2013 PLP 392 (SCMR)

NASIR-UL-MULK, J.

The Government of Punjab is aggrieved of the judgment of the Lahore High Court passed in Intra Court Appeal No.893 of 2010 whereby the judgment of the learned Judge-in-Chambers was set aside and the petition filed by respondent, Ch. Iftikhar Ahmad, husband of (late) Mst. Akhtar Tufail was allowed and it was declared that her appointment as ad hoc lecturer was deemed to have been regularized and consequently the respondent being her legal heir would be entitled to the pensionery benefits of his late wife.

2. The late Mst. Akhtar Tufail was appointed as ad hoc lecturer in the year 1985 and a year later, the Government of Punjab terminated the services of all ad hoc lecturers including that of Mst. Akhtar Tufail. She, thereafter, rejoined her previous service as senior school teacher. However, in the year 1989, the Government of Punjab recalled the orders of termination of the ad hoc lecturers and directed all such ad hoc appointees to appear before the Special Selection Board constituted by the Government to interview and assess the suitability of the lecturers for holding the posts. While this was being done, Mst. Akhtar Tufail was posted as lecturer at the Government Girls College Patoki. She did not appear before the Special Selection Board. In the year 1995 the Director Public Institutions (Colleges), Punjab, recommended her for regularization but her request was not honoured. She made a number of representations and eventually moved the Punjab Service Tribunal. By then, the Special Selection Board had been disbanded but the Tribunal on 5-5-2007 directed the. Chief Secretary and the Secretary Education Punjab to consider reconstitution of the Special Selection Board to assess the suitability of Mst. Akhtar Tufail for regularization of her services. The direction so given was not complied with despite a number of applications made by Mst, Akhtar Tufail before the Tribunal for the implementation of its earlier direction. She died in the year 2010 without getting any relief. The matter was pursued by the respondent, husband of Mst. Akhtar Tufail, praying for regularization of 28 years service of his late wife as ad hoc lecturer in order that he may benefit from the pension. Failing to get any relief from the administration, he filed constitution petition before the Lahore High Court.

3. The learned Additional Advocate-General, Punjab submitted that Mst. Akhtar Tufail's services could not be regularized as she did not appear before the Special Selection Board and that her application for regularization submitted to the Secretary Higher Education was made belatedly and on that score was turned down. On the legal plane, the learned Law Officer contended that upon the death of Mst. Akhtar Tufail, her case before the Tribunal abated and the respondent, her husband, had no locus standi to pursue the matter by filing constitution petition. That it is settled that any matter pending before the Tribunal or Court relating to the terms and conditions of a civil servant abates upon his or her death.

4. The High Court declared that Mst. Akhtar Tufail was entitled to have her services regularized as some other ad hoc appointees were regularized though they did not appear before the Special Selection Board. When asked, the learned Law Officer did not dispute this fact. He further admitted that had Mst. Akhtar Tufail been alive she would have been entitled to have her services regularized on the ground of discrimination. That being so, the only question that remains is whether the right of Mst. Akhtar Tufail regarding benefits of her terms and conditions of service was inheritable by her husband? The principle laid down in the judgments cited by the learned Law Officer is inapplicable to the facts of the present case. In the case Muhammad Nawaz v. Ministry of Finance (1991 SCMR 1192) the matter before the Service Tribunal of a civil servant related to some special pay claimed by him on account of his previous service in the Pakistan Army. During the pendency of his appeal he passed away and the Tribunal held his appeal abated. The Supreme Court upheld the decision of the Tribunal on the ground that the Service Tribunal Act read with the Civil Servants Act did not make any provision for the legal heirs of a deceased civil servant to pursue a pending appeal. In the other case of Muhammad Ashfaq v. Member (Revenue) Board of Revenue (PLD 2008 SC 703) the principle laid down in the case of Muhammad Nawaz (ibid) was followed. The civil servant died during the pendency of his appeal before the Service Tribunal against his dismissal from service. Upon his death his appeal was abated and his legal heirs applied 13 years later for restoration of the appeal. The Supreme Court upheld abatement on two grounds, namely, time limitation and that there was no remedy available under the Civil Servants Act for legal heirs to pursue the appeal of his predecessor-in-interest. In the case before us, the Tribunal had already disposed off the appeal of Mst. Akhtar Tufail directing the competent authority to constitute a Selection Board for her appearance and it was during the application for implementation of the decision that she passed away. The High Court took the view that since the services of other ad hoc lecturers similarly placed as Mst. Akhtar Tufail have been regularized without their appearance before the Selection Board she was also entitled to the same treatment. The question, therefore, is whether upon death of Mst. Akhtar Tufail, the petitioner, husband can claim her pensionary benefits. Though other terms and conditions of the services of a civil servant may abate upon his death but not peculiar benefits to which the legal heirs would become entitled. In this view of the matter, the petition has no merits, which is dismissed and leave declined. MWA/C-12/SC Petition dismissed.