Sajid Ali Khan & others Vs DEO(F) Dir Lower & others

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, MINGORA

BENCH (DAR-UL-QAZA), SWAT

(Judicial Department) W.P No. 203-M/2024 Sajid Ali Khan and others

Versus

District Education Officer (F), Dir Lower and others Present:

Muhammad Yar Malezai, ASC for petitioners.

Mr. Rahimullah Chitrali, Assistant A.G. for respondents.

Date of hearing: 10.06.2026 & 09.09.2026 Date of announcement: 21.10.2026

JUDGMENT

QAZI JAWAD EHSANULLAH, J.- Through the instant petition, the petitioners have called in question the denial of financial assistance by the respondents on account of the death of Mst. Beena Sajid, SST (BPS-16), while in service, as communicated through letter No.4347 dated 27.01.2023 issued by the office of respondent No.2, Director Elementary and Secondary Education, Khyber Pakhtunkhwa, Peshawar.

2.Precisely stated, Mst. Beena Sajid, wife of petitioner No.1 and mother of petitioners No.2 and 3, was initially appointed as Primary School Teacher (PST) on ad hoc basis Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

vide appointment order dated 07.03.2020. Subsequently, during service, she was appointed, again on ad hoc basis, as Secondary School Teacher (SST), BPS-16, vide order dated 16.04.2021 and was posted at GGHS Khanpur, District Dir Lower, where she continued to serve till her death on 18.02.2022. She was survived by petitioner No.1, her husband, and petitioners No.2 and 3, her minor son and daughter, respectively.

3.After her death, petitioner No.1 approached the departmental authorities for grant of financial assistance admissible to the family of a civil servant who dies while in service. The matter was forwarded by the District Education Officer (Female), Dir Lower, to the Director Elementary and Secondary Education, Khyber Pakhtunkhwa, vide letter No.9282 dated 24.12.2022. In response, the Directorate, through letter No.4347 dated 27.01.2023, regretted the request on the ground that the deceased employee's service had not been declared pensionable.

4.Petitioner No.1 thereafter sought information regarding the policy governing financial assistance to the family of a civil servant dying while in service and, upon receiving the relevant governmental notifications/circulars, again approached the authorities for release of the claimed Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

financial assistance, but without success. He, therefore, instituted the instant petition seeking release of the financial assistance admissible on account of the death of his wife while in service.

5.Respondent No.1, District Education Officer (Female), Dir Lower, contested the petition through para-wise comments. While admitting that Mst. Beena Sajid was appointed as SST (General), BPS-16, vide order dated 16.04.2021 and that she died during service, it was maintained that her appointment was purely on ad hoc/temporary and contractual basis and, therefore, she did not fall within the category of a civil servant. It was further pleaded that the financial assistance claimed by the petitioners is a compassionate grant meant for the family of a civil servant who dies while in service and, since the deceased was an ad hoc employee, her family was not entitled thereto under the prevailing Government policy. According to respondent No.1, civil servants are appointed under the Civil Servants Act, 1973, whereas ad hoc employees are appointed under Rule 14 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1989, temporarily till the arrival of regularly selected candidates through the Public Service Commission. The respondents also raised preliminary objections regarding locus Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

standi, cause of action, delay/laches and maintainability of the petition.

6.Respondent No.6, Secretary Finance Department, took substantially the same position. It was pleaded that, under the Provincial Government policy, financial assistance is admissible as a compassionate grant to support the family of a civil servant who dies while in service; however, since the deceased was appointed on ad hoc basis, her family did not qualify for such financial assistance under the prevailing policy. Respondent No.6 similarly drew a distinction between civil servants recruited under the Civil Servants Act, 1973 and ad hoc employees appointed under Rule 14 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1989.

It was further stated that the policies issued by the Finance Department from time to time had been circulated to all departments and were accessible to the public and that, on the petitioner's request, the requisite notifications had also been supplied to him.

7.Respondent No.7, Secretary Elementary and Secondary Education Department, did not file an independent factual response to the claim. Instead, through a reliance report, respondent No.7 expressly adopted and relied upon the better comments already filed by respondent No.1, requesting Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

that those comments be treated as his own response to the petition.

8.Arguments heard and record perused.

9.The record shows that Mst. Beena Sajid, wife of petitioner No.1 and mother of petitioners No.2 and 3, was initially appointed as Primary School Teacher (PST) on ad hoc basis vide order dated 07.03.2020. During the subsistence of her service, she was appointed as Secondary School Teacher (SST), BPS-16, vide order dated 16.04.2021 and was posted at GGHS Khanpur, District Dir Lower. She died on 18.02.2022 while still in service. The petitioners, being her dependents, claimed financial assistance/death compensation under the prevalent Government policy, but their claim was declined mainly on the premise that the deceased, having been appointed on ad hoc basis, was not a “civil servant” and, therefore, her family was not entitled to the claimed benefit. It is also the petitioners' case that the other teachers appointed along with the deceased were subsequently regularized.

10.The pivotal question that arises for determination is whether the deceased, merely because of the ad hoc nature of her appointment, could be excluded from the statutory definition of a “civil servant”, as contended by the Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

respondents. The answer to this question necessarily depends upon the interpretation of Section 2(b) of the Khyber Pakhtunkhwa Civil Servants Act, 1973, which defines the expression “civil servant” in the following terms:

“(b) "civil servant" means a person who is member of a civil service of the Province, or who holds a civil post in connection with the affairs of the Province, but does not include

(i)a person who is on deputation to the Province from the Federation or any other Province or other authority,

(ii)a person who is employed on contract, or on work-charged basis, or who is paid from contingences; or

(iii)a person who is a "worker" or "workman" as defined in the Factories Act, 1934 (Act XXV of 1934), or the Workman's Compensation Act, 1923 (Act VIII of 1923);”

A plain reading of the above provision reveals that the Legislature has adopted an inclusive definition of the expression “civil servant”, encompassing not only persons who are members of a civil service of the Province but also those who hold a civil post in connection with the affairs of the Province. The determining consideration, therefore, is not merely the nomenclature or temporary character of an appointment, but whether the person concerned holds a civil post and falls within any of the exclusions expressly prescribed by the statute. In the present case, it is not disputed that Mst. Beena Sajid was appointed as Secondary School Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

Teacher (SST), BPS-16, on ad hoc basis and was serving against a civil post in the Education Department of the Provincial Government at the time of her death. The post of SST traces its statutory origin to Section 4 of the Khyber Pakhtunkhwa Appointment, Deputation, Posting and Transfer of Teachers, Lecturers, Instructors and Doctors Regulatory Act, 2011, which contemplates appointments against such posts on regular as well as on ad hoc basis. Thus, the mere fact that her appointment was ad hoc did not, by itself, deprive the post held by her of its character as a civil post.

11.It is equally significant that, while defining the expression “civil servant”, the Legislature has consciously excluded certain specified categories of employees, namely, persons serving on deputation in the circumstances mentioned in clause (i), persons employed on contract or work-charged basis or paid from contingencies under clause (ii), and workers or workmen falling within clause (iii). An employee appointed on ad hoc basis does not find mention among these statutory exclusions. This omission assumes particular significance when examined in the context of Section 2(a) of the Khyber Pakhtunkhwa Civil Servants Act, 1973, wherein the Legislature has separately defined an “ad hoc appointment” as the appointment of a duly qualified person made otherwise Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

than in accordance with the prescribed method of recruitment, pending recruitment through the prescribed procedure. The statutory recognition of an ad hoc appointment as a distinct mode of recruitment clearly demonstrates that the Legislature has not treated an ad hoc appointee and a contractual employee as interchangeable categories. Had the legislative intention been to exclude ad hoc appointees from the definition of “civil servant”, nothing prevented the Legislature from expressly incorporating such exclusion alongside contractual and other specified categories. In the absence of any such express exclusion, the respondents cannot, by placing an ad hoc appointee on the same footing as a contractual employee, read into the provision a restriction which the Legislature itself has not imposed. Such an interpretation would amount to enlarging the scope of the statutory exclusions through administrative construction, which is impermissible. Consequently, the mere ad hoc nature of the deceased's appointment cannot, in itself, constitute a lawful basis for denying her the status of a civil servant within the meaning of Section 2(b) of the Act of 1973.

12.The position becomes still clearer when section 11 of the Khyber Pakhtunkhwa Civil Servants Act, 1973 is examined. Far from excluding an ad hoc appointee from the Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

class of civil servants, section 11 expressly regulates termination of the service of a “civil servant” appointed on ad hoc basis. The departmental plea that ad hoc status by itself destroys the status of a civil servant, therefore, runs contrary to the terminology consciously employed by the Legislature. For facility of reference, section 11 of the Khyber Pakhtunkhwa Civil Servants Act, 1973, which bears directly upon the controversy, is reproduced in extenso:

“11. Termination of services.—(1) The service of a civil servant may be terminated without notice,—

(i)during the initial or extended period of his probation:

Provided that, where such civil servant is appointed by promotion on probation or, as the case may be, is transferred from one service, cadre or post to another service, as he holds a lien against his former post in such service or cadre but he shall be reverted to his former service, cadre or post, as the case may be;

(ii)on the expiry of the initial or extended period of his employment; or

(iii)if the appointment is made ad hoc terminable on the appointment of a person on the recommendation of the selection authority, on the appointment of such person.

(2)Where, on the abolition of a post or reduction in the number of posts in a cadre or grade, the services of a civil servant are required to be terminated, the person whose services are terminated shall ordinarily be the one who is the most junior in such cadre or grade.

(3)Notwithstanding the provisions of sub-section (1), but subject to the provisions of sub-section (2), the service of a civil servant in temporary employment or appointed ad hoc shall be liable to termination on fourteen days’ notice or pay in lieu thereof.”

Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

[emphasis added]

The language employed in sub-sections (1)(iii) and (3) admits of little ambiguity. Sub-section (1) commences with the expression “the service of a civil servant” and clause

(iii)then deals specifically with a case where “the appointment is made ad hoc”. More explicitly still, sub-section (3) speaks of “the service of a civil servant in temporary employment or appointed ad hoc”. The Legislature, therefore, did not merely acknowledge the existence of ad hoc appointments; it expressly characterized a person appointed on such basis as a “civil servant” and prescribed the manner in which his or her service may be terminated.

13.This statutory construction has received authoritative endorsement from the Supreme Court in Controller of Military Accounts (RC) Education Cell, Rawalpindi v. Muhammad Zafar, Assistant Professor and another1. In that case, the plea was raised that the employee could not claim the benefit under consideration because the relevant post had earlier been held by him on ad hoc basis.

After examining section 11 of the Civil Servants Act, 1973, which is materially identical to section 11 of the Provincial Act, the Supreme Court held that the provisions constituted

2017 PLC (C.S.) 648/2017 SCMR 482

Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

ample proof that an ad hoc employee is regarded as a civil servant and that an ad hoc employee in Government service is to be treated as such. The Court also referred with approval to its earlier pronouncement in Muhammad Sarfraz v.

Government of Punjab2, wherein ad hoc employees serving the Government were similarly treated as civil servants.

14.Once the statute itself speaks of a “civil servant appointed ad hoc”, and the Supreme Court has authoritatively construed the same statutory expression, the contrary departmental construction cannot prevail. The contention that an ad hoc employee, solely by reason of the ad hoc character of his or her appointment, falls outside the definition of “civil servant” is, therefore, legally untenable.

15.With the status of an ad hoc employee as a “civil servant” thus settled, the next question requiring determination is whether the petitioners, being the dependents of the deceased, are entitled to death compensation under the applicable statutory scheme, particularly the Khyber Pakhtunkhwa Civil Servants Retirement Benefits and Death Compensation Act, 2014 (the Act of 2014). The Finance Department had earlier issued Circular No. FD(SOSR-II)4- 199/2013 dated 21.01.2014, titled “Financial Assistance to the

2001 PLC (C.S.) 1224

Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

Family of a Civil Servant Who Dies While in Service”3, modifying the earlier circular dated 16.02.2006. More importantly, the Act of 2014 provides the statutory framework for death compensation. Section 7 thereof deals with Retirement Benefits and Death Compensation Fund established under sub-section (1). The contributories of the said Fund are civil servants as well as the Provincial Government. Section 8(1) of the ibid Act ordains that every “civil servant” shall be liable to pay to the Fund such sum of money as prescribed in the Schedule or may be determined by the Board from time to time as contribution, and the amount of such contribution shall, as far as possible, be deducted at the source from his pay and credited or remitted to the Fund. For facility of reference, Sections 7 and 8 of the Act of 2014 are reproduced herein below:

7.Fund.---(1) There shall be established a Fund to be called the Retirement Benefits and Death Compensation Fund which shall vest in the Board and be administered by it.

(2)The Fund established under the Khyber Pakhtunkhwa Government Employees Welfare Fund Ordinance, 1969, shall be deemed to be a part of this Fund.

(3)All sums received from the civil servants as contribution for the Fund and any interest or profit accruing thereon and any grant by Government and any other amount related to the Fund shall be credited to the Fund.

Page 24 of the writ file

Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

(4)The moneys credited to the Fund shall be kept in such banks and financial institutions as the Board may decide.

8.Payment of contribution.---(1) Every civil servant shall be liable to pay to the Fund such sum of money as prescribed in the Schedule or may be determined by the Board from time to time as contribution and the amount of such contribution shall as far as possible be deducted at the source from his pay and credited or remitted to the Fund.

(2)In case of deduction of contribution at the source from the pay of a civil servant, the Accountant General, after compilation of accounts with all District Account offices and other offices, as the case may be, shall transfer the amount to the accounts of the Fund, up to the tenth day of each month.

(3)Where the amount of contribution cannot, for any reason, be deducted from the pay of the civil servant, the civil servant shall remit to the Fund, the sum of contribution payable by him, and any balance remaining unpaid due to inadvertence or negligence of the civil servant or otherwise shall be recoverable from him in such manner as may be prescribed.

(4)Default in the payment of contribution, either for the reason that the pay of the employee was not drawn or due to his negligence or fault or for any other reason whatsoever, shall not affect the right of the civil servant or his family to receive the amount of said benefit in the event of retirement or death of the civil servant.

(5)In case of proceeding on leave without pay, a civil servant shall pay the amount of his contribution through pay order, crossed cheque and in any other manner as may be prescribed.

(6)In case of retirement, the civil servant shall deposit to the Fund the unpaid amount and on the death of a civil servant the amount unpaid may be recovered from the amount admissible to him or his family, as the case may be.

[underlining added]

Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

16.It may be worth noting that in the present case, the pay slip4 of the deceased reflects a deduction of Rs.650/- under the head “Retirement Benefits and Death Compensation” (Code 4004). Had she not been a “civil servant”, she would not have been required to contribute to the Fund; yet, her service was subjected to regular contributions towards the very Fund from which death compensation is payable. Having received such contribution from her salary, denial of the corresponding statutory benefit to her family solely on the ground that her appointment was ad hoc would require clear support from the governing law. No provision imposing such an exclusion has been pointed out by the respondents.

17.There is a further distinction which appears to have escaped the attention of the respondents. The benefit presently claimed is not an ordinary pension payable upon retirement and dependent upon completion of a prescribed period of qualifying service. It is death compensation, the very occasion for accrual of which is the death of a civil servant while still in service. Section 9(3) of the Act of 2014 does not condition such payment upon the deceased having completed a minimum number of years of service. Consequently, the Page 27 of the writ file

Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

reason initially communicated through letter dated 27.01.2023 that the deceased's service had not been declared pensionable, does not answer the statutory claim now before us.

Pensionability of service and entitlement of the family to death compensation under section 9(3) are distinct questions and cannot be conflated.

18.The distinction is also consistent with the principle enunciated by the Supreme Court in Chief Secretary, Government of Punjab and others v. Ch. Iftikhar Ahmad 5. The Supreme Court observed that although terms and conditions of service which are personal to a civil servant may come to an end with his or her death, peculiar benefits to which the legal heirs become entitled do not abate. The principle has direct relevance here because death compensation is not a benefit which the deceased could have enjoyed during her lifetime; it arises by operation of law on death while in service and is expressly intended for the family left behind.

19.The circumstance that other teachers appointed along with the deceased are stated to have subsequently been regularized does not, by itself, justify a declaration that the deceased must be deemed to have been posthumously regularized. Nor is such a declaration necessary for deciding

2013 SCMR 392

Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

the controversy before us. The petitioners' claim rests upon a narrower and firmer statutory footing: whether Mst. Beena Sajid, while serving on ad hoc basis against the civil post of SST (BPS-16), was a civil servant for purposes of the relevant death-compensation regime. For the reasons already recorded, that question has already been answered in the affirmative.

Her post was admittedly a civil post in connection with the affairs of the Province; an ad hoc appointment is separately recognized by the Civil Servants Act, 1973; ad hoc appointees are not included in the exclusions contained in section 2(b);

section 11 expressly refers to a “civil servant ... appointed ad hoc”; and the Supreme Court has authoritatively held that an ad hoc Government employee is to be treated as a civil servant.

20.Even otherwise, where persons falling within the same legally relevant class are accorded different service- related pecuniary benefits, the differentiation must rest upon an intelligible and lawful basis having a rational nexus with the object sought to be achieved. A classification founded merely upon a distinction which the governing statute itself does not recognize for the purpose in question cannot sustain differential treatment. Reference in this regard may also be made to Secretary Finance, Government of Khyber Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

Pakhtunkhwa, Peshawar and another v. Syed Jehangir Shah and others6, wherein the Supreme Court reiterated that differential treatment in service benefits must rest upon a reasonable classification and cannot offend the constitutional guarantee of equality.

21.When the matter is viewed cumulatively, the following features stand established: Mst. Beena Sajid was serving as SST (BPS-16) against a civil post when she died;

the definition contained in section 2(b) of the Civil Servants Act, 1973 does not exclude an employee merely on account of an ad hoc appointment; the Act separately defines and recognizes ad hoc appointment; section 11 expressly treats a person appointed ad hoc as a civil servant; the Supreme Court has authoritatively recognized the same legal position; section 9(3) of the Act of 2014 does not prescribe a minimum qualifying length of service for death compensation; and contribution towards the Retirement Benefits and Death Compensation Fund was in fact being deducted from the salary of the deceased.

22.The respondents have not pointed out any statutory provision which deprives an ad hoc civil servant's family of the benefit payable upon death while in service.

2024 SCMR 538

Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

Their entire defence proceeds from the assumption that an ad hoc appointee and a contractual employee stand on the same statutory footing. That assumption is contrary to the express language of sections 2 and 11 of the Civil Servants Act, 1973.

An executive authority cannot, by administrative interpretation, enlarge the exclusions expressly enacted by the Legislature.

23.The preliminary objections raised by the respondents are equally without substance. The petitioners are the husband and minor children of the deceased employee and are the very persons for whose benefit the death-compensation regime operates; their locus standi is, therefore, beyond question. A definite cause of action accrued when their claim was declined vide letter dated 27.01.2023. The record further shows that petitioner No.1 continued pursuing the matter before the departmental authorities and sought the relevant policies/notifications before approaching this Court; hence no such unexplained delay or laches is made out as would disentitle the petitioners from enforcement of a continuing monetary/statutory claim. The essential facts are admitted, and the controversy is predominantly one of statutory interpretation. The objection to maintainability, therefore, also fails. For all these reasons, the respondents were not justified in declining the petitioners' claim solely on the ground that Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

Mst. Beena Sajid was serving on ad hoc basis at the time of her death.

24.Consequently, this petition is allowed. Letter No.4347 dated 27.01.2023, to the extent it declines the petitioners' claim on the ground that the deceased was not entitled to the benefit owing to the nature/pensionable status of her service, is declared to be without lawful authority and of no legal effect. The petitioners, being the family/dependents of late Mst. Beena Sajid, are held entitled to such death compensation/financial assistance as is admissible under the applicable statutory regime and Government policy governing a civil servant of BPS-16 who dies while in service. The respondents are directed to process the petitioners' claim and release the amount lawfully admissible to them, after verification of the requisite particulars and without reopening the question of the deceased's eligibility merely on the ground that her appointment was ad hoc. The process shall be completed within a period of two months from receipt of a certified copy of this judgment. The petition stands disposed of in the above terms.

Announced -Sd- Dt:21.10.2026 JUDGE

-Sd-

JUDGE

Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah