M.H. MIRZA vs FERDERATION OF PAKISTAN through Secretary, Cabinet

SHAFIUR RAHMAN, ACTG. CJ.---Leave to appeal has been granted to examine whether the appellant was not entitled to the benefits of pension on the analogy of the decision of this Court in Muhammad Masihuzzaman v. Federation of Pakistan (PLD 1992 SC 825).

' The appellant had joined the Pakistan Navy on 30-10-1948. After giving up his service in the Pakistan Navy, he joined the Capital Development Authority on 15-11-1963 as Assistant Engineer (Electrical). Two relevant conditions of his appointment were as hereunder:- (i)

"(a) The post offered is purely temporary, non-pensionable and equal in status to that of Sub- Divisional Officers (Gazetted Class II) in the P.W.D."

(ii)

"(f) In all other respects your services will be governed by the appropriate rules and regulations of the Authority in force from time to time and where there are no such rules/regulations, the rules, etc., in force in the Central Government."

3. On 30-11-1980 he submitted an application praying as hereunder:- "I strongly feel that I also cannot discharge my official obligation to the best of my capabilities and entire satisfaction. I have, therefore, decided to seek premature retirement from CDA. I shall be grateful if 205 days leave which is due to me according to the attached certificate may be granted to me from the date of approval and on the expiry of leave, I may be retired from service."

' An order in terms hereunder followed on 30-12-1980:- "The CDA Board has approved the premature retirement of Mr. M.H. Mirza, Dy. Director (Inspection), P&S Dte. From service of the Authority at his own request and has allowed him to avail leave preparatory to retirement on full pay for 205 days w,e,f. 1-1-1981. All concerned are requested to issue a No Demand Certificate in respect of the said officer."

4. The. Capital Development Authority promulgated the CDA Pension Regulations, 1981 on 1-7-1981.

The Regulations were not to apply to those who held posts which were declared to be non- pensionable [Chapter I, clause 2(ii)(c)]. With regard to option, it was provided in Regulations [clause 3(ii)] as hereunder:- "The employees who have retired/invalidated/died on or after notification of these Regulations shall be deemed to have opted for these Regulations provided these Regulations were otherwise applicable to them."

5. The appellant being then on leave preparatory to retirement exercised his option, wanted to come back and complete his twenty-five years of service and receive pension for the service so rendered. There was difference of opinion with regard to his entitlement to receive pension and to come back from leave preparatory to retirement between the Government and the CDA. He kept agitating over the matter and ultimately filed a Constitution petition in the High Court, in 1992. This petition was dismissed with the observations as hereunder:-- "The petition, therefore, is hit by the principle of laches and the same is liable to be dismissed on this short ground alone. The petitioner even has no case on merits. The scheme for pension was introduced for those who were still in service having completed qualifying service for pension and not otherwise. The request for rejoining of service after obtaining pre-mature Retirement was a matter of discretion with respondent No, 3 which could not be claimed as of right. The option for pension regulation by the petitioner was therefore not entertainable for want of any right under the relevant statute. The subject-matter of the case relied upon is the terms and conditions of a civil servant whereas the petitioner is governed by the principle of master and servant, and therefore the principle laid down in the said case would not be applicable to his case. Without fulfilling the essential condition for application of Pension Regulation in an individual case, option given is neither here nor there, therefore the petitioner has no right of the nature to be enforced through the writ petition. This petition fails and is dismissed accordingly."

6. Sections 37, 38, 50 and 51 of the C.D.A. Ordinance, 1960 (Ordinance XXIII of 1960) are relevant. An examination of these provisions shows that the CDA was itself to determine the terms and conditions of its employees and that the Government had no say in the matter. None of its Regulations whether framed by it itself or adopted by reference had a statutory basis in law. This view is supported by the view taken in Ch. Abdul Rashid v. Capital Development Authority, Islamabad and another (PLD 1979 Lahore 803) and the Principal, Cadet College, Kohat and another v. Muhammad Shoab Qureshi (PLD 1984 SC 170). The adoption of the rules of the Government or their application by reference will not lend a statutory cover or content to these rules, as held in Lahore Central Co-Operative Bank Limited v. Saif Ullah Shah (PLD 1959 SC (Pak.) 210) and finally very recently in Chairman, Pakistan Council of Scientific and Industrial Research, Islamabad and 3 others v. Dr. Mrs. Khalida Razi (Civil Appeal No, 270 of 1993). There being no statutory rules in the field, a Constitution petition was not at all competent on the subject.

7. As regards laches, it is to be noticed that though the appellant had been diligently agitating in all the other forums, he invoked the Constitutional jurisdiction after about twelve years. In service matters the concept of laches is different from that of ordinary litigation. This difference has been fully brought out in the Chairman, District Screening Committee, Lahore and another v. Sharif Ahmad Hashmi (PLD 1976 SC 258) and S. Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore and another (1978 SCMR 367).

8. On the merits of the case the various portions of the Regulation have been reproduced. They clearly show that the appellant held a non-pensionable post. The Regulations of 1981 could apply to him only if he came within its ambit. Under those Regulations a person could not be on Leave Preparatory to Retirement without completing the requisite years of service. Simply because the leave granted to the appellant and the other benefits given to him were D expressed to be in terms of retirement and leave preparatory to it cannot have the effect of bringing it legally within the ambit of Regulations of 1981, nor could it entitle the appellant the pensionary benefits as such.

9. The service which he rendered was non-pensionable. It was governed by a system of gratuity. He earned the full gratuity after rendering over ten years service in C.DA. There was no entitlement left to avail of the benefits of 1981 Regulations of the C.DA.

10. No merit is found in the appeal which is dismissed with no order as to costs.