2012 P L C (C.S.) 1450
[Balochistan High Court]
Before Mrs. Syeda Tahira Safdar and Muhammad Noor Meskanzai, JJ
SAID MUHAMMAD and another
versus
CHIEF SECRETARY, BALOCHISTAN, QUETTA and another
Consti tutional Petition No.691 of 2008, decided on 28th June, 2012.
Provincial Employees Group Insurance Ordinance (Balochistan) (XII of 2007) ---
----S. 14 --- Constitution of Pakistan, Art.199 --- Constitutional petition ---Civil service ---
Group Insurance, payment of contribution to employees upon retirement ---Scope ---
Petitioners, inter alia, impugned clause of a notification issued subsequent to the
promulgation of the Provincial Employees Group Insurance Ordinance (Balochistan), 2007
whereby it was specif ied that employees who retired between 1 -7-2007 and 21 -12-2008
would be paid the actual amount of their contribution to the group insurance plus a
reasonable increase ---Contention of the petitioners was that there was no distinction between
old and newly r etired employees in the impugned clause and having retired before 1 -7-
2007; they were entitled to be paid their contribution to the group insurance as a right since it
had been deducted from their own pay ---Validity ---Said clause of the notificati on was sub
judice before the Supreme Court and High Court declined to give findings to that extent ---
Impugned notification, otherwise, only described enhancement of assured sum to
employees and therefore had to be read with S.14 and Schedule o f the Ordinance ---
Petitioners had failed to question the Provincial Employees Group Insurance Ordinance
(Balochistan), 2007 which had an overriding effect on other laws, rules, notifications etc. ---
Impugned notification, therefore, was no longer in the fie ld---Petitioners, in view of the state
of facts, and not having challenged the Ordinance, had no case ---Constitutional petitions were
dismissed, in circumstances.
Muhammad Aslam Chishti for Petitioner No.1.
Rahim Ullah Shah Abdullahzai, Advocate, Pet itioner No.2 in person.
Amanullah Tareen, Addl. A. -G. for Respondents.
Date of hearing: 15th December, 2011.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, .J. --- The petitioners Syed Muhammad, and
Rahimullah Shah Abdullahzai, through instant petition sough t an order in respect of payment
of Group Insurance to them and other retired employees. The petitioner further sought review
of Notification dated 19th September, 2007 being contrary to their fundamental rights
guaranteed by the Constitution. It was their contention that certain amount from their salaries
were deducted during course of their service on account of General Provident Fund,
Benevolent Fund, and Group Insurance. Further, the General Provident Fund and Benevolent
Fund were refunded on their reti rement, but as far as the Group Insurance was concerned, it
was to be paid only to those employees, who died during tenure of service. But in case
otherwise, no amount was paid either to the government employee or to his family. It was
further contended th at the prevailing policy was changed by issuance of Notification dated
30th June, 2004 by the Government of Balochistan. It was provided thereby that if the
government employee died after his retirement upto the age of sixty five (65) years, his
family wil l be entitled for Group Insurance according to his grade and pay scale. But if
otherwise, neither he nor his family would be entitled for any amount on account of Group
Insurance. Therefore, feeling aggrieved of the Notification of 2004 they approached the
authorities by submitting several applications to the effect. Resultantly, the Government of
Balochistan issued Ordinance, 2007 and the Rules were formulated in 2008. The petitioners
further contended that in suppersession thereof Notification dated 19th September, 2007 was
issued, thereby notify enhancement in rates of premium against enhance insured sum. With
an additional clause to the effect that the employees, who shall retire during period w.e.f. 1st
July, 2007 to 21st December, 2008, shall be paid a ctual amount of their contribution plus a
reasonable increase not exceeding Rs.50,000 (Rupees fifty thousand only). It was contention
of the petitioners that though in the questioned Notification there was no distinction of new or
old retired employees, bu t the concerned Department interpreted the Notification as it only
meant for newly retried employees, thereby implemented since 1st July, 2007. The petitioners
have questioned this Notification and prayed that they being entitled for the Group Insurance
as their right, being a sum deducted from their own pay.
2. The Government of Balochistan through Secretary, Finance Department filed their
reply with admission that the petitioners were contributory of Insurance Scheme as provided
in Group Insurance Rules , 1972. It was contended that according to the mentioned Rules a
specific sum was paid to the employees who died while in service, but in case of retirement
there was no payment as there was no provision to the effect. But later in time this privilege
was extended upto age of 65 years. It was their contention that the Government of
Balochistan promulgated the Provincial Employees Group Insurance Ordinance, 2007
(Ordinance XII of 2007) on 15th August, 2007, and Rules were framed as Provincial
Employees Group Insurance Rules, 2007. Therefore, in the terms of law the Government had
been notifying the rate of premium from time to time in supersession of previous
Notifications. It was further contention of the respondent that the Government of Balochistan
was in agreement with the State Life Insurance Corporation of Pakistan regarding the Group
Insurance of its employees, whereby it was agreed that the benefit of Group Insurance could
only be extended to the families of employees, whose death take place, while in service or
within five years after his retirement. It was further explained that the logic behind allowing
only contribution plus reasonable increase not exceeding Rs.50,000 to the regular
Government employees, who shall retire during period from 1st July, 2007 to 31st December,
2008, was that the contribution at nominal rates were received during past years had already
been paid to the State Life Insurance Corporation of Pakistan on account of premium,
therefore, no funds were available to meet the expendi tures on enhanced rates for payment to
retirees. Further, Contribution/Premium received during the grace period from 1st July, 2007
to 31st December, 2008 on enhanced rate would enable to increase the fund to run the policy
framed for the benefit of the Pr ovincial employees on their retirement as well. The dismissal
of the petition was prayed.
3. Learned counsel for the parties argued the matter at length. The learned counsel for
the petitioners contended that the subject Notification dated l9th September , 2007 was
questioned by the effectees through Constitutional Petition No.350 of 2008, which was
decided by this court through order dated 7th August, 2009, whereby the proviso of the
Notification was set -aside being violative to the Constitution. Further, the appeal preferred by
the Government of Balochistan was admitted for regular hearing, and presently the matter
still pending before the Hon'ble Supreme Court. The main argument of the learned counsel
was to the effect that if the Ordinance XII of 2007 i s not applicable in case of persons retired
earlier then it is discriminatory; also not cover the reasonable classification. Further, the
treatment must base on principle of equality, which is missing in case in hand. The learned
Additional Advocate -Genera l while arguing the matter contended that the amount mentioned
in paragraph No.3 of the written statement had already been
paid to the petitioners, which they have not disclosed. Further the Ordinance XII of 2007 is
not challenged by the petitioners, there fore, no relief can be granted in their favour to said
extent.
4. Through instant petition the petitioners only questioned the Notification dated 19th
September, 2007, whereby enhancement of rates of premium had been notified with the
proviso to the effe ct that "provided that those employees who shall retire during 1st July,
2007 to 31st December, 2008, shall be paid actual amount of their contribution plus a
reasonable increase not exceeding Rs.50,000. This Proviso was also challenged by several
persons by way of filing a Constitutional Petition No.350 of 2008, which was decided by this
court through judgment dated 7th May, 2009, whereby the learned Judges arrived to the
conclusion that: we declare that the above portion of period of retirement is violat ive of the
Constitution of Islamic Republic of Pakistan being discriminatory and strike down from the
said notification". This judgment had already been questioned before Hon'ble Supreme Court,
where leave to appeal was granted through order dated 30th Jun e, 2009, and is still pending.
Therefore, in view of the fact as matter still sub judice, to this extent no findings can be given
by this court. As far as remaining portion of the Notification 2007 is concerned, it can be
considered, and findings can be gi ven thereon.
5. It was case of the petitioners that the employees retired before 1st June, 2007 are also
entitled for the Group Insurance, as a matter of right as the amount was deducted from their
own pay. The rest of the claim of the petitioners based on this assertion. According to
Policies and Rules made by the Provincial Government certain amounts, though nominal, are
deducted from the salaries of the government employees, during subsistence of their service.
But on retirement or death of an employee the deduction so made is returned on account of
General Provident Fund and Benevolent Fund with other benefits. But the amount deducted
under the head of Group Insurance was non -refundable to the employees who retired alive.
Rather, it was paid only in ca se of death of an employee. The Rules governing the matter was
the Federal Employees Benevolent Fund and Group Insurance Rules 1972. Rules 6 and 6 -A
of the Rules 1972 are relevant, which reads as under: ---
"6. Contribution to and benefits from Benevolent Fund. --- (1) Every employee
shall make a monthly payment to the Benevolent Fund at the rate specified column (3)
of the Second Schedule.
(2) The monthly Benevolent grant under section 13 shall be paid in accordance
with the scale specified in column (4) of the Second Schedule.
6A. "Subscription to and benefits from Group Insurance Fund. --- (1) Every
employee shall make a monthly payment to the Group Insurance Fund at the rate
specified in column (3) of the Third Schedule.
(2) A sum specified in colum n (4) of the Third Schedule shall be paid to the
family of an employee who dies while in service.
(3) A sum specified in column(3) of the Fourth Schedule shall be paid to the
family of an employee who dies while in service on or after the 1st day of Jan uary,
2006.
Later in time Ordinance XII of 2007 was promulgated with title of Provincial
Employees Group Insurance Ordinance, 2007. Therefore, the provisions of the Ordinance
would govern the matters pertaining to Group Insurance. Section 14 of the Ordi nance is
relevant in matter in hand as it described the payment of sum assured. Section 14 read as
under: --
"Payment of the sum assured. --- (1) At the time of retirement or the death of an
employee the sum assured shall be paid to the employees or such member or members of his
family as he might have nominated in accordance with rules in full or in the shares specified
by him at the time of making the nomination or in absence of any nomination to the family
member(s) receiving pension of deceased Governm ent employee. At the rate of specified in
column 2 of the schedule within 60 days. Provided that those retiring employees before 1 -1-
2009 shall be paid the actual amount of their actual contribution plus a reasonable increase
not exceeding Rs.50,000."
While the Schedule annexed thereto describe the rate of contribution. It also describes
the assured sum on retirement/death and also the rate at which monthly deduction is to be
made, described as premium. But as far as the impugned Notification is concerne d, it only
described the enhancement in rate of premium against enhanced assured sum of regular
employees; therefore, it is to be read with section 14 and Schedule of the Ordinance, not in
isolation. But the petitioners failed to question the Ordinance XII of 2007, rather restricted
their claim to the extent of the Notification 2007, thereby claimed their right. But failed to
consider that the Ordinance had overriding effect on other laws, rule, order, notification,
contract, Ordinance etc. Therefore, in pr esence of a Statute the Notification in itself have no
binding force, which otherwise had been issued under the provision of the Ordinance and
have no separate sanctity. Therefore, in each case questioned Notification is to be read with
the Ordinance, to h ave its course. But the petitioners failed to challenge the Ordinance.
6. Furthermore, during course of arguments the learned Additional Advocate General
referred to Act X of 2009 i.e. Balochistan Provincial Employees Group Insurance Act, 2009
as an Act governing the matter in hand. The Act has been promulgated on 20th October,
2009, and came into force at once. Further, the Ordinance XII of 2007 also stand repealed on
its promulgation. Though the instant petition was filed in year 2008, when the Ordinanc e XII
of(?) 2007 was very much in field, and during pendency, the Act X of 2009 superseded the
Ordinance XII of 2007, thereby repealing it. But the petitioners neither challenged the
Ordinance, which was very much in field, when they filed their petition, nor thereafter
challenged the Act by seeking amendment in their petition. The impugned Notification is also
no more in field. Therefore, in the given state of facts the petitioners have no case, and no
relief, as prayed for, can be granted.
In view of t he above discussion the petitioners have failed to make out a case in their
favour. The petition being without merits is hereby dismissed.
KMZ/63/Q Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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