' SAIDUZZAMAN SIDDIQUI, J.---The appellant was appointed as Junior Surveyor in City Survey Office, Karachi, on 22-12-1956. The appointment order reads as follows:- ' OFFICE OF THE COLLECTOR AND DISTRICT MAGISTRATE, KARACHI ' No, LST/380 of '56, dated 22nd December, 1956.
OFFICE ORDER ' Mr. Muhammad Ahmed son of Ahmed Hussain is offered post of Junior Surveyor in the New City Survey Settlement of the City Deputy Collector, Karachi on the following terms and conditions:--
(a) He will draw initial pay of Rs,125 in the scale of 125-10-225 plus allowance admissible to him under the rules.
(b) The post is temporary and can be terminated at any time without assigning any reason. He will have to sign the attached Form 'A' .
(c) He will be required to produce satisfactory evidence of his age and academic qualification at the time of his appointment.
(d) He will be required to produce at the time of his appointment a certificate of character signed by a Gazetted Officer (Class I) not related to him. If the post is acceptable to Muhammad Ahmed on the terms and conditions specified above, he should report for duty to the City Deputy Collector, Karachi within a week from the date of receipt of this order failing which the offer will be treated as cancelled.
(Sd.)- 22/12 for Collector & Director of Settlement Survey & Land Records, Karachi.
Copy to:--
1. A.G.P.R., Karachi.
2. Treasury Officer, Karachi.
3. Establishment Officer, Collector's Office, Karachi.
4. City Deputy Collector, Karachi.
5. Mr. Muhammed Ahmed.
6. Office Order File."
2. The appellant was removed from service with effect from 3-4-1971. The appellant challenged his removal from service in a civil suit filed before the Additional District Judge, Karachi, being Suit No,97 of 1972. The suit filed by the appellant abated as a result of establishment of Service Tribunal.
The appellant, accordingly, filed service appeal before Sindh Service Tribunal being Appeal No,37 of 1974. The appeal was, however, dismissed by the Sindh Service Tribunal on the ground that on the date (6-5-1974) the provisions of Article 212(2) of the Constitution were extended to Sindh Service Tribunal the suit filed by the appellant was not pending. The appellant preferred an appeal before this Court against the order of Service Tribunal which was allowed and the case was remanded to Sindh Service Tribunal, for fresh decision according to law. The learned Sindh Service Tribunal again dismissed the appeal on 13-6-1981.
3. The appellant once again challenged the decision of Sindh Service Tribunal, dated 13-6-1981, before this Court through Civil Petition for Leave to Appeal No,180-K of 1981. The appellant, however, withdrew the petition for leave to appeal on 3-2-1982 which was dismissed as follows:-- "Mr. Faizanul Haq learned Advocate-on-Record, for petitioner, stated that the petitioner has been taken into service by the Respondent No,1 .
' Therefore, petitioner wants to withdraw his petition. The petition is dismissed as withdrawn."
' The appointment letter issued to appellant by the office of Deputy Commissioner and District Magistrate Karachi West on 21st September, 1981 reads as follows:-- "OFFICE OF THE DEPUTY COMMISSIONER AND D.M. KARACHI/WEST ' NO.DCW/OS.KBR/81-Estt .643 Karachi the 21st September, 1981 OFFICE ORDER ' Mr. Muhammad Ahmed son of late Mr. Ahmed Hussain is appointed as a Surveyor in K.B.R. Scheme on a purely temporary basis on a consolidated salary of Rs,700 per month on the following terms and conditions:-- ' His appointment is purely temporary and his service is liable to termination at a fortnight's notice without assigning any reason. In case he wishes to resign at any time, a fortnight's pay may be forfeited. He will also have to discharge his duties wherever deputed.
' He will be governed by such rules and orders relating to leave etc., as admissible to other Government servants.
' He will have to produce a medical certificate of fitness.
' He will also produce certificate in connection with his qualification, domicile etc., alongwith two character certificates.
' He will have to join at his own expenses.
' If he accepts the offer, he will report for duty within seven days of the receipt of this letter alongwith the above documents.
(Sd.)
(Mirza Kareem Baig), Deputy Commissioner & D.M., Karachi West.
Copy forwarded:--
1. The Commissioner, Karachi.
2. Mr. Muhammad Ahmed.
3. K.B.R.Cell.
4. Office Order File."
' The appellant was later allowed to draw pay in the revised pay scale No, P.7 vide Office Order dated 30-7-1985 which was to the following effect:-- "OFFICE OF THE DEPUTY COMMISSIONER, KARACHI WEST NO.DCW/KBR/212/85 Karachi, dated 30th July, 1985 OFFICE ORDER ' In pursuance of Government of Sindh, Finance Department Notification No,FD (SR-IV-) 1-8/82, dated 27-8-1983 Mr. Muhammad Ahmad Surveyor is allowed to draw his pay of Rs,583 in the basic revised Pay Scale No,P.7 56023-1020. The order shall take effect from 1st February, 1985.
' He is allowed to draw allowances as admissible under the Rules.
(Sd.) for Deputy Commissioner, Karachi West."
T' he services of the appellant were finally terminated on 31-1-1993 as follows:-- "OFFICE OF THE DEPUTY COMMISSIONER & D.M. KARACHI CENTRAL No, DCC/LM/P.A./66/93 Karachi, dated 31-1-1993.
OFFICE ORDER ' The services of Mr. Muhammad Ahmed, Surveyor of K.B.R. Scheme on contract basis against a lump sum remuneration of Rs,2,224 (Rupees Two thousand two hundred twenty-four) only, are hereby terminated with immediate effect.
' Assistant Commissioner (Rev.) Karachi Central is hereby directed to depute an official to take the charge from Mr. Muhammad Ahmed, Surveyor temporarily.
(Sd.)
( RASHEED ALAM ), DEPUTY COMMISSIONER & D.M., KARACHI CENTRAL."
In pursuance of the above termination letter, the appellant relinquished the charge as under:-- "To The Deputy Commissioner & D.M., Karachi Central, Karachi.
Subject: Termination of Services.
Ref.: your Letter No: DCC/DM/PA/66/93, dated 3.1-1-1993. Respected Sir, ' In compliance to your abovementioned letter, I have relinquished my charge as per your letter from 1-2-1993, F/N.
Thanking you Sir, Yours obediently, 1-2-1993 Muhammad Ahmed.
Ex-Surveyor (K.B.R.).
' The appellant thereafter preferred an appeal before the Service Tribunal in 1997 with application for condonation of delay. The learned Tribunal, however, dismissed the appeal as time-barred.
Leave was granted in the case as follows:-- "We have heard petitioner Muhammad Ahmed, who has appeared in person, and Mr. Muneeb Ahmed Khan, learned Additional Advocate-General, Sindh, who has appeared pursuant to notice.
We have also perused the relevant record.
2. Petitioner was initially appointed as City Surveyor, Karachi, on 24-12-1956 by the Sindh Government. According to the petitioner, after about 14 years of service with the Department, his services were terminated on the basis of 'baseless charges and fake inquiry'. He filed a service appeal before the Sindh Service Tribunal which was dismissed on 13-6-1981, which judgment was challenged by the petitioner in this Court by filing Civil Petition No,180-K of 1981, but then he was taken back in service and, in the circumstances, petitioner withdrew the petition for leave. Then his services were again terminated by order dated 13-1-1993. Admittedly neither any inquiry was held or any show-cause notice was issued to ,.The petitioner before his services were terminated on 13- 1-1993. His appeal before the Sindh Service Tribunal has been dismissed by order dated 15-12-1997 which reads as follows:-- ' Mr. Abrar A. Bukhari, Advocate for the appellant has argued that the appellant was allowed to draw his pay in Scale No,7 vide order 30-7-1985. As such according to him he was a permanent employee of the department and his services could have not been terminated without show- cause notice. We have heard the arguments of the learned counsel and have also perused the record submitted by the appellant alongwith his memo. Of appeal, office order dated 31-1-1993 whereby the services of the appellant were terminated shows that the appellant was on contract basis against the lump sum remuneration of Rs,2,224. There is another office order, dated 21-9-1981 which shows that the appellant was appointed on a purely temporary basis on a consolidated salary of Rs,700 p.m. And his appointment was purely temporary. Again an office order, dated 30- 7-1985 which has been cited by the Advocate for the appellant wherein he was simply allowed to draw his pay of Rs,580 in the basic revision Pay Scale No,7. There is no such order to show that the appellant was ever absorbed in the service, even otherwise his services were terminated on 31-1- 1993, while he has filed this appeal on 5-9-1997 after the lapse of more than 4 and 1/2 years for which no justification is given. Mr. Bukhari has also filed an application under section 5 of Limitation Act. It is a settled law that delay of each and every day is to be explained. Here it is a delay of more than 4 and 1/2 years for which no explanation has been given. We are of the view that this appeal is hoplessly time-barred, apart from the merit, we dismiss this appeal hopelessly time-barred, it is dismissed in limine.'
3. On the question of limitation, Mr. Muneeb Ahmed Khan, learned Additional Advocate-General, does not oppose the application for condonation of delay filed by the petitioner. In our view, a case for grant of leave is made. The question of limitation will be considered at the time of the hearing of the main appeal.
4. Leave is granted to consider whether the petitioner, admittedly an employee of the Sindh Government, continued to remain a temporary employee despite being confirmed in his appointment and serving the department for nearly 25 years and whether such appointment despite being described as 'on contract basis' against lump sum remuneration could be terminated without show-cause notice and without assigning any reason."
' We have heard the appellant, who is appearing in person and Mr. Muneeb Ahmed Khan, learned Additional Advocate-General, Sindh for the departmental authority.
4. The termination letter dated 31-1-1993, issued to appellant discloses no reason for termination of the services of appellant. The learned Advocate-General, however, contended that the reason for terminating the service of appellant was, that he had reached the age of superannuation. The appellant also does not dispute the fact that on the date his services were terminated, he had attained the age of superannuation. The appellant, therefore, in any case, would have retired from service on 31-1-1993. The appellant, as such, cannot has any legitimate grievance against termination of his service.
5. The only question which remains to be decided in these circumstances is whether the appellant was entitled to any pensionary or other benefits of service if he would have retired from the service in these circumstances on attaining the superannuation age. Mr. Muneeb Ahmed Khan, the learned Additional Advocate-General contended that as the appellant was on contract service, he was not entitled to any pensionary or other benefit. The learned Additional Advocate-Genernal also contended that the appellant's appointment was also on purely temporary basis and in a department which was of temporary nature, therefore, for this reason also, the appellant was not entitled to any pensionary or other retirement benefit of service.
6. The contentions of Mr. Muneeb Ahmed Khan, the learned Additional Advocate-General have not impressed us at all. Mere fact that in the termination letter dated 30-1-1993 issued to the appellant by the departmental authority the appellant was described as a "contract employee", could not make him so if otherwise, the appellant was not appointed on contract basis. The appointment letter dated 21st September, 1981 does not show that the appellant was appointed on contract basis. No doubt in the appointment letter, it was mentioned that the appointment is purely temporary and his services were liable to be terminated on fortnight's notice but this fact is not sufficient to prove that the appointment of the appellant was on contract basis. On the contrary, the subsequent office order dated 30-7-1985 issued to the appellant informing him that he has been allowed to draw pay in the scale of 560-23-1020 (P.7), supports the contention of the appellant that he was a Fegular employee of the Government. Apart from it, this Court in the case of Ahmad Khan v. Secretary to Government (1997 SCM R 1477) held that even the employees of an organization, which is temporary in nature are entitled to pensionary benefits in accordance with Regulation No,371-A of the Civil Services Regulation, after they had put in 10 years of service in that department.
' These were the observations of this Court in that case:-- "In this view of the matter, the appellant and other employees of the Afghan Refugees Organization are Government servants and they are entitled to pensionary benefits of their cases are covered by Regulation No,371-A of the Civil Services Regulation which reads:-- "371-A. Notwithstanding anything contained in Articles 355(b), 361, 368 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) temporary and officiating service followed by confirmation which does not qualify for pension under the rules in this section shall also count for pension or gratuity subject to the exclusion of the broken periods of temporary or officiating service, if any.'
' Note.---The pension of Government servants who have already retired after the 1st January, 1949, shall be revised under this Article but the increased pension shall have effect from the 17th August, 1952, or from the date as determined under Article 930, whichever is later.
' 'Government orders see Serial Nos.2, 8 and 10, Chapter II and Serial Nos.1 and 10 of Chapter III in section VI."
' Learned counsel for the appellant also referred to parawise comments and summary of the case, filed by the Government, in the Appeal No,318 (P) of 1992, Roohullah Jan v. Federation of Pakistan, available on pages 28/29 of the file wherein it was conceded by the Government that the claim of the appellant in that case for pensionary benefits under Rule 371-A was justified.
' 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 view of the above legal position, we are of the view that whether the appellant is treated as permanent or temporary employee, he will be entitled to pensionary benefits as admissible under the above-referred circular of the Government. In the above stated circumstances, we are of the view that the learned Tribunal ought not to have dismissed the appeal of the appellant on the ground of limitation and should have proceeded to determine the case on merits. We accordingly, condone the delay in filing the appeal before the learned Tribunal in view of the peculiar circumstances of the case, set aside the order of learned Service Tribunal, directed the Government to allow pensionary and other benefits admissible to the appellant in terms of the above-referred circular. The case of the appellant is to be finalised expeditiously. There will, however, be no order as to costs.