WIQAR AHMAD, J. Petitioners have been former employees of the University of Malakand (hereinafter referred to as University), and are aggrieved of non-payment of pension by the university authorities. They have contended in their writ petition that petitioners Nos. 1 and 2 were appointed as Class-IV employees (Chowkidars) in the University on 13.12.2001 on contract basis; while petitioner No. 3 was also appointed as Class-IV employee on 07.04.2003, on contract basis. All the petitioners were regularized in service of the University vide office order dated 20.07.2007.
Petitioner No. 1 retired from service on 10.03.2012, petitioner No. 2 retired from service on 05.01.2014 and petitioner No. 3 got retired from service on 15.01.2016, after all the petitioners obtained the age of sixty years (superannuation).
2. Comments of respondents were called, which have accordingly been submitted wherein assertions in Paras 1 to 4 of the writ petition have been admitted as correct, but they had taken the stance that regular service of petitioners in the University had been falling short of the minimum qualifying service for the grant of pensionary benefits.
3. Learned counsel for petitioners submitted during the course of his arguments that in Rule 5 of the Service Pension Statutes of University of Malakand (hereinafter referred to as "the Service Statutes") it had been provided that the West Pakistan Civil Services Pension Rules, 1963 (hereinafter referred to as "the Pension Rules") shall remain applicable to University employees, wherein Rule 4.4 provided that minimum qualifying service for grant of pension shall not be less than 10 years and that rule 2,3 of the said Rules provided that temporary or officiating service shall be counted toward the total length of service for determining eligibility of a retired employee for the grant of pension. He added that if services of the petitioners were counted from the date of their initial appointments, all the employees were having 10 years service and had therefore been entitled to the grant of pension.
4. Learned counsel appearing on behalf of respondents/University' relied upon judgments in the case of "Raja Ali Shan v. Messrs Essem Hotel Limited and others" reported as 2007 SCMR 741, the case of "Hakim and 3 others v. Government of Pakistan through Secretary Interior and others" reported as PLD 1992 Suprem e Court 595 as well as judgment in the case of "Ghulam Murtaza v.
Abdul Salam Shah and others" reported as 2007 SCMR 1062 and submitted that Service Statutes of the University should be read as a whole, and when so read entitlement of the petitioners could not, be established therein. He referred to sub-rule (ii) of rule 4 as well as Rule 7 of the Service Statues and submitted that the contract employment of the petitioners could not be counted toward pension. He also referred to Rule 9 of the Service Statutes and contended that the minimum qualifying service for University employee has been twenty-five years. He placed further reliance on judgment of the Hon'ble Supreme Court of Pakistan rendered in the case of "State Life Insurance Corporation of Pakistan through Chairman and others v. Mst. Sardar Begum and others" reported as 2017 SCMR 999 for showing that provisions of special law override the provisions of general law to the extent of any conflict or inconsistency between the two.
5. We have heat d arguments of learned counsel for the parties and perused the record.
6. We will first address the contention of learned counsel for respondents that the contract period of an employee cannot be counted towards the period of service for determining the qualifying length of service of pension. It has been provided in rule 5 of the Service Statutes that save as otherwise provided in these statutes, the West Pakistan Civil Services Pension Rules, 1963, as applicable to government servants of the North-West Frontier Province, shall mutatis mutandis apply to University employees. The language where the Pension Rules has been adopted by the University itself shows that it shall apply in those areas which have not been regulated by the Service Statues. It is quite clear from perusal of the Service Statues annexed with the comments of respondents, that it has nowhere provided any special rule for defining the qualifying service for the grant of pension, as well as the length of service entitling an employee to maximum allowable pension and the respective ratios thereof. Though learned counsel for University has been arguing that rule 9 of the Service Statues fulfill the purpose, but we are afraid we would not be able to agree with his contention. Rule 9 basically provides authority of the Syndicate or Vice-Chancellor to condone interruptions and deficiencies in counting of the service for the purpose of pension. Said rule being relevant is reproduced for ready reference;
9. Condonation of interruptions and deficiencies;
(1) The Syndicate or the Vice-Chancellor, as the case may be, may for purpose of pension condone all gaps between the periods for qualifying service of a University, employee.
(2) The Syndicate or the Vice-Chancellor, as the case may be, may condone deficiency in qualifying service for pension, up to six months; provided that the service is meritorious, if allowed, will bring the service up to twenty-five completed years of qualifying service."
Heading of the rule is indicative that it aims at providing for condonation of interruptions in service and deficiency in the requisite amount of minimum service. Headings or sub-headings of a section may be referred to in aid of interpretation. "The sections or set of sections" C as explained in Maxwell on the Interpretation of Statutes (Twelfth Edition), "in some modern statutes are regarded as preambles to those sections. They cannot control the plain words of the statutes, but they may explain ambiguous words, a rule which, whatever the assistance which it may render in construction, cannot stand logically with the exclusion of marginal notes, for headings like marginal notes are--as Avory, J. pointed out in R. v. Hare--"not voted on or passed by Parliament, but are inserted after the Bill has become law". Findings of Hon'ble Justice Avory expressed in the case of R. v. Hare ([1934] K.B. 354, at P. 355), that "headings like marginal notes are not voted on or passed by Parliament, but are inserted after the Bill has become law", were of course valid at the time but can no more be relied upon as headings and sub-headings of sections happen to be part of a statute and are no doubt voted by the respective legislature at the time of its enactment. It was so noted in the case of "Fisher v. Raven" (1964 A.C. 210) by Lord Dilhorne that it should be noted that section 13 of the Debtors Act, 1869 was included in Part 2 of the Act which was headed "Punishment of Fraudulent Debtors." It was also noted that Headings or sub-headings have been part of the statute, which were voted upon and passed along with rest of body of the statute, and may therefore be safely referred in aid of the statute. It has also been explained by Mr. S.M. Zafar in his book "Understanding Statutes" at pages 814 and 815 that the Courts while dealing with delegated legislations apply the same general common law principles of interpretation which apply to interpretation of statute. Relevant part of his opinion is reproduced hereunder for ready reference; "Unless the contrary intention appears, expression used in subordinate legislation made since 1889 under a power contained in any statute, whenever passed, if used in the statute also, have the same meaning in the instrument as in the statute. Subject to this principle, subordinate legislation is to be construed in accordance with the same general rules as those which govern the interpretation of statutes, i.e. apart from the rule of primary intention, delegated legislation is construed on lines similar to those applicable in the case of Acts. The Courts generally show no disposition to distinguish here, and many of the leading cases on statutory interpretation concern delegated legislation."
We can therefore interpret rule 9 of the Service Statutes, according to the principles of interpretation of statutes. No doubt a judicial consensus has also existed that prefix to sections could not control the plain words of the provisions but where some ambiguity exist it can safely be referred and relied upon in aid of construction of statute. Not only heading of the rule indicates that purpose of imbedding Rule 9 has not been to provide for minimum qualifying service, but its wordings itself shows that its purpose has been no other than providing for condonation of interruptions in service and deficiehcy in the requisite amount of minimum service.
7. Rule 2.3 of the West Pakistan Civil Services Pension Rules, 1963 provides for counting of temporary or officiating service for the purpose of pension. Said rule being relevant is reproduced hereunder for ready reference; 2.3 Temporary and officiating service:- Temporary and officiating service shall count for pension as indicated below; i. `Government servants borne on temporary establishment who have rendered more than five years continuous temporary service shall' count such service for the purpose of pension or gratuity; and ii. Temporary and officiating service followed by confirmation shall also count for pension or gratuity."
Like Rule 4.4 of the Pension Rules there has been no rule pari materia to Rule 2.3 of the Pension Rules, available in the Service Statutes, which may have substituted it. Effect has to be given to rule 2.3 of the Pension Rules for the said reason. While interpreting said rule this Court in its earlier judgment rendered in the case of "Mst. Khilafat Jan v. Principal Government Higher Secondary School Nizampur District Nowshera and 5 others" reported as PLJ 2014 Peshawar 225 has allowed counting of ad-hoc/temporary service for the purpose of pension by observing; "In the case of the petitioner's husband, he was appointed on 7.2.1960 as contingent government servant in Government Higher Secondary School Nizampur while his service was regularized on 1.3.1973. By virtue of above referred rule, his temporary and officiating service which was followed by his regularization shall also be counted for pensionary benefits. As per Chapter-IV, Rule-4.4 of the ibid Rules, a civil servant becomes entitled to pension after qualifying service of not less than 10 years as per formula provided thereunder. As per record, the petitioner resigned from service on 2.10.1976. In this way, his total service turns out to be 16 years, 7 months and 25 days. Thus in view of this backdrop of the facts and law referred to herein above, Makki Khan (Mulki Khan) was entitled to the pensionary benefits as provided in the Rules referred to herein above."
8. For what has been discussed above, we allow the instant petition by directing respondents to count temporary service of the petitioners for the purpose of determining their qualification and eligibility for the grant of pension and treat them accordingly.