1992 PLP 1676 (MLD)

Dera Ghazi Khan. Subject:‑ GRANT OF MONTHLY AID TO WIDOWS FOR LIFE. Kindly refer to the S&GAD's Notification No.SOWF. III (S&GAD) 8(1)/79‑II (Provl), dated 9‑9‑1990 regarding amendment in the West Pakistan Government Servants Benevolent Fund Part I (Disbursement) Rules, 1965, as well as Notification of even number and date regarding amendment in the West Pakistan Government Servants Benevolent Fund Part II (Disbursement) Rules, 1966. (2) It has been decided in the meeting of the Provincial B.F. Board held on 13‑10‑1990 that the widows of deceased Government servants will be granted monthly aid out of Benevolent Fund for life subject to the following conditions:‑ (a) Closed cases where payment has already been stopped after expiry of authorised sanctioned period will not be reopened. The life grant facility will thus be admissible only in the cases of widows who are presently getting monthly aid from the BF and for such cases which would be approved by the relevant Boards for the grant of monthly aid in future. (b) The widowers, invalided retired Government servants and other dependents will be entitled to receive monthly grant for a period of 15 years only or till the age of maturity/dependency, as the case may be. (c) If a Government servant dies during service or within 15 years after his retirement, his widow shall be entitled till her death to monthly grant at the rate already prescribed in this behalf, provided that:‑ in case of widowers or retired Government servants the grant will be restricted to the un-expired period of 15 years for widows and would not be for life. (d) In case of death of a widow, the monthly grant may be transferred in the name of the dependent minor family member/s upto the age of maturity or 15 years, whichever is less. (e) In case where there is no widow the minor dependent family members as defined in section 2(a) of the Punjab Government Servants Benevolent Fund Ordinance, 1960 shall be eligible for a monthly grant upto a maximum period of 15 years or the age of maturity whichever is less, provided that:‑ in case of female minor dependents the marriage of the individual shall be construed as reaching the age of majority. (f) The age of majority noted above in case of dependent minor family members is determined as 21 years. (2) In view of the above decisions of the Provincial B.F. Board it is clarified that life grant facility is admissible to the widow of only such Government servants who die while‑in‑service. The widows of retired Government servants are entitled to monthly grant for the unexpired period of 15 years. For instance if a Government servant retired on 1‑7‑1987 and subsequently expired on 4‑7‑89, his widow or the dependent minor children would be entitled monthly grant w.e.f. 4‑7‑1989 to 30‑6‑2002. (3) Similarly Government servants retired on invalided ‑pension are also entitled to receive monthly grant for only 15 years. The case where monthly grant has been sanctioned for life in respect of invalided Government servants or widows of retired Government servants may be reviewed and sanction may be revised according to the above instructions/decision. Sd/‑ (Javaid Aslam) Economic Adviser/Secretary (BF)

3. In Sheikh Fazal Ahmad v. Raja Ziaullah Khan and another PLD 1964 SC 494, it was held that a notification by the Government in exercise of the power of subordinate legislation does not include a power to give retrospective effect. In Government of West Pakistan v. Nasir M. Khan and others PLD 1965 SC 106, it was also held that rules cannot be changed with retrospective effect. In Commissioner of Income‑tax v. M/s. Adamji Sons PLD 1967 Kar. 184, it was held that the subordinate delegate authority cannot make rules or issue notification under a statute so as to give them retrospective effect, unless statute itself grants such power. In The Province of East Pakistan v. Major Nawab Khawaja Hasan Askary and others PLD 1971 SC 82, it was held that the rights of the party must be determined as on the date of the suit and not on the basis of rights accrued to them after the institution of the suit. In Mian Abdul Majid and others v. The Chief Administrator of Auqaf, West Pakistan, Lahore PLD 1972 Lah. 66, it was held that notification issued under section 6 of the West Pakistan Waqf Properties Ordinance (XXI of 1959), could not be retrospective in operation so as to wipe off or curtail statutory period of 30 days contained in section 7 thereof. In Ayub Khan v. Mst. Balqees Begum PLD 1972 Lah. 686, it was held that according to the well‑established principle an amendment in the rule cannot be given retrospective effect and in any case such an amendment cannot take away the rights already vested before the amendment came into force. In Commissioner of Sales Tax (West), Karachi v. Messrs Kruddsons Ltd. PLD 1974 SC 180 it was held that a notification cannot' operate retrospectively to impair an existing right or nullify effect of final judgment. In Khan Faizullah Khan v. Government of Pakistan and another PLD 1974 SC 291, the same principle was reiterated that the rules cannot be applied retrospectively to regulate the salary payable to a Government servant. In Crown Bus Service Ltd., Lahore v. Central Board of Revenue and others PLD 1976 Lah. 1487, it was held that the rules cannot be framed with retrospective effect: In Islamic Republic of Pakistan v. Mazharul Haq and others 1977 SCMR 509, it was held that no rule, order or direction could be made with retrospective effect. In Muhammad Ismail and others v. Province of Punjab and others PLD 1977 Lah. 226, it was held that the rule‑making authority cannot normally make rules or issue notifications under a statute so as to give them retrospective effect, unless the statute itself expressly grants such a power. In Muhammad Suleman etc. v. Abdul Ghani PLD 1978 SC 190, it was held that it is well‑settled that notifications which curtail or extend rights of the citizens cannot be retrospective and this is all the more so in such cases when a state of things is to take place by publication of a notification which means from the date of its publication in the Gazette and not from any prior date or to be more precise, not from the date of the notification itself if it is prior to actual date of the publication in the Gazette, because then it will tantamount to giving that notification a retrospective effect not from its publication but from a date prior thereto which is not permissible according to the relevant law involved in that case. In Ch. Tajuddin etc. v. Government of Punjab etc. 1992 CLC 1619, it was held that amendments in West Pakistan (Foodstuffs) Distribution Order, 1967, cannot have retrospective force. Also refer Pakistan, through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407, wherein it was held:‑ " The authority that has the power to make an order has also the power to undo it. But this is subject to the exception that where the order has taken legal effect, and in pursuance thereof certain rights have been created in favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of those rights."

4. It would, therefore, be seen that the impugned policy decision/amendment in rule cannot be retrospectively applied to the case in hand having been decided by the competent authority in accordance with law. Clearly, the decision taken by the competent authority for the monthly aid/grant to the petitioner is a transaction past and closed and was not liable to be reopened on the basis of the policy decision communicated by the A.C.(D)/Secretary, Divisional Benevolent Fund Board, Lahore vide memorandum No.BFC‑1/3080/M‑Aid, dated 2‑2‑1991 addressed to the Manager, National Bank of Pakistan, Main Branch, Lahore, for stopping the monthly aid grant of the petitioner. The grant was sanctioned in favour of the petitioner in conformity with the statutory requirement of section 2(a)(iv) of the Ordinance. The grant/aid having been competently sanctioned in favour of the petitioner and having taken legal effect, the benefit accrued to her cannot be withdrawn or rescinded to her detriment. Clearly, the impugned orders are without lawful authority. Needless to observe that it is within the competence of the Government to amend the rules in the matter of grant of aid in such manner, which may appear to it to be just and equitable provided that the benefit obtained by a person in pursuance of the aforesaid statutory provision cannot be dealt with in any manner less favourable to him/her than that provided by the said enactment by applying a new rule/policy decision to cases already disposed of under section 2(a) (iv) ibid.

7. It may also be observed that during the course of arguments, learned counsel for the petitioner made an oral petition for payment of the monthly grant at the enhanced rate with effect from 1‑1‑1990. It is an admitted fact that the rate of monthly grant has been enhanced from Rs.500 to Rs.1,300 per month with effect from 1‑1‑1990. The plea raised by the petitioner is not the subject‑matter of the impugned order. The petitioner may, if so advised, approach the concerned authorities, in the first instance, for redress of her grievance in this behalf. If such an application is made, the same shall be considered on merits by the competent authority.

8. Subject to the observations made in paragraph 4 ante, the monthly benevolent aid sanctioned to the petitioner out of Government Benevolent Fund for the period 1‑6‑1987 to 31‑5‑1997 at the rate of Rs.500 per month by the orders of the A.C.(D)/Secretary, Divisional Benevolent Fund Board, Lahore, shall continue to hold the field. The arrears of the grant be paid to the petitioner within fifteen days. With the above observations, the writ petition is accepted and the impugned orders, dated 2‑2‑1991 and 14‑3‑1991 are hereby declared as without lawful authority and of no legal effect. There shall, however, be no order as to costs. AA./N‑62/L Petition accepted.