MUHAMMAD NAEEM ANWAR, J.-Mst. Yasmeen Bibi being the widow of Zahid Husasin has filed the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 challenging therein the letter bearing No.739/EC dated 17.01.2023 of respondent No.4 i.e., District Police Officer, Dir Lower, whereby her request for entitlement of pensionary benefits of her deceased husband namely Zahid Hussain who was enlisted as Special Police Officer on contract basis on 21.07.2009, however, subsequently his services as Constable were regularized on 01.03.2020 and as such, she seeks that the services rendered by her deceased husband Zahid Hussain, on contract, may be counted for pensionary benefits in terms of Civil Service Regulation (C.S.R), and rule No.2.3 of the West Pakistan Civil Service Pension Rules, 1963.
2. Learned counsel for petitioner, while referring to the judgment of this Court in W.P No.3394- P/2016 titled "Amin Zeb Vs. The District Accounts Officer Nowhsera and 05 others" dated 22.06.2017, contended that section 19 (4) proviso 1 & 2 of the Khyber Pakhtunkhwa Civil Servants (Amendment) Act, 2013, was relied upon by this Court in referred to above petition and it was held that the continuous temporary service of a civil servant shall be counted for the purpose of pension and gratuity by virtue of sub-rule 2 temporary and officiating service followed by confirmation. In support of his submissions, he also placed reliance on the case of "Chairman Pakistan Railway Government of Pakistan Islamabad and others Vs. Shah Jehan Shah" (PLD 2016 SC 534).
3. Arguments heard and record perused.
4. This Court in the case of "Mst. Islam Bibi Vs. Government of Pakistan through Secretary State and Frontier Regions Division, Islamabad and 3 others" 12022 PLC (CS) 11961 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 to this effect is also be placed on the case of "Mst. Rashida Khatoon and 2 others Vs.District Education officer (Male) and 3 others [2016 PLC(CS) 3081. The core issue in the instant petition is not regarding maintainability of the instant petition filed by the widow of deceased Zahid Hussain as this controversy has already been put to rest by this Court as well as by the apex Court in the case of "Muhammad Nawaz Special Secretary Cabinet Division through his legal heirs vs. Ministry of Finance Government of Pakistan through its Secretary Islamabad" (1991 SCMR 1192), wherein it was held that: "A right of appeal under the Service Tribunals Act of 1973 has been given to a civil servant aggrieved by any final order whether original or appellate made by a departmental authority in respect of any of the terms and conditions of his service. The appellants admittedly are the legal heirs of the deceased civil servant and there being no provision in the Service Tribunals Act of 1973 to provide any remedy to the successors-in-interest of a civil servant, of the learned Tribunal, in our view, was correct in holding that the appeal before it stood abated and the same is hereby maintained."
However, the question in the instant petition is that whether the service rendered by an employee on fixed pay or contract/temporary followed by regularization without any break could be counted for the purpose pensionary benefits, after his death during service? The Larger Bench of this Court in the case of "Amir Zeb Vs. The District Accounts Officer Nowhsera and 05 others" (W.P No.3394- P/2016) decided on 22.06.2017, while interpreting proviso 2 & 3 of section 19 of the Khyber Pakhtunkhwa Civil Servants Act, 1973 added vide Khyber Pakhtunkhwa Civil Servants (Amendment)
Act, 2013, has held that: "It is manifest that the person selected for appointment on contract basis shall be deemed as regular employee and subsequently were held entitled for pensionary benefits. The deceased employees have' completed the prescribed length of service as their service towards pension shall be counted from the first day of their appointment and not from the date of regularization of their service."
5. More-so, article 371-A. of C.S.R was discussed by the apex Court in the case of "Mir Ahmad Khan Vs. Secretary to Government and others" (1997 SCMR 1477), wherein it was held that: "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. It appears that this provision of the Civil Service Regulation was not cited before the Tribunal otherwise the observation to the contrary could not have been made in the impugned judgment. Resultantly, the appellant and similarly placed other employees of the Afghan Refugees Organization, being Government civil servants, are held entitled to pensionary benefits if 'their cases are covered by Regulation No. 371-A of Civil Service Regulations. We allow this appeal, set aside the impugned judgment of the Federal Service Tribunal with no order as to costs."
The aforesaid judgment was revisited by a five member Bench of the apex Court in the case of "Chairman Pakistan Railway Government of Pakistan Islamabad and others Vs. Shah khan Shah" (PLD 2016 SC 534), where the judgment in the case of Mir Ahmad Khan (su pra) has been declared as per incuriam by holding that: "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, I 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."
The law laid down by the apex Court in the case of PLD 2016 SC 534 (Supra) had made it crystal clear that for the benefits of article 371-A of C. S.R one has to complete 10 years regular qualifying service and thereafter, his services, whatever it may, on contract or daily wages, shall be counted for determination of pensionary benefits but not in isolation to the completion of qualifying service of 10 years. More-so, without completion of qualifying service, the services rendered on contract/daily wages could not be counted. This matter came up for consideration before the apex Court in the case of "Ministry of Finance through Secretary and others Vs. Syed Afroz Akhtar Rizvi and others" (2021 SCMR 1546), wherein it was held the apex Court that: "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 ,11 qualifying for pension to bypass such conditions and add up regular and contractual periods of employm ent 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."
This Court in the case of "Inayat Khan Vs. Government of Khyber Pakhtunkhwa through Secretary Frontier Education and others" (W.F. No.833-MJ2018) 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."
6. The predecessor in interest/husband of the petitioner though remained in service for a considerable period since 2009 till 2020 and he was regularized in the year 2020 but he was not eligible for pensionary benefits for not qualifying the legibility criteria i.e., 10 years qualifying service, therefore, keeping in view the law laid down by the apex Court in cases (su pra) which in terms of Article 189 of the Constitution of Islamic Republic of Pakistan, 1973 is not only binding on this Court but on all the Courts throughout the country, therefore, with utmost respect to the decision of the Larger Bench of this Court, the decision of the apex Court shall be. followed. Thus, the instant matter where the husband of petitioner has not completed qualifying service, was not eligible for pensionary benefits as such, the service rendered on contractual side since 2009 till 2020 could not be counted for providing the relief of pensionary benefits under article 371-A 2.3 of C.S.R or rules 203 of the West Pakistan Civil Services Pension Rules, 1963 to the petitioner.
7. Hence, the instant petition being stands dismissed in limine.