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Petitioner: DAWOOD SIGHAR VS Respondent: PROVINCE OF SINDH through Chief Secretary, SindhHonorable Justice Muhammad Ali MazharRasheed A. Razvi,Sarwar Khan
2016 P L C (C.S.) 1
[Sindh High Court]
Before Muhammad Ali Mazhar and Shahnawaz Tariq, JJ
DAWOOD SIGHAR and 5 others
Versus
PROVINCE OF SINDH through Chief Secretary, Sindh and others
C.P. No.D-1637 of 2013, decided on 28th April, 2015.
(a) Civil Service Regulations, 1960---
----Art. 486---Constitution of Pakistan, Arts.199 & 208---Constitutional petition---Civil service---Retired employees of High Court (Sindh)---Plea for accumulation of judicial allowance in pension calculation---Independence of judiciary---Chief Justice, powers of---Scope---Chief Justice of High Court had power to sanction pension provided same was covered by the rules and certified by the Audit Officer to be admissible---Supreme Court and Federal Shariat Court with the approval of the President and High Court with the approval of the Governor concerned might make rules providing for appointment by the Court of officers and servants of the Court and for their terms and conditions of employment---Object in making special dispensation for officers and servants of the Court was to ensure the independence of Superior Courts---High Court to remain independent and free from interference in its affairs by the executive authorities---Payment of judicial allowance could not be treated as an ad hoc relief or any benefit of contingent or reliant nature but same was one of the components of the emoluments which was being paid during active service---Special pay of all types and nature was part of emoluments including other emoluments which might be specially classed as pay---Overseas pay, technical pay, special pay and personal pay were also integral part of pay except the pay other than special pay or pay granted in view of personal qualification which had been sanctioned for a post held by an employee substantively or in an officiating capacity or to which he was entitled by reason of his position in a cadre---Judicial allowance was allowed to the employees across the board---Judicial allowance was neither extended to a person specific nor sanctioned for a post held by an employee substantively or in an officiating capacity or to which he was entitled by reason of his position in a cadre---Judicial allowance was part of emoluments/pay/salary and reckonable being one of the components for pension calculation---Chief Justice of High Court had all the powers of government in the administrative department with regard to officers and servants of the High Court---Judicial allowance had been treated as emolument for the purpose of pension with regard to judicial officers and such benefit had also been extended to the staff and officers of the High Court (Sindh)---Judicial allowance was reckonable for the calculation of pension as part of emoluments---Petitioners and other retired employees placed in similar position were entitled for accumulation of judicial allowance in pension calculation---Government was directed to re-calculate pension within specified period after giving effect of judicial allowance and start the future payment accordingly and arrears be also paid---Constitutional petition was accepted in circumstances.
PLD 1994 SC 105; 1997 SCMR 141; PLD 1993 SC 375 and 1991 MLD 2546 rel.
(b) Civil Service Regulations, 1960---
----Art. 486---"Emoluments"---Meaning---"Emoluments" meant the emoluments which the officer was receiving immediately before his retirement.
(c) Civil Service Regulations, 1960---
----Art. 487--- "Average Emoluments"--- Meaning--- "Average Emoluments" meant the average calculated upon the last three years of service.
(d) Judgment---
----Judgment "in rem"---Meaning.
Wharton's Law Lexicon (Fifteenth Edition); Satrucharla v. Vijayarama Raju v. Nirmaka Jaya Raju (2006) 1 SCC 212; Black's Law Dictionary, 7th Edn., p. 847; Black's Law Dictionary (Sixth Edition); Eureka Building and Loan Ass'n v. Shulz, 139 Kan. 435, 32 P.2d 477, 480; Federal Land Bank of Omaha v. Jefferson 229 Iowa 1054, 295 N.W. 855, 857; Hameed Akhtar Niazi v. Secretary Establishment Division Pakistan 1996 SCMR 1185 and Federation of Pakistan v. Qamar Hussain Bhatti PLD 2004 SC 77 rel.
Rasheed A. Razvi, Farhatullah, Haider Imam Rizvi and Abbas Rizvi for Petitioners.
Sarwar Khan, Addl. A.-G. Sindh for Respondents.
Muhammad Arshad, Section Officer, Finance Department, Government of Sindh, Karachi.
Date of hearing: 27th October, 2014.
JUDGMENT
MUHAMMAD ALI MAZHAR, J.--- This petition has been brought to seek following relief(s):---
"(a) Declaration that the petitioners and all other retired employees of Sindh High Court placed in similar class are entitled for calculation of pensionary benefits by inclusion of Judicial Allowance.
(b) Direct the respondents to implement and act upon the orders of the Hon'ble Chief Justice of this court in letter and spirit.
(c) Direct the respondents to allow judicial allowance to be counted for calculation of pension towards the petitioners as well as other officers/members of the establishment who have retired and are entitled.
(d) Any other relief as this court may be deemed fit and proper under the circumstances of the case."
2. The brief facts of the case are that the petitioners are retired employees of this Court. The Supreme Court of Pakistan keeping in view the various factors allowed judicial allowance to its employees in the year 2000. Subsequently, the High Courts of Provinces also granted such facility to their employees. The former Chief Justice of this Court late Mr. Justice Sabihuddin Ahmed had passed an administrative order that the judicial allowance should be counted for calculation of pension in respect of judicial officers working under this Court. The officers/staff members of this Court made representation to another former Chief Justice of this court who was pleased to grant this facility to officers of this court after going through the decision of the honourable Chief Justice of Pakistan with effect from 3-1-2000. The Registrar of this court had written a letter on 17-12-2012 to the respondent No.3 (Accountant General Sindh) to comply with the orders of the Chief Justice and also quoted the order which is reproduced as under:---
"Raising the issue of judicial allowance to be counted for calculating pension by the Finance Department at this stage is irrelevant and afterthought as A.G. Sindh office is already paying pension incorporating judicial allowance for calculation of pension to the judicial officers as well as Establishment of the High Court of Sindh."
3. Despite communicating the orders, the respondent No.3 failed and neglected to entertain the applications of the petitioners regarding accumulation of judicial allowance in pension. The respondent No.3 in his comments took the position that the Finance Department, Government of Sindh has refused to treat the judicial allowance as reckonable component for pension under Article 486 of CSR while the respondent No.2 submitted the comments in line that in view of the Article 486 of Civil Service Regulation (C.S.R.) the Judicial Allowance is not reckonable for pension calculation. It was further submitted in the comment that if judicial allowance is allowed to be treated as a reckonable emolument, its financial implication would be huge and those who are not employees of the High Court of Sindh and drawing judicial allowance will also demand judicial allowance as reckonable emolument for calculation of their pension which will result substantial burden on already frail financial resources of the province.
4. The Registrar of this court submitted a brief note along with some documents that the power to sanction the pension and treat the judicial allowance as part of pension to the members of High Court Establishment lies with Hon'ble Chief Justice. Such power is exercised under High Court of West Pakistan (Civil Service) Delegation of Powers Rules, 1960 as mentioned at Serial Nos.35 and 36, Appendix A. While deciding the request of Justice (retired) Mr. Muhammad Sadiq Leghari for including judicial allowance as part of pension, the then Hon'ble Chief Justice Mr. Justice Sabihuddin Ahmed (late) was pleased to order as under:---
"Judicial allowance is payable to sheerly by virtue of a person's being a judicial officer and even taken such officer is not performing strictly judicial functions, there appears no reasons for excluding it from "emoluments" for the purpose of pension "A" is approved--- Sd/-".
5. It was further stated by the Registrar that the Administration Committee on 17-2-2007 resolved that the judicial allowance to be made part of pension which shall take effect from the date when the same was paid to the judicial officers and as such it was retrospectively applied w.e.f. 3-1-2000. Thereafter, some staff members had submitted joint application for extending such benefit to them as they too were getting judicial allowance in their pay. The note was placed before the then Hon'ble Chief Justice and his lordship vide order dated 3-2-2011 was pleased to extend the benefit of calculating judicial allowance in the pension of members of High Court Establishment with immediate effect and the notification was issued on 4-2-2011. Some retired employees of High Court who stood retired before issuance of such notification and were getting judicial allowance in their pay, applied to this court requesting that such benefit may also be extended to them. The matter was placed before the then Hon'ble Chief Justice and the benefit was extended w.e.f. 3-1-2000 (the date when the same was extended to the judicial officers). However, as the judicial allowance was being paid to the members of High Court Establishment w.e.f. 1-7-2003 and not from 3-1-2000, as such in order to rectify this date, the note was placed again before the then Hon'ble Chief Justice and his lordship was pleased to approve the same therefore, notification and corrigendum were issued accordingly. The Finance Department drew the attention towards Article 486 of Civil Service Regulation and took the view that there is no mention of word "judicial allowance" in the said provision therefore vide letter dated 17th May, 2013, the Registrar of this Court again communicated the administrative order dated 6-7-2012, passed by the then honorable Chief Justice to the Secretary Finance, Government of Sindh which is reads as under:---
"Examined. Since judicial allowance per policy decision dated 13-4-2006 of the then Hon'ble Chief Justice (late Sabihuddin Ahmed) is treated as emolument for the purpose of pension, in respect of judicial officers. Similar consideration was not extended to other staff/members of High Court Establishment. Erstwhile A.C. in its meeting dated 17-2-2007 made applicability of judicial allowance w.e.f. 3-1-2000 (i.e. retrospectively) benefit of judicial allowance was however extended to the staff and officers of High Court of Sindh by the competent authority the then Hon'ble Chief Justice (Justice Sarmad Jalal Osmani) on 4-2-2011 with immediate effect.
Since in principle it is decided that staff/officers of this court are allowed/entitled to judicial allowance which is treated as emolument for the purpose of pensionary benefit per terms of clause 486 section IV Allowances. Reckoned for pension of "Compendium of pension Rules and Orders. Therefore, in order to be fair, just and equitable judicial allowance would be applicable and extendable to staff/members of H.C. Establishment from the date applicable to judicial officers i.e. w.e.f. 3-1-2000."
6. The learned counsel for the petitioner argued that the Registrar submitted a reference on 14-1-2010 to the competent authority regarding the application of employees and the Hon'ble Chief Justice directed to put up the matter with relevant rules. In compliance of the directions the Registrar submitted Clause 486 of the Compendium of Pension Rules and Order and stated that judicial allowance is a Special Allowance which falls under the category (c) and (h) thereof and as such the said allowance is an integral part of Salary of the Employees of the High Court of Sindh. It was further contended that the Chief Justice is the Competent Authority to treat the Judicial Allowance as part of Pensionable Pay. The High Court (Civil Services) Delegation of Powers Rules, 1960 does not permit Accountant General Sindh or Finance Department to undo or revise the order passed by the Competent Authority. It was further averred that in the pension of some of the retired employees of Sindh High Court, judicial allowance has already been included but other retired employees have been denied therefore, the Accountant General Sindh vide letter dated 30-8-2012 requested the Finance Department to allow judicial allowance to be counted in calculation of pension of the retired staff/officers of Sindh High Court as directed by the Chief Justice but Finance Department vide its letter dated 1st October, 2012 declined to act on the said direction of the Chief Justice and misinterpreted Article 486 of the Sindh Civil Service Regulations. He referred to Article 208 of the Constitution of Pakistan which empowers High Court to make rules for the appointment and frame the terms and conditions of employment. Article 260 of the Constitution defines remuneration as remuneration includes salary and pension therefore the High Court has powers to decide and issue directions in this regard. He also referred to Rule 2 of the High Court of West Pakistan (Civil Service) Designation of Powers Rules, 1960 in which the Chief Justice has the powers of Government in the Administration Department under the Civil Service Rules in force in the different integrating units of West Pakistan, in respect of the officers and servants of the High Court, its Benches and Circuits. Serial 35 of the Appendix 'A' of the High Court of West Pakistan (Civil Services) Delegation of Powers Rules, 1960, gives full power to the Chief Justice to sanction pension. He also focused on the independence of the Judiciary as mandated under Article 175 of the Constitution of Pakistan. Lastly he referred to the list to show that in the monthly pension of at least 15 retired employees of this court, the judicial allowance was added and has been given effect in the pension amount/calculation. In order to strengthen his arguments, the learned counsel referred to PLD 1994 SC 105, 1997 SCMR 141, PLD 1993 SC 375 and 1991 MLD 2546.
7. The learned Additional Advocate-General Sindh argued that in fact the special judicial allowance allowed by this court in the case of Amanullah Khan Yousufzai v. Federation of Pakistan and others reported in PLD 2011 Karachi 451 is already under challenge before the apex Court. The petition was disposed of with the directions to the Government of Sindh to pay special judicial allowance equal to three times of the initial of their substantive pay w.e.f. 1-3-2010 when such allowances were extended to servants and employees of this court through Notification dated 2-4-2010 issued by the honorable Chief Justice. Though he did not controvert the High Court of West Pakistan (Civil Services) Delegation of Powers Rules, 1960 through which the powers have been delegated to the Chief Justice as specified in column-2 of Appendix 'A' and the powers in respect of the officers and servants of the High Court, its Benches and Circuit other than C.S.P. and P.C.S. Officers but he made much emphasis on Sindh High Court Establishment (Appointment and Conditions of Service) Rules, 2006 and referred to Rule 15 which relates to the terms and conditions and argued that under the first proviso the powers of the Provincial Government shall be exercised by the Administration Committee or such other Judges upon whom the power may be delegated by the Administration Committee however, in the second proviso the Chief Justice whenever thinks fit may grant Special Allowance to any officer or an employee keeping in view the nature of services that he is required to perform. Rule 17 deals residuary powers which provides that all matters not specifically provided for in these rules, or in the provisions referred to in Rule 15 and all questions relating to the detail working of these Rules shall be regulated in accordance with such orders as the Chief Justice may make. While under Rule 19, Full Court by a Majority Vote may make amendment in the Rules. He also referred to Article 38 of the Civil Service Regulations (C.S.R) according to which pay means monthly substantive pay which includes also overseas allowance and technical allowance while the salary means sum of pay and acting allowance or charge allowance under Article 94 of Chapter-VIII. He also made reliance on Article 486 of the Civil Service Regulations (C.S.R) and argued that the term emoluments include pay as defined in F.R. 9 (21) (a) (i), Senior Post Allowance, Special Pay of all types and nature, personal pay, Technical Pay, Index Pay, increments accrued during leave preparatory to retirement and any other emoluments which may specially classed as pay. It was averred that the judicial allowance cannot be treated part of emoluments as no such allowance is added in the definition of emoluments therefore the Judicial Allowance is not reckonable for the purposes of calculation of pension of the retired employees of the High Court. He also referred to a letter dated 29th August, 2012 written by the Additional Secretary Finance Department, Government of Punjab to the Registrar Lahore High Court and argued that Lahore High Court also issued Administrative Notification declaring Judicial Allowance and Special Judicial Allowance as part of pay for the purposes of pension of Judicial Officers and Members of Establishment of Lahore High Court but in response to Notification, the Finance Department took the view that the pensioners of the Government or of the High Court constitute a class and draw their pension benefits under the Pension Rules, 1955 and have to be treated alike. The effect of the disputed notification is to allow higher pension benefits to retired judicial officers and employees of High Court as compared to other retired employees and the request was made by the Finance Department Government of Punjab to the Registrar Lahore High Court to withdraw the Notification. However the learned A.A.-G. could not controvert the plea that in the case of some individual employees of this court, the judicial allowance has already been made reckonable for their pension calculation and they are drawing the effect of this allowance in their pensions but a large number of employees have been deprived and discriminated. He further referred to Rule 5 of the Sindh Judicial Staff Service Rules, 1992 which provides that the pay scales and allowances of the members of staff shall be as prescribed by Government from time to time.
8. The learned counsel for the petitioner and the learned A.A.-G. both had agreed that this petition may be disposed of at Katcha peshi stage and they argued their case extensively.
9. Heard the arguments. According to Rule 2 of the High Court of West Pakistan (Civil Services) Delegation of Powers Rules, 1960, the Chief Justice of the High Court of West Pakistan have the powers in respect of Judicial Officers up to the level of District and Sessions Judges and all the powers of Government in the Administrative Department under the Civil Services Rules in force in the different integrating units of West Pakistan in respect of the officers and servants of the High Court, its Benches and Circuits other than C.S.P, and P.C.S. officers, and the establishment of the Civil and Sessions Courts. For ready reference and convenience, Rule 2 of High Court of West Pakistan (Civil Services) Delegation of Powers Rules, 1960 is reproduced. as under:---
2. Notwithstanding any provision to the contrary in any Civil Services Rules for the time being in force in the Province or any part thereof, the Chief Justice of the High Court of West Pakistan shall have ---
(i) the powers specified in column 2 of Appendix 'A' to these rules to the extent mentioned in column 3 thereof in respect of Judicial Officers up to the level of District and Sessions Judges; and
(ii) all the powers of Government in the Administrative Department under the Civil Services Rules in force in the different integrating units of West Pakistan, in respect of -
(a) The officers and servants of the High Court, its Benches and Circuits other than C.S.P. and P.C.S. officers, and
(b) The establishment of the Civil and Sessions Courts.
10. Appendix "A" of the aforesaid Rules elucidates and explicates the delegation of powers to the Chief Justice in respect of judicial officers. Entry No.35 delegates the chief justice full power to sanction pension provided the pension is covered by the rules and the certified by the Audit Officer to be admissible and no deduction is to be made therefrom while Entry No.36 delegates the powers to sanction commutation of pension provided the conditions laid down in the rules are fulfilled.
11. In the case of Government of Sindh v. Sharaf Faridi reported in PLD 1994 SC 105, the honorable Supreme Court held that "financial independence of the judiciary can be secured if the funds allocated to the Supreme Court and High Courts (by the Parliament and the Provincial Assemblies in their respective annual budgets) are allowed to be disbursed within the limits of the sanctioned budget by the respective Chief Justices of these Courts without any interference by the Executive (in practical terms without reference and seeking the approval of the Ministry of Finance/the Provincial Finance Department). Thus, the Chief Justice would be competent to make reappropriation of the amounts from one head to another, create new posts, abolish old posts or change their nomenclature and to upgrade or downgrade etc. as per requirements of their respective Courts and this should be possible, as has been observed earlier, without being obliged to seek the approval of the Ministry of Finance or the Provincial Finance Departments as the case may be, provided of course the expenditure that is incurred by them falls within the limits of the budget allocation for their Courts. To ensure financial discipline, as Accounts Officer of the Accountant-General may sit in all Courts for pre-audit and issue of cheques. In this way, the control of the executive over the judiciary in this important sphere will be eliminated and the judiciary enabled to function independently."
12. In the case of Registrar, Supreme Court of Pakistan, Islamabad v. Qazi Wali Muhammad reported in 1997 SCMR 141, the apex Court held that "the status of persons employed in the Provincial High Courts, Federal Shariat Court and the Supreme Court of Pakistan and whose terms and conditions were governed under the rules framed by virtue of Article 208 of the Constitution directly arose in the case of Government of Punjab v. Mubarik Ali Khan, supra, and the view taken by the High Court in that case that the employees of the Provincial High Court, Lahore, do not find within the category of civil servants as defined in the Civil Servants Act". In the case Mubarik Ali Khan supra, PLD 1993 SC 375 the apex court held that "the Legislature was not given any role to determine the terms and conditions of the employees including their remunerations and this exclusionary rule was found in conformity with the concept of independence of judiciary as enshrined in the Constitution". It was further held by the apex court that "the definition of service of Pakistan itself divides those included into two broad categories i.e. one of those employed in connection with the affairs of Federation and the other of those employed in connection with the affairs of a Province. Applying this definition, the employees of the High Court Establishment would fall within the definition of service of Pakistan and have been taken to be employed in connection with the affairs of the Province".
13. Article 208 of the Constitution of Pakistan provides in clear terms that the Supreme Court and the Federal Shariat Court, with the approval of President and a High Court, with the approval of Governor concerned, may make rules providing for appointment by the Courts of officer and servants of the Court and for their terms and conditions of employment. Why the officers and servants of the Superior Court are to be treated differently than the civil servants employed by the Government is not far to see. The object in making special dispensation for the officers and servants of the Court as provided by Article 208 of the Constitution is to secure the independence of the Superior Courts which is essential for the working of any democratic form of Government. The Constitution ensures that as far as possible the High Court should remain independent and free from interference in its affairs by the executive authorities. Reference can be made to 1991 MLD 2546.
14. The Sindh…
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