MUHAMMAD ZAMAN KHAN Versus FEDERATION OF PAKISTAN

ORDER

JAWAD HASSAN, J.--- Through this second Writ Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the Petitioner has raised his voice against inaction of the concerned authority/Respondent on the issue of his pension.

2. At the outset, Mr. Inam-ul-Rahiem, ASC, with permission of the Court has amended the prayer clause of this Petition, with red ink, in the following manner:

"The order dated 17.03.2023, passed by the Secretary Defence may please be set aside as it violtes Chapter 1 of Common Provisions, declaration 3(a)(2) of the Pension Regulation (Armed Forces) 2010."

3. Brief facts of the case are that the Petitioner, aged about 91 years, joined the Pakistan Army as a boy in the year 1949 in the Corps of Signals. On 21.12.1951 he was granted the rank of soldier/Sepoy. After attaining the requisite qualification and standards he was granted Commission as a 2nd Lieutenant on 07.05.1960 within the same Corps. On 19.10.1963, he was compulsory retired from service after 12 years, 1 month and 10 days and was awarded compensatory pension. The Petitioner many times approached the Respondents for pension dues by condoning the deficiency of 10 months and 20 days but of no avail; ultimately the impugned order has been passed by the Respondent No.1, hence, this Petition.

4. Learned counsel for the Petitioner submitted that previously the matter was agitated in Writ Petition No.2723/2022 and pursuant to the direction issued by this Court vide order dated 29.09.2022, the Respondent No.1/Secretary, Ministry of Defence Division, Rawalpindi has passed the impugned order dated 17.03.2023, which is illegal and against provisions of the relevant law.

5. Conversely, learned Law Officer has vehemently objected to the maintainability of this Petition and prayed for its dismissal.

6. Heard. Record perused.

7. Perusal of record reveals that the Respondent No.1 while passing the impugned order mentioned the factual position in the paragraph No.6 (c) that the case regarding waiver of 10 months and 20 days of service to make complete 13 years, qualifying service for pension was examined in consultation with the Military Finance and regretted in the year 1977; and subsequently dismissed the Petitioner's representation by stating that the relief sought by him did not cover under the existing Rules and Regulations. But the Regulation 3(a)(2) of the Chapter 1 Common Provisions, Pension Regulations Volume I (Armed Forces) 2010 (the "Regulations") provides condonation of deficiency/interruption in Service/Rank more than six months but less than one year in service. Regulations 32 and 33 are also relevant to the Petitioner's case. It shows that the Respondent No.1 passed a non-speaking order which is not sustainable in the eye of law. The Hon'ble Supreme Court of Pakistan in the case of "Mollah Ejahar Ali v. Government of East Pakistan and others" (PLD 1970 SC 173) has explained the need and importance for passing a speaking order by stating that:

"There is no doubt that the High Court's order which is unfortunately purfunctory gives the impression of a hasty off-hand decision which, although found to be correct in its result, is most deficient in its content. If a summary order of rejection can be made in such terms, there is no reason why a similar order of acceptance saying "there is considerable substance in the petition which is accepted", should not be equally blessed. This will reduce the whole judicial process to authoritarian decrees without the need for logic and reasoning which have always been the traditional pillars of judicial pronouncements investing them with their primary excellence of propriety and judicial balance. Litigants who bring their disputes to the law Courts with the incidental hardships and expenses involved do expect a patient and a judicious treatment of their cases and their determination by proper orders. A judicial order must be a speaking order manifesting by itself that the Court has applied its mind to the resolution of the issues involved for their proper adjudication. The ultimate result may be reached by a laborious effort, but if the final order does not bear an imprint of that effort and on the contrary discloses arbitrariness of thought and action, the feeling with its painful results, that justice has neither been done nor seems to have been done is inescapable. When the order of a lower Court contains no reasons, the appellate Court is deprived of the benefit of the views of the lower Court and is unable to appreciate the processes by which the decision has been reached."

8. Similarly, the Honorable Courts in various judgments, has directed several authorities to adhere to the above-mentioned principle while passing a speaking order with reasons and after keeping in view the facts and circumstances of the case, applicable law as well as precedents, if available. Reliance is placed on the case titled "Town Committee, Piplan v. Muhammad Hanif and others" (2008 SCMR 723).

9. It is also worth mentioning that it is inalienable right of every citizen to be treated in accordance with law as envisaged by Article 4 of the Constitution. Hence, it is the duty and obligation of every public functionary, including the Respondent No.1, to act within the four corners of the mandate of the Constitution and pass a speaking order.

10. In view of above, as the Petitioner's grievance has not been properly redressed, therefore, this writ petition is allowed, impugned order dated 17.03.2023 is set-aside to the extent of paragraph No.6(c); and the matter is remitted back to the No.1/Secretary, Ministry of Defence Division, Rawalpindi; who shall decide the issue afresh strictly in accordance with law especially the Regulations 3(a)(2), 32 and 33 of the Regulations; through speaking order clarifying all aspects as urged by the Petitioner, by providing proper hearing to all concerned including the Petitioner within a period of two (02) months from receipt of certified copy of this order, under intimation to the Deputy Registrar (Judicial) of this Court.

SA/M-95/L Petition allowed.