ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

C. Ps.  No.D-966 of   2022

(Aijaz Ali Abro Vs. Government of Sindh and other)

Date of

Hearing

 

ORDER WITH SIGNATURE OF JUDGE

 

BEFORE:

       Mr.Justice Muhammad Saleem Jessar.

Mr. Justice Nisar Ahmed Bhanbhro.

 

                                      1. For orders on office objection

  2. For hearing of main case

Petitioner:                       Through Mr. Safdar Ali Ghouri, Advocate.

Respondents:                  Through Mr. Liaquat Ali Shar, Addl. A.G

­­­­­­­­Date of hearing:        23.04.2025.

Date of Decision:     23 .04.2025

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ORDER

 

NISAR AHMED BHANBHRO, J;Case of the Petitioner is that he was appointed as Deputy District Attorney on contract basis on 14.05.2009. Contract period of Petitioner was extended from time to time without any break until 13.08.2015, when his services were regularized in terms of section 3 of the Sindh Regularization of Adhoc and Contract Employees Act 2013.  Respondent No 2 / Secretary Law and Criminal Prosecution Service issued notification dated 13.08.2015 and 08.07.2019 regularizing the services of all Deputy District Attorneys of Province of Sindh, working on contract basis in Solicitor’s Department. Petitioner performed his duties diligently and without complaint from any corner. He retired from services on attaining the age of superannuation on 06.01.2021. 

2.         On retirement, Petitioner applied for grant of fringe benefits which were declined by the Respondents on account of his service falling short of minimum qualifying length of 10 years. Petitioner was informed of such disentitlement by Respondent No 2 vide letter dated 06.10.2021. Petitioner filed this petition soliciting that Respondents be directed to include his service rendered on contract basis towards his regular service bringing qualifying length of service within the bracket of ten years.

3.       On notices Respondents No 2 to 4 (Secretary Law and Solicitor Law) filed joint reply, they denied the claim of Petitioner for grant of pensionary benefits as he fell short of minimum qualifying length of service of 10 years on regular service. They asserted that contract period of service of Petitioner was not countable towards pension as qualifying length of service was separate and period served on regular basis was only criteria for grant of pension benefits. They prayed for dismissal of Petition.

4.         Respondent No 3 in its reply asserted that contract period of service of petitioner will not be counted for pensionary benefits in terms of Rule 1.5 of the West Pakistan Civil Service Pension Rules 1963. He prayed for dismissal of Petition.

5.       MrSafdar Ali Ghouri Learned Counsel for Petitioner contended that Petitioner rendered services as Deputy District Attorney on contract basis from 14.05.2009 till 13.08.2015 without any break. His services were regularized on 13.08.2015 retrospectively from year 2013 when Sindh Regularization of Adhoc and Contract Employees Act 2013 came into force. He contended that Petitioner has served department for a period of more than 11 years, he was entitled for pensionary benefits. He relied upon the case of Chairman / Dean Shaikh Zayed Hospital Lahore Versus Amjad Mehmood Khan reported in 2025 SCMR 168. He prayed for grant of petition.

6.      Conversely Mr Liaquat Ali Shar Learned Additional Advocate General Sindh has strongly opposed this petition, on the grounds that petitioner was not entitled for pensionary benefits as he did not possess minimum 10 years’ qualifying length of service. Period of service rendered by petitioner on contract basis was not countable towards his regular service; therefore he was not entitled for relief claimed. He prayed for dismissal of petition.

7.       Heard Learned Counsel for the parties and perused material available on record.

8.      On examination of record, it reveals that Petitioner was appointed as Deputy District Attorney on contract basis on 14.05.2009. Services of Petitioner were regularized on 13.08.2015; he rendered services on contract for a period of 6 years and 3 months. Petitioner retired on attaining age of superannuation on 06.01.2021 after serving for a period of 5 years and 4 months on regular basis. Moot point involved in the instant petition is whether period of service rendered by Petitioner on contract basis would be counted for grant of pensionary benefits under the peculiar circumstances or not?

9.         Government has regulated grant of post-retirement benefits through subordinate legislation by framing West Pakistan Civil Service Pension Rules 1963 (Pension Rules). Rule 1.5 of Pension Rules envisages that these rules shall not apply to contingency, work charged and contract employees, the Rule reads as under:

1.5. These Rules shall not apply to---

(i). Government Servants paid from contingencies, or borne on work charged Establishment,

(ii). Government Servants engaged on contract which contains no stipulation for pension under these rules

(iii).     …………….

This rule excludes contract, contingency and work charged establishment employees from operation of Rules, disentitles them to claim pension irrespective of length of their service. Previously under Rule 2.12 of Pension Rules the qualifying length of service for pension was 25 years regular service and administrative department was allowed to condone a deficiency of 6 months to bring the length of service within the bracket of 25 years. Government of Sindh vides notification dated 18th February 1977 introduced liberalized pension rules to bring pension laws in conformity with federal government laws. Rule 4(a) of the Sindh Liberalized Pension Rules 1977 reduced the qualifying length of Service to 10 years; Rule 4(a) reads as under:

4. (a) In the case of person who retires after completing 10 years service or more, a pensioner shall, subject to sub – para (b) and (c) below, be allowed to draw full gross pension, i.e one-fourth of the pension need not compulsory be paid in gratuity.

(b) If a pensioner so wishes, he may, at any time before the expiry of one month from the date of his retirement, ask for gratuity up to 25 per cent of his gross pension together with the remaining net amount of pension; the gratuity shall be paid at the existing rates.

(c) The existing provision for commutation of a further 25 per cent of the gross pension shall continue to be in force; the commutation shall be at the existing rates. Commutation shall, however not be subject to medical certification if it is asked for within one year of the date of retirement. 

This provision of Liberalized Pension Rules makes it abundantly clear that a civil servant shall be entitled to pensionary benefits when he renders regular services for a period of 10 years. This minimum qualifying length of service may be relaxed in appropriate cases where employee served for a period of more than nine years, the authority may condone a remaining period up to six months to bring it to a complete service of 10 years qualifying for grant of pensionary benefits.

9.         Other enabling provision of law which deals with counting of temporary service towards pensionary benefits is Regulation 371 – A of Civil Service Regulations (CSR), which provides that in certain conditions the service rendered on contract or contingency basis would be countable for calculation of pension benefits, Regulation 371 - A of C.S.R 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."

It is not disputed that Petitioner rendered continuous service on contract basis for a period of more than five years. However, the question that needs to be answered is whether such service would be counted in the minimum qualifying length of service or it would be an additional benefit towards pensionary benefits. Regulation 371-A of CSR is a non-obstante clause to Regulations 355(b), 361, 368, 370 and 371 stipulated therein, this regulation by itself does not provide for entitlement to grant of pension but is restricted to the counting of period of a minimum of five years’ service rendered on temporary basis once his services are taken on permanent basis, such period shall be counted for the purpose of calculation only, as an additional service to the requisite minimum period prescribed under the law. Literal meaning of Regulation 371-A makes it crystal clear that benefits of this regulation would be available to a civil servant who fulfilled the minimum number of years for grant of pension benefits which is 10 years regular service. Meaning thereby that if civil servant has not rendered a regular service for duration of 10 years, the period spent in contractual or temporary employment could not be added to make up for any deficiency in qualifying service towards entitlement to receive pension. Regulation 371 – A is in conformity with Rule 2.3 of the Pension Rules, which reads 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 5 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.

10.       A Civil Servant can only lay claim for grant of pensionary benefits, when he or she fulfills three conditions of qualifying length of service for grant of pensionary benefits stipulated in Regulation 361 of CSR which reads 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.

The second condition to Regulation 361 is relevant to the matters involving computation of temporary service towards pension benefits, which is in consonance to Rule 2.1 of Pension Rules 1963, which reads as under:

2.1 Conditions of Qualification: The service of a Government Servant does not qualify for pension unless it conforms to the following three conditions:-

(i) The service must be under Government.

(ii) The service must not be non pensionable.

(iii) The service must be paid by Government from the provincial consolidated fund

These three conditions envisaged under Regulation 361 of CSR and Rule 2.1 are explained in Regulations 368 and 370 in the following manner,

368. Except otherwise provided in these Regulations services does not qualify unless the officer holds a substantive office on a permanent establishment.

370. An officer transferred from a temporary to a permanent appointment can count his service in the temporary office, it, though at first created experimentally or temporarily, it eventually becomes permanent.

            These provisions of CSR are corollary to Pension Rules 1963 and do not in any manner confer a direct right to a contract or temporary employee for grant of pension benefits unless employee has served as a permanent employee for a period of 10 years.

11.       The benefit of counting of temporary service towards pension is available two conditions only as prescribed in Rule 2.3 of Pension Rules and Regulation 361 of CSR, where the Government Servant has rendered continuous service of more than 5 years in a temporary establishment and the same is followed by confirmation or regularization. Though temporary establishment is not defined in both Pension Rules and CSR but its dictionary meaning would be an establishment or concern which is for a temporary purpose, such as a project etc. The Petitioner has served in Solicitor’s Department which is not a temporary establishment. Solicitor’s department is a permanent wing of law department, whose employees deal with civil cases before Courts of law on behalf of Government. No doubt Petitioner served for more than 5 years in Solicitor’s Department on contract and his contract service was followed by regular service but since the same was not in a temporary establishment, thus did not fall under the definition of temporary establishment, bringing the case of petitioner outside the ambit of Regulation 371 – A of CSR and Rule 2.3 of Pension Rules 1963.

12.       In the case of Chairman, Pakistan Railway, Government of Pakistan, Islamabad versus Shah Jehan Shah reported in PLD 2016 Supreme Court 534 Honorable Supreme Court has held as under:

“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 organisation, a large institution..." In light of the above dictionary meanings, "temporary establishment" can be said to mean an organisation 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.”

The grant of pension is not a bounty from the State/employer to the servant/ employee, but it is compensation to the services rendered by employee to his employer in the days of his ability and capacity. The right to pension has to be earned and for entitlement thereof, the condition of length of service is most relevant and purposive.

13.       Learned Counsel for the Petitioner has relied upon the judgment of Honorable Supreme Court in the case of Chairman / Dean Shaikh Zayed Hospital Lahore versus Amjad Mehmood Khan reported in 2025 S C M R 168, which does not in any manner support the case of Petitioner. Wherein Honorable Supreme Court of Pakistan has held as under:

“Thus, the law is clear that the contractual period, being temporary service, is recognized by Article 371-A of the CSR for inclusion in the calculation of pension provided that the contractual period is followed by regularization or confirmation without any gap or interruption, in accordance with clause (ii) of Article 371-A of the CSR. Therefore, Federal Service Tribunal has rightly allowed the appeal of the respondent.”

14.       Honorable Supreme Court in the case of Ministry of Finance through Secretary and others reported in 2021 S C M R 1546 has held as under:

“We have heard the learned Additional Attorney General Pakistan as well as learned ASC for Respondent No.1 and have examined the relevant provisions of Civil Service Regulations as interpreted by this Court from time to time. An analysis of the said provisions and judgments of this Court more specifically a relatively recent judgment of this Court in Shah Jahan Shah's case shows that the following general principles apply to employees who have worked against contractual posts which were subsequently converted into regular posts for the purpose of grant and calculation of pension:

1.  An employee who was employed on contractual basis and is subsequently regularized may be entitled to pensionary benefits provided;

i)  He is eligible for pension having served for the qualifying period (10 years) as a regular employee;

ii)  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;

iii)  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.

iv)  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.”

15.     We have carefully examined the case of Petitioner and find that he has served in the department for a period of about 6 years as permanent employee which falls well short of 10 years minimum qualifying service. In our view denial of pension benefits to the Petitioner has statutory backing; the Petitioner should have a qualifying length of service of 10 years on permanent basis which he lacked, therefore not entitled for any relief. The petitioner has failed to make out a case for indulgence by this Court under its writ jurisdiction under article 199 of the Constitution. Consequently this petition is dismissed, along with listed applications.

 

       JUDGE

 

JUDGE