PLJ 2024 Tr.C. (Services) 89
[Federal Service Tribunal, Islamabad]
Present: Asim Akram and Muhammad Mushtaq Jadoon, Members
WALI MUHAMMAD--Appellant
versus
SECRETARY, MINISTRY OF FEDERAL EDUCATION & PROFESSIONAL TRAININGS ISLAMABAD
and 2 others--Respondents
Appeal No. 416(R)CS of 2020, heard on 10.5.2023.
Civil Service Regulations--
----Art. 361 & 371-A-- Service Tribunals Act, (LXX of 1973), S. 4--Contractual appointment--Regularization--Retirement from service after attaining age of superannuation--Denial of pensionary benefits--Condition for non counting of contractual service period for pension--Non-obstant clause--Maintainability-- As per O.M., 2013 last pay of non-Gazzetted contractual employee, on his regularization, was protected conditionally and one of conditions was that service rendered on contract bases shall not qualify for pension. This condition was maintained in O.M., 2014--Condition of not counting contractual service for purpose of minimum length of service for eligibility of pension was in conformity with Civil Service Regulations (CSR) 361)--Period spent in contractual employment could not be added to make up for any deficiency in qualifying service for purpose of eligibility to receive pension--Non obstante clause in Article 371-A of CSR did not allow those who did not fulfil requisite conditions for qualifying for pension to bypass such conditions and add up regular and contractual periods of employment for purpose of meeting eligibility criterion of ten years of service--Appeal dismissed. [Pp. 92 & 94] A, B & C
PLD 2016 SC 534 & 2021 SCMR 1546 ref.
Mr. Ghulam Rasool Bhatti, Advocate for Appellant.
Mr. Ali Haider, Assistant Attorney General for Respondents.
Syed Zahir Hussain Gillani, A.D Legal, Gul Nawaz, Assistant, as DRs.
Date of Hearing: 10.5.2023.
Judgment
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:
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 Bailway, 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:
Ø An employee who was employed on contractual basis and is subsequently regularized may be entitled to pensionary benefits provided;
Ø He is eligible for pension having served for the qualifying period (10 years) as a regular employee;
Ø 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;
Ø 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.
Ø 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 Rizvi 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 can not 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.
(Y.A.) Appeal dismissed
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