Entitlement of Pensionary Benefit

 PLJ 2007 SC 791

[Appellate Jurisdiction]

Present: Javed Iqbal, Abdul Hameed Dogar &  Mian Shakirullah Jan, JJ.

FEDERATION OF PAKISTAN through Establishment Division--Appellant

versus

BRIG (RTD.) ZULFIQAR AHMAD KHAN and others--Respondents

C.A. No. 1084 of 2002, decided on 26.3.2007.

(On appeal from the judgment dated 12.4.2001 passed by Lahore High Court, Rawalpindi Bench in Writ Petition No. 8 of 2001).

Constitution of Pakistan, 1973--

----Arts. 9(2) & 212--Entitlement to pensionary benefit--Civil servant was retired from Pakistan Army--Entitlement to grant of civil pension but was refused by appellant--Jurisdiction--Legality--Civil servant approached Wafaqi Ombudsman who accepted his prayer--Establishment Division being aggrieved of the order of High Court, filed appeal--Mohtasib cannot accept for investigation any complaint by or on behalf of a public servant or functionary relating to Agency--Matter relating to terms and conditions a proper forum was available--Respondent was having a good case on merits, passed an effective order which may be favourable to respondent, but respondent has divulged himself in litigation courses which were not available to him under law--Mohtasib had wrongly assumed jurisdiction while entertaining the complaint of respondent when matter comes before the Court--Order conveniently may be ignored and order being without jurisdiction and without lawful authority--Appeal was accepted.     [Pp. 793 & 794] A & B

Raja Muhammad Irshad, DAG for Appellant.

Ch. Afrasiab Khan, ASC and Mr. M.S. Khattak, AOR for Respondents.

Date of hearing: 26.3.2007.

Judgment

Mian Shakirullah Jan, J.--Federation of Pakistan through Establishment Division, by leave of the Court, has impugned the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby while accepting writ petition filed by the respondents it was held that respondent having retired from Pakistan Army on 5.7.1987 would be deemed to have been inducted in civil service of Pakistan from the said date and having earned/qualified service was entitled to the grant of civil pension and the refusal by the appellant to grant it to the respondent was declared without lawful authority.

2.  A brief resume of the case is that the respondent while serving as Brigadier in Pakistan Army was posted on secondment in the President's Secretariat on 31.12.1985 as Director General/Joint Secretary. On his retirement from the Army he was inducted in the Secretariat Group of Civil Service of Pakistan w.e.f. 19.4.1989 wherefrom he retired on 9.2.1998 having remained in Civil Service for a period of less than 10 years and was found to be not entitled to pensionary benefits. However, subsequently the retirement of the respondent was antedated by the GHQ from 19.4.1989 to 5.7.1987 and thus became entitled to the pensionary benefits. Having failed to get the required pensionary benefits on refusal by the Establishment Division, the respondent approached the Wafaqi Ombudsman who accepted his prayer and directions were issued for awarding him the pensionary benefits of the civil post. On representation to the President, the order of Wafaqi Ombudsman was set aside. The respondent then approached the High Court in its Constitutional Jurisdiction for the award of pensionary benefits of the civil post and also for setting aside the order of the President. The respondent succeeded in his this attempt in getting order of the Establishment Division and also that of the President set aside and he was held entitled to the pensionary benefits. The Establishment Division being aggrieved of the order of the High Court, passed in the writ petition, filed instant appeal, by leave of the Court.

3.  Learned Deputy Attorney has contended that (i) the matter pertains to the terms & conditions of service of a civil servant and in view of the bar contained under Article 212 of the Constitution, the High Court has got no jurisdiction to entertain the writ petition and (ii) the Wafaqi Ombudsman has no jurisdiction in the matter relating to the terms & conditions of the service and moreso when it is a case of no mal-administration, On the other hand learned counsel for the respondent has submitted that after retirement from service, the respondent was no more civil servant and the High Court has rightly entertained the writ petition and also that the order which had been passed by the President by accepting the representation of the appellant and setting aside the order of Wafaqi Ombudsman is not sustainable as no opportunity of hearing has been afforded to the respondent and liable to be struck down as has been done by the High Court.

4.  By looking at the very grievance of the respondent, as it has been agitated before the High Court and also before Wafaqi Ombudsman was with regard to the award and non award of pensionary benefits depending on the conditions as to whether he has completed tenure of 10 years in the civil service which is purely relatable to the terms & conditions of service. By no stretch of imagination, this case could be brought out of the ambit of the terms & conditions of civil servant and in such view of the matter bar contained under Article 212 of the Constitution attracts and the High Court has wrongly assumed the jurisdiction despite the constitutional bar while accepting writ petition of the respondent. Reliance can be placed on Peer Muhammad Vs. Government of Balochistant through Chief Secretary and others (2007 SCMR 54) and Province of Punjab, through Secretary education Vs. Shamshad Begum (2004 PLC (C.S) 1027).

5.  Similar is the case with Wafaqi Ombudsman. According to Article 9(2) of the Constitution, Mohtasib cannot accept for investigation any complaint by or on behalf of a public servant or functionary concerning any matter relating to the Agency in which he is, or has been, working in respect of any personal grievance relating to his service therein. In view of this implicit bar that petitioner being a civil servant and the matter relating to the terms & conditions of his service and for the redressal for such grievance a proper forum is available, i.e. Service Tribunal which could, in case the respondent was having a good case on merits, pass an effective order which may be favourable to the respondent, but the respondent instead of adopting a proper legal course, has divulged himself in the litigation courses which were not available to him under the law . The findings of the High Court whereby the orders passed on representation against the order of Mohtasib were set aside are also not sustainable. Article 9(1) prescribes the jurisdiction, functions and powers of Mohtasib and sub-Article (2) of the Article ibid contains bar thereto as under what circumstances such powers cannot be exercised which reads as under:

9(2). Notwithstanding anything contained in clause (1), the Mohtasib shall not accept for investigation any complaint by or on behalf of a public servant or functionary concerning any matter relating to the Agency in which he is, or has been, working in respect of any personal grievance relating to his service therein.

The case of the respondent, which pertains to his personal grievance relating to his service clearly falls under the aforesaid sub-article containing bar on the jurisdiction of Mohtasib. The Mohtasib has wrongly assumed jurisdiction while entertaining the complaint of the respondent and giving findings on it, which he could not do and when such matter comes before the Court i.e. consideration of the order of Mohtasib as an ancillary one or incidentally and not under direct challenge, that can very conveniently be ignored i.e. the order being without jurisdiction and without lawful authority. If the same is set aside or reversed on representation as provided under the law, also cannot be set aside on account of any flaw, may be of not giving opportunity of hearing to the respondent as whether it has been set aside on representation or not, the order of Mohtasib on account of lack of jurisdiction would be of no consequence. Consequently, while accepting this appeal judgment of the High Court, impugned herein is set aside. No order as to costs.

(R.A.)      Appeal accepted.