1999 PLP (C (PLC(CS))

MUHAMMAD AYUB KHAN (MEMBER) ‑‑‑Arguments have been heard and record perused.

2. We intend to dispose of all the aforesaid seven appeals by a Single Judgment recorded in Appeal No. 308(P) of 1997; all the appeals are identical on factual and legal issues.

3. The question for consideration in all the appeals is as to whether the appellants are entitled to pensionary benefits in view of two conflicting views of the Honourable Supreme Court of Pakistan contained in 1994 SCMR 546 and the unpublished judgments, dated 7‑2‑1994 and 7‑10‑1998 respectively.

4. All the appellants were appointed as Malaria Supervisers by respondent No.2 in the Afghan Refugees Organization and as such they continued to serve till their services were terminated by the competent Authority. However, their dates of appointment and termination from services are mentioned below against the name of each of the appellant: SI.NO. Name of the appellant Date of appointment Date of termination

1. Rehmatullah 3‑9‑1981 1‑12‑1994

2. Naeemullah 15‑7‑1981 16‑12‑1993

3. Abdul Jamil 17‑12‑1982 31‑12‑1993

4. Gulfam Hussain 12‑7‑1981 29‑8‑1994

5. Khisro 15‑7‑1981 29‑8‑1994

6. Muhammad Afzal 24‑10‑1984 30‑10‑1994

7. Said Rehman 23‑7‑1981 16‑12‑1993

5. The respondents have hotly contested the appeals by filing the parawise comments/objections wherein it has been averred that the services of the appellants were on contract basis regularly renewed six monthly in the exigency of public service under the "Health Project" and the Afghan Refugees Organization is directly sponsored and paid by the UNHCR and as such the appellants were not civil servants and for that reason could not invoke jurisdiction of this Tribunal.

6. It has further been averred that the appellants have challenged their termination orders after lapse of more than 3‑1/2 years and as such the appeals are hopelessly time‑barred and that against the fresh termination orders no formal departmental appeals have been preferred, but the earlier combined departmental appeals has been annexed to the appeal, which too is a photostat copy and not an original one and due to this reason the departmental appeals and the service appeals based thereon are incompetent and the present service appeal are misconceived for the reason that the appellants have already accepted and received their benefits accrued to them at the relevant time and hence they are estopped to claim the same afresh. '

7. It is further averred that the "Project of Health" for Afghan Refugees was sponsored by the UNHCR and none of the employees, running in thousands, was either entitled to or given any pensioners benefits and more so all the appellants were appointed purely on contract basis temporarily. The facts agitated under the heading "Grounds of Appeal" are also misconceived; all the appellants being contract employees are not legally entitled to any pension under CSR.371‑A, which applies to civil servants only.

8. In view of the aforesaid discussion now it is just and proper to refer to the various judgments concerning the employees of Afghan Refugees Organization and in this respect the first judgment is contained in 1994 SCMR 546 which was delivered on 23‑11‑1993 vide which, while maintaining the judgment, dated 5‑5‑1993 by the Federal Service Tribunal in Appeal No.84‑P of 1993, leave to appeal was refused and resultantly the petition of Alam Zeb Khan v. Commissioner Afghan, Refugees, N.W.F.P., Peshawar and two others was dismissed. The ratio decidendi arrived at was that the appellants were appointed purely on contract basis temporarily for a period of two years and as such were not civil servants within the meaning of section 2(1)(b) of the Civil Servants Act, 1973, and the following persons have specifically been excluded from the definition of "Civil Servant: ‑‑ (i) A person who is on deputation to the Federation from any Province or Authority; (ii) a person who is employed on contract, or on work‑charged basis or who is paid from contingencies; No doubt a temporary employee when happens to be a civil servant, is eligible for confirmation but against a permanent post and not the otherwise as per section 7(3) of the said Act, which reads.‑‑ "There shall be no confirmation against any temporary post. " It means that even a civil servant having become regular after extended period of probation (two years in all), is not entitled to be confirmed when the post or organization, in which working, is not permanent not to speak of contract or ad hoc employees who are not even considered as civil servants except that they are Government servants unless and until they are working as such on contract or ad hoc basis, as the case may be. The Civil Service Regulations, governing pension and pensionary benefits, apply to civil servants and not to other Government servants as ad hoc or contract employees.

9. A temporary employee inclusive of ad hoc and contract employees cannot ipso facto be considered as regular and in this respect the competent Authority is required to apply his mind to the facts of each case whether in the given circumstances/situation an incumbent can be confirmed or otherwise and such confirmation is always made against a permanent post or project/organization if initially temporary was subsequently made permanent and this rehearsal is further heavily linked with the allotment of funds under the relevant "Budget Head". In certain organizations some posts are permanent while in the others otherwise temporary but the budget allocations of which are specifically shown separately than the regular budget posts. Courts on account of abundant precaution do not enter into this aspect of the matter when not specifically came under consideration in which case it can be determined whether some posts are permanent and then an incumbent can be given a proper treatment, as the case may be

10. It was stated before the Honourable Supreme Court of Pakistan on behalf of the petitioner Alam Zeb Khan that his employment in the Afghan Refugees Organization was for an indefinite period, therefore, he should be treated as temporary employee who was entitled to all the benefits under the Civil Servants Act but the Honourable Judges observed: ‑‑ "We have gone through the order of appointment produced by the petitioner in the case, which specifically described the appointment of the petitioner as on temporary basis and on contract of two years. In these circumstances no exception can be taken to the order passed by the Service Tribunal. The petition is, accordingly, dismissed and leave to appeal is refused. " This judgment was delivered on 23‑11‑1993, earlier mentioned, and accordingly published in 1994 SCMR

546. In the latest judgment, dated 7‑10‑1998 the said published judgment was followed by the Honourable Supreme Court as a result of which Civil Petitions Nos.256 of 1998, 257 of 1998 and 302 of 1998 filed by Muhammad Hussain, Ex‑Malaria Superviser, Sakhi Rehman and Ihsanullah Khan were also dismissed and leave to appeal was refused. The relevant portion of the judgment reads: ‑‑ "In the precedent of Mir Ahmad Khan (supra) this Court had held that those civil servants who had put in ten years temporary service, in any Government Department or Organization were entitled to; pensionary benefits. The petitioners, on the other hand, were not civil servants' within the meaning of section 2(1)(b) of the Civil Servants Act, 1973, inasmuch as they were appointed on contract basis in contradistinction to their employment on temporary basis who were entitled to such pensionary benefits under CSR 371‑A. In this context, reference may profitably be made to precedent of this Court in Alam Zeb Khan v. Commissioner, Afghan Refugees, N.W.F.P., Peshawar and 2 others (1994 SCMR 546) wherein a Full Bench of this Court had repelled a similar contention and observed as under: ‑ At is contended on behalf of the petitioner that the petitioner's employment in the Afghan Refugees Organization was for an indefinite period, therefore, he should be treated as temporary employee who was entitled to all the benefits under the Civil Servants Act. We have gone through the order of appointment produced by the petitioner in the case, which specifically described the appointment of the petitioner as on temporary basis and on; contract of two years. In these circumstances no exception can be id, taken to the order passed by the Service Tribunal. The petition is, accordingly, dismissed and leave to appeal is refused. (7) In view of the principle enunciated in the case of Alam Zeb Khan (supra), no possible exception can be taken to the impugned order. The petitions for leave to appeal are, therefore, dismissed."

11. However, a contrary view appears to have been taken by the Honourable Supreme Court of Pakistan in its unpublished (not approved for reporting) judgment, dated 7‑2‑1994 on the assumption that the employees of Afghan Refugees Organization having rendered service for ten years and above have become civil servants within the meaning of Civil Servants Act, 1973, which assumption, it appears is not according to law for the obvious reason that the Organization of Afghan Refugees is to cater the needs of the Afghan Refugees and is financed by the foreign agency, UNHCR etc. under various heads such as "Education Project, Health Project" etc. and of late the donor countries/organizations are reluctant to further finance some of the projects which necessarily resulted in down sizing and retrenchment of the (Sardar Said Muhammad Khan, CJ) various projects and consequently rendering all the employees as "surplus" which had to be "terminated" on the principle that:‑‑ "what cannot be cured the unpleasant results must be endured" in the shape of termination of services of the concerned employees.

12. Pursuant to the aforesaid discussion and while following the law enunciated by the Honourable Supreme Court of Pakistan in the case reported as 1994 SCMR 546, the present appeals fail on merits as well as on point of limitation and are hereby dismissed leaving the parties to bear their own costs. All concerned may be informed accordingly. H.B.T./313/FS(Trib) Appeal dismissed.