Ex-CJP’s verdict for 70 HC judges cost national kitty Rs1.647bn

ISLAMABAD: For former chief justice of Pakistan (CJP) Mian Saqib Nisar, the principle of equal dispensation of justice for all and guarding the public money meant everything.

In several cases, he ordered the government officials to return the public money after declaring their appointments illegal, but this was not the case when it came 70 retired judges of high courts.

Justice (R) Saqib Nisar, along with two other judges out of a five-member bench of Supreme Court of Pakistan, allowed the retired judges of high courts to retain Rs1.647 billion despite declaring the judgment through which they were given this hefty amount per incuriam (having lack of care) and void.

In March 2008, when the superior judiciary was in crisis and disarray due to the unconstitutional measures taken by the then dictator Pervez Musharraf, a three-member bench of PCO judges of Supreme Court of Pakistan consisting Justice Muhammad Nawaz Abbasi, Justice Muhammad Qaim Jan Khan and Justice Muhammad Farrukh Mahmood passed a judgment.

According to this judgment, a total of 70 high court judges who retired from the 1970s till 2008 whose service/tenure as a judge of the high court was less than five years should be given pensions from the date of their retirement. This decision cost Rs1.647 billion to the national exchequer. The judgment further said that these 70 judges should also be given a monthly pension which at that time was calculated to the tune of Rs32.6 million a month.

Five years later, in April 2013, a five-member bench headed by former chief justice Anwar Zaheer Jamali along with four other judges, Justice Mian Saqib Nisar, Justice Ejaz Afzal Khan, Justice Athar Saeed and Justice Iqbal Hameedur Rehman declared the previous judgment given by Dogar court’s PCO judges void and per incuriam.

Two senior members of the bench Justice (R) Anwar Zaheer Jamali and Justice (R) Ejaz Afzal Khan ordered the government to recover all the money from these retired judges. However, Justice Saqib Nisar and the two other members of the bench with a majority judgment ordered the government not to recover the money. Justice (R) Saqib Nisar wrote in his judgment that recovering the money will be oppressive and prejudicial to the retired judges. The bench, however, ordered that their (70 judges) right to receive the pension has ceased and come to an end, rather they are disentitled to receive pension in future.

Senior Advocate Irfan Qadir being Attorney General for Pakistan at that time argued before the court and asserted that judges cannot be made judge of their own cause for the purpose of determining their pensionary benefits.

Justice (R) Ejaz Afzal Khan — one of the authors of the judgment when contacted, told this scribe that he still remembers this decision because he opposed it along with Justice (R) Anwar Zaheer Jamali.

Justice Ejaz further revealed that after the 2013’s judgment, the retired judges again filed a petition in the Supreme Court of Pakistan and the case was fixed before Justice (R) Azmat Saeed Sheikh where the Accountant General for Pakistan conceded before the court and agreed to pay them monthly pensions.

“It is part of the law that a judge should be entitled to pension only if he meets the criteria of five-year tenure as a judge of the high court. I mentioned the principle of restitution and wrote in the judgment that the amount should be recovered from the judges on the basis of the said principle,” Justice (R) Ejaz Afzal said.

“I remember that the retired judges filed a review petition and the same judges were to hear the petition along with other judges as it was supposed to be a larger bench. A larger bench was constituted, but the case was never listed again. Later the case was fixed in Justice Azmat Saeed Sheikh’s court during Justice (R) Saqib Nisar’s tenure as Chief Justice of Pakistan. I was told that the Accountant General of Pakistan had conceded before the court to release the monthly pension of the retired judges. I believe the government should file a review petition because the accountant general cannot concede against the law especially when it involves a huge public money,” Justice Ejaz Afzal remarked.

“I don’t want to comment on who was accommodated through this judgment and why. You cannot enter into a person’s mind to know why he accommodated anyone,” commented Justice (R) Ejaz Afzal.

Former Chief Justice of Pakistan Justice Saqib Nisar when contacted told this scribe that he doesn’t remember the details of the judgment but he recalls that he allowed the judges to retain the money that they received from the government in terms of pension.

To a question about his dual standards for the judges and other government officials or parliamentarians in this particular case, the former chief justice said there is a difference in illegality and per incuriam. The judges’ pensions in earlier judgment was declared per incuriam by the five-member bench, not illegal. Whereas, the references this scribe is quoting particularly, Attaul Haq Qasmi’s appointment were declared illegal. This is the reason I ordered to recover money from him because he was appointed illegally. On the contrary, the judges received the pension amount not through any fraud or forgery but because of an in-curiam judgment, commented the former CJ.

When asked the two other judges who were part of the bench have clearly mentioned that the government should recover the pension amount as they could not find any justification of retaining the public money, Justice (R) Saqib Nisar reminded this scribe of lack of his legal knowledge and asked not to embarrass himself or him by asking such questions.

When contacted Shehzad Hassan, the Accountant General of Pakistan Revenue told this scribe that the information regarding judges’ pension is a private matter, therefore, he cannot comment on it. This scribe reminded the AG that this is a public record as the details of the pensions are publically available through the 2013’s judgment of Supreme Court, he said he doesn’t know anything about it because he took charge as AG six months ago. He disconnected the call before he was asked any other question.

Below are the important excerpts of the 2013 judgment passed by the five member bench of the Supreme Court of Pakistan.

Para 106 of the judgment: “…. This being the position, despite their effective service as additional judges or otherwise for any period, since their appointments were neither legal nor regularised, they cannot be even considered as judges of the High Court. Besides, calculations as regards their actual period of service as retired judges of the High Court, made by the learned Sr. ASC during his arguments, to bring their case within the category of Judges, who have served as a Judge of the High Court for five years or more, are entirely misconceived, inasmuch as, from no stretch of imagination intervening period, when they had not served as High Court judges, could form part of their actual period of service for the purpose of such relief….”

Para 110 of the judgment: “…. While arguments with reference to principle of past and closed transaction were being advanced before us repeatedly, we also enquired from the learned ASCs as to whether such principle, if at all found applicable to the present case, should not have been in the first place conversely made applicable to the case of those honourable retired Judges of the High Court, who stood retired during the period from 1970 onwards up to the date of judgment under challenge, as they never agitated such claim during this long period after their retirement from time to time. None of the learned ASCs could offer any satisfactory reply to this query, except that the right to pension has accrued in their favour on the basis of judgment under challenge. This reply on their behalf is not only frail and meritless but negates their other contention that the right to pension was otherwise available in their favour on the basis of Article 205 read with Fifth Schedule of the Constitution and President’s Order 9 of 1970 or President’s Order No.3 of 1997….”

Para 111 of the judgment: “…. Considering the question of indulgence or sympathetic consideration of the case of the honourable retired Judges of the High Court, having been already benefited from the judgment under challenge, we cannot lose sight of the fact that the heavy sums paid to them, as partly reflected in the above reproduced chart, were made from public exchequer, which is a sacred trust. Thus all care and caution is required to see whether a mistake or illegality committed by the Court could make them entitled for payment of more than Rs.1,647,130,156/- and further liability of payment of Rs.32,604,359/- towards monthly pension. In view of our discussion in this context made in the foregoing paragraphs, we have no option but to hold that all the sums paid to each of the honourable retired judges, who were entitled for pensionary benefits in terms of the judgment under challenge, are liable to be recovered from them….”

Para 113 of the judgment: “.…The honourable retired judges of the High Court also cannot claim any benefit on account of its implementation by the respondents on the principle of past and closed transaction or on the principle estoppel, as on one hand it is a continuing liability over the public exchequer to the tune of approximately Rupees Thirty million per month, thus giving recurring cause of action; and, on the other hand, being judgment of the apex Court, the respondents had no option but to implement it in its letter and spirit or to face penal consequences of non-compliance, including contempt proceedings….”

Para 114 of the judgment: “….Here, in order to understand the principle of locus poenitentiae more clearly, reference to the cases of Engineer-in-Chief Branch v. Jalaluddin (PLD 1992 SC 207) and Abdul Haq Indhar v. Province of Sindh (2000 SCMR 907), will also be useful. In the case of Engineer-in-Chief Branch (supra), it was held that locus poenitentiae is the power of receding till a decisive step is taken but it is not a principle of law that order once passed becomes irrevocable and past and closed transaction. If the order is illegal then perpetual rights cannot be gained on the basis of such an illegal order….”

Para 116 of the judgment: “….. As regards the issue of recovery of pensionary benefits availed by some honourable retired judges of the High Court in terms of judgment under challenge, when we look at the recent pragmatic approach employed by this Court to safeguard public interest qua securing public exchequer, we find that in the case of Syed Mehmood Akhtar Naqvi versus Federation of Pakistan (PLD 2012 SC 1054) and Syed Mehmood Akhtar Naqvi versus Federation of Pakistan (PLD 2012 SC 1089), wherein declaration was issued against number of elected MNAs, MPAs and Senators for their disqualification from being Members of Majlis-e-Shoora (Parliament), Provincial Assemblies and the Senate, because of holding dual nationalities and consequent disqualification under Article 63(1)(c) of the Constitution, despite they having served their respective Institution (Parliament) during the intervening period, Court ordered that all these Members of the Parliament and Provincial Assemblies etc being declared disqualified are also directed to refund all monetary benefits drawn by them for the period during which they kept the public office and have drawn their emoluments etc. from the public exchequer, including the remuneration, T.A./D.A., facilities for accommodation along with other perks which shall be calculated in terms of the money by the Secretaries of the National Assembly, Senate and Provincial Assemblies accordingly….”

Para 117 of the judgment: “…. In another case of similar nature titled Muhammad Yasin versus Federation of Pakistan (PLD 2012 SC 132), relating to appointment of Chairman, OGRA, which was declared illegal and void ab initio, it was further ordered that all salaries, value of perquisites and benefits availed from the date of his appointment till the date of the judgment shall be recovered by the Government from the beneficiary Chairman at the earliest. In contrast to the facts of these two cases, the beneficiaries of judgment under challenge (the honourable retired judges of the High Court) during the intervening period have not worked or undertaken any assignment so as to make their cases worth consideration for some concession or relief on this ground…”

Para 118 of the judgment: “…. The above discussed recent trend adopted by this Court to safeguard public exchequer from being misused has persuaded us to follow a similar course in the present case. More so, as this principle cannot be deviated merely for the reason that this time the affectees of this judgment are some honourable retired judges of the High Court, who are very respectable citizens of the Country. Rather, adoption of this course in the present proceedings is all the more necessary to strengthen the inbuilt process of self-accountability, which is necessary to earn public confidence in our judicial system….”

Para 119 of the judgment: “…we find that there is no legal notion under the Islamic dispensation of justice, furnishing any reasonable justification for the honourable retired judges of the High Court to retain the financial benefits availed by them under the disguise of pension on the basis of judgment under challenge, which we have already declared per incuriam, null and void...”

Para 120 of the judgment: “.…every Court has to keep in mind the golden principle that all laws in any form, may be constitutional provisions, including fundamental rights provided in Part-II of the Constitution or the sub-Constitutional legislations of different nature are based on one broad principle of equal dispensation of justice for all, for which every citizen of this country enjoys similar legal status, thus, he cannot be discriminated on any high moral ground. We have no hesitation to further clarify that interest of public at large is to be given priority and preference over the interest of individuals, therefore, interest of public at large cannot be sacrificed to extend profane benefits to some individuals...”

“….. As a matter fact, all honourable retired judges of the High Court, who had less than minimum five years actual service to their credit as such and beneficiary of judgment under challenge, are legally and morally bound to restore all such gains to the public exchequer so as to set an example for the society about their high morals and conduct, which is expected from all those who are supposedly role model for the society….”

Justice Saqib Nisar’s note in the 2013 judgment:

Justice Saqib Nisar note on the judgment about per incuriam, “….It is thus clear from the above that the doctrine only has nexus to administrative decisions and actions, and no one can have resort to it, for the purposes of claiming any right found upon any decisions of this Court, which decision and the law laid down therein is found by the Court to be per incuriam. Therefore, I do not find any merit in the plea raised by the Judges side, that their right to receive pension in future is protected on the principle of legitimate expectation despite the fact that “the judgment” has been declared per incuriam and set aside….”

While discussing the question about any protection is available to the honorable judges on the rule of equality as enriched by Article 25 of the Constitution, Justice Saqib Nisar wrote in the judgment, “I have already held (see discussion on entitlement) that the right to receive the pension is not absolute; it has to be earned and it also is not a bounty. Therefore, the Judges lacking the qualification prescribed by law for acquiring the right cannot compete with those who fulfill the requirement. It may be pertinent to state here that some of the Judges have a service tenure of one year/two years/three years; how conceivably they can compare themselves, with those who have the prescribed tenure of five years and plead discrimination. Therefore, the submission made is unfounded and is hereby discarded….”

Whether this judgment shall have prospective or retrospective effect — a question posed by Justice Saqib Nisar in his judgment note

“….Some of the beneficiaries of “the judgment” are the widows of the retired Judges. It is nobody’s case that they have practiced and played any fraud or committed some foul in gaining and procuring the pension, so as to disentitle them to retain such gain, on the known principle, that no one should be allowed to hold the premium of his wrong/fraud and/or retain ill-gotten gains. Rather to the contrary they have received the monies under the judicial dispensation by the apex Court, which was considered as valid enunciation of law, till the present decision and the pension was paid and received by them in bona fide belief of the entitlement; none of the concerned, ever pointed out the depravity and the vice of “the judgment”, though “the judgment” was known at all the levels of the High Court(s) and also in other judicial circles, rather it was a publicly known fact, yet the verdict was left outstanding for a considerably long period, thereby allowing the Judges to derive benefit of “the judgment”; I am not persuaded that the Registrar of this Court or for that matter all the concerned, at all the levels, including the learned Members of this Bench, who graced the respective High Courts of the country as the Chief Justices were unaware of “the judgment”, but still no timely action was initiated to set the wrong law, right and the time was allowed to pass. If a wrong and an error has been committed in the declaration of law (PLD 2008 SC 522), the responsibility rests on this Court and it is fundamental rule of law and justice, that the act of the Court shall prejudice none; in my view this principle tilts in favour of the Judges, rather the State. Because on account of the lapse of considerable time, most of the Judges might have spent and consumed the amount received by them, as they are expected to have decent living after their retirement; the amount so received might have expended on the education and marriages of their children; the possibility that they might have acquired an abode to spend rest of their life to avoid dependency on their scion cannot be ruled out. This amount might have been utilized on their daily expense and sustenance and in the discharge of their other social and financial obligations….”

“….And if now the amount is ordered to be recovered from them they might have to sell their assets (shelter) and belongings. Those who have no assets or saving might be compelled and constrained to entreat others or borrow which would definitely not behove with their status and position as the retired Judges; baring few, most of them are of old age and I am not sure they have the ability and capacity, at such an advance age to generate the requisite amount for the refund. Enforcing the refund of the amount upon them may cause innumerable predicament for them and may lead to a very pathetic and a ludicrous situation for them. And all those who have once graced the superior judiciary, might in this scenario be rendered destitute and precarious and deprived of even a modest life and living in future. But for the commission of no wrong, fraud, foul and fault on their part. Rather as stated earlier an error and mistake perpetrated by this Court. Therefore, I am of the considered view that the present judgment be given prospective effect….”

“….Therefore following the above dictum, I hold that the amount so far received by the Judges should not be recovered, from them, as it shall be oppressive and more prejudicial to the Judges, as against the respondent of the case i.e. (of PLD 2008 SC 522) and the State, which (State) even never ever filed any review against “the judgment”, even after the success of the movement for the restoration of real judiciary. And even now the recovery has not been pressed for before us by the State. However, as now the judicial verdict (PLD 2008 SC 522) under which the Judges had and have been receiving the pension, is declared per incuriam and is set aside, obviously their right to receive the pension has ceased and come to an end, rather they are disentitled to receive pension in future. And as mentioned earlier, such right for the future receipt of pension is not protected under any principle, rule and on jurisprudential plain….”

Justice Ejaz Afzal Note in 2013 judgment:

“…I have also been deliberating since the commencement of hearing of their case till the writing of this note to find some justification for the retention of the benefits received by the learned Judges but could not find any. In case I create or contrive one in this behalf, I cannot find any reason to deny the same relief to the others whose case is either in the pipeline or who have yet to retire. I also could not find any intelligible differentia for a classification amongst the Judges who have received the benefits and those who have yet to receive notwithstanding they are similarly placed. Even otherwise, a benefit extended in derogation of the law cannot be justified to be retained simply because it has been received as such…”

Justice Ather Saeed’s Note in 2013 judgment:

“….I am, therefore, of the considered view that our judgment declaring earlier judgment per incuriam should be given prospective effect and the pensioner benefits being paid to these Judges shold be stopped forthwith but no direction should be given to them for returning the pensioner benefits they had acquired till the passing of this judgment.”

Justice Iqbal Hameedur Rehman’s Note in 2013 judgment:

“…. I, therefore, consider the judgment Accountant-General, Sindh (supra) to be per incuriam, which should be given prospective effect and the pensionary benefits being paid to the Judges should be discontinued with effect from passing of the judgment and order by this Court, but no direction for the of recovery of pensionary benefits and emoluments already availed by them can be given, as the same are undoubtedly not obtained by them on account of any commission of wrong, fraud or fault on their part rather the same have been availed on account of a mistaken judgment by this Court. As such, the instant judgment and order cannot be given retrospective effect.”