ISLAMABAD:
The Federal Constitutional Court (FCC) has ruled that the operating rules do not allow the Balochistan government to grant lifetime benefits to retired chief secretaries or their widows.
“In the impugned notification, the petitioners sought to grant lifetime facilities to the retired chief secretaries of Balochistan and their widows. It is important to observe that the mentioned incumbents have remained civil servants, whose conditions of service are governed by the Civil Services Acts. Pension, being one of the post-retirement benefits, is also governed by the same and their retirement benefits are calculated accordingly,” said the judgment written by FCC judge Aamer Farooq, while upholding the decision of the Balochistan High Court in the matter.
“The notifications issued by the petitioners, granting extraordinary facilities to the retired chief secretaries of the Government of Balochistan, are in addition to the retirement benefits granted to them. The Rules of Operation do not authorize the Government of Balochistan to issue such directions by way of notification, particularly when there is no legal backing,” the judgment added.
A division bench of the FCC headed by Justice Aamer Farooq heard the case.
The notification regarding extension of facilities to retired chief secretaries of Balochistan and their widows for life was challenged in the Balochistan High Court.
The writ petition was allowed and the High Court held that the entitlement to benefits and privileges of a retired Chief Secretary, or any other public servant, is determined by the laws and regulations of the specific jurisdiction “and” the claim for additional benefits and privileges which, also without the support of law, rules, regulations, is not permitted because the specific benefits and privileges granted to retired Chief Secretaries are always described in the relevant legislation, rules or policies of the provincial government and these provisions may differ from one jurisdiction to another.
The FCC noted that a careful perusal of the Balochistan Operation Rules, 2012, does not support the contention put forward by the Additional Advocate General that these benefits and privileges can legally be granted to the Chief Secretary under the rules.
“On the contrary, Rule 3(4) demarcates the structure and composition of the Government of Balochistan by dividing its activities among different departments as specified in Schedule I (Section B). The rule makes it clear that each department shall perform only those functions expressly assigned to it. In this context, Schedule I (Section B) specifically vests in the Ministry of Finance the power to frame the Civil Services Rules relating to pensions, leave, revision of salaries and their interpretation for all civil servants.
“This breakdown indicates that all matters relating to retirement benefits, including those of the chief secretary, are the exclusive domain of the finance ministry, rather than the chief secretary himself or even the chief minister.
“However, in the present case, the impugned benefits and privileges were granted through a notification issued by the Department of Services and General Administration, with the approval of the Chief Minister as the competent authority. Such authority is neither contemplated nor supported by the operating rules, the action appears to have been taken without proper legal basis.
“Accordingly, the notification, having been issued without the requisite jurisdiction, was rightly set aside by the High Court.”
“We also refer to the Balochistan Civil Service Act, 1974, which provides that “on retirement, a public servant shall be entitled to such pension or compensation as may be prescribed”. See Section 19 of the Balochistan Civil Service Act, 1974.
“Thus, this provision of the law makes it mandatory for the civil servants of the Government of Balochistan, which also includes the Chief Secretary, to be subject to such pension or gratuity as may be prescribed. Thus, the pension of the civil servants is structured and does not exceed the limits of the law.
“One is entitled only to such amount as is permitted by law. Now the pension so prescribed is also governed by the Balochistan Civil Servants’ Pension Rules, 1989, which provides for the rules relating to civil servants and their pension. The benefits and privileges granted to the Chief Secretary are also not mentioned in the Rules and hence have no basis in law.”
“In the context of Pakistan, no action, whether taken by an individual or by a state authority, can be justified unless it is sanctioned by law. The Constitution of Pakistan of 1973, through its article 4, summarizes this understanding of positive law.
“It ensures that individuals are free to take all actions permitted by law, while simultaneously ensuring that no one is prevented from doing what the law does not prohibit, nor required to do what it does not require.” This clearly emphasizes that all actions revolve around the authority of law. Thus, the fundamental principle of our constitutional governance remains that any exercise of power must be rooted and justified by law. »
