IN THE HIGH COURT OF SINDH, KARACHI

 

C.P. No.D-1637 of  2013

 

Present: Mr.Justice Muhammad Ali Mazhar.

                                      Mr.Justice Shahnawaz Tariq

 

Dawood Sighar & others……………..……….…Petitioners

 

 

Versus

 

Province of Sindh & others……...…………...Respondents

 

 

Date of hearing 27.10.2014.

       

M/s.Rasheed A. Razvi, Farhatullah, Haider Imam Rizvi and Abbas Rizvi, Advocates for the Petitioners.

 

Mr.Sarwar Khan, Additional Advocate General, Sindh.

 

Mr.Muhammad Arshad, Section Officer, Finance Department, Government of Sindh, Karachi.

 

 

JUDGMENT

 

Muhammad Ali Mazhar J. This petition has been brought to seek following relief(s):-

 

“(a)   Declaration that the petitioners and all other retired employees of Sindh High Court placed in similar class are entitled for calculation of pensionary benefits by inclusion of Judicial Allowance.

 

(b)    Direct the respondents to implement and act upon the orders of the hon’ble Chief Justice of this court in letter and spirit.

 

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

 

(d)    Any other relief as this court may be deemed fit and proper under the circumstances of the case”.

2. The brief facts of the case are that the petitioners are retired employees of this Court. The Supreme Court of Pakistan keeping in view the various factors allowed judicial allowance to its employees in the year 2000. Subsequently, the High Courts of Provinces also granted such facility to their employees. The former Chief Justice of this Court late Mr.Justice Sabihuddin Ahmed had passed an administrative order that the judicial allowance should be counted for calculation of pension in respect of judicial officers working under this Court. The officers/staff members of this Court made representation to another former Chief Justice of this court who was pleased to grant this facility to officers of this court after going through the decision of the honourable Chief Justice of Pakistan with effect from 3.1.2000. The Registrar of this court had written a letter on 17.12.2012 to the respondent No.3 (Accountant General Sindh) to comply with the orders of the Chief Justice and also quoted the order which is reproduced as under:-

 

“Raising the issue of judicial allowance to be counted for calculating pension by the Finance Department at this stage is irrelevant and after thought as AG Sindh office is already paying pension incorporating judicial allowance for calculation of pension to the judicial officers as well as Establishment of the High Court of Sindh”

 

3. Despite communicating the orders, the respondent No.3 failed and neglected to entertain the applications of the petitioners regarding accumulation of judicial allowance in pension. The respondent No.3 in his comments took the position that the Finance Department, Government of Sindh has refused to treat the judicial allowance as reckonable component for pension under Article 486 of CSR while the respondent No.2 submitted the comments in line that in view of the Article 486 of Civil Service Regulation (C.S.R) the Judicial Allowance is not reckonable for pension calculation. It was further submitted in the comment that if judicial allowance is allowed to be treated as a reckonable emolument, its financial implication would be huge and those who are not employees of the High Court of Sindh and drawing judicial allowance will also demand judicial allowance as reckonable emolument for calculation of their pension which will result substantial burden on already frail financial resources of the province.

 

4. The Registrar of this court submitted a brief note along with some documents that the power to sanction the pension and treat the judicial allowance as part of pension to the members of High Court Establishment lies with hon’ble Chief Justice. Such power is exercised under High Court of West Pakistan (Civil Service) Delegation of Powers Rules, 1960 as mentioned at Serial No.35 and 36, Appendix. A. While deciding the request of Justice (retired) Mr. Muhammad Sadiq Leghari for including judicial allowance as part of pension, the then hon’ble Chief Justice Mr.Justice Sabihuddin Ahmed (late) was pleased to order as under :-

 

“Judicial allowance is payable to sheerly by virtue of a person’s being  a judicial officer and even taken such officer is not performing strictly judicial functions, there appears no reasons for  excluding it from “emoluments” for the purpose of pension “A” is approved---Sd-”. 

 

5. It was further stated by the Registrar that the Administration Committee on 17.2.2007 resolved that the judicial allowance to be made part of pension which shall take effect from the date when the same was paid to the judicial officers and as such it was retrospectively applied w.e.f. 03.01.2000. Thereafter, some staff members had submitted

joint application for extending such benefit to them as they too were getting judicial allowance in their pay. The note was placed before the then hon’ble Chief Justice and his lordship vide order dated 3.2.2011 was pleased to extend the benefit of calculating judicial allowance in the pension of members of High Court Establishment with immediate effect and the notification was issued on 4.2.2011. Some retired employees of High Court who stood retired before issuance of such notification and were getting judicial allowance in their pay, applied to this court requesting that such benefit may also be extended to them. The matter was placed before the then hon’ble Chief Justice and the benefit was extended w.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 Court Establishment w.e.f. 1.7.2003 and not from 3.1.2000, as such in order to rectify this date, the note was placed again before the then hon’ble Chief Justice and his lordship was pleased to approve the same therefore, notification and corrigendum were issued accordingly. The Finance Department drew the attention towards Article 486 of Civil Service Regulation and took the view that there is no mention of word “judicial allowance” in the said provision therefore vide letter dated 17th may 2013, the Registrar of this Court again communicated the administrative order dated 6.7.2012, passed by the then honorable Chief Justice to the Secretary Finance, Government of Sindh which is reads as under:-

 

“Examined. Since judicial allowance per policy decision dated 13.4.2006 of the then hon’ble Chief Justice (late Sabihuddin Ahmed) is treated as emolument for the purpose of pension, in respect of judicial officers. Similar consideration was not extended to other staff/members of High Court Establishment.  Erstwhile A.C. in its meeting dated 17.2.2007 made applicability of judicial allowance w.e.f. 03.01.2000 (i.e. retrospectively) benefit of judicial allowance was however extended to the staff and officers of High Court of Sindh by the competent authority the then hon’ble Chief Justice (Justice Sarmad Jalal Osmani) on 4.2.2011 with immediate effect.

 

Since in principle it is decided that staff/officers of this court are allowed/entitled to judicial allowance which is treated as emolument for the purpose of pensionary benefit per terms of clause 486 Section IV Allowances. Reckoned for pension of “Compendium of pension Rules & Orders. Therefore, in order to be fair, just and equitable judicial 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 that the Registrar submitted a reference on 14.1.2010 to the competent authority regarding the application of employees and the hon’ble Chief Justice directed to put up the matter with relevant rules. In compliance of the directions the Registrar submitted Clause 486 of the Compendium of Pension Rules and Order  and stated that judicial allowance is a Special Allowance which falls under the category (c) and (h) thereof and as such the said allowance is an integral part of Salary of the Employees of the High Court of Sindh. It was further contended that the Chief Justice is the Competent Authority to treat the Judicial Allowance as part of Pensionable Pay. The High Court (Civil Services) Delegation of Powers Rules, 1960 does not permit Accountant General Sindh or Finance Department to undo or revise the order passed by the Competent Authority. It was further averred that in the pension of some of the retired employees of Sindh High Court, judicial allowance has already been included but other retired employees have been denied therefore, the Accountant General Sindh vide letter dated 30.08.2012 requested the Finance Department to allow judicial allowance to be counted in calculation of pension of the retired staff/officers of Sindh High Court as directed by the Chief Justice but Finance Department vide its letter dated 1st October 2012 declined to act on the said direction of the Chief Justice and misinterpreted Article 486 of the Sindh Civil Service Regulations. He referred to Article 208 of the Constitution of Pakistan which empowers High Court to make rules for the appointment and  frame the terms and conditions of employment. Article 260 of the Constitution defines remuneration as “remuneration includes salary and pension therefore the High Court has powers to decide and issue directions in this regard. He also referred 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 of Government in the Administration Department under the Civil Service Rules in force in the different integrating units of West Pakistan, in respect of  the officers and servants of the High Court, its Benches and Circuits. Serial 35 of the Appendix ‘A’ of the High Court of West Pakistan (Civil Services) Delegation of Powers Rules, 1960, gives full power to the Chief Justice to sanction pension. He also focused on the independence of the Judiciary as mandated under Article 175 of the Constitution of Pakistan. Lastly he referred to the list to show that in the monthly  pension of at least 15 retired employees of this court, the judicial allowance was added and has been given effect in the pension amount/calculation. In order to strengthen his arguments, the learned counsel referred to PLD 1994 SC 105, 1997 SCMR 141, PLD 1993 SC 375 and 1991 MLD 2546.

 

7. The learned Additional Advocate General Sindh argued that in fact the special judicial allowance allowed by this court in the case of Amanullah Khan Yousufzai vs. Federation of Pakistan & others reported in PLD 2011 Karachi 451 is already under challenge before the apex Court. The petition was disposed of with the directions to the Government of Sindh to pay special judicial allowance equal to three times of the initial of their substantive pay w.e.f. 1.3.2010 when such allowances were extended to servants and employees of this court through Notification dated 2.4.2010 issued by the honorable Chief Justice. Though he did not controvert the High Court of West Pakistan (Civil Services) Delegation of Powers Rules 1960 through which the powers have been delegated to the Chief Justice as specified in column-2 of Appendix ‘A’ and the powers in respect of the officers and servants of the High Court, its Benches and Circuit other than C.S.P. and P.C.S. Officers but he made much emphasis on Sindh High Court Establishment (Appointment & Conditions of Service) Rules 2006 and referred to Rule 15 which relates to the terms and conditions and argued that under the first proviso the powers of the Provincial Government shall be exercised by the Administration Committee or such other Judges upon whom the power may be delegated by the Administration Committee however, in the second proviso the Chief Justice whenever thinks fit may grant Special Allowance to any officer or an employee keeping in view the nature of services that he is required to perform. Rule 17 deals residuary powers which provides that all matters not specifically provided for in these rules, or in the provisions referred to in Rule 15 and all questions relating to the detail working of these Rules shall be regulated in accordance with such orders as the Chief Justice may make. While under Rule 19, Full Court by a Majority Vote may make amendment in the Rules. He also referred to Article 38 of the Civil Service Regulations (C.S.R) according to which pay means monthly substantive pay which includes also overseas allowance and technical allowance while the salary means sum of pay and acting allowance or charge allowance under Article 94 of Chapter-VIII. He also made reliance on Article 486 of the Civil Service Regulations (C.S.R) and argued that the term emoluments include pay as defined in F.R. 9 (21) (a) (i), Senior Post Allowance, Special Pay of all types and nature, personal pay, Technical Pay, Index Pay, increments accrued during leave preparatory to retirement and any other emoluments which may specially classed as pay. It was averred that the judicial allowance cannot be treated part of emoluments as no such allowance is added in the definition of emoluments therefore the Judicial Allowance is not reckonable for the purposes 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 Secretary Finance Department, Government of Punjab to the Registrar Lahore High Court and argued that Lahore High Court also issued Administrative Notification declaring Judicial Allowance and Special Judicial Allowance as part of pay for the purposes of pension of Judicial Officers and Members of Establishment of Lahore High Court but in response to Notification, the Finance Department took the view that the  pensioners of the Government or of the High Court constitute a class and draw their pension benefits under the Pension Rules 1955 and have to be treated alike. The effect of the disputed notification is to allow higher pension benefits to retired judicial officers and employees of High Court as compared to other retired employees and the request was made by the Finance Department Govt. of Punjab to the Registrar Lahore High Court to withdraw the Notification. However the learned A.A.G could not controvert the plea that in the case of some individual employees of this court, the judicial allowance has already been made reckonable for their pension calculation and they are drawing the effect of this allowance in their pensions but a large number of employees have been deprived and discriminated. He further referred to Rule 5 of the Sindh Judicial Staff Service Rules 1992 which provides that the pay scales and allowances of the members of staff shall be as prescribed by Government from time to time.

 

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

 

9. Heard the arguments. According to Rule 2 of the High 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 respect of Judicial Officers up to the level of District and Sessions Judges and all the powers of Government in the Administrative Department under the Civil Services Rules in force in the different integrating units of West Pakistan in respect of the officers and servants of the 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. For ready reference and convenience, Rule 2 of High Court of West Pakistan (Civil Services) Delegation of Powers Rules 1960 is reproduced as under:-

2. Notwithstanding any provision to the contrary in any Civil Services Rules for the time being in force in the Province or any part thereof, the Chief Justice of the High Court of West Pakistan shall have ---

 

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

 

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

 

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

 

(b) The establishment of the Civil and Sessions Courts.

 

 

10. Appendix “A” of the aforesaid Rules elucidates and explicates the delegation of powers to the Chief Justice in respect of judicial officers. Entry No.35 delegates the chief justice full power to sanction pension provided the pension is covered by the rules and the certified by the Audit Officer to be admissible and no deduction is to be made therefrom while Entry No.36 delegates the powers to sanction commutation of pension provided the conditions laid down in the rules are fulfilled.

 

11. In the case of Government of Sindh v. Sharaf Faridi reported in P.L.D. 1994 S.C. 105, the honorable Supreme Court held that “financial independence of the judiciary can be secured if the funds allocated to the Supreme Court and High Courts (by the Parliament and the Provincial Assemblies in their respective annual budgets) are allowed to be disbursed within the limits of the sanctioned budget by the respective Chief Justices of these Courts without any interference by the Executive (in practical terms without reference and seeking the approval of the Ministry of Finance/the Provincial Finance Department). Thus, the Chief Justice would be competent to make reappropriation of the amounts from one head to another, create new posts, abolish old posts or change their nomenclature and to upgrade or downgrade etc. as per requirements of their respective Courts and this should be possible, as has been observed earlier, without being obliged to seek the approval of the Ministry of Finance or the Provincial Finance Departments as the case may be, provided of course the expenditure that is incurred by them falls within the limits of the budget allocation for their Courts. To ensure financial discipline, as Accounts Officer of the Accountant-General may sit in all Courts for pre-audit and issue of cheques. In this way, the control of the executive over the judiciary in this important sphere will be eliminated and the judiciary enabled to function independently”.

 

12. In the case of Registrar, Supreme Court of Pakistan, Islamabad v. Qazi Wali Muhammad reported in 1997 S.C.M.R. 141, the apex Court held that “the status of persons employed in the Provincial High Courts, Federal Shariat Court and the Supreme Court of Pakistan and whose terms and conditions were governed under the rules framed by virtue of Article 208 of the Constitution directly arose in the case of Government of Punjab v. Mubarik Ali Khan, supra, and the view taken by the High Court in that case that the employees of the Provincial High Court, Lahore, do not find within the category of civil servants as defined in the Civil Servants Act”. In the case Mubarik Ali Khan supra, P.L.D. 1993 S.C. 375 the apex court held that “the Legislature was not given any role to determine the terms and conditions of the employees including their remunerations and this exclusionary rule was found in conformity with the concept of independence of judiciary as enshrined in the Constitution”. It was further held by the apex court that “the definition of service of Pakistan itself divides those included into two broad categories i.e, one of those employed in connection with the affairs of Federation and the other of those employed in connection with the affairs of a Province. Applying this definition, the employees of the High Court Establishment would fall within the definition of service of Pakistan and have been taken to be employed in connection with the affairs of the Province”.

 

13. Article 208 of the Constitution of Pakistan provides 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 Governor concerned, may make rules providing for appointment by the Courts of officer and servants of the Court and for their terms and conditions of employment. Why the officers and servants of the Superior Court are to be treated differently than the civil servants employed by the Government is not far to see. The object in making special dispensation for the officers and servants of the Court as provided by Article 208 of the Constitution is to secure the independence of the Superior Courts which is essential for the working of any democratic form of Government. The Constitution ensures that as far as possible the High Court should remain independent and free from interference in its affairs by the executive authorities. Reference can be made to 1991 M.L.D. 2546.

 

14. The Sindh High Court Establishment (Appointment and Conditions of Service) Rules 2006 were framed on 21.10.2006 (Notified on 18.11.2006) in exercise of powers conferred by Article 208 of the Constitution of Pakistan 1973 which repealed the High Court Establishment (Appointment and Conditions of Service) Rules, made under the authority of the Constitution 1956. It would be most expedient to keep an eye on Rule 15 pertaining to the terms and conditions of employment which is reproduced as under:-

 

      “15. Terms and Conditions:

 

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

 

Provided that the powers of the Provincial Government shall be exercised by the Administration Committee or such other Judges upon whom power may be delegated by the Administration Committee.

 

Provided further that the Chief Justice whenever he thinks fit may grant a special allowance to any officer or an employee keeping in view the nature of the services that he is required to perform”.

 

 

15. Let us first clarify that the Sindh Judicial Staff Service Rules 1992 have no relevance or application in the present controversy and reliance on these rules by the learned A.A.G is beside the point for the reason that these rules are meant for regulating recruitment of the staff to the posts specified in Rule 3 such as the staff in the various districts and sessions courts, small causes court Karachi and the subordinate civil courts in the province of Sindh. So far as the Sindh High Court Establishment (Appointment and Conditions of Service) Rules 2006 are concerned, these rules were framed on 21.10.2006 to regulate the appointment and conditions of employment of the officers and servants of the High Court of Sindh and its Rule 15 is based on a broad spectrum and canvas which includes the benefit of pension also so this is not the case of the petitioners or they have not knocked the doors of this court for awarding the pension which is already being paid to them as per terms and conditions of service but what they are claiming is the inclusion or effect of judicial allowance for the purposes of calculation of their pension which was part of their emolument/pay or salary. The payment of judicial allowance cannot be treated as an adhoc relief or any benefit of contingent or reliant nature but it was one of the components of the emoluments which was being paid during active service without any interruption or interval but after retirement the benefit of allowance was recalled for the purposes of pension which is without any sagacity or rational. Despite encompassing field of Sindh High Court Establishment (Appointment and Conditions of Service) Rules 2006, we cannot ignore  Rule 2 of the High Court of West Pakistan (Civil Services) Delegation of Powers Rules 1960 which is also encircling field under which the Chief Justice of the High Court has the powers in respect of Judicial Officers and all the powers of Government in the Administrative Department under the Civil Services Rules in force in the different integrating units of West Pakistan in respect of the officers and servants of the 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 issuing repeated administrative orders/notifications from time to time, the Government of Sindh failed to implement the notifications and in the end the petitioners had left with no other option but to pray to the constitutional jurisdiction of this court for recompense and straighten out their grievance.

 

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

 

SECTION IV – ALLOWANCES RECKONED FOR PENSION

 

Emoluments and Average Emoluments

 

[486. The term “emoluments” means the emoluments which the officer was receiving immediately before his  retirement and shall include :-

 

(a)    Pay as defined in FR 9 (21) (a) (i) ;

 

(b)    Senior Post Allowance ;

 

(c)    Special Pay of all types and nature ;

 

(d)    Personal Pay ;

 

(e)    technical Pay ;

 

(f)     Indexed Pay ;

 

(g)    Increments accrued during leave preparatory to retirement ;

 

(h)    Any other emoluments which 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 to make more clarity, we also refer to FR 9 (21) (a) (i) as under:-

 

 

Combined Set of F.R.& S.R. VOL.I & II (Revised Edition).

 

(21) (a) Pay means the amount drawn monthly by a Government servant as---

 

(i) the pay, other than special pay or pay granted in view of his personal qualifications, which has been sanctioned for a post held by him substantively or in an Officiating capacity, 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 emoluments which may be specially classed as pay by the Governor-General.

 

17. If the reliance placed by the respondents on the aforesaid F.R & S.R and C.S.R is considered to be literal and ingenuous even then they have no conceivable justification to deprive or divest the effect of judicial allowance from the calculation of pension. In addition thereto, the Special Pay of all types and nature is part of emoluments including other emoluments which may be specially classed as Pay. So far FR 9 (21) (a) (i) of F.R & S.R is concerned it also does not debar or make any embargo under which the Government may obliterate or wipe out the effect of judicial allowance from the pension’s calculation rather overseas pay, technical pay, special pay and personal pay are also integral part of it except the pay, other than special pay or pay granted in view of personal qualifications, which has been sanctioned for a post held by an employee substantively or in an officiating capacity or to which he is entitled by reason of his position in a cadre. The judicial allowance was allowed to the employees across the board, neither it was extended to a person specific nor it was allowed on contingent or transient basis nor sanctioned for a post held by an employee substantively or in an officiating capacity or to which he is entitled 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 was receiving immediately before his retirement and judicial allowance was also part 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 be specially classed as pay. The nomenclatures of emoluments alluded to Article 486 and FR 9 (21) (a) (i) of F.R & S.R are not restrictive but exhaustive in nature and if we get hold of it there would be no improbability to perceive that judicial allowance is a part of emoluments/pay/salary and reckonable being one of the components for pension calculation. It is worthwhile to draw attention to Article 487 of Civil Service Regulations (C.S.R), in which the term “Average Emoluments” means the average calculated upon the last three years of service while Article 488 defines the allowances which do not count such as local allowances and deputation (local) allowances; messing allowances, working allowances and provision allowances to office department which is not the case at this juncture.

 

18. After considering the pros and cons it is quite visible that under the delegated powers conferred through 1960 Rules, the chief Justice of high court has all the powers of government in the administrative department under the Civil Services Rules in respect of the officers and servants of the high Court and these powers are in addition to and not in derogation of the powers already vested in or delegated to him under any law, rule or order in force. Even the rules made under Sindh High Court Establishment (Appointment and Conditions of Service Rules 2006 have no overriding effect on the delegated powers of the Chief Justice of the high court. Albeit the administrative order passed by the then Chief Justice on 6.7.2012 do show that judicial allowance per policy decision dated 13.4.2006 of the then hon’ble Chief Justice was treated as emolument for the purpose of pension, in respect of judicial officers.   Erstwhile A.C. in its meeting dated 17.2.2007 made applicability of judicial allowance with effect from 03.01.2000 and the benefit of  judicial allowance was however         extended to the staff and officers of High Court of Sindh by the then hon’ble  Chief Justice. The above order further refers     to that in  principle  it  was  decided  that staff/officers  of this

court were allowed/entitled to judicial allowance which was treated as emolument for the purpose of pensionary benefit per terms of Article 486 Section IV of C.S.R. So taking into account forgoing raison d'être we have reached to an unequivocal concluding stage that judicial allowance is reckonable for the calculation of pension as part of emoluments.

 

 

19. The next question that now arises for consideration or crop up in our mind whether this benefit will extend to the petitioners alone and or other retired employees also who are placed in a similar position. Precisely we mean to deduce and figure out the terminology and phraseology of judgment in rem.

 

 

Wharton’s Law Lexicon (Fifteenth Edition).

 

 

Judgment in rem, a judgment in rem is one which declares, defines or otherwise determine the jural relation of a person or thing to the world generally, Satrucharla v. Vijayarama Raju v. Nirmaka Jaya Raju, (2006) 1 SCC 212. Means a judgment that determines the status or condition of property and that operates directly on the property itself. Also termed in rem judgment, Black’s Law  Dictionary, 7th Edn., p. 847. “Judgment in rem” is one which declares, defines or otherwise determines 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 Law Dictionary (Sixth Edition).

 

 

Judgment in rem. An adjudication pronounced  upon the status of some particular thing or subject matter, 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 on something or subject matter whose status or condition is to be determined,  Eureka Building & Loan Ass’n v. Shulz, 139 Kan. 435, 32 P.2d 477, 480; or one brought 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 the property. Guild v. Wallis, 150 Or. 69, 40 P.2d 737, 742. It is a solemn declaration 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 interests in 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, the apex court in the majority view held as under:-

 

“16. In our view, it will be just and proper to remand the case to the Tribunal with the direction to re-examine the above case after notice to the affected persons and to decide the same afresh in the light of above observations. We may observe that if the Tribunal or this Court decides a point of law relating to the terms of service of a civil servant which covers not only the case of the civil servant who litigated, but also of other civil servants, who may have not taken any legal proceedings; in such a case, the dictates of justice and rule of good governance demand that the benefit of the above judgment be extended to other civil servants, who may not be parties to the above litigation instead of compelling them to approach the Tribunal or any other legal forum.”

 

 

21. While in the case of “Federation of Pakistan v. Qamar Hussain Bhatti” reported in P.L.D. 2004 Supreme Court 77, the apex Court held as under:-

 

“Judgments in rem are an exception to the rule of law that no man should be bound by the decision of a Court of justice unless he or those under whom he claims were parties to the proceedings in which it was given. This rule of law is referable to the maxims of Roman Law namely, ‘Res inter alias judicata nullun inter alios prejudicium facit’ or ‘Res inter alias acta alteri nocere no debit’. Such exception of the judgment in rem in the Roman Law was the foundation of the exception in English Law. Section 41 of the Evidence Act is the foundation for the exception of judgment in rem in our corpus juris. The reasons why a judgment should not be used to the prejudice of a stranger is that he is denied the fundamental right to make a defence, or to examine or cross-examine witnesses or to appeal from a judgment which aggrieves him. This is the requirement of most manifest justice and good sense”.

 

22. In the wake of above discussion, this petition is admitted to regular hearing and disposed of as under:-

 

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

 

b.   The petitioners and all other retired employees placed in the similar position are entitled to the above relief and the respondents are directed to re-calculate their pension within two months after giving the effect of judicial allowance and start the future payment accordingly.

 

c.   Subject to the conditions mentioned in clause (a) & (b) above, the respondents shall also pay the arrears within three months with effect from the date when the payment of pension was started or set in motion.

 

 

 

Karachi:-

Dated.28.4.2015                                              Judge

                                                Judge