1. MRS. YASMIN ABBASEY, J.--- Facts in brief are that during the L.P.R. w.e.f, 13-1-1984 from the post of Assistant Accounts Officer in Auditor's General of Pakistan, petitioner was re-employed as Deputy Manager Accounts in Pay Group (BPS-17) in Civil Aviation Authority on 28tke October, 1984. The petitioner discharged his responsibilities with the respondents authority for 9 years, 8 months and 12 days. He retired on 15-3-1995 from the post of Corporate Manager, Finance Pay Group (BPS-18).
2. ' Grievance of petitioner is that in spite of serving for more than nine years, only gratuity for 9 years was granted to him, whereas he was deprived of pension on account of not qualifying service of complete ten years. Being aggrieved with the said decision of the respondent's authority, petitioner filed an appeal before the Federal Service Tribunal at Karachi. During the pendency of that appeal before the Tribunal, in view of the judgment reported viz. Muhammad Mubeen-us-Salam and others v. Federal of Pakistan PLD 2006 SC 602. Section 2-A of the Service Tribunals Act, 1973 was declared ultra virus of Articles 240 and 260 of the Constitution. In consequence thereof, proceedings pending at different forums under section 2-A of S.T.A. Had to be affected. To cover those pending proceedings it observed (ibid) as under:--- "(a) The cases which have been decided finally by this Court in exercise of jurisdiction under Article 212(3) of the Constitution shall not be opened and if any Review Petition, Misc. Application or Contempt Application, filed against the judgment is pending, it shall be heard independently and shall not be affected by the ratio of this judgment.
(b) The proceedings instituted either by an employee or by an employer, pending before this Court, against the judgment of the Service Tribunal, not covered by category (a) before this Court or the Service Tribunal shall stand abated, leaving the parties to avail remedy prevailing prior to promulgation of section 2-A of the STA, 1973.
(c) The cases or proceedings which are not protected or covered by this judgment shall be deemed to have abated and the aggrieved person may approach the competent forums for redressal of their grievances within a period of 90 days and the bar of limitation provided by the respective laws, shall not operate against them till the expiry of stipulated period.
(d) The cases in which the order of Service Tribunal has been implemented shall remain intact for a period of 90 days or till the filing of appropriate proceedings, whichever is earlier.
(e) The Service Tribunal shall decide pending cases under section 2-A of the STA, 1973 in view of the above observations. However, if any of the cases is covered by clause 'c' (ibid), a period of 90 days shall be allowed to aggrieved party to approach the competent forum for the redressal of its grievance."
3. ' It is contended by learned counsel for the petitioner that as during pendency of appeal of petitioner before Federal Service Tribunal, section 2-A of the S.T.A., 1973 was declared ultra vires, therefore, by virtue of para.109 clause (c) of Muhammad Mubeen-us-Salam case, cases or proceedings which are not protected or covered by this judgment shall be deemed to have abated and aggrieved persons were allowed to approach competent forum for redress of their grievance.
4. Therefore, this petition is maintainable and there is no need for obtaining any further order of abatement from F.S.T. Order passed by the Assistant Registrar, Federal Service Tribunal, Karachi with reference to abatement of proceedings in Civil Appeal No,299 of 2002 is redundant.
5. ' Whereas case of the respondents Nos.1 and 2 is that petition is not maintainable as Civil Aviation Authority does not have statutory rules, therefore, case of petitioner is covered under the law of master and servant. And proper course for him would be to file suit for recovery. It is further pleaded that the petition presented by him before the F.S.T. Having No,299 of 2002 was time- barred. It was presented by k im after about seven years from the date of his retirement in February, 2002, therefore, present petition filed in continuation of appeal presented before the F.S.T.
6. Is also time-barred.
7. ' Plea of time-barred was also raised before Tribunal. Although no specific circler of condoning the delay in presenting the appeal Was passed, but it is expressed on 3-5-2002 that:-- "On perusal of the papers, it appears that the appeal is barred by limitation, but since it is question of monetary benefits, we would like to associate the respondents to high light these points by filing pre-admission comments."
8. ' In the meantime, section 2-A of S.T.A. Was declared ultra viras to the Constitution and question of limitation remains undecided.
9. ' So far the question that Civil Aviation Authority does not have any statutory rules, therefore, case is not covered by Mobeen-us-Salam's case and this petition is not maintainable. We would like to refer observation made by apex Court in very judgment wherein clarifying status of an employee of such institution it is observed that:--- "On promulgation of section 2-A of the Service Tribunals Act, 1973, the persons employed in the Government controlled Corporations, were never treated to be in the service of Pakistan, therefore, they were not allowed to enjoy the status of a civil servant. But now, by means of a legal fiction, such status has been conferred upon them notwithstanding the fact that statedly their cases are not covered by the definition of "civil servant" and on account of this legal fiction a discrimination has been created between the persons, who have been excluded from the definition of civil servant as per section 2(1)(b) of the Civil Servants Act, 1973 whereas the persons in the employment of Government controlled Corporations, either created by or under a statute, most of them incorporated under the Companies Ordinance 1984, have been declared to be in the service of Pakistan and deemed to be civil servants. Thus, it has created a classification which does not seem to be reasonable. A deeming clause only permits to imagine a particular state of affairs but it does not mean that such imagination can be allowed to be overwhelmed, when it comes to the inevitable corollaries of that state of affairs; therefore, merely on the basis of imagination, status Of a person cannot be converted, without ensuring compliance of the basic requirements."
10. ' It has further been clarified by larger Bench of this Court in C.P. 1591 of 2006 with reference to case of Salahuddin v. Frontier Sugar Mills PLD 1975 SC 244 discussing the phrase "performing function with the affairs of the Federation or a Province" that:--- "Indeed superior Courts have been issuing orders and directions under Article 199 not merely to corporate entities created by State but even those incorporated under the Companies Act or otherwise such as Pakistan Television Corporation, Sindh Industrial Trading Estate, etc. We are, therefore, not at all impressed by the contention that Government controlled corporations do not fall within the ambit of Article 199 of the Constitution."
11. Observations referred above facilitate to conclude that services of petitioner with Civil Aviation Authority, even though Government controlled corporation but having no status of civil servant will fall under clause (3) of para.108 of Mobeen-us-Salam's case and as by virtue of clauses (c) and
(e) of para.109 (ibid), proceeding pending before Service Tribunal not protected by apex judgment were deemed to have been abated. Therefore, we conceded with the arguments advanced by learned counsel for petitioner that there was no need of obtaining of further order of abatement from Service Tribunal, as pleaded by respondents, and present petition under Article 199 of the Constitution is maintainable. Even otherwise the appeal preferred by petitionet before Service Tribunal was not finally disposed of. Therefore, assertion of assailing its judgment before Honourable Supreme Court of Pakistan is also out of rule.
12. ' Coming up to the main controversy in between the parties. According to petitioner he served with Civil Aviation Authority for a period of 9 years, 8 months and 12 days, therefore, by virtue of C.S. Regulations 371-A and 423 a deficiency of six months or less in the qualifying service of 10 years of a Government servant shall be deemed to have been condoned for availing pension, whereas one leaf incomplete letter, dated 28th February, 1993 issued by Civil Aviation Authority at page 481 of the file referred reflects the case of respondents in respect of some other employee, wherein it was expressed:- "He superannuated on 23-10-1992 rendering a continuous regular service of 9 years, 8 months and 4 days excluding 31 days of E.O.L. His above service qualified for terminal benefits under Government Scheme of Pension-cum-Gratuity as adopted in C.A.A.
13. ' One view expressed is that Master Warrant Officer (Retd.) Tufail Ahmed Khan is not entitled to pension as he did not complete minimum service of 10 years at the time of his superannuation and is, therefore, entitled to only gratuity for 9 years of his complete years of service. His remaining 8 months and 4 days service a fraction of a year is not to be taken into account under C.S.R. 468 and para.9(10)(a) of Hand Book for Drawing and Disbursing Officers."
14. ' But these observations made by C.A.A. Have been declined by Honourable Supreme Court in Civil Appeal No,2 of 1996 by observing that:--- "Even if the assertion made by Mr. Mansoor Ahmed, learned counsel representing the respondents is accepted that appellant's service period covers 9 years 4 months and 18 days. The applicability of Government instructions referred to in leave grant order in this case are attracted and the appellant entitled to be treated in accord therewith."
15. ' With this observation competent authority was directed to consider the case of appellant in referred judgment under clause (2) of C.S.R.423 and to pay the due amount in accordance with rules.
16. ' In addition to the entitlement of pensionary benefits for the services rendered by petitioner before Civil Aviation Authority, we would like to refer a circular issued by Government of Pakistan on 13-11- 1982 for condensation of deficiency in qualifying service under C.S.R. 423 stating that "it is clarified for general information and guidance that since under clause (1) of C.S.R. 423, the deficiency of six months or less will be deemed to have been condoned automatically in the qualifying service of Government servant". For ready reference C.S.R. 423 reads as under:--- "(1) A deficiency of a period not exceeding six months in qualifying service of an officer shall be deemed to have been condoned automatically."
17. Objection that as Civil Aviation Authority is not Government body, therefore, C.S. Regulations are not applicable in the matter. Respondents' own letter of appointment issued on 28-10-1984, whereby by virtue of clause (ii), discipline and conduct of petitioner were to be governed by C.A.A.
18. Efficiency and Disciplinary Regulations and C.A.A. Employees Conduct Regulations along with Pakistan Essential Services (Maintenance) Act, 1952, with the applicability of Pakistan Essential Services (Maintenance) Act, 1952 and Federal Government Rules constituted by the Federal Government, provisions of C.S.R. Are also applicable in the matter.
19. ' In view of above discussion, we are of the opinion that with the condonation of delay of about four months petitioner is entitled for pensionary benefits of the service rendered by him with Civil Aviation Authority.
20. ' So far as question that petition is hit by Limitation Act as service appeal filed by petitioner before Federal Service Tribunal was time-barred. We would like to refer section 23 of Limitation Act, which reads as under:--- "Continuing breach and wrongs".--- In the case of a continuing breach of contract and in the case of a continuing wrong independent of contract a fresh period of limitation begins to run at every moment of the time, during which the breach of the wrong, as the case may be continued."
21. By placing correspondence in between him and respondents; petitioner has been able to make out a case of continuous breach of contract by respondent Civil Aviation Authority. And with every decline of petitioner's right to have pensioner benefits a fresh period of limitation starts. Perusal of record shows that last letter issued by Civil Aviation Authority is of 10-12-2001 for personal hearing of petitioner on 12-12-2001, what happened after 12-12-2001, is not traceable from record, but following up letter of petitioner up to 27-2-2002 is on record, therefore, Appeal No,299 of 2002 filed before F.S.T. In February, 2002 was in time.
22. ' Observation made by the Honourable Supreme Court of Pakistan reported Dr. Shuja-ud-Din Khan v. Islamic Republic of Pakistan and others 2000 PSC 139 are material in this respect, wherein in a case of promotion it was observed that:- "In such matters, involving a principle, limitation becomes a secondary issue and a fattish of technicalities cannot be made. What is to be seen is whether an action has been taken, which has no action in law and which may be close, to being void or of no legal effect.
23. ' With this observation delay was condoned."
24. Next is the claim of petitioner for single pension as Civil Officer for his old service in Auditor-General of Pakistan along with his new service in Civil Aviation Authority from 14-3-1985 to 2-1-1985 by combining both services as one has been refuted by the Auditor-General in his different letters stating that neither C.S.R.529 nor terms and conditions of petitioner's appointment in C.A.A.
25. Covered the claim for the grant of pension on the basis of his old service plus C.A.A. Service. The C.A.A. Has got its own rules and orders to decide- its merits independently. Besides, C.A.A. Is not a Government Department, rather it is an autonomous body and service in that authority cannot be considered to be service under Government. In reply thereto in a letter of 2-1-1998 petitioner with reference to C.S.R. 529, which reads as under:--- "529. Except as provided in Articles 525 to 528-B, an officer who, having been discharged with a pension, is subsequently, re-employed, may not count his new service for a separate pension.
26. Pension if any is admissible only for new service combined with the old, the whole being counted as one service as stated that on his re-employment with C.A.A. Vide appointment letter, dated 28th October, 1984, the Auditor-General of Pakistan issued no objection vide letter, dated 17th December, 1984. It is further stated by him that:--- "In addition to my pay during my new service in C.A.A., I continued drawing my pension in terms of Finance Division instructions in para.1(ii)(b) of O.M. No,4(4)Reg.7/78, dated 20-3-1980 (Serial No,15 of Chapter VI-RE-Employment of Pensioners printed on pages 219-221 of. Compendium of Pension Rules and orders.
27. ' The Ministry of Finance clarified in the case of re-employment of Government pensioners in Autonomous Public Bodies constituted by law that the rules in the C.S.R. Relating to the reemployment of Government pensioners in the service of "Local Funds" are applicable to the pensioners re-employed in all autonomous bodies constituted by law in 0.M.No,F7(3)- R(RWP)/61, dated the 10th May, 1961 (serial 24 of Chapter VIRe-Employment of Pensioners printed on page 224 of Compendium of Pension Rules and Orders). The Civil Aviation Authority established under Ordinance No,XXX of 1982 is, therefore, a "Local Funds" as defined in Article 33 of C.S.R. As such, the rule in the C.S.R. Are applicable to my New Service during my re-employment in C.A.A."
28. The legal position as pleaded by petitioner has not been specifically rebutted by respondents C.A.A. Except stating that it is an autonomous body and Federal Government Rules are not applicable on them, but as discussed above by virtue of their own appointment letter and with the applicability of Pakistan Essential Services (Maintenance) Act, 1952 and Federal Government controlled body, C.S.R.259 read with Rule 531 entitles petitioner to claim one pension by counting both the service with Auditor-General of Pakistan and Civil Aviation Authority as one in terms of C.S.R.807.
29. ' Upshot of above discussion is that petitioner who has rendered his services with Civil Aviation Authority for 9 years, 8 months and 12 days is entitled for pensionary benefits with the condonation of the remaining period, as laid down in the Government Institutions, which reads as under:--- "Government Institutions"
30. ' For the purpose of grant of pension under Revised Rules and Rates, 1967;
(1) Unless it be otherwise provided by special rule or contract, the service of Government servant being to qualify for pension from the date he takes charge of the office to which he is first appointed.
(2) A deficiency of six months or less in the qualifying service of a Government servant shall be deemed to have been condoned.
(3) A deficiency of more than six months but less than a year, may be condoned by the competent authority if both the conditions mentioned below were satisfied:
(a) if the Government servant dies while in service or retires under circumstances beyond his control such as on becoming invalid or on abolition of his permanent post and his eventual selection for discharge, and but for such contingency he would have completed another year of qualifying service, and
(b) The service rendered by the Government servant was meritorious."
31. In view of foregoing reasons, petition is allowed, competent authority is directed to calculate the pensionary benefits of petitioner in with voles (sic) and considering and deeming it as one pension for both period of services rendered by petitioner with Auditor-General of Pakistan and C.A.A. As provided in C.S. Regulations referred above. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.