Mir AHMAD KHAN vs SECRETARY TO GOVERNMENT And Other

MANZOOR HUSSAIN SIAL. J.--Facts of the case are that on 6-12-1980, the appellant was appointed as Senior- Clerk in Afghan Refugees Organization, lie was promoted on 29-12-1985, as Assistant. On 27-3-1991, vide office order,' services of various officials of different categories were terminated with effect from 31-3-1991, but the appellant's name was not included in that -list. Nevertheless on 7-4- 1991, another office order was issued wherein his name was included in list of the officials whose services were terminated with effect from 31-3-1991.

2. The appellant represented against the order of his termination from service, before the departmental authority and after receiving no reply filed Appeal No.270(P) of 1991, which was dismissed vide impugned judgment dated 13-11-1991, passed by the Federal Service Tribunal.

3. Aggrieved by the decision the appellant filed petition for leave to appeal which was, granted by this Court on 23-8-1992 to consider the question whether the' appellant was entitled to any pensionary benefits under Regulation 371-A of the Civil Service Regulations.

4. The learned Deputy Attorney-General for Pakistan, raised a preliminary objection, to the effect, that, the appellant and other employees of the Afghan Refugees Organization were not Government servants as their salaries were not paid from the annual Federal Budget. Elaborating his submission he pointed out that even if their salaries and allowances are reflected in the Annual Budget of the Government of Pakistan, the net expenditure incurred, is later on reimbursed by the United Nations High Commission for Refugees.

Precisely the same objection was raised in Civil Appeal No.22(P) of 1988, Commissioner, Afghan Refugees, N.-W.F.P. And others v. Fazli Hakim, and. This Court vide judgment dated 3-12-1990, held as under:-- "Another ground which was raised during the course of the hearing of the appeal but not noted in the leave granting order was that the respondent could not be treated as a Federal Government employee and had to be dealt with under the Provincial Law being for all purposes governed by the Civil Servants Act of the Province of N.-W.F.P. We find at page 21 of the Service Tribunal's record a determination of the Government of Pakistan, States and Frontier Regions Division, dated 21st March, 1982, wherein it was made clear that the posts were civil in nature, were connected with the affairs of the. Federation and were to be paid from the Federal Budget and the employees were to be 'Federal Government employees, and governed by rules applicable to the Federal Government employees'."

The Federal Service Tribunal itself in Appeal No. 123(R) of 1991 M/s.. Muhammad Iqbal and Mr. Minollah, held, the employees of the Afghan Refugees Organization as civil servants within the meaning of Civil Servants Act, 1973.

In this view of the matter, the appellant and other employees of the Afghan Refugees Organization are Government servants and they are entitled to pensionary benefits of their cases are covered by Regulation No.371-A of the Civil Services Regulation which reads:-- '

"371-A. Notwithstanding anything contained in Articles 355(b), 361, 368 and 371 of these Regulations, temporary and officiating service, in the case of Government servants who retired on or after the 1st January. 1949, or who joined service thereafter, shall count for pension according to the following rule:--

(i) Government servants borne on temporary establishments who have rendered more than 5 years' continuous temporary service shall count such service for the purpose of pension or gratuity excluding broken periods of temporary service, if any, rendered previously, and

(ii) temporary and officiating service followed by confirmation which does not qualify for pension under the rules in this section shall also count for pension or gratuity subject to the exclusion of the broken periods of temporary or officiating Service, if any."

Note.--The pension of Government servants who have already retired after the 1st January, 1949, shall be revised under this Article but the increased pension shall have effect from the 17th August, 1952, or from the date as determined under Article 930, whichever is later.

"Government orders see Serial Nos.2, 8 and 10, Chapter lI and Serial Nos. l and 10 of Chapter Ill in Section VI."

Learned counsel for the appellant also referred to parawise comments and summary of the case, filed by the Government, in the Appeal No.318(P) of 1992, Roohullah Jan v. Federation of Pakistan, available on pages 28/29 of the file wherein it was conceded by the Government that the claim of the appellant in that case for pensionary benefits under Rule 371-A was justified.

Admittedly the appellant put in more than ten years' temporary service before his services were terminated he was, therefore, entitled to pensionary benefits under Regulation 371-A(i) of Civil Service Regulations. It appears that this provision of the Civil Service Regulation was not cited before the Tribunal otherwise the observation to the contrary could not have been made in the impugned judgment.

Resultantly, the appellant and similarly placed other employees of the Afghan Refugees Organization, being Government civil servants, are held entitled to pensionary benefits if 'their cases are covered by Regulation No. 371-A of Civil Service Regulations. We allow this appeal, set aside the impugned judgment of the Federal Service Tribunal with no order as to costs.