Mst. Gulshan Ara Vs Govt: of KPK

JUDGMENT SHEET

PESHAWAR HIGH COURT, MINGORA BENCH

(DAR-UL-QAZA), SWAT

(Judicial Department)

Writ Petition No. 825-M/2025

Mst. Gulshan Ara —Versus— Government of KPK through Secretary Health and others

PRESENT:

M/S Anwar Ali and Muhammad Rahim Shah Khan, Advocates for petitioner.

Mr. Kamal Khan, Assistant A.G. for respondents.

Date of hearing: 14.04.2026

JUDGMENT

QAZI JAWAD EHSANULLAH, J.- Through the instant petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner seeks the following reliefs:

“It is therefore, humbly prayed that on acceptance of the instant writ petition in light of dictum laid down by the apex court as well as the Civil Service Regulations 2018, Rule 2.2 and 2.3 of the West Pakistan Civil Services Pension Rules, 1963, the petitioner may please be counted for pension & other back benefits.

That it is further prayed that the respondent department may kindly be directed to grant monthly pension to the petitioner accordingly.

Any other relief which this Honorable Court deems fit and proper in the circumstances may also be very kindly granted.”

2.Briefly stated, the petitioner is widow of late Hafiz Gulshan, who was appointed as Lab Assistant in the Health Department on 22.03.1992 and was later promoted as Tajamul/CS | DB: Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

Technician. According to the petitioner, her husband remained in continuous service; however, due to the law-and- order situation in Swat, he migrated along with his family to District Nowshera in the year 2009, where he was allegedly abducted by unknown persons on 28.06.2009, and since then his whereabouts remained unknown. In this regard, FIR No.

425 dated 28.06.2009 was also registered under Sections 365 & 342 PPC at Police Station Nowshera Cantt., District Nowshera. It is the case of the petitioner that despite such circumstances, her husband was illegally removed from service for the period from 26.07.2009 to 09.01.2010. The petitioner, after making efforts for tracing her husband, instituted a suit for declaration of civil death, which was decreed on 28.11.2024. Thereafter, she approached the respondent department for grant of pension and other service benefits, which request was declined vide letter dated 06.03.2025, constraining her to file the instant writ petition.

3.Per para-wise comments, respondent No.3 has raised preliminary objections with regard to maintainability of the writ petition on the grounds of laches, lack of locus standi, concealment of material facts, and availability of alternate remedy before the Service Tribunal under Article 212 of the Constitution. On merits, it is asserted that the husband of the petitioner had willfully absented himself from duty with effect from 26.07.2009, for which notices dated 07.08.2009 and Tajamul/CS | DB: Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

02.09.2009 were issued and even a public notice was published in newspapers dated 20.12.2009, but he failed to resume duty. Consequently, he was lawfully removed from service vide order dated 09.01.2010 after due process. The plea of kidnapping is denied as an afterthought, not supported by departmental record. It is further contended that the decree of civil death dated 28.11.2024 does not confer any right to pension nor does it invalidate the earlier removal from service. The claim of the petitioner for pension and other benefits was rightly rejected, as removal from service entails forfeiture of past service and disentitles the employee and his legal heirs from pensionary benefits under the relevant rules.

It is also maintained that no fundamental right of the petitioner has been violated and the respondents have acted strictly in accordance with law.

4.Arguments heard and record perused.

5.In the first place, the objection raised by the learned AAG qua application of bar of jurisdiction under Art.

212 of the Constitution is found to be entirely misplaced.

Such bar of jurisdiction is attracted in cases where recourse to an administrative tribunal, which in this case should ideally be a Service Tribunal, is legally permissible. In order thus to attract such jurisdiction, the first and foremost qualification and condition is that the person who approaches the Tribunal Tajamul/CS | DB: Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

is or has been a civil servant. On the contrary, the petitioner who has approached this court for family pension is not and has never been a civil servant. Therefore, in view of categorical ruling of the apex court in the case of Dr. Ahmad Salman Waris, Assistant Professor, Services Hospital, Lahore v. Dr. Naeem Akhtar and 5 others1, the bar contained in Art.

212 ibid is not at all attracted. Relevant paragraph of the said precedent is reproduced herein below;

“11. Article 212(i)(a) of the Constitution provides that the Administrative Courts or the Tribunals established under the Act of appropriate Legislature is to exercise exclusive jurisdiction in respect of matters relating to the terms and conditions of persons who are or have been in the service of Pakistan including disciplinary matters. 'Service of Pakistan' as defined in Article 2&0(1) of the Constitution means any service, post or office in connection with the affairs of Federation or of a Province and includes an All Pakistan Service, service in the Armed Forces and any other service declared to be service of Pakistani by or under the Act of Parliament or of a Provincial Assembly except those services mentioned expressly in this Article not falling within the purview of Service of Pakistan. By Punjab Service Tribunals Act, 1974 (hereinafter to be referred as the Act) only, Punjab Service Tribunal was established to exercise jurisdiction regarding matters relating to the terms and conditions of service in respect of services of the Province of Punjab. Under section 4 of the Act appeal lies at the instance of an aggrieved civil servant before the Tribunal against the final order, whether original or appellant, passed by a departmental authority in respect of any of the terms and conditions of his service including disciplinary matters, within 30 days of the communication of such order to him. However, no appeal is competent before the Tribunal against the order of a departmental authority determining fitness or otherwise of a person to be appointed or to hold a particular post or against the order imposing penalty except where the punishment awarded is dismissal, removal, reduction in rank or compulsory

PLD 1997 S.C 382

Tajamul/CS | DB: Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

retirement from service. The definition of civil servant given in Punjab Civil Servants Act (VIII of 1974) is the same as given in section 2(b) of tha Act. A civil servant within the meaning of the Act means a person who is or has been a member of a civil service of the Province or who holds or has held a civil post in connection with the affairs of the Province. However, a person who is or has been on deputation to the Province from the Federation, or from other Province or authority, a person employed on contract or on work-charge basis or paid from contingencies and a person who is or has been a worker or workman as defined in the Factories Act, 1934 or Workmen's Compensation Act, 1923, are expressly excluded from the purview of the definition of civil servant. Therefore, in order to make a matter exclusively cognizable by a Tribunal under the Act, and to create an ouster of jurisdiction of all other Courts and Tribunals under Article 212 of the Constitution, it must be shown that the matter is agitated by a civil servant as defined under the Act, it has arisen from a final order of a departmental authority whether original or appellate, it concerns the terms and conditions of the aggrieved civil servant and that it is not covered by the exceptions mentioned in proviso b(i) and (ii) of section 4 of the Act. If any of the conditions mentioned above are non-existent in a case then, the bar contained in Article 212 of the Constitution will not be operative.”

[Emphasis supplied]

6.Coming now to the merits of the case, the dispute brought before this Court concerns the claim of the petitioner, widow of late Hafiz Gulshan, for grant of pension and allied service benefits, which have been declined by the respondents on the strength of an order whereby the deceased employee was removed from service on 09.01.2010 on account of absence. It is an admitted position that the husband of the petitioner was serving in the Health Department prior to the year 2009. The case set up by the petitioner is that her Tajamul/CS | DB: Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

husband was abducted by unknown persons on 28.06.2009 and could not be traced thereafter, despite efforts made by the family including lodging of an FIR in this regard as back as on 28.06.2009, ultimately leading to a decree passed by the competent Civil Court on 28.11.2024 declaring him as dead.

The said declaration, having not been challenged, provides the legal basis for determining the civil consequences arising from his disappearance. The core issue, therefore, is whether the absence of the employee, in the backdrop of his alleged disappearance, could validly be treated as willful so as to justify his removal from service and consequent denial of pensionary benefits. The respondents have relied upon the order of removal dated 09.01.2010 passed several months after formal reporting of the petitioner’s husband gone missing in the police station; however, there is nothing on record to demonstrate that the employee was effectively served with a notice or that he was afforded a real and meaningful opportunity of defence prior to imposition of the major penalty. The petitioner’s husband was admittedly removed from service under Section 3 of the N.-W.F.P Removal from Service (Special Powers) Ordinance, 2000 which, though conferring special powers upon the competent authority, does not dispense with the fundamental procedural safeguards embedded therein. The scheme of the Ordinance postulates that before taking the extreme step of removal, the Tajamul/CS | DB: Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

authority is obliged to (i) frame definite allegations, (ii) communicate the same to the civil servant through a show- cause notice, (iii) afford reasonable opportunity of defence, and (iv) where the facts are disputed or entail penal consequences, hold a regular inquiry in accordance with law.

These requirements are not empty formalities but constitute mandatory preconditions to ensure transparency, fairness, and compliance with the principles of natural justice. In the present case, it is an admitted position that no show-cause notice was ever issued to the petitioner’s husband prior to his removal from service, nor is there any material on record to show that he was confronted with specific allegations or afforded an opportunity to explain his position. Equally, no regular inquiry appears to have been conducted under the Government Servants (Efficiency and Discipline) Rules, which ordinarily regulate the mode and manner of proceeding against a civil servant on allegations of misconduct. The respondents’ comments are conspicuously silent in this regard, thus reinforcing the inference that the mandatory procedural framework was altogether bypassed. Furthermore, the subsequent assertion that the petitioner’s husband was allegedly involved in anti-state activities is wholly unsubstantiated. No documentary evidence, such as registration of an FIR or any report from a law enforcement agency, has been placed on record to lend credence to such a Tajamul/CS | DB: Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

serious allegation. Even otherwise, the notices, if any, and the termination order dated 09.01.2010 do not attribute any such misconduct to him; rather, the sole ground reflected therein is his absence from duty. In absence of any lawful inquiry or substantiated material, such post facto allegations cannot be relied upon to justify an otherwise illegal order.

7.In circumstances where the employee is stated to be missing, the department was under a heightened obligation to ensure that the requirements of due process were strictly adhered to. The material placed on record falls short of establishing such compliance. In the absence of proof regarding effective service of notices and opportunity of hearing, the action of the department in removing the employee from service assumes the character of a unilateral exercise, which cannot be sustained in the eye of law. The principles of natural justice are not empty formalities; rather, they are foundational safeguards, particularly when a drastic consequence such as removal from service is involved. Any departure therefrom renders the action legally vulnerable.

8.Upon the above determination that the removal from service of the petitioner’s husband was not in accordance with law, the respondents cannot absolve themselves of their obligation to extend pensionary benefits to the petitioner and her children, particularly when the Tajamul/CS | DB: Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

disappearance of their predecessor was an eventuality beyond their control. It is an admitted position that the petitioner’s husband had entered the government service on 22.03.1992 and was purportedly removed from service on 09.01.2010.

Thus, on the said date or on the date he went missing, he had rendered a total service of over 17 years, which squarely falls within the ambit of qualifying service. Upon a careful appraisal of the statutory framework and the material placed on record, it becomes manifest that the entitlement of the petitioner and her children to pensionary benefits is firmly rooted in law and cannot be withheld on tenuous or extraneous grounds. The proviso to Section 19(1) of the Khyber Pakhtunkhwa Civil Servants Act, 1973 unequivocally postulates that in the event of death of a civil servant, whether occurring before or after retirement, his family shall be entitled to such pension or gratuity, or both, as may be prescribed. For facility of reference, the relevant provision is reproduced herein below:

“19. Pension and gratuity.---(1) On retirement from service, a civil servant, appointed on regular basis in the prescribed manner, before the commencement of the Khyber Pakhtunkhwa Civil Servants (Amendment) Act, 2022, shall be entitled to receive such pension or gratuity, as are admissible to him under the pension rules for the time being in force:

Provided that in the event of death of such a civil servant as provided in this sub-section, whether before or after retirement, his family shall be entitled to receive such pension or gratuity or both, as admissible under the said rules.”

Tajamul/CS | DB: Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

[emphasis supplied]

This statutory command, being mandatory in nature, casts a corresponding obligation upon the respondents to ensure that the lawful dues of the family are neither delayed nor denied without just cause. Equally instructive is the executive policy embodied in O.M. No. 5(1)-Reg.6/87 dated 04.03.1987, forming part of the Manual on Pension Procedures (New)2, wherein a specific dispensation has been provided for cases of missing employees. The said policy recognizes that where an employee remains missing or unheard of for a period of 12 months to the satisfaction of the competent authority, family pension may be sanctioned to his heirs, subject to the prescribed conditions. For brevity, the relevant extract is reproduced herein below:

“Payment of family pension in the case of employees who remain missing for 12 months S1. No. 24 Reference Finance Division’s O.M. No. 5(1)-Reg.6/87 dated 4-3-1987 in which it was decided that if an employee remains missing or unheard of for a period of 7 years to the satisfaction of the Department concerned, family pension may be allowed to his heirs as admissible under the prescribed rules. The President has been pleased to decide that, with effect from 24th September, 1997, if an employee remains missing or unheard of for a period of 12 months to the satisfaction of the Department concerned, family pension may be allowed to his heirs as admissible under the prescribed rules provided that :—

(i)The spouse of the pensioner claiming to be entitled to the pensionary benefits of the missing person shall, before such benefits are paid, guarantee, through affidavit or as the pensionary authority Section 3 Pension-cum Gratuity Scheme

Tajamul/CS | DB: Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

may require, the repayment of pensionary benefits to the missing person if subsequently he appears and makes any claim thereto.

(ii)The pensionary authority shall not be responsible for repayment of any pensionary benefits to the missing person which have already been paid to his spouse or family members who shall personally be responsible for satisfaction thereof on appearance of the missing person.

[Finance Division O.M. No. F. 2(1)-Reg. 6/97 dated 25-9-1997.]

This position has further been reinforced through the provincial Notification No.SOSR.III(FD)4-214/95 dated 22.05.199 forming part of Civil Servants Pension Rules and Orders, issued in continuation of Finance Division’s O.M No.

F.2(1)-Reg.697 dated 25.09.1997, whereby the competent authority for civil servants in the province of Khyber Pakhtunkhwa had extended the same concession, thereby removing any ambiguity with regard to the applicability of such benefit within the province. For the sake of brevity, the Notification is reproduced hereunder:

" SUBJECT: PAYMENT OF FAMILY PENSION IN

THE CASE OF PENSIONERS WHO

REMAIN MISING FOR 12 MONTHS.

In continuation of Finance Division's O.M.No.F.2(1)- Reg.6/97 dated 25.9.1997 on the above cited subject, the undersigned is directed to say that the concession admissible thereunder shall also be admissible in cases a pensioner remains missing or unheard of for a period of 12 months to the satisfaction of the Department concerned, family pension may be allowed to his heirs as admissible under the prescribe rules and subject to the condition mentioned in O.M. dated 25.9.1997 referred to above.”

Tajamul/CS | DB: Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

9.In order to determine the legal efficacy of the Office Memorandums alluded to in the present case, guidance can be drawn from the authoritative pronouncement of the Supreme Court of Pakistan in Muhammad Saleem v. Federal Public Service Commission and others3, wherein the apex Court has conclusively settled the status of such instruments.

It has been held that Office Memorandums are not mere administrative instructions but derive their legal force from the rule-making power delegated under Section 25 of the Civil Servants Act, 1973. Consequently, they stand on the same legal footing as statutory rules framed under the said provision and cannot be treated as subordinate thereto. The necessary corollary is that such Office Memorandums are binding in nature and must be given due effect, subject only to their consistency with the parent statute and the Constitution.

In the context of the present case, therefore, the Office Memorandums governing pensionary benefits, particularly those relating to missing employees, cannot be brushed aside as executive guidelines but must be enforced as part of the governing legal framework regulating service matters. For facility of reference, relevant portion of the afore-referred judgment is reproduced verbatim hereunder:

“16. If, as we have just concluded, the legal source from which the Office Memorandums emanate is the rule making power, it necessarily follows that they are co-equal with other rules framed in terms thereof, such as the APT Rules. In other words, they cannot be considered

2020 SCMR 221

Tajamul/CS | DB: Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

subordinate to such rules. It follows from this that the Office Memorandums cannot, in case of any inconsistency, be regarded as yielding to the rules otherwise made under section 25 (i.e., more formally with specific reference thereto). Since in the legal hierarchy they are of equal standing, the Office Memorandums and rules such as the APT Rules must be read together in a harmonized and consistent manner, to the maximum extent possible. It is only if there is an irreconcilable difference that the question of which will prevail would arise. And that question would have to be addressed by resort to well established rules of interpretation, including (but not limited to) those such as relating to earlier versus later in time, or general versus specific etc. Which particular rule(s) of interpretation would actually apply (and how) would depend on the actual provisions under consideration and the context in which they operate. However, with respect, the submission made by learned counsel for the appellant, that rules such as the APT Rules are (as it were) of a higher legal order or standing and will therefore always and automatically prevail over the Office Memorandums cannot be accepted. They are aspects of the same delegated power conferred by the 1973 Act on the Executive branch. It may be reiterated that it is the Legislative branch alone which has been conferred an independent and direct grant on the constitutional plane. Of course, the Office Memorandums cannot be inconsistent with the 1973 Act itself nor (ipso facto) the Constitution. But any such objection to them operates on a plane higher than their position vis-à-vis rules such as the APT Rules.”

10.It may further be added that the issue relating to family pension of a missing government employee has already been dealt with by the superior Courts. The Supreme Court of Pakistan in Perveen Shoukat v. Province of Sindh and others4, after undertaking an elaborate examination of the legal presumptions relating to missing persons, authoritatively held that the probable date of death of a missing civil servant can be determined on the basis of attending circumstances,

PLD 2019 SC 710

Tajamul/CS | DB: Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

and family pension is to be computed accordingly. The Court further directed recalculation of pensionary benefits from the date deemed to be the probable date of death, thereby affirming the right of the legal heirs to receive such benefits without being subjected to unnecessary procedural impediments. For facility of reference, the relevant observations are reproduced herein below:

“11. From the above discussion, it is evident that the probable time of death within seven year period can be independently visualized and declared by a court of law keeping in view the circumstances in which a person in a particular case went missing. Article 124 by itself is of no help in drawing the inference as to when within those seven years period the missing person might have died. We, therefore, hold that the family pension is to be calculated from the probable date of lodging of the FIR i.e.

12.For what has been discussed above, this petition is converted into appeal and partly allowed. The impugned judgment is set aside. The respondents are directed to recalculate family pension by treating the probable date of death of petitioner's husband to be 14.01.2000. The respondents are directed to complete the process of revising the pensionary benefits of the petitioner within two months from the date of this judgment. Before parting with the judgment, we appreciate the valuable assistance rendered to this Court by Mr. Shahid Anwar Bajwa, learned ASC who appeared as amicus curiae.”

Following the dictum laid down by the apex Court, this Court in Mst. Hajira Bibi v. Civil Admin Officer, PAF Base, Peshawar and others5 extended similar relief to the widow of a missing employee, holding that once it is established that the employee remained missing for the prescribed period and there is no evidence of willful absence, the family cannot be deprived of pensionary emoluments to which they are otherwise entitled under the rules. The Court

2020 PLC (C.S) 692

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pertinently observed that the dependents of a missing employee ought not to be compelled to “run from pillar to post” for securing a right already conferred by law. For brevity, the relevant paragraphs are reproduced herein below:

“9. While following the dictum of Hon'ble Supreme Court of Pakistan and applying the same test to the instant case, we would hold, that the first date of missing of husband of petitioner when he was shown absent without leave is 24.03.2016 and till that date, he remained in service for 24 years, 5 months and 22 days, so the respondents would not be in difficulty to recalculate the pensionary benefits and other emoluments of the husband of the petitioner. It is also admitted by the respondents that there is no trace of the husband of the petitioner to be assumed alive and there is no evidence that his absence is deliberate. Besides, the relevant rules applicable to the employees of Pakistan Air Force, as quoted in the comments/reply of the respondents, entitles family of a missing person who remains missing for 12 months. Since all the record is lying in the office of respondents and petitioner does not charge anyone, so she should not be made as scapegoat and made to run from pillar to post for a right bestowed by law.”

11.In this regard, we will also refer the judgment rendered by this Court in W.P No.1216-M/2025 titled “Mst.

Khan Bibi v. D.E.O (Male), Swat” decided on 10.03.2026, wherein it has already been held that disappearance of an employee in circumstances beyond his control cannot be equated with intentional abandonment of service, and that denial of pensionary benefits in such situations would amount to penalizing the legal heirs for no fault attributable to them. It was further emphasized that pensionary provisions are to be interpreted in a manner that advances fairness and justice rather than defeats it on technical grounds.

Tajamul/CS | DB: Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

12.Keeping in view the above-referred statutory provisions, executive instructions and the authoritative pronouncements of the superior Courts as well as the factual matrix peculiar to the present case, the refusal of the respondents to extend pensionary benefits to the petitioner cannot be sustained. Such denial is not only contrary to the settled legal position but also offends the well-established principles of fairness, equity and beneficial interpretation governing pensionary rights. It is by now firmly entrenched that pension is not a bounty but a vested right, and the rules relating thereto are to be construed liberally so as to advance the cause of justice and provide relief to the dependents of a civil servant, particularly in cases involving disappearance under circumstances beyond their control, rather than to defeat such entitlement on hyper-technical or procedural grounds.

13.It becomes evident from examination of the settled principles in juxtaposition with the facts of the present case that the absence of the employee cannot be categorized as willful, and the removal order, having been passed without establishing due process, cannot be allowed to defeat the substantive entitlement of the petitioner. The subsequent declaration of civil death vide order/judgment and decree dated 28.11.2024 lends further support to the petitioner’s case that the disappearance was an involuntary event and not a matter of choice. Consequently, for the purpose of Tajamul/CS | DB: Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

determining service benefits, the tenure of the deceased employee is to be reckoned from the date of his entry into service up to the date he is deemed to have died in the eyes of law. Any contrary approach would result in manifest injustice by depriving the petitioner of benefits flowing from the service rendered by her deceased husband.

14.For what has been discussed above, the instant writ petition is allowed. Consequently, the petitioner is declared entitled to family pension and all other consequential post-retirement benefits with effect from 28.11.2024, being the date on which the deceased employee is deemed to have died in the eyes of law or the date on which he would have ordinarily superannuated (whichever is earlier). The respondents are further directed to compute and release the aforesaid amounts strictly in accordance with law within a period of three months from the date of receipt of a copy of this judgment. There is no order as to costs.

Announced Dt:14.04.2026 -Sd-

JUDGE

-Sd-

JUDGE

Tajamul/CS | DB: Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah