Mst. Saira Uzair Vs Govt of KP

PESHAWAR HIGH COURT, PESHAWAR

FORM OF ORDER SHEET

Date of Order Order/Proceedings with Signature of Judge. or Proceedings 15.09.2026 WP No.13739-P/2026

Present:

Miss Sadia Siddiqui, Advocate, for the petitioner.

Mr. Alam Khan Adinzai, AAG, for the respondents.

KAMRAN HAYAT MIANKHEL, J.- The petitioner (Saira Uzair), widow of Muhammad Uzair Siddiqui, deceased Driver (BPS-06), has invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, seeking a direction to the respondents to treat the period commencing from 01.07.2013, i.e. the date of first appointment of her deceased husband, as qualifying service for the purpose of grant of family pension and other pensionary benefits.

2.The brief facts, as narrated in the petition, are that the deceased husband of the petitioner was initially appointed as Driver (BPS-06) on fixed-pay basis in the project titled “Value Addition/R&D Works on Ores Minerals in Khyber Pakhtunkhwa” being implemented by the Minerals Testing Laboratory, vide office order dated 01.07.2013. He submitted his arrival report and commenced his duties on the same date. Subsequently, pursuant to the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2018, his services were regularized by the competent authority with effect from 07.03.2018. Thus, according to the petitioner herself, the

deceased rendered fixed-pay/contractual service from 01.07.2013 to 06.03.2018, followed by regular service from 07.03.2018.

3.The deceased unfortunately expired on 08.11.2025. Thereafter, the petitioner approached the competent authority for grant of family pension and other pensionary benefits. Her claim, however, was declined by the respondents, whereafter she approached this Court contending, inter alia, that the period of fixed-pay service preceding regularization was liable to be counted towards pensionary benefits. In support of her contention, learned counsel for the petitioner has principally relied upon the judgment of the august Supreme Court of Pakistan reported as Chairman/Dean Sheikh Zayed Hospital, Lahore v. Amjad Mehmood Khan (2025 SCMR 168).

4.Learned counsel for the petitioner has argued that the deceased had continuously served the department from 01.07.2013 until his death on 08.11.2025; that there was no break or interruption between his fixed-pay service and subsequent regular service; that his services were ultimately regularized by the competent authority; and that, therefore, the entire period from his initial appointment ought to be reckoned for determining his pensionary entitlement. It has further been contended that the right to pension is a legal right and cannot be denied except in accordance with law.

5.We have considered the submissions advanced at the bar and have gone through the material placed on record. The question which falls for determination is narrow but fundamental, namely, whether the contractual/fixed-pay service rendered by the deceased prior to his regularization can be aggregated with his regular service so as to enable

him to attain the minimum qualifying period required for entitlement to pension.

6.The answer to this question is furnished by the very judgment of the august Supreme Court upon which reliance has been placed by the petitioner. The reported case of Chairman/Dean Sheikh Zayed Hospital, Lahore v. Amjad Mehmood Khan (2025 SCMR 168) is of no help to the petitioner as in that judgment the principle so settled in PLD 2016 SC 534 has been endorsed. In the ibid judgment, the petitioner was having regular qualifying service of ten (10) years entitling him for pensionary benefits and that is why the relief of Article 371-A of the Civil Service Regulations (CSR) was extended to him.

7.The Supreme Court of Pakistan, while referring to its earlier judgment in Chairman, Pakistan Railway, Government of Pakistan, Islamabad and others v. Shah Jehan Shah (PLD 2016 SC 534) and subsequently to Ministry of Finance through Secretary and others v. Syed Afroz Akhtar Rizvi and others (2021 SCMR 1546), expressly explained the distinction between eligibility for pension and calculation of pensionary benefits; in the following manner: -

“6.....An analysis of the said provisions and judgments of this Court more specifically a relatively recent judgment of this Court in Shah Jahan Shah’s case shows that the following general principles apply to employees who have worked against contractual posts which were subsequently converted into regular posts for the purpose of grant and calculation of pension:

An employee who was employed on contractual basis and is subsequently regularized may be entitled to pensionary benefits provided:

i. he is eligible for pension having served for the qualifying period (10 years) as a regular employee.

ii. for the purpose of calculating pensionary benefits his service as a contractual employee can be factored in to provide him any financial benefit that may be due to him. iii. the period spent in employment as a contractual employee and as a regular employee cannot be aggregated in order to determine his eligibility for entitlement to pension.

iv. eligibility to receive pension is directly related to rendering qualifying service as regular employee. Unless an employee has performed services in a regular appointment for the duration of the qualifying period (10 years), he is not entitled to receive pension.”

8.The august Supreme Court, while interpreting Article 371-A of the CSR, has specifically observed that the provision cannot be used as a means to bypass the conditions relating to qualifying service. It was held that the temporary service may be added or included for the purposes of pensionary benefits, but it does not, by itself, make a government servant qualify for pension. The Court further referred to the settled position that an employee who has been appointed on contractual basis and is subsequently regularized may be entitled to pensionary benefits provided that he is otherwise eligible for pension by having rendered the requisite qualifying period as a regular employee.

9.The Supreme Court thereafter stated the legal position in explicit terms: contractual service can be factored in for providing financial benefit in the calculation of pension, but contractual and regular service cannot be aggregated for determining eligibility to pension. Eligibility remains directly related to rendering the requisite qualifying service as a regular employee. Unless the employee has performed service under a regular appointment for the prescribed qualifying period, he does not become entitled to pension merely by adding his contractual service to his regular service.

10.Tested on the touchstone of the above principle, the claim of the petitioner does not withstand scrutiny. The petition itself discloses that the deceased husband was appointed on fixed-pay basis on 01.07.2013 and that his services were regularized with effect from 07.03.2018. He thereafter remained in regular service until his death on 08.11.2025. Consequently, his regular service from 07.03.2018 to 08.11.2025 comes to approximately seven years and eight months.

11.Thus, irrespective of the fact that the deceased had rendered an additional period of approximately four years and eight months on fixed-pay basis prior to regularization, his regular service, considered independently, remained below the minimum qualifying period of ten years required for pensionary entitlement under the principle laid down in the judgments relied upon by the petitioner herself.

12.The petitioner's entire case proceeds upon the assumption that because the fixed-pay service was continuous and was followed by regularization without any break, the entire period from 01.07.2013 could be treated as qualifying service so as to bring the deceased within the minimum period required for pension. Such proposition, however, is contrary to the ratio of the judgments cited in the petition. The absence of a break between contractual and regular service may satisfy the condition for counting the contractual period in the calculation of pensionary benefits where the employee is otherwise eligible; it does not convert the contractual period into regular qualifying service for the purpose of establishing the very eligibility to pension.

13.This Court is conscious of the fact that the deceased served the department for a considerable period and that the petitioner is his widow seeking family

pension after his demise. The sympathetic circumstances, however, cannot substitute the statutory conditions governing entitlement to pension. Pensionary benefits are regulated by the applicable service rules, and constitutional jurisdiction cannot be exercised to confer an entitlement contrary to the governing law.

14.The reliance placed by the petitioner upon Rule 3(2) of the Khyber Pakhtunkhwa Civil Servant Pension Rules, 2021, also does not advance her case. Even if the date of commencement of service is relevant for determining the period of service, such provision cannot be interpreted in isolation so as to nullify the distinction between regular qualifying service and temporary/contractual service recognized by the governing pension law and the authoritative pronouncements of the august Supreme Court.

15.Likewise, the petitioner's reliance upon Article 25 of the Constitution, the principle of protection of law under Article 4, or the doctrine of legitimate expectation cannot confer a substantive pensionary right where the essential statutory conditions for entitlement have not been fulfilled. Equality before law does not mean that a person can be granted a benefit contrary to the applicable statutory framework.

16.The judgment of the august Supreme Court reported as 2025 SCMR 168 itself makes the legal position sufficiently clear. The contractual period may be included in the computation of pensionary benefits where the employee is otherwise eligible for pension and the conditions of Article 371-A are fulfilled. The judgment does not authorize aggregation of contractual and regular service for the purpose of acquiring eligibility where the requisite qualifying period of regular service has not independently been completed.

17.It is, therefore, evident from the petitioner's own showing that the deceased husband had regular service of less than ten years. The contractual/fixed-pay service preceding his regularization cannot be utilized to bridge the deficiency in the requisite regular qualifying service.

18.The petitioner has not been able to point out any rule, statutory provision, or binding precedent which entitles an employee, who has less than the prescribed period of regular qualifying service, to aggregate his contractual/fixed-pay service with his regular service for the sole purpose of acquiring pensionary eligibility. The grievance raised by the petitioner, therefore, does not disclose any violation of law warranting interference by this Court in its constitutional jurisdiction.

19.For what has been discussed above, we are of the considered view that the impugned refusal of the respondents to grant family pension on the basis claimed by the petitioner cannot be said to suffer from any jurisdictional defect, illegality or violation of the law. The petitioner has misconstrued the ratio of 2025 SCMR 168, which is applicable to the calculation of pensionary benefits of an employee who is otherwise eligible for pension and does not permit contractual service to be aggregated with regular service for creating pensionary eligibility.

20.Consequently, the instant constitutional petition, being devoid of merit, is dismissed in limine.

Announced;

JUDGE

JUDGE

Amjad PS DB Justice Muhammad Naeem Anwar & Justice Kamran Hayat Miankhel