Daughter of two Deceased Civil Servants is Entitled to Receive Pension Benefits of Both her Parents

Daughter of two Deceased Civil Servants is Entitled to Receive Pension Benefits of Both her Parents | 2020 PLC (C.S) 437 | Complete Court Judgment

Daughter of two Deceased Civil Servants is Entitled to Receive Pension Benefits of Both her Parents | 2020 PLC (C.S) 437 | Complete Court Judgment

2020 PLC ( C.S. ) 437 [ Lahore High Court ) Before Ayesha A. Malik and Asim Hafeez . JJ PROVINCE OF PUNJAB through SECRETARY FINANCE , LAHORE and others versus KANWAL RASHID I.C.A. No. 50253 of 2019 , heard on 27th January , 2020 . Per Ayesha A. Malik , J ; Asim Hafeez , J agreeing ( a ) Civil service — —-” Pension” – Meaning and concept of — Pension was a retirement benefit , paid regularly based generally on length of service of a pensioner and was series of periodic money payments made to a person who retired from eriployment because of age , disability , or completion of an agreed span of service – Such payments generally continued for remainder of natural life of recipient or to a widow or any other survivor , as case may be –Grant of pension to public officers or public employees served public purpose , and was designed to induce competent persons to enter and remain in public service or employment , and to encourage retirement from public service of those who become incapacitated from performance of duties — Pension system is intended to promote efficient , continued and faithful service to the employer and economic security to the employees and their dependents , by an arrangement under which , by fulfillment of specified eligibility requirements , pension became property of individual as a matter of right upon completion of public service — Right to pension depended upon statutory provisions and existence of such right in particular instances was determinable primarily from terms of statute under which such right or privilege was granted — Right to a pension may be made to depend upon such conditions , as grantor may see fit to prescribe and it may be provided in a general through a pension act . H.R.C. No.40927 – S of 2012 PLD 2013 SC 829 ; Corpus Juris Secundum . Vol . 67 pages 763-764 ; American Jurisprudence , Vol . 40 , pages 980 and 981 ; Ghulam Sadiq v . Government of Pakistan 2005 PLC ( C.S. ) 1114 ; Pakistan Telecommunication Employees Trust ( PTET ) v . Muhammad Arif 2015 SCMR 1472 ; Secretary , Government of Punjab ,Finance Department v . M Ismail Tayer 2015 PLC ( C.S. ) 29 Federation of Pakistan v . L.A. Sharwani 2005 SCMR 292 ref . ( b ) Punjab Civil Servants Act ( VIII of 1974 ) —- —-S1.18 & 2 ) … Punjab Civil Services Pension Rules , 1955 , R. LA Reforms Ordinance ( XII of 1972 ) S. J – Pension and gratuit Entitlement of family to receive pension after death of civil servant Unmarried daughter of deceased civil servant –Entitlement to receive Concurrent pensions from both deceased parents who were civil servants –Scope –Question before High Court whether respondent , who was unmarried daughter of two deceased civil servants , was entitled to receive pension benefits of both her parents Concurrently – Weld , that pension was a right of civil servant by way statute , which could not be taken away arbitrarily by Provincial Government and such right accrued in favour of retired civil servant due to length of their service and said right was then bestowed upon persons mentioned in Punjab Civil Services Pension Rules , 1955 in the event of their death –Contention that respondent was not entitled to Iwo pensions was misconceived because each one parent of respondent had earned their pension in their own right , while working for Provincial Government and on their death , said right was now wested in respondent who was entitled to collect the pension subject to the terms provided in Punjab Civil Services Pension Rules , 1955 — As per applicable notification , respondent being an unmarried daughter was entitled to receive pension of both her parents until her marriage or on acquiring regular source of income , whichever was earlier – Contention thar where a child was to receive two pensions , one pension would be deemed to be regular income thereby denying such child pension from other parent was flawed as such pension could not be considered as an independent or regular source of income said child was earning in her own capacity — Respondent was therefore entitled to receive both pensions — Intra – court appeal was dismissed , in circumstances . 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 rel . Per Asim Hafeez , J , agreeing with Ayesha A. Malik , J , giving his own reasons . ( c ) Punjab Civil Services Pension Rules , 1955 — — R.4.10 ..- ” Pension ” and ” grafuity ” … Entitlement of family to receive pension after death of civil servant — Nature of family pensions—Unmarried female child of deceased civil servant‐– Interpretation of Rule 4.10 of the Punjab Civil Services Pension Rules, 1955–Expression “acquiring regular soure interpretation of-Scope–Question before High Court Pelalen Family Pension as per Rule 4.10 of Punjab Civil Services Pension Kules, 1955, which provided no family pension was payabte unmarried female on “acquiring regular source of income”-lut to be determined was whether where an unmarried female was entitled to receive pension of both her deceased parents, and did the receipt of one pension constitute “regular income” thereby disentitling said unmarried female from the second pension of the other parent–Held, that ik expression “acquiring regular source of income”, used in Rule 4.10 of Punjab Civil Services Pension Rules, 1955; preceding word “acquiring” essentially controlled meaning and effect of following expression “regular source of income” and thus significance expression “acquiring” had to be underscored while interpreting said condition-Right of parent to ‘receive pension was an “acquired right”. achieved in lieu and consideration of services performed, however, t was not an acquired right of an unmarried female daughter of such deceased civil servant as it simply devolved on her after death of parent(s), as cause and effect of relationship with deceased persons– Construction of the expression “regular sourte of income”, without the prefix, may simply indicate income coming from any source whatsoever, but when read with expression “acquiring “, it had a definite connotation and meant more than mere assumption of devolved rights or receiving pensions and indicated acquiring of income by dint of some conscious effort, personal ability, skills, special qualification, experience or as consequence of any action or behaviour-Mere receipt of pension(s) by such unmarried female, as continuing right of her parents, could not be construed or termed as “acquiring regular income”.Don Basco High School v. The Assistant Director, E.O.B.I and others PLD 1989 SC 128 rel. Shan Gul, Additional Advocate-General, Punjab on behalf of the Appellant along with Abdul Rauf, Deputy Secretary (SR), Finance. Department, Nasir Mahmood, Law Officer, Finance Department and Chaudhry Asif Javaid, Accounts Officer in the Office of Appellant No.2. Rana Asad Ullah Khan for Respondent. Date of hearing: 27th January, 2020. JUDGMENTAyesha 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 1983 and 2009. The Court also concluded that a vested right provided by the statute cannot be taken away unless the law specifically contemplates the same. The Court held that drawing of pension has been wrongly construed as being a regular source of income as the drawing of pension is a vested right of the government servant and cannot be taken away through a notification, that too with retrospective effect, irrespective of whether there are two pensions that are being drawn by a single child.3. On behalf of the Appellant, Mr. Shan Gul, Additional Advocate General, Punjab argued that the impugned judgment has failed to take into consideration the Punjab Civil Services Pension Rules, 1963 (“Rules”) and the fact that the Finance Department of the Government of Punjab is the rule making authority. Further that the Accountant General, Punjab is the custodian of government money and acts on behalf of the Government of Punjab; that family pension cases are finalized on the basis of the Rules and the amendments made from time to time by the Finance Department after approval from the competent authority. That the Government of Punjab through Notification dated 11.9.2015 clarified that receiving one pension will be construed as a regular source of income which will automatically disentitle the Respondent from receiving the second pension at the same time. He argued that the question of retrospective application is without basis as the relevant notification was issued on 22.7.1989 whereas the clarification was issued on 11.9.2015.4. On behalf of the Respondent, Rana Asad Ullah, Advocate argued that the impugned judgment has duly considered the law on the matter and the fact that the Respondent has a vested right to collect pension of both her parents who were government servants and who earned their right to pension, putting in their entire life into the service of Government of Punjab. Further argued that the Appellants through clarification have deprived the Respondent of a statutory right which is provided for in the Punjab Civil Servants Act, 1974 (“Act”) and the Rules. He explained that the Finance Department has no authority under the law to deprive the Respondent of the pension of both her parents on the sole ground that one pension will be deemed to be a regular source of income.5. We have heard the learned counsel for the parties at length and have also gone through the record. In terms of Section 18 of the Act, on retirement from service, a civil servant shall be entitled to receive such pension or gratuity as may be prescribed. In the event of death of a civil servant, whether before or after retirement, his family shall be entitled to receive such pension or gratuity or both, as may be prescribed. In terms of the Act, Section 23 provides that the Governor, or any person authorized in this behalf, may make such rules as appear to him to be necessary or expedient for carrying out the purposes of this Act. Any rules, orders or instructions in respect of any terms and conditions of service of civil servants duly made or issued by an authority competent to make them and in force immediately before the commencement of this Act shall, in so far as such rules, orders or instructions are not inconsistent with the provisions of this Act, be deemed to be rules made under this Act. Under the Rules, Rule 4.7(1) deals with family pension which reads as follows:The term “family” for the purpose of payment of gratuity under this section shall include the following relatives of the Government:(a) Wife or wives, in the case of a male Government servant;(b) Husband in the case of a female Government servant;(c) Children of the Government servant;(d) Widow or widows and children of a deceased son of the Government servant.Rule 4.10 of the Rules provides that family for the purpose of payment of family pension shall be as defined in sub-rule (1) of rule 4.7. It shall also include the Government Servant‟s relatives mentioned in clause (d) of Rule 4.8. Sub Rule 3 of Rule 4.10 provides that no family pension shall be payable under this section:(a) to an unmarried female member of a Government servant‟s family in the event of her marriage;(b) to a widow female member of a Government servant‟s family in the event of her re-marriage;(c) to the brother of a Government servant on his attaining the age of 21 years;(d) to a person who is not member of a Government servant‟s family.Subsequently Rule 4.10(3) was amended from time to time. The first amendment was made on 25.8.1983 which provided that with effect from 1st July 1983, the family pension will be admissible to the widows for life or until re-marriage of the widow. In the case of death of the widow, the family pension will be admissible to the sons, if any, until they attain the age of 21 years and the unmarried daughters, if any, until they are married or attain the age of 21 years, whichever is earlier. The next amendment was made on 22.7.1989 which provided that with effect from 1.7.1989 family pension in case of widow‟s death will be admissible to the dependent sons until they attain the age of 24 years or till they are gainfully employed, whichever is earlier and to unmarried daughters till their marriage, or their acquiring regular source of income whichever is earlier. Hence the bar of 21 years age was changed to having the ability to earn a regular source of income for a daughter and the age was enhanced from 21 years to 24 years for the son. Subsequently a clarification was issued by the Finance Department vide notification dated 11.9.2015 with reference to the Respondent‟s case which was impugned in the writ petition.6. The basic issue before us is whether the Respondent is entitled to receive the pension of both her parents. In terms of the various dictas laid down by the august Supreme Court of Pakistan, pension is a retirement benefit, paid regularly based generally on the length of service of a pensioner. It is a series of periodic money payments made to a person who retires from employment because of age, disability, or the completion of an agreed span of service. The payments generally continues for the remainder of the natural life of the recipient or to a widow or any other survivor, as the case may be. Reliance is placed on H.R.C. No.40927-S of 2012 (PLD 2013 SC 823).7. Extract from Corpus Juris Secundum. Vol. 67 pages 763-764 on the meaning of pension, states that the grant of pension to public officers or public employees serves the public purpose, and is designed to induce competent persons to enter and remain in the public service or employment, and to encourage retirement from public service of those who have become incapacitated from performing their duties. It is also stated that a pension system is intended to promote efficient, continued and faithful service to the employer and economic security to the employees and their dependents, by an arrangement under which, by fulfillment of specified eligibility requirements, pension becomes the property of the individual as a matter of right upon the completion of public service.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.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 legislation, 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 judgment. Sd/- Sd/-(ASIM HAFEEZ) (AYESHA A.MALIK)ASIM HAFEEZ, J.:- I have had the privilege to go through the judgment delivered by esteemed colleague Ayesha A. Malik, J., and concur with the conclusion drawn therein. However, in view of the significance of the issues raised, I would like to give my own reasons through this additional note.2. The appellant has questioned the alleged right of the respondent to concurrently claim two family pensions, allegedly devolved on her, being a single daughter, after death of her parents, both of whom had acquired right to receive pensions in the wake of terms and conditions of their respective service; an undisputed fact. The controversy surfaced upon automation of the pension record, whereby factum of withdrawal of two pensions was noticed and demand was raised for reimbursement of amounts already bagged. The challenge posed to alleged disentitlement of the respondent is founded on the condition contained in Department’s Letter No. SR-III-4-111/89 dated 22.07.1989 (Letter of 22.07.1989) and subsequent clarification extended in terms of Department’s clarification letter No. FDR-SR-III-4-471/2014 dated 11.09.2015 (Letter of 11.09.2015). It is expedient to reproduce condition in Letter of 22.07.1989, which reads as;“The Governor of Punjab has been pleased to decide that w.e.f. 1.7.1989 family pension in case of widow’s death will be admissible to the dependant sons until they attain the age of 24 years or till they are gainfully employed, whichever is earlier and to unmarried daughters till their marriage or their acquiring regular source of income, whichever is earlier”[emphasis supplied]3. The elemental question, for determination, is not regarding the authority to issue clarification or respond to the queries raised with respect to the notifications / letters regarding pension liberalization rules, but entitlement of the respondent to claim two pensions concurrently in the wake of clarification issued, whereby respondent’s entitlement to claim dual pension was disputed on the premise that one of the two pensions constitute a regular source of income, and therefore second pension was not admissible in the circumstances. The clarification has merely interpreted the condition, i.e. “their acquiring regular source of income”. It is this condition, which is subject matter of controversy. In terms of letter of 22.07.1989 an unmarried daughter is entitled to claim pension, a right devolved on her by operation / act of law, which entitlement continues till she marries or acquire a regular source of income, whichever is earlier. No specific restriction has been placed in the family pension liberalization rules regarding entitlement to two family pensions, to this extent there was no real controversy. The controversy surfaced once eligibility condition was construed to the disadvantage of the respondent, by way of issuance of clarification. The interpretation / clarification of the expression “regular source of income” simplicitor without giving effect to prefix, “acquiring” is wholly misconceived and flawed. The condition has to be construed in the light of doctrine of ‘Ejusdem Generis’, which rule of construction is attracted and the general words have to be interpreted or read within the scope of the preceding specific words. Reference is made to an illustrative judgment in the case of DON BASCO HIGH SCHOOL v. THE ASSISTANT DIRECTOR, E.O.B.I and others (PLD 1989 Supreme Court). In the light of the ratio of the decision, it is clear that preceding word – acquiring – will essentially controls the meaning and effect of following expression – regular source of income. Hence, the significance of expression “acquiring” has to be underscored while interpreting the condition, otherwise exclusionary and calls for strict interpretation. Is pension an acquired right of the respondent? The right of each of the parent to receive pension was, certainly, an acquired right, achieved in lieu and consideration of the services performed. However, it is not an acquired right of the respondent, but simply devolved on her after death of parents, as cause and effect of relationship with the deceased persons. The respondent cannot claim pension as a proximate cause of some personal effort and / or services performed. She simply became eligible to receive pensions, of her parents, by way of operation of law, as prescribed under the liberalization of family pension rules. Construction of the expression “regular source of income”, without the prefix, may simply indicate income coming from any source whatsoever, but when read with expression “acquiring”, it has a definite connotation and means more than a mere assumption of devolved rights or receiving pensions. It indicates acquiring of income by dint of some conscious effort, personal ability, skills, special qualification, experience or as consequence of any action or behaviour. Mere receipt of pension(s) by respondent, as continuing right of her parents, cannot be construed or termed as acquiring regular income.4. This case has another aspect. The condition(s) prescribed to disentitle a dependent son or unmarried daughter showed meaningful distinction, both in terms of intent and scope, especially when analysed in the context of present controversy. A dependent son is eligible to get receive pension till the age of 24 or unless gainfully employed, whichever is earlier. On the contrary, unless a regular income is acquired by a surviving daughter, her right to get pension(s) remains intact – unless she marries earlier. The intention is evident, provisioning of sustainable support and protection extended to an unmarried daughter is higher in degree. We are not asked to dilate upon this specific aspect. Let’s hypothetically consider that if respondent is a surviving son and drawing two family pensions concurrently, can said claim be denied on similar grounds pleaded, to deny right of the respondent? The issue is that whether interpretation suggested through clarification can equally be applied to disentitle a dependant son? And whether the expression gainfully employed would also be construed to mean regular source of income of a dependent son, below the age of 24, while determining his entitlement to dual pensions? Apparently, no such restriction can be read or construed with reference to a dependent son. So, does it imply that clarification suggested was case specific only, applicable to an unmarried daughter only. This has no rational. The clarification suggested, if applied, would be discriminatory and tantamount to arbitrary denial of right of an unmarried daughter, which was neither intended nor prescribed.5. In these circumstances, I declare that clarification suggested is erroneous, contrary to the mandate of liberalization of family pension rules and inherently flawed. And in terms of conditions prescribed through Letter of 22.07.1989, until respondent, either marries or acquires regular source of income, whichever is earlier [other than receiving two family pensions concurrently], her entitlement cannot be denied. The notices issued for seeking return of the pension amounts received is declared void and no legal effect. I endorse the conclusion that appeal is without merit and same is, therefore, dismissed.KMZ/P-3 /L Appeal dismissed

Source: Friendz Law Associates Layyah