IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE GULZAR AHMED, HCJ
MR. JUSTICE IJAZ UL AHSAN
MR. JUSTICE SAYYED MAZAHAR ALT AKBAR NAQVI
Civil Appeal No. 1546 of 2019
AND
Civil Petitions Nos.2503 to 2519 & 2660 of 2019
Against judgments dated 25.02.2018 & 23.04.2019 of Federal Service
Tribunal, Islamabad, passed in Appeals No.3622(R)CS of 2017 and
3192 (R)CS of 20212) etc.
Secretary, M/o Finance, Islamabad, etc 
Appellants (in CA#1546/19)
DG, FDE, Government of Pakistan, 
Petitioners(,. CPs250-25I9 & 2660119)
etc
I
Versus
Tayyaba Halim Subhani
Irfan Mehmood & Another
Tahir Ullah & another
Javed Iqbal & Another
Syed Sajjad All Shah & Another
Hafiz Atta Ur Rehman & Another
Mrs. Khalida Nasim & Another
Rubina Kausar & Another
Adeela Tabasum & Another
Mrs. Sobia Imam & Another
Mrs. Najma & Another
Mrs. Attia Kaleem Anwar & Another
Mrs. Farah Saeed & Another
Mrs. Lubna Chaudhry & Another
Mrs. Tahira Akbar & Another
Mrs. Salama Khatoon & Another
Saeed ur Rehman & Another
Syed Tajammal Hussain Bokhari Shah & Others
Tayyaba Halim Subhani & another
CA 154612019
C.P 2503/2019
C.P 2504/2019
C.P 250512019
C.P 250612019
C.P2507/2019
C.P 2508/2019
C.P2509/2019
C.P 251012019
C.P 251112019
C.P 251212019
C.P 2513/2019
CP 2514/2019
CF 251512019
C.P2516/2019
C.P 251712019
CF 251812019
C.P2519/2019
C.P 2660/2019
For the Appellant
/Petitioners:
.Respondents
Mr. Sajid Ilyas Bhatti, Addl.AGP
M. Rehan, AD Legal
M. Ahmed, AD Legal
—
CIVIL PETITION NOS.2503 to 2519& 2660 OF 2019 
2
in CA
For the Respondent(s):
Respondent-in-Person
1546/2019
Date of Hearing:
Jt AS C
Hafiz 
S.A. 
Rehman, 
for
Respondent No. 1 and
Mr. M. Sharif Janjua, AOR in all
cps
27.01.2021
IJAZ UL ABSAN, J.- Through this single
judgment, we intend to decide Civil Appeal No. 1546 of 2019
(hereinafter referred to as "CA") and Civil Petitions No. 2503
to 2519 and 2660 of 2019 (hereinafter referred to as "CP") as
they involve common questions of law.
2.
Through the instant Appeals/ Petitions, the
Appellants/ Petitioners have challenged the Judgment of the
Federal Service Tribunal, Islamabad (hereinafter referred to as
"Tribunal") dated 15.02.2018 passed in Service Appeal No.
3622(R)CS/2017 and judgment dated 23.04.2019 passed in
Service Appeals No 3192(R)CS to 3196(R)CS of 2012,
3230(R)CS to 3238(R)CS of 2012, 90(1?)CS/2013,
9 1(R)CS/2013, 679(R)CS/20 16, and 3622(R)CS/20 17
(hereinafter referred to as "Impugned Judgments"). The
Tribunal through the Impugned Judgments accepted the
Service Appeals filed by the Respondents and ordered the
Appellants/ Petitioners to provide pay protection to the
Respondents by counting the service they had rendered on
daily wage basis for pensionary benefits and pay.
3.
The necessary facts giving rise to this us are that
the Respondents were appointed as teachers/ lecturers
CIVIL PETITION NOS2503 to 25198.2660 OF 9019 
3
against their respective posts. The Respondent in the CA
retired upon reaching the age of superannuation w.e.f.
02.06.2017. Before her retirement, she had made a
departmental representation through which she had
requested her department to count the period for which she
had worked on daily wage basis towards the calculation of her
pensionary benefits. The Respondents in the CPs were
recommended to be regularized by the Federal Public Service
Commission w.e.f. 17.08.2010. They made representations to
the effect that their previous service rendered on daily wage
basis be counted towards their pay and pension benefits but
to no avail. Aggrieved of the treatment meted out to the
Respondents by the Appellants/ Petitioners, they approached
the Service Tribunal, which allowed their Service Appeals
through the impugned judgments. The Appellants/ Petitioners
challenged the impugned judgments before this Court.
4. Leave to Appeal was granted by this Court in the
CA vide order dated 17.09.2019 which is reproduced below
for ease of reference:
"Learned Additional Attorney General relies upon a
judgment passed by a 5 member bench of this Court in
the case of Chairman, Pakistan Railway, Government of
Pakistan, Islamabad and others v. Shah Jehan Shah
(PLD 2016 SC 534) to contend that the very issue dealt
with by the Tribunal in the impugned judgment has
been dealt with by this Court in the reported judgment
where the payment of pensionary benefits are
admissible to contract employees only after their
qualifying  regularized service and thus unless such
qualifying regular service is rendered, the pensionary
benefits could not be granted to the employees.
2. Leave to appeal is granted to consider inter alia the
above submissions made by the learned Additional
Attorney General,,."
CNThPETfflOtNOS25O3 to 2$29&2660 0F2019 4
5.
The learned Additional Attorney General contends
that the service rendered on daily wage basis cannot be
counted as qualifying service for pension under the relevant
rules. As per Article 352 of the CSR, the Respondents cannot
claim pay protection or that their daily-wage-service be
counted towards pension because the said rule specifically
bars the Respondents from making such claim insofar as the
Respondents do not fulfil the three conditions mentioned
therein i.e. that the service must be under the government,
must be substantive and permanent, and, that the service
must be paid for by the government. Further, allowing the
Respondent's daily wage period to be counted towards pay
protection and pensionary benefits would open floodgates of
never-ending litigation. Lastly, the Respondents were not
working continuously, and, even otherwise, this being a policy
matter cannot be interfered with by Courts.
6.
The Learned Senior ASC appearing on behalf of
the Respondents contends that the act of the
Appellants/ Petitioners of not giving pay protection to the
Respondents and not allowing their service rendered on daily
wage to be counted towards their pensionary benefits is
discriminatory and exploitative. He adds that an identical
order was passed by the Ministry of Education dated
25.01.2006 whereby benefits were allowed to lecturers,
therefore, not granting the same to the Respondents who are
teachers, represents a policy of discrimination and pick and
choose. Further, the Respondents have been performing their
duties to the satisfaction of the Government and, by not
CIVIL PF,TITION N0S.2503 to 2519 & 2660 OF 2019 
5
allowing them pay protection and by not counting their
service rendered on daily wage basis for pensionary benefits is
unjust and unfair.
7. We have heard the learned AAG and the learned
Senior ASC appearing on behalf of the parties. The issues
which fall for consideration of this Court are:-
i.
Could the service rendered by the Respondents on daily
wages basis be counted towards their pension?
ii.
Were the Respondents employed as a stop-gap
arrangement?
iii.
Could the Respondents be employed on daily wage basis
considering the nature of their work?
COULD THE SERVICE RENDERED BY THE RESPONDENTS
ON DAILY WAGES BASIS BE COUNTED TOWARDS THEIR
PENSION?
8. The learned counsel for the Respondents has
relied upon CSR 361 and has argued that, in view of the said
Rule, the Respondents were entitled to pension and pay
protection. For ease of reference, CSR 361 is reproduced as
under:-
"361:- Except as otherwise provided in these Regulations,
the service of an officer] does not qualify for pension
unless it conforms to the following three conditions:
First—the service must be under Government. Second.—
the employment must be substantive and permanent.
Third.—the service must be paid for by Government".
9. We have examined the Education Code 2006
issued by the Federal Directorate of Education. The learned
Tribunal has held that the Respondents were being paid out
of funds that were approved by the Government. In this
I
CIVIL PRTflIONNOS.2503 to 2519& 2660 OF 2019 
6
respect, Paragraph 30 of the said Code is relevant which
provides that the following: -
"Heads of educational institutions shall be empowered to
incur expenditure out of Students' Fund as per the upper limit
of expenditure prescribed through a notification by the
Department Head on the following items:
(v) Payment to daily wage employees (teaching & non-
teaching)"
Paragraph 17 of the said Code provides that the Federal
Directorate of Education would manage the Federal
Government Educational Institution (Schools & Colleges),
Islamabad Model Institutions, and Hostels. The learned AAG
has not disputed the fact that the Respondents were working
in institutions that were admittedly being managed by the
Federal Directorate of Education. The Federal Directorate of
Education has itself issued a Code which such schools are
required to follow to regulate their affairs. The services of the
Respondents were utilized by the Appellants/ Government to
their satisfaction until the time the Respondents asked for
pay protection and pension. As such, the learned Tribunal
has correctly held that the Government cannot disassociate
itself from the entire process and hold that the Respondents
were not working under its supervision. It is the Federal
Directorate of Education that has issued the said Code, and
Paragraph 30 supra provides that the Federal Directorate of
Education has empowered heads of institutions to manage
pays and salaries of daily wage staff. It has not been argued
before us that the said heads of institutions could not be
delegated this task. The Government is fully empowered to
CIVIL PETITION NO&2503 to 2519&2660 OF 2029 
7
delegate some of its tasks for administrative convenience and
efficient working as has been done in this case.
10.
We have gone through the letter dated 26.08.04
issued by the FDE (Model Colleges Wing). The said letter
provides an elaborate mechanism viz selection of teachers on
daily wage basis. They are to appear in a test of 50 marks
followed by an interview. Following this, their result is
approved by a Committee and sent to the Director Colleges,
Federal Directorate of Education who in turn seeks
confirmation from the Director-General, Federal Directorate of
Education. The said letter establishes that the Respondents
were not arbitrarily appointed as a stop-gap arrangement.
Their services were utilized by the Appellants/ Petitioners for
years on end till they reached the age of superannuation,
their services were substantive and permanent which were
paid for on behalf of and with the consent or approval of the
Government.
11.
We find that although the employment of the
Respondents was not permanent within the meaning of CSR
361, the establishment under which they were working was
permanent and the fact that they rendered services for years
shows that they were not employed on temporary basis as a
stop-gap arrangement for short periods of time. Further, that
the Federal Public Service Commission by recommending the
Respondents for retention into service has confirmed their
ability and qualification to hold these posts. It is an admitted
fact that the Respondents have been working continuously for
more than 5 years. We have gone through the memorandum
CIVIL PETITION NO&2503 to 2519 & 2660 OF 2029 8
dated 25.01.2006 whereby it was stated by the Federal
Directorate of Education that service rendered on an Ad Hoc
basis could be counted towards pay and pensionary benefits.
If the Appellants/ Petitioners have allowed the services of Ad
Hoc teachers/ lecturers to be counted for pay protection and
pension, it is hard to understand why the same was cannot
be done in the case of the Respondents. The principle of
similarly placed persons dictates that the Respondents also
deserve to be treated in the same manner as others who were
granted the benefits of pay protection and pension from the
date of their initial appointment on daily wages basis. The
Respondents have been discriminated against which is in
violation of their fundamental rights guaranteed to them by
the Constitution of the Islamic Republic of Pakistan, 1973.
12. The learned Senior ASC for the Respondents has
placed reliance on the case titled Ikram Bari and 524
others vs National Bank of Pakistan (2005 SCMR 100) in
support of the submission that the service rendered on daily
wages basis can be counted for pension and pay. The relevant
portion of the judgment ibid is reproduced as under for ease
of reference: -
"An Islamic Welfare State is under an obligation to
establish a society which is free from exploitation
wherein social and economic Justice is guaranteed to its
citizens. The temporary Godown staff and the daily
wages employees were continued in service of the Bank
on payment of meagre emoluments fixed by the Bank. In
most of the cases of these employees, there were artificial
breaks in their service so as to circumvent the provisions
of the Labour Laws and the Rules of the Bank and to
deny them the salaries and other service benefits of
regular employees. In some cases, the Bank did not issue
formal letters of appointment or termination to the
employees so as to preclude them to have access to
CIVIL PETITION 1105.2503 to 2529 & 2660 OF 2019 
- 
9
justice. There was no equilibrium of bargaining strength
between the employer and the employees. The manner in
which they had been dealt with by the Bank was a fraud
on the Statute. A policy of pick and choose was adopted
by the Bank in the matter of absorption/ regularization of
the employees. By Article 2-A of the Constitution, which
has been made its substantive part, it is unequivocally
enjoined 'that in the State of Pakistan principle of
equality, social and economic justice as enunciated by
Islam shall be fully observed which shall be guaranteed
as fundamental right. The principle of policy contained in
Article 38 of the Constitution also provide, inter alia, that
the State shall secure the well being of the people by
raising their standards of living and by ensuring
equitable adjustment of rights between employers and
employees and provide for all citizens, within the
available resources of the country, facilities for work and
adequate livelihood and reduce 'disparity in income and
earnings of individuals. Similarly, Article 3 of the
Constitution makes it obligatory upon the State to ensure
the elimination of all forms of exploitation and the
gradual fulfilment of the, fundamental principle, from
each according to his ability, to each accordin g to his
work. It is dtfficult to countenance the approach of the
Bank that the temporary Godown staff and the daily
wages employees should be continued to be governed on
disgraceful terms and conditions of service for an
indefinite period. In view of section 24-A of the General
Clauses Act 1897, the National Bank was required to act
reasonably, fairly and justly. An employee being jobless
and in fear of being shown the door had no option but to
accept and continue with the appointment on whatever
conditions it was offered by the Bank".
In addition to the aforenoted excerpt, a direction
was passed in the judgment of Ikram Bari ibid to the effect
that the previous service rendered by the Petitioners in the
said case shall be counted towards retirement/ pensionary
benefits. It was held as follows:-
"The Civil Petitions.. .filed by employees seeking financial
back-benefits and waiver of conditions of
,regularization/ reinstatement are disposed of with the
direction to the National Bank to regularize/ absorb them in
service with effect from 15-9-2003, subject to the conditions as
laid down in para. 10 of the impugned judgment. The National
Bank is directed to issue them appointment letters within one
month. Moreover, the previous service rendered bi, them with
the Bank shall be counted towards retirement! pensionarq
benefits .(Underlining is ours)
----4—,
CIVIL PETITION N0S2503 to 2529 & 2660 OF 2019 
10
In view of the above position, the argument of the
learned AAG that the service period of the Respondents
rendered on daily wages could not be counted towards their
pension is misconceived. The said period could and should be
counted towards pension especially when the Respondents
had been working continuously for different periods for the
last many years.
WERE THE RESPONDENTS EMPLOYED ON A STOP-GAP
ARRANGEMENT?
13. The learned DAG has argued that the contracts of
the Respondents were not renewed/ extended, but they were
offered new contracts from time to time after their previous
contracts had expired. The record reveals that such breaks
were artificial. The said breaks cannot render the employment
of the Respondents to be purely temporary. The Respondents
have been performing their duties in their respective schools
since long and such artificial breaks in their employment do
not negate the fact that the Respondents had been
continuously serving the Appellants! Petitioners for a long
time. Reliance in this regard is placed on the case titled
Board of Intermediate and Secondary Education, Multan
vs Muhammad SaUd 12019 SCMR 233 Supreme Court)
wherein it was held as follows:-
"It is an admitted position that the respondents before us
have been working with the petitioner-Board since long,
however, in their clumsy attempt to break the continuity
of their service, the petitioner has been employing them
for 89 days only, and has been re-hiring them for the
next 89 days, and thus continued to avail their service for
a long period by creating artificial breaks in their service
period. The fact that they have, in fact, continuously
served the petitioner for a long period of time, albeit the
breaks created by the petitioner, as noted above, clearly
show that they have been performing the job of a
CIVIL PETITION NOS2503 to 2519&2560 OF 2019
permanent nature and have not been serving on casual
posts."
It is not the case of the Appellants before us that the
Respondents were temporarily working against temporary
posts and that such posts no longer exist. The fact that FPSC
was approached to test the qualifications and antecedents of
Respondents and make its recommendations by itself shows
that these posts were permanent in nature.
13.
As noted above, the said Principals of the
respective Schools where the Respondents were performing
services were acting in the aide of the Appellants/ Petitioners
under an elaborate mechanism/ modus operandi provided
by the Appellants/ Petitioners. The powers of the said
principals were being exercised on the instructions and under
supervision of the Appellants/ Petitioners and with their
express consent and approval.
14.
The learned DAG has stated that there were
breaks in the services rendered by the Respondents, however,
he has been unable to show from the record where and when
there were such breaks in the daily wage services rendered by
the Respondents. The only argument advanced by him in this
regard is that the Respondents were working on a stop-gap
arrangement. We are unable to agree with the learned DAG in
this regard. By no stretch of imagination can it be conceived
that when the Respondents were working against their
respective posts for long periods (in some cases for more than
10 years), the same can by any definition of the word be
C
CIVIL PETITION P1052503 W 2519 & 2660 OF 2019
termed as a stop-gap arrangement. A stop-gap arrangement is
one where a temporary arrangement is made for a limited
time for a few months at the most until something better or
more suitable can be found. Such an arrangement is typically
made until someone can be hired permanently through the
process provided in the law, rules or regulations. The
Respondents were admittedly employed for long periods of
time running into years and cannot be termed as stop-gap.
The definition of "stopgap" provided in Collins Dictionary and
as understood by Courts in our country clearly means:-
"A stopgap is something that serves a purpose for a short
time, but is replaced as soon as possible"
15. The meaning of a stopgap arrangement was
interpreted by this Court in the case titled as Chairman
Evacuee Trust PropertM Board and others vs Khawaja
Shahid Nazir (2006 PLC(CS) 1261 Supreme Court) in the
following terms:-
"The Tribunal had failed to interpret the notification
dated 29-6-2000 in its true perspective by ignoring the
clear stipulation contained therein that respondent was
appointed as Secretary BPS-19 and such appointment
was till further orders. From such stipulation it can be
inferred without anti doubt that it was not a regular
appointment in accordance with section 11(l) of the Act
and was by wait of stopgap arrangement. This Court in
the case of Abdul Majid Sheikh v. Mushafee Ahmed and
another PLD 1965 SC 208 while examining the effect of
the phrase "a person holds an appointment till further
orders" pronounced that it only means that he holds it till
orders are passed terminating his services. "(Underlining
is ours)
The learned DAG has been unable to show us any
document on the record which suggests that the Respondents
were employed for a specific period of time subject to the
arrival of permanent employees. The only term in this regard
0
CIVIL PETITION N0S2503 to 2519&2660 OF 2019 
13
as found from the appointment orders of the Respondents is
that there would be no commitment in this regard from either
the Respondents or the Appellants/ Petitioners. The mere
insertion of this vague term in the contracts of the
Respondents does not mean that they were employed as a
stop-gap arrangement. The Appellants/ Petitioners never
terminated services of the Respondents. The Respondents
retired from their services after they were regularized, that too
in most, after more than 10 years of service. Adding artificial
breaks to the employment of the Respondents does not
convert the employment of the Respondents into a stop-gap
arrangement. They were not employed for a short period till
the arrival of someone permanent, but, were employed
against their respective posts for almost the whole of their
professional lives. As such, the argument of the learned DAG
in this regard does not hold much water and the employment
of the Respondents was to be treated as permanent in nature
as correctly held by the Tribunal.
COULD THE RESPONDENTS BE EMPLOYED ON DAILY
WAGES BASIS CONSIDERING THE NATURE OF THEIR
WORK?
16. Teachers strengthen the foundation of any state as
well as play a pivotal role in nation building by imparting
education which is necessary to uplift a society consisting of
educated and aware citizens who believe in values and
strengthen democracy and democratic values. Employing
teachers on daily wages basis is not only detrimental to the
education sector of Pakistan but is also a discouraging factor
__________________________ 
1—•
CIVIL PETITION 1105.2503 to 2519 & 2660 OF 2019 
14
for future teachers who in turn are demotivated and
discouraged a profession which is pivotal in the lives of our
future generations. It is pertinent to mention that primary
education is a fundamental right guaranteed under Article
25-A of the Constitution of the Islamic Republic of Pakistan,
1973. The Universal Declaration of Human Rights also
recognizes education as one of the most important rights of
children. Article 3 of the Constitution provides that all forms
of exploitation shall be eliminated. One of the reasons for
which this becomes relevant to the present controversy is that
notwithstanding the importance of the services they render to
society, which have consequences for generations, the
Respondents were made to work under uncertain conditions
on the pattern of unskilled and uneducated or semi-educated
labour hired on a daily wage basis for seasonal projects
expected to last for a limited period. We are appalled at this
irresponsible, casual and utterly unprofessional approach of
the policy makers towards a matter as important and as
serious as education of our future generations. We have no
hesitation whatsoever in strongly deprecating the same. These
actions of the Appellants/ Petitioners are not only contrary to
Constitutional dictates but also contrary to the Principles of
Policy enshrined in the Constitution which state that there
has to be an equal adjustment of rights between employers
and employees.
17. The Impugned Judgment of the learned Tribunal
is well reasoned, proceeds on the correct factual and legal
premises and has correctly applied the relevant law, rules and
-
CIVIL PETrTION NO&2503 to 25i9&2660 OF 2019 
15
regulations to the facts and circumstances of the cases before
us. No legal, jurisdictional defect, error or flaw in the
Impugned Judgment has been pointed out to us that may
furnish a valid basis or lawful justification to interfere in the
same. The Learned AAG has not been able to persuade us to
take a view different from the Tribunal in the facts and
circumstances of the instant Appeal/ Petitions. We
accordingly affirm and uphold the Impugned Judgment of the
Learned High Court
18. For the reasons noted above, we find no merit in
the Appeal and the same is accordingly dismissed. As for the
Petitions, no question of law of public importance in terms of
Article 212(3) of the Constitution has been raised.
Accordingly, we find no merit in these Petitions and the same
are dismissed. Leave to appeal is refused.
Judge
ISLAMABAD, THE
272h of January 2021
Hans LC/
AT&T APPROVED FOR REPORTING
