IN THE SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

PRESENT: Mr. Justice Anwar Zaheer Jamali, CJ.

Mr. Justice Mian Saqib Nisar.
Mr. Justice Amir Hani Muslim.
Mr. Justice Iqbal Hameedur Rahman.
Mr. Justice Khilji Arif Hussain.

CIVIL APPEAL NO. 1072/2005.

(On appeal against the judgment dated
29.12.2003 passed by the Federal Service
Tribunal, Islamabad, in Appeal No.
6(P)/CS/2003)

Chairman, Pakistan Railway, Government of Pakistan,

Islamabad, etc. Appellant(s)

Versus
Shah Jehan Shah Respondent(s)

AND

CIVIL APPEAL NO. 686/2012.

(On appeal against the judgment dated
09.04.2012 passed by the KPK Service
Tribunal, Peshawar, in Appeal No.
1539/2009)

Mst. Robina Shaheen Appellant(s)

Versus

Director Education (E &SE), KPK, Peshawar, etc. Respondent(s)

For the Appellant(s)

(in C. A. 1072/2005): Hafiz S. A. Rehman, Sr. ASC

(in C. A. 686/2012): Mr. Riaz Sherpao, ASC

Mir Adam Khan, AOR

For the Respondent(s)

(in C. A. 1072/2005): Mr. Abdur Rehman Siddiqui, ASC

For Respondent No. 5

(in C. A. 686/2012): Mr. Ijaz Anwar, ASC
Mr. M. S. Khattak, AOR

On behalf of KPK: Mr. Waqar Ahmed Khan, Addl. AG

Date of Hearing: 14.03.2016 and 15.03.2016

…
Civil Appeals No.1072/2005 & 686/2012. -2 -

JUDGMENT

MIAN SAQIB NISAR, J:- 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 Mir Ahmad Khan v. Secretary to

Government and others (1997 SCMR 1477).

Civil Appeal No.1072/2005:

2. 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:-

Civil Appeals No.1072/2005 & 686/2012. -3 -

“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
Civil Appeals No.1072/2005 & 686/2012. -4 -

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
Civil Appeals No.1072/2005 & 686/2012. -5 -

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.
Civil Appeals No.1072/2005 & 686/2012. -6 -

These three conditions are fully explained in the

following Section.

368. Except otherwise provided in these

Regulations services does not qualify unless the officer
holds a substantive office on a permanent
establishment.

369. An establishment, the duties of which are not

continuous, but are limited to certain fixed periods in
each year, is not a temporary establishment. Service in
such an establishment, including the period during
which the establishment is not employed, qualifies; but
the concession of counting as service the period during
which the establishment is not employed does not apply
to an officer who was not on actual duty when the
establishment was discharged, after completion of its
work, or to an officer who was not on actual duty on
the first day on which the establishment was again re-
employed.

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.

371. An officer without a substantive appointment

officiating in an office which is vacant, or the
permanent incumbent of which does not draw any part
of the pay or count service, may, if he is confirmed
without interruption in this service, count his
officiating service.

371-A. Notwithstanding anything contained in

Articles 355(b), 361, 368, 370 and 371 of these
Regulations, temporary and officiating service, in
Civil Appeals No.1072/2005 & 686/2012. -7 -

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.”
(Emphasis supplied)

We begin with the basics. The CSR pertains to salary, leave, pension

and travelling allowance of those serving in the civil departments.

Despite the nomenclature used, i.e. Civil Service Regulations, the

application of the CSR is not restricted to “civil servants” as defined in

the Civil Servants Act, 1973 (Act), but also applies to “government

servants”. Interestingly, “government servants” has neither been

specifically defined in the Act nor in the CSR. However, we are not

treading those waters, rather leaving it for an appropriate case, as the

applicability of the CSR to the respondent is not disputed in the instant

matter. Although we would like to observe that whether or not a

particular article of the CSR applies only to a civil servant or extends to

the broader pool of government servants would ultimately depend on

the particular wording of the article under consideration. The CSR

Civil Appeals No.1072/2005 & 686/2012. -8 -

classifies pension into four basic types:- compensation pension, invalid

pension, superannuation pension and retiring pension. In order to be

able to claim pensionary benefits, one must fulfill the three conditions

of qualifying service for pension stipulated in Article 361 of the CSR:- (i)

the service must be under the Government; (ii) the employment must be

substantive and permanent; and (iii) the service must be paid by the

Government. An interpretation of the provisions pertaining to the

second condition is relevant to the matter at hand. Article 368 of the

CSR provides that the officer must hold a substantive office on a

permanent establishment. Articles 370 and 371 of the CSR in essence

allow for temporary and officiating services respectively, to be counted

towards an officer’s service if such service (temporary or officiating)

becomes permanent.

6. Article 371-A(i) allows for governments servants who have

rendered temporary service for more than five years at a temporary

establishmentto count such service for the purposes of their pension (or

gratuity), but the temporary service must be continuous, and excludes

broken periods of temporary service rendered previously. By way of

example, Article 371-A(i) would attract to a government servant who

rendered continuous temporary service at a temporary establishment

for six years and was subsequently confirmed at the end of his

temporary service, those six years would be counted towards his

service for the purposes of pensionary benefits. The said article would

also encompass the situation where a government servant rendered

continuous temporary service at a temporary establishment for six

years but was not confirmed at the end of his temporary service, rather

two years after his temporary service ended he was taken back and
Civil Appeals No.1072/2005 & 686/2012. -9 -

confirmed, then again those six years would be counted towards his

service for the purposes of pensionary benefits, excluding the broken

period of two years (the interregnum). On the other hand, Article 371-A(ii)

provides that government servants who have rendered temporary and

officiating service for less than five years immediately followed by

confirmation shall also count for gratuity or pension (as the case may be),

which (service) must also be continuous. By way of illustration, where a

government servant rendered continuous temporary or officiating

service for three years and was subsequently immediately confirmed,

those three years would be counted towards his service for the

purposes of pension. However, due to the inclusion of the word

“immediately” and the omission of the words “excluding broken periods

of temporary service” in clause (ii) of the Article 371-A, in a situation

where a government servant rendered continuous temporary or

officiating service for three years but was not confirmed at the end of

his temporary service, rather two years after his temporary service

ended he was taken back and subsequently confirmed, then those three

years would not be counted towards his pensionary benefits. 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
Civil Appeals No.1072/2005 & 686/2012. -10 -

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
Civil Appeals No.1072/2005 & 686/2012. -11 -

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
Civil Appeals No.1072/2005 & 686/2012. -12 -

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.

7. It is not disputed that the respondent rendered continuous

temporary serviceand 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 for a 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
Civil Appeals No.1072/2005 & 686/2012. -13 -

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 reply 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 not been subsequently taken into

permanent employment, which is sine qua non for the grant thereof.

8. Adverting to the law laid down in the case of Mir Ahmad

Khan (supra) wherein it was held:-

“Admittedly the appellant put in more than ten years’

temporary service before his services were terminated
he was, therefore, entitled to pensionary benefits under
Regulation 371-A(i) of Civil Service Regulations.”

In light of the discussion in paragraph No.6, the judgment delivered in

Mir Ahmad Khan’s case (supra) is declared to be per incuriam.

9. In view of the foregoing, we find that the respondent was not

entitled to the grant of pensionary benefits in terms of Article 371-A of

the CSR, and the learned Service Tribunal had erroneously allowed him

pension by wrongly relying upon the case of Mir Ahmad Khan (supra)

which is declared to be per incuriam.

Civil Appeals No.1072/2005 & 686/2012. -14 -

10. The above are the detailed reasons for our short order of

even date whereby the appellants’ appeal was accepted and the

impugned judgment was set aside, which reads as follows:-

“We have heard the arguments of learned ASCs for the

parties. For the reasons to be recorded later, this
appeal is allowed, the impugned judgment of the
Federal Service Tribunal dated 29.12.2003 is set aside
and the service appeal preferred by the respondent is
dismissed.”

Civil Appeal No.686/2012:

11. The brief facts of the instant appeal are that the appellant

was a Professional Teaching Certification (PTC) Teacher in the

Commissionerate for Afghan Refugees, Peshawar (Commissionerate), from

28.2.1987 to 17.1.2005, i.e. approximately 18 years. During her

employment at the Commissionerate, she applied for two months leave

on 20.1.2004, after which she was appointed as a PTC Teacher in the

Schools and Literacy Department, Government of Khyber Pakhtunkhwa

(department) and she assumed charge of her post on 25.11.2004 and

tendered her resignation with the Commissionerate on 10.1.2005.

Thereafter she filed a departmental appeal to respondent No.1 claiming

that her 18 years’ service with the Commissionerate be counted for the

purposes of her pension, which (departmental appeal) was accepted vide

order dated 24.6.2008. However, the said order stated that her 10 years’

service be counted towards calculation of her pension, as opposed to 18

years, which the appellant was dissatisfied with thus she filed a

corrigendum application for correction of the said mistake. However, in

response, the department on 20.7.2009 informed the appellant that her

Civil Appeals No.1072/2005 & 686/2012. -15 -

prior service with the Commissionerate could not be counted towards

her pension. Aggrieved, the appellant filed an appeal before the learned

Khyber Pakhtunkhwa Service Tribunal which was dismissed vide the

impugned judgment dated 9.4.2012 whereafter she approached this

Court. Leave was granted on 5.7.2013 in the following terms:-

“………Prima facie, it is difficult to understand that

admittedly when the petitioner had served for a period
of about 18 years in the Commissionerate and
thereafter joined the Education Department and
initially the Education Department had also accepted
her claim allowing computing of her previous service
for the purpose of pension then what prevailed with the
department subsequently in disallowing continuity. In
view of the judgment cited by the learned counsel in the
case of Zafar Shah (2003 SCMR 686) in such like
circumstances, continuity for the purpose of extending
the benefit of pension is permissible.

3. Inter alia, to examine this aspect of the case,

leave to appeal is granted in this case………”

Subsequently on 19.9.2013, it was decided that this case was to be

heard along with Civil Appeal No.1072/2005 before the larger bench as

they both involved similar questions of law.

12. Learned counsel for the appellant primarily submitted that

the time spent at the Commissionerate is to be counted towards her

pension in terms of Article 371-A of the CSR.

13. On the other hand, learned counsel for the respondents

stated that due to the special facts and circumstances prevalent at that

time, the decision rendered in the case of Mir Ahmad Khan (supra) is
Civil Appeals No.1072/2005 & 686/2012. -16 -

good law, however in the instant matter, the appellant is not entitled to

inclusion of the period she spent as an employee of the

Commissionerate for the purposes of pensionary benefits for the reason

that she was in fact a project employee of a non-governmental

organisation called Basic Education for Afghan Refugees (BEFARe), and

not an employee of the Federal Government, and that she had resigned

from the Commissionerate on 10.1.2005 after which she joined the

department.

14. Learned Additional Advocate General, KPK adopted the

arguments of Mr. Hafiz S. A. Rehman, learned counsel for the

appellants in Civil Appeal No.1072/2005.

15. Heard. The appellant’s main grievance is that the eighteen

years she spent at the Commissionerate be counted towards her service

at the department for the purposes of the grant of pensionary benefits

as per Article 371-A of the CSR, suffice it to say that the

Commissionerate for Afghan Refugees does not in any way fall within

the meaning of “temporary establishment” as defined in Civil Appeal

No.1072/2005 above to mean an organisation or institution which is

not permanent, rather effective for a certain period only as described.

Even otherwise, the appellant’s service with the department was

temporary and on a contract basis, and there is nothing on the record

which suggests that she was subsequently confirmed or made

permanent within the department. Therefore keeping in view the

interpretation of Article 371-A of the CSR explained above with regard

to Civil Appeal No.1072/2005 in that the said article would not ipso

facto allow government servants rendering temporary service in a

temporary establishment for more than five years to be entitled to grant

Civil Appeals No.1072/2005 & 686/2012. -17 -

of pension, rather such period would only be counted towards such

government servants’ pension if otherwise entitled to pension, we are

of the opinion that the appellant is not entitled to pensionary benefits

as claimed by her.

16. In light of the above, we find no infirmity in the impugned

judgment warranting interference by this Court, therefore this appeal is

dismissed as being devoid of merit.

Chief Justice

Judge Judge

Judge Judge

Announced in open Court

At Islamabad on 14-4-2016
Approved for reporting
Ghulam Raza/*