Dr. Khurshid Iqbal, J.
1. This petition under article 199 of the constitution was moved by Mst. Muhammad Bibi (petitioner), a resident of village Kot in Tehsil Batkhela of District Malakand. She prayed for:
(a) Declaring action and inaction of respondents as illegal, without lawful authority and void ab initio.
(b) Issuance of direction to the respondent-department for payment of "pension and other attached accidental benefits related to service and murder, i.e. pension and shaheed package of deceased Shahzia to" her the action and inaction of the respondent-department and issuance of an appropriate writ in respect of payment of "pension and other accidental benefits related to service and murder, i.e. pension.
(c) Any other relief not specifically asked for, may also be granted in favour of petitioner.
2. The facts of the case are short and simple. In the year 2000, the Director of Education, FATA N.W.F.P. (now the Khyber Pakhtunkhwa), Peshawar, appointed Ms. Shahzia Begum, a daughter of the petitioner upon the recommendation of the village Education Committee duly endorsed by the Agency Education Officer on a Proper Agreement form. The order of appointment issued on 11/10/2000 stated that Ms. Shahzia Begum was to serve the Government Communal School teacher from the date of assumption of her charge. By an order dated 19/02/2014, she was reappointed against a regular vacant post purely on temporary basis in Basic Pay Scale 07. She was a married woman. Unfortunately, she was murdered along with her sister by the name Ms. Shahida Parveen.
The petition does not disclose when exactly she was done to death. However, it states that her husband was accused for her and her sister's murder. After her death, the petitioner, being her mother, sought to receive her pension. The petitioner's efforts could bear no fruits. She, thus, approached this court.
3. The respondents--the Government of the Khyber Pakhtunkhwa through the Director Education Schools (Female), the Secretary, Finance, the District Education Officer and the District Accounts Officer of District Bajaur--were summoned to answer her petition. The District Officer of Education and Accounts (respondents # 3 and 4) presented their respective comments.
4. Mr. Tariq Kakar, counsel for the petitioner stated that the petitioner is the real mother of the late Ms. Shahzia Begum and she is entitled to receive her pension. He further stated that Ms. Shahzia Begum was though appointed as a communal teacher on a non-regular position, but she was reappointed on against a regular post in the year 2014. He argued that her previous service since her initial appointment in the year 2000 may be counted towards her pension.
5. The Additional Advocate General, on the other hand, argued that the petition is not maintainable because Ms. Shahzia Begum was a civil servant. He further argued that she couldn't render her regular service for 10 years, the period prescribed for entitlement to pension and other retirement benefits.
6. We have perused the record made available before us and considered the submissions of both the parties in light of the applicable law on the subject.
7. At the very outset, we would take up the issue of maintainability of the petitioner. Admittedly, the petitioner is the mother/a legal heir of the late Ms. Shahzia Begum. She herself is not a civil servant.
For the reason alone she has no other remedy except to file a constitutional petitioner before this court. We don't need to go deep into this issue as it has been resolved by the Supreme Court in the recent case of Mst. Islam Bibi.[1] The Court has held that: "legal heirs of civil servant can validly file a writ petition before the High Court for pensionary benefits of his/her predecessor in interest, who was a civil servant." Reliance may also be placed on the case of Mst. Rashid Khatoon, a 2016 case.[2] Hence, the objection regarding maintainability of the instant writ petition is found as bereft of any substance. The same is thus overruled.
8. The core question for determination is that whether under the applicable law--Rules 2.2 and 2.3 of the Pension Rules read with article 371-A of the Civil Service Regulation (CSR), the service rendered on contract basis/fixed pay could be counted towards regular service after completion of the service necessary for the purpose of pensionary benefits. Our Supreme Court considered this issue in the year 1997 in the case of Mir Ahmad Khan[3], and ruled that the more than 10 years temporary service entitled the appellants in that case to pensionary benefits under article 371-A (i) of the CSR. In 2016, a five-member bench of the Supreme Court reversed the ruling in Chairman Pakistan Railway Government of Pakistan Islamabad and others.[4] It seems appropriate to reproduce the relevant passage from the judgment as under:
7. It is not disputed that the respondent rendered continuous temporary service and that his length of service was continuous and for more than five years. However, the question that needs to be answered is whether he was working in a "temporary establishment" or not. "Temporary establishment" has not been defined in the CSR, the Fundamental and Supplementary Rules issued by the Government of Pakistan, the ESTA Code or the Compendium of Pension Rules and Orders. In this context Article 369 of the CSR mentions temporary establishment but only explains what it is not and thus is not very helpful. Therefore, as mentioned earlier in the opinion, as per the settled rules of interpretation, the dictionary meaning of the words has to be resorted to. The Concise Oxford Dictionary (6th Ed.) has defined "temporary" as lasting, meant to last, only fora time", and "establishment" as an "organized body of mean maintained for a purpose." Chambers 21st Century Dictionary defines 'temporary" as "lasting, acting or used, etc for a limited period of time only", and "establishment" as "a public or government institution." Oxford Advanced Learner's Dictionary of Current English (7th Ed.) defines "temporary" as "lasting or intended to last or be used only for a short time; not permanent" and "establishment" as "an organisation, a large institution..." In light of the above dictionary meanings, "temporary establishment" can be said to mean an organisation or institution which is not permanent, rather effective for a certain period only: Admittedly the respondent was serving in Pakistan Locomotive Factory Risalpur, Pakistan Railways, which does not in any way fall within the meaning and purview of "temporary establishment." Thus, the respondent could not rely upon Article 371-A of the CSR. Besides, if hypothetically speaking Pakistan Locomotive Factory Risalpur was a temporary establishment, even then the respondent would not be able to take the benefit of Article 371 A (supra) as he otherwise does not qualify for pensionary benefits having wit been subsequently taken into permanent employment, which is sine qua non for the grant thereof.
8. Adverting to the law laid down in the case of Mir Ahmad Khan (supra) wherein it was held: "Admittedly the appellant put in more than ten years' temporary service before his services were terminated, he was, therefore, entitled to pensionary benefits under Regulation 371 -A(i) of Civil Service Regulations."
In light of the discussion in paragraph No.6, the judgment delivered in Mir Ahmad Khan's case (supra) is declared to be per incuriam."
9. The principle expounded is that a civil servant must have completed 10 years of regular service first. In other words, temporary service couldn't be counted for the purpose of pensionary benefits.
However, once the 10 years regular service completion is established, the temporary service, then, could be added up towards pension.
10. It is worth mentioning here that some Division Benches of this court expressed their opinions that contract services were countable towards pensionary benefits. In order to resolve the controversy, a larger Bench was constituted which, in the writ petition of Amir Zeb declared that the completion of the prescribe length of service would, for the purpose of pension, be countable from the first date of appointment and not from the date of regularization of the service.[5] In 2022, the issue also came up before the apex Court in the case of Ministry of Finance through Secretary and others[6], in which it has been held:In case, an employee had served a government department for the duration of the period qualifying him to receive pension, the period spent as a contractual employee may be added to his regular qualifying service only and only for the purpose of calculating his pension and for no other purpose. The provisions of Article 371-A of Civil Service Regulations (C.S.R.) started with a non obstante clause which meant that the said Article did not relate to the question entitlement or eligibility to receive pension. It was clearly and obviously restricted to counting the period of a minimum of five years which had been rendered by a temporary contractual employee to be taken into account with the object of calculating the quantum of his pension and not more. The non-obstante clause in Article 371-A of C.S.R. did not allow those who did not fulfill the requisite conditions for qualifying for pension to bypass such .conditions and add up regular and contractual periods of employment for the purpose of meeting the eligibility criterion of ten years of service. Such an interpretation would create absurd situations and would render other provisions and Articles of C.S.R. redundant, unnecessary and surplus.
Therefore, Article 371 of C.S.R. did not allow Government Servants rendering temporary service in a temporary establishment for more than 5 years to be entitled for grant of pension rather such period could be counted towards calculation of pension only if otherwise entitled to pension by meeting the criteria of qualifying service."
11. Most recently, vide its opinion dated 14/02/2023 recorded in the case of Inayat Khan[7], this court has observed: decided on 14/02/2023 has held that: Being based upon the interpretation of Article 371 A of C.S.R made by the apex Court; it is concluded that the service rendered on contract followed by regularization could only be counted for pensionary benefits provided the civil servant has completed qualifying ten years' service independently. Thus, the contention of learned counsel for petitioner for addition of service of the petitioner rendered on contractual side in the service rendered by him after his regularization for pensionary benefits is misconceived.
12. Coming back to the case in hand, it is fully established late Ms. Shahzia Begum rendered her service on contract basis from the year 2000 (initial appointment) till the 2014 (reappointment against a regular position). In view of the legal principle discussed above, she couldn't render the qualifying 10 years' service as a regular civil servant. Hence, her almost 14 years' service on contract basis couldn't be counted for the purpose of her pension. In other words, had she been able to render regular service for the prescribed period of 10 years, her contract service would have been countable for the purpose of pension. During arguments, Mr. Tarqi Kakar, counsel for the petitioner informed that Ms. Shahzia Begum was murdered in the year 2018. In this view of the matter, she render less than 05 years of service. Unfortunately, she is not entitled to gratuity even which requires 05 years of service. For the foregone reasons, we find no merit in the instant petitioner, which is thus dismissed.
1. Mst. Islam Bibi v. Government of Pakistan through Secretary State and Frontier Regions Division, Islamabad and 3 others" [2022 PLC (CS)] 1196
2. Mst. Rashida Khatoon and 2 others v. District Education officer (Male) and 3 others 2016 PLC(CS)] 308
3. Mir Ahmed Khan v. Secretary to Government and others (1997 SCMR 1477.
4. Chairman Pakistan Railway Government of Pakistan Islamabad and others Vs. Shah Jehan Shah (PLD 2016 SC 534).
5. Amir Zeb v. The District Accounts Officer, Nowshera and 05 others (Writ Petition) 339-P/2016, decided on 22/06/2017).
6. Ministry of Finance through Secretary and others Vs. Syed Afroz Akhtar Rizvi and others (2021 SCMR 1546).
7. lnayat Khan vs. Government of Khyber Pakhtunkhwa through Secretary Frontier Education and others (W.P No.833-M/2018).