MUHAMMAD NAEEM ANWAR, J.-Muhammad Saeed, the widower/ husband of late Mst. Saeed Bibi, by invoking the writ jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, has filed the instant petition with the prayer that the respondents may be directed to grant and provide all back benefits of late Mst. Saeeda Bibi in the shape of family pension etc. on the ground that his late wife Mst. Saeeda Bibi was incipiently appointed as LHW in Health Department on 06.10.2010 on contract basis/fixed pay, however, her services were later on regularized vide office order dated 20.09.2014 but w.e.f. 1St July, 2012 and then she died during service on 20.09.2020.
2. Though Mr. Momin Khan, Advocate who is representing the petitioner has submitted an application for adjournment, however, the petitioner present in person before the Court stated at the bar that he has not only submitted written arguments but will also assist the Court in accordance with the directions of this Court incorporated in order sheet dated 27.09.2022. He submitted that his deceased wife Mst. Saeeda Bibi was on the role of Health department in permanent establishment under the Government of Khyber Pakhtunkhwa and continuously served w.e.f. 06.10.2010 till 30.06.2012 (01-year 08-months and 21-days) and after her regularization till her death for 08-years 02-months and 14-days, hence, the total length of service of the deceased employee from her initial appointment till her death was 09-years 11-months and 14-days. He added that in accordance with the provisions of rules 2.2 & 2.3 of the West Pakistan Civil Service Pension Rules, 1963, he is entitled for pensionary benefits of deceased Mst. Saeeda Bibi, being her husband/widower. He further added that under Family Pension Rules, article 358, 361, 361-A and 423
(i) of Civil Service Regulation (CSR) in juxtaposition with judgment titled "Sher Afzal Khan Vs. Government of Khyber Pakhtunkhwa through Secretary Elementary & Secondary Education and others" (PLC 2019 CS 1065), W.P No.269-M/2019, "Secretary Ministry of Finance, Islamabad and others Vs. Tayya ba Halim Subhani and others" (2022 SCMR 77), "WAPDA through Chairman and another Vs. Mst. Parizada" (2018 SCMR 1542), "Amir Zeb widower of Mst. Asia vs. The District Account Officer Nowshera and 5 others" (Writ Petition, No. 3394-P of 2016) decided on 22.06.2017 and LHW Regularization Act, 2014 and Rules 2015, the status of the deceased employee was of a regular/confirmed employee. Lastly, he submitted that for the purpose of pensionary benefits, the period for which Mst. Saeeda Bibi served on contractual side/ fixed pay shall be counted towards her regular services for completing the eligibility criteria of 10 years qualifying service as held by this Court in numerous cases. ,
3. On the other hand, the learned A.A.G representing the official respondents submitted that since the deceased has rendered 08-years 02-months and 19-days service after her regularization and having not crossed the eligibility criteria of qualifying service for pension under the pension rules, thus, was not entitled for pensionary benefits. He prayed for dismissal of the instant petition, being not maintainable.
4. Arguments heard and record perused.
5. During the course of arguments, on 27.09.2022, this Court has framed certain points/ issues and directed both the parties to assist this Court in consonance with the law as reflected in the said order sheet. The questions and law, on which, the assistance of the parties was required in the matter in hand, are reproduced as under: 1) Whether without completion of 10 years qualifying services the service on fixed pay or contract followed by regularization could be counted for pensionary benefits?
2) Whether the provisions of pension rules or Article 371-A of Civil Service Regulations (C.S.R.) would be beneficial only if the employee was otherwise entitled for pensionary benefits on completion of qualifying service?
3) Whether the word "count" could be interpreted to add the length of qualifying service to hold entitled a civil or Government servant for pensionary benefit when he otherwise has not completed qualifying service?
Learned counsel for petitioner and learned Advocate General are directed to assist this Court in the light of the principle enunciated by the Hon'ble Supreme Court as well as by this Court in the cases of:
(i) Muhammad Nawaz Special Secretary Cabinet Division through his legal heirs vs. Ministry of Finance Government of Pakistan through its Secretary Islamabad (1991 SCMR 1192);
(ii) Mst. Rashida Khatoon and 2 others Vs. District Education officer (Male) and 3 others (2016 PLC(CS) 308),
(iii) Mudassar Termizi and others vs. Peshawar High Court through Registrar, Peshawar and others (2021 PLC(CS) 441);
(iv) Secretary, Ministry of Finance, Islamabad and others vs Tayya ba Ham Subhani and others (2022 SCMR 77) & 2022 PLC (C.S.) 514;
(v) Ministry of Finance through Secretary and others Vs Syed Afroz Akhtar Rizvi and others 12022 PLC (CS) 22, Peshawar];
(vi) Mst. Islam- Bibi Vs. Government of Pakistan through Secretary State and Frontier Regions Division, Islamabad and 3 others [2022 PLC (CS) 1196 of the Larger Bench of this Court]; and
(vii) Amir Zeb widower of Mst. Asia vs. The District Account Officer Nowshera and 5 others (Writ Petition No. 3394-P of 2016) dated 22.06.2017.
Office is directed to issue notice to the petitioner, Mr. Momin Khan, Advocate & learned AAG for 20th of December 2022."
6. Insofar as the question of maintainability of the instant petition filed by the widower/husband of namely Mst. Saeeda Bibi, who was a regular civil servant is concerned, 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), it was held by the apex Court 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."
Thus, the petitioner, being the husband/legal heir of deceased civil servant could not seek his remedy from the Tribunal constituted under the provisions of Khyber Pakhtunkhwa Services Tribunal Act, 1974 and as such, the petition in hand was rightly filed before this Court. In the case of "Mst. Islam Bibi Vs. Government of Pakistan through Secretary State and Frontier Regions Division, Islamabad and 3 others" [2022 PLC (CS) 11961, this 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.
Rashida Khatoon and 2 others Vs. District Education officer (Male) and 3 others [2016 PLC(CS)
308]. Hence, the objection of the learned A.A.G regarding maintainability of the instant writ petition before this Court being filed by husband of late Mst. Saeeda Bibi, the civil servant, is misconceived and accordingly, it is held that the instant petition was competently filed by the petitioner before this Court for the relief claimed therein.
7. The pivotal question for determination in the instant petition is as to whether in accordance with rules 2.2 & 2.3 of the Pension Rules in juxtaposition article 371-A of CSR, the services rendered on contractual side/ fixed pay by the late civil servant could be calculated towards her regular service for completing qualifying service for the purpose of pensionary benefit. In order to determine the above formulated question, at first instance, the matter was heard 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 afore-mentioned principle laid down in Mir Ahmad Khan' case (supra) 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 Jehan Shah" (PLD 2016 SC 534), where the judgment in the case of Mir Ahmad Khan (supra) 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, 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."
Thus, the Hon'ble Supreme Court in explicit terms has held that without completion of 10 years qualifying service, the services rendered by an employee on contract/fixed pay could not be counted for pensionary benefits. It was also ruled that a civil servant has to complete 10-year regular qualifying service for pension and thereafter, his services whatever it may be, on contract or daily wages or fixed pay, shall be counted for determination of pensionary benefits but without completion of 10-years qualifying service, the service of an employee rendered on contract or fixed pay could not be added to the service after regularization to complete qualifying 10-year regular service. Since, there were judgments of Division Bench, of this Court, whereby the services rendered on contract basis or fixed pay were held to be counted for pensionary benefits in order to complete the qualifying service i.e., eligibility criteria for pensionary benefits and in the series of those cases, a larger Bench was constituted by this Court and in the case of WP No.3394-P/2016 titled "Amir Zeb Vs. The District Accounts Officer Nowhsera and 05 others" decided on 22.06.2017, while interpreting proviso 2 & 3 of section 19 of the Khyber Pakhtunkhwa Civil Servants Act, 1973 as added by Khyber Pakhtunkhwa Civil Servants (Amendment) Act, 2013, it was held by this Court 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."
However, in the case of "Ministry of Finance through Secretary and others Vs. Syed Afroz Akhtar Rizvi and others" (2021 SCMR 1546), it has been held by 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 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."
More-so, this Court in the case of "Inayat Khan Vs. Government of Khyber Pakhtunkhwa through Secretary Frontier Education and others" (W.P No.833-M/2018) 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."
8. Admittedly, the deceased wife of the petitioner has not fulfilled the eligibility criteria i.e., 10 years qualifying service for pensionary benefits independently till her death after her regularization, therefore, for fulfilling the threshold of 10-years qualifying service for pensionary benefits, the services rendered by her on contractual side/ fixed pay, could not be added to her regular service, as such, contention of the petitioner that there are judgments of this Court, whereby the benefits were extended to those who have not completed 10-years independent service on regular side by addition of services rendered on contract, after the decision of the apex Court in supra case reported as 2021 SCMR 1546, is of any help to the petitioner.
9. Thus, for .the reasons discussed above and in view of the principle laid down by the apex Court, it is held that: i. Mst. Saeeda Bibi, the deceased wife of petitioner has not completed 10-years qualifying service for pensionary benefits from the date of her regularization till her death; ii. Services rendered by the deceased employee on contract/ fixed pay without independently qualifying the eligibility criteria of 10-year service could not be added to her regular service for pensionary benefits; and iii. Article 371-A of CSR and rules 2.2 & 2.3 of the Pension Rules shall be interpreted and followed by the Courts in terms of dicta laid down by 2021 SCMR 1546 in juxta position with article 189 of the Constitution of Islamic Republic of Pakistan 1973.
10. When so, the instant petition, being devoid of force, stand dismissed.