MUHAMMAD NAEEM ANWAR, J. Khan Zeb, the petitioner has filed instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, with prayer that respondents be directed to release the pension of petitioner and to consider his son for appointment as Class-IV against 25% quota reserved for children of retired Class-IV employees, on the ground that he was appointed as peon/chowkidar by the competent authority in place of his father against retired son quota; that he remained in service w.e.f. 30.04.1980 till 30.06.2017; that after devolution of the department, on 05.01.2002, he was adjusted in the office of respondent No.5 (Tehsil Municipal Officer, Dargai), as Naib Qasid and remained there in service till 30.06.2017 when he was retired from service on attaining the age of superannuation i.e., 60 years. It was averred in the petition that since his retirement he is constantly requesting to respondents No.3 & 6 for release of his pension and for appointment of his son namely Bahar Ali against 25% quota reserved for children of retired Class- IV employees of the Provincial Government but no heed was paid to it, as such, he has got no other alternate, efficacious and adequate remedy, hence the instant petition.
2. On directions of this Court, respondents No.3 & 5 have furnished their parawise comments to this petition, however, relevant are the comments of respondent No.3, who in his comments, resisted issuance of the writ on the ground that the service of the petitioner was a part time peon and that he had been a contingent paid employee, as such, he was not entitled for pensionary benefits.
3. Learned counsel for the petitioner, while relying upon the case of "Mir Ahmad Khan Vs. Secretary to Government and others" (1997 SCMR 1477), contended that the petitioner served the department for more than 37 years and in consonance with the dicta laid down by the Hon'ble Supreme Court in the case (supra) the Government servants are entitled for pensionary benefits if their cases are covered by Article 371-A of the Civil Service Regulations (C.S.R), when government servants borne on temporary establishment and have rendered more than 05 years' continuous temporary service, which shall be counted for the purpose of pension or gratuity but excluding broken periods of temporary service, if any, and that temporary and officiating service followed by confirmation, which does not qualify for pension under the rules in this section shall also be counted for pension and gratuity subject to the exclusion of the broken periods the petitioner is entitled for pensionary benefits. In support of his submissions, he also placed reliance on Pension Rules 2.3.
4. As against that, Mr. Sabir Shah, Advocate submitted that the principle enunciated in the case of Mir Ahmad Khan (supra) has been declared by the apex Court as per incuriam in the case of "Chairman, Pakistan Railway, Government of Pakistan Islamabad and others Vs. Shah Jehan Shah" (MD 2016 Supreme Court 534), wherein the Hon'ble Supreme Court earlier granted leave for consideration as to whether the persons who have rendered more than 05 years' service in a temporary establishment are entitled to the grant of pensionary benefits within meaning of Article 371-A of C.S.R and re-visitation of the judgment of this Court reported as "Mir Ahmad Khan Vs. Secretary to Government and others" (1997 SCMR 1477) and later on it was observed by the apex Court that temporary service in temporary establishment would not entitle the government servant for grant of pensionary benefit. He also referred to judgment of this Court dated 15.12.2003 in PEP No.640/2002, whereby the matter regarding adjustment of the present petitioner was under consideration before this Court, with the plea that since 1980 the petitioner was appointed in BPS-01 by Chairman District Council Malakand and joined his duties as such, however, after promulgation of N.W.P. Local Government Ordinance, 2001, the management of the specified offices and departments of Provincial Government were decentralized, but he was not adjusted and ultimately his petition, after hearing both the parties, was dismissed by this Court. By referring the document and judgment of the apex Court, he requested for dismissal of the instant petition.
5. We have heard learned counsel for the parties, learned A.A.G for official respondents and perused the record.
6. It appears from the judgment of this Court dated 15.12.2003 rendered in W.P No. 640/2002, through which, the petitioner Khan Zeb had approached to this Court, seeking his adjustment in terms of directions to his parents department for his regularization, but this Court, after hearing the parties, had held that he being contingent staff and was never regularized, dismissed his petition.
For ready reference, the operative part of the said judgment is reproduced as under: "5. It is evident from the record that in the year 1983, the relevant deductions were made from the pay of the petitioner because he was overly paid under the misconception of the letter of appointment. These documents pertaining to the recovery from the petitioner duly bear his signatures and thumb impressions. All these show that way-back in 1983, the petitioner knew until he is an employee on the basis of fixed pay an acquiesced to the deductions from his monthly pay. In these situations, he was well in the knowledge of his status of being a contingent staff in the year 1983 but he never agitated in any forum. The learned counsel for the petitioner was confronted with this situation but he could not advance any reason for the silence of the petitioner for about a period of twenty years. Thus it would not lie in the mouth of the petitioner that he has no notice of his conversion or that of the first time he was apprised of his status of being a contingent staff when the respondents filed comments to the writ petition No.57 referred above."
Record also reflects that since 1982, the fate of employment of peon/chowkidar of Union Council requiring consideration where they were held not regular establishment but as part time employees and were held not entitled for most of the benefits including D.A and pensionary benefits etc. Even otherwise, this fact was admitted by the petitioner that he was not a regular employee, as such, the petitioner attempted to make out a case by relying upon the judgment of the apex Court and Article 371-A of C.S.R, which reads as under: "371-A. Notwithstanding anything contained in Articles 355 (b), 361, 368, 370 and 371 of these Regulations, temporary and officiating service, in the case of Government servants who retired on or after the 1st January, 1949, or who joined service thereafter, shall count for pension according to the following rule:-
(i) Government servants borne on temporary establishments who have rendered more than 5 years continuous temporary service shall count such service, for the purpose of pension or gratuity excluding broken periods of temporary service, if any, rendered previously, and
(ii) Continuous temporary and officiating service of less than five years immediately followed by confirmation shall also count for gratuity or pension, as the case may be".
7. In Mir Ahmad Khan's case (supra), the apex Court has 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."
In the case of Chairman, Pakistan, Railway, Government of Pakistan Islamabad and others'
(supra), a five-member Bench of apex Court, while considering the case of Mir Ahmad Khan (supra), has declared that the judgment delivered in case of Mir Ahmad Khan to be 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 organization, a large institution..." In light of the above dictionary meanings, "temporary establishment" can be said to mean an organization 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 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 Regulation"
In the light of discussion in paragraph No.6, the judgment delivered in Mir Ahmad Khan's case (supra) is declared to be per incuriam."
8. In accordance with the principle laid down by the apex Court in Chairman, Pakistan, Railway, Government of Pakistan Islamabad and others'case (supra), an employee who remained in service of temporary establishment or whose services were on contract basis and were not later on regularized or confirmed could not be benefited in terms of Article 371-A of C.S.R for pensionary benefit. Admittedly, the petitioner's service has never been regularized nor his writ petition was allowed he cannot be held entitled for any such benefit on the basis of the principle laid down in the case of Mir Ahmad Khan. Neither the petitioner could be held entitled for pensionary benefits nor his second prayer for appointing his son against 25% quota reserved for children of retired Class-IV civil servants could be entertained.
9. Turning to the last submission of the counsel for petitioner that under rule 2.3 of the West Pakistan Civil Service Pension Rules, 1963 the petitioner is entitled for pensionary benefits, for convenience rule 2.3 is reproduced as under: "2.3 Temporary and officiating service - Temporary and officiating service shall count for pension as indicated below:
(i) Government servants borne on temporary establishment who have rendered more than five years continuous temporary service shall count such service for the purpose of pension or gratuity; and
(ii) temporary and officiating service followed by confirmation shall also count for pension or gratuity."
The article 371-A Civil Service Regulations (C.S.R) and rule 2.3 of West Pakistan Civile Services Pension Rules, 1963 are analogous to each other, the former has been interpreted by the apex Court in the case of Chairman, Pakistan, Railway, Government of Pakistan Islamabad and others (supra) on the basis of principle laid down in the Constitution Petition No.127 of 2012, regarding pensionary benefits of the Judges of superior Courts, wherein it was held that "pension is not the bounty from the State/employer to the servant/employee, but it is fashioned on the premise and the resolution that the employee serves his employer in the days of his ability and capacity and during the former's debility, the latter compensates him for the services so rendered Therefore, the right to pension has to be earned and for the accomplishment thereof the condition of length of service is most relevant and purposive". And it was ruled that "Article 371-A of the CSR would not ipso facto or simpliciter allow government servants rendering temporary service in a temporary establishment for more than five years to be entitled to grant of pension, rather such period would only be counted towards such government servants' pension if otherwise entitled to pension". Therefore, being the same language of rule 2.3 of West Pakistan civil services pension rules, 1963 shall be construed within the parameters as held and interpreted by the Supreme Court and in such an eventuality, this contention of the petitioner in also misconceived.
10. Thus, for the reasons discussed above, the instant petition being without any substance stands dismissed.