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Civil Appeal No. 19 of 1987, decided on 20th December, 1988.
(On appeal from the Order of the Service Tribunal dated 7 5 1987, in Service Appeal No. 180 of 1987).
Regln. 226 Word "pension" Meaning, scope and import of Purpose and object of grant of pension stated Word "pension" when used with reference to service of Azad Jammu and Kashmir State, means and includes bounty or compensation paid to civil servants by Government for the valuable services rendered to the State.
The primary purpose and object of grant of pension is to provide subsistence to civil servants or their dependents, in consideration of services and sacrifices made for the State. The grant of pension is made for various losses including diability, illness, old age and death during service. The objective behind the scheme is to avail efficient, honest and stable civil administration for the general welfare of society and conducive to the interest of State. This is just an incentive to future security of civil servants. The scheme of pension is very popular in democratic welfare States but it has been prevalent even in colonies and in States ruled by monarchs and dictators.
Statutes regulating benefits of pensions and penal and fiscal statutes Distinction Statutes regulating benefits of pensions having been framed primarily as relief to intended beneficiaries against suffering and want, are to be expounded liberally as against penal and fiscal statutes which are construed strictly to avoid harsh impact on citizens.
Crawford"s Interpretation of Laws at p. 721 rel.
Regln. 226 Services and General Administration Notification No. S&GAD/21217 22/CS/72 M"abad, 18th October, 1972 Civil servant to be sent on deputation Terms and conditions of service to be pre determined Such terms and conditions were generally expressed in notification issued in that regard Where such terms and conditions were not stated expressly, determination of same would be permissible from surrounding circumstances including conduct of concerned Government or authorities.
Regln. 226 Retention in service after period of superannuation Authority"s discretion when to be exercised Competent authority is clothed with discretion to retain an efficient officer, on attaining superannuation, by extending period of his service Acceptance of terms of deputation settled by recipient Government, in fixing the period of deputation to specified years would tantamount to grant of extension to the civil servant for the period he served in the service of that Government On attaining superannuation in his home State, the period of deputation in recipient State would be deemed to have been extended by the home State.
Regln. 226 Retirement during period of deputation Effect Such order of retirement being in violation of terms and conditions of deputation was not only discriminatory but also bad in law.
Role of civil administration eulogised Civil servant"s entitlement to benefits of pension after superannuation stated.
S. 47 Azad Jammu and Kashmir Service Regulations, Regln. 226 Civil servant"s entitlement to benefits of pension during period of deputation Retirement of civil servant during period of deputation being in disregard of terms and conditions of deputation, civil servant would be entitled to benefits of pension for the period of deputation Service Tribunal"s order to the contrary was set aside and Authority was declared to be liable to satisfy and effect the payment to civil servant.
B.A. Sheikh for Appellant.
Mirza Muhammad Nisar, Add1.A. G. for Respondent.
The appeal is addressed against the order of Service Tribunal passed on May 7, 1987, whereby the appeal, preferred by appellant against the order of respondent relating to claim for the benefit of pension for the period of deputation rendered in service of Federation of Pakistan, was rejected.
2. Sh. Mahmood Ahmed had been serving in Education Department against different posts. At the relevant time he was posted as Officer on Special Duty in the office of Chief Secretary when on the initiative of the Federation of Pakistan, it was mutually agreed upon between both the Governments to send him on deputation to the Government of Pakistan, Ministry of Education. Consequently, the respondent vide its Notification No. S & GAD/2121722/CS/72, dated October 19, 1972, placed the services of the appellant at the disposal of the Government of Pakistan for indefinite period. It was described that during the period of his deputation the appellant will hold lien against the post of Director Education, Azad Jammu and Kashmir. Copy of the notification was forwarded to the Government of Pakistan through the concerned Ministry. On report to that Ministry, a notification by the Government of Pakistan was issued on October 21, 1972, whereby the period of deputation was fixed as 3 years and it was duly communicated to the respondent. During this period the appellant was promoted as Joint Secretary. His services were retained upto March 10, 1976. Meanwhile the respondent issued orders of retirement of the appellant, on February 24, 1973, giving it effect from March 10, 1973. On completion of period of service on deputation, the appellant approached the respondent for grant of benefit of pension for the period rendered on deputation with the Government of Pakistan. A number of representations were addressed at various levels; including the President of Pakistan, but without success. Ultimately his claim was rejected on September 10, 1981. The information of rejection of claim was communicated to the appellant on November 19, 1981, through the office of Chief Martial Law Administrator. He preferred appeal before the Service Tribunal, against the order of rejection of claim. The appeal was dismissed on June 2, 1984. The order of the Service Tribunal was challenged in appeal before this Court. The appeal was accepted in the manner of remand of the case for the reasons that the order of the Tribunal was announced long after hearing the arguments. It was observed that the judgment announced after the expiry of considerable time, as in the instant case, would be deemed to be a judgment delivered without hearing the parties concerned.
3. In second round the learned Service Tribunal again dismissed the appeal on merits with following direction to the Government:
"The Government of Azad Jammu and Kashmir may look into this case of discriminatory treatment and consider this aspect as to whether the order passed by the ex Prime Minister on 28 5 1976, can be issued and implemented especially in the circumstances that other extension cases were liberally dealt with."
We are not in possession of any information whether the aforesaid advice of the Service Tribunal has received due attention of the Government or not. Even if an attention is paid to it, the fact remains that the grievance of the appellant still requires its redress.
4. We are called upon to settle the proposition of grant of benefit of pension relating to service on deputation, after attaining superannuation, by expounding the notifications containing the terms and conditions of service on deputation and provisions of Article 226 of Kashmir Service Regulations.
5. The word pension" when used with reference to service of the State, means and includes bounty or compensation paid to civil servants by Government for the valuable services rendered to the State. The primary purpose and object of grant of pension is to provide subsistence to civil servants or their dependents, in consideration of services and sacrifices made for the State. The grant of pension is made for various losses including disability, illness, old age and death during service. The objective behind the scheme is to avail efficient, honest and stable civil administration for the general welfare of society and conducive to the interest of State. This is just an incentive to future security of civil servants. The scheme of pension is very popular in democratic welfare States but it has been prevalent even in colonies and m States ruled by monarchs and dictators.
6. The statutes regulating the benefit of pension are framed primarily as relief to intended beneficiaries against suffering and want. It is well celebrated rule that such statutes may be expounded liberally. As against this, the penal and fiscal statutes are construed strictly to avoid their harsh impact on citizens. The rule of interpretation of statute relating to pension is described in Crawford"s Interpretation of Laws at page 721 as under:
"It would, therefore, seem that any statute which provides for the creation of a public pension system, whether it pertains to old age, disability, or unemployment benefits, if the intended beneficiary contributes towards its creation or maintenance, should be given a liberal construction in favour of the beneficiary. Statutes of this type have as their primary purpose the relief of the intended beneficiaries from suffering and want, and if such statutes are to operate effectively, they should be construed so as to promote and spread their humane purpose. Harsh and technical constructions should obviously be avoided. Only where the pension is purely a bounty can a strict construction against the intended or apparent beneficiary, be justified, although even here the tendency is decidedly in favour of liberality."
We propose to expound the notifications containing the terms and conditions of service on deputation and the relevant law, regulating the services of the appellant, in the light of aforesaid test.
7. The notification issued by the respondent on October 18, 1972, whereby the services of the appellant were placed at the disposal of Federation of Pakistan and Notification of Government of Pakistan issued on October 21, 1972, whereby the period of deputation was fixed, are relevant in the case. These are, therefore, reproduced:
"Office of the Chief Secretary
Services and General Administration Department
Azad Government of the State of Jammu and Kashmir.
The Azad Government of the State of Jammu and Kashmir is pleased to place the services of Sheikh Mahmood Ahmed presently working as Officer on Special Duty in the Office of Chief Secretary in the Pay Scale of 2000 100 2200, at the disposal of the Ministry of Education, Government of Pakistan for appointment as Officer on Special Duty in that Ministry, during the period of his deputation Sheikh Mahmood Ahmed will hold lien against the post of Director Education Azad Government of the State of Jammu and Kashmir.
Sd/
(S. Rehmatullah Khan)
Secretary
Services and General Administration.
No. S&GAD/21217 22/CS/72 M"abad the 18th October, 1972."
"Government of Pakistan
Ministry of Education and Provincial
Coordination.
ISLAMABAD October 21, 1972
NOTIFICATION:
No. F 3 18/72 Admin. On transfer from the Azad Government of the State of Jammu and Kashmir Mr. Sh. Mahmud Ahmed is appointed as officer on Special Duty in the Ministry of Education on deputation for a period of three years with effect from the forenoon of 20th October. 1972.
Sd/
Deputy Secretary."
8. It is well accepted that when a civil servant is sent on deputation the terms and conditions regulating the services on deputation of such Officer, are necessarily predetermined. It is done as a safeguard of the interest of civil servant and authorities or Governments concerned. Such terms and conditions are generally expressed in notification issued in that regard. When such terms and conditions are not stated expressly; it is permissible to determine the same from the surrounding circumstances including the conduct of the concerned Governments or authorities, as the case may be.
9. It is undenied that on October 18, 1972, the appellant was about to reach the age of superannuation as the remaining period of his service at that time was 4 months and 20 days. Ordinarily, on reaching superannuation, the period of 4 months is availed as L.P.R. At this premises, it may be accepted that at the relevant time the appellant was to serve for 20 days more in the service of respondent. This state of facts reflects that at the time of mutual agreement the Governments at both ends were aware of the remaining period of service of the appellant. Knowing the position well the respondent, it may be presumed, in good faith fixed no period of deputation and left it open for its settlement by the Federation of Pakistan in exercise of its own discretion keeping in view the fitness of the appellant for discharge of the duties assigned to him. On the other end, the Government of Pakistan, on communication of said notification and report of the appellant to the concerned Ministry, fixed the period of deputation as 3 years and communicated it to the Government of Azad Kashmir. The respondent Government, on knowing the length of remaining period of service, raised no objection to that effect. Rather, it acknowledged and accepted the aforesaid position. Thus, the terms and conditions of service on deputation described in the notifications were positively accepted by Azad Government. It was, therefore, bound to honour and comply with the same.
10. At this stage it may be of interest to consider whether the respondent Government was vested with discretion or authority to comply with the aforesaid terms in the shape of grant of extension in service after reaching the age of superannuation. This is so as, unless the respondent Government was clothed with an authority to enhance the period of service of appellant, under law it could not be extended beyond the age of superannuation. In aid of competence and authority of the respondent, the law occupying the field at the relevant time was Article 226 Volume I of Kashmir Service Regulations which regulated the terms and conditions of service including extension of service of civil servants in Azad Jammu and Kashmir. Regulation No. 226 is reproduced:
"An officer in superior service, who has attained the age of 55 years, may be required to retire, unless the competent authority considers him efficient and hermits him to remain in service. But as the premature retirement of an efficient officer imposes a needless charge on the Government, this Article should be worked with great discretion; and no officer should be retired who is capable of rendering useful service."
The case of the appellant is covered by the operative part of the Article. The scheme of law suggests that the competent authority is clothed with discretion to retain an efficient Officer, on attaining superannuation, by extending the period of his service. The underlying purpose is to avail full benefit of efficiency of an Officer. The test laid down by the legislature confines to the state of efficiency of Officers only. The competent authority is vested with discretion, presumed to be exercised in judicious manner; rather the authority may be said to have a positive and absolute duty to grant extension to efficient Officers on reaching the age of superannuation. The action of the respondent reflected in its notification, dated October 18. 1972, is to be expounded in aforesaid spirit of law. The acceptance of the terms of deputation settled by Federation of Pakistan in fixing the period of deputation as 3 years, thus, would tantamount to grant of extension to the appellant for the period he served in the service of Federation of Pakistan. It amounts to acquisition of service by Azad Kashmir Government in Pakistan. The principle of acquiescence, by implication, has the binding force in this case. On this view of the matter, we hold that on attaining superannuation in Azad Kashmir the period of deputation in Pakistan shall be deemed to have been extended by the Azad Kashmir Government. Under the circumstances no fresh order in affirmation of the same was required to be passed.
12. On exposition of relevant law, it is settled that sole qualification for retention in service after superannuation, was efficiency" of Officer. No other qualification or restriction was contemplated. In case of the appellant, Federation of Pakistan, which availed his services on deputation, was fully satisfied with his efficiency as no complaint as such was ever made and this fact was owned by Azad Kashmir Government as no objection was made by Azad Kashmir Government for retaining the service of the appellant by Pakistan Government on deputation. It is on record that Education Ministry of Pakistan was much satisfied and impressed by efficient discharge of duties by the appellant and it was deemed expedient to promote him as Joint Secretary. In this context, reference may be made to the letter of Education Minister of Pakistan as under:
"MINISTER FOR EDUCATION AND PROVINCIAL
COORDINATION
Islamabad, February 7, 1977.
My dear Qaim Ali Shah,
In 1972, the Ministry of Education borrowed the services of Sheikh Mahmud Ahmad from Azad Kashmir Government where he was working as Director of Education. It was stipulated that "during the period of his deputation" he would continue to hold lien on his substantive post (Annexure A") and we appointed him in the Ministry for three years (Annexure B"). However, within six months Azad Kashmir Government retired him, (Annexure C"). We in the Ministry considered this position in the light of Notifications issued by Pakistan and Azad Kashmir Governments, assuring counting of service, rendered by an employee of either Government under the other Government, towards pension (Annexures D" and E") and reached the decision to continue to avail of his services in national interest. Later he was promoted and appointed Joint Secretary by the Government of Pakistan in which position he worked till 10th March, 1976.
2. Since then he has been trying to have his service under Government of Pakistan counted towards his pension without receiving any positive response. The language of the relevant provision of Kashmir Service Regulations (Article 226) appears to support grant of extension in service in suitable cases and scores of precedents exist in which this has been done. I enclose copy of a Government Order under which an identical case was given favourable consideration (Annexure F"). I shall appreciate if you kindly ensure that Azad Kashmir Government extends similar treatment to him, to which he is entitled both on account of his distinguished services and his eminence as a writer and a research scholar.
With kind regards.
Yours sincerely,
Sd/
(Abdul Hafeez Pirzada)
Syed Qaim Ali Shah,
Minister for Kashmir Affairs,
Government of Pakistan,
Islamabad."
13. The Service Tribunal was equally convinced of the merits of the appellant"s case. This is how it felt constrained to record the following finding:
"We are constrained to remark that after the appellant was in the service of Pakistan Government, which was the best Judge of his usefulness, for retention in service, the passing of order, by the Government of Azad Jammu and Kashmir without any complaint, regarding the work and conduct of the appellant was really in a bad taste and it is violative of the spirit of the provisions of Article 226, K.S.R. Volume I"
In presence of aforesaid remarks, it was enjoined upon the Tribunal to allow the claim. Be that as it may, we are convinced to hold that the claim of appellant was fully admissible under the provisions of service rules.
14. It was emphasised that the impugned order was discriminatory in nature, as such bad in law. The learned counsel representing the appellant invited our attention to the finding of the Service Tribunal on the point and emphasised that the learned Service Tribunal admitted that the impugned order was discriminatory but despite that it failed to grant relief to the appellant. We have perused the relevant portion of the impugned order and find ourselves in agreement with the learned counsel for the appellant. The learned Service Tribunal examined the precedents with reference to the detailed facts of those cases where the services of the civil servants were extended much after their retirements by granting them all benefits. One of such cases is the case of Mr. Muhammad Iqbal ex Director Information, Azad Jammu and Kashmir. The facts of that case are identical to the present case. Mr. Muhammad Iqbal was also sent on deputation to serve the Federation of Pakistan. On attaining the superannuation he was retired from service. Subsequently, the respondent, in exercise of its powers under Article 226, extended the period of deputation with retrospective effect. In present case the appellant was retired from service on February 24, 1973. This order was given effect from March 3, 1973, in derogation to the terms and conditions listed m the Notification dated October 21, 1972, wherein the deputation period of 3 years fixed by the Federation of Pakistan, was already acknowledged by the respondent. The order of retirement described above was, therefore, rightly considered discriminatory and derogatory to the terms of service on deputation. We, therefore, maintain that the order of retirement, dated February 24, 1973, being violative of terms and conditions described above and discriminatory, is bad in law. 1t shall be deemed as not to have seen the light of the day to adversely affect the rights of the appellant.
15. It is already discussed that the appellant made various representations to avail the benefit of pension admissible to him under law. In one of the representations, addressed to the Prime Minister, the reasoning advanced by the appellant prevailed. The Prime Minister, in his order recorded on May 28, 1976, acknowledged the merits of the case of the appellant and granted the benefit of pension, subject to law. It is noticed that snobbish attitude of bureaucracy, which throughout opposed the claim of appellant, obstructed the course of issuance of order. The Service Tribunal also felt the pinch of bureaucratic bite and recorded its view in the following manner:
"On the representation of the appellant, the Azad Jammu and Kashmir Government could have granted the extension but due to the negative attitude of the Secretariat Officers, he was meted with discriminatory treatment. The action of extension was discretionary with the Government and the persons heading the Government have been passing orders favourable to the appellant but it is regretted that these orders were not implemented by the bureaucracy."
16. The Service Tribunal in rejecting the claim of the appellant took refuge of Notification No.S&GAD/2028 78/CS/73, dated 22 2 1973. On perusal of the notification we have come to the conclusion that the aforesaid notification was not relevant to the proposition under consideration. It simply referred to the cases of Government servants of Azad Jammu and Kashmir who made claims for counting of periods of their services for the benefit of pension, rendered in service of Pakistan, prior to their recruitments in Azad Kashmir. The interpretation of the notification may be correct in that perspective, but it was not relevant to the present case.
17. It is accepted by the learned counsel for the parties that the claim of pension for the deputation period, is to be adjusted by the Government of Pakistan to the Government of Azad Kashmir, for its payment to the appellant. Reference was also made to certain rules in the correspondence placed in the file of Service Tribunal. Mr. Muhammad Nisar Mirza, the learned Additional Advocate General, accepted the aforesaid position. In the circumstances, when the claim was to be redeemed against the exchequer of Government of Pakistan, we have failed to appreciate the negative attitude of respondent particularly in view of favourable recommendations, for grant of pension, repeatedly made by the Government of Pakistan.
18. The objection of limitation was not raised among the objections of respondent filed before the Service Tribunal. Moreover, the Service Tribunal has held that the order of rejection of the claim of the appellant, dated September 10, 1981, was the only final order. It was communicated to the appellant on November 19,1981. The finding of the Service Tribunal is reproduced:
"This is the first letter, in the form of a copy of office memorandum, sent to the appellant, which revealed to him that the competent authority had taken a decision, in not acceding to his request. The form of any order is not prescribed in any law or the rules. The appellant cannot compel the Government to communicate a decision in any particular form, therefore, it cannot be said that copy of office memorandum, wherein a decision of the Government was incorporated was not an order. It is also incorrect that appeal against such an order is not competent."
On recording the aforesaid finding, next the Service Tribunal expressed its opinion that the question of limitation required no separate determination and decided it against the respondent. The respondent failed to bring counter appeal to challenge the aforesaid finding. In these circumstances the objection of limitation finds no force.
19. The civil administration has always played dominant and leading role in State, irrespective of its political character or nature of economy. It assumed the role and character of strong arm of the Government. In modern democratic I states, it has always been earnestly considered that in order to run the Government successfully in conformation to the cherished wishes of citizens, a well trained, efficient, honest and possessed with adequate acumen civil administration is demand of the day. This can only be achieved by adherence to well organised system, unexposed to adhocism, favouritism, nepotism, mismanagement, lack of supervision, disrespect of merit, inaptitude and susceptible to political adventures.
20. Civil servants, as a matter of fact, sacrifice prime of life in positive running of daily administration by fairly serving the citizens and development of the State. They need full security of service and its benefits including the pension, on superannuation, on suffering disability, illness or death. This can only be attained when character of rules of procedure is objectively flexible so as the rate of pension automatically increases with the increase in salaries, from time to time. The benefits of pension are afforded at the doors of retired officers or their dependents without asking. The agencies assigned the function of regulating and payment of pensions must be alive to the earnest necessity of the scheme of pension and m consideration thereof must serve the cause with missionary zeal by I avoiding the technicalities. The present system obviously suffers from various maladies of defects and flaws. We are apprised that pension cases undergo lengthy process causing undesirable delay in completion. It takes in some cases more than 8 to 10 years. Such situation cannot be deemed as a matter of pride, in rising young society, like ours.
21. The present case is one of several hard cases of pension. Its journey to destination, is spreading over 12 years 9 months and 10 days. The bureaucracy, at its end took 5 years and 6 months in rejection of genuine claim. Rest of the tune was consumed at various levels in litigation. This is most thought provoking and detestable state of affairs. We, therefore, feel justified m recording our observation so that the authorities entrusted with the affairs of the State may initiate improvement to achieve the realisation of cherished wishes of the citizens who made historical sacrifices to attain independence.
We accept the appeal, discharge the order of Service Tribunal, set aside the order of retirement dated 24 2 1973, and hold that the appellant is entitled to the benefit of pension for the period of deputation rendered in the service of Pakistan w.e.f. October 20, 1972 to March 10, 1976, and the Pakistan Government would be liable to satisfy and effect the payment. The appeal succeeds with costs throughout.
AA./237/SC (AJ & K)
Appeal accepted.
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