I shall explain here in detail about the Denying Benefits to Pensioners/Family Pensioners through “Clarification” that some of the pensioners are facing. I hope after reading this useful article written by Mr. Agha Amir Ahmad, will be helpful to get their rights/benefits.
Denying Benefits to Pensioners/Family Pensioners through the process of “Clarification”
Lahore High Court held on 27 Jan 2020 in Intra Court Appeal 50253/2019 that a civil servant’s right prescribed under Rules cannot be taken away by executive authorities under the garb of clarification. This is recorded in Para 11 of the judgment in the ICA, an extract wherefrom is given below:
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 that the Rules have clearly prescribed. The Rules are beneficial legislation that conditions the right of a family pension and the Appellant (Government of Punjab) cannot take away that right under the garb of a clarification.
LHC Decision
Earlier the Lahore High Court held on 15.2.2019 in Writ Petition 24111/2017 that the petitioner (pensioner Kanwal Rasheed) was entitled to the family pension of both her parents. The Court recorded in para 13 that “drawal of the pension is the vested right of the child of a government servant, duly qualified, which cannot be taken away through a notification, that, too, with retrospective effect; and that two pensions are independent regardless of the fact that both deceased government servants were related inter-se”. The impugned notification No. FD-SR-III-4471/2014 dated 11.09.2015 (which clarified that the pension of only one of the parents was admissible to the eligible daughter) was set aside.
Appointment of civil servants (and terms and conditions of their service including retirement benefits) are prescribed in the Civil Servants’ Act, and in the Rules made thereunder. The Rules (inclusive of pension rules) are approved by the President in the case of the federal government, and by the respective Governor in the case of provinces. Amendment in the Rules also requires approval of the President / Governor, after which it is to be incorporated into rules. No executive authority (from the highest Secretary downward to the Section Officer) is empowered to amend the rules on its own or to issue any clarification through which the benefit given in the rules is discontinued, denied, or taken away.
Notifications
Certain notifications are issued by governments that clarify that some benefit, otherwise provided in the Rules / Orders, is (i) not meant for certain persons or classes of persons, or (ii) admissible from a certain date onward only, and not for the earlier period. An example may be given of the family pension of a widow / divorced daughter of the Punjab government.
There is no condition in the Rule that the family pension of the widow / divorced family pensioner would cease to be payable if her children grow up to over 24 years of age.
Accountant General Punjab asked for clarification from Punjab Finance Department in August 2015 on its (unsought) opinion that the “question of the dependence of a widow / divorced daughter (having children over 24 years of age) on her deceased parents does not arise and she would be deemed to be dependent upon her children instead”.
Punjab Finance Department confirmed in April 2016 that in this scenario family pension would not be admissible to the widow / divorced daughter as “no question arises of her dependence on the deceased parents”.
After more than two years, Punjab Finance Department reversed its orders and declared in July 2018 that it “did not matter if the children were adult or minor” (the family pension would continue if other conditions are met).
Examples of Clarifications
The executive authorities have issued clarifications that resulted in taking away certain benefit which is admissible as per the plain reading of the relevant rule/order. For example, two benefits listed below are available to civil servants as per rules/orders. However, these were taken away by the government through clarifications.
(i)
A deficiency of fewer than 6 months in a year of service is automatically rounded off to the next higher year in terms of CSR 423 (1).
The rule does not deny the benefit if the service itself is less than the minimum required for gratuity/pension benefit.
The government holds that this benefit is not available if the service itself is less than the minimum 5 years for gratuity and 10 years for pension.
This is so even if the deficiency is for reasons beyond the control of the civil servant, e.g. death during service, the retirement of medical grounds, abolition of the post, and compulsory retirement.
(ii)
The 2016-pension-increase orders provide that a special increase in pension on attaining 85 years of age is admissible to pensioners. The orders are equally applicable to family pensioners (e.g. to widow and parents). There is no restriction that the benefit (i) would be admissible only to the pensioner, and (ii) would not be admissible to any family pensioner. The federal government clarified in 2021 that the benefit is admissible to all family pensioners also.
Finance Department Punjab clarified that the benefit is admissible to the principal pensioners only, and (ii) is not admissible to any family pensioner.
The clarification does not say this has the approval of the Governor, and that the original orders have been amended with Governor’s approval.
Reference of an Important Order
In the matter of Govt. of Punjab versus Sameena Parveen and others, reported as 2009 SCMR 1, a very important order was quoted by the Supreme Court of Pakistan. The same is reproduced below:
It was held by this Court in the case of Hameed Akhtar Niazi v. The Secretary Establishment Division Government of Pakistan and others 1996 SCMR 1185, that if a Tribunal or this Court decides a point of law relating to the terms and conditions of a civil servant who litigated, and there were other civil servants, who may not have taken any legal proceedings, in such a case, the dictates of justice and rule of good governance demand that the benefit of the said decision be extended to other civil servants also, who may not be parties to the litigation instead of compelling them to approach the Tribunal or any other legal forum.
Legal Rights of Pensioners
It is hoped that governments will realize the legal right of pensioners as explained above, and will extend the requisite benefit to concerned pensioners, instead of compelling them to enter into lengthy time-consuming litigation and use precious financial resources and courts’ time.
Recommendations
Pensioners/family pensioners who have been denied a benefit (prescribed in the main pension rules/orders) due to some “clarification” may make fresh efforts to get that benefit. They may point out that the clarifications denying the benefit in question have no legal validity unless approved by President / Governor. If the denial is now approved by President / Governor, it will have effect from the date of issue of amendment in the rule, and not to earlier cases. The cost of litigation may also be claimed to be recoverable as one of the sought relief.
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