MUHAMMAD IQBAL KALHORO, J.---Petitioner has approached this Court for the following reliefs:- a. "To direct the respondents to grant the family pension with effect from 02.12.2008 and onward to pay the same to the petitioner who is widow of Zulfiqar Ali Saharan Baloch. b. To declare that the petitioner and her minor children are entitled to have the family pension in respect of Zulfiqar Ali Saharan Baloch deceased who was the employee of the respondents. c. To award costs of this petition.
Any other relief as this Hon'ble Court deems fit and proper may be awarded to petitioner under the circumstances of this petition."
2. Brief facts of the case are that petitioner is the widow of late Zulfiqar Ali Saharan, who was appointed on contract basis as a Computer Programmer/Operator in University of Sindh vide letter dated 01.12.1997 issued by Registrar, University of Sindh/Respondent No,2. Subsequently on the recommendation of the Selection Committee, he was appointed as Internet/Computer Operator cum Programmer in BS-11 vide office order dated 27.04.2004. Later on, vide a letter dated 24.6.2005, his service was confirmed. He died during service on 01.12.2008. After his death, the petitioner approached Respondent-University for getting her husband's service benefits including family pension but in vain, hence this petition.
4. The respondents have filed comments disputing the case of the petitioner on family pension and further revealing that the petitioner has already been paid service benefits of the deceased, which include exemption of outstanding loan of Rs,6,250/- against the deceased; lump-sum payment equal to salary of 180 days (leave encashment); a financial assistance of Rs,5 (five) lacs; gratuity of Rs,52,500; and in addition to above a brother of the deceased was appointed as clerk-cum-typist against the deceased employee quota.
5. Mr. Taj Muhammad Keerio, learned counsel has contended that the petitioner has not been paid pensionary benefits of her deceased husband; that her deceased husband remained in job continuously from 01.12.1997, till his death on 01.12.2008, as such she is entitled to all service benefits including family pension as per provisions of the Sindh University Employees Pension Statutes, 1974.
Learned counsel referred to statutes 2.2 and 2.3 ibid in this regard and further argued that the petitioner is entitled to claim family pension as her husband rendered his service for more than 10 years i,e, with effect from 1997 till 2008 with Respondent-University. He relied upon the case law reported in 2009 SCM R 769 to support his case.
6. On the other hand, Mr. Kamaluddin, learned counsel for the respondents argued that deceased Zulfiqar Ali Baloch did not render minimum length of qualified service, which as per pension statutes is 10 years, to be entitled to the pensionary benefits; that pension statutes 2.2 and 2.3 only provide for counting temporary and officiating service of an employee towards his pension and gratuity if such service is followed by confirmation, but such period of temporary service would not make good of deficiency in the length of qualifying service requisite for entitlement to the pension; that petitioner's husband was working on contract basis on a fixed monthly honorarium from 1997 to 2004 and only with effect from 27.04.2004 he was appointed on a regular post, and then he died on 01.12.2008. Thus his qualifying service (which is only four years, eight months and three days) is less than 10 years and he is not entitled to any pensionary benefits; that all the benefits admissible under the law have already been extended to the petitioner, and she is not entitled to the family pension. In support of his contentions, learned counsel relied upon the case law reported in PLD 1990 SC 719, 1993 SCMR 609, PLD 2008 SC 522 and PLD 2013 SC 829.
7. Mr. Allah Bachayo Soomro learned Addl. A.A.G. adopted the arguments of learned counsel for the Respondents Nos, 1 and 2.
8. Heard. There is no dispute on the point that for an employee of Sindh University to be entitled to the benefit of pension, his qualifying service has to be 10 years. The argument of learned counsel for the petitioner is that if the service of her husband on contract basis (from 01.12.1997 to 26.04.2004) is counted toward his service (from 27.04.2004 to 01.12.2008) on regular basis, it would become more than 10 years and thus he would stand qualified for the pension. The entitlement of the employees of Sindh University to the pension is regulated by Sindh University Employees Pension Statutes, 1974. Chapter-II thereof lays down the conditions of qualifications for pension, which are, the service must be under the University; the service must not be non-pensionable; and the service must be paid by University from the University funds. Statute 2.2 of the said chapter provides for that the service of an employee begins to qualify for pension when he takes over charge_ of the post to which he is first appointed. This clause read with one of the conditions of qualifications for pension viz. the service must not be non pensionable clearly demonstrates that an employee needs to satisfy two conditions before he can claim entitlement to the benefit of pension. First, that his service is not non-pensionable meaning thereby that it is of permanent nature because in law only such a service is a pensionable service, and second that he has taken over charge of the relevant post to which he is appointed. After the said two conditions are met, the relevant question to ask would be whether irrespective of a length of service an employee appointed on regular basis would be entitled to pension merely because he has taken over charge of the post. The answer to this question can be found in Statute 4.4 which prescribes that "after a qualifying service of not less than 10 years, full superannuation, retiring, invalid or compensation pension may be granted not exceeding the maximum limits" (which are prescribed in the table mentioned below the said statute). This provision of law specifically stipulates qualifying service of 10 years, which as opinioned above would mean service of permanent nature, as a minimum benchmark. for an employee to cross to claim entitlement to the pension. The obvious deduction, therefore, would be that an employee who has not been able to complete a qualifying service- period of 10 years after B being confirmed would not be entitled to the pensionary benefits. His period of service which he rendered on contract basis would at the most be counted towards his pension or gratuity but this will happen only when he after confirmation of his service succeeds to serve for a minimum period of 10 years. In our estimation, the appointment of an employee on contract basis is a stopgap arrangement made by the employer to make do with day to day affairs of a particular nature of job till either the post of that job is created and filled or if it already exists then till a regular appointment is made thereon. The employee who is appointed on contract basis does not take over charge of any post by virtue of his said appointment so as to be considered to have fulfilled one of the above stipulations and thus entitled to the pension. A contract employee tends to render service of particular nature for a specific period as per terms and conditions of his contract which is why his said service would not earn him any qualification to be entitled to the pension.
9. However, Statute 2.3 defines that temporary and officiating service shall count for pension or gratuity in certain circumstances when (i) employees borne on temporary establishment have rendered more than five years continuous temporary service; and when (ii) temporary and officiating service is followed by confirmation. It is to be noted that in the second clause of this provision of law the word "count" has been used as against "qualify" or "eligible", which would mean the temporary and officiating service would be counted or added for pensionary benefits, if it is followed by confirmation. But such service would not per se make an employee qualify for pension, for an employee to qualify for the pension it is a must for him to cross over minimum benchmark of 10 years of regular service as noted above. The scheme in Statute 2.3 seems to presume that the employee is otherwise entitled to the pension and not that after counting or adding the period of his temporary and officiating service in his confirmed service, he could be held qualified for the pension as argued by learned counsel for the petitioner. Such an interpretation would render the minimum period of 10 years' qualifying service as stipulated in statute 4.4 meaningless. The deceased husband of the petitioner initially served on contract basis (from 01.12.1997 to 26.04.2004) against the fixed honorarium, which period of service could have been counted or added to his pensionary benefits, if he had later on (after being appointed on permanent basis on 27.04.2004) serviced for 10 years more to qualify for the pension. Unfortunately he died on 01.12.2008 and hence could not complete 10 years of qualifying service. As we have discussed above, the period of contract service of petitioner's husband itself would not make him qualify for the pension per se and admittedly such period cannot serve to make good of deficiency in the period of qualifying service of the petitioner's husband. Article 371-A of Civil Service Regulations (CSR) deals with analogous situation being dealt with here and reads as "Notwithstanding anything contained in Articles 355 (b), 361, 368, 370 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:-". (Emphasis provided) The Honourable Supreme Court while interpreting the said provision of law in the case of Chairman, Pakistan Railway, Government of Pakistan, Islamabad and others v. Shah Jehan Shah (PLD 2016 SC 534) has observed in Para No,6 as under: "............However, it is important to note that Article 371-A, presupposes that such a government servant, whether falling under clause (i) or (ii), is otherwise entitled to pension (or gratuity, as the case may be). In other words, Article 371-A cannot be used as a tool to bypass the conditions for qualifying service of minimum number of years for grant of pension. This is due to the use of the word "count" as opposed to "qualify" or "eligible", as rightly argued by the learned counsel for the appellant. As per the settled rules of interpretation, when a word has not been defined in the statute, the ordinary dictionary meaning is to be looked at. Chambers 21st Dictionary defines "count" as "to find the total amount of (items), by adding up item by item; to include". Oxford Advanced Learner's Dictionary of current English (7th Ed.) defines "count" as "to calculate the total number of people, things, etc. in a particular group; in include sb/sth when you calculate a total; to consider sb/sth in a particular way; to be considered in particular way". Thus in light of the above, service rendered for more than five years as contemplated by Article 371-A would only be added, included, or taken into account for the purposes of pensionary benefits, and not make such government servant qualify for pension per se."
10. In the light of foregoing discussion and the dictum laid down by the Honourable Supreme Court in the case cited above, instant petition seems to be devoid of merits, and is, therefore, dismissed.