Just for Knoweldge

 “JUST FOR KNOWLEDGE 

Extract from the judgement of Paras of ICA No.50253/2019 for the information of all concern PTCL pensioners that two family  pensions can be granted to Widow, unmarried  or widow or divorced daughter or entitled children , whose parents ie father and mother were govt servants and died.

In this judgement the LHC quoted the reference of our HSCP case of dated 

12-6-2015

Advised to go through it minutely.

IN THE LAHORE HIGH COURT AT LAHORE JUDICIAL DEPARTMENT

ICA No.50253/2019

Province of Punjab through Secretary Finance, Lahore etc.

Versus

Kanwal Rashid

JUDGM E NT

Date of Hearing 27.1.2020

Respondent By: Rana Asad Ullah Khan, Advocate.

Ayesha A. Malik J: Through this ICA, the Appellant Province of Punjab has challenged judgment dated 15.2.2019 passed by the learned

Single Judge in WP No.24111/2017.

2. The basic facts of the case are that the Respondent being the daughter of government servants, received pension of her father, Professor S.A Rashid who died on 22.10.1983 and the pension of her mother, Professor Mrs. Shamshad Rashid who died on 12.8.2009. The Respondent was receiving the pension until October 2016 when the pension of her father was not released in her favour. On inquiry, the Respondent was informed that she is only entitled to receive the pension of her mother in terms of the clarification issued by the Finance Department vide notification dated 11.9.2015. The Respondent challenged the matter by filing WP No.24111/2017 before this Court wherein the said petition, after hearing both parties was decided in favour of the Respondent vide judgment dated 15.2.2019 (impugned herein). The Court while relying on the meaning and purpose of pension concluded that Notification dated 11.9.2015 cannot be applied retrospectively on the Respondent whose parents died in the year

Para-8   Extract from American Jurisprudence, Vol 40, pages 980 and 981 provides that the right to pension depends upon statutory provisions 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 through a pension act. In Ghulam Sadiq v. Government of Pakistan (2005 PLC (CS) 1114), a larger Bench of the Federal Shariat Court held that:

It may be noted here that the terms pension denotes to a “grant” after release from service and right of pension depends upon the statutory provisions regulating it, therefore, to our mind, the pensioners retired at different dates cannot claim increase in pension at a particular rate.

In Pakistan Telecommunication Employees Trust (PTET) v. Muhammad Arif (2015 SCMR 1472) and Secretary, Government of Punjab, Finance Department v. M. Ismail Tayer (2015 PLC (CS) 296), the august Supreme Court of Pakistan held that:

It was noted, and such has been done time and again by this Court that pension is a part of a civil servant‟s retirement benefit and is not bounty or an ex-gratia payment but a right acquired in consideration of his past service which was a vested right with legitimate expectation. The right to pension is conferred by law which could not be arbitrarily abridged or reduced except in accordance with law.

In Federation of Pakistan v. I.A. Sharwani (2005 SCMR 292), the august Supreme Court of Pakistan held that:

As a rule, the right of pension depends upon statutory provisions regulating it, therefore, the existence of such right or otherwise is determined primarily from the terms of the statute under which the right or privilege is granted. In general sense the term „pension‟ denotes to a grant after release from service. It is designed to assist the petitioner in providing for his daily wants and it presupposes the continued life after retirement.

Para-9        Therefore in view of the various different dictas of the august Supreme Court of Pakistan, we are of the opinion that pension is the right of the civil servant by way of statute, which cannot be taken away arbitrarily by the Government of Punjab. This right accrues in favour of the retired civil servant due to the length of their service and that right is then bestowed upon the persons mentioned in the Rules in the event of their death. Therefore we find that the basic contention of the Appellant that the Respondent is not entitled to two pensions is misconceived because each of the parents of the Respondent have earned their pension in their own right, while working for the Government of Punjab. Consequently on their death, that right is now vested in the Respondent who is entitled to collect the pension subject to the terms provided in the Rules. As per Notification dated 22.7.1989, the Respondent being an unmarried daughter is entitled to receive pension of both her parents until her marriage or on acquiring regular source of income, whichever is earlier.

10. The Appellants issued clarification dated 11.9.2015 in which Deputy Secretary (SR), Finance Department in the form of an interpretation of the Rules construed that where a child is to receive two pensions, pension of one parent will be deemed to be a regular source of income thereby denying the child/daughter the pension of the other parent. We are of the opinion that this argument is totally flawed. The Rules provide that an unmarried daughter will be denied pension on her acquiring regular source of income which means that she must acquire, of her own vocation and skill, some form of income as a means of supporting herself. The pension that she receives of her parents cannot be considered as an independent or regular source of income that she is earning in her own capacity. We have considered this argument at great length and find that if this reason is accepted then the widow of a deceased government servant, who may still be in the service of Government of Punjab may also lose the right of pension as they are earning in their own right, yet are also entitled to the spouses pension. In this regard, family pension is admissible to the son until the age of 24 or until he is gainfully employed. In terms of this Rule, it is considered that the son should be able to earn for himself by the age of 24 whereas in the case of a daughter it is either when she gets married or when she is able to earn a regular source of income. In the case of the daughter the age bar has been removed, for a reason, giving the daughter more time to earn a regular form of income, in her own capacity or to get married. Hence we find that the clarification issued on 11.9.2015 is totally without basis as the pension of the parents of the Respondent cannot be construed as a regular source of income since pension is the right of the pensioner on account of length of their service which in turn creates an entitlement in favour of the family members. Furthermore we find that in terms of the Rules, if the daughter gets married or starts earning in her capacity, she is no longer entitled to pension. This reasoning in itself suggests that pension is a means of sustaining the daughter until a more permanent means of sustenance. Hence pension cannot be considered as a regular source of income for the daughter as its whole purpose is to give her time to find a regular source of income.

11 .  We also note that in terms of Section 23 of the Act, any change in the rules will be made by the Governor. The Deputy Secretary cannot by way of clarification notification dated 11.9.2015 take away a right which the Rules have clearly prescribed. The Rules are beneficial legislation which conditions the right of a family pension and the Appellant cannot take away that right under the garb of a clarification. There is nothing in the Rules that deprives the Respondent from receiving two pensions and in the absence of a clear prohibition under the Rules, family pension to a deceased government servant has to be construed liberally in favour of the child of the civil servant. In terms of the dicta laid down by the august Supreme Court of Pakistan in The Government of NWFP through the Secretary to the Government of NWFP, Communication and Works Department, Peshawar v. Mohammad Said Khan and another (PLD 1973 SC 514) pension can only be refused in the manner provided in the Rules. In this case, the Rules do not prohibit the grant of two pensions, hence it cannot be denied to the Respondent on the basis of a clarification notification. We are of the opinion that to take away this benefit, by construing the meaning of Rule 4.10 of the Rules in a narrow manner would defeat the purpose of the beneficial leg tion, being the Rules and would unfairly deprive the Respondent of the benefit of Rule 4.10 of the Rules.

12. Under the circumstances, the instant ICA is dismissed and impugned judgment dated 15.2.2019 passed by the learned Single Judge in WP No.24111/2017 is maintained for the aforementioned reasons.

13. One of us (Asim Hafeez, J.) though agree with the findings and conclusion of the instant appeal, has given his observations through a separate note which is part of this judgement.

(Asim Hafeez).                   (Ayesha A Malick)

      JUDGE                                      JUDGE

(Muhammad Tariq Azhar)