1991 S C M R 1041

Present: Saad Saood Jan, Ajmal Mian, Rustam S. Sidhwa,

Muhammad Afzal Lone and Sajjad Ali Shah, JJ

I.A. SHARWANI and others---Petitioners

versus

GOVERNMENT OF PAKISTAN through Secretary,
Finance Division, Islamabad and others---Respondents.

Constitutional Petitions Nos.15-R, 16-R of 1989, 2-R and 5-R of 1990, heard on 16th January,
199f.

Per Ajmal Mian; Muhammad Afzal Lone and Sajjad Ali Shah, JJ. agreeing; Saad Saood
Jan and Rustam S. Sidhwa, JJ. also agreeing but adding separate notes---

(a) Constitution of Pakistan (1973)---

----Art. 212---Interpretation.

Under clause (1) of Article 212, Constitution of Pakistan (1973) the appropriate Legislature has
been empowered to enact for the establishment of one or more Administrative Courts or
Tribunals for exercising exclusive jurisdiction in respect of the matters referred to in sub-clauses
(a), (b) and (c) of the above clause, which inter alia include the matters relating to the terms and
conditions of persons (who are or have been) in the service of Pakistan including in respect of
disciplinary matters. It may further be noticed that clause (2) of the above Article provides that
notwithstanding anything hereinbefore contained, where any Administrative Court or Tribunal is
established in terms of clause (1), no other Court shall grant an injunction, make any order or
entertain any proceedings in respect of any matter to which the jurisdiction of such
Administrative Court or Tribunal extends. It also provides for the abatement of the pending
proceedings in respect of such matters except those appeals, which were then pending in the
Supreme Court. The proviso to clause (2) contemplates that the above clause shall not be
applicable to an Administrative Court or Tribunal established under an Act of a Provincial
Assembly unless at the request of that Assembly made in the form of a Resolution,
Majlis-e-Shoora by law extends the provisions to such a Court or Tribunal, whereas clause (3)
provides an appeal to Supreme Court with leave from a judgment, decree, order or sentence of an
Administrative Court or Tribunal provided the case involves a substantial question of law of
public importance.

(b) Service Tribunals Act (LXX of 1973)---

----Ss. 4 & 3---Interpretation.

Subsection (1) of section 4 of the Service Tribunals Act, 1973 provides right of an appeal before
the Service Tribunal to a civil servant if he is aggrieved by any final order, whether original or
appellate, made by a departmental authority in respect of any of his terms and conditions of the
service within 30 days of communication of such order to him or within six months of the
establishment of the appropriate Tribunal, whichever is later, subject to sub-clause (a) which
provides a precondition for filing of a service appeal by providing that an aggrieved civil servant
before approaching the Service Tribunal should file an appeal, review or representation as may
be provided for under the relevant Rule's before the departmental authority and should wait for
the expiry of 90 days from 'the date on which such appeal, review or representation was
preferred, if the same is not decided before the expiry of the above period. Whereas sub-clauses
(b) and (c) provide the cases in which no appeal shall lie to the Service Tribunal, namely, (i)
against an order or decision of a departmental authority determining the fitness or otherwise of a
person to be appointed to or hold a particular post or to be promoted to a higher post or grade,
and (ii) against an order or decision of a departmental authority made at any time before the 1st
July, 1969. It may further be noticed that under clause (a) of subsection (2) in case of a penalty
of dismissal from service, removal from service, compulsory retirement or reduction to a lower
post or time-scale or to a lower stage in a time-scale, the appeal shall lie to a Tribunal referred -to
in subsection (3) of section 3 of the Act, and in any other case under clause (6) to a Tribunal
referred to in subsection (7) of section 3 of the Act. It may also be noticed that the explanation to
subsection (2) of section 4 defines the term "departmental authority" as means an authority other
than a Tribunal which is competent to make an order in respect of any of the terms and
conditions of the civil servant.

(c) Constitution of Pakistan (1973)---

----Art. 212---Service Tribunals Act (LXX of 1973), S. 4---Jurisdiction of Courts is excluded
only in respect of the cases in which the Service Tribunal under S. 4(1) of the Service Tribunals
Act, 1973 has the jurisdiction---If the Service Tribunal does not have jurisdiction to adjudicate
upon a particular type of grievance, the jurisdiction of the Courts remains intact---Service
Tribunal has jurisdiction against a final order, whether original or appellate, made by a
departmental authority in respect of any terms and conditions of service.

(d) Service Tribunals Act (LXX of 1973)---

----S. 4---Appeal---Jurisdiction---Civil servant when aggrieved by a final order, whether original
or appellate, passed by a departmental authority in respect of his terms and conditions, his
remedy, if any, is by way of an appeal before the Service Tribunal even where the case involves
vires of a particular Service Rule or a Notification or the question, whether an accused civil
servant can claim the right to be represented by a counsel before the Enquiry Officer---If a
statutory rule or a notification adversely affects the terms and conditions of a civil servant, the
same can be treated as an order in terms of S. 4(1) in order to file an appeal before the Service
Tribunal.

M. Yamin Qureshi v. Islamic Republic of Pakistan and another P L D 1980 S C 22; Iqan Ahmed
Khurram v. Government of Pakistan and others P L D 1980 S C 153; The Controller, Central
Excise and Land Customs and others v. Aslam Ali Shah P L D 1985 S C 82; The Superintendent
of Police, Headquarters, Lahore and 2 others v. Muhammad Latif P L D 1988 S C 387; Abdul
Wahab Khan v. Government of the Punjab and 3 others P L D 1989 S C 508 and Abdul Bari v.
Government of Pakistan and 2 others P L D 1981 Kar. 290 ref.

(e) Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan (1973), Art. 25---Appeal---Jurisdiction of Service
Tribunal---Civil servant cannot by-pass Service Tribunal by adding a ground of violation of the
Fundamental Rights---Service Tribunal will have jurisdiction in a case which is founded on the
terms and conditions of the service even if it involves the question of violation of the
Fundamental Rights.

M. Yamin Qureshi v. Islamic Republic of Pakistan and another P L D 1980 S C 22; Iqan Ahmed
Khurram v. Government of Pakistan and others P L D 1980 S C 153; The Controller, Central
Excise and Land Customs and others v. Aslam Ali Shah P L D 1985 S C 82; The Superintendent
of Police, Headquarters, Lahore and 2 others v. Muhammad Latif P L D 1988 S C 387; Abdul
Wahab Khan v. Government of the Punjab and 3 others P L D 1989 S C 508 and Abdul Bari v.
Government of Pakistan and 2 others P L D 1981 Kar. 290 ref.

(f) Constitution of Pakistan (1973)---

----Art. 184(3)---Supreme Court, under Art. 184(3), is competent to entertain a Constitutional
petition if it considers that a question of public importance is involved with reference to the
enforcement of any of the Fundamental Rights conferred by Chap. 1 of Part II of the Constitution
of Pakistan (1973), notwithstanding that there might be an alternate remedy.

(g) Constitution-of Pakistan (1973)---

----Art. 184(3)---Supreme Court can take cognizance of any matter under Art. 184(3) if it
involves a question of public importance with reference to the enforcement of any of the
fundamental rights conferred .by Chap. 1 of Part II, Constitution of Pakistan (1973) at the behest
of an individual person or a group of persons represented through an association or a political
party.

(h) Constitution of Pakistan (1973)---

----Art.184(3)---Civil Procedure Code (V of 1908), 0.1, R.8---Original jurisdiction of Supreme
Court---Provisions of 0.1. R.8, C.P.C. have no application if Supreme Court takes cognizance of
any matter under Art. 184(3) invoking a question of public importance with reference to
enforcement of Fundamental Rights.

Order I, Rule 8, C.P.C. deals with filing of a representative suit and contemplates obtaining of
permission from the Court for filing of such a suit and service of the notice by a public
advertisement etc. It also provides that any person desiring to become a party to such a suit, may
apply for being impleaded as a party. The provisions of Order I, Rule 8, C.P.C. have no
application as Supreme Court can take cognizance of any matter under clause (3) of Article 184
of the Constitution if it involves a question of public importance with reference to the
enforcement of any Fundamental Rights conferred by Chapter 1 of Part II at the behest of an
individual person or a group of persons represented through an association or a political party.

When proceedings are in the nature of public interest litigation in order to advance the cause of
justice and public good, the power conferred on Supreme Court under clause (3) of Article 184
of the Constitution is to be exercised liberally unfettered with technicalities.

Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others P L D 1970 S C 1 and Miss
Benazir Bhutto v. Federation of Pakistan and another P L D 1988 S C 416 ref:

(i) Constitution of Pakistan (1973)---

----Art. 184---Original jurisdiction of Supreme Court---Public interest litigation--In order to
advance cause of justice and public good, the power conferred on Supreme Court under Art.
184(3) has to be exercised liberally unfettered with technicalities.

Anjuman Araian, Bhera v. Abdul Rashid and 5 others P L D 1973 Lah.500 distinguished.

D.S. Nakara and others v. Union of India A I R 1983 S C 130 and People's Union for Democratic
Rights and others v. Union of India and others A I R 1982 S C 1473 ref.

(j) Words and phrases---

...... Pension"---Definition and object of the term---Civil Servants Act (LXXI of 1973), S.
19---[Civil service].

Pensions are periodic payments, usually for the natural life of a person who retires because of
age or disability. Sometimes the term refers to periodic payments to wives, widows or children
of a primary or deceased person or pensioner; occasionally, a pension will be conveyed solely as
an honour for conspicuous service or valour. Pensions are provided by Government in three
guises: (1) as compensation or recompense to war veterans and families for old age or for
disability or death, usually from service causes; (2) as disability or old age retirement benefits for
civilian employees of government; (3) as social security payments for the age, disabled or
deceased citizenry based on past employment history of subject to current evidence of need.
Pensions are also provided by many non-governmental employers as a means of protecting
workers retiring for age or disability and for relieving the payroll of superannuated personnel.
They are sometimes provided by union-management welfare funds, associations or trusteeships.
Only rarely do employees in groups, associations or unions undertake their own pension
programme without employer or Government assistance.

Except as limited by the Constitution the establishment of a pension system is within the scope
of the legislative power. The granting of pensions to public officers or public employees serves
the public purpose, and is designed to induce competent persons to enter and remain in the public
service or employment, and to encourage the retirement from public service of those who have
become incapacitated from performing their duties as well as they might be performed by
younger or more vigorous persons. It has also been stated that a pension system is intended to
promote efficient, continued and faithful service to the employer and economic security to the
employees and their dependents, by an arrangement under which, by fulfilment of specified
eligibility requirements, pensions become property of the individual as a matter of right upon the
termination of public service.

A pension is a periodical allowance of money granted by the Government in consideration or
recognition of meritorious past services, or of loss or injury sustained in the public service. A
pension is mainly designed to assist the pensioner in providing for his daily wants, and it
presupposes the continued life of the recipient.

The right to a pension depends upon statutory provisions and therefore, the existence of such
right in particular instances is determinable primarily from the terms of the statute under which
the right or privilege is granted. The right to a pension may be made to depend upon such
conditions as the grantor may see fit to prescribe. Thus, it has been held that it may be provided,
in a general Pension Act, that any person who accepts the benefits thereof shall forfeit his right to
a special pension previously granted.

Summing up it can be said with confidence that pension is not only compensation for loyal
service rendered in the past, but pension also has a broader significance, in that it is a measure of
socio-economic justice which inheres economic security in the fall of life when physical and
mental prowess is ebbing corresponding to aging process and, therefore, one is required to fall
back on savings. One such saving in kind is when you give your best in the hey day of life to
your employer, in days of invalidity, economic security by way of periodical payment is assured.
The term has been judicially defined as a stated allowance or stipend made in consideration of
past service or a surrender of rights or emoluments to one retired from service. Thus the pension
payment to a Government employee is earned by rendering long and efficient service and
therefore can be said to be a deferred portion of the compensation for service rendered. In one
sentence one can. say that the most practical raison deter for pension is the inability to provide
for oneself due to old age. One may live and avoid unemployment but no senility and penury if
there is nothing to fall back upon.

There are various kinds of pension schemes which are obtaining in various countries of the
world: However, the same can be divided into two broad categories, namely, (i) Government
Pension Schemes; (ii) Non-Government Pension Schemes. Each of the above category can be
sub-divided into a number of sub-categories according to the object for which a particular
scheme is designed.

A pension is intended to assist a retired civil servant in providing for his daily wants so long he is
alive in consideration of his past services, though recently the above benefit has been extended
inter alia in Pakistan to the widows and the dependent children of the deceased civil servants.
The raison d'etre for pension seems to be inability to provide for oneself due to old-age. The
right and extent to claim pension depends upon the terms of the relevant statute under which it
has been granted.

A person who enters Government service has also something to look forward after his
retirement, to what are called retirement benefits, grant of pension being the most valuable of
such benefits. 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. If the service has not been thoroughly
satisfactory, the authority sanctioning the pension is empowered to make such reduction in the
amount as it may deem proper. This power is however exercisable only before pension is
actually sanctioned.

Encyclopaedia Britannica, Vol. 17, 1963 Edn., p. 488; Corpus Juris Secundum, Vols. 67, 70, pp.
423, 763-764; American Jurisprudence, Vol. 40, pp. 980-981; The State of Pakistan and another
v. Mehrajuddin P L D 1959 SC (Pak.) 147; The Government of N: W.F.P. through The Secretary
to the Government of N.-W.F.P. Communication and Works Departments, Peshawar v.
Muhammad Said Khan and another P L D 1973 SC 514; Deokinandan Prasad v. State of Bihar
and others A I R 1971 SC 1409 and State of Punjab and another v. Iqbal Singh A I R 1976 SC
667 ref.

(k) Civil Servants Act (LXXI of 1973)---

----S. 19--Civil Service Regulations, Reglns. 4 & 486---Pension---Civil servant, on retirement
from service, shall be entitled to receive such pension or gratuity as may be
prescribed---Officer's claim to pension is regulated by the Rules in force at the time when officer
resigns or is discharged from the 'service of Government---New ground or a new avenue can be
explored on the basis of some legal principle and not merely on the ground what appears to be
just and equitable.

The right and extent of the pension amount depends on the language of the relevant statute or the
rules framed thereunder. In order to link revision of pension amount with the revision of pay
scales, there should be a statutory provision to that effect. The Civil Servants Act does not
contain any such provision, on the contrary, section 19 of the latter Act expressly provides that
on retirement from service, a civil servant shall be entitled to receive such pension or gratuity as
may be prescribed. The above entitlement has been prescribed in the form of the C.S.R. 4, which
inter alia lays down that an officer's claim to pay and allowances is regulated by the rules in force
at the time in respect of which the pay and allowances are earned; to leave by the, rules in force
at the time the leave is applied for and granted; and to pension by the rules in force at the time
when the officer resigns or is discharged from the service of Government.

A new ground or a new avenue can be explored on the basis of some legal principle and not
merely on the ground what appears to be just and equitable.

Corpus Juris Secundum, Vol. 67 and D. S. Nakara and others v. Union of India AIR 1983 S C
130 distinguished.

(l) Constitution of Pakistan (1973)---

----Art. 25(1)---All citizens are equal before law and entitled to equal protection of law---State,
however, is not prohibited to treat its citizens on the basis of a reasonable classification
---Reasonable classification---Basis or criterion for classification as to avert violation of Art.
25(1).

Clause (1) of Article 25 of the Constitution of Pakistan (1973) enshrines the basic concept of
religion of Islam. However, this is now known as the golden principle of modern Jurisprudence,
which enjoins that all citizens are equal before law and are entitled to equal protection of law.

However, the above clause does not prohibit treatment of citizens by a State on the basis of a
reasonable classification.

Following are the principles with regard to equal protection of law and reasonableness of
classification:

(i) that equal protection of law does not envisage that every citizen is to be treated alike in all
circumstances, but it contemplates that persons similarly situated or similarly placed are to be
treated alike;

(ii) that reasonable classification is permissible but it must be founded on reasonable distinction
or reasonable basis;

(iii) that different laws can validly be enacted for different sexes, persons in different age groups,
persons having different financial standings, and persons accused of heinous crimes;

(iv) that no standard of universal application to test reasonableness of a classification can be laid
down as what may be reasonable classification in a particular set of circumstances may be
unreasonable in the other set of circumstances;

(v) that a law applying to one person or one class of persons may be constitutionally valid if
there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded
on any rational basis is no classification as to warrant its exclusion .from the mischief of Article
25;

(vi) that equal protection of law means that all persons equally placed be treated alike both in
privileges conferred and liabilities imposed;

(vii) that in order to make a classification reasonable, it should be based--

(a) on an intelligible differentia which distinguishes persons or things that are grouped together
from those who have been left out;

(b) that the differentia must have rational nexus to the object sought to be achieved by such
classification.

Principles as to classification are as under:

(a) A law may be constitutional even though it relates to a single individual ~ if, on account of
some special circumstances, or reasons applicable to him and not applicable to others, that single
individual may be created as a class by himself.

(b) There is always a presumption in favour of the constitutionality of an enactment and the
burden is upon him who attacks it to show that there has been a clear- transgression of the
constitutional principles. The person, therefore, who pleads that Article 25, has been violated,
must make out that not only has he been treated differently from others but he has been so treated
from persons similarly circumstanced without any reasonable basis and such differential
treatment has been unjustifiably made. However, it is extremely hazardous to decide the question
of the constitutional validity of a provision on the basis of the supposed existence of facts by
raising a presumption. Presumptions are resorted to when the matter does not admit of direct
proof or when there is some practical difficulty to produce evidence to prove a particular fact;

(c) it must be presumed that the Legislature understands and correctly appreciates the needs of its
own people, that its laws are directed to problems made manifest by experience, and that its
discriminations are based on adequate grounds;

(d) the Legislature is free to recognize the degrees of harm and may confine its restriction to
those cases where the need is deemed to be the clearest;

(e) in order to sustain the presumption of constitutionality, the Court may take into consideration
matters of common knowledge, matters of common report, the history of the times and may
assume every state of facts which can be conceived existing at the time of legislation;

(f) while good faith and knowledge of the existing conditions on the part of the Legislature are to
be presumed, if there is nothing on the face of the law or the surrounding circumstances brought
to the notice of the Court on which the classification may reasonably be regarded as based, the
presumption of the constitutionality cannot be carried to the extent of always holding that there
must be some undisclosed and unknown reasons for subjecting certain individuals or
corporations to hostile or discriminating legislation;

(g) a classification need not be scientifically perfect or logically complete;

(h) the validity of a rule has to be judged by assessing its overall effect and not by picking up
exceptional cases. What the Court has to see is whether the classification made is a just one
taking all aspects into consideration.

Brig. (Retd.) F.B. Ali and another v. The State P L D 1975 SC 506; Islamic Republic of Pakistan
through Secretary, Ministry of Interior and Kashmir Affairs, Islamabad v. Abdul Wali Khan,
M.NA. former President of Defunct National Awami Party P L D 1976 SC 57; Mst. Aziz Begum
and others v. Federation of Pakistan and others P L D 1990 SC 899; Shrin Munir and others v.
Government of Punjab through Secretary Health, Lahore and another P L D 1990 SC 295;
Charanjit Lal Chowdhury v. The Union of Inida and others A I R 1951 SC 41; Shri Ram Krishna
Dalmia and others v. Shri Justice S.R. Rendolkar and others A I R 1958 SC 538; The Anant
Mills Co. Ltd. v. State of Gujrat and others (1975) 2 SCC 175; State of Kerala and another v.
N.M. Thomas and others (1976) 2 SCC 310; In re: Special Courts Bill, 1978 (Special Reference
No.l of 1978) A I R 1979 $C 478; Ajay Hasia etc. v. Khalid Mujib Sehravardi and others A I R
1981 SC 48'x; D.S. Nakara and others v. Union of India A I R 1983 SC 130 and V.N. Shukla on
Constitution of India, 7th Edn. ref.

(m) Civil Servants Act (LXXI of 1973)---

----S. 19---Civil Service Regulations, Regln. 41---Constitution of Pakistan (1973), Art.
25---Pension---Pensioners and serving civil servants---Reasonable classification will be that all
the pensioners as a group are to be treated as one class and all serving civil servants as a group
are to be treated as a separate class---If the pay scales of serving civil servants are raised, the
civil servants who have by then already retired cannot have any legitimate grievance to agitate
for notional revision of their pay scales for recomposing their pension amounts for any purpose
and there cannot be any uniformity in the amounts of pension among the civil servants despite of
having equal rank and equal length of service, if they retire not on one date but on different dates
and in between such dates pay scales are revised---Pensioner can, however, have a legitimate
grievance if he is not treated alike with other pensioners.

Reasonable classification will be that all the pensioners as a group are to be treated as one class
and all serving civil servants as a group are to be treated as a separate class. In this view of the
matter, if the pay scales of serving civil servants are revised, the civil servants who have by then
already retired cannot have any legitimate grievance to agitate for notional revision of their pay
scales for re-computing their pension amounts for any purpose as the pension amount is to be
computed as above C.S.R.4 on the basis of the pension rules in force on the date of retirement of
a civil servant. The pension rules contain formula as to the method of computation of pension
amount with reference to the salary drawn by him till the date of retirement and, therefore, there
cannot be uniformity in the amounts of pension among the civil servants despite of having equal
rank and equal length of service, if they retire not on one date but on different dates and in-
between such dates pay scales are revised. However, a pensioner may have a legitimate
grievance if he is not treated alike with other pensioners, for example, if the
Legislature/Government increases pension amount by 10%, say on 1-1-1991, but provides that
this benefit will be available to those pensioners who have retired on or after 1-1-1989. In other
words, the pensioners who had retired prior to 1-1-1989 are deprived of the above benefit. This
would be violative of Article 25 of the Constitution unless the Government can demonstrate that
the above sub-classification within the class of pensioners is based on an intelligible differentia
and that the latter has rational nexus to the object sought to be achieved by the relevant
classification under the statute or statutory rule.

(n) Constitution of Pakistan (1973)---

-Art., 25---Civil Servants Act (LXXI of 1973), S. 19---Equal protection of law--- Reasonable
classification---Whether a special date fixed for availability of any privilege or benefit can be the
basis of classification.

As a general proposition it cannot be laid down that in no case a specked date can be made basis
for classification. It will depend on the facts of each case and if the specification of a particular
date is based on an intelligible differentia, which in turn has nexus to the object for which the
relevant statute has been enacted, such classification will be legal and valid but if the'
specification of a date is arbitrary or whimsical, it cannot be made basis for classification.

A distinction is to be drawn between a case in which a date is specified for the purpose of
qualifying for certain benefit under certain enactment/scheme and a date which may be specified
for the enforcement of a particular taxing statute or a notification granting certain concession
from payment of taxes and excise duty. The former category should pass the test of reasonable
classification, whereas for the latter category, there is no such requirement as the legislature or
the Government has the discretion/power to fix a date for the enforcement of a particular statute
or for granting certain concession in respect of tax or excise duty, and for that purpose, there
cannot be any mathematical or logical way of fixing a date except that the Legislature or the
Government may fix the same according to its own need and convenience.

D.R. Nim v. Union of India A I R 1967 S C 1301; Jaila Singh and another v. State of Rajasthan
and others A I R 1975 S C 1436; D.S. Nakara and others v. Union of India AIR 1983 SC 130;
Union of India and another v. Messrs Parameswaran Match Works etc. A I R 1974 S C 2349;
D.G. Gouse and Co., (Agents) Pvt. Ltd. v. State of Kerala and another A I R 1980 S C 271 and
The Accountant-General, Punjab and another v. Ch. Qadir Bakhsh and another P L D 1983 Lah.
246 ref.

(o) Constitution of Pakistan (1973)---

---Art. 205 and' Fifth Sched.---Judges (Leave) Pension and Privileges (Amendment) Order (5 of
1983)---Benefit of Presidential Order 5 of 1983 would be applicable to those Judges who had
retired prior to 1st July, 1981.

The plain reading of the Presidential Order No.5 of 1983 makes it clear that nowhere in this
Order, it has been stated that the benefit of this Order would not be applicable to those Judges
who had retired prior to 1st July, 1981. It has also not been provided in this Order that the
maximum limit would only be applicable to the Judges who had retired on or after 1st July,
1981. Under Article 205 of the Constitution, remuneration and other terms and conditions of
service of a Judge of the Supreme Court or of a High Court shall be as provided in the Fifth
Schedule. There is a constitutional provision fixing remuneration and other terms and conditions
of a High Court Judge. In accordance with such provisions, the pay and pension of the Judges of
the superior Courts are fixed by a constitutional instrument. The Fifth Schedule relates to
remuneration and terms and conditions of service of Judges. This Schedule is not to be read in
isolation, as it is a part of the Constitution. The salary and other privileges of the superior Courts
Judges are allowed under a constitutional provision, in order to keep the judiciary independent.
The basic principle of interpretation of statutes is that if the words are clear and unambiguous,
then literal construction must be followed. The intention of the law-giver can be seen from the
words themselves and no foreign element is to be introduced. The interpretation must be
harmonious and reasonable:

M. A. Rashid v. Pakistan through Finance Division Government of Pakistan, Islamabad and 3
others P L D 1988 Quetta 70 approved.

Per Saad Saood Jan agreeing with Ajmal Mian, J.---

(p) Civil Servants Act (LXXI of 1973)---

----S. 19---Constitution of Pakistan (1973), Art. 25---Pension---Retired civil servants form a
class by themselves in relation to those who are still in service--In the absence of any special
circumstances it will be discriminatory to grant a privilege or benefit to one sub-class of retired
civil servants and withhold the same from another sub-class of retired civil servants by fixing a
date with regard to its availability.

(q) Civil Servants Act (LXXI of 1973)---

----S. 19---Civil Service Regulations, Regln. 4---Constitution of Pakistan (1973), Art.
25---Pension---Benefit of any improvement in pension which may be granted to a civil servant
retiring in future must not invariably be extended to already retired civil servants who held the
same or corresponding appointment at the time of their retirement---If the Government improves
the pensionary privileges and benefits for its serving employees or future entrants it cannot be
said that it is guilty of discriminatory treatment towards those who have already retired.

Per Rustam S. Sidhwa, J. agreeing with Ajmal Mian, J.---

(r) Islamic Jurisprudence---

---- State---Obligations of an Islamic State towards its employees stated.
(s) Constitution of Pakistan (1973)---

----Arts. 25, 27(2), 31, 37, 38 & 29---State is bound, as respects the Muslims of Pakistan to
promote observance of the Islamic moral standards; make provision for securing just and
humane conditions of work; secure the well-being of the people inter alia by raising their
standard of living and ensuring equitable adjustment of rights between employers and
employees--Government servant after retirement earns no augmentation in his pension with
every revision in pension that takes effect thereafter after he has retired, unless his case is
specifically provided for---With every revision in the pay, the entitlement of the serving
Government servant to receive pension after retirement stands enhanced, for basic pay
con1titutes an essential element of emoluments in the different formulas that are used to
determine pension.

The only question of paramount importance that arises in the present case is whether all the
pensioners should form a class apart for purposes of pensionary benefits so that whenever salary
scales or pensions are augmented, their consequent benefits are also available to all retired
pensioners, apart from those that will retire on or after the date of augmentation takes effect, or
there can be sub-classes, each sub-class being constituted by a group of pensioners who have
retired on or after a date when some change in the rules relating to salary scales or pension has
taken place till the date the next change takes place, subject to any amendments in the rules that
may be made from time to time augmenting their pensionary benefits. Speaking from an
ideological point of view, the answer to the question can only be in the affirmative, for that
would be the highest socio-economic goal that a State could achieve under Article 38 of the
Principles of Policy as set out in Chapter 2 of Part II of the Constitution, but if the economic
position is feeble and weak, the same is not economically feasible and the fulfilment of this
particular principle of policy, in view of Article 27(2), can be deferred due to non-availability of
resources, the next question therefore that would arise is whether any legislation affecting
pension does not violate any fundamental right, such as the Article guaranteeing equality, which
strikes down any form of classification which is unreasonable and arbitrary.

To appreciate this matter it is necessary to view in their proper perspective the rights and
liabilities of the Government regarding pay and allowances and pensionary benefits. The
obligations of the Government relating to pay and allowances are regulated by the rules in force
at the time in respect of which the pay and allowances are earned; and that relating to pensionary
benefits by the rules in force at the time when the Government servant resigns or is discharged
from service. The Government reserves to itself the right of changing the rules and regulations
regarding pay and allowances and pensions, from time to time; and their discretion in the matter-
and their right of interpreting their meaning in case of dispute. Pay and allowances are earned by
a Government servant each month during service according to the rules in force on the dates they
fall due. In the event of any upward revision, he is entitled to the benefit of the revised pay and
allowances if he is in service on the date they fall due each month immediately after the revision.
When such a Government servant retires, he ceases to earn any pay and allowances, as his
entitlement in that respect comes to an end. In the matter of pension, the entitlement to receive
the same, according to the rules in force, exists and remains effective as a continuing entitlement,
so long as the Government servant is in service and has ,not retired. In the event of any upward
revision, the entitlement to receive the same, according to the amended rules arises immediately
after such revision and remains effective as a continuing entitlement, so long as he is in service.
When such a Government servant retires, he earns the pension according to the rules in force on
the date of his retirement. Should any revision or revisions take place thereafter augmenting the
pensionary benefits, he is not entitled to them, unless any of them specifically or retrospectively
covers his case. Thus, whilst the Government servant in employment earns augmentation in his
pay and allowances with every revision that takes effect whilst he is in service, the Government
servant after retirement earns no augmentation in his pension with every revision in pension that
takes effect thereafter he has retired, unless his case is specifically provided for. With every
revision in the pay, the entitlement of the serving Government servant to receive pension after
retirement stands enhanced, for basic pay constitutes an essential element of emoluments in the
different formulas that are used to determine pension.

(t) Civil Servants Act (LXXI of 1973)---

----S. 19---Constitution of Pakistan (1973), Art. 25---Object of Art. 25 of the Constitution of
Pakistan (1973)---Pension---Payment of---Legal instruments augmenting salaries or indexation
on salaries cannot be struck down as violating Art. 25 of the Constitution if they indirectly
happen to affect pension---Every time increase in salary or indexation to salary takes place, a
sins Mass would be created, each sub-class being constituted by a group of pensioners who have
retired on or after the date when some change in the legal instruments has taken effect till the
date the next change in the salary or indexation takes place.

The object of Article 25 is not to force Government to legislate over a matter which is silent, but
to strike down a legislation or a legal instrument which creates classification which is
unreasonable or arbitrary. The fact that salaries are increased or indexation is allowed thereon, is
legislation pertaining to salary which specifically deals with serving Government servants and
has no connection with pension which specifically deals with Government servants who have
retired. Merely because the legal instruments are directly intended to augment salaries of serving
Government servants, the fact that indirectly they may tend to affect emoluments and, thus
augment pensionary benefits or affect other allowances which are allowed as a percentage of the
wages and thus augment such allowances, cannot be treated as creating an unreasonable
discrimination against recipients of pensions and allowances. The rule is that where a particular
legislation tends to create an arbitrary distinction or unreasonable discrimination, the principle
that all persons similarly circumstances or matters evenly placed should be treated or dealt with
alike is enforced. But where a legislation dealing with one subject has the effect of indirectly
affecting other, persons or matters covered by another legislation dealing with another subject,
the violation of the rule of equality cannot be blindly enforced, unless there is some strong
ground which could make it almost mandatory for the Court to do so. Legislation also treats
salary and pension separately. Just because one indirectly affects the other, it does not become a
case of unreasonable discrimination. If such a rule were to be applied, it would open up a
pandora's box of illusive and unintelligible classification, having no rationale nor reason, and all
forms of legislation would be thrown into utter confusion.

Legal instruments augmenting salaries or indexation on salaries cannot be struck down as
violating Article 25 of the Constitution if they indirectly happen to affect pension. Thus, every
time increase in salary or indexation to salary takes place, a sub-class would be created, each
sub-class being constituted by a group of pensioners who have retired on or after the date when
some change in the legal instruments has taken effect till the date the next change in the salary or
indexation takes place.

D. S. Nakara v. The Union-of India A I R 1983 S C 130 ref.

(u) Civil Servants Act (LXXI of 1973)---

----S.19---Pension---Any liberalised change in pension scheme has to be made available to past
retired pensioners prospectively.

D.S.Nakara v. The Union of India A I R 1983 S C 130 and George G. Eichelberger v. City of
Berkeley 46 C. 2d 182 = 293 P. 2d 1 ref.

(v) Civil Servants Act (LXXI of 1973)--

----S. 19---Civil Service Regulations, Chap. 1, Regln. 4---Pension---Term
"emoluments"---Connotation---Liberal doctrine cannot be imposes'.' in the pension system
prevailing presently.

It is clear from the definition of the term "emoluments"' that they are to be calculated upon what
the officer was receiving immediately before his retirement and since inter alia basic pay,
dearness allowance, indexation pay, etc., are some of the constituents that go to make up
emoluments, that pay or allowance etc., alone would be taken into consideration which the
employee was receiving immediately before his retirement. The prospects of subsequent
increases in pay or allowances being taken into consideration in the term "emoluments" therefore
does not arise. In view of the law being strict and clear, the liberal doctrine cannot be imposed in
the pension system prevailing presently.

(w) Islamic Jurisprudence-

---- Conduct of State administration---Government's duty towards its retired employees detailed.

(x) Civil service---

----Pension---Kinds of pensions enumerated and their object and purpose elaborated---All form
of pensions, including the superannuation pension, payable by Government, are dependent upon
statutory provisions.

(y) Civil Servants Act (LXXI of 1973)---

---S. 19---Constitution of Pakistan (1973), Arts: 23 & 24(1)---Pension---Payment of---Right to
receive pension by a Government servant is property so as to attract Arts. 23 & 24(1) of the
Constitution of Pakistan.

A Government employee's claim to pay and allowances is regulated by the rules in force at the
time in respect of which the pay and allowances are earned, whilst his claim to pension is
regulated by the rules- in force at the time when he retires, resigns, or is invalided, or is
compulsorily retired, or is discharged from service, or is injured, or killed whilst in service,
depending upon the type of pension claimed. In respect of superannuation pension, the amount of
pension payable is determined by the length of completed years of qualifying service put in by
the Government servant, subject to the formula then in existence providing the mode of
calculation of pension as prescribed by the rules. The right to receive pension flows directly out
of the rules applicable and not out of any order of any officer or authority, though for the
purposes of determining or quantifying the amount it may be necessary for the authorities to pass
such order. The right to receive pension by a Government servant is property so as to attract
Articles 23 and 24(1) of the Constitution and any illegal denial to a Government servant to
receive tie same would affect his fundamental right granted under the said provisions of the
Constitution.
Deokinanken Prasad v. The State of Behar A I R 1971 S C 1409; Bhagwant Singh v. Union of
India A I R 1962 Punj. 503 and K.R. Erry v. The State of Punjab I L R 1 Pb. 278 ref.

(z) Civil Servants Act (LXXI of 1973)---

----S. 19---Constitution of Pakistan (1973), Arts. 29 to 40---Pension---Payment of---Rights and
obligations of Government for payment of pension to its retired employees---Whilst the
Government servant in employment earns augmentation in his pay and allowances with every
revision that takes effect whilst he is in service---State is bound inter alia 3to provide for all.
citizens, within available resources facilities for work and adequate livelihood with all
reasonable rest and ,leisure; provide for all persons in the service of Pakistan or otherwise, social
security by compulsory social insurance or other means, and provide basic necessities of life for
all citizens as are permanently or temporarily unable to earn their livelihood on account of
infirmity, sickness. or unemployment---Where the observance of any particular principle of
policy contained in Arts. 29 to 40 of the Constitution of Pakistan is dependent upon resources
being available for the said purpose, the principle is to be regarded as being subject to the
availability of resources.

K.MA. Samdani, Advocate Supreme Court and Manzoor Illahi, Ex Advocate-on-Record for
Petitioners. (in all cases).

Aziz A. Munshi, Attorney-General for Pakistan (on notice) and Ch. Ejaz Ahmed, Deputy
Attorney-General for Respondents (in all cases).

Date of hearing: 16th January, 1991.

JUDGMENT

AJMAL MIAN, J.---By this common judgment, we intend to dispose of the above four
petitions, which have been entertained directly by this Court under clause (3) of Article 184 of
the Constitution of the Islamic Republic of Pakistan, 1973, hereinafter referred to as the
Constitution, as they pertain to the enforcement of the Fundamental Rights and involve common
questions of fact and law of public importance.

2. Factual matrix may be referred to in brief. The petitioner in C.P. No.15-R .of 1989 joined civil
service in 1940 and retired from the rank of Joint Secretary (Grade 20) with effect from
15-11-1976. Whereas the petitioner in C.P. No.5-R of 1990 joined civil service in 1958, but from
1966 till July. 1974, he performed duties in the Judicial Branch of the Civil Service of Pakistan.
He was elevated as an Additional Judge to the then Sindh and Balochistan High Court on
7-10-1974, where he worked as such up to 31-12-1976 when the above High Court was
bifurcated into two High Courts, namely, Sindh and Balochistan High Courts. After that, he
performed his duties as an Additional Judge from 1-12-1976 to 6-10-1977 of the Balochistan
High Court and thereafter as its permanent Judge from 7-10-1977 till 7-4-1981, when he was
retired with effect from 25-3-1981 under the Provisional Constitution Order, 1981. The petitioner
in C.P. No.16-R of 1989 is an Association of the G.H.O. retired civilian officers, whereas the
petitioner in C.P. No.2-R of 1990 is a registered Association for the welfare of retired persons.

The grievance of the above petitioners and the Associations is that the retired civil servants and
the retired Judges, hereinafter referred to as the pensioners, are being discriminated in payment
of enhanced pension in violation of Article 25 of the Constitution inasmuch as certain increases
in the pension have been denied to some of them on the ground that they had retired prior to a
specified date. However the case of the respondents, besides preliminary objections as to the
maintainability of the petitions, is that no discriminatory treatment has been meted out and that
the pensioners are paid pensions according to the Rules applicable to them.

3. Mr. Aziz A. Munshi, learned Attorney-General, who has appeared in response to the Court
notice, has raised a preliminary objection as to the maintainability of the above petitions on the
ground that the same are barred under Article 212 of the Constitution. Ch. Ejaz Ahmed, learned
Deputy Attorney General, who has appeared for the Federal Government, adopted the arguments
of the learned Attorney-General on the above preliminary objection and has further urged that
the above two petitions riled by the two Associations were also not competent as the
Associations could not have agitated the personal grievance of the pensioners without complying
with the provisions of Order I, Rule 8, C.P.C.

On the other hand, Mr. K.M.A. Samdani, learned Advocate Supreme Court appearing for the
petitioners, has submitted that the above petitions have been competently filed.

4. Before touching upon the merits of the cases, it may be pertinent to dilate upon the above two
legal objections.

5. In furtherance of his above objection Mr. Aziz A. Munshi, learned Attorney-General, has
invited our attention to Article 212 of the Constitution and section 4 of the Service Tribunals
Act, 1973, hereinafter referred to as the Act, which read as follows:--

"Article 212 of the Constitution:

212.---(1) Notwithstanding anything hereinbefore contained, the appropriate Legislature may by
Act provide for the establishment of one or more Administrative Courts or Tribunals to exercise
exclusive jurisdiction in respect of---

(a) matters relating to the terms and conditions of persons who are or have been in the service of
Pakistan, including disciplinary matters;

(b) matters relating to claims arising from tortious acts of Government, or any person in the
service of Pakistan, or of any local or other authority empowered by law to levy any tax or cess
and any servant of .such authority acting in the discharge of his duties as such servant; or

(c) matters relating to the acquisition, administration and disposal of any property which is
deemed to be enemy property under any law.

(2) Notwithstanding anything hereinbefore contained, where any Administrative Court or
Tribunal is established under clause (1), no other Court shall grant an injunction, make any order
or entertain any proceedings in respect of any matter to which the jurisdiction of such
Administrative Court or Tribunal extends and all proceedings in respect of any such matter
which may be pending before such other Court immediately before the establishment of the
Administrative Court or Tribunal, other than an appeal pending before the Supreme Court, shall
abate on such establishment:

Provided that the provisions of this clause shall not apply to an Administrative Court or Tribunal
established under an Act of a Provincial Assembly unless, at the request of that Assembly made
in the form of a resolution, Majlis-e-Shoora (Parliament) by law extends the provisions to such a
Court or Tribunal.

(3) An appeal to the Supreme Court from a judgment, decree, order or sentence of an
Administrative Court or Tribunal shall lie only if the Supreme Court, being satisfied that the case
involves a substantial question of law of public importance, grants leave to appeal."

Section 4 of the Service Tribunals Act. 1973:

4. Appeals to Tribunals.--(1) Any civil servant aggrieved by any final order, whether original or
appellate, made by a departmental authority in respect of any of the terms and conditions of his
service may, within thirty days of the communication of such order to him or within six months
of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the
Tribunal:

Provided that--

(a) where an appeal, review or representation to a departmental authority is provided under the
Civil Servants Act, 1973 (LXXI of 1973), or any rules against any such order, no appeal shall lie
to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review
or representation to such departmental authority and a period of ninety days has elapsed from the
date on which such appeal, application or representation was so preferred;

(b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority
determining the fitness or otherwise of a person to be appointed to or hold a particular post or to
be promoted to a higher post or grade; and

(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.

(2) Where the appeal is against an order or decision of a departmental authority imposing a
departmental punishment or penalty on a civil servant, the appeal shall be preferred---

(a) in the case of a penalty of dismissal from service, removal from service, compulsory
retirement or reduction to a lower post or time-scale, or to lower stage in a time-scale of a
Tribunal referred to in subsection (3) of section 3; and

(b) in any other case, to a Tribunal referred to in subsection (7) of that section.

Explanation.---In this section, "departmental authority" means any authority, other than a
Tribunal, which is competent to make an order in respect of any of the terms and conditions of
civil servants."

6. A perusal of the above-quoted Article 212 of the Constitution indicates that under clause (1),
the appropriate Legislature has been empowered to enact for the establishment of one or more
Administrative Courts or Tribunals for exercising exclusive jurisdiction in respect of the matters
referred to in sub-clauses (a), (b) and (c) of the above clause, which inter alia include the matters
relating to the terms and conditions of persons (who are or have been) in the service of Pakistan
including in respect of disciplinary matters. It may further I be noticed that clause (2) of the
above Article provides that notwithstanding anything hereinbefore contained, where any
Administrative Court or Tribunal is established in terms of clause (1), no other Court shall grant
an injunction, make any order or entertain any proceedings in respect of any matter to which the
jurisdiction of such Administrative Court or Tribunal extends. It also provides the abatement of
the pending proceedings in respect of such matters except those appeals, which were then
pending in this Court. It may also be noticed that the proviso to clause (2) contemplates that the
above clause shall not be applicable to an Administrative Court or Tribunal established under an
Act of a Provincial Assembly unless at the request of that Assembly made in the form of a
Resolution, Majlis-e-Shoora by law extends the provisions to such a Court or Tribunal, whereas
clause (3) provides an appeal to this Court with leave from a judgment, decree, order or sentence
of an Administrative Court or Tribunal provided the case involves a substantial question of law
of public importance.

7. It may also be pointed out that subsection (1) of section 4 of the Act provides right of an
appeal before the Service Tribunal to a civil servant if he is aggrieved by any final order, whether
original or appellate, made by a departmental authority in respect of any of his terms and
conditions of the service within 30 days of communication of such order to him or within six
months of the establishment of the appropriate Tribunal, whichever is later, subject to sub-clause
(a) which provides a precondition for filing of a service appeal by providing that an aggrieved
civil servant before approaching the Service Tribunal should file an appeal, review or
representation as may be provided for under the relevant Rules before the departmental authority
and should wait for the expiry of 90 days from the date on which such appeal, review or
representation was preferred, if the same is not decided before the expiry of the above period.
Whereas sub-clauses (b) and (c) provide the cases in which no appeal shall lie to the Service
Tribunal, namely, (i) against an order or decision of a departmental authority determining the
fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a
higher post or grade, and (ii) against an order or decision of a departmental authority made at any
time before the 1st July, 1969. It may further be noticed that under clause (a) of subsection (2) in
case of a penalty of dismissal from service, removal from service, compulsory retirement or
reduction to a lower post or time-scale or to a lower stage in a time-scale, the appeal shall lie to a
Tribunal referred to in subsection (3) of section 3 of the Act, and in any other case under clause
(b) to a Tribunal referred to in subsection (7) of section 3 of the Act. It may also be noticed that
the explanation to subsection (2) of section 4 defines the term "departmental authority" as means
an authority other than a Tribunal which is competent to make an order in respect of any of the
terms and conditions of the civil servant.

8. It has been urged by the learned Attorney-General that since pension is a term of service in
view of section 19 of the Civil Servants Act, 1973, which provides that on retirement from
service, a civil servant shall be entitled to receive such pension or gratuity as may be prescribed,
the remedy, if any, of the petitioners was to file an appeal before the Service Tribunal and not a
Constitution Petition directly under clause (3) of Article 184 of the Constitution, particularly
keeping in view that above Article 212 contains non obstante clause. On the other hand, Mr.
Samdani, learned Advocate Supreme Court appearing for the petitioners, has urged, firstly, that
the petitioners are not aggrieved by any order passed in terms of subsection (1) of section 4 of
the Act as the relevant enactments/notifications cannot be treated as an order, either original or
appellate, made by a departmental authority and, secondly, that the petitioners' case is founded
solely on the ground of discriminatory treatment in violation of Article 25 of the Constitution.

9. From the above-quoted Article 212 of the Constitution and section 4 of the Act, it is evident
that the jurisdiction of the Courts is excluded only in respect of the cases in which the Service
Tribunal under subsection (1) of section 4 has the jurisdiction. It must, therefore, follow that if
the Service Tribunal does not have jurisdiction to adjudicate upon a particular type of grievance,
the jurisdiction of the Courts remains intact. It may again be pointed out that the Service
Tribunal has jurisdiction against a final order, whether original or appellate, made by a
departmental authority in respect of any terms and conditions of service. The question, therefore,
arises, whether the relevant enactments/notifications containing the provision for payment of
enhanced pension, which have been denied to the pensioners, can be treated as a final order,
original or appellate, passed by a departmental authority in respect of any terms and conditions
of service. Messrs Aziz A. Munshi and Ch. Ejaz Ahmed, have referred to the following cases in
support of their above contention:--

(i) M. Yamin Qureshi v. Islamic Republic of Pakistan and another (P L D 1980 S C 22);

in which the appellant was dismissed from service under Martial Law "Regulation 58 in May,
1970. Upon the establishment of the Federal Service Tribunal, he filed a service appeal which
was dismissed by the Tribunal for want of jurisdiction. Upon appeal before this Court, it was
held that the Constitution specifically contemplated competence of a civil servant to tile an
appeal before the Service Tribunal against an order or decision of a departmental authority made
at any time after the 1st July, 1969, and that the orders or acts done without jurisdiction, coram
non judice or mala fide were not protected under clause (4) of Article 270 of the Constitution and
that the appellant's appeal was competent before the Service Tribunal, which could examine the
above question.

(ii) Iqan Ahmed Khurram v. Government of Pakistan and others (P L D 1980 S C 153);

in the above case this Court, while maintaining the judgments of the Sindh High Court
dismissing the Constitutional petitions of the civil servants on the ground of want of jurisdiction
in view of Article 212 of the Constitution, observed as follows on the question, whether the
Tribunal could go into the question of vires of the Rules framed by the department:--

"As to the ground concerning the non-maintainability of the petition, the High Court has held,
and it is also the case of the petitioner, that the effect of the Rules is that it has altered the terms
and conditions of service. This being so, the bar of Article 212 of the Constitution would be
applicable with full force as in that exercise the question of vires of the Rules vis-a-vis section 25
of the Act would necessarily be considered. In this behalf the High Court has relied on the
statement of law enunciated in Muhammad Hashim Khan and others v. Province of Balochistan
and others (P L D 1976 Quetta 59) and Fazal Elahi Ejaz and others v. Government. of the Punjab
and others with which I agree."

(iii) The Collector, Central Excise and Land Customs and others v. Aslam Ali Shah (P L D 1985
S C 82);

in which this Court, while setting aside the judgment of the Lahore High Court passed in
exercise of Constitutional jurisdiction, held that the question that an accused employee, while
defending his case before the Enquiry Officer, was entitled to be represented by a counsel was a
matter relating to the terms and conditions of the service and could only be adjudicated upon by
the Service Tribunal.

(iv) The Superintendent of Police, Headquarters, Lahore and 2 others v Muhammad Latif (P L D
1988 S C 387);

in the above case this Court, while dismissing an appeal against the judgment of the Lahore High
,Court passed in exercise of writ jurisdiction, repelled the contention that the jurisdiction of the
Courts under Article 212(2) of the Constitution was barred only at the stage before an appeal is
brought before the Service Tribunal and not when the Tribunal disposed of the same. It was held
that against an order of the Service Tribunal, the only remedy available is under clause (3) of
Article 212 of the Constitution and not a writ petition.

(v) Abdul Wahab Khan v. Government of the Punjab and 3 others (P L D 1989 S C 508);

in which the facts were that the appellant, who was facing the enquiry proceedings, filed a
Constitution petition before any final order was passed against him, which was dismissed by a
learned Single Judge of the Lahore High Court on the ground of want of jurisdiction. Appeal
filed against the above judgment, was also dismissed by a Division Bench of the said Court.
Thereupon, the petitioner filed a petition for leave against the above judgment, which was
declined inter alia with the following observations:--

with regard to the filing of appeals. The petitioner would have to satisfy all the conditions for
filing such an appeal. One of the conditions being that the order impugned before the Tribunal
should be such which is appealable in accordance with the relevant Service Tribunals Act. But
the order impugned before the High Court vis-a-vis the stage at which it has been passed, is not
appealable, the petitioner would have to wait till such an order is passed against him which is
appealable before the tribunal."

(vi) Abdul Bari v. Government of Pakistan and 2 others (P L D 1981 Kar. 290)

in the above case, a Full Bench of five Judges of the Sindh High, Court, while dealing with the
questions referred to it, repelled the contention that an order of retirement passed after
completion of 25 years service was not covered by section 4(1) of the Act, and held that the
expression "in respect of any matter to which the jurisdiction of such Administrative Court or
Tribunal" used in Article 212 of the Constitution makes ouster of jurisdiction of the High Court
correspond with the matters placed within the ambit of jurisdiction conferred on Tribunal.

10. From the above-cited cases, it is evident that it has been consistently held inter alia by this
Court that a civil servant if is aggrieved by a final order, whether original or appellate, passed by
a departmental authority in respect of his terms and conditions, his remedy, if any, is by way of
an appeal before the Service Tribunal even where the case involves vires of a particular Service
Rule or a notification or the question, whether an accused civil servant can claim the right to be
represented by a counsel before the Enquiry Officer. We are inclined to hold that if a statutory
rule or a notification adversely affects the terms and conditions of a civil servant, the same can
be treated as an order in terms of subsection (1) of section 4 of the Act in order to file an appeal
before the Service Tribunal. However, in the present case, the petitioners' case is founded solely
on the ground of discriminatory treatment in violation of Article 25 of the Constitution and not
because of any breach of any provision of the Civil Servants Act or any service rule.
Furthermore, the question involved is of public importance as it affects all the present and future
pensioners and, therefore, falls within the compass of clause (3) of Article 184 of the
Constitution. However, we may clarify that a.: civil servant cannot bye-pass the jurisdiction of
the Service Tribunal by adding a ground of violation of the Fundamental Rights. The Service
Tribunal will have jurisdiction in a case which is founded on the terms and conditions of the
service even if it involves the question of violation of the Fundamental Rights.

11. It was also contended by Ch. Ejaz Ahmed that since this Court under Article 184(3) of. the
Constitution exercises jurisdiction similar to that of Article 199 of the Constitution, the above
constitution petitions are incompetent as the petitioners have adequate alternate remedy in the
form of an appeal before the Service Tribunal. This contention is. untenable in view of what we
have held hereinabove while dealing with the first contention. However, we may observe that
even otherwise under clause (3) of Article 184 of the Constitution, this Court is competent to
entertain a constitution petition if it considers that a question of public importance is involved
with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of
Part lI of the Constitution notwithstanding that there might be an alternate remedy.

12. Adverting to Ch. Ejaz Ahmed's contention that the above two petitions riled by the two
Associations are not competent, it may be observed that in furtherance of his above submission
he has urged that since the proceedings under clause- (3) of Article 184 of the Constitution are
similar to that of under Article 199 before a High Court, the same being civil proceedings, are
subject to the application of C.P.C. and hence the above two Associations could not have filed
the above two petitions without complying with the provisions of Order I, Rule 8, C.P.C.
Reliance was placed by him on the case of Hussain Bakhsh v. Settlement Commissioner,
Rawalpindi and others (P L D 1970 S C 1), in which this Court, while dealing with the question,
whether the C.P.C. was applicable to Constitution petitions under Article 98 of the late
Constitution of Pakistan 1962, held that they were civil proceedings and as such were governed
by the provisions of the C.P.C. except those provisions which-have been specially excluded. It
may be observed that Order I, Rule 8, C.P.C. deals with riling of a representative suit and
contemplates obtaining of permission from the Court for filing of such a suit and service of the
notice by a public advertisement etc. It also provides that any person desiring to become a party
to such a suit, may apply for being impleaded as a party. In our view the provisions of Order I,
Rule 8, C.P.C. have no application to the instant cases as we are inclined to hold that this Court
can take cognizance of any matter under clause (3) of Article 184 of the Constitution if it
involves a question of public importance with reference to the enforcement of any Fundamental
Rights conferred by Chapter 1- of Part II at the behest of an individual person or a group of
persons represented through an association or a political party. The above question has been the
subject-matter of discussion in the case of Miss Benazir Bhutto v. Federation of Pakistan and
another (P L D 1988 S C 416), in which Muhammad Haleem, C J made the following
observation on the above aspect:--

"The plain language of Article 184(3) shows that it is open-ended. The Article does not say as to
who shall have the right to move the Supreme Court nor does it say by what proceedings the
Supreme Court may be so `" moved or whether it is confined to the enforcement of the
Fundamental Rights of an individual which are infracted or extends to the enforcement of the
rights of a group or a class of persons whose rights are violated. In this context the question
arises whether apart from the non-incorporation of sub-Article 1(a) and 1(c) of Article 199, the
rigid notion of an "aggrieved person" is implicit in Article 184(31 as because of the traditional
litigation which, of course, is of an adversary character where there is a lis between the two
contending parties, one claiming relief against the other resisting the claim. This rule of standing
is an essential outgrowth of Anglo-Saxon jurisprudence in which only the person wronged can
initiate proceedings of a judicial nature for redress against the wrong-doer. However, in contrast
to it, this procedure is not followed in the civil law system in vogue in some countries. The
rationale of this procedure is to limit it to the parties concerned and to make the rule of law
selective to give protection to the affluent or to serve in aid for maintaining the status quo of the
vested interests. This is destructive of the rule of law which is so worded in Article 4 of the
Constitution as to give protection to all citizens. The inquiry into law and life cannot, be confined
to the narrow limits of the rule of law in the context of constitutionalism which makes a greater
demand on judicial functions. Therefore, while construing Article 184(3), the interpretative
approach should not be ceremonious observance of the rules or usages of interpretation, but
regard should be had to the object and the purpose for which this Article is enacted, that is, this
interpretative approach must receive inspiration from the triad of provisions which saturate and
invigorate the entire Constitution, namely, the Objectives Resolution (Article 2-A), the
Fundamental Rights and the Directive Principles of State policy so as to achieve democracy,
tolerance, equality and social justice according to Islam."

13. Even otherwise, the above proceedings are in the nature of public interest litigation and,
therefore, in order to advance the cause of justice and public good, the power conferred on this
Court under clause (3) of Article 184 of the Constitution is to be exercised liberally unfettered
with technicalities. In this regard, reference may be made to the case of D.S. Nakara and others
v. Union of India A I R 1983 SC 130, on which Mr Samdani has heavily relied upon in support
of his case on merits and in which inter alia the following observations have been made in para.
64 of the judgment on the point in issue, which read as follows:--

"64. Locus standi of third petitioner was questioned. Petitioner No.3 is a Society registered under
the Societies Registration Act of 1860. It is a non-political non-profit and voluntary organisation.
Its members consist of public spirited citizens who have taken up the cause of ventilating
legitimate public problems. This Society received a large number of representations from old
pensioners, individually unable to undertake the journey through labyrinths of legal judicial
proceeds, costly and protracted and, therefore, approached petitioner No.3 which espoused their
cause. Objects for which the third petitioner-Society was formed were not questioned. The
majority decision of this Court in S.P. Gupta v. Union of India, 1981 (Supp) SCC 87: (A 1 R
1982 S C 149 at p. 194), rules that any member of the public having sufficient interest can
maintain an action for judicial redress for public injury arising from breach of public duty or
from violation of some provision of the Constitution or the law and seek enforcement of such
public duty and observance of such constitutional or legal provision. Third petitioner seeks to
enforce rights that may be available to a large number of old infirm retirees. Therefore, its locus
standi is unquestionable. But it is a point of academic importance because locus standi of
petitioners Nos.1 and 2 was never questioned."

14. The same view was taken by the Indian Supreme Court in an earlier case, namely, People's
Union for Democratic Rights and others v. Union of India and others (A I R 1982 S C 1473).
However, Ch. Ejaz Ahmed has relied on the case of Anjuman Araian, Bhera v. Abdul Rashid and
5 others PLD 1973 Lah. 500, in which a Division Bench of the Lahore High Court, while dealing
with a constitution petition under Article 98 of the late Constitution of Pakistan, 1962, inter alia
held that a petition under the above provision can be filed by a party and the party should be one
competent to maintain an action and since the Anjuman which had riled the above petition was
unregistered body, it should have complied with the procedure contained in Order I, Rule 8,
C.P.C. The above case is distinguishable from the present case for more than one reason, firstly,
in the instant case at least one of the Associations is a registered body, whereas the above
Anjuman which was the petitioner in the above referred case, was not a registered body,
secondly, the petition did not involve the enforcement of the Fundamental Rights under clause
(3) of Article 184 of the Constitution, and thirdly, the above-cited case did not fall within the
category of the public interest litigation.

15. Having dealt with the above legal preliminary objections, we may now revert to the merits of
the case. Before dealing with the respective contentions of the learned counsel for the parties, we
may first refer to the definition and raison d'etre of the term "pension" and the nature of right in
respect thereof. In this regard, reference may be made to Encyclopaedia Britannica, Volume 17,
1963 Edition, page 488, Corpus Juris Secundum, Volume 67, pages 763 and 764, Corpus Juris
Secundum, Volume 70, page 423, American Jurisprudence, Volume 40, pages 980 and 981, and
para. 29 from the judgment in the case of D.S. Nakara and others v. Union of India (supra),
which read as follows:--

Extract from Encyclopaedia Britannica Vol. 17 1963 Edition Page

488.---"Pensions are periodic payments, usually for the natural life of a person who retires
because of age or disability. Sometimes the term refers to, periodic payments to wives, widows
or children of a primary or deceased person or pensioner; occasionally, a pension will be
conveyed solely as an honour for conspicuous service or valour. Pensions are I provided by
Government in three guises: (1) as compensation or recompense to war veterans and families for
old age or for disability or death, usually from service causes; (2) as disability or old age
retirement benefits for civilian employees of government; (3) as social security payments for the
aged, disabled or deceased citizenry based on past employment history or subject to current
evidence of need. Pensions are also provided by many non-Governmental employers as a means
of protecting workers retiring for age or disability and for relieving the payroll of superannuated
personnel. They are sometimes provided by union-management welfare funds, associations or
trusteeships. Only rarely do employees in groups, associations or unions undertake their own
pension programme without employer or Government assistance."

Extract from Corpus Juris Secundum. Vol. 67. pages 763-764.---"Except as limited by the
Constitution the establishment of a pension system is within the scope of the legislative power.
The granting of pensions to public officers or public employees serves the public purpose, and is
designed to induce competent persons to enter and remain in the public' service or employment,
and to encourage the retirement from public service of those who have become incapacitated
from performing their duties as well as they might be performed by younger or more vigorous
persons. It has also been stated that a pension system is intended to promote efficient, continued
and faithful service to the employer and economic security to the employees and their
dependents, by an arrangement under which, by fulfilment of specified eligibility requirements,
pensions become property of the individual as a matter of right upon the termination of public
service."

Extract from Corpus Juris Secundum. Vol. 70, page 423.---"A pension is a periodical
allowance of money granted by the Government in consideration or recognition of meritorious
past services, or of loss or injury sustained in the public service. A pension is mainly designed to
assist the pensioner in providing for his daily wants, and it presupposes the continued life of the
recipient."

Extract from American Jurisprudence, Vo1.40, pages 980 and 981.---"The right to a pension
depends upon statutory provisions therefore, and the existence of such right in particular
instances is determinable primarily from the terms of the statute under which the right or
privilege is granted. The right to a pension may be made to depend upon such conditions. as the
grantor may see fit to prescribe. Thus, it has been held that it may be provided, in a general
Pension Act, that any person who accepts the benefits thereof shall forfeit his right to a special
pension previously granted."

Para. 29 from the judgment in the case of D.S. Nakara and others v. Union of India
(supra.---"Summing-up it can be said with confidence that pension is not only compensation for
loyal service rendered in the past, but pension also has a broader significance, in that it is a
measure of socio-economic justice which inheres economic security in the fall of life when
physical and mental prowess is ebbing corresponding to aging process and, therefore, one is
required to fall back on savings. One such saving in kind is when you give your best in the hey
day of life to your I employer, in days of invalidity, economic security by way of periodical
payment is assured. The term has been judicially defined as a stated allowances or stipend made
in consideration of past service or a surrender of rights or emoluments to one retired from
service. Thus the pension payable to a Government employee is earned by rendering long and
efficient service and therefore can be said to be a deferred portion of the compensation for
service rendered. In one sentence one can say that the most practical raison d'etre for pension is
the inability to provide for oneself due to old-age. One may live and avoid unemployment but
not senility and penury if there is nothing to fall back upon."

16. It seems that there are various kinds of pension schemes which are obtaining in various
countries of the world. However, the same can be divided into two broad categories, namely, (i)
Government Pension Schemes; (ii) Non-Government Pension Schemes. Each of the above
category can be sub-divided into a number of sub-categories according to the object for which a
particular scheme is designed. In the instant case, we are mainly concerned with the pension
schemes meant for public employees/public officers, who are known in the Sub-Continent as
civil servants.

A pension is intended to assist a retired civil servant in providing for his daily wants so long he is
alive in consideration of his past services, though recently the above benefit has been extended
inter alia in Pakistan to the widows and the dependent children of the deceased civil servants.
The raison d'etre for pension seems to be inability to provide for oneself due to old-age. The
right and extent to claim pension depends upon the terms of the relevant statute under which it
has been granted.

17. In the Sub-Continent during the British Rule since it was considered that the salary which a
-civil servant drew was a bounty, the same view was held in respect of the pension. However, the
above controversy has been settled inasmuch as this Court in more than one case; has held that
the concept that the salary which a civil servant drew was a bounty, was no longer the law of the
country. Reference may be made to the case of The State of Pakistan and another v. Mchrajuddin
(P L D 1959 S C (Pak.) 147). As regards the right to claim pension, the controversy has been set
to rest by this Court inter alia in the case of The Government of N-W.F.P. through The Secretary
to the Government of N.-W.F.P.. Communication and Works Departments, Peshawar v.
Muhammad Said Khan and another (P L D 1973 S C 514), wherein the following view has been
taken:--

"It must now be taker 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, grant 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 Article 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."

The same view has been taken by the Indian Supreme Court in the case of Deokinandan Prasad
v. State of Bihar and others (A I R 1971 S C 1409) and the case of State of Punjab and another v.
Iqbal Singh (A I R 1976 S C 667).

However, the right to claim pension has now been made subject to a statutory provision
contained in section 19 of the Civil Servants Act, 1973, which reads as follows:--

"19. Pension and gratuity.--(1) On retirement from service, a civil servant shall be entitled to
receive such pension or gratuity as may be prescribed.

(2) In the event of the death of a civil servant, whether before or after retirement, his family shall
be entitled to receive such pension, or gratuity, or both, as may be prescribed.

(3) No pension shall be admissible to a civil servant who is dismissed or removed from service
for reasons of discipline, but Governments 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 invalidated from service on the date of such dismissal or removal.

(4) If the determination of the amount of pension or gratuity admissible to a civil servant is
delayed beyond one month of the date of his retirement or death, he or his family, as the case
may be, shall be paid provisionally such anticipatory pension or gratuity as may be determined
by the prescribed authority, according to the length of service of the civil servant which qualifies
for pension or gratuity; and over-payment consequent on such provisional payment shall be
adjusted against the amount of pension or gratuity finally determined as payable to such civil
servant or his family."

18. From the above-quoted section 19 of the Civil Servants Act, 1973, it is evident that upon
retirement from service, a civil servant is entitled to receive such pension or gratuity as may be
prescribed. It has been candidly conceded by Mr. Samdani, learned Advocate Supreme Court
appearing for the petitioners that the pensioners have been paid and are being paid as per
prescribed Rules, but their grievance is that they have not been given the benefits of certain
increases in the pension amount.

In order to understand the controversy in issue, it may be pertinent to quote para. 3(b), (c) and (d)
of the grounds of C.P. No.15-R of 1989 and para.l-A of the written-statement filed by the Federal
Government to the same, para. 20 and para. (iii) of the Grounds in C.P. No.5-R of 1990, and
para.l(14) and 1(15) of the written-statement filed by the Federal Government to the above
petition, which read as follows:--

Extract from para. 3(b)_(c) and (d) of the grounds of C.P. No.15-R of 1989

"3(b) that the principle that pay and pension benefits, which are a deferred portion of the
compensation for service rendered, accrue to civil servants by virtue of the post they hold and
not according to the date on which a person joins or retires from services has been recognized by
the Government in that the 1966 Pension Rules, or the abolition of the cut-off point in 1985 and
indexation of pensions did not draw a distinction between those who retired before and those
who retired after the introduction of these changes. The Government similarly in revising pay
scales for civil servants does not discriminate between those who joined service before the
introduction of such revision in pay scales and those who joined thereafter. Therefore the
discrimination between pensioners who retired before a particular date and those who retired
later in the various aforesaid revisions of the Pension Rules is arbitrary and capricious.

(c) That the absurd and discriminatory effect of the aforementioned provisions can be illustrated
thus:--

"Suppose that A, B and C were born in June, 1926, July, 1926 and July, 1927. All of them joined
the CSS together and all of them retired in Grade 20. A would get a pension of Rs.3,668 on
retiring in June, 1986, whereas B on retiring in July, 1986; would get Rs.4,025 because of the
various improvements in pension benefits which were introduced for all those who retired after
1st July, 1987. C on retiring in July, 1987, would get an even higher pension of Rs,5,220 by
virtue of the revision in pay scales introduced with effect from 1st July, 1987.

(d) That the upward revision of pay and pensions by the Government has been in recognition of
the rising cost of living and escalating inflationary tendencies in the economy, and also decrease
in the economic value of rupee, and, therefore, the same considerations should apply to all the
pensioners irrespective of their dates of retirement."

Para. 1-A of the Written-Statement filed by the Federal Government to C.P. No.15-R of
1989:

"Para. 1(a) Denied. Pension is allowed to civil servants in accordance with the provisions of the
Civil Service Regulations (CSR). The CSR, inter alia, provides as under:--

"CSR-4. The Government of Pakistan reserve to themselves the right of changing the rules in
these Regulations regarding pay and acting allowances and leave and pension, from time to time
at their discretion, and of interpreting their meaning in case of dispute.

An officer's claim to pay and allowances is regulated by the rules in force at the time in respect
of which the pay and allowances are earned; to leave by the rules in force at the time the leave is
applied for and granted; and to pension by the rules in force at the time when the officer resigns
or is discharged from the service of Government."

"CSR-486.-- The term emoluments means the emoluments which the officer was receiving
immediately before his retirement and shall include--

(a) pay as defined in FR 9(21)(a)(i);

x x x x x x x x x x x x x x x

FR 9(21)(a)(i) `pay' means the amount drawn monthly by a Government servant as--

(i) the pay, other than special pay or pay granted in lieu of his personal qualifications which has
been sanctioned for a post held by him substantively or in an officiating capacity, or to which he
is entitled by reason of his position in a cadre."

X x x x x x x x x x x x x x

Therefore, pensions of retired Government servants are not recalculated on revision of pay scales
of serving employees:'

Para. 20 of the Grounds in C.P. No.5-R of 1990:

"(20) That the discriminatory aspect of P.O. No.5 of 1988 whereby the petitioner has been and
continues to be denied the benefit of Cost of Living Allowance payable under the said Order, is
liable to be declared void and quashed by this august Court in the exercise of its powers under
Article 184(3) of the Constitution to enforce fundamental rights contained in Chapter 1 of Part
11 of the Constitution, inter alia, on the following grounds."

Para. (iii) of the Grounds in C.P. No. 5-R of 1990

"(iii) That the. discriminatory effect of the impugned provision in P.O. No.5 of 1988 can be seen
from the following:

Maximum monthly pension (including indexation/CLA) of High Court Judge who retired before
1-7-1987:

________________________________________________________________________


From Indexation/CLA Aggregate amount

________________________________________________________________________

1-7-1985 @ 1.100 4620

1-7-1986 @ 1.135 4767
(inclusive of previous indexation)

1-7-1987 @ 4% on pension 4935

1-7-1988 @ 7% of gross pension 5229


Maximum monthly pension (including indextation/CLA) of High Court Judge who retired on or
after 1-7-1987:

_______________________________________________________________________

From Indexation/CLA Aggregate amount
________________________________________________________________________

1-7-1987 @ Rs.2,640 subject to 6,300
max. of Rs.6,300

1-7-1988 @ 7% of gross pension subject to 6,300
max. of Rs.6,300


Thus a Judge who retired before 1-7-1987 would get Rs.4,935 from 17-1987 and Rs.5,229 from
1-7-1988 as aggregate of pension and indexation as compared to Rs.6,300 in the case of a Judge
who retires on or after 1-7-1987. The difference is bound to further increase in case of any
subsequent upward revision of CLA, the benefit of which is similarly denied to a Judge because
of his having retired from a date earlier than that specified for the purpose of the grant of the
benefit."

Para. 1(14 and 1(15) of the Written-Statement riled by the Federal Government in C.P.
No.5-R of 1990:

"Under powers conferred on the President of Pakistan vide para.2 of the Fifth Schedule of the
Constitution (reproduced above) the serving Judges of High Court and Supreme Court were
allowed cost of living allowance in pay from 1-7-1987 pending revision of rates of pay.
Therefore, Judges retiring on or after 1-7-1987 have been allowed cost of living allowance in
pension under the order of the President. Judges retired prior to 1-7-1986 are entitled to pension
on rates provided in Fifth Schedule and indexation on pension (10% from 1-7-1985, 3/1/2 %
from 1-7-1986, 4% from 1-7-1987 and 7% from 1-7-1988) allowed by the President under power
conferred on him."

19. At this juncture, it may be pertinent to refer to the various increases made by the Government
in the form of revision of salaries and pensions in respect of civil servants and the Judges of the
High Courts:

(a) The following revisions have been made in respect of the civil servants/pensioners:--

(i) From 1-7-1966, pension raised from 50% to 60% of average pay during last 36 months of
service.

Finance Division's O.M. No.OB.2/12/63-IMP(1) dated 18-8-1966.

Applicable to all pensioners irrespective of date of retirement

(ii) New National Pay Scales introduced in 1972-73 effective from 1st March, 1972.

(i) Schedule ,to Finance Division's O. M. No. 1(2)-NG-Imp/71 dated 8-3-1972.

(ii) Finance Division's Office Memo. No.F.l (36) Gaz-Imp 1/73 dated 18
th
August, 1973.

(iii) Pension raised from 60% to 70% in February, 1977.

Applicable to all pensioners who retired on or after 1-3-1972

(iv) National Pay Scales revised in 1977.

Finance Division's O.M. No.F.l(1)-IMP-1/77 dated 28th April, 1977.

(v) From 1-7-1980 cut off point of Rs.1,000 (pension in excess of Rs.1,000 was to be halved)
raised to Rs.2,000.

Finance Division O.M. No. F.6(3)-Reg. (6)/79 dated 28th June, 1980.

Made applicable only to pensioners who retired after 30-6-1980.

(vi) From 1-7-1980, pensioners who retired before 1-7-1980 were given the following ad hoc
increase:--

Scale 1 to 10 Rs. 40 p.m.

Scale 11 to 16 Rs. 70 p.m.

Scale 17 to 18 Rs: 100 p.m.

Scale 19 to 20 Rs. 150 p.m

Scale 21 to 22 Rs. 200 p.m.

Finance Division's O.M. No.F.6(3)-Reg(6)/79 dated 28th June, 1980.

(vii) From 1-7-1981 National Pay Scales were revised raising maximum in all scales and giving
one advance increment.

Finance Division O.M. No.F.2(18)-R-3/81 dated 27th June, 1981.

(viii) From 1-7-1981 increase of 10% of gross pension granted to pensioners. (Max. Rs.200).

Finance Division O.M. No.F.12(1)-Reg(6)/81 dated 25th July, 1981.

(ix) From 1-7-1982 increase of 10% of gross pension (Max. Rs.200) granted to pensioners.

Finance Division O.M. No.F.2(2)-85/82 dated 17th June, 1982, identical increase given to
serving officials.

(x) From 1-7-1983 National Pay Scales revised raising salaries in some cases by 50%.

Finance Division O.M. No.l(1) IMP/83 dated 18th August, 1983.

(xi) From 1-7-1983 increase of 10% (Max. Rs.200) of gross pension granted to pensioners.

Finance Division O.M. No.F.12(13)-Reg(6)/82(B) dated 18th August, 1983.

(xii) From 1-7-1983 cut off point was raised from Rs.2,000 to Rs.2,500.

Finance Division O.M.No.F.12(13)-Reg(6)/82(C) dated 18th August, 1983.

Pensioners who retired prior to 1-7-1983 were excluded.

(xiii) From 1-7-1983 cut off point was abolished. All pensioners. irrespective of date of
retirement, were allowed to draw pension without any reduction.

Finance Division O.M. No.10(7)-Reg(6)/85 dated 25th June, 1985.

(xiv) From 1-7-1985 commuted value of 1/4 of pension was restored after completing the period
for which commuted value was paid. Applicable to all pensioners.

Finance Division O.M. No.F.10(8)-Reg(6)/85 dated 25th June, 1985.

(xv) From 1-7-1985 all pensions indexed at the rate of 1.135 for pensions up to Rs.1,500.
Finance Division's Office Memo. No.F.l(1)-Reg(6)/85 dated 26-6-1985. Identical indexation
sanctioned for serving officials.

(xvi) From 1-7-1986 pension allowed to be calculated on last pay drawn instead of average pay
during last 12/36 months.

Applicable only to pensioners retiring after 30 6 1986

Finance Division O.M. No.F.16(4)-Reg(6)/86 dated 1st July, 1986.

(xvii) From 1-7-1986 additional benefit of 2% of pension for each year of service exceeding 30
years subject to a maximum of 10% of pension sanctioned.

Applicable only to pensioners who retired after 30-6 1986

Finance Division O.M. No.F.11(2)-Reg(6)/86, dated 1st July, 1986.

(xviii) From 1-7-1986 pensions indexed at the rate of 18% for pensions up to Rs.1,500 and
13.5% for pensions exceeding Rs.1,500.

Finance Division O.M. NO.R.11-6(A) dated 1-7-1986.

(xix) From 1-7-1987 National Pay Scales revised awarding increases in all Scales.

Finance Division O.M. No.F.l(7)/IMP.11/87 dated 1-7-1987.

(xx) From i-7-1987 pensions indexed at the rate of 4%.

Finance Division O.M. No.F.11(4)-8.6/87 dated 1-7-1987.

(xxi) From 1-7-1988 minimum gross pension fixed at Rs.300 p.m.

Finance Division O.M. No.F.9(12)Reg(6)/88-A dated 1-7.1988.

(xxii) From 1-7-1988 pensions indexed at the rate of 7%.

Finance Division O.M. No.F.9(10)/Reg(6)/88 dated 1-7-1988.

Identical indexation granted to serving officials.

(Applicable to all pensioners).

(xxiii) From 1-7-1990 ad hoc relief of 5% of pension granted to pensioners.

Finance Division O.M. No.F.6(7)/Reg(6)/90 dated 15-7-1990.

(b) Through the following President Orders/notifications, the revision in pay and pension of the
Judges of the Superior Courts were made. Since the dispute relates to the pension of a retired
High Court Judge, reference herein below has been made to revision of pay and pension of the
High Court Judges:--

(i) Constitution (Amendment) Order, 1983. (P.O.No.4 of 1983).

The pension of a High Court Judge was revised with effect from 1-7-1981, the maximum being
raised to Rs.3,600 per month in place of Rs.1,750, and minimum Rs.2,100 in place of Rs.1,000.

(ii) The High'-Court Judges (Leave, Pension and Privileges) Order, 1983. (P.O. No.5 of 1983).

The above amendments in the High Court Judges (Leave, Pension and Privileges) Order, 1983,
were made as to give effect to the above Constitutional amendments in the Fifth Schedule to the
Constitution by above P.O. No.4 of 1983.

(iii) Constitution (Amendment) Order, 1985 (P.O. No.6 of 1985).

By the above P.O. the salary and the pension inter alia of the Judges of the High Court were
revised inasmuch as for the figure of Rs.5,800, the figure of Rs.7,200, for figure Rs.5,000, the
figure Rs.6,500, for the figure Rs.2,100, figure Rs.2,400, and for the figure Rs.3,600, the figure
Rs.4,200, were substituted.

(iv) High Court Judges (Leave, Pension and Privileges) Order, 1970. (P.O. No.1 of 1986).

The pension allowed was indexed in relation to the cost of living at the rate of 1.100 with effect
from 1-7-1985.

(v) Notification No.F.2(1)/86-AII(PT)A, dated 3-12-1986.

Under the latter notification the pension was further indexed at the rate of 1.135 (inclusive of the
previous indexation) with effect from 1-7-1986.

(vi) The High Court Judges (Leave, Pension and Privileges) (Amendment) Order, 1988. (P.O.
No.5 of 1988).

By this P.O. cost of living allowance in addition to the pension was allowed to a High Court
Judge who retires on or after the 1st day of July, 1987. Under the above P.O. C.LA. admissible to
a High Court Judge was Rs.2,640 subject to the maximum aggregate amount of such allowance
and pension of Rs.6,300.

(vii) Notification No.F.5(2)/88-AII) dated 10-10-1988.

Under the above notification, further indexation was allowed at the rate of 7% of gross pension
with effect from 1-7-1988 to all the Judges of the High Court who retired on or before
30-6-1988.

20. A perusal of the above-quoted revisions indicate that the benefit of the revisions in the
pension referred to hereinabove at S. Nos. (i) (iii), (vi), (ix), (xi), (xiii), (xiv), (xv), (xviii), (xx),
(xxi), (xxii) and (xxiii) of above para. 19(a) was extended to all the pensioners irrespective of the
date of retirement. It may also be pointed out that the benefit of raising the amount of cut off
point from Rs.1,000 to Rs.2,000 with effect from 1-7-1980 and from Rs.2,000 to Rs.2,5Q0 with
effect from 1-8-1983 referred to hereinabove at S. Nos. (v) and (xii) of para. 19(a) was not
extended to the pensioners who retired prior to the above two specified dates and, therefore, they
could have a legitimate grievance on the ground of discrimination. However, this anomaly and
the discriminatory treatment was rectified by abolishing the cut off point with effect from
1-7-1985 referred to hereinabove at S. No.(xiii) of above para. 19(a), which benefit was extended
to all the pensioners irrespective of the date of retirement.

It may also be noticed that with effect from 1-7-1986 an additional benefit of 2% of pension for
each year of service exceeding 30 years subject to a maximum of 10% pension sanctioned was
given to the pensioners, who retired after 30-6-1986 referred to hereinabove at S. No.(xvii) of
para.19(a). According to the list of documents furnished by Mr. Samdani, this benefit has not
been extended to the pensioners who retired prior to 1-7-1986. It may further be noticed that new
National Pay Scales were introduced with effect from 1-3-1972 and were revised in April, 1977,
then in June, 1981 with effect from 1-7-1981, then with effect from 1-7-1983 and then with
effect from 1-7-1987, referred to hereinabove at Serial Nos. (ii), (iv), (vii), (x) and (xix).

Whereas the case of the petitioner in C.P. No.5-R of 1990 is that he has been given benefit of all
the above revisions except that he has been denied benefit under P.O. No.5 of 1988, which
benefit was extended inter alia to the High Court Judges, who retired on or after 1-7-1987.

21. The main grievance of the retired civil servants/pensioners, which has been canvassed at the
Bar by Mr. Samdani is that the pensioners have not been given the benefit of the introduction of
new National Pay Scales with effect from 1-3-1972 and thereafter its revision from time to time.
According to him as the pension is to be computed on the basis of pay, any increase in pay scales
enhances pension of those pensioners, whose pension is to be calculated on the basis of the
revised pay scales. His further submission was that since the pension scheme enforced in
Pakistan is salary related, any revision in the pay scales should also be made applicable to the
pensioners as the reason for revision of pay scales in the rising cost of living and escalating
inflationary tendencies in the economy and also decrease in the economic value of rupee, which
reasons do not affect the serving civil servants alone, but affect more adversely the retired civil
servants/the pensioners. It was also urged by him that providing certain date for qualifying for
certain benefits under the pension scheme is arbitrary and discriminatory and is violative of
Article 25 of the Constitution. According to him, all the civil servants who held equal rank and
had equal length of service, should get same amount of pension irrespective of their dates of
retirement.

22. On the other hand, Mr. Aziz A. Munshi, learned Attorney-General, has submitted that there
has not been any discriminatory treatment in granting benefits to the pensioners as to attract
Article 25 of the Constitution and that the legal right to receive pension is relatable to the date of
retirement as per Civil Service Regulation 4 referred to hereinabove in para. 18 and that the
revision of the pay scales in fact is a benefit granted to the serving civil servants and not to the
pensioners.

23. Mr. Samdani has relied upon the following passage from Corpur Juris Secundum, Volume
67:--

"A pensioner ordinarily has no right to a specific sum, and the amount payable to him is subject
to change, by way of decrease or increase, in accordance with the rank of the pensioner at the
time of retirement, or in accordance with a change in statute. Where a pension statute states that
the pension shall be a percentage of the average salary attached to the rank held by an employee
before retirement, it is construed as providing for a fluctuating pension which increases or
decreases as salaries paid to active employees increase or decrease."

The above observation seems to be based on the judgment in the case of George G. Eichelberger
et al v. City of Berkeley et al and Lewis Wescott v. City of Berkeley et al 46 C. 2d 182; 293 p.2d
1 decided by an appellate Court of a State of U.S.A. in an appeal against a judgment of the
Superior Court of Alameda County arising out of claim brought by the pensioners who had
served as firemen. The facts were that the defendant passed Ordinance No:?188-N.S. effective
from April 28, 1938. It authorised retirement and pension for members of its Fire Department,
who had theretofore, served or who thereafter served for a specified number of years. For those
retiring, the pension was to be one-half of the average salary attached to the rank or ranks held
during the three years immediately preceding the date of retirement and in the case of widow of a
fireman killed in line of duty, the percentage was to be one-third. Section 24 of that Ordinance
provided that `The, pensions granted under the terms of this Ordinance shall not increase nor
decrease with any changes in salary subsequent to the date of the granting of the pension for the
rank or ranks upon which the pension was based nor shall any changes of title or rank in the
active service affect an increase or reduction in the existing pension'. By amending Ordinance
No.2254-N.S. which came into effect from 20-4-1939, the. above portion of the above section
which prohibited increase or decrease in the pension on account of increase or decrease in the
salary, was deleted. The question arose, whether the pensioners who retired prior to 20-4-1939
were entitled to the benefit of the above amendment. The appellate Court has held that there was
no reason not to extend the benefit of the above amendment to those pensioners who retired prior
to 20-4-1939. Incidentally I may mention that in 19:14 again amendments were made, whereby
the position obtaining prior to the enactment of the above amending Ordinance No.2254-N.S.
was restored as is indicated from the note given at the bottom of page 184 of the above report.
The reasoning in the above judgment seems to be in line which I am inclined to adopt, namely,
that the pensioners inter se cannot be discriminated on the basis of date of retirement.

He has also extensively referred to and relied upon the judgment of the Indian Supreme Court m
the case of D.S. Nakara and others v. Union of India (supra). It may be pertinent to refer the facts
of the above case and the controversy which was the subject-matter of the above decision. The
facts were that on 25-5-1979 the Government of India, Ministry of Finance,, issued an Office
Memorandum, whereby the formula for computation of pension was liberalized but made it
applicable to Government servants who were in service on 31-3-1979 .and retired from service
on or after that date. The formula introduced a slab system for computation of pension. The,
above pension scheme was also made applicable to the defence personnel who became/become
non-effective on or after 1-4-1979. Consequently those who retired prior to the specified date,
were not entitled to the benefit under the above liberalized pension formula: The above action of
the Government of India to confine the benefit of the above pension scheme to the civil
servants/the defence personnel who retired after the specified date, was impugned by some
pensioners as well as by a Society, registered under the Societies Registration Act, of which
object was to ventilate legitimate public problems. The question before the Indian Supreme
Court for consideration was as under:--

"Do pensioners entitled to receive superannuation or retiring pension under Central Civil
Services (Pension) Rules, 1972 (1972 Rules for short) form a class as a whole? Is the date of
retirement a relevant consideration for eligibility when a revised formula for computation of
pension is ushered in and made effective from a specified date? Would differential treatment to
pensioners related to the date of retirement qua the revised formula for computation of pension
attract Art.14 of the Constitution and the element of discrimination liable to be declared
unconstitutional as being violative of Art.14?"

D.A. Desai, J., who delivered the judgment, after tracing the historical background of the pension
and its raison d'etre (i.e. reason for being or justification for existing), inter alia made the
following observations, on which Mr. Samdani has heavily relied upon:--

"Proceeding further, this Court observed that where all relevant considerations are the same,
persons holding identical posts may not be treated differently in the matter of their pay merely
because they belong to different departments. If that can't be done when they are in service, can
that be done during their retirement? Expanding this principle, one can confidently say that if
pensioners form a class, their computation cannot be by different formula affording unequal
treatment solely on the ground that some retired earlier and some retired later."

-----------------------------------------------------------------

-----------------------------------------------------------------

----------------------------------------------------------------

"Now if pension as we view it, is some kind of retirement wages for past service, can it be denied
to those who retired earlier, revised retirement benefits being available to-future retirees only.
Therefore, there is no substance in the contention that the Court by its approach would be
making the scheme retroactive, because it is implicit in theory of wages."

The Indian Supreme Court concluded that the Government of India's decision of introducing an
arbitrary eligibility criteria; `being in service and retiring subsequent to the specified date' for
being eligible for the liberalized pension scheme, was violative of Article 14 of the Indian
Constitution (which corresponds to Article 25 of the Constitution). It was further held that the
benefit of the above liberalized scheme would be available to all the - pensioners on the date of
its enforcement irrespective of the date of retirement.

24. IC may be observed that even from the above quoted extract from the Corpus Juris
Secundum, Volume 67 referred to hereinabove in para 23, it is evident that the right and extent
of the pension amount depends on the language of the relevant statute or the rules framed there-
under. In order to link revision of pension amount with the revision of pay scales, there should be
a statutory provision to that effect. The Civil Servants Act does not contain any such provision,
in the contrary, section 19 of the latter Act expressly provides that on retirement from service, a
civil servant shall be entited to receive such pension or gratuity as may be prescribed. The above
entitlement has been prescribed in the form of the aforesaid C.S.R. 4, which inter alia lays down
that an officer's claim to pay and allowances is regulated by the rules in force at the time in
respect of which the pay and allowances are earned; to leave by the rules in force at the time the
leave is applied for and granted; and to pension by the rules in force at the I time when the
officer resins or is discharged from the service of Government (Underlining is of ours). In this
view of the matter, the principle enunciated in the above quoted passage from Corpus Juris
Secundum, Volume 67, is not applicable to the present case. The above judgment of the Indian
Supreme Court also does not lay down the proposition that if pay scales of serving civil servants
are revised, the pension of the civil servants who have already retired by then, is to be
recomputed on the basis of the revised pay scales. The ratio of the above cited case seems to be
that pensioners as a whole are one class and are entitled to be treated alike and any
discriminatory treatment by specifying a qualifying date, is violative of Article 14 of the Indian
Constitution. To reinforce the above conclusion, it has been highlighted that the persons holding
identical posts having same length of service, cannot be discriminated while in service, then how
they can be discriminated on the basis of date of retirement upon retirement. Mr. Samdani has
candidly conceded that it is so, but submitted that this Court should break a new ground by
linking revision of pension with the revision of pay scales. In our view, a new ground or a new
avenue can be explored on the basis of some legal principle and not merely on the ground what
appears to be just and equitable.

25. As pointed out hereinabove earlier that the case of the petitioners is not 'founded on the
ground of violation of any provision of the Civil Servants Act or the relevant statutory rules but
is grounded on the violation of Article 25 of the Constitution. It would, therefore, be
advantageous to reproduce here in below the above Article, which reads as follows:--

"25. (1) All citizens are equal before law and are entitled to equal protection of law.

(2) There shall be no discrimination on the basis of sex alone.

(3) Nothing in. this Article shall prevent the State from making any special provision for the
protection of women and children."

It may be noticed that above-quoted clause (1) enshrines the basic concept of religion of Islam.
However, this is now known as the golden principle of Modern Jurisprudence, which enjoins that
all citizens are equal before law and are entitled to equal protection of law. The above clause
corresponds to 14th Constitutional Amendment of the American Constitution, which inter alia
provides that `no State shall deny to any person within its jurisdiction the equal protection of law'
However, the above clause does not prohibit treatment of citizens by a Stage on the basis of a
reasonable classification. The question, therefore, arises what should be the basis or criterion for
classification as to avert violation of the above clause. In this regard, it may be pertinent to refer
the following cases of this Court and of the Indian Supreme Court:--

(i) Brig. (Retd.) F.B. Ali and another v. The State P L D 1975 SC 506;

in which this Court considered the scope of Fundamental Right No.15 of the late Constitution of
1962 in context with Article 25 of the Constitution and Hamoodur Rehman, C.J. who delivered
the leading judgment, made the following observations:--

"Equal protection of the laws does not mean that every citizen, no matter what his condition,
must be treated in the same manner. The phrase `equal protection' of the laws means that no
person or class of persons shall be denied the same protection of laws which is enjoyed by other
persons or other class of persons in like circumstances in respect of their life, liberty, property, or
pursuits of happiness. This only means that persons, similarly situated or in similar
circumstances, will be treated in the same manner. Besides this, all law implies classification,
f6r, when it applies for' a set of circumstances, it creates thereby a class and equal protection
means that this classification should be reasonable. To justify the validity of a classification, it
must be shown that it is based on reasonable distinctions or that it is on reasonable basis and rests
on a real or substantial difference of distinction. Thus different laws an validly be made for
different sexes, for persons in different age groups e.g. minors or very old people; different taxes
may be levied from different classes of persons on the basis of their ability to pay. Similarly,
compensation for properties acquired may be paid at different rates to different categories of
owners. Such differentiation may also be made on the basis of occupations or privileges or the
special needs of a particular locality or a particular community. Indeed the bulk of the special
laws made to meet special situations come within this category. Thus, in the field of criminal
justice, a classification may well be made on the basis of the heinousness of the crime committed
or the necessity of preventing certain anti-social effects of a particular crime. Changes in
procedure may equally well be effected on the ground of the security of the State, maintenance
of public order, removal of corruption from amongst public servants or for meeting an
emergency."

(ii) Islamic Republic of Pakistan through Secretary, Ministry of Interior and Kashmir Affairs,
Islamabad v. Abdul Wali Khan, M.NA. former President of Defunct National Awami Party P L
D 1976 SC 57;

In the above case, Hamoodur Rehman, CJ. while dealing with the reference made by the
Government against the National Awami Party, touched upon the question of equal protection of
law and made the following observations:-

" ....What is unreasonable in one given set of circumstances may well be reasonable in another
different set of circumstances. In order to test the reasonableness of such restrictions, therefore,
no general standard exists. It will depend upon a variety of circumstances including the interest
and urgency of the action proposed and the nature of the safeguard, if any, provided to prevent
possibilities of abuse of power. The investment of arbitrary power in the executive to put to an
end to the existence of a political party on the basis of its own satisfaction which may or may not
be capable of being proved in a Court of Law may well be an unreasonable restriction having
regard to the importance of the right of association guaranteed by the Constitution. The
safeguard that such a declaration by the Executive will be subject to the decision of the Supreme
Court is, however, a sufficient safeguard of the interest of the political party and adequately
protects it from being dealt with either arbitrarily or whimsically or out of political vengeance.
This can, in no sense, be considered to be an unreasonable restriction:'

(iii) Mst. Aziz Bepum and others v. Federation of Pakistan and others P L D 1990 SC 899;

in which, this Court has dilated upon Article 25 of the Constitution and observed as follows:--

"Article 25. also is 4,Qt attracted to the claim made by the petitioners in the Constitution petition.
It relates to equality of citizens before law and the equality enjoined by the Constitution permits
reasonable classification and the adjudication by the Shariat Appellate Bench, recognises and
gives effect to the categories where the rights are to be protected as a class and not so protected
as a class. There is no element of discrimination or arbitrariness in the same. The decision
follows an elaborate line of reasoning for giving effect to or for declaring a portion of the law or
the whole of it repugnant to the Injunctions of Islam."

(iv) Shrin Munir and others v. Government of Punjab through Secretary Health, Lahore and
another P L D 1990 SC 295;

In the above case this Court, while declaring reservation of lesser seats for girls in Medical
Colleges of Punjab as compared to boys as violative of Article 25 of the Constitution, observed
as follows as to reasonable classification:---

"17. The harmony and the consistency between Article 25 and Article 22 of the Constitution is
obvious notwithstanding the generality of the one and the particularity of the other, only if we
keep this important fact in view that `classification based on intelligible and reasonable standards
is permissible within the framework of Article 25 on the ground of sex and sex alone. If in
Article 22 the word `sex' had also been introduced then there would nave occurred a conflict
instead of consistency between Article 25.and Article 22 inasmuch as the classification
permissible under Article 25 would have become impermissible in educational institutions with
regard to admission therein. The girls would have sought admission in institutions exclusively
reserved for boys and the boys would have sought admission in institutions reserved exclusively
for girls unless it was shown as a fact that the institution for girls was kept exclusive for the
purpose of and within the limitation of clause (3) of Article 25. As the two Articles 25 and 22
stand at present, the general rule is that `sex' cannot be' adopted as the sole criteria for
discrimination except for advancing the cause of women and children as permitted by clause (3)
of Article 25. On that principle of reasonable and intelligible classification it is possible to have
educational institutions exclusively catering to the needs of the male population land also
educational institutions catering exclusively the female population in our context and in our
society. However, when an educational institution is thrown open for co-education, as has been
done in the case of six medical institutions excluding Fatima Jinnah Medical College, then a
further restriction of numbers on the ground of sex is permissible only as a protective measure of
women and children but in no case so as to protect comparatively less meritorious boys to the
prejudice and exclusion of women. This amounts to gross violation of constitutional mandate:'

(v) Charanjit Lal Chowdhury v. The Union of India and Others (A I R 1951 SC 41);

in which Fazl AIL J. of the Indian Supreme court, while dealing with Article 14 of the Indian
Constitution, made the following observations:-

"Having summed up the law in this way, the same learned author adds:

"Many different classifications of persons have been upheld as constitutional. A law applying to
one person or one class of persons is constitutional if there is sufficient basis or reason for it.-

There can be no doubt that Article 14 provides one of the most valuable and important
guarantees in the Constitution which should not be allowed to be whittled down, and, while
accepting the statement of Professor Willis as a correct exposition of the principles underlying
this guarantee, I wish to lay particular emphasis on the principle enunciated by him that any
classification which is arbitrary and which is made without any basis is no classification and a
proper classification must always rest upon some difference and must bear a reasonable and -just
relation to the things in respect of which it is proposed."

(vi) Shri Ram Krishna Dalmia and others v. Shri Justice S.R. Rendolkar and others (A.I.R.1958
S.C. 538);

In the above case; the Indian Supreme Court repelled the contention that the reference made by
the Government for holding enquiry against the appellant-company under section 3 of the
Commissions of Enquiry Act, 1952, was violative of Article 14 of the Indian Constitution.

(vii) The Anant Mills Co. Ltd. v. State of Gujarat and others [(1975) 2 S C C 175);

In the above case section 406(2) (e) of the Bombay Municipal Corporation Act, which was
amended by Gujarat Act No.5 of 1970, and which provided making deposit of the tax amount in
dispute as a precondition for filing of an appeal, was impugned as being violative of Article 14
but the Indian Supreme Court held that it was not so and that the provision has not the effect of
making invidious distinction or creating two classes with the object of meting out differential
treatment to them but it only spelled out the consequences flowing from the omission and default
of a person.

(viii) State of Kerala and anoth8r v. N.M. Thomas and others [(1976) 2 S C C 310);

In the above case inter alia the question before the Indian Supreme Court was, whether a rule
whir provides that given the necessary requisite merit, a member of the backward class shall get
priority to ensure adequate representation, was violative of Articles 14 and 16 of the Indian
Constitution. It was held that the classification of employees belonging to scheduled castes and
scheduled tribes for allowing them as extended period of two years for passing the specified test
for promotion is a just and reasonable classification having rationale nexus to the object of
providing equal opportunity for all citizens in matters relating to employment or appointment of
public office.

(ix) In re: Special Courts Bill, 1978 (Special Reference No.l of 1978) (A I R 1979 SC 478):

In the above case also inter alia Article 14 of the Indian Constitution 'was the subject-matter
before the Indian Supreme Court. In this regard, the following observations are pertinent:-

4. The principle underlying the guarantee of Article 14 is not that the same rules of law should be
applicable to all persons within the Indian territory or that the same remedies should be made
available to them irrespective of differences of circumstances. It only means that all persons
similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed.
Equal laws would have to be applied to all in the same situation, and there should be no
discrimination between one person and another if as regards the subject-matter of the legislation
their position is substantially the same."

(x) Ajay Hasia etc. v. Khalid Mujib Sehravardi and others (A I R 1981 SC 487);

in which the question was, whether the procedure adopted by the Society for granting admission
to its educational institutions not to take into account marks obtained by the candidate in the
qualifying examination but to regulate admission by relying on entrance test was violative of
Article 14 of the Indian Constitution, it was held it was not so. However, it was also held that
allocation of a high percentage as 33-1/3 of the total marks for the oral interview, was arbitrary
and consequently, allocation of more than 15% marks was struck down as constitutionally
invalid.

(xi) D.S. Nakara and others v. Union of India (A.I.R. 1983 S.C. 130);

in which the Indian Supreme Court made the following observation as to the reasonable
classification with reference to Article 14 of the Indian Constitution:-

"The fundamental principle is that Art. 14 forbids class legislation but permits reasonable
classification for the purpose of legislation which classification must satisfy the twin tests of
classification being founded on an intelligible differentia which distinguishes persons or things
that are grouped together from those that are left out of the group and that differentia must have a
rational nexus to the object sought to be achieved by a statute in question."

26. From the above cited cases the following principles of law are deducible:-

(i) that equal protection of law does not envisage that every citizen is to be treated alike in all
circumstances, but it contemplates that persons similarly situated or similarly placed are to be
treated alike;

(ii) that reasonable classification is permissible but it must be founded on reasonable distinction
or reasonable basis;

(iii) that different laws can validly be enacted for different sexes, persons in different age groups,
persons having different financial standings, and persons accused of heinous crimes;

(iv) that no standard of universal application to test reasonableness of a classification can be laid
down as what may be reasonable classification in a particular set of circumstances, may be
unreasonable in the other set of circumstances;

(v) that a law applying to one person or one class of persons may be constitutionally valid if
there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded
on any rational basis is no classification as to warrant its exclusion from the mischief of Article
25:-

(vi) that equal protection of law means that all persons equally placed be treated alike both in
privileges conferred and liabilities imposed;

(vii) that in order to make a classification reasonable, it should be based--

(a) on an intelligible differentia which distinguishes persons or things that are grouped together
from those who have been left out;

(b) that the differentia must have rational nexus to the object sought to be achieved by such
classification.

27. The learned Attorney-General has also referred in extenso certain passages from V.N.
Shukla's Constitution of India, 7th Edition. Suffice to refer a passage wherein the learned author
has inferred following principles as to classification with reference to various judgments of the
Indian Supreme Court on Article 14 of the Indian Constitution:-

"(a) A law may be constitutional even though it relates to a single individual if, on account of
some special circumstances, or reasons applicable to him and not applicable to others, that single
individual may be treated as a class by himself.

(b) There is always a presumption in favour of the constitutionality of an enactment and the
burden is upon him who attacks it to show that there has been a clear transgression of the
constitutional principles. The person, therefore, who pleads that Article 14 (corresponding to Art.
25 of Pakistan Constitution) has been violated, must make out that not only has he been treated
differently from others but he has been so treated from persons similarly circumstanced without
any reasonable basis and such differential treatment hag been unjustifiably made. However, it is
extremely hazardous to decide the question of the constitutional validity of a provision on the
basis of the supposed existence of facts by raising a presumption. Presumptions are resorted to
when the matter does not admit of direct proof or when there is some practical difficulty to
produce evidence to prove a particular fact.

(c) It must be presumed that the Legislature understands and correctly appreciates the need of its
own people, that its laws are directed to problems made manifest by experience, and that its
discriminations are based on adequate grounds.

(d) The Legislature is free to recognise the degrees of harm and may confine its restriction to
those cases where the need is deemed to be the clearest.

(e) In order to sustain the presumption of constitutionality, the Court may take into consideration
matters of common knowledge, matters of common report, the history of the times and may
assume every state of facts which can be conceived existing at the time of legislation.

(f) While good faith and knowledge of the existing conditions on the part of the Legislature are
to be presumed, if there is nothing on the face of the law or the surrounding circumstances
brought to the notice of the Court on which the classification may reasonably be regarded as
based, the presumption of the constitutionality cannot be carried to the extent of always holding
that there must be some undisclosed and unknown reasons for subjecting certain individuals or
corporations to hostile or discriminating legislation.

(g) A classification need not be scientifically perfect or logically complete.

(h) The validity of a rule has to be judged by assessing its overall effect and not by picking up
exceptional cases. What the Court has to see is whether the classification made is a just one
taking all aspects into consideration."

28. The question which requires consideration is, as to whether in the instant cases classification
is founded on an intelligible differentia which distinguishes one group of pensioners from others
and whether the above differentia has rational nexus to the object or raison d'etre sought to be
achieved. According to Mr. Samdam, civil servants who have already retired and who will retire
in future should be treated as a class and that there cannot be any sub-classification within the
above class on the basis of date of retirement, as it would not fall within permissible reasonable
classification. On the other hand, Mr. Aziz A. Munshi learned Attorney-General, has urged that
various groups of pensioners are to be classified on the basis of applicability of relevant pension
rules. We are unable to subscribe to Mr. Samdani's above submission that civil servants who
have already retired and who will retire in future, are to be treated as one class nor we are
inclined to agree with the above submission of the learned Attorney-General. In our view,
reasonable classification will be that all the pensioners as a group are to be treated as one class
and all serving civil servants as a group are to be treated as a separate class. In this view of the
matter, if the pay scales of serving civil servants are revised, the civil servants, who have by then
already retired cannot have any legitimate grievance to agitate for notional revision of their pay
scales for re-computing their pension amounts for any purpose as the pension amount is to be
computed as above C.S.R. 4 on the basis of the pension rules in force on the date of retirement of
a civil servant. The pension rules contain formula as to the method of computation of pension
amount with reference to the salary drawn by him till the date of retirement and, therefore, there
cannot be uniformity in the amounts of pension among the civil servants despite of having equal
rank and equal length of service, if they retire not on one date but on different dates and
in-between such dates pay scales are revised. However, a pensioner may have a legitimate
grievance if he is not treated alike with the other pensioners, for example, if the
Legislature/Government increases pension amount by 10%, say on 1-1-1991, but provides that
this benefit will be available to those pensioners who have retired on or after 1-1-1989. In other
words, the pensioners who had retired prior to 1-1-1989 are deprived of the above benefit. This
would be violative of Article 25 of the Constitution unelss the Government can demonstrate that
the above sub-classification within the class of pensioners is based on an intelligible differentia
and that the latter has rational nexus to the object sought to be achieved by the relevant
classification under the statute or statutory rule.

29. The question, whether a specked date can be the basis of classification, has been the
subject-matter of judicial pronouncements. In this regard, it may be pertinent to refer to the
following cases:--

(i) D.R. Nim v. Union of India (A I R 1967 SC 1301);

in which the Indian Supreme Court, while construing Rule 3 of the Indian Police Service
(Regulation of Seniority) Rules, 1954, held that date of 19-5-1951 fixed by the Government for
reckoning the service of promoted Indian Police Officers was invalid since the same had nothing
to do with the application of R.3 (3) provisos 1 and 2 of the above Regulation.

(ii) Jaila Singh and another v. State of Rajasthan and others (A I R 1975 SC 1436);

In the above case, the Indian Supreme Court, while construing Condition No.3 of the Rajasthan
Colonisation (Rajasthan Canal Project) which provided that pre-1955 tenants would be entitled
to the allotment of more land as compared to the post-1955 temporary tenants, held that the
difference in the period of occupation between pre-1955 and post-1955 tenants is not of such an
extent as to justify allotment of larger extent of land to the pre-1955 tenants than to the post-1955
tenants nor for the discrimination among pre-1955 tenants between those holding more than 25
bighas and those holding less than 25 bighas.

(iii) The reference to the case of D.S. Nakara and others v. Union of India (supra) may again be
made as in the above case, the Indian Supreme Court has inter alia held that the Government
action to specify a date for qualifying for the benefit under the slab pension scheme was arbitrary
and unconstitutional as it was not covered by reasonable classification.

(iv) Union of India and another v. Messrs Parameswaran Match Works etc. (A.I.R. 1974 S.C.
2349);

In the above case, the Indian Supreme Court was considering the vires of a notification issued
under Rule 8 of the Central Excise Rules (1954) providing for concessional rate of duty on match
boxes only to those manufacturers who had filed declarations as required by the above proviso
before 4-9-1967. It was held that the choice of the above date for granting concessional rate of
duty was not discriminatory as to violate Article 14 of the Constitution as the purpose of the
notification was to prevent the larger units who were producing and clearing more than 100
millions matches in the financial year 1967-68 and which could not have filed the declarations,
from splitting up into smaller units in order to avail of the concessional rate of duty by making
declarations subsequently. It was further held that the choice of a date as a basis for classification
cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice
unless it is shown to be capricious or whimsical in the circumstances.

(v) D.G. Gouse & Co. (Agents) Pvt. Ltd. v. State of Kerala and another (A I R 1980 SC 271);

In the above case, the question before the Indian Supreme Court was, whether the choice of
1-4-1973 as the date for imposition of tax under the Kerala Building Tax Act (7 of 1975) was
discriminatory and violative of Article 14 of the Indian Constitution. The Indian Supreme Court
reiterated the principle enunciated by it in the above case of Union of India and another v.
Messrs Parameswaran Match Works etc. referred to hereinabove at S. No. (iv) and held that in
view of the factual aspect of the case referred to therein, the above dote was not discriminatory
as to violate Article 14 of the Indian Constitution.

30. It may be stated that as a general proposition it cannot be laid down that in no case a
specified date can be made basis for classification. It will depend 4n the facts of each case and if
the specification of a particular date is based on an intelligible differentia, which in turn has
nexus to the object for which the relevant statute has been enacted, such classification will be
legal and valid but if the specification of a date is arbitrary or whimsical, it cannot be made basis
for classification as has been held in the above case of D.S. Nakara and others v. Union of India
(supra) by the Indian Supreme Court. Furthermore, a distinction is to be drawn between a case in
which a date is specified for the purpose of qualifying for certain benefit under certain
enactment/scheme and a date which may be specified for the enforcement of a particular Taxing
Statute or a notification granting certain concession from payment of taxes and excise duty. In
our view, the former category should pass the test of reasonable classification, whereas for the
latter category, there is no such requirement as the Legislature or the Government has the
discretion/power to fix a date for the enforcement of a particular, statute or for granting certain
concession in respect of tax or excise duty, and for that purpose, there cannot be any
mathematical or logical way of fixing a date except that the Legislature or the Government may
fix the same according to its own need and convenience.

31. We have already pointed out hereinabove in para. 20 that in the instant case the
Legislature/Federal Government had extended benefits of the various revisions in the pension to
all the pensioners irrespective of the date of retirement inasmuch as the petitioner of C.P.
No.15-R of 1989 is now drawing Rs.3,051 per month as pension in place of Rs.1,457 per month
which he was drawing upon retirement in 1976. However, the benefit of increase in the amount
of cut off point from Rs.1,000 to Rs.2,000 with effect from 1-7-1980 and then from Rs.2,000 to
Rs.2,500 with effect from 1-8-1983, was not extended to the pensioners who had retired prior to
the above two specified dates. But, this discriminatory treatment was done away with effect from
1-7-1985 and, therefore, now the pensioners cannot have any legitimate grievance in this regard.
The question, whether the Government could deprive the above benefit to the pensioners who
had retired prior to the specified date has been subject-matter of judicial proceedings. In this
behalf, reference may be made to the case of The Accountant-General, Punjab and another v. Ch.
Qadir Bakhsh and another (P L D 1983 Lah. 246), in which a Division Bench of the Lahore High
Court headed by A.S. Salam, J. (as his Lordship then was), while dismissing an Intra Court
Appeal against the judgment of a learned Single Judge passed by him in exercise of
constitutional jurisdiction directing the Punjab Government to give benefit of increase in the
amount of cut off point with effect from 1-7-.1980 from Rs.1,000 to Rs.2,000 under memo dated
15-7-1980' to the petitioner, observed as follows:--

.....Therefore, from 1st of July, 1980, "pension" shall be calculated in the .prescribed manner and
any amount in excess of Rs.2,000 shall be reduced by 50%. Obvious it is that from 1st July, 1980
"pension" will be calculated of persons who were getting pension or were eligible. They were not
to be barred. It is for them that decision was being taken. Therefore, the contention that the
benefit will be derivable by `people' who will retire on 1st of July, 1980 or thereafter, is without
force. It was patently for the `pensioners'. The contention that the decision of the Government
has been differently construed by the Finance Department is neither here nor there. Decision of
the Government cannot be varied or modified by interpretation by an officer in one of the
departments of the Government, even if it be Finance."

32. However, we may again point out that with effect from 1-7-1986 an additional benefit of 2%
pension for each year of service exceeding 30 years subject to a maximum of 10% of pension
sanctioned was given to the pensioners who retired after 30-6-1986 and not to those pensioners
who retired earlier and, therefore, the above withholding of the benefit from the pensioners who
had retired prior to 1-7-1986 without having any basis as to bring the case within reasonable
classification, cannot be sustained in view of the ratio decidendi of the cases referred to
hereinabove. According to the list of documents submitted by Mr. Samdani, the Punjab
Government has already extended the above benefit to all the pensioners irrespective of the date
of retirement. Similarly the with-holding of the benefit of P.O. No.5 of 1988 from the petitioner
in C.P. No.5-R of 1990 was not warranted by law. In this regard, reference may be made to the
case of M.A. Rashid v. Pakistan through Finance Division Government of Pakistan, Islamabad,
and 3 others (P L D 1988 Quetta 70), in which the facts were that the petitioner in above
C.P.No.5-R/90 happened to be the petitioner. He impugned Government action of with-holding
the benefit of P.O. No.5 of 1983 on the ground that he had retired earlier. A Division Bench of
the Balochistan High Court headed by Abdul Qadeer Chaudhry, J. (as his Lordship then was),
allowed the above petition and observed as follows:-

"The plain reading of the Presidential Order No.5 of 1983 makes it clear that nowhere in this
Order, it has been stated that the benefit of this order would not be applicable to those Judges
who had retired prior to 1st July, 1981. It has also not been provided in this Order that the
maximum limit would only be applicable to the Judges, who had retired on or after 1st July,
1981. Under Article 205 of the Constitution, remuneration and other terms and conditions of
service of a Judge of the Supreme Court or of a High Court shall be as provided in the Fifth
Schedule.. There is a constitutional provision fixing remuneration and other terms and conditions
of a High Court Judge. In accordance with such provision, the pay and pension of the Judges of
the superior Courts are fixed by a constitutional instrument. The Fifth Schedule relates to
remuneration and terms and conditions of service of Judges. This Schedule is not to be read in
isolation, as it is a part of the Constitution. The salary and other privileges of the superior Court
Judges are allowed under a Constitutional provision, in order to keep the judiciary independent.
The basic principle of interpretation of statute is that if the words are clear and unambiguous,
then literal construction must be followed. The intention of the law-giver can be seen from the
words themselves and no foreign element is to be introduced. The interpretation must be
harmonious and reasonable:"

The view taken in the above case by the Balochistan High Court seems to be in consonance with
law and the reasoning contained therein is equally applicable to the instant case.

33. We would, therefore, allow the above petitions to the extent of declaring that denial of
additional benefit of 2% of pension for each year of service exceeding 30 years subject to a
maximum of 10% of pension sanctioned referred to hereinabove in para. 19 (a)(xvii) to the
pensioners who retired prior to 1-7-1986, and denial to the petitioner in C.P. No.5-R of 1990 of
the benefit under P.O. No.5 of 1988 referred to hereinabove in para. 19(b)(vi) on' the ground that
he retired prior to 1-7-1987 founded on above eligibility criteria as to the date of retirement,
being discriminatory and violative of Article 25, and, they are entitled to the same (if not already
granted) so long other pensioners are paid.

The petitions stand disposed of in the above terms with no order as to costs.

(Sd.)

AJMAL MIAN, J.

MUHAMMAD AFZAL LONE, J.

SAJJAD ALI SHAH, J.


SAAD SAOOD JAN, J.---I am in respectful agreement with the judgment proposed to be
delivered by my learned brother Ajmal Mian, J. As pointed out by him the retired civil servants
form a class by themselves in relation to those who are still in service. In the absence of any
special circumstances it will be discriminatory to grant a privilege or benefit of one sub-class of
retired civil servants and withhold the same from another sub-class of retired civil servants by
fixing a date with regard to its availability.

I am unable to subscribe to the contention of Mr. Samdani that the rule of equality as
incorporated in Article 25 of the Constitution requires that the I benefit of any improvement in
pension which may be granted to a civil servant retiring in future must invariably be extended to
already retired civil servants who held the same or corresponding appointment at the time of
their retirement. It is to be noticed that in order to attract or retain talent for maintenance of its
services the Government is in competition with the private sector. While fixing the terms and
conditions of service---which of necessity include the pensionary benefits as well---the
Government has to take this aspect of the matter also into account. In the circumstances if the
Government improves the pensionary privileges and benefits for its serving employees or future
entrants it cannot be said that it is guilty of discriminatory treatment towards those who have
already retired.

It is no boubt true that those serving civil servants whose terms and conditions are improved
would be, on retirement, better placed than those who have already retired after holding
equivalent appointments but then it can hardly be called a case of discriminatory treatment
violating the provisions of Article 25 of the Constitution. On the other hand, it will be a case of
giving effect to different contracts of employment.

RUSTAM S. SIDHWA, J.---I have read the judgment of my learned brother Ajmal Mian J., and
would like to add a few words.

2. The obligations of an Islamic State towards its employees first needs to be stated. According
to Dr. Mahmood A. Ghazi of the International Islamic University, Islamabad, in his research
paper, a Hadith reported by Abdur Razzaq and Baihaqi quotes the Holy Prophet (p.b.u.h.) as
stating "Anybody who hires the services of a person should identify beforehand what
remuneration he would receive". Muslim jurists have held that an agreement or contract would
be invalid if the remuneration of the employee was not fixed beforehand. Dr. Ahmad Al Assal of
the International Islamic University, Islamabad, in his research paper mentions that the Holy
Qur'an clearly enforces fulfilment of obligations. "O ye who believe Fulfil (all) obligations"
(Chapter 5, verse 1). According to various Hadiths, proper wages should be determined in a
manner so that they are commensurate with basic needs and prices prevalent. Dr. Mahmood A.
Ghazi sums up these traditions as follows:

"(i) A labourer should be paid food and clothing according to the established and accepted norms
(al-Maruf) and they should be charged with work according to their capacity". (Muwatta of
Imam Malik). (ii) "Anybody who becomes our (State's) employee should marry if he does not
have a wife; should have a servant if he does not have one; should have a house if he does not
have one. But if he transgresses this limit he is a treacherous". (Abu Daud, Sunan). (iii) "Fulfil
the needs of your subordinates according to their satisfaction". (Majmaal-Zawa'id, Vol. IV,
p.236), (iv) Hazrat Umar used to pay his employees and functionaries according to their needs
and the requirements of the city in which they lived. (Islam ka Iqtisadi Nizam, p.94). Discussing
the principles governing wages payable by an Islamic State to its employees, Ibn Nujaim, a
Hanari jurist of the 10th Century A.H., states: "The final decision in this matter is to be taken by
the Government: For nothing is admissible to the employees except on the basis of their
needs and the needs of their associates in accordance with the known and normal standard". (Ibn
Nujaim, Al-Asbah Wa'1-Naza'ir, p.130). Under the Pakistan Constitution 1973 the State inter
alia is bound, as respects the Muslims of Pakistan, to promote observance of the Islamic moral
standards [see Article 31(2)], make provision for securing just and humane conditions of work
[see Article 37(c)], secure the well being of the people inter alia by raising their standard of
living and ensuring equitable adjustment of rights between employers and employees [see Article
38 (a)], provide for all citizens, within available resources, facilities for work and adequate
livelihood with all reasonable rest and leisure [see Article 38(b)], provide for all persons in the
service of Pakistan or otherwise, social security by compulsory social insurance or other means
[see' Article 38(c)] and provide basic necessities of life for all citizens as art; permanently or
temporarily unable to earn their livelihood on account of infirmity, sickness or unemployment
[see Article 38 (d)]. Under Article 29(2), where the observance of any particular Principle of
Policy contained in Articles 29 to 40 is dependent upon resources being available for the said
purpose, the principle is to be regarded as being subject to the availability of resources.

3. In an Islamic State the Government also has a duty towards its retired employees. The Holy
Prophet Muhammad (p.b.u.h.) said "every one has some responsibilities of looking after those
who are under his care. The ruler has a civic duty to his nation, the way husband is responsible to
wife and children and the employer is responsible to employees etc." One of the important
responsibilities of the State is to look after the needs of the homeless and shelter less. Bukhari
has reported the Holy Prophet as saying "Anybody who bequeaths a property, it will go to his
heirs. But if he leaves shelterless children or any liability (without anything to pay there-from) he
should come to me (here appropriately the reference points to the State) as 1 am his guardian."
The Hadith points to the obligation of the State to provide basic necessities to all citizens in
impecunious circumstances. Dr. Mahmood A. Ghazi of the International Islamic University,
Islamabad, in his research paper clearly points out that the liability of the State has to be in
keeping with the resources of the State because "Allah does not charge anybody with any
responsibility except according to his capacity (the Holy Qur'an 2: 286) and that in respect of
financial responsibilities "the wealthy according to his means and the poor according to his
means" (the Holy Qur'an 2: 236). During the period of the first Caliph of Islam it was provided in
the agreement with the people of Himyar, who were Christians, that the State will fulfil all their
needs in case of any distress or inability to earn (Kitab-al-Kharaj by Imam Yusuf, p. 172). The
duty of the State to provide adequate pensionary benefts is reflected in Article 38(c) and (d),
subject to availability of resources as pointed out in Article 29(2). The duty under the Shariah to
provide pensionary benefits in the same manner as service benefits, according to the needs of this
particular class, brings to the fore the socio-economic obligation of the State to fix from time to
time certain minimum standards which should govern the determination of pension of the
Government servants retiring at different steps in varying basic pay scales.

4. In Government service, there are many kinds of pensions admissible to Government servants,
such as Superannuation pension, Retirement pension, Invalid pension, Compensation pension,
Extraordinary pension and Family pension; chief of them being the Superannuation pension and
the Retirement pension which serves the majority of the retired Government servants.

5. The superannuation pension is that granted to a Government servant who retires or is retired
from Government service on or after attaining the age fixed for superannuation retirement. The
retirement pension is that granted to a Government servant who not being eligible for
superannuation pension opts to retire after 25 years qualifying service or such less time as may
for any special class of Government servants be prescribed, or is compulsorily retired from
service by the authority competent to remove him from service on grounds provided by law. The
invalid pension is that awarded to a Government servant who is retired from service on medical
grounds before reaching the age of superannuation. The compensation pension is that awarded to
a Government servant who is discharged from Government service owing to the abolition of his
post. The Extraordinary pension is that granted to a Government servant who is injured, or is
struck with a severe disease whilst exposed to the same in the course of his duty, or is killed
whilst performing his duties. The family pension is admissible to the family of a Government
servant in the case of his death whilst in service or after his retirement.

6. Whilst the different pensions serve different and varying purposes, the first two pensions, i.e.
the superannuation pension and the retirement pension serve three main purposes. First, it
provides economic and social security to the Government employee during his old age and
protects him from financial want and social despair. Second, it enables the Government
employee to maintain himself at some level commensurate with the dignity of the post or office
last held by him and thus indirectly preserve the honour of the State. Third, it serves to attract
and induce competent persons to join Government service, as opposed to private service, where
security of tenure and retirement benefits are not so attractive, though salary and other terms may
be more favourable, and also provides incentive to serving Government employees for more
better and sustained work in the face of rising inflation. The first purpose recognises the
socio-economic obligation of the State to assist its retired employees to maintain themselves by
providing economic security in the fall of life when their ability to find work or employment in
the private sector begins to fade and their life's savings also tend to diminish. The second
purpose recognises the honour of the State to assist its retired employees from falling into such
impecunious circumstances as may push them into insolvency or crime and thus impair their
honour and thus indirectly tarnish that of the State. The third purpose recognises the necessity of
the State, in keeping with modern trends, to compete with the private sector to secure the best
talent available for its public service, by offering liberal retirement and other financial terms and
conditions as inducement or reward for joining service, and also providing incentive to the
serving employees for more better and sustained work. Thus, though at the time of retirement the
retiring Government servant receives pension at the rate then available under the rules, which is
then the highest that the State can offer, which includes the three elements stated above, but as
time progresses and the value of the currency gets eroded by inflation, the element of attraction
first disappears, then the element of the honour of the State and lastly the element of economic
and social security, with the result that the pension hardly provides a bare subsistence allowance
to keep body and soul together, primarily amongst the lower grade pensioners.

7. All forms of pensions, including the superannuation pension, payable by Government, are
dependent upon statutory provisions. Under Article 240 of the Pakistan Constitution 1973 the
terms and conditions of service of persons working with the Federal Government are determined
by law passed by Majlis-e-Shoora (Parliament) and that of persons working with the Provincial
Governments by law passed by the respective Provincial Assemblies. Section 19 of the Civil
Servants Act, 1973, and similar provisions in the different Provincial Civil Servants Acts provide
for payment of pensions to civil servants of the Federal and the Provincial Governments as may
be prescribed, that is to say as prescribed by the rules. Likewise, under section 25(2) of the Civil
Servants Act, 1973, and similar provisions in the different Provincial Civil Servants Acts, read
with Article 241 of the Constitution, all rules, orders or instructions in force in respect of terms
and conditions of civil servants competently made, are to be deemed to be rules made under the
Act and as continuing in force. A host of rules deal with different types of pensions payable to
different types of Government servants working at the Federal level. Likewise, separate rules
deal with different types of pensions payable to Government servants working at the Provincial
level in the four provinces. A Government employee's claim to pay and allowances is regulated
by the rules in force at the time in respect of which the pay and allowances arc earned, whilst his
claim to pension is regulated by the rules in force at the time when he retires, resignes, or is
invalided out, or is compulsorily retired, or is discharged from service, or is injured, or killed
whilst in service, depending upon the type of pension claimed. In respect of superannuation
pension, the amount of pension payable is determined by the length of completed years of
qualifying service put in by the Government servant, subject to the formula then in existence
providing the mode of calculation of pension as prescribed by the rules. The right to receive
pension flows directly out of the rules applicable and not out of any order of any officer or
authority, though for the purposes of determining or quantifying the amount it may be necessary
for the authorities to pass such order. The right to receive pension by a Government servant is
property so as to attract Articles 23 and 24(1) of the Constitution and any illegal denial to a
Government servant to receive the same would affect his fundamental right granted under the
said provisions of the Constitution. If any authority is required for this view, Deokinanden
Prasad v. The State of Behar (A I R 1971 SC 1409), Bhagwant Singh v. Union of India (A I R
1962 Punj. 503) and K.R. Erry v. The State of Punjab (I L R 1 Pb. 278) may be referred with
advantage.

8. According to rough estimates provided by the learned Attorney-General, in 1988-89 there
were 2,487,675 civil servants in the employment of the State, both at the Federal and the
Provincial levels, and roughly 1,084,304 pensioners. In short, for every 100 civil servants there
were roughly 44 pensioners. There is thus an inactive service force on the payroll of the State,
which this Islamic State basically as a first step under the Sharia is obliged to protect on the
principle of socio-economic justice, apart from other considerations stated above which it may
desire to foster. Like all third world countries struggling under financial constraints arising out of
depleting foreign reserves and mounting economic pressures, the difficulties faced by the State to
constantly meet from time to time extra expenditure to vamp up its salary structures and other
financial benefits admissible to its employees, needs no publicity. However, the Governments at
the Federal and Provincial levels, subject to financial constraints, have been effecting increases
in salaries and other financial benefits of its employees, including pensions and retirement
benefits. Not only have pensionary and retirement benefits been augmented from time to time,
but increases in the pensions payable to those who have retired earlier have also been made from
time to time, sometimes almost simultaneously with the augmentation made in pensionary
benefits. The State therefore under its obligation to meet socio-economic justice to its retired
personnel, has constantly been attending to their requirements.

9. The only question of paramount importance that arises in this case is whether all the
pensioners should form a class apart for purposes of pensionary benefits so that whenever salary
scales or pensions are augmented, their consequent benefits are also available to all retired
pensioners, apart from those that will retire on or after the date the augmentation takes effect, or
there can be sub-classes, each sub-class being constituted by a group of pensioners who have
retired on or after a date when some change in the rules relating to salary scales or pension has
taken place till the date the next change takes place, subject to any amendments in the rules that
may be made from time to time augmenting their, pensionary benefits. Speaking from an
ideological point of view, the answer to the question can only be in the affirmative, for that
would be the highest socio-economic goal that a State could achieve under Article 38 of the
Principles of Policy as set out in Chapter 2 of Part II of the Constitution, but if the economic
position is feeble and weak, the same is not economically feasible and the fulfilment of this
particular principle of Policy, in view of Article 27(2), can be deferred due to non-availability of
resources, and the next question therefore that would arise is whether any legislation affecting
pension does not violate any fundamental right, such as the article guaranteeing equality, which
strikes down any form of classification which is unreasonable and arbitrary.

10. To appreciate this matter it is necessary to view in their proper perspective the rights and
liabilities of the Government regarding pay and allowances and pensionary benefits. The
obligations of the Government relating to pay and allowances are regulated by the rules in force
at the time in respect of which the pay and allowances are earned; and that relating to pensionary
benefits by the rules in force at the time when the Government servant resigns or is discharged
from service. The Government reserves to itself the right of changing the rules and regulations
regarding pay and allowances and pensions, from time to time; and their discretion in the matter
and their right of interpreting their ' meaning in case of dispute. Pay and allowances are earned
by a Government servant each month during service according to the rules in force on the dates
they fall due. In the event of any upward revision, he is entitled to the benefit of the revised pay
and allowances if he is in service on the date they fall due each month immediately after the
revision. When such a Government servant retires, he ceases to earn any pay and allowances, as
his entitlement in that respect comes, to an end. In the matter of pension, the entitlement to
receive the same, according to the rules in force, exists and remains effective as a continuing
entitlement, so long as the Government servant is in service and has not retired. In the event of
any upward revision, the entitlement to receive the same, according to the amended rules, arises
immediately after such revision and remains effective as a continuing entitlement, so long as he
is in service. When such a Government servant retires, he earns the pension according to the
rules in force on the date of his retirement. Should any revision or revisions take place thereafter
augmenting the pensionary benefits, he is not entitled to them, unless any of them specifically or
retrospectively covers his case. Thus, whilst the Government servant in employment earns
augmentation in his pay and allowances with every revision that takes effect whilst he is in
service, the Government servant after retirement earns no augmentation in his pension with every
revision in pension that takes effect thereafter after he has retired, unless his case is specifically
provided for. Again, it must not be forgotten, that with every revision in the pay, the entitlement
of the serving Government servant to receive pension after retirement stands enhanced, for basic
pay constitutes an essential element of emoluments in the different formulas that are used to
determine pension.

11. Learned counsel for the petitioners appearing in Constitution Petitions Nos. 15 of 1989 and 3
of 1990 have drawn our attention to the various modes by which the Government of Pakistan has
been increasing the pensionary benefits of some of its employees, without granting the same
benefits to those who have retired earlier. They are (A) Increase in salaries of the serving
employees, without grant of corresponding benefits to the retired employees. The petitioners'
claim that for calculation of pension their last salaries drawn in their old time scales should
figuratively be treated as corresponding to those drawn in the new time scales at the stages where
they retired and thus they should be given the benefit of enhanced pensions. These increases in
salaries have been set out by my learned brother Ajmal Mian, J., in clauses (ii), (iv), (vii), (x) and
(xix) of sub-para. (a) of para. 19 of his judgment. (B) Indexation allowed on the salaries of the
serving employees, without grant of corresponding benefits to the retired employees, on the same
basis as stated above. These increases have been set out by my learned brother in clauses (xv)
and (xxii) of sub-para. (a) of para. 19 of his judgment. (C) Revision of mode of calculation of
pension on the basis of last pay drawn instead of on average pay during last 12/36 months
applicable to pensioners retiring on or after 1-7-1986. This has been set out by my learned
brother in clause (xvi) of sub-para. (a) of para. 19 of his judgment. (D) Grant of additional
benefit of 2% of pension for each year of service exceeding 30 years, subject to a maximum of
10% pension sanctioned, applicable to pensioners retiring on or after 1-7-1986. This has been set
out by my learned brother in clause (xvii) of sub-para. (a) of para. 19 of his judgment. (E)
Revision of cut-off points, applicable to pensioners who retired on or after 1-7-1980 and
1-7-1983. This has been set out by my learned brother in clauses (v), (xii) and (xiii) of sub-para.
(a) of para. 19 of his judgment.

12. It is admitted between the parties that the other increases referred to by my learned brother in
clauses (i), (iii), (vi), (viii), (ix), (xi), (xiv), (xv), (xviii) and (xx) to (xxiii) of sub-para. (a) of
para. 19 of his judgment were applicable to past pensioners and the petitioners have no grievance
against the same.

13. Learned counsel for the petitioner appearing in Constitution Petition No. 5-K of 1990 only
challenges President's Order No.5 of 1988, whose benefit has been denied to his client.

14. I will now take up the case of legislation effecting increase in salaries and indexation on
salaries. This cannot be treated as legislation creating a classification which is arbitrary just
because the retired pensioners have not been given higher pensions by figuratively treating them
as entitled to such higher salaries or indexation. The object of Article 25 is not to force
Government to legislate over a matter which is silent, but to strike down a legislation or a legal
instrument which creates classification which is unreasonable or arbitrary. The fact that salaries
are increased or indexation is allowed thereon, is legislation pertaining to salary which
specifically deals with serving Government servants and has no connection with pension which
specifically deals with Government servants who have retired. Merely because the legal
instruments are directly intended to augment salaries of serving government servants, the fact
that indirectly they may tend to affect emoluments and thus augment pensionary benefits or
affect other allowances which are allowed as a percentage of the wages and thus augment such
allowances, cannot be treated as creating an unreasonable discrimination against recipients of
pensions and allowances. The rule is that where a particular legislation tends to create an
arbitrary distinction or unreasonable discrimination, the principle that all persons similarly
circumstances or matters evenly placed should be treated or dealt with alike is enforced. But
where a legislation dealing with one subject has the effect of indirectly affecting other persons or
matters covered by another legislation dealing with another subject, the violation of the rule of
equality cannot be blindly enforced, unless there is some strong ground which would make it
almost mandatory for the Court to do so. Legislation also treats salary and pension separately.
Just because one indirectly affects the other, it does not become a case of unreasonable
discrimination. If such a rule were to be applied, it would open up a pandora's box of illusive and
unintelligible classification, having no rationale nor reason, and all forms of legislation would be
thrown into utter confusion. In State Government Pensioners' Association v. State of Andhra
Pradesh (A I R 1986 S C 1907) the Supreme Court of India was considering the question
whether a provision providing for payment of enhanced gratuity with prospective effect from a
specified date offended Article 14 of the Indian Constitution if it did not provide for payment
under the revised basis to all those who had already retired, the Indian Supreme Court answered
the question in the negative. In dealing with this question the Supreme Court held :--

"Improvements in pay scales by the very nature of things can be made prospectively so as to
apply to only those who are in the employment on the date of the upward revision. Those who
were in employment say in 1950, 1960 or 1970, lived, spent, and saved, on the basis of the then
prevailing cost of living structure and pay scale structure, cannot invoke Article 14 in order to
claim the higher pay-scale brought into force say, in 1980. If upward pay revision cannot be
made prospectively on account of Article 14, perhaps no such revision would ever be made."

I do not therefore think that legal instruments augmenting salaries or indexation on salaries can
be struck down as violating Article 25 of the Constitution if they indirectly happen to affect
pension. Thus, every time increase in salary or indexation to salary takes place, a sub-class
would be created, each sub-class being constituted by a group of pensioners who have retired on
or after the date when some change in the legal instruments has taken effect till the date the next
change in the salary or indexation takes place.

15. At this stage it would not be out of place to mention that when the pension scheme was
substantially revised and augmented, which has been referred to by my learned brother in clauses
(i) and (iii) of sub-para. (a) of para. 19 of his judgment, the enhanced benefits were made
available to past pensioners by virtue of para. 11 of Finance Division O.M. dated 18-8-1966 and
para. 8 of Finance Division O.M. dated 7-1-1977 respectively. This accords with the decision of
the Indian Supreme Court in the case of D.S. Nakara v. The Union of India (A I R 1983 SC 130)
wherein it was held that any liberalised change in pension scheme should be made available to
past retired pensioners prospectively, the Supreme Court making it abundantly clear that the
arrears were not required to be paid because to that extent the scheme was prospective. In the
two instant cases cited above -the benefits of the liberalised pension scheme were made available
to past pensioners prospectively.

16. At this stage it may also be mentioned that apart from the above two substantial revisions in
the pension scheme that took place which augmented and liberalised pensions, other minor
increases that were granted to pensioners were in almost all cases granted to past pensioners,
other than cases relating to cut off points or amendment to the rules of the pension scheme. '

17. With regard to item (C) as stated in para. 11 above, there can be no complaint, because the
definition of the expression "average emolument", as last defined in Article 486 in section IV of
Chapter XIX of the Civil Service Regulation (relating to pensions) having been impliedly
omitted by Finance Division O.M. dated 1-7-1986, the same obviously would take effect only
prospectively.

18. With regard to item (D) as stated in para. 11 above, I agree with the views of my learned
brother and would not like to add anything.

19. With regard to item (D) as stated in para. 11 above, my learned brother has dealt with this
matter appropriately in paras. 20 and 31 of his judgment and no relief is available to the
petitioners on this score.

20. With regard to Constitution Petition No.5-R of 1990, the petitioner is not entitled to any
relief other than relating to President's Order No.5 of 1988. The position in his case is the same
as that of the other petitioners in the other two Constitution Petitions, which have been dealt with
by me in para. 17 above. My learned brother Ajmal Mian, J., has dealt with this matter
appropriately in para. 32 of his judgment. I would not therefore like to drag a greater length of
chain.

21. One of the learned counsel for the petitioners in C.P.No.15 of 1989 and C.P. No.2 of 1990
has further drawn our attention to the fact that where a pension statute states that the pension
shall be a percentage of the salary attached to an office or rank held by an employee before
retirement, it must be construed as providing for a fluctuating pension which increases or
decreases as the salaries paid to active employees increase or decrease. In this connection learned
counsel has referred to George G. Eichelberger v. City of Berkeley (46 C. 2d 182 = 293 P. 2d 1).
In this case the pension statute of the City of Berkeley stated that the pension would be a
percentage of the average salary attached to the rank held by the employee before retirement.
Section 24 of the Ordinance read: "The pensions granted under the terms of this Ordinance shall
not increase nor decrease with any changes in salary subsequent to the date of the granting of the
pension for the rank or ranks upon which the pension was based nor shall any changes of title or
rank in the active service affect an increase or reduction in the existing pensions:"

In April 1939 an amending Ordinance inter alia eliminated the words underlined above. The
Court held, following the rule laid down in Terry v. City of Berkeley (41 Cal. 2d. 698) and other
cases, that it was settled that where a pension statute stated that the pension was a percentage of
the average salary attached to the rank held by the employee before retirement, it was construed
as providing for a fluctuating pension which increased or decreased as the salaries paid to active
employees increased or decreased. The amendment to section 24 was held to clearly indicate that
the Ordinance was intended to apply to existing pensioners specially when it was borne in mind
that the pension laws had to be literally construed-to achieve their beneficent purposes (Terry's
case supra).The Court held that prior to the 1939 amendment, the plaintiffs were not entitled to
any increase in their pension by reason of any pay increase, but after the 1939 Ordinance the
amendment removed the language in section 24 which prevented the application of the rule
announced in Terry's case. It also held that whilst the amendment barred any decrease, it did not
prevent any increase in the pension and therefore increase in the pension with increase in the
salary was permissible.

22. The basic question is what is the law here which governs payment of pensions. Under Article
4 of Chapter I of the Civil Service Regulations (relating to pensions), an officer's claim to
pension is regulated by the rules in force at the time when the officer resigns or is discharged
from the service of Government. Under Article 468 in Section I of Chapter XIX of the said
Regulations the amount of pension that may be granted is determined by length of service as set
forth in Articles 474 to 485. Article 486 in Section IV of the same Chapter defines the expression
"emoluments". Though it has undergone slight changes, the present definition reads:

"The term "emoluments" means the emoluments which the officer was receiving immediately
before his retirement and shall include:

(a) Pay as defined in FR 9 (21)(a)(i);

(b) Senior Post Allowance;

(c) Special Pay of all types and nature;

(d) Personal Pay;

(e) Technical Pay:

(f) Dearness Allowance (now Indexation Pay);

(g) Increments accrued during leave preparatory to retirement;

(h) Any other emoluments which may be specially classed as Pay."

The words "the emoluments which the officer was receiving immediately before his. retirement"
have always been present. It is clear from the definition of the term "emoluments" that they are
to be calculated upon what the officer was receiving immediately before his retirement and since
inter alia basic pay, dearness allowance, indexation pay, etc., are some of the constituents that go
to make up emoluments, that pay or allowance etc., alone would be taken into consideration
which the employee was receiving immediately before his retirement. The prospects of
subsequent increases in pay or allowances being taken into consideration in the term
"emoluments" therefore does not arise. In view of the law being strict and clear, the liberal
doctrine cannot be imposed in the pension system prevailing presently.

23. Before concluding, I consider it my duty to draw the attention of the Government to the
appalling minimum ceiling fixed in respect of pensions, which is Rs.300 per mensem. As stated
earlier, it is the foremost socio-economic obligation of an Islamic State to fix minimum pensions
as meet the basic needs of its retired personnel. The need therefore to fix certain standards which
should govern the determination from time to time of the minimum pensions payable to
Government servants who have retired in the past, in the light of their minimum basic needs,
assumes prominence. Likewise, the need to remove all disparity between past pensioners and
new pensioners in the same pay grades or ranks by, gradual steps spread over a stated period of
time also requires serious attention, for under the Shariah the State has an obligation to treat
equally persons evenly placed by virtue of equal length of faithful and loyal service in the same
or equivalent pay grades, posts or ranks. It is hoped that the Government shall address itself to
these questions. Perhaps the Federal Shariat Court at some stage will look into these matters.

24. For the foregoing reasons, I agree with the final order proposed by my learned brother in
para. 33 of his judgment.

M.BA./I-141/S Order accordingly.