ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

C P No.D-1738 of 2005

______________________________________________________________________________

Order with signature of Judge

_______________________________________________________________________________

For katcha peshi

06.05.2009

Mr. Mansoor-ul-Hassan Solangi, Advocate

Mr. Syed Ashiq Ali, Deputy Attorney General

--------------

These two petitioners have filed the Petition mainly against the Board of Trustees, Karachi Port Trust (KPT), being legal heirs of their father, with the prayer that they may be granted pension in view of long service of their father for about 14 years on contract basis. Prior to filing of this Petition, both the petitioners have filed a complaint before Wafaqi Mohtasib, which was registered on 29^th June 2004 for the same relief. The agency has taken two grounds to resist the complaint, viz that the claim is time barred and secondly contract service is not pensionable service. In paragraph No. 8 of the Ombudsman order at page 33 of the record the name of four persons have been mentioned who were allowed pension but the agency distinguished their case on the ground that they were confirm / regular employees whereas petitioners’ father was not.

The Ombudsman repelled the contention of agency on the point of limitation but observed in paragraph 7 in the following words:

“As stated above, the case/claim of the deceased father of the complainants for regularization of his service in KPT and payment of pension/gratuity, etc, was properly lodged and it was under consideration of the Board of Directors as stated above but neither any decision was taken nor any reply was given to the deceased employee, although the case was strongly recommended on the basis of past precedents”.

The learned Ombudsman was mainly impressed on account of omission on the part of the agency to pass specific order therefore, we have asked the learned counsel to show us from the said order, any finding where under it is held that said person was confirmed employee of KPT. Despite reading the order, the learned counsel was at pains to point out such finding. Needless to say that the said father of the petitioners was a retired employee of Pakistan Navy that is why he was appointed in KPT on contract basis. It is law of the land that no person can be claimed to be regularized until and unless such order is passed by the competent authority. The learned counsel himself on fourth question admitted that father of the petitioner, through out remained in service on contract basis. To plead discrimination in the light of Article 25 of the Constitution his contention has no relevancy in the circumstances because those four persons mentioned in paragraph 8 of the order, are confirmed employees of the agency whereas the petitioner’s father was not.

However, at page 35 the Ombudsman order dated 30^th January 2005 recommended the payment of pensionary benefit to the father of the petitioner. The agency went in appeal under Article 32 of President Order of 1983 and vide order dated 12^th September 2005 impugned order was set aside and the appeal was allowed. The main consideration before the appellate authority was that the matter raised in the complaint relates to service in the agency and such matter cannot be investigated by the Wafaqi Mohtasib in terms of Article 9(2) of Wafaqi Mohtasib Order 1983.

Thereafter the present Petition was filed in the year 2005 on 29^th October 2005 and since then it is lingering on whereas the only short point involved is as to whether the contractual service is pensionable or not. We are of the view that contractual service howsoever long, it may be in the length of time is not pensionable as such this Petition has no substance which is dismissed in limine.

Judge

Samie ++