July 2024

PLJ 2024 AJ&K 99

Present: Syed Shahid Bahar, J.

MUHAMMAD BASHIR KHAN--Petitioner

versus

AZAD GOVT. OF THE STATE OF JAMMU & KASHMIR through its Chief Secretary, Muzaffarabad, Azad Kashmir
and others--Respondents

W.P. No. 759-A of 2020, decided on 19.1.2024.

Azad Jammu and Kashmir Civil Servants (Pension) Rules, 1971--

----Rr. 5.1 & 5.2--AJK Interim Constitution, (VIII of 1974), Art. 44--Retirement after superannuation--Non-payment of pensionary benefits--Obligation of--Direction to--petitioner was retired from service in year 2017 as Junior Clerk but his pension payment order had not been finalized after passing many years till today--All concerned authorities were under legal obligation to sanction pension a month before date of retirement--This statutory provision had been ignored which resulted into creating hardships and anomalous situations and agony for retiring petitioner--Petition accepted. [P. 102] A, B & C

2015 SCR 1396 ref.

Barrister Humayun Nawaz Khan, Advocate for Petitioner.

Representative of Education Department.

Date of hearing: 19.1.2024.

Judgment

1. Expressum Facit Cessare Tacitum.

Supra maxim of law denotes that something expressed nullifies what is unexpressed. If doing of a particular thing was made lawful doing of something in conflict with that would unlawful.

2. So the thing must be done in a way/procedure prescribed for it to get its validity in the eye of law otherwise it would not be conferred legality.

3. Lax and abstracted authority instead of adopting pragmatic approach slept over the matter for a long time, resultantly the petitioner a retired employee has been deprived from pensionary benefits. Exfacie it is a worst type of maladministration and administrative injustice on part of the relevant authority. Loath petitioner feeling aggrieved as a last resort invoked the extraordinary jurisdiction of this Court conferred under article 44 of the Interim Constitution, 1974. Thus, this Court cannot remain aloof and on looker.

A stanza from William Shakespeare’s sonnets :

4. The phoenix and tratle drew my attention while handing down the judgment in hand:

Truth may seem, but cannot be; beauty brag, but’ til not she; Truth and beauty buried be.

5. All sort of power take breath and colour from the power bank of relevant statutes under the umbrella of the Constitution.

6. Voltaire rightly said that every man is guilty of all the good he did not do.

7. 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 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 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; and

3) As social security payments for the aged, differently abled or deceased citizenry based on past.

Pension is a Right:

8. It goes without saying that a person who enters Government Service has something to look forward to post his/her retirement which are called retirement benefits, of which grant of pension is the most valuable of such benefits. Pension like salary of a civil servant is no longer a bounty or an ex-gratia payment but a right accrued / acquired in consideration of his/her past service which was a vested right with legitimate expectation. The right to pensions conferred by law which cannot be abridged or reduced arbitrarily except in accordance with such law.[1]

9. Through the titled writ petition filed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, the petitioner is seeking direction against the respondents to issue the Pension Payment order of petitioner and pay him monthly pension alongwith all benefits in accordance with law.

10. Brief facts forming background of the instant writ petition are that the petitioner is 1st Class State Subject of Azad Jammu and Kashmir, and he was retired from service as Junior Clerk on 26.02.2013 upon his superannuation vide order dated 15.03.2017 from Girls High School Nalian, District Sudhnoti. The petitioner contended that the respondents even after laps of more than three years (now six years) failed to pay the pension to the petitioner by issuing his pension payment order, under pretext of an audit para against the Girls High School Nalian, District Sudhnoti. The petitioner submitted various applications for obtaining his legal right of pension, but all in vain. Lastly, the petitioner submitted an application on 26.11.2019 and affidavit dated 29.1.2020 that in case any liability is declared against him, he would be liable for the same. The petitioner alleged that District Education Officer (Female) Elementary and Secondary Education wrote to the Headmistress of Girls High School Nalian, District Sudhnoti vide letter dated 03.03.2020 for issuance of NOC but she refused to issue the same on the ground that at relevant time of retirement, she was not holding the post of Headmistress, Girls High School Nalian, District Sudhnoti. The D.E.O E/S also wrote to the DPI (female) E/S vide letter dated 16.03.2020 by enclosing petitioner’s affidavit but no progress is being made till to date.

11. Writ petition was admitted for regular hearing on 07.07.2020 and respondents were directed to file written statement but respondents have failed to submit written statement, hence, their defence was closed on 1.2.2022.

12. Arguments heard. Record perused.

13. The claim of the petitioner is that respondents be directed to issue the Pension Payment Order of petitioner and pay him monthly pension alongwith all benefits of pension for which he is entitled, in accordance with law.

14. A perusal of file it reveals that the petitioner-Muhammad Bashir Khan on completion of age of superannuation dated 26.02.2017, retired from his service as a Junior Clerk from Girls High School Nalian, District Sudhnoti, vide order dated 15.03.2017 with all pensions privileges alongwith leave encashment. Annexure “PB” reveals that petitioner filed an application before D.P.I Schools (female) for obtaining NOC on 26.11.2019, which was received in the said office on 13.12.2019, however, after passing many years NOC has not been issued by the official quarters with one or the other reasons and petitioner herein has been constrained to approach this Court by filing this petition.

15. The petitioner was retired from service in year 2017 as Junior Clerk but his pension payment order has not been finalized after passing many years till today. Delaying of pension of the petitioner is against the spirit of law and concept of good governance as well as creates a question mark upon the performance of the official quarters. Whereas, according to the statutory provisions all the concerned authorities are under the legal obligation to sanction the pension a month before the date of retirement. It is usefully to refer here rules 5.1 and 5.2 of the Azad Jammu and Kashmir Civil Servants (Pension) Rules, 1971, as infra:

“5.1. All authorities dealing with applications for pensions under these rules should bear in mind that delay in the payment of pensions involves peculiar hardship. It is essential to ensure, therefore, that a Government servant begins to receive his pension on the date on which it becomes due.

5.2. The responsibility for initiation and completion of pension papers is that of the Head of Department/ Attached Department concerned in the case of gazette officers, and of the Head of Officer concerned in the case of non-gazzetted Government servants. The action should be initiated one year before a Government servant is due to retire, so that pension may be sanctioned a month before the date of his retirement. For this purpose, every Government servant should be asked to submit his pension application in Form 3 (Pen) 6 months in advance of the date of his retirement.

Provided that in case in which the date of retirement cannot be foreseen 6, months in the advance, the Government servant, may be asked to submit his pension application immediately after the date of his retirement is known.”

16. In this regard, reference can be placed upon the case reported as 2015 SCR 1396.

17. Unfortunately, this statutory provision has been ignored which resulted into creating hardships and anomalous situations and agony for the retiring person/petitioner.

18. For reason recorded above, the instant writ petition is accepted and official-respondents are directed to take immediate

[1]. Deokinandan Prasad v. State of Bihar (AIR 1971 SC 1409); Govt. of N.W.F.P v. Muhammad Said Khan (PLD 1973 SC 514); State of Punjab v. Iqbal Singh (AIR 1976 SC 667); I.A. Sharwani v. Govt. of Pakistan (1991 SCMR 1041); Secretary, Government of Punjab v. M. Ismail Tayer (2014 SCMR 1336); Pakistan Telecommunication Employees Trust v. Muhammad Arif (2015 SCMR 1412) and Riffat Sattar v. Govt. of Punjab [2016 PLC (C.S) 472].