Asim Akram, Member The appellant joined the 'Prime Minister's Literacy Commission' as Assistant w.e.f. 25-01-1996 vide office order dated 24-01-1996 initially for a period of six months which was extended from time to time un-till his services were regularized on recommendation of Cabinet's Sub-Committee on Regularization of Contract/Daily Wage Employees w.e.f. 01-07-2013 vide Notification dated 05-04-2018. The appellant, upon attaining the age of superannuation, got retired from service on 01-06-2017.
2. The appellant was denied pension on the ground that he has only four years of regularized service to his credit and as per service rules minimum qualifying length of service for pensionary benefits is ten years. To calculate the length of appellant's service the respondents also refer to Office Memorandum (the O.M., 2013) dated 31-05-2013 by Finance Division (Regulations Wing) which describes the conditions for protection of pay of contractual employees on regularization or appointment on regular bases. To clear certain ambiguities in the O.M., 2013 another Office Memorandum dated 06-03-2014 (the O.M., 2014) was released. To reach the ends of justice both the memorandums are replicated as under: Government of Pakistan Finance Division (Regulations Wing) F. No. 7(9)R-I/2012- Islamabad, the 31th May, 2013 OFFICE MEMORANDUM Subject:- PROTECTION OF PAY OF CONTRACT EMPLOYEES ON REGULARIZATION APPOINTMENT ON REGULAR BASIS The undersigned is directed to say that the proposals for protection of pay last drawn by the contract employees on their regularization/appointment on regular basis are received in Finance division and considered/decided on case to case basis. The existing rules/orders on the subject do not provide for protection of pay of contract employees on their regularization. The Courts have held from time to time that the pay of contract employees on their regularization/appointment on regular basis should be protected. The matter has been examined in the light of Court's Judgments and it has been decided to issue general policy guidelines in this regard. Pay of a non-Gazetted contract employee on his regularization/appointment on regular basis will be protected subject to the following conditions:- i) That the contract appointment has been made on standard terms and conditions circulated by Establishment Division as amended for time to time. ii) That the contract employee has applied through proper channel and has been properly relieved by the appointing authority. This condition shall not apply in case of regularization on the same post. iii) That regularization/regular appointment has been made with the approval of competent authority. iv) That there is no break/interruption between contract service and regular service. v) That the service rendered on contract basis shall not qualify for pension/gratuity, vi) That in case of regular appointment in lower grade pay shall not be protected.
2. Ministries/Divisions/Departments are authorized to protect/fix pay in terms of above guidelines.
Only those cases may be referred to Finance Division where some clarification or advice of Finance Division is required.
(Muhammad Bashir Zahid)
Accounts Officer(R-I)
Tele: 9245843 All Ministries/Divisions/Departments
3. As per the O.M., 2013 the last pay of the non-Gazzetted contractual employee, on his regularization, was protected conditionally and one of the conditions was that the service rendered on contract bases shall not qualify for pension. This condition was maintained in the O.M., 2014. The condition of not counting the contractual service for the purpose of minimum length of service for eligibility of pension is in conformity with Civil Service Regulations (CSR) 361) which provides that the employment must be permanent. Article 361 read as under;
361. Except as otherwise provided in these Regulations, the service of an officer does not qualify for pension unless it conforms to the following three conditions:- First. The service must be under Government.
Second. The employment must be substantive and permanent.
Third. The service must be paid by Government.
(Emphases attached)
4. As per the dictums laid down by the Supreme Court in case titled Chairman, Pakistan Railway, Government of Pakistan v. Shah Jahan Shah (PLD 2016 SC 534) the following general principles apply to employees who have worked against contractual posts which were subsequently regularized for the purpose of grant and calculation of pension: An employee who was employed on contractual basis and is subsequently regularized may be entitled to pensionary benefits provided; He is eligible for pension having served for the qualifying period (10 years) as a regular employee; For the purpose of calculating pensionary benefits his service as a contractual employee can be factored in to provide him any financial benefit that may be due to him; The period spent in employment as a contractual employee and as a regular employee cannot be aggregated in order to determine his eligibility for entitlement to pension. Eligibility to receive pension is directly related to rendering qualifying service as a regular employee. Unless an employee has performed services in a regular appointment for the duration of the qualifying period (10 years), he is not entitled to receive pension.
5. In latest judgment in case titled Ministry of Finance through Secretary and others v. Syed Afroz Akhtar Rizui and others (2021 SCMR 1546) the Supreme Court has taken consistent view and has held the period spent in contractual employment subject to a minimum of five years can be included in calculating pensionary benefits but only and only in a situation where the employee is otherwise entitled/eligible to receive pension subject to having rendered qualifying service (10 years) in permanent employment. Unless he meets the criteria of having served for the duration of the qualifying period, the period spent in contractual employment cannot be added to make up for any deficiency in qualifying service for the purpose of eligibility to receive pension.
6. The provisions of Article 371-A of CSR relates to counting of temporary service for the purpose of pension and gratuity start with a non obstante clause which means that the said Article does not relate to the question regarding entitlement or eligibility to receive pension. The non obstante clause in Article 371-A of CSR does not allow those who do not fulfil 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.
7. Acknowledging the reasons above the titled appeal is not maintainable as the length of permanent/regularized service of the appellant is less than required minimum service of ten years and the contractual/temporary service cannot be counted to fill in the deficiency of minimum length of regular service; the appeal is regretted, accordingly.
8. There is no order as to cost. Parties be informed.