Stereo. H C J D A 38.

Judgment Sheet
IN THE LAHORE HIGH COURT AT LAHORE
JUDICIAL DEPARTMENT

ICA No.50253/2019
Province of Punjab through Secretary Finance, Lahore etc.
Versus
Kanwal Rashid

JUDGMENT
Date of Hearing 27.1.2020
Appellant By: Mr. 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 Chaudhary Asif Javaid, Accounts Officer in the
office of Appellant No.2.
Respondent By: Rana Asad Ullah Khan, Advocate.

Ayesha 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
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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
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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.
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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
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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.
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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
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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
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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.

(ASIM HAFEEZ) (AYESHA A.MALIK)

JUDGE JUDGE

Approved for Reporting

JUDGE JUDGE
Allah Bakhsh
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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]
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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

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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

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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

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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.

(Asim Hafeez)
Judge.

A.D. Mian*