2017 PLP (C (PLC(CS)N)

ALI AKBAR QURESHI, J.

The petitioner, in response of an advertisement published by the Punjab Public Service Commission (hereinafter called the 'PPSC') dated 03.05.2015, to fill in 22 posts of Associate Professor Islamiat (Female) ( in Higher Education Department, Government of the Punjab, applied for one of the posts considering herself eligible for said post. In the advertisement, for the post of Associate Professor Islamiat, the following qualification was required: "Ph. D or equivalent qualification in the relevant subject with 09 years teaching/research experience in recognized College/University or Professional Experience in the Relevant Field in National or International Organization with at least two Research Publications as a Sole or Principal Author in Journal of repute recognized by the HEC."

2. The petitioner has done her Ph.D. in Islamiat from University of the Punjab as a regular student and performing her duties as Assistant Professor (BPS-18) in the Higher Education Department, Government of the Punjab.

3. The petitioner was called for interview on 28.07.2015 but was not allowed to appear in the interview, that she is not qualified for the said post on account of lack of one research paper to be published in the journal recognized by the Higher Education Commission (H.E.C). The petitioner filed a review Petition, as provided in the rules, before the Chairman PPSC and also filed instant Constitutional petition. However, the petitioner appeared in the interview under the order of this Court.

4. The controversy of the instant case revolves around the interpretation of academic criteria given in the advertisement published by the PPSC and relates to the academic qualification of the candidates, which is reproduced as under:-- "Ph.D or equivalent qualification in the relevant subject with 09 years teaching/research experience in recognized College/ University or Professional Experience in the Relevant Field in National or International Organization with at least two Research Publications as a sole or Principal Author in Journal of repute recognized by the HEC. OR M. Phil. in the Relevant Subject with 11 years Teaching/ Research Experience in a recognized College/University or Professional Experience in the Relevant Field in a National or International Organization and distinguished Research Work with at least 04 Research Publications as a Principal Author in a Standard Journal recognized by the University/HEC with research facility. "

5. The required qualification for the said post is Ph.D. or equivalent qualification in the relevant subject. Now it is to be adjudged, as to whether a candidate who has done Ph.D. is required to submit two research publications as a sole or principal author in a journal of repute recognized by the H.E.C. The important word which requires interpretation is 'or' which is used between Ph.D. and equivalent qualification. The dictionary meaning of the word 'or' is as under:-- Meaning of 'or' in Oxford Dictionary is "introducing second of two alternatives". In Black's Law Dictionary, 'or' has been defined as under:-- "Disjunctive particle used to express an alternative to give a choice of one among two or more things."

6. In a judgment cited as Salehon and others v. The State (PLD 1969 SC 267), the word 'or' has been interpreted in the following manners:-- "The answer to the question raised in the appeal lies in finding out whether the word "or" in the exception clause is used in disjunctive or conjunctive sense. Ordinarily "or" is used in disjunctive sense. The governing rule, however, is to carry out the intention of the Legislature. It may be found necessary to read the conjunctions `or' and 'and' one for the other depending on the consequences intended by the Legislature." In another judgment cited as Choudhry Muhammad Din v. Abdul Qayyum and others (PLD 1985 Jour. 164), the word 'or' has been defined in the following words:-- "The word 'or' and 'and' interpreted by Maxwell on the Interpretation of Statutes (10th Ed.) page 238:-- "To carry out the intention of the Legislature, it is occasionally found necessary to read the conjunctions 'or' and 'and' one for the other. The 43 Eliz. 1' c 3 (t), for instance, in speaking of property to be employed for the maintenance of 'sick and maimed soldiers', referred to soldiers who were either the one 'or' the other, and not only to those who were both (u). In ordinary use the word 'or' is a disjunctive that marks an alternative which generally corresponds to the word 'either'. In face of this meaning however the word 'or' and the word 'and' are often used interchangeably. As a result of this common and careless use of the word in legislation, there are occasions when the Court, through construction, may change one to the other. This cannot be done, if the Statute's meaning is clear or if the alteration operates to change the meaning of the law. It is proper only in order to more accurately express, or to carry out the obvious intent of the Legislature, when the statute itself furnishes cogent proof of the error of the Legislature, and especially where it will avoid absurd or impossible consequences, or operate to harmonize the statute and give effect to all of its provisions." Reliance is also placed on Muhammad Sanaullah v. Allah Din (1993 MLD 399) and Hakim Ali Bhatti v. Qazi Abdul Hakim and others (1986 CLC 1784) and Mst. Shagufta v. Chairman Federal Public Service Commission Islamabad and 2 others (2015 PLC (C.S.) 819). From the aforesaid interpretations, it is crystal clear, that the word 'or' used by the PPSC while giving the academic qualification of the candidates is disjunctive particle and gives a choice or alternative of one among two or more things. According to the advertisement, the candidate who has done Ph.D. is fully qualified to apply for the said post and in case the candidate is not Ph.D., should be of equivalent qualification in the relevant subject with 09 years teaching/research experience in the recognized university/college having two research publications. Needless to mention, that a student of Ph.D. had to publish the research paper in the relevant field and for that reason, the PPSC while giving the advertisement, offered the post of Associate Professor to the candidates who are Ph.D. or alternate qualification, therefore, it can safely be held,. that the petitioner was a fully qualified candidate to apply for the post advertised by the PPSC.

7. As regard the advertisement published by the PPSC or any other department for the recruitment of the employee, it has already been held in Government of Punjab through Secretary (S&GAD), Lahore and another v. Zafar Maqbool Khan and others (2012 SCMR 686), that the eligibility of a candidate had to be determined in accordance with the advertisement for the post, service rules governing the appointment and any amendment or instruction backed by law. Regulation 22 of the PPSC 2000 is very clear on the subject.

8. During the currency of this petition, the petitioner was allowed to appear in the interview. The petitioner appeared in the interview and as per the result informed by the learned Legal Advisor of PPSC, the petitioner stood first among all the candidates in all over the Punjab.

9. Learned counsel for the petitioner submits, that as the petitioner appeared in the interview through an interlocutory order of this Court, therefore, it is a step in aid of the final decision of the case. Learned counsel has relied upon a judgment cited as C.A.No.27-K of 1987 Pakistan Fisheries Ltd., Karachi and others v. United Bank Ltd. (PLD 1993 SC 109). The relevant part of the esteemed judgment is reproduced as under:-- "For the purposes of the Ordinance, an interlocutory order may be described as the order which is incidental to or a step in aid of the final decision of the suit."

10. As per the record, the PPSC advertised 22 posts whereas only 04 posts have been filled including the petitioner, therefore, the petitioner can easily be adjusted as the remaining posts are still vacant.

11. The respondent PPSC while filing the report and para wise comments has only objected the candidature of the petitioner, that the petitioner could not submit the research paper duly published in a journal recognized by the H.E.C.

12. It appears from the aforesaid record and the law declared by the Hon'ble Superior Courts of the country, that the respondent-PPSC has tried to deprive the petitioner from her fundamental right i.e. right of employment, on technicalities, whereas the petitioner, as evident from the record, completed her Ph.D. with distinguished result in 2013 and has the requisite experience.

13. It would not be fair not to mention here, that the petitioner, who did appear in the interview under the order of this Court and stood first from all over the Punjab, thus, it would be extreme example of injustice if the petitioner is deprived from her fundamental right promised by the Constitution of Islamic Republic of Pakistan, 1973.

14. In view of the above, this petition is allowed, the respondent-PPSC is directed to recommend the petitioner for the appointment as Associate Professor in the Higher Education Department. No order as cost. ZC/S-135/L Petition allowed. ** 2017 P L C (C.S.) Note 41 [Supreme Court (AJ&K)] Present: Mohammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J Miss MARYAM RASHEED Versus Mst. RASHEEDA SULTANA and 5 others Civil Appeal No.183 of 2014, decided on 6th April, 2015. (On appeal from the judgment of the High Court dated 31.3.2014 in Writ Petition No.572 of 2008). (a) Azad Jammu and Kashmir Civil Services Pension Rules, 1971

Rr. 4.5, 4.6 & 4.8

Civil service

Death of employee

Family pension

Distribution

Procedure

"Family" as used in R.4.8(2)(A) of Azad and Jammu Kashmir Civil Service Pension Rules, 1971

Connotation

Employee died and his mother filed writ petition before High Court seeking direction for payment of pensionary benefits to her

High Court accepted the writ petition holding that all the legal heirs i.e. daughter, sisters and brothers as well as mother were entitled for all the dues including pensionary benefits in accordance with Islamic Law of inheritance as per their respective shares

Validity

Family pension was to be allowed to the widow of the deceased and if government servant had more than one wives and number of surviving widows and children not exceeding four, then pension should be divided equally among the surviving widows and eligible children

Daughter was eligible only for one half of the pension and remaining one half should go to the brothers, sisters and mother in equal shares

Father, mother, brothers and sisters could only claim family pension if none of the person entitled for family pension mentioned in R. 4.8 of Azad Jammu and Kashmir Civil Services Pension Rules, 1971 were available

Persons mentioned in R. 4.8 of Azad Jammu and Kashmir Civil Services Pension Rules, 1971 would include the father, and not alive the mother and if mother and father both were not alive, the eldest surviving brothers below the age of 21 years would be entitled for family pension

R.4.6 of Azad Jammu and Kashmir Civil Services Pension Rules, 1971 would be applicable only in the cases when there was no "family" of the deceased civil servant and whole or part of gratuity was not covered by valid nomination then brothers below the age of 21 years, unmarried and widowed sisters, father and mother were entitled for grant of family pension

Family pension had to be paid under R.4.8 (2) (A) of Azad Jammu and Kashmir Civil Services Pension Rules, 1971 to a person who fell in the definition of "family" and in presence of any person falling in 'family' no other person was entitled for grant of family pension

Deceased civil servant, in the present case, had divorced his wife during his life time and was survived only by a daughter

Daughter alone was entitled for family pension

Judgment passed by the High Court was not maintainable in circumstances

Impugned judgment passed by the High Court was set aside

Appeal was allowed in circumstances. [Paras. 8, 9, 10 & 11 of the judgment] Wafaqi Hakoomat-e-Pakistan v. Awamanas PLD 1991 SC 731 rel. (b) Interpretation of statutes

Codified law had to be followed

Courts had to interpret the law as it existed on the statute book and it had to be interpreted as it was and not ought to be. [Para. 11 of the judgment] (c) Words and phrases

'Legacy' and "inheritance"

Distinction. "Legacy" means "a gift by will, esp of personal property and often of money" and inheritance is not legacy. The word "Legacy" may be specific or general. The legacy is created by will whereas the inheritance comes into play on the basis of operation of law. [Paras. 5 & 6 of the judgment] Law Terms and Phrases Judicially Interpreted, Edition 1978; Concise Oxford Dictionary, 8th Edition, 1990; Black's Law Dictionary, Sixth Edition Published in 1991; Rabia English to English and Urdu 21st Century Practical Dictionary, Elite Edition, the word "Inheritance" and the word rel. Raza Ali Khan, Advocate for Appellant. Abdul Rasheed Abbasi, Advocate for Respondent No.1. Mansoor Pervaiz Khan, Advocate-General for Proforma Respondents. Date of hearing: 9th March, 2015. JUDGMENT MOHAMMAD AZAM KHAN, C.J.

One Muhammad Rasheed Khan Rathore, was serving under the Azad Jammu and Kashmir Government as an officer of grade, B-19, He died during service in October, 2003. He had divorced his wife during his life time. He had no male children and survived only by his minor daughter, the appellant, herein, his mother, Rasheed Sultana, respondent No.1, herein, four sisters and two brothers as his legal heirs. Rasheeda Sultana, respondent No.1, herein, filed an application for issuance of succession certificate. The succession certification was issued by the District Judge, Muzaffarabad. She submitted a copy of the same to the Secretary, Services and General Administration Department for payment of pensionary benefits. After seeking the legal opinion from the Law Justice, Parliamentary Affairs and Human Rights Department, the Secretary Services and General Administration Department declined to pay the pensionary benefits to Rasheeda Sultana, under Rule 4.5 of the Azad Jammu and Kashmir Civil Services Pension Rules, 1971. (hereinafter to be referred as Pension Rules, 1971). Rasheeda Sultana challenged the said order by way of writ petition wherein, she sought a direction for payment of pensionary benefits to her. A learned Single Judge in the High Court through the impugned judgment dated 31st March, 2014, accepted the writ petition while holding that all the legal heirs i.e. daughter, sisters and brothers as well as the petitioner, therein, are entitled for all the dues including the pensionary benefits in accordance with the Islamic Law of inheritance as per their respective shares and also ordered that in the relevant column of succession certificate all other assets and dues including the pensionary benefits shall be deemed to have been incorporated. The appellant has challenged the said judgment through appeal by leave of the Court.

2. Mr. Raza Ali Khan, Advocate, the counsel for the appellant, argued that the judgment of the High Court is against law and the record. The succession certificate was challenged by way of appeal in this Court but the judgment was kept intact by this Court, as such, the High Court has no jurisdiction to order contrary to the judgment of this Court. The learned counsel submitted that the judgment is delivered beyond the pleadings. In prayer clause of writ petition, the pensionary benefits were not claimed by the petitioner, therein, but the High Court has granted such relief which was not claimed. The learned counsel forcefully argued that under rule 4.5 of Pension Rules, 1971, the mother is not included in the family for the purpose of grant of family pension. He submitted that under rule, 4.6(b) of Pension Rules, 1971, when there is no nominee, the gratuity is distributed among the family members. Only the wife and children of the deceased are included in the definition of family. The mother cannot claim the pensionary benefits. The pensionary benefits are admissible only to the family. The learned counsel forcefully argued that the codified law has to be followed. Under the provisions of Pension Rules, 1971, the family pension is only admissible to the family, therefore, the case will not be governed by the provisions of Mohammadan Law . Pension doesn't fall in 'inheritance' ( ). The High Court has incorrectly applied the law laid down in the case reported as Wafaqi Hakoomat-e-Pakistan v. Awamanas PLD 1991 SC 731 (Shariat Appellate Bench). The learned counsel requested for acceptance of appeal.

3. Mr. Mansoor Pervaiz Khan , Advocate General, while agreeing with the arguments of the counsel for the appellant, submitted that the pension has to be paid under Rule 4.5 read with Rule 4.6(b) of Pension Rules, 1971 to the family of the deceased civil servant. In the instant matter, only daughter falls in the definition of the family because she is sole surviving family member as laid down in Rule 4.5 of Pension Rules, 1971. The mother is not included in the family of a deceased civil servant.

4. While controverting the arguments of the counsel for the appellant, Mr. Abdul Rasheed Abbas, Advocate the counsel for respondent No.1, submitted that the judgment of the High Court is perfectly legal. The pension falls in the terms and conditions of service. He referred to section 18 of the Civil Servants Act, 1976, and argued that the pension is admissible to a civil servant after qualifying the length of service as of right and when a civil servant is entitled for pension as of right, it falls in the definition of legacy ( ) and all the legal heirs are entitled to claim the family pension. The learned counsel argued that Rule 4.5 of Pension Rules, 1971 deals with the gratuity and not with the pension. The learned counsel argued that Rule 4.8 of Pension Rules, 1971 deals with the family pension rule 4.8 of Pension Rules, 1971 is relevant for grant of family pension. Para ii of Sub-rule (2)(A) of rule 4.8 of Pension Rules, 1971 refers to sons and daughters, therefore, the pension is admissible to the family consisting of sons and daughters and if there is only one daughter then the daughter will get one half of the shares and remaining shares will go to the mother. The High Court correctly delivered the impugned judgment. The mother is entitled for grant of family pension.

5. We have heard the learned counsel for the parties and also perused the record. It is evident from the record that Muhammad Rasheed Rathore was an officer of grade, B-19. He died during service leaving behind a daughter, mother, four sisters and two brothers. The mother obtained the succession certificate in respect of the moveable property of her deceased son. On the basis of said succession certificate, she applied to the Secretary, Services and General Administration Department for payment of family pension/pensionary benefits being legal heir of the deceased. The Secretary, Services and General Administration Department declined to pay the family pension to the mother in the light of the Pension Rules, 1971. The mother claimed that the family pension is an "inheritance" ( ) of her deceased son. The word "inheritance" is defined in, Law Terms and Phrases Judicially Interpreted, Edition 1978 as under:-- "Inheritance. (i) A perpetual or continuing right to an estate vested in a person or his heirs. (2) A hereditament. (3) that which descends to the heir on the death of the owner intestate." In the Concise Oxford Dictionary, 8th Edition, 1990, the word "inheritance" is defined as under:-- "Inheritance.

1. Something that is inherited. 2. the Act of inheriting and an instance of this". In Black's Law Dictionary, Sixth Edition published in 1991, the word "inheritance" is defined as under:

"Inheritance.

That which is inherited or to be inherited. Property which descends to heir on the intesstate death of another. An estate or property which a person has by descent, as heir to another, or which he may transmit to another, as his heir. Civil law. The succession of the heir to all the rights and property of the estate-leaver. It is either testanmentary, where the heir is created by will, or ab intestate, where it arises merely by operation of law." In Rabia English to English and Urdu 21st Century Practical Dictionary, Elite Edition, the word "inheritance" is defined as under:

"inheritance" hereditary estate or possession, ( ) ( ) In , the word ( ) has been defined as under: " " "And the word " " is defined as under: From the above referred dictionary meanings, it becomes crystal clear that "inheritance" means a property whether moveable or immovable left by a deceased which was in his actual ownership and he left it behind at the time of his death. The proposition came under consideration of the Supreme Court of Pakistan in a case reported as Wafaqi Hakoomat-e-Pakistan v. Awamanas (PLD 1991 SC 731) (Shariat Appellate Bench). It was observed at page 741 of the referred case as under:

Thus, it can safely be concluded that "inheritance" means a property which is left by a deceased at the time of his death and which was in his actual ownership. Any property which was not in ownership of a deceased person at the time of his death, cannot be treated as inheritance ( ) .

6. The proposition; whether Family Pension falls in inheritance ( ) or not, has already been resolved by this Court while hearing the appeal titled Miss Maryam Rashid v. Rashida Sultana and others (Civil Appeal No. 31/2013, decided on 3rd June, 2013), while relying upon judgment of the Supreme Court of Pakistan titled Wafaqi Hakoomat-e-Pakistan v. Awamunnas (PLD 1991 SC 731), it was observed in paras 5, 6 and 7 of the referred judgment as under:

"

5. We have heard the learned counsel for the parties and also perused the record of the case. In our opinion, the matter has been made unnecessarily complex and complicated. So far as the question of status of pension whether it is inheritable right or not is concerned, it has been clearly resolved by the apex Court of Pakistan in the case reported as Wafaqi Hakoomat-e-Pakistan v. Awamunnas (PLD 1991 SC 731). It will be useful to reproduce here the relevant portion of the judgment which reads as under:

6. The learned District Judge has discussed this principle of law enunciated by the apex Court of Pakistan in the following manner:

Prima facie, the learned District Judge has rightly appreciated this judgment and in this regard no further clarification is required. Thus, in this state of affairs, remand of the case to District Judge will bring no fruits and it will be futile exercise.

7. In view of the conclusion drawn in the preceding para, there remains hardly any necessity to attend the other arguments relating to ancillary and incidential issues like acceptance of the time-barred revision petition by the High Court." Probably the above referred judgment of this Court was not brought in the notice of the learned Single Judge in the High Court. The judgment of the High Court to the extent of declaring the family pension as legacy is not maintainable. The learned Judge in the High Court has used the word "Legacy". The word "Legacy" is synonymous to the word "inheritance". According to the Black's Law Dictionary, Ninth Edition 2008, the word "Legacy" means "a gift by will, esp of personal property and often of money" and inheritance is not legacy. The word "Legacy" may be specific or general. The legacy is created by will whereas the inheritance comes into play on the basis of operation of law.

7. The family pension is defined in Rule 4.8 of the Pension Rules, 1971. Rule 4.8 refers to Rule 4.5 and Rule 4.6 of Pension Rules, 1971 for the purpose of term 'family'. It is necessary to reproduce here the relevant rules which read as under:

"4.5 (1) The term "family" for the purpose of payment of gratuity under this section shall include the following relatives of the Government servants:-- (a) Wife or wives, in the case of a male Government servant. (b) Husband in the case of a female Government servant; (c) Children of the Government servant; (d) Widow or widows and children of a deceased son of Government servant. Note 1: A child means a legitimate child or an "adopted child" if under the personal law of the Government servant concerned adoption is legally recognized as conferring the status of a natural child. Note 2: If it is proved that the wife has been judicially separated from the Government servant, or has ceased under the customary law of the community to which she belongs to be entitled to maintenance, she will no longer be deemed to be a member of the family unless the Government servant has himself intimated in writing to the Accountant General/Head of the office that she will continue to be so regarded. Note 3: In the case of a female Government servant if the wife intimates in writing to the Accountant General/Head of the Office that her husband should not be included as a member of family, then he will no longer be considered a member of the family unless subsequently she cancels in writing her intimation excluding him. (2). (3). (4). (5). (6). (7). (8). (9). (10). 4.6 When the amount of gratuity has become payable, it shall be the duty of the Accountant/General to make payment according to the following procedure:

(a) The amount of the gratuity or any part thereof, to which the nomination relates, shall becomes payable to his/her nominee or nominees in the proportion specified in the nomination. (b) if nomination relates only to a part of the amount of the gratuity, the part which it does not relate shall be distributed equally only among the members of the family other than the nominees; (c) if no valid nomination subsists, the whole amount of the gratuity shall become payable to the members of his/her family in equal shares; Provided that in case of (b) above no share shall be payable to:-- (i) sons who have attained the age of 24 years; (ii) sons of a deceased son who have attained the age of 24 years; (iii) married daughters whose husbands are alive; and (iv) married daughters of a deceased son whose husbands are alive; If there is any member of the family other than those specified in sub-clauses (i), (ii), (iii) and (iv) above; Provided further that the widow or widows and the child or children of a deceased son shall receive between them in equal parts only the share which that son would have received if he had survived that Government servant and had been exempted from the operation of the first proviso. (d) When the Government servant leaves no family and the whole or part of the gratuity is no covered by valid nomination, the amount of gratuity shall be payable to the following surviving relatives, if any, of the Government servant in equal shares:-- (1) brothers below the age of 21 years; (2) unmarried and widowed sisters; (3) father, and (4) mother. Note: in the absence of any other eligible claimant gratuity would be payable to the sons and daughters of the deceased Government servant in equal shares even if the sons are over 24 years old and the daughters are married and their husbands are alive." 4.8. (1) Family for the purpose of payment of family pension shall be as defined in sub-rule (1) of rule 4.5; it shall also include the Government servant's relatives mentioned in clause (d) of rule 4.6. (2) (A) A family pension sanctioned under this section shall be allowed as under:-- (i) (a) To the widow of the deceased, if the deceased is a male Government servant, or to the husband, if the deceased is a female Government servant. (b) If the Government servant had more than one wife, and the number of his surviving widows and children do not exceed 4, the pension shall be divided equally among the surviving widows and eligible children. If the number of surviving widows and children together is more than 4, the pension shall be divided in the following manner vis, each surviving widow shall get 1/4th of the pension and the balance (if any) shall be divided equally among the surviving eligible children. Distribution in the above manner shall also take place wherever the Government servant leaves behind surviving children of a wife that has predeceased him in addition to the widow and her children, if any. (c) In the case of a female Government servant leaving behind children from a former marriage in addition to her husband and children by her surviving husband, the amount of pension shall be divided equally among the husband and all eligible children. In case the total number of beneficiaries exceeds four, the husband shall be allowed 1/4th of the pension and the remaining amount distributed equally among the eligible children. (ii) Failing a widow or husband, as the case may be, the pension shall be divided equally among the surviving sons not above 24 years and un-married daughters." Note:-- In working out the share of the various heirs under sub-clause: (A) (i) and (ii), the amount should be calculated to the nearest paisa. (iii) Failing (i) and (ii), to the eldest widowed daughter. (iv) Failing (i) to (iii), to the eldest widow of a deceased son of the Government servant. (v) Failing (i) to (iv), to the eldest surviving son of a deceased son of the Government servant. (vi) Failing (i) to (v) to the eldest unmarried daughter of deceased of the Government servant. (B) If the family pension is not payable under clause (A), it may be granted; (i) to the father; (ii) failing the father, to the mother (iii) failing the father and the mother, to the eldest surviving brother below the age of 21 years; (iv) failing (i) to (iii), to the eldest surviving unmarried sister, if the eldest sister; marries or dies then the next eldest; (v) Failing (i) to (iv), to the eldest surviving widowed sister."

8. A perusal of above referred rules reflects that the family pension is governed by Rule 4.8 of Pension rules, 1971. Sub-rule 1 of rule 4.8 refers to sub-rule 1 of rule 4.5 of Pension Rules, 1971 for the purpose of definition of "family" and also provides that it shall include the Government servant's relatives mentioned in clause (d) of rule 4.6. The term "family" is described under rule 4.5 of Pension Rules, 1971 as (a) wife or wives in the case of male Government servant; (b) husband in the case of a female Government servant; (c) children of the Government servant; and (d) widow or widows and children of a deceased son of the Government servant. Similarly, sub-rule (2)(A) of rule 4.8 of Pension Rules, 1971 provides the sequence of entitlement for grant of family pension. It provides that family pension shall be allowed to the widow of the deceased and if the Government servant had more than one wives and the number of surviving widows and children does not exceed 4, the pension shall be divided equally among the surviving widows and eligible children. Para (ii) of sub-rule 2(A) of rule 4.8 of Pension Rules, 1971 provides that if there is no widow or husband, as the case may be, the family pension shall be divided equally among the surviving sons not above the age of 24 years and unmarried daughters. The main argument of Mr. Abdul Rasheed Abbasi is based upon para (ii) of sub-rule (2)(A) of rule 4.8 and clause (d) of rule 4.6 of Pension Rules, 1971 clause (d) of rule 4.6 of Pension Rules, 1971 which provides that when there is no family of Government servant and the whole or part of the gratuity is not covered by valid nomination, the amount of gratuity shall be payable to; (1) brothers below the age of 21 years; (2) unmarried and widowed sister; (3) father; and (4) mother in equal shares and the note of clause (d) shows that in the absence of any other eligible claimant; the gratuity would be payable to the sons and daughters of the deceased Government servant in equal shares even, if the sons are over 24 years of age and the daughters are married and their husbands are alive. The counsel for the respondent stressed that combined reading of rule 4.6(d) and para (ii) of sub-rule 2(A) of rule 4.8 of Pension Rules, 1971 shows that the daughter is eligible only for one half of the pension and remaining one half of the Pension shall go to brothers, sisters and mother in equal shares, thus the argument is misconceived. Rule 4.8 of Pension Rules, 1971 for the purpose of definition of family pension refers to rule 4.5, which prescribes that the wife or wives, husband, children of a deceased Government servant, widow or widows and grant-children of the deceased civil servant are included in family. The father, mother, brothers and sisters can only claim family pension, if none of the person entitled for family pension mentioned in rule 4.8 (2)(A) of Pension Rules, 1971 are available. The persons mentioned in rule 4.8 (2)(B) of Pension Rules, 1971 include the father, failing the father, the mother and failing the father and mother, the eldest surviving brothers below the age of 21 year are entitled for family pension.

9. Rule 4.6 of Pension Rules, 1971 is applicable only in the cases when there is no family of a deceased civil servant and whole or part of gratuity is not covered by valid nomination then, brothers below the age of 21 years, unmarried and widowed sisters, father and mother are entitled for grant of family pension. In the presence of family, the persons mentioned in clause (d) of rule 4.6 of Pension Rules, 1971 are not entitled for grant of family pension. The argument of Mr. Abdul Rasheed Abbasi, that when there is no widow or husband of deceased civil servant, the pension shall be divided among sons not above the age of 24 years and un-married daughters equally and in the present case, there is only one daughter and she is entitled for one half of the pension, is not tenable. The language of the rule is unambiguous. Ordinary dictionary meanings have to be assigned while interpreting the Pension Rules. Family pension has to be paid under rule 4.8 (2)(A) of Pension Rules, 1971 to a person who falls in the definition of family as laid down in sub-rule (1) of rule 4.5 of Pension rules, 1971 and in presence of any person falling in "family", no other person is entitled for grant of family pension.

10. In the case in hand, the deceased civil servant, during his life time, divorced his wife. The deceased is surviving only by a daughter. She alone is entitled for family pension. The judgment of the High Court is not maintainable.

11. Before parting with we may observe that codified law has to be followed. The Courts have to interpret the law as it exists on the statute book and it has to be interpreted as it is and not ought to be. The provisions of Pension Rules, 1971 are statutory provisions. Unless these are suitably amended, the person entitled for "family pension" under the existing Pension Rules, 971, shall keep on receiving the same. The respondent has not challenged the provisions of the Pension Rules, 1971. We may observe here that under the Islamic Law of inheritance, the father and mother are entitled for inheritance of a deceased son. The mother and father of a deceased are entitled for inheritance thus at their advanced stage they need more help from the State for their maintenance apart from inheriting the estate of the deceased. The Family Pension Rules, 1971, prima facie, appear to be against the spirit of Islam. Since the Pension Rules, 1971 were not challenged by the respondent in the Shariat Court, which has power to declare a law against the injunctions of Islam, it is not appropriate for us to direct the Government to amend the law. However, the Government may consider for amending the Rules so as to bring the same in accordance with the injunctions of Islam by entitling the parents of a deceased for family pension. The result of the above discussion is that the appeal is accepted. The judgment of the High Court is set aside. Resultantly, the writ petition is dismissed with no order as to the costs. ZC/42/SC(AJ&K) Appeal allowed.