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Writ Petitions Nos. 58 of 1984, 1 and 25 of 1985, decided on 1st April. 19 7.

‑‑‑Pension‑‑Pension not a bounty but a right acquired after putting in satisfactory service for prescribed minimum period.

Government of N.‑W.F.P. v. Muhammad Said Khan P L D 1973 S C 514 ref.

‑‑‑S.44‑‑Azad Jammu and Kashmir Civil Services Pension Rules, 1971‑‑ Azad Jammu and Kashmir, Government Finance Department Circular Letters No. FD/7609‑88/80 and No. FD/7529‑7608/80 dated 10‑9‑1980 and No. FD/Audit/33/81/342/82, dated 21‑1‑1982‑‑Maxim: Audi alteram partem (no 'one should be condemned unheard) Civil services‑ Pension Petitioners serving in various capacities in NPS‑18 in Azad Jammu and Kashmir Government retired on pension on different dates and given special ad hoc relief of Rs. 100 p.m. in 1980 by orders of President Order allowing such benefit communicated to petitioners who received the amount of relief for some time and thus an important valuable right accruing to them‑‑Such right could not be snatched away arbitrarily or without giving petitioners an opportunity of being heard Order of refusal of special ad hoc increase in pension violated the fundamental right of audi alteram partem which stemed from Islamic Jurisprudence‑‑Accountant‑General who had been paying petitioners the benefit for some time, held, could not change a volte face and deny them the special increase in their pension‑‑Writ petitions accepted and orders of Accountant‑General withdrawing such special ad hoc increase quashed.

1982 P L C (C.S.) 257 ref.

P L D 1970 S C 439; P L D 1980 S C (AJ&K) 46; P L D 1980 Pesh.128; P L D 1982 Azad J & K 82; P L D 1985 Azad J & K 17 and 1981 P L C (C. S. ) 835 cited.

‑‑‑S.21‑‑Locus poenitentiae (power to recede), principle bf‑‑Decisive step is deemed to have been taken when an order takes effect and certain rights are created in favour of an individual or individuals in pursuance thereof‑‑Such order cannot be withdrawn or rescinded‑ Authority which passes an order is competent to vary, rescind or cancel same under S.21 of General Clauses Act, 1897‑‑Such power, however, not absolute but subject to certain limitations‑‑Most important limitations being .that when the order sought to be varied or rescinded is communicated to the other party and subsequently a party acts upon it, a very valuable right accrues to the other party and consequently the authority becomes incompetent to vary or rescind its previous orders.

Muhammad Aslam Khaki v. Vice‑Chancellor, Gomal University, Dera Ismail Khan P L D 1980 Pesh. 128; P L D 1956 F C 46; P L D 1960 S C 310; P L D 1963 Lah. 53; P L D 1964 S C 503; P L D 1965 Pesh. 31; P L D 1969 S C 407; P L D 1973 Quetta 14; P L D 1979 Quetta 131; Syed Muneeb Nazir Shah v. Azad Kashmir Government PLD 1985 Azad J & K 17; A I R 1938 Nag. 513; P L D 1955 Lah. 65; PLD 1964 S C 438; P L D 1980 S C 439 and P L D 1980 S C (AJ&K) 46 ref .

‑‑‑S.44‑‑Writ jurisdiction‑‑Alternate remedy, plea of‑‑High Court can grant relief in writ jurisdiction despite availability of alternate remedy if such remedy was less convenient, expensive or consuming sufficiently long time‑‑Rule of natural justice audi alteram partem infringed and writ petitions not requiring any evidence, except certain documents‑‑Writ jurisdiction, held, was more convenient, less expensive and more adequate to petitioners‑‑Petitioners being retired Officers of Government, it was not necessary for them to go before Service Tribunal‑‑Azad Jammu and Kashmir Service Tribunals Act, 1975, S.4.

P L D 1984 S C (AJ&K) 77 and P L D 1981 Quetta 1 ref.

Raja Muhammad Hanif Khan for Raja Muhammad Khan Petitioner.

Petitioners Nos. 1 and 2 in person.

Muhammad Nisar Mirza, Addl. A‑G. for Non‑Petitioners Nos. 1 and 2.

These three writ petitions were decided by me but on appeal, the learned Supreme Court of Azad Jammu and Kashmir, Muzaffarabad remanded all the three cases so that the Government should also be heard which was not made a party in some of these writ petitions. After the remand, the necessary parties including the Azad Jammu and Kashmir Council impleaded but the Azad Jammu and Kashmir Council did not come forward to contest these cases. Hence ex parte proceedings were ordered against non‑petitioner No.3.

In the case of Abdul Ghani, notice was issued to the Government and its written statement was obtained.

2. The brief facts, which gave rise to these three writ petitions, are:‑‑

(a) That all the three petitioners served in various capacities as Civil Servants in Azad Jammu and Kashmir Government and were retired on pension on different dates. The Azad Jammu and Kashmir Government issued a Government Order No. FD‑7529 7608/80 FD‑7608‑88/80 dated 10‑9‑1980 giving ad hoc relief to various categories of pensioners including the petitioners herein. The petitioners, as a result of the implementation of the Government Order, were given ad hoc relief of Rs. 100 per month each which was availed of by them for some time but subsequently, they were informed that they were not entitled to said relief under the aforesaid Government order because they are not on pension on 10‑9‑1980. The non‑petitioners, feeling aggrieved by the intimation by the Accountant‑General, preferred separate writ petitions in the High Court challenging the validity of the said intimation /order.

3. The case of the petitioners is:‑

(a) That they retired after completing the period of their service. The Accountant‑General of Azad Jammu and Kashmir granted Rs. 100 as a special ad hoc increase in the pension and the same was paid up to each of them for several months. The order of Special Ad hoc increase in the pension was duly communicated to the petitioners and the sum of Rs. 100 was also paid to each of them. But the non‑petitioners Accountant‑General, before passing the impugned order, did not give any notice to the petitioners and, without offering them any opportunity of being heard, decided to withdraw the special ad hoc increase to the tune of Rs. 100.

(b) That the petitioners were communicated the special ad hoc increase and were also paid Rs. 100 for many months, hence the Government has got no locus‑ poenitentiae:

(c) That when the writ petitions were brought up before this Court in the beginning and the non‑petitioners the Accountant‑General, submitted his written statement, the ground of alternate remedy i.e. to go before the Service Tribunal, was not taken up and therefore, after the remand, the inclusion of this ground is an after thought which cannot be allowed in the light of the case reported in P L D 1983 Lah. 250 (D) 249,para.6 and 2nd half of para. 4 and 1980 C L C 510. The case of A.‑G., Punjab v. Ch. Qadir Bakhsh.

(d) That on 10‑9‑1980, the Government of Azad Jammu and Kashmir issued two separate orders. According to one order, the amount of Rs.1,000 cut off was increased to two thousand rupees while according to the other order, special ad hoc increase was granted w.e.f. 1‑7‑1980. Then on 21‑1‑1982, another Government order was issued, whereby an ambiguity existing in the said two previous orders was removed. These facts make it clear that the special ad hoc increase has been granted in favour of all the retired Government Servants or the Government Servants who were going to retired w.e.f. 1‑7‑1980. This fact is further proved by the inclusion this increase as a separate item in the PPDs of the petitioners. Thus, a very valuable vested right has been accrued to the petitioners which cannot be arbitrarily snatched away from them. The Accountant‑General is the functionary of the Government and therefore, he cannot by pass the Government Order referred to above;

(e) Regarding the cut off point, it was submitted that the Government has increased it w.e.f. 1‑7‑1980 and now when the Government has issued the Order No. FD/R‑53‑P/85‑B dated 12‑8‑1985, as the stand of the non‑petitioner (Accountant‑General) loses its force:

(f) That the special ad hoc increase is not a temporary privilege because no period was fixed for it. On the other hand, all the retired Government Servants are entitled to this increase as a matter of right and not as a matter of grace. The Government has not withdrawn this privilege/ right;

(g) That the contention of the non‑petitioner (Accountant‑General) that the PPDs 4,081/C, 4213/C and 3825/C were issued by some lower Staff of the Accountant‑General's Office has got no force because the PPDs are issued after due deliberations and according to law and rules and therefore, this belated plea is not available to him when the grant of Rs. 100 has been acted upon by him. In this respect Government of N.‑W.F.P. v. Muhammad Said Khan P L D 1973 S C 514 (19)(A) was referred to and it has been submitted that if once the pension has been sanctioned, it cannot be decreased neither by the Government nor by its any functionary arbitrarily. It has also been submitted that the pension is not a bounty but a right which cannot be taken back by any one sided action; and

(h) The petitioners have prayed that the impugned order of the Accountant‑General should be quashed in the light of:‑

P L D 1970 S C 439; P L D 1980 S C (AJ&K) 46; P L D 1980 Pesh. 128; P L D 1982 Azad J & K'82; P L D 1985 Azad J & K 17 and 981 P L C (C.S.) 835.

4. On the other hand, the learned Additional Advocate‑General, in

His written arguments, has replied:‑

(a) That the matter pertains to the Service Tribunal and, therefore, the High Court has got no jurisdiction to pass any order;

(b) That these writ petitions are liable to be thrown out on this ground alone that the petitioners had got an adequate alternate remedy;

(c) That the Accountant‑General has got powers to recover the money which was paid in excess to the petitioners;

(d) That the petitioners are not entitled to the special ad hoc increase of Rs. 100 because they were not pensioners on the relevant date which is 1st July, 1980.

The precise argument of the learned Additional Advocate‑General is that the petitioners were not entitled to special ad hoc increase at ill;

(e) That the Auditor‑General of Pakistan was also approached by the Accounts Department and learned Auditor General of Pakistan has also agreed with the view of the Accountant‑General Azad Jammu and Kashmir; and

(f) That it is wrong to say that the Government cannot retrace its steps. On the other hand, the Government has got the power to redress a wrong and thus withdraw the order which was issued wrongly.

5. I have gone through the written arguments of the parties and have perused the record of the case carefully.

6. I would like to mention the relevant orders passed by the Government, which are reproduced as under:‑

"No. FD/7609‑88/90

Azad Government of the State of Jammu and Kashmir, Finance Department.

Muzaffarabad

Dated 10‑9‑1980.

To

The Accountant‑General,

Azad Government of the State of J & K,

Muzaffarabad.

Sir,

I am directed to state that the question of grant of relief to all existing pensioners was under consideration of the Government for some time past The President, Azad Jammu and Kashmir has been pleased to sanction, with effect from 1st July, 1980 a special ad hoc increase as under to all existing civil pensioners of the Azad Jammu and Kashmir Government:‑

O.S. Rs. p. m.

1-10 40

11‑16 70

17‑18 100

19‑20 150

21‑22 200

2. The above categorisation in respect of those civil servants who retired before the introduction of the National Pay Scales shall be determined in accordance with schedules to the Finance Department Notification No. FD/2735‑2797/72, dated 17‑8‑1972 and FD's Notification No.FD/1492‑1551/74, dated 13‑2‑1974.

3. If a person is in receipt of more pensions than one, the special ad hoc increase will be admissible on only one pension.

4. The special ad hoc increase will also be admissible on family pensions, ordinary pension as well as on the compassionate allowances.

5. If the pension sanctioned by the Government of Azad Jammu and Kashmir is shared with any other Government in accordance with the relevant rules the amount of the special ad hoc increase will be apportioned between the Government of Azad Jammu and Kashmir and the other Government(s) concerned on proportionate basis.

6. Commutation of any part of special ad hoc increase will , not be admissible. "

xxxxx

'NO. FD/7529‑7608/80

Azad Government of the State of Jammu and Kashmir Finance Department.

Muzaffarabad'

Dated 10‑9‑1980.

To

The Accountant‑General,

Azad Government of the State of J & K,

Muzaffarabad.

Sub. FURTHER LIBERALIZATION OF LIBERALIZED PENSION RULES

FOR CIVIL SERVANTS.

Sir,

I am directed to state that further liberalization of existing pensionary benefits has been under the consideration of Government for some time past. It has now been decided that with effect from 1^st July 1980, the amount of pension in excess of Rs. 2,000 (instead of Rs. 1,000) shall be reduced by 50%. Therefore the figure of Rs. 1,000 shall be substituted by the figure of Rs. 2,000 referred to in para. 2(a) of the FD's circular letter No. FD/1816‑90/77 dated 15‑3‑1977, and in the Note below the Revised Pension Table at Annexure I thereto.

2. It has also been decided that where the enhancement of the cut off point to Rs. 2,000 as mentions to para. 1 above, results in no increase or an increase of less than Rs. 40 in the pension, it shall be so determined that a minimum benefit of Rs. 40 per month is ensured.

(Sd.)

Section Officer (Finance)

No.FD/7229‑7608/80 dated 10‑9‑1980."

"No. FD/Audit/33/81/342/82

Azad Government of the State of Jammu and Kashmir, Muzaffarabad.

Dated 21‑1‑1982.

To

The Accountant‑General,

Azad Government of the State of J & K,

Mu zaffarabad .

Sub: FURTHER LIBERALIZATION OF LIBERALIZED PENSION RULES

CIVIL SERVANTS

Sir,

I am directed to refer to this Department's circular letter No. FD/7529‑7608/80, dated 10‑9‑1980, on the subject noted above and to say that the instructions issued by this Department regarding special ad hoc increase admissible to civil pensioners existing on or before 30th June, 1980 have created certain anomalies vis‑a‑vis pension accruing after 30th June, 1980. In order to remove the anomalies the President Azad Jammu and Kashmir has been pleased to decide that if employees of Grade 11‑16 and 17‑18 get an increase of less than Rs. 70 per month and Rs. 100 per month respectively by the enhancement of the cut off point to Rs. 2,000 the increase shall be so determined that a minimum benefit of Rs. 70 per month or Rs. 100 per month as the case may be, is ensured.

If the increase allowed under this Department circular letter dated 10‑9‑1980 on the above subject read with the present circular letter results in an increase of less than the special ad hoc increase viz:

N.P.S. Rs. p.m.

1‑10 40

11‑16 70

17‑18 100

19‑20 150

21‑22 200

In family pension, extraordinary family pension, disability pension and compassionate Allowance accruing on or after 1‑7‑1980, they shall be as determined that a minimum benefit equal to the special ad hoc increase mentioned above is ensure.

Your obedient servant,

(Sd.) (Abdul Rashid Baig)

Section Officer Finance

No.FD/Audit/33/81/342‑402/82 dated 21‑1‑1982."

No.FD/R‑(53)‑P/85‑B,

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR

FINANCE DEPARTMENT

'MUZAFFARABAD'

Dated 12th August, 1985.

From

S. Faragh Naweed,

Secretary Finance,

Azad Government of the State of J & K,

Muzaffarabad

To

(1) Additional Chief Secretary (Dev),

(2) All Secretaries to Government.

(3) All Heads of attached Departments,

Azad Government of the State of J & K,

Muzaffarbad .

Sub: CALCULATION OF PENSION WITHOUT APPLYING ANY

REDUCTION DUE TO CUT OFF POINTS:

Sir,

I am directed to state that according to the existing rules/ instructions, pension is calculated at the rate of 70% of average emoluments on completion of 30 years qualifying services. Where qualifying service is less than 30 years but not less than 10 years, the pension is calculated at the percentage applicable according to length of service. Any amount of pension in excess of Rs. 2,500 is reduced by 50%. The President Azad Jammu and Kashmir has been pleased to decide that with effect from 1st July, 1985, the reduction by 50% of the pension in excess of Rs. 2,500 shall not be applied in the case of those Government servants who retire on or after 1‑7‑1985.

In all such cases the pension shall be calculated at the rate of 70% of average emoluments or other percentage rate applicable according to length of qualifying service without applying any reduction.

2. The President Azad Jammu and Kashmir has also been pleased to direct the Pension/Family Pension of those who retired/died between the period 10‑3‑1969 to 30‑6‑1985 in respect of non‑Gazetted Government servants and 1‑7‑1970 to 30‑6‑1985 in respect of Gazetted Government excess of the cut off points of Rs. 600, 1,000, 2,000 and 2,500 existing at the time of their retirement /death was applied, shall also be that as calculated previously without applying any reduction subject to the condition that the amount of re‑calculated pension under the Azad Jammu and Kashmir Civil Service Pension Rules, 1971, as amended from time to time, shall not exceed the maximum limit of pension referred to in the Pension Table annexed to the Azad Kashmir Civil Service Pension Rules, 1971 issued vide No. FD. /2372‑2422/71 dated 15‑7‑1971. In such cases gratuity or commutation will not be revised or re‑calculated. The pensioner concerned or his family will only be allowed the benefit of enhanced pension with effect from 1‑7‑1985 without any arrears.

3. The benefit of gratuity or commutation will also not be admissible on the revised /enhanced pension in cases where the pensioners concerned did not exercise their option to draw any gratuity or commutation at the time of their retirement. In such cases the benefit of gratuity or commutation will continue to be admissible on the original amount of gross pension in accordance with the prescribed rules.

Yours obedient servant

(Ch. Muhammad Latif),

Joint Secretary Finance (Regulation)

for Secretary Finance.

No. FD/R(53)‑P/85‑3 dated,rl2th August, 1985".

7. There is no doubt that pension is not a bounty.

It was held in the case of the Government of N.‑W.F.P. v. Muhammad Said Khan and another PLD 1973 S C 514:‑

"It must now be taken as well‑settled that a person who enters Government service has also something to look forward after his retirement, to what are called retirement benefits, grants of pension being the most valuable of such benefits. It is equally well‑settled that pension like salary of a civil servant is no longer a bounty but is a right acquired after putting in satisfactory 'service for the prescribed minimum period. A fortiori, it cannot be reduced or refused arbitrarily except to the extent and in the manner provided in the relevant rules. Conversely full pension admissible under the rules is not to be given as a matter of course unless the service rendered has been duly approved (see Art. 470, Civil Service Regulations). It is equally well settled that if the service has not been thoroughly satisfactory, the authority sanctioning the pension is empowered under the said Article to make such reduction in the amount as it may deem proper. This power is however exercisable only before pension is actually sanctioned."

8. It is an admitted fact that all the petitioners retired and that under the order of the President of Azad Jammu and Kashmir an ad hoc special increase to the extent of Rs. 100 per month was granted to these petitioners who were serving in N.P.S. 18 at the time of their retirement. It is also an admitted fact that the orders allowing them this benefit were communicated to them and they received the benefit for sometime. In other words an important valuable right accrued to them which cannot be snatched away arbitrarily or without giving them an opportunity of being heard. The order of refusal of Rs. 100 per month as the Special Ad hoc Increase in pension violates the fundamental right of Audi Alteram Partem which right stems from the Muslim Jurisprudence. Moreover, the learned Accountant‑General, who has been paying them the benefit for sometime, cannot now change a volte face and deny them the payment of Rs. 100 per month as an ad hoc special increases in their pension. The Accountant‑General or any other functionary of the Government cannot undo the decision which was made by the President of Azad Jammu and Kashmir Government.

9. Regarding the point of Locus Poenitentiae (power to recede) there is a catens of authorities that when an order takes effect and certain rights are created in favour of an individual or individuals in persuance of such order, decisive step is deemed in such cases to have been taken and therefore, the order cannot be withdrawn or rescinded. In this respect, the case of Muhammad Aslam Khaki v. Vice‑Chancellor Gomal University, Dera Ismail Khan P L D 1980 Pesh. 128 is clear in which case reliance was made on:‑

P L D 1956 F C 46; P L D 1960 S C 310; P L D 1963 Lah. 53; P L D 1964 S C 503; P L D 1965 Pesh. 31; P L D 1969 S C 407; P L D 1973 Quetta 14 and P L D 1979 Quetta 131.

I have also held the same in the case of Syed Muneeb Nazir Shah v. Azad Kashmir Government P L D 1985 AJK 17, that an authority which passes an order is competent to vary, rescind or cancel the order passed by it and that power vests in it by virtue of section 21 of the General Clauses Act. But this power is not absolute as it is subject to certain limitations. The most important limitation is that when the order sought to be varied, rescinded or cancelled is communicated to the other party and/or subsequent to that communication, a party acts upon it, a very valuable right accrues to the other party and therefore, the authority, under such circumstances, becomes incompetent to vary, rescind or cancel its previous order because the law does not allow volte face to that authority (34)B.

In that case I had referred to:

A I R 1938 Nag. 513; P L D 1955 Lah. 65; P L D 1956 F C 46; P L D 1960 S C 310; P L D 1963 Lah. 53; P L D 1964 S C 438, 503; PLD, 1956 Pesh. 31; P L D 1969 S C 407; P L D 1980 S C 439; P L D 1973 Quetta 14; P L D 1979 Quetta 131; P L D 1980 S C (AJ&K) 46 and P L D 1980 Pesh. 128.

10. I have seen the PPO of Mr. Abdul Ghani in which the Special Ad hoc Increase of Rs. 100 is mentioned separately and then the total pension has been calculated. PPOs are issued after full deliberations and after going through the relevant law and rules, therefore, it does not lie in the mouth of the Accountant‑General that the PPOs were issued wrongly by his subordinates. Moreover, in the column of "Class and sanction", the Government order dated 16‑9‑1982 has been mentioned in the PPO of Abdul Ghani. I could not lay my hands on the Government order dated 16‑9‑1982. However, the special ad hoc increase was allowed under the Accountant‑General's Circular dated 10‑9‑1980, wherein it has been clearly stated that the President of Azad Jammu and Kashmir Government has been pleased to sanction w.e.f 1st of July 1980, a Special Ad hoc Increase to all the existing civil servants pensioners of Azad Jammu and Kashmir Government. According to the letter No FD/7529‑7608/80, dated 10‑9‑1980 issued by the Finance Department to the Accountant‑General, it has been clearly stated that further liberalization of pension benefits had been under the consideration of the Government for some times past and that it has been decided that w.e.f. 1st of July 1980, the amount of pension in excess of Rs. 2,000 (instead of Rs. 1,000) shall be reduced by 50%. According to the Finance Department's direction to the Accountant‑General given on 21‑1‑1982, a further liberalization of liberalized pension rules of civil servants was made and certain anomalies vis‑a‑vis pension accruing after 30th June of 1980, were removed. It was clarified in the letter No. FD/Audit/33/B1342/82 dated 21‑1‑1982, that the President of Azad Jammu and Kashmir has been pleased to decide that employees of Grade 11‑16 and 17‑18 shall get an increase not less than Rs. 70 per month or Rs. 100 per month respectively by the enhancement. In other words, the increase shall be as determined that a minimum benefit of Rs. 70 per month or Rs. 100 per month as the case may be, is ensured.

It was also decided that in family pension, extraordinary family pension, disability pension and compassionate allowance accruing on or after 1‑7‑1980, they shall be so determined that a minimum benefit equal to the special ad hoc increase mentioned above is ensured.

11. Therefore, it is very clear that the petitioners herein who are serving in N.P.S.18 and 19, were entitled to the increase up to Rs. 100 per month which is the minimum benefit according to the letter of the Finance Department to tide Accountant‑General dated 21‑1‑1982, referred to above.

12. There is no doubt that when something is paid in excess to a Government servant, the Accountant‑General is perfectly justified to get back that money. But here in these three cases, nothing was paid in excess to the petitioners herein. They were allowed an increase in their pension to the tune of Rs. 100 per month only and this amount of Rs. 100 per month was included in their PPOs. It will be highly unjustified to snatch away this benefit from them without hearing them. It is the settled law that no body can be condemned unheard. The rule of "Audi alteram partem" stems from the Muslim Jurisprudence. This is the additional ground : which cannot be overlooked. I would like to quote 1982 P L C (C.S.) 257 'in which case the Revenue Board had not heard a certain Government servant before passing the impugned order.

13. I think that the plea of alternate remedy, taken up by the Government, does not hold field because it is the settled law now that in its writ jurisdiction, the High Court can grant relief despite the fact, that an alternate remedy is available but where the alternate remedy is less convenient, expensive or consumes a sufficiently large time, the writ petitions lie. Here in these cases, the rule of natural justice has also been infringed. Moreover, the disposal of all those three writ petitions did not require any evidence, except certain documents, therefore, writ jurisdiction is more convenient, less expensive nerd more adequate to the petitioners herein. They are retired Officers and it was not necessary for them to go before the learned Service Tribunal in the light of‑

P L D 1981 Quetta 16 and P L D 1984 S C (AJ&K) 77.

Under these circumstances, I hereby accept the above titled three writ petitions and quash the orders of the Accountant‑General dated 29‑9‑1983 in the case of Raja Muhammad Akram Khan 6‑10‑1983 G in the case of Agha Alla‑ud‑Din and Abdul Ghani, whereby the grant of Rs. 100 per month as Special Ad hoc Increase, was withdrawn by him.

The parties shall bear their own costs.

M.B.A./294/H.A.

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