2016 P L C (C.S.) 1

[Sindh High Court]

Before Muhammad Ali Mazhar and Shahnawaz Tariq, JJ

DAWOOD SIGHAR and 5 others

Versus

PROVINCE OF SINDH through Chief Secretary, Sindhand others

C.P. No.D-1637 of 2013, decided on 28th April, 2015.

(a) Civil Service Regulations, 1960—

—-Art. 486—Constitution of Pakistan, Arts.199& 208—Constitutional petition—Civil service—Retired employees of HighCourt (Sindh)—Plea for accumulation of judicial allowance in pensioncalculation—Independence of judiciary—Chief Justice, powersof—Scope—Chief Justice of High Court had power to sanction pension providedsame was covered by the rules and certified by the Audit Officer to beadmissible—Supreme Court and Federal Shariat Court with the approval of thePresident and High Court with the approval of the Governor concerned might makerules providing for appointment by the Court of officers and servants of theCourt and for their terms and conditions of employment—Object in making specialdispensation for officers and servants of the Court was to ensure theindependence of Superior Courts—High Court to remain independent and freefrom interference in its affairs by the executive authorities—Payment ofjudicial allowance could not be treated as an ad hoc relief or any benefit ofcontingent or reliant nature but same was one of the components of theemoluments which was being paid during active service—Special pay of alltypes and nature was part of emoluments including other emoluments which mightbe specially classed as pay—Overseas pay, technical pay, special pay andpersonal pay were also integral part of pay except the pay other than specialpay or pay granted in view of personal qualification which had been sanctionedfor a post held by an employee substantively or in an officiating capacity orto which he was entitled by reason of his position in a cadre—Judicialallowance was allowed to the employees across the board—Judicial allowancewas neither extended to a person specific nor sanctioned for a post held by anemployee substantively or in an officiating capacity or to which he wasentitled by reason of his position in a cadre—Judicial allowance was part ofemoluments/pay/salary and reckonable being one of the components for pensioncalculation—Chief Justice of High Court had all the powers of government inthe administrative department with regard to officers and servants of the HighCourt—Judicial allowance had been treated as emolument for the purpose ofpension with regard to judicial officers and such benefit had also beenextended to the staff and officers of the High Court (Sindh)—Judicialallowance was reckonable for the calculation of pension as part ofemoluments—Petitioners and other retired employees placed in similar positionwere entitled for accumulation of judicial allowance in pensioncalculation—Government was directed to re-calculate pension within specifiedperiod after giving effect of judicial allowance and start the future paymentaccordingly and arrears be also paid—Constitutional petition was accepted incircumstances.

PLD 1994 SC 105; 1997 SCMR141; PLD 1993 SC 375 and 1991 MLD 2546 rel.

(b) Civil Service Regulations, 1960—

—-Art.486—“Emoluments”—Meaning—“Emoluments” meant theemoluments which the officer was receiving immediately before his retirement.

(c) Civil Service Regulations, 1960—

—-Art. 487— “Average Emoluments”—Meaning— “Average Emoluments” meant the average calculated upon thelast three years of service.

(d) Judgment—

—-Judgment “in rem”—Meaning.

Wharton’sLaw Lexicon (Fifteenth Edition); Satrucharla v. Vijayarama Raju v. Nirmaka JayaRaju (2006) 1 SCC 212; Black’s Law Dictionary, 7th Edn., p. 847; Black’s LawDictionary (Sixth Edition); Eureka Building and Loan Ass’n v. Shulz, 139 Kan.435, 32 P.2d 477, 480; Federal Land Bank of Omaha v. Jefferson 229 Iowa 1054, 295N.W. 855, 857; Hameed Akhtar Niazi v. Secretary Establishment Division Pakistan1996 SCMR 1185 and Federation of Pakistan v. Qamar Hussain Bhatti PLD 2004 SC77 rel.

RasheedA. Razvi, Farhatullah, Haider Imam Rizvi and Abbas Rizvi for Petitioners.

SarwarKhan, Addl. A.-G. Sindh for Respondents.

MuhammadArshad, Section Officer, Finance Department, Government of Sindh, Karachi.

Dateof hearing: 27th October, 2014.

JUDGMENT

MUHAMMADALI MAZHAR, J.— This petition has been brought to seek followingrelief(s):—

“(a) Declaration thatthe petitioners and all other retired employees of Sindh High Court placed insimilar class are entitled for calculation of pensionary benefits by inclusionof Judicial Allowance.

(b) Direct the respondentsto implement and act upon the orders of the Hon’ble Chief Justice of this courtin letter and spirit.

(c) Direct the respondentsto allow judicial allowance to be counted for calculation of pension towardsthe petitioners as well as other officers/members of the establishment who haveretired and are entitled.

(d) Any other relief asthis court may be deemed fit and proper under the circumstances of thecase.”

2. The brief facts of the case are that thepetitioners are retired employees of this Court. The Supreme Court of Pakistankeeping in view the various factors allowed judicial allowance to its employeesin the year 2000. Subsequently, the High Courts of Provinces also granted suchfacility to their employees. The former Chief Justice of this Court late Mr.Justice Sabihuddin Ahmed had passed an administrative order that the judicialallowance should be counted for calculation of pension in respect of judicialofficers working under this Court. The officers/staff members of this Courtmade representation to another former Chief Justice of this court who waspleased to grant this facility to officers of this court after going throughthe decision of the honourable Chief Justice of Pakistan with effect from3-1-2000. The Registrar of this court had written a letter on 17-12-2012 to therespondent No.3 (Accountant General Sindh) to comply with the orders of theChief Justice and also quoted the order which is reproduced as under:—

“Raising the issue ofjudicial allowance to be counted for calculating pension by the FinanceDepartment at this stage is irrelevant and afterthought as A.G. Sindh office isalready paying pension incorporating judicial allowance for calculation ofpension to the judicial officers as well as Establishment of the High Court ofSindh.”

3. Despite communicating the orders, the respondentNo.3 failed and neglected to entertain the applications of the petitionersregarding accumulation of judicial allowance in pension. The respondent No.3 inhis comments took the position that the Finance Department, Government of Sindhhas refused to treat the judicial allowance as reckonable component for pensionunder Article 486 of CSR while the respondent No.2 submitted the comments inline that in view of the Article 486 of Civil Service Regulation (C.S.R.) theJudicial Allowance is not reckonable for pension calculation. It was furthersubmitted in the comment that if judicial allowance is allowed to be treated asa reckonable emolument, its financial implication would be huge and those whoare not employees of the High Court of Sindh and drawing judicial allowancewill also demand judicial allowance as reckonable emolument for calculation oftheir pension which will result substantial burden on already frail financialresources of the province.

4. The Registrar of this court submitted a brief notealong with some documents that the power to sanction the pension and treat thejudicial allowance as part of pension to the members of High CourtEstablishment lies with Hon’ble Chief Justice. Such power is exercised underHigh Court of West Pakistan (Civil Service) Delegation of Powers Rules, 1960 asmentioned at Serial Nos.35 and 36, Appendix A. While deciding the request ofJustice (retired) Mr. Muhammad Sadiq Leghari for including judicial allowanceas part of pension, the then Hon’ble Chief Justice Mr. Justice Sabihuddin Ahmed(late) was pleased to order as under:—

“Judicial allowanceis payable to sheerly by virtue of a person’s being a judicial officer and eventaken such officer is not performing strictly judicial functions, there appearsno reasons for excluding it from “emoluments” for the purpose ofpension “A” is approved— Sd/-“.

5. It was further stated by the Registrar that theAdministration Committee on 17-2-2007 resolved that the judicial allowance tobe made part of pension which shall take effect from the date when the same waspaid to the judicial officers and as such it was retrospectively applied w.e.f.3-1-2000. Thereafter, some staff members had submitted joint application forextending such benefit to them as they too were getting judicial allowance intheir pay. The note was placed before the then Hon’ble Chief Justice and his lordshipvide order dated 3-2-2011 was pleased to extend the benefit of calculatingjudicial allowance in the pension of members of High Court Establishment withimmediate effect and the notification was issued on 4-2-2011. Some retiredemployees of High Court who stood retired before issuance of such notificationand were getting judicial allowance in their pay, applied to this courtrequesting that such benefit may also be extended to them. The matter wasplaced before the then Hon’ble Chief Justice and the benefit was extendedw.e.f. 3-1-2000 (the date when the same was extended to the judicial officers).However, as the judicial allowance was being paid to the members of High CourtEstablishment w.e.f. 1-7-2003 and not from 3-1-2000, as such in order to rectifythis date, the note was placed again before the then Hon’ble Chief Justice andhis lordship was pleased to approve the same therefore, notification andcorrigendum were issued accordingly. The Finance Department drew the attentiontowards Article 486 of Civil Service Regulation and took the view that there isno mention of word “judicial allowance” in the said provisiontherefore vide letter dated 17th May, 2013, the Registrar of this Court againcommunicated the administrative order dated 6-7-2012, passed by the thenhonorable Chief Justice to the Secretary Finance, Government of Sindh which isreads as under:—

“Examined. Sincejudicial allowance per policy decision dated 13-4-2006 of the then Hon’bleChief Justice (late Sabihuddin Ahmed) is treated as emolument for the purposeof pension, in respect of judicial officers. Similar consideration was notextended to other staff/members of High Court Establishment. Erstwhile A.C. inits meeting dated 17-2-2007 made applicability of judicial allowance w.e.f.3-1-2000 (i.e. retrospectively) benefit of judicial allowance was howeverextended to the staff and officers of High Court of Sindh by the competentauthority the then Hon’ble Chief Justice (Justice Sarmad Jalal Osmani) on4-2-2011 with immediate effect.

Since in principle it isdecided that staff/officers of this court are allowed/entitled to judicialallowance which is treated as emolument for the purpose of pensionary benefitper terms of clause 486 section IV Allowances. Reckoned for pension of “Compendiumof pension Rules and Orders. Therefore, in order to be fair, just and equitablejudicial allowance would be applicable and extendable to staff/members of H.C.Establishment from the date applicable to judicial officers i.e. w.e.f.3-1-2000.”

6. The learned counsel for the petitioner argued thatthe Registrar submitted a reference on 14-1-2010 to the competent authorityregarding the application of employees and the Hon’ble Chief Justice directedto put up the matter with relevant rules. In compliance of the directions theRegistrar submitted Clause 486 of the Compendium of Pension Rules and Order andstated that judicial allowance is a Special Allowance which falls under thecategory (c) and (h) thereof and as such the said allowance is an integral partof Salary of the Employees of the High Court of Sindh. It was further contendedthat the Chief Justice is the Competent Authority to treat the JudicialAllowance as part of Pensionable Pay. The High Court (Civil Services)Delegation of Powers Rules, 1960 does not permit Accountant General Sindh orFinance Department to undo or revise the order passed by the CompetentAuthority. It was further averred that in the pension of some of the retiredemployees of Sindh High Court, judicial allowance has already been included butother retired employees have been denied therefore, the Accountant GeneralSindh vide letter dated 30-8-2012 requested the Finance Department to allowjudicial allowance to be counted in calculation of pension of the retiredstaff/officers of Sindh High Court as directed by the Chief Justice but FinanceDepartment vide its letter dated 1st October, 2012 declined to act on the saiddirection of the Chief Justice and misinterpreted Article 486 of the SindhCivil Service Regulations. He referred to Article 208 of the Constitution ofPakistan which empowers High Court to make rules for the appointment and framethe terms and conditions of employment. Article 260 of the Constitution definesremuneration as remuneration includes salary and pension therefore the HighCourt has powers to decide and issue directions in this regard. He alsoreferred to Rule 2 of the High Court of West Pakistan (Civil Service)Designation of Powers Rules, 1960 in which the Chief Justice has the powers ofGovernment in the Administration Department under the Civil Service Rules inforce in the different integrating units of West Pakistan, in respect of theofficers and servants of the High Court, its Benches and Circuits. Serial 35 ofthe Appendix ‘A’ of the High Court of West Pakistan (Civil Services) Delegationof Powers Rules, 1960, gives full power to the Chief Justice to sanctionpension. He also focused on the independence of the Judiciary as mandated underArticle 175 of the Constitution of Pakistan. Lastly he referred to the list toshow that in the monthly pension of at least 15 retired employees of thiscourt, the judicial allowance was added and has been given effect in thepension amount/calculation. In order to strengthen his arguments, the learnedcounsel referred to PLD 1994 SC 105, 1997 SCMR 141, PLD 1993 SC 375 and 1991MLD 2546.

7. The learned Additional Advocate-General Sindhargued that in fact the special judicial allowance allowed by this court in thecase of Amanullah Khan Yousufzai v. Federation of Pakistan and others reportedin PLD 2011 Karachi 451 is already under challenge before the apex Court. Thepetition was disposed of with the directions to the Government of Sindh to payspecial judicial allowance equal to three times of the initial of theirsubstantive pay w.e.f. 1-3-2010 when such allowances were extended to servantsand employees of this court through Notification dated 2-4-2010 issued by thehonorable Chief Justice. Though he did not controvert the High Court of WestPakistan (Civil Services) Delegation of Powers Rules, 1960 through which thepowers have been delegated to the Chief Justice as specified in column-2 ofAppendix ‘A’ and the powers in respect of the officers and servants of the HighCourt, its Benches and Circuit other than C.S.P. and P.C.S. Officers but hemade much emphasis on Sindh High Court Establishment (Appointment andConditions of Service) Rules, 2006 and referred to Rule 15 which relates to theterms and conditions and argued that under the first proviso the powers of theProvincial Government shall be exercised by the Administration Committee orsuch other Judges upon whom the power may be delegated by the AdministrationCommittee however, in the second proviso the Chief Justice whenever thinks fitmay grant Special Allowance to any officer or an employee keeping in view thenature of services that he is required to perform. Rule 17 deals residuarypowers which provides that all matters not specifically provided for in theserules, or in the provisions referred to in Rule 15 and all questions relatingto the detail working of these Rules shall be regulated in accordance with suchorders as the Chief Justice may make. While under Rule 19, Full Court by aMajority Vote may make amendment in the Rules. He also referred to Article 38of the Civil Service Regulations (C.S.R) according to which pay means monthlysubstantive pay which includes also overseas allowance and technical allowancewhile the salary means sum of pay and acting allowance or charge allowanceunder Article 94 of Chapter-VIII. He also made reliance on Article 486 of theCivil Service Regulations (C.S.R) and argued that the term emoluments includepay as defined in F.R. 9 (21) (a) (i), Senior Post Allowance, Special Pay ofall types and nature, personal pay, Technical Pay, Index Pay, incrementsaccrued during leave preparatory to retirement and any other emoluments whichmay specially classed as pay. It was averred that the judicial allowance cannotbe treated part of emoluments as no such allowance is added in the definitionof emoluments therefore the Judicial Allowance is not reckonable for thepurposes of calculation of pension of the retired employees of the High Court.He also referred to a letter dated 29th August, 2012 written by the Additional SecretaryFinance Department, Government of Punjab to the Registrar Lahore High Court andargued that Lahore High Court also issued Administrative Notification declaringJudicial Allowance and Special Judicial Allowance as part of pay for thepurposes of pension of Judicial Officers and Members of Establishment of LahoreHigh Court but in response to Notification, the Finance Department took theview that the pensioners of the Government or of the High Court constitute aclass and draw their pension benefits under the Pension Rules, 1955 and have tobe treated alike. The effect of the disputed notification is to allow higherpension benefits to retired judicial officers and employees of High Court ascompared to other retired employees and the request was made by the FinanceDepartment Government of Punjab to the Registrar Lahore High Court to withdrawthe Notification. However the learned A.A.-G. could not controvert the pleathat in the case of some individual employees of this court, the judicialallowance has already been made reckonable for their pension calculation andthey are drawing the effect of this allowance in their pensions but a largenumber of employees have been deprived and discriminated. He further referredto Rule 5 of the Sindh Judicial Staff Service Rules, 1992 which provides thatthe pay scales and allowances of the members of staff shall be as prescribed byGovernment from time to time.

8. The learned counsel for the petitioner and thelearned A.A.-G. both had agreed that this petition may be disposed of at Katchapeshi stage and they argued their case extensively.

9. Heard the arguments. According to Rule 2 of theHigh Court of West Pakistan (Civil Services) Delegation of Powers Rules, 1960,the Chief Justice of the High Court of West Pakistan have the powers in respectof Judicial Officers up to the level of District and Sessions Judges and allthe powers of Government in the Administrative Department under the CivilServices Rules in force in the different integrating units of West Pakistan inrespect of the officers and servants of the High Court, its Benches andCircuits other than C.S.P, and P.C.S. officers, and the establishment of theCivil and Sessions Courts. For ready reference and convenience, Rule 2 of HighCourt of West Pakistan (Civil Services) Delegation of Powers Rules, 1960 isreproduced. as under:—

2. Notwithstanding anyprovision to the contrary in any Civil Services Rules for the time being inforce in the Province or any part thereof, the Chief Justice of the High Courtof West Pakistan shall have —

(i) the powers specifiedin column 2 of Appendix ‘A’ to these rules to the extent mentioned in column 3thereof in respect of Judicial Officers up to the level of District andSessions Judges; and

(ii) all the powers ofGovernment in the Administrative Department under the Civil Services Rules inforce in the different integrating units of West Pakistan, in respect of –

(a) The officers andservants of the High Court, its Benches and Circuits other than C.S.P. andP.C.S. officers, and

(b) The establishment ofthe Civil and Sessions Courts.

10. Appendix “A” of the aforesaid Ruleselucidates and explicates the delegation of powers to the Chief Justice inrespect of judicial officers. Entry No.35 delegates the chief justice fullpower to sanction pension provided the pension is covered by the rules and thecertified by the Audit Officer to be admissible and no deduction is to be madetherefrom while Entry No.36 delegates the powers to sanction commutation ofpension provided the conditions laid down in the rules are fulfilled.

11. In the case of Government of Sindh v. SharafFaridi reported in PLD 1994 SC 105, the honorable Supreme Court held that”financial independence of the judiciary can be secured if the fundsallocated to the Supreme Court and High Courts (by the Parliament and theProvincial Assemblies in their respective annual budgets) are allowed to bedisbursed within the limits of the sanctioned budget by the respective ChiefJustices of these Courts without any interference by the Executive (inpractical terms without reference and seeking the approval of the Ministry ofFinance/the Provincial Finance Department). Thus, the Chief Justice would becompetent to make reappropriation of the amounts from one head to another,create new posts, abolish old posts or change their nomenclature and to upgradeor downgrade etc. as per requirements of their respective Courts and thisshould be possible, as has been observed earlier, without being obliged to seekthe approval of the Ministry of Finance or the Provincial Finance Departmentsas the case may be, provided of course the expenditure that is incurred by themfalls within the limits of the budget allocation for their Courts. To ensurefinancial discipline, as Accounts Officer of the Accountant-General may sit inall Courts for pre-audit and issue of cheques. In this way, the control of theexecutive over the judiciary in this important sphere will be eliminated andthe judiciary enabled to function independently.”

12. In the case of Registrar, Supreme Court ofPakistan, Islamabad v. Qazi Wali Muhammad reported in 1997 SCMR 141, the apexCourt held that “the status of persons employed in the Provincial HighCourts, Federal Shariat Court and the Supreme Court of Pakistan and whose termsand conditions were governed under the rules framed by virtue of Article 208 ofthe Constitution directly arose in the case of Government of Punjab v. MubarikAli Khan, supra, and the view taken by the High Court in that case that theemployees of the Provincial High Court, Lahore, do not find within the categoryof civil servants as defined in the Civil Servants Act”. In the caseMubarik Ali Khan supra, PLD 1993 SC 375 the apex court held that “theLegislature was not given any role to determine the terms and conditions of theemployees including their remunerations and this exclusionary rule was found inconformity with the concept of independence of judiciary as enshrined in theConstitution”. It was further held by the apex court that “thedefinition of service of Pakistan itself divides those included into two broadcategories i.e. one of those employed in connection with the affairs ofFederation and the other of those employed in connection with the affairs of aProvince. Applying this definition, the employees of the High CourtEstablishment would fall within the definition of service of Pakistan and havebeen taken to be employed in connection with the affairs of the Province”.

13. Article 208 of the Constitution of Pakistanprovides in clear terms that the Supreme Court and the Federal Shariat Court,with the approval of President and a High Court, with the approval of Governorconcerned, may make rules providing for appointment by the Courts of officerand servants of the Court and for their terms and conditions of employment. Whythe officers and servants of the Superior Court are to be treated differentlythan the civil servants employed by the Government is not far to see. Theobject in making special dispensation for the officers and servants of theCourt as provided by Article 208 of the Constitution is to secure theindependence of the Superior Courts which is essential for the working of anydemocratic form of Government. The Constitution ensures that as far as possiblethe High Court should remain independent and free from interference in itsaffairs by the executive authorities. Reference can be made to 1991 MLD 2546.

14. The Sindh High Court Establishment (Appointmentand Conditions of Service) Rules, 2006 were framed on 21-10-2006 (Notified on18-11-2006) in exercise of powers conferred by Article 208 of the Constitutionof Pakistan 1973 which repealed the High Court Establishment (Appointment andConditions of Service) Rules, made under the authority of the Constitution1956. It would be most expedient to keep an eye on Rule 15 pertaining to theterms and conditions of employment which is reproduced as under:—

“15. Terms andConditions:

Subject to these Rulesother terms and conditions of service including pay, allowances, retirement,deputation, pension, gratuity, provident fund, benevolent fund, group insuranceor other privileges of an employee shall be governed by the provisions for thetime being in force and applicable to the employees in posts in the same scalein the Provincial Government.

Provided that the powersof the Provincial Government shall be exercised by the Administration Committeeor such other Judges upon whom power may be delegated by the AdministrationCommittee.

Provided further that theChief Justice whenever he thinks fit may grant a special allowance to anyofficer or an employee keeping in view the nature of the services that he isrequired to perform.”

15. Let us first clarify that the Sindh JudicialStaff Service Rules, 1992 have no relevance or application in the presentcontroversy and reliance on these rules by the learned A.A.-G. is beside thepoint for the reason that these rules are meant for regulating recruitment ofthe staff to the posts specified in Rule 3 such as the staff in the variousdistricts and sessions courts, small causes court Karachi and the subordinatecivil courts in the province of Sindh. So far as the Sindh High Court Establishment(Appointment and Conditions of Service) Rules, 2006 are concerned, these ruleswere framed on 21-10-2006 to regulate the appointment and conditions ofemployment of the officers and servants of the High Court of Sindh and its Rule15 is based on a broad spectrum and canvas which includes the benefit ofpension also so this is not the case of the petitioners or they have notknocked the doors of this court for awarding the pension which is already beingpaid to them as per terms and conditions of service but what they are claimingis the inclusion or effect of judicial allowance for the purposes ofcalculation of their pension which was part of their emolument/pay or salary.The payment of judicial allowance cannot be treated as an ad hoc relief or any benefitof contingent or reliant nature but it was one of the components of theemoluments which was being paid during active service without any interruptionor interval but after retirement the benefit of allowance was recalled for thepurposes of pension which is without any sagacity or rational. Despiteencompassing field of Sindh High Court Establishment (Appointment andConditions of Service) Rules, 2006, we cannot ignore Rule 2 of the High Courtof West Pakistan (Civil Services) Delegation of Powers Rules, 1960 which isalso encircling field under which the Chief justice of the High Court has thepowers in respect of Judicial Officers and all the powers of Government in theAdministrative Department under the Civil Services Rules in force in the differentintegrating units of West Pakistan in respect of the officers and servants ofthe High Court, its Benches and Circuits other than C.S.P. and P.C.S. officers,and the establishment of the Civil and Sessions Courts. Despite issuingrepeated administrative orders/ notifications from time to time, the Governmentof Sindh failed to implement the notifications and in the end the petitionershad left with no other option but to pray to the constitutional jurisdiction ofthis court for recompense and straighten out their grievance.

16. Now we would like to embark upon the entreaty ofthe respondents as regards the minutiae of Article 486 of Civil ServiceRegulations (C.S.R.):

SECTION IV – ALLOWANCESRECKONED FOR PENSION Emoluments and Average Emoluments

[486. The term”emoluments” means the emoluments which the officer was receivingimmediately before his retirement and shall include:—

(a) Pay as defined in FR9(21)(a)(i);

(b) Senior Post Allowance;

(c) Special Pay of alltypes and nature;

(d) Personal Pay;

(e) Technical Pay;

(f) Indexed Pay;

(g) Increments accruedduring, leave preparatory to retirement;

(h) Any other emolumentswhich may be specially classed as Pay.

Since the sub-article (a)of Article 486 C.S.R. also refers to FR 9 (21) (a) (i) therefore in order tomake more clarity, we also refer to FR 9 (21) (a) (i) as under:-

Combined Set ofF.R.& S.R. VOL.I and II (Revised Edition).

(21)(a) Pay means the amountdrawn monthly by a Government servant as–

(i) the pay, other thanspecial pay or pay granted in view of his personal qualifications, which hasbeen sanctioned for a post held by him substantively or in an Officiatingcapacity, or to which he is entitled by reason of his position in a cadre, and

(ii) overseas pay,technical pay, special pay and personal pay, and

(iii) any other emolumentswhich may be specially classed as pay by the Governor-General.

17. If the reliance placed by the respondents on theaforesaid F.R. and S.R. and C.S.R. is considered to be literal and ingenuouseven then they have no conceivable justification to deprive or divest theeffect of judicial allowance from the calculation of pension. In additionthereto, the Special Pay of all types and nature is part of emolumentsincluding other emoluments which may be specially classed as Pay. So far FR 9(21) (a) (i) of F.R. and S.R. is concerned it also does not debar or make anyembargo under which the Government may obliterate or wipe out the effect ofjudicial allowance from the pension’s calculation rather overseas pay,technical pay, special pay and personal pay are also integral part of it exceptthe pay, other than special pay or pay granted in view of personalqualifications, which has been sanctioned for a post held by an employeesubstantively or in an officiating capacity or to which he is entitled byreason of his position in a cadre. The judicial allowance was allowed to theemployees across the board, neither it was extended to a person specific nor itwas allowed on contingent or transient basis nor sanctioned for a post held byan employee substantively or in an officiating capacity or to which he isentitled by reason of his position in a cadre. The terms “emoluments”used under Article 486 of C.S.R. means the emoluments which the officer wasreceiving immediately before his retirement and judicial allowance was alsopart of emolument in this case. Besides much extended meaning of emolument,clause (h) of it makes it more clear that any other emolument which may bespecially classed as pay. The nomenclatures of emoluments alluded to Article486 and FR 9 (21) (a) (4) of F.R. and S.R. are not restrictive but exhaustivein nature and if we get hold of it there would be no improbability to perceivethat judicial allowance is a part of emoluments/pay/salary and reckonable beingone of the components for pension calculation. It is worthwhile to drawattention to Article 487 of Civil Service Regulations (C.S.R.), in which theterm “Average Emoluments” means the average calculated upon the lastthree years of service while Article 488 defines the allowances which do notcount such as local allowances and deputation (local) allowances; messingallowances, working allowances and provision allowances to office departmentwhich is not the case at this juncture.

18. After considering the pros and cons it is quitevisible that under the delegated powers conferred through 1960 Rules, the ChiefJustice of High Court has all the powers of government in the administrativedepartment under the Civil Services Rules in respect of the officers andservants of the High Court and these powers are in addition to and not inderogation of the powers already vested in or delegated to him under any law, ruleor order in force. Even the rules made under Sindh High Court Establishment(Appointment and Conditions of Service) Rules, 2006 have no overriding effecton the delegated powers of the Chief Justice of the High Court. Albeit theadministrative order passed by the then Chief Justice on 6-7-2012 do show thatjudicial allowance per policy decision dated 13-4-2006 of the then Hon’bleChief Justice was treated as emolument for the purpose of pension, in respectof judicial officers. Erstwhile A.C. in its meeting dated 17-2-2007 madeapplicability of judicial allowance with effect from 3-1-2000 and the benefitof judicial allowance was however extended to the staff and officers of HighCourt of Sindh by the then Hon’ble Chief Justice. The above order further refersto that in principle it was decided that staff/officers of this court wereallowed/entitled to judicial allowance which was treated as emolument for thepurpose of pensionary benefit per terms of Article 486 section IV of C.S.R. Sotaking into account forgoing raison d’etre we have reached to an unequivocalconcluding stage that judicial allowance is reckonable for the calculation ofpension as part of emoluments.

19. The next question that now arises forconsideration or crop up in our mind whether this benefit will extend to thepetitioners alone and or other retired employees also who are placed in asimilar position. Precisely we mean to daduce and figure out the terminologyand phraseology of judgment in rem.

Wharton’s LawLexicon (Fifteenth Edition)

Judgment in rem, ajudgment in rem is one which declares, defines or otherwise determine the juralrelation of a person or thing to the world generally, Satrucharla v. VijayaramaRaju v. Nirmaka Jaya Raju (2006) 1 SCC 212. Means a judgment that determinesthe status or condition of property and that operates directly on the propertyitself. Also termed in rem judgment, Black’s Law Dictionary, 7th Edn., p. 847.”Judgment in rem” is one which declares, defines or otherwisedetermines the jural relationship of a person or thing to the world generally,Satrucharla ‘Vijaya Rama Raju v. Nirmaka Jaya Raju, (2006) 1 SCC 212.

Black’s LawDictionary (Sixth Edition).

Judgment in rem. Anadjudication pronounced upon the status of some particular thing or subjectmatter, by a tribunal having competent authority. Booth v. Copley, 283 Ky. 23,140 S.W. 2d 662, 666. It is founded on a proceeding instituted against or onsomething or subject-matter whose status or condition is to be determined,Eureka Building and Loan Ass’n v. Shulz, 139 Kan. 435, 32 P.2d 477, 480; or onebrought to enforce a right in the thing itself. Federal Land Bank of Omaha v.Jefferson 229 Iowa 1054, 295 N.W. 855, 857. It operates directly upon theproperty. Guild v. Wallis, 150 Or. 69, 40 P.2d 737, 742. It is a solemndeclaration of the status of some person or thing. Jones v. Teat, Tex.Civ.App.,57 S.W. 2d 617, 620. It is binding upon all persons in so far as their interestsin the property are concerned. See also judgment quasi in rem.

20. In the case of “Hameed Akhtar Niazi v.Secretary Establishment Division Pakistan” reported in 1996 SCMR 1185, theapex court in the majority view held as under:—

“16. In our view, itwill be just and proper to remand the case to the Tribunal with the directionto re-examine the above case after notice to the affected persons and to decidethe same afresh in the light of above observations. We may observe that if theTribunal or this Court decides a point of law relating to the terms of serviceof a civil servant which covers not only the case of the civil servant wholitigated, but also of other civil servants, who may have not taken any legalproceedings; in such a case, the dictates of justice and rule of goodgovernance demand that the benefit of the above judgment be extended to othercivil servants, who may not be parties to the above litigation instead ofcompelling them to approach the Tribunal or any other legal forum.”

21. While in the case of “Federation of Pakistanv. Qamar Hussain Bhatti” reported in PLD 2004 Supreme Court 77, the apexCourt held as under:–

“Judgments in rem arean exception to the rule of law that no man should be bound by the decision ofa Court of justice unless he or those under whom he claims were parties to theproceedings in which it was given. This rule of law is referable to the maximsof Roman Law namely, `Res inter alios judicata nullem inter alios prejudiciumfacet’ or ‘Res inter alloas acta alteri nocere non debet’. Such exception ofthe judgment in rem in the Roman Law was the foundation of the exception inEnglish Law. Section 41 of the Evidence Act is the foundation for the exceptionof judgment in rem in our corpus juris. The reasons why a judgment should notbe used to the prejudice of a stranger is that he is denied the fundamentalright to make a defence, or to examine or cross-examine witnesses or to appealfrom a judgment which aggrieves him. This is the requirement of most manifestjustice and good sense”.

22. In the wake of above discussion, this petition isadmitted to regular hearing and disposed of as under:–

a. The judicial allowanceis part of emolument therefore it is reckonable for the calculation of pension.Consequently; the employees those were receiving judicial allowance ascomponent of their monthly emoluments are entitled to the inclusion and effectof judicial allowance in their pension

b. The petitioners and allother retired employees placed in the similar position are entitled to theabove relief and the respondents are directed to re-calculate their pensionwithin two months after giving the effect of judicial allowance and start thefuture payment accordingly.

c. Subject to theconditions mentioned in clauses (a) & (b) above, the respondents shall alsopay the arrears within three months with effect from the date when the paymentof pension was started or set in motion.

ZC/D-4/Sindh Petitiondisposed of.