IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE GULZAR AHMED, CJ
MR. JUSTICE IJAZ UL AHSAN
MR. JUSTICE SAYYED MAZAHAR ALT AKBAR NAQVI
S
Civil Appeal NO-1496 of 2019
Against judgment dated 05.10.2018 of Federal
Service Tribunal, Islamabad, passed in Appeal
No.256(R)CS of 2016.
M/o Finance through Secretary, etc
Versus
Appellant(s)
Syed Afroz Akhtar Rizvi & others 
Respondent(s)
For the Appellant(s): 
Mr. Sohail Mehmood, AddI.AGP
Khan Hafeez, JS, Fin. Div
Abdul Ghaffar, SO, Fin. Div
Sajid Javed, Legal Assistant, Fin. Div
For the Respondent(s)
Mr. M. Ramzan Khan, ASC
Syed B. H. Shah, AOR a/w
Respondent No.1 in person.
Date of Hearing: 12.07.2021
ORDER
IJAZ UL AHSAN, J.- 
The appellant is
aggrieved of a judgment of the Federal Service Tribunal,
Islamabad ("the Tribunal") dated 05.10.2018. Through
the impugned judgment, while accepting a Service Appeal
bearing No.256(R) CS of 2016 filed by Respondent No.1
(Syed Afroz Akhtar Rizvi) the Tribunal directed that his
last drawn pay as contract employee would stand
protected on his regularization/ appointment on regular
basis 
and 
the 
Appellant 
should 
provide
Civil Appeal No. 1496 o[2019 
2
consequential/ retirement benefits to him within a period
of three months.
2. Briefly stated the facts necessary for decision
of this Appeal are that Respondent No.1 was appointed
as Data Entry Operator (BS-12) in National Educational
Information Management System ("NEIMS") on
11.04.1992 on contractual basis. Subsequently, the
employees of NEIMS were transferred to the Academy of
Educational Planning & Management ("AEPM") and were
regularized with effect from 01,07.2008. After
regularization, the Respondent rendered services in
AEPM and retired 8 years later. He submitted an
application requesting that he may be regularized with
effect from his initial appointment and his services from
11.04.1992 to 30.06.2008 be counted towards
determination/ fixation of his pensionary benefits. Such
application was rejected by the Appellant. This prompted
the Respondent to file an appeal which was allowed vide
judgment dated 01,02.2017. The said judgment was
challenged before this Court through CPLA No.1255 of
2017 which was converted into an appeal and allowed
vide order dated 22.03.2018. The matter was remanded
to the Tribunal for decision afresh. In post remand
proceedings, the appeal of the Respondent was again
allowed, vide impugned judgment dated 05.10.2018.
CiuliAppeal No. 1 496 of 2019 
3
3. Leave to appeal was granted by this Court on
29.08.20 18 inter alia in the following terms:-
"Submits that the impugned judgment of the
learned tribunal dated 05.10.2018 fails to apply the
principle laid down in Chairman, Pakistan Railway,
Government of Pakistan v. Shah Jahan Shah (PLD 2016
SC 534) and reproduced in the impugned judgment. The
period of temporary service exceeding 5 years can be
added towards the government service pension if he is
otherwise entitled to pension. This principle contained in
article 371-A of the Civil Service Regulations (CSR) has
been affirmed in the aforenoted judgment. On the other
hand, the respondent fails to satisfy the condition of
article 371-A of CSR and is therefore not entitled to
receive pension. Y et the Tribunal has awarded him that
relief:
4. The learned Additional Attorney General for
Pakistan appearing for the Appellant submits that the
Respondent was appointed purely on temporary basis in
NEIMS, his services were regularized on 18.08.2008 in
AEPM which in essence was a fresh appointment. His
application for grant of pensionary benefits was
disallowed on the ground that he did not meet the
criteria of qualifying service of 10 years. He maintains
that the period from 1992 to 2008 cannot be counted for
the purpose of determining qualifying service in view of
the fact that qualifying service has to be performed in a
Government Department and at least for a period of ten
years. He further maintains that the Tribunal has
misinterpreted and misapplied the provisions of CSR
Ch,iI Appeal No. 1496 o[2019 
4
352, 361 and 365 and has come to the conclusions
which are patently erroneous. He relies on a judgment of
this Court reported as Chairman, Pakistan Railway,
Government of Pakistan v. Shah Jahan Shah (PLD 2016
Sc 534) and submits that the Tribunal has totally
misinterpreted the same. He further maintains that the
Finance Division has issued policy guidelines vide Office
Memorandum No.4(2)R-2/ 2014-237 dated 07.04.2015
for protection of pay of gazetted contract employees on
their regularization/ employment on regular basis. As per
para 1(v) of the said OM, the services rendered on
contract basis do not qualify for pension/ gratuity. He
further submits that benefit of pay protection is
admissible to the Respondent but pensionary benefits are
not admissible for the contract period. However,
pensionary benefits for regular service from the date of
regularization are admissible to regular employees under
the Rules.
S. The learned ASC for Respondent No.1 has
defended the impugned judgment of the Tribunal. He
maintains that admittedly the Respondent has rendered
uninterrupted and continuous contractual service in
NEIMS from 1992 to 2008. That being so, the said period
which comes to around 15 years is liable to be counted
towards his pensionary benefits and denial by the
Civil Appeod No. 1496 of 2019 
5
Department to grant him the benefit of pension was
patently illegal as had correctly been held so by the
Tribunal. He further submits that the correct
interpretation of CSR 352, 361 and 365 is that if a
contractual employee who is subsequently regularized
has rendered, in aggregate, service in excess of the
qualifying service as defined in the Civil Service Rules,
such employee is entitled to pensionary benefits. He also
relies on the judgment of this Court in the case of Shah
Jahan Shah (supra).
6. We have heard the learned Additional Attorney
General Pakistan as well as learned ASC for Respondent
No.1 and have examined the relevant provisions of Civil
Service Regulations as interpreted by this Court from
time to time. An analysis of the said provisions and
judgments of this Court more specifically a relatively
recent judgment of this Court in Shah Jahan Shah's case
shows that the following general principles apply to
employees who have worked against contractual posts
which were subsequently converted into regular posts for
the purpose of grant and calculation of pension:
I. an employee who was employed on
contractual basis and is subsequently
regularized may be entitled to pensionary
benefits provided;
Civil A ppeal No. 1496 of 2019
i) he is eligible for pension having served for
the qualifying period (10 years) as a
II
regular employee.
ii) for the purpose of calculating pensionary
benefits his service as a contractual
employee can be factored in to provide
him any financial benefit that may be due
to him.
iii) the period spent in employment as a
contractual employee and as a regular
employee cannot be aggregated in order
to determine his eligibility for entitlement
to pension.
iv) eligibility to receive pension is directly
related to rendering qualifying service as
a regular employee. Unless an employee
has performed services in a regular
appointment for the duration of the
qualifying period (10 years), he is not
entitled to receive pension.
7. In case, an employee has served a Government
Department for the duration of the period qualifying him
to receive pension, the period spent as a contractual
employee may be added to his regular qualifying service
only and only for the purpose of calculating his pension
and for no other purpose. The provisions of Article 371-A
Ciull Appeal No, 1496 o[2019 
7
of CSR start with a non obstante clause which means
that the said Article does not relate to the question
entitlement or eligibility to receive pension. It is clearly
and obviously restricted to counting the period of a
minimum of five years which has been rendered by a
temporary contractual employee to be taken into account
with the object of calculating the quantum of his pension
and not more. The non obstante clause in Article 371-A
of CSR does not allow those who do not fulfil the
requisite conditions for qualifying for pension to bypass
such conditions and add up regular and contractual
periods of employment for the purpose of meeting the
eligibility criterion of ten years of service. Such an
interpretation would create absurd situations and would
render other provisions and Articles of CSR redundant,
unnecessary and surplus. We are therefore in no manner
of doubt that Article 371 of CSR does not allow
Government Servants rendering temporary service in a
temporary establishment for more than 5 years to be
entitled for grant of pension rather such period can be
counted towards calculation of pension only if otherwise
entitled to pension by meeting the criteria of qualifying
service.
8. It is not disputed that the Respondent
rendered continuous service from 1992 to 2008 as Data
Chill A ppeal No. 1496 of 2019 
8
+ 
I
Entry Operator in NIEMS. It is also not disputed that he
was regularized in 2008 and retired in 2016 before
meeting the criteria of qualifying service. That being so,
the benefit of Article 371-A of CSR was not available to
him as he did not qualify for the pensionary benefits
which qualification is a necessary pre-requisite for grant
of pension.
9. It may also be pointed out that the earlier view
taken by a three member Bench of this Court in the case
of Mir Ahmad Khan v. Secretary to Government & others
(1997 SCMR 1477) was declared per incuriam in a five
member judgment of this Court rendered in Shah Jahan
Shah's case ibid. As such, the view consistently taken by
this Court in a situation where the services of a
contractual employee are converted into regular
employment is that although the period spent in
contractual employment subject to a minimum of five
years can be included in calculating pensionary benefits
but only and only in a situation where the employee is
otherwise entitled/ eligible to receive pension subject to
having rendered qualifying service (10 years) in
permanent employment. Unless he meets the criteria of
having served for the duration of the qualifying period,
the period spent in contractual employment cannot be
added to make up for any deficiency in qualifying service
S
Civil Appeal No. 1496 of 2019
S
for the purpose of eligibility to receive pension. The
Tribunal has clearly and obviously taken an incorrect
and erroneous view of the law and has been unable to
appreciate the essence and tenor of Shah Jahan Shah's
case ibid which is an authoritative declaration of law on
the subject by this Court. Reference of the Tribunal to
selective portions of the alorenoted judgments are found
to be out of context leading to incorrect and erroneous
interpretation of the relevant principles of law. We
therefore find that the impugned judgment of the
Tribunal dated 05.10.2018 is unsustainable. It is
accordingly set aside. Consequently, the listed appeal is
allowed and the Service Appeal bearing No.265(R) of CS
2016 filed by Respondent No.1 (Syed Afroz Akhtar Rizvi)
before the Tribunal is dismissed.
ISLAMABAD, THE
12 of July, 2021
ZR/*
Afet Approved For Reporting
-. 
I
