Full Judgment Text & Judicial Ruling

1991 P L C (C

1991 P L C (C.S.) 519

[Lahore High Court]

Before Ihsan-ul-Haq Chaudhry, J

Maj. (Retd.) KHALIQ-UZ-ZAMAN

Versus

CHAIRMAN, BOARD OF DIRECTORS, GHEE CORPORATION OF PAKISTAN and others

Writ Petition No. 2851 of 1988, heard on 16th March, 1991.

Constitution of Pakistan (1973)---

----Art. 199---Pension, deduction from---Petitioner a retired Major of Pakistan Army, joined Ghee Corporation as Security Officer---Petitioner continued getting pension as well as salary and initially resisted deduction of pension from his salary but later on agreed that same be deducted from his salary---Grievance of petitioner was that Corporation was also pressing for deduction for payment made during disputed period---Record showing that Service Rules of Ghee Corporation were amended and Corporation started making deductions and petitioner ultimately exercised his option and agreed to the said deduction-- Amendment in Rules being not retrospective in effect, recovery of pension from salary of petitioner for disputed period was illegal.

Khuda Dad Khan v. Military Accountant-General and 2 others1984

P L C (C.S.) 870 ref.

S.M. Masood for Petitioner.

Dr. Shaukat Hussain for Respondents.

Date of hearing: 16th March, 1991.

JUDGMENT

The petitioner through this Constitutional petition has prayed that the action of the respondent in deducting pension from salary of the petitioner for the period from 28-3-1980 to 28-12-1987 is without lawful authority and jurisdiction.

2. The relevant facts are that the petitioner, who is a retired Major of Pakistan Army, joined respondent No. 1 on 13-2-1975 as a Security Officer in Fatal Vegetable Ghee Mills Ltd., Islamabad. The petitioner continued getting pension as well as the salary from the respondent till 1987 when he was asked either to retire or allow the deduction of pension from his salary. It seems that the petitioner initially resisted this but subsequently agreed that the pension be deducted from his salary. The grievance now is that the respondents are also pressing for deduction for the payments made during the disputed period. The petition was admitted to hearing and notices were issued to the respondents, who have entered appearance and contested the petition.

3. The learned counsel for the petitioner in support of the petition argued that there was no mention of deduction of pension in the appointment letter dated 24-2-1975. It is added that the petitioner has met discriminatory treatment as much as other colleagues have been allowed benefit of pension and no deduction was made for the disputed period. The learned counsel submitted that this point has been thrashed out by Federal Service Tribunal in the case of Khuda Dad Khan v. Military Accountant-General and 2 others 1984 P L C (C.S.) 870. This decision was upheld by the Hon'ble Supreme Court and civil petition moved by the Federation of Pakistan and others was dismissed. The learned counsel has placed photo copies of the same in addition to the legal opinion of the Ministry of Law and Parliamentary Affairs dated 15-7-1984.

4. On the other hand, learned counsel for the respondent argued that there are two cadres in the Ghee Corporation. One regular, the officials in this cadre were asked to reimburse the pension from their salary in view of the instructions of Government. They were, however, given option to retire from the regular cadre and accept service on contract basis. While in respect of the officials serving on contract basis there was no condition of reimbursement of pension. It is submitted that since the petitioner did not exercise the option to switch over to contract basis and also resisted the move for reimbursement of pension, therefore, orders were made. It is added that the case of the other officers relied by the petitioner is not relevant.

5. I have given my anxious consideration to the arguments of the learned counsel for the parties. The admitted position on record is that the service rules of the Ghee Corporation were amended and the respondents started making deductions. The petitioner represented against this but of no avail. He was asked to exercise option. He ultimately agreed that deduction of the pension be made from his salary but thereafter cropped question of refund for the disputed period. The learned counsel for the respondent referred to the appointment letter of the petitioner appended as Annexure `A' with the writ petition. It is argued that the board was competent to amend the rules from time to time. The question is not of amendment of the rules and the petitioner is not challenging the same. The question is whether the amendment in the rules and regulations can be given retrospective effect by respondent No. 1. The reply is definitely in negative. This fact alone is sufficient to grant this writ petition.

6. It is admitted on behalf of the respondents that no recovery was made from the officers who opted to shift to contract basis instead of regular basis. This definitely is again discriminatory treatment because the said officers were employed on regular basis at the relevant time and they were allowed to pocket the pension without reimbursement. The respondents cannot have two standards for different persons.

The result is that this petition is allowed, the action of the respondent so far recovery of deduction of pension from the salary of the petitioner from ($ 28-3-1980 to 28-12-1987 is declared illegal. There is no order as to costs.

M.Y.H./K-312/L Petition allowed.

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