SECRETARY TO THE GOVERNMENT OF PAKISTAN. MINISTRY OF FINANCE and others vs MUHAMMAD HUSSAIN SHAH and others

ORDER

' TASSADDUQ HUSSAIN JILLANI, J.---Through this order we intend to dispose of Civil Petitions Nos.910, 940 to 970, 1884 to 1887 and 1957 of 2004, as common questions of facts and law are involved.

2. Through these petitions petitioners seek leave to appeal against impugned judgments, dated 27-2-2004, 1-6-2004 and 28-6-2004 vide which the learned Federal Service Tribunal allowed the appeals of the respondents and held that their personal allowance being drawn at the time of their retirement shall be reckoned towards calculation of their pension/Commutation.

3. Facts in brief are that respondents' civil servants served in the Federal Secretariat in various capacities and retired prior to September, 1993. During their service the Secretariat Allowance which the respondents had been receiving had been converted into personal allowance vide office memo. Dated 18-12-1989. At the time of their retirement they were receiving the said allowance, therefore, they claimed that the said allowance be counted towards calculation of their pension.

The department turned down this prayer. The respondents filed appeals before the Federal Service Tribunal. The appeals were allowed vide impugned judgments.

3-A. The grounds which found favor with learned Tribunal were that the Supreme Court had already allowed similar relief in Civil Appeal No,1298 of 1995 Asghar Mahmood and others v. Finance Division and others and Civil Petitions Nos.350 to 399 of 2002 Asghar Ali v. Federation of Pakistan and others, that the notification rescinding the order converting Secretariat Allowance into personal allowance could not be applied retrospectively and that the amendment in CSR 38(c)(i) whereby personal allowance was deleted as reckonable emolument for calculation of pension came much later than the retirement of the respondents, therefore, they could not be deprived of the said benefit which already stood accrued to them.

4. Learned counsel for the petitioners sought leave on the ground that by virtue of section 2 of Ordinance XII of 2000 the order converting the Secretariat Allowance-into personal allowance had been rescinded with retrospective effect, that the case of the respondents was distinguishable from those who were party in Civil Appeal No,1289 of 1995 and Civil Petitions Nos.350 to 399 of 2002 as they retired during the period from 16-6-1994 to 23-5-1996 and on the eve of their retirement they were drawing personal allowance.

5. We have gone through the impugned judgments and have given anxious consideration to the submissions made.

6. Admittedly respondents retired prior to September, 1993 and at the time of their retirement all of them were drawing personal allowance. At that time CSR 38(c)(i) provided that personal allowance shall be reckoned as emolument for calculation of pension and this provision of CSR, it is not denied, was amended later on 23-5-1996. That being so at the time of their retirement a vested right had accrued in their favor in terms of unamended CSR 38(c)(i) to have their personal allowance reckoned in calculation of their pension. The ratio laid down by this Court in two cases, reference to which has been made in the impugned judgment Civil Appeal No, 1289 of 1995 and Civil Petitions Nos.350 to 399 of 2002 is applicable to the instant case as well. A reference to the operative part of the said judgment of this Court would be in order, which is as under:--- ' "It is a well-settled proposition of law that a notification cannot operate retrospectively if it is to affect adversely interest of any person. In this regard reference may be made to the case of Messrs Army Welfare Sugar Mills Ltd. And others v. Federation of Pakistan and others 1992 SCM R 1652 and Hashwani Hotels Ltd. v. Federation of Pakistan PLD 1997 SC 3150."

' Learned counsel for the petitioners was specifically asked that if the Federal Government was not satisfied why it did not file any review application against the afore-referred judgments of this Court to which he had no answer.

8. For afore-referred reasons the impugned judgments are unexceptionable and do not call for interference. The petitions having no merit are dismissed and .