KUALA LUMPUR (Jan 16): The High Court on Thursday approved a pension increase for retirees, based on their final salary according to the 2016 Public Services Department circular, effective January 2022.

Judge Datuk Amarjeet Singh Serjit Singh directed the Public Services Department (PSD) and the government through a mandamus order (to compel them) to pay the arrears within three months of Thursday (Jan 16).

In his grounds, Amarjeet dismissed two circulars issued in 2013 by the PSD as they do not amount to a salary revision but an enhancement to the salary.

However, he said the 2016 circular has the effect of a salary revision for all civil servants, and hence the pensioners are entitled to the increment.

“In light of the Federal Court’s decision (that dismisses the government and PSD’s appeal), the arrears are to be paid effective January 2022 (the date of the Court of Appeal’s decision that allowed pensioner Aminah Ahmad’s appeal). The court makes no order as to costs,” the judge said in reading his decision.

However, senior federal counsel M Kogilambigai has applied for an oral application for a stay, which was opposed by Aminah’s counsels Datuk Shukor Ahmad and Datuk Baljit Singh Sidhu.

Kogilambigai’s concern was that should the government and PSD’s appeal be allowed, it might not be able to recover the arrears from the pensioners.

Shukor said the pensioners, being senior citizens, should be entitled to the fruits of the claim and indicated that they would oppose the oral application for a stay.

Following that, Amarjeet directed Kogilambigai to file a formal written application for a stay, so the court could fix a date for a hearing.

The decision by Amarjeet, despite this being an action by Aminah on behalf of 57 other retirees, will affect an estimated 930,000 former civil servants.

Late last year, it was reported that retired judges who retired prior to July 2015 have received their pension arrears, while the rest received salary revision and arrears.

In January 2022, a three-member Court of Appeal (COA) bench, in allowing Aminah’s appeal, ruled that the Pension Adjustment Act 2013 (PAA 2013) was null and void, when it declared Sections 3 and 6 of the amendment as being unconstitutional.

Aminah, a former Wisma Putra staff member who retired in 2002, brought the action in 2017, and named the government and the PSD director general as respondents.

She claimed that the PAA 2013 amendment, which had brought about a flat rate of 2% increment, was unconstitutional when compared to the PAA 1980, which was more favourable, since the pension of government retirees was revised based on the prevailing salary of incumbent civil servants at that grade.

The COA’s unanimous decision in January 2022, written by then-judge Datuk Darryl Goon Siew Chye, agreed that the PAA 2013 amendment may result in a less favourable position, and hence contravenes Article 147 of the Federal Constitution.

Article 147, regarding the protection of pension rights, stipulates: The law applicable to any pension, gratuity or other like allowance (in this constitution referred to as an “award”) granted to a member of any of the public services, or to his widow, children, dependants, or personal representatives, shall be that in force on the relevant day or any later law not less favourable to the person to whom the award is made.

Goon — who had sat with Datuk Vazeer Alam Mydin Meera and Datuk Abu Bakar Jais (both now Federal Court judges) — in finding the 2% increment imposed in the PAA 2013 to be unreasonable, said Section 3(2) prescribes that the Yang di-Pertuan Agong may prescribe different percentages of increment for different categories of recipients to remedy the situation.

However, in allowing Aminah’s appeal, the COA ordered that the revision be based prospectively effective from its January 2022 decision, and not retrospectively from the PAA 2013 that had been declared null and void.

Goon’s unanimous COA decision was upheld by the Federal Court in June 2023, when the then-chief judge of Malaya Tan Sri Mohamad Zabidin Mohd Diah said the PAA 2013 amendment that allows a 2% increment annually is less favourable to pensioners, and upheld the declaration that it was null and void and in contravention with Article 147.

“We find no reason to depart from the Court of Appeal judgement. Hence, the apex court finds no merit in the appeal by the government and the PSD director general, and the appeal is dismissed,” Zabidin had said.

Prime Minister Datuk Seri Anwar Ibrahim in an immediate response in July 2023 assured that the government would come up with a mechanism “to protect pensioners”, in response to the apex court’s decision to nullify and void the PAA 2013 amendment.

He further announced that pension payments for civil service retirees for the July-December 2023 period would revert to an earlier mechanism before the 2013 revision.

Following the non-compliance in implementing the arrears, Aminah’s solicitor from Messrs Shukor and Baljit wrote to the PSD early last year, and reminded it of the Pension Adjustment Act 1980, which was restored by the Federal Court decision in 2023.

“The Pension Adjustment Act 1980 stipulates that pensioners have a right to receive such benefits of increment, which are equivalent to those who are still serving. The purpose is to ensure that those who receive pensions remain in the appropriate status of the present equivalent lifestyle of the officer in their grade,” the provision states.

Following that, Aminah sought a mandamus to compel the PSD and the government to pay the arrears.

Read also:
High Court to rule on pensioners' right to pre-2013 arrears, affecting 930,000 retirees
Pensioners want High Court to enforce January 2022 COA ruling regarding their pension arrears
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