Islamabad, April 11, 2013 (PPI-OT): A five member Bench of the Supreme Court headed by Hon’ble Mr. Justice Anwar Zaheer Jamali and comprising Hon’ble Mr. Justice Mian Saqib Nisar, Hon’ble Mr. Justice Ejaz Afzal Khan, Hon’ble Mr. Justice Muhammad Ather Saeed and Hon’ble Mr. Justice Iqbal Hameedur Rahman today heard Constitution Petition No. 127 of 2012 (Regarding pensionary benefits of the Judges of Superior Courts from the date of their respective retirement, irrespective of their length of service as such Judges) and other connected applications.
The Court held that the law enunciated in the case of Accountant General Pakistan Sindh and others versus Ahmed Ali U. Qureshi and other (PLD 2008 S.C. 522) is per incuriam and consequently this judgment is set aside. The Court accepted the appeal filed by the Accountant General, Sindh against the judgment of Sindh and set aside the judgment impugned therein. Other miscellaneous applications moved therein and in these proceedings were dismissed accordingly.
It is pertinent to mention here that the Civil Petition for Leave to Appeal No. 168-K of 1995 was filed in the Court by the Accountant General Sindh, challenging the validity of the judgment of High Court of Sindh, at Karachi, dated 02.02.1995, wherein the Court had granted the relief of pension to the respondent (since dead), a former judge of the High Court of Sindh, who while holding the post of District and Sessions Judge was posted as Secretary to the Government of Sindh, Law Department and was elevated as Additional Judge, High Court of Sindh in 1985.
He retired on 25.10.1988 and was allowed pension under paragraph 16-B of President’s Order No. 9 of 1970, as amended by P.O. No. 5 of 1988. In pursuance of the Constitution (Twelfth Amendment) Act, 1991 (Act XIV of 1991), the pension of the respondent was revised. Thereafter, by virtue of P.O. No. 2 of 1993, the pension of retired Judges of superior judiciary was again revised, but he was declined the increase in pension. He invoked constitutional jurisdiction of High Court and filed petition seeking that he was also entitled to the benefit under P.O. No. 2 of 1993.
The relief was granted to him by Sindh High Court. Accountant General Sindh feeling aggrieved approached this Court by filling Petition for Leave to Appeal. This Court vide order dated 28.08.1995 granted leave to appeal.
Meanwhile, other retired Judges of the High Court who were not allowed pension as High Court Judges on the ground that they having not put in minimum service of five years in terms of the paragraph 3 of Fifth Schedule to the Constitution were not entitled to it filed direct petitions before this Court on the grounds that:-
a. The provision of President’s Order No. 3 of 1997 was in derogation to Article 205 of the Constitution read with Fifth Schedule of the Constitution wherein the right of pension of only those Judges who have put minimum five years of service as Judge of the High Court, was recognized.
b. The retired Judges of the High Court, irrespective of their length of service were entitled to the grant of pension, as per their entitlement under Article 205 read with paragraph 20 of the Fifth Schedule of the Constitution.
On 06.03.2008, the Civil Appeal No. 1021 of 1995 and the connected Constitution Petitions involving common questions of law and facts were disposed of through the judgment reported as PLD 2008 SC 522 delivered by three-member Bench of this Court comprising Mr. Justice Nawaz Abbasi, Mr. Justice Muhammad Qaim Jan Khan and Mr. Justice Muhammad Farrukh Mahmud in the following terms:
“34. In consequence to the above discussion, the Constitution Petitions Nos. 8/2000, 10/2001, 26/2003, 34/2003, 04/2004 and 26/2007, filed by the retired Judges of the High Courts are allowed and the petitioners/applicants in these petitions and miscellaneous applications, along with all other retired Judges of the High Courts, who are not party in the present proceedings, are held entitled to get pension and pensionary benefits with other privileges admissible to them in terms, of Article 205 of the Constitution read with P. O. NO. 8 of 2007 and Article 203-C of the Constitution read with paras 2 and 3 of Fifth Schedule and P.O. No. 2 of 1993 and P.O. 3 of 1997 from the date of their respective retirements, irrespective of their length of service as such Judges.”
The above matter was decided on the basis of the High Court Judges (pensionary benefits) Order, 8 of 2007. This Order was promulgated on 14.12.2007 and at the time of decision of the matter it was considered a valid piece of legislation. But subsequently, vide Supreme Court Judgement dated 31.07.2009 passed in the case of Sindh High Court Bar Association V. Federation of Pakistan, reported as PLD 2009 SC 879 this P.O. 8 of 2007 was declared unconstitutional, illegal, ultra vires and void ab initio.
Considering the matter to be of great public importance as huge public money was being expended without any legal justification despite the fact that the basis of judgment itself had lost its validity, Suo Moto Notice was taken for review of the judgment dated 06.03.2008 passed in Civil Appeal No. 1021 of 1995 etc and the matter was fixed before a five member Larger Bench.
Notices to following Hon’ble retired Judges who were beneficiaries of the judgment dated 06.03.2008 were also issued:-
Mr. Justice (R) Rustam Ali Malik, Mr. Justice (R) Rana. M. Arshad Khan, Mr. Justice (R) Ghulam Sarwar Sheikh, Mr. Justice (R) Farrukh Latif, Mr. Justice (R) Pervez Ahmed, Mr. Justice (R)Muhammad Jehangir Arshad, Mr. Justice (R)Ahmed Farooq Sheikh, Justice (R) Mrs. Majida Rizvi, Mr. Justice (R) Nadeem Afzal, Mr. Justice (R) Tariq Mehmood, Justice (R) Mrs. Qaiser Iqbal, Mr. Justice (R) Shah Abdul Rashid, Mr. Justice (R) Khan Riaz-ud-Din Khan, Mr. Justice (R) Saeed-ur-Rehman Farrukh, Mr. Justice (R) Amjad Ali, Mr. Justice (R) Mansoor Ahmed, Mr. Justice (R) Raza A. Khan, Mr. Justice (R) Riaz Kiani, Mr. Justice (R) Aqil Mirza, Mr. Justice (R) Sharif Hussain Bokhari, Mr. Justice (R) Ghulam Muhammad Qureshi, Mr. Justice (R) Abdul Hafeez Cheema, Mr. Justice (R) Munir Ahmed Mughal, Mr. Justice (R) Rao Iqbal Khan, Mrs. Shahida Khurshid, w/o Mr. Justice (R) Raja M. Khushid, Mr. Justice (R) Syed Najam-ul-Hassan Kazmi, Mr. Justice (R) Sh. Javaid Sarfraz, Mr. Justice (R) Fazal-e-Miran Chohan, Mr. Justice (R) Syed Asghar Haider, Mr. Justice (R) Tariq Shamim, Mr. Justice (R) M. Nawaz Bhatti through widow Mrs. Perveen Nawaz, Mr. Justice (R) Aslam Arian, Mr. Justice (R) Abdul Ghani Sheikh, Mr. Justice (R) Tanvir Bashir Ansari through widow Mrs. Shahnaz Ansari, Mr. Justice (R) Sheikh Abdul Rashid, Mr. Justice (R) Ch. Mushtaq Ahmad Khan, Mr. Justice (R) Sh. Abdul Manan, Mr. Justice (R) Munib Ahmed Khan, Mr. Justice (R) Muhammad Muzamil Khan, Mr. Justice (R) Sher Bahadur, Mr. Justice (R) Iftikhar Ahmed Cheema, Mr. Justice (R) K. N. Kohli, Widow of Mr. Justice (R) M. Khayar Khan, Mr. Justice (R) Ghous Muhammad, Mr. Justice (R) Saleem Khan, Mr. Justice (R) M. Sadiq Laghari, Mr. Justice (R) Abdul Aziz Kundi, Mr. Justice (R) Azam Khan, Mr. Justice (R) Hamid Farooq Durani, Mr. Justice (R) Ghulam Muhammad Kourejo, Ali Sain Dino Metlo and Mr. Justice (R) Abdul Farooq Pirzada.
By means of the short order passed today in the case the five-member bench has set aside the earlier judgment of three-member bench with the result that the Judges of the Superior Courts who were in receipt of pension despite having rendered less than five years service as such Judges would not be entitled to receive pension as Judges of the Superior Courts.
For more information, contact:
Shahid Hussain Kamboyo
Public Relations Officer
Supreme Court of Pakistan
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