Muhammad Wakeel Khattak Vs Government of KP through Secretary Industries, Commerce and Technical Education Department, Peshawar & others

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

PESHAWAR

(Judicial Department)

W.P No.4958-P/2024 Muhammad Wakeel Khattak (Ex. Joint Director), Small Industries Development Board Versus Government of Khyber Pakhtunkhwa through Secretary Industries, Commerce and Technical Education Department, Peshawar & Others

JUDGMENT

For petitioner(s): Mr. Zartaj Anwar, Advocate. For respondent(s): Mr. Waseem Ud Din Khattak, Advocate, for respondents No. 02 & 03.

Date of hearing: 17.02.2026.

Inam Ullah Khan, J.-

1.The petitioner, Muhammad Wakeel Khattak, Ex. Joint Director, invoked the jurisdiction of this Court under Article 199 of the Constitution, seeking the following relief:

On acceptance of this writ petition:

 An appropriate writ may please be issued by directing the respondents to count/add the contractual service of the petitioner i.e. from initial appointment towards regular service for the purpose of adding it to the pay and pension, while Implementing the Order & judgment of this Court in W.P No 941/2009 in letter and spirit by counting/recalculating the service from date of initial appointment i.e 18.02.1993 instead of 01.07.1996 for the purpose of pay fixation & Pension.

 The respondents may further be directed to enter necessary entries in their service record w.e.f from the date of his initial appointment, i.e., 18.02.1993, the reluctance and not implementing the order and judgment of this Court may declare illegal unlawful without lawful authority and violative upon the rights of the petitioner. Or

 Any other remedy deemed proper may also be allowed.

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2.In essence, it is averred that the Khyber Pakhtunkhwa Small Industries Development Board (KPSIDB) was established under the Khyber Pakhtunkhwa Small Industries Development Board Act, 1972 (The Act). Pursuant to Section 37 of the said Act, the Government of Khyber Pakhtunkhwa framed the KPSIDB Service Rules, 2005 governing the terms and conditions of service for Board employees. The petitioner was initially appointed as Sales Assistant (BPS-11) in the project titled “Sports Goods Services Centre (SGSC), Abbottabad,” vide order dated 18.02.1993. He was subsequently transferred and posted as Audit Assistant vide office order dated 02.08.1994, and later as Account Assistant at Leather Goods Services Centre, Bannu, vide order dated 08.07.1997. He was promoted to Assistant Manager (BPS-16) vide office order dated 17.11.2003 and was thereafter entrusted with the additional, and subsequently look-after, charge of Deputy Director, Small Industries Estate, Bannu, vide orders dated 16.11.2004 and 28.05.2007, respectively. He was later posted as Assistant Director (BPS-16) at Leather Goods Centre, Bannu, vide order dated 22.09.2007, and also served at ISIE/SIE Karak before being transferred back to SIE Bannu. The petitioner filed Writ Petition No. 941/2009 seeking regularization of his services, which was allowed vide judgment dated 28.01.2010, pursuant to which he was regularized. Upon attaining superannuation, he submitted his pension record; however, the department calculated his pensionable service from the year 2010, declining to count his prior service from 1993. His subsequent representation for counting his entire length of service from the date of initial appointment evoked no response. Aggrieved, he filed Writ Petition No. 5951-P/2023. During its pendency, the department reconsidered the matter and purported to count his service from 1993; however, the pension was recalculated from 1996 without assigning any lawful justification. Being aggrieved by this action and having no other adequate and efficacious remedy, the petitioner has again invoked the constitutional jurisdiction of this Court for redress of his grievance.

3.The respondents, in their written comments, vehemently opposed the petitioner’s claim for issuance of the desired writ. It was contended, inter alia, that the petitioner was appointed as a contract/project employee against a project post, and that his subsequent transfer to the KPSIDB Headquarters—albeit on 2|P a g e

compassionate grounds—did not alter his service cadre or employment status. It was further submitted that the project against which he was appointed stood wound up on 30.06.1996; therefore, he was not entitled to pensionary benefits for the period (project period) prior to his regularization.

4.Arguments heard and available record gone through.

5.The pivotal question for determination in the present constitutional petition is whether the petitioner is entitled to have his pensionary benefits computed from the date of his initial appointment, i.e., 18.02.1993, or from 01.07.1996, as determined by the respondent-department. The undisputed factual matrix reveals that the petitioner was initially appointed as Sales Assistant (BPS-11) in the project titled “Sports Goods Service Centre (SGSC), Abbottabad” vide appointment letter dated 18.02.1993. The terms of appointment clearly stipulated that his engagement was on a contractual basis and co-terminus with the continuation of the project. A plain reading of the appointment letter further discloses that the post was expressly declared to be non-pensionable. Thus, from its very inception, the petitioner’s employment was project- based, temporary in nature, and devoid of any claim to pensionary benefits. On 09.06.1994, the petitioner sought transfer to the SIDB Headquarters on compassionate grounds. Accepting his request, the management transferred him to the Finance & Accounts Directorate vide office order dated 02.08.1994. However, this transfer was purely administrative and did not alter his contractual status, cadre, or the governing terms and conditions of his service. It is an admitted and undeniable position on record that the SGSC, Abbottabad project was closed upon completion of its PC period in 1996. Consequently, the petitioner’s contractual tenure, being co- terminus with the project, effectively came to an end on

6.Subsequently, during the restructuring of SIDB pursuant to the Board’s decision dated 27.05.1997, the petitioner, along with certain other officials, was adjusted vide office order dated 08.07.1997 at Leather Goods Service Centre (LGSC), Bannu, against the post of Assistant Director (Accounts). This adjustment followed the closure of the earlier project and was administrative in character. In due course, PC-1 of the project titled “Leather Goods Service Centre, Bannu (Phase-III)” was approved on 04.10.2003, 3|P a g e

wherein the post of Assistant Manager (Mkt/Ext) (BPS-16) was available. Upon recommendation of the Departmental Promotion Committee, the petitioner was promoted to the said post vide office order dated 17.11.2003. Thereafter, the petitioner was entrusted, from time to time, with additional and look-after charges of Deputy Director, Small Industries Estate (SIE), Bannu, and SIE Karak, as stop-gap arrangements. While these assignments reflected administrative confidence in his abilities, they did not confer upon him the status of a regular employee during the relevant period.

7.In 2009, the petitioner invoked the constitutional jurisdiction of this Court through Writ Petition No. 941/2009, seeking regularization of his services and inclusion of his name in the seniority list of Assistant Director (BPS-16). The said petition was allowed vide judgment dated 28.01.2010, and pursuant thereto, his services were regularized. Following regularization, the petitioner earned further promotions on regular basis—first to Deputy Director (BPS-17) vide office order dated 02.02.2012, and later to Joint Director (BPS-18) vide office order dated 30.05.2019. He ultimately retired on 05.02.2022 upon attaining the age of superannuation. At the time of calculating his pensionary dues, the Finance & Accounts Directorate initially computed his qualifying service from the date of regularization, i.e., 28.01.2010. However, upon representation by the petitioner, and during the pendency of Writ Petition No. 5951-P/2023, the department reconsidered the matter and recalculated his pension by counting his service from 01.07.1996, that is, the date immediately following the closure of the SGSC project. The petitioner, however, insists that his entire service commencing from 18.02.1993 be treated as qualifying service for pension. This contention necessitates examination of the legal character of his service during the period 18.02.1993 to

8.Clause 2(b) of the Khyber Pakhtunkhwa Regularization of Service Act, 2009 defines the term “employee” as an adhoc or contract employee appointed by the Government on adhoc or contract basis. Significantly, the statutory framework excludes employees appointed against project posts, work charge employees, and those paid from contingencies from its ambit. When Clause 2(b) is read in conjunction with the explicit 4|P a g e

stipulations contained in the petitioner’s appointment letter—his employment was contractual, co-terminus with the project, and non-pensionable—it becomes manifest that his service during the SGSC project does not constitute qualifying service for pensionary purposes. In this regard, the Hon’ble Supreme Court of Pakistan, in Muhammad Raqeeb v. Government of Khyber Pakhtunkhwa (2023 SCMR 992), provided a correct exposition of the legal position governing the matter. The relevant observations of the Court are reproduced below for ready reference:

9.In order to embark on the controversy, the definition of "employee" under section 2(b) and the provision laid down under section 3 for regularizing the services of employees provided under the 2009 Act are quite relevant which are reproduced for the ease of reference as under: Section 2(b).

(b)"employee" means an ad hoc or a contract employee appointed by Government on ad hoc or contract basis or second shift/night shift but does not include the employees for project post or appointed on work charge basis or who are paid out of contingencies;

Section 3.

3.Regularization of services of certain employees.---All employees including recommendees of the High Court appointed on contract or ad hoc basis and holding that post on 31st December, 2008 or till the commencement of this Act shall be deemed to have been validly appointed on regular basis having the same qualification and experience for a regular post: Provided that the service promotion quota of all service cadres shall not be affected.

10.On one hand, the appellant is pleading that he was a permanent employee and is also requesting the grant of pensionary benefits, but on the contrary, in the memo of his petition in W.P. No.86-B/2010 he himself pleaded that some other project employees were regularized by the Board, and therefore he should also be regularized in service which is sufficient to divulge by his own conduct that he was not a regular employee but performing his duties as project employee, otherwise there was no logical purpose to approach the High Court for regularization of services in terms of the 2009 Act. If we look at the niceties of the 2009 Act, the definition of "employee" refers to the employment status of an employee appointed by the Government on ad hoc or contract basis or second shift/night shift, but does not include the employees for project posts, or those appointed on work charge basis, or those who are paid out of contingencies. According to section 3 of the 2009 Act, only 5|P a g e

those employees who were appointed on contract or ad hoc basis and were holding the post on December 31, 2008 or till the commencement of the 2009 Act were deemed to have been validly appointed on regular basis. While reading this provision in conjunction with the definition of "employee" provided under the 2009 Act it is lucidly clear that the persons performing their contractual duties for project post or on work charge basis or who are paid out of contingencies were excluded from the definition of employee. Hence by all means the contractual employees performing their duties on project post could not claim regularization in terms of the aforesaid Act. The status of the appellant's engagement with the respondents had already been examined and set at rest in the first round of litigation up to the level of this Court, hence at this stage the earlier judgment passed in the case of appellant cannot be re-examined or re-visited again by this Court, particularly when the review petition was also dismissed much earlier. Hence, no cause of action accrued to the appellant to re-agitate a similar controversy with regard to his erstwhile employment status for the relief of pensionary benefits.

9.Rule 371-A(i) of the Civil Service Regulations, 2018 (“Regulations, 2018”) stipulates that “Government servants borne on temporary establishments who have rendered more than five years of continuous temporary service shall count such service for the purpose of pension or gratuity, excluding broken periods of temporary service, if any, rendered previously.” In the present case, however, the petitioner rendered contractual service for a period of approximately three years only, which is less than the mandatory threshold of five years prescribed under the aforesaid Rule. Consequently, such period of service does not confer upon him any vested right to claim pensionary or gratuity benefits. The above legal position has recently been reaffirmed by the Hon’ble Supreme Court in M/o Finance through Secretary, etc. v. Syed Afroz Akhtar Rizvi & others, Civil Appeal No. 1496 of 2019, decided on 12.07.2021 (2021 SCMR 1546). The relevant paragraph of the said judgment is also reproduced below for ready reference.

7.In case, an employee has served a Government Department for the duration of the period qualifying him to receive pension, the period spent as a contractual employee may be added to his regular qualifying service only and only for the purpose of calculating his pension and for no other purpose. The provisions of Article 371- A of CSR start with a non obstante clause which means that the said Article does not relate to the question entitlement or eligibility to receive pension. It is clearly and obviously restricted to counting the period of a minimum of five years which has been rendered by a temporary contractual employee to be taken into account with the object of calculating the quantum 6|P a g e

of his pension and not more. 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. Such an interpretation would create absurd situations and would render other provisions and Articles of CSR redundant, unnecessary and surplus. We are therefore in no manner of doubt that Article 371 of CSR does not allow Government Servants rendering temporary service in a temporary establishment for more than 5 years to be entitled for grant of pension rather such period can be counted towards calculation of pension only if otherwise entitled to pension by meeting the criteria of qualifying service.

8.It is not disputed that the Respondent rendered continuous service from 1992 to 2008 as Data Entry Operator in NIEMS. It is also not disputed that he was regularized in 2008 and retired in 2016 before meeting the criteria of qualifying service. That being so, the benefit of Article 371-A of CSR was not available to him as he did not qualify for the pensionary benefits which qualification is a necessary pre-requisite for grant of pension.

9.It may also be pointed out that the earlier view taken by a three-member Bench of this Court in the case of Mir Ahmad Khan v. Secretary to Government & others (1997 SCMR 1477) was declared per incuriam in a five-member judgment of this Court rendered in Shah Jahan Shah's case ibid. As such, the view consistently taken by this Court in a situation where the services of a contractual employee are converted into regular employment is that although 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. The Tribunal has clearly and obviously taken an incorrect and erroneous view of the law and has been unable to appreciate the essence and tenor of Shah Jahan Shah's case ibid which is an authoritative declaration of law on the subject by this Court. Reference of the Tribunal to selective portions of the aforesaid judgments are found to be out of context leading to incorrect and erroneous interpretation of the relevant principles of law. We therefore find that the impugned judgment of the Tribunal dated 05.10.2018 is unsustainable. It is accordingly set aside. Consequently, the listed appeal is allowed and the Service Appeal bearing No.265(R) of CS 2016 filed by Respondent No.1 (Syed Afroz Akhtar Rizvi) before the Tribunal is dismissed.

It is also settled principle of service jurisprudence that pension is not a matter of grace or generosity but a statutory right 7|P a g e

regulated strictly by governing rules. Where the rules expressly exclude a category of service from pensionable consideration, no equitable considerations can override such statutory exclusion. Reliance is placed on Chairman, Pakistan Railway, Government of Pakistan v. Shah Jahan Shah (PLD 2016 SC 534). The mere fact that the petitioner continued to serve the department after the closure of the project does not retrospectively convert his earlier contractual, project-based tenure into regular pensionable service. Continuity of engagement, in absence of his lawful absorption under regular terms during the relevant period, does not create a vested right to pension.

10.In these circumstances, the respondents rightly invoked Rule 371-A(i) of the Regulations, 2018 and accorded approval to treat the petitioner’s pensionable service as commencing from 01.07.1996, i.e., the date following termination of the project on 30.06.1996. Accordingly, this Court is of the considered view that the petitioner’s contractual service from 18.02.1993 to 30.06.1996 was purely project-based, expressly non-pensionable in nature, and therefore cannot be reckoned as qualifying service for pensionary benefits. The question formulated for determination is thus answered in favour of the respondents and against the petitioner. Consequently, the instant constitutional petition, being devoid of merit, is hereby dismissed.

Announced.

Shahid Ali (JSS)/* Sd. x x x

JUDGE

Sd. x x x

JUDGE

(D.B)

Justice Muhammad Naeem Anwar & Justice Inam Ullah Khan

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