‑‑Application for condonation of delay in circumstances, granted and delay condoned.

‑‑‑S.4‑‑Review‑‑Appellant seeking redress against wrong fixation of pension under letter of date prior to 1‑7‑1969‑‑Appeal dismissed as not entertainable because of cut off date of 1‑7‑1969‑‑Fresh appeal entertained due to subsequent views of Tribunals‑‑Fresh appeal titled as "Review Appeal"‑‑Fresh appeal actually not for review of previous appeal but a new appeal though forming part of chain of events dating back to 1967‑‑Objection that Tribunal has no power to review its order, in circumstances, repelled.

‑‑‑ R. 13(a)‑‑Civil Service Regulations, para. 475‑A‑‑Special additional pension‑‑Pension Rules revised with effect from 1‑7‑1966 vide Ministry of Finance O.M. dated 18‑8‑1966 issued with assent of President‑‑No mention in such O.M. that special additional pension admissible under r. 13(a) of Superior Civil Service Rules and C.S.R. 475‑A was being done away with‑‑Appellant a retired P.M.As. Officer in receipt of superannuation pension of Rs.7,000 and special additional pension of Rs.700 per annum from 1953‑‑Opting for revised pension rates‑‑Pension less commuted portion revised to Rs.674.52 per month but special additional pension stopped‑‑Appellant agitating against stoppage of special additional pension‑‑Ministry of Finance issuing clarification on 28‑11‑1967 that rates of ordinary pension in revised pension Table in O.M. dated 18‑8‑1966 would replace rates of ordinary pension as well as special additional pension and thus special additional pension could not be claimed‑‑Such clarification amounting to substantive modification of O.M dated 18‑6‑1966 which had force of rules‑‑Subsequent clarification not even sanctified by President, held, could not possibly amend its forerunner of 18‑8‑1966 having attained‑status of rules‑‑Lacuna in O.M. dated 18‑8‑1966, held, could not be corrected through a belated and retrospective attempt by issuance of O.M. dated 28‑11‑1969‑‑Appellant, held, entitled to special additional pension also‑‑Service Tribunals Act (LXX of 1973), S.4.

Appellant in person.

Syed M. Shahudul Haq for the State.

Date of hearing: 21st June, 1984.

‑The facts leading to this appeal are that the appellant, who belonged to the former P.M.AS., retired from service as DFA/Deputy Secretary with effect from 3‑7‑1953. He was granted a superannuation pension of Rs.7,000 as well as a special additional pension of Rs.300 per annum under rule 13(a) of the Superior Civil Service Rules and C.S.R. 475‑A. The appellant continued drawing his ordinary pension plus the special additional pension till 30‑6‑1966.

2. The pension rules were revised with effect from 1‑7‑1966 in terms of the Ministry of Finance O.M. dated 18‑8‑1966, which the appellant opted for. Under para 11 of the O.M. ibid, the pension, less commuted portion of the appellant, was revised to Rs.674.52 p.m. Under para 2(3) of the O.M. ibid, which is quoted, special additional pension was made admissible to such officers who were in receipt of pay exceeding Rs.3,000 p.m.

"2. x x x

(3) Government servants who have rendered service on a pay as defined in Fundamental Rule 9(21) exceeding Rs.3,000 per month may, in addition to the ordinary pension, be granted a special additional pension or pensions at the rates and subject to the maximum limits laid down in the New Pension Table."

The Government relying on the above‑quoted provision of the O. M. dated 18‑8‑1966, stopped the special additional pension of the appellant on the ground that his ‑average emoluments which worked out to Rs.1,248.42 p.m. were below Rs.3,000.

3. As a result of agitation of the appellant for his claim of the special additional pension of Rs.300 per annum (Rs.25 p.m.), the Ministry of Finance issued, by way of clarification of their earlier O.M. dated 18‑8‑1966 another O.M. dated 28‑11‑1967 wherein it was stated that:

"x x x that the term "existing pension plus the increase in service pension admissible before that date (1‑7‑1966)" used in para. 11 of the O.M. referred to above covers all kinds of pension including special additional pension under the old rules. The rates of ordinary pension laid down in the New Pension Table referred to above, therefore, replace the rates of ordinary pension as well as those of special additional pension, where admissible under the old rules."

Since the above O.M. was a rejection of the appellant's claim, he filed a civil suit on 12‑11‑1969. The Senior Civil Judge vide his order dated 14‑6‑1979, held that the pension being a term and condition of the service, any grievance pertaining thereto must be agitated before the Federal Service Tribunal.

4. The appellant filed his appeal before the Tribunal which was registered as Appeal No. 80(R)/1979. The said appeal was heard by the Tribunal on 23‑12‑1979. It was dismissed vide Order dated 24‑12‑1979, the relevant excerpts of which are reproduced:

"Unluckily the learned Judge failed to notice the provisions of section 4(1)(c) which restrict jurisdiction in following words:

"4(1)(c) no appeal shall lie to a Tribunal against an order or decision of a departmental authority made at any time before the 1st July, 1969."

And further:

"There being specific exclusion of jurisdiction pertaining to disputes prior to 1st July, 1969, section 6 will not effect general jurisdiction of Civil Courts to take cognizance of any matter because it abates only those suits, appeals, applications which are within the jurisdiction of a Tribunal. Departmental decision being prior in time to 1st July, 1969, Service Tribunal had no jurisdiction. The suit would not abate.

Besides, section 6 of the Service Tribunals Act, 1973 enjoins recourse to the Service Tribunal within ninety days of such abatement; which comes into force by operation of law. The Act was brought on the Statute Book in 1973 and enforced in 1974. An appeal in 1979, would be hopelessly time‑barred. There being no condonation application either for the wasted time, that aspect has to be ignored. It was a digression. The dispute is not within the jurisdiction of this Tribunal. The appeal has to be dismissed on that account alone. Ordered accordingly."

5. From the above‑quoted order of the Tribunal, the appellant had to have recourse to the Civil Judge Rawalpindi (for review of the order of the Civil Court dated 14‑6‑1979) in the form of Suit No. 410/1969 under the Pension Act, 1871. The learned Civil Judge 1^st Class Rawalpindi in his judgment announced on 1‑12‑1982 held that:

"x x x Since the instant case was filed in the year 1969, therefore, on the establishment of the Service Tribunals, the suit abated and the petitioner was to file the appeal before the Tribunal within the period of 90 days. The petitioner being unfortunate, once went to the Tribunal after decision of Civil Court, but his appeal, I have already mentioned was dismissed by the Tribunal observing lack of jurisdiction. After having noticed the above said ruling I have no alternative but to dismiss the petition. The same is hereby dismissed."

6. Once again, the appellant came up in appeal before the Tribunal on 5‑12‑1982. His appeal (204(R)/82) was admitted on 7‑2‑1983 subject to limitation. It was heard on 21‑6‑1984 and is being disposed of by this order.

7. We heard the appellant who pleaded his own case as well as the learned counsel for the respondents. On behalf of the respondents, three weighty preliminary objections have been raised which we must dispose of before coming to the merits of the case The first objection is that the appeal "is not maintainable in law or fact". The respondents have not taken the trouble of specifying as to why it is so. We would, therefore, be quite within our right to dismiss the objection on grounds of vagueness. On grounds of fact, the appeal is very much competent. However, in so far as the law points are concerned, the respondents have the previous judgment of the Tribunal (quoted above) wherein the appeal was dismissed under section 4(1)(c) of the Service Tribunals Act, 1973 and the ground of limitation was touched because no condonation application had been filed by the appellant. Since the last judgment of the Tribunal, dated 24‑12‑1979, service law has made considerable strides, by virtue of various judgments of the Tribunal between December, 1979 and to date. The Tribunal is now of the considered view that such issues as are a source of continuing wrong or grief to a civil servant but have not been adjudicated upon by the Tribunal, shall continue to be within our jurisdiction irrespective of the cut off date of 1‑7‑1969. Wrong fixation of pension (or pay for that matter) even prior to 1‑7‑1969 would, therefore, be well within our competence to decide because an aggrieved civil servant suffers the loss every; month and a cause of action to agitate his right accrues to him every) month. The principle of res judicata, too would not apply in the instant case because the previous appeal (80(R)/79) was dismissed on technical grounds and not on merits. Viewed in this fresh light, therefore, the appeal is maintainable. The second preliminary objection relates to limitation. The appellant has filed an application for condonation of delay wherein he has recounted his tale of woes from 1967 to date. We accept the reasons, condone the delay and order accordingly. The third and last preliminary objection should not have been raised in the first instance. The said objection reads:

"That the instant appeal termed by the appellant as Review Appeal in para. 1 of the appeal is not legally maintainable before this learned Tribunal as the Learned Tribunal has no power to review its order."

It appears that the respondents' objection is really directed against the present appeal being given the appellation of Review Appeal. On the face of it the objection may appear to be in order but the contents of the appeal would make it abundantly clear that the appellant has not come before us for review of his previous Appeal No. 80(R)/79. The present is a new appeal even though it forms part of the chain of events dating back to the year 1967. The objection is, therefore, repelled.

8. On merits, the issue involved is not a complex one. As highlighted by the appellant, the O.M., dated 18‑8‑1966 does NOT disentitle him to his special additional pension of Rs.300 p.a. para. 2(3) of the O.M. ibid notwithstanding. In support of his case, he relies on para. 2(1) of O.M. ibid (18‑8‑66) which reads as under:

"2. Amount of pension for permanent Government servants.‑‑ In the case of Government servants employed in a substantive and permanent capacity in pensionable service the amount of ordinary and special additional pension shall be regulated as follows:‑

(1) If the Government servant retires or is selected for discharge owing to the abolition of his permanent post, after completing qualifying service of 5 years but less than 10 years, he may be granted a gratuity not exceeding one month's emoluments for each completed year of qualifying service subject to a maximum of Rs.12,500. If such a Government servant has completed qualifying service of 10 years or more at the time of his retirement or discharge, as the case may be he may be granted an ordinary pension not exceeding an amount calculated in accordance with the scale given in the New Pension Table annexed to this Office Memorandum and subject to the conditions and maxima laid down therein. The New Pension Table shall regulate all the four kinds of pensions, namely, Compensation Pension, Invalid pension, Superannuation pension and Retiring pension. "

A plain reading of last sentence of the above quotation leaves no doubt in anyone's mind that the O.M. dated 18‑8‑1966 and the New Pension Table attached thereto, was meant to regulate only the four kinds of pensions viz. compensation, invalid, superannuation and retiring pensions. The special additional pension was NEVER meant to be taken away in respect of the categories of employees to which the appellant belonged as this was NEVER mentioned in so many words, argued the appellant, and that it was the O.M. dated 28‑11‑1967 which caused the mischief (quoted at para. (3). Arguing further, the appellant said that all that para. 2(3) of the O.M. dated 18‑8‑1966 intended to do was to revise the special additional pension of such officers who were in receipt of pay exceeding Rs.3,000 and that those with less pay, like the appellant, did not have their special additional pension revised upward meaning thereby that it was allowed to stay where it was. It was also not stated that such officers as were in receipt of pay less than Rs.3,000 p.m. (like the appellant) would cease to draw their special additional pension, said the appellant. We find a good deal of merit in what the appellant stated before us. However, there is also a good deal of merit in the respondents' reasoning that the New Pension Rules effective from 1‑7‑1966 which the appellant had chosen as a package deal were by no means to his disadvantage. They were mindful of the fact that the sum of Rs.300 p.a. available to him in the form of special additional pension, since the date of his retirement in the year 1953, should continue to be paid to him. This was done by merging the said amount into the ordinary pension w.e.f. 1‑7‑1966. The respondents say that the New Pension Rules (1‑7‑1966) have totally done away with the concept of the special additional pension for the category of officers to which the appellant belongs. Further, the respondents have also argued that the special additional pension allowed to officers who retired on a salary exceeding Rs.3,000 p.m. was only a transitory benefit for the old I. C. S. This has since been done away with from the pension scheme which came into being w.e.f. 1‑3‑1972 (though financial benefits thereunder were allowed w.e.f. 1‑2‑1977) and that the special additional pension, as such, has become extinct for all types of civil servants.

9. Taking the arguments of the two sides into account, we find that there are two clear cut issues which have crystalysed. The first issue is that the O. M., dated 18‑8‑1966 had received the assent of the President and that in the said O.M. there was no mention that the special additional pension of the categories of civil servants to which the appellant belonged was being done away with. This was realised by the Ministry of Finance only after the appellant had agitated that his special additional pension could not be taken away on the basis of O.M. dated 18‑8‑1966. As a quick reaction to plug the lacuna in their O.M. dated 18‑8‑1966, the Ministry concerned resorted to the easy expedient of issuing their O. M. dated 28‑11‑1967 by way of "clarification" but actually by way of substantive modification to their O.M. dated 18‑8‑1966 which had the force of rules. Obviously, therefore, irrespective of what the Ministry might say and as highlighted by the appellant before us, the O.M. dated 28‑11‑1967, which was a mere O.M. (not sanctioned by the President) could not possibly amend its forerunner of 18‑8‑1966, the O.M. having attained the status of rules. Could the Ministry in the circumstances, amend the O.M. dated 18‑8‑1966 in the, garb of their O.M. dated 26‑11‑1967 and dub it as "clarification" and thus deprive the appellant of his special additional pension

10. The answer to this issue is that the lacuna in their O.M. dated 18‑8‑1966, which did exist, could not be corrected through a belated and retrospective attempt by issuance of the O.M. dated 28‑11‑1967 which the appellant rightly accuses as having done the mischief. We wish to highlight that if the O.M. dated 18‑8‑1966 had been free from all infirmities then there would have been no need to issue the "clarifi cation", dated 28‑11‑1967. This "clarification" tried to take away the vested right of the appellant which has accrued to him since 1953 under C.S.R. 475‑A. This could not be done by a mere O.M. of 28‑11‑1967.

11. The second issue, as highlighted by the respondents before us, was that the special additional pension of the appellant had REALLY been made part of his ordinary pension w.e.f. 1‑7‑1966 and as such he was being paid to his advantage. Was it so For resolving this issue we advert to the pensionary calculations (in respect of the appellant) as given at Annxure V of respondents' reply. The pension of the appellant, w.e.f. 3‑7‑1953, had been worked out at Rs.621.24 p.m. but restricted to a maximum of Rs.7,000 p.a. vide rule 13(a) S.C.S. Rules plus Rs.300 p.a. as special additional pension. In this manner the pension (after commutation) was calculated to be Rs.583.33 plus Rs.25 (Special Additional Pension) = Rs.608.33. His pension w.e.f. 1‑7‑1966 was worked out at Rs.674.52 and was without the element of his additional special pension. It is, therefore, palpably incorrect on the part of the respondents to claim that the special additional pension of the appellant was turned into ordinary pension and paid to him. If it had been, then w.e.f. 1‑7‑1966, the appellant's pension would have been prefixed at Rs.674.52 plus Rs.25 or 699.52 and NOT merely at Rs.674.52. In fact the foot note at Annexure V says. "Special additional pension not admissible being officer's pay less than Rs.3,000 p.m."

12. In view of the foregoing analysis, we have come to the irresistible conclusion that the respondent Ministry, by withholding the special additional pension of the appellant w.e.f. 1‑7‑1966 at the rate of Rs.300 p.a. have acted against the rules. We, therefore, accept the appeal, and order that the appellant shall be paid the arrears of his special additional pension of Rs.300 p.a w.e.f. 1‑7‑1966 and any subsequent pensionary revisions notwithstanding, he shall continue to receive the said special additional pension so long as he lives.

13. No order as to costs.

A. E. Appeal accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.