Pensionary Benefits of Persons Serving Five Years in Temporary Establishment

Pensionary Benefits of Persons Serving Five Years in Temporary Establishment Case Laws Civil Law Employment & Incentives Knowledge - Civil Law Larger Bench Litigation & Arbitration Pension Per Incuriam - Bad Law Public & Admin Law Solutions - Civil Law Supreme Court Mr. Justice Mian Saqib Nisar in his judgment has decided the issue regarding pensionary benefits of persons serving five years in temporary establishment in Civil Appeals No. 1072 of 2005 etc.

1. These appeals, by leave of the Court, involve a similar question of law, hence are being disposed of together. The key question involved herein is whether persons who have rendered more than five years’ service in a temporary establishment are entitled to the grant of pensionary benefits within the meaning of Article 371-A of the Civil Service Regulations (CSR), and a re-visitation of the judgment of this Court reported as (1997 SCMR 1477) Mir Ahmad Khan v. Secretary to Government and others.

2. Civil Appeal No.1072/2005: This appeal entails the facts in that the respondent was appointed as an Assistant Executive Engineer (BPS-17) in Pakistan Locomotive Factory Risalpur, Pakistan Railways on 11.7.1989 on an ad hoc basis whereafter his employment was converted into a contract employment for two years with effect from 1.7.2000. Subsequently, due to the respondent’s failure to qualify for regularization before the Federal Public Service Commission, his services were terminated on 4.9.2002. He filed a departmental appeal on 8.10.2002 for the grant of pensionary benefits which (departmental appeal) was dismissed vide order dated 9.1.2003. Subsequently, the respondent approached the learned Federal Service Tribunal (Tribunal) challenging not the termination of his services or the conversion of services from ad hoc to contractual, rather only non-payment of pensionary benefits. The learned Tribunal while relying upon the case of Mir Ahmad Khan (supra) accepted the respondent’s service appeal on 29.12.2003 through the impugned judgment holding as follows:

“7. In view of the clear provision available in Civil Service Regulations as CSR 371-A(i) and in the light of the judgment of Honourable Supreme Court, reproduced below, there is no ambiguity that the Appellants who have put in more than 10 years of uninterrupted service were entitled to pension as per rules………

9. In view of the rulings of Honourable Supreme Court, we accept the appeals, set aside the impugned orders and direct the respondents to give pension to the Appellants as admissible to them under CSR 371-A (i). They are also entitled to receive their other legal dues like General Provident (GP) Fund etc. However, Respondents would be at liberty to detect any valid/legal dues outstanding against them from amount payable to them.”

Aggrieved of the above order, the appellants approached this Court, and leave was granted on 15.9.2005 in the following terms:

“………Since interpretation of a number of provisions of Civil Service Regulations as to entitlement to pension of the government servants, which will have impact on a large number of cases, is involved leave is granted to consider whether temporary service rendered by the three respondents qualified for pension”?”

Subsequently, this Court on 21.2.2012 was of the view that a larger bench should hear the matter for the following reason(s):

“………The learned counsel for the appellant states that admittedly respondent is not a Civil Servant and he cannot claim pensionary benefits thus the judgment in the case of Mir Ahmed Khan (ibid) needs to be revisited in that if such wide interpretation is given to Regulations 371-A all contractual and temporary employees working in the Government Department would become entitled to pensionary benefits on termination of their employment, without being regularly employed. Since Mir Ahmed Khan’s case was decided by three members’ Bench, the matter be placed for consideration of the Hon’ble Chief Justice for placing the case before a larger Bench.”

3. The basic argument of the learned counsel for the appellants was that Article 371-A was an enabling, as opposed to charging provision, and that the use of the word “count” in Article 371-A of the CSR, as opposed to “eligible” or “qualify”, does not mean that government servants who have rendered more than five years’ continuous temporary service in a temporary establishment are entitled to the grant of pension, rather that such period of service would be only be counted/added for the purposes of calculating pension, which the government servant has to nevertheless qualify for by fulfilling the three conditions of qualification for pension as provided in Article 361 of the CSR. In support of his arguments, he made reference to various Articles of the CSR and Fundamental Rules (FR). Learned counsel attempted to buttress his submissions by drawing an analogy with the judgment reported as Federation of Pakistan and others v. Rais Khan (1993 SCMR 609), in which it was held that the period of ad hoc service followed by regular service in the same scale shall be counted towards length of service prescribed for promotion or move-over in the next higher scale, thus in the same manner, the period of temporary service of more than five years would be counted towards pension if it was followed by regular service.

4. On the other hand learned counsel for the respondent argued that the word “count” can be used interchangeably with “qualify” or “eligible”, and in fact “count” is more often than not the precise word used for the purposes of pensionary benefits. Further, the appellants’ interpretation of Article 371-A of the CSR that the period of temporary service of more than five years would be counted towards pension if it was followed by regular service would only be true if the said article specifically provided “temporary followed by permanent service”, but this is not the case. Further, the words “except as otherwise provided” in Article 368 of the CSR gives sanction to the grant of pensionary benefits to temporary employees. In support of his arguments, learned counsel placed reliance upon two office memorandums issued by the Ministry of Finance at Serial No.5 and 6 of Chapter V of Section VI of the Compendium of Pension Rules and Orders.

5. Heard. Before resolving the proposition at hand, we find it expedient to reproduce the relevant articles of the CSR which 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.

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