JUDGMENT

Suffian J:

I had some difficulty in deciding from the pleadings alone what it is I am asked to declare but during the course of the hearing it became clear that what I am asked to declare is this, that if before a public officer retires on a pension he opted to draw a gratuity (followed by a reduced monthly pension) then he may be paid the reduced pension only during the period of ten years immediately following his retirement but after the expiration of that period he should be paid his full pension.

The admitted facts are that the plaintiffs and several persons on whose behalf they sue were members of the public service and at different dates retired from various services on pensions which under the present constitutional arrangements are a liability of the Federal Government.

They became eligible for pensions according to the scale fixed by paragraph five of the Pensions Regulations 1951 subject to s. 11 of the Pensions Ordinance, 1951. When retiring, each of them was offered and paid in lieu of the full pension (a) a reduced pension for life at the rate of 'be of his full pension and (b) a lump sum gratuity equal to ten times the value of the surrendered portion of his pension. That was over ten years ago. Each of the plaintiffs outlived ten years after their retirement, though by the date of the trial only plaintiffs numbers two, four, seven and eight were still living. It is argued that each of the plaintiffs and every pensioner in the same position should now be paid their full pension because:

(a) they are eligible for the full money value of the full pension for the remaining period of their lives, having regard to the language of paras. (1) and (3) of reg. 15 of the 1951 Pensions Regulations read together and having regard to

the aims and objects of s. 3 of the Pensions Ordinance, 1951, and the protection of pension rights under the Federal Constitution;

(b) there is no provision in the pension laws for the commutation of a pension; and

(c) a gratuity is a loan from the Government to a retiring officer to enable him to buy a house and so on, he repays the loan by accepting only 'be of his pension for ten years after his retirement, thereafter the loan having been fully repaid Government has no further right to reduce his pension, for such reduction is tantamount to Government receiving more than what it has lent him and there is no consideration for this excess receipt.

It is said that the pensions laws do not use the word "commute", where a pension is awarded and the power to commute given, the word "commute" should be used, as is done in some English statutes cited before me, and therefore the pensions of the pensioners involved could not be commuted. It is further said that this is in accordance with Solicitor General Orders 1921 which say that "pensions .... can in no case be commuted." In allowing the so-called commutation in this case the old Government acted against their own instructions and the pensioners concerned should not be made by the present Government to suffer for the mistake of the old Colonial Government.

It is also said that a retired public servant draws a pension every month for life, the total amount he is to draw cannot be known until after his death, and if he is to surrender part of his pension in exchange for a gratuity and a reduced pension, for the surrender to be valid he must know exactly what he is surrendering, and as none of these pensioners knew or could have known at the time he retired exactly what he was surrendering, the purported surrender was invalid and Pusey v. Sir Edward Desbouvrie 24 ER 1081 is cited in support.

In determining this question it is in my opinion sufficient only to examine the nature of Government pensions. There is no doubt that it is in Government's interest to pay pensions because they ensure devoted service and the retention of the service of experienced and skilled officers, but pensions are not payable by Government because of a contr