ROOH UL AMIN KHAN, J:- This Writ Petition filed by the petitioners under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 with the following prayer:- "On acceptance of this petition writ may very graciously be issued to the respondents to grant family pension to the petitioners by according mandatory condonation of 6 months deficiency in 10 years service, pensionable term of service, of late Afsar Ali Ihsan theology Qari, BPS-7, being the husband of petitioner No.1. and father of petitioners No.2 & 3, as 6 months deficiency is to be condoned by the respective authority and up to less than one year by the respondent No.3, whereas the same condonation has been declined to them by excluding the leave period of 113 days already granted and which hasd been earned by deceased during service and he was legally entitled to it."
2. The facts, in brief are that the husband of petitioner No.1. and father of petitioners No.2 and 3 namely Afsar Ali Ihsan was appointed theology teacher, Qari, BPS-7 on 18.2.1990 and remained in service till his death i.e. 29.2.2000. During this period, the official availed various terms of leave the detail of which has fully been mentioned in the petition according to which the total service of the deceased official comes to 9 years and 6 months. Since the service of deceased official was less than the mandatory requisite 10 (ten) years for getting the pensionary benefits, therefore, the respondents declined the pensionary benefits to the family of deceased official and only gratuity was granted. The petitioner No.1 submitted application for grant of condonation of 6 months deficiency on the ground that the relevant law on the subject provides that a deficiency of a period not exceeding six months in the qualifying service of an official shall be deemed to have been condoned automatically, but the said application was declined. Feeling aggrieved, the petitioners have filed the instant writ petition.
3. Initially the comments of respondent No.1 and Additional Advocate General while supporting the stance of respondents rebutted the claim of petitioners on the ground that the husband of petitioner was deficient of qualifying service for pension as w.e.f 01.12.1998 to 29.02.2000 he had been granted and sanctioned extraordinary leave without pay which could not be counted to his continuous service, except, as the bridge between the two period of qualifying service. He referred to letter dated 14.12.2005 whereby the amount of gratuity was sanctioned in favour of petitioner while his period of leave from 01.12.1998 to 29.02.2000 was treated as extraordinary leave without pay.
4. Having heard the learned counsel for the parties, perusal of record would reveal that the husband of petitioner No.1. got inducted in civil service as theology teacher Qari, BPS-07 on 18.02.1990. He remained in service till 29.02.2000 i.e. the date of his death. The service record of Afsar Ali Ihsan Qari would depict that during service he was granted leave w.e.f 25.10.1998 to 23.12.1998 i.e. 60 days on half pay. Similarly, the late employee availed 8 days leave from 24.12.1998 to 31.12.1998 on full pay. Again he availed leave of 166 days i.e from 01.01.1999 to 15.06.1999 on half pay, while in summer vacation he enjoyed 71 days leave w.e.f 16.6.1999 to 25.08.1999 on full pay. From the above calculation his total service comes to more than 9 years and 6 months.
5. No doubt, the qualifying service for pensionary benefits is 10 years but as per Chapter Condonation of Interruption and Deficiencies, para 423 of Civil Service Regulation (CSR), a deficiency not exceeding six months in the qualifying service of an official shall be deemed to have been condoned automatically. Even the authority competent to sanctioning pension may condone the deficiency of more than six months and less than one year provided the official/civil servant died during service or retired premature under circumstances beyond his control like invalidation or abolition of his post, however in the case of petitioner, the sanction for condonation is not required as he has completed more than 9 years and 6 months service which is automatically condonable under para 423 of CSR.
6. The entry in the service record of husband of petitioner has not been denied by respondents, rather they have taken a fantastic plea that the leave period of the deceased employee had been concealed by the Headmaster Govt: Middle School Takhat Abad, Peshawar, being the drawing dispersing officer and competent authority. The plea of the respondents run contrary to the service record of the husband of petitioner as the service book of the deceased employee being maintained by the Headmaster of concerned school has been duly verified and attested by the Accounts Officer Pay Fixation Party NWFP, Peshawar. The entries made in the service book reflect that he has served the Education Department for more than 9 years and 6 months. The letter dated 14.12.2005 whereby the period from 01.12.1998 to 29.2.2000 is treated as leave without pay is not supported by any documents. Not an iota of evidence is available on record in support of allegation of concealment of leave period by the competent authority i.e. Headmaster of the school. The service book maintained by the respondents/department would make it abundantly clear that except leave with effect from 26.8.1999 to 5.3.2000, all time the official has availed leave either on full pay or on half pay, which is countable towards his continuous service. Treating the service of official as extraordinary leave without pay, vide letter dated 14.12.2005 run contrary to the documentary service record of husband of the petitioner, thus would not be used as an obstacle in awarding the pensionary benefits to the petitioners. The respondent department while relying on the above mentioned letter has illegally deprived the petitioner No.1., being legal heir of deceased employee, from her due pensionary benefits. There is no cavil to the proposition that under the existing rules on the subject and government instructions the period of extraordinary leave shall not be treated as qualified service for pension but only as a bridge between the period of qualifying service but in the instant case the entire leave availed by the petitioner is either on full pay or half pay, which could not be treated as extraordinary leave. It is also undeniable fact that any interruption in service due to other reason may be condoned provided such interruption is not due to any fault or willful act of the civil servant. In this respect, it is incumbent upon the account officer to maintain the leave account of civil servant, but the letter dated 14.12.2005 has been issued by the Executive District Officer, Schools and Literacy, Peshawar without referring to the leave account whereby the sanction for award of gratuity has been accorded at the rate of 1 1/2 monthly pay for each complete year of service in favour of the petitioner (widow of late Qari Afsar Ali Ihsan).
The period mentioned in para-2 of the letter whereby the period with effect from 01.12.1998 to 29.02.2000 is treated as leave without pay, has been added in slipshod manner, without referring to any report of the Account Officer or competent authority. Mere reference to letter of Finance Department has been made which infact is contrary to requirement of law.
7. The learned AAG representing the respondent department also attacked the maintainability of instant writ petition on the basis of explicit bar of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. We are conscious of the fact that the pension and gratuity fall in terms and conditions of service but the petitioner being widow of late Afsar Ali Ihsan challenged the denial of her pensionary benefits occurred to her on the death of her husband. According to Civil Servants Act, 1973, the Civil Servant means a person who is a member of Civil Service of the Province or who holds a Civil Post in connection with the affairs of the province. Similarly, according to section 19 of Civil Servants Act, 1973, a civil servant appointed in prescribed manner shall be entitled to receive pension and gratuity admissible to him under the West Pakistan Civil Servants Pension Rules and in the event of death of such civil servant whether before or after retirement his family shall be entitled to receive such pension and gratuity. Section 4 of Khyber Pakhtunkhwa Service Tribunal Act, 1974 provides a remedy of appeal to civil servant aggrieved by any final order whether original or appeal made by the Departmental authority under the terms and conditions of his service.
Admittedly the petitioners do not fall in the definition of civil servant, thus the bar under article 212 would not be applicable against them.
8. The question of interpretation and true import of the term pension was raised before the august Supreme Court of Pakistan in case titled "Government of NWFP through Secretary to Govt: of NWFP Communication & Works Department, Peshawar Vs Muhammad Said Khan and others (PLD 1973 Supreme Court of Pakistan 514) wherein it was held that: "It must now be taken as well settled that a person who enters government service has also something to look forward after his retirement to what are called retirement benefits, grant of pension being the most valuable of such benefits. It is equally well settled that pension like salary of a civil servant is no longer a bounty but a right acquired after putting a satisfactory service for the prescribed minimum period. A fortiori, it cannot be reduced or refused arbitrarily except to the extent and in the manner provided in the relevant rules."
The above mentioned view was reiterated by the apex court in "I.A Sherwani case (1991 SCMR 1041) and it was further added that the pension is intending to assist a retired civil servant in providing for his daily wants so long he is alive in consideration of his past service, though recently the above benefit has been extended inter alia in Pakistan to the widows and dependent children of the deceased civil servant. The raison d'etre for pension seems to be inability to provide for oneself due to old age. The right and extent to claim pension depend upon the terms of the relevant statute under which it has been granted.
9. In case titled "Secretary to Govt: of the Punjab, Finance Department Vs M. Ismail Tayer and 269 others" 2015 PLC (CS) 296, the august Supreme Court of Pakistan was pleased to hold that the pensionary benefits is not a bounty or ex-gratia payment but a right acquired in consideration of past service. Such right to pension is conferred by law and cannot be arbitrarily abridged or reduced except in accordance with such law as it is the vested right and legitimate expectation of retired civil servant.
10. Section 19 of the Khyber Pakhtunkhwa Civil Servants Act 1973 confer right of pension to civil servant which is reproduced as under: "Pension and gratuity.--- (1) On retirement from service, a civil servant appointed on regular basis in the prescribed manner before the commencement of the Khyber Pakhtunkhwa Civil Servants (Amendment) Act, 2005 (hereinafter referred to as the said Act), shall be entitled to received such pension or gratuity as are admissible to him under the West Pakistan Civil Service Pension Rules: Provided that in the event of the death of such a civil servant, whether before or after retirement his family shall be entitled to receive such pension, or gratuity or both, as admissible under the said rules."
A bare reading of the above quoted provision would make it abundantly clear that upon retirement, a civil servant is entitled to receive such pension in the prescribed manner. Section 2
(g) of Civil Servants Act, 1973 define the word prescribed to mean "prescribed by rules". Apparently, the rules pertaining to pension payable to a civil servant is an indication to the West Pakistan Civil Services Pension Rules, 1963. Since there is no denial on the part of the respondents that under the rules ibid the petitioners are not entitled to the pensionary benefits, therefore, needs no discussion.
The sole objection raised by the Department is that after treating the period of two years as leave without pay, the total length of service of Qari Afsar Ali Ihsan (Late) comes to 8 years 9 months and 11 days which is deficient than the qualified service for pension. The objection of respondents is misconstrued and based on mere supposition. As discussed in detail in the preceding paras, the sanctioned leave granted to the predecessor of petitioners either on full pay or half pay has illegally and wrongly been treated as leave without pay. The late Qari Afsar Ali Ihsan has rendered service for more than 9 years 6 months, thus in light of the para 423 of Civil Service Regulation, the widow and children of deceased are entitled for the pensionary benefits.
11. In wake of the above, this petition is admitted for regular hearing and allowed with direction to the respondents to immediately grant the family pension to the petitioners. 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.