Lawyers Directory Listing
Unlock direct contact details for up to 10 lawyers so you can call or WhatsApp the right legal professional and move your matter forward with confidence.
Appeal No. 25(R) of 1985, decided on 7th January, 1987.
‑‑‑S. 19(3)‑‑Civil Service Regulations, Art. 353‑‑Compassionate allowance to civil servant‑‑Sanction of such allowance discretionary and not a right of civil servant‑‑Power to sanction compassionate allowance to a civil servant who has been dismissed/ removed from service, held, vests in Government‑‑Such allowance cannot be claimed by a civil servant as a vested right.
‑‑‑Executive discretion, exercise of‑‑In respect of purely administrative acts, there is a duty to act justly, fairly and reasonably‑‑Where order impugned was one which was not passed by a functionary acting justly, fairly and reasonably, such order, held, would be invalid in law‑‑No discretion vested in an executive officer is absolute and arbitrary.
‑‑‑S. 19(3)‑‑Civil Service Regulations, Art. 353‑‑Compassionate allowance on removal from service‑‑Sanction of compassionate allowance though discretionary with Government, discrimination, held, was to be avoided where cases of different claimants were identical‑‑Where refusal of sanction of compassionate allowance was an get of discrimination as compared to other grantees of such allowance, appeal of dismissed civil servant was partly allowed and Authority was directed by Service Tribunal to reconsider case of appellant for grant of such allowance.
M.S. Siddiqui for Appellant.
Sardar Muhammad Amir Akbar Khan for Respondent.
Date of hearing: 25th May, 1986.
.‑‑ They relevant background giving rise to the present appeal is that the appellant was dismissed from service as a Deputy Assistant Controller of Military Accounts vide an order dated 17‑11‑1981. He challenged that order before this Tribunal in Appeal No.73(L) of 1983 which was dismissed for being incompetent. He then represented to the President of Pakistan for grant of compassionate allowance under Article 353 of the Civil Service Regulations. Thereon he was informed vide the DACMA, Lahore, letter dated 18‑12‑1984 that the competent authority did not accept the request for the reason teat the appellant was convicted for the criminal charge by the Special Military Court. The appellant has challenged this order by way of the present appeal.
2. It was strenuously argued by the learned counsel for the appellant that the refusal to grant compassionate allowance is not only against law and facts but is also mala fide being discriminatory inasmuch as the appellant has a vested right to the grant of compassionate allowance under Article 353 of the Civil Service Regulations which has now been provided a statutory cover by subsection (3) of section 19 of the Civil Servants Act, 1973. It was submitted that in fact in a number of identical cases compassionate allowance was allowed by the Government, while, it was refused to the appellant and thus not only a vested right had been denied to the appellant but he was also discriminated. The learned counsel further submitted that the respondent has no power to withhold a right or concession admissible under the Civil Service Regulations as well as the Civil Servants Act on the ground on which appropriate penalty had already been imposed under the rules, as such, according to the learned counsel, a cause will attract the principle of double jeopardy.
3. The learned counsel for the respondent has mainly submitted that on a proper construction of the relevant provisions of the law relied upon by the learned counsel for the appellant, a discretion is vested in the Government to allow compassionate allowance and the appellant has no vested right to the same. He vehemently supported the impugned order urging that the respondent has properly exercised his discretion, in the circumstances of the case, and has rightly refused to grant compassionate allowance.
4. We have given our anxious thought to the submissions made by the learned counsel for the parties. To appreciate the contention of the learned counsel for the appellant the relevant provisions of law i.e. Article 353 of the Civil Service Regulations and subsection (3) of section 19 of the Civil Servants Act, 1973, are, with advantage, reproduced below:‑
"Article 353.‑‑No pension may be granted to an officer dismissed or removed for misconduct, insolvency or inefficiency; but to officers so dismissed or removed compassionate allowance may be granted when they are deserving of special consideration; provided that the allowances granted to any officer shall not exceed two‑thirds of the pension which would have been admissible to him if he had retired on medical certificate."
"Section 19(3).‑‑ No pension shall be admissible to a civil servant who is dismissed or removed from service for reasons of discipline, but Government may sanction compassionate allowance to such a civil servant, not exceeding two‑thirds of the pension or gratuity which would have been admissible to him had he been invalided from service on the date of such dismissal or removal."
A plain reading of the above provisions, in our view, would "show that the contention of the learned counsel for the appellant is devoid of substance, for, the said provisions vested a power in the Government to sanction compassionate allowance to a civil servant who has been dismissed or removed from service in a case deserving a special consideration, and, therefore, it cannot be claimed that every civil servant has a vested right to the grant of compassionate allowance under Article 353 of the Civil Service Regulations/ section 19 (3) of the Civil Servants Act, 1973. After all, the discretionary remedies are no substitute for remedies to which a person has a right.
5. It nevertheless is not possible to support the proposition that in respect of purely executive acts the discretion of the executive is not subject to any consideration of justice, reason and fairplay. As consistently laid down by the superior Courts even in respect of purely administrative acts there is a duty to act justly, fairly and reasonably and if the order impugned be one which could not possibly have been passed by a person acting justly, fairly and reasonably, the order will be invalid in law. It should be remembered that no discretion vested in an Executive Officer is an absolute and arbitrary discretion.
6. A perusal of the record made available to us has revealed that apart from a number of other cases, one Mr. Gul Zaman Khan, then Deputy Assistant Controller of Military Accounts, on his removal from service, on the basis of his conviction by a Military Court, was allowed compassionate allowance. It could not be shown to us by the respondent Department as to how the case of the appellant was different and distinguishable from the other cases in which compassionate allowance, was allowed. If those cases are identical to that of the case of the appellant, refusal to the grant of compassionate allowance to the appellant, in our view, would not be a proper exercise of the discretion vested in the respondent. We, therefore, accept the appeal to the extent that the respondent is directed to reconsider the case of the appellant for grant of compassionate allowance keeping in view the earlier decisions on the cases wherein compassionate allowance was allowed to ensure that the appellant is not discriminated.
7. The appeal is disposed of in the above terms with no order as to costs.
A.A./364/Lb/S
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer