2018 PLP (C (PLC(CS)N)

ABDUL SHAKOOR, J.

Through the instant constitutional petition, the petitioner seeks the following relief:- "It is most humbly prayed that on acceptance of the instant writ petition, respondent especially respondent No.4 be directed to release pension payment order, commuted value of pension, encashment of leave pending retirement (LPR) in favour of the petitioner along with in favour of the petitioner forthwith along with interest on bank rate w-e-f the date of retirement onward and any other relief which this Hon'ble Court deem appropriate may also be granted to the petitioner."

2. Brief facts of the instant writ petition are that petitioner was appointed as Chowkidar in BHU, Pando Thana District Abbottabad on fixed pay through order dated 17.1.1993. The respondents retired the petitioner from service on superannuation on the basis of date of birth mentioned in the CNIC i.e. 1950 whereas the petitioner should have retired from service on the basis of date of birth recorded in the service book i.e. 17.9.1957, therefore, the actual date of retirement of petitioner comes to 17.9.2017 and not 17.9.2011. Thereafter respondent No.3 sanctioned monthly pension and commuted value of pension of the petitioner w.e.f. 18.9.2011 and forwarded the same to respondent No.4 for issuance of pension payment order and remittance of cheque of commuted value of pension to the petitioner but the respondent No.3 did not grant the same to the petitioner on the ground that the petitioner was a contract employee and is not entitled for any pensionary benefits. The Government of Khyber Pakhtunkhwa has already converted the contract services of all employees into regular service but the respondent No.4 is not issuing pension payment order and commutation cheque, hence the petitioner filed the instant writ petition. 3 On 19.2.2014 comments were called from the respondents Nos.2 to 4, which were so submitted and on 22.10.2014, the instant writ petition was admitted for regular hearing on the following terms; "Inter alia, contends that denial pension to the petitioner is in violation of Rule-2.2 of Pension Rules, 1963, wherein it has been stated that entitlement to pension is from the date of joining the service. Points raised need consideration. The petition is admitted to regular hearing. Notice and record."

4. Learned counsel appearing on behalf of the petitioner confined his arguments to the extent of non-payment of pensionary benefits to the petitioner with effect from date of his first appointment dated 17.1.1993 and argued that petitioner after being regularized in terms of order dated 29.1.2008 of Government Khyber Pakhtunkhwa, thus under Rule 2.2 of West Pakistan Civil Services Pension Rules, 1963 had become entitled to be paid pensionary benefit with effect from 17.1.1993. In view of the above, the respondents having no lawful authority to deny the pensionary benefits to the petitioner on the basis of minutes dated 03.2.2014. He further contended that the minutes referred above on the strength of which the petitioner has been denied the pensionary benefit with effect from his appointment on 17.1.1993 having no legal backing and force. He also submitted that in the said meeting it was simply held that status quo be maintained for avoiding the payment of pensionary benefits to all those Class-IV employees of Government Khyber Pakhtunkhwa, whose services have been regularized by aforesaid order of Government of Khyber Pakhtunkhwa of the year 2008 and the same was issued in the interest of provincial exchequer.

5. On the other hand, learned Additional Advocate General appearing on behalf of respondents supported the stance of respondents for payment of pensionary benefits from date of regularization of petitioner.

6. This Court has considered the submissions of learned counsel for the parties and carefully examined the record available on the file.

7. Before proceeding further, we deem it advantageous to reproduce the Rule 2.2 of West Pakistan Civil Services Pension Rules, 1963 and contents of order dated 29.1.2008 of Government Khyber Pakhtunkhwa as under:- "2.2 Beginning of service.- Subject to any special rules the service of Government servant begins to qualify for pension when he takes over charge of the post to which he is first appointed." From perusal of above referred ruled as well as contents of order dated 29.1.2008 it is crystal clear that the present petitioner after being regularized in his services in the year 2008 had become entitled to be paid pensionary benefits from the date of his first appointment.

8. The defence which has been advanced for non-payment of pensionary benefits of the petitioner on the basis of minutes dated 03.2.2014 is not valid and just. The same defence of respondent was mere an eye wash to deny the petitioner from his legal pensionary benefits from the date of his first appointment. This Court in no way can approve such act of the respondents for denying the pensionary benefits to petitioner, which is his legal right, for which he was entitled from the date of his first appointment. We may mention here, while perusing West Pakistan Civil Services Pension Rules, 1968, come across with rule 2.3, which clearly states that temporary and officiating service followed by confirmation shall also count for pension or gratuity. Thus, the petitioner is also entitled to be paid pensionary benefits under this rule as well.

9. As there is no denial of the fact that petitioner was initially appointed on fixed pay and subsequently his services were regularized, hence in view of Rule 2.3 West Pakistan Civil Services Pension Rules, 1968 the petitioner is to be paid pensionary benefits from the date of his first appointment. It is well settled law, when any employee on contract is absorbed into regular employment, and there is no break in his service, then period on contract employment has to be considered for counting length of service for pensionary benefits etc. Reliance is placed on (2010 PLC 354), where it is held that:- "When an employee was regularized his total length of service, was to be computed from the day he joined the service that could be temporary or otherwise. Even period of an employee of daily wages would be counted for the purpose of computing pensionary benefits."

10. In the light of what has been discussed above, we allow this writ petition and issue direction to the respondents to pay pensionary benefit to the petitioner from the date of his first appointment. ZC/19/P Petition allowed.