Order
Sheet
IN THE HIGH COURT OF SINDH, BENCH
AT SUKKUR
C. P. No. D – 1406 of 2019
Before:
Mr. Justice Muhammad Junaid Ghaffar
Mr. Justice Zulfiqar Ali Sangi
Date of hearing: 21-09-2021
Date of decision: 21-09-2021
Mr.
Fayyazuddin Rajper, Advocate for the Petitioner.
Mr. Shahryar
Imdad Awan, Assistant Advocate General Sindh.
.-.-.-.-.-.-.-.-.-.-.
O
R D E R
Muhammad Junaid Ghaffar, J. – Through this Petition, the Petitioner has sought the following relief(s):
(a)
To
direct the Respondents to prepare the pensionary documents of the petitioner in
accordance with pensionary rules and direct them treat the contract period of
husband of petitioner as regular.
(b)
To
direct the Respondents after preparing family pension documents pay the pension
to the petitioner along with all errors from date of death of her husband
without any further delay.
(c)
Any
other relief, which this Honourable Court deems fit and proper in circumstances
of the case.
(d)
To award
the costs of the Petition.
2. Learned Counsel submits that the Petitioner being wife of deceased Umed Ali, who was working as Lab Assistant on contract basis from 03‑09‑2007 and thereafter on regular basis on 03-12-2011, is entitled for pension as the said period of employment during contract has to be included for pension purposes, and if that is so directed, the Petitioner would be entitled for family pension.
3. On the other hand, learned AAG Sindh has opposed the Petition on the ground that the Petitioner was appointed on 03-12-2011 and expired on 25-08-2016, whereas, tenure of his permanent employment is four (04) years, eight (08) months and twenty two (22) days, and hence, not qualified for family pension.
4. We have heard the leaned Counsel as well as leaned AAG Sindh and perused the record.
5. It is not in dispute that if the period of employment of deceased Umed Ali on contract basis is excluded, then he is not entitled for pension as he never completed ten (10) years’ service. On the other hand, if the period of employment during contract is added, then perhaps he may become eligible. However, the issue that whether this period of contract service is to be added after permanent appointment to calculate the length of service for the purposes of qualifying service already stands decided by the Hon’ble Supreme Court in the case reported as Chairman, Pakistan Railway, Government of Pakistan, Islamabad and others v. Shah Jehan Shah (PLD 2016 Supreme Court 534) by Five-Members Bench and the relevant finding is as under:
“6. …………… However, it is important to note
that Article 371-A presupposes that such a government servant, whether falling
under clause (i) or (ii), is otherwise entitled to pension (or gratuity, as the
case may be). In other words, Article 371-A cannot be used as a tool to bypass
the conditions for qualifying service of pensionary benefits, and such
government servant has to fulfill the minimum number of years for grant of
pension. This is due to the use of the word “count” as opposed to “qualify” or “eligible”,
as rightly argued by the learned counsel for the appellant. As per the settled
rules of interpretation, when a word has not been defined in the statute, the
ordinary dictionary meaning is to be looked at. Chambers 21st
Dictionary defines “count” as “to find the total amount of (items), by adding
up item by item; to include”. Oxford Advanced Learner's Dictionary of Current
English (7th Ed.) defines “count” as “to calculate the total number, of people,
things, etc. in a particular group; in include sb/sth when you calculate a
total; to consider sb/sth in a particular way; to be considered in a particular
way”. Thus in light of the above, service rendered for more than five years as
contemplated by Article 371‑A would only be added, included, or taken
into account for the purposes of pensionary benefits, and not make such
government servant qualify for pension per se. This interpretation is bolstered
by logic, reason and common sense. If we were to accept the reasoning of the
learned Service Tribunal in the impugned judgment and the arguments of the
learned counsel for the respondents, it would create a bizarre and anomalous
situation, where a government servant who has rendered temporary service in a
temporary establishment for, let us say, seven years, would be entitled to
pensionary benefits, and on the other hand, a government servant rendering
services as a regular employee for fifteen years would not (yet) have completed
the requisite number of years to qualify for grant of pension. It is absurd,
ludicrous and inconceivable that a government servant, who is in regular
employment, would become entitled to pension after serving the minimum years of
qualifying service as prescribed by the law, whereas while interpreting Article
371-A, a government servant who has served as a temporary employee could be
given preference over a regular employee, and after a minimum service of only
five years would automatically become entitled to pension. Holding so would be
against the object and spirit of the concept of pension which has been
discussed by this Court in Regarding pensionary benefits of the Judges of
Superior Courts from the date of their respective retirements, irrespective of
their length of service as Judges (PLD 2013 SC 829) as follows:-
“...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.” (Emphasis supplied)
Thus, we are not inclined to interpret Article
371-A in such a way so as to render the provisions stipulating minimum years
for grant of pensionary benefits superfluous and redundant. As far as the
provisions of Article 371-A are concerned, which is a non-obstante clause to
Articles 355(b), 361, 368, 370 and 371 stipulated therein, suffice it to say
that such article by itself does not provide for the entitlement for the
purposes of pension, rather, at the cost of repetition, it is restricted to the
counting of the period of a minimum of five years which has been rendered by
the temporary employee that once he is appointed on a permanent basis, such
period shall be taken into account for the object of calculating his
entitlement to pension with respect to the requisite minimum period under the law.
Therefore we are not persuaded to hold the words “Notwithstanding anything
contained in Articles 355(b), 361, 368, 370 and 371 of these Regulations...” in
Article 371-A to allow those who do not fulfill the requisite conditions for
qualifying for pension to bypass such conditions, so as to render the articles
of the CSR providing for such conditions unnecessary and surplus. Therefore, we
are of the candid view, 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.”
6. The aforesaid view has recently been followed by the Hon’ble Supreme Court in the case of M/o Finance through Secretary, etc. v. Syed Afroz Akhtar Rizvi & others (Civil Appeal No.1496 of 2019) dated 12‑07-2021, and following the aforesaid judgment, it has been held as under:
“7. In
case, an employee has 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
CSR start with a non obstante clause which means that the
said Article does not relate to the question entitlement
or eligibility to receive pension. It is clearly and
obviously restricted to counting
the period of a minimum
of five years which has 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
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. Such an interpretation would
create absurd situations and would render
other provisions and Articles of CSR redundant, unnecessary
and surplus. We are therefore
in no manner of
doubt that Article 371 of CSR does 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 can be counted
towards calculation of pension only if otherwise entitled
to pension by meeting the criteria of qualifying service.
8. It
is not disputed that the Respondent rendered
continuous service from 1992 to
2008 as Data Entry
Operator in NIEMS. It is also not disputed that he was
regularized in 2008 and retired in 2016
before meeting the criteria
of qualifying service. That being so, the
benefit of Article 371-A of CSR was not available to him
as he did not qualify for the pensionary benefits which
qualification is a necessary pre-requisite for grant of
pension.
9. It may also be
pointed out that the earlier view
taken by a three member Bench of this Court in the case of Mir Ahmad Khan v. Secretary to Government & others (1997 SCMR 1477) was declared
per incuriam in a five
member judgment of this Court rendered in Shah Jahan Shah's case ibid. As such, the
view consistently taken by
this Court in a situation where the services of a contractual employee are converted into regular employment is that although 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. The
Tribunal has clearly and obviously taken an incorrect and erroneous view of the law and has been unable to appreciate the essence and tenor of Shah Jahan Shah's case ibid which is an authoritative declaration of law on the subject by this Court. Reference of the Tribunal to selective portions of the aforesaid judgments are found to be out of context leading to incorrect and erroneous interpretation of the relevant principles of law. We
therefore find that the impugned judgment of the Tribunal dated 05.10.2018 is unsustainable. It is accordingly set aside. Consequently, the listed appeal is allowed and the Service Appeal bearing No.265(R) of
CS
2016 filed by Respondent No.1 (Syed Afroz
Akhtar Rizvi) before the Tribunal is dismissed.”
7. The crux of the dicta laid down by the Hon’ble Supreme Court is that the period spent as a contractual employee may be added to his regular qualifying service; but only for the purposes of calculating his pension and not otherwise i.e. he may be entitled for payment of an enhanced pension due to addition or aggregating the length of service; however, the said period cannot be added or aggregated for making him qualified for such pension, if he is otherwise not entitled. First by way of a qualified period of service he must be entitled for pension as a regular employee, and then his contractual service period can be added to the total length of service, so as to make him entitled for any enhanced pension. The period spent in contractual service cannot be added to make up any deficiency in qualifying service for the purposes of determination of eligibility to receive pension.
8. In view of the above, since the law is already settled by the Hon’ble Supreme Court, no case is made out and the Petition is hereby dismissed.
J U D G
E
J U D G
E
Abdul Basit