Pop etc. vs Syeda Kaneez Fatima

Form No: HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN

JUDICIAL DEPARTMENT

ICA No. 272 of 2024

Government of the Punjab & another.

vs Syeda Kaneez Fatima

S.No. of Date of Order with signature of Judge and that of parties or Order/ order/ counsel where necessary Proceeding proceeding 24.02.2026. Malik Muhammad Bakhsh Khakhi, AAG for the appellants alongwith Maqbool Hussain, L.O., Health Department and Arshad Javaid, Deputy DAO, Khanewal. Mr. Muhammad Khalid Mehmood Ayaz, Advocate for respondent.

Through this Intra Court Appeal filed under Section 3 of Law Reforms Ordinance, 1972, the appellants have called in question order dated 21.10.2024 (‘Impugned order’) passed by learned single Judge of this Court, whereby constitution petition filed by the respondent to seek release of pension and gratuity of her deceased husband in her favour was allowed.

2.The learned Law Officer has argued that the impugned judgment passed by the learned Single Judge in Chambers is against the facts of the case and law on the subject, therefore, the same is not sustainable and it is prayed that by setting aside the impugned order, the constitution petition filed by the respondent be dismissed. On the other hand the learned counsel for the respondent has defended the impugned orders by controverting the arguments of the learned Law Officer.

3.The brief background of the matter under consideration is that the Respondent's husband, Riaz

ICA No.272 of 2024 Dated 24.02.2026

Hussain Shah, was appointed as Naib Qasid at Rural Health Centre, Kot Abdul Hakim on contract basis on 01.11.2005. Thereafter, he continuously performed his duties without any break and pursuant to Notification dated 17.02.2010 his services as Naib Qasid in Health Department were regularized with effect from 14.10.2009 under the Punjab Civil Servants (Appointment and Condition of Service) Rules, 1974. Thereafter, the Respondent's husband died on 15.03.2016 and the District Accounts Officer, Khanewal/Appellant No.2 refused to approve case of entitlement of respondent being wife of deceased employee on the ground that length of service of deceased employee was 6-Years, 5-Months and 01-day which was less than 10 years’ service required by law for grant of benefits. The respondent filed Writ Petition No. 9710 of 2024 to seek direction against the appellants to release pension/gratuity and other benefits of her deceased husband in her favour by considering his length of service from the date of initial appointment and not from the date of regularization of his service, which was contested by the appellants by taking stance that contractual period cannot be computed for holding the respondent entitled to her deceased husband’s pension. The learned Single Judge in Chambers has allowed the constitution petition by holding the respondent entitled to pension of her deceased husband in the following terms:

‘3. The position of law is not much complicated. Under Chapter-II, Rule 2.3 of Punjab Civil Services Pension Rules, 1955, the temporary and officiating service followed by confirmation shall also count for pension or gratuity. This legal position is not even disputed by the Department.

ICA No.272 of 2024 Dated 24.02.2026

4.In view of clear position of law, the Department's approach towards determining the rights of the Petitioner is misconceived. The question already stands determined by the Judgments reported as "Secretary, Ministry of Finance, Islamabad and others Vs. Tayyaba Halim Subhani & others" (2022 SCMR 77), "WAPDA through Chairman and another Vs. Mst. Parizada" (2018 SCMR 1542) and Judgment dated 12.09.2024 titled "Chairman/Dean Sheikh Zayed Hospital, Lahore Vs. Amjad Mehmood Khan" (Civil Petition No.1353-L of 2023) wherein the Supreme Court of Pakistan has held:

"10. The perusal of the Article 371-A of CSR reveals that clause (i) stipulates that government servants employed in temporary positions who have rendered more than five years of continuous temporary service are entitled to have such service counted towards their pension or gratuity. The use of the term "continuous" indicates that only uninterrupted service exceeding five years qualifies, and any prior broken periods of temporary service are to be excluded from the calculation.

11 In the present case, since temporary service (contract period) of Respondent was 41⁄2 years, therefore, clause (ii) is applicable. Clause (ii) provides for situations where a government servant has rendered less than five years of continuous temporary or officiating service. In such instances, the period of service shall also be counted towards pension or gratuity, provided that it is immediately followed by confirmation/regularization as a permanent employee."

5.Since the position of law is clear, therefore, this Writ Petition is allowed and the case of Petitioner's entitlement to pension is directed to be finalized within a period of 15 days’

4.The main stance of learned Law Officer is that the husband of the respondent was an employee of the Provincial Government whereas the judgments relied

ICA No.272 of 2024 Dated 24.02.2026

upon by the learned Single Judge in Chambers relate to the employees of Federal Government, hence the said judgments could not be relied upon and the previous service under the contract could not be computed as period of service for purposes of computation of pension, therefore, the impugned order was not sustainable and is liable to be set aside, whereas, it was the contention of the respondent in constitution petition that her right of entitlement to her deceased husband's pension cannot be refused under the law for the reason that if his continuous period of performance of duty prior to regularization is computed in service, the total tenure of his service extends to more than 10 years. The reply was submitted by the department in the said petition with the contention that the contractual period cannot be computed for holding the respondent entitled to deceased husband's pension.

5.Although it is claimed by the learned Law Officer that Para-3(XVIII)(5) of Contract Appointment Policy, 2004 read with Para 4 of the guidelines for fixing terms and conditions of contract appointment attached at its Annexure “B”, Condition No. 9 of contract of initial appointment of the respondent’s husband as contract employee and Rule 1.5(ii) &(v) of the Punjab Civil Servants Pension Rules, 1955 provide that service rendered under the contract shall not qualify for pension/gratuity, etc. Yet, the said conditions prima facie would apply only where the respondent’s husband continued to remain a contract employee with no subsequent change in terms and conditions of his service for the reason that the contract employment did not make the job pensionable as the contract although extendable

ICA No.272 of 2024 Dated 24.02.2026

was initially for a period of three years and unless extended would have ordinarily expired on expiry of the said term, however, when the respondent’s husband was regularized in service, the said conditions could not be extended beyond period of contractual employment and treated as an impediment in the way of respondent’s husband for his claim to pension and other benefits arising out of his regular service, if he was found entitled to the same under any other provision of law, rules of government policies. Besides, the terms and conditions of contract employment could not override the conditions of his regular employment by extending the operation of the same for an indefinite period of time beyond the period of his service as a contract employee. The office order dated 17.02.2010 whereby the services of the husband of respondent were regularized also provides that service period shall not be counted towards pension and other benefits, without specifying which service period the same is referring to. However, it is not claimed by the appellants that the services rendered by the husband of the respondent after his regularization would also not be counted in the service period requisite for the calculation of his pension, therefore, the said condition in the order of regularization of service would not operate adversely to the rights of the respondent to raise claim of pension, if she was otherwise found entitled to the same.

6.Another important aspect of the matter is that the said order of regularization is merely an executive order, which prima facie in its terms is ambiguous and does not override the provisions of Chapter-II, Rule 2.3 of Punjab Civil Services Pension Rules, 1955 which provides that the temporary and officiating service followed by

ICA No.272 of 2024 Dated 24.02.2026

confirmation shall also count for pension or gratuity. The said provision is reproduced below for reference and clarity:

‘2.3 Temporary and officiating service.- Temporary and officiating service shall be counted for pension as indicated below:

(i)Government servants borne on temporary establishment who have rendered more than five 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.’

It has not been denied that the said rule still holds the field besides the order passed by the learned Single Judge in chambers also shows that the appellants did not dispute the aforesaid legal position even before the said court. In this view of the matter the said rule has to take precedence over the policy or the condition mentioned in the order of appointment of husband of the respondent as a contract employee and the said provision entitles the respondent to claim addition of temporary service for computation of total service for the purpose of pension or gratuity. It would be important to mention here that despite the aforementioned legal position, where two interpretations are possible, the one beneficial to the person likely to be adversely affected and advances the remedy and purpose of law is to be adopted. Reliance is placed on Syed Mohsin Ali Hasani versus Government of Pakistan and another (1990 SCMR 1685), Ch. Khalil-ur- Rehman versus The Registrar, Cooperatives, Punjab, Bank Square, Lahore and 2 others (1994 MLD 1637 Lahore), Muhammad Shoaib Arshad and another versus Federation of Pakistan through Secretary, Ministry of

ICA No.272 of 2024 Dated 24.02.2026

Law, Justice Human Rights and Parliamentary Affairs and 4 other (2020 CLD 638 Lahore), Province of Punjab versus Qaisar Iqbal and others (PLD 2018 Lahore 198), Sh. Saleem-ud-din and others versus Feroze Din and others (2012 CLC 895 Lahore).

7.As regards the objection raised by the appellants that the judgments relied upon by the Court while holding the respondent entitled to receive pension relate to employees of Federal Government and not to employees of Provincial Government is concerned, suffice it to observe that in the case of Amjad Mehmood Khan (supra), which has since been reported as (2025 SCMR 168), the relevant portion of which is already reproduced above, reference was made to Article 371-A of CSR, wherein it is mentioned that the continuous temporary service, which as per the same judgment includes contractual service of an employee, would be counted in service towards their pension and gratuity of employees. Consequently by considering the said aspect of the matter, the contract period of respondent therein, which was 41⁄2 years was ordered to be counted towards pension or gratuity, when the same was followed by confirmation/regularization as a permanent employee. It is important to note here that Article 371-A is similar and in pari materia with provisions of Chapter-II, Rule 2.3 of Punjab Civil Services Pension Rules, 1955. The CSR No. 371-A is reproduced below for ready reference:

"371-A. Notwithstanding anything contained in Articles 355(b), 361, 368 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

ICA No.272 of 2024 Dated 24.02.2026

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 5 years immediately followed by confirmation shall also count for gratuity or pension, as the case may be.”

Hence as both the aforesaid provisions relating to federal and provincial employees are in similar terms, therefore, the husband of the respondent being an employee of the provincial government is also entitled to the same treatment. As regards the objection of the appellants that contract employment is not included in temporary and officiating service mentioned in Rule 2.3 (Supra), suffice it to observe that the Supreme Court in the case of Amjad Mehmood Khan (Supra) has already observed in paragraph 09 of the judgment that use of phrase temporary service in Article 371-A of CSR includes contractual service which interpretation in terms of Articles 189 and 190 of the Constitution is binding on all courts and executive authorities, hence, the said objection is misconceived.

8.It is also pertinent to mention, here that besides the judgment in the matter of Amjad Mehmood Khan (supra), in various other cases, the period of continuous temporary service such as contract employees followed by confirmation or regularization of service has been included in aggregate service towards pension or gratuity. Reference is made to Secretary, Ministry of

ICA No.272 of 2024 Dated 24.02.2026

Finance, Islamabad and others versus Tayyaba Halkim Subhani and others (2022 SCMR 77) where service rendered by teachers and lecturers as daily wages was under consideration; and WAPDA through Chairman and another versus Mst. Parizada (2018 SCMR 1542), where services of work charge employees of WAPDA was under consideration and the period temporary service was counted towards pension or gratuity.

9.In view of the above, it is held that the observations and findings recorded by the learned Single Judge in Chambers, whereby respondent has been held entitled to pensionary benefits of her husband by addition of his contractual service in his total length of service, do not suffer from any misreading and non-reading of record and illegality or jurisdictional defect for us to warrant interference in the well-reasoned order passed the said Court, hence the findings recorded by the learned Single Judge, whereby the writ petition filed by the respondent was allowed, are upheld.

10.In view of above discussion, the titled instant intra court appeal being devoid of merits is dismissed.

(SYED AHSAN RAZA KAZMI) (MUZAMIL AKHTAR SHABIR)

JUDGE JUDGE

Naveed *

APPROVED FOR REPORTING: